Pujji v. Buttigieg
Filing
106
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment, Doc. 80 , is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to File Under Seal, Doc. 94 , is GRANTED. IT IS FINALLY ORDERED that th e parties must complete alternative dispute resolution no later than March 17, 2025. A separate order referring the case to alternative dispute resolution will issue. ( ADR Completion Deadline due by 3/17/2025., ADR Compliance Report Deadline due by 3/31/2025.) Signed by District Judge Sarah E. Pitlyk on 01/29/2025. (KRZ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HARVINDER S. PUJJI,
v.
)
)
)
)
)
)
)
)
Plaintiff,
PETE BUTTIGIEG,
Defendant.
No. 4:21-cv-00445-SEP
MEMORANDUM AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment. Doc. [80]. The motion
is fully briefed and ready for disposition. For the reasons set forth below, the motion is denied.
FACTS AND BACKGROUND 1
Plaintiff Harvinder Pujji brings this employment discrimination lawsuit against the
United States Secretary of the Department of Transportation in his official capacity. After he
was terminated from his job as an Aviation Safety Inspector (ASI) for the Federal Aviation
Administration’s (FAA) St. Louis Flight Standards District Office (FSDO), Plaintiff filed an
amended complaint alleging violations of his rights under Title VII of the Civil Rights Act of
1964. Doc. [6]. Plaintiff alleges that Defendant (1) discriminated against him based on his race,
religion, and national origin; (2) retaliated against him for engaging in protected activity; and
(3) created a hostile work environment. 2 Id.
Plaintiff was born in India and became a naturalized American citizen in 2008. Doc.
[100] at 57-58. As a practicing Sikh, he wears a beard and traditional turban headwear. Id. at
57. In the summer of 2001, Plaintiff accepted a position with the FAA’s St. Louis FSDO, and he
began working for the FAA two days before the September 11, 2001, terrorist attacks. Id. at 59.
In April 2002, Plaintiff was terminated and was told that his termination was because he was not
an American citizen. Id. at 59. Plaintiff initiated an administrative proceeding, asserting that his
termination was discriminatory. Id. at 60. In January 2003, the dispute was resolved when the
1
Unless otherwise noted, the facts in this section are not disputed.
2
Plaintiff voluntarily dismissed claims of age and disability discrimination. See Doc. [97] at 8 n.1.
FAA agreed to allow Plaintiff to return to work at the agency as a contract employee for three
years, after which he left the FAA to work in the private sector. Id. at 60.
Plaintiff returned to work for the FAA’s St. Louis FSDO in June 2014. Id. at 61. In
September 2014, Plaintiff received an anonymous letter that was addressed to his supervisor,
Front Line Manager (FLM) Joel Pettus. Id. at 61-62. The anonymous letter referred to Plaintiff
in derogatory terms such as “Mr. Turban head” and warned FLM Pettus to “WATCH THE
TURBAN.” Id. at 62. Plaintiff gave the anonymous letter to Pettus, who sent it to the FAA’s
human resources (HR) department Id. at 63. When Plaintiff was interviewed about the
anonymous letter by a special agent, the questions gave him the impression that he was under
investigation, but Defendant denies that the questions targeted Plaintiff. Id. at 63. The FAA’s
records do not reveal how or whether it investigated the anonymous letter, how it determined that
it could not identify the author, or whether any remedial action was taken. Id. at 64. In January
2017, when Plaintiff submitted a hostile work environment complaint—which included an
allegation that management failed to act appropriately in response to the anonymous letter—the
HR department’s official investigation report stated that Plaintiff “should have been informed of
the outcome and closure of [the investigation of the anonymous letter], which may or may not
have been done.” Id.
Plaintiff testified that FAA employees repeatedly referred to him as “turban head” and
commented daily that they could obtain more “turban time” by flying with Plaintiff. 3 Id. at 66;
Doc. [82-2] at 39. In aviation, “turbine” is pronounced the same as “turban,” and “turbine time”
is an important metric that measures the number of hours an aviator has flown an aircraft with a
turbine-powered engine. Id. at 66. Aviators have to accrue turbine time to earn the certification
required to independently operate aircraft with turbine-powered engines. Id. In many
companies, turbine time is critical to getting promoted. Id. at 5. When asked in his deposition
whether he complained to anyone about the “turban time” comments, Plaintiff responded that,
after the FAA’s apparent failure to investigate the anonymous letter, he “felt there’s no use in
Defendant denies that FAA employees “routinely” called Plaintiff “turban head” and remarked “on a
daily basis” that they could earn more “turban time” by flying with him, noting that “Pujji’s self-serving
testimony” is the only evidence supporting those claims. Doc. [100] at 66. But Defendant admits that
Plaintiff received the September 2014 anonymous letter. Id. at 7. And Defendant admits that, on separate
occasions in 2017 and 2018, two different FAA employees referred to “Pujji’s turban and both instances
were reported to the Accountability Board.” Id. at 66.
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complaining” because it would “not . . . get [him] anything. . . . And if [he] start[ed] objecting to
these kind[s] of things, it w[ould] create more waves and more problems for [him].” Id. at 64;
Doc. [82-2] at 39. 4
When FLM Pettus was his supervisor between May 2014 and May 2016, Plaintiff
received positive performance reviews. Doc. [100] at 61, 69-70. Plaintiff also received annual
pay raises throughout his tenure at the FAA, each of which stated that his “work performance
[wa]s at an acceptable level of competence.” Id. In December 2015, Plaintiff attended a
conference during which a senior FAA official encouraged operations inspectors to conduct
flight reviews in their private capacity for other aviators. Id. at 74. Based on that guidance,
Plaintiff conducted a flight review without compensation for another member of the St. Louis
aviation community in June 2016. Id.
In May 2016, Lawrence Sadowski became a permanent Front Line Manager and
Plaintiff’s primary supervisor. Id. at 61. Plaintiff testified that employees joked about building
“turban time” by flying with him in front of Sadowski multiple times. 5 Id. at 66; Doc. [82-1] at
27. On October 17, 2016, Sadowski marked several aspects of Plaintiff’s performance as
deficient for the first time and sent Plaintiff a Letter of Expectation asserting that his technical
performance was deficient. Doc. [100] at 70. In the Letter of Expectation, Sadowski listed the
following examples of alleged failures in Plaintiff’s work product: spelling and grammatical
errors, two pages missing from a questionnaire, a checkbox that was marked incorrectly, using
the word “accepted” in a letter instead of “approved,” and not citing authority in a letter granting
temporary approval for contract training. Doc. [82-14] at 2. Sadowski stated that he would
retain a copy of the Letter of Expectation “for a period of one year.” Id.
During his deposition, Plaintiff stated that Sadowski discriminated against him by
singling him out for everything, and “nobody else got the same treatment as [he] did.” Doc.
[82-2] at 16-17. G.R., another ASI who reported to Sadowski, made grammatical and
typographical errors in his work product, but he was not disciplined for those errors. Doc. [100]
at 71; Doc. [82-5] at 29-30 (Sadowski stating that he did not discipline G.R. for mistakes such as
4
The Court refers to the CM/ECF pagination in this Memorandum and Order.
Defendant denies that employees made such jokes in front of Sadowski on multiple occasions, noting
the lack of any evidence other than Plaintiff’s testimony and pointing to Sadowski’s testimony to the
contrary. Doc. [100] at 66.
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typographical errors and omitting necessary information); Doc. [88-4] at 15 (G.R.’s May 16,
2017 Logbook entry containing multiple typographical errors and failing to include necessary
information regarding the aircraft’s weight); Doc. [88-5] at 2 (G.R.’s October 20, 2017, report
containing multiple typographical errors). At weekly team meetings in which the employees
discussed their red-lined work product, Plaintiff observed Sadowski call out other employees’
errors and give them opportunities to correct the errors without additional consequences. Doc.
[100] at 72. Sadowski copied all of Plaintiff’s red-lined work product and kept the copies in a
file. 6 Id.; Doc. [90-6] at 4 (Sadowski stating that he “ha[d] kept copies of documents showing
[Plaintiff’s] poor level of work”).
In April 2017, Sadowski wrote in a letter of recommendation that Plaintiff “is a very
friendly, well-spoken professional. He is also very reliable and dependable.” Doc. [100] at 73.
Sadowski also stated that Plaintiff “may have supervisory and managerial potential.” Id.
On July 31, 2017, Sadowski emailed Gail Sankey in HR, asking what the process was for
placing Plaintiff on an Opportunity to Demonstrate Performance (ODP). 7 Id. at 77; Doc. [90-6]
at 3-4. The Office Manager of the St. Louis FSDP, Guillermo Heredia, was copied on the email.
Doc. [90-6] at 3. Sadowski claimed that he had seen only minimal improvement in Plaintiff’s
work product after the October 2016 Letter of Expectation. Id. He noted he had “documented
this in [Plaintiff’s Performance Management System] and also ha[d] kept copies of documents
showing the poor level of work.” Id. at 4. HR Specialist Jeffrey Duce responded that employees
must be put on notice before they can be considered for an ODP, but that the October 2016
Letter of Expectation would be sufficient because they were within the same fiscal year as the
Letter of Expectation. Id. at 3-4. Duce noted, “The problem one might ask is if [Plaintiff] was
failing in October of last year[,] why has management allowed him to continue to fail for 10
months??” Id. at 4. He then listed the information he needed to draft an ODP for Plaintiff, id.,
Defendant denies that Plaintiff was disciplined for making grammatical and typographical errors and
maintains that Plaintiff did not provide evidence that G.R. committed the same or similar errors as
Plaintiff on a consistent basis. Doc. [100] at 71-72.
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The parties dispute the nature and purpose of an ODP. Doc. [100] at 77. Plaintiff asserts that an ODP is
a component of the FAA’s progressive disciplinary program, whereas Defendant denies that an ODP is
disciplinary. Id. Defendant admits, however, that failing an ODP can lead to discipline, including
reassignment, demotion, and removal from federal service. Id.
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and on August 21, 2017, Sadowski sent Sankey and Duce the requested information. Doc.
[82-16] at 1-2.
On August 8, 2017, during an office-wide meeting about “allowable facial hair and
enroute policies at air carriers,” ASI David Tull said to the crowd, “Harry, you could just rent out
your turban.” Doc. [100] at 67. After an employee reported Tull’s comment, the FAA’s
Accountability Board determined that the comment fell outside of its scope and declined to
discipline Tull. Id.
On October 12, 2017, FLM Sadowski sent Plaintiff a Proposed Removal Notice stating
that in July 2017, he had learned of Plaintiff’s June 2016 flight review. Id. at 74. In the
Proposed Removal Notice, Sadowski claimed that Plaintiff’s June 2016 flight review created an
appearance of a conflict of interest and was grounds for termination. Id. Ten days later, another
FAA employee, Robert Linenweber, sent an email to a senior FAA official, Central Regional
Administrator Joseph Miniace, asking Miniace to intervene on Plaintiff’s behalf and prevent his
termination. Id. at 75; Doc. [90-25] at 2 (“Urgent Request for Intervention to Prevent a Horrible
Injustice to an FAA Inspector”). Linenweber stated that since Plaintiff joined the FAA, his
“Sikh dress has caused him to be singled out for discrimination,” and his “proposed firing is just
one more such event.” Doc. [90-25] at 3. Linenweber explained that he believed the proposed
termination was discriminatory because the FAA endorsed a program allowing aviators to
request flights with inspectors; a senior FAA official had given a presentation encouraging
Plaintiff and other inspectors to conduct flight reviews outside of their duty hours to stay current
on their training; and many inspectors conduct flight reviews outside of their duty hours. 8 Id. at
3-4. Linenweber continued, “Because of the discrimination Inspector Pujji had been subjected to
in the St. Louis office, he searched to find a position in an office where he could be treated
fairly” and found such a position that was also a promotion, but “[c]losely following his FLM’s
learning of Inspector Pujji’s selection for the position, the notice of proposed termination was
issued.” Id. at 4. “In doing so,” Linenweber said, “the FLM blocked Inspector Pujji’s promotion
and escape from his current hostile environment.” Id. Miniace responded that, as a result of
Defendant admits that FAA inspectors were allowed to conduct flight reviews in their private capacity
but notes that Linenweber’s email was silent on whether Plaintiff was authorized to do so without prior
approval and that Plaintiff did not claim to have requested authorization. Doc. [100] at 75. Notably, in
the Proposed Removal Notice, Sadowski cited only the fact that Plaintiff conducted the June 2016 review,
which Defendant now admits was permissible—not the lack of prior approval. Doc. [82-17] at 1-3.
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Linenweber’s email, he had contacted the St. Louis FSDO about Plaintiff’s case and would
continue to monitor the outcome. Doc. [100] at 75.
On December 1, 2017, Plaintiff filed a complaint with the FAA’s Office of Civil Rights,
asserting that his proposed removal was wrongful and discriminatory. Id. at 76. Plaintiff’s
complaint was referred to mediation, which was scheduled for February 2, 2018, and Wayne
Fry, the Division Manager of the St. Louis FSDO and several other regional FSDOs, was
assigned to act as the FAA’s representative at the mediation. Id. On January 16, 2018,
Sadowski sent Plaintiff a Decision on the October 12, 2017, Proposed Removal Notice, finding
that the proposed removal should be reduced to a 30-day suspension from January 28 until
February 26, 2018. Doc. [82-19]. Sadowski confirmed in his deposition that he was aware that
Plaintiff was involved in a mediation related to his discrimination complaint. Doc. [82-5] at 44.
On January 26, 2018, exactly one week before the February 2, 2018, mediation, Sadowski sent a
follow-up email to HR asking about his July 2017 request to place Plaintiff on an ODP. Doc.
[82-16] at 1. On February 1, 2018—the day before the mediation was scheduled to take
place—Fry met with Sadowski and Heredia to discuss “issues regarding Mr. Pujji.” Doc. [100]
at 76. During the February 1st meeting, Fry told Sadowski and Heredia that he wanted Plaintiff
to be “put on an ODP as soon as possible.” Id.; Doc. [82-16] at 1. Fry stated in his deposition
that “we [referring to himself, Heredia, and Sadowski] made the decision to put [Plaintiff] on
ODP. And then we also talked about the best way to make sure it was fair.” Doc. [82-3] at 8.
Fry continued that “part of the discussion was the best way to do that was to not have [Sadowski]
manage the ODP because there had been some challenges there.” Id.; Doc. [82-5] at 37
(Sadowski recounting that Heredia related to him that the ODP “should be done by a different
[Front Line Manager] because Mr. Pujji had expressed feelings that . . . I was singling him out”).
Fry said that “we needed to help [Plaintiff] as much as we could and put him on an ODP to help
him improve his performance,” claiming that an ODP is “a structured process to help the person
improve and get back up to the appropriate level of performance so they can be successful.
That’s our goal.” Doc. [82-3] at 8, 19.
During the February 2, 2018, mediation, Fry offered to reduce Plaintiff’s suspension from
30 days to 20 days and informed him that he would be placed on an ODP for 90 days. Doc.
[100] at 77. If Plaintiff successfully completed the ODP, then Fry said that he would be allowed
to take a position in Scottsdale, Arizona. Id.; Doc. [82-2] at 14-15; Doc. [82-41] at 1 (Plaintiff
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stating that his ODP was suggested by Fry “when [he] refused to accept [Fry’s] proposal during
the mediation. [Fry’s] proposal was that [Plaintiff] would take [his] complaint back and [Fry]
w[ould] reduce [his] suspension to 20 days and an ODP of 90 days, at which time [Plaintiff]
would be able to go to Scottsdale.”). Plaintiff declined Fry’s offer. Doc. [82-2] at 15.
On March 8, 2018, Fry responded by email to an inquiry from Senator Roy Blunt: “After
receiving the Proposal to Remove him from Federal Service, Mr. Pujji responded. Upon review
of his Response, management determined that a 30-day suspension would be the appropriate
action. Mr. Pujji is currently serving that suspension, and returns to work shortly.” Doc. [100] at
22; Doc. [82-21] at 1. Fry explained that Plaintiff had “filed an EEO complaint that went
through the informal stage of Mediation on February 2nd. I was the FAA representative. The
Mediation was not successful, (Mr. Pujji declined our offer) so that case has moved to the next
phase.” Doc. [100] at 23. Fry said that “[u]pon his return to work, Mr. Pujji will be placed on an
[ODP] due to his substandard Performance Management System (PMS) final rating” and
explained that “[w]e have determined that the ODP will be administered by a Front Line
Manager . . . other than Mr. Pujji’s current FLM, due to the challenging nature of their
relationship.” Id. Finally, Fry stated that “last year, as the Agency was finalizing its efforts to
remove Mr. Pujji from Federal Service, he received an offer for an FG-1825-14 position in
Scottsdale. This was a promotion . . . . At my direction, the offer was rescinded.” Id. at 24.
On March 16, 2018, pursuant to Fry’s instruction, FLM Sadowski sent Plaintiff a letter
notifying him that he would be placed on an ODP from March 19, 2018, until June 16, 2018. Id.
at 78-79. The ODP letter referenced only the “Technical Administration” element of Plaintiff’s
job, which related to the completeness and accuracy of his written reporting. Id. at 78. The
timing of the ODP was inconsistent with the FAA’s standard practice because Sadowski had
issued the Letter of Expectation in October 2016, and an ODP is typically delivered during the
same fiscal year that the employee receives notice. Id. at 77-78; see also Doc. [82-13] at 1
(performance cycle was “10/01/2016 to 09/30/2017”).
The ODP was administered by Front Line Manager Jason McCoy, who ordinarily
managed a different unit within the St. Louis FSDO. Doc. [100] at 21, 79. FLM Robert Lowery,
formerly Robert Spahr, briefly administered Plaintiff’s ODP plan when McCoy was on leave.
Id. at 79, 84. Although inspectors typically gave their work product to support staff to review it
for clerical errors before submitting it to their supervisors, Plaintiff was required to submit his
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work product directly to FLM McCoy during his ODP, and Plaintiff was given no explanation
for this change. Id. at 79. During required weekly meetings, Plaintiff claims that he asked
McCoy for guidance as to how to address concerns about his work product, and McCoy said that
he was “not going to help [Plaintiff]” and that he should “figure it out.” 9 Id. at 80-81; Doc.
[82-2] at 20, 21, 36. Plaintiff also claims that McCoy told him that his “Indian English is not
going to work here” at the FAA. Doc. [100] at 79-80; see also Doc. [82-6] at 18 (McCoy
admitting that he “may have used the term Indian English”).
On May 8, 2018, during Plaintiff’s ODP, FLM Lowery spoke with Heredia about
Plaintiff. Doc. [100] at 83. When Lowery told Heredia that he had heard Plaintiff had been
diagnosed with a brain tumor, Heredia said “something like that it put a wrench in or derailed his
plans.” Id. Heredia then stated that “it was probably because he wears that turban on his head
that he has a brain tumor.” Id. Lowery reported the incident to HR the following day. Id. at 84.
Lowery told the Accountability Board that Heredia frequently “use[d] foul language” and
referred to other FAA employees using derogatory terms that would make his “skin crawl.” Id.
at 85. Lowery characterized Heredia as “a walking HR/EEO complaint waiting to happen” and
said that Heredia “doesn’t get it. He thinks he can say anything, like it is a good old boys club.”
Id. at 85-86; Doc. [88-3]. Lowery added that he knew Plaintiff had “filed an EEO complaint[,]
and if [Plaintiff] knew about [Heredia]’s comment, we would have a hard time defending this
case.” 10 Doc. [88-3]. In his deposition, Heredia stated that he did not think what he had said
was “really that bad” because he was “talking about [Plaintiff’s] headgear and curious being that
is the first time that I heard that he had a tumor. I was wondering if the hat would—I know
nothing. I’m not a medical doctor. . . . It was a question that was asked.” Doc. [82-4] at 16-17.
Heredia claimed that he was merely asking, “Would the turban have any effect on his tumor[?]”
Defendant denies that McCoy rebuffed Plaintiff’s requests for guidance, asserting that Plaintiff
“provides no material evidence of these facts other than his self-serving testimony.” Doc. [100] at 80-81.
When asked in his deposition whether he “attempt[ed] to assist Mr. Pujji in improving his performance”
during the ODP, McCoy said that he provided feedback on the files Plaintiff presented and that “it was
[his] understanding that at that point in time . . . he was not there for training, but he was there to
demonstrate that he could perform.” Doc. [82-6] at 22.
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In his May 2018 interview statement, Lowery said that he was concerned that Heredia might retaliate
against him. Doc. [88-3]. Later, in his deposition, FLM Lowery stated his belief that Heredia had, in
fact, retaliated against him because the last rating Heredia gave him was lower than usual, and Lowery
successfully challenged the low rating. Doc. [82-7] at 15-16.
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Id. at 19. The FAA did not advise Plaintiff of Heredia’s comment during or after his ODP. Doc.
[100] at 86-87.
During Plaintiff’s ODP, McCoy sent him monthly written reviews by email, copying
Sadowski and Lowery. Docs. [82-24], [82-27], [82-33]. McCoy’s emails listed alleged flaws in
Plaintiff’s work product, most of which were typographical errors, grammatical errors, and
formatting issues. Docs. [82-24], [82-27], [82-33]. All of McCoy’s written reviews themselves
contained multiple typographical errors. Docs. [82-24], [82-27], [82-33]. On June 26, 2018,
after Plaintiff completed his ODP, McCoy sent an email to Sadowski and Heredia summarizing
his opinion of Plaintiff’s performance. Doc. [100] at 81. McCoy asserted that 14 of Plaintiff’s
files were sampled during his ODP plan and that 11 of those 14 departed from the agency’s
guidance, resulting in a 78.5% failure rate. Id. McCoy also claimed that “there were numerous
grammatical and spelling errors that had to be corrected throughout the [ODP] period.” Doc.
[82-34] at 1. McCoy’s June 26th email also contained multiple typographical errors, including a
misspelling of Plaintiff’s name. Doc. [82-34] at 1.
On July 6, 2018, Fry issued Heredia a Proposed Suspension of 14 days for his comment
about Plaintiff’s turban. Doc. [100] at 42. On September 13, 2018, Fry issued Heredia a
Decision on the Proposed 14-Day Suspension, reducing the suspension to 10 days, from
September 17th through the 26th. Id. at 44. During Heredia’s suspension, Plaintiff learned about
the comment from his co-workers. Id. at 86-87; Doc. [82-2] at 39. Upon hearing about it,
Plaintiff said he “felt miserable . . . [He] thought this was happening and [he] kn[e]w this [wa]s
happening and now with the . . . proof right in [his] face, yes, this has happened.” Doc. [82-2] at
40. Despite the suspension, Heredia remained involved in the decision-making process leading
to Plaintiff’s termination. 11 Doc. [100] at 86.
Plaintiff testified that he felt he was in a “living hell” during his time working at the St.
Louis FSDO; he chose the early morning shift to avoid interacting with his co-workers; his
“hypertension ran up”; his other illnesses “had inflamed at the same time because [he] was not
While Defendant does not dispute that Heredia was involved in the decision-making process leading to
Plaintiff’s termination, he does dispute how involved Heredia was. Doc. [100] at 86. Citing Heredia’s
deposition, Defendant asserts that Heredia was merely kept informed of the process leading to Plaintiff’s
termination and did not monitor Plaintiff’s ODP or recommend terminating him. Id.; Doc. [82-4] at 31.
Citing Fry’s deposition, Plaintiff counters that Heredia was meaningfully involved in the decision-making
process leading to his termination. Doc. [100] at 86; Doc. [82-3] at 15 (Fry stating that “Mr. Heredia,
working with Mr. Sadowski,” made the ultimate decision to issue the notice of removal).
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eating right”; and his “kidney functions failed drastically.” Doc. [82-2] Id. at 40-41; Doc. [100]
at 68.
On August 29, 2018, Sadowski issued a Notification of Unacceptable Performance that
incorporated language from McCoy’s June 26th email. Doc. [100] at 81. In it, Sadowski stated
that Plaintiff had “failed to meet the expectations for Critical Element #1 – Technical
Administration” during his ODP. Id. at 42-43. Sadowski also said that he had “no confidence in
[Plaintiff’s] ability to perform at an acceptable level” and would “be notifying [Plaintiff] soon, in
a separate letter, concerning resulting consequences from . . having failed [his] ODP.” Id. at 43.
On October 18, 2018, Fry was notified that Plaintiff had entered into the informal EEO
process by filing another internal complaint alleging that the August 29th Notification of
Unacceptable Performance was discriminatory. Doc. [100] at 45; Doc. [82-39] at 4. Fry was
assigned to be the “Management Official Primary, who ha[d] authority to provide a possible
resolution” during the EEO process, and Heredia was assigned to be the Responsible
Management Official. Doc. [100] at 45; Doc. [82-39] at 1. On November 8, 2018, Sadowski
sent Plaintiff a Proposed Removal Notice from the FAA based on his failure to successfully
complete his ODP. Doc. [100] at 81-82.
Plaintiff responded to the November 8, 2018, Proposed Removal Notice and the March
16, 2018, ODP letter, stating that the ODP was not based on his performance. Id. at 82; Doc.
[82-41] at 1. Plaintiff asserted that Fry had suggested placing him on an ODP in retaliation for
“refus[ing] to accept his proposal during the mediation.” Doc. [82-41] at 1. Plaintiff also stated
that, “when the ODP was put in place, [he] was moved under the supervision of Mr. Jason
McCoy, who in the past has openly shown a dislike for [him] and those of [his] ethnic origin.”
Id. (reporting that McCoy had “told [Plaintiff] to [his] face to keep [his] distance from [him]
because he was offended by [his] body odor”). And he reported that McCoy had subjected him
to discriminatory conduct during the ODP. Id. Later, Sadowski said in his deposition that he
could not recall speaking to McCoy or otherwise acting on Plaintiff’s allegations concerning
McCoy. Doc. [100] at 82. On April 11, 2019, Sadowski issued a Decision on the November 8,
2018, Proposed Removal Notice, informing Plaintiff that he had been removed from his position
with the FAA. Id. at 83.
In November and December 2019, the FAA investigated Plaintiff’s EEO complaints and
interviewed Plaintiff, FLMs Sadowski and McCoy, and Aviation Safety Assistant (ASA) Jeremy
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King. Doc. [90-19] at 2-5. In an affidavit, King stated that he was aware of Plaintiff’s EEO
complaint and that he had assisted Plaintiff in filing it. Doc. [90-24] ¶ 6. King said that he had
“worked a lot with Mr. Pujji[,] and his performance was excellent.” Id. ¶ 9. He recalled that the
only result of Plaintiff notifying management about the 2014 anonymous letter was that
“management was out to get him. Mr. Sadowski picked on everything Mr. Pujji did while
making exceptions for Mr. Pujji’s coworkers.” Id. King stated that “Mr. Sadowski did
everything he could to get rid of Mr. Pujji; it was a ‘witch hunt.’” Id. King explained that
support staff ordinarily reviewed an inspector’s work product before sending it to a supervisor,
but during Plaintiff’s ODP, “management grabbed the files before [support staff] completed her
job and/or [support staff] was doing a very poor job.” Id. King said, “Management used Mr.
Pujji’s performance as reason for his termination. . . . [T]his was not reasonable. Mr. Pujji had
great performance.” Id. ¶ 18. King confirmed he believed that Plaintiff was subjected to
discrimination and harassment because of his race, national origin, disability, or prior EEO
activity and that “[w]hen these things came into play or to question[,] the agency stepped up the
pressure on Mr. Pujji.” Id. at 5. In the FAA’s report on the investigation into Plaintiff’s 2019
EEO complaints, the investigator stated that “[p]er Lawrence Sadowski and concurred by
Rhonda Frazier, Management and Program Analyst, no other employees have been terminated
for the same or similar charges by Mr. Sadowski.” Doc. [90-19] at 13.
LEGAL STANDARD
A court must grant a motion for summary judgment if it finds, based on the factual
record, that “there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R.
Civ. P. 56. Material facts are those that “might affect the outcome of the suit under the
governing law,” and there is a genuine dispute where “a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of “informing the district court of the basis for
its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323
(quotation marks omitted). The burden then shifts to the non-movant to “present specific
evidence, beyond ‘mere denials or allegations [that] . . . raise a genuine issue for trial.’” Farver
11
v. McCarthy, 931 F.3d 808, 811 (8th Cir. 2019) (quoting Wingate v. Gage Cnty. Sch. Dist., No.
34, 528 F.3d 1074, 1078-79 (8th Cir. 2008)). The evidence must be viewed “in the light most
favorable to, and making all reasonable inferences for, the nonmoving party.” Carmody v.
Kansas City Bd. of Police Comm’rs, 713 F.3d 401, 404 (8th Cir. 2013). “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.” Torgerson v. City of Rochester, 643 F.3d 1031,
1042 (8th Cir. 2011). “‘If reasonable minds could differ as to the import of the evidence,’
summary judgment is inappropriate.” Quick v. Donaldson Co., 90 F.3d 1372, 1377 (8th Cir.
1996) (quoting Anderson, 477 U.S. at 256).
DISCUSSION
I.
Title VII Discrimination Based on Race, Religion, and National Origin
Defendant argues that he is entitled to summary judgment because Plaintiff cannot
establish a prima facie case of discrimination under the McDonnell Douglas framework. Doc.
[84] at 7-13 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). According to
Defendant, being placed on an ODP does not qualify as an adverse employment action, and
Plaintiff has not provided evidence that gives rise to an inference of discrimination. 12 Id.
Plaintiff counters that he has presented direct evidence that discrimination was a motivating
factor in the decisional process that led to his termination, and so he does not have to satisfy the
McDonnell Douglas standard. Doc. [97] at 19-23. The Court agrees with Plaintiff.
A plaintiff alleging intentional discrimination may survive summary judgment by either
(1) presenting direct evidence that an illegal criterion was a motivating factor in the disputed
employment decision or (2) creating an inference of discrimination under the McDonnell
Douglas burden-shifting framework. Lake v. Yellow Transp., Inc., 596 F.3d 871, 873 (8th Cir.
2010) (citing McDonnell Douglas, 411 U.S. at 802-04). “Price Waterhouse defined the term
‘direct evidence’ negatively to exclude ‘stray remarks in the workplace,’ ‘statements by
Defendant asserts that Plaintiff does not claim his termination was discriminatory, but the record belies
that assertion. See, e.g., Doc. [6] at 4 (indicating in the Amended Complaint that the challenged conduct
in this lawsuit involves his termination, retaliation, and harassment); Doc. [82-1] at 28 (Plaintiff stating
that the “[t]ermination was based on ODP. But ODP was started—put on throughout, all this thing was
discriminatory.”); Doc. [82-2] at 25 (Plaintiff stating that he believed that his removal “was not
appropriate” and “not right”); Doc. [90-4] (Plaintiff declaring that by testifying during the first deposition
that “the entire process that led to [his] termination was discriminatory, . . . [he] did not intend to suggest
that the ultimate decision to terminate [him] was not discriminatory as well”).
12
12
nondecisionmakers,’ or ‘statements by decisionmakers unrelated to the decisional process
itself.’” King v. Hardesty, 517 F.3d 1049, 1058 (8th Cir. 2008) (citing Price Waterhouse v.
Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring)).
“‘Direct evidence’ has been interpreted as ‘conduct or statements by persons involved in
the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory
attitude . . . sufficient to permit the factfinder to find that that attitude was more likely than not a
motivating factor in the employer’s decision.’” Browning v. President Riverboat
Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir. 1998) (quoting Thomas v. First Nat’l Bank of
Wynne, 111 F.3d 64, 66 (8th Cir. 1997)); King, 517 F.3d at 1058 (“[D]irect evidence within the
meaning of Price Waterhouse may include ‘evidence of actions or remarks of the employer that
reflect a discriminatory attitude,’ ‘comments which demonstrate a discriminatory animus in the
decisional process,’ or comments ‘uttered by individuals closely involved in employment
decisions.’” (quoting Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991))). “‘[D]irect’
refers to the causal strength of the proof, not whether it is ‘circumstantial’ evidence.” Griffith v.
City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). “Courts look beyond the moment a
decision was made in order to determine whether statements or comments made by other
managerial employees played a role in the ultimate decisionmaking process.” Gagnon v. Sprint
Corp., 284 F.3d 839, 848 (8th Cir. 2002), abrogated on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90, 95 (2003).
If the plaintiff produces evidence sufficient to permit a factfinder to find that
discriminatory animus was more likely than not a motivating factor in the employer’s decision,
“the plaintiff is relieved of the ultimate burden of persuasion and the so-called ‘mixed motive’
analysis is applied. Mohr v. Dustrol, Inc., 306 F.3d 636, 640 (8th Cir. 2002) (comments by a
supervisor not “officially responsible” for hiring were direct evidence where supervisor played a
“pivotal role” in hiring and officials deferred to his hiring decision), abrogated on other grounds
by Desert Palace, 539 U.S. at 95. “Under the mixed motive analysis, ‘once the plaintiff
persuades a factfinder that, more likely than not, discrimination was ‘a motivating part in an
employment decision,’ the burden shifts to the employer to prove that the employment decision
would nevertheless have been made for legitimate, nondiscriminatory reasons.’” Mohr, 306 F.3d
at 640 (quoting Yates v. McDonnell Douglas, 255 F.3d 546, 548 (8th Cir. 2001)). “At the
summary judgment stage, the issue is whether the plaintiff has sufficient evidence that unlawful
13
discrimination was a motivating factor in the defendant’s adverse employment action. If so, the
presence of additional legitimate motives will not entitle the defendant to summary judgment.”
Griffith, 387 F.3d at 735. “Therefore, evidence of additional motives, and the question whether
the presence of mixed motives defeats all or some part of plaintiff’s claim, are trial issues, not
summary judgment issues.” Id.; see also Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1046
(8th Cir. 2005) (same).
Courts often observe that “direct evidence of discrimination is rare.” E.E.O.C. v. Liberal
R-II Sch. Dist., 314 F.3d 920, 923 (8th Cir. 2002). And the Eighth Circuit “has expounded on
this observation by explaining that ‘[t]here will seldom be eyewitness testimony as to the
employer’s mental processes’ because a shrewd employer will not leave a trail of direct
inculpatory evidence for the plaintiff to bring into court.” Id. (alteration in original) (quoting
Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996)). After careful review of the
record, the Court finds that this is one of the rare cases where there is “strong (direct) evidence”
that discrimination was a motivating factor in the employer’s adverse employment action.
Griffith, 387 F.3d at 736 (plaintiff in such a case “does not need the three-part McDonnell
Douglas analysis to get to the jury, regardless of whether his strong evidence is circumstantial”).
Plaintiff has presented uncontroverted evidence of his supervisor’s statements reflecting
discriminatory animus in the decision process. For example, McCoy’s statement to Plaintiff that
“Indian English is not going to work here” while administering Plaintiff’s ODP warrants an
inference of discriminatory animus sufficient to permit the factfinder to conclude that an
illegitimate criterion was a motivating factor in the decision to terminate Plaintiff. See
Browning, 139 F.3d at 635 (supervisor’s “reference to [plaintiff] as ‘that white boy’ in the
context of [plaintiff]’s employment warrant[ed] an inference of discriminatory attitude sufficient
to permit the factfinder to conclude that race was a motivating factor in the decision to terminate
[plaintiff]”); King, 517 F.3d at 1058-59 (decision-maker’s statement “that ‘white people teach
black kids . . . better than someone from their own race’ is evidence that may be viewed as
directly reflecting [the decision-maker’s] alleged discriminatory attitude”); Doc. [100] at 79-80.
Likewise, Heredia’s statements that Plaintiff’s brain tumor “put a wrench in or derailed his
plans” and that “it was probably because he wears that turban on his head that he has a brain
tumor,” also made during Plaintiff’s ODP and in the context of his employment, “reveal[] ‘a
decidedly negative attitude toward [Sikh] people on the part of [a person] responsible for [the
14
employment decision].’” See Browning, 139 F.3d at 635 (quoting EEOC v. Alton Packaging
Corp., 901 F.2d 920, 924 n.6 (11th Cir. 1990)); Doc. [100] at 83; see also Beshears v. Asbill, 930
F.2d 1348, 1354 (8th Cir. 1991) (direct evidence of discrimination may include an employer’s
actions or remarks that reflect a discriminatory attitude).
Defendant admits that McCoy and Heredia made the above statements but argues that
they do not constitute direct evidence of discrimination in the decision-making process that led to
Plaintiff’s termination because Sadowski was the key decision-maker, not Heredia and McCoy.
Doc. [102] at 5-6. That argument fails. As the person who monitored Plaintiff’s ODP
performance and reported to Sadowski that Plaintiff had failed his ODP, McCoy was closely
involved in the decision-making process that led to Plaintiff’s termination. See King, 517 F.3d at
1058 (direct evidence may include evidence of actions or discriminatory “comments ‘uttered by
individuals closely involved in employment decisions’” (quoting Beshears, 930 F.2d at 1358)).
“[T]he fact that [McCoy] did not ‘pull the trigger’ is of little consequence.” Stacks v. Sw. Bell
Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994) (first alteration in original) (quoting
Simpson v. Diversitech Gen., Inc., 945 F.2d 156, 160 (6th Cir. 1991)). And Sadowski’s August
29, 2018, Notification of Unacceptable Performance and November 8, 2018, Proposed Removal
Notice, which incorporated language from McCoy’s written reviews and ODP summary and
adopted his findings, demonstrate that Sadowski relied on McCoy’s assessment of Plaintiff’s
ODP performance in making the decision to terminate him, and Defendant admits as much. See
Gagnon, 284 F.3d at 848; Doc. [102] at 5 (“McCoy’s 30-Day ODP Reviews and ODP Summary
were informative for Sadowski to make his decision of how to proceed as a result of Pujji failing
his ODP.”). There is also competent record evidence contradicting Heredia’s assertion that he
was not involved in the decision-making process. See Doc. [82-3] at 15 (Fry testifying that “Mr.
Heredia, working with Mr. Sadowski,” made the ultimate decision to issue the notice of
proposed removal to Plaintiff).
Finally, Defendant urge that the comments of McCoy and Heredia should not be
considered direct evidence of their discriminatory attitudes because McCoy testified that his
“Indian English” comment was not an ethnic slur and Heredia testified that he was merely asking
a question about whether Plaintiff’s turban would have an effect on his tumor. Doc. [102] at 4,
6; Doc. [82-4] at 17; Doc. [82-6] at 19. While there may be more than one possible reasonable
inference from McCoy and Heredia’s comments, this Court is “not authorized to determine
15
which reasonable inference is most likely. A jury is.” Liberal R-II Sch. Dist., 314 F.3d at 924;
see Carmody, 713 F.3d at 404.
Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable
inferences in his favor, the Court finds that the discriminatory statements of Heredia and McCoy
are sufficient to permit a reasonable factfinder to find that discriminatory animus was more likely
than not a motivating factor in the Defendant’s decision to terminate Plaintiff. 13 Therefore, the
Price Waterhouse standard applies to Defendant’s Title VII discrimination claims, not
McDonnell Douglas, and the claims survive summary judgment. See Liberal R-II Sch. Dist., 314
F.3d at 926; Griffith, 387 F.3d at 736.
II.
Title VII Retaliation
“Title VII prohibits employers from retaliating against employees for engaging in two
broad categories of protected activity: 1) opposing any discrimination made unlawful by Title
VII or 2) making a charge or participating in any manner in an investigation or proceeding under
Title VII.” Bogren v. Minnesota, 236 F.3d 399, 407-08 (8th Cir. 2000) (citing 42 U.S.C.
§ 2000e-3(a) (1994)). “To defeat summary judgment, a plaintiff must produce either direct
evidence of discrimination or create an inference of it under the McDonnell Douglas
burden-shifting framework.” Young-Losee v. Graphic Packaging Int’l, Inc., 631 F.3d 909, 912
(8th Cir. 2011). Plaintiff has not produced direct evidence of retaliation; the Court therefore
analyzes his retaliation claim within the McDonnell Douglas framework.
“The elements of a retaliation claim under . . . Title VII are (1) protected activity,
(2) subsequent adverse employment action, and (3) a causal relationship between the two.” Kim
In finding the evidence relating to Heredia and McCoy sufficient to defeat summary judgment, the
Court takes no position on the relevance or weight of any other evidence Plaintiff cites in support of his
discrimination claim. See, e.g., Doc. [90-24] at 2-3 (King stating that “management was out to get”
Plaintiff ever since he notified management about the anonymous letter and that “Mr. Sadowski did
everything he could to get rid of Mr. Pujji; it was a ‘witch hunt’”); Doc. [90-25] at 3-4 (Linenweber
characterizing Sadowski’s attempt to terminate Plaintiff for conduct that was routinely permitted and
encouraged by the FAA as “a prima facie case of discrimination”); Doc. [90-19] at 13 (“Per Lawrence
Sadowski and concurred by Rhonda Frazier, Management and Program Analyst, no other employees have
been terminated for the same or similar charges by Mr. Sadowski.”); Doc. [90-24] at 4 (“Management
used Mr. Pujji’s performance as a reason for his termination. . . . , this was not reasonable. Mr. Pujji had
great performance.”); Doc. [82-5] at 29-30 (Sadowski stating in his deposition that he did not discipline
G.R. for mistakes such as typographical errors and omitting necessary information); Doc. [88-4] at 15
(G.R.’s May 16, 2017, Logbook entry containing multiple typographical errors and failing to include
necessary information regarding the aircraft’s weight); Doc. [88-5] at 2 (G.R.’s October 20, 2017, report
containing multiple typographical errors).
13
16
v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997) (citing Kobrin v. Univ. of Minn., 34 F.3d
698, 704 (8th Cir. 1994)). Following the McDonnell Douglas framework, 411 U.S. 792 (1973),
“[i]f an employee establishes a prima facie case of retaliation, the burden shifts to the employer
to articulate a legitimate, non-retaliatory reason for its action.” Pye v. Nu Aire, Inc., 641 F.3d
1011, 1021 (8th Cir. 2011). “[I]f the employer does so, the burden then shifts back to the
employee to put forth evidence of pretext, ‘the ultimate question being whether a prohibited
reason, rather than the proffered reason, actually motivated the employer’s action.’” Id. (quoting
Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077-78 (8th Cir. 2010)). “An employee can prove
that [his] employer’s articulated justification for an adverse employment action is pretext ‘either
directly by persuading the court that a discriminatory reason more likely motivated the employer
or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’”
Id. (alteration in original) (quoting Jones v. Nat’l Am. Univ., 608 F.3d 1039, 1046 (8th Cir.
2010)).
The first question with respect to retaliation, then, is whether Plaintiff has made a prima
facie case of: “(1) protected activity, (2) subsequent adverse employment action, and (3) a
causal relationship between the two.” Kim, 123 F.3d at 1060. Plaintiff easily satisfies the first
element: He engaged in protected conduct by filing his December 1, 2017, discrimination
complaint and participating in the February 2, 2018, mediation related to that complaint. See
Pye, 641 F.3d at 1020 (“[Plaintiff]’s filing of the internal discrimination complaint qualifies as
protected conduct.” (citing Helton v. Southland Racing Corp., 600 F.3d 954, 961 (8th Cir.
2010))); Bogren, 236 F.3d at 407-08 (participating in any manner in an investigation or
proceeding under Title VII is a protected activity) (citing 42 U.S.C. § 2000e-3(a))).
The second element of Plaintiff’s prima facie case is a “subsequent adverse employment
action.” Kim, 123 F.3d at 1060. The Eighth Circuit has described “an adverse employment
action” as “a tangible change in working conditions that produces a material employment
disadvantage.” Rester v. Stephens Media, LLC, 739 F.3d 1127, 1131 (8th Cir. 2014) (quoting
Wilkie v. Dep’t of Health & Human Servs., 638 F.3d 944, 955 (8th Cir. 2011)). “Each action
claimed to be retaliatory must be sufficiently adverse to have created a material change in the
employment, ‘such as a change in salary, benefits, or responsibilities.’” Henthorn v. Capitol
Commc’ns, Inc., 359 F.3d 1021, 1028 (8th Cir. 2004) (quoting LaCroix v. Sears, Roebuck, and
Co., 240 F.3d 688, 691 (8th Cir. 2001)). “Not everything that makes an employee unhappy
17
constitutes an actionable adverse employment action.” Id. (citing LaCroix, 240 F.3d at 691). “A
negative employment review, for example, is actionable only if the employer subsequently uses
the evaluation as a basis to alter in a detrimental way the terms or conditions of the recipient’s
employment.” Id. (citing Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850, 854 (8th
Cir. 2000)); see also Givens v. Cingular Wireless, 396 F.3d 998 (8th Cir. 2005) (per curiam)
(explaining that placing an employee on a “‘performance improvement plan,’ without more,
d[oes] not constitute an adverse employment action.” (citing Henthorn, 359 F.3d at 1028)).
The Supreme Court recently examined the Eighth Circuit’s definition of “adverse
employment action” in the Title VII discrimination context. See Muldrow v. St. Louis, 601 U.S.
346, 354 (2024). In Muldrow, the Supreme Court “obviated the requirement—replete in [Eighth
Circuit] case law—that the claimed [adverse employment action] be ‘significant,’ ‘material,’ or
‘serious.’” Cole v. Grp. Health Plan, Inc., 105 F.4th 1110, 1114 (8th Cir. 2024) (citing
Muldrow, 601 U.S. at 356 n. 2). “After Muldrow, [Plaintiff] is only required to plead ‘some
harm respecting an identifiable term or condition of employment.’” Cole, 105 F.4th at 1114
(quoting Muldrow, 601 U.S. at 354-55). This Court is not aware of any Supreme Court or Eighth
Circuit precedent applying Muldrow to a Title VII retaliation claim. See, e.g., Collins v. Union
Pac. R.R. Co., 108 F.4th 1049, 1053 (8th Cir. 2024) (returning discrimination and retaliation
claims to the district court for reconsideration in light of Muldrow). But the Court need not
decide whether Muldrow applies here, because Plaintiff successfully makes a prima facie case
that he suffered an adverse employment action, either way.
Under Muldrow, Plaintiff easily makes a prima facie case that he suffered an adverse
employment action. Viewing the evidence in the light most favorable to Plaintiff, he was denied
the benefit of support staff’s initial review during the ODP and was required to have weekly
meetings with FLM McCoy, who used discriminatory language toward him and refused to help
him improve his allegedly deficient performance, and the process culminated in his termination.
Being placed on the ODP thus easily satisfies Muldrow’s “some harm” requirement. See
Muldrow, 601 U.S. at 359 (plaintiff’s allegations, if supported by evidence, met the “some harm”
test “with room to spare,” where she was transferred from a plainclothes prestigious division to a
uniformed supervisory position, where she was less involved in high-visibility matters, primarily
performed administrative work, and had a less regular schedule). And because Defendant used
the ODP evaluation as a basis for terminating Plaintiff, being placed on the ODP also satisfies
18
the higher pre-Muldrow standard for an adverse employment action. See Wagner v. Campbell,
779 F.3d 761, 767 (8th Cir. 2015) (“Lesser actions than demotion, suspension, and termination
can be adverse employment actions if their cumulative effect causes an employee to suffer
‘serious employment consequences’ that adversely affect or undermine h[is] position.” (quoting
Shockency v. Ramsey Cnty., 493 F.3d 941, 948 (8th Cir. 2007)); Henthorn, 359 F.3d at 1028 (“A
negative employment review . . . is actionable only if the employer subsequently uses the
evaluation as a basis to alter in a detrimental way the terms or conditions of the recipient’s
employment.”).
Finally, Plaintiff satisfies the third element of his prima facie case by presenting
sufficient evidence to permit a reasonable juror to infer a causal connection between his
protected activity and being placed on an ODP. “A plaintiff can establish a causal connection
between statutorily protected activity and an adverse employment action through circumstantial
evidence, such as the timing between the two events.” Bainbridge v. Loffredo Gardens, Inc., 378
F.3d 756, 761 (8th Cir. 2004) (quoting Jackson v. Flint Ink N. Am. Corp., 370 F.3d 791, 798 (8th
Cir. 2004)). “Temporal evidence should generally be corroborated by other evidence of
employment discrimination.” Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958, 963 (8th
Cir. 2012) (citing Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc)).
Cases in which the Eighth Circuit has determined that “temporal proximity alone was sufficient
to create an inference of the causal link ‘have uniformly held that the temporal proximity must be
very close.’” Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006) (quoting Wallace v.
Sparks Health Sys., 415 F.3d 853, 859 (8th Cir. 2005)). “Even if temporal proximity alone is
insufficient to establish causation, the employee may attempt to prove causation by providing
evidence of the employer’s discriminatory comments.” Id. (citing Watson v. O’Neill, 365 F.3d
609, 613 (8th Cir. 2004)). “A pattern of adverse actions that occur just after protected activity
can supply the extra quantum of evidence to satisfy the causation requirement.” Id. (quoting
Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002)).
Although two months passed between the filing of Plaintiff’s December 1, 2017,
complaint and the February 1, 2018, meeting where Fry instructed Heredia and Sadowski to
place Plaintiff on an ODP “as soon as possible,” it is undisputed that the meeting took place the
day before the mediation concerning Plaintiff’s complaint; that Fry informed Plaintiff that he
would be placed on an ODP during the mediation of his discrimination complaint; and that
19
Sadowski relayed Fry’s instruction to place Plaintiff on an ODP to HR that same day. Doc.
[100] at 76-77. The temporal proximity between Fry’s instruction to place Plaintiff on an ODP
and the mediation of his discrimination complaint is sufficient to create a genuine dispute as to a
causal connection between the two. See Marez, 688 F.3d at 963-64 (sufficient evidence of causal
connection where less than 48 hours elapsed between the protected activity and the adverse
employment action, and plaintiff presented evidence that defendant did not ordinarily terminate
supervisors for the offenses listed in the termination letter); Reifsteck v. Paco Bldg. Supply Co.,
2005 WL 2674941, at *7 (E.D. Mo. Oct. 20, 2005) (allegations about defendant threatening to
fire Plaintiff and telling her “don’t bother coming back to work” during the mediation of her
EEOC mediation were sufficient to raise a genuine issue of material fact as to whether there was
a causal connection between the protected activity and the adverse employment action). And in
addition to the evidence of temporal proximity, Plaintiff’s evidence of discriminatory animus in
the decision-making process also supports a causal connection between protected activity and the
ODP. See Section I, supra; Hite, 446 F.3d at 866 (“Even if temporal proximity alone is
insufficient to establish causation, the employee may attempt to prove causation by providing
evidence of the employer’s discriminatory comments.”); Marez, 688 F.3d at 963 (“Temporal
evidence should generally be corroborated by other evidence of employment discrimination.”).
Despite having successfully made a prima facie case for retaliation, Plaintiff’s retaliation
claim still cannot survive summary judgment unless Plaintiff has produced enough evidence for
a reasonable jury to find that Defendant’s proffered non-discriminatory rationale for his adverse
treatment was pretextual. Pye, 641 F.3d at 1021. Plaintiff clears that hurdle too. The evidence
that the timing of the ODP was inconsistent with the FAA’s standard practice supports a finding
of pretext. See Doc. [100] at 77-78; Hite, 446 F.3d at 867 (“[T]he employee can prove pretext by
showing that the employer varied from its normal policy or practice to address the employee’s
situation.”) (citing Erickson v. Farmland Indus., Inc., 271 F.3d 718, 727 (8th Cir. 2001)). So
does the evidence that Sadowski issued the October 12, 2017, Proposed Removal Notice based
on the 2016 flight review Plaintiff conducted for another aviator without compensation, which
Defendant now admits was conduct encouraged by the FAA. See Marez, 688 F.3d at 963-64;
Hite, 446 F.3d at 867 (employee can prove pretext by showing that “the employer’s proffered
explanation has no basis in fact” and that “the employer routinely treated similarly situated
employees who were not in the protected class more leniently”); Doc. [90-24] at 2-4; Doc. [100]
20
at 75. Defendant’s claim that the proposed removal was based on Plaintiff’s failure to seek
approval prior to conducting the flight review is not supported by the record. The October 2017
Proposed Removal Notice cited only that Plaintiff conducted the June 2016 review, not that he
lacked prior approval. See Elam v. Regions Fin. Corp., 601 F.3d 873, 881 (8th Cir. 2010)
(“[S]ubstantial changes over time in the employer’s proffered reason for its employment decision
support a finding of pretext.”); Doc. [82-17] at 1-3.
Given the evidence suggesting that the stated reason for Plaintiff’s proposed removal was
pretextual and that Sadowski reduced the proposed removal to a 30-day suspension after a
co-worker asked Regional Administrator Miniace to intervene on Plaintiff’s behalf, a jury could
reasonably infer that Fry instructed Heredia and Sadowski to place Plaintiff on an ODP the day
before the mediation in an effort to paper Plaintiff’s file to justify his termination. See
Bainbridge, 378 F.3d at 761 (a reasonable jury could infer that defendant “tried to paper
[plaintiff]’s file to justify his termination” where a temporal proximity of six days coupled with
Plaintiff’s lack of an extensive disciplinary record, lack of changes in his job title, and consistent
raises during his employment indicating satisfactory performance). Fry’s statement during the
mediation that Plaintiff would be placed on an ODP and his March 8, 2018, email, which was
sent one week before Sadowski gave Plaintiff the ODP letter pursuant to Fry’s instruction,
provide additional support for such an inference. See Kim, 123 F.3d at 1061 (papering an
employee’s file with negative reports and written reprimands, coupled with lowered performance
evaluations and special remedial training, may support a claim of retaliation where they
adversely affect or undermine an employee’s position); Doc. [100] at 22-24, 77. A jury could
also reasonably infer that the November 8, 2018, Proposed Removal Notice, issued three weeks
after Fry was notified that Plaintiff had filed another internal complaint alleging that the August
29th Notification of Unacceptable Performance was discriminatory, was part of a pattern of
adverse actions Defendant took against Plaintiff in retaliation for protected activities. See Hite,
446 F.3d at 866. Plaintiff has thus produced sufficient evidence to defeat summary judgment on
his retaliation claim. See Young-Losee, 631 F.3d at 912.
III.
Hostile Work Environment
“To sustain a claim for harassment/hostile work environment, a plaintiff must show that
he ‘is a member of a protected group, that there was unwelcome harassment, that there was a
causal nexus between the harassment and membership in the protected group, and that the
21
harassment affected a term, condition, or privilege of employment.’” Pye, 641 F.3d at 1018
(quoting Watson v. CEVA Logistics U.S., Inc., 619 F.3d 936, 942 (8th Cir. 2010)). “If the
harassment comes from non-supervisory employees, the plaintiff must also show that the
employer knew or should have known about the harassment but failed to take proper action.”
Williams v. ConAgra Poultry Co., 378 F.3d 790, 794-95 (8th Cir. 2004) (citing Palesch v.
Missouri Comm’n on Human Rights, 233 F.3d 560, 566 & n.5 (8th Cir. 2000)).
“To prevail, [Plaintiff] ‘must show both that the offending conduct created an objectively
hostile work environment and that []he subjectively perceived h[is] working conditions as
abusive.’” Bowen v. Mo. Dep’t of Soc. Servs., 311 F.3d 878, 883 (8th Cir. 2002) (quoting
Williams v. City of Kansas City, 223 F.3d 749, 753 (8th Cir. 2000)); see also Gipson v. KAS
Snacktime Co., 171 F.3d 574, 578 (8th Cir. 1999) (“The same standards are generally used to
evaluate claims of hostile work environment based upon sexual harassment and racial
harassment.”). Harassment that is “severe or pervasive is deemed to alter a term, condition, or
privilege of employment.” Bowen, 311 F.3d at 883 (citing Faragher v. City of Boca Raton, 524
U.S. 775, 786 (1998)).
“[E]vidence of a hostile environment must not be compartmentalized, but must instead be
based on the totality of circumstances of the entire hostile work environment.” Gillming v.
Simmons Indus., 91 F.3d 1168, 1172 (8th Cir. 1996) (citing Burns v. McGregor Elec. Indus.,
Inc., 955 F.2d 599, 564 (8th Cir. 1992)). Such circumstances “may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “[A] court should consider
the effect of the misconduct on the victim’s psychological well-being in determining whether the
victim subjectively perceived the environment to be hostile or abusive.” Bowen, 311 F.3d at
884-85 (citing Harris, 510 U.S. at 23). But “no single factor is required.” Harris, 510 U.S. at
23. “[H]arassment need not be so extreme that it produces tangible effects on job performance
or psychological well-being to be actionable.” Bowen, 311 F.3d at 885 (quoting Carter v.
Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999)).
In support of summary judgment, Defendant argues that Plaintiff cannot make a
submissible case that the harassment was sufficiently severe and pervasive to create a hostile
work environment. Defendant asserts, without citation, that “[t]he only issue that could possibly
22
fall into the category of harassment/hostile work environment would be when non-supervisory
employees made reference, in a joking manner, to Pujji’s turban . . . .” Doc. [84] at 20; see
generally id. at 19-22. 14 And while Defendant admits that there were three documented
instances of FAA employees making inappropriate comments about Plaintiff’s turban, he points
out that none of the three documented incidents involved the term “turbine time,” and that
Sadowski testified that he had not heard the term used in reference to Plaintiff. Doc. [102] at
19-20. And Defendant maintains that no reasonable juror could believe Pujji’s testimony that he
was subjected to daily harassment from co-workers for years without complaining about it to
anyone at the FAA. Id. at 19.
Plaintiff’s testimony about non-supervisory employees’ comments is not the only
evidence in the record that supports his hostile work environment claim. The direct evidence
that more than one supervisor made discriminatory remarks to or about him is also relevant to the
totality of Plaintiff’s circumstances. See, e.g., Doc. [88-3]; Doc. [82-6] at 18. So is the evidence
that, more than once, a supervisor who had made discriminatory remarks about Plaintiff was
given authority over him. See Doc. [82-3] at 8-9; Doc. [82-5] at 37; Doc. [82-41] at 1. And so is
the evidence that, despite being notified of the discriminatory conduct of certain supervisors,
management still allowed them to exercise influence in the decision to terminate him. See Doc.
[82-3] at 8-9, 11, 15. The conduct of supervisors is not irrelevant to a hostile work environment
claim. See Delph v. Dr. Pepper Bottling Co of Paragould, Inc., 130 F.3d 349, 356 (8th Cir.
1997) (“on many (if not most) of the occasions recounted in the evidence, it was [Plaintiff]’s
immediate supervisor[s] or the most senior employee in the . . . office who made the offensive
comments”). 15
Defendant does not mention the alleged discriminatory statements by supervisors in connection with
Plaintiff’s hostile work environment claim, except to note in his reply brief that Heredia’s comment about
Plaintiff’s turban being the cause of his tumor did not mention “turbine time” and that Heredia received a
10-day suspension for the comment. Doc. [102] at 19-20.
14
As in Delph, a reasonable jury reviewing the record in this case could find that the three “supervisors
were primarily responsible for creating and maintaining the racially hostile atmosphere at [the St. Louis
FSDO].” 130 F.3d at 356. “This also explains, and in this case excuses, [Plaintiff]’s failure to complain
about the harassment to his supervisors.” Id. at 356 n.5 (citing Briones v. Runyon, 101 F.3d 287, 291-92
(2d Cir. 1996)). “There would be little point in going to one’s supervisors to challenge the racial
atmosphere when it is those same supervisors who are creating and perpetuating it.” Id.
15
23
On top of the evidence of his supervisors’ statements and actions, Plaintiff himself
testified that his co-workers regularly called him derogatory names such as “turban head,” Doc.
[82-2] at 9-10; that they joked about gaining “turban time” by flying with him “[a]ll the time”
throughout his time with the FAA, id. at 38-39; Doc. [82-1] at 27; and that they made jokes and
comments related to his turban in front of FLM Sadowski multiple times, Doc. [82-2] at 39.
Defendant urges the Court to reject Plaintiff’s “self-serving” testimony about how frequently
co-workers made harassing jokes and comments about his turban, but doing so would require
this Court to engage in credibility determinations that are impermissible at the summary
judgment stage. See Torgerson, 643 F.3d at 1042.
Certain other aspects of the record also lend weight to Plaintiff’s hostile work
environment claim. For example, as in Delph, “this is not a situation where racial jokes and
innuendo were merely bandied about the workplace with no particular target, or where [Plaintiff]
was called names behind his back but was unaware of it.” 130 F.3d at 356. Plaintiff has
produced evidence that discriminatory remarks were made in his presence and directed at him,
often in the presence of others, and sometimes in the presence of supervisors. See Watson, 619
F.3d at 943 (other considerations enhanced the severity of the slurs and harassing comments,
including that they were directed at plaintiffs in their presence and the presence of co-workers
and supervisors); see, e.g., Doc. [82-6] at 18; Doc. [88-3] at 2; Doc. [90-10]; Doc. [90-12] at 2;
Doc. [90-24] at 2-3. Also, as in Watson, “some of the comments were made in a manner that a
jury could reasonably conclude would be particularly demeaning or humiliating” to Plaintiff.
See 619 F.3d at 943. For example, one comment about Plaintiff’s turban was made out loud in
an office-wide meeting, with no corrective response. See Doc. [90-12] at 2. Also, with respect
to at least that incident and the anonymous letter, there is evidence “that the employer knew or
should have known about the harassment but failed to take proper action.” Williams, 378 F.3d at
794-95; see, e.g., Doc. [90-24] at 2-3 (King’s testimony that, after Plaintiff reported the
anonymous letter referring to him in derogatory terms, “[n]othing came of this except . . .
management was out to get him.”).
The record thus includes evidence that both supervisors and co-workers made derogatory
and discriminatory comments about Plaintiff—sometimes directly to him, sometimes in the
presence of others, and sometimes under humiliating circumstances—over a span of years, and
that at least some such incidents were insufficiently addressed by FAA leadership. That is
24
enough to get Plaintiff’s hostile work environment claim in front of a jury. E.E.O.C. v. CRST
Van Expedited, Inc., 679 F.3d 657, 687 (8th Cir. 2012) (“Once there is evidence of improper
conduct and subjective offense, the determination of whether the conduct rose to the level of
abuse is largely in the hands of the jury.”) (quoting Sheriff v. Midwest Health Partners, P.C., 619
F.3d 923, 931 (8th Cir. 2010)).
CONCLUSION
Viewing the record in the light most favorable to Plaintiff, the Court finds that there are
genuine disputes of material fact as to all of his claims. See Celotex Corp., 477 U.S. at 323.
Because “reasonable minds could differ as to the import of the evidence,” summary judgment is
denied. Quick, 90 F.3d at 1377.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment, Doc.
[80], is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Under Seal, Doc.
[94], is GRANTED.
IT IS FINALLY ORDERED that the parties must complete alternative dispute
resolution no later than March 17, 2025. A separate order referring the case to alternative
dispute resolution will issue.
A separate Judgment will accompany this Memorandum and Order.
Dated this 29th day of January, 2025.
SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE
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