Summary
In Lawrence, the court recognized that "there might be circumstances under which this general rule should not be applied....), citing Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001), in support.
Summary of this case from Smyth-Riding v. Sci. & Eng'g Servs., Inc.Opinion
Civil No. JFM-07-3455.
October 17, 2008
Dear Counsel:
I have reviewed the memoranda submitted in connection with defendant's motion to dismiss and for summary judgment. The motion is granted.
My schedule does not permit me to write an extensive opinion. Instead, I will briefly summarize the reasons for my ruling in this letter. Please be assured, however, that I have carefully considered all of the arguments you have made.
Plaintiff's Claim Under The Uniformed Services Employment andReemployment Rights Act of 1994 ("USERRA")
Defendant has moved to dismiss this claim on the ground that the USERRA does not provide federal employees a private right of action to bring suit in federal district court. Rather, federal employees alleging a USERRA violation must assert their claims before the Merit System Protection Board. Appeals from the Board are properly taken to the United States Court of Appeals for the Federal Circuit.
Plaintiff does not dispute the contentions made by defendant and consents to the dismissal of his USERRA claim.
Plaintiff's Claims Under the First and Fourteenth Amendments
Plaintiff suggests that he is invoking this Court's jurisdiction under the First and Fourteenth amendments of the United States Constitution. If he is asserting claims under these constitutional provisions, the claims must be dismissed because Title VII and the ADEA provide the exclusive jurisdictional basis for claims of discrimination in federal employment. See Brown v. General Services Administration, 425 U.S. 820 (1976); Taylor v. Brown, 928 F. Supp. 568, 573 (D. Md. 1995), aff'd, 86 F.3d 1152 (4th Cir. 1996); Zombro v. Baltimore City Dep't, 868 F.2d 1364, 1368-69 (4th Cir. 1988).
Plaintiff's Denial of Bonus Claims Under Title VII and the ADEA
In order to state a prima facie case of discrimination under Title VII or the ADEA, a plaintiff must establish that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; (3) he was performing his job satisfactorily at the time of the adverse employment action; and (4) similarly-situated employees outside his protected class received more favorable treatment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); White v. BFI Waste Services, LLC, 375 F.3d 288, 295 (4th Cir. 2004) (Title VII); Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004) (en banc) (ADEA).
Under the ADEA, the fourth prong requires only that the similarly-situated employees be substantially younger than the plaintiff, not necessarily outside the protected class. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996).
As a general rule, the denial of a bonus does not constitute an "adverse employment action" — the second element of a plaintiff's prima facie case. While there might be circumstances under which this general rule should not be applied, cf. Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001), the record here does not demonstrate that any such circumstances exist. To the contrary, Dr. Baker's ranking of plaintiff as second-to-last among his coworkers was the same ranking that plaintiff received from Dr. Baker's predecessors. That ranking alone provides a legitimate non-discriminatory basis for not awarding plaintiff a bonus. The mere fact that in prior years plaintiff did receive a bonus despite his low ranking does not preclude a new supervisor, such as Dr. Baker, from being stricter in his bonus decisions. Moreover, Dr. Baker's decision not to award a bonus to plaintiff was approved by Mr. Havell — who plaintiff specifically stated did not discriminate against him — establishes the nondiscriminatory nature of the bonus decision.
Plaintiff argues that before ruling upon defendant's motion for summary judgment as to plaintiff's denial of bonus and hostile work environment claims, he should be entitled to take discovery. However, plaintiff has not submitted an affidavit under Fed.R.Civ.P. 56(f) stating any reasons why he cannot present facts essential to justify his opposition to defendant's motion. Moreover, he has not suggested that any of the facts upon which my ruling is based are controverted. I also note that plaintiff unsuccessfully pursued administrative remedies for his claims and that before a hearing was held before an EEOC Administrative Judge, the parties engaged in discovery.
Plaintiff's Hostile Work Environment Claim
To prove a prima facie hostile work environment claim under Title VII, a plaintiff must demonstrate that: (1) he experienced unwelcome harassment; (2) the harassment was based on the plaintiff's membership in a protected class; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer. See Baquir v. Nicholson, 434 F.3d 733, 746 (4th Cir. 2006) (citing Bass v. E.I. Dupont De Nemours Co., 324 F.3d 761, 765 (4th Cir. 2003)), cert. denied, 127 S. Ct. 659 (2006). The standard for proving an abusive work environment is very high. Porter v. Nat'l. Con-Serv, Inc., 51 F. Supp. 2d 656, 659 (D. Md. 1998).
The first element of a hostile workplace claim is whether the harassment was unwelcome. Lawrence's hostile work environment claim is based on three comments made by his supervisors, Starkenberg and Baker. Lawrence claims that immediately after Starkenberg made one such comment, Lawrence confronted him and informed him that he found the comment offensive. Therefore, assuming the truth of this evidence and viewing the inferences therefrom in the light most favorable to the plaintiff, Lawrence is able to show that the harassment was unwelcome.
The second element requires that the harassment be based on the plaintiff's membership in a protected class. To establish that the harassment was motivated by racial animus, the plaintiff "must show that `but for' his race . . ., he would not have been the victim of the alleged discrimination." Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998).
Lawrence claims that the statements by Starkenberg were made in reference to Lawrence's national origin. These comments include "who knows how many terrorists are working among us?" and "they (USA) should nuke the whole area." The first comment was made by Starkenberg to another coworker in an office neighboring Lawrence's office. Lawrence does not allege that the first comment was directed at him or was even intended to be heard by him. When Lawrence confronted Starkenberg about this comment, Starkenberg appeared "stunned" that Lawrence had heard him.
"`[S]econd-hand' harassment, although relevant, [is] less objectionable than harassment directed at the plaintiff." Jennings v. Univ. of N.C., 444 F.3d 255, 272 (4th Cir. 2006) (internal citations omitted; alteration in original). See also Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 754 (4th Cir. 1996) (rejecting plaintiff's sexual harassment hostile work environment claim in which "several of the incidents upon which [the plaintiff] relies occurred in group settings, and only [the plaintiff] subjectively perceives them to have been directed solely at him"); White v. Federal Express Corp., 939 F.2d 157, 161 (4th Cir. 1991) (per curiam) (rejecting plaintiff's race-based hostile work environment claim where it rested on a racially offensive exchange not directed at plaintiff). However, because Starkenberg was aware of Lawrence's national origin and because there were not many other individuals from Middle Eastern or Islamic nations working in the Explosive Technology Branch, a reasonable jury might find that this comment made shortly after September 11, 2001 was based on Lawrence's national origin.
Even if this is so, Lawrence's claim does not survive summary judgment because it fails to satisfy the third element, which requires that the harassment be "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal quotation marks omitted; alteration in original). The Supreme Court has made clear that the "conduct must be extreme" to be actionable, Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), and that the "standards for judging hostility" must be "sufficiently demanding to ensure that Title VII does not become a general civility code." Id. (internal citations omitted). The severe or pervasive element of a hostile work environment claim "has both subjective and objective components." Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333 (4th Cir. 2003) (en banc).
The conduct alleged by Lawrence is neither severe nor pervasive enough to amount to a hostile work environment. The three isolated comments allegedly made by Baker and Starkenberg occurred over the span of approximately twelve months from September 11, 2001. The statement made by Starkenberg shortly after September 11, 2001, "Who knows how many terrorists are working among us?" was not made directly to Lawrence, but was overheard by Lawrence from another office. (Compl. 3; Pl.'s Opp'n, Ex. A at 62.) Starkenberg's other statement, "They (USA) should nuke the whole area," was made approximately a year later and Starkenberg said immediately after the comment that he did not actually mean it. (Compl. 3; Pl.'s Opp'n, Ex. A at 68.) Baker's comment made sometime between August and October 2002, "I thought they came to arrest you," (Compl. 3), does not speak to any race or national origin except for Lawrence's subjective assumption that the comment was related to his Middle Eastern descent.
Even assuming that Lawrence subjectively perceived his work environment as hostile or abusive due to these comments, his claim cannot withstand summary judgment because a reasonable person likely would not have found his work environment to be hostile within the meaning of Title VII. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In determining whether a jury could find that a work environment was objectively hostile or abusive to "a reasonable person in the plaintiff's position," Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 82 (1998), the court must consider all 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." Harris, 510 U.S. at 23.
Plaintiff attempts to analogize the present case to EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 310 (4th Cir. 2008), in which the court reversed the district court's summary judgment ruling and found that the religious harassment against a lone Muslim employee in the wake of September 11 was severe and pervasive enough to warrant a trial. In Sunbelt Rentals, the court recognized that "[i]n the time immediately following September 11th, religious tensions ran higher in much of the country, and Muslims were sometimes viewed through the prism of 9/11, rather than as the individuals they were." Id. at 16. In contrast to the present case, however, the plaintiff in Sunbelt Rentals was subjected to "repeated comments that disparaged both him and his faith," 521 F.3d at 316, and was repeatedly referred to by coworkers, including a supervisor, as "Taliban" and "towel head." Id. The three isolated comments alleged by Lawrence (inappropriate though they were), two of which may not have even been racially derogatory, are in no way analogous to the severe and pervasive harassment suffered by the plaintiff in Sunbelt Rentals.
The fourth element of a prima facie hostile work environment claim requires that the employer had constructive or actual knowledge of the hostile environment but did not take prompt or remedial action. Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983). Because Lawrence has failed to demonstrate that the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere, a court need not reach the issue of whether knowledge can be imputed to the Defendant. However, Lawrence's claim fails on this element as well. Although Lawrence alleges that he confronted Starkenberg after one of the comments, it does not appear that Lawrence filed any written complaints, took any action to inform his employer about the other comments, or sought any form of remedial action from his employer.
A separate order reflecting my rulings is being entered herewith.
ORDER
For the reasons stated in the accompanying memorandum to counsel, it is, this 17th day of October 2008
ORDERED
1. Defendant's motion to dismiss and for summary judgment is granted;
2. Plaintiff's claim under the USERRA is dismissed;
3. Any claims being asserted by plaintiff under the U.S. Constitution are dismissed;
4. Summary judgment is entered in favor of defendant against plaintiff as to the plaintiff's claims under Title VII and the ADEA based upon the denial of a bonus; and
4. Summary judgment is entered in favor of defendant against plaintiff as to the plaintiff's hostile work environment claim.