Wolfe v Department of the Army
Filing
43
MEMORANDUM AND RECOMMENDATIONS recommending to GRANT 26 Motion for Summary Judgment filed by Department of the Army. Signed by Judge John W. Primomo. (rf)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARTHA A. WOLFE,
Plaintiff,
v.
JOHN MCHUGH, Secretary,
Department of the Army,
Defendant.
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CIV. NO. SA-13-CA-852-OLG
MEMORANDUM AND RECOMMENDATION
Martha A. Wolfe was a GS-14 contract specialist at the U.S.
Army’s
410th
Contracting
Support
Brigade
(the
“Brigade”),
Expeditionary Contracting Command, Fort Sam Houston, Texas at the
time she retired from the Army, effective February 29, 2012.
She
instituted this lawsuit, pursuant to the Age Discrimination in
Employment Act (“ADEA”) and Title VII of the Civil Rights Act of
1964 alleging that she was subject to discrimination and harassment
in employment based upon her age and sex.1
Defendant has filed a
motion for summary judgment (docket nos. 26, 36), to which motion
Wolfe has responded.
(Docket nos. 33, 40).
Having considered the
briefs, the summary judgment evidence and the applicable law, the
Court is of the opinion the motion for summary judgment should be
granted.
1
Although her complaint also alleges a cause of action for retaliation,
Wolfe abandoned her reprisal claim during the administrative process.
Defendant’s Appendix, APPX 018-019.
Summary Judgment
Summary judgment shall be rendered 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.”
Rule
56(a),
Fed.R.Civ.P. The plain language of this rule mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In
such a situation, there can be no genuine issue as to any material
fact, since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other
facts immaterial.
Id. at 322-23.
The mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A summary judgment movant or opponent must cite to materials
in the record or show that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.
Rule
56(c)(1), Fed.R.Civ.P. An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out
2
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify to the matters stated.
Rule 56(c)(4), Fed.R.Civ.P.
If a party fails to properly support
an assertion of fact or fails to properly address another party’s
assertion of fact, as required by Rule 56(c), the Court may grant
summary judgment if the motion and supporting materials show that
the movant is entitled to it.
Rule 56(e), Fed.R.Civ.P.
In ruling
upon a motion for summary judgment, a court must view the evidence
in
the
light
most
favorable
to
the
opposing
party
justifiable inferences are to be drawn in his favor.
and
all
Tolan v.
Cotton, --- U.S. ---, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014);
Anderson, 477 U.S. at 255.2
Background
Wolfe began working as a Contract Specialist for the military
at Kelly Air Force Base in 1984.
She worked at various locations
over the years until 2005 when she accepted an assignment with Army
Contracting Agency – The Americas, now the 410th Contracting
Support Brigade at Fort Sam Houston in San Antonio, Texas.
On or
about November 25, 2007, Wolfe was promoted to Chief of Policy and
Assessment.
At the time of her retirement on February 29, 2012,
she was a Contract Administration Specialist.
Her pay plan and
2
Wolfe argues for denial of defendant’s motion based upon the existence of
“more than a scintilla of probative evidence.”
This appears to refer to a
standard applicable to a no-evidence summary judgment in state court.
See
Boerjan v. Rodriguez, 436 S.W.3d 307, 312 (Tex. 2014). It shall not be applied
here.
3
grade
was
GS-14,
and
her
job
series
was
1102,
which
dealt
exclusively with contracting services.
On or about July 4, 2010, Sharon Seiffert became the Deputy
Director
to
supervisor.
the
Brigade
Commander
and
Wolfe’s
first-line
Seiffert operated as Wolfe’s rater, managing Wolfe’s
responsible areas on a day-to-day and month-to-month basis.
On or
about July 7, 2010, Colonel William Sanders became the Brigade
Commander and Wolfe’s second-line supervisor.
Colonel Sanders
operated as her senior rater.
In July, 2011, Seiffert informed Wolfe that she was being
reassigned from Policy and Assessment to Chief of Special Staff
which included supervising interns.
This new position was not in
her 1102 Work Series and had nothing to do with her career training
in the area of contracting.
Mike Hollon, a male 24 years younger
than Wolfe, was promoted to her previous position.
Wolfe retained
the same pay.
On August 4, 2011, Wolfe was relieved of her responsibilities
of managing interns.
On or around August 23, 2011, she was denied
a performance award.
On December 18, 2011, Wolfe was once again
reassigned to supervising interns and quality assurance evaluators.
Then, in early February 2012, she was, once again, relieved of her
supervision of interns.
She resigned effective February 29, 2012
at the age of 68.
4
Wolfe first contacted an EEO official on February 21, 2012 and
filed a formal complaint of discrimination on March 9, 2012.
Defendant’s Appendix, APPX 002.
Her complaint alleges several
discrimination events: (1) constructive discharge, (2) relieved as
Chief of Contract Administration Services on February 10, 2012, (3)
reassigned to Chief of Contract Administration Services on December
18, 2011, (4) denied performance award on August 23, 2011, (5)
relieved as Chief of Contract Administration Services on August 4,
2011, (6) reassigned as Chief of Special Staff on July 18, 2011,
and (7) relieved as Chief of Policy and Assessment on July 17,
2011. Id., APPX 001. The EEO Director construed Wolfe’s complaint
as alleging harassment and a hostile work environment based upon
her sex and her age.
Id., APPX 009-011.
Analysis
1. Statute of Limitations
Defendant first contends that summary judgment should be
granted in the Army’s favor on Wolfe’s hostile work environment
claim because all incidents which arose more than 45-days before
February 21, 2012, Wolfe’s first contact with an EEO Counselor, are
untimely.
Pursuant to 29 C.F.R. § 1614.105(a)(1), an aggrieved
person who believes she has been discriminated against on the basis
of race, color, religion, sex, national origin, age, disability, or
genetic information must initiate contact with a counselor within
45 days of the date of the matter alleged to be discriminatory or,
5
in the case of personnel action, within 45 days of the effective
date of the action.
Failure to notify the EEO counselor in timely
fashion may bar a claim, absent a defense of waiver, estoppel, or
equitable tolling.
1992).
Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir.
Defendant states that Wolfe’s allegation that she was
relieved as Chief of Contract Administration Services on February
10, 2012 is her only timely hostile work environment claim.3
In response, Wolfe cites to Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002).
In Morgan, the Supreme Court noted
that, “A hostile work environment claim is composed of a series of
separate acts that collectively constitute one ‘unlawful employment
practice.’”
Id., at 117.
“It does not matter, for purposes of the
statute, that some of the component acts of the hostile work
environment fall outside the statutory time period.
Provided that
an act contributing to the claim occurs within the filing period,
the entire time period of the hostile environment may be considered
by a court for the purposes of determining liability.”
Id.
“In
order for the charge to be timely, the employee need only file a
charge within [45 days] of any act that is part of the hostile work
environment.”
Id., at 118.
Here, Wolfe has alleged multiple reassignments, demotions, the
denial of a performance evaluation and constructive discharge
3
Defendant does not challenge the timeliness of Wolfe’s claim that she was
constructively discharged due to a hostile work environment.
6
between July 2011 and February 2012 as evidence of a hostile work
environment.
The date that she was relieved as Chief of Contract
Administration Services on February 10, 2012 is clearly within the
45-day period prior to her initial contact with an EEO counselor.
See Barnes v.
Thus, her hostile work environment claim is timely.
McHugh, 2013 WL 3561679, at *4 (E.D.La. 2013).
All events she has
alleged as part of that claim back to July 2011 can be considered
as
evidence
of
the
existence
of
a
hostile
work
environment.
Wolfe’s hostile work environment claim was timely filed.
2. Applicable Claims
In her response to defendant’s motion for summary judgment,
Wolfe
cites
to
the
applicable
legal
standards
for
disparate
treatment claims under Title VII and the ADEA, as well as for
hostile work environment claims based upon sex and age.
pp. 8-9.
Response,
The government replies that the only claims which have
been exhausted are Wolfe’s hostile work environment claims.
Federal employees seeking relief under Title VII (or the ADEA)
for alleged employment discrimination must exhaust administrative
remedies before bringing such a case in federal district court.
Reveles v. Napolitano, --- Fed.Appx. ----, 2014 WL 7004789, at *2
(5th Cir. 2014).
An employee may file a lawsuit “not only upon the
specific complaints made by the employee's initial EEOC charge, but
also upon any kind of discrimination like or related to the
charge's allegations,
limited
only
7
by
the scope
of
the EEOC
investigation that could reasonably be expected to grow out of the
initial charges of discrimination.”
Stone v. Louisiana Dept. of
Revenue, --- Fed.Appx. ----, 2014 WL 5654307, at *4 (5th Cir.
2014)(quoting Fellows v. Universal Rests., Inc., 701 F.2d 447, 451
(5th Cir. 1983)). “‘[A] charging party's rights should [not] be cut
off merely because [s]he fails to articulate correctly the legal
conclusion emanating from his factual allegations.’” Id. (quoting
Simmons–Myers v. Caesars Entm't Corp., 515 Fed.Appx. 269, 272 (5th
Cir. 2013)(quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455,
462 (5th Cir. 1970)).
In support of its argument that Wolfe’s disparate treatment
claims are unexhausted, the government relies upon Clayton v.
Rumsfeld, 106 Fed.Appx. 268 (5th Cir. 2004) in which the plaintiff
brought causes of action for demotion and constructive discharge.
The administrative record of Clayton's EEOC charge indicated that
she did raise a demotion claim during the administrative process
but she did not claim constructive discharge.
The district court
found that she had not administratively exhausted either claim.
The Court of Appeals affirmed. It held that because plaintiff
did not raise constructive discharge in the administrative process,
she did not exhaust her remedies as to that issue.
In addition,
the Court of Appeals noted that Clayton did not object to the
framing of the issue by the EEOC and the ALJ, which issue did not
8
include her demotion claim.
Clayton, 106 Fed.Appx. at 271.
Thus,
Id.
her demotion claim was abandoned.
Under Section V of Wolfe’s administrative complaint, entitled
Matter(s) Giving Rise to Complaint, the relevant issues are stated
as whether Wolfe was “continuously harassed and subjected to a
hostile work environment based on Sex (female) and Age ... from 17
July 2011 to 29 February 2012 which forced her to retire early
(constructive discharge) effective 29 February 2012?” and whether
Wolfe
was
“discriminated
against
and
subjected
to
on
going
harassment (hostile work environment) based on Sex (female) and Age
... when ...” she was demoted, reassigned and denied a performance
Defendant’s Appendix, APPX 005.
award.
2012,
the
EEO
Director
framed
By letter dated June 28,
Wolfe’s
complaint
as
alleging
harassment and a hostile work environment based upon her sex and
her age.
Defendant’s Appendix, APPX 012-014.
Wolfe was afforded
the opportunity to correct the EEO Director if she believed the
claims had not been properly identified.
Id. She was advised that
if she failed to correct the identification of the claims, the EEO
Director would conclude that Wolfe agrees that the claims have been
Id.
properly identified.
Finding
Conference
reprisal claim
and
of
Wolfe did not object.
October
reenforced
16,
2012,
that
she
Wolfe
In the Factabandoned
was claiming
she
her
was
“subjected to ongoing harassment in a hostile work environment
based on age 68, date of birth, and sex, female, 24 from 17 July,
9
2011 to 29 February, 2012.”
Id., APPX 018-019.
The Fifth Circuit
has held that when an employee fails to object to an agency's
framing of the complaint, the Court must assume that the issues
See Dollis v. Rubin, 77 F.3d 777, 779–80
were correctly framed.
(5th Cir. 1995)(overruled in part on other grounds Burlington
Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
Wolfe responds that, in her complaint filed in this case, she
clearly alleged causes of action for sex discrimination under Title
VII and age discrimination under the ADEA.
Of course, that fact
would not cure her failure to exhaust administrative remedies.
Wolfe also states that the facts supporting her hostile work
environment claim are equally applicable to her disparate treatment
age and sex discrimination claims. She cites Clark v. Kraft Foods,
Inc., 18 F.3d 1278 (5th Cir. 1994), in which the Court of Appeals
was required to determine whether the plaintiff’s administrative
charge of discrimination which alleged “1. I was harassed because
of
my
sex,
female.
2.
I
was
sexually
harassed,”
raised
an
allegation of disparate treatment based upon gender in addition to
sexual harassment.
Clark, 18 F.3d at 1280.
The Court noted that
while the actual scope of an EEOC investigation does not determine
whether a claim is exhausted, the EEOC investigated plaintiff's
gender-based disparate treatment claim.
Id.
The Court of Appeals
concluded that while plaintiff’s sexual harassment claims were the
principal allegations at the administrative stage, she did raise a
10
gender-based disparate treatment claim sufficient to prompt an EEOC
investigation.
for
her
Id., at 1281.
complaint
of
Therefore, administrative remedies
gender-based
disparate
treatment
exhausted and that claim was properly before the court.
were
Id.
Several factors distinguish the case before this Court from
Clark.
Under Section V of her administrative complaint, entitled
Matter(s) Giving Rise to Complaint, the relevant issues are framed
as whether Wolfe was “continuously harassed and subjected to a
hostile work environment based on Sex (female) and Age ... from 17
July 2011 to 29 February 2012 which forced her to retire early
(constructive discharge) effective 29 February 2012?” and whether
Wolfe
was
“discriminated
against
and
subjected
to
on
going
harassment (hostile work environment) based on Sex (female) and Age
... when ...” she was demoted, reassigned and denied a performance
award.
Defendant’s Appendix, APPX 005. Unlike the plaintiff in
Clark, Wolfe, in her administrative complaint, did not identify two
separate causes of action.
Secondly,
the
plaintiff
in
Clark
was
a
private
sector
employee. Third, unlike the plaintiff in Clark, the relevant issue
was specifically framed by the EEO Director, and Wolfe agreed that
the issue so framed was the one she was presenting.
Even if Wolfe
had intended to include a disparate treatment claim, she abandoned
that claim by failing to object to the issue framed by the EEO
Director.
Clayton, 106 Fed.Appx. at 271.
11
Fourth, in Clark, questions during the EEOC investigation were
directed to whether males and other females in Clark's position
received comparable work assignments and duties, which questions
were
deemed
to
be
consistent
with
an
EEOC
inquiry
into
a
gender-based disparate treatment claim. Clark, 18 F.3d at 1280-81.
Here from the very beginning of the Fact-Finding Conference, the
framed issue was restated as whether Wolfe had been harassed and
subjected to a hostile work environment on the bases of age and sex
from 17 July, 2011 to 29 February, 2012, and she was advised that
questions would be related to the specifics of that allegation.
Defendant’s Appendix, APPX 020.
Wolfe was not asked questions
about comparable work assignments of males and females.
Finally, assuming that this Court were to find that Wolfe has
exhausted administrative remedies for disparate treatment claims
based upon gender and age, she must overcome the limitations bar
initially raised by defendant.
The rule in Morgan which benefits
her hostile work environment claim does not save her disparate
treatment claims.
As noted above, a federal employee who believes
she has been discriminated against “must initiate contact with a[n
EEO] 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
1614.105(a)(1).
12
the
action.”
29
C.F.R.
§
Wolfe first contacted an EEO official on February 21, 2012 and
filed a formal complaint of discrimination on March 9, 2012.
Defendant’s
Appendix,
APPX
002.
Disparate
treatment
claims
regarding her alleged constructive discharge on February 29, 2012
and for being relieved as Chief of Contract Administration Services
on February 10, 2012 would be timely.
The remaining events
identified in her administrative complaint are time-barred as being
outside the 45-day time period.
This Court believes, based upon
Clayton, that the only exhausted claim is Wolfe’s cause of action
for a hostile work environment.
Nevertheless, out of an abundance
of caution, her allegations of disparate treatment shall also be
addressed as to her alleged demotion of February 10, 2012 and
alleged constructive discharge.
3. Hostile Work Environment
“To state a hostile work environment claim under Title VII4,
the plaintiff must show that: (1) the victim belongs to a protected
group; (2) the victim was subjected to unwelcome harassment; (3)
the harassment was based on a protected characteristic; (4) the
harassment affected a term, condition, or privilege of employment;
and (5) the victim's employer knew or should have known of the
harassment and failed to take prompt remedial action.”
4
Watson v.
The Court is uncertain whether the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) for disparate
treatment claims is also applicable to hostile work environment claims. Compare
Carrera v. Commercial Coating Services Intern., Limited, 422 Fed.Appx. 334, 337
(5th Cir. 2011) with McBride v. Amer Technology, Inc., 2013 WL 2541595, at *4 n.2
(W.D.Tex. 2013). The parties do not specifically address this matter.
13
Kroger
Texas,
L.P.,
576
Fed.Appx.
392,
393
n.3
(5th
Cir.
2014)(quoting E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393, 399
(5th Cir. 2007)).
To affect a term, condition, or privilege of
employment, the harassment must be sufficiently severe or pervasive
so as to alter the conditions of employment and create an abuse
working environment.
Morgan, 536 U.S. at 116.
The Courts look at
“the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance; and whether it reasonably interferes with an employee's
work performance.” Barkley v. Singing River Elec. Power Ass'n, 433
Fed.Appx. 254, 257 (5th Cir. 2011)(quoting Harvill v. Westward
Commc'ns, LLC, 433 F.3d 428, 434 (5th Cir. 2005)).
The identifiable events which form the basis for Wolfe’s claim
that she was subjected to a hostile work environment are:
(1) relieved as Chief of Policy and Assessment on July 17,
2011;
(2) reassigned as Chief of Special Staff on July 18, 2011,
which
included
supervision
of
interns
assigned
to
Contract
Administration Services;
(3) relieved of her duty of supervising interns assigned to
Contract Administration Services on August 4, 2011;
(4) denied performance award on August 23, 2011;
(5) assigned the duties of supervising interns assigned to
Contract Administration Services on December 18, 2011;
14
(6) relieved of her duties of supervising interns assigned to
Contract Administration Services on February 10, 2012; and,
(7) constructive discharge effective February 29, 2012.
Defendant’s Appendix, APPX 125.
Review of the summary judgment evidence fails to create a
genuine
issue
of
fact
regarding
Wolfe’s
claim
that
she
was
subjected to a hostile work environment based upon her age or sex.
She was a member of a protected group and was subjected to what she
perceived to be unwelcome harassment. However, no summary judgment
evidence indicates that the alleged harassment was based on a
protected characteristic or that it affected a term, condition, or
privilege of Wolfe’s employment. Watson, 576 Fed.Appx. at 393 n.3.
Wolfe’s testimony from the Fact-Finding Conference of October
16, 2012 indicates that the source of the alleged hostile work
environment was Sharon Seiffert, the Deputy Director to the Brigade
Commander and Wolfe’s first-line supervisor.5 Colonel Sanders, the
Brigade Commander, testified that he was aware of “significant
friction” between Seiffert and Wolfe.
104.
Wolfe was not alone.
Defendant’s Appendix, APPX
Other employees, men and women of
various ages, complained about Seiffert’s professionalism.
Id.,
APPX 68, 104, 117. When Colonel Sanders discussed this matter with
Seiffert, she was disrespectful to him which resulted in the
5
Although Wolfe asserts that Seiffert attributed her actions to Colonel
Sanders, the Brigade commander, Wolfe has provided no evidence directly
connecting Colonel Sanders to any alleged harassment.
15
issuance of a letter of reprimand in January 2012.
Shortly thereafter, Seiffert left the Brigade.
Id., APPX 069.
Id., APPX 067.
Of
course, workplace drama is not unusual. It is only redressable if,
in this case, Wolfe can establish she was subjected to unwelcome
harassment based upon her sex or her age.
Based upon her statements, even Wolfe did not attribute the
actions taken against her to age or sex.
Regarding her move from
Policy and Assessment to Chief of Special Staff in July 2011, Wolfe
stated that she did not know if Seiffert was even aware she was
Defendant’s Appendix, APPX 023.
discriminating against her.
When
Wolfe told Colonel Sanders that she intended to file a complaint
against Seiffert, she did not state that it would be based upon age
or sex.
Id., APPX 103.
During the Fact-Finding Conference on
October 16, 2012, Wolfe was asked why she believed Seiffert changed
her duties.
Id., APPX 022.
Wolfe responded, “I guess because she
felt that I wasn't doing a good job,” not because Wolfe is a woman
or because Wolfe was 68 years old.
Id.
In her response brief, Wolfe describes her July reassignment
from Chief of Policy and Assessment to Chief of Special Staff as a
demotion.
She states that she was only moved after Mike Hollon,
her subordinate and a younger male, was given her position.
summary
judgment
evidence
reassignment was a demotion.
does
not
substantiate
that
The
this
Wolfe acknowledged that she remained
a GS-14 and did not lose any pay.
16
Defendant’s Appendix, APPX 043.
When asked why she believed she had been transferred, Wolfe once
again did not attribute Seiffert’s actions to her sex or age but to
favoritism. Id., APPX 012-013, 026, 030, 032. Wolfe admitted that
everyone, even she, had favorites. Id., APPX 053-054. She stated,
“Maybe it was their personality, how personable they were or how
truthful they could be and up front.”
Id., APPX 054.
Wolfe
admitted that having a favorite did not necessarily equate with
discrimination.
Id.
Wolfe also focuses on her replacement by Mike Hollon, a
younger
male,
environment.
as
a
basis
for
her
claim
of
a
hostile
work
In her brief, she states, “... her job position was
given to her subordinate Mr. Hollon.”
Response, p. 9.
In fact,
Hollon was recommended by an external board and chosen by Colonel
Sanders from among 26 applicants.
123.
Defendant’s Appendix, APPX 122-
Wolfe contends that Seiffert, as the Deputy Director for the
organization, gathered and presented the information to the board
that made the decision to hire Hollon.
Significantly, however,
Wolfe, though eligible, never even applied for the position for
which Hollon was selected.
Id., APPX 117-118.
She can hardly
complain now that his selection is evidence of a hostile work
environment.
In her testimony at the Fact-Finding Conference of October 16,
2012, Seiffert explained her reasoning for transferring Wolfe from
Policy and Assessment.
Seiffert stated that when she arrived at
17
the Brigade, Policy and Assessment were two separate divisions.
Defendant’s Appendix, APPX 075.
Wolfe was in charge of Assessment
and Kim Drake was in charge of Policy.
Id.
elsewhere, so her GS-14 position became vacant.
Drake took a job
Id.
At that time,
Guadalupe Hernandez, a GS-13, was temporarily promoted into the
Id.
position during the hiring process.
Meanwhile, the Brigade was undergoing a total and constant
reorganization.
Defendant’s Appendix, APPX 076, 101.
Policy and
Assessment were merged together. Id. Seiffert organized the board
of individuals who recommended Mike Hollon for the position, who
was then selected by Colonel Sanders.
122-123.
Id., APPX 069-070, 075-076,
Wolfe was then moved into a GS-14 position as Chief of
Special Staff where she supervised quality assurance personnel and
interns in Contract Administration Services.
Id., APPX 076.
Seiffert stated, “She (Wolfe) was not only the only available 14 I
had, but she was the only one who had any experience in those areas
of quality control.
She was the best candidate for the position.”
Id., APPX 076-077.
Wolfe has not disputed that she was the best
GS-14 for the position to which she was transferred.
Wolfe
also
complains
assignments
are
further
Seiffert.
Seiffert
that
evidence
stated
that,
her
of
subsequent
continuing
changes
harassment
after July 2011,
Wolfe
of
by
was
managing the interns because the GS-13 who worked for her had taken
another job.
Seiffert was receiving complaints from the interns
18
regarding Wolfe’s lack of supervision.
0077-78.
Defendant’s Appendix, APPX
Apparently, as a result, Wolfe was relieved of her
responsibility of managing interns around August 4, 2011 and was
moved
to
Id.
G8.
Administration
Wolfe
Services
in
was
reassigned
December
2011
back
when
to
the
Contract
GS-13
who
Seiffert had promoted left the job, leaving the interns with no one
to manage them.
Seiffert
Id., APPX 078-079.
stated
that
each
time
she
selected
Wolfe
for
reassignment, during the reorganization, she did so because of her
experience and the conditions within the organization. Defendant’s
Appendix, APPX 087.
The duties of other employees were also
changed during the reorganization for males and females over 40.
Id.,
APPX
064-065.
Wolfe’s
problems
with
performance
contributed to the decisions to change her assignments.
also
Seiffert
testified that, in her discussions with Wolfe, she explained to her
that she was not performing up to standards, and that she was being
moved to another area in the hope that it would give her an
opportunity to improve her performance.
Id., APPX 084.
Wolfe has
presented no summary judgment evidence to the contrary.
Wolfe believes that because Mike Hollon received a performance
award and she did not, it must be based upon her sex.
Appendix, APPX 026.
Defendant’s
This conclusion is unsupportable.
Seiffert
explained why Wolfe did not receive a performance award.
She
stated that the rating she gave Wolfe was based on her performance,
19
and that others in the Brigade, male and female, received the same
rating. Defendant’s Appendix, APPX 081. None of those individuals
Id.
received a performance award.
Seiffert provided several
reasons for giving Wolfe the rating she was assessed: (1) Wolfe
sent documents with errors, (2) it took two, three or four times to
correct
the
errors,
and
(3)
she
failed
understandable training plan for interns.
to
complete
an
Id., APPX 082-083.
In her testimony, Wolfe states that she participated in a
Procurement Management Review, as did other employees who received
an award, and explains why she was disoriented, did not receive emails and other documents and did not know what was going on, as
Seiffert indicated.
Response, exh. B, bates nos. 000296-299.
Wolfe fails to provide a performance evaluation for any employee
who either did or did not receive an award.
Thus, she has not
created an arguable issue that she was denied a performance award
due to a hostile work environment based upon her sex or age.
Wolfe asserts that Seiffert made several age-related comments.
In June 2011, Seiffert critiqued Wolfe as being disoriented and for
losing documents and not appearing to know what was going on.
Defendant’s Appendix, APPX 025-026, 130.
Wolfe believes these
comments are references to her age and suggest she is suffering
from dementia.
The Court disagrees.
Seiffert pointed to specific
problems with Wolfe’s performance in the absence of her employees.
She advised Wolfe that, as a leader and supervisor, she needed to
20
be less dependent on her employees.
The comments were not age-
related.
Wolfe also refers to a statement by Seiffert made in late June
2011 at the end of the feedback session.
no. 000307.
Response, exh. B, bates
When asked during the Fact-Finding Conference why she
believed Seiffert favored Mike Hollon over her, Wolfe responded,
“Well, if I'm being told as I get older, our performance goes down,
and he's young and he's upgoing and all this, that's the way I took
it.”6
Id., bates no. 000311.
Wolfe also offers the unsigned
declaration of Marsha L. Patin who states she heard Seiffert
comment several times about Wolfe’s age and say Wolfe was an older
woman who had been there too long who was not contributing any
more.
Id., exh. C.
Patin also indicates that Seiffert told her
(Patin) that she should not apply for a certain position because
the men on the staff would not respond to her because she is a
woman, suggesting to Patin that Seiffert had a sex-related bias.7
Id.
Where a plaintiff offers remarks as direct evidence, the Court
applies a four-part test to determine whether they are sufficient
to overcome summary judgment.
Reed v. Neopost USA, Inc., 701 F.3d
6
Although Wolfe’s brief contains exact quotes, no quotes from Seiffert are
presented in the summary judgment evidence.
7
Defendant briefly challenges the admissibility of Patin’s declaration in
a footnote because it is unsigned. Without determining this matter, the Court
will assume that the declaration, which is part of the administrative record, can
be considered. Defendant’s Appendix, APPX 019.
21
434, 441 (5th Cir. 2012)(citing Brown v. CSC Logic, Inc., 82 F.3d
651, 655 (5th Cir. 1996)(holding that “[r]emarks may serve as
sufficient evidence of age discrimination if the offered comments
are: 1) age related; 2) proximate in time to the terminations; 3)
made by an individual with authority over the employment decision
at issue; and 4) related to the employment decision at issue.”)).
Where
a
plaintiff
offers
remarks
as
circumstantial
evidence
alongside other alleged discriminatory conduct, the Court applies
a more flexible two-part test in which the plaintiff need only show
(1) discriminatory animus (2) on the part of a person that is
either primarily responsible for the challenged employment action
or by a person with influence or leverage over the relevant
decisionmaker.
Id.
A workplace environment is hostile when it is “permeated with
discriminatory
intimidation,
ridicule,
and
insult,
that
is
sufficiently pervasive to alter the conditions of the victim's
employment.”
Reed, 701 F.3d at 443 (quoting Dediol v. Best
Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011)).
In assessing
whether a claim meets that standard, courts review “all of the
relevant circumstances, including the frequency of the conduct, its
severity, whether it is physically threatening or humiliating or it
is
a
mere
offensive
utterance,
and
whether
it
interferes with the employee's work performance.”
unreasonably
Id. (quoting
City of Hous. v. Fletcher, 166 S.W.3d 479, 489 (Tex.App.—Eastland
22
2005, pet. denied)). “Incidental or occasional age-based comments,
discourtesy, rudeness, or isolated incidents (unless extremely
serious) are not discriminatory changes in the terms and conditions
of a worker's employment.”
Id.
Wolfe has offered vague remarks of Seiffert which are agerelated.
While Seiffert’s comment to Wolfe was made once in June
2011, Wolfe provides no indication as to the time Seiffert’s
statements to Patin were made.
Patin’s statement that Seiffert
“commented several times” about Wolfe’s age is ambiguous and
insubstantial.
See Wallace v. Methodist Hosp. Sys., 271 F.3d 212,
222 (5th Cir. 2001)(“Where comments are vague and remote in time
they are insufficient to establish discrimination.”). Cf. Dediol,
655 F.3d at 441 (plaintiff demonstrated severe harassment in
ADEA/hostile work environment case when he was called names like
“old mother* * * * * *,” “old man,” and “pops” a half-dozen times
daily); and Moody v. United States Sec'y. of Army, 72 Fed.Appx.
235, 238-39 (5th Cir. 2003)(the following statements: “Granny, have
you not got anything to do?”; “See that old woman and she will take
care of you.”; “Old woman, when are you going to retire and go home
so someone younger can have a job?”; and, “Granny, when are you
going to retire and let someone younger have a job?” were not
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment).
The summary judgment evidence presented by Wolfe of age-related
23
remarks demonstrates no frequency of comments by Seiffert nor does
it suggest that her remarks were severe, physically threatening or
humiliating.
They were more in the nature of merely offensive
utterances which did not interfere with Wolfe's work performance.
As such, they are properly categorized as incidental or occasional
age-based comments, which though discourteous or rude, represent
isolated incidents insufficient to create a genuine issue of fact
regarding the existence of a hostile work environment based upon
age.
In her Statement of Facts, attached to her response brief,
Wolfe asserts that, during Brigade meetings, Seiffert would demean
Wolfe in front of her subordinates or simply ignore any input that
Wolfe would offer. In the Fact-Finding Conference, Wolfe testified
that, “I felt worthless. I felt like when I spoke, I was turned
off. It wasn't important. When I talked during our weekly meetings,
I felt that I was, you know, shoved to the side. I don't [want] to
hear what you're saying. That's not a good feeling because people
are smart. They pick up on that.”
Response, exh. B, bates no.
000306. In her declaration, Marsha Patin states that Seiffert made
condescending remarks to Wolfe in front of Hollon and Patin, and
would be rude to Wolfe and cut her off when she was speaking.
Id.,
exh. C.
Such evidence is consistent with the lack of professionalism
demonstrated by Seiffert towards several employees of the Brigade
24
discussed
above.
Wolfe
employees
complained of
contends
Seiffert’s
that
merely
because
unprofessionalism
other
does not
negate her claims of discrimination based upon her age and gender.
Wolfe cannot defeat defendant’s motion simply by stating that
discrimination is one possible explanation for Seiffert’s actions.
To avoid entry of summary judgment, Wolfe bears the burden of
creating a genuine issue of fact on every essential element of her
case.
Celotex Corp., 477 U.S. at 322.
The Court can assume
Seiffert was rude, disrespectful and condescending to Wolfe during
these meetings. Unless that behavior was based upon Wolfe’s sex or
age, and Wolfe presents proof to that effect, it does not create a
genuine issue of fact on her claim that she was subjected to a
hostile work environment.
Next, in her Statement of Facts, Wolfe indicates that while
she was still working as the Chief of Policy and Assessment GS-14,
it was expected for Wolfe, as the Section Chief, to participate in
inspections of field contracting offices. She states that when she
asked about an upcoming inspection, Seiffert told her that Colonel
Sanders wanted only the “younger” section members to attend.
According
to Wolfe,
only
Mike
Hollon
and
Marsha
Patin,
both
subordinates of Wolfe’s, conducted the inspections. Wolfe cites no
summary judgment evidence in support of this alleged fact.
In her Statement of Facts, Wolfe asserts that a later internal
investigation determined that despite relieving Wolfe of her duties
25
as Chief of Policy and Assessment, Seiffert was unable to provide
documentation to support her reasons for relieving Wolfe of her
duties, re-assigning her to manage interns or for not providing a
performance reward that she had earned in August of 2011.
Wolfe
also cites no summary judgment evidence in support of this alleged
fact.
According to Wolfe, prior to Seiffert’s departure from the
Brigade, Seiffert
called
a
meeting
with
Wolfe
and
Maj.
Nile
Clifton, during which she apologized to Wolfe for the way she had
treated her and told her that everything she had done to her had
been on the orders of Colonel Sanders.
Wolfe cites no summary
judgment evidence in support of this alleged fact.
In addition to failing to create a genuine issue of fact
regarding unwelcome harassment based upon sex or age, Wolfe has
failed to present proof that the alleged harassment affected a
term, condition, or privilege of employment. Watson, 576 Fed.Appx.
393 n.3.
To affect a term, condition, or privilege of employment,
the harassment must be sufficiently severe or pervasive so as to
alter the conditions of employment and create an abusive working
environment.8
Morgan, 536 U.S. at 116.
Wolfe was asked if the
“harassment change[d] the conditions of your employment or your
benefits in any way?” and responded “No.”
8
Defendant’s Appendix,
As evidence that the harassment was “severe and pervasive,” Wolfe offers
testimony from Bennie Wendell Rush who stated that he saw Wolfe exit Seiffert’s
office on more than one occasion “sobbing with -- tears on her face.” Response,
exh. B, bates no. 000389. Rush did not testify concerning the circumstances of
the encounters between Seiffert and Wolfe on those or any other occasions.
26
APPX 033.
While she says she is sure it interfered with her work
performance,
she
was
not
counseled
or
admonished
about
her
performance after June 2011, i.e., at anytime during the alleged
period of the hostile work environment, July 2011 through February
2012. Id., APPX 033-034. Wolfe denied that the alleged harassment
affected any
employment opportunity for her.
Id., APPX 034.
Wolfe has failed to create a genuine issue of fact regarding
her claim that she was subjected to a hostile work environment
based upon her age or sex.
She has not presented sufficient
evidence to show that she was subjected to unwelcome harassment
based upon her age or sex which affected a term, condition, or
privilege of her employment. Wolfe was transferred from Policy and
Assessment after failing to apply for the job she vacated.
Her
“transfers” thereafter were little more than changes in assignments
involving supervision and loss of supervision of interns.
Wolfe
has presented no summary judgment evidence as to the other changes
in job duties.
She never lost pay or benefits associated with a
GS-14.
The summary judgment evidence fails to create a genuine issue
of fact that the reassignments or the denial of her performance
award were related to her sex or her age.
Furthermore, by Wolfe’s
own admissions, these actions were not sufficiently severe or
pervasive so as to alter the conditions of Wolfe’s employment or to
create an abusive working environment.
27
Defendant’s motion for
summary judgment should be granted on Wolfe’s claim that she was
subjected to a hostile working environment based upon her sex or
age.
4. Constructive Discharge
Wolfe also contends that the conditions were so intolerable
that she was forced to resign.
In a hostile work environment
constructive discharge claim, the plaintiff must show working
conditions so intolerable that a reasonable person would have felt
compelled to resign. Pennsylvania State Police v. Suders, 542 U.S.
129, 147 (2004); Perret v. Nationwide Mut. Ins. Co., 770 F.3d 336,
338 (5th Cir. 2014).
Several factors are relevant to constructive
discharge, including: (1) demotion; (2) reduction in salary; (3)
reduction in job responsibilities; (4) reassignment to menial or
degrading work; (5) badgering, harassment, or humiliation by the
employer calculated to encourage the employee's resignation; or (6)
offers of early retirement that would make the employee worse off
whether the offer were accepted or not.
Perret, 770 F.3d at 338
(quoting Aryain v. Wal–Mart Stores Texas LP, 534 F.3d 473, 481 (5th
Cir. 2008)).
A constructive discharge claim “requires a greater
severity of pervasiveness or harassment than the minimum required
to prove a hostile work environment.” Burrle v. Plaquemines Parish
Government, 553 Fed.Appx. 392, 395 (5th Cir. 2014)(quoting Landgraf
v. USI Film Products, 968 F.2d 427, 430 (5th Cir. 1992)).
If a
constructive discharge claim rests on the same evidence as her
28
hostile work environment claim, and if the plaintiff has not
alleged evidence sufficient to preclude summary judgment on the
latter claim, she also cannot survive summary judgment on the
former claim.
Cavalier v. Clearlake Rehabilitation Hosp., Inc.,
306 Fed.Appx. 104, 107 (5th Cir. 2009).
For the reasons discussed above, summary judgment should also
be
granted
on
Wolfe’s
discharge claim.
hostile
work
environment
constructive
She was not subjected to a demotion or a
reduction in salary.
Her job responsibilities were reduced only
when management of interns was removed.
However, the summary
judgment evidence establishes that Wolfe complained both when she
was given supervision of the interns and when supervision was taken
away.
Defendant’s Appendix, APPX 049-050.
She was not reassigned
to menial or degrading work, and was not badgered, harassed, or
humiliated in a manner calculated to encourage her resignation. No
one suggested that Wolfe take early retirement.
Id., APPX 029.
In fact, Wolfe initiated the idea of retirement in August
2011.
Wolfe asked Seiffert to investigate an early buyout which
Seiffert agreed to do. Defendant’s Appendix, APPX 064, 143. Wolfe
indicated then that she would retire at the end of February 2012.
Id. Wolfe applied for retirement in November 2011. Id., APPX 149.
In February 2012, after Seiffert had left the Brigade, Colonel
Sanders tried to talk Wolfe out of retiring.
Id., APPX 055, 066.
As the summary judgment evidence discussed above shows, Seiffert
29
was Wolfe’s first-line supervisor and the person she blamed for all
of the actions which created the alleged hostile work environment.
Despite the fact that Seiffert was gone and Wolfe was encouraged to
stay by Colonel Sanders, she chose to retire. The summary judgment
falls woefully short of creating a genuine issue of fact on Wolfe’s
claim
that
she
was
subjected
constructive discharge.
to
a
hostile
work
environment
Defendant’s motion for summary judgment
should be granted on this claim as well.
5. Disparate Treatment
As discussed above, out of an abundance of caution, the Court
will address Wolfe’s allegations of disparate treatment based upon
her age and sex regarding her alleged demotion of February 10, 2012
and alleged constructive discharge.
Under the burden-shifting
analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973),
Wolfe
must
first
establish
prima
a
facie
case
of
discrimination. E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 694 (5th
Cir. 2014).
If she does so, then defendant must articulate a
legitimate,
Finally,
nondiscriminatory
the
burden
shifts
reason
back
to
for
its
the
Wolfe
defendant’s proffered reason is pretextual.
Id.
actions.
to
show
that
Id.
To establish a discrimination claim under Title VII (or the
ADEA), a plaintiff must prove that she was subject to an “adverse
employment
action”—a
judicially-coined
term
referring
to
an
employment decision that affects the terms and conditions of
30
employment. Thompson v. City of Waco, Texas, 764 F.3d 500, 503 (5th
Cir. 2014).
See Cardiel v. Apache Corp., 559 Fed.Appx. 284, 288
(5th Cir. 2014).
Adverse employment actions consist of “ultimate
employment decisions” such as hiring, firing, demoting, promoting,
granting leave, and compensating.
Id.
“[A]n employment action
that ‘does not affect job duties, compensation, or benefits' is not
an adverse employment action.” Pegram v. Honeywell, Inc., 361 F.3d
272, 282 (5th Cir. 2004)(quoting Banks v. E. Baton Rouge Parish Sch.
Bd., 320 F.3d 570, 575 (5th Cir. 2003)).
Regarding the employment action on February 10, 2012, Wolfe
was not reassigned, was not reduced in grade and did not lose pay.
The only action taken against Wolfe was removal of supervision of
the interns.
The mere loss of some job responsibilities does not
constitute an adverse employment action.
504.
Thompson, 764 F.3d at
Wolfe cannot recover under Title VII or the ADEA for the
alleged discrimination based upon her sex or age on February 10,
2012.
The Court has previously addressed the elements of Wolfe’s
constructive discharge claim.
She has not established a genuine
issue of fact regarding a prima facie case.
Wolfe has failed to
show that working conditions were so intolerable that a reasonable
person would have felt compelled to resign.
338.
Perret, 770 F.3d at
On the contrary, the summary judgment evidence establishes
that Wolfe initiated plans to retire in February 2012 as far back
31
as August 2011, that she sought to obtain, and presumably did, a
significant buyout, that she submitted her application to retire in
November 2011, and that she retired despite Colonel Sanders’
request that she remain employed with the Brigade, after Seiffert
had departed.
Clearly, her resignation was not submitted under
intolerable circumstances. Defendant’s motion for summary judgment
should be granted on Wolfe’s claims of disparate treatment based
upon sex and age on February 10, 2012 and February 29, 2012 for
constructive discharge.
Recommendation
It is, therefore, the recommendation of the Magistrate Judge
that defendant’s motion for summary judgment be GRANTED.
Instructions for Service and
Notice of Right to Object
The District Clerk shall serve a copy of this Memorandum and
Recommendation on all parties either electronically or by mailing
a copy by certified mail, return receipt requested. Pursuant to 28
U.S.C. § 636(b)(1) and Rule 72(b)(2), Fed.R.Civ.P., any party who
desires to object to this Memorandum and Recommendation must serve
and file specific written objections within 14 days after being
served with a copy. Such party shall file the objections with the
District Clerk and serve the objections on all other parties and
the Magistrate Judge. A party’s failure to file written objections
to the findings, conclusions, and recommendations contained in this
32
report within 14 days after being served with a copy shall bar that
party from de novo review by the District Judge of those findings,
conclusions, and recommendations and, except on grounds of plain
error,
from
appellate
review
of
factual
findings
and
legal
conclusions to which the party did not object, which were accepted
and adopted by the District Court.
Thomas v. Arn, 474 U.S. 140,
150 (1985); Douglass v. United Services Automobile Association, 79
F.3d 1415, 1428-29 (5th Cir. 1996).
SIGNED January 28, 2015.
_________________________________
JOHN W. PRIMOMO
UNITED STATES MAGISTRATE JUDGE
33
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