Robinson v. Disbrow et al
Filing
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MEMORANDUM OPINION AND ORDER. Signed by Honorable Robin J. Cauthron on 10/01/19. (wh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TREMETRA M. ROBINSON,
Plaintiff,
vs.
MATTHEW P. DONOVAN, Acting
Secretary of the Air Force, and
Defendant.
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Case Number CIV-17-0496-C
MEMORANDUM OPINION AND ORDER
Plaintiff was a civilian federal employee at the Tinker Child Development CenterEast.
Her employment with Tinker ended on July 23, 2011.
Plaintiff alleges her
termination was the result of racial discrimination by employees of Defendant. Plaintiff
filed the present action asserting claims for violation of 42 U.S.C. § 2000e et seq. (“Title
VII”) for racial discrimination, retaliation, and hostile work environment.
In her
Complaint Plaintiff relies on several instances of alleged discrimination occurring between
February 2011 to July 2011. Defendant has now filed a Motion for Summary Judgment
alleging the undisputed material facts entitle it to judgment on Plaintiff’s claims.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings and affidavits show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). [A] motion for summary judgment should be
granted only when the moving party has established the absence of any genuine issue as to
a material fact. Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202,
204 (10th Cir. 1977). The movant bears the initial burden of demonstrating the absence
of material fact requiring judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). A fact is material if it is essential to the proper disposition of the
claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant carries
this initial burden, the nonmovant must then set forth specific facts outside the pleadings
and admissible into evidence which would convince a rational trier of fact to find for the
nonmovant. Fed. R. Civ. P. 56(e). These specific facts may be shown by any of the
kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.
Celotex, 477 U.S. at 324.
Such evidentiary materials include affidavits, deposition
transcripts, or specific exhibits. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d
1022, 1024 (10th Cir. 1992). The burden is not an onerous one for the nonmoving party
in each case, but does not at any point shift from the nonmovant to the district court. Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). All facts and reasonable
inferences therefrom are construed in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
ANALYSIS
Plaintiff was employed as a Training and Curriculum Specialist at the Child
Development Center-East at Tinker Air Force Base. In January of 2011, a new person
became Plaintiff’s supervisor. Plaintiff alleges that her supervisor immediately began
subjecting her to disparate treatment and created a hostile work environment. According
to Plaintiff, her new supervisor: frequently asked her to swap jobs with other employees;
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tasked another employee with managing an employee that Plaintiff was training; informed
other management that Plaintiff was responsible for negative reviews by parents and other
employees; issued Plaintiff a 971 entry for inappropriate union representation at a meeting;
suspended her for one day for complaining about disparate treatment due to her race;
complained of noncompliance on CPR training issues despite the fact that Plaintiff had
requested assistance with that issue months earlier; issued an unacceptable overall
performance rating on her 2010/2011 Civilian Rating Record; and had Plaintiff removed
from her duty station by Security Forces personnel. Plaintiff argues each of these actions
was premised on the supervisor’s discriminatory motives. Before turning to the merits of
Plaintiff’s allegations, the Court must resolve a jurisdictional issue.
Because Plaintiff was a federal civil servant, she was required to exhaust
administrative remedies prior to bringing this action. Green v. Brennan, ___ U.S. ___,
136 S.Ct. 1769, 1775 (2016). Administrative exhaustion is a condition of waiver of the
United States’ sovereign immunity.
42 U.S.C. § 2000e-16(c).
Thus, absent proper
exhaustion, this Court lacks jurisdiction to consider Plaintiff’s claims because Defendant
is entitled to sovereign immunity. A federal employee can exhaust her administrative
remedies by either filing an EEO complaint with the employer, or by proceeding before
the Merit Services Protection Board (“MSPB”). Coffman v. Glickman, 328 F.3d 619,
622 (10th Cir. 2003). Here, Plaintiff opted to pursue both routes. First, she filed an
appeal to the MSPB, challenging the fact of her removal and related claims of
discrimination and retaliation. Once Plaintiff elected to pursue the MSPB route, the
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exhaustion requirement imposed on Plaintiff an obligation to seek EEOC review of any
final decision from MSPB or to file a civil action against the agency. Either act had to
have occurred within 30 days of receipt of the MSPB’s final order. In Plaintiff’s case, the
MSPB issued its final order on July 10, 2012. Plaintiff did not seek EEOC review or file
a civil action within 30 days. Indeed, she never requested an EEOC review and did not
file this action until nearly five years after the final order was issued by the MSPB. As a
result, any claims raised before the MSPB have not been properly exhausted and Defendant
is entitled to sovereign immunity from suit on those claims. Thus, Plaintiff cannot in this
action challenge the validity of her termination and any claim that that termination was
discriminatory or retaliatory.
As for the claims that Plaintiff filed with the agency EEO office, her informal
complaint was made on April 1, 2011, and a formal complaint was filed on June 29, 2011.
The EEOC issued its decision on January 27, 2017, and this action was filed on April 30,
2017.
Thus, Plaintiff timely filed this action after receiving the EEOC’s decision.
However, there are other time issues with her EEOC claims.
In order to exhaust remedies through the EEOC process Plaintiff was required to
“initiate contact with a Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45 days of the effective date of
the action.” 29 CFR § 1614.105. See also Mayberry v. Envtl. Prot. Agency, 366 F.
App’x 907, 908, (10th Cir. 2010). Thus, any claim for a discrete act that occurred prior
to February 15th, or 45 days prior to the date her EEO complaint is filed, is barred.
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Notably, Plaintiff did not challenge her termination in her EEO Complaint. Accordingly,
her termination of employment cannot be considered by the Court. However, Plaintiff
did raise a complaint about the manner in which she was escorted from the premises on the
day she was terminated.
Based on these rulings, the only issues for consideration are whether or not certain
actions taken by Plaintiff’s supervisor should be considered racially discriminatory;
whether or not Defendant retaliated against Plaintiff for filing an EEO complaint; and
whether the manner in which Plaintiff was escorted from the building was discriminatory.
In order to show that Plaintiff was discriminated against as a result of her race, she
must establish (1) that she was a member of a protected class, (2) that she was qualified
and satisfactorily performing her job, and (3) that she was terminated or suffered some
other adverse employment action under circumstances giving rise to an inference of
discrimination. See Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012).
Defendant does not dispute the first element but argues that Plaintiff cannot demonstrate
she was qualified or satisfactorily performing her job.
The Court finds it unnecessary to resolve this dispute, as Plaintiff cannot meet the
third element of the prima facie case. That is, given the Court’s ruling on exhaustion,
Plaintiff has failed to offer any evidence that she suffered an adverse employment action
as a result of discrimination. At most, Plaintiff offers evidence that her supervisor asked
her to switch jobs with other employees, or made other comments related to Plaintiff’s job
duties and her supervisor’s perception that Plaintiff was unhappy in her current
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employment. None of this evidence rises to the level of an adverse employment action.
See generally, Morris v. City of Colo. Springs, 666 F.3d 654, 663-64 (10th Cir. 2012),
noting that “Title VII does not establish a ‘general civility code’ for the workplace.”
(internal citations omitted). See also Rennard v. Woodworker’s Supply, Inc., 101 F.
App’x 296, 308 (10th Cir. 2004) (noting that written reprimands and negative evaluations
did not alter job status and were not adverse employment actions.). Thus, Defendant is
entitled to judgment on Plaintiff’s claim for racial discrimination.
Plaintiff’s claims for hostile work environment also fail. In order to establish a
prima facie case of hostile work environment, Plaintiff must show (1) membership in a
protected group, (2) that she was subjected to unwelcome harassment, (3) which
harassment is based upon her membership in the protected group, and (4) the harassment
was so pervasive or severe that it altered a term, condition, or privilege of employment and
created a hostile or abusive work environment. See Harsco Corp. v. Renner, 475 F.3d
1179, 1186 (10th Cir. 2007).
Plaintiff’s claim fails, as the evidence she has presented offers nothing more than
disagreements between her and her supervisor on Plaintiff’s job performance and the
manner in which the supervisor desired the job to be performed. Plaintiff offers no
evidence of discriminatory comments or actions where she was treated differently from
another employee in her same class. While Plaintiff may have preferred the supervisor
address her concerns in a different manner or may have preferred the supervisor not offer
other potential job placements, there simply is no basis on which a reasonable juror could
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find that her supervisor’s actions were racially motivated, and therefore those actions
cannot give rise to a hostile work environment claim. Even if a juror could find that there
was some discriminatory or hostile basis behind the supervisor’s actions, no reasonable
juror could find the actions of which Plaintiff complains were pervasive or severe enough
to alter a term or condition or privilege of Plaintiff’s employment.
Finally, there is Plaintiff’s claim of retaliation. In order to establish a prima facie
case of retaliation, Plaintiff must show that (1) she engaged in protected activity under Title
VII, (2) a reasonable employer would have considered the challenged employment
materially adverse, and (3) a causal connection existed between the protected activity and
the materially adverse action. Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d
1193, 1202 (10th Cir. 2006). For an action to be materially adverse, it “must be sufficient
to dissuade [] a reasonable worker from making or supporting a charge of discrimination.
While the employer’s conduct need not affect the terms and conditions of employment, the
inquiry is an objective one, and not based on a plaintiff’s personal feelings.” Daniels v.
United Parcel Serv., Inc., 701 F.3d 620, 638 (2012) (internal quotation marks and citations
omitted).
Defendant does not dispute that Plaintiff satisfies the first element.
While
Defendant states there is no dispute as to material adverse actions, the arguments outlined
in the brief seem contrary to that statement.
Regardless, the Court will accept
Defendant’s statement and find that there is no dispute that Plaintiff suffered a materially
adverse employment action. The actions at issue are the suspension of Plaintiff for one
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day, her ultimate termination, the issuance of an AF Form 971, and a negative performance
review. The suspension and removal are not at issue here, as they were subsumed within
Plaintiff’s complaint to the MSPB and therefore she has failed to exhaust her administrative
remedies for those claims. The parties are in dispute as to whether or not the AF Form
971 constituted a disciplinary action or whether it was simply informative.
Even
accepting Plaintiff’s argument that it was, in fact, disciplinary, she cannot demonstrate that
it was retaliatory in nature. Rather, the Form 971 was issued when Plaintiff brought an
unauthorized person into a staff meeting. It is undisputed that Plaintiff had been advised
prior to the meeting that she could not bring the representative with her, yet she persisted.
Plaintiff cannot dispute that Defendant’s perspective was that the 971 was warranted, based
on her actions. She offers no evidence to demonstrate that the issuance of that warning
arose due to a discriminatory or racially-based motive. Rather, in support Plaintiff only
offers the bald statement that the issuance of the 971 was unwarranted and discriminatory.
On this evidence, no reasonable juror could find that that action was retaliatory or
discriminatory.
The next option for an allegedly retaliatory action is the negative performance
review. Plaintiff’s only argument related to the performance review is that it was issued
only three days after her supervisor learned of her EEO complaint. Plaintiff argues that
the review was unwarranted. However, she offers no concrete evidence from which a
reasonable jury could find that it was in error. Rather, she relies solely on her opinion.
As the Tenth Circuit noted, “[i]t is the manager’s perception of the employee’s
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performance that is relevant, not plaintiff’s subjective evaluation of his own relative
performance.”
Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996).
Defendant has proffered several objective reasons for the negative evaluation that Plaintiff
has failed to refute. Thus, no reasonable jury could determine that the issuance of the
negative performance evaluation was retaliatory or discriminatory.
Plaintiff also complains that having base security personnel escort her from her duty
station was based on discriminatory animus. However, Defendant notes that was the
standard operating procedure when an employee was terminated. In response, Plaintiff
counters only with a statement by another employee that she had never seen security
present when any other employee had been terminated. Plaintiff offers no evidence or
argument from which a reasonable juror could find that the presence of security personnel
was discriminatory.
CONCLUSION
For the reasons set forth herein, the Secretary’s Motion for Summary Judgment
(Dkt. No. 36) is GRANTED. The Motions in Limine (Dkt. Nos. 39, 40, and 41), as well
as Defendant’s Motion for a Definite Trial Date (Dkt. No. 50) are STRICKEN as MOOT.
A separate Judgment will issue.
IT IS SO ORDERED this 1st day of October, 2019.
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