Opinion
NO. SA-98-CA-990-JWP.
October 26, 1999.
ORDER
Plaintiff Azalea Smartt alleges that she has been subjected to race, gender and retaliation discrimination in the form of her placement on administrative leave, 5-day suspension, and transfer. She also asserts claims of hostile work environment and unequal work assignments. Before the Court is defendant's motion for summary judgment. Docket no. 34. The Court finds that plaintiff failed to exhaust her administrative remedies in regard to her claims of hostile work environment and unequal work assignments. The Court also finds that plaintiff cannot establish a prima facie case of discrimination in regard to her 8-month administrative leave with pay because she cannot show that she was treated differently from a similarly-situated person of a different race or gender. Further, the Court finds that plaintiff cannot prove her claims of race, gender and retaliation discrimination based on her suspension and transfer because she cannot show that the deciding official was influenced by two individuals, both of whom allegedly dislike blacks and one of whom knew about her prior EEO activity. Therefore, the Court will grant the motion for summary judgment in its entirety and dismiss this case.
Background
Except as noted, the relevant facts of this case are not in dispute. Plaintiff Azalea Smartt is a special agent with the U.S. Customs Service (USCS). On May 18, 1995, while Special Agent Smartt was away on training with the USCS, Messiah Smartt, her son who was 18 years old at the time, stole her USCS-issued semiautomatic pistol. By that time, Messiah had an extensive record of arrests and convictions. Upon questioning by Special Agent Smartt, Messiah informed her that he stole the weapon and discarded it during a police chase on May 18, 1995. On May 19, 1995, Special Agent Smartt reported the theft of her weapon, and her weapon was recovered later that day.
An investigation by the USCS Office of Internal Affairs was initiated regarding the theft of Special Agent Smartt's pistol. The investigation initially revealed at least 18 unauthorized queries by Special Agent Smartt of family members in three secured law enforcement data bases to which Customs Special Agents were granted access. Based on the unauthorized queries, the USCS placed Special Agent Smartt on administrative leave on July 28, 1995, pending the Internal Affairs investigation. On January 22, 1996, Special Agent Smartt filed an administrative complaint of discrimination charging that she was placed on administrative leave because of her race and gender. The administrative leave lasted eight months, and Special Agent Smartt was ordered back to work in April 1996.
Special Agent Smartt was provided notice by a letter dated May 17, 1996, from Reginald Seymour, Resident Special Agent in Charge in Baton Rouge, Louisiana, that he proposed that she be suspended for 30 days and reassigned to a position to be determined at a later date. Mr. Edgar Adamson, the chair of the Customs Disciplinary Review Board, reviewed the administrative record, and on August 26, 1996, conducted a telephonic hearing during which Special Agent Smartt and her attorney had an opportunity to respond to the charges. On February 17, 1997, Mr. Adamson decided that Special Agent Smartt should be suspended for five days and transferred away from San Antonio. The stated basis for this action was that (1) Special Agent Smartt continued to live with her son, an admitted member of the "Bloods", a criminal organization, well-known to the law enforcement community, and (2) her unauthorized use of law enforcement data bases to query names of family members. Mr. Adamson found that Special Agent Smartt failed to take proper precautions to ensure the security of her weapon, which was taken by her son, but that she promptly reported the loss of the weapon and provided information to enable authorities to recover the weapon quickly.
Mr. Adamson was the sole deciding official responsible for the decision that resulted in Special Agent Smartt's suspension and transfer. The USCS Office of human Resources informed Special Agent Smartt in a letter dated February 25, 1997, of the decision to suspend her and to reassign her from San Antonio. In March 1997, Special Agent Smartt was given a 5-day suspension, and in the summer of 1997, she was transferred from Texas to San Diego, California.
On April 10, 1997, Special Agent Smartt filed an administrative complaint of discrimination. In a letter dated April 22, 1997, the Regional Complaints Center of the Department of the Treasury issued a letter to Special Agent Smartt's counsel to inform him that the following two issues were accepted for investigation:
1) Whether management suspended you for 5 days (March 3-7, 1997) because of your sex (female), race (Black), or reprisal for your involvement in the EEO complaints process;
2) Whether you are being transferred to San Diego, CA, because of your sex (female), race (Black) or as reprisal for your involvement in the EEO complaints process.Mot.S/J, Exh. 2. Special Agent Smartt admitted in an affidavit that Mr. Adamson acted in good faith and free of discriminatory or retaliatory animus when he made his decision. Mot. S/J, Exh. 2, Smartt Aff. (attached to April 22, 1997 letter from Regional Complaint Center). however, Special Agent Smartt asserts claims of discrimination because Mr. Adamson's decision was allegedly influenced by both Special Agent Robert Butler and Leonard Lindheim, the San Antonio Special Agent in Charge ("SAC"). Special Agent Butler, a co-worker who allegedly exhibited a dislike for Blacks, was involved in investigating Special Agent Smartt. SAC Lindheim, a supervisor of Special Agent Smartt who knew about her prior EEO activity and who allegedly dislikes Blacks, talked with Mr. Adamson on August 27, 1996, at which time he stated that Special Agent Smartt must be transferred from San Antonio.
In addition to the claims of race, gender and retaliation discrimination, Special Agent Smartt asserts claims of hostile work environment and unequal work assignments. The basis for the hostile work environment claim is that (1) Special Agent Butler submitted information and/or allegations that were a part of the Internal Affairs investigation of Special Agent Smartt; and (2) SAC Lindheim told Mr. Adamson that Special Agent Smartt needed to be transferred. Thus, the basis for the hostile work environment claim is based on the same facts as the race, gender and retaliation discrimination claims. As to the claim for unequal work assignments, Special Agent Smartt points out that she was not allowed to work on active cases when she returned to work after her administrative leave.
Summary Judgment
Federal Rule of Civil Procedure 56(b) provides that a defending party may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor. Summary judgment shall be rendered if the pleadings and evidence 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). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The party opposing a motion must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). An adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial; if he does not so respond, summary judgment, if appropriate, shall be entered against him. Fed.R.Civ.P. 56(e).
The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-248, 106 S.Ct. at 2510. The dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id . All of the evidence and inferences drawn from that evidence must be viewed in the light most favorable to the party opposing the motion for summary judgment. Hibernia National Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993)
Employment Discrimination
There are two methods for proving a claim of intentional employment discrimination. First, a claim may be established by presenting direct evidence of discrimination. Second, the indirect method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), can be used when only circumstantial evidence is available. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995). This is an indirect evidence case.
The indirect method of proof in an employment discrimination case requires that a plaintiff carry the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 2378, 105 L.Ed.2d 132 (1989); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). If the plaintiff establishes a prima facie case, a rebuttable presumption arises that the employer unlawfully discriminated. Patterson, 491 U.S. at 187, 109 S.Ct. at 2378; Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. The burden then shifts to the defendant to present evidence that the plaintiff was treated in a certain way for a legitimate, nondiscriminatory reason. Id . If this burden is met, the presumption disappears and the plaintiff has the opportunity to prove that the reason articulated by the employer was a mere pretext for discrimination. Patterson, 491 U.S. at 187, 109 S.Ct. at 2378; Burdine, 450 U.S. at 256, 101 S.Ct. at 1095.
For purposes of proving pretext, it is not enough to show that the stated reason was false; plaintiff must show both that the stated reason was false and that discrimination was the actual reason for the adverse employment action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 516-17, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993). The plaintiff retains the burden of persuading the fact-finder of intentional discrimination. Id .
The elements of a prima facie case of race or gender discrimination in discipline are (1) membership in a protected class, (2) an adverse disciplinary decision, and (3) harsher treatment than other similarly-situated, non-minority employees. See EEOC v. Brown ROOt, Inc., 688 F.2d 338, 340-41 (5th Cir. 1982). In order to establish a prima facie case of retaliation, a plaintiff must show that (1) the plaintiff engaged in activity protected by Title VII, (2) an adverse employment action occurred, and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). Since the burden-shifting analysis applies to retaliation cases, once the plaintiff establishes a prima facie case, the defendant then has the burden to articulate a legitimate, non-retaliatory reason for the adverse employment action. Long, 88 F.3d at 304-305. If the defendant articulates a non-retaliatory reason, then the plaintiff must establish that the conduct protected by Title VII was a "but for" cause of the adverse employment action. Id . at 305 n. 4.
Discussion
A. Claims of Hostile Work Environment and Unequal Assignments
Defendant contends that summary judgment is appropriate as to the claims for hostile work environment and unequal work assignments because Special Agent Smartt did not exhaust her administrative remedies in regard to such claims. Special Agent Smartt contends that she exhausted her administrative remedies because she informed the EEO counselors that (1) her workplace was hostile to Black females, and (2) she was being subjected to unequal treatment in work assignments.
In regard to Special Agent Smartt's second administrative complaint of discrimination, the two issues accepted by the Regional Complaint Center (RCC) pertained to her suspension and transfer. The issues as framed by the RCC did not relate to the allegedly hostile work environment or unequal work assignments. The April 22, 1997 letter informing Special Agent Smartt's counsel of the issues accepted for investigation contained the following directive:
If you disagree with the issues, please notify me in writing within five days of receipt of this letter. Please be clear and concise in your response. If no response is received, I will assume that you agree with the issues and will proceed with the investigation of the complaint.Mot. S/J, Exh. 2. Special Agent Smartt's statement of contested facts states that she objected to the framing of the issues in her January 22, 1996 letter. Response, Statement of Contested Facts, ¶ 1. That letter, however, pertained to the first administrative complaint of discrimination, which involved Special Agent Smartt's administrative leave. In response to Special Agent Smartt's January 22 letter, the RCC sent her counsel a letter dated February 26, 1996, that framed the issue regarding Special Agent Smartt's placement on administrative leave. Special Agent Smartt's statement of contested facts does not indicate that she objected to the framing of the issues regarding her suspension and transfer as set forth in the April 22, 1997 letter to her counsel. Also, Special Agent Smartt failed to provide any evidence showing that she objected to the framing of the issues in regard to her suspension and transfer. Therefore, the Court finds that Special Agent Smartt did not object to the framing of the issues accepted by the RCC for investigation in regard to her second administrative complaint of discrimination.
Any objection to the issue framed in regard to the first administrative complaint could not include the claims of hostile work environment and unequal work assignments because the basis of those claims occurred later in time.
It is well established that the timely filing of a discrimination charge is not a jurisdictional prerequisite to a lawsuit, but it is a requirement akin to a statute of limitations which is subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). The fundamental purpose of the charge is to trigger an investigation. The reasonable limits of an investigation potentially triggered by a charge of discrimination define the substantive limits of a subsequent Title VII action. The limits of a Title VII action are, therefore, limited to any kind of discrimination that is related to the charge's allegations, limited only by the scope of the investigation that could reasonably be expected to grow out of the initial charge of discrimination. Fine v. GAF Chemical Corp., 995 F.2d 576, 578 (5th Cir. 1993)
Special Agent Smartt never submitted a complaint to the RCC regarding her claims of hostile work environment harassment and unequal work assignments. In regard to the second administrative complaint, the issues framed by the RCC pertain to her suspension and transfer. Despite the factual similarity between the hostile work environment claim and the discrimination claims, nothing in the issues framed by the RCC suggests that the scope of the investigation that could reasonably be expected to grow out of the issues framed by the RCC would have included claims for hostile work environment harassment and unequal work assignments. In fact, because of the similarity of facts and Special Agent Smartt's failure to object to the framing of the issues, the investigator had no reason to investigate any other claims.
In a case similar to ours, the Fifth Circuit Court of Appeals ruled that since the plaintiff never objected to the issues as stated by the RCC, the Court had to assume that the issues were correctly framed. Dollis v. Rubin, 77 F.3d 777, 780 (5th Cir. 1995). On that basis, the Fifth Circuit held that summary judgment was appropriate as to those claims not included in the issues framed by the RCC because the plaintiff did not exhaust her administrative remedies. Id . at 781. Therefore, the Court must find that Special Agent Smartt failed to satisfy the prerequisites for filing discrimination claims based on a hostile work environment and unequal work assignments. Accordingly, the Court must grant the motion for summary judgment as to those claims.
B. Discrimination Claim Eased on Administrative Leave
The record evidence shows that the USCS placed Special Agent Smartt on administrative leave as a result of discovering her unauthorized use of various data bases in checking the criminal backgrounds of family members. In order to establish a prima facie case of discrimination as to this claim, Special Agent Smartt must show that USCS Special Agents who are not Black or female used the data bases without authorization and were not placed on administrative leave. Special Agent Smartt's response to the motion does not make any such showing. Therefore, the Court finds that the motion should be granted as to this claim due to Special Agent Smartt's failure to establish a prima facie case of discrimination.
C. Claims Based on 5-Day Suspension and Transfer to San Diego
Special Agent Smartt asserts claims of race. gender and retaliation discrimination in regard to her suspension and transfer to San Diego. She concedes that Mr. Adamson was the sole deciding official responsible for the decision that resulted in the suspension and transfer. Mot.S/J, Exh. 2, Smartt Aff. (attached to April 22, 1997 letter from Regional Complaint Center). Special Agent Smartt also concedes that during the administrative process, Mr. Adamson acted in good faith when he made his decision. Id . Special Agent Smartt contends that Mr. Adamson's decision was tainted by information provided by Special Agent Butler as part of the Internal Affairs investigation. Special Agent Smartt also contends that Mr. Adamson's decision was tainted by the statements made to Mr. Adamson by SAC Lindheim that Special Agent Smartt must be transferred because she "cannot effectively deal with other police agencies or the U.S. Attorney's Office," and that her "anti-police remarks have alienated others." Response, Exh. F, Mr. Adamson's notes during phone call to Leonard Lindheim on August 27, 1996.
In his letter to Special Agent Smartt informing him of his decision to suspend and transfer her, Mr. Adamson found that (1) she engaged in conduct inconsistent with her position as a USCS law enforcement officer by allowing her son to live with her despite his criminal activity, (2) she failed to take proper and reasonable precautions to ensure the safety and security of the USCS pistol assigned to her by leaving it in her residence where her son would have access to it, and (3) without authorization, she used law enforcement data bases to query names of family members. Mot.S/J, Exh. 4, Decision letter from Mr. Adamson. Defendant is correct that, in order for Special Agent Smartt to establish a prima facie case of discrimination, she must show that employees that are male or non-Black were treated differently under circumstances "nearly identical" to hers. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)
In an effort to establish a prima facie case, Special Agent Smartt has identified other USCS officers who have children who were sent to prison for drug of offenses. In those cases, the USCS officers were not similarly disciplined by the USCS. Defendant invites the Court to undertake a quantitative analysis of the criminal activity of Special Agent Smartt's son and the sons of the USCS officers that Special Agent Smartt identified. The prima facie burden is light it in comparison to the ultimate burden, and the Court is required to view the facts in the most favorable light to the plaintiff. Therefore, the Court finds that Special Agent Smartt established a prima facie case of discrimination in regard to her suspension and transfer.
It is acknowledged that Special Agent Smartt is a member of a protected group and that she suffered an adverse disciplinary action.
The Court notes that Special Agent Smartt's claims of retaliation in regard to her suspension and transfer are predicated on SAC Lindheim's knowledge of her prior EEO activity. SAC Lindheim talked to Mr. Adamson about the transfer. however, Adamson testifies that he made the decision to suspend and transfer Smartt before he spoke with SAC Lindheim. Mot.S/J, Exh. 3, Adamson Decl. Special Agent Smartt offers no evidence to the contrary. Thus, she cannot establish a prima facie case of retaliation discrimination. Despite this finding, the Court shall address the other evidentiary standards relevant to a discrimination claim for the benefit of a higher court which might disagree with the conclusion that no prima facie case has been shown.
Defendant has produced evidence that articulates nondiscriminatory reasons for the suspension and transfer, i.e., Special Agent Smartt engaged in conduct inconsistent with her position as a USGS law enforcement officer by failing to separate herself from her son's life despite his high level of criminal activity, she failed to take proper and reasonable precautions to ensure the safety and security of the USCS pistol assigned to her by leaving it in in her residence where her son would have access to it, and without authorization, she used law enforcement data bases to query names of family members. Mot.S/J, Exh. 4, Decision Letter.
Special Agent Smartt also relies upon differential disciplinary treatment of other agents with problem children to show pretext. First, that evidence is of questionable relevance in light of Special Agent Smartt's admission that Adamson acted in good faith in imposing discipline against her. Second, assuming it is somehow relevant, the circumstances are distinguishable. Special Agent Smartt was not disciplined because of her son's criminal activity but because of her failure to separate herself from him.
In order to show pretext, Special Agent Smartt also attempts to show that the decision of Mr. Adamson, who she concedes acted without discriminatory animus, was adversely affected by two individuals that harbored discriminatory animus toward Blacks. Special Agent Smartt contends that Mr. Adamson'5 decision was influenced by both Special Agent Robert Butler and SAC Leonard Lindheim. Special Agent Butler worked in the San Antonio area with Special Agent Smartt, but he did not have any supervisory authority over her. As a Special Agent in Charge, Lindheim was the highest ranking Special Agent in the entire District and he was Special Agent Smartt'5 third line supervisor. The Court may impute a discriminatory or retaliatory motive to Mr. Adamson as the decision-maker if an employee with a discriminatory motive manipulates or unduly influences the decision-making process. Willis v. Marion Cty. Auditor's Office, 118 F.3d 542, 547 (7th Cir. 1997)
Special Agent Smartt contends that she does not have to prove that biased or untrue information actually influenced the decision of Mr. Adamson. The Court disagrees. If the information was unbiased and true, then there can be no showing of pretext because Mr. Adamson's decision would not be considered to have been adversely affected. If the information was biased or untrue, but was not relied upon by Mr. Adamson, then pretext cannot be established because Mr. Adamson was insulated from any attempt to adversely influence his decision. Willis, 118 F.3d at 547.
In addressing this issue in Long V. Eastfield College, the Fifth Circuit noted that there are two distinct lines of cases addressing the issue of employer liability for employment decisions based on the complaints or recommendations of other employees. 88 F.3d 300, 306 (5th Cir. 1996). "The first line of cases involves employer liability for actions, complaints, and recommendations of ordinary employees." Id . The Fifth Circuit noted that an employer is not liable under Title VII for an employment decision based on a false complaint of an ordinary employee if the employer reasonably believed the allegation and acted on it in good faith. Id . In such cases, the wrongful intent of the ordinary employee is not imputable to the employer because ordinary employees do not have control over the employment status of co-employees. Long, 88 F.3d at 306. The other line of cases involves employer liability for the actions, complaints and recommendations of supervisory employees. An employer is liable under Title VII for an employment decision made by a supervisory employee, where the supervisory employee was an agent of the employer with regard to the employment status of the plaintiff. Id . at 306-307. The wrongful intent of the supervisory employee is properly imputable to the employer in such a case because the supervisory employee's actions are made in furtherance of the employer's business. Thus, if a plaintiff can establish a causal link between the allegedly discriminatory or retaliatory intent of a supervisory employee and the disputed employment decision, then the plaintiff can overcome a motion for summary judgment as to claims of discrimination or retaliation. Id . at 307.
In regard to Special Agent Butler, Special Agent Smartt contends that he provided biased or untrue information to the Special Agents conducting the Internal Affairs investigation of her. According to the holding in Long, the wrongful intent of a co-employee such as Special Agent Butler could not be imputable to the defendant. Special Agent Smartt's response does not identify the allegedly biased or untrue information that Special Agent Butler provided to the Internal Affairs investigators. The motion for summary judgment provides Special Agent Smartt's answer to an interrogatory that asked her to describe the allegedly biased or untrue information provided by Special Agent Butler. Her answer consisted of seven items.
It is undisputed that Special Agent Smartt and Special Agent Butler did not get along and did not care for each other. Therefore, the Court assumes for the sake of analysis that the information provided by Special Agent Butler was biased and untrue. There is evidence that Special Agent Butler criticized Special Agent Smartt because of her lack of productivity. Mot.S/J, Exh. 8, J. Cisneros Declr. The Court notes that the information Special Agent Butler provided to the Internal Affairs investigation focused on Special Agent Smartt's son's criminal activity, which was extensive. However, Special Agent Smartt has not shown that Special Agent Butler's actions in providing information to the Internal Affairs investigation were motivated by a discriminatory animus.
Special Agent Smartt stresses that Special Agent Butler had a dislike for Blacks, evidenced by his use of the "N-word" on one occasion in reference to a DEA Special Agent. In order for such a remark to be considered sufficient evidence of discrimination, it must be (1) related to the protected class of persons at issue; (2) proximate in time to the disputed employment decision; (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue. Sreeram v. Louisiana St. Univ. Med. Ctr.-Shreveport, 188 F.3d 314, 320 (5th Cir. 1999). The witness who heard the statement could not be sure that Special Agent Butler actually made it. Also, Special Agent Smartt failed to show when Special Agent Butler allegedly made the remark, thus she failed to show that it was proximate in time to the disputed employment decision. She also failed the show that Special Agent Butler had any authority over her. It is clear that the remark by Special Agent Butler was not related to the employment decision at issue because it was made it in regard to a DEA Special Agent. Therefore, the alleged remark by Special Agent Butler fails to satisfy Special Agent Smartt's burden of showing that Special Agent Butler's actions in providing information to the Internal Affairs investigators was motivated by a discriminatory animus.
Special Agent Smartt faces another obstacle in attempting to prove that Mr. Adamson relied on information provided by Special Agent Butler. First, it is beyond dispute that the criminal activity of Special Agent Smartt's son was a significant problem. Special Agent Smartt concedes that the USGS was aware of her son's criminal activity irrespective of any information that Special Agent Butler provided. In her response, Special Agent Smartt stated that she always informed her supervisors and the police of any illegal activities that her son was involved in. Also, Mr. Adamson's decision letter focused on Special Agent Smartt's decision to allow her adult son to continue to live with her long after he stole her pistol. Mot.S/J, Exh. 4, Decision Letter. Thus, Special Agent Smartt, rather that Special Agent Butler, was the source of the information regarding Special Agent Smartt's son that appears to be pivotal in Mr. Adamson's letter, namely that Special Agent Smartt failed to disassociate herself from her son. For these reasons, the motion for summary judgment should be granted to the extent that Special Agent Smartt's discrimination claim is based on the actions of Special Agent Butler.
In regard to the actions of SAC Lindheim, Special Agent Smartt contends that he told Mr. Adamson that she had to be transferred, stating reasons that were false. Thus, Special Agent Smart concludes that SAC Lindheim influenced Mr. Adamson'5 decision to suspend and transfer her. Special Agent Smartt contends that she can prove that SAC Lindheim acted with a discriminatory and retaliatory motive because he disliked Blacks and he knew about her prior EEO activity.
It is undisputed that Mr. Adamson called SAC Lindheim on August 27, 1996, and during the conversation, SAC Lindheim told Mr. Adamson that Special Agent Smartt must be transferred. The Court assumes for the purposes of analysis that the reasons given by SAC Lindheim were false. According to Mr. Adamson's declaration, he called SAC Lindheim to confirm that he had "made the correct decision regarding Special Agent Smartt, i.e., that she needed to be transferred away from her San Antonio duty station, and that her employment with the Customs Service should not be terminated because she had potential to be a successful Special Agent elsewhere." Mot. S/J, Exh. 3, Adamson Declr. Mr. Adamson also stated that nothing that SAC Lindheim told him changed his mind about the decision he had already made. Id .
As evidence of influence, Special Agent Smartt relies on the timing of the conversation in August 1996, which was long before the February 1997 issuance of the decision letter. Mr. Adamson explains that he sent the decision letter to the USGS Office of Human Resources on September 5, 1996, but that was still after the conversation with SAC Lindheim. Considering that the Court must view the evidence in the most favorable light to the plaintiff, the Court is unable to determine in the context of this motion whether SAC Lindheim may have influenced Mr. Adamson. Also, according to the holding in Long, any wrongful intent on the part of SAC Lindheim is imputable to defendant because he is a supervisory employee. Therefore, the Court finds that there is a question of material fact regarding whether SAC Lindheim influenced Mr. Adamson.
Any such influence that SAC may have had on Mr. Adamson's decision must be shown to have been motivated by discrimination or retaliation in order for Special Agent Smartt to overcome summary judgment. Special Agent Smartt contends that SAC Lindheim was known to be hostile toward Blacks. Special Agent Smartt's evidence of SAC Lindheim's allegedly discriminatory intent consists of an excerpt of a transcript of an EEO proceeding before an administrative law judge. Response, Exh. I. The excerpt does not identify the deponent. According to Special Agent Smartt's response, the excerpt is of testimony of James Kirby O'Neal. Mr. O'Neal worked with SAC Lindheim from 1991 to 1993. Response, Exh. I, p. 86.
Special Agent Smartt's sur-reply provides the proper authentication for such document, which undermines defendant's objection to that evidence on the basis of lack of authentication.
In his testimony, Mr. O'Neal stated that, from statements made by SAC Lindheim some time during the 1991-93 period, he concludes that SAC Lindheim had a strong dislike for Blacks. Id . at p. 87. Thus, the excerpt does not provide evidence of any statements that are proximate in time to Special Agent Smartt's 1997 suspension and transfer. Also, none of the statements could be shown to be related to Special Agent Smartt's suspension and transfer. Therefore, such evidence is insufficient to prove that SAC Lindheim acted with a discriminatory intent.
Special Agent Smartt also contends that SAC Lindheim acted with retaliatory intent when he talked to Mr. Adamson because he knew of her prior EEO activity. In an ordinary retaliation claim, the plaintiff would have to show that her employer would not have taken the adverse employment action "but for" the plaintiff's participation in the protected activity." Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 972 (5th Cir. 1999). Since Special Agent Smartt contends that SAC Lindheim's allegedly retaliatory intent motivated him to influence Mr. Adamson's decision, the burden of proof must vary slightly. Thus, to carry her ultimate burden of proof in regard to the retaliation claim, Special Agent Smartt must show that, "but for" her January 22, 1996 complaint of discrimination, SAC Lindheim would not have made the statement to Mr. Adamson that Special Agent Smartt had to be transferred.
As noted earlier, Special Agent Smartt filed an administrative complaint of discrimination on January 22, 1996, just over seven months before the conversation between Mr. Adamson and SAC Lindheim. Certainly, seven months is sufficient proximity in time between the protected activity and the disputed conversation to establish a prima facie case of retaliation. However, that evidence alone does not require denial of the motion for summary judgment as to the retaliation claim because it is more difficult to satisfy the ultimate burden of proof. See Long, 88 F.3d at 305 n. 4 (the standard for establishing the "causal link" element of the prima facie case is much less stringent than the ultimate burden of proving that the protected activity was a "but for" cause of the adverse employment decision). Consideration of the proximity in time is part of the Court's analysis, but it is not conclusive as to the determination of retaliation. Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992). Instead, the proximity in time is properly considered as one of the elements in the entire calculation of whether there was a causal connection between the protected activity and the disputed action. Id .
Special Agent Smartt has proffered no evidence of retaliation other than the proximity in time. Other factors that can be balanced with the factor of proximity include (1) the Internal Affairs investigation was initiated pursuant to USGS policies after Special Agent Smartt reported the theft of her pistol; (2) a USCS Special Agent in Louisiana, whose intent has not been impugned, recommended that Special Agent Smartt be suspended for 30 days and transferred; (3) SAC Lindheim did not contact Mr. Adamson to volunteer his opinion; (4) although SAC Lindheim stated to Mr. Adamson that Special Agent Smartt had to be transferred, it is undisputed that he made a positive remark about her, namely that she has the potential to be a good Special Agent elsewhere; (5) after Mr. Adamson received SAC Lindheim'S opinion, Special Agent Smartt received a penalty that was less severe than was recommended by the Special Agent in Louisiana; (6) Mr. Adamson reviewed every document (over 500 it in number) that was included in the record at the time he made his decision; and (7) Mr. Adamson made his decision after receiving an oral reply from Special Agent Smartt and her counsel, neither of whom asserted that he should guard against any influence from SAC Lindheim because of his retaliatory intent. Considering all these factors, the Court finds that there is no conflict in substantial evidence that would create a jury question on the issue of retaliation. See Shackelford v. Deloitte Touche, LLP, 1999 WL 728105, *3 (5th Cir. 1999) ("Once a Title VII case reaches the pretext stage, the only question on summary judgment is whether there is a conflict in substantial evidence to create a jury question regarding discrimination."). For these reasons, the motion for summary judgment should be granted as to the discrimination and retaliation claims that are based on the actions of SAC Lindheim.
Mr. Adamson's review of the entire record supports a finding that he conducted an independent investigation despite the recommendation of SAC Lindheim because there is no summary-judgment evidence to show that the record was prepared under the direction of SAC Lindheim. Long, 88 F.3d at 307 n. 8. Special Agent Smartt acknowledges that the causal link between the allegedly retaliatory intent of SAC Lindheim and her suspension and transfer would be broken if the deciding official, Mr. Adamson, conducted an independent investigation. See Long, 88 F.3d at 307.
Conclusion
The defendant's motion for summary judgment shall be GRANTED it in its entirety, and this case shall be DISMISSED.
It is so ORDERED.
SIGNED this 26th day of October, 1999.