March 3, 2006
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are Defendant's Motion for Summary Judgment (Docket No. 25), filed January 19, 2006, Plaintiff's Response (Docket No. 28), filed February 6, 2006, and Defendant's Reply (Docket No. 32), filed February 17, 2006). The parties appeared before the Court for a hearing on this matter on February 28, 2006. After due consideration the Court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
From July 17, 1995 until June 10, 2002, Plaintiff was employed as a medical instrument technician at the Department of Medicine and Cardiology Service. At different times Plaintiff has worked both in the EKG Section and in the Cardiac Rehabilitation Section. While in the EKG Section, Plaintiff was supervised by Mr. Charles Black, a caucasian man. In 1998, Plaintiff filed an EEOC Complaint, which was subsequently settled. After the settlement of the EEOC complaint, Plaintiff was allowed to transfer to the Cardiac Rehabilitation Section, where he was supervised by Ms. Stacy Dramiga, a caucasian woman. Plaintiff's duties were substantially similar in both departments. On January 17, 2001, Plaintiff filed an EEO Complaint, alleging denial of training based on his race, which was settled through a Negotiated Settlement Agreement in February 2001. Ms. Dramiga reported feeling threatened by Plaintiff's "hostile and defiant" behavior, and she subsequently requested that she be removed as his supervisor. As a result, on or about September 2001 Plaintiff was transferred back to the EKG Department under Mr. Black's supervision.
Def. Appendix to MSJ (Docket No. 26), Tab 3: Memorandum of Record.
In mid 2001, both Ms. Dramiga and at least one of Plaintiff's co-workers filed complaints about his hostile and abusive behavior. Consequently, Plaintiff received a formal counseling and warning notice, which notified Plaintiff of the complaints against him and stated that any further misconduct would result in formal disciplinary action. Then, in March 2002, the Director of the EKG Section, Dr. Robert Joy, issued Plaintiff a "Notice of Proposed Suspension." The Notice stated that Plaintiff was charged with "a) being absent without approved leave (AWOL); b) failing to work on assigned duties; c) rude and discourteous behavior; and d) failing to follow established leave procedures." The Notice went on to give a description of events supporting each of the charges. Plaintiff alleges that he suffered a hostile working environment and received threatening phone calls that warned him he should quit his job. On June 10, 2002, Plaintiff submitted a resignation letter, effective June 24, 2002, citing "continuous dispute with management of the Cardiology Department" as the reason for resignation. Plaintiff filed suit against the Department of the Army, alleging racial discrimination/hostile working environment, constructive discharge, retaliation under Title VII, and disability discrimination under the Rehabilitation Act of 1973.
Id. at Tab 3-5.
Id. at Tab 6.
Id. at Tab 8.
Id. at Tab 1, p. 85.
Pl. Response to Def. MSJ (Docket No. 28) at Tab 2.
STANDARD OF REVIEW
Summary judgment is appropriate if, after adequate time for discovery, no genuine issue as to any material facts exists, and the moving party is entitled to judgment as a matter of law. Where the issue is one for which the nonmoving party bears the burden of proof at trial, it is sufficient for the moving party to identify those portions of the record which reveal the absence of a genuine issue of material fact as to one or more essential elements of the nonmoving party's claim. The nonmoving party must then "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." To prevail on summary judgment, the moving party need only demonstrate that "there is an absence of evidence to support the nonmoving party's case." Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court, in order to grant summary judgment, must be satisfied that no rational trier of fact could find for the nonmoving party as to each element of his case.
Celotex, 477 U.S. at 323-24.
Id. at 324.
Id. at 325.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
An actionable retaliation claim requires Plaintiff to prove three elements: "(1) the employee has engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action. In order to survive summary judgment, Harris must satisfy the McDonnell Douglas burden shifting analysis. This means that if the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the employer to "respond with a legitimate, nondiscriminatory reason for its decision." If the employer meets this burden, the inference of discrimination created by plaintiff's prima facie case disappears and the trier of fact must decide whether the plaintiff has proven intentional discrimination.
Id. at 222.
Defendant does not dispute that Plaintiff engaged in a protected activity. Defendant first argues that Plaintiff cannot establish a prima facie case for retaliation. Specifically, Defendant asserts that Plaintiff cannot show that he suffered an adverse employment action within the meaning of Title VII. Based on the allegations in Plaintiff's Complaint, Defendant believes that Plaintiff is claiming that Defendant's refusal to accommodate his request for a schedule change was retaliation for the January 17, 2001 EEOC Complaint Plaintiff filed. Plaintiff's Response does not address the refused schedule change at all. Instead, Plaintiff argues that he suffered an adverse employment action in the form of an unfair discipline. Plaintiff states that he received a proposed 10 day suspension within three months of his filing an EEOC Complaint. Plaintiff also notes that he received a negative evaluation on June 7, 2002 and was placed on AWOL status after his resignation. Furthermore, Plaintiff asserts that the close timing between the protected activity and the proposed suspension gives rise to an inference of causal connection.
Defendant points to case law that demonstrates the Fifth Circuit's position is that "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Also, "[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating." While it is possible that a suspension could constitute an adverse employment action, the Court does not believe that this is such an instance. From the record, it appears to the Court that the proposed suspension was just that — proposed. Furthermore, Defendant presented summary judgment evidence that the proposed suspension that Plaintiff complains of was never actually implemented. Additionally, notwithstanding the fact that Plaintiff's negative evaluation and placement on AWOL occurred after his resignation, the Court believes that neither incident constitutes an adverse employment action under the law of this Circuit. The Fifth Circuit has held that neither disciplinary actions in the form of reprimand nor poor evaluations constitute an adverse employment action for purposes of a retaliation claim under Title VII. Finally, Plaintiff asserts that Defendant's decision to mark him as AWOL for two days was an adverse employment action. On June 12, 2002, Plaintiff requested leave with out pay for the dates of June 12, 2002 through June 24, 2002, and he submitted a doctor's note to support this request. This request was granted as to June 12-June 20, 2002. Subsequently, Plaintiff did not show up for work on June 21 or 24. Plaintiff submitted a resignation letter, dated June 10, 2002, requesting that his resignation be effective June 24, 2002. On the time sheet for the pay period ending June 29, 2002, Defendant noted that Plaintiff was AWOL on June 21 and 24, as well as the fact that Plaintiff resigned effective June 24, 2002. A notation made after Plaintiff's resignation that Plaintiff was absent from work without prior permission without any attending negative consequences is not an ultimate employment decision. As Defendant points out, Plaintiff was already on leave without pay, therefore, marking him as AWOL did not affect his pay or any other term of his employment. For these reasons, the Court finds that Plaintiff failed to create a genuine issue of material fact as to whether he suffered an adverse employment action. Because the Court finds that Plaintiff did not suffer an adverse employment action, the Court need not address the causation element. Therefore, Defendant's Motion for Summary Judgment as to Plaintiff's claim for retaliation is GRANTED.
Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (citing see Page v. Bolger, 645 F.2d 227, 233(4th Cir. 1981) (en banc) (noting that Title VII discrimination cases have focused on ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating), cert. denied, 454 U.S. 892, 102 S.Ct. 388 (1981)).
Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002) In Green the Fifth Circuit found that "changing locks, restructuring office procedures, clarifying job duties, and taking disciplinary actions in the form of reprimands do not constitute ultimate employment decisions."
See Appendix to Def. MSJ (Docket No. 26) at Tab 9.
See Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003).
Pl. Response to Def. MSJ (Docket No. 28) at Exhibit 4.
Pl. Response to Def. MSJ (Docket No. 28) at Exhibit 2.
Pl. Response to Def. MSJ (Docket No. 28) at Exhibit 4.
Hostile Work Environment
Defendant argues that Plaintiff's allegations are insufficient under the law of this Circuit to constitute a hostile working environment. In support of his claim of racial harassment, Plaintiff asserts that "Mr. Black would tell racial jokes on average of two a month; that Mr. Black told Plaintiff to `sit his black ass down' on two occasions; and that Mr. Charles Black made a derogatory remark about a Black patient, and used the word "nigger" in reference to someone Black." Plaintiff also testified to receiving threatening phone calls which warned Plaintiff he should quit his job. Plaintiff's Response to Defendant's Motion for Summary Judgment indicates that Mr. Black made at least one of these threatening phone calls. Regarding the threatening phone calls he received, Plaintiff testified in his deposition that when Mr. Black called his house, he identified himself and told Plaintiff he needed to bring in the correct paperwork regarding his sick leave, otherwise not to bother coming back.
Pl. Response to Def. MSJ at ¶ 17 (citing Ex. 1, pg. 129-20, 172-73).
Pl. Response to Def. MSJ (Docket No. 28), Exhibit 1 at pp. 84-85.
Pl. Response to Def. MSJ (Docket No. 28) at ¶ 17.
Pl. Response to Def. MSJ (Docket No. 28), Exhibit 1 at pp. 87-88.
A hostile work environment claim consists of the following elements: "(1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term[,] condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action." The first element is not in dispute, but the remaining elements are contested. "For harassment to affect a term, condition, or privilege of employment, it must be both objectively and subjectively abusive." In analyzing a hostile work environment claim, no single factor is required. Instead, courts look to many factors, including: "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating as opposed to a mere offensive utterance; (4) whether it unreasonably interferes with an employee's work performance; and (5) whether the complained-of conduct undermines the plaintiff's workplace competence." In order to survive summary judgment, the harassment must be so "severe and pervasive" that the employee is essentially prevented from succeeding in the workplace.
Id. at 326 (citations omitted).
This Court has previously noted that "[c]ourts in the Eastern and Northern Districts of Texas have held that a hostile work environment claim requires proof of a `steady barrage of opprobrious racial comments' and not of a `few isolated incidents of racial enmity.'" Plaintiff complains that his supervisor made racial jokes on average twice a month, told him to "sit his black ass down" twice, once made a derogatory remark about a black patient, and once called his house to request that Plaintiff turn in the proper paperwork regarding his sick leave. The only conduct alleged by Plaintiff that could possibly meet the required "severe and pervasive" standard is Mr. Black's alleged telling of racial jokes approximately twice a month. However, Plaintiff testified in his deposition that he only reported the jokes once, and it was to Mr. Black himself, at which time Plaintiff complained about Mr. Black's racial jokes. Furthermore, although the jokes continued, Plaintiff testified that "[i]t wouldn't be frequently but it was just in passing or whatever." Plaintiff admitted that when the jokes did not stop, he did not report them to anyone else. The Court finds that in light of Plaintiff's seven years of employment with the Department of the Army, Plaintiff has submitted insufficient summary judgment evidence to prove he was subjected to a hostile work environment that altered a term, condition, or privilege of employment. Accordingly, Defendant's Motion for Summary Judgment on Plaintiff's claim of racial harassment/hostile work environment is GRANTED.
Hernandez v. Texas Dept. of Public Safety, No. SA-02-CA-0566-RF, 2005 WL 356855, *4 (W.D.Tex Jan. 5, 2005) (citing Padilla v. Carier Air Conditioning, 67 F.Supp.2d 650, 659 (E.D.Tex. 1999); Williams v. Dallas Independent School District, 2003 WL21673474, *2 (N.D.Tex. 2003); see Jeffrey v. Dallas County Medical Examiner, 37 F.Supp.2d 525, 531 (N.D.Tex. 1999), stating that an actionable claim requires "a long pattern of extensive, unredressed threats or conduct that permeates the work environment.").
See Pl. Response to Def. MSJ at ¶ 17.
Pl. Response to Def. MSJ (Docket No. 28), Exhibit 1 at pp. 130-31.
Pl. Response to Def. MSJ (Docket No. 28), Exhibit 1 at pp. 131.
In order to survive summary judgment on a claim for constructive discharge, Plaintiff must produce evidence that his working conditions were "so intolerable that a reasonable employee in his position would [have felt] compelled to resign." Plaintiff must also show the existence of "aggravating factors," not merely harassment. Courts consider the following factors when analyzing constructive discharge claims: "(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee's former status." In order to prevail on a constructive discharge claim, Plaintiff must ultimately show a greater degree of harassment than that required for a hostile work environment claim. As evidenced by the discussion in the preceding sections, Plaintiff simply has not set forth sufficient evidence of any of these aggravating factors. Furthermore, because the Court finds that Plaintiff was unable to create a genuine issue of material fact as to one or more elements of his prima facie hostile work environment claim, Plaintiff's claim for constructive discharge, which requires a greater degree of harassment than a hostile work environment claim, must necessarily fail. Accordingly, the Court is of the opinion that Defendant's Motion for Summary Judgment as to Plaintiff's claim for constructive discharge should be GRANTED.
Id. at 331-32 (citing Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)).
Id. at 332.
Based on Plaintiff's Complaint, Defendant believes that Plaintiff is claiming he was subjected to racial discrimination when he was denied a schedule change that was granted to a caucasian woman. However, the only reference to race discrimination in Plaintiff's Response to Defendant's Motion for Summary Judgment is to lay out the prima facie elements. To establish a prima facie case of race discrimination, a Title VII Plaintiff must show that he was "(1) a member of a protected class; (2) qualified for the position held; (3) subject to an adverse employment action; and (4) treated differently from others similarly situated." In order to survive summary judgment, Plaintiff must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Here, aside from identifying the elements, Plaintiff did not separately address any of the elements of a discrimination claim in the body of the Response. Most significantly, Plaintiff did not make any allegations or present any summary judgment evidence in his Response regarding element (4). Therefore, the Court finds as a matter of law Plaintiff failed to create a genuine issue of material fact as to one or more elements of his prima facie case of race discrimination. Accordingly, the Court is of the opinion that Defendant's Motion for Summary Judgment as to Plaintiff's claim of race discrimination should be GRANTED.
See Pl. Response to Def. MSJ at ¶ 5.
Id. at 324.
Discrimination under the Rehabilitation Act of 1973
Defendant argues that Plaintiff's disability discrimination claim is barred due to a failure to properly exhaust administrative remedies. Plaintiff filed an EEO Complaint based on the issues of constructive discharge, discrimination, and harassment on June 6, 2002. Plaintiff also filed an EEO Complaint on May 15, 2002 concerning the denial of Plaintiff's request for a schedule change. Neither of these EEO Complaints alleges disability discrimination. In his Response to Defendant's Motion for Summary Judgment, Plaintiff recognizes that normally EEO Complaints must be filed within 45 days of the alleged discriminatory conduct, but he stated that he "filed his complaint after exhausting the administrative processes associated with the incident on December 19, 2001." Plaintiff cites 29 C.F.R. 1614.604 to support this statement, apparently arguing that because he filed EEO Complaints based on other types of discrimination, the disability discrimination filing deadline was tolled. However, Plaintiff cites no case law to support that argument, and the Court can find none.
Pl. Response to Def. MSJ (Docket No. 28) at Exhibit 10.
Pl. Response to Def. MSJ (Docket No. 28) at ¶ 24. The "incident" of December 19, 2001 refers to Defendant's denial of Plaintiff's request for a schedule change to accommodate his schooling.
The Fifth Circuit law on this point is clear. "Federal employees must seek informal counseling before they file an EEOC complaint." The employee must initiate contact with a Counselor within 45 days of the allegedly discriminatory conduct. "If the employee fails to do so, his claim is barred." In his Complaint (Docket No. 1), Plaintiff alleges that he qualifies as an individual with a disability because he has Hepatitis C, he lost one kidney, and he has high blood pressure. Plaintiff testified in his deposition that he was denied a reasonable accommodation in April or May 2002. Taking the foregoing as true, Plaintiff would have been required to file an EEO Complaint based on the alleged refusal to accommodate by mid-July 2002 at the latest. Plaintiff provided no summary judgment evidence that an EEO Complaint based on disability discrimination has ever been filed. Therefore, in accordance with the law of this Circuit, the Court finds that Plaintiff's claim of disability discrimination in violation of the Rehabilitation Act of 1973 is barred. Accordingly, the Court is of the opinion that Defendant's Motion for Summary Judgment on Plaintiff's claim of disability discrimination should be GRANTED.
Teemac, 298 F.3d at 454 (citing Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992)).
Def. Appendix to MSJ (Docket No. 26), Exhibit 1, pp. 118-19, 140-41.
For the foregoing reasons, the Court finds that Plaintiff has failed to raise a genuine issue of material fact as to one or more essential elements of each of his causes of action. Accordingly, it is ORDERED that Defendant's Motion for Summary Judgment (Docket No. 25) is GRANTED.
It is so ORDERED.