Opinion
Case No. A4-02-109.
September 29, 2004
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF'S MOTION TO FILE A SUPPLEMENTAL COMPLAINT, AND SETTING TRIAL DATE
Before the Court is the Defendant's Motion for Summary Judgment filed on December 10, 2003. Also before the Court is the Plaintiff's Motion for Leave to File a Supplemental Complaint filed on August 10, 2004. For the reasons set forth below, the Defendant's motion is granted in part and the Plaintiff's motion is denied.
I. BACKGROUND
The plaintiff, Brian Chase ("Chase"), is a Senior Immigration Inspector with the Department of Homeland Security, Bureau of Custom and Border Protection, currently stationed on the border in Grand Portage, Minnesota. The defendant, John Ashcroft, is sued in his official capacity as Attorney General and head of the Department of Justice, which at the time included the Immigration and Naturalization Service. For clarity, the Defendant will be referred to as the "Department."
A. 1997 1998 SEATTLE NON-SELECTIONS
From August 1990 to May 1995, Chase was employed by the Department as an Immigration Inspector in Seattle, Washington. Between July 1992 and May 1995, Chase's immediate supervisor was Seattle Port Director Earle Morgan. Chase's second line supervisor was Assistant District Director David Lambert. The Seattle District Director was Richard Smith. In May of 1995, Chase accepted a promotion to Senior Immigration Inspector at the Portal Port of Entry in Portal, North Dakota.
On August 1, 1997, the Department issued vacancy announcement WROC-97-SEA-211, advertising a GS-11 Senior Immigration Inspector opening in the Seattle District at the Seattle-Tacoma International Airport ("SEA-TAC'). Chase applied for the position on August 13, 1997.
On October 31, 1997, Acting District Director Robert Coleman selected Lynn Habeger, a female, for the Senior Immigration Inspector position.
On December 4, 1997, Chase contacted an EEO Counselor and met with the counselor on December 19, 1997. Chase complained that he was discriminated against on the basis of gender because a female was selected for the Senior Immigration Inspector position in Seattle. Efforts for an informal resolution failed, and the EEO Counselor notified Chase of his right to file a complaint on February 20, 1998.
According to Barbara Prejean, an Administrative Officer at the Seattle District Office, the Seattle District Office became aware that a second Senior Immigration Inspector position was needed on or about February 24, 1998. The second position for a Senior Immigration Inspector was added under the same vacancy announcement as the position for which Chase had previously applied. A second selection was made from a list of applicants for the first position and an added applicant, David Canez. Acting District Director Robert Coleman selected David Canez, a male, for the Senior Immigration Inspector position on April 1, 1998.
Chase filed an EEO complaint (Number I-98-W017) on March 7, 1998, alleging both sex discrimination and reprisal. In August 1998, the Department's EEO Office appointed an EEO Investigator, who conducted an investigation between August 6, 1998 and September 28, 1998. The Investigator submitted a report on October 14, 1998. On October 22, 1998, the Acting Director of the Department's EEO Office provided Chase with a copy of the investigative record and informed Chase of his right to elect between a hearing before an EEO Administrative Judge and a final decision without a hearing. Chase failed to respond. On May 17, 1999, the Department's EEO Office forwarded the investigative record to the Complaint Adjudication Office for a final decision. A Final Agency Decision was issued on March 9, 2000. It concluded that there was no discrimination based upon gender in the non-selection of Chase in October 1997 and no retaliation for protected EEO activities in the non-selection of Chase in April 1998. Chase appealed the Final Agency Decision to the EEO Office of Federal Operations. The Final Agency Decision was affirmed by the EEOC on August 29, 2002.
B. JULY 1999 THREE-DAY SUSPENSION
From July 26, 1999, through July 28, 1999, Chase was suspended without pay for conduct unbecoming an officer. On June 9, 1998, Karin Stork, Chase's neighbor and fellow INS employee, submitted a written complaint to Portal Port Director Harold "Skip" Gjerde regarding an incident involving Chase and his retired drug dog, Rex. When Chase was transferred from Seattle to Portal, he was allowed to take Rex with him. During his employment at the Portal Port of Entry, Chase was living in a government housing unit. Chase lived across the street from Karin Stork, her husband Jeffrey, and four children.
The incident Stork complained of, and for which Chase was ultimately suspended, took place in early June 1998. On June 4, 1998, Chase and Stork were both in their respective driveways — Chase getting ready to leave his residence and Stork returning to hers. They exchanged greetings, and from this point, they give differing accounts of the events that took place. Stork claimed that Chase commanded Rex to "charge" her. Stork stated Chase gave Rex a command and Rex came running toward her. Stork stated Chase yelled for Rex to stop four times before Rex stopped. Chase denies ever commanding Rex to charge anyone. Chase stated on occasion he and the neighbor "played games" with Rex and sometimes Rex would run towards the neighbors. However, neither party disputes that Rex darted towards Stork and she was frightened by the event. Gjerde was Chase's second-line supervisor and Chester Pulver was Chase's immediate supervisor. Dean Hove was the Deputy District Director and Curtis J. Aljets was the District Director. After an investigation, the Department concluded that Chase had ordered Rex to charge Stork and recommended that Chase be suspended for three-days without pay. Chase's three-day suspension became final on June 21, 1999.
On August 4, 1999, Chase contacted an EEO counselor alleging that his three-day suspension was in retaliation for his prior EEO activity. Counseling was concluded on September 1, 1999. It is unclear when Chase filed his EEO complaint, but it appears a complaint was filed in mid-to-late September of 1999. The complaint was investigated and Chase requested a hearing before an EEOC Administrative Judge. A hearing was held on April 2, 2003. The Administrative Judge issued a decision on May 17, 2002, finding no evidence of retaliation. A Final Agency Decision was issued on July 15, 2002, adopting the findings of the Administrative Judge.
Chase's EEO complaint from September of 1999 is not included as part of the record before the Court. Several affidavits refer to a complaint as being filed on September 14, 1999, but the ALJ decision dated May 18, 2002, states the complaint was filed on September 20, 1999.
C. 2002 OMAHA NON-SELECTION
In October 2002, Chase learned he had not been selected for the position of Criminal Investigator, GC-12, for the Omaha (NF) District. Jeffrey Stork, Karin Stork's husband, was selected for the position.
D. 2003 SEATTLE NON-SELECTION
On August 2, 2004, Chase received an adverse decision from the Department in another EEO retaliation complaint. Chase claimed he was not selected for a Senior Immigration Inspector position with the Seattle District in 2003 because of his prior EEO activity and because of age discrimination.
E. PROCEDURAL HISTORY OF CURRENT CASE
Chase initiated the above-entitled action on October 10, 2002, asserting claims of sex discrimination and retaliation by the Department. The Department's Motion for Summary Judgment was filed on December 10, 2003. On August 10, 2004, Chase filed a Motion for Leave to File a Supplemental Complaint.
II. STANDARD OF REVIEW
It is well-established that summary judgment is appropriate when, viewed in a light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir. 1999). A fact is "material" if it might affect the outcome of the case and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996). The moving party has the initial burden of demonstrating to the Court that there are no genuine issues of material fact. If the moving party has met this burden, the non-moving party cannot simply rest on the mere denials or allegations in the pleadings. Instead, the non-moving party must set forth specific facts showing that there are genuine issues for trial. Fed.R.Civ.P. 56(e). A mere trace of evidence supporting the non-movant's position is insufficient. Instead, the facts must generate evidence from which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
III. LEGAL DISCUSSION A. EXHAUSTION OF ADMINISTRATIVE REMEDIES
An employee must satisfy certain time limitations when filing a claim under Title VII. Brown v. Gen. Serv. Admin., 425 U.S. 820, 833 (1976). An employee must initiate contact with an EEO counselor within forty-five days of the alleged discriminatory conduct. 29 C.F.R. § 1614.105(a)(1). The employee must then file a complaint "with the agency that allegedly discriminated against the complainant" within 15 days of receipt of the notice from the EEO counselor. 29 C.F.R. § 1614.106(a).
The Department argues that Chase failed to exhaust his administrative remedies for actions that occurred prior to 1997, and for the October 2, 2002, non-selection for a position in Omaha. In his response, Chase clarifies that he is not alleging any EEO activity prior to his complaint covering the 1997 and 1998 non-selections in Seattle. Accordingly, the Court finds that any activity that occurred prior to 1997 is not within the scope of Chase's complaint.
With respect to the 2002 Omaha non-selection, the record reveals that Chase did not contact an EEO counselor regarding this incident. The Government relies on National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002), to support its assertion that Chase has not properly exhausted his administrative remedies regarding the 2002 non-selection. InMorgan, the United States Supreme Court clarified that a plaintiff may litigate discrete employment actions that fall outside of the statutory time period for filing charges. InMorgan, the discrete acts the plaintiff complained of all took place prior to the filing of his EEO complaint. The Court held that "[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.'" Id. The Court concluded that all "prior discrete discriminatory acts are untimely filed and no longer actionable." Id. While this case is helpful in that it defines retaliatory actions as "discrete discriminatory acts," it does not assist the Court in determining whether a plaintiff has exhausted his administrative remedies when he files a complaint alleging additional actions of retaliation which occur after the filing of an EEO complaint alleging retaliation.
Chase acknowledges that employees must generally contact an EEO counselor within 45 days of the act believed to be discriminatory and file a formal complaint within 15 days after the close of the counseling. However, Chase contends that the 2002 non-selection is within the scope of his properly exhausted claim. Chase relies on the Eighth Circuit case of Nichols v. American National Insurance Co., 154 F.3d 875, 886 (8th Cir. 1998).
Under Nichols, "[T]he scope of the subsequent action is not necessarily limited to the specific allegations in the charge."Nichols, 154 F.3d 875, 886.
In determining whether an alleged discriminatory act falls within the scope of a Title VII claim, the administrative complaint must be construed liberally "in order not to frustrate the remedial purposes of Title VII," Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988), and the plaintiff may seek relief for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge."154 F.3d 875, 886-87. However, "[a]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge." Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 223 (8th Cir. 1994).
The Court has been unable to find Eighth Circuit precedent which addresses a similar factual scenario — where subsequent non-selections are claimed as additional retaliatory actions in a case in which the plaintiff's original complaint included a non-selection retaliation claim. Thus, the Court will rely on the sparse case law involving subsequent claims of retaliation to determine whether the 2002 non-selection grew out of, or is like or reasonably related to, the 1998 non-selection.
In Stuart v. General Motors Corp., 217 F.3d 621, 631 (8th Cir. 2000), the Eighth Circuit distinguished between two types of retaliation claims and denied a plaintiff's attempt to include a claim of "retaliation by discipline" in a case stemming from an EEOC complaint alleging "retaliation by termination." The Court reasoned:
Furthermore, the retaliation by discipline Stuart alleges is not like or reasonably related to the alleged retaliation by termination. This is so because the disciplinary actions Stuart now alleges were in retaliation for her complaints of sexual harassment concerned insubordination, being under the influence and tardiness. Stuart was terminated, on the other hand, for allegedly engaging in an indecent act on the job, an event factually distinct from and unrelated to the events that led to GMC's alleged retaliation by discipline. Stuart's allegation regarding the disciplinary actions are, thus, beyond the reach of her claim of retaliation by termination because such allegations were not specified or even alluded to in her EEOC charge.Stuart v. General Motors Corp., 217 F.3d 621, 631 (8th Cir. 2000). It appears clear that when the subsequent retaliation claim is based on a separate and distinct theory of discrimination, a plaintiff must first present that type of claim to the EEO. The Stuart case does not provide assistance as to whether another retaliation claim of the same type may be considered reasonably related to the prior claim.
A district court in Iowa provided a persuasive analysis in a similar case. In Weems v. Federated Mutual Insurance Co., 220 F. Supp. 2d 979 (N.D. Iowa 2002), the court held that the plaintiff's claims of further discrimination were within the scope of his original EEOC complaint and that he had therefore exhausted his administrative remedies.
Mr. Weems' administrative charge, construed liberally, is quite broad in its allegations. He included explicit charges of discrimination, harassment and retaliation. The supporting statements reference the allegedly racially discriminatory conduct he was subjected to by [the defendants] and his belief that the two were intent on firing him, in part to evade the investigation of Mr. Weems' allegation of discrimination. Those same actors were the key decision makers in Mr. Weems' subsequent termination. Thus, the allegations underlying the discriminatory discharge claims were neither significantly separate in time nor distinct in kind from those alleged in the administrative complaint.220 F. Supp.2d 979, 987 (citations omitted).
In Tackitt v. Leader Motors, Inc., No. 4:94CV01174 GFG, 1996 WL 414060 (E.D. Mo. May 21, 1996), another district court allowed a subsequent claim of retaliation to proceed.
In this case, plaintiff's amended charge of discrimination, filed with the EEOC on October 4, 1993, clearly encompasses plaintiff's retaliatory discharge claim arising out of the May 5, 1995 termination. The new claim is reasonably related to allegations in the amended charge. The 1993 termination allegedly was in retaliation for plaintiff's opposition to defendant's discriminatory practices, including defendant's alleged unwillingness to pay plaintiff as much as similarly situated male employees. The 1995 termination was also allegedly in retaliation for the same discrimination based on plaintiff's sex. The allegation of retaliation in plaintiff's Amended Complaint are of a continuing nature such that they are reasonably related to the acts charged in plaintiff's amended administrative complaint. Indeed, even the defendant's proffered rationales for the terminations are similar.Tackitt v. Leader Motors, Inc., No. 4:94CV01174 GFG, 1996 WL 414060, *3 (E.D. Mo. May 21, 1996).
After reviewing the above cases, it appears that some of the factors to be considered in determining whether a subsequent retaliatory action is "reasonably related" or "grows out of" an initial EEO complaint include: (1) whether the alleged retaliatory action is of the same type as the prior action, (2) whether the same key decision makers were involved in the subsequent alleged retaliatory action, and (3) whether the allegations underlying the subsequent retaliatory claim were significantly separate in time from those alleged in the administrative complaint.
On March 7, 1998, Chase filed a complaint (Number I-98-W017) with the EEO. In his complaint, Chase circled "Sex" and "Male" and underlined "Reprisal" as to why he believed he was discriminated against. On May 19, 1998, the EEO accepted his complaint and identified the following issue for resolution:
On November 5, 1997, you were not selected for Immigration Inspector (Senior), GS-1816-11, at the SEA-TAC International Airport in Seattle, Washington, under vacancy announcement number WROC-97-SEA-211, dated August 1, 1997.
When the Department issued its final decision it addressed both the October 1997 selection of Lynn Habeger and the Feburary 1998 selection of David Canez.
In his amended complaint filed on October 15, 2002, Chase alleged he was again retaliated against when he was not selected for the position of Criminal Investigator for the Omaha (NF) District. Chase alleged this non-selection was "in retaliation for his previous EEO activity and/or was a demonstration of the damage caused him by the improper imposition of the three-day suspension, which grew out of his earlier EEO activity."
Chase has provided the Court with little information about the 2002 non-selection aside from the allegations in his complaint. The 2002 non-selection appears to be the same type of retaliatory action that Chase complained of in his 1998 EEO complaint. Just as before, Chase contends that he was not chosen for the Omaha position because of his prior EEO activity. However, that is where the similarity ends. Chase has not asserted that the same key decision makers were involved in the 2002 non-selection in Omaha. In fact, it seems obvious given the hiring structure of the agency, that the supervisor(s) who made the selection decisions in Seattle in 1997 and 1998 were not the same people making the selection decision in Omaha in 2002. In addition, the non-selection in Omaha took place over three years after the non-selection in Seattle.
The Court finds that the 2002 non-selection in Omaha was significantly separate in time from the Seattle non-selections. After carefully reviewing the entire record in this case, the Court finds that Chase's allegations of retaliation in the 2002 non-selection process are not "reasonably related" and did not "grow out of" his initial EEO complaint back in 1997 and 1998. Thus, Chase has failed to exhaust his administrative remedies regarding the 2002 non-selection.
B. MOTION FOR LEAVE TO FILE SUPPLEMENTAL PLEADING
On August 10, 2004, Chase filed a Motion for Leave to File Supplemental Pleading seeking to add another claim of retaliation stemming from a 2003 non-selection in Seattle. Chase asserts the 2003 non-selection in Seattle was yet another instance of retaliation because of his prior EEO activity. Chase also asserts the 2003 non-selection was because of his age. The Government resists and asserts that it had no prior notice of the 2003 non-selection, that no discovery has been undertaken by either party on this claim, and that the deadline for amending the pleadings has long since passed.
As both parties well know, this case has lingered on the Court's docket for nearly two years. The present motion for summary judgment is over nine-months old. Trial in the matter was set to commence in November. The record reveals that Chase has sought out the appropriate administrative remedies and is not barred from seeking judicial remedies for the alleged retaliation regarding the 2003 non-selection in a separate case. The Court notes that the claim Chase wishes to add is also based on a separate theory of discrimination, namely age discrimination. While the Court appreciates Chase's attempt to preserve judicial resources, the Court denies Chase's Motion for Leave to Amend Complaint.
C. SUMMARY OF REMAINING CLAIMS
In light of the Court's rulings as set forth above, Chase has three remaining claims. First, a sex discrimination claim regarding the 1997 non-selection in Seattle. Second, a retaliation claim regarding the 1998 non-selection in Seattle. Third, a retaliation claim regarding the July 1999 three-day suspension. The Court will address each claim.
1) SEX DISCRIMINATION CLAIM
In order to establish a prima facie case of sex discrimination, a plaintiff must show that he "(1) is member of a protected class; (2) was qualified to perform [his] job; (3) suffered an adverse employment action; and (4) was treated differently than similarly-situated persons of the opposite sex." Schoffstall v. Henderson, 223 F.3d 818, 825 (8th Cir. 2000).
If the plaintiff establishes a prima facie case of intentional gender discrimination, the burden then shifts to the defendant to articulate some legitimate non-discriminatory reason for the selection decision. Ottman v. City of Independence, Missouri, 341 F.3d 751, 757 (8th Cir. 2003).
This presumption places an obligation upon the employer to produce evidence of a legitimate, nondiscriminatory reason for the [employment decision]. If the employer carries this burden, the legal presumption of unlawful discrimination — drops out of the picture."Stuart v. General Motors Corp., 217 F.3d 621, 634 (8th Cir. 2000).
If the defendant satisfies this burden, then the plaintiff must show that the proffered reason is a pretext for intentional discrimination. Id.
[A plaintiff] may still prevail if [he] can proffer evidence of pretext and disbelief of the defendant's explanation. Merely disputing [the defendant's] reason is insufficient, however. [A plaintiff] "must show `both that the reason was false, and that discrimination was the real reason.'"Stuart v. General Motors Corp., 217 F.3d 621, 634 (8th Cir. 2000). "An employee's attempt to prove pretext or actual discrimination requires more substantial evidence than it takes to make a prima facie case, however, because unlike evidence establishing the prima facie case, evidence of pretext and discrimination is viewed in light of the employer's justification." Smith v. Allen Health Systems, Inc., 312 F.3d 827, 834 (8th Cir. 2002). To overcome the proffered reasons and avoid summary judgment, a plaintiff must present evidence that (1) creates a question of material fact as to whether the defendant's proffered reasons are pretextual and (2) creates a reasonable inference that gender was a determinative factor in the adverse employment decision. Fisher v. Pharmacia Upjohn, 225 F.3d 915, 921 (8th Cir. 2000). "The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." Ottman v. City of Independence, Missouri, 341 F.3d 751, 757 (8th Cir. 2003) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)).
Neither party disputes that Chase has set forth a prima facie case of sex discrimination. Rather, the Department proffers two legitimate reasons for not selecting Chase in September of 1997. First, the Department asserts the 1997 Seattle selection was made on merit alone, and second, the Department contends that Chase was a "problem employee." The Department lists numerous criticisms that Chase's first line supervisor, Earle Morgan, had of Chase, including: (1) Chase's "weak" knowledge of immigration law, (2) Chase's "problems" interacting with management and co-workers, (3) Chase's "poor working background with women," (4) Chase's tardiness, and (5) Chase's actions which prompted the Department to seek a "fitness for duty" evaluation of him. The Court finds the reasons proffered by the Department are legitimate, non-discriminatory reasons for its employment decision and are sufficient at this stage to rebut the presumption of discrimination.
In its brief, the Department sets forth a heading asserting that Chase has not established a prima facie case of discrimination, but in the subsequent discussion, aside from a recitation of the elements of a sex discrimination claim, the Department focuses exclusively on the retaliation claims.
The burden then shifts to Chase to show that the proffered reasons are a pretext for intentional discrimination. Chase relies primarily on EEO Counselor Daniel P. Mehlhoff's report recounting his interview with Acting District Director Robert Coleman to show that Coleman's decision was based on gender and not solely on merit. The report states:
1/14/98: Interviewed Deputy District Director R.S. (Bob) Coleman Jr. in Seattle, Washington. Mr. Coleman was the Selecting Officer for vacancy announcement WROC-97-SEA-211, a Senior Immigration Inspector at the Sea-Tac Airport in Seattle, Washington.
Mr. Coleman stated that he reviewed all candidates (sic) qualifications that were attached to the G-603's when he received the selection package. Mr. Coleman asked me if I inquired to (sic) how many females were presently employed at the Sea-Tac Airport. I stated no.
Mr. Coleman stated that he hired Lynn Habeger to create a more diverse work force in support of the EEO program, and also on the recommendation from Earle Morgan, Sea-Tac Area Port Director. Mr. Coleman stated that he does understands (sic) Mr. Chase's frustrations for not being selected. Mr. Coleman stated that he has no knowledge of the other allegations and that those issues should be discussed with Earle Morgan. Mr. Coleman stated that he is unable to meet the resolution that Mr. Chase requested since no discrimination occurred.
(Docket No. 37, Exhibit 2, at 8-9) (emphasis added).
In an affidavit signed nine months later, Coleman denies that the 1997 selection made in Seattle was based on gender. According to Coleman, he stated the following when asked why Chase was not selected:
There was no information that I was aware of regarding Mr. Chase that excluded him for consideration for selection. I do not recall anything striking from the information that I had available to me that made me consider him for selection. I do not know Mr. Chase and I have never worked at a location with him. I did not discuss Mr. Chase as a candidate with any other management official during this selection process.
Affidavit of Robert Coleman, dated September 27, 1998, at ¶ 15.
The Court finds the discrepancy between Mehlhoff's report and Coleman's affidavit creates a genuine issue of material fact as to the true reason Chase was not selected. The Department's proffered reason that the selection was made on merit alone is in direct conflict with Mehlhoff's report. In addition, the conflict between Mehlhoff's report and Coleman's affidavit calls into question whether Coleman was aware of the Department's proffered assertions that Chase was a "problem employee." In his affidavit, Coleman denies knowing Chase or speaking with any other management officials during the selection process. This statement directly conflicts with Mehlhoff's report which stated that Coleman received a recommendation from Earle Morgan as to who to hire. The record clearly reflects that Chase's immediate supervisors and co-workers considered him to be a problem employee. However the evidence before the Court is conflicting as to whether Coleman was aware of Chase's problems with his supervisors and co-workers. Because Chase is entitled to the benefit of all reasonable inferences to be drawn from the facts, the Court finds that Chase has created doubt as to whether the Department's proffered reasons are pretextual. There are genuine issues of material fact to be resolved. As a result, the Department is not entitled to summary judgement as to Chase's claims of sex discrimination.
2) RETALIATION CLAIMS
"Title VII makes it unlawful for an employer to discriminate against an employee `because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter.'" Bradley v. Windall, 232 F.3d 626, 632 (8th Cir. 2000) (quoting 42 U.S.C. § 2000e-3(a)).
In order to establish a prima facie case of retaliation under Title VII, a plaintiff "must show that [he] filed a charge of discrimination or engaged in some other protected activity, that the defendant took an adverse employment action against [him], and that there was a causal link between the filing of the discrimination charge and the adverse employment action." Kipp v. Missouri Highway and Transportation Commission, 280 F.3d 893, 896 (8th Cir. 2002). "Once this prima facie showing is made, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions." Manning v. Metropolital Life Insurance Company, Inc., 127 F.3d 686, 692 (8th Cir. 1997) "If an employer meets that burden, the presumption of retaliation disappears." Id. The employee must then show the proffered reason is a pretext for intentional discrimination. Smith v. Allen Health Systems, Inc., 302 F.3d 827, 833 (8th Cir. 2002).
The Department asserts that Chase is unable to set forth a prima facie case as to both the 1998 Seattle non-selection and the 1999 three-day suspension. As to the 1998 Seattle non-selection, the Department contends that Chase has failed to show a causal connection between his EEO activity and his non-selection. As to the 1999 three-day suspension, the Department contends that Chase did not suffer any adverse employment action and that he has failed to show a causal connection between his EEO activity and his suspension. Chase argues that his suspension without pay is a sufficient adverse employment action and that he has shown a causal connection through the link in time between his EEO complaint and the adverse employment action, management's knowledge of his EEO activity, and a pattern of adverse activity.
a. 1998 SEATTLE NON-SELECTION
There is no dispute that Chase filed an EEO complaint prior to the 1998 Seattle non-selection. Thus, Chase has satisfied the first element of a prima facie case of retaliation. Nor is there any real dispute that Chase's non-selection was an adverse employment action. Accordingly, Chase has satisfied the second element of a prima facie case of retaliation.
However, the Department contends that Chase has failed to show a causal link between the filing of the discrimination charge and his non-selection. The Department argues an employer's knowledge should be a necessary part of showing causation and cites to several cases. See Ross v. Communications Satellite Corp., 759 F.2d 355, 365 n. 9 (4th Cir. 1985); Down v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir. 1998); Long v. ATT Info. Sys., Inc., 733 F. Supp. 188 (S.D.N.Y. 1990). The Department further asserts that a failure to establish an employer's knowledge destroys any possibility of a causal link.
Assuming for purposes of this motion that the Department's interpretation of the law is correct, the Court finds the evidence in the record, when viewed in a light most favorable to Chase, would arguably support the conclusion that Coleman did have knowledge of Chase's EEO activity at the time he made the second Seattle selection in April 1998.
In his affidavit, Coleman stated:
I am not aware of any EEO participation on the part of Mr. Chase. I am not even sure that I knew that Mr. Chase had ever worked in the Seattle District until I was contacted by an EEO Counselor regarding this current EEO complaint.
Affidavit of Robert Coleman, dated September 27, 1998, at ¶ 21.
However, from the evidence before the Court, it appears Coleman would have been aware of Chase's EEO activity by January 14, 1998, the date EEO Counselor Mehlhoff conducted an interview with Coleman. According to Barbara Prejean, an Administrative Officer at the Seattle District Office, the Seattle District Office became aware that a second Senior Immigration Inspector position was needed on or about February 24, 1998. Affidavit of Barbara Prejean, dated September 29, 1998, at ¶ 10. Prejean attests that Coleman selected Canez on April 1, 1998. The conflict between Coleman's affidavit, Mehlhoff`s report. and Prejean's affidavit creates a genuine issue of material fact as to when Coleman became aware of Chase's prior EEO activity.
Even if the Court were to conclude that Coleman had knowledge of Chase's prior EEO activity at the time he made the second selection in Seattle, an employer's knowledge of a complaint does not necessarily raise an inference of causation. Nelson v. J.C. Penny Co., 75 F.3d 343, 346 (8th Cir. 1996). Chase must still show a causal connection.
"Generally, more than a temporal connection between the protected conduct and the adverse employment action is required to present a genuine factual issue on retaliation." Bradley v. Widnall, 232 F.3d 626, 633 (8th Cir. 2000) (citing Scroggins v. University of Minnesota, 221 F.3d 1042, 1045 (8th Cir. 2000)). "`[T]he mere coincidence of timing' does not raise an inference of causation." Scroggins v. University of Minnesota, 221 F.3d 1042, 1045 (8th Cir. 2000) (quoting Nelson v. J.C. Penny Co., 75 F.3d 343, 346 (8th Cir. 1996)). On occasion the Eighth Circuit has allowed a claim based purely on a temporal connection to go forward at the summary judgment stage. See Smith v. Allen Health Systems, Inc., 302 F.3d 827, 832 (8th Cir. 2002). When a plaintiff alleges that a temporal connection satisfies the causal connection requirement, the Eighth Circuit has allowed those claims filed within a short time span between an EEO complaint and the adverse employment action. See Bainbridge v. Lofferedo Gardens, Inc., 378 F.3d 756, 761 (8th Cir. 2004) (finding a causal connection was established when the plaintiff was terminated six days after his last complaint); Smith v. Allen Health Systems, Inc., 302 F.3d 827, 833 (8th Cir. 2002) (finding the causal connection element was "barely" satisfied when the plaintiff was discharged two weeks after taking family leave);Kipp v. Missouri Highway and Transportation Commmission, 280 F.3d 893, 897 (8th Cir. 2002) (finding, as a matter of law, that an interval of two months between a plaintiff's complaint and her termination was insufficient to show a causal connection).
As to the 1998 non-selection in Seattle, the evidence reveals that Chase filed his EEO complaint on December 4, 1997. The evidence also reveals that Coleman made his decision to select Canez rather than Chase on April 1, 1998. Thus, nearly five months had passed between the filing of Chase's EEO complaint and the adverse employment action. If the Court were to use the period between when Coleman would have likely been aware of Chase's EEO activity (January 14, 1998) and the date he selected Canez for the second Senior Immigration Inspector position in Seattle (April 1, 1998), over three months had elapsed. The temporal connection alone is weak but arguably establishes a causal connection.
Chase has not articulated any basis other than simply the timing of events to support a causal connection as to the 1998 non-selection. "[E]vidence that gives rise to an inference of a [retaliatory] motive is not only sufficient to prove the required causal link but is also necessary." Kipp v. Missouri Highway and Transportation Commission, 280 F.3d 893, 897 (8th Cir. 2002). In passing, Chase contends a pattern of adverse actions satisfies the causal connection requirement, (Docket No. 36, p. 1) but he fails to identify what these "adverse actions" were or when they took place. Such a vague assertion unsupported by citations to specific pieces of evidence does not create a sufficient showing of a causal connection. See Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1085 (8th Cir. 1999) ([A] district court is not `obligated to wade through and search the entire record for some specific facts which might support the nonmoving party's claim.'") (internal citation omitted); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) ("`Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'") (internal citation omitted); c.f., United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs."). Nevertheless, viewing the evidence in the light most favorable to Chase, the Court finds that Chase has arguably shown a causal connection necessary to establish a prima facie case of retaliation as to his non-selection for the Seattle position in 1998. The Court notes that such evidence is weak at best but there is arguably an inference of retaliation which precludes granting summary judgment at this stage.
Because Chase has established a prima facie case of retaliation, the burden then shifts to the Department to articulate some legitimate, non-discriminatory reason for the selection decision. To this end, the Department argues that David Canez was better qualified than Chase. The Court finds this proffered reason as a legitimate, non-discriminatory reason and sufficient to rebut the presumption of retaliation. Chase must now show the Department's proffered reason is a pretext for intentional discrimination.
To discredit the Department's proffered reason, Chase emphasizes the fact that the Department has been unable to produce portions of Canez's application. Chase also asserts he was better qualified for the position than Canez. Little helpful evidence of Canez's qualifications have been brought before the Court. The evidence before the Court includes an application form G-603, which sets forth basic information such as the applicant's name and the vacancy announcement number. The section of the application asking for the applicant's training and experience contains only the phrase "see attachments of work experience and training." (Docket No. 23, Exhibit F10c) Neither party has been able to locate the attachments.
Also in the record is the Officer Corps Rating System scores giving Chase a score of 124 and Canez a score of 119. (Docket No. 23, Exhibit F8c). Chase has also submitted a document entitled "Officer Corps Candidate Summary" listing the work history, INS training, education, language proficiency, and supervisory appraisals for both Chase and Canez. The photo copy of the "Officer Corps Candidate Summary" is of poor quality. Neither party has offered the Court any guidance as to the significance of the information in the summary. Without such guidance as to what type of training and education were essential to the position of Senior Immigration Inspector, the summary does not provides a basis for any meaningful comparison of the candidates.
The photocopy attached to the Plaintiff's Second Supplemental Brief is missing the first and/or second letter of the words in the right-hand column and some words are completely missing due to what apparently is a photocopy of a document with holes punched in it.
The record also contains the aforementioned affidavit of Robert Coleman. In it he stated:
I decided to bring in Mr. Canez as an outsider because he had dealt with criminal aliens at his location. Mr. Canez had been working at the Institutional Hearing Program and I believe that he might have previously had Inspection experience. . . .
If I had only one vacancy to fill, I would have leaned towards bringing in a candidates (sic) who was an outside party with independent criminal experience because I felt that this would be the best asset for this position. Mr. Canez had a lot of prosecution experience from the Institutional Hearing Program. Additionally, he had Land Border Inspection experience in Texas or Arizona. I felt that Mr. Canez had progressive experience because he had worked in a couple of different districts in a couple of different states.
Affidavit of Robert Coleman, dated September 27, 1998, ¶¶ 11-12.
Finally, Chase has presented evidence in the form of performance evaluations, letters of commendation, and certificates of achievement in an attempt to show that he was better qualified than Canez. (Docket No. 37, Exhibits 3, 4, 5, 15, 16, 17, and 18). The documents cover the period from January 1991 to December 1995. The record does not contain similar documents for the period from January 1996 to the selection dates in late 1997 and early 1998.
After carefully reviewing all of the evidence submitted, the Court finds there are genuine issues of material fact which preclude summary judgment. The Court is without sufficient evidence to determine whether Chase has shown the Department's proffered reasons were a pretext for intentional discrimination. The Court understands that at this stage of the burden-shifting analysis, it is Chase's burden to show pretext. However, the Court also recognizes that Chase is hampered by the fact Canez's complete application is missing from the Department records. At trial, Chase will ultimately bear the burden of showing pretext and the Court's ruling on this matter does not shift this burden to the Department. Nevertheless, the Court finds that genuine issues of material fact remain as to the Department's decision to hire Canez rather than Chase. Accordingly, Chase's retaliation claim stemming from the 1998 non-selection for the second Senior Immigration Inspector position in Seattle will remain for now.
b. 1999 THREE-DAY SUSPENSION
The Department also asserts that Chase has failed to set forth a prima facie case of retaliation as to the three-day suspension in 1999, because (1) he has not alleged an adverse employment action and (2) he has not set forth a causal connection between his EEO activity and the adverse employment action.
"An adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities." Bradley v. Windall, 232 F.3d 626, 632 (8th Cir. 2000). The Department contends Chase did not suffer an adverse employment action because he did not lose his job status or title, did not lose any benefits, did not have a change in duties, and did not have a change in working conditions. While the Court agrees that the Eighth Circuit has taken a narrow view of what constitutes an adverse employment action, the Court finds a loss of pay constitutes an adverse employment action. Duncan v. Delta Consolidated Industries, Inc., 371 F.3d 1020, (8th Cir. 2004) ("Termination, reduction in pay or benefits, and changes in employment that significantly affect an employee's future career prospects meet this standard."). However, it is unclear whether the loss of only three days' pay should be considered a material employment disadvantage. Nevertheless, the Court will give Chase the benefit of the doubt, and finds that in this circumstance, a three-day suspension without pay for conduct unbecoming an officer is evidence of an adverse employment action. Thus, Chase has sufficiently alleged an adverse employment action to satisfy this element of a prima facie case of relation.
Again, Chase must establish a causal connection between his EEO complaint and the adverse employment action. The decision to suspend Chase became final on June 21, 1999, more than a year after Chase filed his EEO complaint on December 4, 1997. Chase places much emphasis on the fact that Dean Hove, the Deputy District Director who proposed the suspension, knew of Chase's EEO activity. Even if Hove was aware of Chase's EEO activity, more is needed to set forth a causal connection.
An employee's "intervening unprotected conduct erode[s] any causal connection" that may be suggested by the temporal proximity of his protected conduct and the adverse employment action. Scroggins v. Univeristy of Minnesota, 221 F.3d 1042, 1045 (8th Cir. 2000). Both parties place an extraordinary amount of emphasis on the events leading up to Chase's three-day suspension. Yet, it is clear from the evidence before the Court that Chase's dog Rex scared Karin Stork and she reported the incident to Chase's superiors at the Portal Port of Entry. Regardless of which version of events is closer to the truth, there is no indication that Chase would have been disciplined if the "dog incident" had never happened. In other words, "but for" Rex scaring Karin Stork, Chase would not have suffered an adverse employment action. This intervening incident serves to erode any causal connection between Chase's EEO activity and his suspension.
Again, Chase makes vague references to "earlier adverse actions," but does not identify these actions or when they took place. (Docket No. 35, p. 13). As a result, the Court finds that Chase has failed to allege a causal connection between his EEO complaint in December of 1997 and the decision on June 21, 1999, to suspend him from work for three days. Accordingly, Chase's retaliation claim stemming from the three-day suspension in 1999 must be dismissed.
IV. CONCLUSION
For the reasons set forth above, the Court DENIES Chase's Motion for Leave to Amend Complaint. (Docket No. 57). The Court GRANTS IN PART the Department's Motion for Summary Judgment (Docket No. 22). Chase is allowed to go forward with his claim alleging sex discrimination arising out of the 1997 selection of Lynn Habeger for the Senior Immigration Inspector position in Seattle and his claim of retaliation arising out of the 1998 selection of David Canez for the Senior Immigration Inspector position in Seattle.
Finally, the trial in this matter is re-scheduled for Monday, February 7, 2005, before Judge Hovland, in Bismarck, North Dakota at 1:30 p.m. A four and one-half (4 1/2) day trial is anticipated.
IT IS SO ORDERED.