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holding that a plaintiff alleging discriminatory work assignments had not established an inference of discriminatory animus where she had "not presented evidence that she was purposefully deprived of sufficient work assignments or that she had specialized training or experience which was disregarded in assigning work"
Summary of this case from Strain v. University of Pittsburgh Medical CenterOpinion
CIVIL ACTION NO. 03-3529
January 28, 2004
MEMORANDUM
I. INTRODUCTION
Plaintiff Betty E. Washington, an African-American born on May 14, 1946, has sued defendant Mel R. Martinez, Secretary of HUD, alleging that she was discriminated against on the basis of race, age and in reprisal for her prior Equal Employment Opportunity activity. Presently before me is defendant's motion for summary judgment. For the reasons stated below I will enter judgment in favor of defendant and against plaintiff.
Plaintiff now uses her married name and is known as Betty E. Wooden.
II. BACKGROUND
During the period of the alleged discrimination, plaintiff was a GS-334-12 Computer Specialist in HUD's Pennsylvania state office in Philadelphia. The director of plaintiff's division, the Information Technology Division, was Christine Stanley who was stationed in Chicago, Illinois. In Philadelphia, plaintiff's team leader was Deborah lavarone. Iavarone characterized her own position in the Pennsylvania office as quasi-supervisory: while she worked on assignments with other computer specialists, she also signed off on time and attendance records and distributed assignments sent directly to her by computer users among the staff in the Pennsylvania office. The Information Technology Division staff in Philadelphia provided broad based assistance to others in the office with respect to computer systems and office automation software.
Plaintiff has since been promoted into a GS-13 position as a Support Services Specialist assigned to the Administration Services Center 1, stationed in HUD's Pennsylvania office.
Within the Information Technology Division, assignments were distributed in a variety of ways. Computer users with questions would call, send email messages, or drop by the office. Messages were sometimes directly sent to Iavarone, who would then forward them to all of the computer specialists or directly to an individual in the office if his/her specific expertise were implicated by the question. Plaintiff claims that Iavarone did not pass the same quantity of assignments to her as she did to others in the Division.
Several of the GS-12 Computer Specialists in the Division were responsible for a particular specialty area. Tram Trinh and David Gabowski were responsible for programming problems. Debbie Jankowski was responsible for the Local Area Network. Trinh and Anna Doody were Lotus Notes specialists. Plaintiff did not have a specialty assignment.
A. Travel to Chicago
On July 12, 1999, plaintiff and three of her co-workers, Iavarone, Trinh, and Jankowski, were scheduled to fly to Chicago for training. That morning, plaintiff spoke with Trinh regarding the group's travel arrangements to Philadelphia International Airport. Trinh informed her that Iavarone had said the group would be leaving from the office via taxi between 1:30 and 2:00 p.m. After turning off her computer and overhead lights, plaintiff left the office between 1:00 and 1:30 to get money from an ATM machine. She did not leave a note detailing her whereabouts and did not tell others in the office where she was going. Plaintiff had taken her luggage to the airport the previous evening, and therefore left nothing in her office space that would indicate to her co-workers that she planned to return before their trip.
Iavarone, Jankowski, and Trinh returned to the office after lunch and were unable to find plaintiff. After finding her workstation shut down with no luggage and no note, they decided to catch a cab to the airport without plaintiff at approximately 1:45. Plaintiff subsequently returned to the office and discovered her co-workers had left without her. She caught her own cab to the airport but was upset that the others had not waited for her. Upon her arrival at their departure gate however, she did not approach lavarone, Jankowski, and Trinh to ask why they had not waited for her or to indicate her dismay at being left behind.
On the airplane to Chicago, the coworkers sat separately. Plaintiff's seat assignment happened to be farthest to the rear of the plane and she was therefore the last of the group to exit the aircraft. No specific arrangements had been made to meet in the baggage claim area or at the ground transportation to their hotel. Plaintiff remained separated from the others as they independently made their way to the restroom, the baggage claim, and the shuttles to the hotel. Because plaintiff had exited the plane last, the others reached the hotel transportation first and boarded the first van they saw. Plaintiff saw them leaving as she arrived in the ground transportation area and then waited for the next shuttle to the hotel.
The group also had not made specific transportation arrangements from the hotel to the training site. On the morning after their arrival, plaintiff arrived in the hotel lobby after lavarone, Jankowski, and Trinh. She alleges she spoke to lavarone and Jankowski before going to the front desk for change. When she returned, she saw that the others had just gotten into a taxi to leave. When she approached the bellman to tell him where she was going he stopped the others' taxi so that plaintiff could ride to the training with them. Over the course of the week-long training session, the group did not have any organized meals. Trinh did ask plaintiff if she would like to dine with her on at least one occasion, but plaintiff declined. At the end of the training, the group traveled to the airport in Chicago together, using two cabs in order to accommodate their luggage.
B. Administrative Services Cross Training
On August 12, 1999, Steven Berko, the Director of the Administrative Resources Division, organized a cross training session for everyone within Administrative Services. Plaintiff claims she was not permitted to participate in this training. Berko asked Jankowski to prepare a fifteen minute presentation regarding an overview of the Information Technology Division's duties and responsibilities. His request was apparently based on his familiarity with Jankowski's work as he was her former boss. Neither Stanley nor lavarone was involved in the development of the session although lavarone received general email messages announcing the training session on August 5 and on August 12. The emails did not identify Jankowski as a presenter at the session.
Jankoswki gave a ten to fifteen minute PowerPoint slide presentation of seven to ten slides as requested. David Grabowski, another Information Technology Specialist passed out Jankowski's handouts. During Jankowski's presentation Anna Doody, also an Information Technology Specialist, assisted her by using the computer to advance the slides while she spoke. Either Doody or Grabowski helped to set up the laptop computer for the presentation.
C. Laptop Computer Training and Support
During an office computer upgrade plaintiff and her coworkers were given a choice between a desktop or a laptop computer and she alone chose a laptop. Except for their portability, laptop computers do not differ greatly from desktop computers as both use the same operating system software. Plaintiff claims that after she received the laptop she was intentionally denied laptop training. However, at the time she received her laptop, there were no basic laptop training classes available. HUD provided support for laptop users through their help desk in the Central Office in Washington, D.C. and instruction manuals were available for individual machines. Although lavarone and others in the Information Technology Division would have assisted plaintiff with any specific questions she had about using her new laptop, plaintiff never approached anyone for help. HUD did provide specialized training for Community Builders who used laptops and lavarone had the opportunity to participate in this training. The training lavarone received was specifically for use of a Community Builder software package and did not include instructions on the use of the laptop itself.
Plaintiff alleges that the Agency deliberately limited her network access rights. Although she was informed in 1998 that she had the same supervisory rights as the other computer specialists, in 1999, she discovered this was not the case. On March 1, 1999 plaintiff emailed Stanley regarding her request to be added to the Information Technology contact list for HUD's Eotus Notes R4 user tracking database. When made aware of plaintiff's access problems, lavarone emailed her on March 2 stating that lavarone had requested that HUD headquarters add plaintiff to the R4 Eotus Notes database and requesting that she check to see if she could access the database. There is no indication that plaintiff's lack of access rights prior to 1999 was intentional.
Plaintiff also claims that on at least one occasion she was contacted by a laptop user who needed a SHIVA password to connect her laptop to the network from home. Plaintiff was unable to locate the necessary password and claims she could not have obtained the password from the central Help Desk because lavarone alone had the relevant information. She emailed lavarone on June 10, 1999 asking for assistance with SHIVA procedures. Plaintiff claims that lavarone never responded to the email. However, Stanley testified at an EEOC hearing that plaintiff came to her "indicat[ing] that she thought [lavarone] had some kind of material that would be helpful to her in laptop problems." (D's Mem. of Points and Authorities in Support of Federal D's Mot. for Summ. J., Testimony of Christine Stanley at p. 246) Stanley then spoke to lavarone about plaintiff's concern and she subsequently addressed plaintiff's laptop support questions at a general discussion with the Information Technology Group. After the discussion, which included references to SHIVA support plaintiff raised no follow-up questions. (Id. at 246-48)
D. Procedural History
On October 22, 1999 plaintiff filed a formal EEO complaint alleging that HUD had discriminated against her on the basis of her race and age and in retaliation for her prior EEO activity. Plaintiff alleged the agency had engaged in a continuous and ongoing pattern of discriminatory conduct. At the conclusion of the Equal Employment Opportunity Commission investigation, plaintiff requested a hearing before an EEOC administrative judge. The administrative judge issued a decision finding no discrimination which the agency adopted as its final agency decision. Plaintiff appealed HUD's final decision to the EEOC Office of Federal Operations. The EEOC affirmed HUD's final decision on November 14, 2002 and denied plaintiff's request for reconsideration on March 4, 2003. Having been unsuccessful in her EEOC proceedings, plaintiff commenced this civil action against HUD on June 6, 2003. Defendant filed the present motion on August 29, 2003.
Plaintiff filed a formal discrimination complaint against HUD with the EEOC on December 9, 1997. An EEOC administrative judge issued a decision without a hearing finding no discrimination. Plaintiff appealed the decision and the decision was reversed and remanded to the agency for a hearing. Washington v. Martinez, Appeal No. 01A10233, 2002 WL 736277 (E.E.O.C. April 16, 2002). At the time the briefs were filed, plaintiff was awaiting notification of the scheduling of a hearing on this matter before an EEOC administrative judge.
Pursuant to 42 U.S.C. § 2000e-16(c), a federal employee may file a civil action within 90 days of receiving a final agency decision or after the passage of 180 days without a decision if an E.E.O.C. appeal has not been filed. See 29 C.F.R. § 1614.407(a) (b). Alternatively, the employee may appeal to the E.E.O.C. and file a civil action within 90 days of a final decision by the Commission or the passage of 180 days without a decision. See 29 C.F.R. § 1614.407(c) (d). "When a reconsideration request is timely filed, the EEOC's decision on appeal becomes "final" only when that request is granted or denied." Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 246 (3d Cir. 1999), citing 29 C.F.R. § 1614.405(b)(1).
The time by which a plaintiff is required to file a civil action is measured from the date of plaintiff's receipt of the final administrative action. See, 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407. The Denial Decision states it was mailed on March 4, 2003 and was mailed in an envelope postmarked March 5, 2003. For timeliness purposes, the Commission presumes a decision is received within five calendar days after its mailing. The decision thus became final on March 9 or 10, 2003 and was thus filed 88 or 89 days after the decision became final, within the 90 day period for timely filing.
III. STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court has recognized that the moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party may not rest upon the mere allegations or denials of the party's pleading. See Celotex, 477 U.S. at 324.
I must determine whether any genuine issue of material fact exists. An issue is "material" only if the dispute over facts "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the record taken as a whole in a light most favorable to the nonmoving party, "could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (citation omitted). If the evidence for the nonmoving party is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50 (citations omitted).
IV. DISCUSSION
Plaintiff argues the Agency discriminated against her on the basis of her race and age and in retaliation for her prior EEOC activity. The Supreme Court set forth the basic allocation of burdens and order of presentation of proof in a case alleging discriminatory treatment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). The plaintiff first
Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.Texas Dep't. of Comm. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (internal citations omitted), quoting McDonnell Douglas, 411 U.S. at 802. 804.See also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). This analytic framework is also applied in the context of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. See, e.g., Simpson v. Kay Jewelers, 142 F.3d 639, 643-644 (3d Cir. 1998).
Under the ADEA, it is unlawful for an employer to "to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. § 623(a)(2).
A. Plaintiff Has Not Established a Prima Facie Case of Discrimination under Title VII
In order to prove a prima facie case of race discrimination plaintiff must show she is a member of a protected class; she suffered adverse employment action; and that the unfavorable action gives rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Gaspar v. Merck Co., Inc., 118 F. Supp.2d 552, 555 (E.D. Pa. 2000). Plaintiff can establish the first element of a prima facie case of discrimination based on race as she is an African-American female and thus comes within the class protected by Title VII. Defendants argue, and I agree, however, that plaintiff has not established a prima facie case of race discrimination because she did not suffer an adverse action.
The Supreme Court defines an adverse employment action as a "significant change in employment status, such as hiring, firing, failing to promote, reassignment, or a decision causing a significant change in benefits." Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Plaintiff was not terminated or demoted or given a decreased salary and does not allege that her reassignment to a GS-13 position as a Support Services Specialist in a different department was an adverse action. The issue here is then whether HUD's alleged conduct otherwise constitutes an adverse action.
The Supreme Court has held that "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, Title VII is violated."National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2074 (2002) (internal quotations omitted), quoting Harris v. Forklift Svs. Inc., 510 U.S. 17, 21 (1993). Although Title VII "mentions specific employment decisions with immediate consequences, the scope of the prohibition is not limited to economic or tangible discrimination and . . . it covers more than `terms' and `conditions' in the narrow contractual sense."Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (internal quotations and citations omitted), quoted in Gharzouzi v. Northwestern Human Servs. of Pa., 225 F. Supp.2d 514, 531 (E.D. Pa., 2002). Thus the conditions required to create a hosfile working environment may constitute a significant change in benefits and establish the adverse action necessary to state a prima facie case of discrimination.
Plaintiff has not shown that there is a genuine issue of material fact as to whether or not she was subject to a hosfile environment and therefore has not established a prima facie case of discrimination based on race.
[W]hether an environment is "hosfile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.Harris, 510 U.S. at 23. Taken individually, each incident plaintiff refers to in her complaint does not rise to the level of actionable discrimination. The record reflects a series of unconnected events apparently arising from workplace discord and poor communication. There is nothing to indicate that the events were motivated by discrimination. Plaintiff alleges however that these individual incidents reflect an ongoing pattern of discrimination which "has been manifested in part, by her being isolated from her colleagues, shunned by her colleagues, and treated in a discriminatory fashion with regard to assignments, job responsibilities, training assistance and other working environment issues." (Pl's. Resp. to D's Mot. for Summ. J. at p. 3) This pattern, she argues, resulted in a hosfile work environment in violation of Title VII and the ADEA.
To establish a claim for hosfile work environment, plaintiff must demonstrate that: (1) employees suffered intentional discrimination because of their race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) respondeat superior liability existed.See. Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990); Johnson v. Souderton Area School District, No. 95-7171, 1997 WL 164264 at * 5 (E.D. Pa. April 1, 1997).
Plaintiff has demonstrated that she is a member of a protected class. She has not, however, presented evidence of intentional discrimination based on her race. Although plaintiff was the only African-American in the office she has presented no evidence that she would have been treated differently had she been a white person or that any of her coworkers' actions were motivated by her race. Cf., Johnson, 1997 WL 164264 at * 5 (finding summary judgment appropriate where "[t]here was nothing other than Johnson's bald allegation in the Amended Complaint to indicate that the events were motivated by discrimination or retaliation").
Viewing the events in the light most favorable to plaintiff, there is also no evidence that the alleged instances of discrimination were sufficiently pervasive and regular to create a hosfile work environment. In Johnson, 1997 WL 164264 at * 6, this Court found that the alleged harassment was not sufficiently pervasive and regular to withstand a summary judgment motion. "The nine alleged events [in the case] spanned more than three years. There [was] no similarity or common theme connecting the events. A number of different persons [were] involved and there [was] no evidence of concerted action." Id. The three specific events plaintiff cites to in support of her allegations other than the distribution of work assignments took place between June and August, 1999. Three disparate events — a business trip, a presentation, and a request for laptop assistance — in a three month period involving various members of the Philadelphia office do not to create a regular pattern of discrimination.
The distribution of work assignments was a more regular event, but as noted below, plaintiff has not demonstrated that the distribution work was objectively hosfile or motivated by her race.
Summary judgment was also granted in Preston v. Bell Atlantic Network Services. Inc., No. 96-3107, 1997 WL 20853, at *8 (E.D. Pa. Jan. 16, 1997), where "although Ms. Preston experienced events that were personally upsetting to her, they nevertheless fail[ed] to create a genuine issue as to whether any racial discrimination suffered by Plaintiff was `pervasive or severe' to support a hosfile environment claim." Plaintiff cited several alleged acts of harassment, but this Court found that many of the alleged acts were not racially motivated and instead reflected "general personality conflicts with [plaintiff's] peers." Id. at *7 n. 15. Even the acts with clear racial content were not found to permeate the workplace with "`discriminatory intimidation, ridicule, and insult' that [was] `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Id. at * 7-8, quoting Waite v. Blair. Inc., 937 F. Supp. 460, 468 (W.D. Pa. 1995). Here, plaintiff presents no evidence of acts with clear racial content, and as in Preston, the incidents plaintiff complains of largely appear to be motivated by a personality conflict with lavarone. As Jankowski stated in her sworn statement, "I wouldn't say they never spoke, but when they did, you could see there was tension between them." (Pl's. Ex. "Excerpts of Sworn Statements from Fact Witnesses," Jankowski at 285) Plaintiff was not the only computer specialist who lavarone appeared to ignore at times. Jankowski explained, "There were times when [Iavarone] didn't speak to anybody. She didn't speak to us for days at a time sometimes." (Id.) While lavarone's attitude may have made the workplace uncomfortable, the discord between her and the information technology specialists does not reflect a hosfile environment based on discrimination against plaintiff.
An objectively hosfile or abusive work environment is one "`that a reasonable person would find hosfile — and an environment the victim-employee subjectively perceives as abusive or hosfile.'" Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001). quoting Harris, 510 U.S. at 21-22. While plaintiff's references to the subjective effect of her coworkers' actions in her response to defendant's motion for summary judgment are limited, viewing the events in the light most favorable to plaintiff, she has met the subjective standard of proving that she was detrimentally affected by the alleged events. Plaintiff cannot show, however, that a reasonable person of the same race in the same circumstances would have been detrimentally affected by the alleged incidents of discrimination. This requirement "puts a check on the overly sensitive plaintiff who is unreasonably affected by acts of discrimination." Koschoff v. Henderson, 109 F. Supp.2d 332, 348, quoted in. Gharzouzi, 225 F. Supp.2d. at 537. "Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Pittman v. Continental Airlines. Inc., 35 F. Supp.2d 434, 442 (E.D. Pa. 1999) (internal quotations omitted), quoting Faragher, 118 S.Ct. at 2283. Viewing the facts in a light most favorable to plaintiff, the conduct alleged does not rise to the level of hostility proscribed by Title VII.
Where plaintiff left no signal that she intended to return to the office in order to travel to the airport with her coworkers, their failure to ensure that plaintiff was included in their transportation plans does not create an inference of discrimination. The subsequent lack of planning as to ground transportation on the trip was due to poor communication or a lack of thoughtfulness and was not intended to deliberately exclude plaintiff. On the evidence presented, plaintiff's exclusion from the administrative cross-training session likewise appears not to have been deliberate. The established relationship between Berko and Jankowski led to his request that she assist in the training. Plaintiff has presented no evidence that the participation of other computer specialists was due to anything other than happenstance. Plaintiff was treated no differently with regard to basic laptop computer training than any other employee. She has not presented evidence that she was purposefully deprived of sufficient work assignments or that she had specialized training or experience which was disregarded in assigning work. The uneven distribution of work assignments within the IT Division resulted from an absence of a rigid dissemination plan and differences in the employees' specialized computer experiences.
"Title VII does not guarantee a work environment free of stress."Johnson, 1997 WL 164264 at * 6. While plaintiff may have subjectively perceived the actions of lavarone and her coworkers as hosfile, a reasonable person would not find they were based on her race or that they rose to a level of hosfile environment harassment. The incidents and actions alleged by plaintiff may have made her feel shunned or isolated, but she has not presented sufficient evidence of a hosfile work environment to demonstrate the adverse action necessary to state a prima facie case of discrimination based on her race.
B. Plaintiff Has Not Established a Prima Facie Case of Discrimination under the ADEA
As in the race discrimination context, to establish a prima facie case of discrimination on the basis of age under the ADEA, the plaintiff must prove that she is at least 40 years of age, i.e., a member of the protected class, 29 U.S.C. § 631(a), she is qualified for the position in question, she suffered an adverse employment decision, and, in the case of a demotion or discharge, was replaced by a sufficiently younger person to create an inference of age discrimination. See Simpson, 142 F.3d at 644, n. 5; Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987). Plaintiff can establish the first element of a prima facie case of discrimination based on age as she was born in 1946 and thus comes within the class protected by the ADEA. However, as for the reasons stated above in the race discrimination context, plaintiff cannot establish a prima facie case of age discrimination because she did not suffer an adverse action. The Court of Appeals has held that a plaintiff might be able to meet the adverse employment action requirement for a prima facie case on a showing that a job transfer was to a "dead-end job," even though it did not involve a loss of pay or benefits, plaintiff has made no such showing here. Torre v. Casio. Inc., 42 F.3d 825, 831 n. 7 (3d Cir. 1994). See also Fallon v. Meissner, 66 Fed. Appx. 348 (3d Cir. 2003) (holding plaintiff did not suffer an adverse employment action for purposes of the ADEA when his employer refused his requests for transfers to an equivalent job in other cities). Plaintiff has made no allegations that her transfer to the Administration Services Center was an undesirable move which limited her career advancement potential. She has not established a prima facie case of discrimination based on her age.
C. Plaintiff Has Not Established a Prima Facie Case of Retaliation Under Title VII
To establish a prima facie case of retaliation under Title VII, plaintiff must show that she engaged in a protected employee activity; that HUD took an adverse employment action after or contemporaneous with the protected activity; and that a causal link exists between her protected activity and HUD's adverse action. See Goosby v. Johnson Johnson Medical. Inc., 228 F.3d 313, 323 (3d Cir. 2000). Plaintiff's 1997 EEOC complaint qualifies as the protected activity, but as demonstrated above, plaintiff has not demonstrated that HUD took an adverse action subsequent to her filing of the first EEOC complaint. "[N]ot everything that makes an employee unhappy qualifies as retaliation, for otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir., 1997) (internal quotations omitted), citing Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996). See also Keen v. D.P.T. Bus. Sch., No. 00-3758, 2002 U.S. Dist. LEXIS 232, at *31 (E.D. Pa. Jan. 9, 2002) (holding defendant's alleged acts of retaliation failed to meet the standard of adverse employment action).
IV. CONCLUSION
Plaintiff has not raised a genuine issue of material fact with respect to whether she suffered an adverse employment action including whether she was subjected to a hosfile work environment. Because plaintiff has not done so, I conclude that she has not established that HUD unlawfully discriminated against her based on her race and age and in retaliation for her prior EEOC complaint. The burden of production in this case therefore does not shift to HUD and summary judgment is appropriate based on plaintiff's failure to produce evidence that she was subjected to an adverse employment action.
ORDER
AND NOW, this day of January 2004, after considering defendant's motion for summary judgment and plaintiff's response thereto, it is hereby ORDERED that defendant's motion is GRANTED and judgment is entered in favor of defendant Mel R. Martinez, Secretary, Department of Housing and Urban Development and against plaintiff Betty E. Washington.