Opinion
Civil Action No: SA-02-CA-1032-XR
May 3, 2004
ORDER
On this date, the Court considered Defendant's Motion for Summary Judgment (Docket no. 30). Plaintiff sues her employer for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. For the reasons stated below, the Court GRANTS the Defendant's motion.
I. Facts and Procedural Background
Plaintiff, an African American, initially began her employment with Farmers Insurance in California in July 1981. In 1988, she was promoted to a customer service position. In December 1993, she moved to San Antonio, Texas. In October 1994, Jackson, a white supervisor, promoted Plaintiff to Claims Processor. Plaintiff received satisfactory performance appraisals in October 1995 and October 1996.
On January 30, 1997, Plaintiff sent a letter to Farmers' human resources department alleging that she was not promoted and being treated unfairly because of her race. Plaintiff contacted the human resources department a second time in September 1997, complaining that she was not promoted, and that a temporary employee was selected for the position she desired.
On October 10, 1997, Plaintiff sent another complaint renewing her earlier allegations and also complaining that Philip Jackson had spoken to her in an inappropriate fashion. An investigation was undertaken by Farmers regarding Plaintiff's complaint, but concluded that no evidence of discrimination existed. Plaintiff was offered the opportunity to transfer to another branch office in San Antonio, but she declined the offer.
Philip Jackson retired from his employment with Farmers on June 1, 1998. He was replaced by Branch Manager Kris Pacey. In January 1999, Pacey approved a pay increase for Plaintiff, and in August 1999, Pacey promoted Plaintiff to a Claims Analyst position.
In December 1999, Plaintiff applied for a secretary position, but was not selected. The position was awarded to Alane Zielinski. Pacey posted an opening for a Claims Associate position on September 13, 1999 and January 2000. Plaintiff, however, did not apply for the September 1999 position. In January 2000, Pacey posted another opening for a Claims Associate position. The position was awarded to Priscilla Salazar.
Eric Weigand replaced Pacey as Branch Manager in February 2000. On October 26, 2000, two Claims Associate positions were posted. Plaintiff applied for both these openings, but Michelle Anderson and Kristine Spaeth were selected.
On June 29, 2001, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging that she was denied three promotions (Secretary in December of 2000; Claims Associate in early 2001; and Gatekeeper in June of 2001).
Defendant states, and Plaintiff does not dispute, that the actual date that the Plaintiff applied for and was denied the Secretary position was in December 1999.
Defendant states, and Plaintiff does not dispute, that the actual date that the Plaintiff applied for the two Claims Associate positions was in October 2000, and that these positions were denied to the Plaintiff in December 2000.
Plaintiff requested and was placed on a medical leave of absence from July 10, 2002 through October 2, 2002. During her medical leave, Farmers alleges that numerous errors in Plaintiff's work product were discovered. When Plaintiff returned from her medical leave her job duties were changed so that Plaintiff was no longer responsible for drafting correspondence. In addition, she was moved from a subrogation desk to a claims processing desk. Plaintiff thereafter requested that she be allowed to work half-days for medical reasons, and her request was granted. She was also reassigned back to a subrogation desk. Plaintiff worked half-days from October 2002 through December 2002. In January 2003, she requested and was granted a full-time medical leave of absence.
II. Summary Judgment Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Summary judgment is required if 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); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses" and disregarding the evidence favorable to the nonmovant that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000).
III. Analysis
A. Are Plaintiff's Discrimination Claims barred, in part, by limitations?A plaintiff must file a charge of discrimination with the EEOC and/or the Texas Commission on Human Rights within 300 days of the "alleged unlawful employment practice." See 42 U.S.C. § 2000e-5(e); Anson v. Univ. of Tex. Health Science Ctr., 962 F.2d 539, 540 (5th Cir. 1992). Generally, the limitations period begins on the date the discriminatory act occurred. Waltman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir. 1989).
As noted above, Plaintiff filed her charge of discrimination on June 29, 2001. Accordingly, Defendant argues that Plaintiffs claims of denial of promotions occurring in December 1999, January 2000, and March 2000 are barred by limitations. Plaintiff argues that her claims are not barred, but rather excused under the "continuing violation" theory.
In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the United States Supreme Court clarified under what circumstances a "continuing violation" theory will apply. In Morgan, the Plaintiff filed a charge of discrimination with the EEOC alleging that "during the time period that he worked for Amtrak he was consistently harassed and disciplined more harshly than other employees on account of his race." Id. at 105. "While some of the allegedly discriminatory acts about which Morgan complained occurred within 300 days of the time that he filed his charge with the EEOC, many took place prior to that time period." Id. at 106. In concluding that Morgan's claims were barred, in part, the Court stated:
Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable "unlawful employment practice." Morgan can only file a charge to cover discrete acts that "occurred" within the appropriate time period. While Morgan alleged that he suffered from numerous discriminatory and retaliatory acts from the date that he was hired through March 3, 1995, the date that he was fired, only incidents that took place within the timely filing period are actionable. Because Morgan first filed his charge with an appropriate state agency, only those acts that occurred 300 days before February 27, 1995, the day that Morgan filed his charge, are actionable. During that time period, Morgan contends that he was wrongfully suspended and charged with a violation of Amtrak's "Rule L" for insubordination while failing to complete work assigned to him, denied training, and falsely accused of threatening a manager. All prior discrete discriminatory acts are untimely filed and no longer actionable.Id. at 114-15. In this case, Brown did not allege to the EEOC that she was suffering from racial harassment. Plaintiffs claims that she was denied a promotion on three different dates are barred by limitations and the "continuing violation" theory is not applicable to such discrete acts. Id.; see also Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004)("Morgan makes clear that claims based on discrete acts are timely only where such acts occurred within the limitations period. . . .").
In an attempt to avoid limitations, Plaintiff argues that her denial of promotion claims made to the EEOC could also be construed to encompass harassment claims that were continuing in nature, and thus within the "continuing violation" doctrine. The facts do not support Plaintiff's argument. In her charge she simply alleged that she was denied promotions on various occasions. There was no mention of any harassment.
Plaintiff's charge of discrimination filed with the EEOC states as follows: In December of 2000, I was not promoted to the position of Secretary. In early 2001, I was not promoted to four Claims Associate positions. In June of 2001, I was not promoted to two positions of Gatekeeper. I believe I have been discriminated against based on my race, Black, and because I protested discriminatory practices in the past, in violation of Title VII of the Civil Rights Act of 1964, as amended. Plaintiff claimed the cause of discrimination was based on her race and retaliation. She further stated that the discrimination took place from December 1, 2000 through June 15, 2000.
As a general rule, a plaintiff under Title VII cannot bring claims in a civil lawsuit that were not included in her EEOC charge. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). "The relevant test in determining whether [plaintiff] was required to exhaust her administrative remedies is whether the acts alleged in the subsequent . . . suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). Where the allegations in the complaint are sufficiently distinct from those presented in the EEOC charge, and were not part of the Commission's investigation, courts have required the exhaustion of administrative remedies before such allegations could be pursued in district court. Plaintiff's claims of harassment are not reasonably related to the claims of a denial of promotion that she made to the EEOC, and accordingly are barred. See e.g., Bawa v. Brookhaven Nat'l Laboratory, 968 F. Supp. 865 (E.D. N.Y. 1997)(Employee's harassment claim was not reasonably related to his claims in charge filed with the EEOC that he had been denied promotions); Hejirika v. Maryland Div. of Correction, 264 F. Supp.2d 341 (D. Md. 2003) ("These [EEOC] charges do not mention instances of harassment or describe a hostile work environment, and instead, quite simply and clearly allege a discriminatory failure to promote.").
Plaintiffs claims of denial of promotions occurring in December 1999, January 2000, and March 2000 are barred by limitations.
B. With regard to her December 2000 denial of promotion claim and denial of Gatekeeper position in 2001, has Plaintiff established a prima facie case of race discrimination?
The only remaining claims not barred by limitations are Plaintiffs denial of a promotion to Claims Associate in December 2000 and Plaintiffs denial of promotion to Gatekeeper in 2001.
The Fifth Circuit's most recent analysis of the Title VII evidentiary analysis was made in Pegram v. Honeywell, Inc., 361 F.3d 272 (5th Cir. 2004). The Court stated:
To survive a summary judgment motion, . . . [a Plaintiff] must establish, by a preponderance of the evidence, a prima facie case of intentional discrimination. Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). To establish an inference of discrimination, consistent with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff must show a prima facie case by establishing that the (1) plaintiff is a member of a protected class; (2) plaintiff is qualified for the position; (3) plaintiff suffered an adverse employment action, and (4) plaintiff was replaced with a person who is not a member of the protected class. Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). After a prima facie case is made, the defendant must articulate a non-discriminatory reason for its actions. Martineau, 203 F.3d at 912. If this is done, the plaintiff must then prove (1) that the defendant's proffered reasons were false, and (2) that the real reason for his discharge was because he was a member of a protected class.Id. at 281.
1. Gatekeeper position
In her charge of discrimination, Plaintiff alleged that she was denied a promotion to the position of Gatekeeper. Defendant responds that no such formal position existed. Rather, it asserts that during a period of time their office was undergoing a conversion to a "paperless" office, employees were temporarily assigned to route "unmatched" electronic mail. Defendant asserts, and Plaintiff does not dispute, that the two employees who were temporarily assigned this duty received no change in salary, title, or pay grade.
As stated by the Pegram v. Honeywell, Inc. court, the Fifth Circuit "has a strict interpretation of the adverse employment element of [a plaintiff's] prima facie intentional discrimination case. Under Title VII principles, . . . an employment action that does not affect job duties, compensation, or benefits is not an adverse employment action. Rather, an adverse employment action consists of ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating. Id. at 282 (citations omitted). The denial of Plaintiff to any "Gatekeeper" position was not an adverse employment action.
2. Claims Associate Positions
Defendant asserts that it met its burden to rebut the prima facie case by articulating a non-discriminatory reason for not selecting Plaintiff for the two Claims Associate positions, i.e. that she was not perceived to be the most qualified candidate. Once Defendant offered a non-discriminatory reason for not selecting her, Plaintiff was required to show that such reason was not the real basis for her rejection, but was merely a pretext for race discrimination. Pegram, 361 F.3d at 281.
In order to show that a proffered reason was merely a pretext, and defeat a summary judgment dismissal in a non-promotion discrimination case, the Fifth Circuit in Edwards v. Principi, 80 Fed. Appx. 950, 952-53 (5th Cir. 2003) has stated the following:
[T]his Court requires that a plaintiff show a difference in his qualifications superior to that of the person selected "so apparent as to virtually jump off the page and slap us in the face." EEOC v. Louisiana Office of Community Services, 47 F.3d 1438, 1445 (5th Cir. 1995). We have held that a plaintiffs subjective belief or unsubstantiated assertions of racial discrimination are insufficient to raise an inference of discrimination sufficient to defeat a summary judgment dismissal. See Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 313 (5th Cir. 1999); Grimes v. Texas Dept. of Mental Health at San Antonio, 102 F.3d 137, 140 (5th Cir. 1996). It is not enough to defeat summary judgment dismissal that a plaintiff show that a trier of fact could find that he was just as qualified as the person selected to show an inference of discrimination. Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993). Rather, a plaintiff must show that a trier of fact could find that he was clearly better qualified than the person selected. Id. Furthermore, this Court has held that in evaluating non-promotion discrimination cases it will not substitute its own views or judgment for those in an organization who have been charged with the evaluation duty by virtue of their own years of experience and expertise in the field in question, unless the record shows that the plaintiff was clearly better qualified than the chosen candidate.
In this case, Plaintiff offers no evidence in her Response to Defendant's Motion for Summary Judgment that she was "as qualified," much less "better qualified" than the two individuals who were selected. Plaintiff's subjective belief and unsubstantiated assertions of racial discrimination are insufficient to raise an inference of discrimination sufficient to defeat a summary judgment dismissal on this claim. Edwards v. Principi, supra.
C. Retaliation Claim
To state a claim of retaliatory discrimination under Title VII, a Plaintiff must prove that (1) she engaged in a protected activity, (2) she was subjected to an adverse employment action, and (3) a causal connection existed between her participation in the protected activity and the adverse employment action. Hamilton v. Tex. Dep't of Transp., 85 Fed. Appx. 8 (5th Cir. 2004).
Plaintiff's response is unclear and vague regarding what protected acts she engaged in and what adverse employment acts were taken against her. The Court, undertaking its own review of the documents submitted by both parties, believes that the Plaintiff argues that she engaged in the following protected acts: (1) On January 30, 1997, she sent a letter complaining that she had been denied a customer service position on two different occasions and she believed she was being treated unfairly because of her race; (2) In October 1997, she complained about the treatment she was receiving from her then-manager Phillip Jackson; (3) In September 1998, she complained that she requested a lateral move to the customer service desk, but the position was given to a temporary employee named Terry; and (4) On June 29, 2001, she filed a charge of discrimination with the EEOC.
Again, based on the documents submitted by both parties, the Court believes that Plaintiff is alleging that in response to the internal and external complaints she lodged, she was subjected to the following adverse employment acts: (1) she was denied a pay raise in 1996/1997; (2) she was not selected for a secretary position in December of 1999; (3) she was not selected for a Claims Associate position in January/March 2000; (4) she was given an unfair evaluation in 2000; (3) In November 2000, someone left a flyer on her desk titled Voting for Dummies which lampooned the Bush/Gore election dispute; (4) At some point in time not identified in Plaintiffs deposition excerpts, someone left a cartoon flyer on Plaintiff's desk titled "If the grass is greener on the other side of the fence. . . ."; (5) she was denied promotions to Claims Associate in December 2000; (6) In October 2001, someone left a "ticket" on her desk for one way passage "for a nigger back to Africa."; and (7) she was demoted from the subrogation desk in October 2001.
Plaintiff argues that although the flyer did not mention African Americans, the flyer could be interpreted as derogatory against African Americans because some unidentified people "were talking about black people in South Beach . . . just how stupid, dumb, how — stuff like that."
It appears that Plaintiff, in an attempt to overcome her limitations problem, argues that the court should treat the retaliation count in her complaint as being in the nature of a hostile work environment claim. If so, Plaintiff misinterprets Morgan. In National R.R. Passenger Corp. v. Morgan, the Supreme Court cautioned that a plaintiff is barred from recovering for discrete acts of retaliation that occur outside the statutory time limits, and that several related discrete acts do not establish a single unlawful practice for purposes of measuring the limitations period. Further, as discussed above, a plaintiff under Title VII cannot bring claims in a civil lawsuit that were not included in her EEOC charge. Any claims now being made by Plaintiff of a hostile work environment is not reasonably related to the claims of denial of promotion that she made to the EEOC, and are barred.
In her First Amended Complaint, she makes the following pertinent allegations:
FACTS GIVING RISE TO PLAINTIFF'S CAUSE OF ACTION
5. Plaintiff is an employee of Defendant who has been subjected to racial discrimination in her employment.
6. Plaintiff has received, through Defendant, menacing and coercive communication since she filed her EEO Complaint in retaliation thereto.
7. Plaintiff received a demotion immediately following the time the [sic] filed her EEO Complaint.
8. Defendant failed to promote and give Plaintiff timely compensation increases given to other employees notwithstanding the fact that she either met or exceeded expectations in her job performance.
9. Plaintiff was treated disparately by the Defendant in a manner which affected her employment and ability to receive proper promotions during her employment at the San Antonio office since 1992.
10. Finally, in October of 2001 Plaintiff arrived at her desk to find written communication referring to her as a "nigger" and suggesting that she return to Africa via "one way ticket."
COUNT ONE RACIAL DISCRIMINATION
11. Plaintiff was unjustifiably criticized, not promoted and otherwise treated disparately as set forth above because of her race in violation of 42 U.S.C. § 2000e-Sections 2(a) and 16(a).
RETALIATION
12. Plaintiff realleges the allegations of paragraphs one through eleven.
13. From the time the criticisms of Plaintiff commenced, Plaintiff orally advised Defendant on several occasions that she believed she was being treated disparately on the basis of her race.
14. Defendant unjustifiably criticized Plaintiffs job performance demoted her, gave Plaintiff unjustified criticism and undertook each of these acts adversely affecting Plaintiff as alleged above in reprisal for Plaintiff's opposition of practices made illegal by Title VII and because of Plaintiff filed complaints of discrimination. This conduct violated 42 U.S.C. § 2000e-3(a).
Accordingly, the Court concludes that Plaintiff did establish the first element of her prima facie case for retaliation, namely she engaged in a protected activity by filing internal complaints of discrimination with her employer and filing a charge of discrimination with the EEOC on June 29, 2001. The Court next evaluates whether Plaintiff has established the second element of her prima facie case, namely that she was subjected to an adverse employment action.
In that regard, disregarding allegations that are time-barred and not within the "continuing violation theory," Plaintiff alleges: (1) that she did not receive a Claims Associate position in December 2000, (2) that in October 2001, someone left a "ticket" on her desk for one way passage "for a nigger back to Africa," and (3) she was demoted from the subrogation desk in October 2001.
Defendant responds that Plaintiff fails to establish that a causal connection existed between her failure to receive the Claims Associate positions in December 2000 and her internal complaints lodged in 1997 and 1998. The Court agrees. The only response Plaintiff proffers in this regard is the deposition testimony of a another employee, Domingo Garcia, who offers his subjective belief that he was discriminated and retaliated against. Plaintiffs and Mr. Garcia's subjective belief and unsubstantiated assertions of discrimination and retaliation are insufficient to raise an inference that a nexus or causal connection existed between Plaintiff's complaints made years earlier and the denial of a promotion in December 2000.
With regard to Plaintiffs allegation that someone left a derogatory "ticket" on her desk for one way passage "for a nigger back to Africa," such an actions was not a demotion, denial of promotion, or a personnel action affecting pay, and although reprehensible, as such is not an adverse employment action.
Unfortunately, due to Plaintiff's failure to include in her EEOC charge of discrimination any of the derogatory remarks alleged to have been made over an eight year span, the Court does not address whether a hostile work environment existed, nor the merits of any such claim.
With regard to the alleged demotion from a subrogation desk to the claims processing desk in October 2001, Defendant responds that this change in job responsibility is not an adverse employment action. Defendant responds that this change in job duties did not result in any loss of pay, grade, or benefits. Whether assigned to a claims processing desk or to a subrogation desk, Plaintiff's title was always Claims Analyst. Plaintiff fails to tender any evidence refuting Defendant's position other than stating in conclusory fashion that the position was inferior and had fewer office amenities. Plaintiff fails to present any evidence that a placement into the subrogation desk is actually considered by management officials as a demotion that would impact her future career progression. Pegram v. Honeywell, Inc. Accordingly, Plaintiff fails to establish the third prong of her prima facie retaliation claim, and summary judgment is proper.
Conclusion
The Court concludes that, for the reasons stated above, Defendant's motion for summary judgment (Docket no. 30) is GRANTED. This case is DISMISSED with prejudice.