Opinion
Civ. No. SA-98-CA-0610-OG.
July 19, 1999.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE
Pursuant to the order of referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(i)(B) and rule 1(d) of the Local Rules for the Assignment of Duties to United States Magistrates, effective January 1, 1994, in the Western District of Texas, the following report is submitted for your review and consideration.
Docket no. 14.
I. JURISDICTION
The Court has federal question jurisdiction. 28 U.S.C. § 1331 and 1343.
II. STATEMENT OF FACTS AND PROCEDURAL HISTORY
Plaintiff, Richard Arizpe, is a Hispanic male currently employed at the Federal Aviation Administration — Southwest Region ("FAA") in the position of Airway Transportation System Specialist in the Golf Coast Systems Management Organization ("SMO"), in Houston, Texas. He has been an FAA employee for over twenty-two years. Plaintiff has filed this lawsuit alleging that defendants have engaged in disparate treatment discrimination against him based on his national origin, in violation of Title VII of the Civil Rights Act of 1964, as amended. A review of the original complaint reveals plaintiff's reliance on three purported instances of discrimination: (1) defendants administratively reassigned him to Houston, denying him the opportunity to keep his grade and pay and stay within the commuting distance of his previous place of employment in San Antonio; (2) defendants denied him the opportunity to elect a downgrade to stay within commuting distance of San Antonio and (3) defendants denied him the opportunity to substantially delay his reporting date to his new work location in Houston. Plaintiff alleges that defendants granted each one of these requests to other similarly-situated employees who were not of Hispanic national origin. Also, plaintiff seeks a de novo review of the agency's final decision of no discrimination and further argues that the Department of Transportation erred by failing to investigate his administrative complaint under an adverse impact analysis as opposed to limiting it to an adverse treatment analysis.
Docket no. 1 at 3; and docket no. 6 at 2 (unnumbered) Attachment 1, EEOC's recommended decision dated April 8, 1998, at 1.
Id.
Docket no. 1.
42 U.S.C. § 2000e-16 (1994 Supp. 1999) ("Title VII"); and 29 C.F.R. § 1614.101(a) (1998).
Docket no. 1, at 4.
Id. at 1 4.
Plaintiff's allegations stem from the Department of Transportation's downsizing or realignment which began in 1995. The realignment was the result of the federal government's efforts to streamline its agencies and to promote a more efficient federal workforce. As part of the realignment, the twelve sector offices which comprised the FAA — Southwest Region (including the San Antonio office where plaintiff worked) were consolidated into four SMOs. Two of the four newly created SMOs were located in Texas — Houston (Gulf Coast SMO) and Dallas/Fort Worth (Lone Star SMO) — and the other two in Albuquerque (Rio Grande SMO) and Oklahoma City (Red River SMO). Under the new realignment, the San Antonio office was targeted for closure.
Docket no. 11, EEOC-ALJ Hearing Transcript at 12.
Docket no. 6 at 2 (unnumbered) Attachment 1 at 2-3; and docket no, 1 at 3.
Docket no. 6 at 2 (unnumbered); and docket no. 11, EEOC-AU Hearing Transcript at 234-35.
Docket no. 6 at 2 Attachment 1 at 3.
On or about June 2, 1995, plaintiff received official notification that his position of airway transportation system specialist (GS-13) was impacted by the realignment. The FAA — Southwest Region used preference surveys (known as position preference surveys or "PPS") to provide displaced employees, such as plaintiff, the opportunity to identify the positions that they would prefer to be placed in under the new realignment (Section A of the survey), as well as any other personal needs, preferences or future plans (Section B of the survey) that could affect their reassignment. Although the FAA was committed to the placement of those employees who were impacted by the realignment in positions within the agency, the preference survey procedure, however, did not guarantee them placement in the positions of their preference. It is undisputed that plaintiff indicated his preference for positions in San Antonio. For example, on the first round of PPS, plaintiff identified position number 24 — Supervisor 6 (270, 2101/13, San Antonio/Terminal SSC — as his first choice and position number 22 — Supervisor, GC67, 210 1/13, San Antonio/NAV-COM SSC — as his second choice. In Section B of the first PPS, plaintiff also listed that his first preference was to stay in San Antonio in the position of Coordinator, 2101, GS-13 and that his second preference was to continue to perform his present duties for the Gulf Coast SMO as a detached member of the Technical Support Staff, in San Antonio. The record indicates that Henry L. Lewis, manager of the newly formed Gulf Coast SMO in Houston, with final authority in the placement of employees, did not select plaintiff for any of the positions he identified in the first round of PPS. Instead, Lewis chose two fellow Hispanic employees, Daniel Dávila and Reynaldo Blancarte, respectively. Subsequently, on the second round of preference surveys, however, plaintiff only requested the position of Supervisor — (3) (267-2101-13 San Antonio/NAV-COM. SSC.
Docket no. 11, EEOC-ALJ Hearing Transcript at 17-18 (citing to Tab. 15).
Id. and docket no. 11, EEOC-AU Hearing Transcript at 19.
Docket no. 11, EEOC-AUJ Hearing Transcript at 193 219.
Id. at 27-31; and docket no, 6 at 3 (unnumbered) (citing to Investigative File, Tab. 16).
Id.
Docket no. 11, EEOC-ALJ Hearing Transcript at 178.
The record indicates that Lewis subsequently selected another Hispanic by the name of Cirilo Sanchez for the first position after learning that Dávila would not be reporting to that position. Docket no. 6 at 3 (unnumbered) Attachment 1 at 3 (citing to Tab. 16); and docket no. 11, EEOC ALJ Hearing Transcript at 74-75.
Id.
Id.
It is uncontroverted that Lewis did not place plaintiff in either of the two positions he identified in Section A of the preference surveys. Instead, on August 31, 1995, plaintiff received an administrative reassignment from the position of Airway Transportation System Specialist GS2101-13, SW-11212MB San Antonio, Texas, to a comparable position — Airway Transportation System Specialist GS-2101-13 — located at the Gulf Coast SMO, Technical Support Unit, in Houston. Texas, effective November 12, 1995. As part of the administrative reassignment, plaintiff kept the same pay, benefits, and grade level (GS-13) as the position he held in San Antonio. In a letter to Lewis dated September 12, 1995 and in subsequent oral communications with him, plaintiff requested consideration of certain options in lieu of the administrative reassignment to Houston. One of the options was based on plaintiff's belief that the GS-13 Coordinator position could have been justified for San Antonio and he questioned why he was not assigned to that position. He also stated in the letter: "If I have an option to downgrade to a GS-12 and stay in San Antonio, with first preference of any GS-13 position opening in San Antonio, I elect to exercise that option." Plaintiff then continued that if the option to downgrade was not available that he would accept, albeit with reservations, the reassignment to Houston, In that regard, plaintiff requested that his reporting date to his new work location be postponed "as long as possible." When Lewis informed plaintiff on or about October 18, 1995, that the possibility of a downgrade was not an option based on the realignment scheme in existence at the time, the summary judgment record reflects that plaintiff accepted the position in Houston and asked for a delay in the reporting date.
With respect to the Coordinator position plaintiff identified in Section B of his first PPS, the record establishes that such position was not available in San Antonio. Based on the testimony of those individuals involved in the realignment phase, the Coordinator positions were allocated to locations with no supervisory employees on staff such as in Alexandria, Louisiana and Little Rock, Arkansas. Docket no. 11, EEOC-ALJ Hearing Transcript at 198, 229. The record shows that plaintiff was not interested in a Coordinator position outside of San Antonio and did not express an interest for neither of these positions. Id. at 193-98. Regarding his desire to stay in in the same position he held in San Antonio, the position was directly impacted by the realignment at the time and was not available in San Antonio. Id. at 18.
Docket no. 6, Attachment 1 at 3 (citing to Investigative File, Tab. 9).
Id. According to defendants, plaintiff in addition was offered a Permanent Change of Station ("PCS") relocation package which included extensive reimbursable moving expenses including the purchase of his residence in San Antonio. Plaintiff declined the PCS package, opting instead to commute. Docket no. 6 at 3-4 (unnumbered).
Docket no. 11, EEOC-AU Hearing Transcript at 42-43 (citing to Tab. 9). According to the ALJ's decision, under the terms of a Memorandum of Understanding ("MOU") regarding the realignment, once an employee was given a reassignment, the employee could request a downgrade to any vacant position with save-grade and save-pay options in order to avoid having to make a move outside of the commuting distance of the original position. Docket no. 6, Attachment 1 at 3.
Docket no. 11, EEOC-ALJ Hearing Transcript at 90-91.
Id. at 120-21, 185-188 206 (emphasis added).
Id. at 61-62.
Docket no. 6, Attachment 1, at 4 (citing to Investigative File, Tab. 9); and docket no. 11, EEOC-ALJ Hearing Transcript at 185-202, 238-43.
Id.
Upon accepting the reassignment, the record shows that plaintiff negotiated a reporting date with his first level supervisor in Houston, Arthur Banazek. Based on the negotiations, plaintiff received a two week extension with a reporting date of November 27, 1995. It is undisputed that although plaintiff requested that his reporting date be postponed "as long as possible," there is no evidence that plaintiff specifically requested a date certain (longer than two weeks from his original reporting date) in which to report to Houston.
Id.
Id.
Id.
On or about November 27, 1995, plaintiff filed an informal EEO complaint alleging that he had been subjected to unlawful discrimination based on his national origin when defendants denied him a delay of his reporting date to his new work location in Houston and the opportunity to downgrade and remain within commuting distance of San Antonio. After informal efforts to resolve the matter proved unsuccessful, plaintiff filed a formal complaint of discrimination on March 6, 1996. The EEOC Administrative Law Judge held a hearing on February 10-11, 1998 and rendered a recommendation of no discrimination on April 9, 1998. The United States Department of Transportation, one of the defendants in the instant suit, adopted the EEOC-ALJ's recommended decision as its final decision on April 18, 1998. Plaintiff timely filed the instant lawsuit on July 9, 1998.
Docket no. 11 at 1.
Id. at 2.
Id. and docket no. 6, Attachment 1.
Docket no. 11 at 2.
Docket no. 1.
Defendants have filed a motion to dismiss, or in the alternative, motion for summary judgment, alleging plaintiff has failed to show aprima facie case of national origin discrimination, namely that he suffered an adverse employment action within the meaning of Title VII as interpreted by the Fifth Circuit, and that other similarly-situated employees, not of the same protected group as plaintiff, were not subjected to the same adverse employment action(s) as alleged by plaintiff. Therefore, defendants argue, plaintiff's claims should be dismissed with prejudice. Plaintiff has filed a response to defendants' motion denying all of defendants' allegations, to which defendants replied. Defendants' motion to dismiss or in the alternative for summary judgment, refers to matters outside the pleadings, and therefore, will be treated for all purposes as a motion for summary judgment. Additional facts will be discussed in this Report and Recommendation after a review of the summary judgment standard.
Docket nos. 6 12.
Id.
Docket no. 11.
Docket no. 12.
III. ISSUES PRESENTED
1. Whether Arizpe can establish a prima facie case of intentional national origin discrimination under Title VII?
2. Whether Arizpe properly preserve his appeal on the Department of Transportation's alleged error in failing to investigate and analyze plaintiff's claims under the disparate impact theory of discrimination?
3. Whether defendants' proffered reasons for the downsizing/realignment of the FAA Southwest Region, which included the administrative reassignment of plaintiff and the denial of his requests in lieu of (or related to) the reassignment, were a pretext for discrimination on the basis of national origin?
IV. SUMMARY JUDGMENT STANDARD
The applicable standard in deciding a motion for summary judgment is set forth in FED.R. CIV. P. 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 (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. In an employment discrimination case, the Court focuses on whether a genuine issue of material fact exists as to whether the defendant intentionally discriminated against the plaintiff. 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. Whether Arizpe has raised an issue for trial, based on proving the elements of his prima facie case and presenting a fact issue as to the truth of defendants' offered reasons, is governed by the sufficiency of the evidence standard. This standard provides that "`[t]here must be a conflict in substantial evidence to create a jury question.'" For example, as applied to this case, evidence is "substantial" if it creates a reasonable inference that plaintiff's national origin was a determinative factor in the employment decisions made by defendants, assuming they constitute adverse employment actions within the meaning of Title VII. 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 (1986).
See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 447 (5th Cir. 1996) (citing Armstrong v. City of Dallas. 997 F.2d 62, 65-66 (5th Cir. 1993)).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Anderson, 477 U.S. at 248; Wise v. El. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
See La Pierre, 86 F.3d at 449.
Id. (quoting Boeing Co., v. Shipman, 411 F.2d 365, 375 (5th Cir. 1969) (en banc)).
Id. at 450.
Anderson, 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 must be drawn in favor of the party opposing summary judgment. However, "`[m]ere conclusory allegations are not competent summary judgment evidence, and they are therefore insufficient to defeat or support a 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. 477 U.S. at 323.
Anderson, 477 U.S. at 257.
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993).
See Dailey v. Johnson Johnson Consumer Products Inc. 850 F. Supp. 549, 552 (N.D. Tex. 1994) (quoting Tonalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. ), cert. denied, 506 U.S. 825 (1992)).
Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991).
V. ARGUMENTS AND CONCLUSIONS OF LAW Arguments of the Parties and Burden of Production and Persuasion in Discrimination Complaints
Defendants argue that summary judgment is warranted because there is no genuine issue of material fact with respect to plaintiff's failure to prove two elements of his prima facie case of national origin discrimination because plaintiff's allegations do not rise to the level of adverse employment decisions for a violation under Title VII, and he cannot prove that other similarly situated employees, not members of plaintiff's protected group, received different treatment than plaintiff.Plaintiff counters these arguments by claiming genuine issues of material fact exist precluding summary judgment in this case. Specifically, plaintiff contends that his administrative reassignment to Houston and defendants' denial of his request to keep his grade and pay and to stay in San Antonio constituted an involuntary permanent transfer; and is thus, an adverse employment action within the ambit of Title VII. Moreover, plaintiff contends that defendants' actions in denying him the opportunity to downgrade and stay within commuting distance of his previous place San Antonio and to delay his reporting date to his new work location, are actionable adverse employment actions for which he is entitled to recover. Plaintiff maintains that defendants granted each of these requests to other similarly-situated employees who were not of Hispanic national origin.
Docket no. 11 at 12-13.
Id.
Id. at 13-14.
In addition to establishing his prima facie case of national origin discrimination through disparate treatment, plaintiff alleges that Hispanics were adversely impacted by the realignment. According to plaintiff's theory, defendants identified the offices with a substantial contingency of Hispanic employees, such as the San Antonio office. Defendants then, according to plaintiff, distributed some of the Hispanic workforce to other offices within the FAA that needed to increase their minority workforce. Plaintiff maintains the alleged downsizing or realignment was no more than an attempt by defendants to bring various offices and locations of the FAA — Southwest Region in compliance with the equal employment opportunity and affirmative action directives set by the Department of Transportation nation-wide. Furthermore, plaintiff argues that defendants' proffered reasons for — his administrative reassignment and their handling of plaintiffs' requests of a downgrade to stay in San Antonio and/or a delay in the reporting date to his new work location — are not "worthy of belief" because they were not based on any legitimate business considerations but were rather a pretext to discriminate against plaintiff on the basis of his national origin.
Id. at 4-5.
Id. at 2-5.
Id. at 7-12. The Court notes that the rebuttal of legitimate nondiscriminatory reasons must be addressed only if the plaintiff first meets his burden to establish a prima facie case. For the reasons noted below in this Report, the Court has concluded that plaintiff has not met that burden.
The McDonnell Douglas Corp. v. Green burden-shifting analysis applies to employment discrimination cases brought under a disparate treatment theory. Under this framework, Arizpe carries the initial burden of establishing his prima facie case of discrimination by a preponderance of the evidence. In the instant case, plaintiff must prove that: (1) he is a member of a protected class, i.e., Hispanic; (2) he applied and was qualified for job (or tangible job benefits) for which the employer was seeking applicants; (3) despite his qualifications, he was rejected or suffered some other adverse employment decision; and (4) other similarly-situated employees, who were not members of plaintiff's protected class, did not suffer the same adverse employment decisions as plaintiff. The United States Supreme Court has noted, however, that the Title VII framework is intended to be flexible, and therefore, the requirements for a prima facie case will vary with the facts of each case. Nevertheless, a prima facie case in a Title VII cause of action at least requires proof of some type of ultimate employment decision adverse to the plaintiff.
411 U.S. 792, 804 (1973).
Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
See Meinecke v. H R Block of Houston, 66 F.3d 77, 82 (5th Cir. 1995).
McDonnell Doualas Corp. 411 U.S. at 802, n. 13; St. Mary's Honor Center, 509 U.S. at 506.
See Odum v. Beverly Enterprises Mississippi, Inc., No. CIV.A. 1:96CV382-D-D, 1998 WL 173232, at *2 (N.D. Miss. Feb. 20, 1998), aff'd, 165 F.3d 23 (5th Cir. 1998).
If the plaintiff is able to establish all elements of his prima facie case, a rebuttable presumption arises that defendants unlawfully discriminated against him. The burden then shifts to the defendants to present evidence that they treated plaintiff in a certain way for legitimate, nondiscriminatory reasons. Once the defendants satisfy this second part of the analysis, the presumption raised by the prima facie case is rebutted and dropped from the case. The third step of the analysis shifts the burden back to plaintiff to prove that the reasons articulated by the defendants were 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. Plaintiff has failed to establish a prima facie case of national origin discrimination
Patterson, 491 U.S. at 187; Burdine, 450 U.S. at 254.
Id. At this second stage, defendant is not required to prove the legitimate, nondiscriminatory reason. See St. Mary's Honor Center, 509 U.S. at 509; Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 958 (5th Cir. 1993) ("[e]mployer need only articulate a lawful reason, regardless of what its persuasiveness may or may not be.").
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993).
Id. Burdine, 450 U.S. at 256.
St. Mary's Honor Center, 509 U.S. at 516-17.
Id.
In this case, defendants dispute plaintiff's ability to raise a genuine issue of material fact regarding the existence of elements three and four of his prima facie case — that is, that he suffered an adverse employment action under Title VII and that other similarly-situated employees, who were not of Hispanic national origin, were treated differently than plaintiff. Accordingly, the Court will limit its analysis to plaintiff's last two requirements of his prima facie case and it will refer to the relevant factual allegations as set forth above in the Statement of Facts.
Id.
See Statement of Facts, at 1-8, supra.
Specifically, plaintiff alleges that: his administrative reassignment from the position of Airway Transportation System Specialist GS-2101-13, SW-11212MB in San Antonio to a comparable GS-13 position in Houston; the denial of the opportunity to take a downgrade to stay within commuting distance of his previous place of employment in San Antonio; and the denial to substantially delay his reporting date to his new work location in Houston, are adverse personnel actions. The Court finds that none of these alleged acts rise to the level of an adverse employment decision cognizable under Title VII.
The Court notes that the EEOC-ALJ's recommendation did not focus on this prong of plaintiff's case. Instead, the EEOC-ALJ's analysis of plaintiff's prima facie case focused on the placement decisions made by defendants in the realignment phase and whether all displaced employees, irrespective of their national origin, received equal treatment. Docket no. 6, Attachment 1.
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." Consequently, the Dollis Court held that a denial of a desk audit, which according to plaintiff restricted her promotional opportunities, was not an actionable "adverse employment action" sufficient to establish sex and/or race discrimination under Title VII. Furthermore, in Mattern v. Eastman Kodak Company the Fifth Circuit refused "to expand the definition of `adverse employment action' to include events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future." Instead, as the United States Supreme Court recently noted, adverse employment actions within the context of Title VII constitutes a significant change in employment status, such as hiring, firing, failing to promote, demotion, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. An adverse employment action within the purview of Title VII in most cases inflicts direct economic harm.
77 F.3d 777 (5th Cir. 1995) (citing to Page v. Bolger 645 F.2d 227, 233 (4th Cir.) (en banc), which noted that Title VII discrimination cases have focused upon ultimate employment decisions such as hiring, granting leave, discharging, promoting and compensating), cert. denied, 454 U.S. 892 (1981)).
Id. at 781-82.
Id. at 782 ("Like [plaintiff's] other claims, the denial of a desk audit is not the type of ultimate employment decision that Title VII was intended to address").
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, in 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, refusing a pay increase and giving employee false information regarding aspects of her employment including access to travel funds and methods of filing EEOC complaints did not constitute adverse employment decisions. These actions were considered to be at most "tangential" to future decisions that might be ultimate employment decisions).
Burlington Industries. Inc., v. Ellerth, 118 S.Ct. 2257, 2268-69 (1998) (citations omitted).
Id. at 2269. This "tangible employment decision" appears to be virtually synonymous to the "adverse employment action" which the Fifth Circuit has required for Title VII liability and other contexts such as civil rights lawsuits brought under § 1985. See Benningfield v. City of Houston., 157 F.3d 369, 376 (5th Cir. 1998), cert. denied, 119 S.Ct. 1457 (1999).
Regarding the administrative reassignment, the Fifth Circuit has specifically held that "undesirable" work assignments are not adverse employment actions. Further, it is undisputed that plaintiff suffered no loss of income or change in benefits because of the administrative reassignment. To the contrary, the evidence indicates that plaintiff maintained the same grade level (GS-13), pay and responsibilities as the comparable position he previously held in San Antonio. In addition, the record demonstrates that plaintiff voluntarily accepted the reassignment in Houston after being advised that his option — of electing a downgrade position (GS-12) in San Antonio conditioned upon having first preference of any (GS-13) position opening in San Antonio — was not available under the reorganization scheme at the time. This is evident by his immediate request to delay his reporting date to his new work location in Houston. Based on plaintiff's acceptance of the reassignment under the facts of this case, the Court cannot conclude that it constituted an adverse employment action within the meaning of Title VII.
See Southard v. The Texas Board of Criminal Justice. 114 F.3d 539, 555 (5th Cir. 1997) (defendant's conduct in allegedly giving plaintiff less favorable work assignments did not constitute adverse employment action which could support plaintiffs claims of sex discrimination and retaliation). See also Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.), cert. denied., 118 S.Ct. 603 (1997); and Dorsett v. Board of Trustees for State Colleges Universities. et al. 940 F.2d 121, 123-24 (5th Cir. 1991).
See Statement of Facts, at 6, supra.
Id.
See Vickie J. Louthen v. Marvin T. Runyon, Postmaster General, Civil Action No. SA-95-CA-0819-HG (W.D. Tex. February 17, 1998) (final decision), attached to docket no. 12. In Louthen a District Court of the Western District of Texas granted defendant's motion for summary judgment by finding that plaintiff's allegations that: her lateral transfer from her position as a Senior Customer Services Representative to a Supervisor in the Business Mail Entry division; her failure to be transferred back to the position she immediately vacated; and the requirement of her supervisor for her to choose another permissible form of paid leave (i.e. annual or sick leave instead of "personal leave"), do not rise to the level of adverse employment decisions cognizable under Title VII.
Similarly, the defendants' denial of plaintiff's request for a downgrade to stay within commuting distance of San Antonio which would have entailed lower pay, lower grade level and possibly a significant change in benefits, does not fall under the Fifth Circuit's interpretation of an adverse employment action. Likewise, the purported denial of an opportunity to delay his reporting date to his new work location in Houston also fails to rise to the Fifth Circuit's interpretation of an adverse employment action because, at best, it is considered to have a "tangential" effect on future decisions that might lead to an adverse employment action. As to this allegation, additionally and/or alternatively, the summary judgment record shows that plaintiff did not follow proper procedures in requesting the delay. According to the unrebutted testimony of plaintiffs first level supervisor in Houston (Banazek) at the EEOC administrative hearing and plaintiff's administrative complaint, plaintiff did not provide him with a specific date for his reporting date nor did he express any unusual personal circumstances warranting a longer extension than two weeks to report to work. Based on his discussions with plaintiff Banazek concluded that a two week extension was satisfactory for plaintiff. Moreover, according to Banazek, after granting the two week extension, plaintiff never brought the issue again to his attention and he reported to work on the assigned date.
Dollis, 77 F.3d at 781-82; Mattem, 104 F.3d at 708-09; Southard, 114 F.3d at 553-55; and Odum, 1998 WI., 173232 at *3 See also Ellerth, 118 S.Ct. at 2268-69.
Id.
Docket no. 6, Attachment 1 at 11-12; and docket no. 11, EEOC-ALJ Hearing Transcript at 238-43.
Id.
Id. at 245-46.
The Court has considered each of plaintiff' s factual allegations and even if taking them as true, it cannot conclude that those facts are sufficient to prove the third element of his prima facie case, that is, that he suffered an adverse employment decision actionable under Title VII. Plaintiff characterization of his lawsuit as a non-selection case is not determinative of the nature of the action. While "non-selections" are often considered adverse actions, due to the unique factual circumstances of this matter and the summary judgment evidence proffered in this case, the Court is not persuaded that any of the purported instances of discrimination as alleged by plaintiff is sufficient to rise to the level of an adverse employment action.
Docket no. 11 at 6.
See Louthen, Civil Action No. SA-95-CA-0819-HG, at 2, attached to docket no. 12.
Even assuming, arguendo, that plaintiff has met his burden of proving the existence of an adverse employment action cognizable under Title VII, the Court cannot conclude that plaintiff has met his burden of establishing the fourth element of his prima facie case — namely, that other similarly-situated employees, not members of his protected group, were treated differently than plaintiff. For example, concerning the administrative reassignment and the denial of his request to stay in San Antonio with the same pay and grade level, according to Lewis' sworn testimony, none of the individuals employed in San Antonio were allowed to remain in San Antonio at the same grade level. With respect to the two supervisory positions available in San Antonio which plaintiff identified in his preference surveys, the summary judgment record establishes that Lewis selected two fellow Hispanic employees to fill those positions. Based on his judgment and input received by employees who have worked with the two individuals, Lewis considered the other Hispanic employees to be better qualified (in terms of background and work experience in the area) than plaintiff to fill those positions.
Docket no. 11, EEOC-ALJ Hearing Transcript at 184-85. Moreover, according to plaintiff's testimony, only one employee from the San Antonio office was selected on the first round of preference surveys.Id. at 34-35.
Docket no. 6, Attachment 1 at 5-6; and docket no. 11, EEOC-ALJ Hearing Transcript at 182-85. The Court notes that out of the four supervisory positions available in San Antonio, three were filled by Hispanics. Id.
As to the denial to elect a downgrade in San Antonio, both the manager and plaintiff testified at the administrative level that they discussed a GS-12 position with duty station in Laredo because there was no similar position available in San Antonio at the time. The record shows that given the choice of a GS-13 position in Houston or a GS-12 position in Laredo, that plaintiff opted for the Houston position. After the realignment phase, however, and once plaintiff had accepted the GS-13 position in Houston, the first level supervisor of the Laredo position decided to detach the Laredo position out of the Lackland Air Force Base in San Antonio. The GS-12 Laredo position, thus, had a work duty station in San Antonio and it was filled by a Caucasian male by the name of Garvis Davis. According to Lewis' sworn testimony, at the time he offered plaintiff and Davis the Laredo position, his main concern was to complete the placement of the employees who were impacted by the realignment. He further stated that he advised plaintiff that he could not make any particular accommodations to him or to any other employee. According to the testimony adduced at the administrative hearing, once the realignment phase was completed, the first level supervisors at the assigned locations had the discretion to further accommodate the placed employees (i.e., through the detachment of positions or granting delays of the reporting dates). There is no evidence on the record that plaintiff was at any time precluded from directly communicating with the supervisor in Laredo concerning the detached GS-12 position. Additionally, plaintiff asserts that he later discovered that between the time defendants offered him the reassignment in Houston and he submitted his acceptance, they posted a GS-12 position available in San Antonio for which he was precluded from applying. Since plaintiff's option of electing a downgrade to a GS-12 position was conditioned upon receiving first preference for a GS-13 position opening in San Antonio once it became available, the Court cannot conclude that at the time plaintiff was considering to downgrade to a GS-12 position in order to remain in San Antonio, that such position even existed. More importantly, it is not evident from the record (and plaintiff has been unable to prove otherwise) that the GS-12 position that purportedly became available in San Antonio at the time offered the possibility for a later transfer into a GS-13 position.
See Docket no. 11, EEOC-ALJ Hearing Transcript at 41-43, 61-63, 185-208; and docket no. 6, Attachment 1 at 9.
Id.
Docket no. 11, EEOC-ALJ Hearing Transcript at 167. The offer to Davis of the Laredo position took place on November 30, 1995. Davis did not respond to the offer until March 29, 1996 when the Laredo position was detached to San Antonio, Id. Tab. 11. According to Davis' testimony, his delay in accepting the downgrade position in Laredo was mainly out of his concerns as to how his retirement would be affected by taking the downgrade. Id. at 154. It is important to note that Davis testified that he was not selected on the first round of PPS. He eventually decided for a GS-13 position in Houston but by the time of his acceptance, the Houston position had already been filled. He then opted for the downgrade position (GS-12) in Laredo. Id. at 149 154-55.
Id. at 193-202.
Docket no. 11, EEOC-ALJ Hearing Transcript at 187-93 227.
Id. at 187-208.
Id. at 204. This position was filled by a Hispanic, Raul Baltierra.
See Statement of Facts, at 6-7, supra. See also docket no. 6, Attachment 1 at 10 (citing to Tab. 9).
Likewise, with respect to the denial of plaintiff's request to delay his reporting date, the unrebutted testimony adduced at the administrative hearing establishes that the non-Hispanic employees who received a longer delay in reporting to work than plaintiff did so because, unlike plaintiff, they submitted a formal written or oral request providing reasons justifying their request as well as a specific reporting date. According to the testimony of plaintiff's supervisor in Houston (Banazek), no one was denied a delayed reporting date if they requested it through the appropriate means. Moreover, there is uncontroverted evidence on the record, that unlike plaintiff some of the employees who were permitted to delay their reporting dates held positions that allowed them to perform meaningful work for their reassigned location from their original work duty stations. In plaintiff's situation, the uncontroverted evidence establishes that there was no meaningful work for him to do in San Antonio for his position in Houston.
Besides plaintiff, another employee from San Antonio, Clifford Wilson (non-Hispanic) received a two week extension and reported on the same date as plaintiff Docket no. 11, EEOC-ALJ Hearing Transcript at 250.
Docket no. 6, Attachment 1 at 7; and docket no. 11, EEOC-ALJ Hearing Transcript at 238-54.
Docket no. 11, EEOC-ALJ Hearing Transcript at 248-250. According to the National Memorandum of Understanding ("NMOU") issued as guidance for the realignment phase, an employee could remain in his pre-realignment position for a maximum of up to eighteen months provided that meaningful work existed to perform in that location. Id. at 77-78.
Id. at 78-81 245. There is evidence on the record that sometime in 1996, when one of the individuals who was supposed to report to Houston but opted instead to take a downgrade, plaintiff was able to transfer to a position in the GNAS center in Houston. This position apparently permits plaintiff to spend about 27% of his time in San Antonio. Id. at 81 245 256.
Therefore, because plaintiff has failed to prove the third and fourth elements of his prima facie case of intentional discrimination based on his national origin, the Court recommends that defendants' motion for summary judgment be granted.
Even though the Court finds that plaintiff has failed to establish hisprima facie case of national origin discrimination under Title VII, because plaintiff has devoted a considerable portion of his brief to his disparate impact theory and defendants' pretext to discriminate against Hispanics, the Court will nevertheless briefly discuss these issues.
Plaintiff Did Not Properly Preserve for Appeal His Claims Under the Disparate Impact Theory
In sum, through the use of statistics, plaintiff argues that because the realignment disproportionately impacted minority employees, and particularly Hispanics, it was merely a pretext to unlawfully discriminate against them on the basis of their national origin. With respect to plaintiff's situation, plaintiff contends that defendants reassigned him to the position in Houston because of his national origin as there were no other Hispanics working in that department. In that regard, plaintiff alleges that the Department of Transportation erred when it did not investigate plaintiff's administrative complaint under an adverse impact analysis. According to plaintiff, the EEOC-ALJ compounded this error by not remanding the case to the agency to be investigated under an adverse impact analysis and by not permitting plaintiff to develop his theory at the administrative hearing. Defendants, on the other hand, maintain that plaintiff's use of statistics and other arguments fall to establish that defendants engaged in any pattern of discrimination against Hispanics during the realignment.
Docket no. 11 at 2-7.
Id.
Id. and docket no. 1 at 4-5.
Id.
Docket no. 12 at 2-9.
Unlike a disparate treatment action under Title VII, an action for disparate impact under Title VII does not require that the plaintiff prove motive or intent to discriminate in order to establish a prima facie case. The United States Supreme Court in Wards Cove Packina Co. Inc., v. Atonio, 490 U.S. 642 (1989), outlined the requirements for aprima facie showing of disparate or adverse impact based on race or national origin: (1) the plaintiff must prove a racial or national origin imbalance in the employer's workforce — that is, there is an exclusion or mistreatment of disproportionate numbers of a protected group; and (2) the plaintiff must prove a causal link between a specific employment practice and the racial imbalance in the employer's workforce. This means that "a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack." Therefore, a plaintiff cannot make a prima facie case merely by pointing out to the disparate results of promotion, hiring, discharge, demotion, transfer, or other practices. Rather, it is his prima facie case burden to tie those results in a statistically significant degree to specific selection practices and to demonstrate that each such practice designated had a statistically significant impact in causing disparity.
See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
109 S.Ct. at 655-56.
See Watson v. Fort Worth Bank Trust, 487 U.S. 977 (1988) (discussing the earlier thinking of the Court which was relied upon inWards Cove). It should be noted that the Civil Rights Act of 1991 essentially confirmed the Watson-Wards Cove approach, with the recognition that a plaintiff would not be required to identify a particular or specific practice or element of a decisionmaking process that caused the disparate impact if the practices or elements cannot be separated. See 42 U.S.C. § 2000e-2(k)(1)(A)(I) (exception recognized where "the elements of a respondent's decision-making process are not capable of separation for analysis.").
Based on the administrative hearing transcript, it appears that plaintiff has not properly preserved for appeal the purported error made by the EEOC-ALJ in declining to remand the case for investigation under the adverse impact analysis. The record shows that plaintiff was represented by counsel at the administrative hearing. Before taking testimonial evidence at the hearing, counsel for the plaintiff reurged his objection that based on plaintiff's administrative complaint (filed pro se), his allegations should have been analyzed and investigated under an adverse impact theory of discrimination. The ALJ then advised counsel that she had instructed him during the pre-hearing conferences to provide her some briefing as to why this case should be remanded for investigation under the adverse impact analysis. The ALJ further explained to counsel that she did not have jurisdiction to address the adverse impact theory at that time. Apparently, counsel for plaintiff wrote a letter in response to the ALJ's request stating that plaintiff intended to proceed forward with the administrative hearing under an adverse treatment theory of discrimination. The ALJ further stated on the record that counsel cannot have it both ways: "[e]ither we go to hearing today and I don't have jurisdiction as to adverse impact and we proceed on and you lose that opportunity . . . . So my understanding of your position is that you wanted to proceed on with the hearing today?" In response, plaintiff's counsel chose to proceed with the hearing under an adverse disparate analysis. This colloquy between counsel and the ALJ and the ALJ's subsequent rulings throughout the hearing in limiting the testimonial evidence to issues relevant to plaintiff's disparate treatment theory only, support the Court's conclusion that plaintiff did not properly preserve the issue for appeal and the issue would also appear to be time-barred. Thus, the Court declines to substantively address plaintiff's adverse impact theory of discrimination. Further, after having conducted a de novo review of the evidence adduced at the administrative hearing, the Court finds that the EEOC-ALJ did not err in applying the relevant law to the facts.
Docket no. 11, EEOC-ALJ Hearing Transcript at 7.
Id.
Id. at 8.
Id.
Id.
Id.
For example, in declining to accept a post-realignment document proffered by plaintiff listing the names and racial makeup of employees, the ALJ stated: "I will go ahead and mark and accept this document into the record. Again, I have no jurisdiction to the adverse impact question, but to the extent that these names and their races come into question, I'll have something to rely on, I suppose." Id. at 53 (emphasis added).
Id. docket no. 6, Attachment 1.
Defendants' Proffered Reasons Were Not Pretextual
Plaintiff argues that defendants' reasons for the underlying realignment were merely a pretext to unlawfully discriminate against Hispanic employees on the basis of their national origin. A review of the record reveals that contrary to plaintiff's assertions, the realignment or downsizing of the FAA was part of a nation-wide plan to streamline federal government agencies and produce a more efficient workforce.
Docket no. 11 at 11-12.
See docket no. 6, Attachment 1 at 4; and docket no. 11. EEOC-ALJ Hearing Transcript at 177-98 213-229.
According to Lewis' testimony, the defendants' approach to downsizing was to prevent any reduction in force. In that regard, the record demonstrates that defendants allowed displaced employees such as plaintiff to request positions through preference surveys. The employees did not have any guarantees that they would get a position of their preference but their input was considered in the reassignments. Testimony adduced at the administrative hearing establishes that in making the placement decisions, the individuals with decision-making authority such as Lewis and Thomas Lucas (Assistant Division Manager of the Airway Facilities Division) sought input from the unit that contained the vacancy, the labor union (PASS), air traffic, the employees' supervisors, and other supervisors. It is undisputed that achieving a diversified workforce was one of the many factors taken into consideration during the realignment. Nevertheless, according to Lewis' testimony, his primary objective during the realignment phase was not attaining a diversified workforce in the Gulf Coast SMO based in Houston. Rather, his goal was to evaluate the employee's background and work experience including careful consideration of the position held prior to realignment which would allow him to reassign the employee to a comparable position. Because defendants have articulated legitimate business reasons for the downsizing or realignment of the FAA — Southwest Region, the burden shifts back to plaintiff to prove that defendants' proffered reasons are a pretext for discrimination. Significantly, defendants are not required to prove the absence of a discriminatory motive. Instead, plaintiff has "the ultimate burden of proving the critical element of discriminatory motive." Plaintiff has failed to create a genuine issue of material fact regarding whether defendants' proffered reasons for the downsizing or realignment were a pretext for national origin discrimination. The Court finds Lewis' testimony uncontroverted by plaintiff's summary judgment evidence. Plaintiff's assertion of discrimination is primarily based on his personal conclusion that since he was the only Hispanic reassigned to the particular unit in Houston out of a workforce of 10 employees (which included one Black employee), that it must have been because of his national origin. It is wellsettled that a plaintiff's subjective beliefs and speculations are insufficient to defeat a summary judgment motion.
Id.
Docket no. 11, EEOC-ALJ Hearing Transcript at 191-92.
Id.
See La Pierre, 86 F.3d at 449 (reorganization of business functions, which included plaintiff's demotion and reassignment of plaintiff's managerial responsibilities to a member of a nonprotected class, considered a legitimate non-discriminatory reason).
See Messer v. Meno, 936F. Supp. 1280, 1294 (W.D. Tex. 1996) (citing St. Mary's Honor Center, 509 U.S. at 515-17), cert. denied, 119 S.Ct. 794 (1999).
Messer, 936 F. Supp. at 1294 (citing Burdine, 450 U.S. at 253-56).
Id. (citing Ray v. Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995)).
Id. at 44.
See e.g., Grizzle v. The Travelers Health Network. Inc., 14 F.3d 261, 268 (5th Cir. 1994) (plaintiff's own self-serving generalized testimony stating her subjective belief that discrimination occurred held insufficient to support a jury verdict in her favor); andPatton v. United Parcel Serv. Inc., 910 F. Supp. 1250, 1263 (S.D. Tex. 1995) (plaintiff may not rely on her won subjective beliefs because subjective beliefs, even if genuine, cannot serve as the basis for judicial relief in a discrimination claim).
Consequently, because plaintiff cannot establish his prima facie case for intentional discrimination based on his national origin nor can he prove that defendants' proffered reasons for the business decisions made during the realignment were a pretext for unlawful discrimination, the Court recommends that defendants' summary judgment motion be granted.
VI. RECOMMENDATION
Based on the foregoing, the Court recommends that defendants' motion for summary judgment (docket no. 6) be GRANTED and this action be DISMISSED because plaintiff has failed to establish the existence of a genuine issue of material fact under the applicable legal standards.
VII. INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT/APPEAL
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636 (b)(1) and FED. R. Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Report and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Am, 474 U.S. 140, 150, 106 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985).
Douglass v. United Services Automobile Ass'n., 79 F.3d 1415, 1428 (5th Cir. 1996).