Opinion
Civil Action No. 98-3647, Section "L" (4)
June 7, 2000
ORDER AND REASONS
Before the Court is defendants' motion to dismiss and motion for summary judgment. For the foregoing reasons, defendants' motion is GRANTED pursuant to Rule 56 of the Federal Rules of Civil Procedure.
I. BACKGROUND
Plaintiff Vivian Piper is a Systems Accountant at the National Finance Center in New Orleans, Louisiana. She has been employed there since 1974 and in her current position since 1985. She claims that her employer, the Department of Agriculture, discriminated against her because of her race, sex, age, and her prior complaints to the EEOC in violation of 42 U.S.C. § 2000 (e), et seq. (Title VII).
Prior to this suit, Piper brought an administrative complaint of discrimination with the EEOC in 1985 and subsequently filed a law suit in this court which was settled in 1992. Piper contends that the defendant continued to discriminate against her and did not adhere to the terms of the settlement. She attests that she has filed thirty-two additional administrative complaints in addition to this suit which have been dismissed because of her claim in this court.
Specifically. Piper alleges that she was denied promotions because she is black, female, and is perceived as a trouble maker for filing EEOC complaints and a law suit against her employer. She additionally claims that she was given a low performance rating and improper evaluations, denied cash awards, passed for promotions while other employees were promoted with lesser qualifications, evaluated with subjective criteria, given fewer job responsibilities, and was reassigned to other positions.
Piper seeks two forms of protection under Title VII. First, she claims to be a member of a class protected by Title VII (African American and female) who has been discriminated against. Second, she claims to have suffered retaliation from her employer after engaging in an activity protected by Title VII (filing complaints with the EEOC).
II. SUMMARY JUDGMENT STANDARD
To overcome summary judgment, Piper must establish a prima facie case of discrimination and a prima facie case of retaliation. For her first claim of race and sex discrimination, she must show that "(1) she is a member of a protected class; (2) she sought and was qualified for an available employment position; (3) she was rejected for that position; and (4) the employer continued to seek applicants with the plaintiffs qualifications." Scales v. Slater, 181 F.3d 703, 709 (5th Cir. 1999). For her second claim of retaliation, she must first demonstrate that 1) she engaged in a protected activity; 2) her employer took adverse employment action against her; and, 3) a causal connection between the protected activity and the adverse employment action exists. See Burger v. Central Apartment Management, Inc., 168 F.3d 875, 878 (5th Cir. 1999).
If Piper can establish a prima facie for one or both claims, then the burden shifts to the defendant who must articulate a legitimate nondiscriminatory reason for the challenged employment action. See Scales, 181 F.3d 709; Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999). If this occurs, the burden then shifts back to the plaintiff to demonstrate that the defendant's nondiscriminatory explanations are pretextual. See Scales, 181 F.3d at 709 (explaining that to show pretext plaintiff must provide evidence demonstrating that the asserted reason was false and that discrimination was the actual motivation); Shackelford, 190 F.3d at 408. In short, if the defendant introduces evidence which, if true, would permit the conclusion that the adverse employment action was nondiscriminatory, the focus shifts to the ultimate question of whether the defendant unlawfully retaliated against Piper. See Haynes v. Penzoil Co., 207 F.3d 296, 299 (5th Cir. 2000).
Piper may avoid summary judgment on her discrimination claims only if the evidence taken as a whole creates a fact issue as to whether the defendants' acted on the basis of their proffered nondiscriminatory reason and if the evidence is sufficient to create a reasonable inference of discriminatory intent. See Grimes v. Texas Dept. of Mental Health Mental Retardation, 102 F.3d 137, 141 (5th Cir, 1996). In order to defeat summary judgment on her retaliation claim, "the plaintiff must show that the protected conduct was abut for cause of the adverse employment action." See Scrivner v. Socorro Ind. School District, 169 F.3d 969, 972 (5th Cir. 1999). No liability exists if the plaintiff would not have been promoted even in the absence of her prior complaints of discrimination. See Long v. Eastfield College, 88 F.3d 300, 305, n. 4 (5th Cir. 1996).
III. ANALYSIS
Defendants first argue that Piper's various claims should be limited to those related to her allegation of failure to promote. The Fifth Circuit limits redress for adverse employment actions to those that affect a narrow field of ultimate employment decisions. See Burger, 168 F.3d at 878. "Ultimate employment decisions include acts such as hiring, granting leave, discharging, promoting, and compensating." Id. (quoting Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997), cert. denied, 522 U.S. 932 (1997)).
Piper raises allegations of several discriminatory and retaliatory acts by the defendants in her complaint. See Pl.'s Compl. ¶ xi-xiv. It is unclear whether these allegations garnish her claim of failure to be promoted or whether the plaintiff urges them as independent claims against the defendants. To the extent plaintiff offers them as independent claims on a separate basis, these claims must be dismissed because they do not constitute ultimate employment actions. See Schackelford, 190 F.3d at 406-07 (finding that a denial of employee training is not an adverse employment action protected by Title VII discrimination provisions); Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995) (finding that Title VII protections were designed to address only ultimate employment decisions). Therefore, Piper may only pursue discrimination claims that constitute ultimate employment actions, i.e. a failure to promote.
Piper claims that she did not receive promotions because of her race, sex, and her complaints to the EEOC. With regard to her discrimination claim, Piper establishes a prima facie case of discrimination. She is an African-American woman and therefore a member of a protected class. Having worked for the National Finance Center since 1974 and having received other promotions, Piper supports her claim that she was qualified for several available positions for which she was denied promotions in favor of other applicants with similar experience.
The burden then shifts to the defendant who offers a nondiscriminatory reason for failing to promote Piper. Defendant explains that several other candidates were better qualified for the positions to which Piper applied. First, the defendants explain that the NFC awarded a position of Chief of Payroll/Personnel Branch (NEC 97.004) to a candidate who had nineteen years of supervisory experience, seventeen of which were in the payroll/personnel area. The selectee also had been acting as a branch chief in his supervisor's absence. In 1996, the defendants selected another candidate with nineteen years of relevant experience for the position of Supervisory Systems Accountant (NFC 95-087) who had also been section head for the branch for the eight proceeding years. The individual chosen for the position of Branch Chief of the Accounting Reconciliation Branch (NFC 94-017) had served as section chief for six years. The selecting official for a position as Supervisory Systems Accountant (NFC 93-044) was an African-American female who chose a candidate with seven years specific experience and strong analytical skills. For a position as Accounting Reporting Branch Chief (NFC 97-064), the defendants promoted an African-American female with eighteen years experience in the Accounting Reporting Branch and nine years supervisory experience as a section head. A sixteen year veteran of who had managed and supervised the Billings and Collection Branch was chosen for the position of Billings and Collections Branch Chief. Finally, the defendants state that an individual with nineteen years experience with the Payroll Accounting Section was chosen to be Head of Payroll Accounting Section (NFC 97-045).
The defendants, having introduced evidence that indicates the conclusion that the adverse employment action was nondiscriminatory, shift the burden back to the plaintiff to demonstrate that their nondiscriminatory explanations are pretextual. See Scales, 181 F.3d at 709. Piper responds that she was the only employee at her pay level not in a supervisory position and that all supervisory accounting positions except one are occupied by white males. She claims never to have been invited to staff branch meetings. Moreover, she attests that black accountants are rarely promoted to a managerial level except when they seek EEO action.
The Court finds that the evidence does not support a conclusion that the defendant's nondiscriminatory explanations are pretextual. Piper had only one year of supervisory experience while each of the other candidates served from nine to nineteen years as supervisors. Contrary to Piper's allegations, the defendants did select both women and African Americans to supervisory positions. In fact, one supervisor who did not select Piper for a promotion is herself an African-American woman. Therefore, the plaintiff fails to provide sufficient evidence to create a reasonable inference of discriminatory intent.
The evidence also does not support Piper's retaliation claim. She offers only her belief that she was denied a promotion because of her prior EEOC complaints. She fails to provide evidence to show that the defendants failed to promote her because of her discrimination claims. Piper's burden of demonstrating the existence of a genuine issue of fact to defeat summary judgment cannot be met by unsubstantiated assertions. See Grizzle v. Travelers Health Network Inc., 14 F.3d 261, 268 (5th Cir. 1994) (noting an employee's self-serving generalized testimony stating her subjective belief that discrimination occurred is insufficient to support a jury verdict in plaintiffs favor). The Court must "resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contrary facts." See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)). If the evidence leads to only one reasonable conclusion, summary judgment is proper. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In this case, the evidence demonstrates that Piper was not promoted because she was not as well qualified as other candidates. Even if Piper's history of discrimination complaints contributed to the decisions not to promote her, she cannot establish liability for unlawful retaliation if her employer would have denied her promotions notwithstanding her complaints to the EEOC. See Long, 88 F.3d at 305, n. 4.
IV. CONCLUSION
For the foregoing reasons, defendants' motion to dismiss and motion for summary judgment is GRANTED pursuant to Rule 56 of the Federal Rules of Civil Procedure.