MOORE v. SHINSEKI
Filing
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MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 10/25/2011. 10/25/2011 ENTERED AND COPIES E-MAILED.(tomg, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES T. MOORE
v.
ERIC K. SHINSEKI, SECRETARY,
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS
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CIVIL ACTION
NO. 10-4463
MEMORANDUM
McLaughlin, J.
October 25, 2011
This lawsuit arises from the plaintiff, James T.
Moore’s employment with the Department of Veterans Affairs
Medical Center (“VAMC”).
In November 2007, Moore’s coworker,
Holly Leahy, filed a sexual harassment complaint against him.
After an administrative board investigation, Moore was issued a
notice of proposed removal, which was later reduced to a 14-day
suspension from his job.
Moore, an African-American male,
alleges that the defendant’s adverse employment actions against
him were motivated by race or gender, and that the defendant
retaliated against him for filing a complaint with the Equal
Employment Opportunity Commission (“EEOC”) in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”).
The defendant moves for summary judgment under Rule 56
of the Federal Rules of Civil Procedure.
the defendant’s motion.
The Court will grant
I.
Factual Background
The facts presented here are undisputed unless
otherwise noted.
Disputed facts are read in the light most
favorable to the plaintiff, the nonmoving party.
See Sheridan v.
NGK Metals Corp., 609 F.3d 239, 251 n.12 (3d Cir. 2010).
A.
Moore’s Employment at the VA
James T. Moore is an African-American male who has been
employed by the VAMC since September 1990.
He started as a mail
clerk and rose through the ranks to become lead mail clerk, and
then supervisory mail clerk.
Moore assumed his current position
as a program support assistant in 2002, following an overall
management reorganization.
His responsibilities include
coordinating the daily operations in the mail room, ordering
supplies, giving advice and instruction, and identifying
development and training needs of mail room employees.
See Pl.’s
Opp. to Mem. in Supp. of Summ. J. (“Opp.”), Decl. of James T.
Moore ¶ 1, Ex. A (“Moore Decl.”); Mem. in Supp. of Summ. J.
(“MSJ”), Moore Dep. 21, 24, 32, Ex. A (“Moore Dep.”); id., Hatsis
Dep. 6-7, Ex. C (“Hatsis Dep.”); Compl. ¶ 8.
Moore is the most senior employee in the mail room.
reports to Earl Dozier, an African-American male who supervises
He
the mail room and the warehouse.
Earl Dozier, in turn, reports
2
to Phillip Hatsis, the Vice President of Facilities Management.
Moore Dep. 32; Hatsis Dep. 9.
B.
Holly Leahy’s Sexual Harassment Complaint Against Moore
On October 21, 2006, Holly Leahy, a Caucasian female,
transferred into the mail room.
13-14, Ex. F (“Leahy Dep.”).
Moore Decl. ¶ 4; MSJ, Leahy Dep.
During the next year, Leahy made
numerous racial and sexual remarks, including describing an
African-American coworker’s hair as “Buckwheat,” describing young
minority girls in the hallway as “acting like sluts,” talking
about lap dances for her boyfriend’s birthday party, saying that
“Barack” means “terrorist,” and referring to Moore as “Jamesie
Poo.”
See Opp., Admin. Bd. of Investig. Rept. 4, Ex. 25 (“Admin.
Bd. Rept.”); id., Stmt. of Clifford Pearsall, Ex. 27; id., Stmt.
of Harry L. Maxwell, Ex. 28; Moore Decl. ¶¶ 5-6.
On November 19, 2007, Leahy complained to her direct
supervisor, Earl Dozier, that Clifford Pearsall, another AfricanAmerican male employee in the mail room, had created a hostile
work environment for her.
MSJ, Dep’t of VA Rept. of Contact at
VA00138, Ex. B.
The following day, Leahy approached Earl Dozier again,
this time to complain about Moore.
According to Dozier, Leahy
was “hysterical” as she described the incidents with Moore.
Dozier Dep. 10-13, Ex. G (“Dozier Dep.”).
3
MSJ,
Leahy gave Dozier a
written statement claiming that Moore called her “my little white
girl,” implied that he was going to hit her, squeezed the back of
her neck, put her in a headlock, and told her he wanted to “bend
[her] over and ram it in.”1
Id., Ltr. from Holly Leahy to Earl
Dozier at VA000139, Ex. B.
Dozier brought Leahy to the Department of Veterans
Affairs (“VA”) police.
After Leahy repeated her allegations
about Moore to the police, she was temporarily removed from the
mail room and reassigned to the warehouse.
The VA police
conducted follow-up interviews with various mail room employees,
then referred the case to the Administrative Board of
Investigation (the “Board”) for further review.
The VA police
report also recommended that all mail room employees, including
Leahy, be given sensitivity training.
See Opp., Uniform Offense
Rept. 7, Ex. 1.
Leahy’s complaints against Pearsall and Moore prompted
Richard Citron, Director of the Philadelphia VAMC, to order the
Board to investigate.
Reply Mem. in Supp. of MSJ (“Reply”),
Citron Aff. ¶¶ 2, 5, Ex. 7 (“Citron Aff.”).
1
It is undisputed that Leahy made these allegations, but
the truth of the allegations themselves is disputed. Michelle
Dade, a mail room employee, testified that she heard Moore refer
to Leahy as his little white friend. MSJ, Dade Dep. 11-12, Ex.
F. Moore denied all of Leahy’s allegations. Moore Dep. 84;
Moore Decl. ¶¶ 7-8.
4
C.
The Board’s Feb. 8, 2008 Findings, Conclusions, and
Recommendations
From November 2007 to February 2008, the Board
interviewed 14 witnesses and reviewed documents.
In his
testimony before the Board on December 18, 2007 and January 18,
2008, Moore denied all of Leahy’s allegations against him.
Admin Bd. Rept., Exhibit Listings; see id. at 3.
See
Leahy admitted
to the Board investigators that she participated in discussions
of a racial or sexual nature.
In particular, she admitted to
discussing lap dancing, calling Moore “Jamesie Poo,” and making
the “Buckwheat” comment.
Id. at 4.
On February 8, 2008, the Board issued a report
containing findings, conclusions, and recommendations regarding
Leahy’s allegations.
As to the allegations that Clifford
Pearsall created a hostile work environment, the Board found that
Leahy’s allegations were unsubstantiated.
As to Leahy’s allegations of sexual harassment and
hostile work environment against Moore, however, the Board found
the following: (1) Moore’s testimony was dishonest; (2) Leahy was
a credible witness, who openly admitted her own participation in
discussions of a sexual and racial nature; (3) Moore made
degrading comments to Leahy by calling her “my little white girl”
and “Elly May Clampett”2; (4) Moore made unwanted sexual advances
2
Elly May Clampett is a tomboy character from the TV show
“Beverly Hillbillies.”
5
toward Leahy by telling her that he wanted to bend her over and
“ram it in”; and (5) Moore told Leahy he would punish her and
told others to leave the room so he could take his belt off.
The
Board could not substantiate Leahy’s allegations that Moore made
physical contact with Leahy, but it stated that “this behavior
was consistent with other behaviors that were substantiated.”
Admin. Bd. Rept. 1-4.
Based on these findings, the Board concluded that there
was sufficient evidence that Moore’s conduct was inappropriate,
violated the VA sexual harassment policy, and created a hostile
work environment for Leahy, who perceived him as the “lead” or
supervisor in the mail room.
Further, the Board found that Moore
had made “intentional misstatements in sworn testimony to an
investigative body.”3
Id. at 8-9.
The Board referred its report to the VA Human Resources
department (“HR”) for appropriate administrative action against
Moore.
In addition, the Board recommended training for all mail
room employees regarding hostile work environments, workplace
violence, sexual harassment, and cultural sensitivity.
10.
Id. at 9-
Holly Leahy was not disciplined.
3
The Board also found that Earl Dozier had failed to
adequately supervise the mail room and referred the matter to
Human Resources for appropriate administrative action. Admin Bd.
Rept. 5-6.
6
D.
Actions of VA Management Following the February 2, 2008
Report
On February 19, 2008, Richard Citron, Director of the
Philadelphia VAMC, sent a memo to the director of HR, outlining
the Board’s recommendations and requesting that HR prepare an
action plan and time line within 30 days.
Similarly, on February
26, 2008, Ahmed Hassan, who supervises Earl Dozier, contacted the
HR department and requested a recommendation on corrective action
against James Moore and Earl Dozier.
Opp., Memo from Richard
Citron to Director of Human Resources, Ex. 46; MSJ, Memo from
Ahmed Hassan at VA00162, Ex. B.
In addition, pursuant to the Board’s recommendations,
Hassan set up a training for everyone in the mail room and the
warehouse.
Moore refused to attend the training.
Thus, on April
1, 2008, Hassan emailed Moore individually, directing him to
attend the training.
E.
MSJ, Hassan Dep. 8, Ex. D; Opp., Ex. 3.
Moore’s EEO Activity
Moore became upset when Hassan instructed him to attend
the sexual harassment training.
contacted an EEO counselor.
Thus, on April 9, 2008, Moore
Moore claimed that he was
discriminated against when he was informed he needed to attend
the training.
See Moore Decl. ¶¶ 18-19; Opp., Exs. 7, 8, 9, 30.
On April 22, 2008, Moore signed an expression of
interest in alternative dispute resolution regarding his EEO
7
claims against the VAMC.
One week later, on April 29, 2008,
Director Citron signed an agreement to mediate.
Opp., Exs. 4, 5;
Citron Dep. 34-35.
According to Moore, during the informal mediation
process, Citron requested that Moore withdraw his EEO action in
exchange for the VA not issuing further discipline.4
Moore
refused Citron’s proposed resolution of his complaint and
insisted on proceeding with his EEO complaint.
On May 8, 2008,
the EEO counselor gave Moore notice of the end of EEO counseling
and of his right to file a formal EEO complaint.
See Moore Decl.
¶ 20; Opp., Ex. 6.
On May 21, 2008, Moore filed a formal EEO complaint
after receiving a notice of right to file from the EEO counselor.
Opp., Exs. 6, 31, 32.
Moore’s EEO complaint.
On June 23, 2008, the defendant dismissed
Opp., Ex. 8.
4
It is disputed whether Citron participated in the informal
mediation sessions with Moore. The documents show that Citron
signed an agreement to mediate. However, Citron testified that
he did not participate in attempts to mediate because “that would
have been inappropriate.” Citron Dep. 32. Citron attests that
he is generally informed about EEO complaints as part of his role
as Director, but that he was not specifically aware of Moore’s
EEO history at the time he considered the mitigating evidence.
Citron Aff. ¶ 19. The Court takes as true Moore’s recitation of
the facts, as set forth in his declaration.
8
F.
VA Administrative Action Against Moore
On June 24, 2008, one day after the VA dismissed
Moore’s EEO complaint, Moore received a notice of proposed
removal from Phillip Hatsis, the Vice President of Facilities
Management.5
The notice informed Moore that the VA proposed to
remove him based on inappropriate comments of a sexual nature,
inappropriate comments regarding Leahy’s appearance,
inappropriate physical contact, and lack of candor to the Board.
The notice also informed Moore that he could present mitigating
evidence to Director Citron, the final decision-maker.
Opp.,
Ltr. from Phillip Hatsis to James Moore, Ex. 9 (“Proposed Removal
Notice”).
On July 14, 2008, Moore and his then-attorney met with
Director Citron regarding the notice of proposed removal.
Moore
presented mitigating evidence to Citron but did not mention that
he had filed an EEO complaint.
Citron Aff. ¶¶ 17-18; Moore Dep.
138, 143; MSJ, Ex. B at VA00217-22, VA01313.
5
Director Citron attests that from April to June 2008, the
HR department was considering options for administrative action
against Moore under VA policy. Moore provides no evidence to the
contrary. However, it does not appear that Citron has personal
knowledge of this fact. Citron’s affidavit suggests that this
fact was his “understanding.” Citron Aff. ¶ 12. No members of
the HR department were deposed.
The government does not point to anything else in the record
that supports its contention that the VA was actively considering
disciplinary action against Moore (other than the sexual
harassment training) prior to issuing the June 24, 2008 notice of
proposed removal.
9
On July 23, 2008, the VA’s regional counsel reviewed
Moore’s paper file in connection with a FOIA request.
The
regional counsel’s memorandum recommended against removing Moore
from employment.
Counsel stated: “[T]here is no reason to remove
Moore unless you also remove Leahy.
She was an active and
willing participant until, for reasons known only to her, she
decided not to be . . . . Her conduct was no better than his.
don’t see how removal will stand on these facts.”
I
Opp., Ex. 48.
Ultimately, Director Citron decided to mitigate Moore’s
discipline from removal to a 14-day suspension, a lesser penalty
on the spectrum of penalties suggested by the VA Handbook for a
first offense of sexual harassment.
In doing so, Citron
considered, among other things, Moore’s years of federal service
and the fact that Leahy herself had participated in the
inappropriate comments and remarks along with Moore.6
See Citron
Aff. ¶¶ 22-27; Opp., Citron Dep. 58-60, Ex. C (“Citron Dep.”);
id., VA Handbook Table of Penalties, Ex. 39.
On September 2, 2008, Moore received Director Citron’s
decision to mitigate the penalty of removal to a 14-day
suspension.
Opp., Ex. 10.
On September 9, 2008, Moore contacted
an EEO counselor regarding his suspension.
He filed a formal EEO
complaint regarding his notice of proposed removal and 14-day
6
It is unclear from the record whether Citron considered
the memorandum from regional counsel, which was addressed to
“Jose.”
10
suspension on November 8, 2008.
Opp., Ex. 41; MSJ, Ex. B at
VA00030-31.
II.
Analysis
A.
Legal Standard
Summary judgment is appropriate if 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).
The moving
party bears the initial burden of informing the court of the
basis for its motion.
323 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
The party may meet that burden by showing that the
party who bears the burden of proof lacks sufficient evidence to
support his case.
See id.
Once a party files a properly
supported motion for summary judgment, the burden shifts to the
nonmoving party, who must set forth specific facts showing that
there is a genuine issue of material fact for trial.
Anderson v.
Liberty v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
A fact is “material” if it might affect the outcome of
the suit under the governing law.
Id. at 248.
A dispute is
genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.
Id.
The court must
view the facts in the light most favorable to the nonmoving
party.
See Sheridan v. NGK Metals Corp., 609 F.3d 239, 251 n.12
(3d Cir. 2010).
11
B.
Legal Framework
Where there is no direct evidence of discrimination,
the Third Circuit analyzes Title VII claims under the burdenshifting framework announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973).
See Moore v. City of Philadelphia,
461 F.3d 331, 342 (3d Cir. 2006).
Under that framework, the
plaintiff must first establish a prima facie case of
discrimination.
If the plaintiff succeeds in doing so, the
burden of production shifts to the defendant “to articulate some
legitimate, nondiscriminatory reason for the employee’s
rejection.”
McDonnell Douglas, 411 U.S. at 802.
Finally, if
defendant carries its burden, the plaintiff must have the
opportunity to prove that the reasons offered by the defendant
were not its true reasons, but rather a pretext for
discrimination.
C.
See Moore, 461 F.3d at 342.
Prima Facie Case
Moore has failed to make out a prima facie case for
either his race or gender discrimination, or for his retaliation
claim under Title VII.
1.
Race or Gender Discrimination
To establish a prima facie case for discrimination, the
plaintiff must demonstrate four factors: (1) membership in a
12
protected group; (2) qualification for the job in question; (3)
adverse employment action; and (4) circumstances that support an
inference of discrimination.
U.S. 506, 510 (2002).
this case.
Swierkiewicz v. Sorema N.A., 534
Only the fourth factor is in dispute in
A plaintiff may demonstrate an inference of
discrimination by showing that others not in the protected class
but similarly situated were treated more favorably.
See Roebuck
v. Drexel Univ., 852 F.2d 715, 726 (3d Cir. 1988); Houston v.
Easton Area Sch. Dist., 355 F. App’x 651, 654 (3d Cir. 2009).
Quite simply, there is no evidence that race or gender
was a factor in either the Board’s administrative recommendation
or Director Citron’s decision to suspend Moore.
Moore admitted
in his deposition that he has no evidence to show that the Board
discriminated against him on the basis of race or gender, and
that he has no knowledge of what factors the Board considered in
making its recommendation.
See Moore Dep. 116-117.
The only
evidence Moore proffers in support of an inference of
discrimination is evidence regarding treatment of five alleged
comparators.
However, none of Moore’s alleged comparators is
actually comparable.
First, Holly Leahy was found to be a credible witness
during the Board investigation, whereas the Board found that
Moore made “intentional misstatements in sworn testimony to an
investigative body.”
Admin. Bd. Rept. 9.
13
In addition, Leahy and
Moore were not of similar rank, as Moore was the lead employee in
the mail room at a GS-7 paygrade.
Director Citron thus had
higher expectations of Moore’s behavior.
See Citron Aff. ¶ 25;
Citron Dep. 58-60.
The second alleged comparator, Joseph Delossi, a
Caucasian male, was overheard using the phrase “your sister’s
cunt” by a female employee.
After an investigation, the Board
found that Delossi, unlike Moore, had not directed his offensive
comments toward the female employee.
Even if he were a
comparator, however, Delossi was, in fact, disciplined for his
vulgarity with a 3-day suspension.
Hatsis Dep. 16-17.
The third alleged comparator, Larry Silverman, a
Caucasian male, was accused of getting into a verbal argument
with a female employee, of being physically intimidating, and of
calling her “dumb” and “stupid.”
sexual harassment.
There were no allegations of
Opp., Lomax Dep. 7-12, 18, Ex. H.
Because
there is no evidence in the record that the allegations against
Silverman were substantiated by the Board, the VA’s treatment of
Silverman has no bearing on its treatment of Moore.
Lastly, the Board found no sexual harassment in the
cases of the two unnamed Caucasian men.
In two unrelated
incidents, two female employees alleged that their respective
supervisors had sexually harassed them.
However, the Board
investigated both incidents and found no sexual harassment in
14
either.
See Citron Dep. 14-19.
The VA’s treatment of these
unnamed Caucasian men is therefore not comparable to its
treatment of Moore, against whom the Board substantiated
allegations of sexual harassment and recommended administrative
action.
Whether the Board erred in crediting Leahy’s testimony
and discrediting Moore’s is not the question before the Court.
Rather, the question is whether Citron’s decision to rely on the
Board’s findings and discipline Moore was made based on his race
or gender.
Here, Moore has presented no evidence supporting an
inference that either the Board or Director Citron acted based on
Moore’s race or gender.
Therefore, the Court grants summary judgment on Moore’s
race and gender claims for failure to make out a prima facie case
of discrimination.
2.
Retaliation
To establish a claim for retaliation under Title VII, a
plaintiff must demonstrate that: (1) he engaged in activity
protected by Title VII; (2) the employer took an adverse
employment action against him; and (3) there was a causal
connection between participation in the protected activity and
the adverse employment action.
420, 430 (3d Cir. 2001).
Weston v. Pennsylvania, 251 F.3d
Here, there is no dispute that Moore
15
contacted an EEO counselor on April 9, 2008 and filed a formal
EEO complaint on May 21, 2008.
The second and third elements,
however, are contested.
a.
Adverse Employment Action
A plaintiff alleging retaliation in violation of Title
VII must show that “a reasonable employee would have found the
challenged action materially adverse, which . . . means it well
might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.”
Burlington Northern &
Sante Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
See also id.
at 72-73 (holding that the jury’s conclusion that a 37-day
suspension without pay was an adverse employment action was
reasonable.
The plaintiff argues that he suffered adverse
employment actions in the form of: (1) the notice of proposed
removal issued on June 24, 2008 and (2) the 14-day unpaid
suspension issued on September 2, 2008.
The defendant argues
that the 14-day unpaid suspension does not qualify as an adverse
employment action.
MSJ at 19-20.
Although the defendant has not made an argument
regarding the notice of proposed removal, the Court notes that
district courts have held that such notices do not constitute
adverse employment actions.
See, e.g., Niimi-Montalbo v. White,
16
243 F. Supp. 2d 1109, 1128 (D. Haw. 2003) (notice of proposed
removal not sufficiently final to constitute an adverse
employment action);
Gonzalez v. Potter, No. 10-1461, 2010 WL
2196287, at *6 (W.D. Pa. June 1, 2010) (notice of proposed
termination does not constitute adverse employment action);
Gannon v. Potter, No. 05-2299, 2006 WL 3422215, at *4 (N.D. Cal.
Nov. 28, 2006) (same); cf. Hardy v. Potter, 191 F. Supp. 2d 873,
882-83 (E.D. Mich. 2002) (notice of proposed removal was not an
adverse action under the Rehabilitation Act).
By contrast, although the Third Circuit has not so
opined in a published opinion,7 case law suggests that a 14-day
suspension without pay would dissuade a reasonable worker from
making a discrimination charge and, thus, would constitute an
adverse employment action.
See Lovejoy-Wilson v. NOCO Motor
Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) (suspension without
pay for 1 week constituted adverse employment action); Russell v.
Bd. of Trustees, 243 F.3d 336, 341 (7th Cir. 2001) (five-day
suspension); Parkinson v. Anne Arundel Med. Ctr., Inc., 214 F.
Supp. 2d 511, 518 (D. Md. 2002) (one-day suspension); Prise v.
7
In McCullers v. Napolitano, the Third Circuit explained in
dicta that it was “not persuaded that [a 14-day suspension, among
other events] would have dissuaded a reasonable worker from
engaging in protected EEO activity.” 427 F. App’x 190, 196 (3d
Cir. 2011). However, in a different case, the Third Circuit
suggested in dicta that a 3-day suspension without pay may be
considered an adverse employment action. See Seeney v. Elwyn,
Inc., 409 F. App’x 570, 574 (3d Cir. 2011) (citing Russell v. Bd.
of Trustees, 243 F.3d 336, 341 (7th Cir. 2001)).
17
Alderwoods Group, Inc., No. 06-1470, 2011 WL 3047629, at *8 (W.D.
Pa. July 25, 2011) (“[A]n unpaid suspension - under most
circumstances - rises to the level of a materially adverse
employment action.”) (internal quotation marks and citations
omitted); Klopfenstein v. Nat’l Sales & Supply, LLC, No. 07-4004,
2008 WL 2331948, at *5 (E.D. Pa. June 5, 2008) (agreeing that a
suspension can amount to an adverse employment action).
Nevertheless, because the Court finds below that there
is no causal connection between Moore’s protected EEO activity
and either the notice of proposed removal or the 14-day
suspension, the Court need not and does not decide the question
of whether the two actions are materially adverse.
b.
Causal Connection
The defendant argues that Moore failed to establish a
causal connection between his protected EEO activity and the
adverse employment actions against him.
The Court agrees.
The Third Circuit has stated that “temporal proximity
between the protected activity and the [adverse action] is
sufficient to establish a causal link.”
Woodson v. Scott Paper
Co., 109 F.3d 913, 920 (3d Cir. 1997) (citing Jalil v. Avdel
Corp., 873 F.2d 701, 708 (3d Cir. 1989)).
However, “the timing
of the alleged retaliatory action must be unusually suggestive of
retaliatory motive before a causal link will be inferred.”
18
Williams v. Philadelphia Housing Auth. Police Dept., 380 F.3d
751, 760 (3d Cir. 2004) (citing Shellenberger v. Summit Bancorp,
Inc., 318 F.3d 183, 189 n.9 (3d Cir. 2003)).
In Jalil, the Third
Circuit found that a two-day period between the defendant’s
receipt of notice about the plaintiff’s protected activity and
the adverse action was unduly suggestive of a causal connection.
873 F.3d at 708.
In Shellenberger, a period of ten days,
combined with other evidence of retaliation, sufficed.
at 189.
318 F.3d
However, the Third Circuit found that two months were
not unduly suggestive of a causal link.
Williams, 380 F.3d at
760.
In this case, the Board issued its report in February
2008, two months before Moore sought EEO counseling on April 9,
2008.
The Board members therefore could not have retaliated
against Moore’s later-initiated EEO activity.
There is also no
indication in the record that the Board knew about Moore’s prior
history of EEO activity.
As to Director Citron, Moore argues that the June 24,
2008 notice of removal was issued only one day after the agency
dismissed his formal EEO complaint on June 23, 2008.8
The
defendant argues that where discipline is contemplated before the
protected activity, the employer can defeat any inference of
8
The Court assumes for the purposes of deciding the prima
facie case that a notice of proposed removal is an adverse
employment action.
19
causal connection.
See MSJ at 19.
As a factual matter, however,
there is no competent evidence that the VA contemplated
discipline for Moore beyond sexual harassment training for all
mail room employees between April 9, 2008, when Moore initiated
the informal EEO complaint process, and June 24, 2008, when the
notice of proposed removal issued.
The defendant cites the affidavit of Director Citron
for the proposition that the HR department was considering
discipline for Moore throughout April, May, and June 2008.
Citron Aff. ¶ 12.
See
However, there is no indication that Citron
had personal knowledge of HR’s activities during this time
period.
Indeed, Citron’s own qualification that it is “[his]
understanding that the Human Resources department consulted with
Phillip Hatsis . . . in determining any proposed discipline for
Moore” suggests that Citron, in fact, had no personal knowledge.
Id. (emphasis added).
Therefore, Citron’s affidavit cannot, by
itself, defeat a prima facie case for retaliation.
Nevertheless, the Court finds that Moore has failed to
establish a prima facie case that Citron retaliated against him
for his EEO activity for four reasons.
First, the record does not show that Director Citron
was involved in the preliminary decision to issue a notice of
20
proposed removal.9
Rather, Phillip Hatsis sent the notice, and
there is no evidence in the record that Hatsis was aware of
Moore’s EEO activity.
See Proposed Removal Notice 4.
Second, even if Citron directed Hatsis to send the
notice of proposed removal on June 24, 2008, the relevant event
for causation purposes is the defendant’s receipt of notice
regarding the plaintiff’s EEO activity, not the date of the
agency’s decision on the EEO complaint.
708.
See Jalil, 873 F.2d at
Here, the record shows that Director Citron signed an
agreement to mediate Moore’s EEO dispute on April 29, 2008.10
Opp., Ex. 5.
Although Citron attests that he was not
specifically aware of Moore’s EEO activity while making the
decision to suspend, the Court must draw all factual inferences
in the non-moving party’s favor.
A jury could reasonably infer
based on Citron’s signature on the mediation agreement that he
9
Moore claims that Ahmed Hassan said that Citron made the
decision to issue the notice of removal. Pl.’s Concise Stmt. of
Disp. Facts in Opp. to MSJ ¶ 78. In fact, Earl Dozier testified
that he was “assuming, based on what [Ahmed Hassan] was telling
[him],” that the Board and Citron made the decision. Opp.,
Dozier Dep. 46, Ex. D (emphasis added).
10
The Third Circuit has considered informal activity for
notice purposes in evaluating temporal proximity. See Andreoli
v. Gates, 482 F.3d 641, 650 (3d Cir. 2007). Here, Moore
initiated informal EEO activity on April 9, 2008, when he
complained to an EEO counselor about race and gender
discrimination. Opp., Exs. 6-9, 30. However, April 29, 2008 is
the earliest date for which the record could reasonably support
an inference that Director Citron was aware of the EEO activity.
21
was aware of Moore’s informal EEO activity as of April 29, 2008.
On June 24, 2008, a few days short of two months after Citron
signed the mediation agreement, Moore received a notice of
proposed removal from Phillip Hatsis.
The timing here - nearly
two months between Citron’s notice of Moore’s EEO activity on
April 29, 2008 and the notice of proposed removal on June 24,
2008 - is not unduly suggestive of a causal connection under
Third Circuit precedent.
See Williams, 380 F.3d at 760 (two
months not unduly suggestive of causal link).
Lastly, even if the relevant event for causation
purposes were the defendant’s receipt of the agency’s decision on
the EEO complaint, the record shows that the letter notifying
Citron of the dismissal of Moore’s complaint was time-stamped
after the issuance of the notice of proposed removal, thus
rendering a retaliatory motive impossible.
See Reply, Ltr. from
Robyn Labombarda, Regional EEO Officer, to Richard S. Citron, Ex.
12 (time stamp indicating receipt on July 2, 2008).
Therefore, the Court finds that Moore has failed to
make out a prima facie case for retaliation.
D.
Legitimate, Non-Pretextual Reason for Adverse
Employment Action
Even assuming that Moore had established a prima facie
case on either his discrimination or retaliation claims, the
defendant has met its burden to provide a legitimate, non22
discriminatory reason for Moore’s suspension.
The Board’s
February 2008 report found that Leahy’s allegations of sexual
harassment were substantiated and that Moore had been dishonest
while under oath.
Based on the Board’s recommendations for
action, but after considering mitigating evidence, Director
Citron recommended a 14-day suspension.
Moore has not shown that the VA’s proffered reasons for
his suspension were pretextual.
To defeat a motion for summary
judgment where a defendant has offered a legitimate, nondiscriminatory reason for an adverse employment action, “the
plaintiff must point to some evidence, direct or circumstantial,
from which a factfinder could reasonably either (1) disbelieve
the employer's articulated legitimate reasons; or (2) believe
that an invidious discriminatory reason was more likely than not
a motivating or determinative cause of the employer's action.”
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
These are
two ways by which the plaintiff can prove that the defendant’s
reasons was pretextual.
1.
First Pretext Test: Discrediting the Employer’s
Reason
To discredit the employer’s articulated reasons, “the
plaintiff cannot simply show that the employer's decision was
wrong or mistaken.”
Id. at 765.
“Rather, the non-moving
plaintiff must demonstrate such weaknesses, implausibilities,
23
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 . . . . ’”
Id. (quoting Ezold v. Wolf, Block, Schorr &
Solis–Cohen, 983 F.2d 509, 531 (3d Cir.1992)).
The plaintiff
must show by a preponderance of the evidence “not merely that the
employer’s proffered reason was wrong, but that it was so plainly
wrong that it cannot have been the employer’s real reason.”
Keller v. Orix Cred. Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir.
1997).
Here, Moore has failed to meet the standard under
Fuentes for discrediting the articulated reasons for his
suspension.
The Board found, after conducting months of
interviews and document review, that Leahy’s allegations of
sexual harassment against Moore were largely substantiated, and
that Moore had not been truthful in his testimony before the
Board.
See generally Admin. Bd. Rept.
Moore’s notice of
proposed removal and, later, his 14-day suspension were based on
the Board’s findings and recommendations.
Even if the Board’s
findings and recommendations were wrong, as Moore argues, and
despite the VA regional counsel’s misgivings about the Board’s
findings, the facts do not suggest that the defendant’s reliance
on the Board’s report was not the real reason for Moore’s
proposed removal and ultimate suspension.
24
Cf. Watson v. SEPTA,
207 F.3d 207, 222 (3d Cir. 2000) (“[I]f an employer sincerely
believes that an employee has stolen company funds and discharges
the employee for this reason, the employer should not be held
liable . . . just because it turns out that the employee did not
steal the funds and that the employer's reason for the discharge
was in this sense not ‘true.’”).
2.
Second Pretext Test: An Invidious Discriminatory
Reason Was More Likely Than Not a Motivating
Factor
The plaintiff must “point to evidence with sufficient
probative force for a factfinder” to make the conclusion that an
invidious discriminatory reason was more likely than not a
motivating factor for the adverse employment action.
Simpson v.
Kay Jewelers, 142 F.3d 639, 644-45 (3d Cir. 1998) (internal
quotations omitted).
One example of such evidence is more
favorable treatment of other employees not exercising the same
right.
See id.
Moore fails to proffer any evidence of favorable
treatment of other similarly situated employees not exercising
the same right.
As discussed above, the comparators that Moore
suggests are not true comparators and, in any case, relate only
to his race or gender discrimination, not to the exercise of
protected activity under Title VII.
25
Therefore, even if Moore made out a prima facie case
for either race or gender discrimination or retaliation under
Title VII, he has failed to demonstrate that the defendant’s
proffered reasons for the adverse employment actions were
pretextual.
The Court therefore grants summary judgment in favor
of the defendant.
An appropriate order follows separately.
26
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