Opinion
CIVIL ACTION NO: 00-0467 SECTION: "T"(3)
March 15, 2001
On June 16, 1997, plaintiff, Margaret T. Murray, was hired by defendant, Wackenhut Corporation, as a security firewatch. She was promoted to lead security firewatch in December, 1997. In January, 1999, plaintiff became pregnant. Her doctor determined that she would be unable to perform her work duties for the duration of her pregnancy. On March 27, 1999, plaintiff brought a doctors note to her supervisors seeking light duty status. Plaintiff's request was denied. Plaintiff took unpaid leave for the duration of her pregnancy and she applied for disability benefits which she received.
Rec. Doc. 1, paragraph I.
Defendant's motion for summary judgment (MSJ) Exh. A, deposition of Margaret Murray, p. 25.
Rec. Doc. 1, paragraph I; Defendant's MSJ Exh. B, certification of health care provider.
Rec. Doc. 1, paragraph I.
Defendant's motion for summary judgment, p. 2; Defendant's MSJ Exh. A, pp. 90, 108.
On April 27, 1999, following the defendant's denial of her request for light duty status, plaintiff filed a grievance with her union. According to the defendant, that union grievance was denied and then abandoned. However, plaintiff maintains that she did not abandon her grievance and that her grievance is being handled by Jim Nolan who is a union treasurer and union representative. On June 16, 1999, plaintiff filed a charge with the United States Equal Employment Opportunity Commission (EEOC) alleging gender and pregnancy discrimination. Plaintiff returned to work in October, 1999, six weeks after her child was born.
Defendant's MSJ Exh. G, plaintiff's union grievance.
Defendant's motion for summary judgment, p. 2.
Plaintiff's Exh. 5, Murray Affidavit 1.
Defendant's MSJ Exh. D, plaintiff's EEOC complaint.
On November 10, 1999, the EEOC mailed plaintiff a form entitled "Dismissal and Notice of Rights" which stated that the EEOC closed its file with respect to plaintiff's charges because:
[b]ased upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.
Defendant's MSJ Exh. E, plaintiffs EEOC "Dismissal and Notice of Rights."
On February 14, 2001, plaintiff filed this lawsuit alleging this Court's jurisdiction pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. Plaintiff asserts that she has suffered irreparable injury and monetary damages because of gender and pregnancy discrimination and retaliation.
Rec. Doc. 1. "With the passage of the [Pregnancy Discrimination Act] in 1978, Congress amended the definitional section of Title VII. . . ."Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). Pregnancy Discrimination Act claims are generally analyzed like Title VII claims. Id.
Plaintiff complains that she was unlawfully denied light duty status and that she was forced to stop working on March 27, 1999, because she was incapable of performing her regular job duties as lead security firewatch. She states that she was advised by Kenneth Hayes, a project manager, that there were no light duty assignments available for security firewatch positions. However, plaintiff contends that contrary to Hayes' statement, other lead security firewatch employees and similarly positioned security officer employees were given light duty status following injury and/or pregnancy prior to and subsequent to March 27, 1999.
Rec. Doc. 1, paragraph I.
Id.
Rec. Doc. 1, paragraph II.
On February 13, 2001, defendant filed its motion for summary judgment. Defendant argues that plaintiffs case should be dismissed because she cannot state a prima facie case of pregnancy discrimination or retaliation.
Summary judgment is appropriate when "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." F.R.C.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case.
Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."
Thomas v. Barton Lodge II. Ltd., 174 F.3d 636, 644 (5th Cir. 1999)(citinq Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53,quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. No genuine issue of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of her claim. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir.1994).
Id. (citing Celotex Corp., 477 U.S. at 321-23, 106 S.Ct. at 2551-53).
Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553.
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." This Court does not, "however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts."
Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
Little at 1075 (emphasis in original).
"Title VII prohibits discrimination on the basis of sex, which includes discrimination on the basis of pregnancy." As stated in Doherty:
A plaintiff claiming employment discrimination under Title VII must establish a prima facie case of discrimination, which gives rise to an inference of discrimination by the employer. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). "To establish a prima facie case of discrimination under Title VII, a plaintiff may prove her claim either through direct evidence, statistical proof, or the test established by the Supreme Court in McDonnell Douglas." Urbano, 138 F.3d at 206. The McDonnell Douglas test requires the plaintiff to show that (1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) others similarly situated were more favorably treated. See McDonnell Douglas, 411 U S. at 802, 93 S.Ct. at 1824; Urbano, 138 F.3d at 206 Once the plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant, which is required to articulate a legitimate, nondiscriminatory reason for the challenged action. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). An employer meets this burden of production by proffering admissible evidence of an explanation that would be legally sufficient to justify a judgment for the employer. See Guthrie v. Tifco Indus., 941 F.2d 374, 376 (5th Cir. 1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1267, 117 L.Ed.2d 495 (1992). If the employer meets this burden, then the plaintiff is required to prove that the reason given by the employer was not legitimate and nondiscriminatory, but was merely pretext to conceal its discriminatory motive. See McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825-26. The burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; Marcantel v. Louisiana Dep't of Transp. Dev., 37 F.3d 197, 200 (5th Cir. 1994).Doherty at 679.
Doherty v. Center for Assisted Reproduction, 108 F. Supp.2d 672, 679 (citing 42 U.S.C. § 2000e-2; 2000e(k); Urbano at 205-06.
Plaintiff and other security firewatches are members of Teamsters Union Local No. 270. As a union member, plaintiffs terms of employment are governed by the firewatches' collective bargaining agreement (CBA) which is effective for the time period beginning August 24, 1998, through August 24, 2001. The Court recognizes that the CBA was in effect during the time that plaintiff became pregnant and when she asked for light duty status.
Plaintiff's Exh. 5, Murray Affidavit 1.
Plaintiff's Exh. 1, "Agreement between the Wackenhut Corporation and Teamsters, Local No. 270," (effective August 6, 1999); Plaintiffs Exh. 5.
There is no dispute between the parties that the firewatches' CBA does not include any language providing light duty status for firewatches Plaintiff represents that when she asked her supervisors for light duty status, she was told that she was denied that status because it was not in the CBA. Plaintiff also states that Wackenhut Project Manager Ken Hayes only denied Margaret Murray a light duty position because the provisions of the firewatch CBA did not permit limited duty positions. Plaintiff admitted in her deposition that she did not know if defendant was under an obligation to find light duty work for her, but she "thought it was only fair being that they would put other people in light-duty positions."
Plaintiff's Exh. 5.
Plaintiff's Exh. 12, Murray Affidavit 2.
Plaintiff's opposition memorandum, p. 4.
Defendant's MSJ Exh. A, p. 67.
Plaintiff also argues that the right of security firewatches and armed security officers to light duty positions is not covered by their respective CBAs, but by the "Wackenhut Nuclear Services Division Procedure Manual." Plaintiff argues that this manual was in effect during plaintiff's pregnancy because it was provided by defendant in response to her request for production of manuals in effect on March 27, 1999. According to plaintiff, "it can only be assumed that Wackenhut does not deny the provisions are the same as to the issues in this case."
Plaintiffs Exh. 11, "Wackenhut Nuclear Services Division Procedure Manual."
Plaintiff's opposition memorandum, p. 4.
Following examination of the manual, the Court finds that the manual could not have been in effect during plaintiff's pregnancy because the manual had an effective date of October 15, 1999. Furthermore, Ginger Rockweiler, Manager of Administration for Wackenhut, attests that this manual was not implemented at their facility until January or February of 2000. Plaintiff offers no evidence to prove otherwise.
Plaintiff's Exh. 11. The Court notes that plaintiff gave birth to her baby on September 2, 1999. Plaintiff's Exh. 15.
Defendant's reply brief, affidavit of Ginger Rockweiler.
Plaintiff argues that the position of security firewatch is similarly situated to the position of armed security officer. Plaintiff provides the Court with a list of factors which allegedly demonstrate similarities between the two positions. However, plaintiff fails to note the differences between the two positions. According to the affidavit of Ginger Rockweiler:
Plaintiff's list includes how both security firewatches and armed security officers are: (1)listed by OSHA under the designation of Security department; (2)protected under the same Wackenhut Human Resources Guidelines; (3)issued the same Security Officers Handbook; (4)issued the same procedure manuals; (5)trained by the same training personnel; (6)required to pass the same tests for general employment training, radiation protection and security firewatch training; (7)report to the same supervisors; (8)required to attend the same roll call meetings; (9)listed on the same posting roster; (10)patrol the same areas inside and outside; (11)have the same number of hours per shift; (12)wear the same badges and emblems on their hard hats and jackets; (13)issued the same access keys to enter doors within the plant; (14) use the same radios and radio frequencies; (15)stand guard on all security fire doors if not secured; (16)recorded on the same daily shift reports by the supervisor; (17)entitled to take the same educational correspondence courses in security leadership, security officers and security supervisors; (18)receive the same medical and 401K plan; and (19)work as badge issue officers in the badge issuing office until the position was eliminated.
Plaintiff's opposition memorandum, pp. 4-6.
(14) Security Officers and Firewatches receive significantly different training. Firewatches receive a total of 53 hours of training, which includes 5 hours of formal training and 48 hours of on the job training. Security Officers receive a total of 416 hours of training, which includes 320 hours of formal training and 96 hours of on the job training.
(17) Security Officers, and not Firewatches, are required to pass the following additional tests:
Agility and Physical Fitness Test, Handgun Qualification, Shotgun Qualification, Rifle Qualification, and GET III Test;
(21) Security Officers are required to patrol all areas of the plant at Waterford III.
(22) Firewatches are required only to patrol areas subject to fire impairment not detected by electronic devices, which is a smaller area than is patrolled by Security Officers.
(23) Security Officers are on patrol constantly during their 12 hour shift, except for eating and hygiene breaks. Firewatches are not on patrol constantly. Firewatches are required to patrol one tour per hour which averages approximately 35 minutes per hour. (24) The firewatch uniform is completely different than the Security Officer uniform. The firewatch uniform is green and contains a patch designating the employee as a firewatch. The Security Officer uniform is gray and contains a patch designating the employee as a Security Officer.
(25) Firewatches have limited area access and Security Officers have extended area access.
(27) Firewatches are not allowed to stand guard at a security fire door and are required to call a Security Officer if the fire door is not secured.
(31) Firewatches were never allowed to issue badges or sign in visitors. Security Officers have always had the responsibility to issue badges and sign in visitors.
Defendant's reply memorandum, affidavit of Ginger Rockweiler.
Although the plaintiff compares the two positions, the security firewatches operate under a different employment contract than the armed security officers. Armed security officers are members of the International Union, United Plant Guard Workers of America (UPGWA), Local Union No. 709, and operate under a collective bargaining agreement separate and apart from that of security firewatches. The two different contracts were negotiated by different unions. During plaintiffs pregnancy, neither contract contained provisions that provided light duty status. However, during the time period that plaintiff was pregnant, i.e., beginning on or about January, 1999, through September, 1999, armed security officers had a limited duty policy in effect which was separate from their collective bargaining agreement. The plaintiff offers no evidence to the contrary.
Plaintiffs Exhs. I and 2, "Agreement between the Wackenhut Corporation and Teamsters, Local No. 270," (effective August 6, 1999) and "Agreement between the Wackenhut Corporation and International Union, United Plant Guard Workers of America (UPGWA) and its Affiliated UPGWA Local Union No. 709 for Security Employees," (effective from September 16, 1996 through September 19, 1999). In Sutherland v. Day Zimmerman, Inc., 894 F. Supp. 1488, 1494, (D.Ks. 1995), the plaintiff filed an action against his employer alleging that the employer did not properly calculate his seniority date according to the collective bargaining agreement. The plaintiff claimed that he was the victim of discrimination because members of the pipefitters' union received more favorable seniority credit than members of the electricians' union. However, the plaintiff was a member of the electrician's union. The court determined that the plaintiff could only show that "he was treated differently than employees subject to different contract terms. . . . The only competent evidence as to why plaintiff was treated differently than "similarly situated' pipefitters shows that they operated under a different contract, negotiated by a different union and containing different seniority provisions than the electricians' CBA." Sutherland at 1494. The court found that the plaintiff could not "base a claim of discrimination on IBEW's refusal to seek the application of another bargaining unit's contract terms to IBEW members." Id at 1494-5.
Plaintiff's Exhs. 2 and 3, "Agreement between the Wackenhut Corporation and International Union, United Plant Guard Workers of America (UPGWA) and its Affiliated UPGWA Local Union No. 709 for Security Employees,"(effective from September 16, 1996 through September 19, 1999), and "Agreement between the Wackenhut Corporation and International Union, United Plant Guard Workers of America (UPGWA) and its Affiliated UPGWA Local Union No. 709 for Security Employees," (effective from September 20, 1999 through September 15, 2002."
Defendant's MSJ Exh. H, memorandum dated August 27, 1999, from Kenneth R. Hayes, Project Manager, Wackenhut Corporation; Defendant's reply brief, affidavit of Ginger Rockweiler, paragraph (2), and "Limited Duty Policy" for security officers and nuclear watchpersons.
In order to establish disparate treatment, the plaintiff must demonstrate that her employer preferentially treated employees outside of her protected class under nearly identical circumstances. Plaintiff must show that the individuals whom she offers as comparisons are in all respects similarly situated. Plaintiff has failed to make a showing that the positions of security firewatch and armed security officer are similarly situated in all respects.
Puissegur v. United States Postal Service, 1996 WL 185812 (E.D.La. 1996)(quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)).
Id. Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
Plaintiff's opposition memorandum lists several employees of Wackenhut, including security firewatches and armed security officers, who have allegedly received light duty status for off the job injuries, on the job injuries, and or pregnancies prior to and subsequent to March 27, 1999. Because the Court does not consider armed security officers to be similarly situated to plaintiff, the Court will only address the security firewatches who were, according to plaintiff, given light duty status.
Defendant represents, that "[slince the CBA went into effect, all non-work related injured firewatches have been denied light duty, not just for pregnancy." Defendant responded to plaintiff's union grievance by stating, that "[u]nder the provisions of the CBA there are no limited duty positions in the Fire Watch contract."
Defendant's MSJ Exh. F, affidavit of Glenn Ingrassia.
Defendant's MSJ Exh. H. Defendant's corporate counsel stated to plaintiff's union representative that "there has not been any past practice with this Union wherein the Company has granted light duty to an employee. Likewise, there is no provision of the current CBA that requires it. While we can sympathize with her condition, the law does not require the Company to create a position for her or terminate a clerical employee to accommodate her." Defendant's MSJ Exh. O.
Plaintiff states that security firewatches Shannell Meggs, Lauri Theriot, Enola Narcisse Collins, and Dawn Miller Thomas, were given light duty status for pregnancies in 1996 and 1997. Plaintiff represents that security firewatch Tiffany Williams was given light duty status for an on the job injury in 1998, and that security firewatch Charlene Borne was given light duty status for an on the job injury in 1999, twice for a back injury in 2000.
Even plaintiff was granted light duty status when she sustained an on the job injury in May, 2000. However, plaintiff has failed to demonstrate that there were any security firewatches who were denied light duty status for pregnancies or off the job injuries since the security firewatches' CBA went into effect in 1998.
Plaintiffs Exh. 12.
During plaintiff's deposition, she was asked if she knew of "any firewatch employees who were given light duty while [she was] pregnant who had suffered an off-the-job injury" and she replied, "not that [she could] recall." She was also asked if she knew of "any employees, firewatch employees, who were given light duty who had been injured off the job since the union contract was started" and she replied, "not that [she could] recall at this moment. No."
Defendant's MSJ Exh. A, p. 140.
Id.
Plaintiff has also demonstrated that two other security firewatches who became pregnant in 1999, were denied light duty status. Defendant represents that Karta Jeffreys, a pregnant security firewatch, is currently being denied light duty status for her pregnancy. Defendant also shows that Rolanda Otis was denied light duty status when she was injured in a car accident on December 15, 1998, an off the job injury which occurred after the CBA took effect.
The affidavit of Charlene Borne states that when security firewatch Shannell Meggs became pregnant in 1997, she was given light duty status. However, when Ms. Meggs became pregnant in 1999, she was denied light duty status. Plaintiff's Exh. 14. Plaintiff admits that security firewatch Kizzy Simon was denied light duty status in 1999, because she was pregnant. Plaintiff's opposition memorandum, p. 7. Plaintiff also refers to security firewatch Karla Jeffrey who was denied light duty status in 2001, because she was pregnant. Id.
Defendant's motion for summary judgment, p. 6; Plaintiff's affidavit admits that around February 11, 2000, Jeffrey was placed on light duty status because she injured her ankle on the job. Plaintiff's Exh. 12. Plaintiff also states that Jeffrey stopped working, while on light duty status, because she was on bed-rest for her pregnancy. Id. Therefore, the plaintiff concludes that Jeffrey was never denied light duty status for her pregnancy. Id. The affidavit of Charlene Borne states that "Jeffery [sic] stopped working while still on light duty status for her ankle because of bed rest [sic] for her pregnancy and was never denied light duty status for her pregnancy." Plaintiff's Exh. 14.
Defendant's MSJ Exh. M, letter from Rolanda Otis dated May 21, 1999.
"The law does not guarantee that pregnant employees will not suffer any adverse employment decisions. It protects only against employment decisions which, for discriminatory reasons, are different from decisions relating to persons who are not pregnant."
Elie v. K-Mart Corporation, 1994 WL 50250, 4 (E.D.La. 1994).
Wackenhut treated the plaintiff no differently than it would have treated any other security firewatch who was injured off the job or pregnant. As in Urbano, supra, plaintiff was not denied a light duty assignment because of her pregnancy, but because her pregnancy was not work related. Urbano at 206. Plaintiff has not provided any evidence that Wackenhut adhered to its light duty policy only in cases involving pregnant workers. As was the case in Urbano, the defendant in this case treated the plaintiff the same way that it treated any other firewatch who suffered an off-duty injury.
In her complaint, plaintiff also raises a claim of retaliation. She argues that her supervisors and managers retaliated against her as a result of her filing a union grievance and EEOC claim. The Court first notes that plaintiff has not filed an EEOC claim with respect to her claim of retaliation. However, plaintiff's failure to file an EEOC claim is not fatal to her case. The Fifth Circuit has consistently held that "it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court.
Guota v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981); see also Gottlieb v. Tulane Univ., 809 F.2d 278, 284 (5th Cir. 1987)(quoting Guota at 414).
"To establish a retaliation claim, the plaintiff must establish: (1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action. The defendant does not dispute that a plaintiff filing an EEOC claim or union grievance engages in protected activity. However, the causation element of a retaliation claim can be satisfied only by actions that occurred after the filing of the EEOC claim and union grievance.
Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000)(citing Mattern v. Eastman Kodak, 104 F.3d 702, 705 (5th Cir. 1997).
See Marino v. Louisiana State Univ. Board of Supervisors, 1998 WL 560290, 7 (E.D.La. 1998).
In plaintiffs opposition memorandum to defendant's motion for summary judgment, plaintiff first argues that she was "retaliated against by her Supervisors and Managers as a result of her Union Grievance and EEOC claims" because she was told that "she could not continue working since she could not perform her full duties." Plaintiff contends that as a result of that decision, she suffered a loss of income and bankruptcy. Because plaintiff was told that she could not continue working on March 27, 1999, before plaintiff filed her EEOC charge or union grievance, the Court finds that the March 27, 1999, decision could not have been a retaliatory action.
Plainitffs opposition memorandum, p. 10.
Rec. Doc. 1, paragraph I.
Plaintiff also provides the Court with a list of acts which she argues "accumulatively, are intolerable, harassing and retaliatory." Those acts include:
Plaintiff's opposition memorandum, pp. 10-16.
A. Margaret delivered her baby on September 2, 1999 and was due to return to work in October, but requested extra time off to spend with her new born baby. Hayes refused her request, but approximately two months earlier granted additional time off for LFW Shanell Meggs to spend with her new born baby. Margaret was denied a benefit and privilege of employment given to a similarly situated employee. (P-15)
B. Margaret Murray was effectively denied a position of security officer. Prior to plaintiff filing a complaint, Hayes promoted all employees to Armed Security Officer upon "passing" a firearms test and written exam. After plaintiff filed her complaint, Hayes told her that she would not be promoted unless she was one of the "top five employees" who passed the written exam. This had never been done before and was clearly a lie to intimidate her and discourage her from applying for this position since she could lose the right to her position of Firewatch. Applying for [that] position would essentially be putting her head on the "chopping block." (MM depo 141/21-25 to 143/1-3)(P-4, 11 15)
C. Hayes had a negative attitude and demeanor towards Margaret, raising his voice to her, screaming at her, talking down to her, making derogatory remarks regarding his displeasure that she returned to work after her pregnancy and even alleging that she was leaving work so she had to be segregated from other employees (P-12 15);
D. Hayes disallowed Margaret a courtesy phone in the Firewatch Break room, when all other employee break rooms were allowed a courtesy phone. Hayes claimed that Firewatch employees used the phone "too much." It was not until plaintiff wrote a letter complaining of the discrimination, that Hayes returned the courtesy phone to plaintiff's break room. (P-12 15)
E. On February 14, 2000, Counsel for Plaintiff filed the above Complaint and Jury Demand on behalf of Margaret Murray. Four days later, on February 18, 2000, Margaret Murray was verbally reprimanded by Nathan Hills (CAS Supervisor) and Michael Stubbs (555) for returning late from her patrol after she called for assistance on her patrol (P-12 15).
F. On April 30, 2000, Nathan Hills, supervisor, required Margaret Murray to walk numerous patrols without rotation with other employees or a break, contrary to patrols and breaks given other Firewatch employees. This resulted in emotional upset, stress and a migraine headache resulting in her leaving work early (P-12 15).
G. After Margaret Murray injured her ankle on the job in May 2000, she worked 4 days before she was sent to see the company doctor. After an inadequate assessment and advice to return to regular duty, Margaret requested to see her own physician. Ingrassia made a point of stressing that he did not want any lost time over "this" and that she would have to see an orthopedic doctor but on her own time, even though this was an on the job injury. Margaret saw her own physician, Dr. Grimm who diagnosed damaged cartilage tissue and/or ligaments in her ankle and advised light duty (P-15).
H. Margaret Murray informed Ingrassia about the light duty status and he expressed his disapproval. Margaret was requested to attend a meeting with Ingrassia and Anthony Smith (SSS) where she was counseled on the accidents that she has had from the day she was hired to that [sic] present. He continued to harass her regarding her light duty status ordered by her orthopedist. (P-12 15)
I. On July 6, 2000, after a roll call meeting, Margaret was leaving the seating area when she was rudely grabbed by Ingrassia and confronted nastily about his not receiving a light duty slip from her doctor. Even though Margaret objected, he did not let her go until he was through making his point (P-12 15).
I.[sic] Prior to filing a Union Grievance on the above incident, Ingrassia had denied Margaret's request to remain on night shift while on light duty. After Margaret filed the above Union grievance, Ingrassia received the grievance and offered Margaret the straight night shifts he had previously refused to give her. After she accepted, without Margaret's consent, Ingrassia falsely informed the Union her grievance had been settled because she was allowed to remain on straight nights. (P-15)
J. As union steward, Margaret's duties require her to write complaints/grievances for union members and represent them. In August 2000, Margaret wrote a grievance for Charlene Borne. In Ingrassia's written response to the grievance of Charlene Borne, Margaret was constantly singled out and berated. (P-15)
K. In August 2000, Margaret was asked to join Karla Jeffrey, Raquel Morton, Trina Dorris, Troy Barrios, and Ingrassia in the security office to discuss a suspension Ingrassia was issuing to Raquel Morton. Margaret as a steward as well as Karla Jeffrey, questioned the decisions being made concerning Raquel's suspension. Ingrassia screamed and shouted at Margaret with hostility. (P-15)
L. On or about August 16, 2000, Troy Barrios excluded Margaret from a "Shift Dinner" claiming that she was not a shift member when she was a shift member and Barrios had included one other employee that was not a shift member in this dinner. (P-15)
M. On or about August 23, 2000, Ingrassia ordered Margaret sent to the "island," a crowed [sic] uncomfortable area while on light duty shift even though others on light duty were allowed to remain in the PAP area. (P-15) (MM Depo 65/11-25 to 66/1 FEB)
N. On or about September 29, 2000, Ingrassia emailed [sic] shift supervisors informing them that Margaret was to remain once again in the island because someone made an accusation she was leaving the plant site at night and returning at 0430 hours, an accusation never investigated or which she was never confronted with. (P-15)
O. Margaret's Aunt, Carolyn Randall, filled out an application for employment with Wackenhut. She was never contacted for an interview. Wackenhut was in desperate need for additional personnel and to not call someone with Carolyn's military experience can only be because of her relationship to Margaret. A review of her Application (P-16) only shows "Salary Expected 10.00 hr. It is shallow argument to suggest that she would not have entertained an offer when no one called to find out. And their argument that she was not available 24 hrs-a-day is in contradiction to the checkmark in the box next to "yes".
P. Margaret's husband, Edward is employed by Wackenhut and is being constantly harassed, talked down to and mistreated. (P-15)
P-15 is the "Outline for Deposition — Margaret Murray" which was prepared by the plaintiff.
Id.
With respect to the second prong of a retaliation claim, the Court is "concerned only with ultimate employment decisions, including hiring, discharging, promoting, compensating, or granting leave, and not "every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.'" The Court finds that plaintiff only lists two acts allegedly committed by defendant which could qualify as potential adverse employment actions.
Webb v. Cardiothoriacic Surgery Assocs. of N. Tex., P.A. 139 F.3d 532, 540 (5th Cir. 1998)(quoting Mattern v. Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir. 1997)); see also Dohis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995); Marino at 7;
The first act concerns a denial of leave. Plaintiff stopped working on March 27, 1999, during the early stages of her pregnancy, and she did not return to work until October, 1999, six weeks after the birth of her child. According to plaintiff, she asked for an additional two weeks to stay at home after her child was born, but that request was denied. Plaintiff argues that the denial of additional leave is a retaliatory act because firewatch Shannell Meggs was given additional time to stay at home with her child and she was not. That argument is the only evidence offered by plaintiff to demonstrate a causal connection between the protected activity that she engaged in and the denial of additional leave.
Defendant's MSJ Exh. A., p. 59.
Defendant's MSJ Exh. A., pp. 81-82.
Id.
In response to plaintiff's contention, defendant submits to the Court several exhibits which document the circumstances surrounding plaintiff's request for additional leave. When plaintiff was placed on leave on March 27, 1999, she was notified that the requested leave would be counted against her FMLA leave entitlement. Plaintiff gave birth to her baby on September 2, 1999. Following her September 29, 1999, visit, plaintiff's doctor would not release her for work. The doctor would not make that determination until her next visit which was scheduled for October 13, 1999. On October 4, 1999, plaintiff provided a written request to Hayes, asking for additional FMLA leave. Although her expected return to work date was October 8, 1999, she asked to return to work on November 1, 1999 Hayes responded to her request by stating that following her visit to the doctor on October 13, 1999, he would consider that request. On October 13, 1999, plaintiff's doctor stated, "Mrs. Murray may return to full duties at work [on] 10/18/99."
Defendant's motion and order to file supplemental affidavit, affidavit of Ginger Rockweiler (Rockweiler's supplemental affidavit), paragraph 16; Defendant's motion and order to file supplemental affidavit(supplemental motion) Exh. 7.
Defendant's supplemental motion Exh.I I.
Rockweilers supplemental affidavit, paragraph 20; Defendant's supplemental motion Exh. 10.
Id.
Rockweilers supplemental affidavit, paragraph 21; Defendant's supplemental motion Exh. II.
Rockweiler's supplemental affidavit, paragraph 25; Defendant's supplemental motion Exh. 8.
Defendant's supplemental motion Exh. II.
Rockweiler's supplemental affidavit, paragraph 22; Defendant's supplemental motion Exh. II.
Rockweiler's supplemental affidavit, paragraph 23; Defendant's supplemental motion Exh. 12.
On October 18, 1999, plaintiff returned to Wackenhut in order to be examined by the medical department. The company doctor stated that she was able to perform her regular duties with no physical limitations. On October 22, 1999, almost six months after taking leave, plaintiff returned to work on a full-time basis.
Rockweiler's supplemental affidavit, paragraph 24; Defendant's supplemental motion Exh. 13.
Id.
Rockweiler's supplemental affidavit, paragraph 25; Defendant's supplemental motion Exh. 14. Plaintiff's time sheets show that she worked four hours on October 21, 1999. Id.
Defendant's exhibits show that Meggs began her leave on June 8, 1999, although Meggs' expected delivery date was July 28, 1999. Meggs was advised that the requested leave would be counted against Meggs' annual FMLA leave entitlement. Meggs' doctor certified that she could return to work on October 2, l999. Wackenhut's medical department examined Meggs on September 30, 1999, and determined that she was able to perform her regular duties with no physical limitations. Meggs returned to work full-time on October 2, 1999.
Rockweiler's supplemental affidavit, paragraph 11; Defendant's supplemental motion Exh. 3.
Defendant's supplemental motion Exh. 2. The exhibits do not show when Meggs delivered her baby.
Rockweiler's supplemental affidavit, paragraph 8.
Rockweiler's supplemental affidavit, paragraph 12; Defendant's supplemental motion Exh. 4.
Rockweiler's supplemental affidavit, paragraph 13; Defendant's supplemental motion Exh. 5.
Rockweiler's supplemental affidavit, paragraph 14; Defendant's supplemental motion Exh. 6. Meggs' time sheets show that she worked four hours on September 30, 1999. Id.
From the evidence presented, the Court finds that plaintiff was not treated differently than Meggs who was not given any preferential treatment. The Court also recognizes that Hayes did not arbitrarily deny plaintiffs request for leave. Hayes waited until plaintiffs October 13, 1999, doctors visit before any decision was made.
The Court notes that defendant initially represented that "Shannell Meggs worked through her pregnancy at full duties, and then took FMLA leave after the birth of her child. She did not exceed her 12 weeks under the FMLA." That representation is incorrect. Defendant's exhibits indicate that similar to plaintiff, Meggs used more than the twelve weeks allowed under the FMLA. Both employees returned to work full-time at Wackenhut only after their respective doctors gave them medical authorization to return to regular duty with no physical limitations. Neither employee returned to work prior to their authorized date of return.
Defendant's MSJ Exh. F.
Defendant's supplemental motion Exh. 1. Wackenhut's "Employer Response to Medical/Family Care Leave Request," advises employees that "[i]f you are eligible and meet the appropriate requirements, you have a right under the Family and Medical Leave act (FMLA) for up to 12 weeks of unpaid leave in a 12-month period . . . ."
Plaintiffs conclusory statements set forth in her outline do not provide facts sufficient to counter the defendant's summary judgment evidence. The Court determines that plaintiff has failed to show that the denial of two weeks additional leave was a retaliatory act.
See Johnson v. Tuff-N-Rumble Management, Inc., 2000 WL 1145748, 6 (E.D.La. 2000)(quoting Lechuga v. Southern Pacific Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992)).
The second alleged adverse employment action concerns whether plaintiff was denied a promotion to an armed security officer position. Plaintiffs complaint is based upon a conversation that she allegedly had with Hayes. Plaintiff contends that Hayes told her, that "the only way that [she] would get the job as security officer would be if [she] was in the top five scoring-wise, in the top five in the scoring category." Plaintiff presents the affidavit of Charles Waker, Sr., an armed security officer with Wackenhut, who stated, that "every applicant that passes the Firearm Training Course is admitted to the Armed Security Officer Class and takes the final test. . . . Every applicant that passed the Armed Security Officer Test has been accepted as an Armed Security Officer for employment and Wackenhut has never accepted only the applicants with the highest test scores." However, plaintiff has presented no evidence demonstrating that she ever applied for that position. Furthermore, plaintiff has not shown that she has taken the tests and classes necessary to qualify for that position. Finally, the Court notes that plaintiff cannot remember when the alleged conversation with Hayes took place. During her deposition testimony, she stated that to the best of her knowledge the conversation took place after her maternity leave, but she could not give a definite answer because she was not sure. The Court finds that plaintiffs evidence or lack of evidence with respect to this particular alleged act of retaliation is insufficient to establish a genuine issue of material fact. Accordingly, defendant is entitled to summary judgment with respect to plaintiff's retaliation claim.
Defendant's MSJ Exh. A, p. 142.
Plaintiff's Exh. 7.
Defendant's MSJ Exh. A, p. 146-147.
Defendant's MSJ Exh. A, p. 147.
For the foregoing reasons,
IT IS ORDERED that defendant's motion for summary judgment is GRANTED.