Opinion
Civil Action No. 3:03-CV-1307-L.
October 22, 2004
ORDER
Before the court are Defendant's Motion for Summary Judgment, filed September 24, 2004; and Plaintiff's Motion to Modify Scheduling Order Requiring Plaintiff's Designation of Expert[s], filed October 13, 2004. After careful consideration of the motions, competent evidence, record and applicable law, the court grants Defendant's Motion for Summary Judgment, and denies as moot Plaintiff's Motion to Modify Scheduling Order Requiring Plaintiff's Designation of Expert[s]. I. Defendant's Motion for Summary Judgment A. Factual and Procedural Background
Plaintiff did not file a response to Defendant's motion for summary judgment. Plaintiff's failure to respond does not, of course, permit the court to enter a "default" summary judgment. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). The court is permitted, however, to accept Defendant's evidence as undisputed. Id.; Tutton v. Garland Indep. Sch. Dist., 733 F.Supp. 1113, 1117 (N.D.Tex. 1990). Moreover, Plaintiff's failure to respond means that he has not designated specific facts showing that there is a genuine issue for trial. "A summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence." Bookman v. Schubzda, 945 F.Supp. 999, 1002 (N.D.Tex. 1996) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). As Plaintiff's pleadings are not sworn to, he has no competent summary judgment evidence before the court.
This is an employment retaliation case. Michael A. Webster ("Plaintiff" or "Webster") is an employee of the United States Citizenship and Immigration Services ("USCIS") which is a bureau of the United States Department of Homeland Security ("Defendant"). During the relevant time period, Webster was an Examinations Assistant, GS-1802-6, at the USCIS's Texas Service Center ("TSC") and unsuccessfully attempted to promote to the position of Center Adjudications Officer, GS-1801, on three separate occasions.
A brief footnote from Defendant explaining the creation of the Department of Homeland Security and the merging of several agencies would have been most helpful to the court.
1. Vacancy Announcement Number TSC MP RP 01-001
On October 20, 2000, Defendant posted vacancy announcement number TSC MP RP 01-001 for the positions of Center Adjudications Officer, GS-1801-5 ("GS-5") and GS-1801-7 ("GS-7"). The positions were to be filled in accordance with the Merit Promotion and Reassignment Plan ("MRRP"). Webster applied for both the GS-5 and GS-7 positions. After the application process was closed, Human Resources at the TSC reviewed the applications to verify that the applicants qualified for the vacant positions. Webster qualified for the GS-5 position but did not qualify for the GS-7 position.
Subsequent to the verification process, a rating panel, consisting of three senior Center Adjudication Officers, grade 12, was appointed to rank the qualified applicants by assigning points in accordance with established Ranking Criteria for each grade. Webster scored a total of 85.5 points.
On or about January 17, 2001, Human Resources at TSC prepared selection certificates in accordance with the MPRP which were forwarded to the Assistant Center Director, Adjudications Division. Two selection certificates were forwarded for each grade, a Competitive Certificate and a Special Hiring Authority Certificate. Pursuant to the MPRP, seven names were included on the selection certificate for the first vacancy, and one additional name was included for each additional vacancy. Because twenty vacancies existed, twenty-six applicants were listed in rank order on each Competitive Certificate. The lowest scoring applicant on the Competitive Certificate scored 101 points. Webster was not among the top twenty-six applicants who were listed on the Competitive Certificate for the GS-5 position, as he scored only 85.5 points. Webster was not selected for promotion.
To be eligible for the Special Hiring Authority Certificate, an applicant must be certified in accordance with 5 C.F.R. § 213.3102(u) as severely physically handicapped who has demonstrated his ability to perform the duties satisfactorily or has been certified by counselors of State vocational rehabilitation agencies or the Veterans Administration as likely to succeed in the performance of the required duties. Webster was not certified in accordance with 5 C.F.R. § 213.3102(u), and thus he was not listed on the Special Hiring Authority Certificate for either grade.
2. Vacancy Announcement Number TSC MP RP 01-009
Also on October 20, 2000, Defendant posted vacancy announcement number TSC MP RP 01-009 for the position of Center Adjudications Officer, GS-1801-5 ("GS-5"), which was to be filled in accordance with the Upward Mobility Program. Webster applied for the position. After the closing date of the vacancy announcement, Human Resources at the TSC reviewed the applications to verify that the applicants qualified for the vacant position. Webster qualified for the position.
The record does not describe or explain the requirements or parameters of the Upward Mobility Program.
The qualified applicants were rated by a rating panel which consisted of three senior Center Adjudication Officers, grade 12. The rating panel assigned points in accordance with established Ranking Criteria for the grade in question. Webster scored a total of 46.8 points.
On or about May 3, 2001, Human Resources at the TSC prepared a selection certificate which was forwarded to the Assistant Center Director, Adjudications Division. Because seven vacancies existed, thirteen applicants were listed in rank order on the selection certificate. The lowest scoring applicant on the selection certificate scored 61 points. Webster was not among the top thirteen applicants who were listed on the selection certificate for the GS-5 position, as he scored only 46.8 points. Webster was not selected for promotion.
3. Vacancy Announcement Number CR OC 2000-419
On October 6, 2000, and amended on November 2, 2000, Defendant posted vacancy announcement number CR OC 2000-419 for the position of Center Adjudications Officer, GS-1801-12 ("GS-12"). Webster applied for the position. After the application process closed, Human Resources at the TSC reviewed the applications to verify that the applicants qualified for the vacant position. To qualify for the GS-12 position, an applicant must have held the next lower grade level for fifty-two weeks. In other words, applicants must have held the position of GS-1801-11 for at least fifty-two weeks. Webster did not qualify for the GS-12 position, and thus his name was not forwarded for further processing. Ultimately, no promotions were made under this announcement, and the selection certificates were returned unused on or about January 9, 2001.
Webster filed this action pro se on June 11, 2003 against Thomas J. Ridge, contending that he was retaliated against for prior Equal Employment Opportunity ("EEO") activity when he was not promoted to the position of Center Adjudications Officer, GS-1801, on the three separate occasions previously described. The prior EEO activity to which Webster refers is a Complaint of Discrimination, filed on February 6, 2001, in which he contends that he was discriminated against on November 13, 2000 when he was questioned about allegations made against him by a co-worker. Defendant filed for summary judgment on Webster's retaliation claims. The court now considers this motion.
B. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
C. Analysis
Webster contends that he was not promoted on three different occasions to the position of Center Adjudications Officer in retaliation for the EEO complaint he made regarding race discrimination. The McDonnell Douglas burden-shifting framework is also applicable to retaliation claims. Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). To establish a prima facie case of retaliation, a plaintiff must demonstrate that: (1) he engaged in a protected activity; (2) he experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. Id.; Mota v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001). The burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Id. Once the defendant does so, the inference of discrimination created by the prima facie case disappears, and the ultimate question becomes whether the protected conduct was the "but for" cause of the adverse employment action. Id.
"While this portion of the analysis may seem identical to the `casual link' step in the prima facie case, the burden here is more stringent." Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 685 (5th Cir. 2001).
Defendant first contends that Webster cannot establish a prima facie case of retaliation as to two of the nonselections, namely, the failure to promote him to the positions advertised in vacancy announcement number TSC MP RP 01-001 and the failure to promote him to the GS-12 position advertised in vacancy announcement number CR OC 2000-419. With respect to the positions advertised in vacancy announcement number TSC MP RP 01-001, Defendant contends that Webster cannot establish a causal link. Specifically, Defendant explains that the rating panel ranked the qualified applicants for the GS-5 position on December 19, 2000, which was almost two months before Webster filed his Complaint of Discrimination, and four days after he first contacted the EEO office regarding his complaint of race discrimination.
"A `causal link' is established when evidence demonstrates that `the employer's decision to terminate was based in part on knowledge of the employee's protected activity.'" Medina, 238 F.3d at 684 (quoting Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)). Defendant contends that the panel members did not have access to Webster's EEO activity and that "it is highly unlikely that as of December 19, 2000, anyone outside the EEO office knew that [Webster] had contacted the EEO office a few days earlier." Def. Mtn. at 8. It might well have been unlikely, but this is merely argument by counsel, as there is no evidence that the rating panel or the ultimate decisionmaker did not have access to or knowledge of Webster's EEO activity. Moreover, the temporal proximity between the protected activity and an adverse employment action can establish a causal connection. See Evans v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001). Here, the rating panel ranked Webster only four days after he first contacted the EEO office regarding his complaint of race discrimination. Four days is sufficient to establish a causal link. See id. at 354 (The Evans court held that retaliatory conduct occurring five days after the protected activity could create an inference of a causal connection.). For these reasons, the court finds that a causal link exists between Defendant's failure to promote Webster to the positions advertised in vacancy announcement number TSC MP RP 01-001 and his EEO activity. As Defendant does not dispute the remaining elements of a prima facie case and given the evidence submitted by Defendant, the court determines that a prima facie case exists with respect to vacancy announcement number TSC MP RP 01-001.
With respect to the GS-12 position advertised in vacancy announcement number CR OC 2000-419, Defendant contends that Webster cannot establish a prima facie case because he was not treated differently than similarly situated employees, as no promotions were made based on this announcement. Whether Webster was treated differently than similarly situated employees is of no moment in a retaliation case, as this is not part of the test to determine whether one has established a prima facie case. See Montemayor, 276 F.3d at 692. Moreover, Defendant's reliance on a case from the Second Circuit stating the contrary is misplaced, as it has no precedential value and is not binding on this court. The evidence submitted by Defendant does not clearly establish when the decision was made that Webster was not qualified for the GS-12 position or when and why the decision was made not to promote from the announcement in question. Therefore, viewing the facts in the light most favorable to the nonmovant, the court determines that there is a fact question regarding (1) whether his nonselection occurred after his protected activity; and (2) whether a causal link exists between Defendant's failure to promote Webster to the GS-12 position and his protected EEO activity. It is, however, undisputed that Webster engaged in protected activity.
With respect to vacancy announcement number TSC MP RP 01-009, Defendant does not dispute the existence of a prima facie case. Based on the evidence submitted by Defendant, the court determines that a prima facie case exists, that is, Webster engaged in protected activity; his nonselection occurred after his protected activity; and a causal link exists between his nonselection and his protected activity.
Defendant next contends that even if a prima facie case exists, he fails to establish, or raise a genuine issue of material fact, that its articulated reasons for not selecting him on the three occasions at issue were merely pretext for retaliation. The court agrees. As a prima facie case has been established, the burden then shifts to Defendant to articulate a legitimate, nonretaliatory reason for Webster's nonselection on the three occasions in question. With respect to vacancy announcement number TSC MP RP 01-001, Defendant explains that Webster was not selected for the GS-7 position because he was not qualified, and that he was not selected for the GS-5 position because his rating score was not among the top twenty-six scores. Moreover, it is undisputed that Webster did not qualify to appear on the Special Hiring Authority selection certificate, as he was not certified in accordance to 5 C.F.R. § 213.3102(u) as severely physically handicapped. Further, with respect to vacancy announcement number TSC MP RP 01-009, Defendant states that Webster was not selected for the GS-5 position because his rating score was not among the top thirteen scores. Last, with respect to vacancy announcement number CR OC 2000-419, Defendant explains that Webster was not selected for the GS-12 position because he was not qualified for the position. Moreover, and more importantly, no one was promoted to the GS-12 position in question. Given these reasons, which are supported by competent summary judgment evidence, the court determines that Defendant has satisfied its burden of articulating legitimate, nonretaliatory reasons for Webster's nonselection.
Although the court held that fact questions exist with respect to whether a prima facie case has been established as to vacancy announcement CR OC 2000-419, the court assumes, for purposes of this order, that a prima facie case has been established so as to discuss the ultimate issue of retaliation.
The burden then shifts to Webster to establish, or raise a genuine issue of material fact, that Defendant's articulated reasons were merely pretext for retaliation. Webster fails to do so. He presents no evidence to establish, or raise a genuine issue of material fact, that Defendant's legitimate, nonretaliatory reasons for not promoting him on the three occasions in question are pretextual. Webster has thus failed to carry his burden of establishing or raising a genuine issue of material fact regarding the ultimate issue of unlawful retaliation. Accordingly, Defendant is entitled to summary judgment on Webster's retaliation claims.
II. Plaintiff's Motion to Modify Scheduling Order Requiring Plaintiff's Designation of Expert[s]
Although his motion is not a model of pellucid draftsmanship, it appears that Plaintiff is requesting that the witnesses he designated as experts in his designation of expert witnesses, filed on April 29, 2004, be "modified from an Expert Witness to a Probable Witness." Pl. Mtn. at 1. As the court has granted Defendant's Motion for Summary Judgment and thus dismissed all of Webster's claims with prejudice, the court need not address Plaintiff's motion. Accordingly, the court denies as moot Plaintiff's Motion to Modify Scheduling Order Requiring Plaintiff's Designation of Expert[s].
III. Conclusion
For the above stated reasons, no genuine issues of fact exist with respect to Plaintiff's retaliation claims, and Defendant is entitled to judgment as a matter of law on these claims. Accordingly, the court grants Defendant's Motion for Summary. Plaintiff's claims are dismissed with prejudice. The court will issue judgment by separate document pursuant to Fed.R.Civ.P. 58.
It is so ordered.