MEMORANDUM OPINION
Pamela Montgomery Beckham sues the National Railroad Passenger Corporation (“Amtrak”) for alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. Ms. Beckham complains that she was discriminated against when Amtrak denied her tuition reimbursement for a master’s degree program, web design software training, and her requests to work from home. Furthermore, Ms. Beckham complains that such actions were taken in reprisal for her participation in a Title VII class action against Amtrak. Having reviewed the parties’ briefs, exhibits, and the entire record, the Court finds that none of these decisions rises to the level of a legally cognizable adverse action to support the allegations of disparate treatment discrimination. The allegation that Amtrak retaliated against Ms. Beckham also fails for lack of evidentiary support. Summary judgment will be granted to Amtrak.
I. FACTS
Ms. Beckham is an African-American woman who has been employed by Amtrak since 1989. She was initially hired as a Train Attendant and has been promoted tо a number of different positions over the years. 1 In 1995, Ms. Beckham became a Service Manager, where David Nogar was in her supervisory chain, although not as her direct supervisor. In September 1999, Mr. Nogar transferred to a new position with Amtrak in California. When this suit was filed in 2008, Ms. Beckham was working as a Senior Analyst in Amtrak’s Transportation Department in Washington, D.C. 2
In 1998, Ms. Beckham joined a class-action lawsuit against Amtrak that charged the railroad with race discrimination; at the time, her name was Pamela Montgomery.
See McLaurin v. Nat’l R.R. Passenger Corp.,
In December 2002, Mr. Nogar returned to the East Coast as the Senior Director for Amtrak’s Depаrtment of Service Delivery Standards (“Service Delivery”) in Wilmington. As a Senior Analyst in Service Delivery, Ms. Beckham worked directly for Mr. Nogar, starting in approximately 2002 and continuing until January 2005, when Monika Sloane joined Service Delivery as Director of Service Standards and Operations. Ms. Sloane supervised Ms. Beck-ham until late 2006, after which Ms. Beck-ham’s position was moved to the District of Columbia. Ms. Beckham did not discuss the McLaurin class action with either Mr. Nogar or Ms. Sloane.
Ms. Beckham contends that Mr. Nogar knew of her involvement in the McLaurin class action as he had been Tom Chawluk’s immediate supervisor. PL’s Mem. in Opp’n. (“Opp’n.”), Ex. 1 (“Beckham Deck”) ¶ 3. Mr. Nogar’s name does not appear in the McLaurin complaint. Mr. Nogar supervised a contract commuter operation for Amtrak in California from September 1999 through December 2002 and testified in deposition that he “didn’t know anything about that class action suit until after I came back and assumed my job as senior director of service delivery in Wilmington.” Def.’s Mem. in Support of Mot. for Summ. J. (“Def.’s Mem.”), Ex. 3 (“Nogar Dep.”) at 64-65. Mr. Nogar learned at some point that Ms. Beckham had been a plaintiff in McLaurin. Id. at 64. Mr. Nogar “didn’t think [the suit] impacted me one iota because — certainly with respect to Ms. Beck-ham, because the class action suit would have occurred when she was employed as a service manager for Northeast Direct product line. I actually recruited Ms. Beckham. I gave her her first management job. And I also provided her with a lot of training in those days, and so I had no reason to believe that if she was part of that suit that it would have anything to do with me.” Id. at 65-66.
The functions of Service Delivery are to create, publish, and update the Service Standards Manual for onboard and train service employees; publish service standards for station employees; administer the uniform contract nationwide; perform quality assurance work; and assist in the implementation of special service initiatives by doing train riding, as needed. As a Senior Analyst in Service Delivery, Ms. Beckham’s chief duty was technical writing
3
for Service Delivery’s primary objective: the Service Standards Manual. Her responsibilities included technical writing for the service standards, the operations standаrds updates, and the operations service advisories. Additionally, Ms. Beck-ham was responsible for information relating to the Service Standards Manual that would be uploaded to Amtrak’s intranet, an internal website for employees. Amtrak’s Information Technology department would upload new or additional material to the intranet at Ms. Beckham’s direction. Ms. Beckham vaguely contends, however, that at an unspecified time period her responsibilities included Internet responsibilities.
See
Opp’n., Ex. 1 (Plaintiffs State
Ms. Sloane has a graphics design background and was hired in part to develop a web-based site for Service Delivery employees, thus keeping work in-house and eliminating the costs of contracting with outside firms for design and management of an Internet site. Russell Fox joined Service Delivery in 2004 after a lateral move from a separate Amtrak department. He was Ms. Beckham’s counterpart as a Senior Analyst and shared responsibility for technical writing and updating thе Service Standards Manual. Mr. Fox came to Service Delivery with a background in web design. Mr. Nogar had a goal of developing an external website for Service Delivery employees, accessible from outside the Amtrak intranet. According to Mr. No-gar, Mr. Fox and Ms. Sloane were also tasked with designing and maintaining the external Amtrak website based on their previous work experience. Thus, Mr. Fox was responsible for the development and maintenance of the external website and Ms. Beckham was responsible for maintaining the intranet, or internal, site for Service Delivery employees. Their core responsibility, however, remained the Service Standards Manual. Both Ms. Beck-ham and Mr. Fox reported to Ms. Sloane.
A. Tuition Reimbursement
Amtrak has an Educational Assistance Program whereby it approves tuition reimbursement to Amtrak employees for courses that are likely to assist the Amtrak employee in improving her skills relevant to the performance of her job duties. When Mr. Nogar became Ms. Beckham’s direct supervisor in 2002, Ms. Beckham was pursuing a bachelor of arts degree from Cabrini College pursuant to the Educational Assistance Program. She took courses at Cabrini and received tuition reimbursement through 2004, when she earned her bachelor of arts degree.
In 2004, Amtrak reimbursed Ms. Beck-ham for the last part of her undergraduate degree, and Mr. Nogar separately authorized her attendance at an Effective Business Writing Course, Editing and Proofreading/Grammar Course and Technical Writing Course at The Business Development & Training Center in Malvern, Pennsylvania. Both parties agree that her courses at Cabrini and BDTC helped Ms. Beckham with her technical writing responsibilities. Ms. Beckham later applied for reimbursement for an Adobe Photoshop course she took at Villa Julie College, after she had completed the course. Mr. Nogar approved the tuition reimbursement but advised Ms. Beckham that she needed to submit such requests for approval in advance of a course so that Amtrak could assess whether the course would benefit her and Amtrak.
In July 2004, shortly after earning her bachelor’s degree, Ms. Beckham asked Amtrak to approve tuition reimbursement
Ms. Beckham’s request for tuition reimbursement for a master’s degree was the first and only time Mr. Nogar had been involved in making a tuition reimbursement decision. Mr. Nogar never had another employee request reimbursement. Thus, he had never approved or denied tuition reimbursement for another Amtrak employee during his time with the railroad. It was also the first time that Amtrak denied one of Ms. Beckham’s requests for tuition reimbursement. Amtrak typically receives tuition reimbursement requests from Amtrak employees nationwide for bachelor’s degree courses, and Amtrak approves some requests and denies others. Amtrak does not receive tuition reimbursement requests as often for master’s degree courses. In fact, for at least the last ten years, Amtrak has not approved a request for a master’s degree reimbursement for a Service Delivery employee. Def.’s Mem., Ex. 7 (Stagger Aff.) ¶ 16.
B. Dreamweaver
Amtrak utilized Dreamweaver, a website design program, to develop the external employee Internet site. Amtrak does not utilize Dreamweaver to maintain the intranet site. Mr. Nogar approved a training course on Dreamweaver I for himself, Ms. Beckham, Mr. Fox, and Ms. Sloane. In March 2005, however, he authorized Mr. Fox and Ms. Sloane to take the Dreamweaver II cоurse but did not attend himself or authorize Ms. Beckham to attend. Ms. Beckham contends that this training was appropriate and necessary for her job and that she was denied training because of her race and/or in retaliation for her prior class action involvement. Mr. Nogar testified that he did not authorize Dreamweaver II training for Ms. Beck-ham because graphic arts were not part of her job, she had no background or experience in graphic arts, and because the intranet site — where her information was stored — was not based on Dreamweaver.
C. Telecommuting
At least at the relevant time, Amtrak had no official telecommuting policy to allow employees to work from home or outside the office. A supporter of telecommuting, Mr. Nogar asked his superior if telecommuting would be permissible. His suggestion was rejected because Mr. No-
Ms. Sloane asked Mr. Fox to work from home on occasion when there was an ongoing intensive project so he could avoid the distractions of the office and work more efficiently. Mr. Fox did not ask to work from home; Ms. Sloane initiated his taking work home and had it approved by one of her superiors. Ms. Beckham contends that Mr. Fox admitted to her that he was allowed to work from home because of personal reasons, e.g., to meet a cоntractor, but Mr. Fox and Ms. Sloane both testified that he used vacation leave when he remained at home for personal reasons. See Beckham Dep. at 62-64; Sloane Dep. at 66-67; Def.’s Mem., Ex. 5 (Deposition of Russell Fox) at 36-37. This dispute is not material to resolution of the motion for summary judgment.
Ms. Beckham argues she was denied her requests to work from home which she attributes to race discrimination or retaliation. Ms. Beckham testified that she was denied the ability to work from home “each and every time” she requested it, which she recalls had been “about three times.” Beckham Dep. at 59. However, she could only specifically recall one of the times, which occurred in “either 2005 or 2006,” when she was denied the request to work from home on a day that an electrical company was scheduled to come to her house to evaluate fire damage. Id. at 59-61. Ms. Sloane denied the request. Id. at 61. Ms. Sloane, on the other hand, testified that on several occasions, Ms. Beck-ham called Ms. Sloane to inform her that she would be working at home and Ms. Sloane gave Ms. Beckham credit for those days and did not deduct the days working from home from her accrued vacation or sick leave. Sloane Dep. at 74-76. Ms. Beckham does not dispute these facts.
Ms. Beckham also requested and was allowed to change her work location on occasion. 6 However, at some point in 2005, Ms. Beckham asked to adjust her work schedule, prompting an October 3, 2005 memo from Mr. Nogar concerning, in part, Ms. Beckham’s request to leave the office early on a regular basis. See Def.’s Mem., Ex. 11 (Oct. 3, 2005 Memo). Mr. Nogar had previously written a similar memo to Ms. Beckham, concerning Ms. Beckham’s unilateral changes to her work assignments and her need to receive preapproval for any work done at a remote office. See Def.’s Mem., Ex. 12 (Mar. 22, 2004 Memo).
In January 2006, Ms. Beckham filed a formal charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging disparate treatment based on race and/or retaliation for her previous involvement in protected activities,
i.e.,
her participation in the
II. LEGAL STANDARDS
A. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc.,
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477
U.S. at 255,
In this case, there are two distinct claims against Amtrak — race discrimination based on disparate treatment and retaliation due to prior protected activity. Each claim must be analyzed separately.
1. Disparate Treatment
Title VII prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin in hiring decisions, in compensation, terms, and conditions of employment, and in classifying employees in a way that would adversely affect their status as employees. See 42 U.S.C. § 2000e-16. Thus, a disparate treatment claim is established when an employer treats a member of a protected group less favorably than similarly situated others due to an impermissible motive. The case at hand is a disparate treatment suit. Compl. ¶ 16.
There are two distinct manners in which to establish liability in a disparate treatment claim.
The employee’s theory may be that the sole reason for the adverse action was discrimination and that thе employer’s proffered legitimate reason for the adverse action was pretextual. Or she may pursue a mixed motive claim, in which she maintains that discrimination was one of a number of factors that motivated the adverse action. In a single motive case, the plaintiff has the burden of proving by a preponderance of the evidence that the reason offered by the defendant is not the true reason for the adverse action and that the real motivation was intentional discrimination. In other words, in a gender discrimination case, for example, the claim is that “but for” discrimination based on the employee’s gender, the employer would not have taken the adverse action against her. By contrast, in a mixed motive case, the theory is that there may be a mixture of legitimate and illegitimate motives for an employer’s action. Thus, the employee must prove by a preponderance of the evidence that she was terminated and that her sex ... was “a motivating factor” for the adverse action.... When an employee proceeds on such a mixed motive theory, once the jury has found by a preponderance of the evidence that discrimination was “a motivating factor,” then the burden shifts to the defendant to prove to the jury, also by a preponderance, that the defendant would have made the same decision even if discrimination had not been a factor.
Nuskey v. Hochberg,
Civ. No. 06-cv-1573,
In a disparate treatment suit, the D.C. Circuit has observed that it is usually not necessary to determine, at summary judgment, whether an employee presented a
prima facie
case of discrimination per
McDonnell Douglas.
In fact, once the defendant has “asserted a legitimatе, nondiscriminatory reason for the decision, the district court need
not
— and
should
not— decide whether the plaintiff actually made out a
prima facie
case under
McDonnell Douglas.” Brady v. Office of the Sergeant at Arms,
2. Retaliation
Title VII’s anti-retaliation provision, on the other hand, makes it unlawful for an employer to “discriminate against any of his employees ... because [s]he has opposed any practice” made unlawful by Title VII or “has made a charge, testified, аssisted, or participated in” a Title VII investigation or proceeding. 42 U.S.C. § 2000e-3(a);
see Steele v. Schafer,
Retaliatory acts are not limited to harms or acts “that are related to employment or occur at the workplace.”
Burlington N.,
However, the legal analysis applicable to claims of retaliation under Title VII — specifically mixed-motive retaliation claims — ■ is now a subject of debate among the circuit courts.
Compare Smith v. Xerox,
A little background will put the current debate into focus. The Supreme Court in
Price Waterhouse v. Hopkins,
In response, Congress amended Title VII to “explicitly authoriz[e] discrimination claims in which an improper consideration was ‘a motivating factor’ for an adverse employment decision.”
Gross,
When Mr. Gross sued FBL Financial Services, he alleged that age discrimination was a motivating factor in his job change/demotion; the district court gave jury instructions that were consistent with the plurality opinion in
Price Waterhouse. See Gross,
In a 5-4 opinion authored by Justice Thomas, the High Court could not “ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA.”
Id.
at 2349. Because of these new “textual differences between Title VII and the ADEA,” the Court found itself prevented “from applying
Price Waterhouse
and
Desert Palace [Inc. v. Costa,
Given the similarity between the language in the ADEA (“because of’) and the retaliation provision of Title VII (“because”), “the
Gross
reasoning could be ap
Judge Jolly filed a dissent in Smith v. Xerox Corp. He applied Gross to conclude that “the mixed-motive analysis is no longer applicable outside of Title VII discrimination, and consequently does not apply to this retaliation case” under Title VII. Id. at 336 (Jolly, J., dissenting). Judge Jolly wrote:
A careful and fair consideration of the principles underlying the decision in Gross would require the majority to grapple with two realities that mirror the very basis for the decision in Gross: (1) Title VII’s retaliation section, at issue here, lacks the provision of Title VII’s discrimination section that allows mixed-motive cases, and (2) Congress neglected, in 1991, to provide for motivating factor causation in Title VII retaliation even though it amended Title VII in other ways....
The Supreme Court explained that the “careful[ly] tailor[ed]” amendments made to Title VII in 1991 should be read as limiting the mixed-motive analysis to the statutory provision under which it was codified — Title VII discrimination only, which excludes retaliation, the claim here. As the Supreme Court admonished, to read the 1991 amendments as generally blessing the Price Water-house analysis would “ignore Congress’ decision” to provide motivating factor causation in only specific types of cases, not in all cases. 11
Id.
at 337-38 (Jolly, J., dissenting) (emphasis in original) (citations omitted). Judge Jolly invoked the reasоning of the Seventh Circuit which has
“twice
explained, after
Gross,
[that] ‘unless a statute ... provides otherwise, demonstrating but-for causation is part of the plaintiffs burden
in all suits under federal law.’ ” Id.
at 337 (emphasis in original) (quoting
Serwatka,
Congress approved the “motivating factor” analysis from
Price Waterhouse
when
This Court concludes that § 2000e-2(m) means just what it says: when an impermissible motive animates “any employment practice,” even though permissible motives were also involved, “an unlawful employment practice is established.” 42 U.S.C. § 2000e-2(m) (emphasis added). There can, therefore, be mixed-motive retaliation cases despite the “because” language in the statute. 13 In a mixed-motive case, a successful employee must prove an illegal motive behind the employer’s action; if the employer then рroves that it would have taken the same action without regard to the illegal motive, the employee’s recovery is limited to declaratory judgment, an injunction against further violations, and attorneys’ fees. See 42 U.S.C. § 2000e-5(2)(B).
This stands in contrast to the situation in which an employee alleges disparate treatment based on a single motive. As indicated above, an employer can defend by advancing a legitimate, non-discriminatory reason and the employee bears the ultimate burden of proving pretext. In such a case, the employee/plaintiff does not need to prove motive. The Gross analysis fits such a single-motive case: an employee must prove that “but-for” his or her protected status, the employer would not have taken the adverse action. This is commonly accomplished by demonstrating that the so-called legitimate, non-discriminatory reason given by the employer is pretextual, leading to an inference of illegal discrimination. This single-motive analysis and its “but-for” burden of persuasion can apply to both disparate treatment and retaliation cases, even though the scope of actions that may be retaliatory is broader.
The fact that Price Waterhouse has not been overruled is not determinative, because, as amended, Title VII does not present an either/or choice. Congress has decreed that a mixed motive infects any employment practice barred by Title VII just as straight-up discrimination does. The differences lie in the nature of the proofs and in the remedies.
Ms. Beckham alleges that “because of her race” and “because of her opposition to actions made unlawful by Title VII,” Amtrak discriminated against her in the ways discussed above. See Compl., Counts I, II. These allegations and the evidence presented by the parties on summary judgment demonstrate that this is a “single motive” Title VII case. Therefore, to avoid summary judgment in Amtrak’s favor, Ms. Beckham must present facts from which a reasonable jury could conclude that “but-for” her race, Amtrak would not have acted in the way she claims.
A. Alleged Race-Based Discrimination
In order to constitute an adverse action that is subject to redress under Title VII, an employee must experience, due to her protected status, a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.”
Taylor v. Small,
Despite the admonition in
Brady v. Office of the Sergeant at Arms
that district courts should not pause to examine whether a plaintiff established a
prima facie
case when an employer offers a legitimate, non-discriminatory reason for its actions, Amtrak protests strongly that none of the alleged “adverse actions” identified by Ms. Beckham was sufficiently serious to support a discrimination claim or to have had any harmful impact upon her at all. Therefore, the Court will analyze whether Ms. Beckham’s claims involve an adverse employment action.
See Baloch v. Kempthorne,
Ms. Beckham contends she suffered three adverse actions: denial of tuition reimbursement for her master’s degree courses; denial of Dreamweaver II training; and denial of the ability to telecommute, while other White employees were allowed such opportunities. The record does not support these allegations. There is no evidence to support the entirely subjective argument that Amtrak’s decisions to deny tuition reimbursement, deny Dreamweaver II training, or deny requests to work from home imposed such materially adverse consequences that one or more of such decisions affected the terms, conditions or privileges of her employment.
See Ginger,
Ms. Beckham argues that she worked as Program Manager over the Amtrak Transportation Department Review System, a large IT program, and that one of the requirements of her position under the “Essential Functions” of the job description was that she “have the capability of functioning as a website administrator.” Opp’n., Ex. 2 (Position Description). Further, she contends that the ability to function competently as a website administrator and have proficiencies in HTML, FrontPage and other software programs was a requirement of the position. See Opp’n. at 8, id. Thus, Ms. Beckham felt that the master’s degree program was connected to her duties.
It is undisputed that Amtrak paid tuition reimbursement for Ms. Beckham’s Bachеlor of Arts degree while Mr. Nogar
Ms. Beckham also contends that denial of Dreamweaver II training was an adverse employment action. Amtrak argues that none of Ms. Beckham’s duties required knowledge of Dreamweaver II, which is applicable to the functions of an external website, as Ms. Beckham’s primary function was technical writing and her auxiliary function was maintaining the intranet. Def.’s Mem. at 21-22; Nogar Dep. at 95-96. The Court recognizes that Ms. Beckham and Amtrak disagree as to the relevance of Dreamweaver II to Ms. Beckham’s duties. But “denial of training opportunities is only actionable if there is a resultant ‘material change ... in employment conditions, status, or benefits.’ ”
Dorns v. Geithner;
Ms. Beckham contends that Amtrak denied her the ability to telecommute approximately three times while others who were White were given this benefit.
See
Beckham Dep. at 59 (“Q. How often did you request [to work from home]? A. About three times.”). Ms. Beckham averred that she “was never allowed to telecommute but believes Russell Fox was.” Pl.’s Disputed Facts ¶ 6; Beckham Dep. at 63-64. Ms. Beckham further testified in deposition that Mr. Fox admitted to her that he was allowed to work from home because of personal business. Beck-ham Dep. at 64. However, Ms. Beckham did not contest Amtrak’s arguments concerning her work-at-home record in her opposition brief and the Court considers the matter conceded.
See
LcvR 7(h) (facts
B. Alleged Retaliation
Ms. Beckham also contends that Amtrak retaliated against her for engaging in protected activity due to her involvement as a named plaintiff in the 1998
McLaurin
class action. It is undisputed that her involvement in a clаss action constituted protected activity.
See
Def.’s Mem. at 23 n. 8. Measured from when the last order dismissing
McLaurin
was entered on November 26, 2004, Amtrak’s challenged actions in July 2004 and the Spring of 2005 might be close enough in time to support an inference of discrimination.
See Clark Cnty. Sch. Dist. v. Breeden,
Ms. Beckman relies on the same three denials of tuition reimbursement, Dreamweaver II training, and telecommuting to allege retaliation based on her protected conduct. The legal questions are (1) whether Ms. Beckham has presented evidence from which a jury could conclude that her prior protected activity was the “but-for” reason for these Amtrak decisions,
ie.,
were she not a
McLaurin
class member, Amtrak would have approved these requests,
see Gross,
Ms. Beckham offers no facts to support her contention that the denial of tuition reimbursement and Dreamweaver II training was “because of’ her participation in a class action that settled in 1999 with a consent decree that continued in effect until 2004. Instead, she accuses Amtrak and Mr. Nogar of “mendacity” based on the 2005 Position Description for a job that Ms. Beckham, by affidavit, says was hers at some unspecified time but which her EEOC Charge, her Complaint, and her deposition testimony demonstrate was not her job at the relevant time.
See
Compl. ¶¶ 4, 6; Beckham Dep. at 14; Def.’s Mot. to Dismiss [Dkt. #5], Ex. 1 (EEOC
Amtrak has also proffered a legitimate non-discriminatory reason for its denial of Dreamweaver II training: Ms. Beckham’s work duties did not include the Internet website and the intranet, for which she was responsible, was not based on Dreamweaver. Except for her accusation of “mendacity” connected to the irrelevant Position Description, Ms. Beckham offers nothing to support her burden of persuasion that her involvement in
McLaurin
was the “but-for” reason that Amtrak denied her a second Dreamweaver training course. Notably, Ms. Beckham makes no argument that the Dreamweaver II training was relevant to her position as a Senior Analyst, the job she actually held at the relevant time. Summary judgment is properly granted against a party who “after adequate time for discovery ... fails tо 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.,
Ms. Beckham further, and lastly, offers no basis to conclude that her membership in the
McLaurin
class played any part in Amtrak’s request to Mr. Fox that he work at home occasionally on a project requiring a quiet work environment or its denial of her request to work from home on one to three occasions, much less that “but-for” her participation in the lawsuit, Mr. Fox would have been required to work in a noisy area with interruptions and/or that she would have been able to stay at home. Certainly, the occasional denial of a request to work from home, when other requests from the same employee have been granted, does not constitute a materially adverse action. As Ms. Beckman makes no rejoinder to Amtrak’s arguments on these points, they are conceded.
See
LCvR 7(h);
FDIC v. Bender,
IV. CONCLUSION
The Court will grant Amtrak’s motion for summary judgment [Dkt. # 35]. The direct discrimination claim fails for lack of a true adverse action. The retaliation claim fails for lack of evidence. A memorializing Order accompanies this Memorandum Opinion.
Notes
. Ms. Beckham has worked as a Sleeping Car Attendant, Service Attendant, Lead Service Attendant, Food Specialist, Assistant Conductor and Conductor until 1995, when she became a Service Manager.
. The Senior Analyst position was located in the Service Delivery Department in Wilmington, Delware, until 2007. The position was then transferred to Amtrak’s Transportation Department in Washington, D.C., where Ms. Beckham remained until at least the time of filing the instant complaint.
. The duties of a "technicаl writer” were "to write the service standards, the operations standards updates, and the operation service advisories that were published.” Nogar Dep. at 95. Also included was the duty to make revisions, as needed, to the service standards manual. Id. at 96.
. To support the proposition that her responsibilities included the Internet, Ms. Beckham cites an Amtrak Position Description for Program Manager. See Opp’n., Ex. 2 (Position Description). Ms. Beckham also states that she was assigned to "manage one of the largest technology programs in Amtrak’s department of transportation, the Transportation Department Review System (TDRS),” which brought her into constant contact with Amtrak's Information Technology ("IT”) department. Beckham Decl. ¶ 7. Ms. Beckham does not say that the TDRS system operated on the Internet. Ms. Beckham testified that she wanted to take the master’s degree courses in 2004 because at the time she was "maintaining Amtrak's Internet site.” Def.’s Mem., Ex. 1 (Dep. of Pamela Beckham) ("Beckham Dep.”) at 33.
. Under the Educational Assistance Program, coursework towards аn undergraduate degree must be "[d]irectly related to the employee’s present position or [rjelated to career advancement within Amtrak; e.g., as provided through the Career Counseling Program or other formal counseling programs.” Def.’s Mem., Ex. 6 ("Educational Assistance Program Policy”) at 3.3. “[R]equests for advanced degree programs ... must be directly related to the employee’s present position and approved by the Director of Career Counseling Services.” Id.
. Ms. Beckham recalls that she was allowed to work away from the Wilmington office on two occasions, both in approximately 2004, while Mr. Nogar was her direct supervisor. Beckham Dep. at 65-66;
. On July 21, 2009, the Court found that the Charge Questionnaire was too vague and circumscribed to constitute a complaint of a racially discriminatory failure to promote, and dismissed Ms. Beckham’s failure-to-promote claim, which was otherwise untimely.
See
Mem. Op.,
.
See also Smith v. Xerox Corp.,
What is a pretext case? It is a circumstantial case in which the plaintiff prevails by showing that the reason or reasons given for the employer’s adverse action were spurious, which requires no specific showing of illegal animus toward the employee, but only a showing that the employer’s reasons are false or otherwise unsupportable. Because the employer is in the best position to explain the termination, the jury is entitled to infer discrimination once the employer’s explanation is proven false. What is a mixed-motive case? It is a case in which, although reasons for discharge are valid, i.e., not pretextual, the plaintiff prevails by showing that, notwithstanding the validity of the employer’s stated motives for its actions, still a factor — in combination with the valid factors — for the discharge was the motive to illegally discriminate. Given that the alleged pretextual motives are valid, this theory requires a showing of a specific illegal animus toward the employee that factored into the discharge, i.e., not "direct evidence,” but evidence establishing specifically an illicit motive.
Id., at 339-40 (Jolly, J. dissenting) (emphasis in original).
. A case involving a mixed motive arises when an employer has both a legitimate reason (such as poor work performance) and an illegitimate reason (discriminatory animus) for an adverse action.
See Gross,
. The retaliation provision in Title VII still reads:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this [subchapter], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this [subchapter].
42 U.S.C. § 2000e-3(a) (emphasis added).
. The
Gross
Court reasoned that Congress intended to limit
Price Waterhouse
to mixed-motive claims under Title VII since Congress specifically codified motivating factor liability in 42 U.S.C. § 2000e-2(m). The Court found that if Congress wanted the mixed-motive analysis to apply outside of Title VII, it would only have added the provision eliminating an employer’s complete defense to these claims, 42 U.S.C. § 2000e-5(g)(2)(B). Because of the absence of a parallel provision to § 2000e-2(m) in the ADEA, the Court concluded that the mixed-motive analysis of
Price Waterhouse
did not apply.
Gross,
.Americans with Disabilities Act of 1990 ("ADA”), 42 U.S.C. §§ 12101-12213 (2000).
. Several circuit courts have come to the conclusion that 42 U.S.C. § 2000e-2(m) does not apply to retaliation claims.
See, e.g., Woodson v. Scott Paper Co.,
. "Q. And in approximately what year was this that you assumed the senior analyst job? A. It may have been 2002.... Q. Okay. How long did you hold or have you held the senior analyst position? A. Until 2007, I believe.2007.”).
. Ms. Beckham does not know when her title changed but it was clearly after Amtrak denied her request for reimbursement for master's degree studies:
Q. You as an employee of Amtrak, did you have the same title after the Villa Julie course work reimbursement was denied?
A. No, I did not have the same title.
Q. And when did that title change occur?
A. I have no idea.
Q. Okay. So you don’t know if it was around the time of this denial?
A. I know that it was changed.
Q. At some point subsequent?
A. That is correct.
Beckham Dep. at 53.
. Ms. Beckham’s Declaration and arguments contend that her relevant job title was not "Senior Analyst” but rather “Program Manager, Service Standards and Operations” where she managed the Transportation Department Review System and worked closely with Amtrak’s IT department.
See
Opp’n. at 8; Beckham Deck ¶ 6-7. Virtually every circuit, including the D.C. Circuit, has recognized the principle that a party cannot create a material fact in dispute by submitting an affidavit that conflicts with earlier sworn testimony in order to preclude summary judgment.
See Pyramid Sec., Ltd. v. IB Resolution, Inc.,
. Time lags of more than three months can be too long to show retaliatory causation.
Breeden,