LANCE M. AFRICK, District Judge.
The Court has pending before it an opposed motion
Plaintiff works as a physical scientist for the U.S. Department of the Interior, Bureau of Ocean Energy Management.
Plaintiff has four main claims. First, plaintiff contends that she applied for an internal promotion to a supervisory position ("the GS-14 position"), but that she was rejected in favor of Terri Thomas ("Thomas"), a younger non-disabled woman.
Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines there is no genuine issue of material fact. See Fed. R. Civ. P. 56. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden pursuant to Rule 56, the nonmoving party must come forward with specific facts showing that there is a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by creating "`some metaphysical doubt as to the material facts,' by `conclusory allegations,' by `unsubstantiated assertions,' or by only a `scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The nonmoving party's evidence, however, "is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor." Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
The Court observes that "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment, especially where, as here, the nonmoving party is well aware of the existence of such evidence." Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992). "Rule 56 allocates that duty to the opponent of the motion, who is required to point out the evidence, albeit evidence already in the record, that creates an issue of fact." Id.
Plaintiff's arguments and citations to the record are scattered haphazardly throughout a 25page opposition memorandum, a 24-page response to defendant's statement of uncontested facts, a 67-page affidavit, and handwritten annotations on several hundred pages of exhibits. The Court has endeavored to glean plaintiff's factual and legal contentions from her submissions and such substandard filings will not be accepted by the Court in the future.
Defendant moves for summary judgment as to all of plaintiff's claims and the Court addresses each in turn.
Plaintiff alleges that she was discriminated against on the basis of her gender, age, and disability, in connection with (1) defendant's failure to promote her to the GS-14 position and (2) the application process for the GS-13 positions. Because plaintiff relies on circumstantial evidence of discrimination, the McDonnell Douglas three-stage burden-shifting framework applies to plaintiff's claims. See Cardiel v. Apache Corp., 559 F. App'x 284, 288 (5th Cir. 2014) (explaining that McDonnell Douglas framework applies to Title VII and ADEA discrimination claims); Cohen v. U. Tex. Health Science Ctr., 557 F. App'x 273, 277 (5th Cir. 2014) (Rehabilitation Act). As the Fifth Circuit explains,
Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (Title VII case). Once the burden has shifted back to the plaintiff, the third stage requires different showings pursuant to different statutes; Title VII requires a plaintiff to show "either: (1) that the employer's proffered reason is not true but is instead a pretext for discrimination; or (2) that the employer's reason, while true, is not the only reason for its conduct, and another `motivating factor' is the plaintiff's protected characteristic." Id. The motivating factor analysis may also apply to plaintiff's Rehabilitation Act claim, see Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (per curiam), but the "ADEA does not authorize a mixed-motives claim of age discrimination." Hoffman v. Baylor Health Care Sys., No. 14-10258, 2015 WL 64849, at *3 n.12 (5th Cir. 2015) (per curiam).
A Title VII prima facie case requires "a showing that the plaintiff (1) is a member of a protected group; (2) was qualified for the position at issue; (3) was discharged or suffered some adverse employment action by the employer; and (4) was replaced by someone outside his protected group or was treated less favorably than other similarly situated employees outside the protected group." McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
A Rehabilitation Act prima facie case requires a showing that "(1) [plaintiff] has a disability; (2) she is an individual qualified for the job in question; (3) she worked for a program or activity receiving Federal financial assistance; and (4) an adverse employment decision was made" because of the disability. McKay v. Johanns, 265 F. App'x 267, 268-69 (5th Cir. 2008).
An ADEA prima facie case of discrimination based on a failure to promote requires a showing that "(1) she belongs to a protected class; (2) she applied for and was qualified for the position she sought; (3) she was not promoted to the position sought, i.e., she suffered an adverse employment action; and (4) her employer promoted someone to the position who was not a member of the protected class." Ruth v. Owens-Illinois Glass Container, Inc., 260 F. App'x 703, 705 (5th Cir. 2007).
With respect to plaintiff's discrimination claims based on the GS-14 position, defendant does not address plaintiff's prima facie cases based on gender, age, or disability discrimination and defendant instead jumps to the third step of the burden-shifting framework.
Defendant's motion for summary judgment addresses one way in which plaintiff can establish pretext, but plaintiff is not required to show that she was clearly more qualified than Thomas. See Julian v. City of Houston, 314 F.3d 721, 728 (5th Cir. 2002) ("Although pointing to clearly superior qualifications is one permissible way to demonstrate intentional discrimination, a plaintiff is not required to make this showing."); see Sanders v. Anadarko Petroleum Corp., 108 F. App'x 139, 143 (5th Cir. 2004) ("If . . . a plaintiff relies on comparative qualifications alone, she must present evidence that she is clearly better qualified than those individuals who were hired.") (emphasis added).
According to defendant, Thomas was selected instead of plaintiff because the GS-14 position "needed strong leadership skills more than anything else."
In response, plaintiff does contend that her qualifications were superior to Thomas's qualifications,
Standing alone, defendant is likely correct that plaintiff's evidence of her supposedly superior qualifications would likely not generate a material genuine fact dispute with respect to whether the "disparities in qualifications [were] of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question."Bright, 305 F. App'x at 205 n.8. But plaintiff is not obligated to show "clearly superior" qualifications at all if she presents other evidence of pretext. See Julian, 314 F.3d at 728. Plaintiff submits competent summary judgment evidence which, if accepted by the trier of fact as true, could support an inference that the interview process was manipulated to disadvantage plaintiff and to manufacture a record misrepresenting plaintiff's qualifications as a pretext for rejecting her application for the GS-14 position. Defendant did not address this evidence of pretext. Accordingly, the Court concludes that defendant has failed with respect to its summary judgment burden to establish entitlement to a judgment as a matter of law, and that there appears to be a genuine issue of material fact at the pretext stage of the McDonnell Douglas analysis with respect to plaintiff's gender, age, and disability discrimination claims based on the GS-14 position. The motion should be denied as to those claims.
With respect to the alleged discrimination based on the two GS-13 position openings, defendant moves for summary judgment on the basis that plaintiff cannot show an adverse employment action required as an element of a prima facie case pursuant to Title VII, the ADEA, and the Rehabilitation Act.
Plaintiff frames the defendant's alleged adverse employment action as "the timing and manner of advertisement" for the GS-13 positions; according to plaintiff, the application period for the GS-13 positions took place partially while she was on vacation, partially while she was occupied packing her office, and before she knew if she had received the GS-14 position.
Plaintiff was not denied either of the GS-13 positions because it is undisputed that she did not apply for them.
In light of the Fifth Circuit's "strict interpretation" of the adverse employment action element, the Court concludes that plaintiff has not established that element of her prima facie cases. Accordingly, the motion for summary judgment as to plaintiff's claims of gender, age, and disability discrimination with respect to the GS-13 positions should be granted.
Defendant also moves for summary judgment with respect to plaintiff's hostile work environment claims contending that (1) plaintiff cannot establish that the alleged hostile work environment was based on any protected trait and (2) plaintiff's allegations "do not rise to the level of severe or pervasive harassment."
In her opposition brief, plaintiff does not specifically respond to defendant's arguments, cite any apposite cases, or clearly articulate what conduct she believes gave rise to a hostile work environment. Instead, plaintiff cursorily states that she "satisfies the third prong and refers [the] Court to this subject to UMFs 1, 3, 34, 51, 61, 64, 65, 66, 67, and 68 and Exhibits 1-4, 7, 14, 19, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 40, 41, 63, 64, 67, 68, 70[-]74, 76, 83, 84."
Alternatively, the Court has reviewed the specific incidents articulated in defendant's motion and attempted to discern in plaintiff's summary judgment evidence any additional events that could conceivably be construed as generating a genuine issue of material fact as to plaintiff's hostile work environment claim. The Court has identified no facts which, if true, rise to the requisite level of objectively unreasonable "discriminatory intimidation, ridicule, and insult, that is sufficiently pervasive to alter the conditions of the victim's employment." Dediol, 655 F.3d at 441. Accordingly, defendant's motion for summary judgment should be granted as to plaintiff's hostile work environment claims.
Defendant also moves for summary judgment with respect to plaintiff's retaliation claims. Plaintiff's prima facie case for retaliation requires her to show: (1) engagement in activity protected by one of the statutes she invokes, (2) subjection to an adverse employment action, and (3) a causal link between the protected activity and the adverse employment action. See Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (Title VII); Higbie v. Kerry, No. 14-10568, 2015 WL 1262499, at *2 (5th Cir. Mar. 20, 2015) (Rehabilitation Act); Wooten v. McDonald Transit Assocs., 775 F.3d 689, 694 (5th Cir. 2015) (ADEA).
Defendant contends that plaintiff cannot present any evidence establishing the requisite causal link between protected activity and a subsequent adverse employment action and defendant focuses on plaintiff's history of Equal Employment Office ("EEO") activity.
"Activities protected under Title VII fall into two broad categories-opposition and participation." Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998). "An employee has engaged in protected activity when she has (1) `opposed any practice made an unlawful employment practice' by Title VII or (2) `made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing' under Title VII." Id. (citing 42 U.S.C. § 2000e-3(a); Grimes v. Tex. Dep't of Mental Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996)). The ADEA and Rehabilitation Act apply the same definition of protected activity. See Wooten, 775 F.3d at 694 (ADEA); Shannon v. Henderson, No. 01-10346, 2001 WL 1223633, at *3 (5th Cir. 2001) (Rehabilitation Act) (per curiam).
For conduct to constitute "opposition" to discrimination, a plaintiff must "only show that she had a `reasonable belief that the employer was engaged in unlawful employment practices.'" Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348-49 (5th Cir. 2007) (quoting Byers v. Dallas Morning News, 209 F.3d 419, 428 (5th Cir. 2007)). Conversely, if "no reasonable employer would have understood it to be an expression of opposition to unlawful discrimination at work," an employee's purported opposition is not protected activity for the purpose of establishing a prima facie case of retaliation. See Stewart v. RSC Equip. Rental, Inc., 485 F. App'x 649, 652 (5th Cir. 2012) (affirming summary judgment as to certain allegations of retaliation because the plaintiff's purported opposition to discrimination was "indistinguishable from non-race-based grumbling by an employee" and "had no racial element").
In her affidavit, plaintiff details at length her contemporaneous complaints about the GS-14 selection and interview process.
Plaintiff does not explain how a trier of fact could conclude that these activities are "opposition" protected by Title VII, the ADEA, or the Rehabilitation Act. She does not articulate how her complaints implicated her protected status or how a "reasonable employer would have understood [them] to be an expression of opposition to unlawful discrimination at work." See Stewart, 485 F. App'x at 652 (emphasis added). Nor is it readily apparent how plaintiff could reasonably have believed that any particular detail about which she complained "constituted an unlawful employment practice in and of" itself. See Turner, 476 F.3d at 349. In short, the Court has reviewed the affidavit and exhibits and concludes that a reasonable trier of fact could only find that plaintiff's complaints are "indistinguishable from non-[protected status] based grumbling by an employee" and as a matter of law such activity does not constitute protected activity. See Stewart, 485 F. App'x at 652. In the absence of a genuine issue of material fact regarding protected activity, plaintiff has not established a prima facie case of retaliation and summary judgment as to her retaliation claims should be granted.
For the foregoing reasons,