Opinion
CIVIL ACTION NO. 02-CV-2173
July 30, 2003
MEMORANDUM AND ORDER
MEMORANDUM
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 31, 1995, James F. Van Houten ("Plaintiff"), was transferred from his position at the Department of Veterans Affairs ("Agency") as an Insurance Phone Specialist trainee, a GS-5 position with exceptional promotional potential, to a Claims Clerk, a GS-5 position with less opportunity for advancement. (Document No. 19 at p. 2 (herein "Pl. Decl. at "x")). Plaintiff claimed that he was reassigned from the Insurance Phone Specialist trainee position because he was discriminated against based upon his alleged disability due to carpal tunnel syndrome. (Pl. Decl. at p. 1). The Plaintiff filed a formal EEO complaint on July 18, 1995, naming Jackie Howard, Chief of the Policyholder Service Division, as the responsible management official. (Pl. Decl. at p. 1). On April 18, 1996, the Plaintiff filed another EEO complaint alleging that the May 31, 1995 reassignment was discriminatory on the basis of reprisal, again naming Jackie Howard as the responsible management official. On March 18, 1997, a third EEO complaint was filed, naming Thomas Lastowka, Director of the Philadelphia Veteran Affairs Regional Office, as the responsible management official. (Document No. 16, Ex. Admin. Rec. at p. 27 (herein as "D. Motion at p. "x")).
On August 13, 1997, the EEOC issued a decision, affirming the Agency's final decision to dismiss the Plaintiff's allegations of discriminatory job transfer. On January 20, 1998, the Plaintiff filed suit in the this Court seeking a de novo review of his complaints. In a companion case to the instant matter, this Court granted the Defendant Hershel Gober's motion for summary judgment and dismissed the action, holding that the Agency's decision to transfer the Plaintiff was not discriminatory under the Rehabilitation Act of 1973. See James F. Van Houten v. Hershel Gober, 98-CV-0270 (E.D. Pa. June 6, 2003).
The Plaintiff's current complaint alleges that the Agency discriminated against the Plaintiff by not selecting him for two promotional opportunities. The Plaintiff claims the discrimination was retaliatory for the Plaintiff's previously filed EEO complaints against the Agency on July 11, 1995, April 17, 1996, and March 18, 1997. After the Plaintiff's reassignment to Claims Clerk in May of 1995, Jeffrey Branin became the Plaintiff's new supervisor. (Pl. Decl. at p. 2). During the course of the Plaintiff's employment under Branin's supervision, the Plaintiff revealed to Branin, among others, that he filed a number of EEO complaints against the Agency, and that he felt that the Agency discriminated against him when they transferred him from Insurance Phone Specialist trainee to Claims Clerk. (D. Motion, Ex. Admin. Rec. at pp. 300-01). It is clear that Branin had knowledge of the Plaintiff's grievances with the EEOC.
Branin's email to Donald Cooper, a management official at the Agency, irrefragably establishes that Branin had knowledge of the Plaintiff's prior EEO activity. The entire unedited email reads as follows:
"jim vanhouten yesterday showed me an article in the federal times. an employee with a disability had won a 300 grand eeo judgment. jim advised that it would be his turn next. jim has met with joe malizia on five separate occasions during the past two weeks to go over the transcripts generated by the eeo investigator. jim does have an attorney representing him. i did check with mary bates. she indicated i shouldn't make waves about jim also availing himself of union assistance as well. with workload being light at the cat level, jim's visits to the union office aren't currently hurting our customers. jeff."
(Pl. Decl. at Ex. A)
In March 1998, the Agency posted a vacancy announcement for a Veterans Claim Examiner (Announcement #B-647), a GS-7/9 position. (Pl. Decl. at Ex. D). Plaintiff applied for the position. As part of the application process, Branin was required to submit a "Supervisory Appraisal of Employee Promotion" form on behalf of the Plaintiff. The form evaluated the Plaintiff for: (i) knowledge of VA life insurance rules, regulations, and procedures; (ii) ability to demonstrate interpersonal oral communication skills; (iii) ability to communicate in writing; and (iv) skill in analyzing data and making decision. (D. Motion, Ex. Admin. Rec. at pp. 0828-0830). The Plaintiff was not selected for an interview. The Agency interviewed eleven people and two were hired. (Pl. Decl. at Ex. D). Subsequently, on July 14, 1998, amended on August 26, 1998, the Plaintiff filed another EEO complaint alleging that Branin's mediocre evaluation was in retaliation for the previous EEO complaints that the Plaintiff filed against the Agency on July 11, 1995, April 17, 1996, and March 18, 1997. (Pl. Decl. at pp. 2-3).
The "Supervisory Appraisal of Employee Promotion" form required Branin to evaluate the Plaintiff on a numerical scale of one to five. Branin rated the Plaintiff's knowledge of VA rules as a three, ability to orally communicate as a three, and skill in analyzing data and making decisions as a three. Branin had insufficient first-hand experience with the Plaintiff's writing ability, and therefore did not evaluate the Plaintiff in this category. (D. Motion, Ex. Admin. Rec. at pp. 0828-0830). However, based upon the Plaintiff's activities outside the scope of his section duties, the Plaintiff's oral communication rating was raised from a three to a four. (D. Motion, Ex. Admin. Rec. at pp. 256-57).
In November 1998, the Agency posted a vacancy announcement for a Veterans Claims Trainee/Examiner (Announcement #B-684), a GS-5/7 position. The Agency had seven vacancies, and the Plaintiff applied for the position. (Pl. Decl. at Ex. E). Again, Branin was required to submit a "Supervisory Appraisal of Employee Promotion" form. The Plaintiff was one of twenty-two people selected to interview for the vacancies. (Pl. Decl. at Ex. E). However, the Plaintiff was not selected for any of the positions. (Pl. Decl. at Ex. E). The Plaintiff felt that his non-selection was a form of discriminatory reprisal, and on June 27, 2000, he submitted a formal request to amend his previous August 26, 1998 EEO complaint to include the alleged discriminatory non-selection for vacancy Announcement #B-684. The amendment was accepted on July 12, 2000. (D. Motion, Ex. Admin. Rec. at pp. 0485-86). After an administrative hearing, an EEOC administrative judge issued a finding of no discrimination, and the Agency's final order adopted the administrative judge's order of judgment. On February 28, 2002, the EEOC affirmed the Agency's final order of no discrimination.
When the Plaintiff applied for vacancy Announcement #B-684, he simultaneously applied for a position as Lead Claim Adjustment Technician, a GS-6 position. On May 24, 2000, when the Plaintiff was informed that he was not selected for vacancy Announcement #B-684, he was also notified that he was accepted and promoted to the Lead Claims Adjustment Technician, a GS-6 position. (D. Motion, Ex. Admin. Rec. at pp. 0486, 0513).
Presently before this Court are: (i) Defendant's Motion for Summary Judgment (Document No. 16, filed January 24, 2003); and (ii) Plaintiff's Response in Opposition to Defendant's Motion. (Document No. 18, filed February 25, 2003). II. DISCUSSION
This Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-16. See Sperling v. U.S., 515 F.2d 465, 468 (3d Cir. 1975); Koschoff v. Henderson, 109 F. Supp.2d 332, 349 (E.D. Pa. 2000). Summary judgment may be granted only "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). Upon a motion for summary judgment, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). An issue is genuine if the evidence is such that a reasonable jury could return a judgment in favor of the non-moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S. Ct 2505, 2510, 91 L.Ed.2d 202 (1986);Williams v. Borough of West Chester, Pa., 891 F.2d 458, 459 (3d Cir. 1989). Lastly, all facts must be viewed in the light most favorable to the non-moving party, and all reasonable inferences must be drawn from the evidence presented by the non-moving party. Anderson, 477 U.S. at 255; Gass v. Virgin Islands Tel. Corp., 311 F.3d 237, 240 (3d Cir. 2002).
To establish a prima facie case of retaliatory discrimination under Title VII, the employee must satisfy a tripartite test: (i) the employee engaged in protected activity under Title VII; (ii) the employer took an adverse employment action after or contemporaneous with the protected activity; and (iii) a nexus or causal link exists between the protected employee activity and the adverse employer action. See, e.g., Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001); Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989). Protected employee activity under Title VII is construed broadly to include when an employee has filed a formal EEO charge, as well as when an employee has "testified, assisted, or participated in any manner in an investigation, proceeding, or hearing." 42 U.S.C. § 2000e-3(a).
Similar statutory language is found in the Equal Employment Opportunity Regulations:
"No person shall be subject to retaliation for opposing any practice made unlawful by Title VII . . . or for participating in any stage of administrative or judicial proceedings under those statutes."29 C.F.R. § 1614.101(b).
Similarly, adverse employment actions are not restricted merely to firing an employee. In Ellerth, the Supreme Court stated that a "tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998); accord Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999). Typically, an adverse employment action bears economic change and hardship on the subjected employee. See Ellerth, 524 U.S. at 762.
The third prong of a prima facie retaliation claim demands that the plaintiff prove a causal link between the protected employee activity and the adverse employer action. The temporal proximity between the protected employee conduct and the adverse employee action can be one useful factor indicating a retaliatory intent. Notwithstanding, temporal proximity alone will generally "be insufficient to establish the necessary casual connection when the temporal relationship is not `unusually suggestive.'"Farrell, 206 F.3d at 280 (citing Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997); see Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001); see, e.g., Weston, 251 F.3d at 431 ("With one exception, we have never held that timing alone can be sufficient to establish causation."); Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (evidence of a nineteen month gap, without more, was too distant to create a genuine issue of fact); but see Jalil, 873 F.2d at 708 (holding that the employee demonstrated a casual link where the adverse action occurred just two days after the protected conduct.).
Absent "unusually suggestive" temporal proximity, the plaintiff can infer a retaliatory motive using circumstantial evidence to establish a "pattern of antagonism" or "retaliatory animus" in the intervening time period between the protected activity and the adverse action. Farrell, 206 F.3d at 281. However, proving a "pattern of antagonism" or "retaliatory animus" does not operate as the exclusive method for establishing causation, "as the proffered evidence, looked at as a whole, may suffice to raise the inference." Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997); see also Farrell, 206 F.3d at 281 ("we have been willing to explore the record in search of evidence, and our caselaw has set forth no limits on what we have been willing to consider.").
If the employee establishes a prima facie case of retaliation, then the burden of production "shifts to the employer to articulate some legitimate non-retaliatory reason for the adverse action." Delli Santi v. CNA Ins. Co., 88 F.3d 192, 199 (3d Cir. 1996) (citation omitted); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). "The [employer's] burden at this stage is relatively light," although the reason for the adverse employment action must be "clear and reasonably specific." Bazargani v. Haverford State Hosp., 90 F. Supp.2d 643, 650 (E.D. Pa. 2000) (quotations omitted). If the employer establishes a legitimate non-retaliatory justification for the adverse action, then the burden of production shifts back to the employee to prove, by a preponderance of the evidence, "both that the reason given by the employer was false, and that retaliation was the real reason.'" Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 92 (3d Cir. 1999) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993)).
The Plaintiff has undoubtedly engaged in protected employee activity under Title VII. Each of the EEO complaints and their respective amendments are protected employee activities under Title VII. Furthermore, the Plaintiff also took part in protected employee activity whenever he "testified, assisted, or participated in any manner in an investigation, proceeding, or hearing." 42 U.S.C. § 2000e-3(a).
Similarly, adverse employer conduct is much broader than firing an employee; it also includes "failing to promote" an employee. Ellerth, 524 U.S. at 761. Specifically, the Defendant took two adverse employment actions against the Plaintiff: (i) failing to promote the Plaintiff pursuant to his application for vacancy Announcement #B-647; and (ii) failing to promote the Plaintiff pursuant to his application for vacancy Announcement #B-684. However, the Plaintiff cannot sustain a prima facie retaliation claim unless the Plaintiff can prove that the adverse employment actions resulted from the Plaintiff exercising his right to engage in protected activity under Title VII.
Reiterating, the Plaintiff can establish a nexus or causal link between the protected activity and adverse conduct by asserting "unusually suggestive" temporal proximity between the protected activity and adverse action. If the temporal proximity is not "unusually suggestive," as it rarely is, then the Plaintiff can also establish causation by proving either a "pattern of antagonism" or "retaliatory animus" during the intervening time period between the protected activity and adverse action. However, the cardinal overriding legal precept in discriminatory retaliation claims is that no exclusive or exhaustive factors can extinguish a claim of retaliatory discrimination based upon a lack of causation. Rather, the courts are willing to evaluate the record as a whole, and consider the totality of circumstances to establish a causal link between the protected employee activity and the adverse employer conduct.
In this case, the precise temporal proximity between the protected employee activity and the adverse employer conduct is not limpid. The two points of adverse employment actions are clear: (i) on or about June 29, 1998, the Plaintiff was notified that he was not selected to interview for vacancy Announcement #B-647; and (ii) on or about May 24, 2000, the Plaintiff was notified that, although he was selected for an interview, he was not promoted under vacancy Announcement #B-684. (D. Motion, Ex. Admin. Rec. at p. 0486). However, the reference points for the Plaintiff's most recent protected employee activity before each of the two adverse employment decision dates are less obvious. Plaintiff's March 18, 1997 EEO complaint serves as a guidepost, delineating the earliest plausible date when the Plaintiff engaged in protected activity — sixteen months after the employer's initial adverse action. The Plaintiff claims that the March 18, 1997 filing of the EEO complaint is not the latest date when the Plaintiff engaged in protected activity. Specifically, the Plaintiff claims that he has:
"pursued [his] EEO complaints through the administrative process. This active pursuit included requesting time off from [his] job to meet with [his] representatives to prepare affidavits, meet[ing] with EEO investigators, review[ing] investigative materials contained in official reports and receiving advise and counsel."
(Pl. Decl. at p. 3).
Startlingly, the Plaintiff does not suggest to the Court a more accurate date of reference to measure the temporal proximity. However, based upon Branin's October 10, 1997 email, the Plaintiff was engaging in protected employee activity at least up until the date of the email. (Pl. Decl. at Ex. A, supra). Therefore, October 10, 1997, the date of the email, is the latest ascertainable date when the Plaintiff engaged in protected activity — roughly eight months before the June 29, 1998 adverse employment action.
Regardless of the precise dates of the protected employee activity, it is irrefutable that the temporal proximity is not "unusually suggestive," and therefore Plaintiff needs to show something more to establish a causal link with the Defendant's June 29, 1998 decision not to promote the Plaintiff under vacancy Announcement #B-647. Similarly, the Plaintiff does not suggest that the temporal proximity between any instance of protected employee activity and the second adverse employer decision on May 24, 2000, is "unusually suggestive." Therefore, the Plaintiff must establish causation by other means.
On August 26, 1998, the Plaintiff filed an EEO complaint alleging that the Defendant's decision not to promote the Plaintiff under vacancy Announcement #B-647 was discriminatory reprisal, and therefore, August 26, 1998, will be used as the latest reference point for protected employee activity in conjunction with the May 24, 2000 adverse employment decision not to promote the Plaintiff under vacancy Announcement #B-684. For sake of clarification, it is worthy to note that the Plaintiff's consecutive EEO complaints and amendments are tautological, as each complaint essentially claims discriminatory reprisal based upon the Plaintiff's previously filed EEO complaint or amendment.
The Plaintiff's Response is almost entirely devoted to advocating "that there is no per se law precluding a retaliation claim based on the length of time between the prior protected activity and the retaliatory act." (Pl. Resp. at p. 5). While we agree that there is no per se law precluding retaliation claims based merely on temporal proximity, the Plaintiff's Response nevertheless lacks enough evidence to allow this Court to deduce or infer a nexus between the protected employee activity and the retaliatory act. The Plaintiff's two pivotal claims in favor of a causal link are: (i) the Plaintiff has "demonstrably better qualifications than all of the selectees" (Pl. Resp. at pp. 6-7); and (ii) Branin's email demonstrates resentment towards the Plaintiff's protected employee activities (Pl. Decl. at Ex. A, supra). Neither argument is persuasive.
Plaintiff's "Supervisory Appraisal of Employee Promotion" form does not suggest that the Plaintiff had "demonstrably better qualifications than all of the selectees." (Pl. Resp. at p. 6). In fact, the evaluation indicates that the Plaintiff was merely average, or slightly below average. (D. Motion, Ex. Admin. Rec. at pp. 0828-0830). For example, on the evaluation form under the heading "Knowledge of VA life insurance rules, regulations and procedures," Plaintiff received an effectiveness rating of 107.7%. However, the group average effectiveness rating was 109.2%. (D. Motion, Ex. Admin. Rec. at p. 0828). Furthermore, the evaluation states that "Jim has demonstrated this rating factor to the full extent expected of a fully competent employee." (D. Motion, Ex. Admin. Rec. at p. 0828). The effectiveness rating and Branin's evaluation indicates that the Plaintiff was average or very slightly below average among his peers at the Claims Clerk GS-5 level. Therefore, if the Plaintiff is roughly average among his GS-5 peers, it is not surprising that the Plaintiff did not receive an interview for vacancy Announcement #B-647, a GS-7/9 position. The Plaintiff did receive an interview for vacancy Announcement #B-684, a GS-5/7 position, but not an offer of employment. Lastly, the Plaintiff was offered a promotional position to Leads Claim Clerk, a GS-6 position.
This progression is logical; the Plaintiff was below average among GS-7/9 employees, slightly below average to average among GS-5/7 employees, and competitive among GS-6 employees. Moreover, only 18%, or two-out-of-eleven, of the potential employees that were interviewed for the GS-7/9 position were eventually hired. (Pl. Decl. at Ex. D). Likewise, only 32%, or seven-out-of-twenty-two, of the interviewed employees were hired for the GS-5/7 position. (Pl. Decl. at Ex. E). Clearly, the VA had a large applicant pool for both positions, and the Plaintiff must assert something more than the mere suggestion that he has "demonstrably better qualifications than all of the selectees," to successfully establish a discriminatory causal link between his protected activity and his non-selection for vacancy Announcements #B-647 and #B-684. (Pl. Resp. at p. 6).
Second, the Plaintiff alleges that Branin's email establishes that Branin resented the Plaintiff's protected employee activities. To the contrary, the email shows that Branin's primary concern was to effectively serve the VA's customers. Branin's email plainly states that, "with workload currently being light at the cat level, [J]im's visits to the union office aren't currently hurting out customers." (Pl. Decl. at Ex. A, supra). The email reveals no animus or resentment towards the Plaintiff and does nothing to shed any light on the motive for the Agency's adverse employer action against the Plaintiff.
III. CONCLUSION
Based upon these facts, a reasonably jury could not return a judgment in favor of the Plaintiff, and therefore summary judgment for the Defendant is proper. This Court holds that the Plaintiff has failed to establish a prima facie case of retaliation, and therefore we will forgo the remainder of the McDonnell Douglas burden-shifting analysis; Defendant's Motion for Summary Judgment is granted. An appropriate order follows.
Defendant's Motion for Summary Judgment asserts that the Plaintiff failed to prove a prima facie case of retaliatory discrimination, and therefore this Court is not inclined to address the remainder of theMcDonnell Douglas burden-shifting analysis. (D Motion at p. 13).