Opinion
Civil Action No. 3:01-CV-1656-L.
October 29, 2004
MEMORANDUM OPINION AND ORDER
The facts contained herein are either undisputed or the court has made the finding based on the credibility or believability of each witness. In doing so, the court considered all of the circumstances under which the witness testified, which include: the relationship of the witness to Plaintiff or Defendant; the interest, if any, the witness has in the outcome of the case; the witness's appearance, demeanor, and manner of testifying while on the witness stand; the witness's apparent candor and fairness, or the lack thereof; the reasonableness or unreasonableness of the witness's testimony; the opportunity of the witness to observe or acquire knowledge concerning the facts to which he or she testified; the extent to which the witness was contradicted or supported by other credible evidence; and whether such contradiction related to an important factor in the case or some minor or unimportant detail. When necessary, the court comments on the credibility of a witness or the weight to be given a witness's testimony.
A. Background
Plaintiff Glen R. Bates ("Bates" or "Plaintiff") filed this action against Defendant U.S. Office of Personnel Management ("OPM" or "Defendant") on August 23, 2001, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq., alleging discrimination and retaliation based on his race and involvement in a protected activity. Plaintiff's Complaint was amended on February 19, 2002 and February 25, 2002, and supplemented on September 5, 2002, the latter of which correctly changed the named defendant to Kay Cole James ("James"), in her capacity as head of OPM. On April 12, 2004, the court conducted an one-day bench trial on Bates's discrimination and retaliation claims. The parties filed their Proposed Findings of Fact and Conclusions of Law on May 19, 2004. Based on a preponderance of the evidence, the court makes the following findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).
Bates, an African-American, began working for the United States Small Business Administration ("SBA"), Office of Government Contract and Minority Enterprise Development, as a Program Assistant, GS-303-05, on August 13, 1990, and was classified as Clerk (Office Automation), GS-303-05, on September 21, 1992. Bates appealed this classification to the SBA on February 13, 1995.
Pursuant to the appeal, SBA reclassified the position to Program Assistant (Office Automation), GS-303-06, on July 9, 1995. By letter dated August 24, 1995, Bates then sought SBA reclassification of his position to GS-1101-07. The SBA responded by letter dated October 23, 1995, denying reclassification and notifying Bates that his position remained classified as Program Assistant (Office Automation), GS-303-06.
Bates filed an appeal with OPM requesting that his position be reclassified and upgraded to Business Opportunity Specialist, GS-1101-07/09/11/12. OPM's employee, Marlene Lightburn ("Lightburn"), Personnel Management Specialist, conducted interviews with Bates and his supervisor, and reviewed the documents Bates had submitted in response to its request. On April 14, 1997, OPM issued a Classification Appeal Decision ("classification decision") on Bates's appeal, stating that the position duties were not at a GS-11 grade level; that the SBA Program Assistant position was improperly classified at GS-303-06; and that the position should be reclassified to GS-303-05.
Pursuant to the classification decision, OPM sent SBA a letter, signed by Bonnie Brandon ("Brandon"), Classification Appeals Officer, directing the SBA Office of Human Resources to submit a compliance report certifying that Bates's position, and all positions similarly situated, were reclassified to the GS-303-05 level. In response, SBA issued a Reclassification Report, dated July 21, 1997, identifying two other similar positions, one in San Francisco, California, and one in King of Prussia, Philadelphia. The letter stated that the San Francisco position was unencumbered but would be reclassified as GS-303-05 if it was reactivated in the future; that Patricia Konzelman's ("Konzelman") position in King of Prussia had been reclassified downward; and that Bates's position in Dallas, Texas, had also been reclassified downward. Attached to the letter were Bates's position description, Konzelman's position description, and copies of the two SF-52s initiating both classification downgrades. The downward classification and the accompanying pay cut became effective on or about July 8, 1999, after a two-year grade and pay retention period.
There is absolutely nothing in the record which establishes that this position has been reactivated at GS-303-06 or higher and filled by someone outside the protected group.
Slightly more than two years after OPM's classification decision, Bates filed at least one complaint of discrimination against OPM before the Equal Employment Opportunity Commission ("EEOC"). In Bates's November 11, 1999 Equal Employment Opportunity ("EEO") complaint he alleged that OPM discriminated against him on the basis of race and engaged in reprisal when it reclassified his position from GS-303-06 to GS-303-05. On April 4, 2000, after reviewing Bates's complaint, the report of the EEO Counselor, and the EEOC regulations, OPM dismissed Bates's claim as untimely for failure to contact an EEO counselor within the required 45-day time period. Bates appealed the agency's final decision dismissing his case to the Office of Federal Operations, EEOC ("OFO"). On January 24, 2001, OFO affirmed OPM's final agency decision. Bates filed a request for reconsideration of the OFO's decision. On May 24, 2001, OFO denied Bates's request for reconsideration and informed him that there was no further administrative appeal in this matter before the EEOC. Bates filed this lawsuit on August 23, 2001.
The classification decision was rendered on June 22, 1997, and Bates filed his request to file an EEO Complaint on August 2, 1999.
1. Plaintiff Bates's Contentions
Bates contends that OPM did not inform him of any appeal or review rights following this adverse employment decision. Although OPM is not Bates's direct employer, Bates contends that OPM is an employer that denied or interfered with his employment opportunities through its discriminatory decision regarding his position classification appeal, and that this decision adversely affected his employment with the SBA. Bates thus contends that he has standing to pursue this claim against James in her capacity as head of OPM. Bates maintains that the reclassification decision was not uniformly enforced to encompass all individuals holding that position within SBA, and that at least one individual not a member of Bates's protected class was treated more favorably than he had been treated. Bates contends that he has suffered damages from these actions for which OPM is liable, including but not limited to, back pay, front pay, mental anguish and other compensatory damages, costs, and attorney's fees. Bates also seeks equitable relief.
2. Defendant OPM's Contentions
Defendant contends that classification decisions undertaken by OPM personnel are directed to a specific government position and not to the individual filling that position. When Bates requested that his position as a Program Assistant be reclassified, the results of that classification affected all individuals holding that position with SBA, including Bates and Konzelman. Defendant contends that since the actions of OPM personnel involve only the position and not the individual, Bates's race and protected activity are irrelevant. Defendant further contends that it had no record of Bates either filing EEO complaints with OPM or being involved in EEO activity with OPM until November 11, 1999, after OPM's classification decision; and therefore, there is no prior protected activity which will support a claim of retaliation in this case and the claim must be dismissed.
To the extent any conclusion of law is deemed to be a finding of fact, it is adopted as such; and likewise, any finding of fact that is deemed to be a conclusion of law is so adopted.
A. Retaliation
Title VII makes it "an unlawful employment practice for an employer to discriminate against any of [its] employees" who had either availed themselves of Title VII's protections or assisted others in so doing. See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that: (1) he engaged in a protected activity; (2) he experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. Riggs v. Mississippi Power Light Co., 278 F.3d 463, 471 (5th Cir. 2002); Evans v. City of Houston, 246 F.3d 344, 351 (5th Cir. 2001). As in any lawsuit, evidence of an intentional retaliatory motive may be established through direct or circumstantial evidence. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n. 3 (1983).
Direct evidence is "evidence which, if believed, proves the fact [of intentional retaliation] without inference or presumption." Fierros v. Texas Dep't of Health, 274 F.3d 187, 195 (5th Cir. 2001) (quoting Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993)). In Fierros, the Fifth Circuit found that the plaintiff's affidavit stating that the defendant had told her she had been denied a pay increase because she filed a discrimination complaint against him was direct evidence of retaliation. Id. Bates did not present any such direct evidence of retaliation at trial. The court therefore assesses Bates's claims under the McDonnell Douglas framework. See Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001).
Under this framework, a plaintiff must first establish a prima facie case of retaliation. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Upon satisfying this requirement, a presumption of retaliation arises which the employer must rebut with a legitimate, nonretaliatory justification for the challenged action. Montemayor, 276 F.3d at 693; see also Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001). Once the employer meets this requirement, the presumption of retaliation raised by the prima facie case disappears, and the plaintiff must prove by a preponderance of evidence that the legitimate reasons proffered by the employer are a pretext for retaliation. Id.
1. Plaintiff's Prima Facie Case
a. First Element — Protected Activity
To satisfy the first element, Bates must demonstrate he has engaged in a protected activity. An employee engages in a protected activity if he has either (1) opposed any practice made an unlawful employment practice by Title VII, or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). Bates contends that he engaged in protected activity when he submitted a complaint of discrimination against his second-line supervisor at SBA, Sheryl Swed ("Swed"), and when he submitted to OPM his opposition to SBA's alleged "unlawful employment practices" and "double standards" of discrimination. OPM does not dispute that the complaint filed by Bates against the SBA in 1994, and the subsequent classification appeal satisfy the first prong of Bates's prima facie case; the court also does not take issue with these contentions. Accordingly, the court concludes that Bates has established the first element of his prima facie case.
b. Adverse Employment Action
As the second element of his prima facie case of retaliation, Bates must identify an adverse employment action. Not every decision made by an employer qualifies as an adverse employment action. Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). The Fifth Circuit has stated that "Title VII was designed to address ultimate employment decisions." Id. "`Ultimate employment decisions' include acts `such as hiring, granting leave, discharging, promoting, and compensating'" an employee. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) ( quoting Dollis, 77 F.3d at 782).
Bates asserts that he was subjected to an adverse employment action when OPM rendered its classification decision, and as a result, his position was reclassified downward to GS-303-05. Defendant does not dispute that its classification decision would qualify as an adverse employment action. The court determines that Plaintiff's decision to reclassify Bates's position downward is an adverse employment action because it concerns the ultimate decisions of "promoting . . . and compensation." Dollis, 77 F.3d at 782.
c. "Causal Link"
Finally, as the third element of his prima facie case Bates must establish a causal link. "A `causal link' is established when the evidence demonstrates that `the employer's decision . . . was based in part on knowledge of the employee's protected activity.'" Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, (5th Cir. 2001). Bates contends that Lightburn's knowledge of Bates's protected activity was causally connected to the unfavorable OPM decision on his position classification appeal. Bates testified that during his 1.5 hour interview with Lightburn he had informed her of alleged discriminatory actions that had taken place within SBA, and suggested that his second-line manager, Swed, did not support minorities getting "decent performance appraisals" or promotions. Bates also represents to the court that he felt Lightburn was "turned off" by his discussion of discrimination. Lightburn, on the other hand, stated in her testimony that she had no knowledge of any EEO matters brought by Bates, that any comments regarding his treatment at SBA would have been irrelevant to the classification of his position, and that she did not remember having any such discussion. Bates's testimony also indicated that during his conversation with Lightburn that he was, in his own words, "defensive" and he had the notion in his mind that "people are turned off" by discrimination discussions; and in asserting his belief that his protected activity was causally linked to OPM's decision, Bates relies heavily on his subjective perception of Lightburn's reaction. Moreover, the record reveals that Bates's assertions are replete with conclusory statements, impermissible inferences, general speculation, and irrelevant evidence. Bates's assertion that retaliation caused the unfavorable OPM decision is merely his subjective belief, which is insufficient to raise a question of fact. See Travis v. Board of Regents of the Univ. of Texas Sys., 122 F.3d 259, 266 (5th Cir. 1997). Such inferences and speculation as a substantial basis for asserting a retaliation claim, give the court insufficient evidence from which to draw the conclusion that OPM's actions were retaliatory in nature. Similarly, Bates offers only conjecture and no evidence to indicate that Lightburn relied on any information about the complaint of discrimination filed against Swed in making her decision. Accordingly, the court concludes that Bates failed to establish the "causal link" element of prima facie retaliation. Under the McDonnell Douglas framework, the court's analysis would stop here, however, to ensure that no stone is left unturned, the court continues its retaliation analysis in this case and decides, alternatively, that even in Bates had established a prima facie, no retaliation occurred.
The causal link required by the third prong of the prima facie case is not as stringent as the "but for" standard required for an ultimate finding of retaliation. Raggs v. Mississippi Power Light, Co., 278 F.3d 463, 471 (5th Cir. 2001) (citation omitted); Gee, 289 F.3d at 342 (explaining that a plaintiff "need not prove that her protected activity was the sole factor motivating the employer's challenged decision in order to establish the `causal link' element of a prima facie case") (citation omitted).
2. The Department's Legitimate, Nonretaliatory Explanation for the Challenged Conduct
Assuming that one could arguably state that Bates has established a prima facie case of retaliation, the court addresses the question of whether OPM has provided a legitimate, nonretaliatory explanation for downgrading Bates's position. According to OPM, in classifying a position, it looks to certain grading criteria and compares those aspects of the position to a classification standard. The grading criteria include the complexity of the work, scope and effect of the work, personal contacts and the purpose of those contacts, and the work environment. Bates filed an appeal with OPM requesting that his position be reclassified and upgraded to Business Opportunity Specialist, GS-1101-07/09/11/12. OPM, however, states that in conducting its review, it assessed the information gathered from Bates and Mallory, compared it to the grading criteria, and decided that Bates's position was properly classified as GS-303-05 and that the work Bates was doing at SBA did not warrant an upgrade to GS-1101-07. OPM, therefore, maintains that its decision to reclassify Bates's position as GS-303-05 was not retaliatory, but was instead based on its comparison of Bates's position against the grading criteria it employs in rendering such classification decisions. Based on these facts, the court holds that OPM has articulated legitimate, nonretaliatory reasons for the position downgrade.
3. Unlawful Retaliation
Because the employer has produced evidence of a legitimate, nonretaliatory reason for its decision, the McDonnell Douglas framework drops from the case. See Evans, 246 F.3d at 354; Long, 88 F.3d at 308. At this stage, "the focus shifts to the ultimate question of whether the defendant unlawfully retaliated against the plaintiff." Long, 88 F.3d at 305. To succeed on his claim, Bates must prove by a preponderance of the evidence that the adverse employment action would not have occurred "but for" the protected activity. Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001); Long, 88 F.3d at 308. The plaintiff may establish unlawful retaliation indirectly by showing that the legitimate, nonretaliatory justification offered by the defendant is pretextual. See Reeves, 530 U.S. at 188 (explaining "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's proffered explanation is false, may permit the trier of fact to conclude that the employer unlawfully discriminated").
"While this portion of the analysis may seem identical to the `causal link' step in the prima facie case, the burden here is more stringent." Medina, 238 F.3d at 674.
Bates contends that OPM's stated reasons for adjusting the position classification downward are pretextual in light of evidence that SBA's own personnel management specialists had promoted Bates to GS-303-06 after an SBA desk audit and that Bates's supervisor believed Bates was doing work at a GS-303-06 level. Bates contends that OPM's decision was instead based on his race and its knowledge of his protected activity. Bates further contends that because his current GS-1101-07 position entails job duties no different that his prior GS-303-05 and GS-303-06 positions, OPM's stated reasons for the demotion is pretextual. Additionally, Bates contends that OPM's "failure" to enforce SBA's application of the classification decision to others similarly situated to him is additional evidence that its stated reasons are pretextual. Finally, Bates suggests that because Lightburn had the discretion to conduct an on-site review and because she did not undertake to do so, she was retaliating against him on the basis of race and his protected activity.
In each of his contentions, Bates relies on conclusory statements based entirely on subjective beliefs without producing a scintilla, much less a preponderance, of evidence to support such statements. First, SBA's determination has no bearing on OPM, as OPM conducts its own independent determination when making a classification decision. Second, Bates's assertion that OPM's decision is based on his race and its knowledge of his protected activity is wholly conclusory and Bates fails to produce any evidence to support this conclusion. Third, Bates's current position is of no moment in assessing the reasons behind OPM's decision. Fourth, the contention that OPM failed to enforce its decision is without merit in light of OPM's issuance of a compliance certificate and SBA's subsequent Reclassification Report confirming compliance.
Finally, there is no evidence before this court to support Bates's belief that Lightburn declined to conduct an on-site investigation as a means of retaliation. OPM customarily relies on its own fact-finding, data gathered by the agency (including desk audits), any data the employee has submitted, an employee interview, and an interview with the employee's supervisor. OPM maintains that in Bates's case, Lightburn had decided that her telephonic interviews with Bates and his supervisor and the 21-page facsimile Bates had sent provided her with adequate information for her to make a proper determination, and a on-site visit was unnecessary. Further, the evidence shows that at the time of Bates's position classification appeal, the decision to conduct an on-site visit in downward position classifications was discretionary and rarely conducted.
The 11-page decision prepared by Lightburn outlines in detail her assessment of Bates's position based on his representations and the representations of his immediate supervisor, Larry Mallory ("Mallory"). In her report, Lightburn goes to the extent of listing and comparing side-by-side the data she gathered from Bates and Mallory. The report then makes a series and title determination, as well as a grade level determination, by comparing the information gathered to the classification standard. Lightburn then submitted her decision to Brandon for review. Brandon signed the decision and sent it to Program Manager Jeffrey Miller ("Miller") for his review. Once Miller had finished his review, Brandon issued a final decision on April 14, 1997.
The court finds that Defendant's evidence explaining its action is more credible than that presented by Bates. Bates never rebuts the evidence offered by Defendant that none of the employees involved in the classification decision ever knew of the protected activity or his race. That Lightburn was not aware of Bates's race or protected activity, and both Brandon and Miller reviewed Lightburn's written decision and signed off on it without knowledge of Bates's protected activity or race, convinces the court that OPM's decision was nonretaliatory. The court therefore concludes that the totality of the evidence supports a conclusion that OPM's actions regarding the position classification demonstrated no retaliatory animus against Bates.
B. Race Discrimination
1. Title VII and Direct Evidence of Discrimination
The court now turns to address Bates's claim of discrimination based on race. Title VII prohibits discrimination in employment against any person on the basis of his race, sex, national origin, color, or religion. Under Title VII, it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ." 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of discrimination under Title VII, a plaintiff may prove his claim either through direct evidence or the three-part test established by the Supreme Court in McDonnell Douglas. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). Bates did not present any direct evidence of race discrimination at trial. The court therefore assesses Bates's claims under the McDonnell Douglas framework. See Montemayor 276 F.3d at 692.
2. McDonnell Douglas Test
To establish a prima facie case of racial discrimination under the McDonnell Douglas framework, Plaintiff must demonstrate that (1) he was a member of a protected class, (2) he was qualified for the position he lost, (3) he suffered an adverse employment action, and (4) that others similarly situated were more favorably treated. See Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998); see also Rutherford v. Harris County, Tex., 197 F.3d 179-80 (5th Cir. 1999); Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).
Bates contends that he has established a prima facie case of race discrimination because he is a member of a protected class (African-American), he was qualified for the GS-303-06 position he lost, he suffered an adverse employment action when his position was reclassified downward, and Konzelman, a similarly-situated Caucasian employee, was treated more favorably in that she was not demoted to GS-303-05. Defendant contends that it had no further responsibility for assuring that a downward reclassification was applied to positions similar or identical to Bates's position, and its responsibility concluded when it received SBA's Reclassification Report, coupled with the SF-52s showing that Konzelman's and Bates's positions had been made to comply with the classification decision.
For the same reasons discussed with respect to Bates's retaliation claim, the court takes as given that Bates suffered an adverse employment action. The court even assumes arguendo that Bates was qualified for the position he lost based on evidence that SBA had classified Bates's position at GS-303-06 prior to the OPM decision. The court, however, is not persuaded that OPM treated similarly situated employees more favorably than Bates and that Bates was the victim of intentional race discrimination. The record establishes that OPM treated Bates, Konzelman, and the unencumbered position the same and that Bates failed to demonstrate that OPM had any further responsibility after it received SBA's Reclassification Report. As Bates fails to establish the fourth element of a prima facie case, his claim of race discrimination necessarily fails.
Alternatively, even if Bates has arguably established a prima facie case, the court, in reviewing the record of this case, finds no evidence that supports pretext or an inference of intentional discrimination based on race. See Rubinstein v. Administrators of Tulane Educational Fund, 218 F.3d 392, 400 (5th Cir. 2000) ("While we are mindful of the Supreme Court's recent admonition that Title VII plaintiffs need not always present evidence above and beyond the prima facie case and pretext, discrimination suits still require evidence of discrimination."). The facts set forth by Bates fail to establish that race was a motivating or determinative factor in the OPM's refusal to classify Bates's former position as GS-303-07 and its decision to, instead, reclassify his and similar positions to GS-303-05. Bates relies wholly on conclusory evidence, loose inferences, and subjective beliefs in trying to prove his case to the court. Accordingly, the court concludes Bates has not proved by a preponderance of the evidence that the OPM discriminated against him on the basis of race.
III. Conclusion
For the reasons stated herein, the court finds that Bates has not proved by a preponderance of the evidence that OPM retaliated against him for engaging in protected activity or that it discriminated against him on the basis of race in rendering its classification decision. Accordingly, the court dismisses with prejudice this action against Defendant Kay Coles James in her capacity as head of U.S. Office of Personnel Management. The court will issue judgment by separate document pursuant to Fed.R.Civ.P. 58.
It is so ordered.