Sterling v. United States Department of the Interior et al
Filing
78
ORDER AND REASONS GRANTING 45 Motion to Dismiss. The plaintiff's claims are hereby dismissed with prejudice. Signed by Judge Martin L.C. Feldman on 3/18/2019. (jeg)
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 1 of 39
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEVIN STERLING
CIVIL ACTION
v.
NO. 17-0742
DAVID BERNHARDT, Acting Secretary,
U.S. DEPARTMENT OF THE INTERIOR, ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is the defendants’ motion to dismiss and/or
alternatively for summary judgment.
For the reasons that follow,
the motion is GRANTED.
Background
This lawsuit challenges the U.S. Department of the Interior’s
employment practices, including allegations that an employee was
tasked with duties beyond his pay grade, but received delayed
reclassification (or no corresponding increase in pay and no back
pay) due to his race, and that he suffered retaliation in the form
of additional work and delayed reclassification after complaining
about the unlawful employment practices.
1
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 2 of 39
Following a 21-year career in the oil and gas industry, Kevin
Sterling, an African American male, began working as a GS-1801-11
Inspector for the Bureau of Safety and Environmental Enforcement
(BSEE), Gulf of Mexico Region, in 2008. 1
In May 2011, Sterling
was promoted to a Safety and Environmental Management Specialist,
as a GS-0301-12.
While working in that capacity under Glynn
Breaux, Sterling was cross-trained to work on Civil Penalty cases
(CPs), which is how BSEE assesses oil and gas operators for safety
or environmental violations.
Civil Penalty cases start with an Incident of Non-Compliance,
which is a referral from a district level BSEE Inspector in the
field. The Incident of Non-Compliance and supporting documentation
are
reviewed
at
the
regional
level
in
the
Office
of
Safety
Management (OSM) to determine the extent of the violation and the
amount of penalty to be assessed.
Beginning in November 2012,
Sterling served as the panel chair for an Accident Investigation
Panel charged with investigating an accident involving Black Elk
Energy Offshore Operations, LLC.
Safety and Environmental Management work decreased in late
2013, causing an uptick in Civil Penalty review work.
In early
Sterling has a Bachelor of Science degree in Business
Administration; he has taken several engineering courses, but he
does not have an engineering degree.
2
1
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 3 of 39
2014,
Breaux
began
cross-training
Safety
and
Environmental
Specialists in Civil Penalty work, which was previously only
performed by the GS-0881 Petroleum Engineers or GS-1801 Inspectors
in the Office of Safety Management.
As of January 8, 2014,
Sterling testified that he was cross-trained as a Civil Penalty
reviewing officer; he helped with backlogged cases. By April 2014,
Sterling was recognized as the fourth Civil Penalty reviewing
officer; however, he continued to be compensated as a 0301 series
employee, while the other Civil Penalty Review officers, who were
engineers, were 0881 series employees.
In August 2014, BSEE began paying workers in the 1801 series
a 35% enhanced retention special pay rate.
A few months later,
the Director for the BSEE Gulf of Mexico Region, Lars Herbst,
initiated an effort to reclassify workers in the 0301 Series, 2 like
Sterling, to the 1801 Series. However, this initiative was delayed
while BSEE studied and underwent a reorganization in 2015.
That his position description failed to reflect the Civil
Penalty review work he was actually performing prompted Sterling
in
September
2015
to
request
that
his
then-supervisor
Jason
There were three other Safety and Environmental Management
Specialists: Rob Carroll and Matt Nagy, both Caucasians, and
Roderick Belson, an African American.
3
2
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 4 of 39
Mathews 3
initiate
a
Desk
Audit
so
that
reclassified into an 1801 Series position.
Sterling
could
be
Rather than initiating
a Desk Audit, Mathews determined that it would be more effective
to draft a new position description for Sterling. 4
But Mathews’
first attempt to write a new position description was not accepted
by Vanessa Matthews, the Human Resources Manager for BSEE, Gulf of
Mexico Region.
Ms. Matthews determined that the draft position
description too closely resembled the one held by the Petroleum
Engineers; Sterling did not have an engineering degree. 5
Mathews was told to write a new position description.
Mr.
Meanwhile,
by November 2015, Sterling initiated his first informal EEOC
complaint, alleging desk audit denial; he officially filed the
Mathews had replaced Glynn Breaux, who retired.
Mathews
supervised Sterling from April 2015 until the OSM was realigned
near the end of 2015, at which time Stephen Kovacs became
Sterling’s supervisor.
4 Explaining the difference between a position description change
and a desk audit, Mathews testified:
3
[A] desk audit is they would take your PD, your position
description, and audit against that to see if you were
doing what you were supposed to be doing. Kevin was not
doing anything on his position description [he was still
a Safety and Environmental Management specialist] so my
recommendation was to draft a new PD, position
description, and have that reclassified by personnel.
According to Ms. Matthews, the proffered position description for
Sterling was problematic because it begged the question of whether
an engineering degree should be required to carry out Civil Penalty
review work
4
5
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 5 of 39
EEOC complaint on December 21, 2015.
denied
timely
reclassification
Sterling alleges that he was
and
appropriate
compensation
because of his race. 6
At the same time Sterling made his informal EEO complaint
regarding desk audit denial, in November 2015, BSEE underwent a
national
reorganization.
Enforcement
supervisor,
Stephen
became
Kovacs,
Sterling’s
the
new
Office
supervisor
tasked with rewriting Sterling’s position description.
and
of
was
Sterling
inquired about the status of his new position description in midFebruary 2016.
assistance.
Kovacs asked his supervisor, Mike Prendergast, for
By this time, Vanessa Matthews had retired; Kovacs
worked on drafting the new position description for Sterling with
Derek
Childress,
a
classification
Virginia headquarters.
specialist
out
of
BSEE’s
With input from Sterling, Childress and
Kovacs collaborated on Sterling’s new position description.
In
early May 2016, Kovacs submitted the final version, which was
The issue accepted for investigation was whether Sterling was
subject to racial discrimination when, from September 14, 2015 to
the end of the investigation on June 9, 2016, management failed to
process his request for a desk audit/reclassification of his GS301-13, Safety and Environmental Management Specialist position.
During the EEO investigation, Sterling names five Caucasian
comparators whom he alleges were treated more favorably than
himself: Tim McGraw, David Dykes, Cathy Moser, Charles Arnold, and
Joel Moore.
5
6
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 6 of 39
reviewed by a contractor for Childress. 7
On July 10, 2016,
Sterling’s
effective;
new
position
description
became
he
was
officially reassigned from a Series 0301 position to an Enforcement
Coordinator
Sterling
for
was
Civil
paid
Penalties,
according
to
GS-1801-13.
the
special
From
pay
then
rate
on,
table.
However, he was not eligible for back pay. 8
Just two weeks before he was reclassified as an Enforcement
Coordinator
for
Civil
Penalties,
on
June
27,
2016,
Sterling
initiated another EEO complaint in which he alleged that, shortly
Childress advised that there would be further delay before
Sterling’s new position description was approved because it had to
be reviewed by a contractor who had been hired to carry out
position description review throughout BSEE during the ongoing
reorganization.
8 According
to the Introduction to the Position Classification
Standards issued by the U.S. Office of Personnel Management, an
employee’s pay entitlements begin on the effective date of the
personnel action that assigns the employee to the reclassified
position. The appendix explains:
7
It has long been the rule of this office that a personnel
action may not be made effective retroactively so as to
increase the right of an employee to compensation. It is
also an established rule that employees of the Federal
Government are entitled only to the salaries of the
positions
to
which
they
are
actually
appointed
regardless of the duties they perform. When an employee
performs duties at a grade level higher than that in
which his position is classified and is successful in
obtaining reclassification of his/her position and
promotion, no entitlement exists for compensation at the
higher grade level prior to the date the necessary
administrative
actions
are
taken
to
effect
the
promotion.
6
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 7 of 39
after he filed his first formal discrimination complaint, he was
subject
to
reprisal.
Sterling
cited
three
instances
of
retaliation: (1) a Civil Penalty case, W&T (Nabors) in which he
assessed a nearly $1 million fine, had been remanded at the request
of the agency’s Solicitor General in March 2016; (2) two of his
Civil Penalty cases were selected by the Solicitor’s office for
inclusion in a study (CP Pilot Program) to determine whether the
agency’s time guidelines for processing CPs should be adjusted;
and
(3)
Sterling
still
had
not
been
given
a
description that accurately reflected his duties.
new
position
The second EEO
complaint was officially filed on August 8, 2016. 9
Civil Penalty cases such as the Nabors case start with a
district
office
drafting
a
Notice
of
Non-Compliance,
which
undergoes a multilevel review in the district office before the
assessment of a civil penalty supported by evidence. 10
The Civil
Penalty case is then forwarded to the regional office (Office of
Enforcement) and is assigned to a Civil Penalty Review Officer
During the time relevant to the second EEO complaint, Sterling’s
first line supervisor was Stephen Kovacs, Section Chief of the
Office of Enforcement.
His second line supervisor was Michael
Prendergast, Deputy Regional Director, BSEE. Both were aware of
Sterling’s prior EEO activity.
9
A Civil Penalty is a monetary assessment issued to a company or
operator for a violation of agency regulations. It is intended to
facilitate compliance with agency rules and regulations.
10
7
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 8 of 39
such as Sterling. 11
The Nabors case was assigned to Sterling
originally; he was charged with evaluating the evidence for the
Notice of Non-Compliance and then drafting a Notice of Proposed
Civil Penalty.
Sterling issued a final decision or “Notice of
Proposed Civil Penalty” to W&T (Nabors) assessing a $990,000 civil
penalty for violation of BSEE regulations.
W&T (Nabors) appealed
the Civil Penalty to the Interior Board of Land Appeals.
BSEE
consulted with the Solicitor’s Office in Washington, D.C., and
elected to remand the case, rather than proceed with the Civil
Penalty as originally issued.
The Civil Penalty was remanded to
the Agency and thus returned to Sterling so that the final decision
could be rescinded and reissued after review and further analysis;
the reason given for remand was to give BSEE a chance to make a
stronger case. 12
The Office of Enforcement was composed of the Supervisor, Stephen
Kovacs, two engineers, a secretary, and Sterling. Whether or not
there was an equal distribution of assignment of Civil Penalty
cases among the office is disputed. Sterling submits that he was
assigned more cases.
In support of his contention that he was
assigned “an inordinately large number of cases” and that he “was
assigned more cases due to experience level, work product level,
and turn-around time,” Sterling cites to his own testimony during
the first EEO investigation, but there is nothing there to support
his contention that he was assigned more cases. He suggested only
that Civil Penalty review work was behind schedule and he completed
work on time and “helped to bring things up to speed.”
11
Sterling contends that the decision to remand was a decision by
Margaret Schneider and David Fish. Relative to the remand, Mr.
Fish sent an email notifying Michael Prendergast, Kevin Sterling,
8
12
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 9 of 39
This was the first time that a Civil Penalty case had been
remanded.
Neither Sterling nor his supervisor, Kovacs, were given
any guidance on the remand.
Like Sterling, Kovacs thought that
the case should not have been remanded: indeed, the case was
remanded even after Sterling and Kovacs told headquarters that the
“new evidence,” which was submitted by Nabors in support of its
appeal of the Civil Penalty, was comprised of false affidavits.
The remand was a BSEE headquarters decision (through David Fish 13
and Mary Aubry 14).
Sterling and Kovacs had several telephone conferences about
the W&T (Nabors) civil penalty case.
Sterling contended in his
EEO complaint and testified in his deposition relative to the
second EEO complaint that he believes the remand was retaliatory
and others (including Margaret Schneider and Mary Aubry) that the
case was being remanded.
Sterling explained that the company
appealed the penalty assessment and that management decided to
remand the case instead of defending his penalty assessment in
court.
13 Mr. Fish was the Chief of Environmental Compliance, BSEE. He
works in Washington, D.C. He has never met Mr. Sterling and has
no knowledge of Sterling’s race, color, or age.
He had no
knowledge of Sterling’s EEO activity until after Sterling filed
his second complaint; he was contacted by Human Resources for some
documents in February or March 2016. He assisted in the management
of the CP Program.
14 Mary Aubrey, Assistant U.S. Attorney for the Eastern District of
Tennessee, was on detail to BSEE from February 2012 to March 31,
2017.
Ms. Aubrey has never met Sterling.
She learned about
Sterling’s second EEO complaint around October 2016. She has no
knowledge of Sterling’s race or age. She also assisted in the CP
Pilot Program.
9
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 10 of 39
because “no other cases have been remanded before...management
couldn’t even give a good reason on why they remanded.”
Sterling
also suggests that the timing of the remand on the heels of his
prior EEO complaint coupled with the fact that the decision to
remand the case was made in spite of falsified affidavits executed
by W&T (Nabors) supports his retaliation theory.
Shortly
after
Sterling
received
an
email
confirming
the
remand of the Nabors case, he received an email notifying him that
two of his cases had been assigned to the Civil Penalty Pilot
Program. 15
The Civil Penalty Pilot Program was a BSEE Headquarters
initiated study whose purpose was to streamline the Civil Penalty
Process; it was initiated to track the timeline from the issuance
of an Incident of Non-Compliance to the issuance of a Civil Penalty
and determine how long the process took and whether the timeline
established by Headquarters was realistic or needed to be revised.
The Pilot Program intended to determine whether the process to
review and assess each case could be accomplished within 60 to 90
days, instead of the 90 day benchmark.
started
in
the
summer
of
2015
by
The pilot program was
Dianne
Shawley
in
BSEE
Headquarters in Sterling, Virginia.
Sterling submits that four out of the five cases assigned to the
Program were his cases.
10
15
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 11 of 39
The CP Pilot Program lasted until May 18, 2016 and was
considered a success in meeting its goals and, as a result, the CP
roadmap was to be revised to more accurately reflect the processes
in the field.
The Civil Penalty Referral and Assessment guide
calls for Civil Penalty Review Officers to complete their review
and assessment within 60 to 90 days.
It also indicated the need
for additional future staffing and called for the creation of a
District or Program Office Case File Developer, a newly established
function to assist with referrals of Civil Penalty cases. Sterling
thought the Civil Penalty Pilot Program was a great idea because
he
believed
prescribed
that
his
timeline
colleagues
for
were
completing
not
the
meeting
penalty
the
90-day
case
review
assessment.
The
CP
Pilot
Program
consisted
of
numerous
telephone
conference calls, sometimes weekly, among various agency employees
(including
Sterling
on
two
occasions)
in
the
field
and
in
headquarters; the participants discussed the status of the cases
being tracked.
Sterling was invited to participate in a telephone
conference on March 29, 2016 along with other employees about the
Civil Penalty Pilot Program.
During the conference, the two test
cases that were previously selected by BSEE Headquarters for
11
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 12 of 39
inclusion in the Pilot Program were discussed. 16 Both cases, Walter
and Hercules, which involved the same incident, happened to be
Sterling’s
due
to
the
Enforcement Section. 17
order
in
which
they
arrived
in
the
Sterling had two other cases assigned to
the CP Pilot Program.
Both
of
Sterling’s
administrative
EEO
complaints
were
investigated; Sterling forewent an EEO hearing and final agency
decision. Sterling sued Sally Jewell in her then-official capacity
as Secretary of the Department of the Interior; he also named as
defendants the Department of the Interior and the Bureau of Safety
and Environmental Enforcement.
Sterling later filed an amended
complaint replacing Jewell with Ryan Zinke as the Secretary of the
Department of the Interior, but he continued to name as additional
defendants the Department of the Interior and the Bureau of Safety
and Environmental Enforcement. 18
He alleges that the defendants
engaged
practices
in
unlawful
employment
including
disparate
treatment, based on his race, which prevented him from receiving
earned pay increases and promotion opportunities, and that the
Diane Shawley (now retired), Senior Advisor for Enforcement
Programs, BSEE, selected the cases for the CP Pilot Program.
17
Sterling contests that these two cases were coincidentally
selected for inclusion in the Pilot Program; he claims it was an
act of retaliation meant to undermine his effectiveness and
reputation and force him to quit.
18 Zinke has since resigned; David Bernhardt is Acting Secretary.
See Fed. R. Civ. P. 25(d).
12
16
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 13 of 39
defendants retaliated against him after he filed an EEO complaint,
in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e, et seq. and the Louisiana Employment
Discrimination Law.
The defendants now move for summary judgment
or dismissal of the plaintiff’s claims.
I.
A.
The subject matter jurisdiction of federal courts is limited.
Kokkonen v. Guardina Life Ins. Co. of Am., 511 U.S. 375, 377
(1994).
Indeed, "[i]t is to be presumed that a cause lies outside
this limited jurisdiction," the Supreme Court has observed, "and
the burden of establishing the contrary rests upon the party
asserting jurisdiction."
Id. (citations omitted); King v. U.S.
Dep't of Veterans Affairs, 728 F.3d 410, 416 (5th Cir. 2013);
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
Motions filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure allow a party to challenge the Court’s subject matter
jurisdiction. Fed. R. Civ. P. 12(b)(1). A lawsuit must be dismissed
if it appears that the Court lacks subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1), (h)(3).
13
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The Court may find a plausible set of facts to support subject
matter jurisdiction by considering any of the following: “(1) the
complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint supplemented
by undisputed facts plus the court's resolution of disputed facts.”
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996).
B.
In addition to the jurisdictional challenge, the defendants
also seek dismissal of the plaintiff’s claims for failure to state
a claim under Rule 12(b)(6).
motions
to
dismiss
under
The standard of review applicable to
Rule
12(b)(1)
is
similar
to
that
applicable to motions to dismiss under Rule 12(b)(6). See Williams
v. Wynne, 533 F.3d 360, 364-65 n.2 (5th Cir. 2008)(observing that
the Rule 12(b)(1) and Rule 12(b)(6) standards are similar, but
noting that applying the Rule 12(b)(1) standard permits the Court
to consider a broader range of materials in resolving the motion).
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for failure to state a
claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
14
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 15 of 39
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
"[T]he
pleading
'detailed
standard
factual
Rule
8
allegations,'
announces
but
it
does
demands
not
more
require
than
an
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.”
See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)).
But, in deciding whether dismissal is
warranted, the Court will not accept conclusory allegations in the
complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at 678).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
15
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 16 of 39
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”
footnote omitted).
Twombly, 550 U.S. at 555 (citations and
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
misconduct alleged.”
that
the
defendant
is
liable
for
the
Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”).
This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”
Id. at 679.
“Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).
“[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at
555 (alteration in original) (citation omitted).
16
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C.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A genuine
dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.
See
id.
Therefore,
"[i]f
the
evidence
is
merely
colorable, or is not significantly probative," summary judgment is
appropriate.
Id. at 249-50 (citations omitted).
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
17
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 18 of 39
competent evidence, such as affidavits or depositions, to buttress
his claims.
Id.
Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
defeat
summary
judgment
"[T]he nonmoving party cannot
with
conclusory
allegations,
unsubstantiated assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).
In deciding whether a fact
issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007).
Although the Court
must "resolve factual controversies in favor of the nonmoving
party," it must do so "only where there is an actual controversy,
that is, when both parties have submitted evidence of contradictory
facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th
Cir. 2013)(internal quotation marks and citation omitted).
18
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II.
A.
In addition to Title VII claims, Sterling alleges that the
defendants’
employment
discrimination law.
practices
violate
Louisiana
employment
The defendants contend that these state law
causes of action must be dismissed.
The Court agrees.
Redress for federal employment discrimination is limited to
Section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e16.
Brown v. General Serv. Admin., 425 U.S. 820, 829 (1976)
(holding that Section 717 of the Civil Rights Act of 1964 “provides
the exclusive judicial remedy for claims of discrimination in
federal employment.”); see also Jackson v. Widnall, 99 F.3d 710,
716 (5th Cir. 1996)(“Insofar as [the plaintiff’s] allegations of
constitutional violations arise out of the same facts as his
employment discrimination claims,...they are preempted by title
VII and cannot afford an independent ground for relief.”); see
also Hampton v. I.R.S., 913 F.2d 180, 182-83 (5th Cir. 1990)(“It
is well settled that the provisions of Title VII of the Civil
Rights Act applicable to claims of racial discrimination in federal
employment
claims.”).
are
the
exclusive
and
preemptive
remedy
for
such
Because Title VII provides the exclusive remedy for
19
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 20 of 39
employment
discrimination
claims
raised
by
federal
employees,
Sterling’s state law causes of action must be dismissed.
B.
In addition to naming the Secretary of the Department of the
Interior as a defendant, Sterling also named as defendants the
Department
of
Environmental
the
Interior
Enforcement.
and
The
the
Bureau
defendants
of
contend
Safety
and
Sterling’s
claims against the Department and the Bureau must be dismissed
because only the head of an agency is the appropriate defendant in
an employment discrimination action under Title VII.
Again, the
Court agrees.
The proper defendant in a Title VII claim is the head of the
department or agency.
42 U.S.C. § 2000e-16(c)(“the head of the
department, agency, or unit...shall be the defendant” in any civil
action filed); Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir.
1988)(applying the relevant statutory provisions and holding that
the proper defendant would be the head of the Department of the
Defense, the Secretary of Defense, rather than the Commander of
the Army & Air Force Exchange Service, which is itself a part of
the Department of Defense).
It was improper for Sterling to name
as defendants the Department of the Interior and the Bureau of
20
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 21 of 39
Safety and Environmental Enforcement; thus, his claims against
them must be dismissed.
III.
A.
Title VII of the Civil Rights Act of 1964 was enacted “to
assure equality of employment opportunities and to eliminate those
discriminatory practices and devices which have fostered racially
stratified
citizens.”
(1973).
job
environments
to
the
disadvantage
of
minority
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800
It prohibits employers from discriminating “against any
individual with respect to his compensation, terms, conditions, or
privileges
of
employment,
because
of
such
color, religion, sex, or national origin.”
2(a)(1).
Employers
are
also
precluded
individual’s
race,
42 U.S.C. § 2000efrom
retaliation,
or
“discriminat[ing] against” any employee or job applicant because
that individual “has opposed any practice” made unlawful by Title
VII or because that individual has “made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing” under Title VII.
See 42 U.S.C. § 2000e-
3(a); see also LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d
383, 388 (5th Cir. 2007)(quoting 42 U.S.C. § 2000e-3).
21
Similarly,
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 22 of 39
the
federal
employment
provision
of
Title
VII
states:
“All
personnel actions affecting [federal] employees ... in executive
agencies ... shall be made free from any discrimination based on
race, color, religion, sex, or national origin.”
42 U.S.C. §
2000e-16.
Although a plaintiff may prove his claim of intentional
discrimination
(or
retaliation) 19
by
direct
or
circumstantial
evidence, there is nothing in the record to indicate that the
plaintiff has direct evidence; accordingly, absent direct evidence
of disparate treatment or retaliation, Sterling must prove his
case
through
Shreveport,
circumstantial
492
F.3d
551,
evidence.
556
(5th
See
Cir.
McCoy
2007).
v.
City
of
Claims
of
discrimination or retaliation based on circumstantial evidence are
analyzed in accordance with the familiar McDonnell Douglas burdenshifting regime.
See Hunt v. Rapides Healthcare System, LLC, 277
F.3d 757, 768 (5th Cir. 2001).
This three-part framework first
requires the plaintiff to make a prima facie case of discrimination
(or retaliation).
Morris v. Town of Independence, 827 F.3d 396,
400 (5th Cir. 2016).
If the plaintiff makes this showing, a
presumption of discrimination (or retaliation) arises and the
“[C]laims of intentional discrimination, which include racial
discrimination and retaliation based on Title VII [are considered]
under the same rubric of analysis.” Raggs v. Miss. Power & Light
Co., 278 F.3d 463, 468 (5th Cir. 2002).
22
19
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 23 of 39
burden of production shifts to the defendant employer to articulate
a legitimate non-discriminatory or non-retaliatory reason for the
adverse employment action.
Id.
If the defendant satisfies that
burden of production, then the inference of discrimination or
retaliation disappears and the burden shifts back to the plaintiff,
who
must
prove
by
a
preponderance
of
the
evidence
that
the
proffered reason was merely a pretext for racial discrimination
(or retaliation).
Rogers v. Pearland Ind. Sch. Dist., 827 F.3d
403, 408 (5th Cir. 2016). 20
“[T]o demonstrate pretext sufficient
to defeat a motion for summary judgment [on retaliation], an
employee must produce evidence that could lead a reasonable factfinder to conclude that ‘the adverse [employment] action would not
have
occurred
but
for’
the
employee’s
activity protected by Title VII.”
decision
to
engage
Alkhawaldeh v. Dow Chemical
Co., 851 F.3d 422, 427 (5th Cir. 2017).
Notably, the Court does
not assess the credibility of the employer’s explanation.
v.
Sanderson
Plumbing
(2000)(explaining
that
Prods.,
the
production, not persuasion).
in
Inc.,
defendant’s
530
U.S.
burden
Reeves
133,
is
one
142
of
To prove pretext, the plaintiff must
Instead of pretext, a plaintiff may seek to establish that the
plaintiff’s protected characteristic/activity or the employer’s
discriminatory animus was a motivating factor for the adverse
employment decision, but the plaintiff here has not advanced this
mixed motive argument and, therefore, appears to pursue only a
pretext theory.
23
20
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 24 of 39
demonstrate
“both
that
the
reason
discrimination was the real reason.”
was
false,
and
that
St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (2007)(emphasis in original).
To
make
out
a
prima
facie
case
of
Title
VII
racial
discrimination, Sterling must demonstrate that (1) he is a member
of a protected group; (2) he was qualified for the position at
issue; (3) he was subject to an adverse employment action; and (4)
he was treated less favorably than a similarly situated employee
outside
of
his
circumstances.
(5th Cir. 2009).
protected
group
under
nearly
identical
Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259
To establish a prima facie case of retaliation,
Sterling must present evidence that (1) he engaged in protected
activity; (2) an adverse employment action resulted; and (3) the
protected activity and the adverse action are causally linked.
Baker v. American Airlines, Inc., 430 F.3d 750, 754 (5th Cir.
2005)(citations omitted).
“[T]o establish the causation prong of
a retaliation claim, the employee should demonstrate that the
employer knew about the employee’s protected activity[, which]
requires ‘more than mere curious timing coupled with speculative
theories.’”
EEOC v. EmCare, Inc., 857 F.3d 678, 683 (5th Cir.
2017) (citations omitted).
24
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 25 of 39
Only ultimate employment decisions such as “hiring, granting
leave,
discharging,
adverse
employment
discrimination
provision
is
promoting,
actions
claims.
not
limited
in
and
the
However,
to
compensation”
context
Title
“ultimate
of
VII’s
constitute
Title
VII
race
antiretaliation
employment
decisions;”
rather, an adverse employment action “covers those (and only those)
employer actions that would have been materially adverse to a
reasonable employee or job applicant.... [T]hat means that the
employer’s actions must be harmful to the point that they could
well dissuade a reasonable worker from making or supporting a
charge of discrimination.” Burlington No. & Santa Fe Ry. V. White,
548 U.S. 53, 68 (2006). 21
In Burlington Northern, the Supreme Court overruled the Fifth
Circuit’s stricter standard for adverse employment action in the
retaliation context in a private sector case and clarified the
standard for bringing a retaliation claim under Section 2000e3(a), the private sector provision of Title VII. The Court assumes
without deciding that this standard applies equally to federal
employees. The Fifth Circuit has declined to decide whether the
Burlington Northern standard only applies to private sector
employees such that public sector employees alleging retaliation
must satisfy the stricter standard by showing that there has been
an ultimate employment decision such as hiring, granting leave,
discharging, promoting, and compensating. Porter v. Shineski, 650
F. Supp. 2d 565, 573-74 (E.D. La. 2009)(observing trend among
unpublished Fifth Circuit cases to apply Burlington Northern’s
standard to federal employees).
21
25
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 26 of 39
B.
1.
Disparate Treatment based on Race
The Secretary submits that he is entitled to judgment as a
matter of law dismissing Sterling’s disparate treatment claim
because he cannot satisfy his prima facie burden of showing that
he
was
treated
less
favorably
than
employees outside the protected group.
other
similarly
situated
Even if he could satisfy
his prima facie burden, the Secretary submits that the plaintiff
cannot show that the Secretary’s non-discriminatory reason for the
reclassification delay was a mere pretext for discrimination.
As for Sterling’s prima facie case of Title VII disparate
treatment based on his race, there is no dispute that Sterling is
a member of a protected class who was qualified for the position
(to which he was ultimately reclassified).
As to the third aspect
of the prima facie case, the Secretary takes issue with whether
“denial of a desk audit” is an adverse employment action.
But
that is an oversimplification and semantics do not dictate the
presentation of issues in this case. 22
More than being denied a
The Court will not indulge form over substance in determining
whether the facts of record fall within the limited scope of an
adverse employment action where, as here, it is undisputed that
Sterling’s promotion/ reclassification was delayed and that -once reclassified to a position in which he was being paid for the
work he was doing -- Sterling was denied back pay.
22
26
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 27 of 39
desk audit, the facts in the record show that Sterling’s promotion
to a higher paying job was delayed, and that he was denied back
pay once the promotion was effectuated. 23
a
promotion,
unaccompanied
by
any
To be sure, a delay in
adverse
necessarily an adverse employment action.
effects,
is
not
See Benningfield v.
City of Houston, 157 F.3d 369, 378 (5th Cir. 1998)(“[w]e need not
address whether a mere delay in promotion constitutes an adverse
employment action because Benningfield received the promotion with
retroactive pay and seniority.”).
But, here, it is undisputed
that Sterling’s promotion was delayed and he was denied back pay,
which the case literature acknowledges is an adverse effect.
See
id.; see also Dailey v. Whitehorn, 539 Fed.Appx. 409, 411-12 (5th
Cir.
2013)
(finding
that
the
plaintiff
cannot
show
adverse
employment action in delayed promotion scenario where there was no
accompanying adverse effect such as change in salary); see also
Mylett v. City of Corpus Christi, 97 Fed.Appx. 473, 475 (5th Cir.
2004)(“A delay in promotion is not an adverse employment action
where any increase in pay, benefits, and seniority are awarded
retroactively.”).
There is no factual controversy that Sterling
performed work consistent with a higher paying position for some
Indeed, it is undisputed that Sterling was performing work above
his pay grade for some time before being reclassified and getting
compensated for the work he was actually doing.
27
23
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 28 of 39
time,
but
his
technical
promotion
and
reclassification
were
delayed by his employer, then back pay was denied; the adverse
effect of the denial of back pay, which accompanied the delay in
promotion, rises to the level of an adverse employment action. 24
He has satisfied this element of his prima facie case.
As to the final element of his prima facie case, to be
considered a proper Title VII “comparator” for the purposes of the
fourth “similarly situated” prong of the disparate treatment prima
facie case, the plaintiff must show that the employment actions
being compared occurred under “nearly identical circumstances.”
Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
In
defining
the
degree
of
similarity
of
comparators
to
complainants, the Fifth Circuit has instructed:
Employees with different supervisors, who work for
different divisions of a company or who were the subject
of adverse employment actions too remote in time from
that taken against the plaintiff generally will not be
deemed similarly situated. Likewise, employees who have
different work responsibilities or who are subjected to
The Court acknowledges that the Secretary points to the appendix
to the Introduction to the Position Classification Standards
issued by the U.S. Office of Personnel Management in support of
why Sterling was not eligible for back pay.
However, no party
mentions
the
case
literature
addressing
promotion
delays
accompanied by failure to award back pay and, therefore, neither
side addresses the conflict between the cited appendix and the
case literature concerning what constitutes an adverse employment
action under Title VII.
24
28
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 29 of 39
adverse employment action for dissimilar violations are
not similarly situated. This is because we require that
an employee who proffers a fellow employee as a
comparator demonstrate that the employment actions at
issue were taken “under nearly identical circumstances.”
The employment actions being compared will be deemed to
have been taken under nearly identical circumstances
when the employees being compared held the same job or
responsibilities, shared the same supervisor or had
their employment status determined by the same person,
and have essentially comparable violation histories.
Id. at 259-60 (noting, however, that “a requirement of complete or
total identity rather than near identity would be essentially
insurmountable” and, therefore, declining to interpret “nearly
identical” as synonymous with “identical.”).
Whether Sterling has presented a threshold prima facie case
of racial discrimination thus turns on whether those he identified
as
comparators
are
similarly
situated
to
him.
If
Sterling
establishes this fourth element of his prima facie case, the burden
shifts
to
the
Secretary
to
demonstrate
he
had
a
legitimate
nondiscriminatory reason for taking the adverse action against
Sterling.
In his opposition papers, Sterling identifies the following
individuals as comparators:
Moser.
David Dykes, Tim McGraw, and Cathy
Without citations to the record, 25 Sterling submits that
The Court considers Sterling’s sworn statements concerning
comparators, but there is a dearth of information and no pin cite
29
25
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 30 of 39
David Dykes is like Sterling because he does similar work and,
“[w]hen his supervisors became aware that Dykes, while classified
as a 301 employee, was fully qualified to supervise the work of
degreed engineers, he was quickly reclassified as a 881 employee
supervisor.”
As for Tim McGraw and Cathy Moser, again without
citation to the record, Sterling suggests that these 301 series
employees were reclassified “within a month of their job duties
being assessed and determined to be non-commensurate with their
compensation.”
McGraw, it is submitted, was reclassified as an
1801 series employee and Moser, a geologist, was promoted to a
1350 series employee.
In his affidavit, Sterling states that
Moser’s reclassification occurred in 2011 and McGraw’s occurred in
2014 “when the Bureau raised the salaries of its engineers and
1801 series employees.” 26
The Secretary takes issue with these
comparators, arguing that “there is no assertion or evidence that
to the voluminous record indicating where additional facts might
be found to assist the Court in determining whether Sterling has
shown that other white employees were treated better under nearly
identical circumstances.
26 Notably, Sterling concedes that other 301 series employees, who
performed different duties than Sterling, but who were also
eligible for reclassification, but reclassification was delayed.
Sterling concludes: “one could reasonably assume that [Caucasion
employees] Nagy and Carroll’s reclassification was only been
delayed because they sought a reclassification with Belson [an
African American employee].”
30
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 31 of 39
their
reclassifications
occurred
during
such
bureaucratic
upheaval.”
The Court finds that Sterling has failed to carry his burden
to show that the proffered comparators are sufficiently similarly
situated to him. 27
audit
until
Sterling admits that he did not request a desk
September
2015.
Moser
was
a
geologist
whose
reclassification from a 301 series employee to a 1350 series
employee was achieved in 2011, which is when Sterling was promoted
to GS-0301-13 series and which, he admits, is before he began
performing duties that exceeded those traditionally prescribed for
a 301 series employee. 28
Sterling says that McGraw was promoted
in 2014 “once management became aware that compensation was not
commensurate with his job duties,” but he offers little more on
who initiated or how long the process took to elevate McGraw. 29
Similarly, Sterling fails to identify more information regarding
Dykes, making it difficult to determine whether Dykes is a suitable
Again, Sterling concedes that other employees outside of the
protected class likewise experienced delayed reclassification.
This undermines his disparate treatment theory.
28 The
defendant submits that Moser was a geologist, which is
nowhere close to a SEMS Specialist and that she worked under a
different supervisor.
29 As for McGraw, the defendant submits that he is an Inspector,
occupies a different job series than Sterling, and reports to a
different supervisor.
31
27
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 32 of 39
comparator or information on the circumstances and timing under
which Dykes was promoted. 30
Even
if
Sterling
created
an
issue
of
fact
concerning
comparators, or otherwise established his prima facie case of race
discrimination, the defendant submits that summary judgment is
nevertheless appropriate because it has articulated a legitimate
non-discriminatory
reason
for
the
reclassification: bureaucracy.
delay
in
Sterling’s
That is, the Secretary submits
that the delay in reclassifying Sterling resulted from a confluence
of factors beginning with Sterling’s initial supervisor, Mathews,
who deemed it prudent to draft a new position description rather
than
initiate
a
description
was
realignment
desk
not
then
audit.
accepted
brought
But
by
Mathews’
HR’s
Sterling
proposed
Vanessa
into
the
position
Matthews.
new
Office
The
of
Enforcement under new supervisor, Kovacs, who then took over the
responsibility of drafting an acceptable position description.
Kovacs worked with the staffing specialist from BSEE Headquarters,
who had taken over for retired Vanessa Matthews.
realignment
time,
the
Secretary
submits,
there
During this
was
increased
demand Bureau-wide for new positions so several more months passed
The defendant submits that Dykes is an engineer, a supervisor,
a grade higher, and in a different job series than Sterling.
32
30
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 33 of 39
before Sterling’s new position description was finalized and he
was placed into the 1801 Investigator Series at a grade 13.
Sterling dismisses the Secretary’s non-discriminatory reason,
noting in conclusory fashion that “this purported excuse fails to
refute Plaintiff’s evidence of disparate treatment.”
seems
to
challenge
the
credibility
of
the
Sterling
Secretary’s
nondiscriminatory reason and urges the Court to decline to defer
to it.
In so arguing, the plaintiff ignores the familiar burden-
shifting framework applicable to his claim.
Having proffered a non-discriminatory explanation for its
inaction,
the
burden
shifts
to
the
plaintiff
to
prove
by
preponderant, admissible evidence that the reason is pretextual.
Notably, the burden on the employer at this stage “is one of
production,
not
assessment.’”
Cir.
2007)
persuasion;
it
‘can
involve
no
credibility
Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th
(citations
omitted).
“To
overcome
a
legitimate,
nondiscriminatory reason for termination, the plaintiff must show
something
Wittmer
beyond
v.
disagreement
Phillips
66
2019)(citation omitted).
Co.,
with
the
915
F.3d
employer’s
328,
332
decision.”
(5th
Cir.
Indeed, the plaintiff must demonstrate
“both that the reason was false, and that discrimination was the
real reason.”
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515
33
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 34 of 39
(1993)(emphasis
in
original).
To
be
sure,
“an
employee’s
‘subjective belief of discrimination’ alone is not sufficient” for
an employee to satisfy his burden to produce “substantial evidence”
of pretext.
Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400,
402-03 (5th Cir. 2001)(citations omitted).
To overcome the bureaucracy debacle excuse, Sterling must
demonstrate pretext by showing that that explanation is false and
by
showing
treatment.
any
or
raising
a
triable
issue
regarding
disparate
The Secretary submits that Sterling has not produced
evidence
that
challenges
its
excuse
for
the
delay
in
reclassification, other than to suggest that other BSEE employees
had, in other circumstances, during different time frames, and in
sections other than SEMS (or its succeeding iteration, the Office
of Enforcement) obtained new position descriptions or position
reclassifications
with
less
hassle.
The
Court
agrees:
the
plaintiff submits no evidence to satisfy his “substantial burden”
to show pretext. 31
The plaintiff also argues that the defendant fails to “cite a
single instance of a Caucasian employee not receiving pay
commensurate with their job duties and responsibilities,” noting
that “[t]he only example of Defendant dying or delaying a Caucasian
employee fair compensation commensurate with his or her job duties
and responsibilities was when that employee was grouped with other
African American employees also seeking just compensation.” This
argument ignores that it is the plaintiff’s burden to prove pretext
34
31
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 35 of 39
The plaintiff has offered nothing that would undermine the
Secretary’s non-discriminatory explanation (i.e., that multiple
supervisors met with red tape during a reorganization during the
attempts to draft a new position description for Sterling), which
is amply supported by the record.
The plaintiff likewise fails to
offer any evidence that would support a finding that race played
any part in the delay that preceded his reclassification. 32
The
defendant is entitled to judgment as a matter of law dismissing
Sterling’s Title VII disparate treatment claim based on race. 33
and also appears to be a concession that the burden cannot be met
on the undisputed record.
32 Although
the Court understands Sterling’s frustration at the
undisputed chaotic mismanagement and the length of time it took so
many people to implement a new position description, viewing the
evidence in the light most favorable to Sterling, there is no
indication in the summary judgment record that racial animus played
any part in the delay (and, as far as being denied back pay,
according to the record, that was due to a written policy, not a
subjective decision by the employer). In fact, Sterling nowhere
argues, much less presents supporting facts, as to how the
reorganization and shuffling through a series of different
supervisors disguised a motive for race discrimination against
him. More particularly: (a) Sterling identifies employees outside
of his protected class that he concedes likewise experienced
delayed reclassification; and (b)
Sterling offers no evidence
that any of his supervisors or HR personnel evinced a bias or
treated more favorably similarly situated employees outside of his
protected class under nearly identical circumstances. Rather, he
simply speculates that the delay must be due to his race.
Speculation is not sufficient to withstand summary judgment.
33 Cf. Butler v. Young, 1984 WL 49015, at *7 (D.D.C. Dec. 27, 1984):
[The plaintiff’s] underlying discontent reflects in part
the rigidity and bureaucratic nature of the government’s
personnel structure and practices. Title VII is not the
35
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 36 of 39
2.
Retaliation
The Secretary next submits that summary relief dismissing
Sterling’s
Title
VII
retaliation
claim
is
Sterling fails to make out a prima facie case.
warranted
because
The Court agrees.
To establish a prima facie case of retaliation, Sterling must
present evidence that (1) he engaged in protected activity; (2) an
adverse employment action resulted; and (3) the protected activity
and the adverse action are causally linked.
Airlines,
omitted).
Inc.,
430
F.3d
750,
754
(5th
Baker v. American
Cir.
2005)(citations
“[T]o establish the causation prong of a retaliation
claim, the employee should demonstrate that the employer knew about
the employee’s protected activity[, which] requires ‘more than
mere curious timing coupled with speculative theories.’”
EmCare,
Inc.,
857
F.3d
678,
683
(5th
Cir.
2017)
EEOC v.
(citations
omitted); DeHart v. Baker Hughes Oilfield Operations, Inc., 314
Fed.Appx. 437, 442-43 (5th Cir. 2007)(citations omitted)(Although
“[c]lose
timing
between
the
protected
activity
and
adverse
tool to remedy such deficiencies.
What is required
instead is greater sensitivity on the part of personnel
managers in the federal system and creation of more
flexible
personnel
mechanisms
to
provide
highly
competent professionals of any race or sex expanded
opportunity to serve the public in roles commensurate
with their abilities.
36
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 37 of 39
employment action may provide a causal link[,] the mere fact that
some adverse action is taken after an employee engages in some
protected activity will not always be enough for a prima facie
case.”).
There is no dispute that Sterling’s formal EEO complaint filed
on
December
21,
2015
was
protected
activity.
The
defendant
challenges Sterling’s ability to show either an adverse employment
action or a causal link between the protected activity and the
adverse employment action.
In March 2016, Sterling submits that
his workload and stress level increased when the Nabors case was
remanded and a few of his most difficult cases were fast-tracked
by being assigned to the pilot program; he also seems to allege
that his reclassification was still being dragged out and delayed
and he was denied back pay.
It seems at best arguable as to
whether the remand or assigning cases to the fast track pilot
program would dissuade a reasonable worker from making a charge of
discrimination.
to
the
pilot
Regardless of whether the remand, the cases added
program,
and
the
further
delay
in
reclassification/denial of back pay are adverse actions, however,
Sterling has failed to establish the causation element of his prima
facie case.
He has not shown that his EEO complaint was a but-
for cause of the Nabors case being remanded, his other cases being
37
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 38 of 39
added to the pilot program, or additional delay experienced in
getting his position description reclassified.
The decision to remand the Nabors case and the decision as to
which cases to allot to the CP Pilot Program were made nearly three
months after his EEO complaint and, notably, those decisions were
not made by Sterling’s immediate superiors; he concedes those
decisions
originated
management. 34
In
in
national
addition
to
the
headquarters,
relative
lack
not
regional
of
temporal
proximity between his EEO complaint and these employment actions,
there is no evidence in the summary judgment record that any of
these decisionmakers in national headquarters knew about his EEO
activity.
Thus, any attempt to prove a causal link between his
protected activity and these allegedly adverse actions fails. 35
Finally, insofar as Sterling’s reprisal submission can be
read to challenge the defendant’s failure to give him back pay
Notably, it is undisputed that Sterling’s immediate supervisors
disagreed with the remand decision and that the CP Pilot Program
was initiated in the Summer of 2015, which is before Sterling filed
his EEO complaint.
35 The record indicates that David Fish and Mary Aubrey were the
decisionmakers on the Nabors remand decision.
Neither had any
knowledge of Sterling’s EEO activity until after Sterling filed
his second complaint or at the earliest after the Nabors remand.
Sterling points to nothing in the record to indicate that Diane
Shawley, who selected the cases for inclusion in the CP Pilot
Program -- a program that had its genesis in Summer 2015 -- had
any knowledge regarding Sterling’s December 2015 EEO complaint.
38
34
Case 2:17-cv-00742-MLCF-JVM Document 78 Filed 03/18/19 Page 39 of 39
once his position description was finalized and realignment was
effectuated, the record shows that Sterling was not awarded back
pay because a written policy precluded such an award.
According
to the written policy, no employee is eligible for back pay because
an
agency
may
not
make
a
classification
action
effective
retroactively. Regardless of the fairness of this policy, Sterling
cannot show that back pay was denied in retaliation for his
protected activity. The record shows that the defendant was simply
applying a general policy to Sterling, not retaliating against him
for complaining about racial discrimination.
See Manning v.
Chevron Chemical Co., LLC, 332 F.3d 874, 884 (5th Cir. 2003).
Accordingly, for the foregoing reasons, IT IS ORDERED that
the defendants’ motion to dismiss or for summary judgment is
GRANTED;
the
plaintiff’s
claims
are
hereby
dismissed
prejudice.
New Orleans, Louisiana, March 18, 2019
_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
39
with
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