Opinion
Civil Action No. DKC 2000-1887.
January 12, 2001.
MEMORANDUM OPINION
Pending before the court and ready for resolution in this employment discrimination case is the motion for summary judgment of Defendant, James Lee Witt, Director of the Federal Emergency Management Agency ("FEMA"). No hearing is deemed necessary, and the court now rules pursuant to Local Rule 105.6. For the reasons that follow, the court shall grant Defendant's motion.
For ease of discussion and clarity, the court uses the pronoun "it" to refer to "Defendant" throughout the opinion. This reference is to FEMA.
I. Background
The following recitation of facts are undisputed or presented in the light most favorable to Plaintiff. Gary M. Gaskins, Sr., Plaintiff, a 51-year-old black male of Native-American ancestry and a Maryland resident, alleges that he was fired because of his race, color, gender, national origin, and age in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1), et seq. He further alleges that Defendant retaliated against him because he complained about the mistreatment of his wife. Mrs. Gaskins, also a former FEMA employee, suffers from carpel tunnel syndrome. Moreover, Plaintiff claims Defendant discriminated against him because he filed charges of discrimination with an Equal Employment Opportunity ("EEO") officer. He further claims that one of the ways Defendant retaliated against him was by removing a telephone from his desk.
Plaintiff was hired on July 28, 1997 as a Disaster Temporary Employee ("DTE") Information Management Assistant in the Computer Operations Department ("COPS") at a FEMA site, located in Hyattsville, Maryland. FEMA, among other things, coordinates and administers the government's response to situations that the President of the United States declares disasters. Paper no. 11 at
3. To carry out its functions, FEMA is authorized by statute to hire temporary personnel. According to Defendant, these employees are sometimes "released" on short notice because of the unpredictable nature of when disasters will occur. Upon being hired, Plaintiff signed a form indicating that he understood and agreed with the short-term character and other conditions of his employment. Paper no. 11, Defendant's exhibit 3.
The standard FEMA notice that Gaskins signed states "[y]our appointment is for one year, although your current assignment will probably be much shorter than that. When our workload declines and you are released, you will retain your appointment, although you will not be paid. If disaster activity increases in the future, and if your work with us has been satisfactory, FEMA may contact you to ask if you can come back to work." Paper no. 11, Defendant's exhibit 3.
There were 16 DTE Information Management Assistants in COPS while Plaintiff was employed there. Plaintiff was the only black male. The other 15 included one white male, one white female, and 13 black females. Defendant points out and Plaintiff does not dispute that none of these DTE staff members were trained in any other capacity. Paper no. 11, at 4. However, Plaintiff contends that during training, they were all told they would be cross-trained on various jobs of disaster operations assistance. Paper no. 14, Affidavit of Gary M. Gaskins (hereinafter "Plaintiff's exhibit 1"), ¶ 3.
Plaintiff contends that during his tenure with FEMA, the telephones on employees' desks in COPS were restricted such that employees could not access an outside line. Plaintiff asked why this had been done and was told that management was concerned about possible abuse of the telephones. Id., ¶ 9. Plaintiff does not dispute that there were telephones available for employees in the break room and at other locations in the building for emergency or private use. Paper no. 11 at 6. Plaintiff asserts, however, that a month after his initial inquiry concerning the limited access of the telephones on employees' desks, he again raised the subject during a staff meeting with Paulette Lamp, acting supervisor. In response to Plaintiff's question, Lamp allegedly hollered at him, suggesting that he might not need a telephone and that perhaps the DTE department was wrong for him. Plaintiff's exhibit 1, ¶ 15.
Defendant claims that during the staff meeting, Plaintiff advised Lamp that he wanted the telephone on his desk removed, and it was. The telephone was returned to his desk within 24 to 48 hours. Paper no. 11, at 6.
As a result of the incident with the telephone, Plaintiff asked Tracy Haynes, then acting facility director, if he could transfer to another department. Plaintiff explained that Lamp had created a "hostile environment" by "hollering" at and "harassing" him. Plaintiff's exhibit 1, ¶ 26. Apparently, later that day, Gaskins again approached Haynes about a transfer, and the latter told him that there was nothing he could do because the company had implemented a no-transfer policy. Defendant explains that because of the short-term nature of DTE positions, permitting transfers was not feasible. Plaintiff pointed out to Haynes that another employee, Inez Henry, a black female, had moved to another department. Haynes explained that the policy did not preclude management from transferring employees to other departments for disciplinary reasons. Lamp and Henry had an altercation, so Lamp wanted Henry removed from the COPS section. Id. at ¶ 38.
The name is spelled "Haines" in other places in the record. See e.g., Paper no. 11, Defendant's exhibit 5.
Plaintiff also contends that another employee, Rosa Cruz, was transferred. Defendant asserts, however, that Cruz was not transferred but that a new position opened up, for which she applied, interviewed, and was hired.
Gaskins also claims he spoke with Ira Mills, FEMA's EEO counselor, about his altercation with Lamp because he felt he was a "victim" and that his rights had been violated. Mills gave Plaintiff "paperwork" to complete. Plaintiff's exhibit 1, ¶ 34. In September 1997, Judith Brothman replaced Mills. Gaskins informed Brothman about the paperwork that he allegedly had given to Mills, but Brothman told him that she could find no such paperwork.
On December 19, 1997, five COPS' employees were released because of decreased workload. Later that month, two more employees, including Plaintiff, were released for the same reason. Defendant asserts, and Plaintiff does not dispute, that FEMA's policy is to release first those employees with the least amount of seniority. If all employees share the same seniority status, the policy is to release employees based on work performance. After the initial five employees were released on December 19, seven remained, all of whom started with FEMA on the same day. Of the seven, Plaintiff ranked seventh in production. Id., Paper no. 11, Defendant's exhibit 10, attachment A. The other employee who was released ranked sixth.
In August 1997, Plaintiff received a poor job evaluation. The evaluation, signed by Lamp, states that "Gaskins' performance is below normal expectations. I feel Mr. Gaskins' performance could improve over time with one-on-one training. Gary needs to become involved in group training and discussions rather than napping." Paper no. 11, Defendant's exhibit 8.
Plaintiff asserts that this employee was not released but resigned.
While Plaintiff contends he filed a complaint with Mills in 1997, there is no documentation to support this claim. Defendant asserts that Plaintiff did not contact an EEO counselor until January 22, 1998 and was interviewed by a counselor four days later. The parties were scheduled for a hearing before an administrative law judge on February 24, 2000. However, Plaintiff voluntarily dismissed his EEO action without resolution and filed this action in the United States District Court for the District of Columbia. That court transferred the case to this court. Paper no. 7.
In fact, Brothman's report regarding Plaintiff's claim states that his initial contact with an EEO counselor regarding any of his claims occurred on January 22, 1998. Plaintiff contends that this was error. In his FEMA discrimination complaint, dated March 4, 1998, Plaintiff does assert that he previously had filed a claim with Mills. Paper no. 11, Defendant's exhibit 14.
Defendant submitted a motion to dismiss or in the alternative for summary judgment. Plaintiff does not oppose converting the motion, and further, directs the court to consider his brief using summary judgment standards. Paper no. 14, ¶ 4. Moreover, both parties rely on affidavits and other documents outside of the pleadings. Fed.R.Civ.P. 12(b) (proper to convert motion when the court considers matters the parties have presented to it that are outside of the pleadings); see also Fed.R.Civ.P. 56(a). Thus, the court will consider this motion as one for summary judgment.
II. Standard of Review
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co., Inc. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., Ltd., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing that there is no genuine issue of material fact. Fed.R.Civ.P. 56(c); Pulliam, 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
When ruling on a motion for summary judgment, the court must draw all reasonable inferences in favor of and construe the facts in the light most favorable to the non-moving party. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 437 (4th Cir. 1998). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256.
In Celotex, the Supreme Court stated:
In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."
Celotex, 477 U.S. at 324. However, "`a mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984) (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967)). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."
Anderson, 477 U.S. at 249-50 (citations omitted).
III. Analysis
A. Title VII and ADEA discrimination claims
Plaintiff presents no direct evidence of discrimination, and thus the court turns to the framework as outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to analyze his claims. Plaintiff must first establish a prima facie case of discrimination, the elements of which will vary depending on the type of discrimination and facts alleged. Gower v. United States Fidelity Guaranty Co., 892 F. Supp. 730, 734 (E.D.N.C. 1994) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)) (further citation omitted). If Gaskins establishes a prima facie case of discrimination, Defendant must advance a legitimate nondiscriminatory reason for the employment decision at issue. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2106 (2000) (citation omitted). The presumption of discrimination drops out once a defendant has advanced such a reason. Id. A plaintiff must then be allowed to show by a preponderance of the evidence that the defendant's reasons were pretext for discrimination. Id. (citations omitted). Gaskins retains the ultimate burden of persuading the trier of fact that Defendant purposefully discriminated against him. Id.
Plaintiff asserts that the following adverse actions were taken against him: (1) he was placed in a position for which he was overly qualified; (2) Defendant allowed team leaders to unfairly distribute work to DTEs; (3) Defendant failed to make him a team leader or rotate the lead positions; (4) Defendant failed to cross train Plaintiff; (5) Plaintiff was denied a transfer, which he requested; (6) Defendant removed Plaintiff's telephone from his desk; and (7) Defendant released Plaintiff, but then hired new employees, who were younger, female, and largely, but not exclusively, Caucasian. Paper no. 1, ¶¶ 3-8.
Defendant argues that Plaintiff has failed to exhaust his administrative remedies with respect to the first six actions listed above because he did not file charges with an EEO counselor within 45 days of these occurrences. Paper no. 11, at 10-12; see Labor, 29 C.F.R. § 1614.105(a)(1), 107(a)(2) (2000) (aggrieved party must file complaint with EEO counselor within 45 days of discriminatory event; failure to comply with time limits merits dismissal of complaint by agency); see also Benford v. Frank, 943 F.2d 609, 612 (6th Cir. 1991) (affirming summary judgment for defendant, as plaintiff failed to file a complaint with an EEO counselor within the requisite time period); Zografov v. V.A. Medical Ctr., 779 F.2d 967, 969 (4th Cir. 1985) (complaint dismissed as plaintiff failed to exhaust administrative remedies by contacting EEO counselor within proper time period, and record showed no misconduct on defendant's part justifying estopping defendant from asserting as a defense plaintiff's failure to act timely).
Plaintiff has produced no documentation showing that he filed a complaint with an EEO counselor prior to January 22, 1998, or that those six incidents occurred within 45 days of January 22. Plaintiff, however, contends that all the events listed above show a continuing pattern of employment discrimination, which culminated in his termination. Paper no. 14, ¶ 3. Thus, he argues that under the "continuing violation," doctrine that "his statement of discrimination [regarding his release and failure to be rehired] within the time period . . . revives the incidents that may have transpired before the limitation period." Id. at ¶¶ 3, 5; see also Beall v. Abbott Laboratories, 130 F.3d 614, 620 (4th Cir. 1997) (discriminatory incidents that are not timely raised in the administrative process are barred "unless they can be related to a timely incident as a `series of separate but related acts' amounting to a continuing violation.") (citing Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980) (per curiam)). If the theory is to apply, Plaintiff must show that a "timely violation" occurred. Id. at 621 (citing Woodard v. Lehman, 717 F.2d 909, 915 (4th Cir. 1983)). Plaintiff cites his release and failure to be rehired as the timely violations. Neither theory helps Plaintiff, however, as he fails to establish a prima facie case to support a discriminatory work force reduction or a failure to hire claim.
Plaintiff faces another obstacle in that many of the events about which he complains — for example, the removal of his telephone and the fact that he interviewed for and was hired for a position for which he now complains he was over-qualified — do not constitute adverse employment actions. See Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999) (explaining that adverse employment actions include discharge, demotion, decrease in pay or benefits, loss of job title or supervisory duties, significant change in benefits and, in some cases, reassignment) (citations omitted).
Defendant classifies Plaintiff's release as one of a reduction in work force. Plaintiff did not raise any objection to this classification in his opposition to Defendant's motion for summary judgment.
1. Work force reduction claim
To establish a prima facie case of discrimination for reduction in work force under the ADEA or Title VII, Plaintiff must show that (1) he was protected by the statute; (2) he was chosen for release from a larger group of candidates; (3) he was performing at a level substantially equivalent to the lowest level of the those of the group retained; and (4) the process of selection produced a work force containing persons substantially younger, or otherwise outside the protected group, than Plaintiff who were performing at a level lower than that at which he was performing. Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 430 (4th Cir. 2000) (ADEA case) (citing O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996); Burns AAF-McQuay, Inc., 96 F.3d 728, 731 n. 1 (4th Cir. 1996)); see also Rudolph v. Hechinger Co., 884 F. Supp. 184, 187 (D.Md. 1995) (applying substantially the same factors in a Title VII case) (citing Duke v. Uniroyal Inc., 928 F.2d 1413, 1418 (4th Cir. 1991)).
Defendant has produced a detailed report regarding the production of the seven employees who were eligible for release after December 19, 1997. Plaintiff ranked seventh and was released along with the employee who ranked sixth. Thus, he fails prong three of his prima facie case. Further, he has failed to identify a single employee with a similar performance record and outside of his protected status (i.e., age, race, color, national origin, or gender) who was retained. Consequently, he falls short on prong four as well. While Plaintiff argues that his work was not unsatisfactory, his own assessment is irrelevant. See Beall, 130 F.3d at 619-20 (explaining that "an employer is free to set its own performance standards, provided such standards are not a `mask' for discrimination) (quoting Palucki v. Sears Roebuck Co., 879 F.2d 1568, 1571 (7th Cir. 1989)).
Moreover, Defendant had the right to release or discharge Plaintiff for any reason or for no reason, as long as the reason was not the result of unlawful discrimination. McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 512 (8th Cir. 1995) ("[A]n employer has the right to . . . assign work, to change an employee's duties, to refuse to assign a particular job, and to discharge — for good reason, bad reason, or no reason at all, absent intentional . . . discrimination.") (quoting Walker v. AT T Phone Ctr., Inc., 995 F.2d 846, 849-50 (8th Cir. 1993); Neufeld v. Searle Laboratories, 884 F.2d 335, 340 (8th Cir. 1989); Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 n. 3 (8th Cir. 1985), cert. denied, 475 U.S. 1050 (1986)). Plaintiff has produced no evidence indicating that an unlawful discriminatory motive played a role in his release or discharge.
2. Failure to hire claim
To establish a prima facie case in a failure to hire claim under Title VII Plaintiff must prove: (1) he belongs to a protected group; (2) he applied for the position; (3) he was qualified for the position; and (4) he was rejected for reasons that give rise to an inference of unlawful discrimination. See Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1997) (citing McDonnell Douglas Corp., 411 U.S. at 802; Alvarado v. Board of Trustees of Montgomery Community College, 928 F.2d 118, 121 (4th Cir. 1991)); see also Nguyen v. Dalton, No. 95-2269, 1996 WL 469904, at *3 (4th Cir. Aug. 20, 1996) (listing same factors for failure to promote claim under ADEA). As mentioned above, Plaintiff signed a notice explaining that whether he would be rehired was up to FEMA and would be based on his work being satisfactory. Defendant has shown Plaintiff's work was substandard. Thus, Plaintiff has failed to show he was qualified for the position.
Plaintiff contends that after his release, Defendant hired younger females and a mostly, but not exclusively, Caucasian staff. These facts fall far short of giving rise to an inference that he was rejected because of unlawful discrimination.
Even drawing all inferences in favor of Plaintiff, he fails to establish a prima facie case of discrimination for either a work force reduction or failure to hire claim. Consequently, no timely violation occurred within the 45 days that Plaintiff contacted an EEO counselor, and Plaintiffs claims of discrimination under either Title VII or ADEA will be dismissed.
Assuming Plaintiff had established a prima facie case for either work force reduction or failure to hire, he still has failed to rebut Defendant's legitimate, non-discriminatory reasons for its decisions, i.e., his well-documented poor work performance.
B. Retaliation
"[T]o establish a prima facie claim of retaliation in violation of Title VII, . . . a plaintiff must show that `1) the employee engaged in protected activity; 2) the employer took adverse employment action against the employee; and 3) a causal connection existed between the protected activity and the adverse action.'" Munday v. Waste Management of North America, Inc., 126 F.3d 239, 242 (4th Cir. 1997) (quoting Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985)); see also Causey, 162 F.3d at 803 (same factors apply to ADEA claims) (citing Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994)). The McDonnell Douglas burden shifting scheme also applies to retaliation claims. Id. (citations omitted).
Plaintiff alleges that he was retaliated against, presumably by being released, for filing an EEO complaint and for complaining about Defendant's mistreatment of his wife, who suffered from carpel tunnel syndrome. During his deposition, Plaintiff could not remember a specific instance in which someone mentioned his wife's disability. Further, Plaintiff admits that he never mentioned his wife's disability to his supervisors. Paper no. 11, Defendant's exhibit 7, at 130. As Plaintiff admits that he never spoke with his superiors about his wife's disability, he cannot now claim that he was released because he complained about it.
The record shows that Defendant accommodated Mrs. Gaskin's disability. Paper no. 11, Defendant's exhibit 1, ¶ 14 (explaining that Defendant purchased special software for Sandra Gaskins, and when that proved unsuitable, it purchased new software, which she used until she resigned in March 1998).
Accordingly, Plaintiff has failed to show a causal connection between his release and his alleged complaints.
Finally, there is no evidence, other than Plaintiff's own assertion, that he filed an EEO complaint before he was notified that he would be released. The record shows that Plaintiff was notified on January 9, 1998 that he would be released on January 16 and that he did not file an EEO complaint until January 22. Id., Defendant's exhibits 11, 14. Thus, there is no causal connection between his filing a complaint and his release.
Nevertheless, even if the court accepted that Plaintiff had filed an earlier complaint and that Defendant had knowledge of it, and even if Plaintiff met his prima facie case for a retaliation claim, he still has failed to rebut Defendant's legitimate reason for releasing and declining to rehire him, i.e., his poor work performance. See Simmons v. Shalala, 946 F. Supp. 415, 420 (D.Md. 1996) ("Mere knowledge on the part of an employer that the employee it is about to fire has filed a discrimination charge is not sufficient evidence of retaliation to counter the substantial evidence of legitimate reasons for discharging that employee present in this case.") (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir. 1989)). Thus, Plaintiff's retaliation claim fails.
IV. Conclusion
For the foregoing reasons, the court shall grant Defendant's motion for summary judgment.
A separate Order will be entered.
ORDER
In accordance with the accompanying Memorandum Opinion, IT IS this ____ day of January, 2001, by the United States District Court for the District of Maryland, ORDERED that:
1. The Motion for Summary Judgment by Defendant James Lee Witt, Director Federal Emergency Management Agency, BE, and the same hereby IS, GRANTED;
2. Judgment BE, and the same hereby IS, ENTERED in favor of Defendant and against Plaintiff on all claims; and
3. The Clerk is directed to transmit a copy of the Memorandum Opinion and this Order to counsel for the parties and CLOSE this case.