Webster v. Wynne et al

Filing 42

MEMORANDUM OPINION AND ORDER: 1. Defendants' 23 Motion for Summary Judgment is GRANTED; 2. The trial and the pretrial are CANCELLED; 3. A separate final judgment will be entered consistent with this Memorandum Opinion and Order. Signed by Hon. Chief Judge Mark E. Fuller on 12/28/2010. term: Final Pretrial Conference set for 01/07/2011; Jury Trial set for 01/31/2011(br, )

Webster v. Wynne et al

Doc. 42

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION P A T R IC IA Y. WEBSTER, P la in tif f , v. M IC H A E L W. WYNNE, et al., D e f e n d a n ts. ) ) ) ) ) ) ) )

C A S E NO. 2:08-cv-849-MEF (W O -D o Not Publish)

M E M O R A N D U M OPINION AND ORDER P a tric ia Webster ("Webster"), a civil employee of the United States Air Force (" U S A F " ) brings this case alleging employment discrimination against the Department of the A ir Force and Michael Wynne, as Secretary of the Department of the Air Force (collectively " D e f e n d a n ts " ). This cause is before the Court on the Defendants' Motion for Summary J u d g m e n t (Doc. # 23). The Court has carefully reviewed the 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. JURISDICTION 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.

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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 tr e 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)). The 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 c t." 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

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interrogatories, 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 c ts ." 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). F A C T U A L 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: I n 1999, Webster began working as a GS-1702-5 Education Technician at the C o m m u n ity College of the Air Force ("CCAF") in Montgomery, Alabama. The CCAF is an in s titu tio n that allows members of the USAF to obtain college degrees and to receive credit f ro m courses take at private universities and colleges. Webster is a Civil Service Retirement S ys te m ("CSRS") employee. Webster originally worked in the Admissions Division where she entered transcript

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information into CCAF records so students could be awarded credit for courses. By late 2 0 0 3 , Webster felt that she could no longer work for her supervisor in the Admissions D iv is io n , Willie Mae Johnson. Webster went to the Associate Registrar for CCAF, Teresa A m a tu z z i ("Amatuzzi") to complain that she could no longer work for her supervisor. At th a t time, CCAF was getting ready to implement a new system, the Singularity System, in th e Registrar Division that would change the way transcripts were processed. Knowing that W e b s te r had good computer skills, Amatuzzi asked Webster if she would be interested in a n e w position working with the Singularity System in a different location under a different s u p e rv is o r. Webster expressed her interest in the new position. Amatuzzi told Webster that th e position would be to personnel, but that it would probably be a higher pay grade. Webster also believed that it would be a different job classification than her current one. When Webster began working with the Singularity System in the Registrar Division, h e r first direct supervisor was Tech Sergeant Suzanne Herbert ("Herbert"). In approximately F e b ru a ry of 2005, Herbert left and Tech Sergeant Joel Derocher ("Derocher") became her d ire c t supervisor. Derocher was Webster's direct supervisor until 2006. Webster's second le v e l supervisor was initially Sergeant Milton Littlejohn ("Littlejohn") until October 2006 w h e n Amatuzzi assumed responsibility for being her second level supervisor. The CCAF Registrar submitted information to the 42nd Air Base Wing Civilian P e rs o n n e l Office ("Civilian Personnel") regarding the new position in which Webster was w o rk in g . Civil Personnel made a final determination and issued a job description for the

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position, called a Core Document. The new Core Document classified the position as a GS1 7 0 2 -0 5 Education Technician, but assigned it a duty title of Singularity Tech. Webster c o m p la in e d that the Core Document for her position was inaccurate and submitted proposed c h a n g e s . CCAF passed Webster's proposed changes to Civilian Personnel, but Civilian P e rs o n n e l rejected the proposed changes to a Core Document which it had so recently issued. In December of 2005, the Commandant of the CCAF told Webster there was nothing more C C A F could do, but told Webster that she could file a personal appeal with Civilian P e rs o n n e l. She chose not to pursue such an appeal. In February of 2006, Derocher sent an email out praising the efforts of Mranda Bivins (" B iv in s " ), one of Webster's African-American co-workers. Derocher credited Bivins with re d u c in g a backlog of transcripts. Bivins showed the email to Webster. Webster became u p s e t because she felt that she, not Bivins, deserved credit for this work. Webster called a m e e tin g of the entire Registrar Division, including her direct and indirect supervisors and her p e e rs . At this meeting, she expressed that Bivins had not performed all the indexing that D e ro c h e r had given her credit for and that Webster had actually been the person who indexed m o re than half of the transcripts. Thus, it was highly unusual for an employee of Webster's ra n k to convene such a meeting for the purpose of publicly complaining about an action ta k e n by her direct supervisor, namely the email he sent giving Bivins credit. Webster's a c tio n s upset Bivins. On May 24, 2006, Derocher met with Webster and issued her 2005-2006 Annual

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Appraisal. Webster admits she received the highest possible rating on nearly all of the f a c to rs , but she complains that she was unfairly given a score of eight out of a possible nine o n factor number four. Although an eight means "Far Above Fully Successful," Webster b e lie v e s she was due to be given a nine on factor four which evaluated her Working R e la tio n sh ip s . She concedes that Derocher included positive comments in the award ju s t i f i c a t i o n section of her review. Webster also admits that she received a performance a w a rd equal to 1.6% of her salary for this appraisal and twenty-four hours of annual leave, th e same amount of paid leave which she had been given for previous awards arising out of p e rf o rm a n c e appraisals. Moreover, Webster admits that when Derocher gave her this p e rf o rm a n c e evaluation he mentioned at least two reasons he felt this score was warranted.1 W e b ste r believes she has heard from some unknown source that scoring all nines on a performance evaluation can help an employee become eligible for early retirement. It is c le a r from her testimony on this point that Webster lacks personal knowledge concerning the f a c ts underlying her belief. The evidence before this Court from a person with actual k n o w le d g e on this subject is therefore undisputed. Full retirement for CSRS employees, in c lu d in g Webster, is based on a combination of the employee's age and years of Federal s e rv i c e . Retirement benefits are determined by years of Federal service and age of the

While Webster did not agree with Derocher's assessment of her performance, she a d m its he specifically referenced how she had upset Bivins and that he did not feel Webster re s p e c te d members of management. Moreover, it is undisputed that Webster had a history o f scores lower than nine on this particular performance factor which predates her working u n d e r Derocher and her EEO actions. 6

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employee when she retires. Appraisal scores have no bearing on these calculations. After receiving her May 2006 Appraisal, Webster sent Derocher an email asking him to change her evaluation and claiming that he had given her a score of only eight in Working R e la tio n sh ip s because she had tried to change her Core Document. Webster's email gave D e ro c h e r a less than forty-eight hour deadline for responding to her about whether he would b e changing her evaluation. Derocher responded that the rating was still in the "Superior" ra n g e and that it had nothing to do with her quest to raise her grade scale or change her Core D o c u m e n t. Derocher indicated that he valued her work and knowledge but that the score was b a s e d on her actual working relations and that he could not in good conscience raise the ra tin g . Webster also approached Derocher's supervisor, Littlejohn, about the rating on her a p p ra isa l. Littlejohn agreed with it and thought the overall Appraisal was excellent. In June of 2006, Webster contacted an EEO counselor to complain that she was being re ta lia te d against due to her attempt to change her Core Document. The EEO Specialist to w h o m Webster complained went over the types of complaints that could be filed with the E E O and what kind of phrasing to use in the complaint. After this, Webster filed a formal c o m p la in t with the EEO Specialist in which she alleged for the first time that Derocher, L ittle jo h n , and Amatuzzi discriminated against her on the basis of her race in giving her the s c o re of eight instead of nine on the Working Relationships factor of her May 2006 P e rf o rm a n c e Appraisal. In her deposition, Webster reiterated her belief that she received the ra tin g due to her race and to her voicing her opinion about her Core Document because there

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is, in her opinion, nothing to justify her having received that score otherwise. On August 21, 2006, Derocher issued Webster an Initial Progress Review for the 2 0 0 6 -2 0 0 7 appraisal period. An Initial Progress Review does not contain ratings and is d e s ig n e d to set forth management expectations and ratings criteria for the year. In the C ooperativ e /R e sp o n s iv e n e s s section, Derocher wrote that "Commander's calls and DRF calls a re not optional, although any social functions that follow are. Leave will not be granted for th e sole purpose of missing such appointments. I strongly urge you to support CCAF team m e m b e rs and especially those of DRF. Attending social functions is a good way to b u ild /m a in ta in working relations and morale. In the Organizational Skills section, Derocher w ro te "Do not spend unnecessary time looking for future employment or researching p e rs o n a l issues. You may conduct these ventures as long as it does not interfere with your p rim a ry duties." In the Communication section, Derocher wrote "Keep myself informed of a n y unique circumstances, production problems, negative trends, and system problems..." Finally, in the Additional Items section, Derocher wrote that "There seems to be a trend with s ic k leave taken on Friday, Monday, or following/preceding a long weekend (mainly calling in the morning of.) If this trend continues, you will be asked to provide doctor notes for any s ic k days past one business day. Management will monitor your absences closely over the n e x t three months. If the trend continues, the new policy will be put into effect. We u n d e rs ta n d you have medical issues; however, the timeliness is under question. Webster has no idea what happens to an Initial Progress Review once it is placed in

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her file. She cannot point to any lost pay or benefits based on the Initial Progress Review. She admits that none of her supervisors relied upon it to take any action. Nevertheless, on A u g u s t 23, 2006, Webster amended her pending informal EEO complaint to add a claim that th e August 21, 2006 Initial Progress Review was given to her in retaliation for her contacting a n EEO Counselor in June of 2006. On October 2, 2006, a statement verifying her two s p e c if ic claims presented in her EEO complaint were that her Appraisal was due to her race a n d that comments in her Initial Progress Review were retaliation. She also made a formal c o m p la in t presenting these claims. In late 2006, the CCAF Vice Commander asked management to review functional p r o c e s s e s within the CCAF to see if they could be made more efficient. As part of the e n s u in g reorganization, Amatuzzi decided that Webster's position should be moved from the R e g is tra r Division to the Admissions Division. According to Amatuzzi, she believed that f ro m a functional perspective, it made more sense to have Webster's position aligned with th e Education Technicians in Admissions Division. Additionally, she believed it made sense to move Webster's work station to the second floor where her new direct supervisor and the E d u c a tio n Technicians working in Admissions were located. On October 12, 2006, Webster w a s moved from her office downstairs to a new cubicle workstation upstairs. Webster

o p p o se d the move. She was not unhappy to be under Ford's supervision, but she did not see w h y she had to move to a cubicle on the second floor instead of staying in her first floor o f f ic e . After the move, she found her new work environment to be excessively noisy

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although others in the area disagree with this assessment. At the time of the move, Webster had three machines associated with her job duties: a template machine, a scanning machine, and a verification and testing machine. Each m a c h in e needed an internet port. Webster's assigned space on the second floor had only two in te rn e t ports. Consequently, the template machine could not be moved to Webster's new w o rk station until after a third internet port could be installed. It took several months for th a t installation to be completed. Webster did not use the template machine from the time h e r workstation was moved upstairs and the time when the template machine was moved u p s ta irs after the third internet port was installed. Webster admits that she did not use the te m p la te machine frequently. However, Webster states that the move caused her stress in p a rt due to the lack of ports and caused the quality of her work to suffer. After Webster moved into Ford's section, she learned that the Education Technicians in the Admissions Division who were working for Ford in September of 2006, had been g iv e n an award of eight hours of time off. Ford conceived of the idea of rewarding her s u b o rd in a te s for their hard work processing and graduating a record-breaking class. She a s k e d Amatuzzi, her direct supervisor, about the idea on September 15, 2006. Amatuzzi a p p ro v e d the request. Because Webster was not working for Ford in the Admissions D iv i s i o n or performing the work of Ford's employee during the time period for which the A d m i s s io n s Division employees were being rewarded, Ford did not think it would be a p p ro p ria te for her to give the time off award to Webster. After learning about the award,

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Webster asked Ford about it.

Ford told Webster she would talk to Webster's prior

s u p e rv is o rs . Derocher had not given any Registrar Division employee an award in relation to the October class even though many of them had worked hard on the class. When Ford a s k e d Derocher whether Webster should receive the award that was being given to the E d u c a tio n Technicians in the Admissions Division for work they had completed prior to W e b s te r's arrival, Derocher stated that he did not think so because Webster had not p e rf o rm e d the same work that Ford's employees had performed in closing out the class and th u s had not earned the award. He also stated that she had been absent during a critical time f o r the Registrar Division.2 A m a tu z z i, Webster's new second-level supervisor, often went to room 201 to discuss w o rk or other matters with Ford or other employees. Webster's new work station was lo c a te d in room 201, along with the work stations of other employees. On October 31, 2006, A m a tu z z i came into room 201 very loudly talking about how she had a counselor call about a foreign transcript but that she could not find the transcript because it was in a backlog. Webster does not believe that Amatuzzi had actually received a call from anyone about a tra n s c rip t. Instead, she believes that Amatuzzi just made these public statements to belittle h e r and to suggest that she had not done her job. On January 29, 2007, Webster filed a second formal EEO complaint. In that

The busiest time for the Registrar Division's dealings with the October class was th e end of August and in particular the last Friday of August. Webster was out sick on the la s t Friday in August. 11

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complaint, she alleged that the failure to give her the time off award in November 2006, the c h a n g e in her work station in October of 2006, and the actions of Amatuzzi on October 31, 2 0 0 6 , all constituted acts of retaliation by Derocher, Amatuzzi, and Littlejohn. On August 15, 2007, Webster filed a third formal EEO complaint. This time she c h a lle n g e d a memorandum placed in her personnel file and an eight she received in Working R e la tio n sh ip s in her 2007 Appraisal in May of 2007. She alleged that Amatuzzi took these a c tio n s against her to retaliate against her for her prior EEO complaints. The Air Force consolidated Webster's first two formal EEO complaints. She received a letter notifying her of the consolidation and of an investigation on those complaints. The c o n s o lid a te d complaints were set for a hearing before an Administrative Law Judge ("AL"). The issues presented in the consolidated complaints heard by the ALJ were: (1) Webster's ra tin g of a score lower than she earned on her 2006 Performance Appraisal constituted race d i s c r im in a tio n ; (2) failure to give Webster a time off award in November 2006 was re ta lia tio n ; (3) Amatuzzi's statements in front of co-workers on October 31, 2006 constituted re ta lia tio n ; (4) the October 12, 2006 move of her workstation to an inadequate location c o n s titu te d retaliation; and (5) her August 21, 2006 Civilian Progress Review constituted r e ta lia tio n . On February 22, 2008, Webster and the Air Force entered into a negotiated agreement s e ttlin g all possible claims Webster had as of that date except for those consolidated before th e ALJ. Webster admits that she understood that by entering into that settlement agreement

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she was waiving and releasing all her claims except for those consolidated for a hearing and lis te d above. In March of 2008, the ALJ held a hearing on the consolidated claims. The ALJ issued a decision finding no race discrimination and no retaliation. On August 8, 2008, the Air F o rc e adopted the ALJ's decision as its Final Agency Decision. On October 24, 2008, W e b s te r filed her Complaint in this Court. In her Complaint (Doc. # 1), Webster sets forth claims pursuant to 42 U.S.C. § 2000e, et seq. ("Title VII") and 42 U.S.C. § 1981. Specifically, Webster invokes the provisions of th e s e statutes which prohibit discrimination on the basis of race and retaliation for an e x e rc ise of protected conduct.3 Seeking declaratory relief, injunctive relief, and money d a m a g e s , Webster complains about a variety of instances which she claims constitute either ra c e discrimination or retaliation or both. She complains about: (1) her skill code

c la s s if ic a tio n ; (2) the change of her classification from Singularity Technician to Education T e c h n ic ia n ; (3) negative feedback from Derocher in June of 2006; (4) the relocation of her w o rk sta tio n ; (5) her rating on appraisal factor 4 in her May 2006 Performance Appraisal; (6) a written and verbal reprimand from Amatuzzi in May of 2007; (7) the denial of a time-off a w a rd in November of 2007; (8) denial of training opportunities; (9) denial of TDY training

The introductory paragraph also mentions 42 U.S.C. § 12112, which prohibits d is c rim in a tio n against qualified individuals on the basis of disability. The Court assumes th a t this citation was included in error as there are no facts alleged in the Complaint s u p p o rtin g such a claim and there have been no arguments or facts presented in conjunction to the summary judgment submissions with respect to such a claim. 13

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assignments; and (10) a memo for record placed in her personnel file by Amatuzzi for not a tte n d in g Commander Call. Webster has not amended her Complaint since initiating this la w s u it. DISCUSSION A . "Claims" of Sex Discrimination D e f e n d a n ts contend that the claims for sex discrimination mentioned in Plaintiff's M e m o ra n d u m in Response to Defendant's Motion for Summary Judgment (Doc. # 29) are n o t properly part of this lawsuit; the Court agrees. The Federal Rules of Civil Procedure re q u ire that a pleading that states a claim for relief must contain a short plain statement s h o w in g that the pleader is entitled to relief. Fed. R. Civ. P. 8. Recently, federal courts h a v e recognized a tightening of the liberal pleadings standards such that a complaint must c o n ta in sufficient factual matter to state a claim to relief that is plausible on its face. See, e .g ., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 5 5 0 U.S. 544, 555 (2007) and Papasan v. Allain, 478 U.S. 265, 286 (1986)) . As the S u p re m e Court has explained "a claim has facial plausibility when the plaintiff pleads factual c o n te n t that allows the court to draw the reasonable inference that the defendant is liable for th e misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. at 1949. Accord, Sinaltrainal v. CocaC o la Co., 578 F.3d 1252, 1268 (11th Cir. 2009). Moreover, if a plaintiff fails to plausibly a lle g e a claim in her complaint, she may not amend her complaint through argument made in opposition to a defendant's motion for summary judgment. See Gilmour v. Gates,

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McDonald & Co., 382 F.3d 1312, 1314 (11th Cir.2004) (per curiam) (liberal pleading s ta n d a rd does not allow plaintiff to raise a new claim at the summary judgment stage). A careful review of the Complaint (Doc. # 1) reveals no hint that Webster alleges d is c rim in a tio n or harassment on the basis of her sex. It simply cannot be said that Webster h a s plead factual content to allow this Court to draw any reasonable inference that D e f e n d a n ts are liable for sex discrimination or sexual harassment. It is axiomatic that the o m is s io n of such claims from the Complaint, precludes Webster from pursing them in this la w s u it by assertions made in her brief in opposition to Defendants' motion for summary ju d g m e n t. Thus, Defendants' motion for summary judgment is due to be GRANTED with re s p e c t to any claims for sex discrimination or sexual harassment. B. Claims Resolved by Negotiated Settlement D e f e n d a n ts contend that many of the claims presented in opposition to its motion for s u m m a r y judgment are in fact claims extinguished by an earlier negotiated settlement b e tw e e n Webster and the USAF. Indeed, in her deposition, Webster admitted that the only c la im s she was pursuing in this lawsuit were: (1) a claim that she was discriminated against o n the basis of her race when her supervisor gave her a lower than deserved elevation in M a rc h of 2006; (2) that she was retaliated against for prior EEO activity when she was not a w a r d e d time off in November of 2006; (3) that she was retaliated against for prior EEO a c tiv ity when Amatuzzi belittled her in front of co-workers by indicating she was not

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performing her duties;4 (4) that she was retaliated against for prior EEO activity when her w o rk station was moved to an inadequate location in October of 2006; and (5) that Derocher d is c rim in a te d against her on account of her race and retaliated against her for prior EEO a c tiv ity by giving her a negative Civil Progress Review in August of 2006. W e b ste r does not really acknowledge or respond to this contention in Defendant's M o tio n for Summary Judgment. Instead, her brief, like her Complaint, is riddled with re f e re n c e s to other claims and issues including claims and issues resolved by the negotiated s e ttle m e n t. The Court finds as a matter of law that the settlement agreement Webster and h e r counsel negotiated with the USAF bars all of her claims other than those listed in the p r e c e d i n g paragraph. See, e.g., Johnson v. Veneman, 569 F. Supp. 2d 148, 154 (D.D.C. 2 0 0 8 ) ; Perryman v. West, 949 F. Supp. 815, 822 (M.D. Ala. 1996). To the extent that D e f e n d a n ts seek judgment as a matter of law on all claims other than specifically reserved b y the settlement agreement as set forth elsewhere in this Memorandum Opinion and Order, th e Court finds their petition is well taken and due to be GRANTED. Accordingly, the c la im s set forth in paragraphs 13, 14, 18, 20, 21, and 22 of the Complaint are due to be D IS M IS S E D because they have been settled. C. Claim Regarding Amatuzzi Belittling Her on October 31, 2006 A lth o u g h it is clear from her deposition testimony that Webster believes that she is

While this complaint was included in the formal complaint heard by the ALJ, it is n o t alleged in any way in this Complaint which initiated this lawsuit. 16

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pursuing a claim in this lawsuit arising out of Amatuzzi's allegedly belittling statements on O c t o b e r 31, 2006, the Court finds no factual predicate for such a claim included in the C o m p la in t. The Court finds that Webster's failure to allege a factual predicate for this claim in her Complaint precludes her from litigating such a claim in this action. These facts cannot b e a basis for a claim or recovery against the Defendants as they were never properly in c lu d e d in this suit. Thus, Defendants' motion for summary judgment is due to be G R A N T E D with respect to any claims relating to Amatuzzi Belittling Her on October 31, 2006. D . Claim Regarding Race Discrimination on May 2006 Annual Performance Appraisal T itle VII prohibits an employer from discriminating "against any individual with re s p 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 ritic a 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). Under 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

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circumstantial evidence5 of the employer's intent, the Court applies some version of the 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 s e q u e n tly, the employer need only produce evidence that could allow a rational factf in d e r 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;

B e c a u s e Webster offers nothing which could conceivably be considered direct e v id e n c e or statistical evidence in support her discrimination claim, the Court will analyze th is motion for summary judgment under the circumstantial evidence paradigm. 18

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Combs 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 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." Davis, 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 c o 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) she was a member of a protected class; (2) she was qualified to do the job; (3) she was subjected to an adverse e m p lo ym e n t action by her 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

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dependent on the particular facts of a case. Id. Defendants contend that Webster fails to e s ta b lis h a prima facie case in two ways: (a) she was not subjected to an adverse employment a c tio n and (b) she has no evidence that similarly situated employees outside the protected c la s s were treated more favorably with respect to their Annual Performance Appraisal. T h e Court finds that Webster has failed to offer sufficient admissible evidence from w h ic h a reasonable jury could find that she has established a prima facie case with respect to this claim. Specifically, the Court finds no evidence that receiving a score of eight out of n in e on one factor of her Annual Performance Appraisal constituted an adverse employment a c t i o n6 at the hands of her employer. When the evidence is viewed in the light most f a v o ra b le to Webster, it simply does not constitute a event that, under the applicable law, is a c tio n a b le as a discrete act of discrimination. Furthermore, Webster has not proffered any e v id e n c e relating to comparators who she contends received more favorable treatment despite

In the Eleventh Circuit, an employee bringing a claim of discrimination must e s ta b lis h an adverse employment action by showing that an "ultimate employment decision" o c c u rre 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 her of employment opportunity, or a d v e rs e ly affect her 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 c e and adversity of the employer's action is not controlling and the employment a c t i o n must be materially adverse as viewed by a reasonable person in the circumstances. Butler, 536 F.3d at 1215. 20

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being sufficiently similarly situated to her to make them appropriate comparators under the a p p lic a b le legal paradigm. For this reason, the Court find that the Defendants' Motion for S u m m a ry Judgment is due to be GRANTED with respect to this race discrimination claim a n d the claim is due to be DISMISSED.7 E . Claim Regarding Retaliation on August 2006 Progress Review In addition to prohibiting race discrimination, Title VII also prohibits an employer f ro m retaliating against an employee for reporting discrimination. 42 U.S.C. §§ 2000e3(a).8 "Title VII's anti-retaliation provision forbids employer actions that `discriminate against' a n employee (or job applicant) because he has `opposed' a practice that Title VII forbids or h a s `made a charge, testified, assisted, or participated in' a Title VII `investigation, p ro c e e d 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

Alternatively, the Court finds that Defendants are entitled to summary judgment on th is claim because even assuming arguendo that Webster has established a prima facie case, s h e has utterly failed to offer evidence from which a reasonable fact-finder could decide that th e Defendants' proffered legitimate, non-discriminatory reasons for the score of eight were p re te x tu a l or that the real reason was race discrimination. 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 e d in g , or hearing under this subchapter."
8

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Title VII, the plaintiff must normally show that: "(1) she participated in an activity protected b y Title VII;9 (2) she suffered an adverse employment action; and (3) there is a causal c o n n e c tio 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 r im a facie elements). Until 2006, the decisions of the Eleventh Circuit Court of Appeals addressing the d e g re e of materiality required for an event or act to constitute an adverse employment action i n the context of a retaliation claim required a similar degree of materiality as claims of d is c rim in a tio n . However, in 2006, the United States Supreme Court changed this standard w h e n 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 re m e Court has held that in order to sustain a Title VII retaliation claim, an employee m u s t 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 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.

Defendants in no way dispute that Webster's formal and informal complaints to the E E O counselor constitute conduct protected by the anti-retaliation provision of Title VII. 22

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"To establish a causal connection, a plaintiff must show that the decision-makers were a w a re of the protected conduct, and that the protected activity and the adverse action were n o t 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 ro p . & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002) (internal citations omitted). Close temporal proximity between the protected conduct and the adverse action can c o n s titu te sufficient circumstantial evidence of causation in some, but not all, circumstances. See, 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 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 tw 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 23

precede the adverse action for the negative inference to attach. Id. More importantly for this c a s e , "[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). In the case, Webster's protected activities were her informal complaints to the EEO c o u n s e lo r and her formal EEO complaints. For purposes of this action, all of Webster's p ro te c te d activities occurred after June of 2006.1 0 Given the temporal proximity between this p ro te c te d conduct and the August 2006 Progress Review about which she complains, a re a s o n a b le factfinder might believe that the Progress Review was retaliatory if Webster had a n y evidence whatsoever that Derocher, the supervisor responsible for the Progress Review, h a d any knowledge of her protected conduct at the time he delivered the Progress Review. Unfortunately for Webster, the record is utterly devoid of any such evidence. It is her burden

This was the date of Webster's first informal complaint to the EEO Counselor. To th e extent that Webster appears at times to contend that her May 2006 Performance Appraisal s c o re of eight out of nine on one factor was not only race discrimination, but also retaliation, h e r contentions fail to persuade. Although the evidence before the Court suggests that her s u p e rv is o rs knew of her efforts to change her Core Document, there is no evidence that s u g g e s ts that these activities constitute the kind of conduct for which Title VII's antire ta lia tio n provision provides coverage. Additionally, the only claims relating to the May 2 0 0 6 Performance Appraisal reserved to Webster by her settlement agreement was that it c o n s titu te d race discrimination, not that it was retaliatory. For these reasons, the Court need n o t and will not discuss any events prior to the June 2006 Informal Complaint to the EEO c o u n s e lo r as possibly supporting a retaliation claim. 24

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at this point to do so.11 Defendants have not moved for summary judgment on this ground. T h e y elect instead to launch a barrage of other arguments aimed at other deficiencies in this c la im . Assuming arguendo that Derocher knew about Webster's informal complaint to the E E O counselor at the time he delivered the August 2006 Progress Review, a reasonable f a c tf in d e r could find that the causal relation prong of the prima facie case was met. Nevertheless, this claim fails because Webster has not shown that the August 2006 P ro g re s s Review, which suggested ways in which she could improve her performance and w h ic h was expressed in non-abusive terms, did not constitute a materially adverse action. See, e.g., Hawkins v. Potter, 316 Fed. Appx. 957, 962 (11th Cir. 2009); Cole v. Illinois, 5 6 2 F.3d 812, 816-17 (7th Cir. 2008); Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. 2 0 0 8 ); Ausby v. Florida, 624 F. Supp. 2d 153, 1364-65 (M.D. Fla. 2008). Absent evidence o f this element, this retaliation claim fails. In the alternative, the Court is satisfied that even if it were to assume arguendo that W e b s te r had established a prima facie case of retaliation with respect to this claim, D e f e n d a n ts would still be entitled to summary judgment. Defendants have offered a le g itim a te , non-retaliatory reason for the August 2006 Progress Review. Webster has failed to offer sufficient evidence that the non-retaliatory reason is pretextual. For this additional re a s o n , Defendants' motion for summary judgment on this claim is due to be GRANTED.

The only mention in Webster's brief in opposition to summary judgment of anyone h a v in g knowledge of her EEO complaints is an assertion that Amatuzzi's deposition te s tim o n y establishes that "Defendants" had knowledge of the EEO activity. This assertion f a ils to cite to the line and page of the deposition testimony to which Webster refers. Nevertheless, the Court read all lines and pages Webster submitted from Amatuzzi's d e p o s itio n and found absolutely no support for Webster's assertion on this point. 25

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F. Claim Regarding Retaliation Relating to November 2006 Time-Off Award Denial D e f e n d a n ts offer a variety of arguments in support of their motion for summary ju d g m e n t with respect to Webster's claim that she was denied a time off reward in November o f 2006. The Court finds that no reasonable factfinder could find for Webster on this claim e v e n if all the pertinent facts were found in her favor. Webster has simply pointed to no e v id e n c e whatsoever which calls into question the legitimate non-retaliatory reason for F o rd 's decision not to award Webster a time-off award given to her other subordinates which th o s e subordinates earned for work done prior to Webster's assignment to work in that d iv is io n . G. Claim Regarding Retaliation Relating to October 2006 Relocation of Workstation D e f e n d a n ts contend that they are entitled to summary judgment on this claim because W e b s te r did not timely exhaust her claim regarding the decision to relocate her workstation to the second floor in October of 2006. Title VII specifies the prerequisites that a plaintiff m u s t satisfy before filing a private civil action brought pursuant to Title VII. See National R .R . Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). For example, federal employees m u s t file an informal EEO complaint within forty-five days of any retaliatory discrete act in o rd e r to later challenge that act in a lawsuit. Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th C ir. 2008); 29 C.F.R. § 1614.105(a)(1). The central inquiry with respect to this claim then is whether Webster timely made an in f o rm a l EEO complaint after learning of the relocation of her workstation. It is undisputed

th a t on October 10, 2006, Webster received an email notification, along with other affected e m p lo ye e s and the union, that her workstation would be moved from room 109 to room 26

201.1 2 It is undisputed that Webster's workstation was moved on October 13, 2006, at the la te s t.1 3 It is also undisputed that Webster did not contact an EEO counselor regarding the c h a n g e in her workstation until December 14, 2006. It is clear on these facts that Webster f a ile d to make a timely informal EEO complaint with respect to the relocation of her w o rk sta tio n . Consequently, she may not pursue this claim in this action, and Defendants are e n title d to judgment as a matter of law on it. H. 42 U.S.C. § 1981 Claims D e f e n d a n ts contend that this Court should dismiss Webster's claims pursuant to § 1 9 8 1 because Title VII is the exclusive remedy for federal employees. The Court agrees. See Brown v. General Servs. Admin., 425 U.S. 820, 835 (1976). Accordingly, Webster's c la im s pursuant to 42 U.S.C. § 1981 are due to be DISMISSED. I . Claims Against the Department of the Air Force D e f e n d a n ts contend that all claims against the Department of the Air Force are due to be dismissed as it is not a proper party to this suit. The Court agrees. See Canino v. United States Equal Emp't Opportunity Comm'n, 707 F.2d 468, 469-72 (11th Cir. 1983). The head of the federal governmental agency involved in alleged employment discrimination is the only appropriate defendant in a Title VII action brought by a federal employee who a lle g e s employment discrimination. Accordingly, Webster's claims against the Department o f the Air Force are due to be DISMISSED.

According to her deposition testimony, she first learned of the plan to move her w o rk sta tio n upstairs from Amatuzzi in August of 2006. The paperwork indicates it would occur October 10 to October 13, but Webster re m e m b e rs it occurring sometime earlier than that. 27
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CONCLUSION F o r the foregoing reasons, it is hereby ORDERED as follows: 1 . Defendants' Motion for Summary Judgment (Doc. # 23) is GRANTED. 2 . The trial and the pretrial are CANCELLED. 3 . A separate final judgment will be entered consistent with this Memorandum O p in io n and Order. DONE this the 28th day of December, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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