Opinion
EP-00-CA-008-DB
January 11, 2001
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant Janet Reno's "Motion for Summary Judgment," filed in the above-captioned cause on September 21, 2000. Plaintiff Jesus Mendoza filed a Response on October 6, 2000.
After due consideration, the Court is of the opinion that Defendant's Motion should be granted for the reasons set forth below.
Because a November 20, 2000, trial setting in this cause was fast approaching, the Court telephonically informed the Parties of its ruling on the instant motion.
FACTS
Plaintiff Jesus Mendoza worked for the United States Immigration and Naturalization Service ("INS") in El Paso, Texas, from 1976 until he retired in 1997. He began as an Immigration Inspector. In 1992, the INS announced a new level GS-13 position, Assistant District Director of Examinations (the "ADDE position"). At the time, Plaintiff, who was a level GS-12, applied for that position. Shortly thereafter, the INS withdrew the ADDE position and re-posted it as a GS-14 position in order to make the grade more commensurate with the position's anticipated responsibilities. As a GS-12, Plaintiff was not eligible to apply for the GS-14 ADDE position. The position remained unfilled until August 1995, when the INS appointed Robert Vincent Looney ("Looney") to the ADDE position. At that time, Looney was fifty-five years old. Looney is Hispanic in part.At some point in 1993, sometime around Easter, Plaintiff no longer was scheduled to work "inspectional overtime." Previously, Plaintiff frequently worked such overtime. Plaintiff was not the only INS employee whose inspectional overtime was discontinued; others also were informed that they no longer would be permitted to work such inspectional overtime.
In 1994, Plaintiff was classified as a "Senior Examiner," grade GS-12. All other examiners were classified simply as "Examiner," grade GS-11. Sometime that year, those two classifications were abolished and melded into a new position, "District Adjudication Officer" ("DAO"), grade "GS-12." As a result, all Examiners — Maria Chavez, Oscar Molina, Irene Prado, Julieta Chavez and Hector Vega — held the same position and grade as Plaintiff.
Shortly after Looney became ADDE in 1995, Antonio Hernandez ("Hernandez"), the DAO supervisor and Plaintiff's immediate superior, took an extended sick leave due to a grave illness. Rather than replace Hernandez at that time, Looney instituted a rotation system for all DAOs, who held the same grade and level of responsibility, to be acting DAO supervisor.
Each DAO served a period of thirty days in that capacity, which carried no increase in pay. Looney also wanted to evaluate each DAO in a leadership/supervisory role. After thirty days, the next DAO in line stepped in. Maria Chavez, Julieta Chavez, Carlos Guanaga, Hector Vega and Plaintiff each rotated through the acting DAO supervisor position. Looney later acknowledged that Plaintiff did a good job as acting DAO supervisor through an April 1996 performance review in which Looney rated Plaintiff "outstanding" overall.
In November 1995, Plaintiff filed a "Complaint of Discrimination" with the Equal Employment Opportunity Commission ("EEOC"), formalizing a complaint procedure that began through contact with an equal employment opportunity ("EEO") counselor on October 10, 1995. The form Plaintiff filed indicated that Plaintiff was complaining of discrimination based on "Sex" (male) and "Age" (63 at the time). Plaintiff also attached to his administrative charge, a six-page typed explanation of the nature of his complaints. In addition to other complaints relating to various work-related episodes, stories and opinions, Plaintiff made the following statement: "Lish Lombard, an anglo, Ed Helleckson an anglo, Terry Bell a black never had to worry about loosing [sic] inspectional overtime while they were in this district but as a hispanic I have not gotten any inspectional over time. . . ." Later, Plaintiff prepared a three-page affidavit regarding his claims which did not refer to any discrimination on the basis of race or national origin. That affidavit referred to age and sex discrimination specifically.
Some four years later, the EEO process concluded. Consequently, Plaintiff filed this cause on January 7, 2000, alleging that Defendant violated Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). Specifically, Plaintiff alleges that Defendant discriminated against him on the basis of national origin, sex and age, and that Defendant retaliated against him for having engaged in a protected activity.
The instant Motion for Summary Judgment followed.
STANDARD ON SUMMARY JUDGMENT
Summary judgment should be granted only where "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 a judgment as a matter of law." FED. R. CIV. P. 56(c). The party that moves for summary judgment bears an initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavit, which it believes demonstrate the absence of a genuine issue of material fact. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
DISCUSSION
With respect to the federal government as employer, Title VII requires, in pertinent part, that "[a]ll personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C.A. § 2000e-16(a) (West Supp. 2000). Similarly, the ADEA requires that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in executive agencies . . . shall be made free from any discrimination based on age." 29 U.S.C.A. § 633a(a) (West 1999).
Defendant attacks Plaintiff's claims from multiple angles, primarily arguing as follows: (1) Plaintiff failed to exhaust administrative remedies either because he never presented certain claims to the EEOC as required or because claims presented are untimely; (2) Plaintiff cannot establish a prima facie case of discrimination for any claim; and (3) Plaintiff cannot rebut Defendant's legitimate non-discriminatory explanations for each challenged action.
A. Exhaustion of Administrative Remedies
Defendant primarily alleges that Plaintiff never presented a national origin claim to the EEOC and all other claims, whether or not presented to the EEOC, are untimely. It is well settled that courts have no jurisdiction to consider a Title VII or ADEA claim for which the plaintiff has not exhausted administrative remedies. See, e.g., Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990). Federal employees who sue under Title VII have more hoops to jump through than a private-sector employee, for 42 U.S.C. § 2000e-16 "establishes an administrative and judicial enforcement system" and attaches "certain preconditions" to such an employee's right to sue. Brown v. General Servs. Admin., 425 U.S. 829, 832, 96 S.Ct. 1961, 1966-67, 48 L.Ed.2d 402 (1976); see also 42 U.S.C.A. § 2000e-16 (West 1994 Supp. 2000). Further, the EEOC is empowered to prescribe regulations necessary to implement § 2000e-16's requirements. See West v. Gibson, 527 U.S. 212, 215, 119 S.Ct. 1906, 1908-09, 144 L.Ed.2d 196 (1999). As such, when a federal employee fails to meet the specific requirements, including EEOC regulations, his or her claim is properly dismissed. See Brown, 425 U.S. at 835, 96 S.Ct. at 1969 (holding district court properly dismissed complaint where plaintiff failed to file timely charge of discrimination).
The ADEA, too, establishes an administrative enforcement mechanism for resolving alleged discrimination based on age and empowers the EEOC to prescribe pertinent regulations. See 29 U.S.C.A. § 633a(b) (West 1999). However, resort to that mechanism is not required; rather, "the ADEA provides two alternative routes. . . . An individual may invoke the EEOC's administrative process and then file a civil action . . . if he is not satisfied with his administrative remedies. . . . He can [also] decide to present the merits of his claim to a federal court in the first instance." Stevens v. Dep't of the Treasury, 500 U.S. 1, 5-6, 111 S.Ct. 1562, 1566, 114 L.Ed.2d 1 (1991).
As relevant here, EEOC regulations applicable to federal employees require that "[a]n aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1) (1999). With respect to an age discrimination claim, however, the EEOC regulations do not require that a claim be submitted to the EEOC for administrative enforcement. Rather, 29 C.F.R. § 1614.201(a) (1999) provides that "an aggrieved individual may file a civil action . . . after giving the [EEOC] not less than 30 days' notice of the intent to file such an action. . . . [And] such notice must be filed . . . within 180 days of the occurrence of the alleged unlawful practice." See also 29 U.S.C.A. § 633a(d) (providing that required notice of intent to file civil action "shall be filed within one hundred and eighty days after the alleged unlawful practice occurred").
1. National origin discrimination
Defendant claims that Plaintiff failed to exhaust administrative remedies with respect to his claim for national origin discrimination because he never presented that claim to the EEOC. Rather, Defendant contends, when making his administrative "Complaint of Discrimination," Plaintiff only marked those boxes labeled "Sex" and "Age" and left the nearby box labeled "National Origin" blank.
To begin with, the fact that a complaining employee does not check the "National Origin" box on a form submitted to the EEOC does not preclude a later suit based on that charge. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 464 (5th Cir. 1970). Rather, legal claims are limited only by "the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 466. Thus, the Fifth Circuit construes such administrative charges broadly. See Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 78 (5th Cir. 1982) ("Consistent with the remedial purposes underlying Title VII, we construe employment discrimination charges with the `utmost liberality'. . . ." (Emphasis added)). In Price, the court noted that a form the employee completed "informed the EEOC of the identity of the parties and described the alleged discriminatory conduct in enough detail to enable it to issue an official notice of charge to [the employer], thus setting the administrative machinery in motion." Id.; see also Galvan v. Bexar County, Tex., 785 F.2d 1298, 1305-07 (5th Cir. 1996) (finding that age claim should be allowed as part of subsequent lawsuit, where employee marked box "other" for age claim and included factual explanation, erroneous omission of charge from subsequent formal filing not due to employee's error and no prejudice to employer).
Here, through a six-page affidavit, Plaintiff claims that he always intended to file a national origin discrimination charge and "relied on the assistance and guidance of EEO counselors." To the extent Plaintiff contends that it is not his fault the proper "National Origin" box was not marked, the Court finds such an excuse baseless. Plaintiff signed the November 13, 1995, Complaint of Discrimination document, which presumably means he read it. That section setting forth the box-checking exercise appears prominently in the center of the form and, at the very least, Plaintiff should have checked to make sure the proper boxes were marked. Even so, Plaintiff contends, a six-page typed document in Plaintiff's own word attached to his administrative complaint "clearly asserts a national origin basis." Specifically, Plaintiff stated the following: "Lish Lombard, an anglo, Ed Helleckson an anglo, Terry Bell a black never had to worry about loosing [sic] inspectional overtime while they were in this district but as a hispanic I have not gotten any inspectional over time. . . ."
The Court finds that those thirty or so words, buried deep within six pages of stories, speculation, accusation and conclusion, do not sufficiently set forth a national origin claim for the EEOC reasonably to investigate that claim. The EEOC did not think so, given that it only "accepted" and investigated Plaintiff's claims for sex and age discrimination with respect to favoritism toward Maria Chavez in the acting DAO supervisor rotation. Plaintiff must have agreed that that was his only claim, since there is nothing in the record to suggest that he objected to any failure to include national origin in the EEOC investigation. See, e.g., Dollis v. Rubin, 77 F.3d 777, 780 (5th Cir. 1995) (noting complainant's failure to object to issues EEOC accepted for investigation indicated extent of alleged instances of discrimination properly framed). Further, in an "Opening Statement to Complainant," Plaintiff responded to the question "[p]lease state your race, color, sex, religion, national origin, DOB, handicap/non-handicap, as applicable", as follows: "Male 11/14/1931". Finally, Plaintiff prepared a three-page affidavit which also describes Plaintiff's allegations. Tellingly, that affidavit refers repeatedly to discrimination on the basis of sex and age specifically, but never mentions national origin discrimination or actions related to Plaintiff being Hispanic.
All told, the Court finds that a single sentence referring to others' races with respect to loss of inspectional overtime, even under an extremely liberal reading, cannot constitute facts sufficient to place the EEO officer and Defendant on notice that Plaintiff was alleging national origin discrimination, particularly in light of the complete non-existence of any other reference to national origin in the record. Accordingly, the Court finds that Plaintiff did not submit a national origin claim to the EEOC and, accordingly, is of the opinion that summary judgment should be entered as to Plaintiff's discrimination claims based on national origin for failure to exhaust administrative remedies.
2. Loss of inspectional overtime
Even assuming the national origin claim survives, Defendant next contends that each of Plaintiff's claims based on an alleged loss of inspectional overtime is untimely because the alleged event happened in the Spring of 1993, over two years before Plaintiff made any EEO charge of discrimination. To avoid the timing problem, Plaintiff claims that the discriminatory act is in the nature of a "continuing violation," presumably because he continued not to receive the overtime until he filed his administrative complaint.
In that regard, Plaintiff relies on Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir. 1977), where the court held that the plaintiff's claims were not untimely because the discrimination was continuing. See Clark, 556 F.2d at 1223. In Clark, however, the female plaintiff challenged an entire promotion and pay system as discriminatory, arguing that it constituted a continuing unlawful employment practice because the employer had established some policy or practice of paying females less money and limiting their advancement. See id. at 1221. In other words, she made a disparate impact claim based on sex, not a disparate treatment claim. Compare 42 U.S.C.A. § 2000e-2(a)(1) (disparate treatment) with § 2000e-2(a)(2) (disparate impact). Naturally, where a policy or practice is challenged, if the employer continues to maintain the policy or practice, the violation is continuing. See Clark, 556 F.2d at 1223. Here, however, the removal of inspectional overtime was a discrete event.
Plaintiff does not allege that the INS instituted a policy or practice of removing inspectional overtime from him as a Hispanic. Rather, Plaintiff claims that the INS removed his overtime but did not treat other non-Hispanics in the same manner. Hence, Plaintiff alleges only a disparate treatment claim and, therefore, cannot take advantage of the "continuing violation" theory. Because he did not file a charge of discrimination within forty-five days of the violation as required under 29 C.F.R. § 1614.105(a)(1), Plaintiff cannot now press such claims because they are untimely. Hence, the Court is of the opinion that summary judgment should enter as to all of Plaintiff's claims based on loss of "inspectional overtime," no matter what discriminatory animus Plaintiff alleges to be the cause.
To the extent the INS's action in removing overtime from all employees can be construed as such a policy or practice, the Court notes further that the continuing violation theory is applicable in cases where the "unlawful discrimination practice manifests itself over time, rather than as a series of discrete acts." Abrams v. Baylor Coll. of Medicine, 805 F.2d 528, 532 (5th Cir. 1986). Plaintiff alleges only that an overt removal of overtime took place in El Paso. He does not allege that such removal had any effect which manifested itself only over time, such that Plaintiff could be excused from filing a charge within the forty-five day period as required.
3. Failure to promote to ADDE
Defendant next contends that Plaintiff's claim that he should have been promoted to ADDE instead of Looney is also time-barred because the "personnel action" occurred in 1993 when the INS withdrew the position as a GS-13 and re-posted it as a GS-14, thereby denying Plaintiff the position. In response, Plaintiff argues that the "continuing violation" theory should apply because at the time he filed his administrative complaint, Plaintiff still did not have the ADDE position. Although the Court disagrees with Plaintiff, the Court also disagrees with Defendant. The "personnel action" that affected Plaintiff was when Plaintiff effectively was removed from contention. However, Looney was not awarded the ADDE position until mid-August 1995. Theoretically, Plaintiff could not know for certain that the reason he was not selected for the ADDE position was a discriminatory reason prohibited by the ADEA. Looked at another way, because the ADEA applies only to "personnel actions affecting employees," 29 U.S.C.A. § 633a(a), the relevant "personnel action" that "affected" Plaintiff was when the INS filled the position.
Plaintiff claims he was not given a job he applied for in 1993. If the Court were to find that the position applied for and not received could constitute a continuing violation for two years simply because the plaintiff still did not have the position at that time, the statute of limitations would be obviated. Any such individual not hired could thereby allege discrimination five, ten or twenty years later, assuming that the person still did not have the job.
As discussed more thoroughly below, one of the elements of a prima facie claim for discrimination in a non-hire situation is that a person outside the plaintiff's protected category was hired for an open position instead of Plaintiff. See Brown v. CSI Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996). Hence, at this point, the Court having determined that Plaintiff cannot proceed with any national origin claim, and Looney being the same sex as Plaintiff, Plaintiff may only pursue an age claim as to the ADDE position. However, the Court notes that at the time Looney was selected for the position, Looney was some fifty-five years old, also within the ADEA protected group and not significantly younger than Plaintiff.
The Court notes, however, what the Fifth Circuit did in Pacheco v. Rice, 966 F.2d 904, 906-07 (5th Cir. 1992). There, the court held that the plaintiff's claim was time-barred where the plaintiff did not find out until three years after he was terminated that another non-protected employee was not terminated under similar circumstances (around the same time plaintiff was terminated). See id. at 905. The court noted that the relevant act commencing the limitations period was "the discriminatory event or personnel action." Id. at 906. However, previously, a different panel of the Fifth Circuit in Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 879-82 (5th Cir. 1991) ignored a similar delay where the employee was told he would be terminated due to a reduction in force but did not know he would eventually be replaced by an individual substantially younger than him until beyond the applicable limitations period when that replacement was hired. The court focused on the employer's misstatement to the plaintiff that his termination was part of a reduction in force, finding that such knowledge by the plaintiff, combined only with the plaintiff's knowledge that he was part of a protected group was "simply not enough to go to the EEOC and file a charge." Id. at 882. Hence, the court in Rhodes tolled the limitations period. See id.
Here, there is nothing to indicate that Plaintiff simply sat on his rights. Although there is no apparent misstatement by the INS as in Rhodes, in 1993 when the ADDE position was re-categorized to GS-14, all Plaintiff knew was that he was over forty years old and that he no longer could compete for that position because he was only a GS-12. As such, the Court finds that Plaintiff could not go to the EEOC and legitimately cry foul. Hence, the Court is of the opinion that the limitations period should be tolled during that time in which Plaintiff could not have known whether the person who would eventually be hired as ADDE would be younger than him. Looked at another way, this case is not like Pacheco, where the Plaintiff merely did not know about the discriminatory act which already had occurred; rather, the discriminatory act did not occur until mid-August 1995. Indeed, Plaintiff filed his charge of discrimination within forty-five days from the time Looney became ADDE. Thus, the Court finds that the relevant personnel action affecting Plaintiff is the hiring of Looney. Either way, summary judgment should not enter as to the ADDE position based on any failure to exhaust administrative remedies.
4. Retaliation
Finally, although Defendant does not press the argument, it appears Plaintiff's claim for retaliation is barred for failure to exhaust administrative remedies as well. Indeed, there is no evidence that Plaintiff ever filed an administrative charge relating to retaliation. Accordingly, the Court is of the opinion that summary judgment should enter as to this claim as well.
Title VII prohibits employers from retaliating against an employee who opposes what he reasonably believes to be an unlawful employment practice. See 42 U.S.C.A. § 2000e-3 (West 1994). Although not specifically enunciated as prohibited conduct under Title VII's federal employment section — § 2000e-16 — § 2000e-3 applies equally to federal employment. See, e.g., Ayon v. Sampson, 547 F.2d 446 (9th Cir. 1976).
Moreover, addressing the merits of Plaintiff's retaliation claim in great detail Defendant clearly shows that that claim must fail, and Plaintiff makes no effort to respond. In particular, Defendant contends that Plaintiff cannot show that he suffered any detrimental employment action as a result of retaliation, which is a required showing of Plaintiff's prima facie case for retaliation under Title VII. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997); see also 42 U.S.C.A. § 2000e-3 (West 1994). Section 2000e-3 prohibits retaliatory ultimate employment actions, not merely interlocutory or mediate in nature. Mattern, 104 F.3d at at 708. In that vein, Plaintiff alleges through discovery in this cause that Defendant retaliated against him in the following ways: (1) he was wrongfully accused of being absent without proper leave; (2) an unknown individual (allegedly Lucy Valenzuela, a supervisor) posted a citizen-complaint-letter about Plaintiff in a public area; (3) in the Summer of 1995, another DAO rather than Plaintiff was sent to a "congressional congress"; (4) a supervisor challenged Plaintiff's interpretation of a particular statute; (5) Plaintiff's authority to carry a weapon was removed; and (6) an INS security officer looked through Plaintiff's wastebasket. Notwithstanding certain evidentiary problems Plaintiff might have proving those events (too cumbersome to detail here), in short, even if all those things took place, the Court finds that none constitutes the sort of ultimate employment action required to show retaliation. See, e.g., Dollis 77 F.3d at 779-80 (finding no ultimate employment action where employee alleged, inter alia, refused consideration for promotion, refused attendance at a conference, and her work criticized to a government vendor).
B. Proof of Discrimination
In employment discrimination cases, it is imperative that a nonmovant plaintiff "present evidence — not just conjecture and speculation" that the defendant discriminated against the plaintiff on the basis of a protected trait. See Grimes v. Tex. Dep't of Mental Health, 102 F.3d 137, 140 (5th Cir. 1996). The focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Id. at 139. A plaintiff can prove such discriminatory animus by direct evidence or by an indirect or inferential method of proof. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995). Absent direct proof, the plaintiff bears an initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence to raise an inference of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999).
If a plaintiff states a prima facie case, the burden then shifts to the defendant to rebut that inference by articulating a legitimate, nondiscriminatory reason for the challenged employment action. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If the defendant articulates such a reason, the inference of discrimination drops out. See Bauer, 169 F.3d at 967 (citing Rhodes, 75 F.3d at 993). The burden of proving the ultimate issue — whether the defendant intentionally discriminated against the plaintiff — remains always with the plaintiff, which burden can be met by demonstrating that the defendant's proffered reason was merely pretext. See Rhodes, 75 F.3d at 993.
1. Prima Facie Showing
The prima facie case in all disparate treatment Title VII cases requires the plaintiff to prove the following: (1) that he was a member of an identifiable protected class; (2) that he was at all times qualified for the position that he sought; (3) that he was refused employment or an employment benefit, which constitutes an adverse employment action; and (4) that the employment or employment benefit went to an individual who differs from the plaintiff with regard to that class. See Lacy v. Sitel Corp. 227 F.3d 290, 293 (5th Cir. 2000) (citing Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999)); Rubinstein v. Administrators of the Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000) (citing Burdine, 450 U.S. 248, 101 S.Ct. 1089 and Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997)). Under the ADEA, the first three prima facie elements are the same as under Title VII. See Meinecke v. H R Block, 66 F.3d 77, 83 (5th Cir. 1995). The fourth ADEA element, however, also allows the plaintiff to show that the individual more favorably treated is simply younger than the plaintiff, even if that person is also a member of the protected age group. See Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir. 2000) (noting all elements in ADEA same as Title VII except fourth element); Bauer, 169 F.3d at 166 (noting in discharge case three optional parts to ADEA's fourth element) (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)).
Here, Defendant contends that Plaintiff cannot state a prima facie case for any of his claims because, as to each claim, Plaintiff cannot state a necessary element. Having already found most of Plaintiff's claims barred for failure to exhaust administrative remedies, the Court need only consider here Plaintiff's claims that (1) he was twice promised in 1994 that he would be promoted to GS-13 in 1995 and was not; (2) he was denied the ADDE position; and (3) Maria Chavez was placed as acting DAO supervisor.
a. Promise of Promotion
Plaintiff claims that Kenneth Pasquarel ("Pasquarel"), Deputy District Director in 1994, twice promised to promote Plaintiff from GS-12 to GS-13. Even if Pasquarel did so, Title VII does not take account of off-the-record promises to promote. Rather, Defendant points out, Plaintiff must show that he applied for an open position that he was qualified for and was not awarded that position. That, Plaintiff did not do. Although Plaintiff argues that "[n]o requirement for applying was ever required or mentioned," Plaintiff cannot meet his prima facie burden as to any alleged promise from Pasquarel to promote Plaintiff. Hence, because he cannot meet the second element of his prima facie case, the Court is of the opinion that summary judgment should enter as to that claim.
b. ADDE position
Next, with respect to the ADDE position Defendant again attacks Plaintiff's ability to state the second element of his prima facie case, contending that Plaintiff cannot show he was qualified for the position. Plaintiff did apply when the position was first posted as a GS-13 position. Although Plaintiff presents no evidence to this element, he apparently was basically qualified at that time — he was eligible to apply for the position — and Defendant does not contend otherwise. However, Defendant contends that Plaintiff no longer was qualified after the position was re-posted as a GS-14. While Defendant's take has some appeal, the argument fails. Plaintiff could show that but for the fact that Defendant changed the position's qualifications to technically eliminate Plaintiff, Plaintiff would be qualified. By a slender margin, then, the Court finds such a showing would suffice. Accordingly, because Defendant attacks only Plaintiff's qualifications and his ability to meet the second element, the Court presumes Plaintiff can state a prima facie case for age discrimination as to the ADDE position.
c. Acting DOE Supervisor
Finally, with respect to Plaintiff's claim that Maria Chavez, a younger female, was placed in a supervisory position instead of him, Defendant contends that such an action is not an adverse employment action and, hence, Plaintiff cannot state the third element of the prima facie case. In general, "adverse employment actions can include discharges, demotions, refusals to hire, refusals to promote, and reprimands." Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999). "Employment actions are not adverse where pay, benefits, and level of responsibility remain the same." Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998) ("A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.").
Here, Plaintiff was neither discharged, demoted, re-scheduled nor reprimanded, and his pay and benefits were unmolested. Rather, Plaintiff complains only that Maria Chavez, a younger female, was placed in a supervisory position instead of Plaintiff. To the contrary, it is undisputed that that position was a temporary position rotated among DAO's, and that each rotation lasted only thirty days or so and involved no pay increase. Indeed, Plaintiff eventually did his "turn" as DAO acting supervisor. Plaintiff contends, however, that the position "was not rotated evenly and fairly." While perhaps true, the Court finds that the fairness (or lack thereof) of that position's administration is not relevant to whether Plaintiff suffered any adverse employment action. Moreover, Plaintiff concedes that another male served in that position; hence, Plaintiff cannot show that others not within his protected group (as to sex discrimination) were treated better than Plaintiff. Accordingly, the Court is of the opinion that summary judgment should enter as to Plaintiff's claim regarding Maria Chavez and the rotating acting DAO supervisor position.
Even if Plaintiff could state a prima facie case for this claim, the Court would eventually find that Plaintiff cannot overcome Defendant's stated legitimate, non-discriminatory reasons for the challenged employment action; namely, that Looney chose to rotate the DAOs through one acting supervisory position rather than find one permanent replacement for Hernandez because they all shared the same rank and job duties and because Looney wanted to observe each DAO in a supervisory role.
2. Legitimate Non-discriminatory Reasons
Finally, Defendant argues that Plaintiff cannot rebut its proffered legitimate, non-discriminatory reasons for taking the challenged actions and, hence, cannot sustain his ultimate burden of proof. The Court agrees (as to the sole remaining claim, the ADDE position). Defendant presents evidence through Looney's affidavit to show that the ADDE position was reclassified to a GS-14 in order to make the position description more commensurate with the responsibilities anticipated for that position in El Paso, including supervising some 140 employees. Plaintiff does not present any evidence whatsoever to indicate that Defendant's stated reasons are pretextual. Rather, Plaintiff reemphasizes his general qualifications for the ADDE position and comments that "[t]he handling of the Plaintiff's application for ADDE was lamentable at best." Simply put, Plaintiff cannot carry his burden of proving that Defendant intentionally discriminated against him based on his age when it reclassified the ADDE position to a GS-14. Accordingly, the Court is of the opinion that summary judgment should enter as to that claim as well.Having carefully examined Defendant's motion, Plaintiff's response, and the evidence attached thereto, and having considered the arguments set forth therein, the Court is of the opinion that there are no genuine issues of disputed material fact and Defendant is entitled to judgment as a matter of law. Hence, the Court is further of the opinion that summary judgment is appropriate and that this cause should be dismissed.
Accordingly, IT IS HEREBY ORDERED that Defendant Janet Reno's Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that the above-captioned cause is DISMISSED WITH PREJUDICE.
SIGNED this 11th day of January, 2001.