Opinion
Civ. A. No. 99-2705, SECTION "A" (2).
February 28, 2000.
ORDER AND REASONS
Defendant, Rodney Slater, Secretary of the United States Department of Transportation, filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that plaintiff, Gloria Broadway, fails to state a claim upon which relief can be granted for each of her claims asserted under 42 U.S.C. § 1983; Title VII, 42 U.S.C. § 2000e et seq.; and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Rec. Doc. No. 7. Plaintiff filed a timely opposition memorandum. Rec. Doc. 11. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon the written consent of all parties. Record Doc. No. 8.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion to dismiss is GRANTED IN PART AND DENIED IN PART as follows.
ANALYSIS
A. Standard of Review
When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must take the factual allegations of the complaint as true and resolve any ambiguities regarding the sufficiency of the claim in plaintiff's favor. Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. The complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Jefferson v. Lead Indus. Ass'n, Inc., 106 F.3d 1245, 1250 (5th Cir. 1997) (citingFernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284-85 (5th Cir. 1993)). Motions to dismiss for failure to state a claim are viewed with disfavor. Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 246 (5th Cir. 1997).
B. Plaintiff Fails to State a Claim Under 42 U.S.C. § 1983
Defendant argues that plaintiff's complaint fails to state a claim upon which relief can be granted under 42 U.S.C. § 1983. Plaintiff concedes in her opposition memorandum that this argument has merit, and she does not oppose dismissal of this claim.
"In this Circuit, specific consideration of these alternate remedies [under 42 U.S.C. § 1981 and/or 42 U.S.C. § 1983] for employment discrimination is necessary only if their violation can be made out on grounds different from those available under Title VII. Because [plaintiff] has not asserted any such distinction here, we give specific consideration only to her Title VII claim." Parker v. Mississippi State Dep't of Pub. Welfare, 811 F.2d 925, 927 n. 3 (5th Cir. 1987) (citations omitted); see also Tanik v. Southern Methodist Univ., 116 F.3d 775 (5th Cir. 1997) (elements of Section 1983 and Title VII claims for employment discrimination are "identical").
It is well settled in the Fifth Circuit that the provisions of Title VII applicable to claims of discrimination in federal employment are the exclusive remedy for such claims. Jackson v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996); Hampton v. Internal Revenue Serv., 913 F.2d 180, 183 (5th Cir. 1990). In other words, Title VII effectively preempts any Section 1983 claims for employment discrimination by a federal employee when the facts supporting the claim of violation of Section 1983 are the same as those asserted in support of the Title VII claims.
Broadway has relied on the same facts in asserting her claims under both Title VII and Section 1983. Further, she has admitted that she is limited to seeking relief under Title VII. Accordingly, her claim under Section 1983 is dismissed with prejudice.
C. Plaintiff States a Race Discrimination Claim Under Title VII
Defendant argues that plaintiff's complaint fails to state a claim upon which relief can be granted under Title VII. To allege a prima facie case of race discrimination, plaintiff must show that (1) she was a member of a protected class; (2) she was qualified for the position; (3) she was not hired, was dismissed or suffered other adverse employment action and (4) she was replaced by an individual of a different race, or that her employer treated similarly situated individuals of a different race more favorably than it treated her. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997); Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987); Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1179 (5th Cir. 1990).
Although plaintiff's complaint does not state clearly that she is alleging a claim of race discrimination, her invocation of Title VII and her allegation that she is black appear to attempt to state such a claim. Record Doc. No. 1, Complaint.
To state a claim of race discrimination, the allegations in the complaint must involve "ultimate employment decisions." "Ultimate employment decisions" include decisions "'such as hiring, granting leave, discharging, promoting and compensating.'"Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (quoting Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995)).
Broadway's complaint states that, despite the contrary recommendations of her immediate supervisors over a six-month period, her position was not approved for an upgrade. Plaintiff asserts that this denial resulted from a desk audit that was allegedly performed in an inappropriate and discriminatory manner. Rec. Doc. No. 1, Complaint. Thus, the question for this Court is whether plaintiff's allegation that defendant refused to upgrade plaintiff's position following a desk audit constitutes an "ultimate employment decision" for purposes of stating a Title VII claim.
"In a desk audit, a Personnel Specialist interviews the employee and his/her supervisor and determines (1) whether the employee's job description accurately depicts the work performed by the employee, and (2) whether the job is classified at the proper GS level." Dollis, 77 F.3d at 782.
The Fifth Circuit has held that the denial of a requested desk audit cannot be considered an ultimate employment action, despite plaintiff's allegation that the denial affected her future promotional opportunities. Dollis, 77 F.3d at 782. However, the Fifth Circuit has not addressed whether the denial of an upgrade following a completed desk audit is an ultimate employment decision. The Fourth Circuit Court of Appeals has held that the refusal to upgrade a position following a desk audit is an "adverse employment decision" for purposes of a retaliation claim, which is essentially the same standard as an "ultimate employment decision." Norman v. Rubin, 191 F.3d 448, 1999 WL 739433, at *2 (4th Cir. Sept. 22, 1999) (unpubl. opin.). The circuit and district courts for the District of Columbia have endorsed the possibility that a completed desk audit and consequent denial of an upgrade may constitute an ultimate employment decision. See Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999) ("Evidence that [defendant] invoked the desk audit requirement only when employees of an allegedly disfavored race sought promotions, for instance, might demonstrate that the agency was purposefully using the rule to cover up its discriminatory practices."); Lutes v. Goldin, 62 F. Supp.2d 118, 133 (D.C. 1999) (holding, without analysis, that denial of upgrade after desk audit is adverse personnel action for purposes of establishing prima facie retaliation claim); Sussman v. Tanoue, 39 F. Supp.2d 13, 17 (D.D.C. 1999) (plaintiffs' allegation that desk audits and resulting denials of upgrades were caused by discrimination presented issue of material fact sufficient to survive defendant's motion for summary judgment).
Denial of a promotion would be an ultimate employment decision.Mattern, 104 F.3d at 707; Dollis, 77 F.3d at 782. The word "promotion" connotes an increase in rank and responsibility and a corresponding raise in compensation. An "upgrade" involves a change of job description to include greater responsibility and an increase in compensation appropriate thereto. Thus, it is possible that promotions and upgrades may be considered "functionally identical because both denote advancement and increased pay." Little v. Master-Bilt Prod., Inc., 506 F. Supp. 319, 331 (N.D.Miss. 1980).
In the instant case, Broadway has alleged sufficient facts to state a claim that the denial of an upgrade against the repeated recommendations of her supervisors constituted denial of a promotion, thus potentially satisfying the requirement of an "ultimate employment decision." On the face of the pleadings, it cannot be said beyond a doubt that she can prove no set of facts in support of her claim that would entitle her to relief.
Accordingly, defendant's motion to dismiss this claim is denied.
D. Plaintiff States a Claim Under the ADEA
Defendant argues that plaintiff has not alleged a prima facie case of discrimination under the ADEA. The ADEA makes it unlawful for an employer to "discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To establish a claim under the ADEA, plaintiff must demonstrate that (1) she is within the statute's protected class, (2) an adverse employment action was taken against her by the employer and (3) the adverse employment action was motivated by unlawful age discrimination. Ross v. University of Tex., 139 F.3d 521, 525 (5th Cir. 1998).
Plaintiff is a 58-year-old black female. Her age clearly places her within the class protected by the statute. She must also allege that an adverse employment action was taken against her. As in the Title VII context discussed above, "adverse employment actions" for ADEA purposes include "discharges, demotions, refusals to hire, refusals to promote, and reprimands."Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998) (quotation omitted).
Plaintiff has alleged that she was denied an upgrade of her position as a result of age discrimination. She has alleged facts sufficient to support her contention that the denial of an upgrade despite the repeated recommendations of her supervisor was in effect a refusal to promote her, thus potentially qualifying as an "adverse employment action." Further, she has alleged that this refusal to upgrade her position was motivated by unlawful age discrimination.
Accordingly, plaintiff has alleged facts sufficient to state a claim for discrimination under the ADEA and defendant's motion to dismiss this claim is denied.
E. Plaintiff States a Claim for Retaliation Under Title VII
Defendant argues that Broadway fails to state a claim for retaliation because she has not alleged that she engaged in any activity protected by Title VII and has not alleged any adverse employment action. The latter contention has already been addressed above.
In her complaint, plaintiff stated that she filed a charge with the Equal Employment Opportunity Commission ("EEOC") as a result of being denied an upgrade. She further alleges that her employer engaged in retaliatory behavior and fostered a hostile work environment for her after she was denied the upgrade.
Under Fed.R.Civ.P. 8(a), a complaint shall contain a short and plain statement of the claim showing that the pleader is entitled to relief. Broadway has done just that. Her complaint, although not drafted with crystal clarity, nonetheless contains statements sufficient to put defendant on notice that plaintiff claims entitlement to relief for retaliatory actions taken by her employer as a result of having brought her discrimination claims before the EEOC. The factual allegations of the complaint are sufficient to withstand defendant's motion to dismiss.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motion to dismiss filed by defendant Rodney Slater is GRANTED IN PART in that plaintiff's claim under 42 U.S.C. § 1983 is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED, however, that the remainder of defendant's motion to dismiss is DENIED.
New Orleans, Louisiana, this 28th day of February, 2000.