Opinion
Civil No. 96-4896 (JBS).
December 14, 2001
John M. Amorison, Esquire, Mullica Hill, NJ, Attorney for Plaintiff Valerie Bolden
Lawrence N. Lavigne, Esquire, Hanlon Lavigne, Edison, NJ, Attorney for Plaintiff Wanda Moorehead-Lucas.
Robert J. Cleary, United States Attorney, By: Irene E. Dowdy, Irene E. Dowdy, Assistant U.S. Attorney, Assistant U.S. Attorney, Trenton, NJ, Attorney for Defendant.
OPINION
Plaintiff Valerie Bolden brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2, against the United States Attorney General in his official capacity as the head of the Department of Justice, Bureau of Prisons, alleging that she suffered adverse employment actions as a result of racial discrimination while employed at the Federal Correctional Institution (FCI) in Fort Dix, New Jersey, from 1993 to 1994. Plaintiff alleges that she was suspended, placed on home duty status, and placed on leave of absence without pay as a result of racial discrimination and in retaliation for filing previous Equal Employment Opportunity complaints. Presently before the Court is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56(c) and co-plaintiff Wanda Moorehead-Lucas's motion for separation of all claims pursuant to Fed.R.Civ.P. 42(b). For reasons stated herein, defendant's motion for summary judgment as to plaintiff Bolden's claims will be granted, and plaintiff Moorehead-Lucas's motion for separation of all claims will be granted.
Attorney General John Ashcroft is hereby substituted as the party-defendant, having succeeded Attorney General Janet Reno, pursuant to Rule 25(d)(1), Fed.R.Civ.P.
BACKGROUND
Plaintiff Valerie Bolden is an African American female who began working at FCI Fort Dix as a Legal Instruments Examiner (LIE) on December 27, 1992, after transferring from a BOP facility in San Antonio, Texas. (Complaint ¶¶ 3, 7; Def.'s Br. Ex. 1.) During 1993 and 1994, plaintiff filed three complaints with the Equal Employment Opportunity Commission (EEOC) claiming racial discrimination, under the procedures set forth under 28 C.F.R. Part 1614. (Def.'s Br. Exs. 68, 78, 79.)
On September 28, 1993, plaintiff initially contacted an EEO counselor to report racial discrimination based on harassment allegedly perpetrated by her supervisor Mr. Randy Watson, the Inmate Systems Manager. (Def.'s Br. Ex. 67, at 3.) Plaintiff contended that Mr. Watson, who is Caucasian, harassed plaintiff by giving plaintiff poor performance evaluations, isolating her from work-related events, refusing to speak to her or look at her, failing to provide guidance and instructions, using plaintiff as a scapegoat for departmental problems, imitating minorities, questioning plaintiff's honesty, commenting on controversial racial issues, and creating a hostile work environment. (Id.)
On November 1, 1993, after some verbal altercations with her supervisor Randy Watson, plaintiff met with two other employees of the Inmate Systems Department, an EEO counselor, and Warden Douglas Lansing to discuss their problems with Mr. Watson. (Def.'s Br. Ex. 67 at 5, ¶ 13.) Plaintiff submitted a written memorandum on November 2, 1993, in response to Warden Lansing's request to the employees that they submit a proposed informal resolution in writing. (Def.'s Br. Ex. 5.) In her memorandum, plaintiff claimed that "because of the racial discrimination [she believes] to have been inflicted upon [herself] by [her] Supervisor, Mr. Randy Watson," she wished to be reassigned to the Case Management or Employee Development department or, if that were not possible, to be transferred to an institution in Texas or Oklahoma. (Id.) On November 5, 1993, Warden Lansing met with plaintiff and stated that, as his final offer of informal resolution, which EEO officials had agreed was appropriate, he had transferred Mr. Watson to the west side of the facility and that plaintiff's new immediate supervisor as of November 5 would be Mr. John Meyer, and, therefore, Mr. Watson would no longer have supervisory authority over plaintiff. (Def.'s Br. Exs. 6, 67, at 6 ¶ 14.)
On November 19, 1993, plaintiff filed a formal EEO complaint alleging that her supervisor Randy Watson had racially discriminated against her three times since her arrival at FCI Fort Dix. (Def.'s Br. Ex. 68.) Plaintiff requested that she be transferred out of FCI Fort Dix to an institution in Texas or Oklahoma. (Id.)
For example, plaintiff had arranged for a warrant to be faxed to her and a certified copy be sent in the mail regarding a detainer on an inmate. (Def.'s Br. Ex. 68.) Plaintiff was absent the next day and when she returned, Mr. Watson told her "loudly and nastily" that she couldn't place a faxed copy of a warrant in the file. (Id. at 6.)
On April 5, 1994, plaintiff's affidavit in conjunction with her formal EEO complaint was taken, claiming that she was discriminated against because of her race when (1) staff in the ISM department did not speak to her; (2) she received negative performance log entries; (3) she was isolated from events in the work environment; (4) she was not provided guidance and instruction; and (5) she was blamed for problems in the inmate systems department. (Def.'s Br. Ex. 69.) More specifically, in her EEO complaint, plaintiff claims that on September 16, 1993, two days after her return from maternity leave, Mr. Watson refused to speak to plaintiff and gave her a "quick answer" to her question, while laughing and joking with other legal technicians, Kathy Quigley, who is Caucasian, and Iris Rivera, who is Hispanic. (Def.'s Br. Ex. 68 Attach. at 1-2.) In addition, plaintiff claims that Mr. Watson made negative comments directed at plaintiff on October 6, 1993, and, at numerous other times, mistreated plaintiff and the two other minorities in the department, which "never happen[ed] to other white employees. . . ." (Id. at 3.) Plaintiff also alleges that she was "discredited and implied to be lying in front of [her] peers and [an] outside staff member." (Id.) Plaintiff alleges that Mr. Watson informed her that she could not work overtime, although union policy stated otherwise. (Id. at 6.) Plaintiff also claims that Mr. Watson was trying to "convince people that [plaintiff] was influencing others to be against him," and told staff members that "plaintiff was no good at [her] job and therefore didn't like [Mr. Watson], nor was [plaintiff] liked by the other staff members." (Id. at 9.) Furthermore, plaintiff alleges that Mr. Watson stated, "I feel sorry for you. [N]o one likes you because of this (referring to the EEO report)." (Id. at 10.) As a result, plaintiff alleges that because of Mr. Watson's discrimination against her, she has "lost [her] job [credibility] and any promotional [opportunities she had] in [her] present department." (Id. at 10.)
In Mr. Watson's affidavit to the EEOC, he states that "[plaintiff's] race was never a factor. It was all a matter of conduct and job performance." (Def.'s Br. Ex. 71.) In addition, he states that the atmosphere of the working environment was uncomfortable "[b]ecause of the attitudes of [plaintiff] and Ms. Moorehead [co-plaintiff in this case]." (Id.)
Plaintiff returned to work in November 1993 with Mr. Meyer as her supervisor. On December 3, 1993, Mr. Meyer removed plaintiff from working on the project of auditing computations because it "was taking her such a long time (she was only in the "C's" by alphabet after over two weeks of work)," and gave her the project of ordering manuals and supervising inmate orderlies. (Def.'s Br. Ex. 8.) On December 8, 1993, Mr. Meyer assigned plaintiff the task of conducting a pre-operational review in preparation for the operational review scheduled for January 24-February 4, 1994, because of "her extensive knowledge in ISM." (Def.'s Br. Ex. 9.) After completion of the project, Mr. Meyer stated that plaintiff "had not answered the program review questions completely or had inappropriately added extraneous information that had no relevancy to the issue at hand." (Def.'s Br. Ex. 12.)
Plaintiff filed her second EEO complaint, received on or about October 24, 1994, Def.'s Br. Ex. 78, alleging that she was retaliated against for filing her previous EEO complaint through the following actions, according to the report submitted by her EEO counselor, Def.'s Br. Ex. 77: placement in home duty status, three-day suspension (for refusing an order), fitness for duty examination, and institution involvement in base housing inspection.
On May 9, 1994, plaintiff was scheduled for firearms training, which BOP employees are required to undergo in order to use various firearms in the course of their job. (Def.'s Br. Ex. 21.) Before the scheduled training, plaintiff met with Chief Psychologist Baruch, at which time plaintiff stated that she was under a great deal of stress and did not feel competent to take firearms training at that time. (Def.'s Br. Ex. 86, at 69.) In a memorandum to her supervisor Mr. Meyer, dated May 6, 1994, plaintiff "requested not to attend Firearm Training at this time." (Def.'s Br. Ex. 23.) According to Mr. Meyer, plaintiff had stated she "might hurt somebody" if she did undergo firearms training. (Def.'s Br. Ex. 80, at 4-5.) In addition, on May 12, 1994, several work-related disputes arose between plaintiff and her supervisor and, on May 13, 1994, Mr. Meyer wrote to Mr. Hayes regarding another work-related incident with plaintiff. (Def.'s Br. Exs. 28, 29.) Warden Doug Lansing then placed plaintiff on home duty status on May 17, 1994, because of her "unwillingness . . . to comply with their supervisor's instructions, and the continual disruption in the Inmate Systems Department." (Def.'s Br. Ex. 31.) In early June 1994, plaintiff was directed to return to her normal duties at FCI Fort Dix and be prepared to take part in the required firearms training. (Def.'s Br. Ex. 32.) After again meeting with Dr. Baruch, plaintiff stated that she would be unable to undergo firearms training because she was suffering from stress. (Def.'s Br. Ex. 32.) On July 28, 1994, Warden Lansing placed plaintiff on home duty status again until a fitness for duty examination could be conducted, to determine plaintiff's ability to perform her job. (Id.)
Plaintiff's three-day suspension was imposed on July 7, 1994, effective July 18-20, 1994. (Def.'t Br. Ex. 37.) The suspension allegedly occurred as a result of refusing an order, "a violation of the Standards of Employee Conduct and Responsibility." (Def.'s Br. Ex. 36.) Plaintiff's supervisor Mr. Meyer had ordered plaintiff to bring paperwork regarding inmates to be released on federal writ up to his office. (Id.) He stated that plaintiff had said she did not trust him and that "if [he] wanted to get the paperwork, [he] could come down to the records office and get it [himself]." (Id.)
In addition, plaintiff contends that her eviction from base housing was due to "a break up between [her] spouse and [her]self, escalated by the military police and problems centered around the problems here at Fort Dix," which resulted in her inability to afford base housing. (Def.'s Br. Ex. 20.) On January 19, 1993, plaintiff had been assigned Base Housing after her transfer to FCI Fort Dix. (Def.'s Br. Ex. 16.) In a memorandum dated April 11, 1994, plaintiff asked the Warden for assistance, informing Warden Lansing that she and her spouse had incurred a break-up and she therefore could no longer afford the rent for Base Housing. (Def.'s Br. Ex. 20.) In a memorandum dated May 11, 1994, Don Romaine, Executive Associate Warden, gave plaintiff advance warning of the pending eviction to "give [her] additional time to make other arrangements" and to give plaintiff their "most recent listing of rental properties to assist [her] during this time." (Def.'s Br. Ex. 24.) On May 25, 1994, plaintiff's housing was terminated by the Army because her husband had been involved in a domestic disturbance in March 1994 and was cited by Military Police. (Def.'s Br. Ex. 17.) Plaintiff had been ordered to clear inspection of Base Housing on June 20, 1994, but failed to do so. (Id.; Def.'s Br. Exs. 38, 39.) Plaintiff was suspended a second time for ten days initially because she did not schedule a time to clear inspection of Base Housing, as ordered by Warden Lansing in a letter dated July 5, 1994. (Def.'s Br. Exs. 38, 39.) After conducting additional correspondence and hearing plaintiff's oral response in a meeting, Warden Lansing reduced the suspension to three days. (Def.'s Br. Ex. 38-49.)
In November 1994, plaintiff was placed on an enforced leave without pay status for a period of 52 weeks. (Def.'s Br. Ex. 65, at 2.) During the enforced leave, plaintiff was given the option of providing medical documentation stating that she was capable of returning to her position and participating in firearms training. (Id.) On January 5, 1995, plaintiff filed her third EEO complaint, asserting that she was retaliated against because she was placed on enforced leave without pay at an earlier date than scheduled. (Def.'s Br. Ex. 79.) Plaintiff asserts that the proposal for enforced leave without pay was to be acted on thirty days after receipt of such proposal. (Id.) Plaintiff claims that she received the proposal on December 31, 1994, yet the proposal was instituted on November 26, 1994, only five days after Warden Lansing made this decision on November 21, 1994. (Id.) On December 8, 1994, plaintiff had received notice that she was accepted into Workers Comp. (Id.) Plaintiff claims that she would not have had to move her family nor lose her step increase if the Institution had waited the thirty days to enforce the leave without pay. (Id.) Plaintiff requested a transfer and compensation for "having to uproot [her] family by being placed on enforced leave without pay." (Id.)
Plaintiff subsequently relocated to Oklahoma. (Def.'s Br. Ex. 65.) In November 1995, plaintiff was ready to submit to a fitness for duty physical and submitted medical documentation that she was fit for duty. (Id.) Plaintiff was ordered to return to duty at Fort Dix, effective March 16, 1996, but did not do so. (Id.)
The Department of Justice (DOJ) issued its final decision removing plaintiff from the position as Legal Instrument Clerk, effective May 15, 1996. (Id.) On May 31, 1996, plaintiff filed a timely appeal with the Merit Systems Protection Board (Board), and a hearing was held on August 9, 1996. (Id. at 1.) The Board affirmed the DOJ's decision on October 4, 1996, to become final on November 8, 1996. (Id. at 1, 11.) In its initial decision, the Board sustained the charges that plaintiff was physically or medically unable to perform the duties of her position; that plaintiff failed to report for duty on March 18, 1996, as instructed; that plaintiff's failure to report resulted in plaintiff being placed on away without leave (AWOL) status. (Id. at 2-5.) In addition, the Board determined that the agency did not discriminate against plaintiff on the basis of a disability; the agency did not retaliate against plaintiff for filing EEO complaints; and removal was a reasonable penalty. (Id. at 6-11.) Plaintiff filed a petition for review of the Board's initial decision, but the Board denied plaintiff's petition for review because "it [did] not meet the criteria for review set forth at 5 C.F.R. § 1201.115." (Def.'s Br. Ex. 66.) On October 15, 1996, plaintiff filed the instant action in this Court.
Co-plaintiff Wanda Moorehead-Lucas also brought claims in this case pursuant to Title VII of the Civil Rights Act of 1964. The Court incorporates herein the factual background discussed in its Opinion dated July 27, 2000. In the Opinion and Order of the same date, this Court granted defendant's motion for summary judgment, dismissing all of co-plaintiff Moorehead-Lucas's claims.
Presently before the Court is defendant's motion for summary judgment and co-plaintiff's motion for separation of claims. For the reasons discussed herein, defendant's motion for summary judgment will be granted and plaintiff Bolden's claims will be dismissed. In addition, plaintiff Moorehead-Lucas's motion for separation of claims will be granted.
DISCUSSION
A. Standard of Review for Motion for Summary Judgment
A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rules of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party.See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248).
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989),cert. denied, 493 U.S. 1023 (1990). The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Anderson, 477 U.S. at 249-50.
B. Analysis
Plaintiff alleges in her complaint that she suffered racial discrimination due to the following actions taken against her: harassment by managers that created a hostile work environment, unwarranted suspensions, placement on home duty status, involuntary leave of absence without pay, denial of a hardship transfer, and disparate work assignment. (Pl.'s Compl. ¶ 9.)
The following analysis discusses (1) defendant's claim that plaintiff failed to exhaust administrative remedies as to the denial of hardship transfer and disparate work assignment; and (2) whether plaintiff satisfies her burden of proof under Title VII as to plaintiff's assignment of home duty status, placement on enforced leave without pay, plaintiff's suspensions, denial of hardship transfer, disparate work assignment, and hostile work environment.
1. Exhaustion of Administrative Remedies
It is well-established that a potential federal court plaintiff must exhaust all administrative remedies while moving through the EEOC administrative process before she can file a Title VII civil suit. See Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d Cir. 1995); Schanzer v. Rutgers Univ., 934 F. Supp. 669, 673 (D.N.J. 1996) (citing Brown v. Gen. Services Admin., 425 U.S. 820, 832 (1975)). The Third Circuit has remarked that the exhaustion of administrative remedies serves as a gatekeeping function, allowing one to "give notice to the charged party and provide an avenue for voluntary compliance without resort to litigation." Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977); see also Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976), cert. denied, 429 U.S. 1041 (1977) (espousing the belief that discrimination can be corrected "through administrative conciliation and persuasion"). In addition, the Third Circuit has noted that the purposes of the administrative exhaustion requirement are to "promote administrative efficiency, `respect executive autonomy by allowing an agency the opportunity to correct its own errors,' provide courts with the benefit of an agency's expertise, and serve judicial economy by having the administrative agency compile the factual record." Robinson, 107 F.3d at 1020 (quoting Heywood v. Cruzan Motors, Inc., 792 F.2d 367, 370 (3d Cir. 1986)).
Because plaintiff is a federal employee, the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, and the Civil Service Reform Act of 1978, 5 U.S.C. § 7121, govern this action.
The employee, in order to challenge the alleged discriminatory employment action, must consult an EEO counselor within forty-five (45) days of the date of the alleged discriminatory event. 29 C.F.R. § 1614.105(a)(1) (2001). The EEO counselor must then resolve the matter informally or notify the employee of her right to file an administrative complaint. 29 C.F.R. § 1614.105(d). The employee then has fifteen (15) days after notification to file the complaint. 29 C.F.R. § 1614.106(b). After investigation, if the agency does not issue a final agency decision within 180 days after the employee has filed her formal EEO complaint, the employee may file a civil action in federal district court. 29 C.F.R. § 1614.310.
a. Denial of Hardship Transfer
In its motion for summary judgment, the government claims that plaintiff did not exhaust her administrative remedies regarding her claims for denial of hardship transfer. Defendant claims that plaintiff cannot pursue a claim for denial of hardship transfer because she did not complain of any such claim in her written EEO complaints.
The "`parameters of a civil action in the District Court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before the Commission.'" Anjelino v. New York Times Co., 200 F.3d 73, 94 (3d Cir. 2000) (quotingOstapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-400 (3d Cir. 1976), cert. denied, 429 U.S. 1041, reh'g denied, 430 U.S. 911 (1977)) (allowing claims raised after initial EEO complaint but before suit was instituted to be brought in civil action); Howze v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984); Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir. 1978). Cf. Sandom v. Travelers Mortgage Services, Inc., 752 F. Supp. 1240, 1247 (D.N.J. 1990) (dismissing a sexual harassment claim that was found sufficiently distinct from previous sexual discrimination claims filed with the EEOC); see also Miller v. Int'l Tel. Tel. Corp., 755 F.2d 20, 25-26 (2d Cir.), cert. denied, 474 U.S. 851 (1985) (claim of failure to re-hire sufficiently distinct from discrimination discharge in EEOC complaint). In Hicks, plaintiff filed an EEO complaint alleging race discrimination in rather broad terms. Although no EEO investigation ensued, plaintiff later filed a civil action in federal court, asserting claims of sexual discrimination in addition to race discrimination. The Third Circuit reversed the district court's granting of summary judgment because there were several genuine issues of material fact regarding whether the EEOC refused to amend the complaint to include the sexual harassment claim and whether a reasonable investigation of the race discrimination charge would have encompassed the sexual discrimination claims, thereby giving notice to defendants of the charges. The court reasoned that the record contained sufficient evidence to raise a fair inference that the employee would have told the EEOC investigator that he believed sex discrimination was a cause of the disparate treatment alleged in his charge, if a reasonable investigation had in fact been conducted.
Unlike Hicks, an EEO investigation was conducted in this case. However, while plaintiff had not specifically complained of the denial of hardship transfer in her previous EEO complaints, she had requested corrective action in the form of a transfer from FCI Fort Dix to another institution in all three written EEO complaints filed, twice indicating a location in Texas or Oklahoma. See Def.'s Br. Exs. 68, 78, 79. In addition, and most importantly, plaintiff requested from her employer a transfer to an institution in either Texas or Oklahoma, if reassignment were not possible, in a memorandum to Warden Doug Lansing on November 2, 1993. Def.'s Br. Ex. 5. In a handwritten response to plaintiff's informal requests dated November 11, 1993, Lansing advised plaintiff that she would have a new immediate supervisor and stated that he "firmly believe[s] this will resolve [plaintiff's] issues." Def.'s Br. Ex. 6. In addition, plaintiff raised the issue of her request for transfer in a Merit Systems Protection Board (MSPB) appeal of her discharge, filed on May 31, 1996, claiming that "her failure to obtain a transfer was in reprisal for the filing of EEO complaints." Def.'s Br. at 52 n. 16; Def.'s Br. Ex. 65. Here, defendant was given notice from plaintiff's three EEO complaints that plaintiff claimed racial discrimination and adverse employment actions taken against her in retaliation for filing her first EEO complaint. In addition, plaintiff raised her request for transfer in connection with the appeal to the MSPB of the discharge by defendant. This Court finds that plaintiff's claim for denial of hardship transfer is reasonably within the scope of plaintiff's charges of racial discrimination, and that the claims of racial discrimination and retaliation could reasonably encompass the denial of plaintiff's request for hardship transfer. Accordingly, defendant's argument that plaintiff failed to exhaust her administrative remedies as to the "request for hardship transfer" fails.
b. Disparate Work Assignment
Defendant also asserts that plaintiff did not exhaust the mandatory administrative procedures as to any claim for "disparate work assignment" because she did not contact an EEO counselor within the 45-day period required under 29 C.F.R. § 1614.105(a)(1). 29 C.F.R. § 1614.105(a)(1) states that "[a]n aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of action." In the present case, defendant switched plaintiff from auditing computations to the project of putting together manuals, supervising inmate orderlies, and straightening out the dead file/forms room on December 3, 1993. (Def.'s Br. Ex. 8.) Plaintiff's EEO complaints were filed on November 19, 1993, October 24, 1994, and January 5, 1995. Plaintiff asserted in her second and third complaint that she was retaliated against for filing the first EEO complaint. As the Third Circuit has held previously, the "`parameters of a civil action in the District Court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before the Commission.'" Anjelino v. New York Times Co., 200 F.3d 73, 94 (3d Cir. 2000) (quotingOstapowicz, 541 F.2d at 398-99). Assuming that the allegedly adverse employment actions of assigning plaintiff to organizing manuals and supervising orderlies grew out of plaintiff's initial charges of discrimination, see, e.g., Anjelino, 200 F.3d at 94-95 (abusive environment encompasses sexual harassment claim), the parameters of plaintiff's cause of action includes the allegations of acts that occurred subsequent to plaintiff's first EEO complaint in November 1993. Furthermore, the purpose of the administrative procedures was achieved, as defendant was given sufficient notice of plaintiff's grievances regarding her "disparate work assignment" claim. Accordingly, defendant's argument that plaintiff has not exhausted her administrative procedures fails.
Although it is assumed for the sake of completion that this change in assignment is an adverse employment action, this Court notes that such as assignment presumably does not rise to the level of "depriv[ing] [plaintiff] of employment opportunities or "adverse[ly] affect[ing] [plaintiff's] status as an employee."Robinson, 120 F.3d at 1300.
2. Title VII Retaliation Claims
In order to prevail under Title VII, plaintiff must demonstrate that she was the subject of purposeful discrimination. Weldon v. Kraft, Inc., 896 F.2d 793, 796 (3d Cir. 1990) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)). Plaintiff must present evidence that some adverse employment action resulted from intentional discrimination due to race, gender, national origin, religion, or retaliation for prior engagement in protected activity. Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 914 (3d Cir. 1983). To establish a prima facie case of discrimination, plaintiff must prove by a preponderance of the evidence that (1) she is a member of a protected group; (2) she is qualified for the position; (3) she was subjected to a material adverse employment action; and (4) others who were similarly situated but not in the protected group received better treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1983); Teamsters v. United States, 431 U.S. 324, 358 (1977). To establish a prima facie case of retaliation, the plaintiff must prove by a preponderance of the evidence that (1) the employee engaged in a protected employment action; (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activity; and (3) a causal link exists between the employee's protected activity and the employer's adverse action. Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001); Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000); see also Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (describing the third requirement as a "causal connection"). The burden then shifts to the employer to rebut the presumption of discrimination by articulating, through the introduction of admissible evidence, legitimate, non-discriminatory reasons for the unfavorable employment action. McDonnell Douglas, 411 U.S. at 802; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981);see also Delli Santi v. CNA Ins. Co., 88 F.3d 192, 199 (3d Cir. 1996) (noting that the McDonnell Douglas burden-shifting dichotomy applies to retaliation claims). If defendant offers a legitimate reason, plaintiff then has the burden to prove by a preponderance of the evidence that the reasons given by the employer were a pretext, a fiction used to obscure actual discrimination. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). To defeat summary judgment when defendant has offered a legitimate non-discriminatory reason for its actions, plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not the motivating cause of the employer's action. Id. at 764; see also Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992) (quoting Burdine, 450 U.S. at 257).
In order to discredit the employer's proffered reason, the plaintiff cannot merely show the employer's decision was wrong or mistaken, since the factual dispute is whether the employer was motivated by racial animus, but rather, "plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence,' Ezold, 983 F.2d at 531, and hence infer `that the employer did not act for [the asserted] non-discriminatory reason.'" Fuentes, 983 F.2d at 765 (quoting Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993) (emphasis in original)).
Applying these principles to the matter at hand, plaintiff complains of "discriminatory practices . . . includ[ing] . . . harassment by [managers] creating a hostile work environment, unwarranted suspensions, involuntary leave of absence without pay, placement on home duty status, [denial] of a hardship transfer and disparate work assignment. (Compl. ¶ 9.) Plaintiff alleges that defendant has discriminated against plaintiff, by the actions described above, on the basis of her race and in reprisal for previous EEO complaints that plaintiff filed in violation of Title VII. (Compl. ¶ 11.)
a. Placement on Home Duty Status and Enforced Leave Without Pay
Defendant argues that plaintiff cannot sustain the burden of proving that her placement on home duty status and enforced leave without pay were the result of discriminatory retaliation. In her second EEO complaint, filed on or about October 24, 1994, plaintiff alleges that her home duty placement was in retaliation for having filed her initial EEO complaint, filed on or about November 19, 1993. (Def.'s Br. Ex. 78.) In addition, in her third EEO complaint, filed on or about January 9, 1995, plaintiff alleges that her enforced leave without pay was the result of retaliation.
As to whether plaintiff has presented a prima facie case, plaintiff is a member of a protected group because she is African American. She has also engaged in protected activity by filing a previous EEO complaint. See Robinson, 120 F.3d at 1300 ("It is undisputed that [plaintiff's] EEOC complaint constitutes protected activity under Title VII."). Plaintiff's placement on home duty status after filing her EEO complaint is considered retaliatory conduct only "if it `alters the employee's compensation, terms, conditions, or privileges of employment,' deprives him or her of `employment opportunities,' or `adversely affects his or her status as an employee.'" Robinson, 120 F.3d at 1300 (citations omitted). Because placement on home duty status alters plaintiff's terms and conditions of employment by removing her from the usual workplace environment, plaintiff was subject to a materially adverse employment action.
According to Warden Doug Lansing's letter to plaintiff informing her of her placement on home duty status, dated May 17, 1994, this was "not a disciplinary or adverse action." The Court chooses to assume that home duty placement is an adverse employment action, noting that to do otherwise would preclude continued analysis on this issue.
However, plaintiff fails to demonstrate that a causal link exists between plaintiff's filing of her EEO complaint and subsequent placement on home duty status. Plaintiff filed her initial EEO complaint on November 19, 1993. Plaintiff was placed on home duty status on May 17, 1994, with her duty hours to remain Monday through Friday, 7:30 A.M. to 4:00 P.M. with lunch from 11:30 A.M. to 12:00 P.M. (Def.'s Br. Ex. 30.) Plaintiff was to remain in her home to work on any assignment given to her, unless requested to report to work. (Id.) Plaintiff did, however, receive full pay and benefits while on home duty status. (Id.)
There is nothing in the record to indicate that her placement on home duty status was an action taken against plaintiff in response to her EEO complaint, which had been filed approximately six (6) months earlier. Cf. Robinson v. Southeastern Penn. Transp. Auth., 982 F.2d 892, 895 (3d Cir. 1993) ("The temporal proximity noted in other cases is missing here and we might be hard pressed to uphold the trial judge's finding were it not for the intervening pattern of antagonism that [defendant] demonstrated."). Further, plaintiff fails to articulate any pattern or series of pervasive and regular incidents of antagonism deriving from her protected action.
Even assuming that plaintiff had established a prima facie case of retaliation, defendant has articulated non-discriminatory legitimate reasons for placing plaintiff on home duty. The facts indicate that plaintiff was placed on home duty status initially because of work-related issues and her disruption in the Inmate Systems Department. In addition, plaintiff was under a substantial amount of personal stress, which prevented her from participating in the firearms training, a requirement for a Bureau of Prisons employee. Because plaintiff's stress prevented her from carrying out the requirements of her position, plaintiff was placed on home duty status a second time, until a fitness for duty physical could be performed to assess her ability to perform her job. Plaintiff stated herself that she did not feel competent to take firearms training at that time. (Def.'s Br. Ex. 86, at 69.) Warden Lansing then placed plaintiff on enforced leave without pay status for 52 weeks because of her inability to perform the duties of her position, effective November 26, 1994.
Further, in order to prove that defendant's reasons are pretextual, plaintiff must point to some evidence, either direct or circumstantial, from which a factfinder could reasonably either disbelieve the employer's articulated reason, or believe that an invidious discriminatory reason was more likely than not a motivating cause of the employer's action. Fuentes, 32 F.3d at 764. Plaintiff does not dispute that her disruption at work was a valid reason for placement on home duty. However, plaintiff asserts that other employees had temporary reprieves from firearms training, and that the only employees who utilized guns were the tower guards. (Pl.'s Br. at 4.) Plaintiff provides the EEO affidavit of an employee, Clare O'Malley-Northcutt, who had been given a waiver from firearms training because she had gone on maternity leave and "could not come in and fire" when she was on medical leave. (Pl.'s Br. Ex. D.) According to the affidavit, as soon as Northcutt came back to work, she took the firearms test and passed it. (See id.) In addition, plaintiff provides the EEO affidavit of Felicia Lamar, who states that she was given a waiver from the required firearms training until her pregnancy was over. (See id. Ex. E.) Notwithstanding the maternity waivers of discrete time periods, plaintiff fails to show that others suffering a medical condition similar to hers or of indefinite duration were granted an open-ended exemption from the firearms requirement. Indeed, Northcutt's waiver from firearms training did not encompass a period when she was in active employment status, while Lamar's training was deferred only for the fixed time until her pregnancy was complete. On the other hand, there was no medical expectation that plaintiff's stress condition would be of only some short, finite duration. Absent evidence that would demonstrate that the defendant was motivated by racial animus rather than valid concerns about plaintiff's work performance and emotional status, this Court cannot find that defendant was motivated by invidious discrimination. Accordingly, this Court cannot offer relief to plaintiff on her placement on home duty or enforced leave without pay status claims.
b. Plaintiff's Suspensions
Plaintiff alleges that she was subjected to "unwarranted suspensions" in retaliation for having filed her first EEO complaint on or about November 19, 1993. In her second EEO complaint, filed on October 24, 1994, plaintiff alleged that both of her suspensions, one imposed on July 18, 1994 and the other imposed on or around October 10, 1994, were given in retaliation for filing her first EEO complaint.
The first suspension dealt with plaintiff's refusal on May 13, 1994, to bring certain paperwork to her supervisor Mr. Meyer's office for his signature, with plaintiff saying that she did not trust Mr. Meyer. On June 24, 1994, plaintiff received Mr. Meyer's letter proposing the suspension, which specified the incident and date, May 13, 1994, on which it occurred. The letter stated that Warden Lansing would be issuing a final decision regarding the suspension, but that plaintiff could reply to the Warden orally or in writing. On July 7, 1994, the Warden issued his decision imposing a three-day suspension, noting that plaintiff failed to submit a response for consideration. (Def.'s Br. Ex. 37.) Warden Lansing stated, "After careful consideration, I find the charge fully supported by the evidence in the disciplinary action file." (Def.'s Br. Ex. 37.)
Plaintiff's second suspension was imposed on October 5, 1994, by letter from Warden Doug Lansing. Warden Lansing had ordered plaintiff to provide a home telephone number to Human Resources on July 7, 1994 and to reschedule an appointment to clear inspection of her Base Housing within five (5) days of receipt of the Warden's letter, dated July 5, 1994. Warden Lansing found that plaintiff had complied with only one of two orders, that of providing a home telephone number, and that she had not complied with the ordered deadline to clear inspection until twenty (20) days after the ordered deadline had passed.
The Army had issued a written notice of eviction to plaintiff in May 1994, stating her assignment to Base Housing was being terminated, a decision precipitated by an incident on March 19, 1994, in which Military Police had responded to a domestic disturbance there and issued a criminal citation to plaintiff's husband. (Def.'s Br. Ex. 17.) Plaintiff had been ordered to clear inspection of Base Housing on June 20, 1994. Warden Lansing, by letter dated July 5, 1994, gave plaintiff a direct order to reschedule an appointment within five (5) days of receipt of that letter. (Def.'s Br. Exs. 38, 39.)
Warden Lansing had originally proposed a ten-day suspension for refusing the above two orders in a letter to plaintiff on August 8, 1994, and later, a five-day suspension. Plaintiff then requested to give an oral response in a meeting with Warden Lansing, which he granted. After the meeting, which was conducted on September 8, 1994, and additional correspondence, Warden Lansing imposed a three-day suspension, finding that plaintiff had complied with the order regarding the telephone number, but had not complied with the order about contacting Base Housing. (Def.'s Br. Exs. 38-49.)
The Court agrees with defendant that the above actions constitute legitimate non-discriminatory reasons for instituting the adverse employment actions. The Warden considered plaintiff's additional submissions, heard her oral response in the meeting she requested, and reduced the length of suspension from ten days to five, and then to three. There is nothing in the record to indicate that the suspension was in retaliation for plaintiff's filing of her initial EEO complaint, which occurred approximately eleven (11) months earlier. Even assuming that plaintiff has satisfied her prima facie case, defendant has articulated legitimate non-discriminatory reasons for the adverse employment action of plaintiff's suspension, and plaintiff has presented no evidence that points to an invidious discriminatory motivation on defendant's part in imposing the suspension. There is simply no evidence that defendant's reasons are pretextual. Accordingly, this Court will grant defendant's motion for summary judgment as to this claim.
c. Denial of Hardship Transfer
Plaintiff is also unable to demonstrate that the denial of hardship transfer was motivated by racial animus. Although not specifically alleged in her EEO complaints, see discussionsupra Part B.1.a, plaintiff requested a hardship transfer from Warden Lansing because of problems with her supervisor Mr. Watson and, in her EEO complaints, requested transfers to be instituted as corrective actions. Warden Lansing instead assigned Mr. Watson to another department and assigned Mr. John Meyer to be her supervisor. Warden Lansing provided a legitimate non-discriminatory reason for denial of the transfer, indicating that he "firmly believe[d] this will resolve [plaintiff's] issues." Def.'s Br. Ex. 6. Plaintiff in her submissions has been unable to show that the denial of the transfer was due to retaliation for filing her EEO complaints, or that racial animus or any impermissible racial discriminatory intent was the motivating factor. Accordingly, the Court is unable to offer relief to plaintiff on this claim.
The Court notes that plaintiff's claim may have been more appropriately directed at the DOJ, who effectively denied plaintiff's request in its final decision concluding that "[t]he record does not support a finding that complainant was discriminated against on the basis of her race." See Pl. Br. Ex. A. In any event, the result is the same.
3. Title VII Discrimination Claims
Plaintiff's first EEO complaint, filed November 19, 1993, alleged several workplace claims of discrimination. On October 4, 1996, the Merit Systems Protection Board (MSPB) affirmed the Department of Justice's decision to remove plaintiff from her position of Legal Instrument Clerk, effective May 15, 1996. Plaintiff appealed the MSPB's decision and the MSPB denied plaintiff's petition for review on July 28, 1997, thereby rendering final the initial MSPB decision of October 4, 1996. On January 26, 1998, the Department of Justice issued a final decision, finding that the record does not support a finding that plaintiff was discriminated against on the basis of her race. (Pl.'s Br. Ex. A.)
a. Hostile Work Environment Claims
In order to establish a claim for employment discrimination due to hostile work environment, "plaintiff must establish, `by the totality of the circumstances, the existence of a hostile or abusive environment which is severe enough to affect the psychological stability of a minority employee.'" Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996) (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (quoting Vance v. Southern Bell Tel. Tel. Co., 863 F.2d 1503, 1510 (11th Cir. 1989)). Specifically, plaintiff must show that (1) she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability. West v. Philadelphia Electric Co., 45 F.3d 744, 753 (3d Cir. 1995) (citing Andrews, 895 F.2d at 1482). To determine whether alleged conduct is sufficiently serious to support a claim for hostile work environment, courts should consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In doing so, courts should "filter out simple teasing, offhand comments, and isolated incidents."Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Plaintiff alleges that her supervisor Mr. Watson: criticized her work product in angry and sarcastic tones in front of others; placed negative comments in her interim performance log, which were subsequently removed; stopped speaking to her and induced others to do the same; often gave curt answers to her questions; refused to provide guidance to her; and denied her request for overtime in late October 1993.
Plaintiff fails to establish a prima facie case because she is unable to offer admissible evidence that would demonstrate intentional discrimination that was pervasive and regular. See, e.g., Aman, 85 F.3d at 1082 (continuous racial remarks and insults directed toward black employees). But see id. ("All that is required is a showing that race is a substantial factor in the harassment, and that if plaintiff had been white she would not have been treated in the same manner). Fed.R.Civ.P. 56(e) requires that affidavits opposing a summary judgment motion "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
Plaintiff has provided EEO investigative affidavits of co-workers who state their general opinions of plaintiff's working environment, but which do not refer to specific incidents that would support plaintiff's burden of proving pervasive and regular instances of intentional discrimination. Senior Officer Specialist Rickey Sullivan stated, when asked how Mr. Meyer and Warden Lansing treated those who filed EEO complaints, "If you make an EEO complaint or any type of complaint against any of the staff here, you're put on the black list." (Pl.'s Br. Ex. F.) Another employee of FCI Fort Dix stated, in response to whether he had ever witnesses any of the alleged retaliation, "I don't work in [co-worker Wanda Lucas's] department, so no. As far as me sitting down there witnessing it, no. I've never been around. I work in a totally different area, a totally different department. The reason I hear about it is because of my position with the union." (Pl.'s Br. Ex. G.)
Plaintiff also offers the final decision of the Department of Justice (DOJ), issued on January 26, 1998, in which the DOJ concluded that "[t]he record does not support a finding that complainant was discriminated against on the basis of her race." (Pl.'s Br. Ex. A.) The DOJ decision, even if considered to be in the proper form under Fed.R.Civ.P. 56(e), while documenting plaintiff's incidents with her supervisors, does not advance plaintiff's assertions that she was intentionally discriminated against.
Plaintiff does provide a memorandum written by plaintiff's supervisor Mr. Meyer on December 3, 1993, regarding her allegedly disparate work assignment of organizing and putting together manuals and program statements, supervising the ISM inmate orderlies in cleaning up a room to be used as an office for Legal Instruments Examiners, putting extra manuals and program statements in files, and straightening up the dead file/forms room. (Pl.'s Br. Ex. B.) The memorandum outlined the reasons Mr. Meyer had taken plaintiff off the project of auditing computations: the project was taking her a long time to complete (she had only reached the "C's" after over two weeks of work); there was a good possibility that they would get help to audit the computations; and Katie Humphrey, Inmate Systems Manager, and Mr. Meyer had not been able to audit as many computations as they would have liked.
Plaintiff has alleged above that she was discriminated against by her supervisors Randy Watson, John Meyer, and Warden Doug Lansing. The evidence provided by plaintiff in opposition to defendant's summary judgment motion do not point to regular, pervasive, frequent, or severe discriminatory actions. Even if the above proffered evidence had complied with Fed.R.Civ.P. 56(e)'s requirements, it fails to demonstrate the intentional discrimination on the basis of race on the part of either Watson, Meyer, or Lansing.
In addition, defendant offers legitimate non-discriminatory reasons for the actions that plaintiff claims resulted in her hostile work environment. As to plaintiff's claim regarding Mr. Watson's entering of a negative work evaluation, Ms. Humphrey, plaintiff's immediate supervisor and also an African American, placed a negative comment regarding the work plaintiff left undone when she left for maternity leave, which Ms. Humphrey insisted remain in place. In view of this, the Court agrees with defendant that the fact that plaintiff is African American does not automatically mean that the negative action taken against her was motivated by racial animus.
The Court is persuaded by defendant that plaintiff has not demonstrated "severe and pervasive wrongful conduct" that is required to support a hostile work environment claim. Plaintiff alleges that Mr. Watson commented on the hairstyles of other African American employees; had told a joke about a black man after a black correctional officer had left their department; and had asked several employees in the department about their views on the Rodney King incident. The United States Supreme Court has stated that "`simple teasing,' offhand comments, isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher, 524 U.S. at 788 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)). In addition, the Supreme Court has noted that "`mere utterance of an . . . epithet which engenders offensive feelings in an employee' . . . does not sufficiently alter the conditions of employment to implicate Title VII" in a hostile work environment claim.Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Plaintiff's claims do not rise to the level of race-based animus that form the basis of actionable hostile work environment claims. Cf. West v. Phila. Elec. Co., 45 F.3d 744, 749-51 (3d Cir. 1995) (vacating district court's exclusion of evidence of KKK pictures, noose, and black doll in trial of hostile work environment claim). Under this framework, defendant's conduct lacks the severity of comments made in the form of racial epithets, and plaintiff has not claimed that the individuals involved ever made derogatory racial comments derived from race-based animus. In addition, defendant has provided, in the previous section, legitimate non-discriminatory reasons for the actions taken against plaintiff, to which plaintiff is unable to provide evidence that such reasons are pretextual. Thus, plaintiff has not shown the discriminatory intent required to prove a hostile work environment claim.
Accordingly, because plaintiff is unable to establish a prima facie hostile work environment claim, plaintiff's hostile work environment claim due to racial discrimination must be dismissed.
C. Separation of Co-Plaintiff Moorehead-Lucas's Claims
Lastly, plaintiff Wanda Moorehead-Lucas has moved pursuant to Rule 42(b), Fed.R.Civ.P., for severance of her claims from those of plaintiff Bolden, so that Moorehead-Lucas might be able to appeal from the Court's prior final order as to her claims. Such severance will not be necessary, because the present Opinion and Order adjudicates all remaining claims in the case. This Order thus becomes final and appealable by both plaintiffs at this time, pursuant to 28 U.S.C. § 1291. Accordingly, the motion of plaintiff Wanda Moorehead-Lucas to separate her claims from those of her co-plaintiff shall be dismissed as moot.
CONCLUSION
For the reasons discussed above, the Court enters summary judgment against all claims brought by plaintiff Valerie Bolden, and dismisses as moot plaintiff Wanda Moorehead-Lucas's motion for separation of all claims from plaintiff Bolden's claims. The accompanying Order is entered, constituting the Final Order adjudicating all remaining claims in this case.
FINAL ORDER
This matter having come before the Court on defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56(c) as to plaintiff Bolden's claims and plaintiff Wanda Moorehead-Lucas's motion for separation of all claims pursuant to Fed.R.Civ.P. 42(b); and the Court having considered the submissions; and good cause having been shown; and for reasons stated in the Opinion of today's date;
IT IS on this 14th day of December, 2001, hereby
ORDERED that defendant's motion for summary judgment as to plaintiff Valerie Bolden is GRANTED, and plaintiff Valerie Bolden's claims are hereby DISMISSED ; and it is
FURTHER ORDERED that plaintiff Wanda Moorehead-Lucas's motion for separation of all claims from plaintiff Bolden's claims is hereby DISMISSED AS MOOT ; and
IT IS FURTHER ORDERED that this Order constitutes the Final Judgment dismissing all remaining claims herein.