Perkins v. Holder

Filing 63

MEMORANDUM OPINION AND ORDER - For the reasons discussed above, the Court DENIES the Attorney Generals motion for summary judgment. Signed by Judge Madeline Hughes Haikala on 3/4/2016. (KEK)

FILED
2016 Mar-04 AM 11:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSEPH D. PERKINS,
PLAINTIFF,
v.
LORETTA E. LYNCH.,
DEFENDANT.

)
)
)
)
)
)
)
)
)

CASE NO.: 2:11-CV-03679-MHH

MEMORANDUM OPINION AND ORDER
Plaintiff Joseph D. Perkins initiated this employment action against
defendant Loretta E. Lynch in her official capacity as the Attorney General of the
United States for alleged retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). (Doc. 1).1 This Court previously
dismissed Counts I-V of Mr. Perkins’s complaint. The only claim remaining in
this action is Mr. Perkins’s claim of retaliatory hostile work environment. (See
Docs. 14, 15 & 16). The Attorney General seeks summary judgment on this
remaining claim. (Doc. 56). In support of the motion, the Attorney General argues
that Mr. Perkins cannot prove his retaliatory hostile work environment claim
because all of the alleged retaliatory acts occurred after Mr. Perkins’s protected
1

Mr. Perkins named Attorney General Eric H. Holder, Jr. in his official capacity as the defendant
in this action. (Doc. 1). This Court substitutes Attorney General Loretta E. Lynch as defendant
for former Attorney General Eric H. Holder, Jr.

activity. (Doc. 47, pp. 12-13). The Attorney General also argues Mr. Perkins
cannot establish his claim because the alleged retaliatory acts are not severe or
pervasive enough to amount to a hostile work environment. (Doc. 57, pp. 13-15).
For the reasons discussed below, the Attorney General has not carried his initial
burden of persuasion. Therefore, the Court will deny his motion for summary
judgment.
I.

Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment
bears the initial burden of persuading a court that there are no genuine issues of
material fact for a factfinder (usually a jury) to decide. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). If the moving party meets its burden, then the burden
shifts to the nonmoving party to “go beyond the pleadings” to establish a genuine
issue for trial. Id. at 324. If the moving party does not meet its initial burden, then
the Court must deny the motion for summary judgment. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (“If the party moving for summary
judgment fails to discharge the initial burden, then the motion must be denied and
the court need not consider what, if any, showing the nonmovant has made.”)
(citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)).
2

When considering a summary judgment motion, the Court must view the
evidence in the record in the light most favorable to the non-moving party. E.g.,
Hill v. Wal-Mart Stores, Inc., 510 Fed. Appx. 810, 813 (11th Cir. 2013). “The
court need consider only the cited materials, but it may consider other materials in
the record.” Fed. R. Civ. P. 56(c)(3).
II.

Relevant Undisputed Facts and Procedural Background2
Mr. Perkins is a retired Special Agent (“SA”) of the Federal Bureau of

Investigation.

(Doc. 58-1, p. 10; Doc. 57, p. 1).

He was assigned to the

Birmingham Division’s Gadsden Resident Agency (“GRA”) from 1996 until his
retirement from the FBI. (Doc. 58-1, pp. 10-11; Doc. 57, p. 1).
In January 2007, SA Perkins and SA Danny Lee Garnett, who also was
assigned to the GRA, met with Carmen Adams, the Special Agent in Charge
(“SAC”) of the Birmingham Division of the FBI, and Keith D. Bryars, the
Assistant Special Agent in Charge (“ASAC”) of the Birmingham Division. (Doc.
58-1, pp. 20, 56; Doc. 60-3, p. 2; Doc. 62-1, p. 3). At the meeting, SA Perkins and
SA Garnett reported issues concerning Supervisory Special Agent (“SSA”) John
Bacot, the agent who was supervising the work of FBI agents in Gadsden. (Doc.
58-1, pp. 20, 56; Doc. 62-1, p. 3). ASAC Bryars described the meeting this way:

2

To the extent any factual inferences are drawn, they are drawn in favor of Mr. Perkins, the nonmovant.

3

Danny Garnett and Dave Perkins, two Special Agents (SA) assigned
to the FBI Gadsden Resident Agency (GRA), came to the
Birmingham Division Headquarters in early 2007 and spoke with
[SAC] Adams and myself. . . . They [] complained about the
management practices of then SSA John Bacot, an African-American.
They said Bacot provided preferential treatment to Ed Sims, another
African-American SA also assigned to GRA, when SSA Bacot
accompanied SA Sims on an interview of a source.
(Doc. 60-3, p. 2). During the meeting, SAC Adams told SA Perkins and SA
Garnett they would never win a reverse discrimination lawsuit. (Doc. 59-1, p. 22).3
Shortly after the meeting, SAC Adams and ASAC Bryars began accusing SA
Perkins and other agents in the GRA of conducting unauthorized investigations and
illegally accessing computers. (Doc. 59-1, p. 92; Doc. 62-1, p. 3).
On January 10, 2007, SAC Adams sent an e-mail to the Birmingham
Division stating that SSA Bacot was returning to FBI Headquarters to take
advantage of a career enhancing opportunity. (Doc. 58-1, pp. 22-23; Doc. 1, ¶ 23).
As a result, the agents at the GRA were placed under the supervision of ASAC
Bryars. (Doc. 58-1, p. 31). That same day, SA Perkins met with several other
agents from the GRA to discuss SAC Adams’s and ASAC Bryars’s response to the
complaints about SSA Bacot. (Doc. 58-1, pp. 35, 53, 54, 58). The agents placed a
3

SA Perkins states in his complaint that he did not mention race in this conversation. (Doc. 1, ¶
21). However, in his sworn statement, SA Perkins asserts that “SA Garnett and I made known to
Birmingham management, specifically Special Agent in Charge Carmen Adams and Assistant
Special Agent in Charge D. Keith Bryars, that SSA John Bacot, an African-American, was
exercising preferential treatment towards SA Ed Sims, another African-American . . . .” (Doc.
62-1, p. 3). Because SA Perkins’s complaint is not verified, the Court accepts Mr. Perkins’s
sworn statement for purposes of the defendant’s motion and views that statement in the light
most favorable to SA Perkins.

4

call to Equal Employment Opportunity (EEO) Counselor Lorenza Moore to
express concerns. (Doc. 58-1, pp. 53, 60). Later that day, Mr. Moore met with the
agents in person. (Doc. 58-1, p. 54). The agents informed Mr. Moore that they
wanted to file an EEO complaint. (Doc. 58-1, p. 35). However, after the agreedupon 30-day cooling off period, the agents did not file a complaint. (Doc. 58-1, p.
35).
Beginning on January 17, 2007, SAC Adams sent SA Kevin Kelley to
provide local supervision for the agents at the GRA. (Doc. 62-1, pp. 3-4). Until
SA Kelley arrived in Gadsden, the GRA had been operated out of the Birmingham
Office and had never had direct supervision. (Doc. 58-1, pp. 31-32). Beginning in
September 2007, Supervisory Senior Resident Agent (“SSRA”) Robert F. Lasky
became the direct supervisor of the GRA.

(Doc. 62-1, p. 5).

SSRA Lasky

commented openly that senior management in Birmingham did not like SA
Perkins. (Id., p. 5). On several occasions in January 2008, SSRA Lasky told SA
Perkins and at least two other agents at the GRA that they had “targets” on them
from management. (Doc. 58-1, p. 37; Doc. 60-2, p. 1; Doc. 62-1, p. 5). Shortly
after SSRA Lasky made the comments about the agents having targets on them, he
told SA Perkins and SA Garnett they “could retire any time . . . before anything
could be done to [them].” (Doc. 58-1, pp. 42-43).

5

SA Perkins did not receive a quality step increase award in 2008, and SSRA
Lasky did not nominate him for the award.4 (Doc. 60-2, pp. 1-3; Doc. 62-1, p. 7).
However, SA Perkins admits that (1) a FBI employee must receive an
“outstanding” rating on his or her Performance Appraisal Report (PAR) for the
prior fiscal year to be recommended to a quality step increase, and (2) he did not
receive an “outstanding” rating on his 2007 PAR. (Doc. 61-1, p. 1).5
Beginning in April 2008, SSRA Lasky began changing SA Perkins’s work
assignments frequently. (Doc. 58-1, p. 43; Doc. 62-1, pp. 7-8). SA Perkins
contends that he and SA Garnett were the only agents in the GRA whose
responsibilities were in constant flux (Doc. 62-1, p. 8); the other five agents in the
office were able to maintain their assignments. (Doc. 58-1, p. 44). Additionally,
there were instances in which SA Perkins was not allowed to work on cases to
which he was assigned. (Doc. 58-1, p. 46; Doc. 62-1, pp. 8-9).
In 2008, FBI Headquarters directed the Birmingham office to send a special
agent to the FBI Academy in Quantico, Virginia for a temporary duty (“TDY”)
assignment to serve as a class counselor for new agents. (Doc. 60-1, p. 2). The

4

According to FBI policy, quality step increase awards “are intended to recognize ‘exemplary
employees whose sustained, high-quality performance is at a level that substantially exceeds an
acceptable level of competence’ and such awards are limited to only six percent of eligible []
employees on an annual basis.” (Doc. 8-3, p. 3) (citation omitted).
5

SA Perkins has not challenged his 2007 PAR in this action, but during his January 2007
meeting with FBI management, “SA Perkins advised [SAC Adams and ASAC Bryars] he was
being ‘represented’ by SA Garnett in his PAR grievance.” (Doc. 60-3, p.2).

6

Acting Special Agent in Charge, Charles Regan, was responsible for selecting an
agent for the FBI Academy assignment. (Id., p. 2). The Birmingham office of the
FBI selects agents to fill TDY assignments from a particular squad based on a
rotation list so that the responsibility for filling TDY assignments does not always
fall to one squad. (Id., p. 3). Based on the rotation list, SAC Regan had to choose
an agent from the GRA for the TDY Assignment to Quantico. (Id.).
In a signed sworn statement, SAC Regan asserts that the agents in the GRA
were canvassed about the assignment, but no one volunteered. (Id.). SAC Regan
considered the qualifications and responsibilities of the agents in Gadsden and
determined that SA Perkins was the most logical choice for the assignment. (Id., p.
4). SAC Regan also wrote the names of the GRA agents on a piece of paper, cut
the paper into strips, and placed the strips into a hat. (Id., p. 5). At SAC Regan’s
direction, Acting ASAC Greg Bowden pulled a strip of paper from the hat; he
selected SA Perkins’s name. (Id., p. 5). SAC Regan states that “[e]ven if SA
Perkins[’s] name had not been selected I would have had to re-evaluate the
decision to send someone else other than SA Perkins.” (Id., p. 5).
The evidence regarding the TDY assignment is disputed. SAC Regan states
that “[b]oth Acting ASAC Bowen and SSRA Lasky agreed that SA Perkins was
the most logical choice.” (Doc. 60-1, p. 4). However, in SSRA Lasky’s sworn
statement, he says, “I did not think Perkins was the best selection as he is very
7

quiet and was assigned to an important public corruption investigation.” (Doc. 602, pp. 5-6).
In October 2008, SA Perkins contacted EEO Coordinator Moore and filed an
EEO complaint against the FBI. In his complaint, SA Perkins contends that the
FBI discriminated against him in reprisal for his complaint about SSA Bacot.
(Doc. 8-1, pp. 1-2; Doc. 58-1, pp. 21, 52). On January 28, 2009, SA Perkins
received written notification that five issues regarding his EEO complaint were
accepted for investigation. (Doc. 8-2, pp. 1-2). On July 27, 2011, the Equal
Employment Opportunity Commission issued its decision finding SA Perkins “was
not retaliated against and/or subjected to retaliatory harassment . . . .” (Doc. 8-3, p.
15). On October 19, 2011, SA Perkins filed this federal court action against thenAttorney General Eric H. Holder, Jr. (Doc. 1). SA Perkins asserts various claims
under Title VII and § 1983. (Id.).
The Attorney General filed a motion to dismiss, and this Court dismissed all
of SA Perkins’s claims other than his retaliatory hostile work environment claim.
(Docs. 7, 14, 15 & 16). The Attorney General now seeks summary judgment on
this remaining claim. (Doc. 56).
III.

Analysis
Title VII of the Civil Rights Act prohibits employers, including government

employers, from discriminating in the workplace on the basis of a person’s “race,

8

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Title VII also
prohibits employers from retaliating against an employee “because he has opposed
any practice made an unlawful employment practice by [Title VII], or because he
has made a charge, [] assisted, or participated in any manner in an
investigation . . . under [Title VII].” 42 U.S.C. § 2000e-3(a).

“To establish a

prima facie case of retaliation under Title VII, ‘[SA Perkins] must show (1) that
[]he engaged in statutorily protected expression; (2) that []he suffered an adverse
employment action; and (3) that there is some causal relation between the two
events.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).
With respect to the second element of a prima facie case of retaliation, SA
Perkins contends that the hostile environment in which he worked constitutes an
adverse employment action. The Eleventh Circuit “recognizes a cause of action
for retaliatory hostile work environment.” Gowski v. Peake, 682 F.3d 1299, 1312
(11th Cir. 2012). To rise to the level of an adverse employment action, the
retaliatory harassment SA Perkins suffered must be “sufficiently severe or
pervasive to alter the terms and conditions of employment.” Id.
The Attorney General argues SA Perkins cannot establish his retaliatory
hostile work environment claim because his protected activity took place after the
alleged retaliatory acts. Alternatively, the Attorney General argues the alleged
retaliatory activity was not severe or pervasive enough to alter the terms and
9

conditions of SA Perkins’s employment.

The Court addresses each of those

arguments in turn.
A.

SA Perkins’s Protected Activity

“A prima facie case of retaliatory hostile work environment, like a prima
facie case of retaliation generally, requires the establishment of protected activity.”
Wheatfall v. Bd. of Regents of Univ. Sys. of Ga., 9 F. Supp. 3d 1342, 1359 (N.D.
Ga. 2014) (citing Gowski, 682 F.3d at 1311).
includes

“voicing

supervisors . . . .” Id.

complaints

of

Statutorily protected activity

discrimination

to

[an

employee’s]

However, “to engage in protected activity, the employee

must [], at the very least, communicate [his] belief that discrimination is occurring
to the employer . . . .”

Demers v. Adams Homes of Northwest Florida, Inc., 321

Fed. Appx. 847, 852 (11th Cir. 2009) (citation and internal quotation marks
omitted). The employee “cannot rely on the employer to infer that discrimination
has occurred.” Id.
It is only logical that a plaintiff’s protected activity must take place before
the alleged retaliatory actions; otherwise, the plaintiff cannot demonstrate a causal
link between the protected activity and the alleged retaliation. See Holifield v.
Reno, 115 F.3d 1555, 1566 (11th Cir. 1997) (“The plaintiff must at least establish
that the employer was actually aware of the protected expression at the time the
employer took adverse employment action against the plaintiff.”) (citations
10

omitted). The Attorney General argues SA Perkins’s claim fails as a matter of law
because there was only one protected expression—the October 2008 EEO
complaint—and that communication occurred after the alleged retaliatory conduct.
(See Doc. 57, pp. 2, 5, 12-13; Doc. 62, pp. 1, 5-6, 8). The Court is not persuaded.
The Attorney General bases her argument concerning the timing of the
protected expression on the magistrate judge’s Report and Recommendation
regarding the Attorney General’s motion to dismiss. (Doc. 62, p. 6). Indeed, in his
Report and Recommendation, the magistrate judge stated that SA Perkins’s
January 2007 meetings with FBI management and the EEO counselor were not
protected activities. (Doc. 14, pp. 37-38). However, when he wrote his Report and
Recommendation on the motion to dismiss, the magistrate judge did not have the
benefit of the Rule 56 record; the magistrate judge relied solely on the allegations
in the complaint. At this stage in the litigation, the Court must consider evidence
in the Rule 56 record to evaluate the Attorney General’s motion for summary
judgment, and the Court is not limited to the allegations in the complaint.
The evidence in the summary judgment record, viewed in the light most
favorable to SA Perkins, indicates that SA Perkins engaged in protected activity
well before October 2008.

During the January 2007 meeting with FBI SAC

Adams and ASAC Bryars, SA Perkins complained about SSA Bacot’s alleged
preferential treatment of African-Americans.
11

(Doc. 62-1, p. 3).

In a sworn

statement, ASAC Bryars asserted that during the January 2007 meeting, SA
Perkins and SA Garnett complained that “SSA Bacot, [an African American,]
provided preferential treatment to Ed Sims, another African-American SA also
assigned to GRA . . . .” (Doc. 60-3, p. 2).6 These communications constitute
protected activity. See Shannon, 292 F.3d at 715 n. 2. Because Title VII protects
informal complaints like these, and these complaints preceded the defendant’s
alleged retaliatory activity, the Attorney General is not entitled to summary
judgment on the grounds that the protected activity occurred after the alleged
retaliatory acts.
B.

Severe or Pervasive Harassment

When determining if retaliatory harassment alters the terms and conditions
of employment, courts employ the analysis used in other hostile work environment
actions. Gowski, 682 F.3d at 1312 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993), and Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir.
2002)); Swindle v. Jefferson County Comm’n, 593 Fed. Appx. 919, 928-29 (11th
Cir. 2014) (citations omitted).

Accordingly, to determine if the retaliatory

harassment constitutes an adverse employment action, courts consider: “(1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct
is physically threatening or humiliating, or a mere offensive utterance; and
6

In his deposition, SA Perkins testified that during the 2007 meeting, SAC Adams stated that
SA Perkins “would never win a reverse discrimination lawsuit . . . .” (Doc. 59-1, p. 22).

12

(4) whether the conduct unreasonably interferes with the employee’s job
performance.”

Mendoza v. Borden, 195 F.3d 1238, 1246 (11th Cir. 1999)

(citations omitted). The Attorney General argues SA Perkins’s claim fails because
the alleged retaliatory acts were not severe or pervasive enough to alter the terms
of his employment, and therefore, he cannot show he suffered a hostile work
environment. (See Doc. 57, pp. 13-15). Again, the Court is not persuaded.
The Attorney General’s argument is premised on her contention that SA
Perkins’s September 2008 TDY assignment to Quantico is the only retaliatory act
the Court may consider because it is the only act that occurred during the forty-five
days preceding SA Perkins’s October 2, 2008 contact with an EEO counselor.
(Doc. 57, pp. 12-13; Doc. 62, p. 8).7 For purposes of a hostile work environment
analysis, however, a court is not limited to considering only those actions that
occurred within a 45-day period preceding a plaintiff’s first contact with an EEO
counselor. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).
A retaliatory hostile work environment claim is not based on a single
discrete act of retaliation, but instead “is composed of a series of separate acts that
collectively constitute one ‘unlawful employment practice.’” See Id. (quoting 42
7

In a portion of his brief copied directly from the magistrate judge’s Report and
Recommendation, SA Perkins also contends that his TDY transfer to Quantico is the only
alleged retaliation which should be considered. (See Doc. 61, pp. 5-6; see also Doc. 14, p. 34).
However, the Court does not need to address or consider SA Perkins’s arguments in opposition
to summary judgment unless the Attorney General first carries her burden of proof. See Celotex
Corp., 477 U.S. at 323; Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010);
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993).

13

U.S.C. § 2000e-5(e)(1)); Gowski, 682 F.3d at 1312-13. If one of the actions that
allegedly contributed to a hostile work environment was timely reported, then “the
entire time period of the hostile environment may be considered by a court for the
purposes of determining liability.” Nat’l R.R. Passenger Corp., 536 U.S. at 117.
Here, the record establishes that at least one of the actions contributing to SA
Perkins’s alleged hostile work environment—his 2008 TDY assignment to
Quantico—was timely reported to an EEO counselor. (See Doc. 8-1, pp. 1, 3).
Therefore, the Court may consider the other retaliatory conduct that SA Perkins
describes.
The Attorney General asserts that even if the Court considers all of the
alleged retaliatory actions, those actions still are not severe or pervasive enough to
alter the terms of SA Perkins’s employment. (Doc. 57, p. 14). Specifically, the
Attorney General argues SA Perkins “was not subject to any disciplinary actions,
was not demoted, did not lose pay, did not receive a poor performance review, was
not reassigned to a different position or location, and did not endure any
objectively threatening behavior.” (Doc. 57, p. 14). The actions that the Attorney
General enumerates are not an exhaustive list of the types of actions that can create
a hostile work environment. Indeed, the Eleventh Circuit has held that a hostile
work environment may exist when none of the actions listed by the Attorney

14

General occurred. See Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798,
803-06, 813-14 (11th Cir. 2010).
Additionally, the Attorney General did not address any of the factors courts
consider in determining if the alleged harassment was severe or pervasive enough
to alter the terms and conditions of a plaintiff’s employment. Mendoza, 195 F.3d
at 1246 (listing the factors courts consider to determine if harassment is severe or
pervasive enough to alter the terms and conditions of a plaintiff’s employment).
Although the Attorney General argues the reasons provided by FBI management
for the alleged retaliatory activity establishes that the alleged harassment was not
severe or pervasive enough to alter the terms of SA Perkins’s employment, the
reasons offered for the activity do not go to the severe or pervasive element of the
retaliatory hostile work environment claim. As a result, the Attorney General did
not meet her burden of showing an absence of a genuine issue of material fact with
respect to the severity or pervasiveness of alleged retaliatory acts. The Attorney
General is not entitled to summary judgment based on the grounds argued in her
brief.
Because the Attorney General did not meet her initial burden to establish the
absence of a genuine issue of material fact that would entitle her to judgment as a
matter of law, the Court need not and does not discuss SA Perkins’s opposition

15

brief, which is largely copied from the magistrate judge’s Report and
Recommendation. (Compare Doc. 14, with Doc. 61).
IV.

Conclusion

For the reasons discussed above, the Court DENIES the Attorney General’s
motion for summary judgment.
DONE and ORDERED this March 4, 2016.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

16