Opinion
CIVIL ACTION NO. SA-00-CA-0426 NN
June 13, 2001
ORDER GRANTING DEFENDANT'S UNOPPOSED SUMMARY JUDGMENT MOTION
A. Introduction
The matter before me is defendant's unopposed motion for summary judgment filed March 1, 2001. According to Plaintiff Edward A. Powell's pro se complaint, he alleges that defendant discriminated against him because of his race ("African-American") and also retaliated against him for having filed previous Equal Employment Opportunity ("EEO") complaints, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Specifically, plaintiff claims that almost since the inception of his employment with defendant in May of 1992, defendant has discriminated against him by not selecting and/or promoting him to any of the GS-11 positions that had become available and he has applied for over the years. The most recent non-selection incident made the basis of his complaint occurred on June 7, 1995, when, according to plaintiff, he was even denied the opportunity to be considered for the position of Human Relations Advisor, GS-0301-11, at the 59th Medical Center (Wilford Hall). Plaintiff alleges that one of defendant's employees informed him that the position was no longer open due to manpower cutbacks. This employee supposedly also told plaintiff that in the event the position was reopened at a later date, that he would be considered for it. Relying on that statement, plaintiff contends, he withdrew a previous EEO complaint concerning the position. Unbeknownst to plaintiff, however, the position was reopened, albeit under a different job description, and defendant selected another candidate for it. After having exhausted the administrative remedies afforded to federal employees, plaintiff commenced the instant lawsuit in federal court.
Docket Entry No. 33.
See 42 U.S.C. § 2000e-16. Even though plaintiff alleged age discrimination in his formal administrative proceedings, he failed to allege the same in his complaint in federal court, and as such it is now barred from further consideration.
42 U.S.C. § 2000e-16(b). The EEOC regulations governing the federal sector are embodied in 29 C.F.R. § 1614 et seq. Section 1614.103(a) provides: "[i]ndividual . . . complaints of employment discrimination and retaliation prohibited by Title VII (discrimination on the basis of race, color, religion, sex and national origin). . . shall be processed in accordance with this part." Id. The court is required to give great deference to the EEOC's interpretation of the procedural regulations it has promulgated on timeliness within the administrative process under § 2000e-16. See Cooper v. Lewis, 644 F.2d 1077, 1084 (5th Cir. Unit A 1981).
Defendant seeks summary judgment on all of plaintiffs Title VII claims, by arguing, in essence, that plaintiff fails to meet the prima facie elements of his non-selection and retaliation claims. Specifically, defendant argues that most, if not all, of plaintiff's claims do not rise to the level of a Title VII violation because plaintiff has failed to establish that he suffered an adverse employment action as a result of defendant's actions. According to defendant, plaintiffs contention that defendant simply failed to consider him for various job openings, for which he contends he was clearly qualified, does not, in and of itself, prove that defendant unlawfully discriminated against him by not selecting him for those positions. Defendant, in that regard, states: "[u]nder controlling law, however, Plaintiff has no viable claim for not being considered for an open position, and only has a viable claim if his ultimate non-selection was because of discrimination or retaliation." In support of its motion, defendant has filed a separate statement of undisputed material facts. In addition, an in consideration of plaintiffs prose status, the defendant also filed a notice to plaintiff regarding his obligation to come forward with competent summary judgment evidence in opposition to defendant's motion. Plaintiffs time in which to file his response to defendant's motion expired on March 12, 2001. As of this date, defendant's motion remains unopposed.
Docket Entry No. 33, at 4 (Emphasis in original).
Docket Entry No. 29.
Docket Entry No. 30.
I have jurisdiction to enter this Order as both parties have consented to my jurisdiction for all purposes, including entry of final judgment, in accordance with 28 U.S.C. § 636 (c). Having reviewed defendant's legal arguments and evidentiary proof in support of its summary judgment motion, as well as the applicable law and the record as a whole, it is my opinion that defendant's summary judgment motion is well-taken and should be granted. In entering this Order, I have given great weight to plaintiffs burden of establishing his prima fade case of race discrimination and retaliation and his lack of response to defendant's well-supported motion. Up to this time plaintiff has been given ample time to respond to the motion and submit controverting summary judgment evidence in support of his case. Plaintiffs lack of response has rendered defendant's motion for summary judgment unopposed and has made him subject to entry of judgment against him as a matter of law.
Docket Entry Nos. 15, 20 22.
B. Jurisdiction
The court has federal question jurisdiction. 28 U.S.C. § 1331 1343.
C. Statement of Undisputed Facts
For purposes of summary judgment, the court relies on defendant's statement of facts, which by plaintiff's failure to respond, are deemed undisputed. Docket Entry Nos. 29 33, at 2-5 (and Exhibits attached therein). It should be noted that plaintiffs complaint is verified and therefore, any statement of facts as pleaded therein may be considered as competent summary judgment evidence under FED.R.CivP. 56(e), as long as it is not based on hearsay, conclusory allegations or speculative beliefs. Docket Entry No. 4, at 5. See Huckabay v. Moore, 142 F.3d 233, 240 n. 6 (5th Cir. 1998); and Hayes v. Marriott, 70 F.3d 1144, 1148 (10th Cir. 1995).
The record in the case reveals that almost since the inception of his employment at the Lackland Air Force Base ("Lackland AFB"), in San Antonio, Texas, plaintiff has been dissatisfied with defendant's decision to not select him for various promotions or upgrades for which he deemed himself qualified. Plaintiff began employment at Lackland on May 31, 1992 as a WG-2606-10 Electronics Industrial Controls Specialist.
Docket Entry No. 33, at 2.
In his federal court complaint, plaintiff specifically complains about his 1995 non-selection for a GS-11 Human Relations Advisor position, and further alleges he was the subject of continual harassment, race discrimination and reprisal (or retaliation). Plaintiff also asserts that defendant's discrimination against him began in 1993, and has attached to his complaint a January 13, 2000 final decision by the EEOC's Office of Federal Operations and his right to sue letter. Because plaintiffs complaint is not clear as to whether he is limiting his federal lawsuit to his 1995 non-selection or whether he is challenging previous non-selection decisions going as far back as 1993, defendant has moved for summary judgment on all the claims addressed in the agency's final decision.
Dokcet Entry No. 4, at 3.
To that extent, the record in this case reveals that plaintiff filed three formal complaints of discrimination: the first, filed on January 7, 1994 (case LAOJ 94014), the second, filed on December 22, 1994 (case LAOJ 95011, and the third filed on June 16, 1995 (case LAOJ95122). The first and second complaints were consolidated for hearing and resulted in a finding of no discrimination by the Administrative Law Judge and a Final Agency Decision ("FAD") in favor of the Department of the United States Air Force. On January 13, 2000, a decision was issued by the EEOC Office of Federal Operations, affirming the FAD and informing plaintiff of his appeal rights. The third complaint involving plaintiff's non-selection to the GS-11 Human Relations Advisor position was investigated but did not result in a FAD.
Docket Entry No. 29, Exhibit 2, Formal Complaint of Discrimination, filed January 7, 1994.
Id. at Exhibit 3, Formal Complaint of Discrimination, filed December 22, 1994.
Docket Entry No. 4 Attached Formal Complaint of Discrimination, filed June 16, 1995.
Docket Entry No. 29, Exhibit 4, Decision by ALJ, dated January 29, 1998, and recommending that all of plaintiff's claims be denied. Defendant points to the extensive administrative record generated to address plaintiffs complaints. There were two separate evidentiary hearings on plaintiffs complaints — other than his claim concerning the non-selection to the Human Relations Advisor position. The first hearing/fact finding conference took place on April 25, 1995, before the Office of Complaint Investigation. Plaintiff was represented by counsel at this proceeding. The second evidentiary hearing occurred on April 14, 1997 before the EEOC-ALJ, and again plaintiff was represented by the same counsel at this hearing. The five-volume administrative record in this case includes over 1,600 pages. Docket Entry No. 33, at 4-5.
Attached to Plaintiff's Complaint, Docket Entry No. 4.
Docket Entry No. 33, at 3.
From plaintiffs extensive administrative record, defendant has identified seven factual allegations relied upon by plaintiff in support of his Title VII action:
(1) that plaintiffs non-selection for a GS-9/11 position as a Television Production Specialist on June 9, 1993, constituted race discrimination and/or retaliation;
(2) that plaintiffs non-selection for a GS-12 Training Specialist position in July of 1993, constituted race discrimination and/or retaliation;
(3) that plaintiffs non-selection for a GS-9 position as a Supervisory Computer Assistant in October of 1993, constituted race discrimination and/or retaliation;
(4) that plaintiffs rating of ineligible for the position of GS-11 Telecommunications Specialist on October 19, 1994, constituted race discrimination and/or retaliation;
(5) that plaintiffs non-selection for a GS-11 Human Relations Advisor position sometime in 1995, constituted race discrimination and/or retaliation;
(6) that plaintiff was "continually harassed" by management of the Civilian Personnel Flight; and
(7) that plaintiff was harassed by employees of the External Recruitment Unit.
Id. at 3-4 Docket Entry No. 29, at 1-6.
As to the specific positions sought by plaintiff, defendant has set forth material undisputed facts concerning each one of these positions and the circumstances surrounding plaintiff's non-selection for them.
With respect to the Television Production Specialist position, it is undisputed that plaintiff was originally rated unqualified for the position. It was not until plaintiff appealed his rating and submitted additional information on a form SF-172 that his rating was changed as eligible for consideration. By this time, however, the selecting official, Ms. Peggy Goitia, had already selected another candidate for the position. Upon further review of plaintiffs qualifications, at the request of the EEO Investigator, Ms. Goitia opined that plaintiffs qualifications "were much less" than the other candidates referred for consideration for the position, and more particularly, as compared to the qualifications of the selectee. The date of plaintiff's initial EEO contact concerning this claim did not occur until November 12, 1993.
Docket Entry No. 29, at 1-2 Exhibit 1, Report of Investigation dated June 8, 1994.
Id. at Appendix, Exhibit 5, Affidavit of Peggy Goitia.
Id.
Id. at 2 Appendix, Exhibit 1.
Regarding the Training Specialist Position, the selecting official was Ms. Elvira Almaraz. Even though the undisputed evidence of record demonstrates that plaintiff's name was included on the Merit Promotion Certificate, on July 30, 1993, Ms. Almaraz notified plaintiff in writing that he was not selected for the position. Ms. Almaraz was part of a three-person review panel which compared the qualifications of the ten candidates listed on the Merit Promotion Certificate. One of the members of the panel was Edward Wesson, who is African-American. In evaluating each of the candidates, the panel members used a uniform standard which included consideration of the candidates' relevant job experience, education, related training experience and performance ratings. Of the ten individuals rated, plaintiff received the lowest score, a total of 23 points. In stark comparison, the selected candidate received a score of 87 total points. The evidence further shows that all three candidates rated plaintiff last. Significantly, Ms. Almaraz, who was the ultimate decision-maker with respect to this position, was not aware of plaintiffs prior EEO history at the time of her selection decision. Plaintiff did not have initial contact with an EEO counselor regarding his non-selection to this position until November 12, 1993.
Id. at 2 Appendix, Exhibit 6, Memorandum to Powell from Almaraz, dated July 30, 1993.
Id. at 2 Appendix, Exhibit 7, Affidavit of Edward Wesson.
Id. at 3 Appendix, Exhibit 8. It appears that plaintiffs personnel record showed a performance rating of "unacceptable," and at least one of the panel members have admitted that plaintiff received fewer points because of that rating. Id. at Exhibit 7.
Id. at 3 Appendix, Exhibit 9, Panel Rating Summary, and Exhibit 10, Affidavit of Elvira Almaraz.
Id.
Id. at Appendix, Exhibit 10.
Id. at 2 Appendix, Exhibit 1.
Concerning the job opening for a Supervisory Computer Assistant, the position specifically required a successful candidate to have specialized computer experience regarding various systems, including PACE, HAV, and JUMPS. Plaintiff was deemed unqualified for the position because he did not have that type of experience. In fact, during the administrative proceedings, plaintiff admitted that he did not possess the specialized computer knowledge required for the position. Importantly, plaintiff has also conceded on the record that he did not know whether the position was ever filled and/or the qualifications of the selectee. Rather, he assumed that the only reason he was not selected was because of his race. The summary judgment evidence submitted by defendant shows that the person who found plaintiff disqualified for the position, Ms. Margaret York, did not know plaintiffs race and/or prior EEO history at the time she made her decision.
Id, at Appendix, Exhibit II, Affidavit of Margaret York, the specialist who received and rated plaintiff's application for the position, and Exhibit 8, Excerpts of Hearing Testimony, at 20:4.25 80:1-22.
Id. at Exhibit 8, at 22:22-25 23:1-24.
Id. at Exhibit 8, at 25:3-10 15:1-6.
Id.
Id. at Exhibit 11.
With respect to the Telecommunications Specialist position, Ms. Michelle Moray, an Air Force Staffing Specialist, was the decision-maker, who after reviewing plaintiffs application, rated him as unqualified for the position. Her decision was based on the position's job description which specifically required that in order to be considered for the position, an applicant must have "broad knowledge of Digital Equipment Corporation ["DEC"], DEC control language, DEC networking, DEC security practices, DEC terminal server manager, and DEC architecture." During the administrative hearing, plaintiff admitted to not having the specific DEC experience required for the position. When plaintiff questioned Ms. Moray about the position's specific requirement of having DEC experience, she confirmed with Wilford Hall, the entity seeking applicants, that they needed someone with this specific experience. Plaintiff also testified that although he does not know with certainty who defendant selected for the position, it was his understanding that the selectee had the DEC experience required for the position. Ms. Moray denied that plaintiffs race and or prior EEO activity were factors she considered in finding plaintiff ineligible for the position.
Id. at Exhibit 8, at 85:3-7.
Id. at 31:10-25, 32:1-23.
Id.
Id. at 33:1-25.
Id. at 85-87.
With respect to the last position sought by plaintiff, the Human Relations Advisor position, it is undisputed that the opening was first announced in the Fall of 1994. Plaintiff submitted an application to be considered for the position. The original posting for the position, however, was not filled due to manpower cutbacks and uncertainty as to the direction the new Wing Commander would take. Eventually, the position's original job description was revised requiring a greater emphasis on social and family support related services, and a lesser emphasis on EEO duties. The changes in the job description were done in an effort to better address the needs of both employees and patients of the Hospital.
Docket Enfly No. 29, at 5 Appendix, Exhibit 13, June 26, 1996 Report of Investigation.
Id. Appendix, Exhibit 15, EEO Counselor's Report, dated August 2, 1995.
Once the job position was revised, Ms. Connie Ferguson, a Civilian Personnel Specialist at Lackland AFB, ran a Promotion Evaluation Pattern ("PEP") computer search to generate an internal list of qualified candidates. According to the undisputed summary judgment of record, the PEP is an objective process in that it allows the Department of the Air Force to perform a skills code analysis for each job filled by the Civilian Personnel Office to determine what skills are needed to qualify for the open position. Each Air Force employee is responsible for maintaining a current "experience brief" which summarizes his or her job skills and experience. After a PEP is run, a list of Air Force employees who have the necessary qualifications for the open position is automatically generated. Plaintiffs name was not included in the PEP's generated list of qualified candidates. According to Ms. Ferguson's affidavit testimony, this meant that plaintiff did not objectively qualify for the open Human Relations Advisor position because he lacked the necessary job skills and experience, as reflected by his electronic personnel record. The PEP's generated list was forwarded to the selecting official, Brigadier General Paul K. Carlson, Jr., along with a Merit Referral Certificate. The candidate selected was Ms. Bellit Degracia, who still occupies the position.
Id. Appendix, Exhibit 18.
Id.
Id. Appendix, Exhibit 16.
Id. Appendix, Exhibit 18 at Tab. A.
Id. Appendix, Exhibit 18 at Tab. B.
Subsequent to the selection for the position, and as a result of plaintiff's internal complaint of discrimination, Mr. Ferguson reviewed plaintiffs skills and experience and concluded that the selectee's qualifications "far exceed" those of plaintiff, particularly in that plaintiff did not have any experience in the areas of family support and social services, the primary responsibilities of the position.
D. Issues Presented
1. Whether plaintiff's non-promotion to the various positions for which he applied but was not selected resulted from defendant's intentional race discrimination and/or retaliation against him, in violation of Title VII?
2. Whether plaintiff can establish his prima facie case of racial harassment under Title VII?
E. Summary Judgment Standard
The applicable standard in deciding a motion for summary judgment is set forth in FED.R. Civ.P. 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith 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); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. In an employment discrimination case, the Court focuses on whether a genuine issue of material fact exists as to whether the defendant intentionally discriminated against the plaintiff. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
See Lapper v. Benson Nissan, Inc., 86 F.3d 444, 447 (5th Cir. 1996) (citing Armstrong v. City of Dallas, 997 F.2d 62, 65-66 (5th Cir. 1993)).
Anderson, 477 U.S. at 248; Thomas v. LAW. Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Id.; Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant on a summary judgment motion, in this case the United States Department of the Air Force, bears the initial burden of providing the court with a legal basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. The burden then shifts to the party opposing the motion, in this case Powell, to present affirmative evidence in order to defeat a properly supported motion for summary judgment. The court will look at the record in the light most favorable to the party opposing the motion drawing all inferences most favorable to that party. Thus, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
Celotex Corp., 477 U.S. at 323.
Anderson, 477 U.S. at 257.
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). In this case, the nonmovant, Powell (even as a pro se plaintiff), bears the burden of proof at trial with respect to his Title VII claims. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991).
In dealing with unopposed summary judgment motions, the Fifth Circuit has noted that a motion for summary judgment cannot be granted simply because there was no opposition, even if failure to oppose violated a local rule, as in this case. The movant has the burden to establish the absence of a genuine issue of material fact and, unless it has done so, the court may not grant the motion, irrespective of whether any response was filed. Therefore, I must address the merits of the instant motion, even if unopposed.
See Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 fn.3 (5th Cir. 1995) (reversal of the granting of an unopposed summary judgment was not warranted because trial court addressed the merits of the motion as an alternative holding) (citing Hibernia Nat'l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985) (where the Fifth Circuit disapproved the granting of an unopposed summary judgment solely on the basis it violated a local rule)).
F. Discussion
1. Analytical FrameworkA plaintiff can prove a claim of intentional discrimination by either direct or circumstantial evidence. Absent direct evidence of discriminatory intent, proof via circumstantial evidence is evaluated using the framework set forth in McDonnell Douglas Corp., v. Green. "First, the plaintiff must establish a prima facie case of discrimination." Second, the employer must respond with a legitimate, nondiscriminatory reason for its decision. The burden on the employer is only one of production, not persuasion, involving no credibility assessments. Third, if the employer carries its burden, the "mandatory inference of discrimination" created by the plaintiffs prima facie case, "drops out of the picture" and the fact finder must "decide the ultimate question: whether [the] plaintiff has proven [intentional discrimination]."
411 U.S. 792 (1973).
Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000).
See McDonnell Douglas, 411 U.S. at 802.
See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255-56 (1981).
Id. at 256 n. 10.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 51-12 (1993).
In making this showing, the plaintiff can rely on evidence that the employer's reasons were a pretext for unlawful discrimination. "[T]he trier of fact may still consider the evidence establishing the plaintiff's prima facie case' and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual." However, as the United States Supreme Court stated in Hicks, a showing of pretext does not automatically entitle an employee to a judgment as a matter of law. It is "not enough . . . to disbelieve the employer; the [fact finder] must believe the plaintiff's explanation of intentional discrimination." This statement in Hicks apparently caused confusion as to whether intentional discrimination could be inferred from a showing of pretext.
See McDonnell Douglas, 411 U.S. at 804.
Reeves, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 255 n. 10).
Hicks, 509 U.S. at 524.
Id. at 519 (Emphasis in original).
Reeves, 120 S.Ct. at 2104-05 (describing the circuit conflict resulting from the confusion).
The United States Supreme Court has resolved the circuit split in Reeves by rejecting the "pretext-plus" approach, thus overruling the Fifth Circuit's decision in that case. A unanimous Court held that the Fifth Circuit had "misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence." "Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."
Reeves v. Sanderson Plumbing Products, Inc., 197 F.3d 688 (5th Cir. 1999); and Reeves, 120 S.Ct. at 2108.
Reeves, 120 S, CT. at 2108.
Id. at 2109.
The Court in Reeves further stated that, more likely than not, a showing of pretext will lead to an inference of discrimination: "Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision."
Id. at 2108-09.
The Reeves Court also cautioned that there may be instances, although rare, where a showing of pretext would not be sufficient to infer discrimination. Such a situation would occur "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination occurred."
Id. at 2109 (emphasis added). The Reeves ruling rejected part of the Fifth Circuit's decision in Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (1996). In so doing, the Court noted that Rhodes stood for the pro position that the "plaintiff must introduce sufficient evidence for [the] jury to find both that [the] employer's reason was false and that [the] real reason was discrimination." Reeves, 120 S.Ct. at 2105 (emphasis added) (statement in parenthetical). This pretext-plus requirement is contrary to the Reeves Court' s holding that the employer's prevarication may be sufficient in many cases to demonstrate discriminatory animus.Id. at 2108-09. While portions of the Rhodes decision do not appear to fully comport with Reeves the Fifth Circuit has already recognized central features of the Rhodes decision that survive Reeves. See Vadie v, Miss. State Univ., 218 F.3d 365, 373 n, 23 (5th Cir. 2000) ("Rhodes is consistent with Reeves and continues to be the governing standard in this [Fifth] Circuit."). Nevertheless, in evaluating plaintiffs discrimination claim under the McDonnell Douglas framework, this court is cognizant that it must not unduly restrict a plaintiff's circumstantial case of discrimination.
Because of his failure to respond to defendant's motion plaintiff has failed to prove that genuine issues of material fact exist with respect to his prima facie burdens that would preclude summary judgment for the defendant.
2. Application of the Analytical Framework
a. Relevant Standards
Title VII provides that:
[i]t shall be an unlawful employment practice for an employer — (1) 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 or employment, because of such individual's race, color, religion, sex, or national origin.
Under the McDonnell Douglas circumstantial evidence framework, to establish a prima facie case of discrimination in a failure to promote claim under Title VII, Powell must show that: (1) he was within a protected class; (2) he was qualified for the position(s) sought; (3) he was not promoted; and (4) the position(s) he sought were filled by someone outside the protected class. Defendant specifically challenges plaintiff's ability to meet the second element of plaintiff'sprima facie case, that is, that he was qualified for the position(s) sought. In order to defeat defendant's well-supported motion for summary judgment, plaintiffs evidence must show more than mere speculation or subjective beliefs. According to defendant, even assuming arguendo, that plaintiff can cross the prima facie threshold that he was qualified for any of the open positions at issue, he faces the heavier burden of establishing that his non-selection was discriminatory or retaliatory.
See Blow v. City to San Antonio, 236 F.3d 293, 296 (5th Cir. 2001) (citing Burdine, 450 U.S. at 252-53 and Grimes v. Texas Dep't of Mental Health Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996)).
Docket Entry No. 33, at 7-8 11-23.
Id. at 7.
Likewise, to prove a prima facie case of retaliation under Title VII, Powell must establish three elements: (1) that he engaged in protected activity; (2) that his employer took an adverse employment action against him; and (3) that a causal connection exists between the protected activity and the adverse employment action.
b. Plaintiff fails to establish his prima facie case of intentional discrimination and retaliation
See Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. ),cert. denied, 118 S.Ct. 336 (1997); Burger v. Central Apartment Management Inc., 168 F.3d 875, 878 (5th Cir. 1999); and Scrivner v. Socorro Independent School District, 169 F.3d 969 (5th Cir. 1999).
As the undisputed statement of facts reflect, it is evident that plaintiff has not brought forth any competent summary judgment evidence to controvert defendant's argument that he was not qualified for any of the positions sought. Even if he can establish that he had the minimal qualifications for some of the positions sought, he has not shown that he was "clearly better qualified" than the individuals selected to each of the positions at issue in this case.
See EEOC v. Louisian Office of Community Services, 47 F.3d 1438, 1444 (5th Cir. 1995) and Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993) ("the relative differences in qualifications must be 'so apparent as virtually to jump off the page and slap us in the face.'").
For instance, with respect to the Television Production Specialist, the undisputed evidence of record shows that plaintiff was first rated ineligible for the position due in part to the incomplete or inaccurate information he submitted in his application, form SF-171. Upon contesting the rating and submitting additional information on a form SF-172, defendant promptly corrected plaintiff's rating and deemed him eligible for consideration. By this time, however, the selecting official, Ms. Peggy Goitia, had already filled the position. Even though it appears that his rating issue precluded him from being considered for the position, there is no evidence that Ms. Goitia did not follow proper procedure in selecting a candidate for the position, or that the selection of the candidate, prior to plaintiff being deemed qualified for consideration, had something to do with plaintiffs race.
I also note that defendant has moved for summary judgment on procedural grounds, and more specifically, on the untimeliness of plaintiffs initial contact with the EEO Counselor with respect to this position, as well as the Training Specialist position. Docket Entry Nos. 33, at 11-12. Even though defendant appears to be correct that plaintiff did not initiate contact within 45 days after the alleged discriminatory acts, as required under 29 C.F.R. § 1614.105 (a)(1), the agency's EEO office nevertheless proceeded to investigate and process the merits of his complaints. Therefore, in light of the extensive administrative record in this case, I will proceed to analyze the substantive merits of plaintiff's allegations, inferring that any issues of timeliness were decided in his favor at the administrative phase of his complaint.
Further, the summary judgment evidence shows that Ms. Goitia subsequently reviewed plaintiff s complete application file, at the request of the EEO Investigator, and concluded that plaintiffs experience was "much less" than the other candidates referred for consideration for the position. Specifically, Ms. Goitia notes that when she made the selection, she was "looking for direct experience and exposure with different types of camera and editing equipment because the job required script writing, production, and editing." According to Ms. Goitia's sworn testimony, plaintiff described minimally qualifying experience in a job at Fort Hood from September 1975 to May of 1977. Plaintiffs experience, according to Ms. Goitia, "was not even close" to the experience of the candidates who were referred and interviewed for the position. In addition, the position required experience in creative and non-routine production, of which plaintiff had none. A review of the entire administrative record indicates that plaintiff did not present any evidence to controvert defendant's selection decision, nor did plaintiff compare his qualifications to those of the selectee.
Id. at 11 Appendix, Exhibit 1.
Id. Appendix, Exhibit 5.
Id.
Id.
Regarding his non-selection to the Training Specialist position, the undisputed facts show that plaintiff was the least qualified for the position, among the other nine candidates who were referred for consideration. A three member panel, used the same standard criteria for evaluating the candidates' relevant job experience, education, related training experience and performance ratings. Plaintiff received a total score of 23 points, while the candidate selected received a total score of 87 total points. The evidence further shows that all three members of the selection committee rated plaintiff as the least qualified for the position. Although not outcome-determinative, it should be noted that one of the panel members, Mr. Wesson, is of the same race as plaintiff (African-American). In that regard, the Fifth Circuit Court of Appeals have held that "proof that the decision-makers were members of the same race as the complaining employee would considerably undermine the probability that race was a factor in the employment decision."
See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 1002 (5th Cir. 1996) (DeMoss, J., Concurring in part and dissenting in part), abrogated on other grounds by Reeves. See also Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1471 (11th Cir. 1991) ("[I]t is difficult for a plaintiff to establish discrimination when the allegedly discriminatory decision-makers are within the same protected class as the plaintiff.").
With respect to plaintiff's claim that his non-selection for the position was because of his prior EEO activity, the undisputed summary judgment indicates that Ms. Almaraz, as well as Mr. Wesson, were unaware of his protected EEO activities at the time they rated the candidates and Ms. Almaraz made the ultimate selection decision. If the decision-makers responsible for the adverse employment action challenged had no knowledge of plaintiffs prior EEO activity, plaintiff cannot succeed on his retaliation claim as a matter of law.
Docket Entry No. 33, at Appendix, Exhibits 7 10.
See Watts v. The Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999).
Regarding the Supervisory Computer Assistant and the Telecommunications Specialist positions, the undisputed facts show (and plaintiff has himself admitted), that he did not have the minimum qualifications to be considered for these positions. Significantly, plaintiff also admitted during the administrative proceedings that he did not even know who the defendants ultimately selected for these positions, making it impossible for him to prove that he was "clearly better qualified" for these positions. In fact, the administrative record is replete with statements from plaintiff showing that he is pursuing his discrimination claims by relying solely on his beliefs that the only reason for his non-selection to these positions was his race, because, as he put it: "I don't know what other reason [could have been responsible]." A plaintiffs own subjective beliefs of discrimination, no matter how genuine, however, cannot serve as the basis for judicial relief.
See Harvey v. Chevron, U.S.A., Inc., 961 F. Supp. 1017, 1025 (S.D. Tex. 1997); and Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996).
Plaintiffs argument that his non-selection to these positions was in retaliation for his prior EEO activity is not supported by the record. According to the sworn testimony of Ms.York, the relevant decision-maker who screened out plaintiffs application for the Supervisory Computer Assistant position due to his lack of specialized experience in computer systems (such as PACE, HAV, and JUMPS), stated that when she reviewed plaintiffs qualifications, she did not know who he was, and accordingly, could not have known his race or his prior EEO history. Likewise, there is no evidence that Ms. Morav's decision to rate plaintiff ineligible for the Telecommunications Specialist position was motivated by anything other than his lack of DEC experience.
Docket Entry No. 33, at 16 Appendix, Exhibit 8. According to this witness, the application only shows the candidate's date of birth, but not his or her race or national origin. Id.
Id. at 17-18 Appendix, Exhibit 8, at 85-86 and Exhibit 4, at 5-6.
With respect to the Human Relations Advisor position, the defendant first posted the position in the Fall of 1994. Plaintiff submitted an application for the position. The position, however, was never filled due to, among other things, manpower cutbacks. It is undisputed that plaintiff was advised of this development. In order to better serve both the employees and patients at Wilford Hall, the position's job description was later reworked to reflect that the actual duties would entail a greater emphasis on social actions and family support related services, and a lesser emphasis on EEO duties. The changes in the job description were done in an effort to better address the needs of both employees and patients at Wilford Hall.
As described more fully in the Statement of Undisputed Facts portion of this Order, once the position's job description was revised, Ms. Connie Ferguson, a Civilian Personnel Specialist at Lackland AFB, ran a "Promotion Evaluation Pattern"(PEP) computer search to generate an internal list of qualified candidates for the position. Plaintiff's name was not included in the PEP's generated list. Ms. Ferguson then forwarded the PEP's generated list of candidates to the selecting official, Brigadier General Paul K. Carlson, Jr., along with Merit Referral Certificate. The candidate selected for the position was Ms. Bellit Degracia, who still occupies the position.
See page 9-10, supra.
Id. at 10.
Id.
After having reviewed the record in this case, and more specifically, plaintiffs formal EEO complaint in which he challenges his non-selection for this position, I conclude that plaintiff has failed to establish that he was qualified for the revised Human Relations Advisor position. There is also no evidence that defendant's failure to select him was because of his race and/or in retaliation for his prior EEO activity. Defendant has presented unrebutted summary judgment evidence that the PEP was an objective process and that the reason plaintiffs name was not included in the PEP's generated list of candidates was because he lacked the minimal job skills and experience necessary for the position, as reflected by his electronic personnel record. In fact, there is no dispute that plaintiff did not have any experience in the area of family and social support related services, the main duties of the Human Relations Advisor position. In contrast, my review of the selectee's credentials indicate that she had ample experience in the areas of family support services, having served as a Family Support Center Specialist for almost three years, in addition to her extensive work in human resources.
Docket No. 33 Appendix, Exhibit 18, Tab. B.
Moreover, there is no probative evidence that defendant's actions in reworking the position's description was to discriminate against plaintiff or any other individual. According to the Resource Advisor at Wilford Hall, Ms. Carmen Hannah, who was in charge of revising the position description, the process "was not a discriminatory action intended to prevent any one person from competing for the position." It was rather based on the need of the facility to better serve its employees and patients. Other than hearsay, there is also no probative evidence substantiating plaintiffs contention that he was promised by Ferguson and/or by another employee of the Civilian Personnel Office (Investigator Cathy Toyoda) that in the event the position reopens. that he would be automatically considered for the position. In fact, Ms. Ferguson, through her swom testimony has categorically denied plaintiff's allegation.
Id. at 6 Appendix, Exhibit 15, EEO Counselor's Report, dated August 2, 1995, at 5.
Id. Appendix, Exhibits 16 18.
Because plaintiff has failed to establish the second prong of his prima facie case, that is, that he was qualified for the positions sought, summary judgment in favor of defendant is warranted. Besides plaintiffs subjective beliefs and speculations, there record is devoid of any competent summary judgment evidence that defendant's actions in not selecting him for these positions were motivated by his race or were causally connected to his prior EEO activity.
c. Plaintiff fails to establish his prima facie case of racial harassment
In his federal court complaint, plaintiff appears to assert a claim for harassment. Although his allegations are plead in a general form, I assume that plaintiff is complaining of the way he was treated by some of defendant's employees of the Civilian Personnel Office (i.e., Ferguson and Toyoda) during the selection processes.
In order to prove a hostile environment racial harassment claim, plaintiff must prove that: (1) he belongs to a protected group; (2) he was subjected to unwelcome racial harassment; (3) the harassment complained of was based upon race; (4) the harassment complained of affected a "term, condition or privilege of employment"; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.
See Harris v. Forklift Svs. Inc., 510 U.S. 17 (1993). The same legal standards for evaluating a more common claim of hostile environment sexual harassment should be used to analyze a claim of race or national origin harassment. See Johns v. Flagship International, 693 F.2d 714, 719-20 (5th Cir. 1986).
A claim for "hostile work environment" is established 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.'" The courts have identified several factors (none of which is by itself outcome-determinative) that must be evaluated in deciding whether the plaintiff has proven a hostile work environment: (1) the frequency of the allegedly discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance. As noted by defendant, according to one district court's opinion, in cases of racial harassment the conduct at issue must be a "steady barrage" in order to be actionable.
Harris, 510 U.S. at 21.
Id. at 23.
Docket no. 33, at 10 (citing McCray v. DPC Industries, Inc., 942 F. Supp. 2S8, 293 (E.D. Tex. 1996), "To establish a prima facie case of "hostile work environment' based on race, a plaintiff must show more than that he was treated badly and that he was black. . . . [A]n abusive working environment requires a plaintiff to 'prove more than a few isolated incidents of racial enmity.'. . . Instead, "there must be a steady barrage of opprobrious racial comments.") (citations omitted).
By his failure to respond to defendant's well-supported summary judgment motion, plaintiff has presented no evidence demonstrating the sort of "severe and pervasive" conduct which "permeated the workplace," or which was either physically threatening, or constituted a "steady barrage of opprobrious racial comments," that is actionable under Title VII. Plaintiff has further failed to point to any specific conduct or statements which is related in any manner to his race. In fact, the record demonstrates that defendant's selection decisions made the basis of plaintiffs complaint were based on legitimate and non-discriminatory reasons and had nothing to do with plaintiffs race or his prior protected activities.
G. Conclusion
For the reasons discussed above, I hereby GRANT defendant's motion for summary judgment (Docket Entry No. 33). Defendant has demonstrated the absence of a genuine issue of material fact under the applicable legal standards such that plaintiff is entitled to no relief in this cause. Accordingly, this action is DISMISSED WITH PREJUDICE.