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finding that plaintiff's conversation with his supervisors that he felt discriminated against fit into the definition of protected activity
Summary of this case from Smith v. Dynamic Security, Corp.Opinion
No. 95 Civ. 1096 (KTD).
February 6, 2001.
For Plaintiff; David M. Rosoff, Harrison, New York.
For Defendant; Mary Jo White UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK By: Sheila M. Gowan Silvia Lucia C. Serpe Assistant United States Attorneys, New York, New York.
OPINION
Aaron Kelley sued Togo D. West, Jr., the Secretary of the Department of Veterans Affairs, for race and gender discrimination arising from his employment at the Bronx Veterans Administration Hospital (hereinafter the "V.A."). Kelley claimed he was discriminated against on the basis of race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. when his supervisors evaluated his work as "fully successful"; reassigned him from one social work unit to another; failed to select him for two social work coordinator positions for which he had applied; and condoned another supervisor's derogatory comments about him. Furthermore, Kelley claimed that his supervisors committed most of these acts of discrimination in retaliation against Kelley's "protected" Title VII activities and that such acts created a hostile work environment.
Although plaintiff filed his complaint pro se, he retained counsel once defendant moved for summary judgment and the same counsel represented plaintiff at trial.
All of these Title VII violations were first pursued by Kelley before the Equal Employment Opportunity Commission ("EEOC"), See 29 C.F.R. § 1601.28(e)(1), or are "reasonably related" to those claims he pursued before the EEOC, Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (quoting Butts v. City of New York Dep't of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993)
Both parties moved for summary judgment. By Endorsement dated November 8, 1996 I denied plaintiff's motion. By Endorsement dated September 1, 1998 I denied defendant's motion. On November 17, 2000 defendant filed a motion in limine precluding plaintiff from offering the testimony of certain persons at trial and directing that the case be tried to the Court. By Endorsement dated November 27, 2000 I granted in part and denied in part defendant's motion in limine. I permitted plaintiff to call all but one of the witnesses listed in the Joint Pretrial Order; but I ordered that the case be tried to the Court, due to plaintiff's failure to comply with Rule 38(B) of the Federal Rules of Civil Procedure. On December 4, 2000 plaintiff moved for reconsideration of my decision to preclude one of his witnesses from testifying. I denied his motion on December 7, 2000.
I heard testimony and received evidence at the four day bench trial of this matter on December 7, 11, 12, and 13, 2000. The following constitute my findings of fact and conclusions of law.
FINDINGS OF FACT
Aaron Kelley, a 65 year old African-American male, was employed by the V.A. from 1978 to December of 1997. From 1978 until 1982 plaintiff worked for the V.A. as a community care worker. In 1982 plaintiff took a brief leave of absence to complete his social work studies. In 1983, after receiving a Master's Degree in social work, Kelley returned to the V.A. as a GS-9 social worker. By 1990 plaintiff held the position of a GS-11 social worker. He worked in the ambulatory care unit of the V.A. and was supervised by John Kuhn. Kuhn, who is Caucasian, was hired by the V.A. in 1990 as a GS-12 social work supervisor.
The "GS" numbers indicate different levels of pay, experience, and responsibility among the social workers within the V.A.'s social work department.
Under Kuhn's supervision the "Resource Entitlement Advocacy Program" (hereinafter "REAP") was developed. REAP was a program that trained volunteers to assist veterans in gaining access to Veterans' Benefits, Medicaid, Public Assistance, and other entitlements. The program became operational in January of 1991. In April of 1991, plaintiff was named "MSW Social Work Employee of the Month." Although Kuhn nominated Kelley for the award, the nomination form itself was signed by the Chief of Social Work, Ann Feder. On the form, Feder indicated that it was Kelley's work on REAP that earned him the nomination. The V.A. hung plaintiff's picture in the hospital lobby, offered him an assigned parking space, and gave him a monetary award of $250.
Three different people took credit for REAP's development. Kelley testified at trial that he was the person who "initiated" the REAP program at the V.A. (Trans. 23: 9-13.) Kuhn testified at trial that he "conceptualized" the program (Trans. at 495: 18.) Plaintiff's witness, John Robert Perry, testified at trial that, with the help of Kelley and Kuhn, he "formulated" REAP. (Trans. at 100: 5-8.) Although I found Kuhn's testimony on this issue to be the most credible, a finding that one of these individuals bore more responsibility for REAP's development than the other two has no bearing on my ultimate decision in this case.
In May of 1991, Kuhn signed plaintiff's Performance Plan and Appraisal form evaluating his work from the time period April 1, 1990 to March 31, 1991. Kelley received the Appraisal on, or about, June 12, 1991. Kuhn rated Kelley "exceptional" in three out of the four "Actual Achievement" categories and gave him an overall rating of "Highly Successful." This was the first time in the twelve years that Kelley had worked at the V.A. that he received such a high rating. The rating, like his Employee of the Month award, was due in large part to Kelley's work on REAP.
Despite receiving his "Highly Successful" rating and the "Employee of the Month" award, plaintiff testified at trial that he was disappointed because he believed that the V.A. was not giving his work the recognition that it deserved. Kelley believed that his role in the REAP program should have led to a promotion of some kind. Furthermore, Kelley testified at trial that he confronted Kuhn about the fact that he received an exceptional" rating in only three of the four "Actual Achievement" categories.
According to Kelley, Kuhn told him that if he had given Kelley "exceptional" in all four categories "then [Kelley] could become a supervisor." (Trans. 36: 17-19.) Kuhn's testimony at trial contradicted Kelley's. Kuhn denied telling Kelly that a different rating would have required that Kelley become a supervisor. Moreover, Kuhn testified that becoming a supervisor was not "within [Kuhn's] power to offer" and that "[a]n outstanding rating does not in any way give [one] an opportunity to be promoted. They are completely separate processes." (Trans. 513: 20-25 — 514: 3.) Furthermore, Feder testified at trial that "[p]romotions are not . . . directly [or indirectly] linked to ratings." (Trans. 358: 15-18.)
In addition to his disappointment with his rating, Kelley was disgruntled by the fact that, shortly after he received the 1990-91 evaluation, Kuhn was promoted to Assistant Chief of Social Work. Although plaintiff did not apply for the position of Assistant Chief, he testified at trial that he considered Kuhn's promotion indicative of the kind of discrimination perpetrated by the V.A. As Kelley had explained at his EEOC hearing in this case, "[s]o [Kuhn] got promoted and I got nothing. He's white and I'm black." (Trans. at 206: 25 — 207: 1.)
In July of 1991, Beverly Kyer, an African-American woman, applied for, and was promoted to, the social work supervisor position vacated by Kuhn. Kyer was the first African-American social work supervisor at the V.A. Kyer supervised plaintiff for about a year. At the start of her supervision of Kelley, and on numerous occasions thereafter, Kyer and Kelley met and discussed Kelley's prior relationship with Kuhn; Kelley's disappointment with the fact that Kuhn had rated him only "Highly Successful;" his desire that his work be justly rewarded; and his overly burdensome workload.
In January of 1992 plaintiff had his first meeting with the V.A.'s EEOC counselor. Plaintiff testified at trial about his discussion with the counselor. He testified that they discussed his heavy caseload, due to the departure of two Caucasian social workers from the ambulatory care unit, and the fact that Kelley felt discriminated against by the V.A. since promotions and financial advancement within his grade did not seem likely. The counselor recommended that Kelley speak with Feder, the Chief of Social Work, and with Kyer, his supervisor).
Although Kelley testified that the EEOC counselor told him that he would speak to Kelley's supervisors about Kelley's meetings with an EEOC representative, (Trans. 217: 15-17), no evidence was offered at trial that Feder, Kyer, or Kuhn knew that Kelley was engaged in "protected" EEOC activity until Kelley filed his first EEOC complaint on May 20, 1992.
Shortly after his meeting with the EEOC counselor, plaintiff sent a one sentence email to Feder, Kyer, and Kuhn. It stated: "In order to insure my continued outstanding performance, please clarify my areas of responsibility." (Pl.'s Ex. 9.) On January 28, 1992 Kelley met with Feder, Kyer, and Kuhn. Kelley complained of his heavy workload and requested clarification of his work assignments). In response, Kyer and Feder requested that Kelley be as specific as possible about his "actual workload, [about] how many patients he saw, [and about his] degree of involvement." (Trans. 359: 24-25 — 360: 1.)
Kelley testified that he discussed the V.A.'s discriminatory treatment of him at this meeting, and at those that followed. (Trans. 42: 3-25 — 43: 4.) Besides Kelley's testimony, however, no evidence was offered that suggests that at this point in time the V.A. knew Kelley's dissatisfaction with his treatment by the V.A. was based on the fact that he felt discriminated against.
Feder and Kyer never received the specific information that they requested from Kelley. They each asked for the information again on February 4, 1992. On February 11, 1992, Kelley indicated in a memorandum to Feder that he would not be providing her with the requested information because "areas of responsibility are assigned by administration" and he "fully underst[ood] [his] responsibilities as a social worker." (Pl.'s Ex. 10.) On or around this same day, Kelley received the clarification that he had requested, although he testified at trial that it was woefully inadequate. (Def.'s Ex. W.) Kelley continued to meet with the EEOC counselor from January through May of 1992. He also continued to meet with his superiors on a weekly basis. During the meetings it was explained to Kelley that his increased workload was not permanent. The social worker who had the alcohol assignment had moved to the Manhattan V.A. and until he was replaced, the V.A. needed Kelley to cover the assignment.
Plaintiff testified at trial that he had a conversation with Kuhn in which Kuhn told him that he had "damaged" himself with Feder, (Trans. 56: 16-19), and in which, according to Kelley. Kuhn "specifically mention[ed]" plaintiff's EEOC complaint (id. at 56: 25 — 57: 1.) Plaintiff testified that a similar conversation took place with Kyer, in which she told him that he "had fallen down the ladder as a result of filing a discrimination case." (Id. at 57: 14-25.) However, during defendant's cross-examination of plaintiff, plaintiff admitted that these alleged conversations occurred when plaintiff first spoke to Feder, Kyer, and Kuhn in early February of 1992, three months before Kelley had "filed a discrimination case" or made an EEOC complaint. (Id. 219: 12-25 — 220: 20.)
Although Kelley testified at trial repeatedly that he believed his workload was disproportionately heavy because the V.A. was discriminating against him based on his race and gender, the testimony that defendant offered in response to this accusation convinced me otherwise. For instance, Kyer testified that Kelley did not have more assignments than any other social worker. (Trans. 271: 3-8.) Furthermore, the nature of the social work department was such that all social workers were expected to take on multiple assignments. (Id. at 272: 2-16.)
On May 19, 1992, Beverly Kyer signed plaintiff's Performance Plan and Appraisal Form evaluating his work from the time period April 1, 1991 to March 31, 1992. Plaintiff did not receive the evaluation at this time. On May 20, 1992, Kelley filed his first EEOC complaint alleging race, color, and age discrimination. He claimed to have suffered "continuous discrimination since the fall of 1990" due to the V.A.'s failure to recognize his work on REAP by promoting him or offering him a step increase. (Pl.'s Ex. 14.) Two months after filing his complaint, Kelley received Kyer's Appraisal on, or about, July 23, 1992. Kyer rated Kelley "fully successful" in all four of the "Actual Achievement" categories and gave him an overall rating of "Fully Successful." Immediately thereafter, Kelley met with Kyer to discuss the Appraisal. He testified that he was terribly disappointed with the "Fully Successful" rating. Kelley also met with Kuhn to discuss Kyer's evaluation and to express his disappointment.
Because Kelley's affidavit in support of his May 20, 1992 EEOC complaint specified that it was filed to remedy denied promotions in 1988 and 1991, the EEOC rejected the complaint as untimely. Plaintiff conceded at trial that the May 20th complaint did not form the basis of plaintiff's federal discrimination complaint and was only offered into evidence at trial for its date and for the fact of the complaint. (Trans. 55: 8-9.)
According to Kuhn, an overall rating of "Fully Successful" is given to an employee "who does their job, does a good job and performs their responsibilities and meets the demands of the assignment." (Trans. 523: 24-25 — 524: 1.) An exceptional" rating in a specific "Actual Achievement" category, on the other hand, is given to employees "whose performance . . . far exceeds normal expectations and results in major contributions to the organization." (Pl.'s Ex. 11.) When Kelley was rated "exceptional" by Kuhn it was because his help with the development of REAP "result[ed] in a major contribution" to the V.A.
On November 3, 1992, plaintiff filed his second EEOC complaint. (Pl.'s Ex. 18.) In this complaint, Kelley alleged race, color, gender, and age discrimination. He complained that his "unfair" performance rating of "Fully Successful" was "[d]ue to a continued pattern of discrimination by [his] supervisor and the Chief of Social Work Service." (Id.) Because he believed his work was "outstanding," Kelley concluded in his complaint that Kyer's rating was an act of retaliation for his first EEOC complaint of May 20, 1992.
Although alleged in his EEOC complaint, plaintiff did not include his age discrimination claim in his federal complaint.
It should be noted, however, that Kyer signed her evaluation of Kelley on May 19, 1992, the day before Kelley filed his first EEOC complaint. It follows, therefore, that Kyer's rating could not have been an act of retaliation for Kelley's May 20, 1992 complaint, for at the time that Kyer rated Kelley, Kelley had not yet filed his EEOC complaint.
On February 9, 1993, Kelley met with Kuhn to discuss his request for a change of supervisor. He requested that Kyer no longer supervise him because of "some strong EEOC concerns about continued reprisals" by Kyer. (Pl.'s Ex. 19.) On March 4, 1993, Kuhn and Feder approved Kelley's request for a new supervisor, but Kuhn explained that a change in supervisor would require a change of work assignment. Kelley's request would necessitate a move from ambulatory care, the assignment that included REAP, to intermediate care. Kelley did not want to discontinue his work with the REAP program. On March 12 and 23, 1993, Kelley wrote to Kuhn protesting his change of assignment. (Pl.'s Exs. 21, 22.) His request to switch supervisors while remaining in the ambulatory care unit, however, was denied.
According to plaintiff's witness Debra Jones, some time in 1993, Jones overheard Kyer say that she was "going to make [Kelley's] life a living hell." (Trans. 126: 6-20.) Jones told Kelley about this comment. (Id. 30: 9-11.) At trial, Kyer denied that she ever made such a comment. (Id. 308: 15-17.) I found Kyer's testimony as to this issue to be more credible than Jones'. However, defendant did offer evidence that Kelley may have felt slighted by Kyer, and that such feelings may have played a part in Kelley's request to change supervisors. (Trans. 233: 17-25 — 234: 10.)
Feder testified at length about why Kelley's request for a new supervisor mandated a change in his work assignment as well. (Trans. 366: 13 — 370: 3.) Furthermore, Feder testified that, contrary to what Kelley claimed, the situation whereby a Caucasian social worker changed supervisors while maintaining the same work assignment was completely distinguishable from Kelley's request that Kyer no longer supervise him. The Caucasian social worker did not request a change of supervisors. Instead, Feder decided to assign her a new supervisor because the woman lived with her present supervisor and Feder thought it inappropriate for one roommate to supervise another. (Trans. 370: 8-19.)
On April 22, 1993 the V.A. posted a "Vacancy Announcement" for a coordinator position in the Homeless Chronically Ill Veterans Program. (Pl.'s Ex. 30.) Five applicants, including plaintiff, applied for the position. (Def.'s Ex. F.) As part of the V.A.'s standardized selection process, the Chief held a meeting with all of the social work supervisors on duty, including Kyer and Kuhn, to discuss the candidates. (Trans. 320: 12-17.) Although Feder was the "selecting official," the meeting was intended to produce a "consensus" on the most qualified applicant for the job. (Trans. 408: 13-23.) In this instance, Feder did not conduct any interviews for the homeless coordinator position for she was familiar with all of the applicants and the personnel department had assured her that they were all qualified for the job. (Trans. 386: 12-21, 388: 10-21.) On May 6, 1993, Feder selected Doris Johnson, an African-American woman, as the homeless program's coordinator. On August 3, 1993, Kelley filed two more EEOC complaints. The first indicated that Kelley was discriminated against on the basis of race, color, gender, age, and because of his earlier EEOC complaints. He complained that the V.A.'s promotion of Doris Johnson, a light-skinned African-American woman, to the homeless coordinator position instead of Kelley, a darker skinned African-American man, evidenced discrimination on the basis of color and gender; and that such discrimination was in retaliation for Kelley's May 20, 1992 EEOC complaint. Plaintiff's second August 3, 1993 complaint alleged that Kelley's reassignment from the ambulatory care unit to the intermediate care unit was "an act of reprisal" and a "penalty" for Kelley's prior EEOC activity. (Pl.'s Ex. 31.)
Plaintiff testified extensively, and offered documentary evidence, about the fact that he was more qualified for the homeless coordinator position than Doris Johnson. (Trans. 113: 17 — 115: 10; 141: 12 — 146: 17.) Ultimately, however, I found the testimony offered by the V.A. as to why Johnson was selected more persuasive. Among other things, Johnson had worked with homeless women previously, had supervised students, and had worked in the V.A.'s drug dependency program. (Trans. 392: 21 — 393: 19.)
Kelley based his claim of gender discrimination on the fact that there were more female supervisors in the social work department than male supervisors.
On September 30, 1994, having consolidated Kelley's November 1992 and the two August 1993 complaints, the EEOC found that there had been no discrimination or retaliation on the part of the V.A. The V.A. informed Kelley of his right to appeal within the EEOC or to sue in federal court on November 28, 1994.
On September 3, 1993, the V.A. posted a "Vacancy Announcement" for the Social Work Service Coordinator position in the Women Veterans Program. (Pl.'s Ex. 62.) Feder did conduct interviews for this position. (Trans. 407: 20-21.) A memorandum addressed to Kelley and dated October 6, 1993 indicated that, although he was qualified for the coordinator position, he had not been selected. (Id.) Instead, Blanca Dominguez Fava, an Hispanic woman, was promoted to the position. (Trans. at 211: 12-19.)
On the morning of May 6, 1994, an incident occurred between Ruth Timmons, an older, Caucasian social work supervisor in the V.A.'s AIDS Unit, and Kelley. Timmons was not Kelley's direct supervisor at that time, nor had she supervised him in the past. She knew who Kelley was, however, and she needed to discuss a patient with him that the two of them shared. Timmons testified that after her various attempts to track Kelley down by phone and overhead page failed, Kelley appeared suddenly walking down the hall. When Timmons saw Kelley she started to say: "speak of the devil," but she stopped, Timmons testified, when she realized that the comment might not sound "very nice" or "very kind." (Trans. 433: 16-19.) Instead, she exclaimed something like: "Ah, my monkey comes." Although, those who overheard, and some of those who heard about, Timmons' comments were very angry and interpreted them to be racially motivated, Timmons testified that she had not meant to demean Kelley in any way. She testified that, if anything, her comment was "affectionate . . . because of [her] relief of having found him and needing so much to talk to him." (Trans. at 434: 10-17.)
Although Kelley did not hear Timmons' comments directly, he soon learned of them from the ward secretary. On May 16, 1994, Kelley wrote to Feder informing her of Timmons' comments. (Pl.'s Ex. 41.) In his memorandum to Feder, Kelley expressed outrage that such remarks had been made and conveyed his expectation that Feder would investigate the matter. (Id.) On May 17, 1994, Feder called Kelley to discuss the Timmons incident. On May 19, 1994, she followed up with a memorandum assuring Kelley that the language attributed to Timmons was "unacceptable" and that Feder was "engaged in discovering the context and intent of Ms. Timmons' alleged statements." (Pl.'s Ex. 44.)
Shortly thereafter, Feder scheduled a meeting for the entire Social Work Department so that the matter could be discussed publicly. On June 1, 1994, the V.A. disciplined Timmons by placing a reprimand in her Official Personnel Folder. The reprimand would remain in Timmons' folder a minimum of two years. (Def.'s Ex. AJ.) On June 2, 1994, a second meeting was scheduled, this time for Feder, Kyer, Timmons, and Kelley to discuss the incident privately. Kelley chose not to attend. On that same day, Timmons wrote Kelley a letter apologizing to him and expressing her regret that she did not have a chance to apologize in person. (Def.'s Ex. AG.) On July 8, 1994, Kelley filed an EEOC complaint alleging race, color, age, and gender discrimination on the basis of Timmons' comments. Moreover, Kelley alleged that the comments were in retaliation for his earlier protected EEOC activities. (Pl.'s Ex. 46.) On February 16, 1995, plaintiff filed his federal complaint. In December of 1997 Kelley accepted a voluntary buy-out, offered by the V.A. to its employees, and retired.
On September 19, 1994, Kelley's July 8, 1994 complaint was dismissed as moot due to the measures that the V.A. had taken in response to the incident. Kelley was informed of his appeal rights. (Pl.'s Ex. 47.)
CONCLUSIONS OF LAW
Title VII Generally
Title VII, 42 U.S.C. § 2000e et seq., provides redress against employers who discriminate against individuals in the workplace. To establish a prima facie case of race or gender discrimination under Title VII, I must apply the three-step burden shifting analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-57 (1981); further described in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 505-12 (1993); and recently clarified by the Second Circuit in James v. New York Racing Assoc., 233 F.3d 149, 153-54 (2d Cir. 2000).
In the Joint Pretrial Order, plaintiff claimed subject matter jurisdiction was founded on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 and § 1981 et seq. Defendant maintained, however, that section 1981 does not apply to this case. The same Title VII standards, however, apply to both sections. See Hargett v. National Westminster Bank, U.S.A., 78 F.3d 836, 838 (2d Cir. 1996). Because I find that plaintiff has not satisfied Title VII's standards under section 2000e-5 et seq., I will not address the merits, or lack thereof, of plaintiff's section 1981 claim.
Under this analysis, the plaintiff must show that he 1) is a member of a protected class; 2) was qualified to perform the duties required by the position he held; 3) suffered an adverse employment action under circumstances suggesting that his membership in the protected class was a factor; and 4) was treated differently from similarly situated employees because of a protected characteristic. See Burdine, 450 U.S. at 253-54. As the Second Circuit has stated, the plaintiff's burden of making out aprima facie case is "minimal." James, 233 F.3d at 153-54. A prima facie case does not even require evidence of discrimination. Yet once the plaintiff establishes such a case, an inference of discrimination arises and the burden shifts to the defendant to rebut the presumption of discrimination by producing evidence that the employer's actions were motivated by "legitimate, nondiscriminatory reasons." Burdine, 450 U.S. at 253 (quoting McDonnell Douglas, 411 U.S. at 802). The defendant "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Id. at 257. Although the McDonnell Douglas framework shifts the burden of production to the defendant "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Hicks, 509 U.S. at 507.
If the defendant succeeds in rebutting the presumption of discrimination, the McDonnell Douglas framework "simply drops out of the picture." Id. at 510-11. At this stage, the plaintiff must prove, by a preponderance of the evidence, two different elements: first that the defendant's legitimate, non-discriminatory reason was pretextual and was not the true reason for the adverse employment decision; and second that race or gender was the reason. See Hicks, 509 U.S. at 507-08.
1. Retaliation
Title VII also forbids an employer from retaliating against an employee who has engaged in a "protected activity." See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, the plaintiff must show 1) participation in a protected activity known to the defendant; 2) an adverse employment action disadvantaging the plaintiff; and 3) a causal connection between the plaintiff's protected activity and the adverse employment action. See Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). To prove that he engaged in a "protected activity," the plaintiff does not need to establish that the employment practice in question was in fact a violation of Title VII. See Manoharan v. Columbia University College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). All he must demonstrate is a "good faith reasonable belief" that the employer's actions violated the law. Id. Furthermore, proof of the causal connection is established if the "protected activity" is closely followed in time by the adverse employment action. See id. Once the plaintiff establishes these elements of a prima facie case, the familiar burden shifting begins and the defendant must articulate a non-retaliatory reason for the action it took and the plaintiff must prove such a reason is pretextual. See Tomka, 66 F.3d at 1308.
The "protected activity" in which plaintiff participates is not limited to filing a formal complaint. See Kotcher v. Rosa and Sullivan Appliance Center, 957 F.2d 59, 65 (2d Cir. 1992).
2. Failure to Promote due to Discrimination/Retaliation
Under the McDonnell Douglas burden-shifting framework, a prima facie failure to promote claim requires that the plaintiff prove 1) membership in a protected class; 2) qualification for a position for which the employer sought applicants and for which the employee applied; and 3) failure to promote in circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802. Once the plaintiff establishes his prima facie case, the familiar burden shifting ensues.
An inference of discrimination is established if the person promoted is not in the protected class or, in the case of retaliation, has not engaged in a "protected activity"
3. Hostile Work Environment
To establish a claim of hostile work environment based on race or gender discrimination under Title VII, the plaintiff must show that the "conduct at issue is so severe or pervasive as to create an objectively hostile or abusive work environment." Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 436 (2d Cir. 1999) (quoting Harris v. Forklift Sys., 510 U.S. 17, 21-22 (1993)). A "mere utterance of an . . . epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII."Harris, 510 U.S. at 21. Moreover, even occasional episodes of harassment do not generally constitute a hostile environment within the meaning of Title VII. See Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999)
Kelley's Claims
Discrimination Claim for Fully Successful Rating and Reassignment
a. Fully Successful Rating
Kelley alleges that the V.A. discriminated against him on the basis of race and gender when Kyer rated his work from April 1991 to March 1992 "Fully Successful." I find that although Plaintiff has met his "minimal" burden of establishing a prima facie case as to this claim, the claim still fails. In his prima facie case, Kelley established that he is African-American and is therefore a member of a protected class. He testified that he was qualified to perform the duties that his position as a GS-11 social worker required. Furthermore, Kelley testified that Kyer's "Fully Successful" rating was an adverse employment action because Kuhn told Kelley that a higher rating would have required that he be promoted. Finally, Kelley testified that his membership in a protected class must have played a part in Kyer's evaluation, and thus he was treated differently than those similarly situated to him, because his work deserved a higher rating. According to Kelley, Kyer chose not to reward Kelley's excellent work because of the color of his skin.
However, once the burden shifted, the V.A. succeeded in rebutting any presumption of discrimination. Defendant's proffered evidence established that Kelley's work deserved a "Fully Successful" rating; a rating that indicates that the employee did a "good job." See supra note 10. Furthermore, defendant offered evidence that the rating was not an adverse employment action because, contrary to Kelley's belief, a higher rating would not have resulted in a promotion. (Trans. 358: 15-18.)
Although the burden then shifted back to plaintiff, he did not prove that the V.A.'s explanation for Kyer's rating was pretextual and was not the true reason for the employment action. Furthermore, even if defendant's reasons were pretextual, plaintiff did not prove that Kyer gave Kelley the "Fully Successful" rating because of his race. If anything, defendant had offered evidence that Kelley may have felt snubbed by Kyer, and that there was, therefore, tension between the two of them that may have influenced Kyer's "Fully Successful" rating. See infra note 13. Thus plaintiff's discrimination claim as to his "Fully Successful" rating fails.
b. Reassignment
Kelley's claim of race and gender discrimination based on his reassignment from the ambulatory care unit also fails. Again, plaintiff succeeded in making out a prima facie case, but once the burden shifted to the defendant and it was satisfied, plaintiff was not then able to prove that the defendant's reasons were pretextual and that race had motivated the reassignment. Plaintiff's prima facie case established that he was member of a protected class; that he was qualified to perform the duties that the ambulatory care unit required of him; that his reassignment was an adverse employment action since it took him away from REAP; and that because a Caucasian social worker had changed supervisors but kept the same assignment, Kelley was being treated differently than similarly situated employees due to the color of his skin.
Defendant rebutted the presumption of discrimination created by plaintiff's prima facie case by offering evidence that the reassignment was not an adverse employment action motivated by race. To the contrary, the reassignment was a response to Kelley's request for a new supervisor; a request that mandated the reassignment. Furthermore, the V.A. offered evidence as to why a reassignment was necessary and as to the fact that the V.A. had informed Kelley that in order to grant his request, he would have to change assignments and would no longer be able to work on the REAP program. Finally, the V.A. offered testimony as to why Kelley was not similarly situated to the Caucasian woman who changed supervisors while maintaining the same assignment: the Caucasian woman did not request a change of supervisors like Kelley had, and her change took place long after Kelley's reassignment.
When the burden shifted back to Kelley, he did not prove that the non-discriminatory reasons offered by the V.A. for its actions were pretextual or that they were motivated by race. Therefore, plaintiff's discrimination claim on the basis of his reassignment fails.
Retaliation Claim for Fully Successful Rating and Reassignment
a. Fully Successful Rating
Although Kelley established a prima facie case of retaliation based on Kyer's "Fully Successful" rating, the V.A.'s non-retaliatory reasons for the rating, and Kelley's inability to prove those reasons pretextual, persuaded me that the "Fully Successful" rating was not in retaliation for Kelley's "protected activity." Kyer gave Kelley his "Fully Successful" rating on May 19, 1992. Therefore, in satisfying the first element of Kelley's prima facie case, Kelley's EEOC complaint of May 20, 1992 cannot be considered the "protected activity." However, Kelley testified that he told Kyer, Kuhn, and Feder in early 1992 that he felt discriminated against by the V.A. His alleged conversation with his three superiors fit within the definition of "protected activity" and satisfied the first element of the prima facie case. The second and third elements were met due to Kelley's belief that a "Fully Successful" rating precluded the likelihood of promotion and the fact that Kyer gave Kelley the rating a few months after he began complaining.
However, once the burden shifted, defendant succeeded in rebutting plaintiff's inference of retaliatory discrimination. Although Kelley testified that his superiors were aware of his protected activity" because his meetings with them in early 1992 included discussions of their alleged discrimination, the testimony of the V.A.'s witnesses proved otherwise. Besides Kelley's testimony, no evidence was offered that the V.A. knew of Kelley's "protected activity." Without evidence of defendant's knowledge, Kelley's retaliation claim as to his "Fully Successful" rating fails.
b. Reassignment
Plaintiff's claim of retaliation based on his reassignment also fails. Although Kelley established a prima facie case, defendant succeeded in rebutting any presumption of retaliatory discrimination and Kelley was unable to prove that the defendant's reasons were pretextual. Plaintiff established that he participated in a "protected activity" by filing his May 20, 1992 EEOC complaint; that the V.A. was aware that he had done so; that his reassignment to intermediate care was adverse because it took him away from the REAP program; and that there was a causal connection between the filing of his complaint and his reassignment.
Once the burden shifted to the V.A., however, all inferences of retaliatory discrimination were rebutted. Although defendant admitted knowledge of Kelley's "protected activity," the reasons offered by the V.A. as to why Kelley was reassigned established that there was no retaliatory motive behind the V.A.'s action. Kelley requested a new supervisor and his request mandated a reassignment. The V.A. alerted Kelley to the fact that in order to satisfy his request he would be reassigned. Furthermore, the V.A. offered a legitimate, non-discriminatory explanation for why a Caucasian social worker was able to change supervisors and keep the same work assignment. Finally, Kelley's testimony on direct that Kuhn and Kyer told him that his "discrimination claim" "damaged" his standing at the V.A. was not supported by any evidence. Moreover, on cross-examination plaintiff acknowledged that when Kuhn and Kyer told him he had "damaged" himself, they were not talking about the filing of his May 20, 1992 EEOC complaint. See supra note 7. Therefore, Kelley's retaliation claim as to his reassignment fails.
Failure to Promote Claim Due to Discrimination and/or Retaliation
Although Kelley established a prima facie failure to promote claim based on discrimination and, alternatively, retaliation, once the burden shifted to the V.A. any inference of discrimination was successfully rebutted. Moreover, Kelley did not persuade me that the V.A.'s reasons for their promotion decisions were pretextual and were based on race. Kelley made out a prima facie failure to promote claim based on discrimination/retaliation when he established that he was a member of a protected class, he is an African-American male; was qualified for the positions of Coordinator of the Homeless Veterans program and Coordinator of the Women's Veterans program; that the V.A. sought applicants for these positions and that Kelley applied; and, finally, that the two people selected for the promotions were women, were not dark-skinned African-Americans, were not as qualified as Kelley, and had not engaged in "protected activity."
Kelley testified extensively about how much more qualified he was for the two coordinator positions than the women who were hired, particularly Doris Johnson. Moreover, he made much of the fact that the V.A. did not conduct interviews for the position that Johnson filled and that Kyer and Timmons were present at meetings where the two positions were discussed. Furthermore, in establishing that the two instances in which the V.A. failed to promote him were acts of retaliation, Kelley proved that he had participated in "protected activity," of which the V.A. was aware, when he filed his EEOC complaints on May 20, 1992, November 3, 1992, and August 3, 1993.
Although such testimony of Kelley's raised an inference of discrimination, defendant offered testimony that explained why Doris Johnson was the most qualified applicant for the position; why interviewing all of the applicants was unnecessary; and how little the presence of Kyer or Timmons at the meetings effected the hiring process. Moreover, the V.A. also emphasized the fact that of the two women who were promoted one was African-American and the other was Hispanic. Finally, Kelley failed to prove that the V.A.'s reasons for not promoting Kelley were pretextual. Furthermore, he did not persuade me that race or gender influenced the V.A.'s decision to promote a light-skinned African-American woman and a Hispanic woman to the positions in question; nor that his "protected activity" played a part in the V.A's hiring decisions. Therefore, plaintiff's failure to promote claim for discrimination and/or retaliation fails.
Hostile Work Environment
Plaintiff's claim that the V.A. created a hostile work environment must fail. The evidence Kelley offered at trial did not persuade me that the conduct at issue rose to the level of "severe or pervasive," such that it produced an "objectively hostile or abusive work environment."Richardson, 180 F.3d at 436. Kelley testified that his unfairly burdensome workload; his "Fully Successful" rating; his reassignment; the V.A.'s failure to promote him; the V.A.'s retaliatory treatment of him; Kyer's comment that she would "make his life hell;" and Timmons' comment "my monkey comes," all contributed to making the V.A.'s social work department a hostile and abusive environment in which to work. The V.A. offered evidence, however, that successfully rebutted any and all inferences of race and gender based discrimination related to the above mentioned conduct. The only conduct not discussed supra in my conclusions of law, is Timmon's comment. Timmons' testimony at trial, as well as Feder's, however, convinced me that not only was Timmons' comment intended to be "affectionate," but the V.A. took every step necessary to investigate the matter, to assure Kelley, and the entire social work department, that the V.A. did not condone such language, and to punish Timmons. Thus plaintiff's hostile work environment claim fails.
I will not lay out the specific evidence offered by the V.A. to rebut Kelley's claims of discrimination and/or retaliation for I have done so in my discussion of the individual claims.
CONCLUSION
For the reasons stated above, I find that plaintiff has failed to make out his claims of race and gender discrimination under Title VII. However, this case is not an appropriate one for imposing on plaintiff attorney's fees or costs. It is hereby ordered that the Clerk of Court enter judgment for defendant and close this case.
SO ORDERED.