Opinion
Civil Action No. 98-4094-CM
October 31, 2000
MEMORANDUM AND ORDER
Plaintiff Patrick Hill has sued defendant Louis Caldera, Secretary of the Army, contending that he was discriminated against because of his gender and retaliated against for asserting a claim of discrimination. Specifically, plaintiff alleges that he was discriminated against when defendant 1) refused to permit him to work a four-day, ten-hour work schedule; 2) did not recognize his birthday in the same manner as a female employee; 3) permitted a female employee to take leave by requesting leave outside of approved channels; 4) initiated a Performance Improvement Plan to assist plaintiff in improving his performance; 5) rated him unsatisfactory on his performance evaluation; and 6) terminated his employment. This matter is before the court on defendant's motion for summary judgment (Doc. 44).
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56.
Plaintiff began full-time employment with the Kansas National Guard in November 1989. After working in logistics, plaintiff was subsequently promoted in 1995 and transferred to the Department of Facilities and Engineering (DOFE). Just prior to his promotion, plaintiff received an annual appraisal, wherein he received an overall rating of "excellent." The 1995 appraisal commented that plaintiff's final paper sets were not always submitted within the required deadlines.
Within a few months after plaintiff's transfer to DOFE, plaintiff had a late night confrontation with a security guard and refused to show his identification to the guard. Plaintiff was counseled by Colonel William Vonderschmidt, the Facilities Manager for the Kansas Army National Guard. Plaintiff concedes that he argued with the security guard for several minutes and refused to sign the log book, a book which all employees are required to sign if they are in the building after normal work hours. Plaintiff wrote a note of apology to the security guard indicating that his "behavior was inexcusable."
In January 1996, plaintiff was appointed to a federal grand jury and advised by DOFE that he would be allowed to take whatever time was needed to fulfill his duties as a federal juror. Plaintiff gave DOFE a schedule of the starting dates for the grand jury each month and advised the office that he would be required to serve anywhere from one to three days each session. In April 1996, the grand jury was in session for two days, but plaintiff called in to the office and falsely claimed that he would need a third day of leave for grand jury service. After investigating the matter, Col. Vonderschmidt spoke with plaintiff and advised plaintiff that he considered the offense very serious and that he would take appropriate disciplinary action. On June 6, 1996, Col. Vonderschmidt issued a letter of reprimand to plaintiff for being absent without leave on April 26, 1996. Plaintiff concedes that his false claim that he was on grand jury duty was a bad judgment on his part.
Then, nearly a year later, plaintiff sent an email to the human resource officer, wherein he stated that he had a conversation with another grand juror at the time of his grand jury service and that, during that conversation, plaintiff believed he was offered a bribe. Plaintiff further stated in the email that, after his conversation with the juror, he was concerned for his life and sped away. Plaintiff later admitted in his deposition that these statements were a lie, that he was never offered a bribe, and that he was just trying to make a good story.
On April 30, 1996, the same day Col. Vonderschmidt counseled plaintiff about the grand jury incident, plaintiff contacted the State Equal Employment Manager (SEEM). An initial counseling session was held the following day with EEO counselor JoAnn Call. Ms. Call's notes from the counseling session reflect that plaintiff complained about the grand jury incident and about his belief that Captain Stephanie Campbell was being permitted to work four ten-hour days each week instead of the "5-4-9" schedule plaintiff and other employees had to work. Under the "5-4-9" schedule, an employee worked eight nine-hour days in each two-week pay period and one eight-hour day and then was permitted to take a scheduled day off each pay period in addition to every Saturday and Sunday.
Ms. Call set up a meeting between plaintiff and Col. Vonderschmidt to discuss plaintiff's complaint. During that meeting, plaintiff testified that he also complained that a female employee was permitted to take leave by requesting leave outside of approved channels and that his birthday was not recognized in the same fashion as Captain Campbell's birthday. According to plaintiff's deposition testimony, Col. Vonderschmidt told plaintiff that he would provide plaintiff with the same work schedule as Captain Campbell's, that he would address the discrepancies in the leave procedures, and that he would celebrate plaintiff's birthday next year. Col. Vonderschmidt testified that, during this meeting, he clarified his policies on granting leave and that he intended to enforce existing leave policies.
Plaintiff also testified in deposition that on more than one occasion he had requested the same schedule as Ms. Campbell but that his request had been denied. Plaintiff specifically recalled that Col. Vonderschmidt told plaintiff that Captain Campbell utilizes compensatory time in order to have an additional day off per week, that Captain Campbell and plaintiff's job positions are not the same, that Ms. Campbells's job affords her the opportunity to work comp time, and that Col. Vonderschmidt did not see an opportunity to provide plaintiff with his schedule request. Plaintiff could not, however, recall the date of this conversation.
In any event, plaintiff withdrew his informal complaint of discrimination. Plaintiff prepared a hand-written document, dated May 13, 1996, stating that he was withdrawing his complaint because Col. Vonderschmidt "expressed his awareness of the inequities in duties and responsibilities and granting of leave for each employee" and that Col. Vonderschmidt "agreed to action" his complaint without outside help as soon as possible. Thus, no mention was made in the letter of Captain Campbell's work schedule or of the birthday parties.
About the same time, in May 1996, plaintiff received another annual performance appraisal in which plaintiff obtained an overall rating of "excellent." Thereafter, until February 1997, plaintiff and Col. Vonderschmidt had at least several meetings at which they discussed plaintiff's responsibilities and duties assigned him and certain projects and suspense dates. Plaintiff concedes that he was consistently having difficulty completing many of his assignments and repeatedly needed additional time and extensions of completion dates. On November 14, 1996, Col. Vonderschmidt gave plaintiff a verbal warning for failure to complete his assigned tasks. On that day, various projects and tasks were discussed.
There is a factual dispute as to how many meetings occurred. Plaintiff testified that he recalled that he and Col. Vonderschmidt had more than two but less that five meetings. Yet, defendant has produced evidence consisting of Col. Vonderschmidt's notes of the meetings, which indicate that there were at least ten meetings.
On February 25, 1997, plaintiff was placed on a Performance Improvement Plan (PIP). The PIP identified the areas in which plaintiff's performance was deficient and identified the ways in which plaintiff must improve his performance with respect to three critical elements. The PIP indicated that action would be taken at the end of 90 days if plaintiff failed to improve. During the 90-day period, Col. Vonderschmidt met with plaintiff to discuss his performance on at least six occasions.
In the meantime, another incident occurred in January 1997, when plaintiff told another employee that he had thoughts about killing or "offing" Col. Vonderschmidt. The employee reported the conversation, and Col. Vonderschmidt was given the responsibility to take appropriate disciplinary action. On March 13, 1997, plaintiff and Col. Vonderschmidt met to discuss the threat, and Col. Vonderschmidt proposed a ten-day suspension. The suspension was held in abeyance pending plaintiff's participation in a psychological evaluation and counseling. On March 17, 1997, plaintiff signed an agreement wherein he agreed to take several affirmative actions relating to the threat.
On March 14, 1997, the day following the meeting between plaintiff and Col. Vonderschmidt about the threat, plaintiff contacted an EEO counselor and had an initial interview. On May 19, 1997, plaintiff filed a formal EEO complaint alleging discrimination on the basis of his sex and retaliation. Plaintiff alleged that he was discriminated against when he was given the PIP. Plaintiff further contended that he was discriminated against when he was not afforded the opportunity to work a schedule of four ten-hour days and when a female employee was permitted to go outside of the proper approval authority to request leave. Finally, plaintiff alleged that he was discriminated against on March 8, 1996 and March 8, 1997 when he was not given a birthday party using funds from the coffee and candy machines.
A memorandum to Col. Vonderschmidt was prepared by Major John Andrew on May 28, 1997, which Col. Vonderschmidt utilized in summarizing plaintiff's performance during the PIP period. In the memorandum, Major Andrew provided input regarding plaintiff's job performance, cited specific instances of plaintiff's low performance, and recommended that plaintiff be removed from federal service. On May 29, 1997, plaintiff was given his annual performance appraisal wherein his performance was rated as unacceptable in a critical element. Then, on June 6, 1997, Col. Vonderschmidt issued a memorandum to plaintiff which provided notice of the decision to remove plaintiff from his employment with the Kansas National Guard.
Plaintiff filed an informal complaint of retaliation with respect his performance appraisal and his removal. EEO Counselor Rosanna Morrow held an initial counseling session with plaintiff on June 24, 1997. Ms. Morrow conducted a final interview with plaintiff on August 6, 1997. In that interview, Ms. Morrow read to plaintiff the entire contents of the Notice of Final Interview and Right to File a Complaint, which advised plaintiff that he had fifteen days to file a formal complaint of discrimination. Plaintiff signed the endorsement verifying that he read and understood the contents of the Notice. Plaintiff never filed a formal complaint of discrimination with respect to the allegations of retaliation regarding his performance appraisal and his removal.
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact"and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. See id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. See Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Discussion
A. Exhaustion of Administrative Remedies
Like private sector employees, federal employees alleging discrimination and retaliation under Title VII must exhaust administrative remedies before bringing suit in federal court. See Belhomme v. Widnall, 127 F.3d 1214, 1215-16 (10th Cir. 1997). Federal employees seeking relief under Title VII must comply with certain administrative time limits. First, individuals must bring their complaint to the attention of an EEO counselor within 45 days of the occurrence or conduct giving rise to the complaint. See 29 C.F.R. § 1614.105(a)(1). If the complaint cannot be informally resolved by the EEO counselor, the federal employer must issue the complainant a notice of the right to file a formal administrative complaint. See id. § 1614.105(d). The complainant must then file a formal administrative complaint within 15 days after receipt of the notice. See id. § 1614.106(b). Finally, the complainant must file any appeal of a final agency decision to the federal district court within 90 days of receiving notice of the administrative agency's final action. See 42 U.S.C. § 2000e-16(c).
1. Four-day, ten-hour work week
Defendant argues that plaintiff failed to contact an EEO counselor within 45 days of the date on which plaintiff discovered that he was denied a four-day, ten-hour work week. Plaintiff could not recall the specific date on which he requested and was denied the work schedule. Defendants contend that plaintiff knew "at the very latest in the spring of 1996" that he would not be permitted to work the four-day, ten-hour work schedule. However, the "spring" may, or may not, fall within 45 days prior to plaintiff's first contact to SEEM on April 30, 1996. Thus, there is a question of fact as to whether plaintiff contacted an EEO counselor within 45 days of the date on which he learned that his request was denied. Summary judgment on this issue is not appropriate.
Defendants next contend that plaintiff's claim was untimely because it was not until a year later, on March 14, 1997, that plaintiff again contacted an EEO counselor regarding the claim that would eventually become plaintiff's formal EEO complaint. Defendant argues that plaintiff became aware in April 1996 during his initial attempt to file an informal complaint that he would not be permitted to work such a schedule. Thus, defendant argues, the 45-day period to bring his complaint to the attention of an EEO counselor had long since expired by March 1997.
In response, plaintiff argues that he "reinstated or revived" his April 1996 complaint when he made contact with an EEO counselor in March 1997. Plaintiff also asserts that his claims were part of a continuing violation such that he was excluded from the 45-day deadline. The court, however, concludes that the proper analysis involves the doctrine of equitable tolling. The timely filing of a discriminatory charge may be equitably tolled where a plaintiff has been "lulled into inaction" by his employer. Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984). Under Tenth Circuit law, this requires that the plaintiff show that the defendant engaged in "active deception" which caused his filing to be untimely. Johnson v. United States Postal Serv., 861 F.2d 1475, 1481 (10th Cir. 1988).
Plaintiff contends that Col. Vonderschmidt agreed to take action on plaintiff's claims, which plaintiff asserts were his complaints about the work schedule, discrepancies in the leave procedures, and the celebration of birthdays. Yet Col. Vonderschmidt denies such an agreement. Plaintiff's position is supported by the fact that plaintiff prepared a hand-written document stating that he was withdrawing his complaint based on the fact that Col. Vonderschmidt agreed to "action" his complaint. Thus, there remain questions of fact regarding whether promises, if any, were made by Col. Vonderschmidt to plaintiff. If a finder of fact concluded that Col. Vonderschmidt lulled plaintiff into dropping his informal complaint by promising to take action, plaintiff's claims would be equitably tolled, thereby making his second complaint timely. Accordingly, summary judgment on this issue is denied.
2. Birthday celebration
Plaintiff contends that, during his meeting in May 1996 with Col. Vonderschmidt, he complained that his birthday was not recognized in the same fashion as a Captain Stephanie Campbell's birthday. Plaintiff further asserts that Col. Vonderschmidt told plaintiff that his birthday would be celebrated the next year. However, EEO Counselor JoAnn Call's notes from plaintiff's initial counseling session do not reflect the birthday issue as one of plaintiff's complaints. Moreover, in withdrawing his first informal complaint, plaintiff does not mention in his hand-written document that the celebration of his birthday was one of the issues of which Col. Vonderschmidt was aware and had agreed to action. As such, a question of fact remains as to whether plaintiff raised the birthday issue in his first informal complaint and, if so, whether Col. Vonderschmidt lulled plaintiff into dropping the complaint by promising to take action. Depending on these facts, a jury could conclude that plaintiff's claim regarding the celebration of his birthday was equitably tolled until the filing of his complaint in May 1997. Defendant is not entitled to summary judgment on this issue.
3. Leave policy
Plaintiff contends that he also complained during his May 1996 meeting with Col. Vonderschmidt that a female employee was allowed to obtain leave without proper supervisory approval. The testimony of Col. Vonderschmidt does not dispute that plaintiff raised the issue of discrepancies in leave procedures. However, there remains a factual dispute about what Col. Vonderschmidt promised to do about the alleged discrepancies and, consequently, whether plaintiff's claim was equitably tolled until the filing of his May 1997 complaint. Summary judgment on this issue is, therefore, not proper.
4. Unacceptable performance appraisal and termination
Plaintiff alleges that, in retaliation for filing his formal EEO complaint on May 19, 1997, defendant rated plaintiff "unacceptable" in his May 29, 1997 performance appraisal and terminated his employment on June 6, 1997. Plaintiff contacted an EEO counselor on June 24, 1997 regarding these allegations of retaliation. Thus, there is no dispute that plaintiff acted within 45 days of the alleged retaliatory events. However, following plaintiff's receipt of the Notice of Final Interview and Right to File a Complaint, plaintiff never filed a formal complaint of discrimination regarding his allegations of retaliation. Defendant argues that plaintiff was required to file a formal complaint within 15 days from the date upon which he received the Notice and that, because plaintiff failed to file any formal complaint, he is now barred in this action from asserting his claims of retaliation.
The court lacks jurisdiction to entertain a Title VII claim not previously filed with the appropriate administrative agency. See Seymore v. Shawyer Sons, Inc., 111 F.3d 794, 799 (10th Cir. 1997). Claims that are reasonably related to claims included in the original complaint, however, may be asserted. Harrell v. Spangler, 957 F. Supp. 1215, 1219 (D.Kan. 1997). An employer's act committed in retaliation for filing an administrative discrimination complaint "is reasonably related to that complaint, obviating the need for a second . . . complaint." Jones v. Denver Post Corp., 203 F.3d 748, 755 (10th Cir. 2000). Thus, in this case, plaintiff's claim of retaliation is reasonably related to plaintiff's formal administrative complaint filed in May 1997 and, as such, plaintiff was not required to file another formal complaint to exhaust his administrative remedies. Defendant's motion for summary judgment on this issue is denied.
However, to the extent that plaintiff asserts a claim of reverse gender discrimination based on defendant's acts of giving plaintiff an unacceptable performance appraisal and terminating his employment, the court lacks jurisdiction. Such a claim is separate and distinct from plaintiff's allegations contained in his formal complaint and, as such, cannot be said to be reasonably related to those allegations. Thus, to exhaust his administrative remedies, plaintiff should have filed a formal complaint within 15 days after receiving notice of his right to file. See 29 C.F.R. § 1614.105(d). Because plaintiff failed to file a formal complaint after receiving adequate notice thereof, the court finds that plaintiff's claim of gender discrimination based on his unacceptable performance appraisal and discharge are barred.
B. Reverse Gender Discrimination Claims
Defendant argues that plaintiff has failed to establish a prima facie case that he was discriminated against on the basis of his gender. The court applies the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under the McDonnell Douglas framework, in order to survive summary judgment, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff carries that burden, the defendant must then articulate a facially nondiscriminatory reason for the challenged employment action. If the defendant makes such a showing, the burden reverts to the plaintiff to prove the proffered nondiscriminatory reason is pretextual.
Plaintiff, a white male, is a member of an historically favored group. As such, plaintiff must establish the elements of a prima facie case of reverse discrimination. To establish a prima facie case of reverse discrimination based on gender, a plaintiff must, "in lieu of showing that he belongs to a protected group, establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority." Notari v. Denver Water Dep't, 971 F.2d 585, 588-89 (10th Cir. 1992). A different standard is applicable because there is no reason to presume discrimination against historically favored litigants. See Livingston v. Roadway Express, Inc., 802 F.2d 1250, 1253 (10th Cir. 1986).
In this case, plaintiff has failed to present a genuine issue of material fact on this issue. See Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534-35 (10th Cir. 1995). In Reynolds, the plaintiff presented evidence that she was the only white employee in an otherwise all Hispanic education department and that Hispanic supervisors made most of the employment decisions of which the plaintiff complained. The Tenth Circuit held that such evidence was sufficient to establish the "suspicion that the defendant is that unusual employer who discriminates against the majority." Id. (citations omitted). Here, plaintiff presented no evidence of background circumstances indicating that defendant discriminated against white males generally.
Alternatively, plaintiff could establish a prima facie case of reverse discrimination either by presenting "direct evidence of discrimination, or indirect evidence sufficient to support a reasonable probability that, but for the plaintiff's status the challenged employment decision would have favored the plaintiff." Notari, 971 F.2d at 590. At this stage, the court allows the employee to clear the prima facie hurdle without countering defendant's explanations for its actions. See MacDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115, 1119-22 (10th Cir. 1991). The court considers each of plaintiff's claims in turn.
1. Four-day, ten-hour work week
Defendant contends that there were two categories of employees in the office-project management personnel and administrative personnel. Project management personnel, like Captain Campbell, were required to be on a job site as early as 5:30 a.m. and sometimes until early evening hours to accommodate the construction of a project. To ensure that project management personnel were compensated for the longer hours, an established compensatory time procedure existed. Compensatory time could then be used to obtain a more flexible schedule. Administrative personnel, on the other hand, had primarily office duties such as answering the phone, preparing budgets, and doing weekly status reports on construction projects. Defendant asserts that plaintiff was an administrative employee and, as such, did not hold the same position or have the same responsibilities as Captain Campbell.
Plaintiff claims that his duties also included project management. In support, plaintiff lists five projects which, he claims, required him to be out of the office and on jobs sites and, consequently, afforded him the opportunity to earn compensatory time. Plaintiff contends that Col. Vonderschmidt routinely refused to authorize plaintiff's request for compensatory time.
Accordingly, the court concludes that plaintiff has established a prima facie case with respect to this claim. Nevertheless, a plaintiff who succeeds in establishing a prima facie case does not automatically survive a summary judgment motion. The defendant must now articulate a facially nondiscriminatory reason for denying plaintiff the four-day, ten-hour work schedule. Where there is sufficient evidence to reject defendant's explanation, such that a rational fact-finder could conclude the action was discriminatory, the case belongs before the jury. Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2109 (2000)
As already alluded to, defendant explains that Captain Campbell was permitted to work a four-day, ten-hour schedule because she was a project manager and, as a result, had much more opportunity for compensatory time. Captain Campbell's use of compensatory time, in turn, afforded her the flexibility to work a four-day, ten-hour work week. In response, plaintiff claims that he too had some project management responsibilities. Plaintiff, however, does not dispute defendant's assertion that his primary job responsibilities were administrative, nor does plaintiff offer evidence to dispute the nature of Captain Campbell's job, her responsibilities, or the demand upon her to perform overtime work. Therefore, it remains uncontroverted that plaintiff's primary duties were administrative in nature and that those duties were different from Captain Campbell's.
The court finds that defendant has articulated a nondiscriminatory reason for allowing Captain Campbell to work a four-day, ten-hour work week while, at the same time, denying such a work schedule to plaintiff. Moreover, there is not sufficient evidence in the record to suggest that defendant's explanation is unworthy of belief. Plaintiff has failed to raise a fact issue on whether defendant's proffered explanation was a pretext for discrimination. Accordingly, defendant is entitled to summary judgment on this claim.
2. Birthday celebration
Regarding plaintiff's claim that his birthday was not celebrated the same as Captain Campbell's, the court finds that plaintiff has failed to establish a prima facie case. The type of conduct proscribed by Title VII is that which alters the employee's "compensation, terms, conditions, or privileges of employment," or "adversely affect[s] his [or her] status as an employee." Thus, "'not everything that makes an employee unhappy'" qualifies as an adverse employment action, for "'[o]therwise, 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.''" Sanchez v. Denver Pub. Sch., 164 F.3d 527, 533 (10th Cir. 1998) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1301 (3d Cir. 1997) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)).
Plaintiff in this case has not shown that he suffered an adverse employment action. See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315-16 (10th Cir. 1999). The events of which plaintiff complains, that funds from the vending machines were not used to celebrate his birthday, simply do not rise to that level. Plaintiff may well have been unhappy or perhaps disappointed over his co-employees' failure to celebrate his birthday, but in this case the denial of a birthday party did not adversely affect the terms and conditions of plaintiff's employment. Defendant is entitled to summary judgment on plaintiff's claim that defendant's failure to celebrate plaintiff's birthday was discriminatory.
3. Leave policy
Plaintiff claims that a female employee was permitted to take sick leave by requesting such leave outside of approved supervisory channels. Specifically, plaintiff testified that on three occasions, from June 1996 through July 1997, he heard Administrative Assistant Jean Copeland tell a female employee, Dawn Downey-Long, over the telephone that she would mark Ms. Downy-Long down as being sick. Plaintiff further claims that, on at least one of those occasions, none of the persons in Ms. Downey-Long's supervisory chain was present at work and no supervisor signed Ms. Downey-Long's application for leave. On the other hand, Ms. Downey-Long testified that she never obtained permission from Ms. Copeland for sick leave. Rather, Ms. Downey-Long testified that she first contacted someone in the proper chain of command, either Col. Vonderschmidt, Major Andrew or Captain Campbell, to request sick leave and then would follow up by calling Ms. Copeland to ensure that she was marked "out" for the day. Thus, there remains a question of fact as to whether Ms. Downey-Long was granted sick leave outside the proper supervisory channels.
However, even assuming that Ms. Downey-Long failed to obtain appropriate supervisory approval, plaintiff cannot establish a prima facie case of discrimination. Plaintiff fails to point to an instance where he requested and was denied leave by anyone in or outside the supervisory chain. Thus, plaintiff has not shown that he was subject to any adverse employment action. In other words, plaintiff has failed to show that he was discriminated against or that the improper granting of leave to Ms. Downey-Long had any discriminatory effect on him. The court grants summary judgment to defendant on this claim.
C. Retaliation
Plaintiff alleges that he was retaliated against for engaging in a protected activity. Specifically, plaintiff complains of the following three employment actions: 1) refusing to allow plaintiff to work the same schedule as Captain Campbell; 2) placing plaintiff on a PIP; and 3) giving plaintiff a rating of "unacceptable" on his performance evaluation and subsequently terminating his employment.
To establish a prima facie case of retaliation, plaintiff must show that: (1) he engaged in protected opposition to discrimination; (2) defendant subjected him to an adverse employment action subsequent to the protected activity; and (3) a causal connection exists between the protected activity and the adverse employment action. See Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000). Once plaintiff establishes a prima facie case, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. If defendant presents evidence of a legitimate business reason, the plaintiff must then be allowed to demonstrate that the defendant's offered reasons are a mere pretext for discrimination. See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996).
1. Four-day, ten-hour work week
Plaintiff claims that defendant's refusal to allow him to work a four-day, ten-hour work week was retaliatory. Plaintiff, however, fails to specify which act of protected activity led to defendant's alleged retaliation. In any event, it is uncontroverted that plaintiff requested to work the four-day, ten-hour schedule prior to the filing of his first informal complaint. Indeed, the denial of his schedule request was one issue he brought up in his first complaint. Thus, plaintiff could not have retaliated against plaintiff by later refusing his schedule request because his request already had been denied prior to plaintiff engaging in any protected activity.
Even if plaintiff had established a prima facie case of retaliation on this issue, the court finds that defendant has articulated a nondiscriminatory reason for its denial of plaintiff's schedule request. As discussed above, defendant explains that Captain Campbell, unlike plaintiff, was a project manager and, as a result, had much more opportunity for compensatory time. Plaintiff has not raised an issue of fact regarding whether defendant's proffered explanation was pretextual. Summary judgment is granted to defendant on this issue.
2. Performance Improvement Plan
On February 25, 1997, plaintiff was placed on a plan to improve his performance. The PIP identified areas in which plaintiff needed to improve his performance with respect to three critical elements. Col. Vonderschmidt indicated to plaintiff at the time that, if plaintiff did not perform and meet the expectations described in the plan, plaintiff would be removed or terminated from his employment.
Plaintiff alleges that defendant's placement of him on the PIP was retaliatory.
Plaintiff again fails to specify which act of protected activity led to defendant's alleged retaliation. Plaintiff's filed his formal EEO complaint on May 19, 1997, which was after plaintiff was placed on the PIP. Thus, the formal complaint cannot be the protected activity against which plaintiff alleges he was retaliated.
The court is left with plaintiff's informal complaint, which was filed May 1, 1996. Plaintiff was placed on the PIP more than nine months after this complaint was filed. Moreover, plaintiff has presented no evidence of a causal connection. Accordingly, the court concludes that plaintiff's placement on the PIP is too loosely connected in substance and too far removed in time from the informal complaint to provide the requisite nexus for a prima facie case. See Conner v. Schnuck Mkts, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (holding that, absent additional evidence, a four-month gap between protected activity and alleged retaliation was insufficient for prima facie case). The court grants summary judgment on this claim.
3. Unacceptable performance appraisal and termination
Plaintiff's final contention is that he was retaliated against for filing his formal EEO complaint on May 19, 1997. Plaintiff alleges that the retaliatory acts were his rating as "unacceptable" in his annual performance appraisal and his termination from employment. Defendant gave plaintiff his annual performance review on May 29, 1997 and terminated plaintiff's employment on June 6, 1997. The Tenth Circuit has recognized that "protected conduct closely followed by adverse action may justify an inference of retaliatory motive." Marx v. Schnuck Mkts. Inc., 76 F.3d 324, 329 (10th Cir. 1996). Because the adverse acts about which plaintiff complains closely followed plaintiff's formal complaint, the court finds that plaintiff has established a prima facie case of retaliation. The burden shifts to defendant to proffer nondiscriminatory reasons for its acts.
Defendant explains that plaintiff had significant problems meeting suspense dates and timely producing work product. Indeed, plaintiff concedes that he had difficulties completing many of his assignments and frequently needed additional time. Defendant specifically points to plaintiff's assigned task of developing a tracking system for documents in the office. Col. Vonderschmidt initially gave plaintiff a suspense date of "NLT [no later than] June 28 [1996]" in which to develop a tracking system. Defendant produced Col. Vonderschmidt's notes of various meetings he had with plaintiff regarding plaintiff's failure to timely complete the task. Finally, on January 17, 1997, more than six months after the original deadline was set, plaintiff submitted a draft to Col. Vonderschmidt of a proposed tracking system. Defendants also point to plaintiff's responsibility for completing the NGB 420's, which were programming documents for maintenance, repair, and minor construction projects under the real property operation and maintenance program. Plaintiff does not dispute that he failed to timely complete some of those projects and, as a result, Col. Vonderschmidt had to modify the suspense dates to give plaintiff more time.
As further reason for plaintiff's termination, defendant explains that plaintiff had problems with professionalism and integrity. As examples, defendant cites to plaintiff's altercation with the security guard, his untruthfulness about his leave request for grand jury service, his fabricated explanation for taking extra days for jury duty, and his threat of killing, or "offing," Col. Vonderschmidt. Plaintiff does not dispute that these events occurred.
The court finds that defendant has offered legitimate, nondiscriminatory reasons for plaintiff's unacceptable rating in his performance appraisal and for plaintiff's termination from employment. Plaintiff must now offer evidence that defendant's reasons are a pretext for retaliation. Plaintiff concedes that he had problems timely completing assigned tasks, plaintiff claims that the facts concerning the nature of the tasks, the suspense dates, and the counseling sessions are "hotly" contested. For instance, plaintiff contends that the status of certain projects, including the tracking system, was not discussed at the meetings he had with Col. Vonderschmidt. In support, plaintiff completed a declaration stating that specific meetings did not occur. Yet, in his deposition, plaintiff conceded that he was not saying that these discussions of his performance did not occur. Rather, he simply couldn't remember the meetings. To the extent that plaintiff's declaration contradicts his deposition testimony, the declaration should not be considered. See Bohn v. Park City Group, Inc., 94 F.3d 1457, 1463 (10th Cir. 1996).
The court finds that plaintiff has failed to produce sufficient evidence to create a genuine issue of fact that he met those deadlines referenced in his performance appraisal. In the face of documentary evidence to the contrary, documents which were, incidently, created prior to plaintiff's formal complaint, plaintiff has failed to show this court that a finder of fact could decide that plaintiff had indeed met certain dates and that, as a result, defendant's reasons were retaliatory.
Plaintiff has not demonstrated that defendant's proffered reasons are implausible, inconsistent, or contradictory. Indeed, prior to filing his formal complaint, plaintiff had been disciplined for the very conduct that was the subject of his unacceptable appraisal and discharge. In November1996, plaintiff was given a verbal warning for his failure to timely complete tasks. Plaintiff was then placed on a PIP in February 1997, at which time Col. Vonderschmidt made clear the consequences (removal or termination) if plaintiff failed to improve. The unacceptable appraisal, followed by plaintiff's discharge, simply completed the disciplinary process already set in motion. As such, plaintiff has not established pretext sufficient to survive a motion for summary judgment. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1324-25 (10th Cir. 1997) (holding that completion of disciplinary process already set in motion is not retaliation). Summary judgment on this claim is appropriate.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment (Doc. 44) is granted in its entirety.