Opinion
Civil Action, File No. 01-0914, SECTION G MAGISTRATE 3
October 17, 2001
MEMORANDUM AND ORDER
BACKGROUND
Plaintiff, Donald M. Durkin, a white male, alleges race and sex discrimination during his employment with the United States Postal Service ("USPS"). Specifically, the plaintiff alleges discrimination by management personnel, and denial of promotional training offered to others of a different race and sex. He further alleges that he was subjected to retaliation after lodging a complaint with the USPS Equal Employment Opportunity Office ("EEO").
Defendant, William Henderson, Postmaster General, USPS, moves for dismissal of Plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Alternatively, Defendant moves for a more definite statement of plaintiff's claims pursuant to Rule 12(e).
DISCUSSION
The plaintiff's complaint alleges three claims, all brought under Title VII of the Civil Rights Act of 1964: (1) disparate treatment due to race; (2) disparate treatment due to gender; and (3) that he was subjected to retaliation after lodging a complaint with the EEO. He seeks declaratory and injunctive relief, together with damages for lost wages, benefits and attorney's fees.
In response to these allegations, the defendant claims that only actions rising to the level of "ultimate employment decisions" are cognizable under Title VII. He denies that the challenged actions rise to the level of "ultimate employment decisions," and for this reason contends that the plaintiff has failed to state a claim upon which relief can be granted.
I. Factual Sufficiency of Pleadings
In considering a Rule 12(b)(6) motion, all material allegations of the complaint must be accepted as true and construed in a light most favorable to the plaintiff. See Garrett v. Commonwealth Mort. Corp., 938 F.2d 591, 592 (5th Cir. 1991). A dismissal under Rule 12(b)(6) is inappropriate unless the pleadings, on their face, reveal beyond a doubt that plaintiffs can prove no set of facts entitling them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). The standards which govern dismissal under Rule 12(b)(6) do not require a claimant to set out the underlying facts of a claim in full detail. See Williams v. United Credit Plan, Inc., 526 F.2d 713, 714 (5th Cir. 1976); Lee v. Entergy Operations, 1993 U.S. Dist. LEXIS 6836 (E.D. La. May 11, 1993), rev'd on other grounds. However, conclusory allegations need not be accepted as true. See Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipping Yards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
2. Race and Gender Discrimination
The plaintiff alleges that disparate treatment on the basis of race and gender deprived him of rights secured by the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").
The defendant, citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997), quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995), responds that only claims concerning "ultimate employment decisions" are cognizable under Title VII, and for this reason contends that the plaintiff has failed to state a claim upon which relief can be granted.
The defendant's reading is incorrect. The "ultimate employment decision" standard is applicable solely to Title VII anti-retaliation claims, not general Title VII anti-discrimination claims. The cases cited by the defendant, Mattern and Dollis, supra, are anti-retaliation cases, and are thus inapplicable to the plaintiff's claims of race and gender discrimination. Accordingly, these cases will be addressed in my discussion of the plaintiff's anti-retaliation claim.
See Section 3, Infra.
Section 2000e-16(a), the anti-discrimination provision applicable to federal employees, provides in pertinent part: "All personnel actions affecting employees . . . in the United States Postal Service . . . shall be made free of any discrimination based on race, color, religion, sex, or national origin." Section 2000e-2 defines as unlawful employment practices those that:
limit, segregate, or classify employees or applicants for employment in a way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2 (a)(2) (emphasis added).
The plaintiff in the case before us has alleged that he was denied training described as "necessary" for promotion by his superior, the Inspector in Charge, Karl Kell ("Kell"). Thus, plaintiff alleges that such denial "tend[ed] to deprive . . . or adversely affect" his employment status as required by Section 2000e-2.
In the Fifth Circuit, an allegation that a failure to promote was motivated by discrimination satisfies the "tend to deprive . . . or adversely affect" standard of 2000e-2. In Carpenter v. Steven F. Austin State University, 706 F.2d 608 (5th Cir. 1983), the Fifth Circuit held that the incorporation of educational prerequisites for promotion that predominated in whites, without any showing of job relatedness, would "tend to deprive . . . or adversely affect" employment status on the basis of race in violation of Title VII. See Carpenter at 620.
In Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), an employer failed to criticize the lackluster work of a black, female attorney, fearing that critical evaluations may appear motivated by discriminatory animus. The plaintiff was later discharged. Although the Fifth Circuit found that the discharge itself was not discriminatory, the court held that the employer discriminated by withholding honest evaluations, thereby depriving the plaintiff of an opportunity for improvement. The court held that this "tend[ed] to deprive . . . or adversely affect" her employment status in satisfaction of Section 2000e-2. See Vaughn at 523. Because the employer's decision was based upon race and gender, the Fifth Circuit found a violation of Title VII. Id.
A refusal to train does not always constitute an unlawful employment practice. In Shackleford v. Deloitte Touche, L.L.P., 190 F.3d 398, 407 (5th Cir. 1999), the Fifth Circuit affirmed dismissal of a race discrimination claim because the factual allegations failed to satisfy the Section 2000e-2 standard. The employer's refusal to train the plaintiff on specialized filing software, allegedly on the basis of her race, failed to meet this standard because filing constituted an insubstantial part of her responsibilities. Hence, her employer's alleged actions, whether racially motivated or not, failed to significantly change, "deprive . . . or adversely affect" her employment status. 190 F.3d at 408.
Shackleford, however, is distinguishable from the claim before us. Here the plaintiff alleges that he was denied training that was "necessary" for promotion. Unlike the insignificant consequences of the action challenged in Shackleford, if our Plaintiff's allegations are true, the USPS's denial of training precluded all possibility of his advancement. Such denial will certainly "tend to deprive . . . or adversely affect" the plaintiff's employment status in satisfaction of Section 2000e-2.
Though subject to proof at trial, these allegations are sufficiently definite and complete to make a Rule 12(b)(6) dismissal inappropriate. In considering a Rule 12(b)(6) motion, we do not consider the plaintiff's ability to prove his allegations, but whether he is entitled to offer evidence to support his claims. See Nami v. Fauver, 82 F.3d 63, 65 (3rd Cir. 1996); Allison v. California Adult Auth., 419 F.2d 822, 823 (9th Cir. 1969). The plaintiff, on the face of his complaint, has stated a claim for which relief can be granted. Accordingly, the defendant's Rule 12(b)(6) motion for dismissal of the plaintiff's race and gender discrimination claims is denied.
3. Retaliation
With respect to the final count of his complaint, the plaintiff alleges that, in retaliation for filing an administrative complaint alleging race and gender discrimination with the EEO, he was relocated to an inferior work area and denied needed supplies.
To state a Title VII anti-retaliation claim in the Fifth Circuit, a plaintiff must establish that: (1) he engaged in protected activity, as described in Title VII; (2) he suffered an adverse employment action as a result of engaging in such activity; and (3) a causal nexus exists between the protected activity and the adverse employment action. Arnold v. U.S. Dep't of Interior, 213 F.3d 193, 198 (5th Cir. 2000).
Addressing the first element, the plaintiff claims the alleged retaliation was in response to his taking action protected under Title VII. See Arnold at 198. Activities protected by Title VII include:
. . . oppos[ing] any practice made an unlawful employment practice by this sub-chapter, [making] a charge, testify[ing], assist[ing], or participat[ing] in any manner in an investigation, proceeding, or hearing under this sub-chapter. 42 U.S.C. § 2000e-3 (a).
Title VII makes it an unlawful employment practice to discriminate on the basis of race or gender. See 42 U.S.C. § 2000e-2 (a)(2). Therefore, the plaintiff's opposition of discrimination through the filing of an EEO complaint constitutes activity protected under Title VII. See 42 U.S.C. § 2000e-3 (a). Accordingly, the plaintiff has satisfied the first element of a prima facie anti-retaliation claim.
The second element, that the employee suffered an "adverse employment action", is more problematic. In Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997), the Fifth Circuit defined "adverse employment actions" as "ultimate employment decisions" for purposes of Title VII anti-retaliation claims. In Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995), the Fifth Circuit held that only actions rising to the level of "ultimate employment decisions" are cognizable under Title VII's anti-retaliation provisions. This "ultimate employment decision" standard applicable to a plaintiff's anti-retaliation claim is much more arduous than the "tend to deprive . . . or adversely affect" standard (detailed in Section 2) that governs race and gender discrimination claims. See generally Burger v. Central Apt. Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999).
Note a split among circuits. The First, Ninth, Tenth, and Eleventh Circuits have permitted retaliation claims absent adverse employment actions rising to the level of "ultimate employment decisions." See Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994); Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984-86 (10th Cir. 1996); Wideman v. Wal Mart Stores, Inc., 141 F.3d 1453 (11th Cir 1998).
Finality is the hallmark of "ultimate employment decisions." Title VII's anti-retaliation provisions were designed to address "ultimate employment decisions", not to address every decision made by employers that might have a tangential effect upon some ultimate decision. See Mattern, 777 F.3d at 708, quoting Dollis, 77 F.3d at 782. "Ultimate employment decisions" include acts such as hiring, granting leave, discharging, compensating, and promoting. See Mattern at 708; see also Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000) (emphasis added).
As such, our inquiry is whether the plaintiff's alleged relocation and denial of needed supplies rises to the level of an "ultimate employment decision." The issue is whether these actions possess the requisite element of finality to constitute an "ultimate employment decision."
In Mattern, an anti-retaliation case, the Fifth Circuit held that neither a verbal threat of being fired, a reprimand for not being at an assigned work station, a missed pay increase, nor being placed on "final warning," constituted ultimate employment actions due to their lack of ultimate consequence. 104 F.3d at 708.
In Dollis, also an anti-retaliation case, the Fifth Circuit held that an employer's refusal to allow the plaintiff employee to attend training sessions did not effect a material adverse change in the terms or conditions of his employment, and thus did not constitute an "ultimate employment decision." 77 F.3d at 779, 782.
When considered in light of these decisions, it becomes clear that the adverse actions allegedly taken against the plaintiff fall short of"ultimate employment decisions." Actions taken against the plaintiff herein, at best, foreshadow the possibility of final action, having no more than a tangential effect on possible ultimate decisions to come. Thus, the plaintiff has failed to allege the element of finality required to elevate his employer's alleged actions to "ultimate employment decisions."
The plaintiff's failure to allege retaliatory action with the requisite level of finality to constitute an "ultimate employment action" disposes of his anti-retaliation claim. Hence, we need not reach the claim's third element, existence of a causal nexus between the protected activity and adverse employment action.
Accordingly,
IT IS ORDERED, that the defendant's motion to dismiss plaintiff's discrimination claims is be DENIED.
IT IS ORDERED, that the defendant's motion to dismiss plaintiff's retaliation claims is GRANTED.
IT IS ORDERED, that the defendant's alternative motion for a more definite statement of plaintiff's claim is DENIED.