Opinion
Civil Action No. 3:99-0865-17BC
May 29, 2002
ORDER
This is the second action brought by the pro se plaintiff, Reginald D. Evans ("Evans"), concerning his employment by the South Carolina National Guard as a National Guard Technician. The parties consented to the exercise of jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Plaintiff filed a motion for summary judgment on December 3, 1999. Defendant filed a motion for summary judgment on the same date. Plaintiff filed an opposition memorandum on January 5, 2000. By order filed September 12, 2000, the undersigned granted defendant's motion for summary judgment and denied plaintiffs motion for summary judgment. Evans appealed the decision. The Fourth Circuit Court of Appeals vacated the judgment and remanded the case with instructions "to provide Evans with the notice and opportunity to respond required by Roseboro." Evans v. Caldera, No. 00-2266 (4th Cir. June 11, 2001)(unpublished). The Roseboro order was filed on August 16, 2001. Thereafter, Evans filed an "Amendment to the Memorandum in Opposition to the Defendant's Motion for Summary Judgment," a "Second Amendment to the Memorandum in Opposition to the Defendant's Motion for Summary Judgment," and a "Renew Plaintiff Motion for Summary Judgment and a Request for a Motion Hearing."
The record hi the first case, Evans v. West ("Evans I"). Civil Action No. 3:97-3732-17BC, contains a full discussion of the role of National Guard Technicians as hybrid civilian-military employees to whom Title VII applies with respect to their civilian duties. In Evans I, the court adopted the rationale ofMier v. Owens, 57 F.3d 747 (9th Cir. 1995), cert. denied, 517 U.S. 1003 (1996). Summary judgment was granted with respect to all claims except the Title VII claim for retaliation in Evans I. Trial on that claim resulted in a verdict in favor of Evans. However, by order filed September 17, 2001, the Honorable Matthew J. Perry set aside the verdict pursuant to Fed.R.Civ.P. 50(b).
See Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975). The Court's standard Roseboro order was not provided to Evans in this case. However, Evans filed a response to defendant's motion for summary judgment with numerous exhibits, all of which were considered by the undersigned. Additionally, Evans was provided a Roseboro order in Evans I. a case which partially survived summary judgment.
Attached to this pleading is Evans' affidavit ("Pl. Aff."). The affidavit contains mostly argument with citations to other portions of the record.
Several exhibits are attached to this pleading, some of which appear to relate to the allegations of Evans I.
No affidavits or exhibits are attached to this pleading.
The claims in the pro se complaint are not clearly pled. The record, including the summary judgment memoranda of the parties, does little to clarify the claims. After reviewing the record, the undersigned construes the complaint to allege claims for (1) a Title VII claim for a racially hostile work environment; (2) a Title VII disparate treatment claim for discharge based on race; (3) a Title VII claim for retaliatory discharge; and (4) a Title VII claim for wrongful discharge based on defendant's failure to follow grievance procedures after plaintiffs termination.
In several places in the complaint, Evans alludes to § 1983 and a violation of his rights. Generally, federal officials are not subject to liability under § 1983 because they do not act under color of state law. Stonecipher v. Bray, 653 F.2d 398 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982); Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980); Herbert v. United States Parole Commission, 585 F.2d 857 (7th Cir. 1978); andSmith v. United States Civil Service Commission, 520 F.2d 731 (7th Cir. 1975). In the amendment to his memorandum, Evans appears to agree that his claims are the four listed above. However, in his renewed motion for summary judgment, Evans, for the first time, indicates that his wrongful discharge claim falls under § 1981. A federal employer may not be sued under § 1981. Brown v. GSA, 425 U.S. 820 (1976).
Standard for Summary Judgment
When no genuine issue of any material fact exists, summary judgment is appropriate. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. Courts take special care when considering summary judgment in employment discrimination cases because states of mind and motives are often crucial issues. Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir.), cert. denied, 484 U.S. 897 (1987). This does not mean that summary judgment is never appropriate in these cases. To the contrary, "`the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'" Id. (quotingAnderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). "Genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice." Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).In this case, defendant "bears the initial burden of pointing to the absence of a genuine issue of material fact." Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citingCelotex Corp. v. Catrett. 477 U.S. 317, 322 (1986). If defendant carries this burden, "the burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact." Id. at 718-19 (citing Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986).
Moreover, "once the moving party has met his burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show there is a genuine issue for trial."Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Id. and Doyle v. Sentry Inc., 877 F. Supp. 1002, 1005 (E.D.Va. 1995). Rather, the non-moving party is required to submit evidence of specific facts by way of affidavits [see Fed.R.Civ.P. 56(e)], depositions, interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue for trial.Baber, citing Celotex Corp., supra. Moreover, the non-movant's proof must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corporation, 12 F.3d 1310, 1316 (4th Cir. 1993) andDeLeon v. St. Joseph Hospital, Inc., 871 F.2d 1229, 1233 (4th Cir. 1989), n. 7. Unsupported hearsay evidence is insufficient to overcome a motion for summary judgment. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547 (5th Cir. 1987) and Evans v. Technologies Applications Services Co., 875 F. Supp. 1115 (D.Md. 1995).
Facts
The claims in Evans I concern events between 1995 and 1997. The last allegation in Evans I asserts that Evans' transfer from North Charleston to Eastover (the SCNG Leesburg Road facility) on September 17, 1997, was due to his race and in retaliation for filing an EEO complaint on June 6, 1997. The allegations in the present complaint involve events which occurred after Evans' arrival at Eastover. In the light most favorable to Evans, the undersigned finds:
Evans I was filed in this court on December 1, 1997.
1. Evans, an African-American, was detailed to "HQ 218th Reg't (leadership), Leesburg Training Center, Columbia, S.C." ("LTC") effective September 23, 1997. (Def. Mem., Ex. 2; PL Aff., ¶ 1).
2. Evans was formally reassigned to this facility effective March 18, 1998 (Def. Mem., Ex. 4).
3. Lt. Col. Bruce Bennett ("Bennett") was the Training Administrator/Administrative Officer of LTC (Def. Mem., Ex. 5). Maj. Linda C. Rast ("Rast") was Evans' direct supervisor at LTC. (Def. Mem., Ex. 6). Evans suggests that Rast was not his supervisor, but she was "in charge." (PL Dep., p. 29).
4. According to Bennett, Evans' job performance was not what it should have been. Bennett directed Rast to develop written performance standards for Evans specifically establishing job functions and responsibilities. (Def. Mem., Ex. 5, ¶ 4),
5. According to Evans, he had no assigned duties or responsibilities after he was detailed and did "clerk stuff" while at work until the job performance standards were implemented. (PL Dep., p. 16).
6. Rast developed the job performance standards based upon a GS-7 Support Services Specialist position and delivered a copy to Evans. (Def. Mem., Ex. 6, Att. A).
7. On July 21, 1998, Bennett and Rast met with Evans to discuss the job performance standards. Evans refused to sign the job performance standards because they were written for a GS-7 position and he was a GS-8, and, in Evans' opinion, the duties were more than one individual could adequately perform. (Def. Mem., Ex. 5, ¶ 6; Pl. Dep., p. 38; Pl. Aff. 13).
8. Evans requested that Rast leave the meeting. After she left, according to Bennett, Evans became insubordinate. (Def. Mem., Ex. 5, ¶ 7; PL Dep., p. 63).
9. Bennett issued a written reprimand for insubordination based upon Evans' refusal to sign the job performance standards. (Def. Mem., Ex. 5, Att. A).
10. Rast redrafted the job performance standards to reflect a GS-8 Support Services Specialist position. Evans signed the job performance standards on July 22, 1998.
11. Evans' job performance remained sub-par. Bennett and Rast recommended that Evans enroll in two training courses to improve his job performance. Evans elected not to do so. (Def. Mem., Ex. 6, ¶ 7). Evans states that the reason he refused to enroll in the two courses recommended is that he had already taken the courses. (Pl. Aff., ¶ 4).
12. Rast counseled Evans about his performance on several occasions. On November 20, 1998, Rast placed Evans on a performance improvement program for a period of sixty days. The performance improvement program listed six specific areas related to Evans' job performance standards in which he needed improvement. Evans was advised that if he did not meet the job performance standards by the end of the performance improvement program, termination would be recommended. (Def. Mem., Ex. 6, Att. C).
13. Rast counseled and evaluated Evans' job performance pursuant to the performance improvement program on December 4, 1998, December 16, 1998, and January 12, 1999. (Def. Mem., Ex. 6, Att. D; PL Dep., p. 57).
14. On January 13, 1999, Rast extended the performance improvement program until January 22, 1999, for final counseling. (Def. Mem., Ex. 6).
15. Apparently on that date (January 22, 1999), Evans' termination was proposed and he was terminated in February of 1999. (Pl. Dep., p. 77).
16. On February 10, 1999, Evans requested an Administrative hearing regarding his removal from the technician program. By letter of February 16, 1999, from Lt. Col. Moon, the SCNG Human Resources Officer, Evans was advised that his request was denied because it was not the "appropriate venue to appeal a performance rating." Evans was further advised of the proper procedure, i.e., "to request [the] State Review and Appeals Board to review your recent performance appraisal." (Pl. Dep., Ex. 5).
17. Evans did not seek a review from the State Review and Appeals Board. (Pl. Dep., p. 89).
Defendant's motion for summary judgment is supported in part by declarations of Bennett and Rast. In his opposition memorandum, Evans argues that these declarations should not be considered as they do not comply with 28 U.S.C. § 1746. Review of the declarations show that they adequately comply with this statutory provision. Alternatively, Evans argues that if the declarations are considered, defendant's motion for "summary judgment should be denied under Fed.R.Civ.P. 806." There is no Rule 806 in the Federal Rules of Civil Procedure. If Evans is attempting to argue that the statements should not be considered because they violate Rule 806, Fed.R.Evid., the undersigned finds that rule to be inapplicable to affidavits submitted in support of a summary judgment motion.
Evans was deposed twice in connection with Evans I and this case. All references to plaintiff's deposition refer to the deposition taken on November 3, 1999.
A. Racially Hostile Work Environment
In order to prove a claim of a racially hostile work environment, a plaintiff must show: (1) that the conduct alleged was unwelcome; (2) that the harassing conduct was based on race; (3) that the harassment was sufficiently pervasive or severe to create an abusive working environment; and (4) a basis to impute liability to the employer.Swentek v. USAIR. Inc., 830 F.2d 552, 557 (4th Cir. 1987). A racially hostile work environment must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere. Carter v. Ball, 33 F.3d at 461. A plaintiff must demonstrate an objectively hostile work environment as well as his own subjective perception that the workplace environment is abusive.Harris v. Forklift Systems, Inc., 510 U.S. 295 (1993).
In a recent case, Faragher v. City of Boca Raton. 524 U.S. 775 (1998), the Supreme Court reaffirmed its previously articulated standard for determining when a plaintiff has established a hostile work environment in violation of Title VII, stating that a plaintiff must establish that the environment was "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so."Faragher. 524 U.S. 787 (citing Harris v. Forklift Systems. Inc., 510 U.S. 17, 21-22 (1993)).
Evans' racially hostile work environment claim is based solely on his contention that Rast drafted job performance standards for him that required more work than one person could perform. (Pl. Dep., pp. 61-62). Evans does not argue that the implementation of job performance standards was itself actionable. The undersigned assumes that job performance standards are standard operating procedure for an individual at Evans' level, to be used for evaluation. Evans has not shown hat the job performance standards were "objectively offensive," or offensive at all.
In the affidavit attached to the amendment to his memorandum in opposition to defendant's motion for summary judgment, Evans continues his argument that he was subject to a racially hostile work environment due to the performance standards. He states:
It is the plaintiff (sic) testimony that no unit in the South Carolina National Guard with 90 or more soldiers had one employee performing all the duties of that unit. That this is what created a hostile work environment. That once replaced by a white employee SFC Giles who (sic) duties were reduced, created the racially hostile work environment for the plaintiff. (PL Aff., ¶ 13).
Evans attempts to advance this argument by contradicting the deposition testimony of Rast. At Rast's deposition, Evans asked her if there were other SCNG units with "90 or more soldiers where one employee handles them all" (Rast Dep., 43). Rast named the 59th Troop Command as such a unit. Id. Evans then refers to "exhibit (1)" to contradict Rast. It appears Evans is referring to Exhibit 1 to his original opposition memorandum. This exhibit appears to be a copy of a page from a SCNG directory which shows the personnel assigned to the 59th Troop Command at some unspecified time. Assuming that Evans' affidavit, and its reference to the exhibit, establishes that the 59th Troop Command had more than one person performing duties similar to those performed by Evans, the undersigned concludes that this fact is immaterial to Evans' claim that he was subjected to a racially hostile work environment.
B. Discharge
In the second claim listed in the complaint, Evans asserts a Title VII claim based on "Sec. 2000e-2 . . . wrongful termination of employment." The undersigned construes this to be a disparate treatment claim for discharge based on race.
Plaintiff alleges that he was discharged from his position as a National Guard Technician due to his race in violation of 42 U.S.C. § 2000e-2(a). That statute provides:
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise 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; . . . .
This is a disparate treatment case and plaintiff must prove that "but for" his race, he would not have been terminated. Holmes v. Bevilacqua, 794 F.2d 142 (4th Cir. 1986). Plaintiff can prove defendant's motive to discriminate by two methods. First, the "plaintiff may meet this burden under the ordinary standards of proof by direct and indirect evidence relevant to and sufficiently probative of the issue. In the alternative, a plaintiff may resort to the judicially created scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine. 450 U.S. 248 (1981)." EEOC v. Clay Printing Company. 955 F.2d 936 (4th Cir. 1992).
To overcome a motion for summary judgment, under the ordinary standards of proof, plaintiff is required to "produce direct evidence of a stated purpose to discriminate (on the basis of race) and/or circumstantial evidence of a stated purpose to discriminate (on the basis of race) of sufficient probative force to reflect a genuine issue of material fact." Goldberg v. B. Green and Co., Inc., 836 F.2d 845 (4th Cir. 1988). In the absence of direct or indirect proof plaintiff can employ the McDonnell Douglas scheme to establish a prima facie case of discrimination by offering proof that:
(1) he is a member of a protected class;
(2) he was discharged;
(3) he was satisfactorily performing his duties at the time of his discharge; and
(4) after his discharge he was replaced by someone outside the protected class.EEOC v. Clay Printing Co., at 941.
Due to the endless variety of factual patterns, it is recognized that the criteria required to establish a prima facie case of discrimination should be flexible. Thus, a discharged employee may alternatively establish a prima facie case of discrimination by showing:
(1) he is a member of a protected class;
(2) he was qualified for his job and his job performance was satisfactory;
(3) he was discharged; and
(4) other employees outside the protected class were retained under similar circumstances.Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995), cert. denied, 516 U.S. 870 (1995).
If a plaintiff establishes a prima facie case, a rebuttable presumption is created that the discharge was due to unlawful discrimination.St. Mary's Honor Center v. Hicks. 509 U.S. 502, 504 (1993). The defendant must then come forward with a legitimate non-discriminatory explanation for its action. When the defendant does so, the presumption of discrimination evaporates, and plaintiff must prove that the defendants' proffered reason is pretextual and that the discharge was due to unlawful discrimination. Id,
Evans has produced no direct evidence that he was discharged due to his race. Further, Evans has failed to establish a prima facie case consistent with the above framework. First, there is abundant evidence that Evans was not performing satisfactorily. Evans admits that he was not meeting the job performance standards established by Rast and Bennett, His only excuse for this failure is that the job performance standards were written so that he could not successfully perform them. However, he has produced only his opinion on this subject. He has produced no evidence that other GS-7 or GS-8 Support Services Specialists were given less tasks to perform.
Evans appears to argue that four individuals were performing jobs similar to his at 59 Troop CMD in West Columbia. See Opposition Memorandum, p. 6 and Ex. 1 and discussion above. However, there is nothing in the record comparing Evans' job performance standards with any of these individuals or anyone else.
C. Retaliation
A Title VII plaintiff is required to show (1) that he engaged in a protected activity; (2) that an adverse action was taken against him; and (3) that there was a causal connection between the protected activity and the adverse action. Hopkins v. Baltimore Gas Electric Co., 77 F.3d 745, 754 (4th Or.), cert. denied, 519 U.S. 818 (1996). If the plaintiff succeeds in establishing a prima facie case of retaliation, the burden shifts to the defendant to rebut the presumption by articulating a non-retaliatory reason for its action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). If defendant meets it burden of production, the presumption goes away, and plaintiff bears the ultimate burden of proving that he was the victim of retaliation. St. Mary's Honor Center v. Hicks. 509 U.S. 502, 506-11 (1993).
Evans argues that he was subjected to job performance standards which he could not satisfy and that he was terminated in retaliation for the protected activities which led to Evans I. The alleged retaliatory act of imposing job performance standards on Evans fails for the same reasons discussed above. In this context, Evans failed to show that the job performance standards amounted to an adverse employment action.
With respect to the claim for retaliatory discharge, the only issue is whether there is a causal connection between Evans' protected activity and his discharge. It is clear that the relevant decision makers were aware of the protected activity at the time of the discharge. Even assuming that Evans has established a prima facie case of retaliation, defendant has rebutted the presumption by articulating a non-retaliatory reason for its action. It is uncontradicted that Evans did not meet the job performance standards. Further, Evans did not seek to improve his performance by attending the courses suggested by Bennett and Rast during the performance improvement program. An employer retains the right to evaluate an employee after the employee engaged in protected activity. Beall v. Abbott Laboratories. 130 F.3d 614 (4th Cir. 1997). Here, defendant counseled Evans about his performance and placed him on an improvement program. When Evans' job performance failed to improve, he was terminated.
D. Wrongful Termination
Evans appears to assert that defendant violated Title VII by failing to respond to his grievance as he believes was required. Evans argues that the procedure suggested by defendant, i.e., that he file a request with the State Review and Appeals Board, was incorrect since he wished to challenge his termination, not the performance evaluation upon which his termination was based.
Evans alleges this to be a violation of § 2000e-2 and then states that it is a violation of his "(r)ight to petition the government for redress of a grievance." Nothing in Title VII creates a right of a federal or state employee to petition the government. The only way such a claim would be appropriate under Title VII would be to show that he was denied a statutory right to follow a grievance procedure based on his race. He has made no such allegation and has produced no evidence to suggest that this was the case.
During his deposition, Evans stated that this claim was a breach of contract (PL Dep., p. 82).
Conclusion
Plaintiff has failed to produce sufficient evidence to support any of his claims. It is, therefore, ordered that plaintiffs motions for summary judgment are denied and that defendant's motion for summary judgment is granted. Additionally, plaintiffs motions for a hearing and to proceed in forma pauperis are denied.
AND IT IS SO ORDERED.
NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified that he has the right to appeal this order within thirty(30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.