Opinion
00 Civ. 8097 (HB)
June 29, 2001
OPINION ORDER
Plaintiff, an Hispanic employee of the Department of Education ("DOE"), brings this action claiming that the DOE retaliated against him for filing complaints with the Equal Employment Opportunity Commission ("EEOC") in 1989 and 1990 in violation of Title VII. The defendant has moved for summary judgment, and, for the following reasons, defendant's motion is granted.
The relevant facts can be briefly stated. Plaintiff was employed by the DOE from 1979 until his retirement in 2000, first as a compliance investigator and then as a criminal investigator. Both of these positions involved the investigation of fraud against the DOE. In 1980, Regional Inspector General for Investigation John Devlin became the plaintiff's supervisor and remained his supervisor until Devlin's retirement in 1995. During this period plaintiff was promoted to grade GS- 12 and then to grade GS- 13. Over the course of plaintiff's twenty-one years of employment with the DOE, he received performance ratings of "Fully Successful" every year, except in 1982, when he received a performance rating of "Superior".
In 1989 and again in 1990, Plaintiff filed an EEOC complaint against the DOE on the ground that Devlin had discriminated against him because of his race by giving him "Fully Successful" annual ratings when he deserved higher ratings and by giving other agents credit for accomplishments that they did not deserve. For example, plaintiff contended that Special Agent Linda Acevedo-Biehl received an "Outstanding" rating for her work in uncovering what turned out to be an $11 million case when, in fact, Ms. Acevedo-Biehl was not the one who uncovered the case. These claims were rejected by the administrative law judge, whose decision was adopted as the final agency decision and upheld by the EEOC.
Plaintiff filed yet another EEOC complaint on December 7, 1992, and this lawsuit stems from that complaint. There, plaintiff alleged that the DOE, specifically his supervisor Mr. Devlin, retaliated against him for filing the previous EEOC complaints in 1989 and 1990, and it is this claim that is before me now.
Although plaintiff filed his claim with the EEOC in 1992, due to the many procedural twists within that agency that are not relevant to the merits of this case, plaintiff's claim is timely.
To establish a prima facie case of retaliation, a plaintiff must show "(1) [he] was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took adverse action against the plaintiff; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer." Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001).
There is no question that filing a complaint with the EEOC alleging race discrimination is a protected activity under Title VII. However, it appears unlikely that the rating of "Fully Successful" constituted an adverse employment action. An adverse employment action is a "materially adverse change in the terms and conditions of employment." Galabya v. New York City Bd of Ed., 202 F.3d 636, 640 (2d Cir. 2000). And, "`not every unpleasant matter short of [discharge or demotion] creates a cause of action" for retaliatory discharge.'" Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (citation omitted). Applying this standard, courts have held that even a clearly negative employment evaluation, standing alone, does not constitute an adverse employment action for the purposes of establishing a prima facie case of retaliation. See Valentine v. Standard Poor's, 50 F. Supp.2d 262, 283 (S.D.N.Y. 1999) ("Negative evaluations alone, without any accompanying adverse result, however, are not cognizable.").
Here, the plaintiff's rating of "Fully Successful" was clearly not in itself adverse and, therefore, does not constitute an adverse employment action. However, plaintiff also asserts that the "Fully Successful" rating prevented him for qualifying for certain awards and other positions. Unfortunately, this bald assertion, unsupported by a scintilla of evidence, is insufficient to survive summary judgment. See Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999) (holding that to survive summary judgment on a claim of retaliation the plaintiff must produce admissible evidence that the adverse employment action caused or contributed to his or her failure to receive other job benefits). Thus, plaintiffs claim fails on this ground.
Even if, however, plaintiff had asserted a cognizable adverse action by the DOE, his claim would still fail as he is unable to assert another crucial element of the prima facie test — that there is a causal connection between his prior EEOC complaints and his "fully successful" performance rating. The evidence shows that plaintiff received the identical employment rating every year, save one, of his employment, a time period that spanned three supervisors. Thus, plaintiff has not pointed to anything exceptional about his rating in 1992 that would indicate that Devlin acted in response to something other than the plaintiff's job performance. In fact, the evidence suggests precisely the opposite.
Moreover, after scouring plaintiffs' brief and exhibits, as well as his complaint, I have not found a shred of evidence to suggest that Mr. Devlin gave the plaintiff this rating (or for that matter took any other action) in retaliation for plaintiff's prior complaints to the EEOC. There is simply nothing to support this connection. In fact, there is nothing to support the plaintiff's original claims that Mr. Devlin acted with a discriminatory intent. Plaintiff has pointed to no statements, no innuendos or even subtle hints that Devlin harbored any animosity towards him because of his race. Thus, while plaintiff has devoted considerable effort to explaining to the Court how Mr. Devlin's performance evaluation of him was unfair and inaccurate, he has been unable to offer this Court the slightest evidence upon which to find that Devlin's behavior was taken in retaliation for plaintiff's prior complaints, and on this ground as well plaintiff's claim must be dismissed.
In fact, plaintiff suggests that Mr. Devlin gave preferential treatment to another employee Mr. Echevarria and another employee Linda Acevedo-Biehl, both of whom may well also be Hispanic. Plaintiff has certainly not alleged that he was the only Hispanic or minority employed by the DOE.
For the above reasons, defendant's motion is granted, and the clerk is instructed to close the case.