Opinion
CIVIL ACTION NO. SA-01-CA-1130 NN
November 6, 2003
MEMORANDUM ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT (DOCKET ENTRY 43)
I. Introduction
The matter before me is the motion to dismiss, or in the alternative, for summary judgment, brought by defendant Les Brownlee, Acting Secretary, Department of the Army ("defendant"). Plaintiff, Camilla A. Hancock, formerly employed as a Pharmacist with the United States Department of the Army, in Fort Sam Houston, Texas, asserts that defendant subjected her to unlawful retaliation for having previously complained of race and sex discrimination. Plaintiff brings her retaliation claim under Title VII of the Civil Rights Act of 1964, as amended. The alleged retaliatory conduct, consisting mainly of four incidents of alleged co-worker harassment, a one-time change in work schedule, and a comment made by a supervisory employee that she was not a team player, occurred from January through September of 1998. Plaintiff alleges that this retaliatory conduct created a hosfile and abusive work environment which interfered with her work performance. Through the filing of this action, plaintiff seeks compensatory damages for her mental pain and anguish, attorneys' fees and court costs.
Plaintiff filed her charge of discrimination with the defendant's Equal Employment Opportunity ("EEO") agency on March 4, 1996. According to plaintiff, this charge was still pending at the time the alleged retaliation began in 1998.
It is well established that the Civil Rights Act, 42 U.S.C. § 2000e-16, provides the exclusive remedy to a federal employee for claims of job discrimination on the bases of national origin, reprisal (or retaliation) and handicap. See Lopez v. Louisiana National Guard , 733 F. Supp. 1059, 1065 (E.D. La. 1990) (discussing 29 C.F.R. § 1613 et seq. , the former section dealing with job discrimination in the federal sector), aff'd , 917 F.2d 561 (1990) (citations omitted).
In support of her retaliation claim, plaintiff also complains about the lack of responsiveness on the part of the new EEO counselor assigned to her complaint of retaliation made the basis of this suit. Docket Entry 1, at 3.
Docket Entry 1, at 4-5.
On September 22, 2003, plaintiff sent a letter to the undersigned. From the letter, it was unclear whether or not plaintiff sought dismissal of her case. In an attempt to obtain clarification, I entered an Order on September 24, 2003, ordering the plaintiff to file an advisory to clarify whether she desired to dismiss the case no later than October 15, 2003.
Docket Entry 41.
Docket Entry 42.
Defendant then filed its motion to dismiss, or in the alternative, for summary judgment on September 30, 2003. Plaintiff did not file responses to either my Order of September 24th, or defendant's dispositive motion. After considering defendant's motion and the entirety of the record in this matter, I hereby GRANT the motion for the reasons set forth below.
Docket Entry 43.
I have jurisdiction over this matter under 28 U.S.C. § 636(c). The parties have consented to proceed before a magistrate judge for all matters in this case, including trial and entry of judgment.
Docket Entry 10, 11, and 12.
II. Jurisdiction
This court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 1343. Further, it appears that plaintiff properly exhausted her administrative remedies as the instant lawsuit was filed subsequent to her attorney receiving the agency's final decision regarding her EEO complaint of retaliation on October 21, 2001.III. Applicable Legal Standards
In the instant case, defendant moves to dismiss the case entirely, or, alternatively, to obtain judgment as a matter of law on the claims presented in plaintiffs complaint.1. Dismissal Standard
Defendant's motion to dismiss is brought under Federal Rule of Civil Procedure 12(b)(6). Under Rule 12(b)(6), a plaintiff's claim may be dismissed for failure to state a claim upon which relief may be granted when, viewing the allegations in the plaintiff's complaint in the light most favorable to him and drawing all reasonable inferences in his favor, it appears certain that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice to prevent a motion to dismiss under Rule 12(b)(6). In ruling on a motion to dismiss, a court should consider only those facts stated on the face of the complaint or incorporated into the complaint by reference, and matters of which judicial notice may be taken. If a complaint omits facts concerning pivotal elements of a plaintiff's claim, a court is justified in assuming the non-existence of those facts.
See Kaiser v. Aluminum Chem Sales, Inc. v. Avondale Shipyard, Inc. , 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied , 459 U.S. 1105 (1983); and Adolph v. Federal Emergency Management Agency , 854 F.2d 732, 735 (5th Cir. 1988).
See Spivey, Jr., v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999).
See Fernandez-Montes v. Allied Pilots Assoc. , 987 F.2d 278 (5th Cir. 1993).
See Lovelace v. Software Spectrum. Inc. , 78 F.3d 1015, 1017 (5th Cir. 1996) and McNamara v. Bre-X Minerals Ltd. , 57 F. Supp.2d 396, 417 n. 12 (E.D. Tex. 1999).
See Ledesma v. Dillard Dept. Stores, Inc., 818 F. Supp. 983 (N.D. Tex. 1993).
2. Summary Judgment Standard
The applicable standard in deciding a motion for summary judgment is set forth in Federal Rule of Civil Procedure 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986).
Anderson , 477 U.S. at 248; Thomas v. LTV Corp. , 39 F.3d 611, 616 (5th Cir. 1994).
Id. ; Wise v. E.I. DuPont De Nemours Co. , 58 F.3d 193, 195 (5th Cir. 1995).
Anderson , 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Celotex Corp. , 477 U.S. at 323.
Edwards v. Aguillard , 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp. , 477 U.S. at 325.
Id.
Anderson , 477 U.S. at 257.
The non-moving party cannot discharge this burden by referring to the mere allegations or denials of the non-moving party's pleadings. Rather, the non-movant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the non-movant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the non-movant's burden." Summary judgment is mandated if the non-movant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
FED R.CIV.P. 56(e); Anderson , 477 U.S. at 250; State of Texas v. Thompson , 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp. , 477 U.S. at 324: Fields v. City of South Houston. Texas , 922 F.2d 1183. 1187 (5th Cir. 1991); Neff v. American Dairy Queen Corp. , 58 F.3d 1063. 1065 (5th Cir. 1995). cert. denied , 516 U.S. 1045 (1996).
Hibernia Nat'l Bank v. Carner , 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material tacts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Services Auto. Ass'n , 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr , 19 F.3d 1527, 1533 (5th Cir.), cert. denied , 513 U.S. 871 (1994)).
Celotex Corp. , 477 U.S. at 322 ("In such situation, there can be `no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Id. at 323.
IV. Analysis
In the instant case, defendant moves to dismiss, or obtain judgment as a matter of law, on the basis that: (1) the actions about which plaintiff complains neither constituted "ultimate employment decisions" under Title VII, nor did they create a hosfile work environment; and (2) that there was no nexus between plaintiff's protected activity — filing an EEO grievance — and the harassing conduct about which plaintiff complains. For these reasons, defendant urges that plaintiff has failed to state a claim upon which relief can be granted and, similarly, that defendant is entitled to judgment as a matter of law.
Docket Entry 43.
1. Did the actions about which plaintiff complains constitute adverse employment actions or create a hosfile work environment?
The first issue before the court is whether the alleged wrongdoing constituted an adverse employment action or created a hosfile work environment. In particular, plaintiff's federal court complaint seeks relief for four instances of co-worker harassment, the inaction of her EEO counselor, a one time change in her work schedule, and a meeting with her division chief in which plaintiff was accused of not being a "team player." Defendant urges that these aforementioned acts, standing along, cannot constitute the basis for a federal employment discrimination case because they are not "ultimate" employment actions and did not create a hosfile work environment.
Docket Entry 1.
To bring properly a cause of action for employment discrimination, harassment or retaliation on the basis of race, sex, religion, national origin, or prior protected activity (i.e., "whistleblowing"), the alleged victim must first establish a prima facie case of discrimination, harassment or retaliation. a prima facie case of discrimination on the basis of race, sex or previous protected activity requires the alleged victim to establish: (1) his membership in a protected class or his previous protected activity; (2) the occurrence of an adverse employment action; and (3) a "causal link" between his membership in the protected class or participation in the protected activity, and the adverse employment action.
See , e.g. Fierros v. Texas Dept. of Health , 247 F.3d 187, 191 (5th Cir. 2001). quoting Evans v. City of Houston , 246 F.3d 344, 352 (5th Cir. 2001) (quoting Long v. Eastfield Coll. , 88 F.3d 300, 304 (5th Cir. 1996)). Importantly, defendant concedes that plaintiff engaged in a protected activity-filing an EEO complaint in 1996. See Docket Entry 43, at 9. Plaintiff's EEO complaint was filed on March 4, 1996. The EEO complaint alleged harassment and discrimination on the basis of race (African American) and sex (female). See Docket Entry 1.
The Fifth Circuit has made it clear that the adverse employment action requirement can only be satisfied when the adverse employment action was an "ultimate employment decision." "Ultimate employment decisions" are decisions `"such as hiring, granting leave, discharging, promoting and compensating.'" Stated another way,
Id.
Id. , citing Dollis v. Rubin , 77 F.3d 777. 781-782 (5th Cir. 1995). See also McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973).
the `ultimate employment decision' doctrine requires that actionable adverse employment actions "have more than a `mere tangential effect on a possible future ultimate employment decision.'"
Id. , quoting Mota v. Univ. of Tex. Houston Health Sci. Ctr. , 261 F.3d 512, 519 (5th Cir. 2001)( quoting Walker v. Thompson , 214 F.3d 615, 629 (5th Cir. 2000)). See also Mattern v. Eastman Kodak Co. , 104 F.3d 702, 707 (5th Cir. 1997)(`"Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.'") (internal citations omitted).
The Fifth Circuit has even held that employment actions such as oral threats of being fired and oral reprimands for an employee's failure to be at her assigned station — even when accompanied by a missed pay increase — did not constitute adverse employment actions "because of their lack of consequence."
Mattern , 104 F.3d, at 708.
In the instant case, plaintiffs complaint alleges that certain acts of discrimination and retaliation occurred after she filed her EEO complaint on March 4, 1996. Specifically, plaintiff contends that: (1) co-worker Charlie Wesley told plaintiff she was stupid to file her EEO complaint on January 9, 1998, and further harassed her about her EEO complaint later in January and April 1998; (2) co-worker William Ansey sent an email to plaintiffs co-workers in February 1998, and plaintiff received offensive emails thereafter; (3) co-workers Philo Ohiri and Dwayne Dvoracek told plaintiff in April 1998 that she was a troublemaker because she filed an EEO complaint; (4) plaintiff was required to work eight consecutive days in July and August 1998 when her co-workers were scheduled to work no more than five consecutive days; and (5) Colonel Jackson, the Chief of the Department of Pharmacy, conducted a meeting with plaintiff on September 10, 1998, in which she stated that plaintiff was "not a team player."
Docket Entry 1.
None of the aforementioned incidents constitutes an "ultimate employment action." Neither the alleged co-worker hostility, the delay in appointing plaintiff's EEO counselor after the counselor's alleged inaction, nor the one time change in plaintiff's work schedule affected plaintiff's pay, benefits or responsibility. Because the actions did not affect plaintiff's pay, benefits or level of responsibility, the actions cannot be considered ultimate employment actions as contemplated by the Fifth Circuit.
See Watts v. Kroger Co. , 170 F.3d 505, 511-12 (5th Cir. 1999) (no actionable adverse employment action found where the plaintiff conceded that neither the change in her work schedule nor the tasks which she was given affected her pay). See also Sharp v. City of Houston , 164 F.3d 923, 933 (5th Cir. 1999) (reassignment with no significantly different responsibilities, or a decision causing no significant change in benefits, cannot be considered an adverse employment action); Mattern , 104 F.3d at 708-10 (finding that, "[h]ostility from fellow employees, having tools stolen, and resulting anxiety, without more, do not constitute ultimate employment decisions, and therefore are not the required adverse employment actions.").
See Watts , 170 F.3d, at 511-512 ("employment actions are adverse only where pay, benefits or level of responsibility are affected.")
Although it could be argued that the criticism lodged against plaintiff by Colonel Jackson, the Chief of plaintiff's department, on September 10, 1998, might have impacted future employment decisions related to the plaintiff, the Fifth Circuit has held that such situations do not fall within the ultimate employment decision doctrine. When an action does not "rise above having [a] mere tangential effect on a possible ultimate employment decision," the action does not fall within the ambit of the ultimate employment decision doctrine. To explain the policies underlying this ultimate employment decision doctrine, the Fifth Circuit has stated
Mattern , 104 F.3d, at 708; Fierros , 274 F.3d, at 191. Employment actions having only a tangential effect on an ultimate employment decision — such as a missed pay increase, verbal threats of being fired, reprimands, an employer's failure to resolve internal grievances, close monitoring of an employee's work and conduct, failure to heed an employee's input and even being placed on a final warning — are not sufficient to raise a claim of retaliation under Title VII. See Messer v. Meno , 130 F.3d 130, 140 (5th Cir. 1997); Dollis v. Rubin . 77 F.3d 777.781-82 (5th Cir. 1995).
To hold otherwise would be to expand the definition of `adverse employment action' to include events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future. Such expansion is unwarranted.
Mattern , 104 F.3d, at 708 (internal citations omitted; emphasis in original).
Finally, although many courts have held that harassment alone — when sufficiently severe — can be actionable, the alleged harassment in the instant case does not reach the required level of severity. The Supreme Court has held that Title VII is violated when
the workplace is permeated with discriminatory intimidation, ridicule, and insult' . . . `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . .'
Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993) (internal citations omitted).
Yet, the level of harassment required is high. The conduct must be both subjectively and objectively hosfile.
Conduct that is not severe or pervasive enough to create objectively hosfile or abusive work environment — an environment that a reasonable person would find hosfile or abusive — is beyond Title VII's purview.
Harris , 510 U.S., at 21.
In order to determine the level of hostility or abusiveness of a work environment, the court must look at the totality of the circumstances, including
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.
Id. at 23.
Some courts have held that even "sporadic racial slurs" are not sufficiently egregious to constitute an objectively hosfile or abusive work environment.
Bolden v. PRC, Inc. , 43 F.3d 545, 551 (10th Or. 1994)("general torment and taunting if not racially discriminatory are not actionable.")
In the instant case, the comments of which plaintiff complains did not create an objectively hosfile or abusive work environment. There is no evidence in the record that the conduct of which plaintiff complains was frequent, objectively severe, physically threatening, humiliating or that it unreasonably interfered with plaintiffs work performance.
Because the evidence of record reveals that the conduct about which plaintiff complains neither constituted an ultimate employment action, nor created a hosfile work environment, I find that defendant is entitled to judgment as a matter of law. There are no genuine issues of material fact which could establish plaintiff's Title VII claim. For these reasons, defendant's motion for summary judgment will be GRANTED.
Importantly, I am granting defendant's alternate request for relief — the motion for summary judgment-rather than defendant's motion to dismiss. As previously discussed, a motion to dismiss can only be granted under Federal Rule of Civil Procedure 12(b)(6) when the complaint fails to state a claim upon which relief can be granted. In the instant case, die problem is not in the pleading, but in the evidence. Plaintiff's complaint properly pled a claim for retaliation and discrimination under Title VII, however, the undisputed evidence precludes the possibility that plaintiff could recover on her properly pled claim. See Docket Entries 21, 22.
2. Was there a sufficient nexus between plaintiff's protected activity and the alleged discrimination?
Defendant's final argument in support of its motion is that there was an insufficient connection between plaintiff's protected activity — filing the EEO complaint — and the alleged retaliation and discrimination. Defendant briefly asserts that
there is no evidence that any of the complained-of conduct occurred because those co-workers (or management) wanted to retaliate against her for her protected activity. Hancock cannot produce a genuine issue of material fact that she was retaliated against for exercising her rights under Title VII.
Docket Entry 43, at 12.
As previously discussed, a Title VII plaintiff must establish a "causal connection" between her protected activity and the alleged retaliation and discrimination. The Fifth Circuit has stated that a causal connection is established when the plaintiff proves that `"but for'" her protected activity, she would not have suffered the retaliation or discrimination.
See Mayberry v. Vought Aircraft Co. , 55 F.3d 1086. 1092 (5th Cir. 1995).
Id.
In the instant case, the record establishes a genuine issue of material fact as to whether a causal connection existed between the alleged harassment and plaintiff's protected activity. Because plaintiff's complaint alleges that her co-workers chastised her for filing her EEO complaint and called her a troublemaker, there is a genuine issue of material fact regarding the same. Similarly, if plaintiff's departmental supervisor (Colonel Jackson) accused plaintiff of failing to be a "team player" because plaintiff engaged in protected activity, genuine issues of material fact exist regarding the connection between plaintiff's protected activity and the harassment.
As previously discussed, however, plaintiff must satisfy all three elements to establish a prima facie case of discrimination. Because the record is devoid of any evidence which could establish that plaintiff suffered an adverse employment action or hosfile work environment, defendant is entitled to judgment as a matter of law. The existence of a genuine issue of material fact regarding the connection between plaintiff's protected activity and the alleged discrimination cannot save plaintiff from summary judgment.
See , e.g. , Fierros v. Texas Dept. of Health , 247 F.3d 187, 191 (5th Cir. 2001), quoting Evans v. City of Houston , 246 F.3d 344, 352 (5th Cir. 2001)( quoting Long v. Eastfield Coll. , 88 F.3d 300, 304 (5th Cir. 1996)).
V. Conclusion
Based on the foregoing, I hereby GRANT defendant's motion to dismiss, or in the alternative, for summary judgment. As discussed above, plaintiff can neither establish that the alleged wrongdoing constituted an ultimate employment action nor that the conduct created a hosfile working environment. Thus, plaintiff cannot prevail on her Title VII claim as a matter of law. Defendant's motion for summary judgment is GRANTED .