Alabi v. Vilsack
20-2081
| 10th Cir. | Jun 21, 2021Background
- Aliu Alabi, an African‑American Nigerian USDA employee in the Employment Relations policy unit, was issued a Letter of Warning (LOW) for rude conduct during a 2013 conference call; the LOW was later orally rescinded by HR and described as confidential/non‑permanent.
- On November 30, 2013 Alabi filed an EEO charge alleging discrete incidents: the LOW (reprisal), someone took photos of apes with his phone, chewing gum placed on his car, a broken antenna, a tampered lunch bag, and coworker ridicule; he also claimed a denial of promotion and discrimination as a “black foreigner with an accent.”
- The agency investigated the discrete incidents listed in the charge but denied Alabi’s late requests to amend the charge to add additional claims (failure to accommodate, low rating, non‑selection, etc.). The agency and the EEOC administrative judge ruled for USDA; Alabi appealed to federal court.
- In his amended complaint Alabi pressed nine counts (retaliation, hostile work environment, various retaliation/discrimination claims based on duties, ratings, transfer, promotions, race, disability, national origin).
- The district court held Counts III–IX unexhausted and granted summary judgment to USDA on Counts I (retaliation based on the LOW) and II (hostile work environment); the Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of Counts III–IX (promotion, duties, rating, transfer, race/disability/national origin) | Alabi contends his EEO charge and the administrative investigation generally put USDA on notice and his attempted post‑investigation amendments should be allowed. | USDA argues the amended complaint asserts discrete acts not in the charge; exhaustion requires each discrete act be alleged in the charge; Alabi’s amendment requests were untimely and beyond the investigation’s scope. | Counts III–IX unexhausted; lawsuit limited to allegations reasonably within scope of the EEO charge; late amendments do not cure failure to exhaust. |
| Retaliation (Count I) — LOW as materially adverse action | Alabi says the LOW was retaliatory and would dissuade a reasonable worker from complaining. | USDA and HR show LOW was non‑disciplinary, rescinded, confidential, not placed in official personnel file, and caused no objective material disadvantage. | LOW not materially adverse; no objective evidence of serious injury; summary judgment for USDA on retaliation claim. |
| Hostile work environment (Count II) | Alabi points to the LOW, phone photos of apes, gum/antenna/lunch‑bag tampering, rude coworker, reduced duties, low rating, and denied promotions as a pattern of racially‑tainted harassment. | USDA contends most incidents lack evidence of discriminatory animus and are isolated; only two incidents had racial undertones and those are not sufficiently severe/pervasive. | Not severe or pervasive; isolated incidents (even with some racial undertones) do not amount to the required "steady barrage"; summary judgment for USDA. |
Key Cases Cited
- Smith v. Cheyenne Ret. Invs., L.P., 904 F.3d 1159 (10th Cir. 2018) (de novo review and exhaustion scope principles)
- Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018) (failure to exhaust is affirmative defense)
- Jones v. United Parcel Serv., Inc., 502 F.3d 1176 (10th Cir. 2007) (EEOC charge limits scope of suit; each discrete act must be exhausted)
- Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164 (10th Cir. 2020) (investigation scope is determined by the charge itself, not responsive documents)
- Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (U.S. 2002) (discrete acts are separate claims; hostile work environment may include earlier acts)
- Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (U.S. 2006) (standard for materially adverse action in retaliation claims)
- Daniels v. United Parcel Serv., Inc., 701 F.3d 620 (10th Cir. 2012) (objective standard for materially adverse actions)
- Medina v. Income Support Div., N.M., 413 F.3d 1131 (10th Cir. 2005) (warning letters can be adverse but require serious injury)
- Chavez v. New Mexico, 397 F.3d 826 (10th Cir. 2005) (hostile work environment requires a steady barrage of opprobrious racial comments)
- Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998) (single extreme physically threatening incident can suffice to create hostile environment)