Opinion
CIVIL ACTION NO. 02-8628.
May 19, 2004
MEMORANDUM AND ORDER
Currently before the Court are Defendant's Motion for Summary Judgment (Docket No. 9), Plaintiff's Response (Docket No. 14), Defendant's Reply (Docket No. 15), and Plaintiff's Sur-Reply (Docket Nos. 16, 17, 18, 19, 20).
I. BACKGROUND
To the extent the facts are in dispute, they are presented in the light most favorable to the Plaintiff. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993).
This case concerns the National Park Service's ("Park Service") alleged discriminatory employment actions against Plaintiff Sandra L. Knight ("Plaintiff"). Plaintiff, a white, homosexual female, asserts claims for discrimination based on gender, race, and perceived disability, and a retaliation claim. The claims derive from Plaintiff's removal from federal law enforcement training and her subsequent disqualification from a law enforcement position.
Plaintiff was employed as a seasonal park ranger in Sequoia National Park, California, when, on August 15, 1995, she was selected in a competitive search to fill a vacant law enforcement position at Independence National Historic Park ("the Park") in Philadelphia, Pennsylvania. Receipt of a permanent law enforcement commission in the Park Service is conditioned on successful completion of a background check and graduation from law enforcement training. To complete her background check, Plaintiff filled out a Standard Form 86 Questionnaire for Sensitive Position ("SF-86") and an SF-171. She began working preliminarily at Independence National Historic Park in September 1995 at the GS-5 salary grade level. Shortly thereafter her salary was increased to the GS-7 level.
Between September 1995 and February 1996 Plaintiff alleges that some of her superiors made derogatory remarks among each other regarding her gender and sexual preference. Specifically, Plaintiff points to the behavior of Hollis Provins, Chief Ranger at the Park, and Pat Bowman, the Assistant Chief Ranger, who allegedly commented: "If you let one in, it opens the door for a dozen more." Report of EEOC Investigation at 2-3 (Docket No. 14, Ex. B).
In February 1996 the Park Service sent Plaintiff to the Federal Law Enforcement Training Center ("FLETC") in Glynco, Georgia. While Plaintiff was at training, the Office of Personnel Management ("OPM"), which is responsible for performing background investigations, discovered potentially serious issues with certain responses on Plaintiff's SF-86 and SF-171. Plaintiff responded "No" to questions asking if she had "experienced problems on or off the job because of any emotional or mental condition" and if she had "ever seen a health care professional for any of the types of problems mentioned above." SF-86 questions 24a-b (Docket No. 9 at 3). Plaintiff also responded "No" to questions asking if she abused illegal drugs or alcohol and if she had ever received or applied for "retirement pay, pension, or other pay based on military, Federal civilian, or District of Columbia government service." SF-86 questions 25a-b, SF-171 question 46 (Docket No. 9 at 3). Despite responding "No" to these questions, Plaintiff voluntarily disclosed during an interview with OPM that she in fact had seen a psychologist regarding issues from a previous relationship, smoked marijuana a few times, used hallucinogenic mushrooms, attended Alcoholics Anonymous meetings because of a family history of alcohol abuse, and received disability payments for an injury suffered while serving in the United States Navy.
On or about April 22, 1996, OPM informed the Park Service of the questionnaire issues. Captain Roger Gross, regional law enforcement specialist in Philadelphia, wrote a memorandum to Major Dale Dickerhoof, the Park Service's chief law enforcement officer based in Washington, D.C., recommending that Plaintiff be disqualified for a law enforcement position. See Gross Memo, April, 30, 1996 (Docket No. 10, Ex. C). Based on Captain Gross's recommendation, Plaintiff was removed from FLETC on May 1, 1996, about one week before she would have graduated.
Plaintiff returned to Philadelphia where she attempted, with no success, to speak with Chief Ranger Provins and Captain Gross about the background issues. On May 6, 1996, Plaintiff met with Assistant Chief Ranger Bowman. She asked Bowman why she had been removed from FLETC and what issues had surfaced with her background check, but Bowman told her only that the issues were "grave" and that she would be disqualified for a law enforcement commission. Plaintiff interprets the meeting as an attempt by Bowman to discourage her from pursuing a law enforcement position at the Park. A few days later Plaintiff received a phone call from Captain Gross, who explained to her the background issues. He thought Plaintiff had intentionally provided false information in her background questionnaires and he was recommending that she be disqualified for a law enforcement position. Based on Captain Gross's recommendation, Major Dickerhoof disqualified Plaintiff. Park Service officials never investigated the alleged issues in Plaintiff's background report and never gave her an opportunity to explain her questionnaire answers before disqualifying her.
When Plaintiff eventually saw a copy of her background report, she was struck by the many references to her gender, sexual preference, and chronic medical conditions, Meniere's disease and Hepatitis C. She alleges that her gender, homosexuality, and perceived disabilities, which were referenced multiple times in her background report, were factors in the decision to abruptly remove her from training and in Captain Gross's decision to recommend that she be disqualified.
Meniere's disease is a disorder of the inner ear affecting balance and hearing, characterized by vertigo, dizziness, loss of hearing, and tinnitus.
Plaintiff sought redress through a number of channels. In June 1996 she filed a grievance through the Fraternal Order of Police with the help of a union representative and even contacted her congressperson regarding a congressional inquiry about the alleged discriminatory treatment she was receiving. She also pursued Major Dickerhoof and Captain Gross, seeking re-adjudication of her disqualification. In August 1996 Captain Gross agreed to rescind his recommendation to disqualify Plaintiff because she had voluntarily provided accurate background information at her OPM interview. See Gross Letter, Aug. 21, 1996 (Docket No. 14, Ex. K-5). Based on Captain Gross's new recommendation, Major Dickerhoof agreed to reconsider his decision, acknowledging in a letter that the initial reasons for her disqualification may have been false. Major Dickerhoof requested Plaintiff's background investigation file from OPM and received it shortly thereafter. According to Plaintiff Major Dickerhoof then delayed any action on the readjudication for almost five months in an effort to discourage and humiliate Plaintiff. On December 20, 1996, Plaintiff, Plaintiff's attorney, Major Dickerhoof, and Chief Ranger Provins met for a thorough discussion of her background issues.
Plaintiff received Major Dickerhoof's final decision in a letter dated January 22, 1996, after another alleged delay designed to discourage her from continuing with the re-adjudication process. In the letter, Major Dickerhoof gave Plaintiff a favorable background check, enabling her to receive a new law enforcement commission once she graduated from training.
Plaintiff returned to work in the law enforcement division at the Park on March 30, 1997. She was paid at the GS-7 salary grade level. In August 1997 she returned to FLETC, completed her training, and returned to Philadelphia with a full law enforcement commission. In November 1997 Plaintiff's salary was increased to the GS-9 level. She worked at Independence National Historic Park through December 1998, when she was laterally transferred to Jefferson National Expansion Memorial in St. Louis, Missouri. She stopped working for the Park Service in July 1999 and entered the OPM's disability retirement program to receive Hepatitis C treatment.
Plaintiff filed her first complaint with the EEOC in October 1996 alleging she was discriminated against on the bases of gender, race, and perceived physical handicap. She filed a second EEOC complaint in April 1997, alleging the Park Service took retaliatory employment actions against her. Plaintiff was denied relief on both complaints. She filed the instant law suit against the United States Department of the Interior on November 25, 2002. The Government now seeks summary judgment on all claims.
II. LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence through affidavits, depositions, or admissions on file showing a genuine issue of material fact for trial. See id. at 324. The substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then there is a genuine issue of fact. See id.
When deciding a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993). Moreover, a court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment, even if the quantity of the moving party's evidence far outweighs that of its opponent. See id. Nonetheless, a party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. See Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir. 1992).
III. DISCUSSION
Plaintiff asserts she was discriminated against based on gender, race, and perceived disability. She also asserts a retaliation claim. Each claim will be discussed in turn.
A. Gender Discrimination
Title VII prohibits an employer from discriminating against any individual on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a) (2004). To prevail on a Title VII claim, a plaintiff must present evidence of discrimination using the burden-shifting analysis ofMcDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). First, the plaintiff must establish a prima facie case of discrimination. See Burdine, 450 U.S. at 252-53. 1. Prima Facie Case
A prima facie case of discrimination under Title VII requires proof that: (1) the plaintiff belongs to a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action despite being qualified; and (4) the defendant continued to seek out individuals with qualifications similar to hers to fill the position under circumstances that raise an inference of discriminatory action. See Sarullo v. United States Postal Service, 352 F.3d 789, 797 (3d Cir. 2003);Williams-McCoy v. Starz Encore Group, No. 02-5125, 2004 U.S. Dist. LEXIS 2600 at *11 (E.D. Pa. Feb. 5, 2004).
It is uncontested for purposes of Defendant's summary judgment motion that Plaintiff fulfills prongs one, two, and four of the prima facie case. The Government bases its motion for summary judgment on the assertion that Plaintiff did not suffer an adverse employment action. Specifically, the Government argues that the favorable re-adjudication of Plaintiff's disqualification for a law enforcement position precludes her from establishing that there was adverse employment action against her. The Government also notes that Plaintiff received her pay, benefits, and seniority for the time her appeal was being considered and was even elevated to the GS-9 salary level once she completed training.
The United States Supreme Court has provided a non-exclusive list of clear cases and broad categories of tangible employment actions. See Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998); Suders v. Easton, 325 F.3d 432, 456 (3d Cir. 2003). The 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 significant change in benefits." Ellerth, 524 U.S. at 761. By providing broad categories of tangible employment action along with specific examples, the Court recognized what the Third Circuit considers "a simple reality" of the modern workplace: "tangible employment actions often take the form of subtle discrimination not easily categorized as a formal discharge or demotion." See Suders, 325 F.3d at 456.
Here, Plaintiff argues she suffered an adverse employment action when she was peremptorily removed from FLETC a week before graduation. Plaintiff argues that, because she was so conspicuously pulled out of training, word spread throughout the Park Service that she was unemployable. Further, Plaintiff alleges that after her removal from FLETC, she spent five months working in the maintenance division at Independence National Historic Park. These were a humiliating five months because everyone at the Park knew of her apparent demotion and that she had been pulled out of FLETC. The remedial steps taken by the Park Service — reinstating Plaintiff's law enforcement commission in August 1997 and placing her at the GS-9 salary grade level in November 1997 — could not undo the damage her reputation had already suffered. She was unable to transfer within the Park Service into competitive law enforcement positions in other parts of the country. As a result Plaintiff was forced to take a non-competitive transfer to Jefferson National Expansion Memorial in St. Louis, Missouri, in December 1998. Moreover, even though Plaintiff eventually received a pay grade increase to the GS-9 level, she was denied the increase for over one year because she was not allowed to complete FLETC in May 1996.
The Court holds that Plaintiff has adduced sufficient evidence to establish an adverse employment action and a prime facie case of sex discrimination.
2. Defendant's Legitimate Non-Discriminatory Rationale
If the plaintiff can establish a prima facie case of discrimination, the burden of production shifts to the defendant to articulate some legitimate non-discriminatory reason for the adverse employment action. See Burdine, 450 U.S. at 253 (quoting McDonnell-Douglas). Here, it is evident from the facts of this case that the Government's non-discriminatory reason for taking an adverse employment action against Plaintiff is the false employment questionnaires she filled out for her background check.
3. Pretext
Because the defendant has met its burden of production under the McDonnell-Douglas framework, the plaintiff must establish that the legitimate reasons offered by the defendant were merely pretext for sex discrimination, and not the real motivation behind the unfavorable job action. See id. The Court notes that the United States Supreme Court has emphasized that the ultimate burden of persuading the factfinder that the defendant intentionally discriminated against the plaintiff remains always on the plaintiff. See id.; Hicks, 509 U.S. at 507.
As evidence of pretext Plaintiff first offers the derogatory comments made by her superiors about women and homosexuals at the Park in Philadelphia. In particular, Assistant Chief Bowman allegedly commented, "If you let one in, it opens the door for a dozen more." Next, Plaintiff points to Ronald Dozier, a black male FLETC classmate, who also had background issues allegedly known by the Park Service during Dozier's training, and specifically known by Captain Gross and Assistant Chief Ranger Bowman. Dozier had been arrested for possession of cocaine with the intent to distribute. Prior to issuing a disqualification recommendation for Dozier, Captain Gross, with the assistance of Chief Ranger Provins and Assistant Chief Ranger Bowman and others, allegedly conducted an investigation of Dozier's background, interviewed Dozier a number of times, afforded him opportunities to explain the adverse information, interviewed others about Dozier, and secured documents from the police department that had arrested Dozier. Plaintiff did not receive any such investigative efforts. Further, unlike Plaintiff, Dozier was permitted to graduate from FLETC before he was approached about his background issues and before a disqualification recommendation was made. Plaintiff also alleges Assistant Chief Ranger Bowman generally shepherded Dozier through his background problems, refusing to disqualify him until after Plaintiff had shed light on the discriminatory practices. Last, Plaintiff also alleges that two other male FLETC trainees were interviewed while at FLETC regarding potential background problems.
The Government argues that no inference of discrimination can be drawn from the treatment of Ronald Dozier and the other trainees because they were not similarly situated employees and that, in any event, Plaintiff ultimately received more favorable treatment than they did. The Government strongly denies the allegation that Park Service officials knew of Dozier's cocaine arrest before he finished training. The Government also explains that Dozier and the others were stripped of their law enforcement commission because of background problems, whereas Plaintiff eventually received her commission after re-adjudication.
The Court concludes that Plaintiff has created a genuine issue of material fact. She has offered sufficient evidence to allow a reasonable jury to conclude that the Government's legitimate nondiscriminatory reason for the adverse employment actions made against her are nothing more than pretext for sex discrimination. The Court denies the Government's motion for summary judgment on Plaintiff's sex discrimination claim. B. Race Discrimination
Race discrimination claims brought under Title VII are analyzed under the identical framework set forth in McDonnell-Douglas. See Schurr v. Resorts Int'l Hotels, Inc., 196 F.3d 486, 499 (3d Cir. 1999); Hitchens v. County of Montgomery, No. 01-2564, 2002 U.S. Dist. LEXIS 2050 at *17 (E.D. Pa. Feb. 11, 2002). In the instant case, Plaintiff is not a member of a protected racial class. The Third Circuit Court of Appeals has recognized that suits by white plaintiffs asserting "`reverse discrimination' are viable even though the plaintiff is not a member of a racial minority." See Hitchens, 2001 U.S. Dist. LEXIS 2050 at *18 (quoting Kondrat v. Ashcroft, 167 F. Supp.2d 831, 835 (E.D. Pa. 2001)). In order to make a reverse discrimination claim, the plaintiff must set forth sufficient "evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII." Id. (quoting Iadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999)).
Here, Plaintiff has alleged no evidence tending to prove that any Park Service official made decisions motivated by her race. As such, the Government is granted summary judgment on Plaintiff's discrimination claim based on the fact that she is white.
C. Disability Discrimination
Plaintiff's claim that the Park Service discriminated against her because of a perceived disability is governed by the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. The Court analyzes ADA discrimination claims using theMcDonnell-Douglas framework. See Reese v. American Food Service, No. 99-1741, 2000 U.S. Dist. 14343 at *10 (E.D. Pa. Sept. 29, 2000). Plaintiff must first establish a prima facie case of disability discrimination by establishing that she (1) has a disability; (2) is a qualified individual; and (3) has suffered an adverse employment action because of that disability.See Deane v. Pocono Medical Center, 142 F.3d 138, at 143 (3d Cir. 1998).
1. Prima Facie Case
Under the first prong the Court must determine whether Plaintiff is disabled under the ADA. The ADA defines "disability" as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
©) being regarded as having such an impairment.
42 U.S.C. § 12102(2). Plaintiff does not assert that she is actually disabled. She asserts that Park Service officials perceived she was disabled. Thus, the Court must determine whether the Government regarded Plaintiff as having an impairment and whether the impairment, as perceived by the Government, would have substantially limited one or more of Plaintiff's major life activities. See Deane, 142 F.3d at 143.
This Court has previously recognized that the "regarded as" prong of § 12102(2) indicates Congress' choice to extend ADA protection to individuals who have no actual disability. See Lapinsky v. AMTRAK, No. 99-3575, 2001 U.S. Dist. LEXIS 2174 at *7 n. 3 (E.D. Pa. Feb. 28, 2001). The prong confirms Congress' intentions to combat prejudices and recognizes that "society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from the actual impairments." Id.; Deane, 142 F.3d at 143 n. 5 (quoting the EEOC's Interpretive Guidance to the ADA).
EEOC Regulations provide that an individual is "regarded as" being disabled if she:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or
(3) Has none of the impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment.29 C.F.R. § 1630.2(l) (2004). Common to each definition is the requirement that the individual not in fact have an impairment that, absent the misperceptions of others, would substantially limit a major life activity. See Deane, 142 F.3d at 143.
First, Plaintiff adduces sufficient evidence to establish that she was regarded as having a disability by the Park Service. Plaintiff alleges that, before Captain Gross recommended she be disqualified, Major Dickerhoof forwarded to Gross a copy of Plaintiff's OPM background report. He included a cover page requesting that Gross pay special attention to Plaintiff's "medical conditions" that were disclosed in the report. See Knight Dep. at 44-45 (Docket No. 10, Ex. A).
Second, the Court must determine whether Plaintiff is a qualified individual under the ADA. The ADA defines this term as an individual "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The Government does not contest Plaintiff's qualifications or her ability to perform job duties for purposes of this summary judgment motion. As such, the Court holds that Plaintiff is a "qualified individual" under the ADA. Third, the Court explained above that Plaintiff suffered an adverse employment action. Accordingly, the Court holds that Plaintiff has established a prima facie case of disability discrimination.
The Court also holds that, given the discussion in Part III.A above, Plaintiff meets her burden under the McDonnell-Douglas framework to create genuine issues of material fact whether the Government's legitimate non-discriminatory reasons for the adverse employment actions were pretext for discrimination based on a perceived disability. Summary judgment on Plaintiff's disability discrimination claim is denied. D. Retaliation
To establish discriminatory retaliation under Title VII, a plaintiff must demonstrate that (1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her after or contemporaneous with the protected activity; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action. Weston v. Pennsylvania, 251 F.3d 420, at 430 (3d Cir. 2001); 42 U.S.C. § 2000e-3(a).
Plaintiff first engaged in activity protected by Title VII when she sought pre-complaint counseling from the EEOC on July 2, 1996. See Weston, 251 F.3d at 430. She alleges adverse employment action when Major Dickerhoof delayed the re-adjudication of her background information from August 1996, when he first agreed to the re-adjudication, until January 22, 1997, when he decided to give Plaintiff a favorable background check. Plaintiff claims that, although her background issues were properly re-adjudicated, the five month long delay in the re-adjudication process while she worked in maintenance was unnecessary and intended only to depress, humiliate, and discourage her from seeking continued employment in the Park Service. Further, Plaintiff was eventually transferred from Independence National Historic Park in Philadelphia to Jefferson National Expansion Memorial in St. Louis, Missouri. The allegations are sufficient to qualify as an adverse employment action and there is a sufficient causal link between her protected activity and the adverse employment action to create an inference of retaliatory conduct by the Government. Summary judgment on Plaintiff's Title VII retaliation claim is denied.
An appropriate Order follows.
ORDER
AND NOW, this 19th day of May, 2004, upon consideration of Defendant's Motion for Summary Judgment (Docket No. 9), Plaintiff's Response (Docket No. 14), Defendant's Reply (Docket No. 15), and Plaintiff's Sur-Reply (Docket Nos. 16, 17, 18, 19, 20), IT IS HEREBY ORDERED that Defendant's Motion is GRANTED IN PART and DENIED IN PART as follows:(1) Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's Title VII race discrimination claim; and
(2) Defendant's Motion for Summary Judgment is DENIED as to all other claims.