Opinion
CIVIL ACTION NO. 02-2678, SECTION "K" (3)
January 27, 2004
MINUTE ENTRY
Before the Court is defendant's Motion to Dismiss and Motion for Summary Judgment (Rec. Doc. No. 31). Having reviewed the pleadings, memoranda, and relevant law, this Court finds defendant's motion to be meritorious and GRANTS the motion.
I. BACKGROUND
Plaintiff Lorraine Washington alleges workplace discrimination against the United States Department of Agriculture based on her race, sex, and age. She also alleges reprisal for her prior EEO complaint activity. Lorraine Washington is a Black female born on January 5, 1956, employed by the National Finance Center (the "NFC") in New Orleans, Louisiana. Plaintiff claims, she has been subjected to discriminatory treatment manifested by the non-selection for a promotional position, denial of a vacation leave request, rude behavior from supervisors, assignment of duties, undeserved performance ratings, denial of a performance award, denial of the use of a floor heater, denial of additional options to repay religious leave, scheduling of training on a Holiday Program day, threat of disciplinary action, and the denial of adequate work assignments to fill her nine-hour work-day. See Rec. Doc. 16. Amending and Supplemental Complaint. C A), 1-23.
Plaintiff filed this action on August 30, 2002. On December 16, 2003, defendant filed the instant motion, which was set for hearing on January 7, 2004. Plaintiff's opposition to the Motion to Dismiss and Motion for Summary Judgment was due to be filed by December 30. 2003. On or about January 8, 2004, this Court's staff contacted plaintiffs counsel by telephone to inform him that an opposition had not been received timely and, if plaintiff intended to oppose the motion, he should file opposition as soon as possible. As of this matter's first Pretrial conference, held January 15, 2004, plaintiff had not filed an opposition. On that day. the Court ordered counsel for plaintiff to file an opposition by noon on January 21. 2004. Plaintiff failed to file timley. However, nearly five hours after the court-ordered opposition filing deadline counsel for plaintiff submitted a telephone facsimile of an incomplete opposition, which referred to a missing affidavit. No signed original of the opposition or the affidavit has been filed or provided to this Court, although plaintiff did bring a photocopy of the affidavit to the second Pre-Trial Conference held January 23, 2004. To date, no opposition has been filed in the record
II. LEGAL STANDARDS
A. Rule 12(b)(6)
To determine whether a motion to dismiss has merit Jefferson Parish v. Lead Ind. Ass'n. Inc., 106 F.3d 1245, 1250 (5th Cir. 1997) instructs that "[t]he standard to be applied to a motion to dismiss under Federal Rule 12(b)(6) is a familiar one." The district court must take the factual allegations of the complaint as true and resolve any ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. Fernandez Monies v. Allied Pilots Ass'n., 987 F.2d 278, 284 (5th Cir. 1993). The complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of her claim that would entitle her to relief Fernandez-Monies, 987 F.2d at 284, 285; Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994). However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Fernandez-Montes, 987 F.2d at 284; Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1367 (5th Cir. 1994).
B. Summary Judgment
Summary judgment should be granted "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24S (1986).
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an clement essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service. Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
C. Employment Discrimination
The government's Rule 12(b)(6) motion focuses on its claim that the bulk of plaintiff's complaints are not ultimate employment actions. Defendant's summary judgment motion is centered on plaintiff's lack of evidence rebutting the government's explanation for its action. The government concedes, for the sake of argument, that three of plaintiff's allegations may not be appropriate for a Rule 12(b)(6) dismissal, but instead should be dismissed by summon judgment motion. These claims, non-promotion, denial of vacation leave, and denial of an opportunity to repay religious leave, will be discussed infra.
Plaintiffs claims for racial and gender discrimination are based on disparate treatment. In those complaints is a claim for failure to promote, which is analyzed under the disparate treatment standard and retaliation standard, as discussed herein.
1. Ultimate Employment Decision
Title VII prohibits employers from discriminating against employees on the bases of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Title 14 U.S.C. § 2000e-16(a) governs employee discrimination actions by federal employees, providing in pertinent pan:
All personnel actions affecting employees or applicants for employment in military departments . . . executive agencies . . . shall be made free from any discrimination. . . .
(Emphasis added.) Although the statute does not define the term "personnel actions" as it relates to claims against the government, courts have provided guidance. In Page v. Bolger, a disparate treatment case, the Fourth Circuit held that adverse personnel actions do not include "interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscriptions of . . . Title VII." 645 F.2d 227, 233 (4th Cir.) (en banc), cert. denied, 454 U.S. 892, 102 Sect. 388 (1981). The Fifth Circuit adopted the Page rule in Dollis v. Rubin, a retaliation case involving a federal employee, 77 F.3d 777 (5th Cir. 1995).
In Dollis, the Fifth Circuit found that a denial of a desk audit is not the type of ultimate employment decision that Title VII was intended to address, affirming the district court's grant of summary judgment. Dollis, 77 F.3d at 782. The court held that "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." Dollis, 77 F.3d at 781-82, citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.) ( en banc).
Only "ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating" satisfy the adverse employment action element. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.), cert. denied, 522 U.S. 932 (1997). "'Otherwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial." Burger v. Central Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999) (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)).
2. Retaliation
As recently stated by the Fifth Circuit in Fabela v. Socorro Indep. School Dist. 2003 WL 1924624 (5th Cir. 2003):
A plaintiff alleging Title VII retaliation may establish her case for causation in one of two ways: she may either present direct evidence of retaliation, which is also know as the "mixed-motive" method of proving retaliatory motivation; or she may provide circumstantial evidence creating a rebuttable presumption of retaliation. Fierros v. Texas Department of Health, 274 F.3d 187, 192 (5th Cir. 2001); see Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1988). Usually, in the context of a retaliation claim, the employer refrains from expressly stating that an impermissible criterion influenced his decision to expose the plaintiff to an adverse employment action, and so direct evidence of an employer's allegedly retaliatory intent is rarely available. As a result, we have long recognized the well-trod path by which a plaintiff may demonstrate retaliatory intent through the use of circumstantial evidence and the famed McDonnell Douglas burden-shifting framework. Montemayor v. City of San Antonio, 276 F.3d 687 (5th Cir. 2001); Portis v. First Nat'l Bank, 34 F.3d 325, 328 (5th Cir. 1994); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Because of the general lack of availability of direct evidence of retaliatory intent, plaintiffs alleging retaliation most often must travel the less advantageous circumstantial evidentiary path. [FN6] Portis, 34 F.3d at 328.Id. at *4.
To establish a claim for retaliation under Title VII with circumstantial evidence plaintiff must show:
(1) that she engaged in a statutorily protected activity;
(2) that she suffered adverse employment action; and
(3) that a causal connection existed between the protected activity and the adverse action.Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). Once the plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to present a non-discriminatory reason for the adverse employment action. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir. 1998). If the defendant can do so, the burden of production then shifts back to the plaintiff to demonstrate that the proffered reason is a pretext. Id. at 1 122. At all times, however, the plaintiff has the ultimate burden of proof. Id. The plaintiff must produce evidence of a conflict that is substantial enough on the issue of retaliation to withstand a motion for summary'-judgment. Id. Evidence is substantial enough if it is of "such quality and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions." Id.
3. Disparate Treatment
To establish a prima facie case of disparate treatment, the plaintiff must show that:
(1) she is a member of a protected class:
(2) she was qualified for the position;
(3) she suffered an adverse employment action; and
(4) others outside the class who were similarly situated were treated more favorably than she.Eugene v. Rumsfeld, 168 F. Supp.2d 655, 670 (S.D.Tex. 2001). "It is generally recognized that the employment discrimination statutes were designed to address ultimate employment decisions, not to scrutinize every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Id. citing Dollis v. Rubin, 77 F.3d at, 780-81. Hiring, discharging, promoting, compensating and granting leave are considered ultimate employment decisions. To allow a cause of action based on an action of less import would allow "every trivial personnel action" become the basis for a discrimination suit. Id.
4. Non-Promotion
To make a prima facie case for non-promotion based on race or gender discrimination, plaintiff must establish that:
(1) she belongs to a protected group;
(2) she was qualified for the position sought;
(3) she suffered an adverse employment action; and
(4) she was replaced by someone outside the protected class.Price v. Federal Express Corp., 283 F.3d 715 (5th Cir. 2002). In order to defeat the motion for summary judgment with respect to this issue, plaintiff must prove that these reasons are pretextual; however, she may not simply demonstrate that she is similarly qualified. Rather, he must show that he is "clearly better qualified" for the position in question. Odom v. Frank, 3 F.3d 839, 845 (5th Cir. 1993). Indeed the Price court citing Odom stated "the losing candidate's qualifications must 'leap from the record and cry out to all who would listen that he was vastly-or even clearly-more qualified for the subject job.'" Price, 283 F.3d at 723.
I. ANALYSIS
Plaintiffs discrimination claims stem from the following allegations: non-selection for a promotional position, denial of a vacation leave request, denial of overtime, rude behavior from supervisors, disclosure of personal information by supervisors, assignment of duties, undeserved performance ratings, denial of a performance award, denial of the use of a floor heater, denial of additional options to repay religious leave, scheduling of training on a Holiday Program day. threat of disciplinary' action, and the denial of adequate work assignments to fill her nine-hour work-day. The legal bases underlying plaintiff's discrimination claims are retaliation, disparate treatment, and failure to promote. With respect to plaintiffs retaliation and disparate treatment claims, her allegations fail to meet the Dollis standard which limits "ultimate employment decision[s]" to acts "such as hiring, granting leave, discharging, promoting, and compensating Dollis, 11 F.3d at 782. Except for the non-promotion claim, the litany of aforementioned allegations listed in plaintiff's Complaint are employer decisions that at most "arguably might have some tangential effect upon those ultimate decisions." See id. (defining "ultimate employment decision" in the context of a retaliation claim); see also Eugene v. Rumsfeld, 168 F. Supp.2d at 670 (applying the Dollis "ultimate employment decision" test to a disparate treatment claim). To permit causes of action of the import of Washington's retaliation and disparate treatment claims would allow "every trivial personnel action" to become the basis for a discrimination suit. Dollis, 77 F.3d at 780-81; see also Legania v. East Jefferson General Hospital District, 2003 WL 21277127 (E.D. La. 2003). As such, plaintiff's retaliation and disparate treatment claims must be dismissed,
Plaintiff's two claims-other than non-promotion-most closely resembling "ultimate employment actions" pertain to the denial of vacation leave and the denial of an opportunity to repay religious leave. As to both, this Court holds that the employer decision was simply too attenuated from the Dollis factors to constitute an "ultimate employment action." As to the denial of vacation leave, the NFC did not deny plaintiff the opportunity to utilize vacation leave; rather, the NFC simply rejected plaintiffs first proposed vacation date, which plaintiff had chosen in violation of NFC vacation leave policy. Washington's second vacation proposal was accepted. Also, plaintiffs religious leave repayment claim fails to qualify as a leave-granting or compensation "ultimate employment action." Plaintiff used leave in excess of what she had accumulated and was given numerous options to "repay" this leave. Like all of her other claims (except non-promotion), Washington's religious leave repayment allegation falls short of a Title VII adverse employment action. Accordingly, each of plaintiff's claims except non-promotion shall be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). In the alternative this Court finds that plaintiffs vacation and religious leave claims do not survive summary judgment scrutiny. Defendant's evidence makes clear that the alleged denial of vacation leave and refusal to allow plaintiff to "make up" religious leave comported with NFC procedures and Title VII. Plaintiff offers no evidence to rebut the validity of these actions.
Plaintiffs only properly alleged "ultimate employment action" — the failure to promote claim-is not sufficient to avoid summary judgment. Whether the claim for non-promotion is based on disparate treatment relating to race or gender or based on retaliation, it is without merit, In support of summary judgment, the government has submitted ample documentation legitimizing the NFC's decision not to promote plaintiff to the position of Program Analyst, including the declarations of four NFC employees and supporting NFC records. This evidence indicates that the NFC advertised two vacancies for a Program Analyst, GS-07/09/11, in September of 1999 under vacancy announcement number NFC-99-120A. After an initial evaluation of the applications by the Human Resources Office, a promotion panel reviewed, rated, and ranked the applications. The promotion panel consisted of a Personnel Management Specialist, called the panel facilitator, and three rating members who are subject matter experts. The panel members for this promotional action consisted of one Black female, one White male, and one White female.
The panel members utilized a crediting plan, or a plan which measures each candidate's proficiency against each of the evaluation criteria ("KSAs") identified in the vacancy announcement, in order to evaluation, rate, and rank the applicants. Candidates were given a score representing how well they measure against each criterion. Level definitions and rating schedules are also a part of the crediting plan.
Applicants were evaluated and rated at each level for which they qualified and the panel rated plaintiff at both the GS-7 level and at the GS-9 level. Each candidate received a numerical score for each of the four KSA's which was recorded on an Internal Merit Staffing Rating Sheet. Of the 54 candidates that applied at the GS-7 level, nine made the Best Qualified ("BQ") list. The cut-off score was "355." Plaintiff, with a score of "330", did not make the BQ list. Of the 24 candidates that applied at the GS-9 level, seven made the BQ list. The cut-off score was "320." Plaintiff, with a score of "300", did not make the BQ list.
Only the BQ lists were forwarded to the selecting official. Ms. Mitchell, the selecting official, selected a Hispanic female, Jeannie K. Nelson; a Black male, Wade Edwards; and a White female. Donna Christopher for the promotion. Ms. Nelson declined the promotion.
Plaintiff has failed to rebut defendant's wealth of evidence in support of its Program Analyst selection process. Defendant's exhibits make clear that plaintiff's test scores did not match, much less surpass, those of the employees selected for promotion. Furthermore, plaintiff neglects to offer any other form of evidence in support of her credentials. Consequently, plaintiff's non-promotion claims do not meet the standard set forth in Price Federal Express Corp. and Odom v. Frank. Additionally, plaintiff has not submitted any evidence that a caused connection existed between her prior employment complaints and the NFC's failure to promote her. Again, while defendant has carefully detailed its promotion process, plaintiff has failed to rebut mat evidence as it pertains to retaliation. Finally plaintiff has not supported her disparate treatment claim with any evidence that she was qualified for the Program Analyst position or that another outside her class was treated more favorably. Indeed, the government has shown that the promotion she sought was awarded to employees who shared Washington's race (Wade) or her sex (Nelson and Christopher). In short, defendant has established, and plaintiff has failed to rebut, that no genuine issue of material fact exists as to whether the NFC's promotion practice satisfied Title VII. Consequently, plaintiff has failed to meet her burden of proof. Accordingly,
IT IS ORDERED that defendant's Motion to Dismiss (Rec. Doc. No. 31) is hereby GRANTED and all of plaintiffs Title VII claims except her claim for non-promotion are hereby DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 1 2(b)(6). IT IS FURTHER ORDERED that defendant's Motion for Summary Judgment (Rec Doc. No. 31) is hereby GRANTED and plaintiffs remaining claim for non-promotion is hereby DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 56.