Crayton v. Alabama Department of Agriculture & Industries

Filing 50

MEMORANDUM OPINION AND ORDER as follows: (1) Crayton will only be allowed to seek damages or other relief as to the claims set forth in the 44 Pretrial Order. All other claims are DISMISSED by his failure to include them in the Pretrial Order; (2) To the extent that 16 Motion for Summary Judgment seeks judgment as a matter of law on any claim is DENIED as MOOT as to those claims; (3) The 16 Motion for Summary Judgment is GRANTED as to all of Crayton's remaining claims of discrimination and retaliation, and all such claims are DISMISSED WITH PREJUDICE; and (4) A separate final judgment will be entered consistent with this Memorandum Opinion and Order. Signed by Hon. Chief Judge Mark E. Fuller on 12/18/2008. (cb, )

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IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J O H N L. CRAYTON P l a in tif f , v. A L A B A M A DEPARTMENT OF A G R IC U L T U R E & INDUSTRIES, D e f e n d a n t. ___________________________________ J O H N L. CRAYTON P l a in tif f , v. A L A B A M A DEPARTMENT OF A G R IC U L T U R E & INDUSTRIES, D e f e n d a n t. ) ) ) ) ) ) ) ) ) C A S E NO. 2:07-cv-626-MEF ) ) ) ) ) ) ) ) ) C A S E NO. 2:07-cv-1111-MEF (W O - Publish) M E M O R A N D U M OPINION AND ORDER J o h n L. Crayton ("Crayton"), an African-American employee of the Alabama D e p a rtm e n t of Agriculture and Industries ("the Department"), brings these two lawsuits a g a in s t his employer pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U .S .C . 2000e et seq.1 Pointing to a variety of incidents and events, Crayton contends that h e was subjected to disparate treatment on the basis of his race. He also contends that the D e p a rtm e n t retaliated against him for making complaints about what he perceived to be race Crayton's claims are brought solely pursuant to Title VII. He makes no claims p u rs u a n t to any other federal statute or to any state law. 1 d isc rim in a tio n directed toward him or toward other African-American employees. This c a u s e is now before the Court on the Department's Motion for Summary Judgment (Doc. # 1 6 ). The Court has carefully considered all proper and timely submissions in support of and in opposition to the motion. For the reasons set forth below, the Court finds that the motion is due to be GRANTED. J U R IS D IC T I O N AND VENUE T h e Court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331 (federal question) and 28 U.S.C. 1343 (civil rights). The parties do not contest p e rs o n a l jurisdiction and venue, and the Court finds adequate allegations in support of p e rs o n a l jurisdiction and venue. STANDARD OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). 2 T h e party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. After the nonmoving party h a s responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). 3 F A C T S AND PROCEDURAL HISTORY T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the lig h t most favorable to the non-moving party, establish the following relevant facts: C ra yto n , an African-American male, has been employed by the Department since May o f 1976. Initially, Crayton worked as a Seed Analyst. After approximately twenty-five years o f service as a Seed Analyst, Crayton became Program Director for the Seed Program. In S e p te m b er of 2006, Crayton was transferred out of this position into another Program D i re c t o r position, which put him in charge of the Genetically Modified Plant and Plant P ro d u c ts Program.2 F o r a short period of time, Crayton had a state-owned vehicle provided to him because h is job sometimes required him to travel. As Program Director for the Seed Program he had to travel to Auburn approximately twice a year to attend meetings. Additionally, his job d u ties as Director of the Seed Program included visits to seed outlets and to visit with in s p e c to rs , but he admits he never performed those parts of his job duties. Primarily, he used th e State-owned vehicle issued to him to travel to and from work in Montgomery. Because of statewide budget problems, the Governor of the State of Alabama gave a directive in April of 2005, by which all state-owned vehicles assigned to employees were re c alle d . Crayton admits that all Department employees, regardless of race, had to surrender 2 The Department advised Crayton of this transfer in late July of 2006. 4 th e ir state-owned vehicles after the Governor's directive. At some point, however, Crayton c o n te n d s that he noticed that some Caucasian employees had received their vehicles back. H e further contends that some of these Caucasian employees only used their state-owned v e h ic le s to travel to and from work. In September of 2006, Crayton was once again assigned a State-owned vehicle. He had earlier complained to Alabama State Employees Association (" A S E A " ) about the failure of the Department to assign a state-owned vehicle to him and a n o th e r African-American employee of the Department. On September 27, 2006, Crayton filed a Charge of Discrimination with the Equal E m p lo ym e n t Opportunity Commission ("EEOC"). In this Charge, he complained of race d is c rim in a tio n and retaliation between July 28, 2006 and September 26, 2006. Specifically, C r a yto n complained that his supervisor constantly challenged Crayton's decisions. A d d i ti o n a l ly, Crayton complained that after taking complaints about the treatment of A f ric a n -A m e ric a n employees at the Department to the Alabama State Employees Association (" A S E A " ) in June of 2006, he was subjected to race discrimination and retaliation when the D e p a rtm e n t reassigned him from his position as the Program Director for the Seed Program to a recently created position of Program Director for the Genetically Modified Plant and P la n t Products Program. On May 3, 2007, Crayton filed a second Charge of Discrimination with the EEOC. H e once again complained of race discrimination and retaliation against him, this time b e tw e e n December 5, 2006 and May 2, 2007. Specifically, Crayton again complained about 5 w h a t he considered to be the demotion from his position as the Program Director for the Seed P r o g ra m to a recently created position of Program Director for the Genetically Modified P la n t and Plant Products Program. Additionally, he complained that he had been required to enroll in an Employee Assistance Program ("EAP") in November of 2006. Finally, he c o m p la in e d about a delay in the completion of his performance appraisal. On July 9, 2007, Crayton filed a Complaint (Doc. # 1 in 2:07cv626) against the D e p a rtm e n t. In this Complaint, he alleged race discrimination dating back to January of 2 0 0 2 and retaliation against him beginning in June of 2006, when he complained to the A S E A about race discrimination. Crayton's claims of discrimination and retaliation were b ro u g h t solely pursuant to Title VII. On December 21, 2007, Crayton filed a motion seeking t o amend the complaint to strip out the retaliation claims and he filed a second lawsuit (2 :0 7 c v 1 1 1 1 ) in which he set forth those retaliation claims. Crayton's motion for leave to a m e n d his original complaint was granted and he filed the amended complaint (Doc. # 13 in 2 :0 7 c v 6 2 6 ). The Court granted the Department's motion to consolidate these two cases for a ll pretrial matters and for trial. On August 28, 2008, the parties appeared before the Court for a final pretrial c o n f ere n c e. Having been apprized that the Order on Pretrial Hearing would supplant the p lead ing s and frame the issues in the case, the parties submitted their contentions. Crayton's c la im s are consequently limited by these submissions to the following: (1) he was d is c rim in a te d against on the basis of his race when he was not selected for the position of 6 D iv is io n Director in April of 2003;(2) he was discriminated against on the basis of his race w h e n he was transferred from the position of Seed Director to the Genetically Modified Plant a n d Plants Product Director, which transfer was a constructive demotion; (3) he was d is c rim in a te d against on the basis of his race when his state issued vehicle was not returned to him after it was taken away in April of 2005; (4) he was retaliated against after he made a complaint to the ASEA in June of 2006, in that he was transferred from the position of S e e d Director to the Genetically Modified Plant and Plants Product Director; (5) he was re ta lia te d against after he filed he Charge of Discrimination with the EEOC on September 2 7 , 2006, in that he was required to undergo a psychiatric evaluation on November 14, 2006; a n d (6) he was subjected to a racially hostile working environment.3 A n y claims other than those set forth above, including those claims which Crayton alleg ed in his complaints, but failed to include in his contentions in the Final Pretrial Order, a re deemed abandoned by virtue of Crayton's failure to include them in his contentions for th e Final Pretrial Order. To the extent that The Department's motion for summary judgment s e e k s judgment as a matter of law on any claims Crayton has now abandoned, that motion is due to be DENIED as MOOT. Crayton's claim that he was subjected to a racially hostile working environment is p re d ic a te d on the following events: (a) an April 1, 2004 meeting regarding employee get to g e th e r meetings; (b) an October 4, 2004 reprimand which Crayton contends was unfair; (c) a n October 4, 2004 letter to the industry usurping Crayton's authority as Seed Director; (d) f a ilu re to provide Crayton a chair in his office when he was transferred to the position of G e n e tic a lly Modified Plant and Plant Products Director; and (e) an incident of alleged verbal h a ra ss m e n t on June 29, 2006 involving the Commissioner of the Department of Agriculture. 7 3 D IS C U S S IO N A. OVERVIEW OF APPLICABLE LAW T itle VII prohibits an employer from discriminating "against any individual with re sp e c t to his compensation, terms, conditions, or privileges of employment because of such in d iv id u a l's race, color, religion, sex or national origin." 42 U.S.C. 2000e-2(a). The c ritica l element in establishing wrongful discrimination in violation of Title VII is d is c rim in a to ry intent. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Title VII a ls o prohibits an employer from retaliating against an employee for reporting discrimination. 4 2 U.S.C. 2000e3(a).4 U n d er Title VII, a plaintiff bears the ultimate burden of proving discriminatory tre a tm e n t by a preponderance of the evidence. Earley v. Champion Int'l Corp., 907 F.2d 1 0 7 7 , 1081 (11th Cir. 1990). Discriminatory intent can be established through a variety of m e a n s . See, e.g., Davis v. Qualico Miscellaneous Inc., 161 F. Supp. 2d 1314, 1319 (M.D. A la . 2001). Where, as here, a plaintiff seeks to prove intentional discrimination through c irc u m s ta n tia l evidence 5 of the employer's intent, the Court applies some version of the 42 U.S.C. 2000e3(a) bars retaliation against an employee "because he has opposed a n y practice made an unlawful employment practice by this subchapter, or because he has m a d e a charge, testified, assisted, or participated in any manner in an investigation, p ro c e ed in g , or hearing under this subchapter." 4 Because Crayton offers nothing which could conceivably be considered direct e v id e n c e or statistical evidence in support of any of his claims, the Court will analyze this m o tio n for summary judgment under the circumstantial evidence paradigm. 8 5 f a m ilia r tripartite burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 4 1 1 U.S. 792 (1973) and its progeny. Under this framework, the plaintiff has the initial burden of establishing a prima facie c a s e of discrimination. See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (1 1 th Cir. 1997), cert. denied, 522 U.S. 1045 (1998). The purpose of the prima facie case is to show an adverse employment decision that resulted from a discriminatory motive. See, e .g ., Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1143 (11th Cir. 1983). Once a p la in tif f establishes the requisite elements of the prima facie case, the defendant has the b u rd e n of producing a legitimate, non-discriminatory reason for the challenged employment a c tio n . See, e.g., Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997) (citing Texas Dep't o f Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). The employer's burden is "exceedingly lig h t." Holifield, 115 F.3d at 1564. This burden is one of production, not persuasion and c o n se q u e n tly, the employer need only produce evidence that could allow a rational factfin d er to conclude that the challenged employment action was not made for a discriminatory re a s o n . See, e.g., Davis, 161 F. Supp. 2d at 1321. If such a reason is produced, a plaintiff then has the ultimate burden of proving the re a s o n to be a pretext for unlawful discrimination. See, e.g., Holifield, 115 F.3d at 1565; C o m b s v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (plaintiff "has the o p p o rtu n ity to discredit the defendant's proffered reasons for its decision"). Thus, once the e m p lo ye r articulates a legitimate, non-discriminatory reason, the burden returns to the 9 e m p lo ye e to supply "evidence, including the previously produced evidence establishing the p r im a facie case, sufficient to permit a reasonable fact-finder to conclude that the reasons g iv e n by the employer were not the real reasons for the adverse employment decision." D a v is , 161 F. Supp. 2d at 1322 (citing Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th C ir. 2000) (en banc)). The plaintiff may seek to demonstrate that the proffered reason was n o t the true reason for the employment decision "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the e m p lo ye r's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; C o m b s , 106 F.3d at 1528. A plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to co n c lu d e that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing Prods., In c ., 530 U.S. 133, 148 (2000). A plaintiff can establish a prima facie case by showing that: (1) he was a member of a protected class; (2) he was qualified to do the job; (3) he was subjected to an adverse e m p lo ym e n t action by his employer; and (4) similarly situated employees outside of the p ro te c te d class were treated more favorably. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1 0 8 7 (11th Cir. 2004). Nevertheless, the prima facie case formulation is flexible and often d e p e n d e n t on the particular facts of a case. Id. Thus, the articulation of the prima facie case m a y vary from a case involving a failure to promote to a case involving termination of e m p lo ym e n t. Title VII has also been recognized to provide employees with a remedy for 10 w o rk place harassment on the basis of race. This type of claim has its own requirements w h ich will be discussed below. As previously noted, Title VII provides a cause of action to th o s e who have been retaliated against in violation of the statute. The applicable legal p a r a d i g m for such retaliation claims is similar, but not identical, to the burden shifting p ara d igm applicable to discrimination claims brought pursuant to Title VII. S u its pursuant to Title VII may only be brought if the plaintiff has satisfied certain sta tu to rily mandated requirements prior to suit. Failure to properly and timely comply with this requirements may bar a plaintiff's claim. These requirements will be discussed in more d e ta il below. B. C L A IM S WITH PROBLEMS RELATING TO SATISFACTION OF A D M I N I S T R A T I V E PREREQUISITES TO MAINTAINING TITLE VII A C T IO N 1 . Applicable Legal Analysis T itle 42 U.S.C. 2000e-(5)(e)(1) specifies the prerequisites that a plaintiff must s a tis f y before filing a private civil action such as this one which is brought solely pursuant to Title VII. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). A c c o rd in g to this provision, "[a] charge...shall be filed within one hundred and eighty days af ter the alleged unlawful employment practice occurred[.]" 42 U.S.C. 2000e-(5)(e)(1). A c c o r d , Pijnenburg v. West Ga. Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir.), reh'g d e n ie d , 273 F.3d 1117 (11th Cir. 2001) ("It is settled law that in order to obtain judicial c o n sid e ra tio n of a [Title VII] claim, a plaintiff must first file an administrative charge with 11 th e EEOC within 180 days after the alleged unlawful employment practice occurred."). This re q u ire m e n t guarantees "the protection of civil rights laws to those who promptly assert their rig h ts " and "also protects employers from the burden of defending claims arising from e m p lo ym e n t decisions that are long past." Delaware State Coll. v. Ricks, 449 U.S. 250, 2565 7 (1980). The United States Supreme Court has explained that "strict adherence" to this p ro c e d u ra l requirement "is the best guarantee of evenhanded administration of the law." M o h a s c o Corp. v. Silver, 447 U.S. 807, 826 (1980). By choosing this relatively short d e a d lin e , "Congress clearly intended to encourage the prompt processing of all charges of e m p lo ym e n t discrimination." Id. Indeed, this procedural rule is not a mere technicality, but a n integral part of Congress' statutory scheme that should not "be disregarded by courts out o f a vague sympathy for particular litigants." Baldwin County Welcome Ctr. v. Brown, 466 U .S . 147, 152 (1994). Thus, if a plaintiff fails to file an EEOC charge before the 180-day lim ita tio n s period, the plaintiff's subsequent lawsuit is barred and must be dismissed for f a ilu re to exhaust administrative remedies. See, e.g., Morgan, 536 U.S. at 113 ("[d]iscrete d isc rim in a to ry acts are not actionable if time barred, even when they are related to acts alleg ed in timely filed charges"); Brewer v. Alabama, 111 F. Supp. 2d 1197, 1204 (M.D. Ala. 2 0 0 0 ) .6 Title VII's time limit on filing a Charge of Discrimination with the EEOC is not ju ris d ic tio n a l. Instead, it is akin to a statute of limitations and is subject to waiver, estoppel a n d equitable tolling. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 3939 12 6 T h e existence of past acts and the employee's prior knowledge o f their occurrence, however, does not bar employees from filin g charges about related discrete acts so long as the acts are in d e p e n d e n tly discriminatory and charges addressing those acts a re themselves timely filed. Nor does the statute bar an e m p lo ye e from using the prior acts as background evidence in s u p p o rt of a timely claim. M o r g a n , 536 U.S. at 113. O f course, the determination of whether a plaintiff has filed a timely EEOC Charge d e p e n d s on when the alleged unlawful employment practice "occurred." The United States S u p re m e Court has provided further clarification of the nature of this inquiry and set forth d if f e re n t standards for claims involving "discrete acts" and "hostile environment" a lle g a tio n s . See generally, Morgan, 536 U.S. 101. In cases involving discrete discriminatory a c ts, such as termination of employment, failure to promote, denial of transfer, or refusal to h ire, 7 a discrete discriminatory act occurs on the day that it happens. Morgan, 536 U.S. at 1 1 0 -1 6 . More specifically, [t]he 180-day filing period begins to run from "[a] final decision (1982). Equitable tolling allows a plaintiff to avoid the bar of the limitations if, despite all d u e diligence, he is unable to obtain vital information bearing on the existence of his claim. E q u ita b le estoppel in this context prevents a defendant from asserting untimeliness where the d e f e n d a n t has taken active steps to prevent the plaintiff from filing a timely Charge of D isc rim in a tio n with the EEOC. No party has alleged that this case involves waiver, equitable to llin g or equitable estoppel. With respect to most of Crayton's claims, Crayton's argument that the Department's d is c rim in a tio n and retaliation was "continuing" is simply incorrect in light of the law as s ta te d in Morgan. A decisions relating to promotions, demotions, and transfers are discrete a c ts . As previously stated, Morgan holds that discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. 13 7 to terminate the employee." Cocke v. Merrill Lynch & Co., Inc., 8 1 7 F.3d 1559, 1561 (11th Cir. 1987). And a "final decision" to terminate, "rather than actual termination, constitutes the ` a lle g e d unlawful practice' that triggers the filing period. Thus, th e 180-day period is counted from the date the employee r e c e i v e s notice of the termination." Id. (internal citations o m itted ) (emphasis added). W r ig h t v. AmSouth Bancorporation, 320 F.3d 1198, 1201 (11th Cir. 2003). "Moreover, the 1 8 0 -d a y charge filing period does not run until the plaintiff is told that she is actually being te rm in a te d , not that she might be terminated if future contingencies occur." Stewart v. B o o k e r T. Washington Ins., 232 F.3d 844, 849 (11th Cir. 2000) (emphasis in original). Beginning the charge-filing period any earlier would make little s e n se : to require a plaintiff to file a discriminatory termination c h a rg e with the EEOC prior to the receipt of notice of te rm in a tio n would be to require a filing prior to the occurrence o f the discriminatory conduct, thereby charging the EEOC with re sp o n s ib ility for the arguably advisory task of investigating a h yp o th e tic a l case of discrimination. Id . Several of Crayton's claims involve discrete discriminatory acts.8 In addition to his d isc re te discriminatory acts claims, Crayton seeks to litigate a claim that he was improperly su b jec ted to a racially hostile working environment. He contends that this racially hostile These discrete discriminatory act claims involve discriminatory removal of p riv ile g e s, transfer, demotion, and failure to promote. There is ample legal precedent which d e f in e s discrete discriminatory act to include transfers, demotions and failure to promote. F u r th e rm o re , the Court finds that the claim relating to the failure to return Crayton's stateo w n e d automobile constitutes a discrete discriminatory act. The Court will address the tim e lin e ss of Crayton's Charges of Discrimination with respect to each of these claims later in this opinion. 14 8 w o rk in g environment began in 2002, when his work was scrutinized and criticized unfairly, a n d continued into 2006. Specifically, he cites several problems in 2004, and an incident in th e parking lot on June 29, 2006. Unlike claims involving discrete discriminatory acts, h o s tile environment claims may be litigated so long as at least one of the events contributing to the hostile environment was presented to the EEOC in an Charge of Discrimination in a tim e ly fashion. Indeed, in Morgan, the United States Supreme Court held that "consideration o f the entire scope of a hostile work environment claim, including behavior alleged outside th e statutory time period, is permissible for the purposes of assessing liability, so long as an a c t contributing to that hostile environment takes place within the statutory time period." M o r g a n , 536 U.S. at 106. Because the Supreme Court has explicitly differentiated between discrete employment a c ts and a hostile work environment, many courts have concluded that a discrete act cannot b e part of a hostile work environment claim and instead constitutes a separate unlawful e m p lo ym e n t practice. See, e.g., Porter v. Cal. Dep't of Corr., 419 F.3d 885, 893 (9th Cir. 2 0 0 5 ) ("If the flames of an allegedly hostile environment are to rise to the level of an a c tio n a b le claim, they must do so based on the fuel of timely non-discrete acts."); Grier v. S n o w , No. 1:04-CV-397-JTC, 2006 WL 5440387 at * (N.D. Ga. Mar. 15, 2006) (analyzing d iscrete discriminatory acts claims and their timeliness separately and apart from plaintiff's c laim s of a hostile working environment); Patterson v. Johnson, 391 F. Supp. 2d 140, 146 & n.5 (D.D.C. 2005) (concluding that: (1) discrete acts that occurred more than the relevant 15 n u m b e r of days before the EEO complaint were time barred; (2) "plaintiff cannot cure his f a ilu re to timely exhaust his complaints about these incidents by sweeping them under the ru b ric of a hostile work environment claim" because discrete acts are not part of the same u n law f u l employment practice; and (3) the law does not support the notion of "hybrid c laim s" ); Rojas v. Principi, 326 F. Supp. 2d 267, 275-76 (D. Puerto Rico 2004) (holding that " d is c re te acts [such as failure to select, written counseling, and a proposed reprimand] of d is c rim in a to ry conduct constitute independent claims subject to individual limitations periods an d may not be used as grounds for extensions based on the continuing violations doctrine"); L e s te r v. Natsios, 290 F. Supp. 2d 11, 32 (D.D.C. 2003) (noting that courts have been reluc tan t to transform reference to disparate acts of discrimination into a hostile work e n v ir o n m e n t claim). This Court is persuaded that these cases correctly apply the law. Thus, it rejects Crayton's arguments that all of his claims were properly and timely raised with the E E O C because they were "continuing" rather than arising out of discrete acts. This argument is simply based on an erroneous understanding of the currently applicable law. A court faced with a challenge to an employment discrimination plaintiff's ability to litig a te certain claims must start by ascertaining the permissible scope of a judicial complaint. T h is task requires the Court to first review the Charge of Discrimination that the plaintiff f ile d with the EEOC. See, e.g., Griffin v. Carlin, 755 F.2d 1516, 1522 (11th Cir. 1985); R o b in s o n v. Regions Finan. Corp., 242 F. Supp. 2d 1070, 1079 (M.D. Ala. 2003). No action a lle g in g a violation of Title VII may be brought unless the alleged discrimination has been 16 m a d e the subject of a timely filed EEOC charge. See, e.g., Alexander v. Fulton County, 207 F .3 d 1303, 1332 (11th Cir. 2000); Robinson, 242 F. Supp. 2d at 1079. "Not all acts c o m p la in e d of, however, need have been included in the EEOC charge; rather, an employee m a y include in her lawsuit a claim for injury resulting from any practice which `was or sh o u ld have been included in a reasonable investigation of the administrative complaint.'" R o b in s o n , 242 F. Supp. 2d at 1079 (citing Griffin, 755 F.2d at 1522). "Thus, an employee's la w s u it is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of a charge of discrimination." Robinson, 242 F. Supp. 2d at 1079 (citing Evans v . U.S. Pipe & Foundry Co., 696 F.2d 925, 929 (11th Cir. 1983)). Mindful of these legal p re c ep ts , the Court must start by examining the content of Crayton's Charges of D is c ri m in a tio n . 2. Content of Crayton's Charges of Discrimination O n September 27, 2006, Crayton filed a Charge of Discrimination with the EEOC in B irm in g h a m .9 In this Charge, Crayton alleged race discrimination and retaliation between J u ly 28, 2006 and September 26, 2006. Specifically, he complained that when Lance Hester (" H e ste r " ) became his supervisor,1 0 Crayton began to be subjected to "adverse terms and c o n d itio n s of employment" because Hester constantly challenged decisions Crayton made a b o u t particular products despite the fact that, in Crayton's view, Hester had no expertise in 9 A copy of this Charge of Discrimination can be found in the record at Doc. # 18 Ex. 7. 10 It is undisputed that this occurred in 2003. 17 th e area in which Crayton worked. Crayton also stated in his Charge that in June of 2006, h e had complained to the ASEA about alleged race discrimination against him and other A f ric a n -A m e ric a n employees. Thereafter, on July 28, 2006, he was reassigned to a recently c re a te d position of Genetically Modified Plant and Plant Products Director and he contends th a t his prior position of Seed Program Director was awarded to a less qualified Caucasian e m p l o ye e . O n May 3, 2007, Crayton filed a second Charge of Discrimination with the EEOC.1 1 O n c e again, Crayton complained of race discrimination and retaliation. This time he p u rp o rte d to address acts of discrimination which occurred between December 5, 2006 and M a y 2, 2007. In this Charge, Crayton characterized his transfer to the new position on July 2 8 , 2006 as a demotion. Crayton explained that after he had filed his first Charge of D is c rim in a tio n with the EEOC, his supervisor required him to enroll in an EAP, which he p ro te ste d . Crayton also complained about his supervisor allegedly holding back on an annual jo b performance appraisal and delaying his eligibility for a merit pay raise. Significantly, many of the things about which Crayton would complain in these la w s u its are not mentioned in either of his EEOC Charges of Discrimination. For example, strik in g ly absent from either Charge of Discrimination are any allegations of any acts c o n s titu tin g a hostile environment within the 180 days prior to the filing of the EEOC 11 A copy of this Charge of Discrimination can be found in the record at Doc. # 18 E x . 10. 18 C h a rg e . Conversely, at least one of the things about which he did include complaints in one o f his EEOC Charges of Discrimination, namely the allegedly delay in his performance a p p ra is a l, is not being litigated in this lawsuit because Crayton failed to include any c o n te n tio n s about this performance appraisal in his contentions for the Order on Pretrial H e a rin g , which supplants the pleadings. 3. Timeliness of Crayton's Discrete Act Claims a . Discriminatory Failure to Promote in 2003 C ra yto n cannot pursue his claims of discrimination arising out of the failure to p ro m o te him to any position prior to March 31, 2006,1 2 because, as to those claims, his C h a rg e of Discrimination was untimely. Specifically, this means that Crayton's claims a ris in g out of the The Department's failure to promote him to the position of Division D ire c to r in April of 2003. Under the applicable case law, a failure to award a promotion is a discrete discriminatory act which an employee must complain to the EEOC within the time a llo w e d by law. It is undisputed that Crayton did not file a Charge of Discrimination with th e EEOC within 180 days after his April 30, 2003 application for the position of Division D irec tor was rejected, and Hester was hired for the position instead. Therefore, this Court m a y not entertain Crayton's claim challenging that promotion pursuant to Title VII. M o re o v e r, there is no evidence before this Court that Crayton ever identified the failure to March 31, 2006 is 180 days prior to September 27, 2006, the date on which Crayton s ig n e d and filed his first charge of discrimination with the EEOC. 19 12 p ro m o te him in 2003 as discriminatory in any of his communications with the EEOC. S im p ly put, Crayton has failed to properly and timely exhaust any claims for any alleged d iscrete act of discrimination prior to March 31, 2006. For these reason, the Department's M o tio n for Summary Judgment is due to be GRANTED with respect to all claims relating th e promotion of Hester to Division Director in April of 2003 and to any discrete d is c rim in a to ry acts completed prior to March 31, 2006. Any such claims in this suit are due to be DISMISSED WITH PREJUDICE. This ruling does not preclude Crayton from litig a tin g other claims for which he did timely exhaust the administrative prerequisites to suit, n o r does it preclude mention of the 2003 promotional decision in the case as possible b a c k g ro u n d circumstantial evidence, but it does preclude him from seeking an award of d a m a g e s for claims not properly and timely taken to the EEOC. b. Lateral Transfer of Crayton in July of 2006 C ra yto n 's claims of alleged discrimination and retaliation with respect to his transfer o r constructive demotion to the position of Genetically Modified Plant and Plant Products D ire c to r in July of 2006 was timely set forth in a Charge of Discrimination filed with the E E O C on September 27, 2006. Thus, the applicable administrative prerequisites do not bar C ra yto n from litigating this claim. c. Crayton's Claim About the State-Owned Vehicle W h e n it is viewed in the light most favorable to Crayton, it appears that the e v id e n tia ry record before this Court may establish that Crayton discovered the alleged 20 d is p a ra te treatment with respect to state-owned vehicles in June of 2006. It does not appear th a t this issue was ever presented to the EEOC in either of Crayton's Charges of D iscrim ina tio n . However, because the first EEOC Charge specifically mentions Crayton's Ju n e of 2006 complaint to the ASEA about race discrimination, which complaint was largely a b o u t alleged disparate treatment concerning the state-owned vehicles, the Court must reject th e Department's contention that Crayton failed to properly raise this claim in his EEOC C h a rg e . It is clearly within the scope of the EEOC investigation which could reasonably h a v e been expected to grow out of his September of 2006 Charge of Discrimination. d . Crayton's Remaining Discrete Act Claims of Retaliation T h e re can be no serious contention made that Crayton failed to timely exhaust any a d m in is tra tiv e requirement with respect to his pending claims of retaliation. 4. Timeliness of Crayton's Hostile Environment Claim T h is case presents an odd circumstance indeed. The Court is compelled to find that a ll of Crayton's hostile environment claims are barred by his failure to timely exhaust his a d m in istra tiv e remedies with respect to such claims. This is an odd result because clearly o n e of the events on which Crayton now relies to establish a hostile environment claim, n a m e ly in events on June 29, 2006 relating to his conflict with the Commissioner which s ta rte d in the parking lot, would clearly have been timely if it had been in any way mentioned in the Charges of Discrimination and under the current law one timely event can preserve a h o s tile environment claim based on several earlier events not timely taken to the EEOC 21 w h ich constitute part of the same pattern. When making his Charges of Discrimination with th e EEOC, Crayton only mentioned one issue which hints at a hostile work environment, c o n sta n tly being challenged by Hester shortly after Hester became his supervisor. It is u n d is p u te d that Hester became Crayton's supervisor in 2003, which is far more than 180 days p rio r to his September 27, 2006 Charge of Discrimination. At this point in the litigation, C ra yto n would have this Court send his hostile environment claim to the jury based on in c id e n ts which occurred in 2004 and an incident in June of 2006, which had nothing to do w ith Hester. Nevertheless, these incidents on which he now relies were never disclosed to th e EEOC, nor would the EEOC investigation reasonably encompass such events. For these re a so n , the Department's Motion for Summary Judgment is due to be GRANTED with r e sp e c t to all hostile environment claims. Any such claims in this suit are due to be D IS M IS S E D WITH PREJUDICE. C. ALTERNATE ANALYSIS OF CRAYTON'S HOSTILE ENVIRONMENT CLAIM E v e n assuming arguendo that Crayton's hostile environment claim was not barred by h is failure to timely exhaust his administrative prerequisites to suit, the Court finds that the D e p a rtm e n t is entitled to summary judgment on Crayton's hostile environment claim. It has lo n g been recognized that "[t]he phrase terms, conditions, or privileges of employment e v in c e s a congressional intent to strike at the entire spectrum of disparate treatment of men a n d women in employment, which includes requiring people to work in a discriminatorily 22 h o s tile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (in ter n a l citations omitted). To establish a claim that he was subjected to a racially hostile w o rk environment, Crayton must need to show that (1) he belongs to a protected group; (2) h e has been subject to unwelcome harassment; (3) the harassment was based on a protected ch ara cteristic of the employee, such as race; and (4) the harassment was sufficiently severe o r pervasive to alter the terms and conditions of employment and create a discriminatorily a b u siv e working environment; and (5) the employer is responsible for the hostile e n v i r o n m e n t under a theory of vicarious or direct liability. Miller v. Kenworth of Dothan, In c ., 277 F.3d 1269, 1275 (11th Cir. 2002). An employee claiming hostile environment must p ro f f er evidence from which a reasonable jury could find that he experienced a workplace "p erm ea ted with discriminatory intimidation, ridicule, and insult, that is sufficiently severe o r pervasive to alter the conditions of the victim's employment and create an abusive w o rk in g environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). As a matter of law , the Court finds that Crayton has offered insufficient evidence from which a jury could f in d that he has established such a claim. For this additional reason the Department's motion is due to be GRANTED with respect to Crayton's hostile environment claims. D. ALLEGED DISCRIMINATION WITH RESPECT TO THE STATE-OWNED V E H IC L E C ra yto n contends that he was discriminated against on the basis of his race with re sp e c t to the Department's failure to reassign a State-Owned vehicle to him, presumably in J u n e of 2006. A plaintiff can establish a prima facie case by showing that: (1) he was a 23 m e m b e r of a protected class; (2) he was qualified to do the job; (3) he was subjected to an a d v e rs e employment action by his employer; and (4) similarly situated employees outside of th e protected class were treated more favorably. Wilson v. B/E Aerospace, Inc., 376 F.3d a t 1087. Crayton has failed to offer sufficient admissible evidence from which a reasonable ju ry could find that he has established a prima facie case with respect to this claim. S p e c if ic a lly, the Court finds no evidence that with respect to the assignment of State-Owned v eh icles Crayton experienced an adverse employment action 1 3 at the hands of his employer. W h e n the evidence is viewed in the light most favorable to Crayton it simply does not c o n stitu te a event that under the applicable law is actionable as a discrete act of d is c rim in a tio n . Furthermore, Crayton has not sufficiently established that the proffered C a u c a sia n comparators who he contends received more favorable treatment were sufficiently s im ila rly situated to him to make them appropriate comparators under the applicable legal In the Eleventh Circuit, an employee bringing a claim of discrimination must e sta b lis h an adverse employment action by showing that an "ultimate employment decision" o c c u rr e d or by making some other showing of substantiality. See, e.g., Crawford v. Carroll, 5 2 9 F.3d 961, 970-71 (11th Cir. 2008). An ultimate employment decision is one such as a d e c is io n to terminate, demote, or refuse to hire. Id. Conduct falling short of an ultimate e m p lo ym e n t decision must, in some substantial way alter the employee's compensation, te rm s , conditions, or privileges of employment, deprive him of employment opportunity, or a d v e rs e ly affect his status as an employee. Id. Such changes must be serious and material. Id . Accord, Butler v. Ala. Dep't of Transp., 536 F.3d 1209 (11th Cir. 2008); Hulsey v. Pride R e sta u r a n ts , LLC, 367 F.3d 1238, 1245 (11th Cir. 2004); Davis v. Town of Lake Park, Fla., 2 4 5 F.3d 1232 (11th Cir. 2001). Importantly, the employee's subjective view of the s ig n if ic a n ce and adversity of the employer's action is not controlling and the employment a c tio n must be materially adverse as viewed by a reasonable person in the circumstances. B u tle r, 536 F.3d at 1215. 24 13 p ara d igm . For this reason, the Court find that the Department's Motion for Summary J u d g m e n t is due to be GRANTED with respect to this race discrimination claim and the c la im is due to be DISMISSED. E. DISCRIMINATORY CONSTRUCTIVE DEMOTION CLAIM C ra yto n contends that the decision to transfer him from the position of Seed Program D ire c to r to the position of Genetically Modified Plants and Plant Products Director in July o f 2006 constituted race discrimination. Specifically, he characterizes this lateral transfer w h ic h he concedes did not change his rank, his salary, or his benefits, as a "constructive d e m o t io n ." The Department disagrees. A s previously explained, Title VII plaintiffs must be able to establish a prima facie c a se of discrimination in order to survive a properly supported motion for summary judgment b y an employer. Here, it is undisputed that Crayton is a member of a protected class, but the D e p a rtm e n t argues that his claim of race discrimination predicated on the transfer in July of 2 0 0 6 , fails because Crayton lacks sufficient evidence that he suffered an adverse employment a c tio n . An employment action must affect a term, condition or privilege of employment, and is not adverse merely because the employee dislikes it or disagrees with it. See, e.g., W id e m a n v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998); Otu v. Papa John's U S A , Inc., 400 F. Supp. 2d 1315, 1332 (N.D. Ga. 2005). When the Court considers the applicable legal standard it is compelled to conclude th a t the transfer was apples and apples, a lateral career move. Crayton received the same 25 s a la ry and the same benefits. He retained the same ranking and a title of identical im p o rta n c e . He had comparable duties. This lateral transfer with full retention of benefits c o u ld not reasonably be described as an adverse employment action. Whether an e m p lo ym e n t action is adverse is determined based on an objective standard. Doe v. Dekalb C o u n ty Sch. Dist., 145 F.3d 1441, 1448-53 (11th Cir. 1998). A lateral transfer that does not re s u lt in "lesser pay, responsibilities, or prestige" is not adverse. Id. Accord, Otu, 400 F. S u p p . 2d at 1333; Sonnier v. Computer Programs & Sys., Inc., 168 F. Supp. 2d 1322, (S.D. A la. 2001); Greene v. Loewenstein, Inc., 99 F. Supp. 2d 1373, 1381-84 (S.D. Fla. 2000). S im p ly put, Crayton has failed to produce sufficient evidence from which a reasonable jury c o u ld conclude that the reassignment to the Genetically Modified Plants and Plant Products D ire c to r with the same step, grade, and rate of pay and benefits was so intolerable that a re a so n a b le person could not have endured it and thus would have been forced to decline it. C o n s e q u e n tly, Crayton fails to establish a prima facie case of constructive demotion and fails to establish the requisite adverse employment action to allow this claim to survive the motion f o r summary judgment. For this reason, the Department's Motion for Summary Judgment is due to be GRANTED as to this claim. F. RETALIATION CLAIMS A t this point in the litigation, Crayton raises to events which he contends constitute a c tio n a b le retaliation against him in violation of Title VII: (1) his transfer in July of 2006 to th e position of Genetically Modified Plants and Plant Products Director and (2) an incident 26 in November of 2006 when his supervisor required him to enroll in an EAP. All other claims o f retaliation have been abandoned. T h e Department contends that Crayton failed to timely raise these claims, but that c o n te n tio n has already been rejected. The Department further contends that Crayton has f a ile d to establish a prima facie case with respect to these claims. It is this contention to w h ic h the Court will now turn its attention. "Title VII's anti-retaliation provision forbids employer actions that `discriminate ag ains t' an employee (or job applicant) because he has `opposed' a practice that Title VII f o rb id s or has `made a charge, testified, assisted, or participated in' a Title VII `investigation, p ro c e ed in g , or hearing.'" Burlington Northern & Santa Fe R.Y. Co. v. White, 548 U.S. 53, 5 9 (2006) (citing 42 U.S.C. 2000e-3(a)). The term "discriminate against" has been found to refer to "distinctions or differences in treatment that injure protected individuals." Id. at 5 9 -6 0 (collecting cases). Thus, to establish a prima facie case of retaliation forbidden by T itle VII, the plaintiff must normally show that: "(1) [he] participated in an activity protected b y Title VII; (2) [he] suffered an adverse employment action; and (3) there is a causal c o n n e ctio n between the participation in the protected activity and the adverse employment d e c is io n ." Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000) (setting forth p rim a facie elements). The Department admits that the first element of the prima facie case is established b e c a u se of Crayton's June of 2006 complaints of race discrimination to the ASEA and his 27 S e p te m b e r 27, 2006 Charge of Discrimination with the EEOC. The Department argues that i t is entitled to summary judgment because the actions about which Crayton complains do n o t constitute adverse employment actions and because Crayton has offered insufficient e v id e n c e of a causal connection between the protected conduct and the adverse employment d e c is io n . The Court finds that under the applicable legal standard, a reasonable jury could find t h a t either of the actions which Crayton contends constituted retaliation were adverse e m p lo ym e n t actions as the Supreme Court has defined that term for retaliation claims. Until 2 0 0 6 , the decisions of the Eleventh Circuit Court of Appeals addressing the degree of m a te ria l it y required for an event or act to constitute an adverse employment action in the c o n te x t of a retaliation claim required a similar degree of materiality as claims of d iscrim inatio n . However, in 2006, the United States Supreme Court changed this standard w h en it concluded that Title VII's substantive provision and its anti-retaliation provision are n o t coterminous. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 67. The S u p r e m e Court has held that in order to sustain a Title VII retaliation claim, an employee m u st show that "a reasonable employee would have found the challenged action materially a d v e rs e , which in this context means it well might have dissuaded a reasonable worker from m a k in g or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. W h ite , 548 U.S. at 67-68 (internal citations and quotations omitted). Thus, the protection p ro v id e d against retaliation is protection against employer actions that are likely to deter 28 v ic tim s of discrimination from complaining to the EEOC, rather than petty slights, minor a n n o ya n c e s , or a lack of good manners. Id. at 68. The Court notes that the Department's argument that the lateral transfer and the EAP re f erra l did not constitute adverse employment actions were based on cases prior to the S u p r e m e Court's clarification of this area of the law. While this is understandable given that th e re are cases under the old standard from within the Eleventh Circuit which involve similar c la im s and which conclude that such claims did not constitute adverse employment actions, it is not acceptable to fail to make arguments based on the current state of the law unless it is made clear to the Court that one is advocating for a change in the law. When the correct an d current legal standard is applied, the Court is compelled to find that both the involuntary late ra l transfer and the involuntary EAP referral are things that a reasonable jury could well f in d that a reasonable employee would have found materially adverse, which in this context m e a n s it well might have dissuaded a reasonable worker from making or supporting a charge o f discrimination. Accordingly, the motion for summary judgment is due to be DENIED to th e extent that it is predicated on a contention that the alleged acts of retaliation are not s u f f ic ie n t to constitute an actionable adverse employment action in the context of a retaliation c la im .1 4 The Court concedes that at least with respect to the EAP referral it may be that C ra yto n has failed to offer evidence that rises to the level of an adverse employment action e v e n under the Supreme Court's decision in Burlington Northern. See, e.g., Robinson v. F u lto n County, Ga., No. 1:05-cv-2250-RWS, 2008 WL 78711 at *13 (N.D. Ga. Jan. 4, 2008) (h o ld in g that requiring an employee to attend a mandatory EAP program, and other events 29 14 T h e Court finds sufficient evidence from which a reasonable jury could find that there e x is ts a causal connection between the adverse employment actions and Crayton's protected co n d u ct. "To establish a causal connection, a plaintiff must show that the decision-makers w e re aware of the protected conduct, and that the protected activity and the adverse action w e re not wholly unrelated." Gupta, 212 F.3d at 590 (internal citation & alteration omitted). " D is c rim in a tio n is about actual knowledge, and real intent, not constructive knowledge and a s s u m e d intent. When evaluating a charge of employment discrimination, then, we must f o c u s on the actual knowledge and actions of the decision-maker." Walker v. Prudential P r o p . & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002) (internal citations omitted). Crayton argues that the close temporal proximity between the protected conduct, n a m e ly his complaints to the ASEA and his first EEOC Charge of Discrimination, and the a lle g e d adverse employment actions against him, namely his lateral transfer and his referral to the EAP, constitutes sufficient circumstantial evidence that there is a causal connection b e tw e e n the participation in the protected activity and the adverse employment decision. In d e e d , close temporal proximity between the protected conduct and the adverse action can c o n s titu t e sufficient circumstantial evidence of causation in some, but not all, circumstances. S e e , e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citing a f f irm a tiv e ly several court of appeals decisions for the proposition that a three to four month did not rise to the level of an adverse employment action for a retaliation claim even under th e Burlington Northern test). 30 g a p is insufficient to establish the causal relation prong in a retaliation case); Wascura v. City o f South Miami, 257 F.3d 1238, 1244-45 (11th Cir. 2001) (While a close temporal proximity b e t w e e n two events may support a finding of a causal connection between those two events, th e three and one-half month period between plaintiff's protected conduct and the adverse e m p lo ym e n t action challenged does not, standing alone, establish a causal connection); Keel v . United States Dep't of Air Force, 256 F. Supp. 2d 1269, 1291 (M.D. Ala. 2003) (more than s e v e n month gap between protected conduct and allegedly retaliatory conduct was in s u f f ic ie n t as a matter of law to establish the causation element of the prima facie case of re ta lia tio n ). For the temporal proximity to suffice to establish the causal connection prong o f the prima facie case, the employers' discovery of the protected conduct must immediately p re c e d e the adverse action for the negative inference to attach. Id. More importantly for this c a se , "[i]n order to satisfy the `causal link' prong of a prima facie retaliation case, a plaintiff m u s t, at a minimum, generally establish that the defendant was actually aware of the p ro te c te d expression at the time the defendant took the adverse employment action." Raney v . Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997). Here, the Department is e n title d to summary judgment on the retaliation claims because Crayton has failed to provide th e Court with any evidence from which a reasonable jury could find that the Department w a s actually aware of Crayton's complaints of race discrimination to the ASEA before his late ra l transfer in July of 2006, nor has he provided any evidence from which a reasonable ju ry could find that the Department, and specifically his supervisor, was aware of his EEOC 31 C h a rg e of Discrimination before Crayton was referred to the EAP program which resulted in his being interviewed for an hour on one occasion by a mental health professional. For th is reason, the Court finds that Crayton has not proffered sufficient evidence in support of h is retaliation claims to create a triable issue of material fact or a question of law requiring tria l and summary judgment is due to be GRANTED in favor of the Department on the re ta lia tio n claims. Even assuming arguendo that Crayton had sufficiently shown the prima facie case of re ta lia tio n as to either the transfer or the EAP referral, the Court would still be compelled by la w to grant the Department's motion for summary judgment. The Department has offered le g itim a te non-retaliatory reasons for both these actions. Crayton has failed to offer any ev iden ce from which a reasonable jury could find that these non-retaliatory reasons are p re te x tu a l. Indeed, in his deposition testimony Crayton concedes the factual basis proffered b y the Department for these two decisions with respect to his employment. He concedes that h e had knowledge and expertise which made him qualified for the newly developed and im p o rta n t position of Genetically Modified Plants and Plant Products Program Director. He a ls o admits that this area is likely to continue to grow in importance over the years. He also a d m its that several of the events underlying the Department's stated reasons for asking him to contact the EAP program and be evaluated actually occurred. In addition to these c o n c es s io n s , Crayton offers nothing but suspicion and conjecture as to the "real" reasons for th e transfer and the EAP referral. He simply has insufficient evidence of these claims as a 32 m a tte r of law. For this additional reasons, the Department's Motion for Summary Judgment is due to be GRANTED as to Crayton's claims of retaliation. CONCLUSION F o r the foregoing reasons, it is hereby ORDERED as follows: (1 ) Crayton will only be allowed to seek damages or other relief as to claims set forth in the Pretrial Order (Doc. # 44). All other claims are DISMISSED by his failure to include them in the Pretrial Order (Doc. # 44). (2 ) To the extent that the Department's Motion for Summary Judgment (Doc. # 16) se e k s judgment as a matter of law on any claims Crayton has now abandoned by failing to in c lu d e them in his contentions in the Pretrial Order (Doc. # 44), that motion is DENIED as M O O T as to those claims. (3) The Department's Motion for Summary Judgment (Doc. # 16) is GRANTED as to all of Crayton's remaining claims of discrimination and retaliation, and all such claims are D IS M IS S E D WITH PREJUDICE. (4) A separate final judgment will be entered consistent with this Memorandum O p inion and Order. (5 ) Plaintiff's counsel is ADMONISHED that the quality of the legal brief (Doc. # 23) s u b m itte d in opposition to the Department's Motion for Summary Judgment is unacceptable. P lain tiff 's counsel should never again submit a brief to this Court which fails to cite to a p p lic a b le legal authorities and fails to properly cite the factual record. It is not the job of 33 th is Court to comb through the factual record to try to find facts that make any parties a r g u m e n t , nor it is the role of the Court to locate applicable legal precedent for arguments a d v a n c e d by the parties. D O N E this the 18th day of December, 2008. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 34

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