Opinion
Civil Action No. 02-3587, SECTION "A" (5).
August 27, 2004
REASONS
On May 28, 2004 this Court granted the Motion to Dismiss and/or for Summary Judgment (Rec. Doc. 25), filed by defendant John W. Snow, Secretary of the Department of the Treasury, with reasons to follow. The Court rules as follows:
Background
Francisco Castrillo ("Plaintiff") is a male Hispanic of Puerto Rican descent, over forty years of age. Plaintiff has brought this suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act, 29 U.S.C. § 633a 42. At all times pertinent, Plaintiff was employed by the United States Customs Service ("Defendant") as an Intelligence Research Specialist. He alleges that his employer discriminated against him on the basis of national origin, age, and retaliation.
As a federal employee, Castrillo's claims are governed by those statutory sections that Congress has specifically designated as applicable to federal sector employment.
Plaintiff filed an Equal Employment Opportunity ("EEO") complaint with the defendant agency on August 14, 2000. He subsequently filed several amendments to his original complaint. The following issues were ultimately accepted for investigation:
(1) Was [Plaintiff] subjected to a hostile working environment based on his age (48; DOB 3/10/52), national origin (Puerto Rico) and disability (heart attack) when:
A) In February 1999, [Plaintiff] was investigated by the Office of Internal Affairs for outside employment;
B) In May 1999, [Plaintiff] was denied a hardship transfer to another position;
C) In June 1999, [Plaintiff] was denied career enhancing training;
D) On May 18, 2000, [Plaintiff] was issued a 14-day suspension;
E) From June 2000 to present, [Plaintiff] has not received temporary duty assignments or weekend duty;
F) On June 6, 2000, [Plaintiff] did not receive a promotion to an Intelligence Research Specialist, GS-132-13;
G) In July 2000, [Plaintiff] was denied a desk audit.
(2) Was [Plaintiff] subjected to reprisal for prior participation in the EEO complaint process when, on November 27, 2000, the Office of Internal Affairs investigated him for a remark that he was going "postal"?
(3) Was [Plaintiff] subject to reprisal for prior participation in the EEO complaint process when he was placed on Absence Without Leave for 5 days in December 2000?
Although Plaintiff had characterized his complaint as one of hostile working environment, the EEO investigator noted that the allegations raised were more properly characterized as those of disparate treatment. The investigator therefore analyzed the complaint under the disparate treatment model. On September 4, 2002, the Department of the Treasury issued a final agency decision which found no discrimination and dismissed all of Plaintiff's allegations.
Plaintiff thereafter filed this civil action. In his complaint, Plaintiff asserts, inter alia, that he was denied a promotion to Intelligence Research Specialist, GS-132-13 (Comp. ¶ IX), his supervisors had a pattern and practice of harassing him and applying unequal treatment toward him (Comp. ¶ XI), his fourteen day suspension, the Office of Internal Affairs' investigation for a remark he made concerning going "postal", and his five day placement as Absence Without Leave were all in reprisal and retaliation for prior participation in the EEO complaint process (Comp. ¶ XII). He also alleged that while employed with Customs he was subjected to a hostile work environment (Comp. ¶ XV). Plaintiff seeks a promotion, compensatory and punitive damages, back pay, frontpay, attorney's fees, and costs.
Defendant's Motion
First, Defendant argues that many of the plaintiff's claims were the subject of an earlier judgment of this Court based on the same operative facts and are, therefore, barred by res judicata. Second, Defendant argues that plaintiff's demands for compensatory and punitive damages and a jury trial should be dismissed for lack of jurisdiction. Defendant argues that Plaintiff in effect waived any claim to compensatory damages by failing to make a demand for compensatory damages in his EEO complaint. Further, Defendant points out that Plaintiff cannot recover punitive damages from a federal agency. Assuming that the Court concludes that Plaintiff has no claim for compensatory and punitive damages, Defendant then argues that Plaintiff would have no right to a jury trial.
Defendant also argues that Plaintiff's claims of hostile work environment fail as a matter of law because Plaintiff cannot demonstrate that the workplace was so "permeated with discriminatory intimidation" or "so severe and pervasive so as to alter the conditions of his employment."
Next, Defendant argues that any claims that Plaintiff failed to timely submit and fully exhaust through the EEO complaint process should be dismissed for lack of subject matter jurisdiction and/or failure to state a claim for which relief can be granted. Finally, Defendant argues that any remaining exhausted claims should be dismissed for failure to state a claim cognizable under the federal sector Title VII discrimination statutes because none of those claims involve adverse personnel actions, as required by law. To the extent that any claim does involve an adverse personnel action, Defendant argues that Plaintiff fails to create an issue of fact as to unlawful discrimination playing a role in his employer's actions.
In opposition, Plaintiff asserts that there are still issues of material fact and that this Court does have jurisdiction over these claims under federal sector Title VII. First, Plaintiff asserts that his claims are not barred by res judicata or collateral estoppel.
Plaintiff argues that his case must be considered based upon a pattern of discriminatory acts because each act considered separately does not necessarily support a claim for discrimination. Plaintiff asserts that all of his alleged acts belong to a single pattern and practice of discrimination and therefore for timeliness purposes this Court need only look to the last act of discrimination.
This characterization of Plaintiff's case is not what he charged in his EEO complaint. Nor is this characterization apparent from the original complaint that he filed in this Court. Even more confusing is that this characterization is inconsistent with some of the other arguments Plaintiff presented in his opposition.
Plaintiff asserts that he exhausted his claim for compensatory damages by requesting backpay and a cash award in response to the EEO counselor's inquiries. He also asserts that the administrative record and investigative file support the conclusion that he fully exhausted his pattern and practice claims and claims of hostile work environment. While conceding that certain claims were not timely brought before the EEO, he asserts that the continuing violation doctrine can be employed to preserve his otherwise untimely claims.
Plaintiff's assertion that he exhausted a hostile work environment claim is perplexing in light of the statement on page 2 of his Opposition that his claims are not based on hostile work environment.
Next, Plaintiff asserts that none of the claims which he unarguably did exhaust (counterintelligence training, cash award, attendance at the trade show, temporary duty assignment, and denial of EEO counselor training) are subject to dismissal for failing to meet "ultimate employment decision" doctrine requirements. Plaintiff argues that Fifth Circuit jurisprudence suggests that the doctrine does not apply to claims of disparate treatment.
Plaintiff further argues that the record supports a prima facie case of disparate treatment and that the record is sufficient to create an issue of fact so as to avoid summary judgment on the issue.
Collateral Estoppel
Defendant asserts that the plaintiff's claims are some how barred by this Court's November 13, 2003, ruling in Hernandez v. Secretary of the Treasury, Civil Action 02-3164 under the doctrine of collateral estoppel.
The court must consider three factors in order to determine if the doctrine of collateral estoppel should be applicable to a particular matter. These three factors include: (1) the issue at stake is identical to the one involved in the prior litigation, (ii) the determination of the issue in the prior litigation was a critical, necessary part of the judgment in that earlier action, and (iii) special circumstances exist which would render preclusion inappropriate or unfair." McDuffie v. Estelle, 935 F.2d 682, 685 (5th Cir. 1991).
See Montana v. United States, 440 U.S. 147, 154 (1979);Hicks v. Quaker Oats Co., 662 F.2d 1158, 1166 (5th Cir. 1981).
This Court finds that the defendant has failed to establish the first factor in the collateral estoppel evaluation. The issues at stake in the Hernandez case and in this case are not identical. While both of these cases involve claims of discrimination against the same employer; the plaintiffs in both these cases had different experiences and different histories with that common employer. The Court finds that the issues are not identical to allow for the application of the doctrine of collateral estoppel.
Summary Judgment
Summary judgment is appropriate if the record discloses "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.Proc. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party, or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor."Lavespere v. Niagra Mach. Tool Works, Inc., 910 F. 2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 249 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact.Id. (citing Celotex, 477 U.S. at 325). However, the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. Id. In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the nonmoving party.Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brencettsy, 158 F. 3d 908, 911 (5th Cir. 1998)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's claim. Id. (citing Celotex, 477 U.S. at 325). If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The burden then shifts to the nonmoving party, who may not rest upon the pleadings, but must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists for trial.Little v. Liquid Air Corp., 37 F. 3d 1069, 1075 (5th Cir. 1996).In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the United States Supreme Court established a framework for the allocation of burdens and order of presentations of proof in an employment discrimination claim where direct evidence of discrimination does not exist. The complaining party carries the initial burden under Title VII of establishing a prima facie case that the employer discriminated against him because of his race, color, religion, sex, or national origin. This burden is not onerous; in order to meet this standard, a plaintiff must show by a preponderance of the evidence that he applied for an available position for which he was qualified but was rejected under circumstances which give rise to discrimination.Tex. Dep't of Comm'y Affairs v. Burdine, 450 U.S. 248, 253 (1981). The establishment of a prima facie case in effect creates a presumption that the defendant unlawfully discriminated against the plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). The prima facie case is established when the plaintiff shows that (1) he belongs to a protected group; (2) that he was qualified for the position or emolument sought; (3) that he suffered an adverse employment action; and (4) he was replaced by someone outside the protected class. Price v. Federal Express Corp., 283 F. 3d 715 (5th Cir. 2002) (citingHicks, 509 U.S. at 506). If the plaintiff successfully meets this requirement, the burden of proof then shifts to the employer to articulate some legitimate and nondiscriminatory reason for the plaintiff's rejection. McDonnell Douglas, 411 U.S. at 802.
A plaintiff's age may also grant him protected status under the ADEA. The Supreme Court assumed arguendo that theMcDonnell Douglas framework was equally applicable to claims of age discrimination under the ADEA. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142 (2000). The Fifth Circuit Court of Appeals has also applied the McDonnell Douglas framework to claims of age discrimination. See, e.g. West v. Nabors Drilling USA, Inc., 330 F. 3d 379 (5th Cir. 2003); Brown v. CSC Logic, Inc., 82 F. 3d 651 (5th Cir. 1996).
The defendant is not required to persuade the court that it was actually motivated by the proffered reasons, but it must clearly set forth through the introduction of admissible evidence, reasons why the plaintiff was rejected or someone else was preferred. See Burdine, 450 U.S. at 255. If the defendant carries this burden, the presumption of discrimination is rebutted. The plaintiff retains the ultimate burden of persuasion, so he must then have an opportunity to demonstrate that defendant's proffered reasons for plaintiff's rejection are pretext. McDonnell Douglas, 411 U.S. at 804. The plaintiff may succeed in shouldering his ultimate burden that he has been the victim of intentional discrimination either by directly persuading the court that a discriminatory reason more likely than not motivated the defendant or indirectly by showing that the defendant's stated reasons for rejection is unworthy of credence. Burdine, 450 U.S. at 257 (citing Mc Donnell Douglas, 411 U.S. at 804-805).
Defendant argues that Plaintiff's claims are not cognizable under Title VII because Title VII was intended to address "ultimate employment decisions," such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Dollis v. Rubin, 77 F. 3d 777, 781-782 (5th Cir. 1995); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Claims of denial of training opportunities do not constitute an adverse employment action when the training is peripheral to plaintiff's main duties and plaintiff "produces no significant evidence that a denial of such training would `tend to effect' employment status or benefits. Shackelford v. Deloitte Touche, LLP, 190 F. 3d 398, 406-407 (5th Cir. 1999).
Because Plaintiff's claims are framed such that they relate to a promotion and, in the case of denial of training opportunities, loss of increased opportunity for promotion, the Court will assume arguendo that the actions complained of constitute ultimate employment decisions.
Hostile Work Environment
Defendant asserts that Plaintiff fails to present any evidence that would suffice to amount to a claim of hostile environment. Defendant stresses that there is a notable absence of any allegation that Plaintiff suffered from statements or conduct which are related to Plaintiff's protected status, e.g., his race or age. Defendant contends that nothing on the face of the entire record supports the theory of hostile environment, and therefore Plaintiff cannot show that his workplace was permeated with discrimination sufficient to trigger the protection provided by Title VII.In opposition, Plaintiff argues that Defendant supported the creation of a hostile work environment for Plaintiff and other Hispanic employees through harassment, reprisal and retaliatory tactics.
Title VII of the Civil Rights Act of 1964 states that "it shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise 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." 42 U.S.C. § 2000e-2(a)(1). In 1972 the Act was amended and waived the government's sovereign immunity for suits alleging discrimination in a government workplace on the basis of race, sex, religion, color or national origin, provided that the employee first timely exhausts his or her administrative remedies. Lewis v. Glickman, 1997 WL 276084, at *2 (E.D. La. 1997) (citing 42 U.S.C. §§ 2000e-16, 2000e-16(c)). The United States Supreme Court has held that sexual harassment which is so "severe or pervasive" that it alters the conditions of the victim's employment and creates an abusive working environment violates Title VII. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). The Supreme Court has further held that though racial and sexual harassment may take different forms, the standard governing the two types of claims are one and the same.See Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
In order to establish a prima facie case of racial harassment constituting hostile work environment, the plaintiff must show that (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment complained of was based on race; and (4) the harassment complained of affected a term, condition or privilege of employment. Celestine v. Petroleos De Venezuela, 266 F. 3d 343, 353 (5th Cir. 2001). In determining whether a claim of hostile environment is actionable, the reviewing court must consider all the circumstances, including the frequency of the discriminatory conduct, the severity of the conduct, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Id. at 787-788 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). The above inquiries serve to ensure that Title VII does not become a "a general civility code," Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998), for it is well-settled that the mere utterance of "an ethnic or racial epithet which engenders offensive feelings in an employee" does not sufficiently alter the terms and conditions of employment in a way that violates Title VII. Faragher v. City of Boca Raton, 524 U.S. 775 at 787 ( quoting Rogers v. EEOC, 454 F. 2d 234, 238 (5th Cir. 1971)). Thus, only when the workplace is "permeated with `discriminatory intimidation, ridicule and insult' that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" is Title VII violated. Nat'l Passenger Railroad Co. v. Morgan, 536 U.S. 101, 116 (2002) (quoting Harris v. Forklift Systems, Inc., 510 U.S. at 21).
Plaintiff belongs to a protected group because he is Hispanic and over the age of 40 but he fails to satisfy none of the other requirements for a hostile environment claim. While Plaintiff conclusorily alleges that Defendant created a hostile work environment via harassment, reprisal, and retaliatory tactics, he never specifically points to the specific conduct giving rise to these allegations. The record contains no evidence of any incident wherein Plaintiff was subjected to harassment because of his race or age, i.e., no verbal comments, threats, or disparaging remarks are alleged. Further, Plaintiff does not establish that the various actions allegedly taken against him had any relation to his race or age. Therefore, Defendant's motion to dismiss and/or for summary judgment as to Plaintiff's claim of hostile environment is GRANTED.
The Court notes that the Supreme Court and the Fifth Circuit have not directly decided whether the hostile environment doctrine may be extended to cases governed by the Age Discrimination in Employment Act (ADEA), though other courts which have addressed the issue have imported the hostile environment requirements for sexual and racial harassment to ADEA claims, see, e.g., Lacher v. West, 147 F. Supp 2d 538 (N.D. Tex. 2001). Assuming arguendo that hostile environment is an applicable framework for the analysis of age discrimination, Plaintiff nevertheless fails to produce evidence which would allow him to pursue a viable claim.
Pattern and Practice
Defendant asserts that a pattern and practice claim is inappropriate in this case, and that Plaintiff failed to timely exhaust a pattern and practice claim in the EEO investigation. On the other hand, Plaintiff contends that Defendant engaged in a pattern and practice of harassment and application of unequal treatment toward Plaintiff as demonstrated by "grooming" non-Hispanic employees for certain jobs; granting special assignments and denying of cash awards and promotions to non-Hispanic and non-minority employees; and recommending non-Hispanic and non-minority workers for job openings. Comp. at XI.
A "pattern or practice" claim is not a separate and distinct cause of action under Title VII, but is simply another vehicle by which disparate treatment may be shown. See Mooney v. Aramco Servs. Co., 54 F. 3d 1207, 1219 (5th Cir. 1995). The pattern and practice method of proving discrimination is almost exclusively used in class actions, leaving individual plaintiffs confined to the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Celestine v. Petroleos de Venezuela, SA, 266 F. 3d 343, 354 (5th Cir. 2001).
The McDonnell Douglas framework is discussed infra.
The United States Supreme Court has emphasized the differences between an individual claim of disparate treatment and a pattern or practice claim of discrimination: "The inquiry regarding an individual's claim is the reason for a particular employment decision, while at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions but on a pattern of discriminatory decisionmaking." Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984) (quotingTeamsters v. United States, 431 U.S. 324, 360 n. 46 (1977)). The Supreme Court further delineated the difference between individual and pattern or practice claims when it explained that even if evidence existed that a plaintiff was denied a promotion on discriminatory grounds, such evidence would not necessarily justify additional inferences that such discrimination is typical of the employer's practices or that an employer's practices are motivated by a policy of discrimination, which is the core of a pattern or practice claim. See Cooper, 467 U.S. at 876-877 ( quoting General Telephone Co. v. Falcon, 457 U.S. 147, 157-158 (1982)). Where a pattern or practice claim requires establishing "by a preponderance of the evidence that `discrimination was the company's standard operating procedure — the regular rather than the unusual practice,'" Cooper, 467 U.S. 867, 876 (quoting Teamsters, 431 U.S. 324, 336), a plaintiff proceeding as an individual under Title VII "must prove the elements of a discriminatory . . . claim as set forth inMcDonnell Douglas." Scarlett v. Seaboard Coastline Co., 676 F. 2d 1043, 1053 (5th Cir. 1982) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Turning to the instant case, Plaintiff is proceeding against Defendant individually, and therefore he must prove a prima facie case of discrimination pursuant to the McDonnell Douglas framework. Plaintiff makes no more than unsupported allegations that Defendant's usual employment practices are motivated by a discriminatory policy. Plaintiff has simply failed to point to any evidence indicative of an unlawful discriminatory pattern or practice.
Furthermore, Plaintiff did not timely exhaust a pattern or practice claim with the EEO. Before bringing a Title VII suit, a federal employee must first exhaust his administrative remedies against his federal employer. Fitzgerald v. Sec'y, United States Dept. of Veterans Affairs, 121 F. 3d 203, 206 (5th Cir. 1997). Additionally, "this circuit allows the district court to consider only those grounds of complaint that were raised in the administrative process." Hoffman v. Boeing, 596 F. 2d 683, 685 (5th Cir. 1979). The EEO investigation initially focused on whether Plaintiff was "subjected to a hostile working environment," Def. Exh. A. at Tab 3, and later focus was shifted to a disparate impact analysis. Pattern or practice discrimination was not alleged or investigated because Plaintiff was claiming individual discrimination. Nowhere in the administrative proceedings did Plaintiff allege facts that would have led the EEO to inquire whether Defendant had a pattern or practice of perpetuating discriminatory policies.
Plaintiff argues that he "testified as to the training he was not included in, the promotions and the fact that those promoted were groomed by his supervisors," Rec. Doc. 18 at 8, and that these allegations are indicative of an unlawful pattern or practice. To the contrary, these allegations are indicative of a disparate treatment claim made by an individual plaintiff, not of a class of similarly situated individuals challenging the discriminatory motives of a company's employment policies.
Because Plaintiff did not timely exhaust a pattern or practice claim, and fails to offer any evidence to create an issue of fact as to such a claim, Defendant's motion to dismiss and/or for summary judgment on the pattern or practice claim is GRANTED.
In sum, the evidence of record creates no issue of fact as to whether any of the complained of actions resulted from unlawful employment discrimination.
Accordingly;
IT IS ORDERED that the Motion to Dismiss and/or for Summary Judgment (Rec. Doc. 25) filed by Defendant Department of Treasury should be and is hereby GRANTED. Plaintiff's complaint is DISMISSED WITH PREJUDICE.