SALLY SHUSHAN, Magistrate Judge.
For the reasons described below, the motion of the defendant, Janet Napolitano, Secretary U.S. Department of Homeland Security ("DHS"), for summary judgment. (Rec. doc. 40) is granted.
The plaintiff, Gloria Williams-Kates, filed a complaint for employment discrimination. She was represented by counsel. Rec. doc. 1. A few months after filing the complaint, her counsel withdrew. Rec. doc. 7. Ms. Williams-Kates appears in proper person. DHS filed an answer. Rec. doc. 17. On September 25, 2012, the parties consented to disposition by the assigned Magistrate Judge. Rec. doc. 21.
On March 26, 2013, DHS filed its motion for summary judgment. Rec. doc. 40. Ms. Williams-Kates filed a one page opposition stating that she was unable to present facts essential to justify her opposition. Rec. doc. 41. She filed a motion to compel, rec. doc. 42, which was denied. Rec. doc. 51. Her supplemental memorandum in opposition to the motion for summary judgment was filed and two volumes of exhibits were filed. Rec. docs. 50 and 59. DHS filed a reply memorandum. Rec. doc. 58.
Ms. Williams-Kates alleges that: (1) she was employed as an Equal Employment Assistant within the Louisiana Transitional Authority ("LTRO") from 2005 until her termination on July 3, 2010; (2) DHS assigned her to work for LTRO in its New Orleans office; (3) in the year preceding her termination she participated in activities protected by Title VII which led to her termination; (4) in July 2009, she requested EEO counseling regarding discriminatory conduct committed by her supervisor, Deborah Chapman ("Chapman"); (5) between November 2009 and her termination, she filed multiple official EEO complaints concerning Chapman's actions; (6) she believed that Chapman's actions were discriminatory based on her age, disability and gender; (7) after she engaged in protected activities, Chapman began to retaliate against her; (8) Chapman relocated her workspace, denied her multiple leave requests, held her to disparate leave standards from other employees who did not engage in protected activities, issued written reprimands to her without merit, and caused her termination; and (9) she filed a formal EEO complaint for Chapman's discriminatory and retaliatory actions.
Pursuant to L.R. 56.1, "[e]very motion for summary judgment must be accompanied by a separate and concise statement of the material facts which the moving party contends present no genuine issue." DHS provided a statement of undisputed facts in support of its motion. Rec. doc. 40 (Attachment). Ms. Williams-Kates submitted a statement of disputed facts. Rec. doc. 50 (Attachment). The following is adapted from the DHS statement of undisputed facts with a summary of Ms. Williams-Kates' response.
1. FEMA is an Agency in DHS and is responsible for, among other activities, administering and coordinating the Federal governmental response to disasters pursuant to the Stafford Act. Ms. Williams-Kates responds that she must review the statute.
2. Responding to natural disasters creates special staffing requirements. FEMA is authorized by statute to hire temporary personnel outside certain requirements of Title 5 of the U.S.C. to perform disaster and emergency services for which it does not have adequate full-time employees, including: (a) Disaster Assistance Employees ("DAEs") — intermittent and temporary employees; (b) Local Hires — temporary employees serving 120 day appointments; and (c) Cadre of On-Call Response Employees ("COREs") — temporary positions with renewable two or four-year appointments. Ms. Williams-Kates contends that FEMA was recently authorized to transition some of its non-permanent workforce to permanent positions.
3. Following Hurricane Katrina, a recovery office was established in Louisiana in multiple locations.
4. On September 27, 2005, FEMA hired Ms. Williams-Kates for a temporary, excepted service position as a Local Hire at LATRO in Baton Rouge. Her position had a "not-to-exceed date" of January 25, 2006. Ms. Williams-Kates' Local Hire position was subsequently extended twice to September 25, 2006.
5. As LATRO transitioned to long-term recovery, the Office of Equal Rights ("OER") was authorized to hire COREs. The COREs served as replacements to both DAEs, volunteers from other Federal agencies, and Local Hires. The original authorization was for 10 employees (two-year appointments) to include Equal Employment Opportunity ("EEO"), Civil Rights, and administrative personnel. There was one EEO Assistant for the office; there were two secretarial positions (one in Baton Rouge and one in New Orleans) to support the office; and the remainder served as EEO or Civil Rights specialists. Ms. Williams-Kates contends that the original authorization was for 11 employees.
6. On June 25, 2006, Pauline Campbell, Director of FEMA's Office of Equal Rights, hired Ms. Williams-Kates for a temporary, excepted service position as an EEO Assistant in the OER in LATRO Baton Rouge. The position was a CORE position with a not-to-exceed date of June 24, 2008. As an EEO Assistant, Ms. Williams-Kates's primary job responsibilities included EEO intake, administrative and clerical support, but not EEO counseling. Ms. Williams-Kates disputes the description of her duties as EEO Assistant.
7. On June 25, 2008, FEMA extended Ms. Williams-Kates' temporary appointment until June 25, 2009. On June 25, 2009, it extended her temporary appointment until June 25, 2010. Ms. Williams-Kates contends this is not relevant.
8. On June 24, 2009, Libby Turner, the Acting Deputy Director of LTRO announced to all employees that LATRO would be undergoing restructuring as the workload in response to Hurricane Katrina was decreasing. Ms. Turner stated that all functions within LRTO would be evaluated to determine what employees would be released. Ms. Williams-Kates denies that there was a notice directly from Deborah Chapman to right-size EEO employees in the New Orleans/Baton Rouge OER.
9. At the time of Ms. Turner's announcement, OER's temporary staff were already finding employment outside of the agency and in other positions within FEMA. Ms. Williams-Kates lists at least ten persons and provides information on their departures.
10. During one of Campbell's visits to the LTRO in mid-2009, she informed OER staff that she would be looking at the number of staff and the workload to determine the number of staff necessary to provide effective service. Subsequent to Campbell's visit, and before she made a determination on how many positions needed to be eliminated, three EEO specialists left. As a result, four staff remained in the OER office, (three EEO/Civil Rights Specialists and Ms. Williams-Kates). Ms. Williams-Kates refers to her response to No. 9.
11. Ms. Williams-Kates, as an EEO assistant, was responsible for case intake for EEO and civil rights cases, database tracking, and commemorative programs. Ms. Williams-Kates disputes the description of her responsibilities.
12. In 2010, the OER's workload continued to drop, the numbers of EEO complaints decreased from 50 in 2009 to 28 in 2010. Civil rights case activity dropped from 22 in 2009 to 3 in 2010. Campbell determined that, based on OER's ever decreasing workloads, the staffing structure of LATRO OER needed to change. Ms. Williams-Kates does not dispute the statistics but refers to an increase in "EEO Counseling requests." Rec. doc. 50 (Attachment at 16).
13. Following discussion with the informal complaints program manager and the local LATRO supervisor, Campbell made the decision to eliminate Ms. Williams-Kates' EEO assistant position. Ms. Williams-Kates states that she was not aware of this.
14. Campbell determined that it was more efficient to eliminate the EEO Assistant position because the three remaining EEO specialists could absorb the duties of the EEO assistant including performing their own intake and case tracking. On the other hand, the EEO assistant could not perform all of the duties of an EEO specialist. Ms. Williams-Kates contends that she was cross-trained in all OER jobs.
15. Campbell made the decision to release Ms. Williams-Kates for lack of work. However, as Ms. Williams-Kates' duty station was located at LATRO and being paid from its budget, it was LATRO who notified her that she was being released for lack of work. Ms. Williams-Kates states that she was not aware of this.
16. On June 4, 2010, LATRO notified Ms. Williams-Kates that she was being released from her temporary EEO Assistant position, effective July 3, 2010. Ms. Williams-Kates does not dispute this. Instead, she contends that it was not clear whether the termination was a right-sizing or a demobilization. She learned that it was due to a reorganization of the agency. She contends that she "should have been considered under the OPM guidelines." Rec. doc. 50 (Attachment at 18).
17. In late June or early July 2010, LATRO offered Ms. Williams-Kates an extension to her employment. The position was a detail with DHS to provide assistance with the Long Term Gulf Coast Restoration Support Plan, Federal Resource Coordination. The opportunity was unrelated to her previous position or OER and Ms. Campbell authorized an extension of Ms. Williams-Kates's employment for this detail. Ms. Williams-Kates contends that Human Resources requested the extension. She reports that she applied, without success, for a disaster assistance employee position on July 23, 2010. She contends that this was a DHS retaliatory act.
18. Initially, Ms. Williams-Kates's employment was extended for an additional two weeks. LATRO later requested that it be extended until September 11, 2010, which request was approved. Ms. Williams-Kates contends that this is not relevant to her claim.
19. On September 11, 2010, with the DHS detail complete, Campbell authorized Ms. Williams-Kates' release from her temporary position due to lack of work. Ms. Williams-Kates contends that DHS hired a new employee under the age of 40 on May 8, 2011.
20. Ms. Williams-Kates' EEO Assistant position was never backfilled. Ms. Williams-Kates responds that DHS backfilled the position for which she was more than qualified as a former Local Hire EEO officer.
21. The workload for OER's LATRO office continued to decline and by 2011, the number of EEO cases had dropped from 28 to 10. Ms. Williams-Kates does not dispute the statistics but raises an issue about the actual EEO counselings.
22. Chapman is a female and was born in 1958.
23. Ms. Williams-Kates is a female and was born in 1957.
24. FEMA has no record of Ms. Williams-Kates filing a formal complaint of discrimination other than the complaint which gave rise to the instant suit. Ms. Williams-Kates contends that her files show formal complaints were filed on December 28, 2009 and March 3, 2010.
Fed. R. Civ. P. 56 provides in pertinent part that summary judgment will be granted 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 a judgment as a matter of law."
Furthermore, the party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact," but need not negate the elements of the nonmovant's case.
This burden is not satisfied with "some metaphysical doubt as to the material facts,"
In
Ms. Williams-Kates alleges that the alleged discriminatory and retaliatory actions of DHS occurred because of her age, disability and/or gender. Rec. doc. 1 at 12. 42 U.S.C.A. § 2000e-16 is concerned with employment by the federal government. It provides that,
After the withdrawal of her counsel, Ms. Williams-Kates attempted to amend to add Chapman as a defendant. The motion was denied as futile because Title VII does not impose personal liability for the acts of federal employees. Rec. doc. 31.
Ms. Williams-Kates alleges that Chapman discriminated against her on account of her age, disability and gender. She alleges that Chapman: (1) relocated her workspace; (2) denied her multiple leave requests; (3) held her to disparate leave standards from other employees who did not engage in protected activities; (4) issued written reprimands to her without merit; and (5) caused her termination. Rec. doc. 1 at para. 7.
Ms. Williams-Kates' claims of disparate treatment are governed by the tripartite burdenshifting test.
DHS contends that Ms. Williams-Kates' claims fail to establish a prima facie case because Chapman's actions are not adverse employment actions. Only ultimate employment decisions, such as hiring, granting leave, discharging, promoting, or compensating, are actionable as adverse employment actions for discrimination claims.
DHS contends that Ms. Williams-Kates does not present a prima facie case regarding her claims on denial of leave and her termination, because she cannot offer examples of similarly situated individuals outside her protected class that were treated more favorably. Ms. Williams-Kates contends that John W. Williams, an African-American male under the age of 40, and Heather Gremillion, an African-American female under the age of 40, were similarly situated to her and treated more favorably than she. Rec. doc. 50 at p. 7-8.
In
574 F.3d at 259-260 (footnotes and quotation marks omitted and emphasis in the original).
Following Hurricane Katrina LATRO had EEO offices in Baton Rouge and New Orleans. The first person in charge of the two EEO offices was Beverly Powell. She was followed in turn by Pamela Mack, Carol Nichols, Trevor Deveaux and Chapman.
From 2006 through 2011, there were significant changes in the staffing of the EEO offices. The original CORE staffing for the two EEO offices was 10 employees.
John Williams began as an equal rights officer. He received a civil rights specialist position. After three or four years, he applied for and became a EEO specialist. Williams Deposition at 6. In the original CORE staffing, Bridgewater was a civil rights specialist.
Although Ms. Williams-Kates did not have the same title as Bridgewater and John Williams during the pertinent period, it is necessary to consider their duties and responsibilities. Nichols testified that the initial position for Ms. Williams-Kates was Equal Rights Office counselor. When the CORE staffing was done, Ms. Williams-Kates became an EEO Assistant. Nichols Declaration at 1. Ms. Williams-Kates performed the same duties as other employees. She received the training provided to EEO counselors and specialists.
Nichols had no personal knowledge of the situation after February 2009, when she left FEMA and moved to Colorado.
Ms. Williams-Kates had a different job title, EEO Assistant, from Bridgewater and Williams. Her duties and responsibilities were primarily administrative compared to the duties and responsibilities for Bridgewater and Williams. Ms. Williams-Kates was not similarly situated to Bridgewater and Williams. She does not present a prima facie case regarding her claims based on the denial of leave and her termination.
Assuming arguendo that Ms. Williams-Kates, Bridgewater and Williams were similarly situated, DHS contends that her claims of disparate treatment fail. Ms. Williams-Kates claims that Chapman denied her emergency leave request on December 14, 2009.
Ms. Williams-Kates alleges that Chapman caused the termination of her employment. Rec. doc. 1 at 3. On June 24, 2010, Joseph Threat, the Deputy Director Support Services for FEMA issued a notice of termination-discontinuation of position to Ms. Williams-Kates. The notice states:
As already demonstrated, the Baton Rouge and New Orleans offices had shrunk from at least 10 positions when CORE staffing was authorized to only 3 when Chapman became supervisor in 2009.
Campbell states that in 2010 the workload continued to drop. The number of EEO complaints decreased from 50 in 2009 to 28 in 2010. Civil rights case activity dropped from 22 in 2009 to 3 in 2010. Rec. doc. 40 (Campbell Declaration at 4). She determined that, based on OER's ever decreasing workloads the staffing structure of LATRO, OER needed to change.
Campbell states that she determined that it was more efficient to eliminate the EEO Assistant position because the three remaining EEO specialists (Chapman, Bridgewater and John Williams) could absorb the duties of the EEO assistant including performing their own intake and case tracking.
Campbell states that while the EEO specialists, Bridgewater and Williams, could absorb the duties of the EEO Assistant, the EEO Assistant could not perform all of the duties of an EEO specialist.
If the plaintiff is able to demonstrate a prima facie case of discrimination, the burden shifts "to the employer to articulate some legitimate, nondiscriminatory reason" for the action.
Ms. Williams-Kates alleges that: (1) in July 2009, she requested EEO counseling regarding Chapman's alleged discriminatory conduct; (2) after November 2009, she filed multiple EEO complaints with DHS concerning Chapman's alleged discriminatory conduct; (3) Chapman began retaliating against her; (4) Chapman terminated her; and (5) she filed a formal EEO complaint which included the retaliatory actions. Rec. doc. 1 at 2-3.
Ms. Williams-Kates states that she made an informal EEO complaint against Chapman in August 2009 to Jiles, Chapman's supervisor, and a second informal complaint in November 2009. Williams-Kates Declaration at 3. DHS contends that the only formal EEO complaint was the one which gave rise to Ms. Williams-Kates' suit. It urges that without more than her allegations, she cannot establish that Chapman knew of the August and November 2009 complaints. Therefore, Ms. Williams-Kates is unable to establish the casual link between the protected activity and what followed.
John Williams testified that: (1) Ms. Williams-Kates came to him and reported that she thought she was in a hostile environment (Williams Deposition at 27); (2) he asked if she was requesting EEO counseling (
Ms. Williams-Kates has not presented substantial evidence that Campbell's decision to terminate her was done in retaliation for the concerns that she raised with Jiles and others concerning Chapman's conduct. Viewing the summary judgment evidence in the light most favorable to Ms. Williams-Kates, a "reasonable and fair minded person" would conclude that the explanation proffered by DHS was not a pretext for unlawful retaliation. Ms. Williams-Kates failed to establish that she would not have been terminated but for the alleged informal EEO complaints. A genuine issue of fact does not exist as to whether DHS unlawfully retaliated against Ms. Williams-Kates.
Based on the undersigned's review of the record, Ms. Williams-Kates has failed to meet her summary judgment burden. Accordingly;
IT IS ORDERED that the motion of the defendant, Janet Napolitano, Secretary U.S. Department of Homeland Security ("DHS"), for summary judgment (Rec. doc. 40) is GRANTED.
Rec. doc. 48 (Memorandum at 4). In a further memorandum, Ms. Williams-Kates also alleges that her termination was a violation of her rights as a veteran. Rec. doc. 50 (Memorandum at 23). Ms. Williams-Kates did not obtain leave to amend to assert these additional claims. Her claims are limited to those found in her original complaint.