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holding that comment that plaintiff "didn't have communications or leadership skills" was not a "slur" and did not support a hostile work environment claim
Summary of this case from Hector v. WolfOpinion
CIVIL ACTION NO. 02-3164, SECTION "A"(5);
November 13, 2003
ORDER AND REASONS
Before the Court is a Motion to Dismiss and/or for Summary Judgment (Rec. Doc. 16) filed by defendant John W. Snow, Secretary of the Department of the Treasury. Plaintiff, Harry A. Hernandez, opposes the motion. The motion, taken under submission on September 26, 2003, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED.
The motion was noticed for hearing on September 24, 2003 The Court granted Plaintiff's request for additional time to oppose Defendant's motion.
Background
Harry Hernandez ("Plaintiff") is a fifty-three-year-old male Hispanic of Puerto Rican descent. Plaintiff has brought this suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act, 29 U.S.C. § 633a 42. At all times pertinent, Plaintiff was employed by the United States Customs Service ("Defendant") as an Intelligence Research Specialist. He alleges that his employer discriminated against him on the basis of race and age.
Hernandez alludes to various provisions of Title VII in his complaint. Rec. Doc. 1 at ¶ XIX. However, as a federal employee, Hernandez's claims are governed by those statutory sections that Congress has specifically designated as applicable to federal sector employment.
Plaintiff filed an Equal Employment Opportunity ("EEO") complaint with the defendant agency on August 11, 2000. He subsequently filed several amendments to his original complaint. The following issues were ultimately accepted for investigation:
Was [Plaintiff] subjected to a hostile working environment based on his age (53; DOB 6/25/47), race (Hispanic) and national origin (Puerto Rico) from March 2000'to July 2000?
1) In March 2CCO, [Plaintiff] was denied counter-intelligence training;
2) On June 6, 2000, [Plaintiff] did not receive a promotion to an Intelligence Research Specialist position, GS-132-13;
3) In July 2000, [Plaintiff] did not receive a cash award;
4) [Plaintiff] was originally denied the opportunity to attend a seminar on Louisiana international trade;
5) [Plaintiff] has not received temporary duty assignments;
6) [Plaintiff] was denied the opportunity to become an EEO counselor;
7) Was [Plaintiff] discriminated against on the basis of reprisal and retaliation when in March 200 1 he was placed on administrative leave for 4 days, his credentials were removed, and subsequently he was placed on a desk job?
8) Was [Plaintiff] subjected to a hostile working environment based on his age (53; DOB 6/25/47), race (Hispanic), and national origin (Puerto Rico) when on June 18, 2001, [Plaintiff]; was denied the opportunity to serve in a 90-day detail as Acting Chief of Intelligence Support?
Def. Exh. A at Tab 3. Although Plaintiff had characterized his complaint as one of hostile working environment, the EEO investigator noted that the allegations raised were more properly characterized as those of disparate treatment. The investigator therefore analyzed the complaint under the disparate treatment model. Def. Exh. B at Tab 8. On July 23, 2002, the Department of the Treasury issued a final agency decision which found no discrimination and dismissed all of Plaintiff's allegations. Id.
Plaintiff thereafter filed this civil action. In his complaint, Plaintiff asserts inter alia that he was denied a promotion to Intelligence Research Specialist, GS-132.13 (Comp. ¶ IX), that his supervisors had a pattern and practice of harassing him and applying unequal treatment toward him (Comp. ¶ XII), that he was denied the opportunity to serve in a 9C-day detail as Acting Chief of Intelligence Support (Comp. ¶ XIII), and that while employed with Customs he was subjected to a hostile work environment (Comp. ¶ XVI). Plaintiff seeks a promotion, compensatory and punitive damages, backpay, frontpay, and attorney's fees.
Defendant's Motion
Defendant moves to dismiss Plaintiff's request for compensatory damages, punitive damages, and a trial by jury. First, Defendant argues that Plaintiff in effect waived any claim to compensatory damages by failing to make a demand for compensatory damages in his EEC complaint. Second, Defendant points out that Plaintiff cannot recover punitive damages from a federal agency. Assuming that the Court concludes that Plaintiff has no claim for compensatory and punitive damages, Defendant then argues that Plaintiff would have no right to a jury trial. Defendant also argues that Plaintiff's claims of hostile work environment fail as a matter of law because Plaintiff cannot demonstrate that the workplace was so "permeated with discriminatory intimidation" or "so severe and pervasive so as to alter the conditions of his employment."
Next, Defendant argues that any claims that Plaintiff failed to timely submit and fully exhaust through the EEC complaint process should be dismissed for lack of subject matter jurisdiction. Finally, Defendant argues that any remaining exhausted claims should be dismissed because none of those claims involve adverse personnel actions, as required by law. To the extent that any claim does involve an adverse personnel action, Defendant argues that Plaintiff fails to create an issue of fact as to unlawful discrimination playing a role in his employer's actions.
In opposition, Plaintiff asserts that the core of his case is that defendant engaged in a pattern of discrimination as evidenced by the specific, discrete acts alleged in his complaint. Thus, while those discrete acts appear innocuous at first blush, their cumulative effect was to deny him the opportunity to develop his analytical skills. Consequently, Plaintiff's chances for promotion were severely limited.
Plaintiff argues that his case must be considered based upon a pattern of discriminatory acts because each act considered separately does not necessarily support a claim for discrimination. Plaintiff asserts that all of his alleged acts belong to a single pattern and practice of discrimination and therefore for timeliness purposes this Court need only look to the last act of discrimination.
This characterization of Plaintiff's case is not what he charged in his EEO complaint. Nor is this characterization apparent from the original complaint that he filed in this Court. Even more confusing is that this characterization is inconsistent with some of the other arguments Plaintiff presented in his opposition.
Plaintiff asserts that he exhausted his claim for compensatory damages by requesting backpay and a cash award in response to the EEO counselor's inquiries. He also asserts that the administrative record and investigative file support the conclusion that he fully exhausted his pattern and practice claims and claims of hostile work environment. While conceding that certain claims were not timely brought before the EEO, he asserts that the continuing violation doctrine can be employed to preserve his otherwise untimely claims.
Plaintiff's assertion that he exhausted a hostile work environment claim is perplexing in light of the statement on page 2 of his Opposition that his claims are not based on hostile work environment.
Next, Plaintiff asserts that none of the claims which he unarguably did exhaust (counterintelligence training, cash award, attendance at the trade show, temporary duty assignment, and denial of EEO counselor training) are subject to dismissal for failing to meet "ultimate employment decision" doctrine requirements. Plaintiff argues that Fifth Circuit jurisprudence suggests that the doctrine does not apply to claims of disparate treatment.
Plaintiff further argues that the record supports a prima facie case of disparate treatment and that the record is sufficient to create an issue of fact so as to avoid summary judgment on the issue.
Discussion
For the reasons that follow, Defendant's motion is GRANTED. Plaintiff's claims of pattern and practice discrimination and hostile work environment are DISMISSED. Further, Defendant is entitled to summary judgment on Plaintiff's other claims because Plaintiff has failed to create an issue of fact that discrimination played any part in Defendant's actions.
Pattern and Practice
Defendant asserts that a pattern and practice claim is inappropriate in this case, and that Plaintiff failed to timely exhaust a pattern and practice claim in the EEO investigation. Rec. Doc. 16 at 15. On the other hand, Plaintiff contends that Defendant engaged in a pattern and practice of harassment and application of unequal treatment toward Plaintiff as demonstrated by "grooming" non-Hispanic employees for certain jobs; granting special assignments and denying of cash awards and promotions to non-Hispanic and non-minority employees; and recommending non-Hispanic and non-minority workers for job openings. Comp. at XII.
A "pattern or practice" claim is not a separate and distinct cause of action under Title VII, but is simply another vehicle by which disparate treatment may be shown. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1219 (5th Cir. 1995). The pattern and practice method of proving discrimination is almost exclusively used in class actions, leaving individual plaintiffs confined to the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Celestine v. Petroleos de Venezuela, SA, 266 F.3d 343, 354 (5th Cir. 2001).
The McDonnell Douglas framework is discussedinfra.
The United States Supreme Court has emphasized the differences between an individual claim of disparate treatment and a pattern or practice claim of discrimination: "The inquiry regarding an individual's claim is the reason for a particular employment decision, while at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions but on a pattern of discriminatory decisionmaking." Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 367, 876 (1984) (quoting Teamsters v. United States, 431 U.S. 324, 360 n. 46 (1977)). The Supreme Court further delineated the difference between individual and pattern or practice claims when it explained that even if evidence existed that a plaintiff was denied a promotion on discriminatory grounds, such evidence would not necessarily justify additional inferences that such discrimination is typical of the employer's practices or that, an employer's practices are motivated by a policy of discrimination, which is the core of a pattern or practice claim. See Cooper, 467 U.S. at 876-877 (quoting General Telephone Co. v. Falcon, 457 U.S. 147, 157-158 (1982)). Where a pattern or practice claim requires establishing "by a preponderance of the evidence that `discrimination was the company's standard operating procedure-the regular rather than the unusual practice,'" Cooper, 467 U.S. 867, 876 (quotingTeamsters, 431 U.S. 324, 336), a plaintiff proceeding as an individual under Title VII "must prove the elements of a discriminatory . . . claim as set forth in McDonnell Douglas."Scarlett v. Seaboard Coastline Co., 676 F.2d 1043, 1053 (5th Cir. 1982) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Turning to the instant case, Plaintiff is proceeding against Defendant individually, and therefore he must prove a prima facie case of discrimination pursuant to the McDonnell Douglas framework. Plaintiff makes no more than unsupported allegations that Defendant's usual employment practices are motivated by a discriminatory policy. Plaintiff has simply failed to point to any evidence indicative of an unlawful discriminatory pattern or practice.
Furthermore, Plaintiff did not timely exhaust a pattern or practice claim with the EEO. Before bringing a Title VII suit, a federal employee must first exhaust his administrative remedies against his federal employer. Fitzgerald v. Sec'v, United States Deot. of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). Additionally, "this circuit allows the district court to consider only those grounds of complaint that were raised in the administrative process." Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir. 1979). The EEO investigation initially focused on whether Plaintiff was "subjected to a hostile working environment," Def. Exh. A. at Tab 3, and later focus was shifted to a disparate impact analysis. Pattern or practice discrimination was not alleged or investigated because Plaintiff was claiming individual discrimination. Nowhere in the administrative proceedings did Plaintiff allege facts that would have led the EEO to inquire whether Defendant had a pattern or practice of perpetuating discriminatory policies.
Plaintiff argues that he "testified as to the training he was not included in, the promotions and the fact that those promoted were groomed by his supervisors," Rec. Doc. 18 at 8, and that these allegations are indicative of an unlawful pattern or practice. To the contrary, these allegations are indicative of a disparate treatment claim made by an individual plaintiff, not of a class of similarly situated individuals challenging the discriminatory motives of a company's employment policies.
Because Plaintiff did not timely exhaust a pattern or practice claim, and fails to offer any evidence to create an issue of fact as to such a claim, Defendant's motion to dismiss and/or for summary judgment on the pattern or practice claim is GRANTED.
Hostile Work Environment
Defendant asserts that Plaintiff fails to present any evidence that would suffice to amount to a claim of hostile environment. Rec. Doc. 16, at 11. Defendant stresses that there is a notable absence of any allegation that Plaintiff suffered from statements or conduct which are related to Plaintiff's protected status, e.g., his race or age.Id. at 13. Defendant contends that nothing on the face of the entire record supports the theory of hostile environment, and therefore Plaintiff cannon show that his workplace was permeated with discrimination sufficient to trigger the protection provided by Title VII.
In opposition, Plaintiff argues that Defendant supported the creation of a hostile work environment for Plaintiff and other Hispanic employees through harassment, reprisal and retaliatory tactics, such as removing credentials, attempting to damage Plaintiff's career by having him investigated with regard to a brake tag he possessed, and the withholding of awards that Plaintiff claimed he earned. Rec. Doc. 1, at ¶ XVIb.
As noted above, Plaintiff curiously asserts in other parts of his opposition that his claims are not based on hostile work environment. Rec. Doc. 13, at 2.
Title VII of the Civil Rights Act of 1964 states that "it shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). In 1972 the Act was amended and waived the government's sovereign immunity for suits alleging discrimination in a government workplace on the basis of race, sex, religion, color or national origin, provided that the employee first timely exhausts his or her administrative remedies. Lewis v. Glickman, 1997 WL 276084, at *2 (E.D. La. 1997) (citing 42 U.S.C. § 2000e-16, 2000e-16(c)). The United States Supreme Court has held that sexual harassment which is so "severe or pervasive" that it alters the conditions of the victim's employment and creates an abusive working environment violates Title VII.Meritor Savings Bank. FSB v. Vinson, 477 U.S. 57, 67 (1986). The Supreme Court has further held that though racial and sexual harassment may take different forms, the standard governing the two types of claim are one and the same. See Faraaher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
In order to establish a prima facie case of racial harassment constituting hostile work environment, the plaintiff must show that (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment complained of was based on race; and (4) the harassment complained of affected a term, condition or privilege of employment. Celestine v. Petroleos De Venezuela, 266 F.3d 343, 353 (5th Cir. 2001). In determining whether a claim of hostile environment is actionable, the reviewing court must consider all the circumstances, including the frequency of the discriminatory conduct, the severity of the conduct, 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 787-788 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). The above inquiries serve to ensure that Title VII does not become a "a general civility code," Gncale v. Sundowner Offshore Services. Inc., 523 U.S. 75, 80 (1993), for it is well-settled that the mere utterance of "an ethnic or racial epithet which engenders offensive feelings in an employee" does not sufficiently alter the terms and conditions of employment in a way that violates Title VII. Faragher v. City of Boca Raton, 524 U.S. 775 at 787 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir 1971)). Thus, only when the workplace is "permeated with `discriminatory intimidation, ridicule and insult' that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment:" is Title VII violated. Nat* 1 Passenger Railroad Co. v. Morgan, 536 U.S. 101, 116 (2002) (quoting Harris v. Forklift Systems, Inc., 510 U.S. at 21).
Plaintiff belongs to a protected group because he is Hispanic and over the age of 40 bur he fails to satisfy none of the other requirements for a hostile environment claim. While Plaintiff conclusorily alleges that Defendant created a hostile work environment via harassment, reprisal, and retaliatory-tactics, he never specifically points to the specific conduct giving rise to these allegations. The record contains no evidence of any incident wherein Plaintiff was subjected to harassment because of his race or age,i.e., no verbal comments, threats, or disparaging remarks are alleged. In his original EEO complaint, Plaintiff alleged that one "slur" was made about him by his supervisor. Def. Exh. A at Tab 4, page 45, line 161. This "slur" consisted of Plaintiff's supervisor stating that Plaintiff "didn't have communications or leadership skills" and that [the supervisor] didn't "get paid enough to hear [Plaintiff's] complaints"; also that when Plaintiff was in a supervisory position he could do it how he wanted to but at the time, it would be done the supervisor's way.Id. While this may well be a comment that was offensive to Plaintiff, there is no indication that such statement was based on his membership in a protected group. Further, Plaintiff does not establish that the various actions allegedly taken against him had any relation to his race or age. Further, these statements do not rise to the "severe and pervasive" level of discrimination mandated by Meritor. Therefore, Defendant's motion to dismiss and/or for summary judgment as to Plaintiff's claim of hostile environment is GRANTED.
The Court notes that the Supreme Court and the Fifth Circuit have not directly decided whether the hostile environment doctrine may be extended to cases governed by the Age Discrimination in Employment Act (ADEA), though other courts which have addressed the issue have imported the hostile environment requirements for sexual and racial harassment to ADEA claims, see, e.g. Lacher v. West, 147 F. Supp.2d 538 (N.D. Tex. 2001). Assuming arguendo that hostile environment is an applicable framework for the analysis of age discrimination, Plaintiff nevertheless fails to produce evidence which would allow him to pursue a viable claim.
Other Claims
Summary judgment is appropriate if the record discloses "that there is no genuine issue as to any material fact and. that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Proc. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party, or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niaara Mach. Tool Works. Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby. Inc. 477 U.S. 242, 249 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. Id. (citing Celotex, 477 U.S. at 325). However, the mere argued existence of a factual dispute does net defeat an otherwise properly supported motion. Id. In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the nonmoving party. Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brencettsv, 158 F.3d 908, 911 (5th Cir. 1998)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's claim. Id. (citing Celotex, 477 U.S. at 325). If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The burden then shifts to the nonmoving party, who may not rest upon the pleadings, but must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
In McDonnell Douglas Corp. v. Green, 411 U.S. 732 (1973), the United States Supreme Court established a framework for the allocation of burdens and order of presentations of proof in an employment discrimination claim where direct evidence of discrimination does not exist. The complaining party carries the initial burden under Title VII of establishing a prima facie case that the employer discriminated against him because of his race, color, religion, sex, or national origin. This burden is not onerous; in order to meet this standard, a plaintiff must show by a preponderance of the evidence that he applied for an available position for which he was qualified but was rejected under circumstances which give rise to discrimination. Tex. Dep't of Comm'y Affairs v. Burdine, 450 U.S. 248, 253 (1981). The establishment of a prima facie case in effect creates a presumption that the defendant unlawfully discriminated against the plaintiff. St. Mary's Honor Ctr. v. Kicks, 509 U.S. 502, 506 (1993). The prima facie case is established when the plaintiff shows that (1) he belongs to a protected group; (2) that he was qualified for the position or emolument sought; (3) that he suffered an adverse employment action; and (4) he was replaced by someone outside the protected class. Price v. Federal Express Core., 283 F.3d 715 (5th Cir. 2002) (citing Hicks, 509 U.S. at 506). If the plaintiff successfully meets this requirement, the burden of production then shifts to the employer to articulate some legitimate and nondiscriminatory reason for the plaintiff's rejection. McDonnell Douglas, 411 U.S. at 802.
A plaintiff's age may also grant him protected status under the ADEA. The Supreme Court assumed arguendo that the McDonnell Douglas framework was equally applicable to claims of age discrimination under the ADEA. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142 (2000). The Fifth Circuit Court of Appeals has also applied the McDonnell Douglas framework to claims of age discrimination. See, e.g. West v. Nabors Drilling USA. Inc., 330 F.3d 379 (5th Cir. 2003); Brown v. CSC Logic. Inc., 82 F.3d 551 (5th Cir. 1996).
The defendant is not required to persuade the court that it was actually motivated by the proffered reasons, but it must clearly set forth through the introduction of admissible evidence, reasons why the plaintiff was rejected or someone else was preferred.See Burdine, 450 U.S. at 255. If the defendant carries this burden, the presumption of discrimination is rebutted. The plaintiff retains the ultimate burden of persuasion, so he must then have an opportunity to demonstrate that defendant's proffered reasons for plaintiff's rejection are pretext. Me Donnell Douglas 411 U.S. at 304. The plaintiff may succeed in shouldering his ultimate burden that he has been the victim of intentional discrimination either by directly persuading the court that a discriminatory reason more likely than not motivated the defendant or indirectly by showing that the defendant's stated reasons for rejection is unworthy of credence. Burdine, 450 U.S. at 257 (citing Me Donnell Douglas. 411 U.S. at 804-805). 1. Denial of Attendance at Trade Seminar
Defendant argues that Plaintiff's claims are not cognizable under Title VII because Title VII was intended to address "ultimate employment decisions," such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Dollis v. Rubin, 77 F.3d 777, 781-782 (5th Cir. 1995); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Claims of denial of training opportunities do not constitute an adverse employment action when the training is peripheral to plaintiff's main duties and plaintiff "produces no significant evidence that a denial of such training would `tend to effect' employment status or benefits. Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 406-407 (5th Cir. 1999).
Because Plaintiff's claims are framed such that they relate to a promotion and, in the case of denial of training opportunities, loss of increased opportunity for promotion, the Court will assume arguendo that the actions complained of constitute ultimate employment decisions.
Plaintiff asserts that Defendant discriminated against him when he was denied the opportunity to attend a seminar on Louisiana trade. Exh. A at Tab 3, pp 32. However, Plaintiff acknowledged that he was later allowed to attend the seminar after another participant became ill. Exh. B at 7. Defendant paid for the full cost of the seminar. Thus, Plaintiff has failed to establish a prima facie case of discrimination on this claim.
2. Denial of Cash Award
Plaintiff's next claim involves the denial of a one-time cash award bonus. Of the six awards consisting of $1000, three recipients were Hispanic and four were over the age of 40. Def. Exh. A at Tab 4, pp. 64, 65. Of the 24 smaller awards made, seven recipients were Hispanic and fifteen were older than 40 years of age. Id. Thus, Plaintiff fails to establish a prima facie case of discrimination under theMcDonnell Douglas framework.
3. Denial of EEO Counselor Training
Plaintiff's third remaining claim involves his alleged denial of training to become an EEO counselor. Luis Rivera, another Hispanic male over the age of 40, was sent to the training. Def. Exh. A at Tab 34, pp. 281-82. Thus, Plaintiff's claim fails to satisfy the prima facie requirement that he was passed over for someone outside of his protected class. 4. Denial of Temporary Duty Assignments
Plaintiff claims that he was discriminated against on the basis of race and age when he was denied Temporary Duty Assignments (TDYs). Plaintiff claims he was passed over for such assignments despite the fact that he was "first on the roster" for the period spanning from September 1999 to February 2001. Rec. Doc. 18 at IS. Assuming arguendo that Plaintiff can establish a prima facie case regarding this claim, Defendant offered a legitimate and nondiscriminatory reason for denying Plaintiff such opportunities. Defendant asserts that after completing a TDY in Colombia, Plaintiff was under investigation by the Customs Office of Internal Affairs due to alleged misconduct while on assignment. Def. Exh. C. Plaintiff offers no evidence to suggest that Defendant's proffered reasons were a pretext, in other words, that the real reason was Plaintiff's race and/or age. Thus, Defendant is entitled to summary judgement on this claim.
5. Denial of Counterintelligence Training
On March 27, 2000, Plaintiff submitted a request to attend a counterintelligence class held at the Federal Law Enforcement Training Center in Glynco, Georgia. Exh. A at Tab 4, p. 59. Plaintiff's request was denied, and he asserts that the denial resulted in limiting his chance to develop his analytical skills thus diminishing his chances for promotion. Rec. Doc. 18 at p. 17. The majority of attendees were from the Albuquerque field office, the two exceptions to which were Hispanic males. The supervisor who denied Plaintiff's request explained that the training in question had nothing to do with Plaintiff's position at the time or in the foreseeable future, and indeed, the focus of the training was "to counteract southwestern border [Mexico] infiltration," a task primarily handled by the Albuquerque office, whereas Plaintiff primarily worked in the field of maritime. Def. Exh. A at Tab 8, pp. 85-87; Tab 7, pp. 74-77; Exh. C. at p. 2.
Assuming arguendo that Plaintiff can establish a prima facie case regarding this claim, Defendant offered a legitimate and nondiscriminatory reason for denying Plaintiff such opportunities. Plaintiff offers no evidence to suggest that Defendant's proffered reasons were a pretext, in other words, that the real reason was Plaintiff's race and/or age. Thus, Defendant is entitled to summary judgement on this claim.
6. Denial of 90 Day Detail as Acting Chief
A memorandum to all TIC employees dated June 15, 2001, stated that a Mr. Cunningham would be serving as Acting Chief of Intelligence Support, a GS-13 position, for a 90 day term since the position had been recently vacated. Plaintiff claims that this decision was made without any indication of the criteria utilized in making the selection, and that Plaintiff was excluded from consideration despite the fact that both Plaintiff and Mr. Cunningham held GS-12 positions, thus establishing another example of discrimination. Rec. Doc. 1 at XIV. On this claim, Plaintiff establishes a prima facie case of discrimination because he is a member of a protected class yet he was denied the opportunity in favor of an individual outside of the protected group. However, Defendant advances a legitimate and nondiscriminatory reason for its action. The Chief of Intelligence Support is a GS-13 position which supervises a unit that controls automated systems, software, and equipment. The three areas of experience necessary to qualify for the position are supervision; systems, software and equipment expertise; and skill in budget and logistics. Def. Exh. A at Tab 7, p. 84. The backgrounds of all of the GS-12 and GS-13 employees in the unit were reviewed, and Mr. Cunningham was selected because his credentials in the area of systems, software and equipment were "impeccable" and none of the other employees were as highly qualified. Def. Exh. A at Tab 7, pp. 83-84. Plaintiff provides no evidence to demonstrate that he possesses any of the special skills required, or that he is better qualified than Mr. Cunningham. Thus, Plaintiff has failed to create an issue of fact as to whether Defendant's preferred reasons are pretextual. Defendant is entitled to summary judgment on this claim. 7. Denial of Promotion to GS-13
Finally, Plaintiff contends that he was unlawfully discriminated against when he was denied a promotion to the GS-13 position of Intelligence Research Specialist in June 2000 in favor of seven younger white males. Plaintiff claims that he was equally as qualified and was as eligible for the promotion as those who were promoted by virtue of working with the promoted individuals in GS-12 positions. Rec. Doc. 18 at p. 22. There was no application process since the promotion was a non-competitive action, but instead a questionnaire from Customs Headquarters Resources Management was distributed to supervisors. The questionnaire contained inquiries regarding which of the supervisor's GS-12 employees had performed work which was "strongly analytical" in nature, including any special projects, initiatives, or areas of responsibility. Def. Exh. A, Tabs 7, 8. Customs Headquarters ultimately decided which employees were granted promotions. Id. at Tabs 5, 5. Despite the fact that the seven employees who were promoted were white, their ages ranged from 33 to 47. Def. Exh. A at Tab 27, p. 158. Two employees from Plaintiff's work group were promoted, both non-Hispanic, and both younger than Plaintiff but one was 45 years of age. The supervisor stated that these two employees had shown initiative in developing special projects or procedures. Def. Exh. A at Tab 8, p. 88.
Plaintiff does not offer any evidence to establish that the reasons given for his denial of a promotion are pretextual. Plaintiff offers no evidence to show that he had qualifications which were equal to or superior to those employees who were selected for promotion. Plaintiff has therefore failed to create an issue of fact on this claim.
In sum, the evidence of record creates no issue of fact as to whether any of the complained of actions resulted from unlawful employment: discrimination.
Accordingly;
IT IS ORDERED that the Motion to Dismiss and/or for Summary Judgment (Rec. Doc. 16) filed by Defendant Department of Treasury should be and is hereby GRANTED. Plaintiff's complaint is DISMISSED WITH PREJUDICE.