Opinion
Civil Action No. 3:03-CV-2933-P.
June 24, 2005
ORDER
Presently pending before the Court is Defendant's Motion for Summary Judgment, filed September 8, 2004. In Plaintiff's Response, filed on November 29, 2004, Plaintiff requests a hearing on all her claims. Plaintiff also requests that she be allowed to conduct additional discovery in support of some of her claims. After a thorough review of the briefing, the summary judgment evidence, the case file, and the applicable law, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment. The Court also DENIES as MOOT Plaintiff's discovery requests and DENIES Plaintiff's request for a hearing.
Plaintiff entitled her Response "Plaintiff, Helen I Smith, Pleading for a Court Hearing."
Defendant did not file a Reply or respond to Plaintiff's requests for discovery and a hearing.
I. Background
In 1984, Plaintiff Helen Smith, began working as an employee of the Army and Airforce Exchange Service ("AAFES"). (Smith Dep. at 8.) During her employment with AAFES, Plaintiff initiated two separate employment discrimination lawsuits in this Court, both of which she lost. See Smith v. Perry, No. 3:98-CV-0429-AH, slip. op. (N.D. Tex. Jan. 21, 2000) (Sanderson, Magistrate J.); Smith v. Perry, No. 3:95-CV-2102-AH, 1997 WL 160293 (N.D. Tex. Mar. 27, 1997) (Sanderson, Magistrate J.). Plaintiff continued working with AAFES until 1999, when she was terminated. (Smith Dep. at 151.) Then on December 8, 2003, Plaintiff filed this lawsuit, making new allegations that her former employer harassed, retaliated against, and discriminated against her on the basis of age, sex, and religion. (Pl.'s Am. Compl. at 1-4.)
The Court evaluates Plaintiff's Amended Complaint and other filings liberally in light of the fact that Plaintiff is a pro se litigant and therefore should not be held to the same standards of pleading as an attorney. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that allegations in a pro se complaint are to be held to a less stringent standard); SEC v. AMX, Int'l, Inc., 7 F.3d 71, 75 (5th Cir. 1993) (recognizing that courts "must construe [a pro se plaintiff's] allegations and briefs more permissively"). The Court determines that Plaintiff's allegations assert violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C § 2000e-16, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a, and the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). Specifically, Plaintiff complains that:
Defendant attempted to narrow Plaintiff's claims by asking her a series of questions about her Equal Employment Opportunity Commission ("EEOC") Charges in her deposition. However, as discussed in more detail below, Plaintiff did not limit her claims to those stated within her EEOC charges. As such, the Court does not construe Plaintiff's answers to Defendant's questions as withdrawing any claims she has alleged in her Complaint or elsewhere.
1) she was discriminated against when:
a) on the basis of her age, sex, and religion, she was transferred into Finance and Accounting ("FA") in 1997 (Smith Dep. at 67-68; Pl.'s Am. Compl. at 3),
b) on the basis of her age, sex, and religion, she was given a low score on her performance review ("PER") (Smith Dep. at 67-68; Pl.'s Am. Compl. at 3), and
c) on the basis of her age, she was not selected for a position in Bosnia (Smith Dep. at 54);
2) she was subjected to a hostile work environment when:
a) she was threatened with a mark of insubordination because she refused to meet with her supervisor alone (Pl.'s Am. Compl. at 3; Smith Dep. at 107),
b) she was given a low score on her PER (Smith Dep. at 107),
c) her supervisor failed to take action when a co-worker, Marilyn Loper, repeatedly harassed Plaintiff,
d) Plaintiff received a written reprimand for not removing an unframed flag from her work area at her supervisor's request,
e) Plaintiff's supervisor and co-workers called her a "stalker" and laughed at her,
Defendant construes this allegation as a claim for retaliation. In Plaintiff's deposition, Plaintiff did, in fact, respond "Yes" when asked whether this particular allegation supported a claim for "reprisal." (Smith Dep. at 96.) However, it does not appear to the Court that Plaintiff has a full understanding of the term "reprisal." In her Amended Complaint, Plaintiff clearly states, with regard to this allegation, "This is a hostile working environment . . . This is not an ultimate employment decision but only shows the hostile working environment" (Pl.'s Am. Compl. at 3), and in her deposition, Plaintiff states "this is not an ultimate employment decision." (Smith Dep. at 106.) Moreover, when asked in her deposition whether Plaintiff intended to bring a claim for hostile work environment, Plaintiff answered "Yes." (Smith Dep. at 149.) Therefore, the Court construes this allegation as one stated in support of a claim for hostile work environment rather than retaliation.
f) one AAFES employee watched her legs, and
g) she was falsely accused of workplace violence (Smith Dep. at 50-53);
3) she was retaliated against for submitting an Equal Employment Opportunity ("EEO") complaint in 1990 when:
a) she was transferred back into FA,
b) she was given a fraudulent job description and paid unfairly as a result (Pl.'s Am. Compl. at 1.),
c) she was given a low score on her PER, id. at 3,
d) she was not selected for the position in Bosnia, id. at 2,
e) she was not for selected for the advanced position for which her co-workers, Karen Taylor, Jay Briggs and Cedric Love, were selected (Smith Dep. at 108-109), and
f) she was ultimately terminated (Pl.'s Am. Compl. at 4; Resp. at 4);
4) she was retaliated against for initiating an EEO investigation in 1998 when subsequently:
a) Marie Yaeger ("Yaeger"), an AAFES employee, accused Plaintiff of committing workplace violence,
b) Yaeger refused to investigate one of Plaintiff's complaints,
c) Norma Steinmetz ("Steinmetz"), Plaintiff's supervisor, called her into a meeting without union representation,
d) Steinmetz ordered Plaintiff back to her seat on a break, and
e) Plaintiff was suspended for thirty days without pay (Pl.'s Am. Compl. at 4); and
5) she was paid unfairly in violation of the Equal Pay Act as a result of being issued a fraudulent job description. (Pl.'s Am. Compl. at 2-3.)
Defendant Donald Rumsfeld now moves for summary judgment on several of Plaintiff's claims, arguing that Plaintiff fails to demonstrate a prima facie case as to some of her claims and that as to her other claims, Plaintiff cannot rebut her employer's legitimate, non-discriminatory reasons for its actions. (Def.'s Br. at 1.) Defendant also argues that one of Plaintiff's claims is untimely. Id. The Court will address each of Plaintiff's claims and Defendant's arguments in turn.
II. Summary Judgment Legal Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Id. However, all evidence and reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in her favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
Finally, when the non-movant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. MBank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1988). The Court has no duty to search the record for triable issues. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
III. Failure to Exhaust Administrative Remedies
Defendant moves for summary judgment with regard to Plaintiff's complaint that she was not selected for a position in Bosnia on the basis that Plaintiff failed to exhaust her administrative remedies. (Def.'s Br. at 16.) To exhaust administrative remedies, a federal employee must contact an EEO counselor within 45 (forty-five) days of the alleged discrimination. 29 C.F.R. § 1614.105(a)(1); Teemac v. Henderson, 298 F.3d 452, 454 (5th Cir. 2002). Plaintiff did not contact an EEO counselor regarding her non-selection for a position in Bosnia until March 23, 1998, more than a year and a half after the Plaintiff was informed in the summer of 1996 that she did not obtain the position. (Smith Dep. at 63.) Thus, Plaintiff failed to exhaust her administrative remedies as to this complaint, and it may not be a part of this lawsuit. Therefore, the Court grants summary judgment with regard to Plaintiff's claims based on her non-selection for the Bosnia position.
Plaintiff also makes claims under Title VII and the ADEA based on incidents which Plaintiff did not include in the Charges of Discrimination she filed with the Equal Employment Opportunity Commission ("EEOC"). Although Defendant does not move to dismiss these claims based on Plaintiff's failure to exhaust her administrative remedies, the Court can take this action sua sponte. Bernard v. ATC VanCom, No. Civ.A.3:04-CV-1820-D, 2005 WL 139110, at *2 (N.D. Tex. Jan. 20, 2005); see Dougherty County Sch. Sys. v. Bell, 694 F.2d 78, 80 (5th Cir. 1982). It is well established that a plaintiff must first exhaust administrative remedies by filing a charge with the EEOC or corresponding state agency prior to filing suit under Title VII or the ADEA. Taylor v. Books-a-Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002); Julian v. City of Houston, Tex., 314 F.3d 721, 725 (5th Cir. 2002). Only claims which would have been reasonably included in an EEOC investigation into a plaintiff's claims may be part of a subsequent lawsuit. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
Some of the claims that Plaintiff alleged in her Complaint, but not in her Charges of Discrimination, would have been reasonably included in EEOC investigations of Plaintiff's claims. For example, in one of Plaintiff's Charges she complains generally that "I do not have equal opportunity for advancement." (EEOC Charge 98.146.) This general averment may have reasonably drawn the EEOC investigation around Plaintiff's more specific allegation that she was not selected for an advanced position for which her co-workers, Karen Taylor, Jay Briggs, and Cedric Love, were selected. Additionally, Plaintiff's claim that she was "being subjected to harassment" in one of her Charges (EEOC Charge 98.047) may have reasonably alerted the EEOC to Plaintiff's claim for hostile work environment.
Plaintiff attached copies of the relevant Charges to her "Plaintiff Response to the Request of a Motion to Dismiss Case," filed January 30, 2004.
However, Plaintiff's Charges would not have alerted the EEOC to some of the other claims Plaintiff alleges in her Complaint, and thus, it is reasonable that the EEOC would not have included them in their investigation. For instance, nothing in Plaintiff's Charges would indicate that she was given a fraudulent job description and was unfairly compensated as a result of discrimination and/or retaliation. In her Charges, Plaintiff makes no mention of being assigned an inappropriate job code or being paid unfairly. Additionally, this alleged retaliation did not grow out of a charge that is properly before the Court. The Charge Plaintiff references with regard to these allegations was submitted in 1990. (Pl.'s Am. Compl. at 1.) Accordingly, this claim, insofar as it is alleged under Title VII or the ADEA, may not be a part of this lawsuit and is dismissed as a matter of law.
Further, nothing in Plaintiff's Charges would indicate that she was being discriminated against on the basis of religion. Although Plaintiff could have checked a box for religious discrimination on the appropriate Charge, she checked only boxes indicating discrimination on the basis of her sex and/or age. She also failed to make any mention of religious discrimination in the explanation sections of her Charges. As such, Plaintiff claims of religious discrimination under Title VII may not be a part of this lawsuit and are dismissed as a matter of law.
The court now turns to Plaintiff's remaining claims.
IV. Age and Sex Discrimination
Plaintiff's remaining discrimination claims include her allegations that she was discriminated against on the basis of age and sex when (1) she was transferred into FA in 1997 and (2) she was given a low score on her PER.
A. Legal Standard
Title VII makes it unlawful for an employer to discriminate against an employee because of the individual's religion or sex, 42 U.S.C. § 2000e-2(a)(1), and the ADEA make it unlawful for an employer to discriminate against an employee because of the individual's age. 29 U.S.C. § 623(a)(1). Discrimination cases based on circumstantial evidence, like Plaintiff's, are subject to the McDonnell Douglas burden-shifting test. Machinchick v. PB Power, Inc., 398 F.3d 345, 349-350 (5th Cir. 2005); Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316 (5th Cir. 2004). To establish a prima facie case under the McDonnell Douglas test, a plaintiff must prove that: (1) she is a member of a protected class; (2) she was qualified for her position; and (3) she suffered an adverse employment action. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). In the case of age-based discrimination, she must also prove that she was replaced by someone outside of the protected class, replaced by someone younger, or otherwise discharged because of her age. Machinchick, 398 F.3d at 349-350. In the case of sex-based discrimination, she must prove that she was replaced by someone outside of the protected class or that others similarly situated, but outside of the protected class, were treated more favorably. Okoye, 245 F.3d at 512-13.
The prima facie case, once established, raises a presumption of discrimination which the defendant must rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackelford v. DeLoitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). This burden on the employer is only one of production, not persuasion, involving no credibility assessments. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). If the employer carries its burden, the presumption of discrimination created by the prima facie case drops out of the picture, and the plaintiff must prove that the proffered reasons are pretextual. Id.
To demonstrate pretext, Plaintiff must present evidence to rebut each of the non-discriminatory reasons that Defendant articulates. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001). If "the evidence of pretext is substantial, the plaintiff may create a genuine issue of material fact without independent evidence that discrimination was the real reason for the adverse employment action." Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (citation omitted); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 148 (2000). This is because a plaintiff's prima facie case, along with sufficient evidence that the employer's proffered reason is false, may permit a factfinder to infer that the employer intentionally discriminated. Reeves, 530 U.S. at 148.
"Although Reeves was based on a motion for judgment as a matter of law, the standard is the same for summary judgment." Price, 283 F.3d at 720 n. 1 (citation omitted).
Such a showing will not prevent summary judgment in every case, however, because in some cases "although [a] plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory." Id.; see also Price, 283 F.3d at 720. The fact "that the employer's proffered reason is unpersuasive . . . does not necessarily establish that the plaintiff's proffered reason is correct." Hicks, 509 U.S. at 524. To find in favor of the plaintiff, it "is not enough [for the factfinder] . . . to dis believe the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Id. at 519 (emphasis in original). The ultimate burden of persuasion rests squarely on the plaintiff. Reeves, 530 U.S. at 143. As such, courts may consider a number of factors in deciding whether summary judgment is appropriate, including "the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case." Id. at 148-49. Summary judgment may be particularly appropriate where "the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there [is] abundant and uncontroverted independent evidence that no discrimination . . . occurred" or where "the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision." Id. at 148.
B. Discussion
(1) 1997 Transfer
Defendant does not move for summary judgment on Plaintiff's discrimination claim based on her transfer because Defendant construed this claim only as a claim for retaliation. ( But see Smith Dep. at 67-68.) Consequently, the Court refrains from determining this claim and allows supplemental briefing on this claim. The Court notes, however, some concern over the fact that Plaintiff's transfer occurred six years prior to the filing of this lawsuit.
Due to Plaintiff's former status as a federal employee, the Court construes her lawsuit as filed under 42 U.S.C. § 2000e-16. As such, her action is brought against the United States under a statutory waiver of sovereign immunity. See Munoz v. Aldridge, 894 F.2d 1489, 1494 (5th Cir. 1992). "Because such waivers are construed narrowly, [the Fifth Circuit] has held that the limitations period for the filing of a civil complaint under [ 42 U.S.C. § 2000e-16] is jurisdictional." Id.; see also Randel v. United States Dep't of Navy, 157 F.3d 392, 395 (5th Cir. 1998) (holding that a federal employee must timely file his or her complaint as a jurisdictional prerequisite to filing a civil action). Thus, if it becomes apparent that Plaintiff did not timely file this lawsuit with respect to this claim, the Court will be deprived of jurisdiction over this claim to the extent that Plaintiff alleges her transfer was based on her sex.
(2) Low Score on Performance Review
Defendant argues that Plaintiff cannot establish a prima facie case for her discrimination claim based on her low PER score because the low PER score does not constitute an adverse employment action. The Court agrees. Actionable adverse employment actions are generally limited to "tangible employment action[s]." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). In the Fifth Circuit, an adverse employment action must rise to the level of an "ultimate employment decision, such as hiring, granting leave, discharging, promoting, [or] compensating." Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). This is because Title VII was designed to address only "ultimate employment decisions," not "every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis, 77 F.3d at 781-82.
The Fifth Circuit has explicitly observed that low evaluations do not constitute adverse employment actions. See Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 532 n. 2 (5th. Cir. 2003) (per curiam) (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997)). As such, Plaintiff is unable to make a prima facie case of discrimination based on her low PER score. Therefore, this claim is dismissed as a matter of law.
V. Hostile Work Environment
Defendant does not move for summary judgment with respect to Plaintiff's hostile work environment claim because Defendant construed the allegations attending this claim as allegations supporting a claim for retaliation. See supra note 4. As such, the Court refrains from determining this claim and allows supplemental briefing on this claim.
VI. Retaliation
Plaintiff alleges that she was retaliated against because she filed an EEO complaint in 1990 and initiated an EEO investigation in 1998.
A. Legal Standard
Like the analysis of discrimination claims, the analysis of retaliation claims depends upon the nature of a plaintiff's evidence. Ackel v. Nat'l Communications, Inc., 339 F.3d 376, 385 (5th Cir. 2003). Where, as here, the plaintiff offers circumstantial evidence, the plaintiff has the initial burden of establishing a prima facie case of retaliation. Id. To establish a prima facie case under either Title VII or the ADEA, a plaintiff must demonstrate that: (1) she engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003); Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).
If a plaintiff succeeds in making a prima facie case of retaliation, the burden then shifts to the defendant to proffer a legitimate rationale for the underlying employment action. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (citing Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001)). If the defendant makes this showing, the burden shifts back to the plaintiff to demonstrate that the employer's articulated reason for the employment action was a pretext for retaliation. Id.
B. Discussion
(1) 1990 EEO Complaint
Plaintiff's remaining retaliation claims based on the submission of her EEO Complaint in 1990 consist of her claims that AAFES (1) transferred her back into FA in 1997, (2) gave her a low score on her PER, (3) did not select her for the advanced position, which her co-workers, Karen Taylor, Jay Briggs, and, Cedric Love obtained, and (4) ultimately terminated her. As discussed above, Plaintiff's low evaluation does not constitute an adverse employment action. See supra p. 11. As such, with respect to this claim, Plaintiff cannot establish a prima facie case of retaliation and Defendant is entitled to summary judgment. Consequently, the Court proceeds to evaluate only Plaintiff's claims based on her transfer, her non-selection for the advanced position, and her termination.
(i) 1997 Transfer
Defendant contends that Plaintiff cannot establish a prima facie case of retaliation based on her 1997 transfer. However, neither party has presented the Court with Plaintiff's 1990 EEO Complaint, and therefore, it is unclear to the Court whether Plaintiff claims retaliation here under Title VII and/or the ADEA. As mentioned above, the Court questions its jurisdiction over a Title VII claim based on this transfer. See supra pp. 10-11. Therefore, the Court refrains from determining this claim and allows supplemental briefing on this claim.
(ii) Non-selection for Advanced Position Obtained by Plaintiff's Co-workers
With regard to Plaintiff's complaint that she was not selected for the advanced position for which her co-workers, Karen Taylor, Jay Briggs, and Cedric Love, were selected, Defendant assumes for the purposes of the Motion that Plaintiff has stated a prima facie case of retaliation. (Def.'s Br. at 24.) However, Defendant asserts that AAFES had a legitimate, non-retaliatory reason for not promoting Plaintiff. Id. Defendant proffers that Plaintiff was not promoted because she was not as qualified as the other candidates. Id. Defendant explains that Plaintiff was ranked lower than the employees who were promoted, and that Plaintiff had received the poor PER. Id. at 24-25. Thus, the burden shifts back to Plaintiff to show that Defendant's legitimate, non-retaliatory justification is a pretext for retaliation.
To demonstrate pretext, Plaintiff states that she is more skilled than Karen Taylor, Jaye Briggs and Cedric Love. (Resp. at 6; Smith Dep. at 109.) She also states that her ranking was inappropriate because AAFES failed to provide her with a desk audit and her poor PER evaluation was unfairly given as a result of retaliation. (Resp. at 5-6.) However, Plaintiff provides no evidence to substantiate these statements, only her own subjective beliefs. Conclusory assertions and subjective beliefs are insufficient to demonstrate pretext. See Douglass, 79 F.3d at 1429. Additionally, the Fifth Circuit has noted that "[m]erely disputing [an employer's] assessment of [a plaintiff's] work performance will not necessarily support an inference of pretext." Evans v. City of Houston, 246 F.3d 344, 355 (5th Cir. 2001) (quoting Shackelford, 190 F.3d at 408). Because Plaintiff has submitted insufficient evidence to support her statements regarding her qualifications, these statements do not establish pretext.
Also in support of pretext, Plaintiff offers evidence that George Derrico ("Derrico"), one of Plaintiff's former supervisors, called Plaintiff into his office on January 4, 1991 and asked her about one of her EEO cases. (Pl.'s Am. Compl., Ex. 9 at 10.) Immediately thereafter, he informed Plaintiff that he would not recommend her for an advanced position because she distrusted management and unreasonably argued with management. Id. Plaintiff argues that this encounter evidences the retaliatory motive behind her non-promotion. The Court concludes, however, that the connection between this encounter and Plaintiff's non-promotion in 1998 is too tenuous to support an inference of retaliation. Seven years passed between the encounter and the non-promotion, and Derrico was no longer Plaintiff's supervisor at the time of her non-promotion. Accordingly, Plaintiff has failed to demonstrate pretext with respect to this claim, and Defendant is entitled to summary judgment on this claim.
(iii) Termination
With regard to Plaintiff's termination, Defendant does not dispute that Plaintiff has established a prima facie case of retaliation. Defendant argues that summary judgment is proper as to this claim because AAFES had a legitimate, non-discriminatory reason for not terminating Plaintiff. (Def.'s Br. at 29.) Defendant explains that Plaintiff was terminated because, on both April 9, 1999 and May 6, 1999, Plaintiff yelled at her supervisor. ( Id. at 10-11, 29; Def.'s App. at 143, 145.) Defendant contends that these incidents "coupled with" Plaintiff's disciplinary record were the reasons for Plaintiff's termination. (Def.'s Br. at 30.) Consequently, the burden shifts to Plaintiff to rebut Defendant's justifications.
Plaintiff conceded at an administrative hearing that she became "extremely upset" with her supervisor on one of the two occasions, but she claims not to have raised her voice on either occasion. (Def.'s App. at 139-40.) Ultimately, however, the Court concludes that no rational factfinder could find that Plaintiff's termination was retaliatory. The Court arrives at this conclusion because the record conclusively reveals that, regardless of whether Plaintiff actually yelled at her supervisor on the relevant occasions, Defendant had a reasonable basis to believe that she did. The Court finds this reason particularly significant because Title VII is not intended to protect against "unfair or unwise business decisions," but against discriminatory decisions. Nieto v. L H Packing Co., 108 F.3d 621, 624 (5th Cir. 1997) (citation omitted); see also Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001) ("this Court affords a high degree of deference to employers" in their business decisions); Jones v. Flagship Int'l, 793 F.2d 714, 729 (5th Cir. 1986) (holding that employer was not liable for discrimination under Title VII where the employer had a reasonable basis or good faith ground for believing in its proffered reason for terminating the plaintiff).
Charles David Wells ("Wells"), the chief of the Headquarters Human Resources Branch of AAFES, decided to terminate Plaintiff only after several employees reported witnessing Plaintiff yell at her supervisor on two separate occasions. (Def.'s App. at 112.) Several employees confirm that Plaintiff yelled in anger at her supervisor on these occasions. Id. at 36-37, 126, 142-45, 151, 155. Moreover, Plaintiff had a disciplinary record, having been suspended on two prior occasions. Id. at 112. Given Wells' consideration of the employee reports and Plaintiff's disciplinary record, the Court is satisfied that he had a reasonable basis for concluding that Plaintiff had been insubordinate, and thus, he had a reasonable basis for terminating Plaintiff. Hence, Defendant is entitled to summary judgment on this claim as well.
(2) 1998 EEO Investigation
Plaintiff's retaliation claims based on her instigation of an EEO investigation in 1998 consist of her claims that (1) Yaeger accused her of committing workplace violence, (2) Yaeger refused to investigate her complaint, (3) Steinmetz called her into a meeting without union representation, (4) Steinmetz ordered Plaintiff back to her seat on a break, and (5) Plaintiff was suspended for thirty days without pay. (Pl.'s Am. Compl. at 4.) Under the Fifth Circuit precedent set out above, Plaintiff's thirty-day suspension without pay is the only one of these actions that may arguably rise to the level of an adverse employment action. See supra p. 11. The accusation, refusal to investigate, request by her supervisor, and order to her seat were all (at best) tangential to any ultimate employment decision. Hence, Plaintiff cannot make out a prima facie case of retaliation on these grounds, and Defendant is entitled to summary judgment on these claims.
Regarding Plaintiff's thirty-day suspension without pay, Defendant does not dispute that Plaintiff has established a prima facie case of retaliation. Defendant argues that the Court should grant summary judgment on this claim because Plaintiff was suspended for legitimate, non-discriminatory reasons. (Def.'s Br. at 28.) According to Defendant, on September 22, 1998, Steinmetz gave Plaintiff an assignment, and Plaintiff responded by yelling and pointing at her. ( Id. at 7; Def.'s App. at 30, 95.) A few days later, Steinmetz attempted to talk to Plaintiff about the incident in a counseling session. (Def.'s App. at 30, 95.) Plaintiff refused to participate after she asked for and was denied union representation. Id. That same day after work, Plaintiff sat in her car until her supervisor and another co-worker, Elodia Hinojosa ("Hinojosa"), passed by. Id. at 137. After they passed by, Plaintiff drove away. Id. at 138. Defendant contends that Plaintiff was suspended for two reasons — first, because Plaintiff refused to attend the meeting and, second, because Plaintiff waited in the parking lot to intimidate her supervisor. (Def.'s Br. 8, 28; Def.'s App. at 133.) As Defendant's articulated reasons for Plaintiff's suspension are credible, the burden again shifts to Plaintiff to show that Defendant's stated reasons are pretext for retaliation.
Plaintiff does not present any sworn statement denying that Plaintiff yelled and pointed her finger at Steinmetz on September 22, 1998. Plaintiff only argues in her Response that "[Steinmetz] invented `finger pointing.'" (Resp. at 6.) Plaintiff also concedes that she refused to participate in a counseling session with Steinmetz regarding the incident. Id. at 6. Plaintiff argues, however, that this refusal was justified because she was entitled to union representation in such a meeting. Id.
Defendant counters that union representation was not required for a counseling session because the purpose of such a session is "communication between the supervisor and the employee." (Def.'s App. at 107; see Def.' Br. at 7, 28.) Defendant additionally points out that Steinmetz informed Plaintiff that the purpose of their meeting was discussion, and therefore, a union representative was not required. (Def.'s App. at 30.)
Plaintiff and Defendant both present evidence of the AAFES employees' collective bargaining agreement, which provides that
An employee of the Unit who is the subject of an examination/investigation by a supervisor or a representative of AAFES, shall be given the opportunity to have representation if the employee reasonably believes that the examination may result in disciplinary action against the employee and if the employee requests representation during this examination.
(Def.'s App. at 117; see also Pl.'s App., Ex. 23.)
Because Steinmetz informed Plaintiff that the meeting was for discussion and no union representative was required, the Court concludes that Plaintiff could not have reasonably believed that the meeting would result in disciplinary action. As such, Plaintiff has not created a fact issue on whether Defendant's first reason is pretextual. In any event, even if Plaintiff had created a fact issue with respect to this reason, Plaintiff's suspension-based retaliation claim would not survive summary judgment because Plaintiff has failed to establish that Defendant's second given reason is pretextual.
Even if Plaintiff was entitled to union representation, the Court finds that Plaintiff's refusal to meet with her supervisor nonetheless demonstrated insubordination. Plaintiff might have avoided such a demonstration by filing a grievance or utilizing other proper channels for complaining of her lack of representation.
Defendant maintains that the second reason for Plaintiff's suspension was that Plaintiff intimidated her supervisor by waiting in the parking lot for her. (Def.'s App. at 133.) Acting on behalf of Defendant, Wells obtained conflicting written accounts of the incident from Steinmetz, Hinojosa, and Plaintiff. Id. at 107-08, 130-32. Steinmetz and Hinojosa represented that Plaintiff's behavior was threatening and stalking. Id. at 130-32. Plaintiff maintained that she merely went to her car at the end of the workday and left the parking lot. Id. at 133. Considering these statements, Plaintiff's prior antagonistic behavior towards her supervisor, and Plaintiff's disciplinary record, Wells concluded that Plaintiff had acted inappropriately and that she should be suspended. Id. at 107-08. In light of all the evidence before Defendant, the Court concludes that Defendant had a reasonable basis for making these conclusions. Accordingly, Defendant's Motion for Summary Judgment is granted with respect to this claim.
Plaintiff subsequently testified at an administrative hearing that she was not waiting outside for her supervisor, but that she was waiting outside for a co-worker with whom she car pooled. (Def.'s App. at 138.) Plaintiff also testified that she "knew nothing about the stalking." Id. at 137.
VII. Equal Pay Act
Throughout her Complaint and her filings, Plaintiff repeats the allegation that she was paid unfairly in violation of the Equal Pay Act as a result of being issued a fraudulent job description. ( See, e.g., Pl.'s Am. Compl. at 2-3; Resp. at 3.) However, Defendant does not move for summary judgment with respect to this claim because Defendant did not construe Plaintiff's Complaint as containing a claim under the Equal Pay Act. Consequently, the Court also refrains from determining this claim and allows supplemental briefing on this claim.
VIII. Discovery
Plaintiff asks for discovery on three points. First, Plaintiff requests discovery to enable her to obtain "the summary court hearing," referring to the Order on a Motion for Summary Judgment in a prior proceeding between Plaintiff and AAFES. (Resp. at 2.) However, because this Order is a matter of public record, which the Court has reviewed, and because Plaintiff does not indicate how this Order supports her claims, Plaintiff's request is DENIED as MOOT.
Plaintiff's second discovery request is relevant only to her non-selection for the Bosnia position. Plaintiff indicates that "discovery will prove that [the people selected for positions in Bosnia] were less qualified" than she. Id. at 3. However, because Plaintiff's claims surrounding her non-selection for a position in Bosnia are barred for failure to exhaust administrative remedies, this discovery request is also DENIED as MOOT.
Plaintiff's third and final discovery request is relevant only to her retaliation claim based on termination. With regard to her termination, Plaintiff complains that the notice letter she received placed her alleged misconduct on dates that she had not actually worked. Id. at 8. Plaintiff indicates that she "will ask for [her] timeheets [sic] in the discovery to prove [she] wasn't present" on the days which Defendant previously indicated that she exhibited misconduct. Id. Because the Court granted summary judgment with respect to Plaintiff's retaliation claim based on her termination, however, this discovery request is also DENIED as MOOT.
IX. Hearing
Plaintiff also requests a hearing "on the issues that [she] has filed and [is] trying to present to the Federal Court." (Resp. at 1.) Local Rule 7.1(g) provides, however, that all motions shall be decided by the court without a hearing or oral argument, unless otherwise ordered by the court. Therefore, because the Court does not find it necessary to hold a hearing or oral argument on the issues that Plaintiff has submitted to the court, Plaintiff's request for a hearing is DENIED.
X. Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment. As a result, Plaintiff maintains claims against Defendant for age and sex discrimination based on Plaintiff's 1997 transfer. Plaintiff also maintains claims for hostile work environment, retaliation based on Plaintiff's 1997 transfer, and violation of the Equal Pay Act. The following schedule is hereby established for supplemental briefing on these claims:
1) Within thirty (30) days after entry of this Order, the Defendant shall file a supplemental motion, memorandum in support thereof, and any other papers ancillary to such motion.
2) Within thirty (30) days after service of the motion, the Plaintiff shall file her response, and any other papers ancillary to such response.
3) Within twenty (20) days after service of the response, the Defendant shall file a reply, if necessary.
All other claims are dismissed as a matter of law.
Furthermore, the Court DENIES as MOOT Plaintiff's discovery requests and DENIES Plaintiff's request for a hearing.