Opinion
EP-99-CA-56-DB.
July, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant's "Motion to Dismiss, or in the Alternative, for Summary Judgment," filed in the above-captioned cause on December 21, 1999. Plaintiff filed a Response to Defendant's Motion on January 20, 2000. Thereafter, on January 28, 2000, Defendant filed a Reply to Plaintiff's Response.
After due consideration, the Court is of the opinion that Defendant's Motion for Summary Judgment should be granted in part as set forth below.
FACTS
Plaintiff Arturo A. Haran has worked in various capacities for the United States Customs Service ("Customs"), an arm of the United States Department of the Treasury, since 1975. Defendant Lawrence H. Summers is Secretary of the Department of the Treasury. From June 1994 to January 1998, Plaintiff filed six complaints of discrimination in employment with the Department of Labor, the agency charged with investigating violations of and enforcing the employment discrimination laws applicable to federal agencies such as Customs. Through those charges (generally referred to as "EEO charges"), Plaintiff sets forth a long list of incidents, controversies and disputes Plaintiff alleges constitute employment discrimination. Based on those alleged events, Plaintiff further describes a long-standing conspiracy of harassment designed to force Plaintiff to retire from his employment with Defendant, allegedly because of his age and national origin. To that end, Plaintiff alleges that Harvey Pothier ("Pothier"), a long-time Customs employee and Plaintiff's organizational superior at various times, set out to get rid of Plaintiff because of Plaintiff's age and/or national origin and/or in retaliation for Plaintiff's EEO activity.
Apparently, since this Motion was filed, Plaintiff retired from his position with Customs effective December 31, 1999.
Plaintiff also allegedly filed two other EEO charges in 1980, which Plaintiff states were resolved in 1986. Accordingly, those two charges are not part of this lawsuit.
In general, the organizational hierarchy of the relevant Customs group — the Aviation Branch — is as follows (from top to bottom): Commissioner of Customs; Assistant Commissioner of Customs; Deputy Assistant Commissioner; Director of Aviation Branch; Director, Customs National Aviation Center ("CNAC"); Director of Domestic Operations; branch chiefs; aviation group supervisors; pilots.
Specifically, Carl Craig ("Craig"), another Customs official, testified by deposition to the following conversation he had with Pothier in the Fall of 1992:
[H]e said, "this guy, Art Haran, fucked me and I'm going to fuck him back." And I said, "Excuse me?" And he said, "I'm going to put you in this job so this guy can't have his job when he comes back from wherever the heck he is at, Mexico City or something."
Craig further testified that Pothier "said there was a difference of opinion in what was said at a meeting . . . between the [Drug Enforcement Agency ("DEA")] and Customs. And Art sided with the DEA . . . . [Plaintiff] basically made a statement to them that basically defied Pothier's edict, I guess, or his doctorate [sic], and that was the issue."
From January 1989 to June 1992 and from April 1994 to July 1995, Plaintiff was an "Aviation Group Supervisor" ("AGS") at Customs' El Paso, Texas, unit. As an AGS for more than ten years, Plaintiff twice applied for open "branch chief" positions in the Aviation Group, for San Diego, California in 1996 and for Tucson, Arizona in 1997. At the commencement of the selection process, Customs' Office of Human Resources screens applications, creating a "Best Qualified List" ("BQ List"). Each applicant on the BQ List is considered qualified for the position. If there are fewer than ten qualified applicants, the BQ List is not ranked. If ten or more applicants are qualified, a panel of reviewers is appointed to score those applicants and rank them accordingly. The BQ List then is forwarded to the "selecting official" — the ultimate decision-maker — whose level in the organization varies. The selecting official either personally selects a candidate or delegates that responsibility to another official within his command — a "recommending official." As the recommending official forwards his recommendation up the chain of command to the selecting official, each official along the chain has an opportunity to "concur" or "non-concur" in that recommendation. Eventually, the recommendation reaches the selecting official, who typically relies on the recommendation in making an ultimate selection.
Customs selected another AGS, Bill Cecil ("Cecil"), for the San Diego position upon Pothier's recommendation to Walter Biondi ("Biondi"), then Assistant Commissioner for Customs. In that respect, Pothier recommended Cecil, who was ranked last on the San Diego BQ List of ten. Plaintiff was ranked fifth. Pothier testified in deposition that he questioned Plaintiff's judgment and leadership ability based on three incidents over a period of years: a June 1992 altercation in Mexico between Plaintiff and another Customs' employee (the "Mexico City altercation"); a March 1991 incident involving a plane under Plaintiff's command which landed in Mexico without authorization (the "Mexico landing incident"); and a September 1994 incident in which Plaintiff allowed a former Customs employee to use a Customs aircraft for his own benefit (the "check-ride incident"). Pothier also believed Plaintiff tended to side with his employees when those employees were accused of wrongdoing. Cecil, Pothier believed, was the better candidate because he had experience as Acting Branch Chief in Corpus Christi, Texas. Plaintiff testified in deposition that Cecil was qualified at the time of the selection, but that he (Plaintiff) was better qualified for the San Diego branch chief position "[b]y a little."
For the Tucson branch chief position, Richard Hoglund ("Hoglund"), then Deputy Assistant Commissioner, delegated recommendation responsibility to Robert Viator ("Viator"), who, as Director of Domestic Operations, would be the selectee's direct supervisor. Hoglund ultimately selected another AGS, Dennis Lindsay ("Lindsay"), wholly upon Viator's written recommendation. For the Tucson position, no panel of reviewers was convened, so Viator had only an alphabetical BQ List. Viator knew and previously had some interaction with most, but not all, of the Tucson position applicants, including Plaintiff. Viator made a "first cut" down to a list of four candidates based on the application packets alone. Plaintiff was not one of the four Viator selected. Thereafter, Viator recommended Lindsay based on his "exposure to the full gamut of issues that may occur" as a Branch chief; his "direct exposure to . . . [those issues] either at the field level, first-line supervisory level, and/or the Headquarters/CNAC"; "his enviable ability to interact with subordinates, peers, and supervisors"; and his successful implementation of an unpopular restructuring program while Acting Tucson Branch Chief. Viator also believed Lindsay's greater headquarters-level experience and background as a Customs pilot and as Customs' national safety officer were significant reasons for selecting Lindsay for the Tucson position.
Viator knew of Plaintiff's EEO activity but testified that he did not consider that activity when eliminating Plaintiff from the list of four. Viator further testified that he did not select Plaintiff because he questioned Plaintiff's judgment and leadership skills and considered his overall experience with Plaintiff negative, based on several incidents. Specifically, Viator believed Plaintiff's involvement in the Mexico City altercation and with a 1995 disciplinary action of one of Plaintiff's subordinates reflected negatively on Plaintiff's leadership abilities. Viator believed Plaintiff had difficulty in supervisory roles because he tended to be too lenient on employees where discipline was needed. Finally, Viator believed that Plaintiff was unable to communicate effectively, which is an important skill needed for the Branch chief position. Based on those events and qualifications, Viator did not consider Plaintiff beyond the BQ List and recommended Lindsay for the Tucson Branch chief position.
In 1995, Customs investigated El Paso pilot Tony White for misrepresenting his pilot credentials on his application for the position and for flying the subsequent four years without proper certification. When Plaintiff learned of White's dubious credentials, Plaintiff did nothing and later wrote to the Commissioner of Customs on White's behalf.
Corralling all these events and others, Plaintiff filed a Second Amended Complaint on December 21, 1999, therein alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") and national origin discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. ("Title VII"). The instant Motion for Summary Judgment followed.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted only where "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). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
DISCUSSION
As an initial matter, it appears both Parties suffer from the same ability to turn word into page and page into novel. Through some eighty pages of briefs and twenty times as many pages of evidence, the Parties ping-pong the many alleged incidents of discrimination, retaliation and conspiracy; Customs procedures; and statistical evidence. To the extent the Parties do not adequately point the Court to evidence in the Record, the Court need not — and, indeed, will not — "sift through the record in search of evidence" in either party's favor. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir. 1992).
Plaintiff sets forth a bold, detailed statistical theory that "Hispanics have been underrepresented and discriminated against in the Federal Workforce." Without going into detail, the Court does not consider Plaintiff's statistical evidence. Foremost, the Court cannot fathom how this evidence about the racial composition of the entire federal workforce somehow relates to Plaintiff's claim that Pothier conspired to get rid of him because he (Plaintiff) is Hispanic. Moreover, Plaintiff's contentions are largely unsubstantiated by admissible summary judgment evidence. What evidence Plaintiff does provide in the form of affidavit testimony is entirely self-serving, conclusory and wholly lacking any indication of personal knowledge, notwithstanding his averment that he has "personal knowledge of the facts stated [t]herein." Consequently, the Court does not consider these statements. See FED. R. CIV. P. 56(e); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994) (noting that unsubstantiated and subjective beliefs and opinions are not competent summary judgment evidence); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992) (finding conclusory allegations not competent summary judgment evidence).
The Court simply cannot exhaustively detail Plaintiff's claims here. Plaintiff's Second Amended Complaint numbers some seventy-eight paragraphs in over twenty-two pages, and is chock-full of tiny employment-related vignettes allegedly constituting discreet employment actions and/or somehow probative of Defendant's on-going pattern and practice of discrimination from 1986 to the present. Many of those independent instances of alleged discrimination cannot be brought before this Court due to jurisdictional limitations — namely, exhaustion of administrative remedies. See 29 C.F.R. § 1614.105(a)(1); see also Pacheco v. Rice, 966 F.2d 904, 904-05 (5th Cir. 1992) (upholding dismissal of suit where plaintiff failed to notify EEO counselor within prescribed time); Wilson v. West, 962 F. Supp. 939, 945 (S.D.Miss. 1997) ("Failure to notify the EEO counselor in a timely fashion [-forty-five days-] bars a claim absent a defense of waiver, estoppel or equitable tolling."). Accordingly, the Court does not consider any claimed adverse employment action or discriminatory act that occurred prior to April 22, 1994, forty-five days prior to Plaintiff's first EEO filing on June 8, 1994. Similarly, Plaintiff's claim that he wrongfully was denied annual leave from July 3 through July 7, 1995, should be dismissed as untimely because Plaintiff never included this claim as part of any EEO proceeding.
Moreover, through his Second Amended Complaint, Plaintiff attempts to "incorporate by reference all allegations" set forth in certain EEO charges, even though those EEO charges are neither attached as exhibits thereto nor submitted with either Party's brief on the instant Motion. Accordingly, the Court cannot consider any such unknown allegation, even if referenced elsewhere in the Record.
That said, Plaintiff concedes that he states but two claims, both based on national origin and retaliation: (1) Customs' failure to promote him to San Diego Branch chief in 1996 and (2) Customs' failure to promote him to Tucson Branch chief in 1997. Accordingly, the Court is of the opinion that summary judgment should enter as to all other claims. Although based on essentially the same facts, Plaintiff's disparate treatment claims and retaliation claims merit separate consideration.
A. Disparate Treatment
Title VII makes it "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 . . . national origin." 42 U.S.C.A. § 2000e-2(a)(1) (West 1994) (emphasis added). In disparate treatment claims, it is imperative that the nonmovant "present evidence — not just conjecture and speculation" that the defendant discriminated against the plaintiff on the basis of a protected trait. Grimes v. Tex. Dep't of Mental Health Retardation, 102 F.3d 137, 140 (5th Cir. 1996). The focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Id. at 139. Thus, "[t]o defeat a motion for summary judgment . . ., a Title VII plaintiff . . . must show that there is a conflict in substantial evidence on th[e] ultimate issue." Long v. Eastfield College, 88 F.3d 300, 308 (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996)).
A plaintiff can prove discriminatory animus either by direct evidence or through an indirect, or inferential, method of proof. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1216 (5th Cir. 1995). Absent direct proof, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence to raise an inference of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). The burden then shifts to the defendant to rebut that inference by articulating a legitimate, nondiscriminatory reason for the challenged employment action. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If the defendant articulates such a reason, the inference of discrimination drops out. See Bauer, 169 F.3d at 967 (citing Rhodes, 75 F.3d at 993).
Plaintiff proffers that there is direct proof of national origin discrimination based on certain statements Pothier made relating to Hispanics. Plaintiff contends that "[d]irect evidence includes statements that directly suggest the existence of bias because the offending comments cannot reasonably be interpreted as anything other than a reflection of bias." Plaintiff clearly misunderstands the difference between "direct" proof and "indirect" proof of discrimination. Clearly, "direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption." Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir. 1995) (internal brackets and quotation marks removed) (quoting Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993)). Thus, direct evidence shows that the employment action was taken specifically because of the protected trait. See, e.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S.Ct. 613, 622, 83 L.Ed.2d 523 (1985) (challenging policy which turned directly on age). In short, as described more fully below, Pothier's alleged statements do not prove, without more, that Pothier's conduct toward Haran was discriminatory.
The burden of proving the ultimate question — whether the defendant intentionally discriminated against the plaintiff — remains always with the plaintiff, which can be met by demonstrating that the defendant's proffered reasons were merely pretext. See Rhodes, 75 F.3d at 993. At that point, to avoid summary judgment, a plaintiff must show that "the evidence, taken as a whole . . . creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer." Grimes, 102 F.3d at 141; see also id. at 142 (quoting district court, "the relevant inquiry is not whether [the employer's reasons] were wise or correct, but whether they were honestly held and free of discriminatory basis"). Thus, a plaintiff cannot simply disagree with the employer's understanding of the events. See id. Rather, the evidence must "`support a reasonable inference that the proffered reason is false; a mere shadow of doubt is insufficient.'" Bauer, 169 F.3d at 967 (emphasis added) (quoting E.E.O.C. v. Louisiana Office of Community Svcs., 47 F.3d 1438, 1443-44 (5th Cir. 1995)). Moreover, where the evidence demonstrates that something other than protected class motivated the employer instead of the stated reason, summary judgment can still be proper. See Grimes, 102 F.3d at 143 (upholding summary judgment where district court found that evidence of pretext suggesting that the employer's true motivation was dislike for the plaintiff did not support an inference of intentional discrimination).
"[Title VII] was not intended to be a vehicle for judicial second-guessing of employment decisions nor was it intended to transform the courts into personnel managers. [Title VII] cannot protect . . . employees from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated." Louisiana Office of Community Svcs., 47 F.3d at 1448 (quoting Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988)). Thus, "[a] genuine issue of material fact exists when evidence shows the plaintiff was `clearly better qualified' than" the employee hired in his stead. Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996). "Unless disparities in curricula vitae are so apparent as virtually to jump off the page," Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993), a court should not "substitute [its] judgment for the employer in evaluating" applicants for selection "in the absence of proof that the standards were not consistently applied or were so irrational or idiosyncratic as to suggest a cover-up." Louisiana Office of Community Svcs., 47 F.3d at 1445-46; see also Odom, 3 F.3d at 847 (noting that courts do not have years of experience and expertise in the field in question to substitute own evaluation of qualifications over employer's).
Here, Defendant does not contend that Plaintiff cannot establish a prima facie case as to either non-promotion claim based on national origin. Rather, Defendant articulates a legitimate, non-discriminatory reasons for not selecting Plaintiff — that Cecil was the best qualified applicant for the San Diego position and Lindsay was the best qualified applicant for the Tucson position — and that Plaintiff cannot show that he is "clearly better qualified" than each respective selectee to prove pretext.
1. San Diego Branch Chief Position
With respect to the San Diego position, the material facts are undisputed. Plaintiff agreed during his deposition that, at best, he was no more than "a little" better qualified than Cecil for the San Diego position. Plaintiff does not demonstrate or provide any evidence to show how he was clearly better qualified than Cecil at the time. Nor does Plaintiff contend that the application process was unfair or somehow biased. Rather, Plaintiff disputes that Pothier, who was the recommending officer for that position, actually believed that Plaintiff had leadership and judgment problems based on his (Pothier's) knowledge of Plaintiff's involvement in the Mexico City altercation and the Mexico landing incident. In essence, Plaintiff contends that to consider such events in rejecting Plaintiff's application was pretextual because the investigations and reprimands he received respecting those incidents were "unjustified" and "frivolous and unfounded." Indeed, Plaintiff wastes much space discussing those incidents, the resulting investigations and disciplinary steps to contend that he somehow was wrongly accused. Frankly, the Court finds that Plaintiff's disagreement with Pothier's stated reasons falls far short of demonstrating that he was clearly better qualified for the position. See, e.g., Guthrie v. Tifco Indus., 941 F.2d 374, 379 (5th Cir. 1991) (ignoring employee's pretext evidence which merely proved difference of opinion about employer's criticisms).
Plaintiff also attempts to show that Pothier could not have believed these incidents reflected Plaintiff's judgment because, according to Plaintiff, "significant wrongdoing and violation of policy did not prevent the promotion of non-Hispanic individuals to high level management positions in the Aviation Program." In that vein, Plaintiff describes some nine individuals who purportedly were treated more favorably with respect to discipline. Unfortunately, the bulk of Plaintiff's contention either is wholly unsupported or is based wholly on Plaintiff's self-serving affidavit testimony. Unsupported averments carry little summary judgment weight. See, e.g., Ray v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th Cir. 1995) (finding employee's bald assertion that older employees "forced out" insufficient). Furthermore, Plaintiff does not provide any proof that any of those individuals who allegedly received favorable treatment is not Hispanic, and the Court will not assume so based solely on such individual's surname. Similarly, the Court refuses to compound this litigation by reviewing Customs' discipline and employment decisions not minimally related to Plaintiff. Hence, Plaintiff's argument is wholly without merit.
Although he does not come right out to say so, Plaintiff also appears to contend that some alleged remarks Pothier made at various times prove pretext. Unless made directly within the context of an employment decision affecting the plaintiff or directly referring to the plaintiff, stray remarks relating to a protected status generally, if sufficiently removed in time and scope from the challenged employment action, standing alone, cannot prove pretext. See Brown v. CSC Logic, Inc., 82 F.3d 651, 655-56 (5th Cir. 1996). "Comments that are `vague and remote in time' are insufficient to establish discrimination." Id. at 655 (quoting Guthrie, 941 F.2d 374); see also Krystek v. University of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999); Ray v. Tandem Computers, Inc., 63 F.3d 429, 434-35 (5th Cir. 1995). "The mere utterance of a racial epithet is not indicia of discrimination under Title VII." Boyd v. State Farm Ins. Cos., 158 F.3d 326, 329 (5th Cir. 1998); see also id. at 329-30 (finding fact that supervisor called plaintiff "Porch Monkey" and "Buckwheat" not sufficient indicia of discrimination, even assuming racially related).
Here, Pothier allegedly made three Hispanic-related comments from 1993 to 1995, none of which is sufficiently related in time, scope or clarity of discriminatory design to be of any use to Plaintiff here. Pothier allegedly referred to another Customs employee, Oscar Vera, as "Turbo Taco," "OB-Juan" and "El General Pequeno" ("the Little General"). Defendant does not dispute that Pothier made such statements. According to the evidence submitted, even assuming these comments relate strictly to Vera's national origin, Pothier allegedly made them at a pair of retirement parties sometime in 1993 and in the Spring of 1994, some two years before Plaintiff applied for the San Diego position in 1996 and three years before the Tucson position in 1997, in contexts wholly unrelated to Plaintiff. Having nothing to do with Plaintiff and apparently directed at Vera only, Plaintiff cannot somehow link Pothier's remarks to pretext. Indeed, Pothier's motivation in not promoting Plaintiff, if anything other than to select the best qualified candidate, was likely not Plaintiff's national origin or EEO activity, but the fact that, according to Pothier, "Art Haran, fucked [him] and [he was] going to fuck him back." No matter how hard Plaintiff tries, Pothier's motivation behind that statement cannot be construed as relating to Plaintiff's national origin. Hence, the Court finds that Plaintiff has not rebutted Defendant's legitimate, non-discriminatory reason by proving pretext. Accordingly, the Court is of the opinion that Plaintiff's national origin discrimination claim regarding the San Diego non-promotion fails and summary judgment should enter as to that claim.
2. Tucson Branch Chief Position
With respect to the Tucson Branch chief position, Plaintiff makes the same arguments — essentially, that Pothier engineered Plaintiff's non-selection. This time, however, Plaintiff's argument is even more inapposite because Pothier's involvement as a decision-maker was limited. Furthermore, except for Plaintiff's unsupported opinion that he was more qualified than Lindsay, Plaintiff presents no evidence to prove pretext.
Plaintiff attempts to show some connection to Pothier here by arguing that, "[o]bviously, [Viator] `owed his mentor and supervisor, Harvey Pothier," when not selecting Plaintiff. This contention is wholly unsupported. Accordingly, the Court does not consider it.
Similarly, Plaintiff contends that "Pothier admitted that he was involved in the decision to select Lindsay," but Plaintiff provides no supporting evidence. Accordingly, it is undisputed that Pothier had no involvement other than as a supervisor in the chain of command between Viator as recommending official and Hoglund as selecting official. That Pothier necessarily played some role in every employment decision as Director of the Aviation Branch, no matter how tangential, is insufficient to add any discriminatory animus to the mix, even if supported by admissible evidence.
The material facts here also are undisputed. Viator recommended Lindsay to Hoglund — the selecting official — from an alphabetical (i.e., not ranked) BQ List of nine, without any input from Pothier or any other individual. Viator read through the applications and narrowed the BQ List down to four individuals, which four did not include Plaintiff. Viator made this "narrowing" based on his personal knowledge of the applicants and the documents contained in each application packet. After further narrowing the list to two, Viator recommended Lindsay based on Lindsay's broad experience, including as a supervisor, at Customs' Headquarters and as Tucson Acting Branch Chief; and his ability to relate to and interact with other Customs employees no matter what level. On the other hand, Viator did not include Plaintiff on the initial list of four because, like Pothier, Viator considered Plaintiff's judgment and leadership abilities suspect based on Plaintiff's involvement in the Mexico City altercation, the Tony White discipline incident, and the check-ride incident. Also, Viator's overall impression from working with Plaintiff was "negative." Rather than show that he was clearly better qualified than Lindsay, Plaintiff merely contends that Viator's understanding of the three incidents claimed to demonstrate Plaintiff's poor judgment "was subjective, unsubstantiated, and incomplete . . . given Haran's explanations," and that Viator "stereotyped" him "[b]y using the altercation in Mexico without . . . knowing the full facts."
Plaintiff wholly misses the mark. As with Pothier's non-recommendation of Plaintiff to the San Diego position, even if Viator erroneously based his general impression of Plaintiff on speculation and rumor about the Mexico altercation and the other incidents, Plaintiff has not shown that Viator's decision to do so was motivated by Plaintiff's national origin. Moreover, Plaintiff's credentials for the Tucson position hardly "jump off the page." Rather, Plaintiff stretches his qualifications only enough to show that, at best, reasonable decision-makers could go back and forth about his qualifications as compared to Lindsay's. Also, the qualities Plaintiff focuses on bear no patent importance, such as Plaintiff's contention that Lindsay had "very little practical or law enforcement experience." Similarly, Plaintiff's ten years as an AGS are not clearly significant. See Bodenheimer v. PPG Indus., Inc., 5 F.2d 955, 959 (noting that years of service not the same as superior qualifications). Mostly, however, Plaintiff's contentions regarding his superior qualifications are made without admissible evidentiary support.
Because Plaintiff offers absolutely no evidence to show that Viator's stated reasons were not the real reasons motivating the challenged action and has not proven that he was clearly better qualified that Lindsay, Plaintiff has not proven pretext. Consequently, the Court is of the opinion that summary judgment should enter as to Plaintiff's national origin claim regarding the Tucson position non-promotion.
B. Retaliation
Title VII also makes it unlawful for an employer to retaliate against an employee "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" regarding Title VII violations. 42 U.S.C.A. § 2000e-3 (West 1994). Absent direct proof, the same inferential proof method set forth above applies to retaliation claims. See Eastfield College, 88 F.3d at 304-05. To establish a prima facie case of retaliation in violation of Title VII, Plaintiff must show: (1) that he participated in an activity protected by Title VII; (2) that he suffered an ultimate employment action; and (3) that there is a causal link between the protected activity and the adverse employment action. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997).
In retaliation cases, the reason must be non-retaliatory rather than non-discriminatory. See Eastfield College, 88 F.3d at 305.
Here, Defendant contends that Plaintiff cannot state a prima facie case because he cannot show a causal link between all of his EEO activity and the San Diego and Tucson Branch chief positions not being awarded to him. Defendant further contends that, even if Plaintiff can state a prima facie case, the same legitimate non-discriminatory reasons articulated above — that Cecil and Lindsay were better qualified — applies, and Plaintiff cannot show otherwise. The Court agrees with Defendant as to the San Diego position, but finds that a factual issue prevents summary judgment as to the Tucson position.
Although the "causal link" element ultimately requires an employee to "show that her employer would not have taken the adverse employment action `but for' the employee's participation in the protected activity," Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 972 (5th Cir. 1999) (citing Eastfield College, 88 F.3d at 304 n. 4), for prima facie purposes, the employee need only show some connection. See Eastfield College, 88 F.3d at 304 n. 4. Such a causal link can be shown by demonstrating a temporal proximity betwen the employer's knowledge of the EEO activity and the challenged action. See, e.g., Payne v. McLemore's Wholesale Retail Stores, 654 F.2d 1130, 1141 n. 13 (5th Cir. Unit A Sept. 1981). Conversely, a significant lapse of time between the EEO activity and the ultimate employment action is a factor. See, e.g., Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992). Ultimately,
1. San Diego Position
Here, with respect to the San Diego position, the material facts are not genuinely disputed. Plaintiff tries to show a causal connection in that, allegedly, Pothier bore an "attitude towards complainers," to "knock them down, roll them over, or move them out of the way." Even if true, Plaintiff simply stretches the facts too far by contenting that Pothier's alleged attitude "obviously includes those employees who filed EEO Complaints." First, Plaintiff provides no evidence to support this contention. Furthermore, if the attitude extended to all employees who complained about anything, including complaints having nothing to do with discrimination — e.g., work assignments, other employees, etc. — then the logical connection between Pothier's attitude and Plaintiff's non-promotion falls out. Plaintiff made numerous "complaints" not logically associated with EEO activity, any one of which Pothier may have used to peg Plaintiff as a "complainer." See, e.g., Ray, 63 F.3d at 436 (supervisor's statement to plaintiff that "if you had not gone crying to your friends in . . . headquarters . . . you would not be in the position you are in," not significant in context of plaintiff's history of non-discrimination-related complaints about supervisor and employer's tolerance of those complaints). Moreover, Plaintiff's own evidence demonstrates that any ill will Pothier may have harbored toward Plaintiff was based on an incident involving another federal agency (the DEA) in which Plaintiff contradicted Pothier. Hence, Pothier's alleged attitude is not sufficient proof to establish causation. Accordingly, the Court finds that Plaintiff has not stated a prima facie case for retaliation with respect to his San Diego non-promotion claim.
Even if the Court were to find that Plaintiff has stated a prima facie case as this claim, the same legitimate, non-discriminatory reason Defendant set forth respecting Plaintiff's national origin claim — that Cecil was more qualified — applies here as a non-retaliatory reason. Although the employee need not prove that his EEO activity was the sole factor motivating the challenged action, an employer cannot be liable if the plaintiff would not have been promoted even in the absence of his EEO activity. See Eastfield College, 88 F.3d at 304-05 n. 4. Here, Plaintiff, again, does little to show that such reason is pretext for retaliation other than to offer conclusory allegations, unsubstantiated assertions, and subjective beliefs he was not selected because of his EEO activity, which assertions are insufficient to support any discrimination claim. See Grimes, 102 F.3d at 139.
2. Tucson Position
With respect to the Tucson position, the Court finds that Plaintiff is spared from summary judgment thanks to a material factual dispute. Although there is little evidence to show that absent Plaintiff's EEO activity, Viator would have included Plaintiff as one of the four applicants in the first cut, much less that he would have recommended Plaintiff for the position, the fact that Viator, admittedly, knew about Plaintiff's EEO activity creates a factual issue the Court cannot resolve by summary judgment.
Plaintiff demonstrates at least two potentially relevant instances of EEO activity Viator was aware of: (1) a complaint against Harry Betz ("Betz"), then Albuquerque Branch Chief, Plaintiff's supervisor and Viator's direct subordinate; and (2) an affidavit Plaintiff submitted in support of Victor Malave's ("Malave") EEO complaint against Viator himself. Viator testified in deposition that he knew about Plaintiff's EEO activity but that he simply ignored that knowledge in making his recommendation. In contrast to Defendant's reliance upon Viator's testimony, Plaintiff again contends that he is clearly better qualified than Lindsay for the Tucson position. While the Court addressed this contention above (with respect to Plaintiff's national origin discrimination claim), here, Plaintiff does not rely solely upon that contention. Rather, Plaintiff contends that the timing of Plaintiff's non-selection also bears a significant relationship to Plaintiff's EEO activity to create an inference of retaliation. Plaintiff submitted his application for the Tucson position in June 1997, less than one year after Viator became aware in late 1996 of Plaintiff's EEO complaint against Betz, which followed on the heals of Plaintiff's affidavit in support of Malave. Furthermore, Plaintiff contends, knowledge of the EEO activity is a factor for the Court to consider. See, e.g., Casarez v. Burlington N./Santa Fe Co., 193 F.3d 334, 339 (5th Cir. 1999). Taken as a whole and evaluated in a light most favorable to Plaintiff, there is a conflict in substantial evidence such that, although a slim factual dispute, the Court finds it sufficient for Plaintiff to avoid summary judgment here. Thus, the Court is of the opinion that Defendant's motion should be denied as to Plaintiff's Tucson retaliation claim.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is GRANTED IN PART.