Opinion
No: 01-914
April 12, 2002
ORDER AND REASONS
Before the Court is defendant's motion to dismiss or, in the alternative, for summary judgment, and plaintiff's cross motion for summary judgment. For the reasons stated below, the Court grants defendant's motion and denies plaintiff's motion.
I. Background
This action arises from plaintiff Donald Durkin's allegations that management personnel at the United States Postal Service ("USPS") discriminated against him because of his race and gender. Plaintiff worked as a postal inspector with the USPS from March 1972 until his retirement in December 1995. On April 3, 1993, plaintiff was placed on the Internal Crimes Team as the audit inspector rather than as the team leader as he had requested. On July 25, 1993, plaintiff filed a formal complaint of discrimination regarding this incident, case number 6I-0251-93. On January 10, 2001, the Equal Employment opportunity Commission ("EEOC") administrative law judge rendered a decision in which she found no discrimination. Plaintiff filed a second formal complaint of discrimination on December 23, 1993, case number HI-0043-94. The complaint alleged that plaintiff was (1) placed on a non-team assignment and not provided with proper equipment and supplies during his five-year audit assignment; (2) denied training opportunities when two vacancies were available in the New Orleans Division; (3) assigned positions with no opportunity for advancement; and (4) not selected to interview for two team leader vacancies. The EEOC affirmed a denial of plaintiff's claims on March 23, 2000, and denied plaintiff's request for reconsideration on October 20, 2000.
On April 5, 2001, plaintiff brought this action under Title VII, 42 U.S.C. § 2000e, et seq., alleging that his employer discriminated against him based on his race and gender and that he was retaliated against for filing complaints with the USPS EEOC. This case was initially before Judge Morey L. Sear, who dismissed plaintiff's retaliation claims in an order issued on October 17, 2001. Defendant moves to dismiss the claims related to plaintiff's second administrative complaint under Federal Rule of Civil procedure 12(b)(1) because plaintiff failed to file this lawsuit within the statutory period. Defendant further moves to dismiss the remainder of plaintiff's claims for failure to state a claim under Rule 12(b)(6) of the Federal Rules, or in the alternative, for failure to present genuine issues of material fact under Rule 56. plaintiff filed an response to defendant's motion and seeks summary judgment against defendant.
II. Discussion
A. Legal standard
Defendant moves to dismiss this action for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment under Rule 56. The Court will deal with defendant's motion as a motion for summary judgment under Rule 56 because matters outside of the pleadings have been presented to and will be considered by the Court. See FED. R. CIV. P. 12(b)(6).
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c); Celiotex Corp. V. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 5. Ct. 2505, 2511 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S. Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S. Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
In an employment discrimination case, the Court must "focus on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff." LaPierre v. Benson Nissan, 86 F.3d 444, 447-48 (5th Cir. 1996). The Court "must draw all reasonable inferences in favor of the nonmoving party, and [the Court] may not make credibility determinations or weigh the evidence." Reeves V. Sanderson, 530 U.S. 133, 150, 120 S. Ct. 2097, 2110 (2001).
B. Title VII
Title VII of the 1964 Civil Rights Act provides that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). A Title VII plaintiff bears the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2746-47 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); see also Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998); LaPierre, 86 F.3d at 447-48; Porter v. Milliken Michaels, Inc., 2001 WL 736753, *2-*4 (E.D. La. 2001). A plaintiff may prove a prima facie case of discrimination by showing (1) that he is a member of a protected class, (2) that he was qualified for the position, (3) that he suffered an adverse employment action, and (4) that others similarly situated were more favorably treated. LaPierre, 86 F.3d at 448; Urbano, 138 F.3d at 206. The elements of a plaintiff's prima facie case necessarily vary with the facts of the case and the nature of the claim. LaPierre, 86 F.3d at 448 n. 3 (citations omitted).
Once established, the plaintiff's prima facie case raises an inference of intentional discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; see also Grimes v. Texas Dep't of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). The burden then shifts to the defendant to rebut that presumption by articulating a legitimate, nondiscriminatory reason for the challenged employment action. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S. Ct. 1089, 1094 (1981). The plaintiff then has the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1089.
To determine whether plaintiff can survive a motion for summary judgment, the Court will consider "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Reeves, 530 U.S. at 148, 120 S.Ct. at 2109.
1. Failure to Promote
The Court treats plaintiff's claim that he was denied the opportunity to be a team leader as a failure to promote claim. In a failure to promote claim under Title VII, a plaintiff must show that: (1) he was within a protected class; (2) he applied and was qualified for the position sought; (3) he was not promoted or transferred; and (4) the position he sought was filled by someone outside the protected class. See Burdine, 450 U.S. at 253-54, 101 S. Ct. at 1094; Grimes, 102 F.3d at 140.
Defendant argues that plaintiff fails to establish a prima facie case because he cannot establish that he suffered an adverse employment action, or in the alternative, that plaintiff fails to rebut defendant's legitimate nondiscriminatory business reason for not promoting plaintiff. See Def.'s Memo. in Support of Summ. J. at 14. Since Judge Sear already rejected defendant's argument that plaintiff did not suffer an adverse employment action, this Court need not revisit this issue. See Durkin v. Henderson, 2001 WL 1254865, *1-3 (E.D. La.). In any event, the Court finds that defendant articulates a non-discriminatory reason for failing to give plaintiff a position as a team leader. plaintiff's supervisor, Karl Kell, testified that plaintiff was not given a position as team leader after he was assigned to the position of audit inspector because there was not enough work to justify creating a team for him to lead in the audit field. See Government's Ex. A-3, Kell Affidavit at 4. Kell further testified that defendant did not transfer plaintiff to team-oriented work outside the audit field so the he could get non-audit supervisory training because the USPS had spent money and time to train plaintiff for his audit inspector's position, and Kell did not want that money to go to waste. See id. at 5. The two team leader positions Kell filled during his tenure as Inspector in charge of the New Orleans office went to individuals with leadership experience in the fields in which the leadership positions were available. Their experience in those fields made it possible to fill the positions without additional training. See id. at 5-6.
Plaintiff now has the opportunity to demonstrate that the defendant's articulated rationale is merely a pretext for discrimination. Reeves, 530 U.S. at 143, 120 S. Ct. at 2106. If the plaintiff can raise a genuine issue of material fact as to whether he has established pretext, that will suffice to avoid summary judgment. Id. ("Plaintiff may attempt to establish that he was the victim of intentional discrimination by showing that the employer's proffered explanation is unworthy of credence.") (internal quotes and cites omitted). Here, plaintiff makes no attempt to establish that defendant's explanation for failing to promote him is pretextual. Accordingly, the Court grants defendant's motion for summary judgment on the failure to promote claim.
2. Hostile Work Environment
Plaintiff contends that he was subjected to a hostile work environment. See Pl.'s Cmplt. at ¶ 18; Pl.'s Opposition and Memo in Supp. of Summ. J. at 4. Defendant argues that this claim should be dismissed because plaintiff failed to raise it with the EEOC as part of his administrative complaints. See Def.'s Reply at 3. The Fifth Circuit stated that "[t]he scope of inquiry of a court hearing in a Title VII action `is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of a charge of discrimination.'" Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990) (quoting Sanchez v. Standard Brands, 431 F.2d 455, 466 (5th Cir. 1970)).
Here, plaintiff made no claims of hostile work environment in his administrative complaints. The scope of his claim in his first complaint was limited to an investigation of his placement on the Internal Crimes Team as an auditor inspector rather than as a team leader. See Government's Ex. A-1, USPS EEOC Letter. The claims in the second complaint, which as explained below are time-barred, likewise did not encompass a hostile work environment claim. See Government's Ex. A-4, USPS EEOC Letter. A hostile work environment claim under Title VII requires a court to evaluate whether the harassment is "so severe or pervasive as to alter conditions of [the victim's] employment and create an abusive working environment." Faragher v. Boca Raton, 524 U.S. 775, 786, 118 S. Ct. 2275, 2283 (1998) (internal quotes omitted). Workplace conduct is not measured in isolation; instead, "whether an environment is sufficiently hostile or abusive" must be judged "by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 787-88, 118 S. Ct. at 2283 (internal quotes omitted). Given the scope of the investigation required by the filing of a hostile work environment claim, the Court finds that it is unreasonable to expect that the scope of either of the earlier EEOC proceedings encompassed the hostile work environment claim. Accordingly, plaintiff's hostile work environment claim is dismissed.
3. Plaintiff's Second Administrative Complaint
Defendant moves to dismiss all claims arising from plaintiff's second administrative complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. The Court will consider the motion under Rule 56 because the Fifth Circuit has held that a failure to follow an EEOC prerequisite does not rob a court of jurisdiction. Henderson v. United States Veterans Administration, 790 F.2d 436, 440 (5th Cir. 1986); Young v. City of Houston, 906 F.2d 177, 180 (5th Cir. 1990). Defendant argues that plaintiff failed to file this lawsuit on a timely basis after the EEOC administrative law judge issued a final ruling on his second administrative complaint. Under the EEOC's regulations governing complaints by federal employees, a complainant must file a civil action in the appropriate federal district court within 90 days of receipt of the final action on an individual complaint if no appeal is filed or 90 days from receipt of the EEOC's final decision on an appeal. 29 C.F.R. § 1614.407(a) and (c); see also Willaims v. Henderson, 2001 WL 246407, *3 (E.D. La. 2001).
Here, the EEOC denied plaintiff's request for reconsideration on plaintiff's second administrative complaint on October 20, 2000. See Def.'s Ex. A-6. Plaintiff did not file this lawsuit until April 5, 2001, more than 90 days from when plaintiff received the decision. Because plaintiff filed this complaint too late, the Court finds that plaintiff is barred from bringing the claims stemming from his second administrative complaint.
III. Conclusion
For the reasons stated, the Court GRANTS defendant's motion for summary judgment and DENIES plaintiff's motion.