Opinion
NO. SA-97-CA-289-PMA.
May 10, 1999.
ORDER
Pursuant to the consent of the parties in the above-styled and numbered cause of action to trial by the undersigned United States Magistrate Judge and consistent with the authority vested in the United States Magistrate Judges under the provisions of 28 U.S.C. § 636(c)(1) and Appendix C, Rule 1(i) of the Local Rules for the Assignment of Duties to United States Magistrates, in the Western District of Texas, the following order is entered.
I. JURISDICTION
The Court has federal question jurisdiction. 28 U.S.C. § 1331 and § 1343.
II. STATEMENT OF FACTS
Plaintiff David Perez, a Hispanic male, filed this civil action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. Plaintiff, an employee of the Department of Veterans Affairs at the Audie L. Murphy Medical Center, contends he was discriminated against on the basis of national origin (Hispanic) and as a reprisal for prior protected activity. Specifically, plaintiff contends he had "several negative encounters" with his supervisors. For example, plaintiff alleges that on one occasion, he asked for help from a supervisor, Jerry Mueller, about resolving a conflict with a male co-worker who was allegedly harassing plaintiffs then fiancee. Plaintiff contends that instead of assisting him in resolving the harassment allegations, Mr. Mueller made improper advances towards his fiancee after plaintiff was required to leave the room. Plaintiff also alleges that his supervisors treated employees not of plaintiffs protected group more favorably than other Hispanics. For example, plaintiff alleges Mr. Mueller treated a white male more favorably than a Hispanic male when it came to dealing with both men's worker's compensation claims, and, as plaintiff alleges, the only apparent reason for the different treatment of the men was the Hispanic's national origin. Plaintiff further contends that Mr. Mueller treated a white female more favorably than a Hispanic male, who, like the Hispanic male employee, was arrested for a criminal offense.
Docket no. 1.
Id. at 2.
Id. at 3.
Id.
Id.
Id.
Id. at 3-4.
Id. at 4.
On another occasion, plaintiff alleges he was persuaded to apply for a promotion to a WS-10 foreman position — a position plaintiff claims he did not want. According to plaintiff, upon assuming the foreman position, he received resistance from several employees considered loyal to plaintiffs supervisors. Plaintiff contends he was discriminated against because: (1) his subordinates failed to respond to plaintiffs maintenance requests, (2) Mr. Mueller did not respond to plaintiffs request for assistance, (3) his supervisors hampered plaintiffs ability to institute discipline within his unit, and (4) his supervisors prevented his responding to emergency maintenance calls the previous foreman was allowed to answer. Plaintiff alleges that Mr. Mueller failed to assist him in setting and enforcing standards within his unit — actions plaintiff contends were due to Mr. Mueller's retaliation against him for prior protected activity and as a result of his national origin. After six months of what plaintiff asserts was a hostile work environment, he resigned his position as foreman; thereafter, plaintiff was reassigned to a position for which he contends he had insufficient training.
Id.
Id.
Id. at 4-5.
Id. at 5.
Id.
Defendant has filed a motion to dismiss or in the alternative for summary judgment, in which he denies all of plaintiffs allegations. Defendant maintains plaintiffs claims should be dismissed, inter alia because they are time-barred and fail to state cognizable claims of reprisal or discrimination under Title VII. Plaintiff filed a response to defendant's motion arguing, in effect, that he has stated competent hostile work environment claims. Defendant replies that plaintiff does not state valid claims for either retaliatory hostile work environment or national origin hostile work environment discrimination. Plaintiff has also filed a supplemental response to which defendant has responded and filed a motion for leave to file a second supplemental response. Because defendant's motion to dismiss or, in the alternative, for summary judgment refers to matters outside the pleadings, it will be treated for all purposes as a motion for summary judgment.
Docket no. 23.
Id.
Docket no. 29.
Docket no. 30.
Docket no. 39.
Docket no. 40.
Docket no. 41.
III. ISSUES
1. Whether defendant's motion for summary judgment on plaintiffs demotion claim should be granted.
2. Whether defendant's motion for summary judgment on plaintiff's mal-assignment claim should be granted.
3. Whether defendant's motion for summary judgment on plaintiffs retaliatory and discriminatory hostile work environment claims should be granted.
IV. SUMMARY JUDGMENT STANDARD
The standard to be applied in deciding a motion for summary judgment is set forth in Federal Rule of Civil Procedure 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if 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 judgment as a matter of law.
FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Anderson v. Liberty Lobby. Inc., 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Anderson v. Liberty Lobby. Inc., 477 U.S. at 248; Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson v. Liberty Lobby. Inc., 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of providing the court with a legal basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. The burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment. All evidence and inferences drawn from that evidence must be viewed in the light favorable to the party resisting the motion for summary judgment. Thus, summary judgment motions permit the Court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. at 323.
Anderson v. Liberty Lobby. Inc., 477 U.S. at 257.
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993).
See Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991).
V. BURDENS OF PRODUCTION AND PERSUASION IN DISCRIMINATION COMPLAINTS
The well-established framework of proof in an employment discrimination case requires that a plaintiff carry the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. If the plaintiff does so, a rebuttable presumption arises that the employer unlawfully discriminated against plaintiff. The burden then shifts to the defendant to present evidence that the plaintiff was treated in a certain way for a legitimate, nondiscriminatory reason. If this burden is met, the presumption disappears and the plaintiff has the opportunity to prove that the reason articulated by the employer was a mere pretext for discrimination. For purposes of proving pretext, it is not enough to show that the stated reason was false; plaintiff must show both that the stated reason was false and that discrimination was the actual reason for the adverse employment action. The plaintiff ultimately retains the burden of persuading the fact-finder of intentional discrimination.VI. ARGUMENTS AND CONCLUSIONS OF LAW
1. Defendant's motion for summary judgment on plaintiff's demotion claim should be granted.
Plaintiffs first allegation is that defendant promoted plaintiff to the position of maintenance foreman in order to remove him from his office as union president. Plaintiff does not claim he was denied any promotion, but rather, contends defendant effectively placed him in a position to fail. Defendant denies plaintiff's allegations and argues plaintiffs claim should be dismissed because it is time-barred.
Docket no. 29, exhibit 1 at 2.
Id.
Docket no. 23 at 7-10.
Plaintiff initially was employed by the Department of Veteran's Affairs at the Audie Murphy Veteran's Hospital as a WG-10 Electrician in 1984, where he worked in the "Maintenance and Operations" section of the Engineering Service. About seven or eight years ago plaintiff joined the local union, eventually assuming the position of president in the latter part of 1994. Thereafter, sometime in late 1994 or early 1995, plaintiff applied for a promotion to the position of Maintenance Foreman. Plaintiff was ranked the number one candidate and eventually assumed the Maintenance Foreman position on April 3, 1995. On July 14, 1995, plaintiff presented a written request to resign from the Maintenance Foreman position and asked to be reassigned to a WG-10 Electrician Position. Plaintiffs written request stated:
ID., exhibit A at 15.
Id. at 16.
Id. at 312.
Id. at 45, 168.
Id. at 225-227, 232.
1. This letter is to request to be able to step down from the Maintenance Foreman position. The reason for the request is for personal reasons and should not be construed in any way that I am unable to handle the job of Maintenance Foreman. I am doing this of my own and not for any other reason.
2. I would like it to be effective as soon as possible or at the end of this pay period. I understand that I will be reverted back to WG-10 Electrician at the rate of Step 5 @ $14.46 an hour.
Id. at exhibit 3.
Plaintiffs resignation from the Maintenance Foreman position became effective on July 23, 1995.
Id. at exhibit 4.
Plaintiff first contacted an Equal Employment Opportunity ("EEO") counselor regarding his claims of discrimination on May 30, 1996. Plaintiff reported that he had been discriminated against on April 26, 1996. However, the EEO counselor noted in his report that plaintiff also claimed he was discriminated against by allegedly not being allowed to succeed as Maintenance Foreman.
Id. at exhibit B, Tab 1-2.
Id. at exhibit B, Tab 2. The alleged discriminatory event on April 26, 1996, will be discussed infra in the final section of this order in connection with plaintiffs hostile work environment claim.
Id. at exhibit B, Tab 5.
Federal law mandates that "[t]he exclusive remedy for claims of employment discrimination by federal employees under Title VII is provided in 42 U.S.C. § 2000e-16(a)-(e)." Under this statute, federal employees must first exhaust their administrative remedies before bringing suit in federal court. Exhaustion of administrative remedies is a jurisdictional prerequisite to federal jurisdiction. In order to commence the administrative process and subsequently exhaust it, a claimant must, prior to filing a complaint, consult an EEO counselor within forty-five days of the date of the alleged unlawful employment practice. This time limit begins to run when facts that would support (or that the complainant believes would support) a charge of discrimination are apparent or should be apparent to a person with a reasonably prudent regard for his or her rights. In the federal employment context, this administrative process begins with the informal EEO counseling period. After the informal counseling period ends, the complainant is notified of his or her right to file a complaint if the individual is not satisfied with the resolution of his or her claims, and the time limits for doing so. The complainant must file a formal claim with the Equal Employment Opportunity Commission ("EEOC") within fifteen days after receiving a notice to file a claim. Failure to either notify an EEO counselor or file a claim in a timely fashion bars a complaint filed in federal court, absent an adequate showing by the employee of waiver, estoppel or equitable tolling.
Henderson v. United States Veterans Admin., 790 F.2d 436, 439 (5th Cir. 1986).
Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992) (quotingHampton v. I.R.S., 913 F.2d 180, 182 (5th Cir. 1990).
Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990) (citing Porter v. Adams, 639 F.2d 273, 276 (5th Cir. 1981) ("The exhaustion requirement . . . is an absolute prerequisite to suit" under § 2000e- 16)).
29 C.F.R. § 1614.105(a)(1) (1998).
Delaware State College v. Ricks, 449 U.S. 250, 258-59 101 S.Ct. 498, 504-505, 66 L.Ed.2d 431 (1980).
29 C.F.R. § 1614.105(a) ("Aggrieved persons . . . must consult a counselor prior to filing a complaint in order to try to informally resolve the matter.").
29 C.F.R. § 1614.106(b) ("A complaint must be filed within 15 days of receipt of the notice required by § 1614.105(d), (e) or (f).")
Bickham v. Miller 584 F.2d 736, 738 (5th Cir. 1978). Plaintiff does not assert waiver, estoppel or equitable tolling in defense of an untimely filing, and accordingly, the Court declines to reach the issue.
Plaintiff did not timely file an administrative complaint with regard to his allegations that he was set up for failure as the Maintenance Foreman. Because plaintiff argues he was effectively forced to resign on July 23, 1995, any facts which would support a claim of discrimination were known to him at the latest on July 23, 1995. But, plaintiff did not contact an EEO counselor until May 30, 1996, clearly outside of the 45-day administrative requirements. Accordingly, defendant's claim of discrimination in regard to his promotion to the Maintenance Foreman position and his subsequent resignation should be dismissed for failure to comply with the 45-day requirement.
Plaintiff, nonetheless, does not dispute defendant's position with regard to administrative timeliness; rather, plaintiff argues the events complained about constitute "a continuing violation of his right to be free from discrimination and reprisal for protected EEO activity." Defendant argues plaintiffs claim cannot be saved by the continuing violation theory because, as defendant suggests, pointing out that a demotion is part of a continuing violation of racial harassment cannot revive an untimely claim of a discriminatory demotion.
Docket no. 29 at 3. Plaintiff also alleges these events contribute to a hostile working environment claim. The Court discusses these allegations infra in the final section of the Court's order.
The Court does not find persuasive plaintiffs claim he was "forced to resign from [his] position as foreman." See docket no. 29 at exhibit 1, page 4; see also docket no. 23 at exhibit A, Tab 4 (Evidence of the voluntariness of plaintiffs resignation is indicated by plaintiffs position he "thoroughly understand[s] this action and no pressure or coercion has been exercised against [him] to affect this action."). Consequently, the Court is vary of characterizing plaintiffs claim as one of a discriminatory demotion. Nonetheless, because the Court need not discuss whether plaintiff has stated a prima facie case with regard to this claim in light of the Court's ruling that plaintiff has not timely filed an administrative complaint on the maintenance foreman allegation, the Court does not find the characterization of plaintiffs claim as one of "demotion" to be of particular significance.
See docket no. 23 at 8 (quoting Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998) ("[D]emotion is the sort of discrete and salient event that should put an employee on notice that a cause of action has accrued.").
The continuing violation theory relieves a plaintiff from establishing that all of the alleged discriminatory action occurred within the limitations period if the plaintiff can show a series of related acts, one or more of which must fall within the actionable period. "Although there is no definitive standard for what constitutes a continuing violation, the plaintiff must demonstrate more than a series of discriminatory acts. He must show an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action."
Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 979 (5th Cir. 1983), cert denied, 479 U.S. 868 (1986).
Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) (citingBerry, 715 F.2d at 981; Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997)).
Plaintiffs claim of a discriminatory demotion was a discrete event which would put plaintiff on notice of facts supportive of a Title VII charge. Furthermore, in Huckabay v. Moore, a recent Fifth Circuit case on point, the Court held that the plaintiffs demotion, which happened only once, was "unlike the cumulative effect of the petty annoyances of daily harassment, [and that] demotion is the sort of discrete and salient event that should put an employee on notice that a cause of action has accrued." As pointed out by defendant in his motion for summary judgment, plaintiff alleges he feared even before he accepted the promotion that management would not support him and that he was pressured or coerced to resign. These allegations lead only to the conclusion that plaintiff was well aware of facts supportive of a Title VII charge — at the latest — upon his resignation from the maintenance foreman position. Accordingly, because plaintiffs claim of discriminatory demotion was a discrete event, the continuing violation theory does not revive his otherwise untimely claim.
142 F.3d 233, 239-240 (5th Cir. 1998).
Id.
Docket no. 23 at 9.
2. Defendant's motion for summary judgment on plaintiff's mal-assignment, claim should be granted.
Defendant argues next that plaintiffs claim that after resigning as maintenance foreman he was "mal-assigned to a very complex WG-11 Electronics position" in retaliation for having engaged in previous protected activity should be dismissed. Defendant argues plaintiffs claim he was required to do work not in his job description for a period of eight weeks is not sufficient to support a claim of retaliatory discrimination. The Court agrees.
See docket no. 1 at §§ 18-21; docket no. 23 at 10-15.
Docket no. 23 at 11.
In order to establish a prima facie case of reprisal, a complainant must demonstrate that: (1) he engaged in a statutorily protected activity; (2) that he experienced an adverse employment action following the protected activity; and (3) that a causal link exists between the protected activity and the adverse employment action. Since the burden-shifting analysis applies to retaliation cases, once the plaintiff establishes a prima facie case, the defendant then has the burden to articulate a legitimate, non-retaliatory reason for the adverse employment action. If the defendant articulates a non-retaliatory reason, then the plaintiff must establish that the conduct protected by Title VII was a "but for" cause of the adverse employment action.
Nowlin v. Resolution Trust Corp., 33 F.3d 498, 507 (5th Cir. 1994) (citing Shirley v. Chrysler First. Inc., 970 F.2d 39, 42 (5th Cir. 1992)); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
Long, 88 F.3d at 304-305.
Id. at 305 n. 4.
Plaintiff has not shown he suffered an adverse employment action as defined by established legal standards, and therefore, because plaintiff cannot establish a prima facie case of reprisal, the above-mentioned burden-shifting analysis is not invoked. In Dollis v. Rubin, the Fifth Circuit discussed the types of actions by employers that constitute adverse employment action: "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, in Mattern v. Eastman Kodak Company, the Fifth Circuit determined that, in addition to the employment actions discussed in Dollis, verbal threats of being fired, reprimands, a missed pay increase, and being placed on a final warning do not constitute adverse employment actions. Instead, as the Fourth Circuit has noted, hiring, granting/denying leave, discharging, promoting/demoting, and compensating, have been the types of ultimate employment decisions within the purview of Title VII discrimination cases. The fact plaintiff was required to perform work outside of his job description — even if true — does not rise to the level of an adverse employment decision. Plaintiff has presented no legal authority holding that the required performance of work outside of one's job description rises to the level of an adverse employment action. Accordingly, plaintiffs allegation he was retaliated against when he was "mal-assigned" to a WG-11 position fails to establish a prima facie case of reprisal because plaintiff was not the victim of an adverse employment action, and defendant's motion for summary judgment should be granted on this claim.
3. Defendant's motion for summary judgment on plaintiff's discriminatory and retaliatory hostile work environment claims should be granted.
77 F.3d 777 (5th Cir. 1995).
Id. at 781-82.
104 F.3d 702, 707-08 (5th Cir.), cert. denied, 118 S.Ct. 336 (1997).
Id. at 708 (citing Dollis, 77 F.3d at 779-80, 782, holding that employer's refusal to consider employee for a promotion, refusal to allow employee to attend a training conference, criticizing the employee to a government vendor, and giving employee false information regarding aspects of her employment including access to travel funds and methods of filing EEOC complaints did not constitute ultimate employment decisions. These actions were considered to be at most "tangential" to future decisions that might be ultimate employment decisions).
Page v. Bolger, 645 F.2d 227, 233 (4th Cir.) (en banc,) cert. denied, 454 U.S. 892 (1981). See also Barrow v. New Orleans Steamship Association, 10 F.3d 292, 297 n. 20 (5th Cir. 1994).
While plaintiff alleges in his original petition that he was "mal-assigned" to the WG-11 position (see docket no. 1 at 6), in his deposition which is appended to defendant's motion to dismiss or, in the alternative, for summary judgment, plaintiff testifies he was never assigned to the WG-11 position, but rather, was required to do some work he felt was more within the job description of a WG-11 position. Docket no. 23, attachment A at 237-38.
The Court notes defendant has argued plaintiff also fails to state a claim for national origin discrimination with regard to his "mal-assignment" claim. See docket no 23 at 12. Although the Court finds defendant's arguments persuasive that plaintiff has failed to state a claim of national origin discrimination on this claim, the Court declines to address those arguments in light of plaintiff's failure to plead in his original petition that he was "mal-assigned" due to national origin discrimination. See docket no. 1 at 6: "21. Because of his previous protected activity, the Plaintiff was mal-assigned to a very complex WG-11 Electronics position for which he had no training and was required to meet the performance standards." (emphasis added).
Plaintiff does not rebut defendant's arguments that plaintiff has failed to state separate claims of reprisal and/or discrimination with regard to the above-mentioned "demotion" and "mal-assignment" events. Rather, plaintiff contends in his response to defendant's motion he has stated a valid claim that he was subject to a continuous hostile working environment based on retaliation for prior protected activities and on discrimination for his national origin. This position taken by plaintiff necessarily requires the Court to first determine whether the above-discussed "demotion" and "mal-assignment" events should be considered in analyzing plaintiffs hostile work environment claim. A Fifth Circuit case relied upon by plaintiff directs the Court that it should not. In Huckabay v. Moore, the Fifth Circuit analyzed the relationship between the continuing violation doctrine and the plaintiffs hostile work environment, demotion, and failure to promote claims. TheHuckabay Court concluded that although the continuing violation doctrine did apply to plaintiffs hostile work environment claim under the facts of that case, the doctrine did not apply to plaintiffs demotion and failure to promote claims. The Court concluded those claims were discrete events which would put an employee on notice a Title VII cause of action had accrued and the claims were "a different sort of discrimination from the day-to-day harassment that makes [plaintiffs] workplace a hostile environment." Therefore, the Court held plaintiffs demotion and failure to promote claims were not part of his hostile work environment claim, and further, the continuing violation doctrine would not revive the untimeliness of those claims. Similar to Huckabay, the Court concludes plaintiffs otherwise untimely "demotion" and "mal-assignment" claims were discrete events which should have put plaintiff on notice that possible Title VII actions had arisen. Because the claims are not the sort of day-to-day harassment envisioned in Huckabay, neither claim is considered by the Court as part of plaintiffs hostile work environment claim.
"Plaintiff has consistently contended that he was subjected to a hostile working environment on the basis of his national origin (Hispanic) and a continuing violation of his right to be free from discrimination and reprisal for protected EEO activity." Docket no. 29 at 3. "Therefore, Plaintiff's claims in this case must be judged by the legal standards applicable to hostile environment discrimination cases." Id.
142 F.3d 233. See note 60 above.
Huckabay, 142 F.3d at 239-240.
Id.
Id.
Accordingly, the Court must examine the remainder of plaintiffs allegations in deciding whether plaintiffs claim for hostile work environment should survive summary judgment. Plaintiffs response to defendant's motion for summary judgment loosely characterizes his hostile work environment claim as follows:
Plaintiff has consistently contended that he was subjected to a hostile work environment on the basis of his national origin (Hispanic) and a continuing violation of his right to be free from discrimination and reprisal for protected EEO activity.
Docket no. 29 at 3.
Plaintiff then directs the Court to three paragraphs of his complaint which, according to plaintiff, state valid claims of discriminatory and retaliatory hostile work environment:
7. Plaintiff alleges that the Defendant has engaged in a pattern and course of discriminatory conduct against him on account of his national origins and in retaliation for his previously engaging in protected activity.
22. Because of his previous protected activity, the Plaintiff was subjected to a hostile work environment by his supervisor who solicited the assistance of another employee to further his acts of reprisal.
23. Because of his previous protected activity, the Plaintiff was subjected to intense scrutiny by his supervisors to the exclusion of similarly situated employees.
Docket no. 29 at 3.
Docket no. 1 at 2 and 6.
The Court opines plaintiff is attempting to assert claims of retaliatory hostile work environment and national origin hostile work environment discrimination. But, plaintiff has not produced any legal authority which authorizes a separate cause of action for a hostile work environment claim based on reprisal for plaintiff engaging in prior protected EEO activities. While there are cases which recognize hostile work environment claims based on national origin and/or racial discrimination, this Court must draw on additional authority outside of the Fifth Circuit to analyze plaintiffs claim that he was subjected to a retaliatory hostile work environment.
Plaintiffs reliance on Huckabay in support of his hostile work environment claims is somewhat misplaced. See docket no. 29 at 3-6. In fact, as discussed supra, Huckabay directs the Court to dismiss plaintiffs "demotion" and "mal-assignment" claims as time-barred. See Huckabay, 142 F.3d at 240. Huckabay does not discuss the specifics of what is required to establish a prima facie claim of hostile work environment; rather, it discusses the interplay between the continuing violation theory and the claimant's hostile work environment claim. Id. at 239-40. At the outset, this Court is concerned with the extent to which plaintiff has stated prima facie case of hostile work environment discrimination.
In Fleming v. South Carolina Dept. of Corrections, the District Court, relying on the Supreme Court's instruction in McDonnell Douglas Corp. v. Green that "[t]he facts necessarily will vary in Title VII cases, and the specification . . ., of the prima facie proof required . . . is not necessarily applicable in every respect to differing factual situations," implicitly recognized a separate cause of action for a retaliatory hostile work environment:
952 F. Supp. 283 (D.S.C. 1996).
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Id. at 802 n. 13.
This court finds that the prima facie case of such claims consists of the following:
(1) the plaintiff engaged in protected activity;
(2) the plaintiff was subjected to unwelcome harassment;
(3) the unwelcome harassment was causally connected to the plaintiff's protected activity;
(4) the harassment was severe and pervasive; and
(5) a basis exists for imputing liability to the employer.
Fleming, 952 F. Supp. at 290.
The United States District Court for the Southern District of New York has also fashioned a cause of action for retaliatory hostile work environment harassment, stating that:
To establish a prima facie case of retaliatory harassment, plaintiff must establish: (1) that she engaged in protected activity of which the alleged instigators or perpetrators of harassing conduct were aware; (2) that the alleged harassment constituted an employment action disadvantaging plaintiff and (3) that there is a causal connection between the protected activity and the harassment.
Reilly v. Metro-North Commuter Railroad Co., No. 93 Civ. 1996 WL 665620, at *1 (S.D.N.Y. Nov. 15, 1996).
Although the tests outlined by the two Courts above are different, plaintiff fails to state a prima facie case with regard to either test. Namely, plaintiff has not shown under section three of either test how any alleged retaliatory harassment he has suffered is connected to his engaging in prior protected activities.
Plaintiff's allegations of a retaliatory hostile work environment as a direct result of his position as president of the AFGE Union are discussed in paragraph eleven through seventeen of plaintiffs response to defendant's motion for summary judgment. In paragraph eleven plaintiff contends he brought to the attention of his supervisors that an Anglo work leader was not forced to do the same type of work as his predecessor, a Hispanic male; and after so doing, plaintiff was told by his supervisor that if plaintiff did not like it he could quit. Yet, plaintiff has not shown how this type of comment from his supervisor is in any way connected to his engaging in prior activity protected under Title VII. In paragraph twelve, plaintiff points to an employee that was allegedly treated differently by plaintiffs supervisor based upon his national origin (Hispanic). of course, this allegation of alleged discrimination towards someone other than plaintiff does not satisfy plaintiffs prima facie burden under Title VII. Paragraph thirteen is a broad statement that plaintiff observed instances of discrimination in the granting of OWCP claims; yet, plaintiff has not shown how this allegation relates to his retaliatory hostile work environment claim. Paragraph fourteen relates to plaintiffs "demotion" claim. As mentioned above, those allegations are time-barred because plaintiff failed to timely exhaust administrative remedies with regard to that claim. Furthermore, even if these allegations were relevant to plaintiffs retaliatory hostile work environment claim, plaintiff has not shown how the alleged negative instances were connected to his engaging in prior protected activity. Likewise, paragraph fifteen relates to plaintiffs "mal-assignment" claim — a claim that is also time-barred. Alternatively, plaintiff has not shown how this allegation is connected to his engaging in prior protected activity under Title VII. Finally, as pointed out by defendant in his motion for summary judgment, the allegations in paragraphs sixteen and seventeen of plaintiffs response do not relate to this pending lawsuit because they are the subject of other EEO complaints, and therefore, are not persuasive to plaintiffs retaliatory hostile work environment claim. Accordingly, because plaintiff has failed to state a prima facie case of retaliatory hostile work environment under either of the two tests discussed above, defendant's motion for summary judgment should be granted on this claim.
Docket no. 29 at 8.
Id.
Id. at 9.
Id.
Id. at 9-12.
See supra part 1 of this order.
See supra part 2 of this order.
Docket no. 29 at 12-13; see docket no. 23, attachment A at 108-113.
Defendant argues that if this Circuit recognized a "retaliatory hostile work environment" claim, it logically would require a plaintiff to demonstrate he/she suffered an ultimate employment action. See docket no. 30 at 5. The Court finds defendant's position persuasive in light of the Fifth Circuit's holding in Mattern. See Mattern, 104 F.3d at 708 ("The import of these cases, culminating in Dollis, is the long-held rule that Title VII's anti-retaliation provision refers to ultimate employment decisions, and not to an "interlocutory or mediate' decision which can lead to an ultimate decision."). Plaintiff cannot demonstrate for purposes of his retaliatory hostile work environment claim that he suffered an ultimate employment action, and therefore, his claim would fail on that ground as well.
The next part of plaintiff's claim focuses on national origin discrimination. The Court must determine the extent to which plaintiff has stated a prima facie ease of national origin hostile work environment discrimination. Unlike a retaliatory hostile work environment claim, a hostile work environment claim based on national origin is more widely recognized and easier to define. However, most courts in this Circuit have discussed such a cause of action in terms of a racial hostile work environment — a characterization which does not affect the nature of the test.
See docket no. 29 at 3.
Because the analysis of a racial hostile work environment claim and national origin hostile work environment claim arc virtually identical, the Court does not differentiate between the two.
In order for plaintiff to defeat defendant's motion for summary judgment on his hostile work environment claim, the United States Supreme Court has held that plaintiff must show that his workplace was "permeated with discriminatory intimidation, ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment." "Whether an environment is hostile or abusive depends on the totality of the circumstances, with a focus on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
Glosson v. Southwestern Bell Wireless, Inc., Civ. A. No. 3:98-CV-0426, 1999 WL 102802, at *5 (N.D.Tex. Feb. 23, 1999) (citing Long v. Eastfleld College, 88 F.3d 300, 309 (5th Cir. 1996); Harris, 510 U.S. at 22-23).
Plaintiff claims he "has been subjected to constant racial slurs and jokes about Hispanics" since becoming an employee of the VA Hospital. However, the Fifth Circuit recognizes that the Supreme Court has "contrasted physically threatening or humiliating conduct, which will support a claim for hostile work environment, from a "mere offensive utterance,' which will not." Therefore, "`[m]ere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not sufficiently alter terms and conditions of employment to violate Title VII." The Court finds these infrequent slurs, which may have offended plaintiff, are not the type of harassment that alters the terms and conditions of employment. Furthermore, when looking at the totality of the circumstances, i.e. the fact plaintiff received a promotion to maintenance foreman at one time and continues to be employed at the VA; and the minimal degree and severity of the alleged negative comments, it is clear plaintiffs claim for national origin hostile work environment cannot stand. Accordingly, defendant's motion for summary judgment should be granted on this claim.
Docket no. 29 at 7. For example, plaintiff contends his prior foreman referred to plaintiff as an "egotistical Mexican" with a "big head." Id. Plaintiff also alleges his then second-level supervisor made a comment about leaving a former job because, allegedly according to his supervisor, only Mexicans were being promoted. Id. Plaintiff alleges the supervisor indicated he obtained employment at the VA so that he would not be forced to compete with a "bunch of Mexicans." Id. On another occasion, plaintiff alleges his work leader told one of plaintiffs coworkers to "crack the whip" on plaintiff because plaintiff was not "going to be with us much longer." Id. at 12.
Long, 88 F.3d at 309 (citing Harris, 510 U.S. at 22).
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972)).
Defendant has argued that many of the alleged racial/ethnic slurs plaintiff says were directed to him occurred outside of work at a bar sometime in the 1980s and that plaintiff could remember only one negative ethnic comment since 1990. See docket no. 30 at 11-12. Plaintiff has not contested defendant's position on this issue.
VII. CONCLUSION
Defendants' motion to dismiss or, in the alternative for summary judgment, which is treated for all purposes as a motion for summary judgment, is GRANTED with prejudice; and plaintiffs motion for leave to file a second supplemental response to defendant's motion to dismiss or, in the alternative for summary judgment, is GRANTED. IT IS SO ORDERED.
Docket no. 23.
Docket no. 41.
Signed and entered this 10 day of May, 1999.