CATHERINE D. PERRY, District Judge.
Since 2001, Clement Warr has worked as a visual information specialist in the media services branch at the National Geo-Spatial Intelligence Agency's facility in Arnold, Missouri. In 2009, Warr left work earlier than indicated on his time sheet. When his supervisor found out, she gave him a verbal warning. However, Warr complained that he should not have been warned because some of his coworkers attended a party during work hours without using leave time. Warr contends that, in response, defendant reprimanded him, gave him an unfavorable performance review, refused to place him on second shift
NGA moves for summary judgment on all counts of the complaint. After thorough review of the entire record, I find that Warr has come forward with no evidence which could lead a reasonable jury to conclude that he was subjected to discrimination or retaliation. Because there are no genuinely disputed material facts and NGA is entitled to judgment as a matter of law, I will grant summary judgment for the reasons that follow.
"Summary judgment is proper where the evidence, when viewed in a light most favorable to the non-moving party, indicates that no genuine issue of material fact exists and that the moving party is entitled
From October of 2008 to September 31, 2009, Warr's first-level supervisors at NGA were Michael Reed and Michael Tiemann. In November of 2009, Vernon Grothoff became Warr's first-level supervisor. At all relevant times, Patricia Dickens was his second-level supervisor.
On June 16, 2009, Warr's shift manager Dennis DuMey reported to Tiemann that Warr left the office two hours early. However, on the attendance sheet Warr indicated that he left on time. Warr did not request permission or use leave time for his early departure. Warr told DuMey that he was entitled to leave early because he did not take a lunch or break that day. However, under the NGA's employee manual, employees are only given one 30 minute break and are not permitted to leave early if they do not take a break. Therefore, on July 8, 2009, Dickens gave Warr an oral admonishment for leaving early and told him that he was expected to work his scheduled hours. An oral admonishment or warning is the least severe form of disciplinary action, as it consists only of a discussion between a supervisor and an employee. Warnings are not made part of the employee's official personnel file, but the supervisor documents the discussion and keeps an informal record of it for six months.
During that meeting, Warr told Dickens that DuMey left the office early multiple times. He also complained about his coworkers attending a party off site during work hours on June 25, 2009. However, this party was approved by management, and all employees (including Warr) were invited to attend. Nevertheless, in response to Warr's complaints Dickens verified the accuracy of time and attendance records for all employees who attended the party. NGA policies give a supervisor discretion
In his performance evaluation for the period from October 1, 2008 to September 30, 2009, Warr was given an overall rating of 2.4 or "minimally successful" by Tiemann.
In January of 2010, NGA announced that the second shift in Warr's team was being eliminated for financial reasons.
Around the same time, NGA announced that the St. Louis Information Library (STIL) was moving to the Arnold facility where Warr worked. This initially required staffing first, second, and third shifts. According to the memorandum announcing the move, "[m]ission requirements, skill level and successful performance (or better) will all be taken in to consideration for staffing the STIL. Seniority is not a factor ...." (Doc. # 36-3 at 7). Warr told Grothoff he was interested in working a second shift position at STIL, but Warr was not eligible for the position because he did not have a "fully satisfactory" performance rating. Warr was not assigned to work second shift at STIL and instead moved to first shift.
When Grothoff became Warr's first-level supervisor, he noticed that Warr's performance had declined to an unacceptable level since his review. Therefore, on February 16, 2010, Grothoff issued a 90-day performance improvement plan (PIP) for Warr.
Warr contacted his EEO official on November 3, 2009, claiming that Dickens "put a letter in his personnel file" for a time and attendance violation and then used it to lower his performance evaluation. Warr alleged that he performed at the same level as white employees in his branch but received a lower rating. Warr made a claim of retaliation for prior EEO activity on January 13, 2010, after he was not moved to the second shift STIL position. He also claimed race discrimination and retaliation when he was moved to first shift and placed on a PIP. Warr filed this complaint on May 30, 2012, alleging race discrimination and retaliation.
Warr's § 1981 claim will be dismissed because Title VII is the exclusive judicial remedy for claims of racial discrimination in federal employment. Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Mathis v. Henderson, 243 F.3d 446, 449 (8th Cir.2001).
Here, Warr complains that he was subjected to racial discrimination and retaliation because he was reprimanded for leaving work early while white coworkers who left early were not reprimanded, he received an unfavorable employment evaluation because he complained about coworkers attending a party during work hours, he was placed on the first shift and not given the second shift at STIL, and he was placed on a PIP. Title VII prohibits discrimination against an employee because of race. See 42 U.S.C. § 2000e-2(a)(1). Because Warr has no direct evidence of racial discrimination, I must analyze his claims under the familiar burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
Under this framework, Warr must first establish a prima facie case of discrimination by adducing proof that: (1) he is a member of a protected class; (2) he was meeting his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) he was treated differently than similarly situated employees who were not members of his protected class. Jackman v. Fifth Judicial Dist. Dept. of Correctional Servs., 728 F.3d 800, 804 (8th Cir.2013). "An adverse employment action is defined as a tangible change in working conditions that produces a material employment disadvantage, including but not limited to, termination, cuts in pay or benefits, and changes that affect an employee's future career prospects ...." Id. "However, minor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause no materially significant disadvantage, do not rise to the level of an adverse employment action." Id. "The test for whether employees are similarly situated is rigorous and requires that the other employees be similarly situated in all relevant respects before the plaintiff can introduce evidence comparing herself to the other employees." Wright v. St. Vincent Health System, 730 F.3d 732, 740 n. 7 (8th Cir.2013) (internal quotation marks and citations omitted). "The individuals used for comparison must have dealt with the same supervisor, have been
The prima facie case creates a rebuttable presumption of discrimination. Burdine, 450 U.S. at 254, 101 S.Ct. 1089. Once the plaintiff creates this rebuttable presumption, the defendant must advance a legitimate, non-discriminatory reason for the employment action. St. Mary's Honor Center, 509 U.S. at 506-08, 113 S.Ct. 2742. The defendant's burden is one of production, not proof. Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089; Krenik v. County of Le Sueur, 47 F.3d 953, 958 (8th Cir.1995). The defendant need not persuade the court; rather, it must simply provide some evidence of a non-discriminatory reason or reasons for its action. St. Mary's Honor Center, 509 U.S. at 509, 113 S.Ct. 2742.
If the defendant carries this burden, then the burden shifts back to the plaintiff to show that the employer's proffered reason is merely a pretext for discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. The plaintiff may either prove pretext directly, by showing that the defendant was more likely motivated by a discriminatory reason, or indirectly, by showing that the defendant's explanation is unworthy of credence. Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1108 (8th Cir.1998). The plaintiff at all times bears the ultimate burden of establishing the existence of facts which, if proven at trial, would permit a jury to conclude that intentional discrimination was the true reason for the defendant's action. Id. at 508, 113 S.Ct. 2742. "The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." Reeves, 530 U.S. at 153, 120 S.Ct. 2097.
Title VII also prohibits employers from retaliating against employees for opposing racial discrimination. See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, Warr must demonstrate that he engaged in statutorily protected activity, he suffered an adverse employment action, and a causal connection exists between the two. Gilbert v. Des Moines Area Community College, 495 F.3d 906, 917 (8th Cir.2007). To establish causation, Warr must prove "that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." University of Texas Southwestern Medical Center v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013). "In the retaliation context, a materially adverse employment action is one that might have persuaded a reasonable worker from making or supporting a charge of discrimination." Jackman, 728 F.3d at 804-05 (internal quotation marks and citation omitted).
Warr cannot establish his prima facie case for racial discrimination or retaliation with respect to his oral admonishment for time and attendance issues, his "minimally successful" performance rating, and his placement on a PIP because these are not materially adverse actions as a matter of law. "`A materially adverse action must be more disruptive than a mere inconvenience or an alteration of job responsibilities. There must be a material change in employment status — a reduction in title, salary or benefits.'" Box v. Principi, 442 F.3d 692, 696 (8th Cir.2006) (quoting Wenzel v. Missouri-American Water Co., 404 F.3d 1038, 1042 (8th Cir. 2005)). "Although actions short of termination may constitute adverse employment actions ... `not everything that makes an employee unhappy is an actionable adverse action.'" Hughes v. Stottlemyre, 454 F.3d 791,
Here, Warr received an oral admonishment, the least severe form of discipline, for admittedly leaving work early without permission and falsely indicating his departure time. This admonishment — which did not result in a reduction of salary, title, or benefits, and was not even made a permanent part of his personnel file — is, at most, a trivial personnel action and cannot form the basis of a discrimination suit. See Ledergerber, 122 F.3d at 1144. The same is true of Warr's "minimally successful" performance rating and his placement on a PIP. For the period from October 1, 2008 to September 30, 2009, Warr was rated as "minimally successful" in one performance objective and five performance elements, but was rated as "successful" in the remaining objectives and elements. Subsequently, Warr was placed on a PIP when Grothoff observed that Warr's performance had deteriorated from "minimally successful" to "unacceptable" in the months after his performance evaluation. In each case, Warr was given specific examples of his performance problems and detailed actions for improvement. "An unfavorable evaluation is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms and conditions of the recipient's employment." Clegg v. Arkansas Dept. of Correction, 496 F.3d 922, 927 (8th Cir.2007). Here, however, Warr received no reduction in pay, grade, or benefits as a result of this performance evaluation and PIP.
Even if I assume for purposes of this motion that these were adverse employment actions and that Warr had otherwise established a prima facie case with respect to them and the decision to place Warr on first shift and not on STIL's second shift,
Because NGA has met its burden to produce legitimate, non-discriminatory reasons for its actions, the burden then shifts back to Warr 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.'" Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089). Warr can withstand summary judgment if the evidence in its entirety: (1) creates a fact issue as to whether NGA's proffered reasons are pretextual; and (2) creates a reasonable inference that race was a determinative factor or that retaliation was a but-for factor in the adverse employment decision. Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996) (race); Jackman, 728 F.3d at 804 (retaliation). Viewing the facts and inferences from the facts in the light most favorable to Warr, I find no evidence that creates a reasonable inference that race was a determinative factor or that retaliation was a but-for factor in these employment decisions, nor do I find any evidence that could support an inference of pretext.
As a general matter, Warr has offered nothing, other than self-serving allegations, to contest the validity or veracity of the NGA's stated reasons for the challenged employment actions. Warr offers
As for Warr's allegation that he was reprimanded unfairly and retaliated against because he reported that some of his coworkers attended a party while on duty, the undisputed evidence demonstrates that this was an approved outing and that all employees (including Warr) were invited to attend. Nevertheless, in response to Warr's complaints Dickens verified the accuracy of time and attendance records for all employees who attended the party. Warr may personally believe that it is unfair for NGA to approve an offsite party or that he is entitled to take off early when he works through his break, but he cannot determine for himself was NGA policies should be. This is a decision left to NGA, and NGA policies give a supervisor discretion to set an employee's work hours, which includes approving off-site activities. These policies also require employees to accurately record time worked and request approval from supervisors to change work schedules. NGA is free to set its own time and attendance policies, and neither this Court nor Warr can decide what they should be. "The employment discrimination laws have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir.1995). As Warr has come forward with no evidence suggesting that this decision — however ill-advised he may personally believe it to be — was discriminatory or retaliatory, he cannot demonstrate that NGA's proffered reasons are pretextual.
The same is true of Warr's placement on first shift and his ineligibility for second shift. Warr cannot claim that his placement on first shift was motivated by race or retaliation because the undisputed evidence demonstrates that NGA eliminated second shift for financial reasons. Eight employees were moved to first shift. Two (including Warr) were African-American, and the rest were Caucasian. There is simply no evidence suggesting that the true motive behind NGA's decision to eliminate second shift was to discriminate or retaliate against Warr. As for Warr's ineligibility for STIL's second shift, there is simply no evidence suggesting that the criteria — which included a "fully satisfactory" performance rating — were a mere pretext to discriminate or retaliate against Warr. The undisputed evidence demonstrates that the stated reason for not placing Warr on second shift was true — at the time of the STIL's second shift opening, Warr's performance rating was only "minimally successful" and, as such, he was ineligible for the position. There is no evidence in the record suggesting that the eligibility criteria for the STIL's second shift position were not uniformly applied to all employees, or that any employee outside Warr's protected class with a "minimally successful" performance rating was moved to second shift. Once again, NGA is free to establish whatever criteria it chooses for its second shift position, and neither this Court nor Warr can second-guess what those criteria should be.
Accordingly,
A separate Judgment in accordance with this Memorandum and Order is entered this same date.