Ingram v. Secretary of the Army
Filing
34
ORDER granting 27 Motion for summary judgment. The Clerk is DIRECTED to enter judgment in favor of Defendant Secretary of the Army and against Plaintiff Harroll Ingram on Plaintiff's discrimination and retaliation claims set forth in the Complaint. (Doc. 1, 26-46). The Clerk is also DIRECTED to terminate all pending deadlines, and to close the file. (ZRR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HARROLL INGRAM,
Plaintiff,
v.
Case No. 6:16-cv-150-Orl-37TBS
SECRETARY OF THE ARMY,
Defendant.
_____________________________________
ORDER
Plaintiff Harroll Ingram, a tenured employee of the United States Army, sues the
Secretary of the Army under Title VII of the Civil Rights Act of 1964 (“Title VII”) on
theories of race discrimination, hostile work environment, and retaliation. (Doc. 1.) He
asserts that his Caucasian supervisors discriminated against him because he is
African-American by reassigning him from a lead engineering position after he
complained of a conflict with a Caucasian coworker. Arguing that it is entitled to
judgment as a matter of law on Plaintiff’s claims, Defendant moved for summary
judgment on June 2, 2017. (Doc. 27 (“Motion”).) For the following reasons, the Court
finds that the Motion is due to be granted.
I.
BACKGROUND 1
In 2003, Plaintiff began working as a computer systems engineer for Defendant’s
In resolving the Motion, the Court views all record evidence and reasonable
inferences in the light most favorable to the nonmovant—Plaintiff Harroll Ingram. See
Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006).
1
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Program Executive Office for Simulation Training and Instrumentation (“PEO STRI”),
which was responsible for implementing a number of gunnery-related training programs
for the Army’s combat vehicles—Abrams, Stryker, and Bradley. (Doc. 27-1, p. 4, 15; see
also Doc. 28-3, p. 31.) Plaintiff worked in PEO STRI’s Ground Combat Tactical Trainers
(“GCTT”) Division, which was comprised of integrated product teams, or a group of
government employees and contractors assigned to different job duties that work toward
a common goal. (Doc. 28-3, p. 31.) The basis for Plaintiff’s suit concerns his conflict-laden
time working on one particular team that ultimately led to his reassignment on
December 10, 2010. (See Doc. 1, ¶¶ 26–46.)
A.
Assignment to the Bradley Gunnery Team
On January 27, 2010, John Collins (“Mr. Collins”), Plaintiff’s direct supervisor,
informed Plaintiff that he was being reassigned to replace a peer, Ray Courech
(“Mr. Courech”), as lead engineer on the Bradley Gunnery Team. 2 (Doc. 27-3, p. 62.) The
Bradley Gunnery Team worked on three projects—the Bradley Advanced Training
Systems (“BATS”), the Conduct of Fire Trainer-Enhanced (“COFT-E”), and the Conduct
of Fire Trainer-Situational Awareness (“COFT-SA”). (Doc. 27-1, p. 14; Doc. 28-3, p. 41.)
On the Bradley Gunnery Team, Plaintiff began serving as lead engineer and test
director on the BATS and COFT-E Projects. (Doc. 27-1, p. 15.) As lead engineer, Plaintiff
reviewed the work other systems engineers concerning technical aspects of a particular
project, such as software or hardware. (Id.; see also Doc. 27-4, pp. 9–10.) As test director,
2
Plaintiff testified that Mr. Courech is Caucasian. (Doc. 27-1, p. 14.)
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Plaintiff primarily controlled and directed test team efforts, coordinated test schedule
changes, ensured availability of contractor support, maintained logs, identified and
categorized deficiencies, interpreted contract requirements, and resolved test team
conflicts. (Doc. 27-3, p. 88.)
B.
Conflict with Robert Briar
According to Plaintiff, on April 5, 2010, he received an unsolicited email from a
team member, Robert Briar (“Mr. Briar”), informing Plaintiff that he was not going to
allow Plaintiff to prevent him from doing his job the way Mr. Courech—the team’s
former lead engineer—had done. (Doc. 27-1, pp. 13–14, 17.) Mr. Briar, who is Caucasian,
served as a support contractor, acting as a logistician and a subject matter expert (“SME”)
on the Bradley Gunnery Team. (Doc. 27-5, pp, 5, 7, 8.) Given Mr. Briar’s military service
operating Bradley fighting vehicles and his certification as a Bradley master gunner, he
was uniquely qualified to act as SME. (Id. at 5, 20–21, 24.)
Problems between Plaintiff and Mr. Briar worsened over the course of 2010. The
first example concerned a dispute about a trip to Fort Sill in connection with a developing
project called the Bradley Fire Support Team (“BFIST”). (Doc. 27-1, p. 18.) On May 6,
2010, Mr. Briar emailed Plaintiff and Chris Dunlap (“Mr. Dunlap”), the project director
for the existing Bradley Projects, expressing concern that the Fort Sill trip would likely
delay BATS testing at another military installation. (Doc. 27-3, p. 68.) Based on Mr. Briar’s
concerns, Mr. Dunlap cancelled the trip to Fort Sill. (Id.) In response, Plaintiff emailed
Mr. Dunlap and Trudy Ryan (“Ms. Ryan”), “the overall gunnery lead engineer” for the
Bradley and Abrams gunnery programs. (See Doc. 27-3, p. 62; see also 27-1, p. 15.) Plaintiff
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expressed the following:
I am surprised that you, [Mr. Dunlap], have decided to use
[Mr. Briar’s] message over my leadership to stop the [Fort Sill]
trip. I am the Lead Engineer and Test Director for the . . . BATS
. . . effort . . . . [Mr. Briar’s] message has so many references to
“I” that I am not sure if [Mr. Briar] is running the show. If
[Mr. Briar] is going to be the back-door Leader of the BATS
effort, please let me know so I can gear-up to follow [Mr.
Briar]—I have no problem with that. If you want me to lead,
then let me lead and stop taking back-door opinions from
[Mr.
Briar]
and
second
guessing/stopping
my
leadership/progress.
(Doc. 27-3, p. 68.) This exchange continued with Mr. Briar responding to Plaintiff’s email:
You, [Plaintiff], are the test director but do you even know
how to power up the system? You have the title of test
director[,] great. But you know nothing about operating and
training on this system. If you want to use me in the SME
capacity then when I offer an opinion listen to it. Let’s get one
thing straight[,] I do NOT work for you and I do NOT report
to you. I work for [Mr. Dunlap]. I report to [Mr. Dunlap]. The
primary mission I am here for is to give him my expertise as
a Master Gunner and anything else he needs.
(Id. at 67.)
On July 29, 2010, Plaintiff reached out to Mr. Dunlap and Ms. Ryan 3 concerning an
incident where Mr. Briar had reported to customers that certain systems on the BATS
Project were “far from ready.” (Id. at 72; see also Doc. 27-5, p. 9.) Plaintiff remarked that:
[Mr. Briar’s] behavior is detrimental to the team’s progress
and undermines my efforts to maintain a positive and
productive atmosphere that promotes cooperation from our
extended teammates. [Mr. Briar] showed this same behavior
earlier and led me to complained [sic] about his back-door
conversations with you, [Mr. Dunlap,] that undermined my
3 It
is undisputed that Mr. Dunlap and Ms. Ryan are Caucasian. (Doc. 28-3, p. 51;
Doc. 27-3, p. 5.)
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efforts relative to the BFIST startup. I hope you will take
actions to stop the negative behavior/activity.”
(Doc. 27-3, p. 72.) On July 30, 2010, Plaintiff and Mr. Briar met with Mr. Collins, Ms. Ryan,
Mr. Dunlap, and Joe Labalbo (“Mr. Labalbo”), head of the GCTT Division
(“July 30 Meeting”). (Doc. 27-1, p. 19; see also 27-5, p. 15.) At the July 30 Meeting, a
consensus was reached that Mr. Briar would not email customers and that a government
employee, as opposed to a contractor, was in charge while at a testing site. (Doc. 27-1,
p. 19.)
Further problems concerning the division of labor arose on September 28, 2010,
when Mr. Dunlap, prompted by Plaintiff’s inquiry, emailed the team concerning field
testing of BATS. (Doc. 27-3, pp. 77-80.) He advised them that he had asked:
[Mr. Briar] as the Logistician to develop the field schedules
which [the team has] seen. Additionally, [Mr. Briar is] looking
at team member availability (leave, other travel, etc.) to aid in
scheduling. Ultimately, I am responsible for who travels,
when, and where as [project director]. I consider team
distribution and travel planning a logistics function and
comes under Mr. Briar’s [responsibility.] Please work with
him to establish team make up . . . . (“September 28 Email”)
(Id.) The following day, Plaintiff forwarded the September 28 Email to Mr. Collins and
copied Mr. Dunlap. (Id. at 79.) Plaintiff explained that unlike on the BATS Project, his
prior teams tasked the test director with testing schedules and test team makeups. (Id.)
Mr. Dunlap responded on September 29, 2010, stating that he did not believe Mr. Briar’s
task of scheduling and planning travel impacted how testing was conducted. (Id.) On
September 30, 2010, Plaintiff and Mr. Briar again met with Mr. Collins, Mr. Dunlap, and
Mr. Labalbo, resulting in the directive that Mr. Briar give his testing schedule to Plaintiff
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before presenting it to the BATS team (“September 30 Meeting”). (Doc. 27-1, p. 22; see
also Doc. 27-3, p. 90.)
Despite the September 30 Meeting, the testing schedule conflict was not resolved,
prompting Plaintiff to email Mr. Dunlap again on October 1, 2010:
I am assuming [Mr. Briar] is not clear on the duties of the Lead
Engineer and Test Director. I have included the primary
duties below . . . I think [Mr. Briar] might be conducting
himself the way he is because you, [Mr. Dunlap], are ok with
it. I am not used to a support contractor interfacing with a
Government Test Director the way [Mr. Briar] does.
(Doc. 27-3, p. 88.)
Matters came to a head when Plaintiff and Mr. Briar disagreed about the inclusion
of a USB port on the COFT-E Project. (Id. at 100.) On December 1, 2010, Plaintiff emailed
the team and stated that “the USB violates [Department of Defense] security policy and
requires unnecessary [Internal Audit] requirements.” (Id.) In response, Mr. Briar
remarked that the team could “still implement the USB and have it turned off,” as the
team had done on the BATS Project and was doing on the COFT-SA program. (Id. at 99.)
This debate over the USB port continued, as Plaintiff responded to the team that
he had “talked to the [Internal Audit] people before requesting the item be removed. We
will always see delays if my decisions as the COFT-E Lead Engineer are second guessed
without value added reasoning.” (Id.) To this, Mr. Briar retorted:
It is NOT against [Internal Audit] policy to have the USB
installed on the system. It IS currently against [such] policy to
use unauthorized non-government approved devices on this
USB port.
It makes common sense to build this functionality into the
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system now[,] like we did in the BATS and we are currently
doing for the COFT-SA.
Don’t blame me for delays because I am second guessing you
[, Plaintiff]. You are only being questioned because your plan
does not make sense. The last briefing I had was that [Ms.
Ryan] was . . . responsible for all engineering on all Bradley
programs. Your titles DO NOT impress me and I am not
going to stop asking questions simply because you say so.
You can call this an episode or you can cry to [Mr. Collins]. I
no longer care anymore, I will be in the office 13 December
and you and I can discuss this face to face like men, or we can
have another flippin meeting where you can whine and
complain some more to everybody about how out of control I
am.
(Id. at 98–99.) Half an hour later, Plaintiff forwarded Mr. Briar’s reply to Mr. Collins
stating that:
I should not have to keep dealing with this disrespect. I feel
compelled to leave [Mr. Briar] off of engineering emails
because he tries to stop just about everything I put in motion.
He is more of a hindrance to me than support. Not sure how
to fix this. Meetings do not seem to work.
(Id. at 104.)
The evening of December 1, 2010, Plaintiff emailed Mr. Briar, informing him that
he “had a collection of [his] disrespectful emails” and that Plaintiff would not allow
Mr. Briar to disrespect him or his position. (Id. at 97.) Plaintiff also stated that he was
seeking assistance “from people at a higher level,” as Mr. Briar’s behavior was
“unbecoming of a Government support contractor.” (Id. at 98.) Mr. Briar responded that:
[t]he difference between you and me is that you will insult
me passively in your emails and you do not give me the
respect I have tried to give you. 90% of everything could be
resolved by talking to me face to face. I have tried to work
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with you and have complied with everybody’s orders to play
nice. You do not value me as a legitimate member and until
you do[,] we will continue to have issues.
I would respect you more if you talked to me or gave me a
call so we can discuss differing viewpoints. Yet you want
email traffic so you can cover your ass in the future. Because
that [is] what [it is] really about. The one thing I have noticed
is that you do not do anything unless you find some way to
benefit. I may go off half cocked but I am passionate about my
job . . . . I have gone through my chain of command . . . and
requested to be moved off this team. I was told I am not going
anywhere. So you are going to have to deal with me for a long
time.
I have shown these emails to my leadership. I have nothing to
hide. Again[,] be a man and talk to me. This email thing is
getting old. I may have an issue with tact and candor but that
is who I am. I won’t lie to you about how I feel about
something.
(Id. at 96–97.) Mr. Briar then forwarded his exchange with Plaintiff to Ms. Ryan,
Mr. Dunlap, and Mr. Collins late on December 1, 2010. (Id. at 96.) On December 2, 2010,
Mr. Collins emailed Plaintiff informing him that he needed to talk with him and not to
send any more emails until they did. (Id. at 109–110.)
C.
COFT-E Project Reassignment
According to Plaintiff, he met with Mr. Collins on the morning of
December 10, 2010 (“December 10 Meeting”) where Mr. Collins informed Plaintiff that
he needed to separate Plaintiff and Mr. Briar. (Id. at 109; see also 27-1, pp. 28, 34.)
Consequently, Plaintiff was removed from the COFT-E Project and reassigned to the
BFIST Project (“COFT-E Reassignment”). (Doc. 27-3, p. 109.)
Following the December 10 Meeting, Plaintiff emailed Wafa Makhlouf
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(“Ms. Makhlouf”), GCTT’s director of engineering (see Doc. 27-4, p. 9), on
December 10, 2010, seeking assistance and forwarded the prior email traffic concerning
the USB port issue:
I have been trying to get resolution through [Mr. Collins] and
. . . [Mr. Dunlap] (and even [Mr. Labalbo] listened during a
couple of meetings). I have seen similar situations on past
programs. When someone on the team has a problem with
having me as the Leader I get removed from the team without
cause. In this case, I have been trying to stop blatant disrespect
for me and my position on the team from one of the team
members. I found out this morning that engineering has
decided once again to remove me from the project. I view that
as unfair and unprofessional. I have never seen any other
Lead Engineer treated the way I am being treated. [The
disrespect] . . . is truly blatant. That is why I am shocked to
see that the fix is to remove me.
(Doc. 27-3, p. 103).
In an email to himself on December 10, 2010, Plaintiff stated:
[Mr. Collins] mentioned that the issue between [Mr. Briar]
and me has been going on for about six months. I told
[Mr. Collins] that the issue is not as it is being made out to be.
The real issue is that [Mr. Briar] disrespects me and my
position. [Mr. Briar] has a problem with me being in an
authoritative position over him. I reminded [Mr. Collins] that
[Mr. Briar] has shown that in his emails.
(Id. at 109.) On the suggestion of Ms. Makhlouf and Mr. Collins, Plaintiff and Mr. Briar
met on December 14, 2010. (Id. at 120; see also Doc. 27-1, p. 27–28.) Following this meeting,
Plaintiff represents that he had no further disputes with Mr. Briar. (Doc. 27-3, p. 120.)
D.
Equal Employment Opportunity Commission
On January 19, 2011, Plaintiff initiated contact with an Equal Employment
Opportunity Counselor. (Doc. 27-3, p. 48.) Plaintiff then filed a formal complaint
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(“EEO Complaint”) with the Equal Employment Opportunity Commission (“EEOC”) on
April 6, 2011. (Id. at 4, 38.) In his EEO Complaint, Plaintiff alleged that he endured
harassment, derogatory remarks, and a hostile work environment because of his race in
violation of Title VII. (Id. at 4.) The EEOC administrative judge issued judgment in favor
of Defendant (“EEOC Decision”). On appeal, the EEOC Decision was affirmed. 4
E.
Instant Action
Plaintiff initiated this Title VII action against Defendant on January 29, 2016.
(Doc. 1.) In his Complaint, Plaintiff asserts a claim for: (1) discrimination based on
disparate treatment; and (2) retaliation based on the COFT-E Reassignment after
complaining about Mr. Briar’s conduct. 5 (See id. 26–46.) As Defendant’s Motion has been
fully briefed (Docs. 28, 29), the matter is ripe for consideration.
II.
LEGAL STANDARDS
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and that [it] is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As to issues for
which the movant would bear the burden of proof at trial, it must affirmatively show the
absence of a genuine issue of material fact and support its motion with credible evidence
Although neither party submitted the EEOC decision or the appellate decision
that affirmed the EEOC decision, these facts are undisputed. (Doc. 1, ¶ 25; Doc. 12, ¶ 25.)
5 In his Complaint, Plaintiff also asserts a retaliation claim based on actions
involving separate supervisors and separate conduct subsequent to Plaintiff’s time on the
Bradley Gunnery Team. (See Doc. 1, ¶ 37–41.) But Plaintiff concedes that his appeal to the
Merit Systems Protection Board and the Federal Circuit waived this retaliation claim.
(Doc. 28, pp. 19–20.) Hence the Court limits its discussion of Plaintiff’s retaliation claim
to his COFT-E Reassignment. (See Doc. 28, pp. 20-21; Doc. 29, p. 3.)
4
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demonstrating that no reasonable jury could find for the nonmoving party on all of the
essential elements of its case. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)
(citing United States v. Four Parcels of Real Prop. in Green & Tuscaloosa Ctys, 941, F.2d 1428,
1438 (11th Cir. 1991)).
As to issues for which the nonmovant would bear the burden of proof at trial, the
movant has two options: (1) it may simply point out an absence of evidence to support
the nonmoving party’s case; or (2) it may provide “affirmative evidence demonstrating
that the nonmoving party will be unable to prove its case at trial.” Four Parcels,
941 F.2d at 1438 (citing Celotex Corp., 477 U.S. at 325). “The burden then shifts to the
nonmoving party, who must go beyond the pleadings and present affirmative evidence
to show that a genuine issue of material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320
(11th Cir. 2006) (citing Fitzpatrick, 2 F.3d at 1115–17).
“A factual dispute is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Four Parcels, 941 F.2d at 1437 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court must view the evidence
and all reasonable inferences drawn from the evidence in the light most favorable to the
nonmovant, Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006), such that “when
conflict arises between the facts evidenced by the parties, [the] court credit[s] the
nonmoving party’s version,” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005).
However, “[the] court need not permit a case to go to a jury . . . when the inferences that
are drawn from the evidence, and upon which the nonmovant relies, are ‘implausible.’”
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
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III.
ANALYSIS
To begin, Title VII makes it unlawful for an employer “to fail or refuse to hire or
to discharge any individual, or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of”
that individual’s race. 42 U.S.C. § 2000e-2(a)(1). Liability under Title VII encompasses
disparate treatment or intentional discrimination. Ricci v. DeStefano, 557 U.S. 557, 577
(2009). To prove disparate treatment, a Title VII plaintiff must demonstrate that an
employer intentionally discriminated against him on the basis of a protected
characteristic. See id.; see also Equal Emp’t Opportunity Comm’n v. Catastrophe Mgmt. Sols.,
852 F.3d 1018, 1024 (11th Cir. 2016).
A.
Disparate Treatment
Disparate treatment can take two distinct forms: (1) “a ‘tangible employment
action,’ such as a firing or demotion; or (2) “a hostile work environment that changes ‘the
terms and conditions of employment, even though the employee is not discharged,
demoted, or reassigned.’” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807
(11th Cir. 2010) (en banc) (quoting Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245
(11th Cir. 2004)). In his Complaint, Plaintiff does not identify the form of his disparate
treatment claim. (Doc. 1, ¶¶ 26–33.) Nevertheless, in its Motion, Defendant presumes that
Plaintiff has alleged both claims. (Doc. 27, pp. 17–24.) So the Court addresses both.
1.
Tangible Employment Action
Plaintiff claims to have suffered an adverse employment action as a result the
COFT-E Reassignment. (Doc. 27, pp. 17-18; Doc. 28, pp. 15-16.) Where, as here, a plaintiff
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relies on circumstantial evidence to prove discriminatory intent, a court employs the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–05 (1973). Denny v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001).
Under this framework, the plaintiff must first establish a prima facie case of
discrimination (“Prima Facie Stage”). McDonnell Douglas, 411 U.S. at 802. Once
established, the defendant then must come forward with evidence that articulates some
legitimate, nondiscriminatory reason for the adverse employment action “which, if
believed by the trier of fact, would support a finding that unlawful discrimination was
not a cause of the employment action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507
(1993). Plaintiff may then attempt to show that the proffered reason was merely a pretext,
and that the defendant’s true intent was discriminatory (“Pretext Stage”). Tx. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
At the Prima Facie Stage, a plaintiff must show that: (1) he is a member of a
protected class; (2) he was subjected to an adverse employment action; (3) he was
qualified for the job; and (4) his employer treated similarly-situated employees outside
the protected class more favorably. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)
(citing McDonnell Douglas, 411 U.S. at 802). Defendant only attacks the adverse
employment action element of Plaintiff’s prima facie case. (Doc. 27, pp. 17–18.)
a.
Adverse Employment Action
An adverse employment action is one where an employee suffered “a serious and
material change in the terms, conditions, or privileges of employment” when “viewed by
a reasonable person in the circumstances.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232,
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1239 (11th Cir. 2001) (emphasis added). “[I]f an employer’s conduct negatively affects an
employee’s salary, title, position, or job duties, that conduct constitutes an adverse
employment action.” Akins v. Fulton Cty., Ga., 420 F.3d 1293, 1300 (11th Cir. 2005); see also
Davis, 245 F.3d at 1239. A “transfer to a different position can be adverse if it involves a
reduction in pay, prestige or responsibility.” Hinson v. Clinch Cty., Ga. Bd. of Educ.,
231 F.3d 821, 829 (11th Cir. 2000).
Defendant attempts to satisfy its initial burden on summary judgment by focusing
on Plaintiff’s admission that he suffered no reduction in pay as a result of COFT-E
Reassignment. (See Doc. 27-1, p. 34.) From this, Defendant concludes that there has been
no adverse employment action. (Doc. 27, p. 18.) Without disputing this compensation
point, Plaintiff retorts that the involuntary COFT-E Reassignment resulted in a reduction
of responsibilities as the lead engineer—namely, reviewing the work of other engineers
(see Doc. 27-1, pp. 14–15, 34), which is corroborated by Mr. Collins’ deposition testimony
that Plaintiff served as the functional lead engineer on BATS and COFT-E when he started
on the Bradley Gunnery Team (Doc. 27-4, p. 9). Mr. Collins also testified that Plaintiff
would be “a team of one” on the BFIST Project and, thus, would necessarily no longer
review the work of other engineers. 6 (See Doc. 27-4, p. 10.)
Defendant’s singular focus on compensation ignores the principle that “Title VII
does not require proof of direct economic consequences in all cases.” Davis, 245 F.3d
Plaintiff’s assertion that the BFIST Project was “non-existent” (Doc. 28, p. 16) is
unsupported by the record, as the evidence demonstrates Plaintiff did work, albeit very
little, on the BFIST Project after the COFT-E Reassignment (Doc. 27-3, p. 120).
6
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at 1239. When viewed in the light most favorable to Plaintiff, a reasonable factfinder
could conclude that Plaintiff suffered a reduction in responsibilities from the COFT-E
Reassignment. At a minimum, therefore, Plaintiff has established a question of fact as to
whether he suffered an adverse employment action.
b.
Pretext
However, even if the Court assumes that Plaintiff has satisfied a prima facie case, 7
Defendant has proffered a legitimate, nondiscriminatory reason for his reassignment—
namely, the unresolvable conflict between Plaintiff and Mr. Briar and the resulting
negative impact on the Bradley Gunnery Team. (Doc. 27-4, p. 9; see also Doc. 28-3, pp. 55,
57; Doc. 27-6, p. 24.) The Court readily concludes that the unresolvable personality
conflict between Plaintiff and Mr. Briar was a legitimate basis for the COFT-E
Reassignment. See Carter v. Sec’y of Navy, 492 F. App’x 50, 52 (11th Cir. 2012) (finding that
the plaintiff had failed to demonstrate pretext where defendant’s proffered reason for the
plaintiff’s transfer was motived by a personal conflict between the plaintiff and his
supervisors). 8
At the Pretext Stage, Plaintiff must “introduce significantly probative evidence
showing that the asserted reason is merely a pretext for discrimination.” Brooks v. Cty.
Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quoting Clark, 990 F.2d
In its Motion, Defendant did not address the remaining elements of Plaintiff’s
prima facie case. (See Doc. 27, p. 18.) As such, the Court limits its discussion to the
arguments briefed.
8 While unpublished opinions are not binding precedent, they may be considered
as persuasive authority. See 11th Cir. R. 36-2; see also United States v. Almedina,
686 F.3d 1312, 1316 n.1 (11th Cir. 2012).
7
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at 1228); see also Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.
2005) (quoting Burdine, 450 U.S. at 256). To do so, a plaintiff may point to “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in the proffered
explanation. Brooks, 446. F.3d at 1163. A reason is not pretextual “unless it is shown both
that the reason was false, and that discrimination was the real reason.” Hicks,
509 U.S. at 515. Plaintiff has failed to satisfy his burden.
Plaintiff does not argue that the conflict concerning Mr. Briar or its resulting
negative impact was conjured up by Defendant in order to transfer him. Nor could he.
The flurry of emails in the record shout for themselves. (See Doc. 27-3, pp. 61–113.)
Nevertheless, Plaintiff posits racism as the real reason for the COFT-E Reassignment.
In support, Plaintiff first asserts that Mr. Briar should have been reassigned
because he ostensibly started the conflict. (Doc. 28, pp. 16-17.) But as Mr. Dunlap
explained, Mr. Briar’s qualification as a Bradley master gunner was invaluable to the
Bradley Gunnery Team. (See Doc. 28-3, pp. 48–49; see also Doc. 27-4, p. 9.) Even assuming
that Mr. Briar instigated the conflict, Plaintiff fails to explain how that fact transforms the
decision to reassign him into one infected with a discriminatory motive. This
“he-started-it” argument simply quarrels with the wisdom of Defendant’s reasoning,
which is insufficient to establish pretext. See Alexander v. Fulton Cty. Ga., 207 F.3d 1303,
1341 (11th Cir. 2000).
The Court is not in the business of adjudging whether an employment decision is
fair or prudent, as it does “not sit as a super-personnel department that reexamines an
entity’s business decision.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000)
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(en banc). This principle is well-illustrated here, as Plaintiff distills his frustration to the
fact that Mr. Collins and Mr. Dunlap had “an issue between a black man and a white
man” and “they chose the white guy.” (Doc. 27-1, p. 28.) Unless Plaintiff can point to
evidence that such a choice is racially motivated, the Court will not intervene. Id. Because
Defendant’s “proffered reason is one that might motivate a reasonable employer,”
Plaintiff “must meet that reason head on and rebut it.” See Chapman, 229 F.3d at 1030.
Plaintiff has not done so.
Plaintiff then directs the Court to Mr. Dunlap’s “unprofessional and unethical”
conduct of discussing his concerns about Plaintiff with Mr. Briar. (Doc. 28, p. 17.)
Mr. Dunlap admits that he discussed issues concerning Plaintiff with Mr. Briar and
explained to Mr. Briar that he and Ms. Ryan were working to resolve those issues.
(Doc. 28-3, p. 70–72.) Even assuming these conversations were unprofessional and
unethical, similar to his first argument, nothing substantiates that they were born of racial
animus. See Hicks, 509 U.S. at 515.
Plaintiff next attempts to establish pretext by pointing to Mr. Collins’ verbal
declaration that Plaintiff was to head up the BFIST Project. (Doc. 28, p. 17.) But since
Mr. Briar served as SME on the BFIST Project (Doc. 27-1, p. 28.), Plaintiff reasons that
Mr. Collins’ assertion that he needed to separate him and Mr. Briar is false. (Id. at 28; see
also Doc. 28, p. 17.) Mr. Collins’ assertion is not inconsistent with Defendant’s articulated
reason for the COFT-E Reassignment. Rather, it supports that an unresolvable conflict
existed. Even accepting Plaintiff’s argument, he only quibbles with the effect of the
COFT-E Reassignment, rather than the reason itself. Alexander, 207 F.3d at 1341. Again,
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that Plaintiff’s evidence suggests that an employment action was unwise, unfair, or
inaccurate does not alone suggest that it was discriminatory. Alvarez v. Royal Atl. Devs.,
Inc., 610 F.3d 1253 1266-67 (11th Cir. 2010).
Finally, Plaintiff reasons that, because Defendant has not promoted any other
African-American engineers, its decision to reassign him must have been discriminatory.
(Doc. 28, p. 17.) Plaintiff presents no evidence for this conclusory allegation; thus,
standing alone, it is insufficient to raise an inference of pretext or intentional
discrimination. See Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376–77 (11th Cir. 1996)
(noting that conclusory allegations of discrimination, without more, do not raise an
inference of pretext). As none of Plaintiff’s arguments viewed separately or together raise
an inference of pretext, Defendant is entitled to summary judgment on Plaintiff’s
disparate treatment claim by tangible employment action.
2.
Hostile Work Environment
Apart from the COFT-E Reassignment, Plaintiff also claims that he endured
constant harassment from Mr. Briar and that Mr. Collins, Mr. Dunlap, Mr. Labalbo, and
Ms. Makhlouf failed to intervene on his behalf. (See Doc. 1, ¶¶ 9–17; Doc. 28, pp. 18–19.)
Title VII protects employees from being required “to work in a discriminatorily hostile
or abusive environment.” Mendoza v. Borden, Inc., 195 F.3d 123, 1244 (11th Cir. 1999)
(en banc). To establish a hostile work environment claim based on race, a plaintiff must
show that: (1) he is a member of a protected group; (2) he suffered unwelcomed
harassment; (3) the harassment was based on his membership in a protected group;
(4) the harassment was so severe and pervasive that it altered the terms or conditions of
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his employment; and (5) the employer was vicariously or directly liable for the
environment. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012).
Defendant contends that Plaintiff cannot establish that the offending conduct was
based on his race, as opposed to some other permissible reason. (Doc. 27, pp. 22–23.)
Plaintiff’s allegations of harassment almost exclusively concern the email exchanges
between Mr. Briar and himself. (See, e.g., Doc. 27-3, pp. 67, 96–99, 104.) Despite Plaintiff’s
arguments to the contrary, the Court is not persuaded that these communications were
directed at Plaintiff’s race. (See id. at 16-17.)
While there no doubt was a personality conflict and incivility between Plaintiff
and Mr. Briar, office squabbles and tension between team members do not demonstrate
that Mr. Briar’s harassing conduct toward Plaintiff was racially-based. Indeed, “[i]t is a
bedrock principle that not all objectionable conduct or language amounts to
discrimination under Title VII.” Jones, 683 F.3d at 1297. Plaintiff has pointed to no
evidence of any overt racial animus—racial comments, epithets, insults, or overtones—
directed to him. Mr. Briar’s communications, while perhaps curt, disrespectful, and
unprofessional, show nothing more than disagreements and discord among co-workers,
which are not actionable under Title VII. See Faragher v. City of Boca Raton, 524 U.S. 775,
797 (1998) (“[d]iscourtsey and rudeness should not be confused with harassment”).
Title VII is not a general civility code. Id. at 788.
Although overt racial harassment is not required to establish a hostile work
environment, Plaintiff must still show that race was a substantial factor in his harassment.
See Jones, 683 F.3d at 1297. Plaintiff has failed to show that race played any role in the
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alleged harassment. At best, he has shown an unpleasant and tense working
environment, imbued with egos, interpersonal conflicts, and rifts between co-workers.
As Plaintiff himself stated, “the real issue is that [Mr. Briar] disrespects me and my
position.” (Doc. 27-3, p. 109.) Without more, Plaintiff cannot call on Title VII to shield him
from such benign and trivial comments. See Baldwin v. Blue Cross/Blue Shield of Ala.,
480 F.3d 1287, 1301–02 (11th Cir. 2007).
Plaintiff also contends that he has demonstrated a hostile work environment
because Mr. Collins and Mr. Dunlap failed to intervene on Plaintiff’s behalf. (Doc. 28,
p. 19.) This argument finds no support in the record. In fact, the record shows that on at
least two occasions—the July 30 Meeting and the September 30 Meeting—Mr. Collins and
Mr. Dunlap attempted to referee and resolve the verbal sparring between Plaintiff and
Mr. Briar. (Doc. 27-1, pp. 19, 22, 30.) It is true that Mr. Briar, who is Caucasian, remained
on the COFT-E Project and Plaintiff, who is African-American, was reassigned. (See
Doc. 27-1, p. 28.) But Plaintiff cannot invent discriminatory motive from a wrong
personnel choice. As Plaintiff has failed to show he was subjected to an objectively hostile
work environment based on his race, this claim fails as a matter of law. 9
B.
Retaliation
In addition to disparate treatment, Title VII also prohibits an employer from
Although Plaintiff reasserts his pretext arguments, hostile work environment
claims based on racial harassment are reviewed under the same standard as those based
on sexual harassment, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 n.10 (2002),
which are not analyzed under the McDonnell Douglas burden-shifting framework, Johnson
v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 510 (11th Cir. 2000). Thus, it is
unnecessary to address those arguments again.
9
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discriminating against an employee because he has opposed any unlawful employment
practice or “because he has made a charge, testified, assisted, or participated in any
manner
in
an
investigation,
proceeding,
or
hearing
[under
Title
VII].”
42 U.S.C. 2000e-3(a). Plaintiff rests his retaliation claim on the COFT-E Reassignment.
(Doc. 1, ¶¶ 26, 27, 31.) According to Plaintiff, his reassignment was retaliatory because he
reported his conflict with Mr. Briar to his supervisors. (See id; Doc. 28, p. 19.)
Because Plaintiff’s retaliation claim relies on circumstantial evidence, the Court
again employs the McDonnell Douglas burden-shifting framework. Brown v. Ala. Dep’t
Transp., 597 F3d 1160, 1181 (11th Cir. 2010). To prove a prima facie case of retaliation, a
plaintiff must demonstrate that: (1) he engaged in statutorily protected activity; (2) he
suffered a materially adverse action; and (3) some causal connection between the two
events. Trask v. Sec’y Dep’t of Veterans Affairs, 822 F.3d 1179, 1193–94 (11th Cir. 2016). The
pretext stage requires that: (1) Defendant articulate a legitimate, non-retaliatory reason
for the adverse employment action, see Pennington v. City of Huntsville, 261 F.3d 1262, 1266
(11th Cir. 2001); and (2) Plaintiff prove but-for causation, see Smith, 565 F. App’x at 779.10
University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2533
(2013), the U.S. Supreme Court articulated the “but-for causation” standard; however, it
did not articulate at what stage to apply the but-for causation analysis, Ramirez v. Bausch
& Lomb, Inc., 546 F. App’x 829, 833 n.2 (11th Cir. 2013). Nevertheless, the Eleventh Circuit
has indicated its intention to decide whether retaliation was the but-for cause at the
pretext stage. Mealing v. Ga. Dep’t of Juvenile Justice, 564 F. App’x 421, 427 (11th Cir. 2014),
cert. denied 135 S. Ct. 1165 (2015); see also Frazier v. Sec’y, Dep’t of Health & Hum. Servs.,
No. 16-16329, 2017 WL 4334037, at *5 (11th Cir. Sept. 29, 2017); Sims v. MVM, Inc.,
704 F.3d 1327, 1334 (11th Cir. 2013) (applying but-for causation at the pretext stage in the
ADEA context). Finding the Eleventh Circuit’s unpublished opinions persuasive, the
Court follows suit.
10 In
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Before addressing the substance of Plaintiff’s retaliation claim, Defendant first
asserts that it is barred because he has failed to exhaust his administrative remedies.
(Doc. 29, p. 2.) Alternatively, Defendant argues that Plaintiff: (1) has failed to establish a
prima facie case; and (2) has not demonstrated the requisite but-for causation. (Doc. 27,
pp. 13, 16 n.2; Doc. 29, pp. 2–3.) The Court agrees with Defendant’s alternative arguments.
1.
Exhaustion
Prior to filing a Title VII action, a plaintiff must first file a charge of discrimination
with the EEOC. Gregory v. Ga. Dep’t of Human Res., 335 F.3d 1277, 1280 (11th Cir. 2004). In
light of this exhaustion requirement, a “plaintiff’s judicial complaint is limited by the
scope of the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination.” Id. at 1280 (quoting Alexander, 207 F.3d at 1332). A plaintiff may
not raise “[a]llegations of new acts of discrimination” in later judicial proceedings. Wu v.
Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989).
Failure to administratively exhaust is an appropriate ground on which to grant
summary judgment. See Swain v. Hoffman, 547 F.2d 921, 923 (5th Cir. 1977). 11 Courts are
nonetheless “extremely reluctant” to bar Title VII claims based on procedural
technicalities and will allow those judicial claims that “amplify, clarify, or more clearly
focus the allegations in the EEOC complaint.” Gregory, 335 F.3d at 1279–80. To determine
whether the complaint falls within the scope of the EEOC complaint, a court considers
The decisions of the former Fifth Circuit rendered before October 1, 1981 are
binding on this circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981)
(en banc).
11
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whether the complaint is “like or related to, or grew out of, the allegations” contained in
the EEOC charge. Id.
As previously noted, Plaintiff initially contacted an EEO counselor on
January 19, 2011. (Doc. 27-3 p. 15.) In the EEO Counselor’s Report, Plaintiff described the
matters giving rise to the EEO Complaint. (Id. at 16.) He began by stating that he was
assigned different duties on December 10, 2010—the day of the COFT-E Reassignment.
(See id.) Plaintiff continued that:
[I believe] that [I have] been a victim of discrimination
because [I] was assigned different duties as a Computer
Engineer in the Lead Engineers Position on a project. [I]
[believe] that this action was taken against [me] because [I]
complained that [I] was being harassed by a Caucasian team
member [Mr. Briar]. [I believe that I] informed [my] superiors
of the harassment but they [did] not care. [I believe I] was
punished for reporting on a Caucasian employee.
[Mr. Collins] has informed me that he assigned different
duties to [me] because [Mr. Collins] . . . could not resolve the
issue so [Mr. Collins] assigned [me] other duties to reduce the
tension between [me] and Mr. Briar.
(Doc. 27-3, p. 16.)
Plaintiff then filed a formal EEO Complaint on April 6, 2011. (Doc. 27-3, p. 4.) In it,
Plaintiff alleged that “[Mr. Collins] violated [Plaintiff’s] anti-retaliation rights covered in
Title VII.” (Id. at 10.) Although the allegation concerning retaliation is vague, Plaintiff also
alleged that “removing [him] from the leadership position on the COFT-E [Project]
solidified a pattern of removing [him] from leadership positions without cause.” (Id.
at 29.) Plaintiff filed the EEO Complaint without the benefit of counsel. (Id. at 17.) In light
of this, the Court will construe it liberally. Danner v. Phillips Petroleum Co., 447 F.2d 159,
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161–62 (5th Cir. 1971). Under the circumstances, the Court finds that Plaintiff’s retaliation
claim based on the COFT-E Reassignment grew out of the allegations in the EEO
Complaint and, thus, he has exhausted his administrative remedies.
2.
Prima Facie Case
As for Plaintiff’s prima facie case, Defendant attacks: (1) the adverse employment
action element; and (2) the protected activity element. (See Doc. 28, p. 16 n.2; Doc. 29, p. 2.)
Without retreading its previous analysis, the Court notes that Plaintiff has established a
genuine issue of material fact whether the COFT-E Reassignment was materially adverse
under the broader retaliation standard, which requires a showing that the action “well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe R. Co. v. White, 548 U.S. 53, 68 (2006); Crawford
v. Carroll, 529 F.3d 961, 973–74 (11th Cir. 2008) (noting that after White an adverse action
in the retaliation context does not require “an ultimate employment decision or
substantial employment action”).
As to the protected activity element, Defendant contends that Plaintiff’s informal
complaints prior to the COFT-E Reassignment are insufficient. (Doc. 29, p. 2.) However,
the Eleventh Circuit has established that the protection afforded by the anti-retaliation
provision extends not only to individuals who have filed formal complaints, but also to
those who informally voice complaints to their superiors or who use internal grievance
procedures. Rollins v. State of Fla. Dep’t of Law Enf’t, 868 F.2d 397, 400 (11th Cir. 1989)
(per curiam). Thus, Plaintiff’s informal complaints may be protected activity. See, e.g.,
Campolieto v. Int’l Mall Motor Co., No. 08-23283-CIV-HOEVELER, 2010 WL 11506020, at *1
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(S.D. Fla. Aug. 10, 2010) (finding that the plaintiff’s email complaining about co-worker’s
comments about Argentineans was protected activity).
Even so, Defendant contends that the content of those informal complaints does
not amount to protected activity because Plaintiff complained only about Mr. Briar’s
disrespect, as opposed to any racial harassment or racially motived acts by Mr. Briar.
(Doc. 29, p. 3.). The Eleventh Circuit has held that, at a minimum, protected activity
requires a plaintiff to communicate his belief to his employer that discrimination is
occurring. See Demers v. Adams Homes of Nw. Fla., Inc., 321 F. App’x 847, 852
(11th Cir. 2009). It is insufficient to complain about a co-worker’s behavior and rely on
the employer to infer that discrimination has occurred. See id.; see also Saffold v. Special
Counsel, Inc., 147 F. App’x 949, 951 (11th Cir. 2005) (affirming district court’s finding that
the plaintiff’s internal complaints to her supervisor about a co-worker’s email were not
protected activity because the plaintiff’s “complaints had no relationship to race; rather,
they stemmed from a personality conflict with a co-worker”).
Here, even the most generous reading of Plaintiff’s emails to Mr. Collins and
Mr. Dunlap do not establish that Plaintiff communicated his belief that discrimination
was occurring. The emails themselves make no reference to racial discrimination or
harassment; rather, they evidence the personality conflict between Plaintiff and Mr. Briar.
(See e.g., Doc. 27-3, pp. 68, 72, 88, 104.) Indeed, Plaintiff testified that when he met with
Mr. Collins and Mr. Dunlap at the July 30 Meeting and the September 30 Meeting, there
was no discussion of race. (Doc. 27-1, p. 20, 22.) Although Plaintiff testified that he raised
the issue of race in a meeting with Ms. Makhlouf on December 13, 2010, that was only
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after the COFT-E Reassignment—three days too late as it turns out. (Id. at 30.) As such,
Plaintiff has failed to demonstrate that he engaged in protected activity and, thus, has
failed to establish a prima facie case of retaliation. 12
3.
Pretext
Defendant failed to proffer a legitimate, non-retaliatory reason for COFT-E
Reassignment. (See Doc. 27, p. 16 n.2.) Without divining defense counsel’s strategy, it
presumably meant to reassert the same reason it proffered for Plaintiff’s disparate
treatment claim by tangible employment action. Nonetheless, Defendant does assert that
Plaintiff cannot establish that his complaining was the but-for cause of the COFT-E
Reassignment. (Doc. 27, p. 16 n.2.) The Court agrees.
To avoid summary judgment, Plaintiff must produce evidence from which a
reasonable jury could determine that Defendant’s “desire to retaliate was the but-for
cause” of the COFT-E Reassignment. See Univ. of Tx. Sw. Med. Ctr. V. Nassar, 133 S. Ct.
2517, 2521, 2528 (2013). Although the Eleventh Circuit has not articulated the manner or
degree of proof required to show but-for causation, other courts have found that temporal
proximity standing alone is not sufficient proof of but-for causation. See Strong v. Univ.
Health Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007); see also Montgomery v. Bd. of Trs. Of the
Univ. of Ala., No. 2:12-cv-2148-WMA, 2015 WL 1893471, at *2 (N.D. Ala. Apr. 27, 2015).
As the Fifth Circuit noted, “such a rule would unnecessarily tie the hands of employers.”
12 Defendant
does not challenge the causal connection element of Plaintiff’s prima
facie case. (See Doc. 27, p. 16 n.2.) Hence the Court cabins its discussion to the arguments
briefed.
-26-
Strong, 482 F.3d at 808.
Because Plaintiff cites and relies on the prima facie causation standard, he does not
actually argue that he meets the but-for causation; rather, he maintains that the short time
between his last complaint on December 1, 2010, and the COFT-E Reassignment
sufficiently demonstrates a causal link, establishing that his complaint and the COFT-E
Reassignment are not unrelated. (Doc. 28, pp. 13, 21.) Although this “very close” temporal
proximity, standing alone, may sufficiently establish a causal connection under the prima
facie case, see Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001), the Court finds it is
insufficient under the but-for causation standard, see Strong, 482 F.3d at 808. Hence
Plaintiff has failed to establish that but for his December 1, 2010 complaint he would not
have been subject to the COFT-E Reassignment. Defendant is therefore entitled to
summary judgment on Plaintiff’s retaliation claim. See Trask, 822 F.3d at 1194–95
(affirming the district court’s grant of summary judgment in favor of the employer on the
plaintiff’s retaliation claim, in part, because employee failed to establish but-for
causation). After review of the record, Plaintiff does not have a federal cause of action
under Title VII, and Defendant’s Motion is due to be granted.
IV.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
Defendant’s Motion for summary judgment and memorandum of law
(Doc. 27) is GRANTED.
2.
The Clerk is DIRECTED to enter judgment in favor of Defendant Secretary
of the Army and against Plaintiff Harroll Ingram on Plaintiff’s
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discrimination and retaliation claims set forth in the Complaint. (Doc. 1,
¶¶ 26–46).
3.
The Clerk is DIRECTED to terminate all pending deadlines, and to close
the file.
DONE AND ORDERED in Chambers in Orlando, Florida, on October 13, 2017.
Copies to:
Counsel of Record
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