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following Martin's three-day presumption and holding that “[t]he complaint ... must be filed ninety-three days after the right-to-sue letter is mailed”
Summary of this case from Jenkins v. City of San Antonio Fire Dep'tOpinion
EP-03-CA-0360-DB.
August 15, 2005
MEMORANDUM OPINION AND ORDER
On this day, the Court considered a "Motion For Summary Judgment," filed by Defendant Jo Ann B. Barnhart, Commissioner, Social Security Administration, in the above-captioned cause on September 29, 2004, which the Court construes as a "Motion for Summary Judgement" and a "Motion to Dismiss," for the reasons stated below. On October 12, 2004, Plaintiff Carmen Aportela filed a "Response To Defendant's Motion For Summary Judgment." On October 19, 2004, Defendant filed a "Reply Brief To Plaintiff's Response To Defendant's Motion For Summary Judgment." After due consideration, the Court is of the opinion that both Defendant's Motion for Summary Judgment and Motion to Dismiss should be granted.
BACKGROUND
Plaintiff, a Hispanic female, has been employed with the Social Security Administration ("SSA") since 1989. In 1995, Plaintiff was promoted by Arthur Muniz ("Muniz") to Claims Representative in the El Paso District Office at a GS-11 level paygrade. Muniz is the District Manager at the SSA office in El Paso and Plaintiff's second level manager. On May 27, 1998, Plaintiff was terminated from her employment with the SSA. Plaintiff subsequently challenged her termination through the Merit Systems Protection Board, the entity charged with adjudicating employee appeals of personnel actions. The parties were able to reach a settlement, and as a condition of the settlement agreement, Plaintiff was reinstated as a Service Representative in the Las Cruces Office at a GS-8 level effective January 3, 1999. The instant cause is based on six complaints Plaintiff filed with the Equal Employment Opportunity Commission ("EEOC") between the years of 1996 and 2001. Due to the high number of claims Plaintiff asserts, the Court elects to discuss the facts in the order set out in each of Plaintiff's EEOC complaints.
Plaintiff filed another EEO Complaint May 18, 2003, in which she makes numerous allegations of discrimination based on her sex, national origin, religion, and disability. That EEO Complaint is currently in the administrative phase.
1. Complaint No. 97-0151-SSA
In her first EEO complaint, Plaintiff alleges that she was subjected to discriminatory treatment because of her gender, religion, color, disability and retaliatory treatment when she was subjected to repeated humiliation, threats, and a hostile work environment created and perpetuated by management.
A. Religious and Color Discrimination
Plaintiff alleges Muniz hired several individuals who belonged to his church. Plaintiff specifically identifies Ralph Terrazas ("Terrazas"), as one of these individuals. When Plaintiff and Terrazas each completed their training to be claims representatives, Terrazas was required to conduct two interviews daily, while Plaintiff was required to conduct four. Plaintiff was assigned more work and was held to a higher standard than her similarly-situated co-workers.
Plaintiff does not specifically identify any co-workers.
On September 4, 1996, Plaintiff became aware of Muniz's decision to deny Plaintiff a Reasonable Performance Award for the performance period ending December 30, 1995. Instead, Plaintiff received an On-The-Spot ("OTS") Award of one hundred dollars. Plaintiff compares her work with that of Terrazas, who did receive a Reasonable Performance Award of five hundred dollars. B. Discrimination Based on Disability
Plaintiff alleges that the OTS payed to her was actually sixty five dollars. A breakdown of the award amounts distributed in the El Paso District Office reflects that Plaintiff received an OTS Award of $100. The Court relies on the government's accounting.
A breakdown of the award amounts distributed in the El Paso District Office reflects that the Ralph Terrazas received an OTS Award of $191.
Plaintiff claims that she was discriminated against on the basis of her disability when she was denied leave on October 9, 1996 and placed on absence without leave ("AWOL") status for her absences on October 10, 11, 14, and 15, 1996.
The SSA provides its employees with a form where they may identify their own handicaps. Plaintiff submitted several of these forms indicating that she suffers from hypothyroid, fibromyalgia, Post Traumatic Stress Disorder, depressive disorder, anxiety, and a closed-head injury she suffered at work. According to Plaintiff, her head injury occurred on April 22, 1996 when the top of an office cabinet fell on her head. When the incident occurred, Plaintiff notified her immediate supervisor, Sherlyn Ponce ("Ponce"), and complained to Ponce of pain. Ponce did not advise Plaintiff to seek medical assistance or file a worker's compensation claim. Although, Plaintiff initially told Ponce that she would be fine, Plaintiff went home later that day complaining of pain. Plaintiff was off from work from April 24 to June 9, 1996 due to the injury. On June 10, 1996, Plaintiff returned to work with clearance from her doctor to resume her regular duties.
Plaintiff later filed a workers' compensation claim for the head injury and the claim was approved on June 6, 1996.
In early October 1996, Plaintiff suffered a blackout and requested leave to undergo a Magnetic Resonance Imaging exam, scheduled for October 9, 1996, to assess her condition. By this time, Plaintiff had exhausted her sick leave for that year. She therefore requested annual leave in lieu of sick leave for October 9-11, 1996. Ponce granted Plaintiff's request.
Plaintiff's reasons for requesting leave for October 10 and 11 are unclear.
Plaintiff's appointment was subsequently changed to October 10, 1996. As a result, Plaintiff withdrew her initial request form and submitted a second form requesting annual leave for October 10-15, 1996. Ponce questioned Plaintiff why the leave was requested and Plaintiff responded that it was to attend a doctor's visit. Ponce informed Plaintiff that because she had been out of work for a long period of time due to her head injury, Ponce could only approve Plaintiff's leave request if the need could be substantiated with proper medical documentation. Consequently, Plaintiff only requested leave to attend a doctor's appointment the morning of October 9. This request was approved and Plaintiff returned to work with a form filled out by her doctor. The form indicated that Plaintiff was examined on October 9, 1996 and that she had been informed on September 12, 1996 that she was able to resume regular work. The form made no mention that Plaintiff would be unable to work on October 10-15. That same day, Plaintiff also submitted two separate notes from her doctor, written on prescription pads stating "May return to work October 16, 1996" and "No Work 10/10/96 to 10/16/96." The notes did not provide any justification explaining the need for Plaintiff to be off from work.
In her deposition, Plaintiff stated that she was not at work from October 11 to 15, 1996, because her doctor had ordered her to take time off from work.
Before the end of the October 9, 1996 work day, Ponce notified Muniz of Plaintiff's request. Muniz informed Plaintiff that the doctor notes she provided did not justify her absence from work. He followed up their conversation by providing Plaintiff with a written memorandum outlining the appropriate medical documentation needed to approve Plaintiff's request for leave.
Plaintiff did not provide any further documentation and failed to report to work from October 10 to 15, 1996. In an attempt to locate Plaintiff, Muniz called Plaintiff's home on the morning of October 10, 1996, and left a message. He then contacted the Regional Office for guidance on how to handle the situation. The Regional Office instructed Muniz to wait until Plaintiff returned and to allow her another opportunity to provide the requested documentation. If she did not provide the necessary medical documentation, he was further instructed to then place Plaintiff on AWOL status for the days she was absent. Plaintiff failed to submit the medical documentation when she returned to work. Consequently, Ponce placed Plaintiff on AWOL status for her absences on October 10, 11, 14 and 15, 1996.
The date Plaintiff returned to work is not clear from the record.
C. Hostile Work Environment
On June 20, 1996, Plaintiff was informed about an anonymous note that had been posted on the office bulletin board. The note, entitled "Award Nominations," stated that Plaintiff and two of her co-workers were unproductive. Muniz held a staff meeting and issued a written memorandum advising all employees against posting unauthorized notices on the bulletin board.
In September 1996, Plaintiff found an anonymous note posted on her computer. The note requested that Plaintiff resign her position as Claims Representative. Plaintiff brought the note to Ponce's attention, who then advised Plaintiff that she would refer the note to Muniz.
Plaintiff is unsure whether she received the note in September 1995 or September 1996.
On October 16, 1996, Plaintiff found a third note on her work station. The note stated that Plaintiff was an abomination and that her mother should have had an abortion. Plaintiff did not advise her immediate chain of command of this note and instead notified the Regional Commissioner. The Regional Commissioner in turn notified Muniz.
On August 12, 1996, Plaintiff's co-workers presented her with a balloon bouquet. The bouquet remained on Plaintiff's desk for about a week. On August 19, 1996, Muniz, asked Plaintiff to remove the bouquet from her work station because it offended her co-workers. Plaintiff complied with Muniz's request.
On October 21, 1996, Ponce assigned Plaintiff additional work which consisted of terminal cases needing immediate action.
D. Retaliation
On August 21, 1996, Plaintiff submitted a request for forty hours of annual leave to attend an American Federation of Government Employee (AFGE) Human Rights Training Conference. On September 25, 1996, Ponce approved the request for annual leave. Plaintiff submitted a second leave request for forty hours of administrative leave intended to substitute her original request of annual leave. On October 7, 1996, Ponce denied this request because the conference was not Agency sponsored. Plaintiff did not attend said Conference.
On October 4, 1996, Pablo Hernandez, the local Union President, called Muniz to inquire about the denial of Plaintiff's requests for administrative leave. Muniz explained to the Union President that Plaintiff's supervisor was unable to approve any leave unless it was sick leave because Plaintiff was behind in her work. On October 9, 1996, Plaintiff submitted a letter to Muniz, regarding the status of her workload. On October 21, Ponce informed Plaintiff that she intended to submit a memorandum to Muniz rebutting the statements contained in Plaintiff's letter.
On October 29 and 30, 1996, Plaintiff used the office fax machine to transmit information to her Labor Union representative. Both times Muniz told Plaintiff not to use the office fax machine for non-work related business.
2. Complaint No. 97-0493-SSA
In her second EEO complaint, Plaintiff alleges that in retaliation for filing a prior discrimination complaint, she was subjected to continuing disparate treatment, harassment, public humiliation, and a hostile work environment.
On November 13, 1996, Ponce provided Plaintiff with a memorandum proposing that Plaintiff be suspended five days for the AWOL violation on October 10-15, 1996. Plaintiff was given an opportunity to respond to the proposed suspension and did so on November 14, 1996. Fredi Franki ("Franki"), the Assistant Field Office Manager at the SSA office in El Paso, considered all of the information available and decided that a one day suspension was appropriate. On January 28, 1997, Plaintiff was suspended for one day.
On January 15, 1997, Franki notified Theresa Vallez ("Vallez"), an administrative aid who works in payroll at the SSA, of Plaintiff's suspension. That same day, Vallez, disclosed to Irma Barron, the employee responsible for cancelling Plaintiff's pending appointments, that Plaintiff was going to be suspended.
On Sunday, February 2, 1997, there was a fire at the Social Security Administration Office where Plaintiff worked. Consequently, the office was closed to the public. On Tuesday, February 4, 1997, Plaintiff, was one of six employees selected to work in the SSA office parking lot. Those employees with concerns about working in or around the damaged SSA building were given the option of taking annual leave. In lieu of continuing to work on February 4, 1997, Plaintiff elected to take five and a quarter hours of annual leave. Plaintiff's subsequent request for three and three quarter hours of annual leave on February 6, 1997 was also approved. Later that week, employees, including Plaintiff, accepted the option of working in the SSA Las Cruces office for a week.
It is unclear from the record whether Plaintiff reported to work on February 5, 1997.
In March 1997, Plaintiff, along with two other employees, was permanently moved from one workstation to another workstation within the same building.
On June 2, 1997, Plaintiff was absent from work from 8:05 a.m. to 9:05 a.m. Plaintiff completed a leave request for this absence, but failed to mark the type of leave she was requesting. Plaintiff was charged with one hour Leave Without Pay ("LWOP") on June 18, 1997 for the absence on June 2, 1997. On June 20, 1997, Plaintiff submitted a corrected leave request asking to be charged annual leave for the one hour absence. The request was granted and Plaintiff was subsequently paid for the hour of annual leave.
The date Plaintiff submitted her leave request is not clear from the record.
On the morning of July 8, 1997, Ponce observed that Plaintiff was away from her work station from 9:10 a.m. to 9:45 a.m. Although Plaintiff was allowed a fifteen minute morning break, she was gone for a total of thirty five minutes. The following day, Ponce confronted Plaintiff and inquired why Plaintiff had taken an extended break. Plaintiff stated that she had been speaking to the SSA Regional Commissioner, whom was visiting the local office, about her EEO complaint and the reprisals she had suffered. Ponce then asked Plaintiff to submit a leave request for the time taken beyond the end of her break. Ponce then prepared a leave request form for her and asked Plaintiff to sign it. Plaintiff refused to sign the leave request. On July 11, 1997, Ponce placed Plaintiff on AWOL status from 9:25 a.m. to 9:45 a.m. for her unauthorized absence.
This complaint was subsequently consolidated by the EEOC with EEO Complaint 98-0522.
In this complaint, Plaintiff alleges that she was retaliated against and subjected to discriminatory treatment because of her gender, physical disability, and religion when she was suspended from February 23-24, 1998 and was assigned a co-worker's file.
Plaintiff was suspended on February 23-24, 1998 for failing to do work assigned to her. On January 12, 1998, Ponce assigned Plaintiff to work on an appeal that had originally been adjudicated by her co-worker Terrazas. At the time of this incident, SSA policy dictated that the same employee who adjudicated a claim could not handle its appeal. In the file she assigned to Plaintiff, Ponce included a note containing specific instructions on how Plaintiff should handle the case. Plaintiff however, returned the file to her co-worker's box. When Ponce questioned Plaintiff as to why she did not handle the appeal, Plaintiff stated that she believed the case was assigned to her in error. Because Plaintiff had already received a one day suspension, a two day suspension was the next progressive form of discipline.
In this complaint, Plaintiff alleges that Ponce violated the Agency's security system was violated when Ponce demanded to know Plaintiff's password and personal identification number. Because this issue was withdrawn at the EEO Hearing, the Court will not consider the facts of this incident.
In her fourth complaint, Plaintiff asserts a claim of discrimination based on sexual harassment, gender, disability, religion, hostile work environment, and gender pursuant to the doctrine of continuing violation. Because Plaintiff does not directly relate any of the incidents set forth in this complaint to the basis of the claim she asserts, the Court elects to discuss the facts of this complaint in chronological order.
On July 7, 1997 Plaintiff was standing by the fax machine talking with Ponce, when she heard three of her male co-workers approaching her from behind. As they passed by her, she felt one of them touch her buttocks. Plaintiff did not see who touched her, but hours after the incident, Roger Arteaga, one of the three co-workers, called her and apologized for the incident. Plaintiff did not report the incident to management.
That same month, Plaintiff submitted a request for leave under the Family Medical Leave Act ("FMLA"). In her request, Plaintiff indicated that she wanted to substitute the AWOL leave that she had been charged with in October of the previous year, with FMLA leave. Muniz contacted the Personnel Office for guidance and was informed that any leave listed as AWOL could not be replaced by FMLA leave. Accordingly, Plaintiff's October 1996 leave could not be converted because it was listed as AWOL. Therefore, Muniz denied Plaintiff's request for leave under the FMLA.
Plaintiff's vehicle was vandalized on July 15, 1997. Suspecting that the vandalism occurred in the SSA parking lot, Plaintiff requested to view the surveillance camera video tapes of the Agency's parking lot. Plaintiff was informed that the videos had been reviewed by a security officer, who found no evidence that her car had been tampered with. As a result, Plaintiff was denied access to the tapes.
On July 28, 1997, Plaintiff arrived to work at 9:02 a.m. and Ponce asked her to submit a request for leave for the amount of time she was late. According to office policy, any employee who arrives after 9:00 a.m. must submit a leave request slip in fifteen minute increments for their tardiness. Therefore Ponce, asked Plaintiff to submit a request for 15 minutes of leave for the two minutes she was tardy. That same day, Rosa Janik ("Janik"), a co-worker and a friend of Ponce, came to work at 9:05 a.m. However, Ponce did not ask Janik to submit a request for leave for the time she was tardy.
On a separate occasion in July of that year, volunteers were taken from the El Paso office and were asked to work overtime on a backlog of cases from the Las Cruces office on two separate Saturdays. Plaintiff was one of several employees who volunteered. She worked on the first Saturday, but not the second. On August 6, 1997, Muniz asked to meet with Plaintiff to discuss why she had not worked the second Saturday. Plaintiff attended the meeting and asked Mike Sanchez ("Sanchez"), a Labor Union Coordinator, to accompany her. Muniz then advised Plaintiff that Sanchez's presence was not necessary because the session was not for disciplinary purpose. During the meeting, Plaintiff informed Muniz that she did want to work overtime, but that she wanted to work on her own caseload. Muniz then accused her of being uncooperative because she had declined to volunteer to work on the Las Cruces backlog.
On August 13, 1997, Plaintiff's mother entered the SSA office to apply for benefits and was assisted by Rose Hughes ("Hughes"). The SSA's policy requires that management be notified anytime an office employee's relative comes to the office to apply for SSA benefits. When Franki, learned that Plaintiff's mother had visited earlier that day, she called Plaintiff and Hughes to her office. There, Franki inquired why neither Plaintiff nor Hughes had not notified management about the visit and reminded them about the office policy.
On August 19, 1997, Plaintiff presented a reimbursement request for the purchase of eyeglasses to Ponce. When Ponce requested to see the glasses and the sales receipt, as was required by the Agency's vision program, Plaintiff failed to produce both. Therefore, Ponce denied Plaintiff's initial request for reimbursement. Plaintiff was later reimbursed, when she presented the eyeglasses and a receipt reflecting full payment of the eyeglasses.
On September 23, 1997 Plaintiff asked to change work stations. Plaintiff requested to be moved because the telephone at her present station produced an unusually harsh ring that aggravated her headaches. Soon after this complaint, the telephone system was replaced.
On October 16, 1997, Plaintiff arrived at work and was not able to enter the building on time because management was conducting a fire drill. Ponce questioned Plaintiff about her late arrival and Plaintiff explained that she was unable to enter the building because of the fire drill. Plaintiff signed in at 9:05 a.m., but wrote 8:55 a.m. on her time sheet as her arrival time. As the Operations Supervisor, Ponce corrected the time sheet to reflect the actual sign-in time of 9:05 a.m. At the end of that same workday, Plaintiff's last interview ran late, requiring her to work twenty-five minutes beyond her regularly scheduled hours. Plaintiff did not receive advanced approval to work overtime, nor did she submit a written request for the overtime after working it, as is required by office policy.
On November 6, 1997, Plaintiff requested four days of administrative leave to prepare for a meeting with an EEOC investigator. The EEO investigator had previously contacted Muniz and requested to meet with Plaintiff for one day. In response to Plaintiff's request Muniz contacted the EEO counselor and confirmed that only one day was needed for the interview. Therefore, Muniz denied Plaintiff's request for four days of leave and instead granted her one day of administrative leave.
From November 17-21, 1997, Plaintiff was unable to access computerized versions of Social Security Manuals from her workstation's computer.
On December 8, 1997, Plaintiff called Ponce at 8:59 a.m. to inform her that she was running late and that she would be in by 10:00 a.m. Ms. Ponce reminded Plaintiff that she risked being charged AWOL if she failed to arrive by 9:00 a.m. Plaintiff arrived at 11:00 a.m. Plaintiff used annual leave to cover her tardiness, and was not charged AWOL.
On December 10, 1997, Plaintiff requested sick leave for December 19, 1997. Ponce threatened Plaintiff with AWOL. However, Ponce approved the request and Plaintiff's absence was not classified as AWOL.
On December 18, 1997, Plaintiff arrived to work at 8:00 a.m., but did not enter the building until 8:03 a.m. because she was unable to open the new office entrance door. Once inside the office, Plaintiff signed in at 8:00 a.m. At the end of the work day, Plaintiff learned that Ponce had altered her time sheet to reflect Plaintiff's sign-in time as 8:03 a.m.
In January 1998 Plaintiff became ill and did not return to work. By this time, Plaintiff had already exhausted her annual leave and sick leave. She submitted a request for either advanced annual or sick leave on February 10, 1998. Muniz responded to Plaintiff's request on March 10, 1998 by informing her that due to a pending proposal to terminate her employment, Plaintiff did not qualify for annual or sick leave.
The date of this incident and the duration of Plaintiff's absence from work is unclear from the record.
On January 22, 1998, Ponce brought a folder to Plaintiff and slammed it on her desk saying "You will work this one." The folder, containing Terraza's client's appeal, was the folder Plaintiff had previously returned to Terraza's box.
In January 1998, a request was made for volunteers to work overtime targeting a specific project. Plaintiff did not volunteer and instead requested to work overtime on her own case load. On January 24, 1998, Ms. Ponce denied Plaintiff's request.
On May 4, 1998, Plaintiff learned that management failed to act on her March 10, 1998, worker's compensation expedition request to the Department of Labor. However, Plaintiff did not submit her application for worker's compensation benefits until March 23, 1998. Ponce received some of Plaintiff's worker's compensation forms January 28, 1998. She completed those forms by February 6, 1998. She later received additional forms in March and again completed her portion shortly thereafter.
5. Complaint No. 01-0028-SSA
Pursuant to a settlement agreement between Plaintiff and the SSA, Plaintiff was reinstated to the SSA at the Las Cruces office in 1999. Therefore, complaints 01-0028-SSA and 01-0388-SSA refer to incidents that occurred at the Las Cruces office.
In this EEO complaint, Plaintiff alleges that she was discriminated and retaliated against based on her mental and physical disabilities when she was not selected for the GS-11 Claims Representative position and when her personal identification number ("PIN") for her computer was suspended.
In February 2001, a position for a GS-11 Claims Representative in the El Paso office was advertised under vacancy number 19-00. Plaintiff applied for the position and made the list of best qualified individuals. Muniz was the selecting official and subsequently offered the position to another applicant, Maria Gonzales.
While working in the Las Cruces office, Plaintiff's personal identification number ("PIN") for her computer was temporarily suspended. Linda Jo Martinez, Plaintiff's supervisor at the Las Cruces office, left a note on Plaintiff's desk instructing her not to "sign in" because she was using Plaintiff's PIN to establish another employee's profile, Evangelina Muniz. Ms. Muniz is the wife of Muniz, Plaintiff's prior second level manager at the El Paso SSA office.
6. Complaint No. 01-0388-SSA
In this complaint, Plaintiff alleges that she was not selected for the GS-105-11 Social Insurance Specialist (Claims Representative) position, which was advertised under vacancy announcement numbers 210-01, 213-01, and 431-00 because of her gender, mental disability, and in retaliation for her EEO activity.
Two separate vacancies for GS-105-11 Social Insurance Specialist (Claims Representative) were advertised under vacancy announcement numbers. Announcements 212-01 and 213-01 were for a single vacancy in the El Paso office, while announcement 431-00 was for a vacancy in the Las Cruces office. Even though only one position needed to be filled in the El Paso offices, two vacancies were announced in an effort to increase the number and quality of the applicants. Muniz was the selecting official for the vacancy in the El Paso office, while Leandro Romero ("Romero") was the selecting official for the Las Cruces position.
On January 18, 2001, Romero hired Fred Garcia ("Garcia") to fill the vacancy in the Las Cruces office. Garcia is an agency employee with several years of experience conducting interviews. Muniz hired Tracy Moore to fill the vacancy in the El Paso office.
On January 28-30, 2002, an Administrative Judge ("AJ") consolidated Plaintiff's six EEOC complaints into one hearing. On July 18, 2002 the AJ issued a decision, ruling that Plaintiff failed to establish her claims of discrimination, retaliation, and hostile work environment. Plaintiff appealed the decision to the EEOC Office of Federal Operations ("OFO") and on May 29 the OFO affirmed the decision of the AJ.
On September 2, 2003, Plaintiff filed the instant cause of action pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 ("Title VII"), and the Rehabilitation Act of 1973 ("Rehabilitation Act"), asserting claims of gender, color, religious, and disability discrimination, retaliation, and hostile work environment. See 42 U.S.C. § 2000e, et seq., (West 2003); 29 U.S.C § 791 (West Supp. 2003). Plaintiff filed an "Amended Complaint" on September 4, 2003. The instant Motions followed.
DISCUSSION
Plaintiff asserts claims of gender, color, and religious discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act. She also asserts a claim of disability discrimination under the Rehabilitation Act. Through the instant Motion to Dismiss, Defendant requests the Court dismiss Plaintiff's claims regarding incidents included in complaint numbers 97-0151-SSA, 98-0522-SSA, and 01-0388-SSA. Defendant contends that the Court lacks jurisdiction over these claims because Plaintiff failed to exhaust her administrative remedies. Through the instant Motion for Summary Judgment, Defendant prays the Court grant summary judgment on Plaintiff's claims of gender, religious, color, and disability discrimination, retaliation and hostile work environment on grounds that there is no genuine issue of material fact with regard to any of these claims, and that it is thus entitled to judgment as a matter of law. The Court addresses each in turn.
The Court has "no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies." Nat'l Ass'n of Gov't Employees v. City Pub. Services Bd. of San Antonio, 40 F.3d 768, 711 (5th Cir. 1994). Though Defendant's Motion requests that the Court grant summary judgment over the claims surrounding incidents complained of in complaint numbers 97-0151-SSA, 98-0522-SSA, and 01-0388-SSA, if Defendant is correct that Plaintiff did not exhaust her administrative remedies, the Court lacks jurisdiction over these claims. As such, the Court construes Defendant's request as a Motion to Dismiss these claims for lack of jurisdiction. See id.
I. Motion to Dismiss Plaintiff's Claims Regarding Incidents Included in Complaint Numbers 97-0151-SSA, 98-0522-SSA, and 01-0388-SSA
Through the instant Motion to Dismiss, Defendant prays the Court dismiss Plaintiff's claims with regards to incidents in complaint numbers 97-0151-SSA, 98-0522-SSA, and 01-0388-SSA because, pursuant to 42 U.S.C. § 2000e-5(f)(1), the Court lacks jurisdiction over these causes of action. Defendant argues that Plaintiff failed to exhaust her administrative remedies for the following incidents: (1) the alleged denial of a Reasonable Performance Award for the rating period ending December 30, 1995; (2) each of the incidents complained of in EEO Complaint 98-0522-SSA (with the exception of the delayed response to request for advanced sick leave on March 31, 1998, and the delayed response to worker's compensation application expedition request on May 4, 1998); and (3) the non-selection for the Social Insurance Specialist position in Las Cruces. Defendant asserts that the Court's jurisdiction is limited to Title VII claims for which administrative remedies have been exhausted, and that because Plaintiff failed to contact an EEOC counselor within forty-five (45) days of the incidents complained of, the Court cannot take action on these issues because Plaintiff has failed to exhaust her administrative remedies.
A plaintiff pursuing a Title VII claim must first exhaust her administrative remedies by filing a charge with the EEOC before filing a judicial complaint. See 42 U.S.C § 2000e5-(f)(1); Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997). The aggrieved employee must initiate contact with the agency's EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory. 29 C.F.R. § 1614.105(a)(1). Timely exhaustion of administrative remedies is an absolute prerequisite to federal subject matter jurisdiction. Frances v. Brown, 58 F.3d 191, 192 (5th Cir. 1995). "The exhaustion requirement ensures that: (1) the EEOC has an opportunity to fulfill its statutory duty to investigate the charge of discrimination, and (2) the employer has notice of the alleged discrimination so it can take appropriate measures to correct or remedy the discrimination." Johnson v. MBNA Hallmark Information Services, Inc., 2003 WL 21418670, at *1 (N.D. Tex. Jun. 16, 2003).
Defendant argues that Plaintiff's claim regarding the denial of a Reasonable Performance Award is barred for failure to timely exhaust administrative remedies. To satisfy the exhaustion requirement, Plaintiff must have initiated contact with the SSA's EEO Counselor within forty-five (45) days of the day she was denied the Reasonable Performance Award. See 29 C.F.R. § 1614.105(a)(1). In October 1996, Plaintiff first complained to the EEOC of being denied the Reasonable Performance Award for the rating period ending December 30, 1995. The amount of time between December 30, 1995, the date of the alleged denial of the Award and October 1996, the date when Plaintiff first contacted an EEOC counselor, is more than forty-five (45) days. In fact, several months elapsed before Plaintiff complained to the EEOC. Thus, the Court concludes that Plaintiff failed to timely exhaust her administrative remedies with regards to her claim for the alleged denial of a Reasonable Performance Award for the rating period ending December 30, 1995. Accordingly, the Court finds that, pursuant to 42 U.S.C. § 2000e-5(f)(1), it lacks jurisdiction over this claim, and it should therefore be dismissed.
The Court now deals with Defendant's contention that Plaintiff failed to exhaust administrative remedies for the incidents set forth in EEO complaint number 98-0522-SSA except the alleged delayed response to request for advanced sick leave on March 31, 1998, and management's alleged delayed response to Plaintiff's worker's compensation application expedition request on May 4, 1998. Plaintiff initiated contact with an EEOC counselor regarding the issues set forth in this complaint on April 21, 1998 and filed the claim pursuant to the doctrine of continuing violation.
The events complained of in this complaint occurred between the dates of July 1997 and May 1998. Plaintiff did not initiate contact with an the EEOC regarding these complaints until April 21, 1998. With the exception of the delayed response to request for advanced sick leave on March 31, 1998, and the delayed response to worker's compensation application expedition request on May 4, 1998, Plaintiff failed to initiate contact with the EEOC within forty-five (45) days of the occurrence of all the other incidents. Plaintiff, however, argues that all of the events listed in this complaint are part of a continuing violation scheme.
To satisfy the exhaustion requirement, Plaintiff must have initiated contact with the SSA's EEO Counselor within forty-five (45) days of the incident(s) she complains of. 29 C.F.R. § 1614.105(a)(1). Courts however, have used the theory of "continuing violation" in applying this limitation. Berry v. Board of Supervisor of L.S.U., 715 F.2d 971, 979 (5th Cir. 1983). This theory . . . relieves a plaintiff who makes such a claim from the burden of proving that the entire violation occurred within the actionable period. Id. To constitute a continuing violation, a plaintiff must do more than show a series of unrelated and isolated instances of discrimination. See Tarvesian v. Carr Division of TRW, Inc., 407 F.Supp. 336, 339-40 (D.C.Mass. 1976). She must prove a series of continuos violations constituting an organized scheme leading to a present violation. Id. The plaintiff, however, may not employ the continuing violation theory to "resurrect claims about discrimination concluded in the past, even though its effects persist." Berry, 715 F.2d at 979 (citing Delaware State College v. Ricks, 449 U.S. 250, 257 (1980)).
Plaintiff has presented no evidence that any of the incidents set forth in Plaintiff's complaint number 98-0522-SSA were in any way a series of incidents, part of an organized scheme, that would lead up to the delayed response for advanced sick leave on March 31, 1998, or the delayed response to the worker's compensation expedition request on May 4, 1998. The Court is of the opinion that each of the untimely reported incidents Plaintiff complains of involve separate isolated incidents and, therefore, the continuing violation doctrine does not apply. Tarvesian, 407 F.Supp. at 339-40. Because Plaintiff failed to initiate contact with an EEOC counselor within forty-five (45) days of the complained of incidents, the Court finds that Plaintiff failed to exhaust her administrative remedies as to these incidents. Thus, with the exception of the two timely reported incidents, the Court is of the opinion that all of Plaintiff's claims asserted in complaint number 98-0522-SSA are dismissed.
Next, the Court addresses Defendant's argument that Plaintiff's claims of discrimination for not being selected for the Social Insurance Specialist position should be dismissed for failure to exhaust administrative remedies. The vacancy in the Las Cruces office was announced on October 30, 2000. Plaintiff applied before the closing date on November 20, 2000. Romero, the selecting official for the Las Cruces position, hired Garcia on January 18, 2001. The record indicates that although Plaintiff initiated contact with the EEOC on March 2, 2001 for other issues contained in complaint 01-0388-SSA, Plaintiff did not initiate contact with the EEOC regarding the non-selection until May 15, 2001. Thus, Plaintiff initiated contact with the EEOC regarding this instance of non-selection one hundred seventeen (117) days after the vacancy was filled. Because Plaintiff failed to contact the EEOC within forty-five (45) days of the date that the vacancy for the Las Cruces position was filled, the Court is of the opinion that the all of Plaintiff's claims with regard to this incident are dismissed for failure to exhaust administrative remedies. Frances, 53 F.3d at 192.
The exact date that Plaintiff applied for the position is not clear.
Finally, the Court addresses Defendant's statute of limitations argument. Defendant argues that Plaintiff failed to file the instant cause of action within the statute of limitations. A Title VII claim must be brought within ninety days of receipt of a right-to-sue notice from the EEOC. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). Where a party fails to file their lawsuit within the ninety-day limitations period, their Complaint should be dismissed. See Butler v. Orleans Parish School Board, 2001 WL 1135616 (E.D.La. Sept. 25, 2001) (dismissing Title VII claims where pro se plaintiff filed her complaint one day beyond the ninety-day period because she and her husband were prevented from filing on the ninetieth day, as planned, by family illness). In the Fifth Circuit, there is a presumption that a party receives the right-to-sue notice three days after it is mailed. See Martin v. Alamo Community College District, 353 F.3d 409, 411 (5th Cir. 2003). The Complaint, therefore, must be filed ninety-three (93) days after the right-to-sue letter is mailed.
Defendant contends that Plaintiff failed to file the instant suit within ninety-three (93) days from the date that the EEOC OFO issued a final decision on the six complaints. In her Response, Plaintiff counters by arguing that her claim was timely filed. She contends that September 2, 2003 was the final day she could file her complaint because the ninety-third day was a Saturday and the following Monday was Labor Day, a federal holiday. Because Plaintiff filed her Original Complaint on the last day of the statutory period, the Court finds that Plaintiff filed her complaint timely. Thus, the Court is of the opinion that Plaintiff did satisfy the statute of limitations and is her Complaint is not barred.
The Court now turns to address Defendant's Motion for Summary Judgment.
II. Motion for Summary Judgment on Plaintiff's Claims of Discrimination, Hostile Work Environment, and Retaliation pursuant to Title VII and Disability Discrimination Pursuant to the Rehabilitation Act.
Through the instant Motion for Summary Judgement, Defendant prays the Court grant summary judgement on Plaintiff's claims of discrimination, retaliation, and hostile work environment. Summary judgment should be granted only where "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." FED. R. CIV. P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
In an effort to efficiently address Plaintiff's numerous, interrelated claims, the Court first evaluates Plaintiff's claims of discrimination based on gender, color, and religion. Next, the Court discusses Plaintiff's retaliation and hostile work environment claims pursuant to Title VII. Finally, the Court addresses Plaintiff's Rehabilitation Act claim.
A. Claims of Discrimination Pursuant to Title VII
Title VII of the Civil Rights Act makes it illegal for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.A. § 2000e-2(a)(1) (West 1994).
In employment discrimination cases, it is imperative that a nonmovant plaintiff "present evidence — not just conjecture and speculation" that the defendant discriminated against the plaintiff on the basis of a protected trait. See Grimes v. Tex. Dep't of Mental Health, 102 F.3d 137, 140 (5th Cir. 1996). The focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Id. at 139. Absent direct proof, the plaintiff bears an initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence to raise an inference of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. at 792, 802, 93 S. Ct. at 1824 (1973); Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999).
The prima facie case, once established, raises a presumption of discrimination, which the defendant must rebut by articulating a legitimate, nondiscriminatory reason for its action. See Meinecke v. H R Block, 66 F.3d 77, 83 (5th Cir. 1995) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981)). Thus, a defendant must merely set forth, through admissible evidence, "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, L. Ed. 2d 40 (1993) (emphasis in original). The employer need only articulate a legitimate, nondiscriminatory reason for its actions, regardless of that reason's ultimate persuasiveness. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993). If the defendant articulates such a reason, the inference of discrimination drops out. See Bauer, 169 F.3d at 966. The ultimate burden of persuasion remains with the plaintiff, who then must prove by a preponderance of the evidence that the reasons asserted by the defendant are pretext for discrimination. Burdine, 450 U.S. at 253, 101 S. Ct. at 1093. This may be accomplished either directly, by showing that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the asserted reason is unworthy of credence. Id. at 256, 101 S. Ct. at 1095.
In the case at bar, Plaintiff has failed to provide any direct evidence of discrimination. Therefore, she bares the burden of establishing a prima facie case for her claims of discrimination. See McDonnell Douglas Corp., 411 U.S. at 792, 802, 93 S. Ct. at 1824; Bauer, 169 F.3d at 966.
To establish a prima facie case of discrimination based on gender, color, and religion, there must be a showing that Plaintiff: (1) is a member of a protected class; (2) was qualified for her position; (3) suffered an adverse employment action; and (4) others outside the class who were similarly situated were treated more favorably than her. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001) (citing to Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999)).
Here, Plaintiff alleges that she was discriminated against because of her (1)gender, (2) light-skin color, and (3) religion as a Jehovah's Witness. The Court examines each of Plaintiff's complaints in turn.
1. Gender Discrimination
Plaintiff argues that she was discriminated against because of her gender as a female when: (1) she was suspended from February 23-24, 1998; (2) she was assigned a file that had originally been assigned to Terrazas; (3) she was denied advanced annual or sick leave on March 10, 1998; (4) management delayed response to her worker's compensation application expedition request; (5) she was not selected for a Social Insurance Specialist position in the El Paso SSA office; and (6) she was not selected for a Social Insurance Specialist position in the Las Cruces SSA office. Defendant counters by arguing that Plaintiff cannot establish a prima facie case for the majority of the gender discrimination claims she asserts because she cannot show that Plaintiff suffered an adverse employment action. Specifically, Defendant argues that with the exception of the claims regarding the two day suspension in February 1998, the denial of advanced sick or annual leave on March 10, 1998, and the non-selection for the Social Insurance Specialist position in El Paso, all of the other incidents Plaintiff complains of fail to fall within the parameters of an adverse employment action.
As previously discussed, all of Plaintiffs's claims regarding the non-selection for the Social Insurance Specialist position in Las Cruces are dismissed. As such, the Court will not engage in further discussion on any claims relating to this incident.
In the Fifth Circuit, an "adverse employment action" requires an ultimate employment decision, which includes acts "such as hiring, granting leave, discharging, promoting, and compensating." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (citing Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995), cert. denied, 522 U.S. 932, 118 S. Ct. 336, 139 L. Ed. 2d 260 (1997)). Furthermore, "employment actions are adverse only where pay, benefits or level of responsibility are affected." Watts v. Kroger Co., 170 F.3d 505, 511-12 (5th Cir. 1999).
First, Plaintiff claims she was discriminated against because of her gender when Ponce assigned Terraza's file to Plaintiff. However, Plaintiff does not allege or attempt to show that her pay, benefits, or level of responsibility suffered any negative consequences as a result of this incident. Furthermore, it is well settled that discrimination laws are not vehicles for judicial second-guessing of business decisions. Walton v. Bisco Industries, Inc., 119 F.3d 368, 372 (5th Cir. 1997). Plaintiff's next claim asserts that management delayed her worker's compensation expedited application request. The record shows that Ponce completed and returned the expedited application request and that Plaintiff's worker's compensation claim was subsequently approved on June 6, 1996. Again, Plaintiff does not allege to have suffered any negative change in pay, benefits or level of responsibility due to this incident. The Court finds that although Plaintiff may have experienced an inconvenience, she did not suffer any negative consequences as a result of either of these incidents. As the Fifth Circuit has stated, employment actions are adverse only where pay, benefits or level of responsibility are affected. Watts, 170 F.3d at 511-12. Therefore, the Court is of the opinion that Plaintiff is unable to establish the third element of her prima facie case with regards to these two claims because she cannot show that she suffered an adverse employment action. As such, these two claims should be dismissed.
Next the Court addresses Plaintiff's remaining claims of gender discrimination. Defendant argues that even if: (1) the two day suspension in February 1998; (2) the denial of advanced sick or annual leave on March 10, 1998; and (3) the non-selection for the Social Insurance Specialist position in El Paso constituted adverse employment actions, Plaintiff's gender discrimination claims still fail. Defendant avers that they fail because Plaintiff has not established the fourth element of her prima facie case which requires that her to show that other similarly situated employees outside of her protected class were treated more favorably
To establish this element, Plaintiff must show that other employees were treated differently under circumstances "nearly identical" to hers. See Mayberry v. Vought Aircraft Co., 55 F3d 1086, 1090 (5th Cir. 1991) (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). Plaintiff does not identify any other employees whom were suspended or were denied advanced sick or annual leave. Furthermore, she fails to provide a scintilla of evidence to show that any individuals were either similarly situated or were treated favorably. Because Plaintiff cannot show that other similarly situated employees outside of Plaintiff's protected class were treated more favorably, the Court finds that Plaintiff is unable to establish the fourth element of her prima facie case. Therefore, Defendant is entitled to judgment as a matter of law as to Plaintiff's gender discrimination claims based on her two day suspension in 1998 and the denial of advanced annual or sick leave in March 1998.
Defendant further argues that she was discriminated against when Tracy Moore, a female was hired for the Social Insurance Specialist Position in the El Paso office. As a female, Tracy Moore is a member of Plaintiff's protected class as a female. Therefore, the Court finds that Plaintiff cannot establish a prima facie case with regards to this claim because Plaintiff has not adduced evidence that the position was filled by someone outside of her protected class. Thus, the Court is of the opinion that Defendant is entitled to judgment as a matter of law as to this claim.
2. Color Discrimination
Plaintiff claims that she was discriminated against because of her light-skin color when: (1) she was assigned to work two additional cases and held to a higher standard than her co-worker, Terrazas; (2) Muniz hired several individuals who belong to his church, mainly Terrazas; and (3) she was denied a Reasonable Performance Award for the performance period ending December 30, 1995. Defendant argues that Plaintiff fails to establish a prima facie case for any of these claims because she cannot show that she suffered an adverse employment action. Specifically, Defendant asserts that the assignment of two additional cases and the hiring of other individuals do not constitute adverse employment actions. Defendant argues that Plaintiff neither alleges nor suffered any negative change in pay, benefits or level of responsibility due to these two incidents. Other than her mere assertions that she was discriminated against because of her light-skin color, Plaintiff fails to provide any evidence to demonstrate how and if her pay, benefits, or level of responsibility suffered negative consequences. Plaintiff's conclusory statements fall short of showing that she did in fact suffer an adverse employment action as to either of these two incidents. Thus, the Court finds that Plaintiff cannot establish a prima facie case as to either of these incidents because she cannot show that she suffered an adverse employment action. Thus, summary judgment in favor of Defendant is appropriate with respect to all of Plaintiff's claims of discrimination based on color.
The Court will not engage in discussion of Plaintiff's denial of a Reasonable Performance Award because, as previously discussed, Plaintiff's claims as to this incident are dismissed for failure to exhaust administrative remedies.
3. Religious Discrimination
Plaintiff further claims that she was discriminated against because of her religion when: (1) she was assigned to work two additional cases and held to a higher standard than Terrazas; (2) Muniz hired several individuals who belong to his church; (3) she was denied a Reasonable Performance Award; (4) she was suspended on February 23-24, 1998; (5) Ponce assigned Plaintiff to work Terraza's appeal file; (6) she was denied advanced annual or sick leave on March 10, 1998; and (7) management delayed response to her worker's compensation application expedition request.
As previously discussed, Plaintiff did not suffer any negative change in pay, benefits or level of responsibility due to the following incidents: (1) being assigned to work two additional cases and being held to a higher standard than Terrazas; (2) Muniz's hiring several individuals who belong to his church; (3) being assigned to work Terraza's appeal; and (4) management's delayed response to her worker's compensation application expedition request. Thus, Plaintiff cannot show that these incidents constitute adverse employment action and therefore cannot establish a prima facie case for any claims of religions discrimination based on any of these incidents. Accordingly, Defendant is entitled to judgment as a matter of law as to Plaintiff's claims of religious discrimination based on these events.
Similarly, Plaintiff also fails to establish a prima facie case for claims of discrimination based on her religion for the two day suspension in February 1998 and the denial of advanced sick or annual leave on March 10, 1998. As discussed previously, Plaintiff has failed to establish the fourth element of her prima facie case which requires that she show how other similarly situated employees outside of her protected class were treated more favorably. In support of her religious discrimination claims, Plaintiff's attempt to show that other similarly situated employees received better treatment rests solely on her personal belief that others were treated favorably. However, Plaintiff fails to identify any other employees whom were either suspended or denied advanced sick or annual leave. Plaintiff further fails to provide evidence to show that any other individuals were either similarly situated or were treated favorably. Therefore, the Court is of the opinion that Plaintiff has failed to establish a prima facie case of religious discrimination based on these two incidents. Accordingly, Defendant is entitled to judgment as a matter of law as to Plaintiff's claims of discrimination based on religion.
B. Hostile Work Environment Claim Pursuant to Title VII
Plaintiff claims that she was subjected to a continuous hostile working environment based on her national origin, religion, gender, hostile work environment, her prior EEO activity, and her opposition to discrimination in the work place.
Plaintiff has not produced any legal authority allowing a separate cause of action for a hostile work environment claim under Title VII based on hostile work environment, engaging in prior EEO activity, and opposition to discrimination in the work place. The Court is not aware of any Fifth Circuit authority that holds that a hostile work environment claim based on these three bases is independently actionable. Thus, the Court is of the opinion that Defendant is entitled to judgement as a matter of law on Plaintiff's hostile work environment claim based on a hostile work environment, engaging in prior EEO activity, and opposition to discrimination in the work place. The Court will therefore, only address Plaintiff's national origin, religion, and gender hostile work environment claims.
There are five elements of a prima facie case of hostile work environment on the bases of national origin, gender, and religion under Title VII: (1) that plaintiff belongs to a protected class; (2) that plaintiff was subjected to unwelcome harassment; (3) that the harassment complained of was based on the protected status; (4) the harassment complained of affected her condition or privilege of employment; (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993); Felton v. Polles, 315 F.3d 470, 483 (5th Cir. 2002). The fifth element is not necessary when the harassment is committed by a supervisor with immediate or successively higher authority over the plaintiff. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 141 L.Ed. 2d 662 (1998).
In determining whether a working environment is hostile or abusive, all circumstances must be considered, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S. Ct. at 371. Discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII. Wallace v. Texas Tech University, 80 F.3d 1042, 1049 (5th Cir. 1996). A complaint must show that the discriminatory conduct was severe or pervasive enough to create an objectively hostile or abusive work environment. Harris, 510 U.S. at 22, 114 S.Ct. at 370.
Plaintiff specifically complains that she was subjected to a hostile work environment when: (1) three separate notes were anonymously posted at her office; (2) she was asked by management to remove a balloon bouquet from her desk; and (3) when Ponce assigned Plaintiff additional work. Defendant contends that Plaintiff's allegations of harassment regarding these incidents fail to demonstrate that the harassment complained of was based on the Plaintiff's protected status, the third elements of a prima facie case. See Felton, 315 F.2d at 483. Defendant claims that Plaintiff has not proffered any evidence that the incidents Plaintiff complains of are related in any way to Plaintiff's protected status categories of gender, national origin, or religion. The Court agrees with Defendant.
Plaintiff has offered no evidence that such actions were in any way motivated by discriminatory animus because of Plaintiff's status as a female, her light-skin color, or religion as a Jehovah's Witness. Thus, the Court finds that Plaintiff has not raised genuine issues of material fact as to whether the alleged harassment was based on her national origin, gender, or religion. Because Plaintiff has failed to establish a prima facie case, the Court is of the opinion that Defendant is entitled to summary judgement on Plaintiff's hostile work environment claim.
C. Retaliation Claim Pursuant to Title VII
Plaintiff alleges she was retaliated against for seeking counseling and filing complaints with the EEOC regarding all the EEOC complaints introduced in the instant cause.
The framework for analyzing a retaliation claim is the same as that used in the discrimination context. See Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001). Title VII "imposes liability for unlawful retaliation where (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. Shirley v. Chrysler First, Inc., 970 F.2d 39, 41 (5th Cir. 1992). Once a plaintiff establishes a prima facie case of retaliation, the burden then shifts to the defendant to offer legitimate, non-discriminatory reasons for the adverse employment action. Sherrod v. American Airlines, 132 F.3d 1122, 1122 (5th Cir. 1998); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). The plaintiff must then submit sufficient evidence that would permit the trier of fact to determine that the defendant's proffered reasons are pretextual. Sherrod, 132 F.3d at 1122. The ultimate determination is whether, "but for" the protected conduct, the employer would not have engaged in the adverse employment action." Rios, 252 F.3d at 380 (citing Sherrod, 132 F.3d at 1122).
It is undisputed that Plaintiff engaged in protected activity when she contacted and filed complaints with the EEOC. However, Defendant argues that Plaintiff cannot establish a prima facie case of retaliation because she cannot show that Defendant took an adverse employment action against Plaintiff nor that a causal connection exists between Plaintiff's protected activity and the adverse employment action .
Plaintiff claims she was retaliated against when: (1) she was denied forty hours of administrative leave to attend a Union conference; (2) Muniz told the Union President Plaintiff was behind in her work; (3) Ponce informed Plaintiff she planned to rebut the memorandum Plaintiff submitted to Muniz; (4) management told her not to use the office fax machine for non-work related business; (5) she was suspended on January 28, 1997; (6) management disclosed information about the January 28, 1997 one day suspension; (7) she was required to use annual leave on February 4 and 6, 1997; (8) she was moved from one workstation to another one within the same office; (9) she was charged one hour LWOP for her absence on June 18, 1997; (10) she was charged half an hour of AWOL leave on July 10, 1997; (11) she was suspended on February 23-24, 1998; (12) she was assigned to work her co-worker's appeal file; (13) she was denied advanced annual or sick leave on March 10, 1996; (14) management delayed its response to her worker's compensation application expedition request; (15) she was not selected for the GS-11 Claims Representative position advertised in February 2001; (16) her PIN was assigned to another employee; (17) she was not selected for the Social Insurance Specialist position in El Paso; and (18) she was not selected for the Social Insurance Specialist position in Las Cruces.
Defendant claims that Plaintiff cannot prove a prima facie case of retaliation for the majority of the allegations made by Plaintiff in the six EEO complaints in question because they do not constitute adverse employment actions. As previously asserted, Defendant contends that the only incidents which may possibly constitute adverse employment actions, sufficient to state a claim of retaliation are the following: (1) denial of administrative leave to attend a Union conference in October, 1996; (2) being placed on AWOL status for three days in October, 1996; (2) being placed on AWOL status for three days in October, 1996; (3) denial of a Reasonable Performance Award in 1995; (4) suspension on January 28, 1997; (5) two day suspension in February 1998; (6) denial of administrative leave to meet with an EEO investigator; (7) denial of advanced sick or annual leave; (8) non-selection for a Claims Representative position; and (9) compelling Plaintiff to use leave in fifteen minute increments for being tardy. Defendant claims that these actions are not ultimate employment actions, but instead are mere examples of daily employment activities. The Court agrees with Defendant because the record reflects that Defendant's actions were taken either in accordance with regular employment activities or in response to Plaintiff's failure to follow the Agency's policy. Furthermore, Plaintiff fails to argue or produce any evidence to suggest that Defendant's alleged retaliatory actions are indeed ultimate employment decisions.
Because the Court finds that Plaintiff has not raised genuine issues as to whether Defendant took an adverse employment action against her, the Court need not go on to consider whether a casual connection existed between the protected activity and the adverse employment action.
Thus, the Court is of the opinion that because Plaintiff cannot establish a prima facie case of retaliation, summary judgment in favor of Defendant is appropriate with respect to Plaintiff's retaliation claim.
D. Rehabilitation Act Claim
As part of the instant cause of action, Plaintiff raises protections under the Rehabilitation Act, which prohibits discrimination against otherwise qualified individuals with disabilities by agencies of the federal government. 29 U.S.C § 791 (West Supp. 2003). Specifically, she argues that she was discriminated against based on her disability when: (1) she was denied leave on October 9, 1996; (2) she was placed on AWOL status for her absences on October 10, 11, 14, and 15, 1996; (3) she was suspended from February 23-24, 1998; (4) denied advanced annual or sick leave on March 31, 1998; (5) management delayed responding to her worker's compensation application, (6) she was not selected for the GS-11 Claims Representative position; (7) her computer PIN was suspended; and (8) she was not selected for either one of the two Social Insurance Specialist positions.
Plaintiff claims disabilities due to hypothyroid, fibromyalgia, Post Traumatic Stress Disorder, depressive disorder, anxiety and the closed head injury she sustained while at work in April 1996. In pertinent part, the Rehabilitation Act provides: "No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity . . . conducted by any Executive agency. . . ." 29 U.S.C. § 794(a) (West Supp. 2003); see also Lollar v. Baker, 196 F.3d 603, 606 (5th Cir. 1999). To qualify for relief under the Rehabilitation Act, Plaintiff must prove that (1) she was an individual with a disability; (2) she was "otherwise qualified;" (3) she worked for a federal agency; and (4) she was denied the benefits of her employment or subjected to discrimination solely because of her disability. See id.; Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993). Defendant argues that Plaintiff cannot establish a prima facie case for disability discrimination because she is not an individual with a disability.
The Rehabilitation Act defines "disability" to mean "a physical or mental impairment that substantially limits one or more major life activities." 29 U.S.C.A. § 705(9)(B) (West Supp. 2003). Because the Americans with Disabilities Act ("ADA") defines a disability in substantially the same terms as the Rehabilitation Act defines an individual with handicaps, ADA cases are instructive. Chandler, 2 F.3d at 1391. The term "substantially limits" under the ADA means (1) unable to perform a major life activity that the average person in the general population can perform; or (2) significantly restricted as to the condition, manner, or duration under which the average person in the general population can perform the same major life activity. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164 n. 5 (5th Cir. 1996); 29 C.F.R. § 1630.2(j)(1) (2002).
Plaintiff argues that she is an "individual with a disability" because she suffers from both mental and physical disabilities. Plaintiff asserts that the closed head injury she suffered in April 1996 and the emotional and mental impairment she suffers from are evidence of her disabled condition. Defendant counters by arguing that Plaintiff cannot establish a prima facie case because she does not suffer from a disability that substantially limits a major life activity. Defendant notes that Plaintiff cares for herself, that she is the primary caretaker for her two children, she participates in many activities with her children, she maintains her household (with the exception of climbing on the roof), and is able to do her work on the job. Plaintiff claims that the forms provided by the SSA where she identified her handicaps provide sufficient documentation to prove that she suffers from a disability. Defendant contends that Plaintiff has failed to tender the appropriate documentation to prove that she cannot perform major life activities or that she is significantly restricted as to the condition, manner, or duration under which the average person in the general population can perform the same major life activity. The Court agrees with Defendant. The record shows that the self-identifying handicap form is only used for statistical purposes and to request reasonable accommodations, not to serve as evidence of an employee's disability. Therefore, the Court is of the opinion that Plaintiff has not advanced the necessary evidence to prove she is an individual with a disability .
Because the Court finds that Plaintiff has not shown that she is an individual with a disability, Plaintiff therefore cannot establish a prima facie case of disability discrimination. Thus the Court need not engage in further discussion with regards to Plaintiff's Rehabilitation Act claim. Accordingly, Defendant is entitled to judgment as a matter of law on Plaintiff's claim of discrimination based on disability.
CONCLUSION
For the reasons stated, the Court finds that it lacks jurisdiction over claims arising from incidents in complaint numbers 97-0151-SSA, 98-0522-SSA, and 01-0388-SSA, and that said claims should be dismissed.
Further, the Court finds that the evidence in the record, when viewed in its totality and in the light most favorable to Plaintiff, is insufficient to create a genuine issue of material fact as to Plaintiff's discrimination, retaliation, and hostile work environment claims against Defendant. Accordingly, the Court is of the opinion that Defendant's Motion to Dismiss and Motion for Summary Judgment should be granted and that the following orders should enter: IT IS HEREBY ORDERED that Defendant Jo Anne B. Barnhart, Commissioner, Social Security Administration's "Motion to Dismiss" is GRANTED. IT IS FURTHER ORDERED that Defendant Jo Anne B. Barnhart, Commissioner, Social Security Administration's "Motion for Summary Judgment" is GRANTED.