Opinion
EP-04-CA-0154-DB.
March 20, 2006
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant Alberto R. Gonzales's "Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment," filed in the above-captioned cause on April 29, 2005. On May 20, 2005, Plaintiff filed its "Response To Plaintiff's Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment" ("Response"). On June 1, 2005, Defendant filed a "Reply to Plaintiff's Response And Supplement To Defendant's Motion For Summary Judgment." After due consideration, the Court is of the opinion that, as to the gender discrimination and retaliation claims, Defendant's motion shall be construed as a Motion to Dismiss. As to the hostile work environment claim, the Court construes the instant Motion as one for summary judgment. In both instances, the Court finds that the Motions should be granted.
BACKGROUND
This is an employment discrimination case. On October 22, 2001, Plaintiff began employment with the Drug Enforcement Administration ("DEA") Field Office in El Paso, Texas as an Administrative Technician, General Schedule (or "GS")-303, Step 5. Administrative Officer ("AO") Toby Shahin ("Shahin") interviewed Plaintiff, recommended he be hired, and told him that he was on probation. Shahin, who is a woman, was his immediate, or first-line supervisor, and was responsible for monitoring his everyday activities. Plaintiff's second-line supervisor was Assistant Special Agent In Charge ("SAC") Larry Holifield ("Holifield"), a non-Hispanic male. The third-line supervisor was SAC Sandalio Gonzalez ("Gonzalez"), a Hispanic male.On January 17, 2002, the Administrative Support Section had a luncheon to celebrate Plaintiff's birthday. Shahin gave Plaintiff a $20 car vacuum cleaner for his birthday. Shahin embraced him and kissed him on the right cheek in front of another employee. Plaintiff did not tell Shahin or anyone else in management that the kiss offended him. On two other unspecified occasions, Shahin approached Plaintiff while he was talking with another employee and put her arm around Plaintiff's waist. On February 4, 2002, Shahin threw two envelopes onto Plaintiff's desk so that they fell on his lap. At about this same time, when Shahin discovered that the copy machine did not have any paper, she yelled "God damn it Eli!" because he had failed to fill the copier with paper. On March 19, 2002, Plaintiff reported to Shahin that he hurt his back while walking the family pet and was taking a day of sick leave. He did not report to work from March 19 to March 22, 2002, and failed to call in to work to report that he would be taking additional leave for the remainder of the week. On March 25, 2002, Shahin met with Plaintiff to discuss DEA's sick leave policies. On April 1, 2002, Shahin asked him, "Did you get laid?" Also in April, 2002, Gonzalez came into Plaintiff's work area and asked if the air conditioner was working in his office. As Gonzalez was leaving, Shahin commented "[Gonzalez] should take off his shirt, he'd look good without it."
On April 23, 2002, Holifield decided Plaintiff should be reassigned under the supervision of Assistant AO Susan Deemer ("Deemer"), but postponed the move because Deemer was going on annual leave. That same day, Plaintiff had his initial interview with an Equal Employment Opportunity ("EEO") counselor. In May, 2002, Plaintiff stopped talking to Shahin altogether, so Gonzalez separated Shahin and Plaintiff. Plaintiff was not reassigned but Shahin became his second line supervisor. On May 8, 2002, Plaintiff filed a formal complaint of discrimination with the Equal Employment Opportunity Commission ("EEOC"), which was received on May 14, 2002. On May 15, 2002, Holifield met with Gonzalez, Shahin, Deemer, and Plaintiff. Holifield told Plaintiff he would be moved to a different work area and that Holifield would not tolerate retaliation from anyone. On May 28, 2002, Plaintiff was moved under Deemer's supervision. In June, 2002, Deemer gave Plaintiff a leave restriction letter because Plaintiff had taken 119 hours of sick leave in 32 weeks. She told Plaintiff that the leave restriction letter was not a disciplinary measure but a counseling measure.
In 2002, an Administrative Law Judge ("ALJ") was assigned Plaintiff's 2002 EEO discrimination complaint alleging gender discrimination, sexual harassment, retaliation and a hostile work environment. An Administrative Hearing was held on September 10, 2003. Plaintiff was represented by counsel at the hearing. During the pretrial conference, Plaintiff claimed that his DEA supervisors retaliated against him in the following ways: (1) In May 2002, he was reassigned under the supervision of Deemer; (2) On June 12, 2002, he was given an unacceptable rating on a non-critical element in an interim evaluation; (3) On June 6, 2002, he was given a sick leave restriction letter; (4) In June, 2002, he received a rude e-mail one from one co-worker and a rude comment from another; and (5) In August 2002, Deemer inquired where he had been when he had gone to the post office. In December 2003, the ALJ issued her Recommended Decision. The ALJ found that there was no evidence of sexual harassment and that Plaintiff's claims of reprisal, except for the interim evaluations, should be dismissed. The ALJ found that under EEOC authority, an interim evaluation can constitute an adverse action. The Final Agency Decision ("FAD") upheld the ALJ opinion regarding the dismissal of the sexual harassment claims and dismissed the reprisal claims. However, the FAD found that the ALJ had misapplied the law in its finding of reprisal regarding the interim evaluation. The Agency's appeal of the ALJ's decision was pending before the EEOC on April 19, 2004, when Plaintiff filed the instant cause of action. The instant Motions followed.
DISCUSSION
Plaintiff's Original Complaint asserts claims of gender discrimination, retaliation, and hostile work environment, in violation of Title VII of the Civil Rights Act. 42 U.S.C.A. § 2000e-2(a)(1) (West 1994). Title VII of the Civil Rights Act makes it illegal for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Id. The Court first addresses Defendant's Motion to Dismiss the gender discrimination and retaliation claims. Next, the Court determines the merits of the Motion for Summary Judgment on the hostile work environment claim.
A. Motion To Dismiss
Through the instant Motion to Dismiss, Defendant prays the Court dismiss Plaintiff's gender discrimination and retaliation claims for lack of subject matter jurisdiction for failure to his exhaust administrative remedies, pursuant to Federal Rule of Civil Procedure 12(b)(1). A federal employee pursuing a Title VII claim must first exhaust his administrative remedies by filing a charge with the EEOC, before filing a judicial complaint. See 42 U.S.C.A. § 2000e-5(f)(1); Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997). The aggrieved employee must initiate contact with the agency's EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory. 29 C.F.R. § 1614.105(a)(1). Timely exhaustion of administrative remedies is an absolute prerequisite to federal subject matter jurisdiction. Frances v. Brown, 58 F.3d 191, 192 (5th Cir. 1995). "The exhaustion requirement ensures that: (1) the EEOC has an opportunity to fulfill its statutory duty to investigate the charge of discrimination, and (2) the employer has notice of the alleged discrimination so it can take appropriate measures to correct or remedy the discrimination." Johnson v. MBNA Hallmark Information Services, Inc., No. 3:02-CV-0177-K, 2003 WL 21418670, at *1 (N.D. Tex. Jun. 16, 2003). 1. Gender Discrimination
Plaintiff's Original Complaint loosely alleges a host of discrimination claims, which the Court collectively construes as a claim of gender discrimination. In Count One of Plaintiff's Original Complaint, he alleges he was discriminated against based on his gender. In the same paragraph, he indicates that he suffered "adverse employment consequences as a direct result of sex (gender)" and that he suffered "sex discrimination/sexual harassment." Defendant asserts in his Motion to Dismiss that Plaintiff failed to exhaust his administrative remedies and that the Court has no jurisdiction over the gender discrimination claim. The Court agrees with Defendant.
Plaintiff alleges that he was subjected to discrimination on January 17, 2002, during his birthday celebration, when Shahin embraced and kissed him on the right cheek. Plaintiff also claims that Shahin discriminated against him when, on February 4, 2002, Shahin threw letters at him and said, "God damn it Eli!" when the copier was out of paper. In order to exhaust his administrative remedies as to these incidents, federal regulations required Plaintiff to contact an EEO counselor by March 3 and March 21, 2002, respectively. See 29 C.F.R. § 1614.105; 42 U.S.C.A. § 2000e-5(f)(1); Barnes, 118 F.3d at 408. Plaintiff, however, did not contact a counselor until April 18, 2002. The length of time between the incidents and Plaintiff's contacting an EEO counselor was beyond 45 days. Thus, the Court concludes that Plaintiff failed to timely exhaust his administrative remedies with regards to his claim for gender discrimination. Accordingly, the Court finds that, pursuant to 42 U.S.C. § 2000e-5(f)(1), it lacks jurisdiction over this claim, and it should therefore be dismissed.
2. Retaliation
In his Original Complaint, Plaintiff also alleges he "suffered adverse employment consequences as a direct result of his participation in or assistance in prior EEOC processes, and for opposing discrimination in the work place." The only conceivable adverse employment consequence the Court can discern from Plaintiff's allegation is that he was not promoted a paygrade to General Schedule 6 ("commonly referred to as level "GS-6") level in October, 2002. Therefore, the Court understands Plaintiff to allege that he was retaliated against when he did not receive a pay upgrade in October, 2002. In his Motion to Dismiss, Defendant argues that Plaintiff failed to exhaust his administrative remedies regarding this claim. The Court agrees.
Plaintiff filed his EEOC complaint on May 8, 2002. On September 9, 2003, an Administrative Hearing was held regarding the allegation of retaliation. After a request for a hearing is made, the complainant must move to amend his complaint with the Administrative Law Judge ("ALJ"). See 29 C.F.R. § 1614.106. The administrative hearing was held on September 10, 2003 — almost one year after Plaintiff claims he should have received the promotion. At the hearing, the ALJ noted that Plaintiff never presented that he should have been upgraded to a GS-6. During the pretrial conference, the ALJ specifically asked Plaintiff to identify his claims of retaliation. Plaintiff identified the following five workplace incidents: (1) In May 2002, he was reassigned under the supervision of Deemer; (2) On June 12, 2002, he was given an unacceptable rating on a non-critical element in an interim evaluation; (3) On June 6, 2002, he was given a sick leave restriction letter; (4) In June, 2002, he received a rude e-mail one from one co-worker and a rude comment from another; and (5) In August 2002, Deemer inquired where he had been when he had gone to the post office.
Plaintiff made no mention of his not being promoted in October, 2002. Plaintiff, who was represented by counsel at the hearing, had ample opportunity to amend his complaint to include his not being promoted. He also had a forum in front of the ALJ in which he could have identified his not being promoted. Thus, the Court is of the opinion that Plaintiff has failed to exhaust his administrative remedies because he did not raise the DEA's failure to promote him to the ALJ. Therefore, pursuant to 42 U.S.C. § 2000e-5(f)(1), the Court lacks jurisdiction over Plaintiff's retaliation claim, and it should be dismissed. Having dissected Defendant's Motion to Dismiss, the Court next turns to Defendant's Motion for Summary Judgment.
B. Motion for Summary Judgment
Plaintiff also alleges, in his Original Complaint and pleadings, that Shahin subjected him to a hostile work environment. Through the instant Motion for Summary Judgment, Defendant prays the Court grant summary judgment on this claim pursuant to Federal Rule of Civil Procedure 56(c). Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. Lemelle, 18 F.3d at 1272. The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id. A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex, 477 U.S. at 325. To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). Once the movant carries the initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson, 477 U.S. at 250 n. 4.
Plaintiff contends, in his Original Complaint and pleadings, that Shahin harassed him and subjected him to a hostile work environment. Defendant counters that there is no genuine dispute about any material fact with regard to Plaintiff's hostile work environment claim and that Defendant is entitled to judgment as a matter of law. The Court agrees with Defendant.
A prima facie case of harassment alleging hostile work environment normally consists of five elements: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based on the protected status; (4) the harassment complained of affected a term, condition, or privilege of employment; (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Felton v. Polles, 315 F.3d 470, 483 (5th Cir. 2002); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001). "[W]here the harassment is allegedly committed by a supervisor with immediate (or successively higher) authority over the harassment victim, the plaintiff employee needs to satisfy only the first four of the elements listed above." Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Actionable harassment must involve "discriminatory intimidation, ridicule and insults." Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000); Harris v. Forklift Systems, Inc., 510 U.S. 7, 21 (1993). "Implicit or explicit in the sexual content [of the harassment must be] the message that the plaintiff is incompetent because of his sex." Butler v. Ysleta Independent School Dist., 161 F.3d 263, 270 (5th Cir. 1998). Thus, "sex-neutral hostile conduct cannot be used to support a hostile environment claim. Title VII does not protect employees from hostile conduct that is not based on their protected status." Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 n. 2 (5th Cir. 1996) (citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995)).
Here, the Court finds no evidence that Shahin's treatment unreasonably interfered with Plaintiff's work performance, the fourth element of a prima facie case for hostile work environment. Felton, 315 F.3d at 483. The record reveals that Plaintiff was never kept from completing his work assignments and that he received an "Acceptable" evaluation for the time period of the allegations. Plaintiff does not allege he was intimidated by Shahin; only that she was "unprofessional." If the workplace is unsavory for any reason other than hostility generated on the basis of gender, no federal claim is implicated. See Vore v. Indiana Telephone Co., Inc., 32 F.3d 1161 (7th Cir. 1994) In short, personality conflicts between employees are not the business of the federal courts. Id. Here, there is no doubt that there was tension between Shahin and Plaintiff. Plaintiff stopped talking to Shahin in May, 2002. The Fifth Circuit recognized that in a workplace, some workers will not get along with one another but it refused to elevate a few harsh words or `cold shouldering' to the level of an actionable offense. McConathy v. Dr. Pepper/Seven-Up Corp., 131 F.3d 558, 564 (5th Cir. 1998). The Court, similarly, is not going to elevate the instant personality conflict to the level of an actionable offense. The Court is of the opinion that the environment here was not the demeaning, intimidating or poisoned atmosphere that Title VII was meant to protect against.
Plaintiff specifically identifies two April, 2002 comments in his Original Complaint. But Plaintiff does not illustrate how these comments unreasonably interfered with his work performance. Shahin asking Plaintiff, "Did you get laid?" and said Gonzalez "should take off his shirt, he'd look good without it." Plaintiff claims the Gonzalez comment occurred in front of co-workers Anthony Stopyra, Pat Rosales, Marina Griffin, and Bertha De La Vega. However, these employees told the EEO investigator but they did not recall hearing any inappropriate jokes or comments. Three of these employees — De La Vega, Stopyra, and Rosales — further stated that they had not witnessed Shahin engage in any overtly sexual conversations. After scouring the record here, it is clear that Plaintiff provides no evidence that any of these comments interfered with his work performance. Thus, the Court finds that at no time was Plaintiff unable to perform his work as a result of Shahin's conduct. If the actions ascribed to the supervisor by the employee do not constitute severe or pervasive sexual harassment, the employer is not vicariously liable. Casiano v. ATT Corp., 213 F.3d 278, 284 (5th Cir. 2000). Plaintiff fails to establish a prima facie case of a hostile work environment. See Felton, 315 F.3d at 483. Therefore, Defendant is not liable, and Plaintiff's claims of a hostile work environment fail.
CONCLUSION
For the reasons stated, the Court finds that it lacks jurisdiction over Plaintiff's gender discrimination and retaliation claims, and that said claims should be dismissed. Further, the Court finds that the evidence, when viewed in its totality and in the light most favorable to Plaintiff, is insufficient to create a genuine issue of material fact as to Plaintiff's hostile work environment claim and that Defendant is entitled to judgment as a matter of law. Accordingly, the Court is of the opinion that Defendant's Motion to Dismiss and Motion for Summary Judgment should be granted and that the following orders should enter:
IT IS HEREBY ORDERED that Defendant Alberto R. Gonzalez's "Motion To Dismiss" is GRANTED. IT IS FURTHER ORDERED that Defendant Alberto R. Gonzalez's "Motion For Summary Judgment" is GRANTED. IT IS FURTHER ORDERED that the above-captioned cause is DISMISSED WITH PREJUDICE. IT IS FINALLY ORDERED that all other motions, if any, are DENIED AS MOOT.