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dismissing plaintiff's hostile work environment claim because such claim was never submitted to EEOC
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CIVIL ACTION NO. 01-3813 SECTION "C" (3)
March 14, 2003
ORDER AND REASONS
Before the Court is Defendant's, the United States of America's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil procedure, dismissing all claims against it :or failure to demonstrate a material fact which shows that Plaintiff's termination of employment was in violation of law. For the following reasons Defendant's motion for summary judgment is GRANTED.
I. Background
Plaintiff, Anthony Glover, ("Glover"), an African American male was fired by the Department of the Treasury, Internal Revenue Service in New Orleans, Louisiana (the "agency") on December 31, 1999. The agency removed Plaintiff from his position due to: (1) failure to meet his federal tax obligations; (2) use by Plaintiff: Government issued American Express card for other than official purposes; (3) use by Plaintiff of Government issued vehicle for other than official purposes; (4) failure to observe duty hours; and (5) providing false and/or misleading information in connection with a matter of official interest. Clover appeals from the decision of the Merit Systems Protection Board ("MSPB") administrative law judge affirming the agency's decision.
Under The Office of Government Ethics ("OGE") Standards of Ethical conduct, Subpart A, General principles, 2635.101(b) (12), which states: "Employees shall satisfy in good faith their obligations as citizens, including all financial obligations, especially those — such as Federal State and local taxes — that are impose by law." ( See Rec. Doc. 24, Ex. A at 2)
II. Summary Judgment
A district court can grant a motion for summary judgment only when 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.''"" Celotex Corp. v. Catrett:, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). Vhen considertng a motion for summary judgment, the district court ""will review the facts drawing all inferences most favorable to the party opposing the motion."" Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find ""[a] factual dispute . . . [to be] ``genuine'' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] ``material'' if it might affect the outcome of the suit under the governing substantive law."" Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
""If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial."" Engstrom v. First Nat"l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. ""If the evidence is merely colorable, or is not significantly probative,"" summary judgment is appropriate. Id. at 249-50 (citations omitted).
III. Analysis
Under 5 U.S.C. § 7703 (b)(2), this matter is filed in this Court, as opposed to the United States Court of Appeals for the Federal Circuit under 5 U.S.C. § 7703 (a)(2), because it includes allegations of discrimination made by the plaintiff. "A MSPB appeal that raises a discrimination claim in addition to the non-discrimination MSPB reviewable action is called a `mixed case appeal.'" Burrell v. United States Postal Service, 2001 U.S. Dist. LEXIS 5066, at *9, 2001 WL 388056 at *4 (E.D.La., Apr. 16, 2001) (J. Barbier). "The non-discrimination claim is reviewed under the same deferential standard applicable to Federal Circuit review but plaintiff is entitled to trial de novo of the Title VII discrimination claim with appeal rights to the appropriate circuit court." Id.; 5 U.S.C. § 7703 (c).
In his Complaint, Plaintiff alleges disparate treatment and that "he was subject[ed] to a hostile work environment and ultimately terminated on the basis of his race in violation of the Civil Rights Act, Title VII." (Rec. Doc. 1, ¶ 5). Plaintiff does not expressly allege any non-discriminatory claims in his Comolaint, however, implicit in his discrimination claims is a challenge of the Administrative Law Judge's ("ALJ") findings regarding the non-discrimination claims.
These non-discrimination claims concern whether the ALJ's findings that Plaintiff: (1) failed to meet his federal tax obligations; (2) used his Government issued American Express card for other than official purposes; (3) used his Government issued vehicle for other than official purposes; (4) failed to observe duty hours; and (5) provided false and/or misleading information in connection with a matter of official interest were supported by substantial evidence.
A. Non-Discrimination Claims
The appropriate standard of review for the Court is codified 5 U.S.C. § 7703 (c) as follows:
. . . the court shall review the record and hold unlawful and set aside any agency action, findings, or
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence;
( Id.)
A narrow and deferential standard is applied to non-discrimination claims. Dunbar v. Brown, 1999 U.S. Dist. LEXIS 4441, at *11-12, 1999 WL 179468 (E.D.La., Mar. 29, 1999) (M. J. Chasez). "Under this standard of review, a court will not overturn an agency decision if it is supported by `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' The question is . . . whether the administrative determination is supper ted by substantial evidence on the record as a whole. Evidence supporting the agency's finding, as well as evidence offered in opposition, must be examined." Boylan v. United States Postal Service, 704 F.2d 573, 574-575 (11th Cir. 1983), cert. denied, 466 U.S. 939, 80 L.Ed.2d 464, 104 S.Ct. 1916 (1984) (internal citations omitted). "The court will affirm a decision of the MSPB sustaining the termination of a federal employee if the "decision complies with the applicable statute and regulations and [if] it has a rational basis supported by substantial evidence from the record taken as a whole.'" Jones v. Secretary, Department of the Army, 912 F. Supp. 1397, 1413 (D.Kan. 1995) (internal citatiins omitted).
The evidence in the record overwhelmingly supports the decision of the MSPB Administrative Law Judge with respect to the five grounds which served as the agency's basis for dismissal. The ALJ thoroughly and patiently considered each contested specification and addressed each allegation individually. Not all of the contested specifications were sustained, however, the ALJ found sustainable specifications to support all five charges.
First, the ALJ found plaintiff's testimony "inconsistent" and "less than credible" with respect to his failure to timely file his 1996 and 1997 tax returns. ( See Rec. Doc. 24, Ex. A, at 4). Prior to the commencement of the investigation that ultimately lead to Plaintiff's removal, he had "admitted in writing that he understood and accepted "full responsibility for the [tax] documents not being timely filed.'" ( Id.). Second, Plaintiff stipulated to 56 specifications of unauthorized use of his government-issued credit card for other than official purposes. ( Id. at 5). Third, substantial evidence exists regarding unauthorized use of his government-issued automobile for other than official purposes. The ALJ found Plaintiff's testimony that he was conducting surveillance work not credible given the lack of surveillance notes or logs for the time period, nor any indication of surveillance work on his Weekly Time Report. Further, Plaintiff's supervisor Joe Flynt testified that Plaintiff required his permission to conduct surveillance and none had been requested or authorized. Fourth, the ALJ found substantial evidence existed to indicate that Plaintiff failed to observe designated duty hours for work not performed on August 26, 1998. Plaintiff "offered no explanation whatsoever for his activities on the morning of August 26, 1998." ( Id. at 12). Fifth, the ALJ found that Plaintiff made false or misleading statements to investigators on several occasions regarding the use of his government issued American Express card, his whereabouts during working hours, his actual time spent working, and his milage accrued during surveillance work.
Because the evidence in the record overwhelmingly supports the decision of the MSPB Administrative Law Judge with respect to the agency's five charges, summary judgment in favor of Defendant is appropriate with respect to Plaintiff's implicit non-discrimination claims.
B. Discrimination Claims
Under 5 U.S.C. § 7703 (c) Plaintiff's claims of discrimination are entitled to de novo review. In his Complaint, Plaintiff claims that he suffered disparate treatment due to his race and that he was subjected to a hostile work environment.
1. Disparate Treatment
To succeed on a claim of employment discrimination based on disparate treatment, a Title VII plaintiff bears the initial burden to prove a prima facie case of discrimination by a preponderance of the evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). A prima facie case of discrimination consists of a plaintiff showing (1) that he was discharged; (2) that he was qualified for the position; (3) that he was a member of the protected class at the time of discharge; and (4) that he was replaced by someone outside the protected class. See Haynes v. Pennzoil Co., 207 F.3d 296, 2000 WL 290167, at *3 (5th Cir. 2000); see also St. Mary's Honor Center v. Hicks; 509 U.S. 502, 506, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). Essentially, to succeed on a Title VII disparate treatment claim, Plaintiff must show that the conduct that he engaged in that resulted in discharge was nearly identical to that of other unprotected employees who were retained. See Safford v. St. Tammany Parish Fire Prot. Dist. No. 1, 2002 U.S. Dist. LEXIS 11986, at *39 (E.D.Ua., June 24, 2002) citing Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. Unit B 1982).
Here, Plaintiff has failed to establish a prima facie case of disparate treatment. First, he has failed to offer any comparison employees. Second, he has failed to offer any evidence that the agency officials involved in the decision to terminate his employment were motivated by racial animus. William Cowan, the agent who proposed the removal of Plaintiff is African American and Richard Byrd, the deciding officer, who made the final decision to discharge Plaintiff is African American, as well. (Rec. Doc. 24 at 2, ¶¶ 4 5). Byrd stated that the decision to discharge Plaintiff was not motivated by race, but rather based on five matters of misconduct, including untruthfulness which impacted Plaintiff's ability to perform his duties as an agent. ( See id., Ex. B at 161-87 Ex. I). Finally, the crux of Plaintiff's argument is that his immediate supervisor, Joe Flynt subjected him to racial animus and that this animosity provoked Flynt to report Plaintiff's misconduct. However, Plaintiff has failed to submit any evidence that Flynt had any involvement in the final decision to terminate his employment.
Based on the above, Plaintiff has failed to establish a prima facie case of discrimination based on disparate treatment, therefore, summary judgment in favor of Defendant is appropriate.
2. Hostile Work Environment
"A prima facie case of racial 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 race; (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." Celestine v. Petroleos de Venez. SA, 266 F.3d 343, 353 (5th Cir. 2001), citing Watts v. Kroger Co., 170 F.3d 505, 509-10 (5th Cir. 1999); Jones v. Flagship Int'l, 793 F.2d 714, 719-720 (5th Cir. 1986). To support a claim of hostile work environment, the alleged conduct must be severe and pervasive. See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). The Court's inquiry focuses on factors including "the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance." Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 655-56 (5th Cir. 2002) (citing Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Clr. 1996).
"However, this well-established five-part test has recently undergone a revision, with the Supreme Court ruling that in Title VII harassment cases, where 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." Celestine, 266 F.3d at 353-54, citing Faragher, 524 U.S. at 807. "Once the plaintiff makes the four-part showing that they have been harassed by a supervisor, the `employer is subject to vicarious liability to a victimized employee' for the supervisor's conduct. Id. An affirmative defense is available to employers in certain circumstances under Faragher, provided that the supervisor's harassment did not culminate with any `tangible employment action' against the employee. Id. at n. 3, citing Faragher, 524 U.S. at 807
Although Plaintiff need only establish the first four elements because his complained of harasser, Flynt held a supervisory position over him, nonetheless, Plaintiff has failed to establish that the harassment complained of affected a term, condition or privilege of employment. Although the Court agrees with John Butkovich, Special Agent in Charge ("SAC") for the Office of Investigations that the Poll Tax document and the ex-slave interview that Flynt brought to the office were "probably not appropriate for the workplace," (Rec. Doc. 24, Ex. G at 111), the Court does not find this alleged conduct to be "sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment." Watts, 170 F.3d at 509. This finding is supported by the fact that there is no evidence that Plaintiff ever filed any complaint or grievance concerning race or workplace hostility while employed with the Department of the Treasury.
Based on the above, Plaintiff has failed to establish a prima facie case of hostile work environment, therefore, summary judgment for Defendant is appropriate.
Further, summary judgment dismissing Plaintiff's hostile work environment claim is also appropriate because such a claim was never brought during the administrative proceedings below. "As a precondition to filing suit in federal court, Title VII specifically requires a federal employee claiming discrimination to exhaust his administrative remedies." Randel v. United States Dep't of Navy, 157 F.3d 392, 395 (5th Cir. 1998), citing Brown v. General Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 1965, 48 U. Ed.2d 402 (1976); see also Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir. 1979). A judicial complaint that fails to exhaust administrative remedies is properly subject to dismissal. Hoffman, 596 F.2d at 685. "Further, this circuit allows the district court to consider only those grounds of [the] complaint that were raised in the administrative process." Id.; see also Anderson v. Lewis Rail Service Co., 868 F.2d 774 (5th Cir. 1989); Brown v. Chalmette Med. Ctr., 1999 U.S. Dist. LEXIS 16099 at * 11, 1999 WL 820550 at *4 (E.D. La. Oct. 14, 1999) (J. Vance).
"The scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000). "[A] judicial complaint filed pursuant to Title VII may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission." Nat'l Assoc. of Gov't Employees, 40 F.3d at 711, quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970) (emphasis added and citation omitted in National Association). "This is because `the civil action is much more intimately related, to the EEOC investigation than to the words of the charge which originally triggered the investigation.'" Id. "`[The EEOC] charge, enlarged only by such EEOC investigation as reasonably proceeds therefrom, fix[es] the scope of the charging party's subsequent right to institute a civil suit. The suit filed may encompass only "the discrimination stated in the charge itself or developed in the course of a reasonable [EEOC] investigation of that charge.'" Nat'l Assoc. of Gov't Employees, 40 F.3d at 711-12, quoting King v. Seaboard Coastline R. Co., 538 F.2d 581, 583 (4th Cir. 1976) (footnote and citation omitted); see also Johnson v. General Electric, 840 F.2d 132, 139 (1st Cir. 1988) (Suit may include "reasonably related" noncharged "new acts occurring during the pendency of the charge before the EEOC"); and Ray v. Freeman, 626 F.2d 439 (5th Cir. 1980).
Although the issue of whether Plaintiff was discharged on the basis of race was reviewed by the ALJ, no similar inspection of Plaintiff's asserted claims of hostile work environment took place at the administrative level. Granted, the ALJ did examine the incidents that Plaintiff alleges serve as the basis of his hostile work environment claim, however, these facts were not examined and applied by the ALJ under the hostile work environment standard. Yet, whether these facts are "reasonably related" is of no moment here because the Court has assessed these facts above under the proper standard for a claim of hostile work environment and found them lacking.
IV. Conclusion
Upon review of the motions, memorandum, the record as a whole and the applicable law, the Court finds the evidence overwhelmingly supports decision of the MSPB Administrative Law Judge with respect to Plaintiff's non-discrimination claims. Further, Plaintiff has failed to establish a prima facie case for discrimination based on disparate treatment and hostile work environment. Therefore, Plaintiff's termination of employment was not in violation of law.
Accordingly, IT IS ORDERED that Defendant's, the United States of America's Motion for Summary Judgment dismissing all claims against it is GRANTED.