Opinion
No. SA-04-CA-0558-RF.
January 12, 2006.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Nicholson's Motion for Summary Judgment (Docket No. 19), filed on August 30, 2005, Plaintiff's Response (Docket No. 35), filed October 27, 2005, and Defendant's Reply (Docket No. 39), filed November 14, 2005. The parties appeared for a hearing on this matter on January 4, 2005. After due consideration, the Court is of the opinion that Defendant's Motion for Summary Judgment (Docket No. 19) should be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Joe Ramos, a 52 year-old Hispanic male, began employment at Fort Sam Houston National Cemetery in San Antonio, Texas in July 1987. In January 1994, Plaintiff was promoted to Cemetery Director. As Director, Plaintiff managed approximately 49 employees and was responsible for 3 cemeteries: Fort Sam Houston National Cemetery, San Antonio National Cemetery, and Kerrville National Cemetery. In February/March 2001, Plaintiff began reporting to Cheryl Row who had been hired as Director of MSN III, (Memorial Service Network) which included Plaintiff's cemeteries. Ms. Row in turn reported to the Director of Field Operations, Fred Watson.
Plaintiff alleges that Ms. Row discriminated and retaliated against him and forced him to endure a hostile working environment in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). Plaintiff cites to six different claims (the claims accepted by the Office of Resolution Management) as evidence of the discriminatory or retaliatory conduct. Defendant's primary response is that five of the six claims are barred due to Plaintiff's failure to properly exhaust his administrative remedies. Defendant also claims that Ms. Row's conduct was not discriminatory and that any differing treatment Plaintiff received was a direct result of poor performance evaluations.
Plaintiff initiated informal EEO counseling on June 20, 2002 after learning of discriminatory comments allegedly made by Ms. Row to another Cemetery Director, Jorge Lopez, about Plaintiff. Plaintiff filed a formal EEO complaint against Ms. Row on July 3, 2002, based on race and age discrimination, harassment, and hostile working environment. On September 19, 2002, the Veterans Affairs' Office of Resolution Management issued a letter stating that Plaintiff's claim would be processed under "Harassment/Hostile Working Conditions" and that Plaintiff's complaint raised a claim of discrimination based on race and age. The Office of Resolution Management accepted the following six claims for investigation:
(1) In August 2001, at the National Cemetery Director's Conference your supervisor presented all the directors with awards except two Hispanic directors. You were one of the individuals not presented with an award.
(2) In April 2002, at the Directors Conference, you did not receive any awards and your supervisor avoided any mention of your accomplishments.
(3) In March 2002, your supervisor froze all recruitment and threatened you with insubordination if you hired any individuals without her consent.
(4) On April 11, 2002, you were issued an Admonishment for failure to notify your supervisor of an EEO complaint and subsequent settlement agreement.
(5) In April 2002, you were given a marginal performance rating during your Mid-Year Performance rating.
(6) On June 20, 2002, you learned of slandering comments your supervisor made to another Director concerning your character.
Def. MSJ, Exhibit 9.
Plaintiff received his right to sue letter on April 2, 2004, and he initiated this lawsuit on June 29, 2004. Plaintiff filed suit under Title VII of the Civil Rights Act and the ADEA, alleging "(1) He was discriminated based on race/national origin; (2) Faced retaliation and was harassed and intimidated as a result of his participation in EEO protected activity; and (3) was forced to endure a hostile work environment."
Pl. Original Complaint at ¶ 15.
Plaintiff conceded in his motion, as well as at oral argument, that he agrees to dismiss the disparate treatment claims based on 1) religion, 2) unequal pay, 3) pregnancy, and 4) sex/gender/sexual harassment.
STANDARD OF REVIEW
Summary judgment is appropriate if, after adequate time for discovery, no genuine issue as to any material facts exists, and the moving party is entitled to judgment as a matter of law. Where the issue is one for which the nonmoving party bears the burden of proof at trial, it is sufficient for the moving party to identify those portions of the record which reveal the absence of a genuine issue of material fact as to one or more essential elements of the nonmoving party's claim. The nonmoving party must then "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." To prevail on summary judgment, the moving party need only demonstrate that "there is an absence of evidence to support the nonmoving party's case." Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court, in order to grant summary judgment, must be satisfied that no rational trier of fact could find for the nonmoving party as to each element of his case.
Fed.R.Civ.P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317, 322-24 (1986).
Celotex, 477 U.S. at 323-24.
Id. at 324.
Id. at 325.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
DISCUSSION
Exhaustion of Administrative RemediesAt the outset, Defendant asserts that all Plaintiff's claims arising before May 6, 2002 should be dismissed for being untimely. Plaintiff responds that because he disclosed Ms. Row's discriminatory conduct to Fred Watson prior to May 6, 2002, he should not be held to the 45 day reporting requirement articulated in the Code of Federal Regulations. In further support of this argument, Plaintiff also contends that Defendant had a fiduciary duty to him to take corrective measures once he disclosed Ms. Row's discriminatory conduct to Mr. Watson. Plaintiff cites no case law to support the argument that reporting discriminatory conduct to a supervisor is a substitute for initiating informal EEO counseling, and the Court can find none. The Fifth Circuit law on this point is clear. "Federal employees must seek informal counseling before they file an EEOC complaint." The employee must initiate contact with a Counselor within 45 days of the allegedly discriminatory conduct. "If the employee fails to do so, his claim is barred."
Teemac v. Henderson, 298 F.3d 453, 454 (5th Cir. 2002) (citing 29 C.F.R. § 1614.105(a)).
Teemac, 298 F.3d at 454 (citing Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992)).
In Plaintiff's Response to Defendant's Motion for Summary Judgment, he claims he is exempted from the 45 day reporting requirement because he sought out Mr. Watson in February 2001 to report Ms. Row's discriminatory conduct. This argument is untenable. The account of the events as stated in Plaintiff's Response is contradictory to Plaintiff's deposition testimony. In his deposition, Plaintiff stated that he told Ms. Row, regarding a meeting with Mr. Watson, "I have not complained about your management style. I realize you just started as director of the MSN. It takes time to learn the jobs and to do the things that we do. I said, I did not converse or break the chain of command with Mr. Watson." Mr. Ramos went on to testify that "He [Mr. Watson] opened up the floor. I did not address any issue seven though I had a few conversations of belittling remarks . . . I told Mr. Watson because Mr. Watson went and chased me down." Mr. Ramos further testified that the other directors had contacted Mr. Watson to complain about Ms. Row's "management style" not to report unlawful conduct. Thus, even if reporting unlawful conduct to a supervisor could substitute for initiating informal EEO counseling, Plaintiff's testimony does not indicate that he (a) initiated contact Mr. Watson, or (b) initiated contact for the purpose of reporting discriminatory conduct. Plaintiff initiated informal EEO counseling on June 20, 2002. Therefore, any claims arising before May 6, 2004 are time barred and must be dismissed. Accordingly, Defendant's Motion for Summary Judgment on Plaintiff's claims arising prior to May 6, 2004 is GRANTED.
Pl. Response to Def. MSJ, Exhibit I — Letter from Fred Watson (in this unsworn letter, Mr. Watson mentions that he attended a MSN conference to observe Ms. Row, and several directors approached him to discuss problems they were having with Ms. Row. Mr. Watson also noted that Plaintiff was one of the directors who spoke up, but he did not state whether it was of his own volition or in response to a question from Mr. Watson. There is no indication that Plaintiff requested the meeting.)
Def. MSJ (Docket No. 19), Exhibit 1 — Ramos Depo at p. 84.
Def. MSJ (Docket No. 19), Exhibit 1 — Ramos Depo at p. 85.
Def. MSJ (Docket No. 19), Exhibit 1 — Ramos Depo at p. 84.
See Maddox v. Runyon, 139 F.3d 1017, 1020 (5th Cir. 1998) (stating that the court could find no support for the proposition "that pursuit of internal grievance procedures is an administrative remedy that must be exhausted before a Title VII suit can be brought.").
Def. MSJ (Docket No. 19), Exhibit 5 — Complaint of Employment Discrimination.
Claim 6: Slandering comments allegedly made by Ms. Row to Jorge Lopez a bout Plaintiff
In order to establish a prima facie case of discrimination under the Title VII and the ADEA, Plaintiff Ramos must show that (1) he was a member of the protected class — individuals over the age of 40, Hispanic; (2) he was otherwise qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by someone outside the protected class or otherwise discharged due to his age or race. The Fifth Circuit recognizes that the McDonnell Douglas burden-shifting analysis is applicable to ADEA and Title VII claims. This means that if the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the employer to "respond with a legitimate, nondiscriminatory reason for its decision." If the employer meets this burden, the inference of discrimination created by plaintiff's prima facie case disappears and the trier of fact must decide whether the plaintiff has proven intentional discrimination. Furthermore, in order to establish a claim for retaliation, Plaintiff Ramos must show: (1) he engaged in activity protected under Title VII, (2) Ms. Row took an adverse employment action against him, and (3) there is a causal connection between the protected activity and the adverse employment action.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000).
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 n. 3 (5th Cir. 2000).
Id. at 222.
Id.
Jones v. Robinson Property Group, L.P., 427 F.3d 987, 995 (5th Cir. 2005) (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997)).
Defendant contends that Plaintiff has not satisfied elements (3) and (4) of a prima facie case for discrimination. Defendant focuses his argument on the fact that Plaintiff did not suffer any adverse employment actions from the allegedly discriminatory conduct. Plaintiff cites the following as adverse employment actions: denial of monetary performance awards, denial of adequate funding, receiving a letter of admonishment, receiving marginal performance evaluation, and being subjected to disparaging comments by Ms. Row to fellow employees. Because there must be a causal connection between the protected activity and the adverse employment action, and the Court found that all of Plaintiff's claims prior to May 6, 2004 are time barred, the only adverse employment action that will be considered is that of being subjected to disparaging comments by Ms. Row to fellow employees.
Pl. Response to Def. MSJ at p. 20.
Initiating the informal EEO counseling on June 20, 2004 clearly constitutes a protected activity. The more difficult question is whether subjecting Mr. Ramos to disparaging comments would qualify as an adverse employment action. Plaintiff points to the EEOC Compliance Manual, which states in part: "The most obvious types of retaliation are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge. Other types of adverse actions include threats, reprimands, negative evaluations, harassment, or other adverse treatment." On the other hand, Defend ant points to case law that demonstrates the Fifth Circuit's position is that "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Furthermore, "[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating." This Court is bound by Fifth Circuit precedent, and as such, finds that Plaintiff has failed to create a genuine issue of material fact that the complained of actions rise to the level of adverse employment actions. Accordingly, Defendant's Motion for Summary Judgment on Plaintiff's claim of retaliation should be GRANTED.
Pl. Response to Def. MSJ at p. 20.
Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (citing see Page v. Bolger, 645 F.2d 227, 233(4th Cir. 1981) (en banc) (noting that Title VII discrimination cases have focused on ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating), cert. denied, 454 U.S. 892, 102 S.Ct. 388 (1981)).
Green v. Administrators of the Tulane Education Fund, 284 F.3d 642, 657 (5th Cir. 2002) In Green the Fifth Circuit found that "changing locks, restructuring office procedures, clarifying job duties, and taking disciplinary actions in the form of reprimands do not constitute ultimate employment decisions."
Hostile Work Environment/Harassment
In order to prevail on a hostile work environment claim, Mr. Ramos must prove that he (1) belongs to a protected group, (2) was subjected to unwelcome harassment, (3) the harassment complained of was based on race, and (4) the harassment affected a term, condition, or privilege of employment. Plaintiff must "subjectively perceive the harassment as sufficiently severe or pervasive, and this subjective perception must be objectively reasonable." "The fact-finder must consider the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance."
Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003).
Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367 (1993)).
Id.
Plaintiff con tends that "denying Plaintiff adequate staffing, presenting him with marginal work performance evaluations, presenting him with letter of admonishment, and denying him work performance awards" created a hostile/harassing work environment. Defendant responds that Plaintiff has not offered any evidence that this alleged harassment was due to his race. These events took place over the course of at least three years. Four or five incidents over a period of three years is hard to classify as severe or pervasive. Plaintiff admitted in his deposition that the marginal work performance evaluations were fair and there were areas of work in which he needed improvement. Also, the letter of admonishment was rescinded, removed from Plaintiff's official file, and resulted in no discipline, pay decrease, or demotion. Furthermore, Plaintiff has not produced sufficient evidence that any of these occurrences were related to his race. Essentially, Plaintiff admits that Ms. Row was demanding and micro-managed all the directors, but it was different with him. Taking into account the totality of the circumstances, the Court is of the opinion that Plaintiff has not created a genuine issue of material fact as to one or more of the elements of a hostile work environment claim as articulated in Harris. Accordingly, the Court finds that Defendant's Motion for Summary Judgment on Plaintiff's hostile work environment/harassment claim should be GRANTED.
Ms. Row was hired in February/March 2001 and Plaintiff filed his informal EEO charge in June 2004.
Def. MSJ, Exhibit 1, Pl. Depo. at pp. 62-73, 84-86.
Def. MSJ, Exhibit 1, Pl. Depo. at pp. 194-198.
Def. MSJ, Exhibit 1, Pl. Depo. at pp. 62-73, 91-93.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has failed to raise a genuine issue of material fact as to one or more essential elements of each of his causes of action. Accordingly, it is ORDERED that Defendant's Motion for Summary Judgment (Docket No. 19) is GRANTED.It is so ORDERED.