Opinion
CIVIL ACTION NUMBER: 02-947, SECTION: "A" (5)
September 17, 2003
ORDER AND REASONS
Presently before the Court is defendant's motion to dismiss and/or for summary judgment and plaintiff's opposition thereto. (Rec. docs. 16, 22, 24, 26, 28). For the reasons that follow, it is ordered that defendant's motion is granted.
Carmen Leon, plaintiff herein, is a female of Hispanic origin. She is employed by the United States Customs Service in the Tactical Intelligence Center ("TIC") located at the John C. Stennis Space Center in Bay St. Louis, Mississippi. Plaintiff, who had no background in intelligence work, began working there in 1986 as a linguist.
In 1995, Timothy Burke was named Director of the TIC. At the time he took the position, the TIC had four field offices in addition to the Stennis Space Center. These offices employed approximately 75 people. When Burke began his job as Director, plaintiff was a GS-0132-13 Supervisory Intelligence Operations Specialist, holding the position of Chief, Operations Unit. (Rec. doc. 22, ex. M). She was responsible for a group that translated Spanish language radio intercepts into English. Plaintiff shared her position with Luis Rivera, an Hispanic male. (Rec. doc. 22, ex. M).
In 1996, Jay Corcoran, the Executive Director of the Customs Intelligence Division, asked Burke to consolidate all offices into two and to reduce the number of supervisors from seven to four. Additionally, the offices were now to employ only forty people. Burke began the process of consolidation in 1997. He first reassigned three of the seven GS-13 supervisors into non-supervisory positions as Senior Intelligence Specialists. Of these supervisors, two were Caucasian males and one was an Hispanic male. All three maintained the same pay grade. (Rec. doc. 16, Ex. M). Plaintiff was reassigned to the position of Chief, Analytical Unit. The Analytical Unit was not to become functional until a Special Compartmented Information Facility ("SCIF") was built, so plaintiff hosted conferences and secured money from other agencies in order to construct the SCIF. (Rec. doc. 16, ex. A, tab 2).
After the SCIF was constructed and became operational in 1998, Leon began working full time as Chief, Analytical Unit. Plaintiff had little experience in analysis, and she soon began complaining to Burke that she was unsure of her supervision of the employees whose work she was overseeing. (Rec. doc. 16, ex. A, tab 4).
In March of 1999, Burke nominated plaintiff to attend a management training program, the Executive Potential Program ("EPP"), a year-long seminar geared toward turning public service employees into effective leaders. (Rec. doc. 16, ex. A, tab 4). EPP participants attend classes in Washington, D.C. for the program's duration. (Rec. doc. 16, Ex. L). As part of her EPP training, plaintiff opted to study program development and management projects rather than following a supervisory-related track. (Rec. doc. 22, Ex. M). Although the supervisory-related track program was originally the only way to be promoted to a GS-14 level, Customs Headquarters later created a second promotion track based on program management. (Rec. doc. 16, Ex. C). Mirroring Customs Headquarters, Burke created similar program management positions within the TIC, which were announced in June of 1999. (Rec. doc. 16, ex. A, tab 9). Plaintiff, along with the other EPP participant, was laterally reassigned to one of the four new program manager positions within the TIC. (Rec. doc. 22, ex. M). After the lateral transfer, plaintiff's official title changed to Intelligence Operations Specialist, Program Manager. As an Intelligence Operations Specialist, plaintiff acted as a liaison between the TIC and other intelligence agencies. She was also responsible for long and short range planning. (Rec. doc. 16, ex. A, tab 9). The actual paperwork that accomplished this change in title was not issued until April 9, 2000. (Rec. doc. 16, ex. A, tab 8). While her job title and duties changed, plaintiff remained a GS-13 employee and did not lose any pay or benefits. (Rec. doc. 16, ex. C). The only change was that her supervisory duties were replaced by program management duties. (Rec. doc. 16, ex. M).
Subsequent to her reassignment, plaintiff was informed by Burke that there was no Position Description ("PD") for her position because it was a new one. (Rec. doc. 24, Ex. 1). Burke did inform her, however, that the duties for her new job were encompassed by the PD for a Senior Intelligence Specialist. Plaintiff had previously supervised employees in this position so she was informed that such a PD was "in her filing cabinet." (Rec. doc. 22, ex. M). Burke also advised plaintiff to take the initiative and develop her own PD, using the knowledge she had gained at EPP. (Rec. doc. 22, ex. M).
Upon finishing the EPP in March of 2000, plaintiff was asked by the Navy to continue her developmental assignment with the Naval Oceanographic Office. Thus, for the remainder of FY 2000, plaintiff was out of the TIC on a temporary duty assignment ("TDY"). (Rec. doc. 16, ex. C).
During FY 2000, Burke recommended that thirteen Intelligence Operations Specialists at the TIC receive Special Act awards. (Rec. doc. 16, ex. A, tab 11). Twelve of these Intelligence Operations Specialists were male, and there was an even distribution between Hispanics and non-Hispanics. (Rec. doc. 16, ex. A, tab 11). Plaintiff and four others — one Hispanic female, one non-Hispanic female, one Hispanic male, and one non-Hispanic male — did not receive such awards. (Rec. doc. 16, ex. A, tab 11). Plaintiff did receive a time-off award for FY 2000 in recognition of a letter of commendation she had received from the Navy for her work within the Naval Oceanographic Office. (Rec. doc. 24, ex. 4). This award was for $891, which was more than the amount received by the other EPP participant, a Caucasian male, who received a $500 cash award. (Rec. doc. 22, ex. M).
Beginning in June of 1999, plaintiff's use of the SCIF swipe card, which gave her automatic access to the SCIF, was taken away. (Rec. doc. 22, ex. M). Her access was restored, however, after the events of September 11, 2001 when plaintiff was given a counter-terrorism assignment which required automatic access. (Rec. doc. 22, ex. M). Though for a period of time plaintiff did not have swipe card access, she still had "knock-and-enter" access. (Rec. doc. 22, ex. M). In February of 2000, plaintiff turned in her laptop computer that she had been given when she was Chief of the Analysis Unit. The parties disagree as to whether plaintiff voluntarily relinquished control of the laptop or whether it was taken from her. (Rec. doc. 16, ex. A, tab 2). Finally, in June of 2000, plaintiff's pager was also taken from her because the service contract had expired. (Rec. doc. 22, ex. M; Rec. doc. 24, ex. 1).
Plaintiff contacted an EEO Counselor on August 11, 2000 and filed her first formal complaint of discrimination on October 19, 2000. (Rec. doc. 24, ex. 2). Plaintiff was subsequently sent a letter dated November 2, 2000 from the Agency's Regional Complaint Center ("RCC"). The letter indicated that the RCC had reviewed her allegations of discrimination and questioned whether all issues were brought forward in a timely manner. (Rec. doc. 16, ex. B). The RCC invited plaintiff to clarify the issues in her complaint and to explain why she failed to contact the EEO Counselor in a timely fashion. The RCC also asked her to clarify the "promotions" issue raised in her charge because she did not refer to any particular promotion opportunities for which she had not been selected. (Rec. doc. 16, ex. B).
Plaintiff responded by letter dated November 13, 2000, alleging that the conduct in her complaint had been "continuous." The main focus of her complaint, however, was that she had been reassigned. (Rec. doc. 16, ex. C). Additionally, plaintiff submitted vacancy announcements for which she had not been selected as proof of promotion opportunities that were denied to her. However, these vacancy announcements were posted more than 45 days prior to the date of her first contact with the EEO counselor. (Rec. doc. 16, ex. C). In response, the RCC, in a letter dated December 6, 2000, accepted only two issues for consideration: lack of a PD for her position as an Intelligence Operations Specialist and no FY-2000 cash award. All other allegations were rejected as either untimely or premature in their exhaustion. (Rec. doc. 24, ex. 3). Although plaintiff was invited to advise the agency if she disagreed with its characterization of the issues, she failed to do so.
Plaintiff pursued the non-promotion claim for a vacancy which arose after her first EEO complaint in a second complaint that she lodged on December 20, 2000. (Rec. doc. 16, ex. D). In that complaint, she alleged that she had not been promoted to a Supervisory Intelligence Research Specialist (GS-14) because of her gender and national origin. (Rec. doc. 16, ex. D). On May 7, 2001, plaintiff withdrew that non-promotion complaint. (Rec. doc. 16, ex. D).
In a third EEO complaint that was filed on April 10, 2001, plaintiff pursued another non-promotion claim for a vacancy for Supervisory Intelligence Research Specialist. (Rec. doc. 24, ex. K; Rec. doc. 16, ex. F). This vacancy arose almost a year prior to her first EEO complaint. Plaintiff knew that she had not been selected for this position at the time she filed her second EEO complaint. Again, plaintiff claimed she was not selected because of her gender and national origin. (Rec. doc. 16, ex. F). Just as she had done with second EEO complaint, plaintiff unconditionally withdrew her third complaint on May 7, 2001. (Rec. doc. 16, ex. G).
Plaintiff's fourth and final EEO complaint concerned a December 2001 incident in which she was denied four hours of on-the-clock time to meet with her attorney to prepare EEO complaints. This time, plaintiff not only asserted gender and national origin discrimination but retaliation as well. (Rec. doc. 16, Ex. J). This complaint was dated March 4, 2002. (Id.). On May 8, 2002, Leon and the Agency reached an amicable resolution of this complaint and plaintiff agreed to withdraw it. (Rec. doc. 16, ex. K).
Thus, three of plaintiff's four EEO complaints were withdrawn by her. As to the complaint that was not withdrawn, only two claims were accepted as timely and were fully processed, with the Final Agency Decision being issued on January 3, 2002. Plaintiff filed this lawsuit on March 28, 2002. (Rec. doc. 1). In her complaint, plaintiff alleges that she was demoted in June of 1999, rather than merely being reassigned, when her position as Chief of Analysis was taken away from her and was given to a Caucasian male. She also alleges that she was overlooked for a promotion opportunity and was never given a PD for the Intelligence Operations Specialist position. This lack of a PD, along with the performance award denial, were the only claims accepted and fully processed by the Agency. Plaintiff also alleges a pattern and practice of discrimination, asserting affronts to her dignity under the category of a "hostile environment" and her complaints about the denial of official time to work on her EEO matter.
DISCUSSION
I. MOTION TO DISMISS AND SUMMARY JUDGMENT STANDARDS
In ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept all of the allegations set forth in a plaintiff's complaint as true and must view them in a light most favorable to her. American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). Dismissal under-Rule 12(b)(6) is proper only if it appears that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. (quoting Baton Rouge Building and Construction Trades Council AFL-CIO v. Jacobs Construction, Inc., 804 F.2d 879, 881 (5th Cir. 1986)).
As for the alternative relief requested by defendant, summary judgment is appropriate under Rule 56(c) when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). Although all inferences drawn from the evidence are to be resolved in the non-movant's favor, she may not rest on the mere allegations or denials in her pleadings. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). Rather, once a properly supported motion for summary judgment is made, the burden shifts to the non-movant who bears the burden of proof at trial to show with "significant probative" evidence that there exists a triable factual issue. Kansa Reinsurance Co., Ltd. v. Congressional Mortgage Corp. of Texas, 20 F.3d 1362, 1371 (5th Cir. 1994). And in employment discrimination cases, summary judgment is not precluded merely because the plaintiff alleges that the defendant was motivated by discriminatory intent. Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).
II. WITHDRAWN CLAIMS
Federal law mandates that all personnel actions affecting federal employees ". . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16 (a). The statute provides for a detailed administrative enforcement mechanism and permits an aggrieved employee to file a civil action in federal district court, provided that the employee has first met certain requirements regarding exhaustion of administrative remedies. Loeffler v. Frank, 486 U.S. 549, 558-59, 108 S.Ct. 1965, 1971 (1988). Under Fifth Circuit caselaw, there are two requirements for filing a Title VII action in federal court. First, the complaint must be filed with the court within the time prescribed by § 2000e-16(c). Second, the plaintiff's administrative remedies must first be exhausted. If these two requirements are not met, then the court lacks subject matter jurisdiction over the complaint.Barnes v. Levitt, 118 F.3d 404, 408-09 (5th Cir. 1997), cert.denied, 523 U.S. 1136, 118 S.Ct. 1839 (1998); Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990). If the agency does not reach the merits of a charge of discrimination because the complainant fails to comply with duly-promulgated administrative procedures, the court should not reach the merits either. Johnson v. Bergland, 614 F.2d 415, 417-18 (5th Cir. 1980). Plaintiff herein alleges several incidents of purported discrimination that the court lacks jurisdiction to consider on the merits. Plaintiff pursued a non-promotion claim for a vacancy for a Supervisory Intelligence Research Specialist in her second and third EEO complaints. However, she unconditionally withdrew those complaints on May 7, 2001. Plaintiff's fourth EEO complaint concerned a December 2001 incident in which she was denied four hours of on-the-clock time to meet with her attorney. On May 8, 2002, plaintiff and the Agency reached an amicable resolution of this complaint and plaintiff agreed to withdraw it. Without full and proper exhaustion of these claims, the Court lacks jurisdiction to consider them and they must be dismissed.
III. UNTIMELY CLAIMS
Before filing a formal complaint with the particular agency, an aggrieved individual must file an informal complaint with an EEO counselor within 45 days of the alleged act of discrimination. 29 C.F.R. § 1614.105 (a)(1). This time limit serves to notify the agency of an allegation of discrimination and to prevent a plaintiff from sitting on her rights and then deciding to file a complaint over something that occurred long ago. Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). Two of the plaintiff's claims of discrimination occurred more than 45 days before August 11, 2000, the day of her first contact with an EEO counselor. The first of those is the alleged lateral reassignment/demotion to Intelligence Operations Specialist in June of 1999. The second untimely claim is the loss of her laptop computer in February 2000 and the loss of her pager in June 2000. In order to maintain a Title VII discrimination claim, a plaintiff must lodge a charge of discrimination with the appropriate agency within 45 days of the alleged discriminatory act. The failure to do so ordinarily operates as a bar to suit. United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 1887 n. 4 (1977). Plaintiff was obviously aware of her reassignment on June 18, 1999. She was also aware of the loss of her laptop computer and pager well in excess of the forty-five day period prior to August 11, 2000, the first contact she had with an EEO officer. These claims are untimely and must be dismissed as such unless saved by one of the two doctrines discussed below.
A. CONTINUING VIOLATION DOCTRINE
Plaintiff may avoid the effects of the above-noted limitations periods in two ways. The first of those, known as the continuing violation doctrine, arises "[w]here the unlawful employment practice manifests itself over time, rather than as a series of discrete acts, [such that] the violation may be found to be a continuing one that "relieves a plaintiff who makes such a claim from the burden of proving that the entire violation occurred within the actionable period.'" Abrams v. Baylor College of Medicine, 805 F.2d 528, 532-33 (5th Cir. 1986) (citing Berry v. Bd. of Supervisors, 715 F.2d 971, 979 (5th Cir. 1983)). The plaintiff still must show that at least one incident of discrimination occurred within the 45 day period. See Waltman v. International Paper Co., 875 F.2d 468, 474-75 (5th Cir. 1989). Thus, if the discrimination alleged is simply a single act, then the period of limitations begins to run at the time of the act; however, under the continuing violation theory, if the Title VII violation does not occur at a single moment, but is rather a series of separate acts, and if the same alleged violation was committed at the time of each act, then the period of limitation begins anew with each violation. Perez v. Laredo Junior College, 706 F.2d 731, 733 (5th Cir. 1983),cert. denied, 464 U.S. 1042, 104 S.Ct. 708 (1984). Similarly, if the Title VII violation occurs as part of a continuing policy which is itself illegal, then an action aimed at the company's enforcement of the policy does not fall outside the time period for filing. See Gonzalez v. Firestone Tire Rubber Co., 610 F.2d 241, 249 (5th Cir. 1981) (distinguishing between "a discrete act of discrimination [that occurred] more than [45] days prior to the filing of [the] charge . . ." and the act of ". . . continuously maintaining an illegal employment practice . . ."). See also Allen v. United States Steel Corp., 665 F.2d 689, 693 (5th Cir. 1982); Dobbs v. City of Atlanta, 606 F.2d 557, 558-59 (5th Cir. 1979).
The Fifth Circuit has identified three factors to consider in determining whether a plaintiff is entitled to the benefits of the continuing violation doctrine. While the inquiry is fact specific to every case, the Fifth Circuit has provided the following guidance:
[r]elevant to the determination are the following three factors, which we discuss, but by no means consider to be exhaustive. The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?Berry, 715 F.2d at 981. (footnote omitted).
The alleged acts of discrimination complained of by plaintiff all involve the same subject matter, racial and/or gender discrimination. As such, the first factor cited by Berry appears to be satisfied.
The second factor is frequency. On this point, plaintiff's reassignment in June of 1999 was an isolated decision, not something that took place on a recurring basis. The loss of plaintiff's laptop computer and pager in February and June of 2000, respectively, were also one-time, discrete events rather than something of a recurring nature like a biweekly paycheck. Consideration of the second Berry factor thus weighs in defendant's favor.
The third, and most important factor, is permanence. TheBerry court instructed courts to consider (1) whether the degree of permanence of the act ". . . should trigger an employee's awareness and duty to assert . . . her rights"; and (2) whether the consequences of the act would continue absent an intent to discriminate.Berry, 715 F.2d at 981. Though a knowing plaintiff has an obligation to file promptly, such a plaintiff must be distinguished from a plaintiff who is unable to appreciate that she is being discriminated against until he has experienced a series of discriminatory acts.Sabree v. United Brotherhood of Carpenters Joiners, 921 F.2d 396, 402 (1st Cir. 1990). "`The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.'" Webb v. Cardiothoracic Surgery Associates of N. Tex., P.A., 139 F.3d 532, 537 (5th Cir. 1998) (quotingGlass v. Petro-Tex. Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985)). More recently, the Fifth Circuit has held that a plaintiff, in order to recover, ". . . must show an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action."Huckaby v. Moore, 142 F.3d 233, 239 (5th Cir. 1998) (internal citations omitted). Thus, a single event, such as a failure to hire, promote, or train, or a dismissal or demotion, is the type of event that should put an employee on notice that a cause of action arose.Id. at 240.
Consideration of the third Berry factor also militates in defendant's favor. Plaintiff was reassigned in June of 1999. The plaintiff had knowledge of this reassignment via a written memorandum outlining the move and her new duties. Upon inquiring, she was also informed that this was a permanent move. The removal of plaintiffs' laptop computer and pager were also one-time events of a permanent nature. Plaintiff waited until over a year had passed before bringing these grievances to the attention of an EEO counselor. Such events would, ". . . in fairness and logic . . . have altered the average lay person to act to protect h[er] rights.'" Glass v. Petro-Tex Chem., 757 F.2d 1554, 1560-61 (5th Cir. 1985) (quoting Dumas v. Town of Mount Vernon, 612 F.2d 974, 978 (5th Cir. 1980)). The continuing violation doctrine does not save from the effects of the Title VII limitations periods plaintiff's claims of a reassignment/demotion and the removal of her accoutrements.
B. EQUITABLE TOLLING
A plaintiff's failure to contact an EEO counselor within the 45-day period may also be excused on the basis of equitable tolling. Wilson v. West, 962 F. Supp. 939, 944 (S.D. Miss. 1997).
However, the Supreme Court has noted that a claimant who fails to exercise due diligence in preserving her legal rights should be subject to less forgiveness. Baldwin Co. Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1726 (1984) (holding that "[o]ne who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence."). The claimant bears the burden of proving her entitlement to equitable tolling. Blumberg v. HCA Management Co., Inc., 848 F.2d 642, 644 (5th Cir. 1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 789 (1989). The Fifth Circuit has held that equitable tolling may be justified where a plaintiff is unaware of the facts giving rise to her claim because of the defendant's intentional concealment of them or where the EEOC misleads the claimant about the nature of her Title VII rights. See Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1302 (5th Cir. 1979). However, circumstances besides these might merit equitable tolling as well. Blumberg, 848 F.2d at 644-45.
As discussed above, plaintiff was well aware of the facts giving rise to her reassignment/demotion claim and laptop/pager removal claim well in advance of the 45-day period before her first contact with an EEO counselor on August 11, 2000. There is no evidence that plaintiff was misled about the nature of her EEO rights. Neither the continuing violation doctrine nor equitable tolling can save these two claims from the effects of the Title VII limitations periods. The RCC ultimately accepted only two issues for resolution as having been timely pursued after corresponding with plaintiff and clarifying the bases of her claims. Plaintiff was invited to challenge the RCC's characterization of her claims if she disagreed with it. However, she failed to do so. Consequently, only those two issues accepted by the RCC are properly before the Court.
VI. FAILURE TO STATE A CLAIM COGNIZABLE UNDER TITLE VI
As noted earlier, employees in the public sector are protected by 42 U.S.C. § 2000e-16 (a) which provides that "[a]ll personnel actions affecting employees . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." Title VII was designed to redress "adverse personnel actions" which are defined as ". . . ultimate employment decisions, not . . . every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Ultimate employment decisions encompass such things as hiring, granting leave, discharging, promoting, and compensating,Id. (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S. 892, 102 S.Ct. 388 (1981), but do not include ". . . every decision made by employers that arguably might have some tangential effect upon those decisions.'" Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.), cert. denied, 522 U.S. 932, 118 S.Ct. 336 (1997) (quoting Dollis, 77 F.3d at 782). "A purely lateral transfer is not an adverse employment action.'"Burger v. Central Apartment Mgt., Inc., 168 F.3d 875, 879 (5th Cir. 1999) (quoting Doe v. DeKalb County Sch. Dist., 145 F.3d 1441, 1450 (11th Cir. 1998)). Courts have similarly found that Title VII's protections do not extend to a denial of training, non-selection for a detail, or adverse performance appraisals, Hagan v. Walker, 1998 WL 830641 at *3 (E.D. La. 1998), adverse performance appraisals or forced leave, Lewis v. Glickman, 1997 WL 276084 at *6 (E.D. La. 1997), or a lateral transfer to a more demanding position, a delay in crediting work for an upgrade, a written reprimand, or omission from a job referral roster.Smith v. Perry, 1997 WL 160293 at *2-6 (N.D. Tex. 1997).
Applying the authorities cited above to the matter at hand, the Court readily concludes that the lack of a PD for the Intelligence Operations Specialist title that plaintiff assumed in June of 1999 does not constitute an adverse personnel action. The lack of a PD was unaccompanied by a change in grade or pay, an increase in hours, or a materially adverse change in the terms and conditions of her employment. As such, Title VII affords her no relief for that alleged wrong.
The Court would reach the same conclusion with respect to Leon's reassignment/demotion claim even if it had been administratively exhausted in a timely and proper fashion. The reassignment carried with it no change in grade, pay, benefits, or other objectively unreasonable changes to the terms and conditions of plaintiff's employment and she provides the Court with no competent summary judgment proof that the reassignment was the functional equivalent of a demotion. See, e.g., Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996), cert. denied, 522 U.S. 816, 118 S.Ct. 64 (1997).
V. DISPARATE TREATMENT BASED ON GENDER AND NATIONAL ORIGIN
The second claim that is properly before the Court is that plaintiff was denied a cash award for FY 00. As that claim involves compensation, the Court assumes, arguendo, that it qualifies as an adverse personnel action within the meaning of Title VII. Absent direct evidence of discrimination, a plaintiff must come forward with circumstantial evidence sufficient to establish a prima facie case by showing that: 1) she is a member of a protected class; 2) she was qualified for her position on the emolument she was seeking; 3) despite her qualifications, she was denied the position or emolument; and, 4) a comparable, nonprotected person was treated better than she was.McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the challenged employment action.Id. If the defendant does so, the presumption of discrimination "drops out of the picture" and the plaintiff shoulders the ultimate burden of proving that she has been the victim of intentional discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106 (2000).
Although plaintiff is a member of two protected classes, she is still unable to prove up a prima facie case much less carry her ultimate burden of proving intentional discrimination. While plaintiff did not receive a performance cash award for FY 00, several males and several non-Hispanics likewise did not receive such awards. Those receiving the awards included Hispanics and at least one female. In determining who would receive the cash awards, the agency looked at each individuals contributions to the TIC to see who had made "special" contributions — something going above and beyond their regular job duties. The Court recalls that for nearly the entirety of FY 00, plaintiff was out of the TIC at the EPP, which she completed in March of 2000, or on special assignment with the Naval Oceanographic Office. Plaintiff's efforts during this time, although benefitting the Navy, did not directly benefit the TIC. Her work for the Navy did, however, earn her special recognition and a letter of commendation from the Navy and a consequent time-off award from Customs valued at $891, substantially more than the $500 cash award given to her EPP counterpart, Thomas Kelly. With respect to the lack of a PD for the Intelligence Operations Specialist position, plaintiff was told she could "write her own ticket", which was essentially what two other employees, one Hispanic male and one non-Hispanic male, had previously done. As for the lateral reassignment, while plaintiff was the only Hispanic female to be reassigned, she was the only GS-13 Hispanic female in the TIC. Unlawful discrimination is not apparent here. Accordingly, defendant's motion to dismiss and/or for summary judgment is hereby granted. Judgment will be entered accordingly.