Rodriguez v. UNITED STATES OF AMERICA
Filing
42
MEMORANDUM (Order to follow as separate docket entry) re 19 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA.Signed by Honorable Malachy E Mannion on 8/23/16. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s))(bs)
Ullrich v. U.S. Secretary of Veterans Affairs, 457 Fed.Appx. 132 (2012)
Affirmed.
457 Fed.Appx. 132
This case was not selected for
publication in West's Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1 generally
governing citation of judicial decisions issued
on or after Jan. 1, 2007. See also U.S.Ct. of
Appeals 3rd Cir. App. I, IOP 5.1, 5.3, and 5.7.
United States Court of Appeals,
Third Circuit.
Keith ULLRICH, Appellant,
v.
UNITED STATES SECRETARY OF
VETERANS AFFAIRS, Appellee.
No. 11–1826.
|
Submitted Under Third Circuit
LAR 34.1(a) Dec. 9, 2011.
|
Filed: Jan. 10, 2012.
*134 On Appeal from the United States District Court
for the Middle District of Pennsylvania (D.C. No. 3:09–
cv–1605), District Judge: Honorable A. Richard Caputo.
Attorneys and Law Firms
Michael T. Vough, Esq., Vough & Associates, Pittston,
PA, for Plaintiff–Appellant.
Kate L. Mershimer, Esq., Office of United States
Attorney, Harrisburg, PA, for Defendant–Appellee.
Before: HARDIMAN, BARRY, Circuit Judges, and
RUFE, * District Judge.
*
The
Honorable
Cynthia
M.
Rufe,
United
States
District
Judge
for the
Eastern
District
of
Pennsylvania,
sitting
by
designation.
Synopsis
Background: Federal employee brought action under
Title VII and Age Discrimination in Employment Act
(ADEA) for sex and age discrimination, retaliation for
prior protected activity, and hostile work environment.
The United States District Court for the Middle District
of Pennsylvania, A. Richard Caputo, J., 2011 WL
841440, entered summary judgment in agency's favor, and
employee appealed.
Holdings: The Court of Appeals, Rufe, District Judge,
sitting by designation, held that:
[1] decision to suspend employee based on lack of candor
during investigation was not pretext for age or sex
discrimination;
[2] employee failed to establish causal connection
between his suspension and his prior Equal Employment
Opportunity (EEO) claim; and
[3] agency's actions were not sufficiently severe and
pervasive to support hostile work environment claim.
OPINION OF THE COURT
RUFE, District Judge.
**1 This is an employment discrimination case brought
under the federal sector provisions of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e–16,
and the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 633a. Keith Ullrich appeals the
March 8, 2011, 2011 WL 841440, Order of the District
Court for the Middle District of Pennsylvania granting
summary judgment in favor of Ullrich's employer, the
United States Secretary of Veterans Affairs (“the VA”).
For the reasons that follow, we affirm the District Court's
order granting summary judgment in favor of the VA.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Ullrich v. U.S. Secretary of Veterans Affairs, 457 Fed.Appx. 132 (2012)
I.
Because we write primarily for the benefit of the parties,
we recite only those facts which are essential to our
analysis; these facts are undisputed unless otherwise
noted.
Appellant, Keith Ullrich, has been employed by
the Wilkes–Barre Veterans Affairs Medical Center
(“VAMC”) as the Safety and Occupational Health
Manager since 1993. Ullrich is the biological father and
partial physical custodian of a minor daughter, whose
mother, Judith O'Leary, is also an employee of the
Wilkes–Barre VAMC. At the time of the incidents in
question, there was in effect a 2007 Wyoming County,
Pennsylvania, Court of Common Pleas custody order
(“Custody Order”) specifying that “neither party shall
take their daughter to their place of employment, except
to an event sanctioned by said employer.” (Supp.App.52.)
On the morning of January 6, 2009, Ullrich took his
daughter to school, only to discover that the school
was closed due to inclement weather. Ullrich called his
immediate supervisor Cassandra Davis, Chief of Facilities
Management at the VAMC, and asked permission to
bring his daughter into work until his parents could pick
her up and take her home. Davis gave Ullrich permission
to bring his daughter to the VAMC, and he did so for a
brief period of time. Later that day, O'Leary complained
to VAMC police sergeant Ted Gabriel that Ullrich had
violated the Custody Order by bringing their daughter to
work. On or about January 7th or 8th, Mark Donnelly,
Chief of VAMC Police, questioned Ullrich about the
incident and the Custody Order. Donnelly maintains
that Ullrich told him there was no such order in effect.
(Supp.App.27, ¶¶ 10–12.) Ullrich insists that, contrary
to Donnelly's recollection, he admitted to Donnelly that
there was a Custody Order.
At some point toward the end of January or the beginning
of February, O'Leary contacted Janice Boss, Director
of the VAMC, to complain that Ullrich had violated
the Custody Order by bringing their *135 daughter to
work, and that the VAMC was “aiding and abetting”
Ullrich in violating the Order. (Supp.App.47–48, ¶ 5.)
Boss attests that she had known about the Custody
Order when it was issued in 2007, but had forgotten
the Order existed. (Supp.App.48, ¶¶ 6–7.) In response
to O'Leary's complaint, Boss spoke to Donnelly, who
reported that Ullrich had denied there was such an order.
Troubled by what seemed to be Ullrich's dishonesty,
Boss met with Ullrich and his supervisor Davis to ask
if Ullrich had told Donnelly about the Order; Ullrich
replied that he had. Boss asked Davis to look into the
matter further, to determine whether Ullrich had, in fact,
lied to Donnelly. Davis met with Ullrich and again asked
if he had concealed the Custody Order from Donnelly;
Ullrich apparently responded, “No. Mark knows all
about it,” (Supp.App.32, ¶ 13.) Davis then spoke to
Donnelly, who confirmed that Ullrich had denied the
existence of the Order during their January conversation.
Davis spoke twice more to Ullrich, who continued to
insist that he had told Donnelly about the Order. Davis
attests that, after speaking to all involved, she believed
Donnelly's version of events rather than Ullrich's. Davis
and Boss then consulted the VAMC's Labor Relations/
Employee Relations Section to determine whether and
how Ullrich should be disciplined. On March 13, 2009,
Davis proposed that Ullrich receive a five-day suspension
without pay for “lack of candor when answering questions
regarding whether or not a court order existed prohibiting
bringing your daughter onto the Wilkes–Barre VAMC
premises.” (Supp.App.37–38.)
**2 Ullrich was given the opportunity to respond to
the proposed suspension, and he did so in a lengthy
letter, maintaining that he had been entirely candid with
Donnelly, Davis and Boss about the Custody Order.
In addition, Ullrich questioned the VAMC's right to
interfere in a civil custody matter and suggested that
the investigation and proposed suspension was part
of a larger management agenda to harass him and
other employees “who have recently filed formal EEO
actions against VAMC Management and against [Ms.
Davis] specifically.” (Supp.App.42.) Shortly thereafter,
Ullrich's attorney also responded to the proposed
suspension by letter, reiterating his client's position that
the investigation and disciplinary action were unfounded,
were taken against Ullrich with a discriminatory purpose,
and constituted harassment. On April 23, 2009, Davis
suspended Ullrich for five days without pay for “lack of
candor.”
Ullrich filed a civil action in the District Court for the
Middle District of Pennsylvania on August 19, 2009,
asserting claims under Title VII and the ADEA for sex
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Ullrich v. U.S. Secretary of Veterans Affairs, 457 Fed.Appx. 132 (2012)
and age discrimination, retaliation for prior protected
EEO activity, and hostile work environment. After what
appears to have been very limited discovery, the VA filed a
motion for summary judgment on January 3, 2011, which
the District Court granted on March 8, 2011.
As an initial matter, the District Court held that Ullrich
had failed to counter the VA's Statement of Material
Undisputed Facts in the manner required by Middle
District of Pennsylvania Local Rule of Civil Procedure
56.1, and deemed the VA's version of the facts admitted for
purposes of the summary judgment motion. The District
Court then held that Ullrich had (1) failed to establish
a prima facie case of age or sex discrimination because
he put forth no evidence giving rise to an inference
of discrimination; and (2) failed to make out a prima
facie case of retaliation because he put forth no evidence
establishing a causal connection between his suspension
and any protected activity. The District Court further
held that, even assuming Ullrich had made out a prima
facie *136 case of discrimination or retaliation, he had
produced no evidence of pretext with which to challenge
the VA's proffered legitimate non-discriminatory reason
for his suspension. Finally, the District Court held that
Ullrich had failed to present evidence of discrimination or
harassment severe or pervasive enough to state a claim for
hostile work environment.
it could affect the outcome of the suit, given the applicable
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And a
dispute about a material fact is “genuine” if the evidence
presented “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
1
II.
We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291. Our review of an order granting summary
judgment is plenary; therefore, we apply the same
standard as the District Court to determine whether
summary judgment is appropriate. State Auto Prop. &
Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d
Cir.2009) (citing Norfolk S. Ry. Co. v. Basell USA Inc., 512
F.3d 86, 91 (3d Cir.2008)). We generally give deference to
a district court's interpretation of its own local rules. Gov't
of V.I. v. Mills, 634 F.3d 746, 750 (3d Cir.2011).
III.
**3 Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). 1 A disputed fact is “material” if
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
The
District
Court
cited an
earlier
version
of
Federal
Rule of
Civil
Procedure
56,
which
stated
that
summary
judgment
was
appropriate
if “the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions
on file,
together
with the
affidavits,
if any,
show
that
there is
no
genuine
issue as
to any
material
fact....”
Fed.R.Civ.P.
56(c)(2)
(2010).
Amendments
3
Ullrich v. U.S. Secretary of Veterans Affairs, 457 Fed.Appx. 132 (2012)
to Rule
56
effective
December
1, 2010,
changed
the
operative
language
slightly,
to
require
a
“genuine
dispute
as
to
any
material
fact,”
but
these
amendments
did not
alter the
standard
for
granting
summary
judgment.
See
Fed.R.Civ.P.
56,
Advisory
Comm.
Note
(2010
Amendments).
In evaluating a summary judgment motion, a court “must
view the facts in the light most favorable to the nonmoving party,” and make every reasonable inference in
that party's favor. Hugh v. Butler Cnty. Family YMCA,
418 F.3d 265, 267 (3d Cir.2005). Nonetheless, the party
opposing summary judgment must support each essential
element of the opposition with concrete evidence in the
record. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This requirement
upholds the underlying purpose of the rule, which is to
avoid a trial “in cases where it is unnecessary and would
only cause delay and expense.” Goodman v. Mead Johnson
& Co., 534 F.2d 566, 573 (3d Cir.1976). Therefore, if,
after making all reasonable inferences in favor of the
non-moving party, the court determines that there is
no genuine issue of material fact, summary judgment is
appropriate. Celotex, 477 U.S. at 322, 106 S.Ct. 2548;
Wisniewski v. Johns–Manville Corp., 812 F.2d 81, 83 (3d
Cir.1987).
A plaintiff's mere belief or contention that he was subject
to discrimination is not enough to create a dispute of
material fact sufficient to survive summary judgment. See
Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 333
(3d Cir.2005) (holding that speculation is not sufficient
to defeat a motion for summary judgment). As we have
said before, “summary judgment is essentially ‘put up or
shut up’ time for the non-moving party: the non-moving
party *137 must rebut the motion with facts in the record
and cannot rest solely on assertions made in the pleadings,
legal memoranda, or oral argument.” Berckeley Inv. Grp.,
Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.2006).
IV.
A. Middle District of Pennsylvania Local Rule 56.1
First, we address Ullrich's contention that the District
Court erred in deeming the facts contained in the VA's
Statement of Material Undisputed Facts “admitted”
pursuant to Middle District of Pennsylvania Local Rule
56.1 (“Local Rule 56.1”). Local Rule 56.1 provides that:
A motion for summary judgment
filed pursuant to Fed.R.Civ.P. 56,
shall be accompanied by a separate,
short and concise statement of
the material facts, in numbered
paragraphs, as to which the moving
party contends there is no genuine
issue to be tried. The papers
opposing a motion for summary
judgment shall include a separate,
short and concise statement of the
material facts, responding to the
numbered paragraphs set forth in
the statement required [above], as
to which it is contended that there
exists a genuine issue to be tried.
Statements of material facts in
support of, or in opposition to, a
motion shall include references to
the parts of the record that support
the statements. All material facts
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
4
Ullrich v. U.S. Secretary of Veterans Affairs, 457 Fed.Appx. 132 (2012)
set forth in the statement required
to be served by the moving party
will be deemed to be admitted
unless controverted by the statement
required to be served by the
opposing party.
**4 Although Ullrich filed a Response to the VA's
Statement of Material Facts, in which he “admitted”
or “denied” each numbered paragraph in the VA's
Statement, he did not support his responses with any
citations to the record. Consequently, the District Court
held that Ullrich had “failed to adequately counter [the
VA's Statement], as per Local Rule 56.1,” and deemed the
VA's facts admitted.
As we have noted in reviewing similar procedural rules
in other district courts, such local rules are permissible so
long as district courts do not use them to bypass the merits
analysis required by Federal Rule of Civil Procedure 56.
Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d
168, 175 (3d Cir.1990). Federal Rule 56 explicitly requires
the party asserting the absence or existence of a genuinely
disputed fact to support that assertion by citing to specific
parts of the record. Fed.R.Civ.P. 56(c)(1). A court may
consider other materials in the record, but need only
consider cited materials, Fed.R.Civ.P. 56(c)(3), and may
consider undisputed any fact not properly addressed by
the party opposing it. Fed.R.Civ.P. 56(e).
employment, provides that “[a]ll personnel actions
affecting employees or applicants for employment ... shall
be made free from any discrimination based on race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e–
16. In almost identical language the ADEA prohibits
employment discrimination based on age, for individuals
over the age of forty. 29 U.S.C. § 633a.
The same evidentiary framework is used to evaluate
claims of discrimination based upon sex and age. Where,
as here, a plaintiff has adduced no direct evidence of
discrimination based on his sex or age, the familiar
McDonnell Douglas burden-shifting analysis is used to
evaluate the claims. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973); see also Wishkin v. Potter, 476 F.3d 180, 185 (3d
Cir.2007) (citing Newman v. GHS Osteopathic, Inc., 60
F.3d 153, 157 (3d Cir.1995) (“ADEA and Title VII ... serve
the same purpose .... [t]herefore it follows that the methods
and manner of proof under one statute should inform the
standards under the other[ ] as well”)). 2
2
[1] We agree with the District Court that Ullrich's
response is woefully lacking in citations to the record (nor
can we find any evidence that Ullrich attempted to expand
the record beyond the VA's submissions with depositions
or affidavits that support his own position) and fails to
conform with Local Rule 56.1. But it is evident from
the pleadings, the briefing and Ullrich's few supporting
documents that Ullrich disputes that he lied to Donnelly
about the existence of the Custody Order, disputes the
VA's determination that he showed “lack of candor,”
and believes he was disciplined for discriminatory or
retaliatory reasons. Although the District Court deemed
the VA's facts admitted, it is apparent that the Court based
its decision on all the evidence before it.
B. Sex and Age Discrimination
Section 2000e–16 of Title VII, pertaining to
nondiscrimination in federal government
*138
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
The
Supreme
Court
“has not
definitively
decided
whether
the
evidentiary
framework
of
McDonnell
Douglas
...
utilized
in Title
VII
cases is
appropriate
in the
ADEA
context.”
Gross v.
FBL
Fin.
Servs.,
Inc., 557
U.S.
167,
5
Ullrich v. U.S. Secretary of Veterans Affairs, 457 Fed.Appx. 132 (2012)
––––,
129
S.Ct.
2343,
2349,
174
L.Ed.2d
119 n. 2
(2009).
However,
we have
already
concluded
that
Gross
does not
conflict
with our
continued
application
of the
McDonnell
Douglas
paradigm
in age
discrimination
cases.
Smith v.
City of
Allentown,
589
F.3d
684, 691
(3d
Cir.2009).
by either “(i) discrediting the proffered reasons, either
circumstantially or directly, or (ii) adducing evidence,
whether circumstantial or direct, that discrimination was
more likely than not a motivating or determinative cause
of the adverse employment action.” Fuentes v. Perskie, 32
F.3d 759, 764 (3d Cir.1994).
To establish a prima facie case of age or sex discrimination
under a disparate treatment theory, a plaintiff must
demonstrate that: (1) he was within the protected class;
(2) he was qualified for the position; (3) he was subject
to an adverse employment action; and (4) the adverse
action occurred under circumstances that could give rise
to an inference of intentional discrimination. Makky v.
Chertoff, 541 F.3d 205, 214 (3d Cir.2008). 3
3
**5 Under McDonnell Douglas, a plaintiff bears the
initial burden of establishing a prima facie case of
discrimination, the existence of which is “a question
of law that must be decided by the court.” Wishkin,
476 F.3d at 185. If a plaintiff establishes his prima
facie case, the burden shifts to the employer to
“articulate some legitimate, nondiscriminatory reason for
the [adverse employment action].... The plaintiff then
must establish by a preponderance of the evidence that
the employer's proffered reasons were merely a pretext
for discrimination, and not the real motivation for the
unfavorable job action.” Sarullo v. U.S. Postal Serv.,
352 F.3d 789, 797 (3d Cir.2003) (per curiam ); see also
Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108
(3d Cir.1997) (en banc ) (ADEA). A plaintiff may evince
pretext, and so defeat a motion for summary judgment,
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
Discrimination
might
be
inferred,
for
example,
from
the fact
that a
similarly
situated
employee
who
was not
within
the
protected
class
was
treated
more
favorably,
see, e.g.,
Jones v.
Sch.
Dist. of
Phila.,
198
F.3d
403, 413
(3d
Cir.1999)
(Title
VII), or
in
an
6
Ullrich v. U.S. Secretary of Veterans Affairs, 457 Fed.Appx. 132 (2012)
ADEA
case,
that a
plaintiff's
replacement
was
sufficiently
younger
to
permit a
reasonable
inference
of age
discrimination.
See Hill
v.
Borough
of
Kutztown,
455
F.3d
225, 247
(3d
Cir.2006).
It is undisputed that Ullrich, who was over the age of
forty when his suspension took place, is fully qualified
for his position *139 as Safety & Occupational Health
Manager, and a five-day suspension without pay is
an adverse employment action sufficient to satisfy the
third requirement of a prima facie case. See Weston v.
Pennsylvania, 251 F.3d 420, 430 (3d Cir.2001). But we
agree with the District Court that nothing in the record
suggests that Ullrich's age or gender played the slightest
role in his suspension. 4
4
After
diligent
perusal
of the
record,
the
Court
can find
only a
single
allegation
related
to
gender,
which
appears
nowhere
in
Ullrich's
pleading
or
briefing,
but
rather
in
his
lawyer's
EEOC
Notice
of
Intent
to Sue,
explaining
that
Ullrich's
claim of
discrimination
is based
on the
fact that
he
is
“male
with all
female
supervisors.” (App.22.)
[2] We also agree with the District Court that Ullrich
has offered no evidence to discredit the VA's reason for
investigating and suspending him. Even assuming Ullrich
was truthful in his conversations with Donnelly, Boss, and
Davis, it is not enough for Ullrich to show that the VA's
decision was wrong or mistaken, “since the factual dispute
at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd,
prudent, or competent. Rather, the non-moving plaintiff
must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action
that a reasonable factfinder could rationally find them
unworthy of credence.” Fuentes, 32 F.3d at 765 (citations
and quotation marks omitted). Ullrich has demonstrated
no such discrepancies here.
C. Retaliation
**6 Title VII and the ADEA protect employees who
attempt to exercise the rights guaranteed by the Act
against retaliation by employers. 42 U.S.C. § 2000e–
3(a); 29 U.S.C. § 623(d). 5 To establish a prima facie
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
7
Ullrich v. U.S. Secretary of Veterans Affairs, 457 Fed.Appx. 132 (2012)
case of retaliation, a plaintiff must show that: (1) he
or she engaged in a protected employee activity; (2)
the employer took an adverse employment action after
or contemporaneous with the protected activity; and
(3) a causal link exists between the protected activity
and the adverse action. Weston, 251 F.3d at 430.
Activities protected from retaliation include opposing
any practice made unlawful by Title VII or the ADEA;
making a charge of employment discrimination; or
testifying, assisting or participating in any manner in an
investigation, proceeding or hearing under Title VII or
the ADEA. See 42 U.S.C. § 2000e–3(a). A plaintiff may
establish the requisite causal link between the protected
activity and the retaliatory act by, for example, showing
“temporal proximity” or a pattern of ongoing antagonism
sufficient to give rise to an inference of retaliation. Jensen,
435 F.3d at 450; Farrell v. Planters Lifesavers Co., 206 F.3d
271, 280–81 (3d Cir.2000).
5
The
federalsector
provisions
of Title
VII and
the
ADEA
do not
explicitly
ban
retaliation;
however,
the
Supreme
Court
has held
that §
633a(a)
prohibits
retaliation
against
a
federal
employee
who
complains
of age
discrimination.
Gomez–
Perez v.
Potter,
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
553
U.S.
474,
491, 128
S.Ct.
1931,
170
L.Ed.2d
887
(2008).
The
Court
declined
to
address
whether
Title
VII
similarly
bans
retaliation
in
federal
employment,
id.
at
488 n.
4, 128
S.Ct.
1931,
but we
have
generally
assumed
it does.
See
Jensen
v.
Potter,
435
F.3d
444,
449–50
(3d
Cir.2006),
overruled
in part
on other
grounds
by
Burlington
N.
&
Santa
Fe Ry.
8
Ullrich v. U.S. Secretary of Veterans Affairs, 457 Fed.Appx. 132 (2012)
that
hostile
work
environment
claims
are
cognizable
under
the
federalsector
provisions
of Title
VII and
the
ADEA,
similar
requirements
apply.
See,
e.g.,
Jensen,
435
F.3d at
448–52
(Title
VII);
Racicot
v. Wal–
Mart
Stores,
Inc., 414
F.3d
675, 678
(7th
Cir.2005)
(ADEA).
v.
White,
548
U.S. 53,
67–68,
126
S.Ct.
2405,
165
L.Ed.2d
345
(2006).
[3] Ullrich argues repeatedly that he was disciplined
not for “lack of candor,” but in retaliation for filing
an earlier EEOC complaint against Ms. Davis and the
VAMC. However, other than Davis's admission that,
“in the past,” Ullrich had filed an EEO claim against
her for another *140 disciplinary matter (Supp.App.30,
¶ 4), neither the record nor the pleadings provide any
information regarding the outcome of that complaint,
claims made or parties named therein, on what incident
the complaint was based, or even a ballpark estimate of the
date on which the complaint was filed. The District Court
held that Ullrich failed to establish the requisite causal
connection. We agree. The fact that Ullrich filed another
EEOC complaint at some unspecified point prior to the
incidents underlying this action is insufficient evidence,
from which no reasonable factfinder could determine that
Ullrich's suspension was causally connected to earlier
protected activity.
D. Hostile Work Environment
[4] In Bonenberger v. Plymouth Township, 132 F.3d 20
(3d Cir.1997), we set forth the following requirements
for proving a hostile work environment claim in a sex
discrimination case under Title VII: “(1) the employee
suffered intentional discrimination because of [his or her]
sex; (2) the discrimination was pervasive and regular; (3)
the discrimination detrimentally affected the plaintiff; (4)
the discrimination would detrimentally affect a reasonable
person of the same sex in that position; and (5) the
existence of respondeat superior liability.” 6 Id. at 25
(quotation omitted). Here, the District Court held that the
VA's actions in investigating and suspending Ullrich did
not support a hostile work environment claim. We agree.
6
Assuming
without
deciding
To fall within the purview of Title VII, the conduct in
question must be severe and pervasive enough to create
an environment the employee subjectively perceives as
abusive or hostile, and an “objectively hostile or abusive
work environment-an environment that a reasonable
person would find hostile or abusive.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295
(1993). In determining whether an environment is hostile
or abusive, a court looks to a number of factors, including
“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.” Id. at
23, 114 S.Ct. 367. Ullrich points only to incidents related
to the Custody Order investigation and suspension as
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
9
Ullrich v. U.S. Secretary of Veterans Affairs, 457 Fed.Appx. 132 (2012)
proof of harassment and hostile work environment. These
incidents appear to include (1) generally, being subject
to an investigation Ullrich believes was unwarranted;
(2) being questioned once by Chief Donnelly, once by
Ms. Davis and Ms. Boss, and three times by Ms.
Davis alone; (3) receiving the proposed suspension; and
(4) ultimately, being suspended for five days without
pay. We cannot conclude that these incidents—however
unpleasant and embarrassing—constitute conduct that
a reasonable person would find sufficiently abusive to
support a hostile work environment claim.
**7 More importantly, Title VII protects a plaintiff
only as to harassment based on discrimination against
a protected class. “Many may suffer severe or pervasive
harassment at work, but if the reason for that harassment
End of Document
is one that is not proscribed by Title VII, it follows that
Title VII provides no relief.” Jensen, 435 F.3d at 449.
Because nothing in the record suggests that Ullrich was
the victim of sex or age discrimination, he cannot show the
*141 type of discriminatory conduct required to establish
a hostile work environment under Title VII or the ADEA.
V.
For the foregoing reasons, we affirm the District Court's
grant of summary judgment in favor of the VA.
All Citations
457 Fed.Appx. 132, 2012 WL 75324
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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