Albеrt V. PEYUS Jr., Plaintiff, v. Ray LAHOOD, Secretary, United States Department of Transportation, Defendant.
Civil Case No. 11-02087 (RJL)
United States District Court, District of Columbia.
Jan. 29, 2013.
910 F. Supp. 2d 93
Andrea McBarnette, U.S. Attorney‘s Office, Washington, DC.
MEMORANDUM OPINION
[Dkt. # 4]
RICHARD J. LEON, District Judge.
Plaintiff Albert V. Peyus, Jr. (“plaintiff“) brings this suit against the defendant Ray LaHood, Secretary for the U.S. Department of Transportation (“defendant“), alleging discrimination based on age and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII“),
BACKGROUND
Plaintiff, a sixty-five-year-old Aviation Safety Inspector, has been employed by the U.S. Department of Transportation‘s Federal Aviation Administration (“FAA“)
Since plaintiff‘s employment with the AFS-52 team, plaintiff alleges that Livack has repeatedly and consistently discriminated against him on the basis of his age, as well as retaliated against him for filing a complaint with the Equal Employment Opportunity Commission (“EEOC“). He points to a veritable laundry list of incidents which he claims were discriminatory or retaliatory, which include: (1) Livack‘s comments upon plaintiff‘s employment with the AFS-52 team that Livack was forced to bring him to the branch (Compl. ¶¶ 11-12); (2) on a 2009 business trip to Kenya, Livack‘s dеmand that plaintiff maintain contact or he would not be allowed to travel anymore, and Livack‘s criticism of plaintiff for the large telephone bill that accrued as a result (id. ¶¶ 13-17); (3) on May 25, 2010, Livack‘s reprimand of plaintiff for making her look bad by not informing her of a lack of data with regard to the International Aviation Safety Data Exchange (“IASDEX“) program prior to a managers meeting, and her instruction to plaintiff thereafter to get her approval on each and every action needed to manage the program (id. ¶¶ 18-22); (4) Livack‘s nonresponse to plaintiff‘s request to take a class on May 16, 2010, causing him to miss the registration deadline (id. ¶¶ 23-24); (5) Livack‘s failure to sign plaintiff‘s travel voucher in a timely fashion, rendering plaintiff late in paying his government credit card bill (id. ¶¶ 32-34); (6) in June 2010, Livack‘s suspension of plaintiff‘s government credit card, despite a death in plaintiff‘s family, due to late payment, which prevented him from travelling to a June 2, 2012 assignment (id. ¶¶ 25-31, 35-36, 38); (7) Livack‘s admonishment and suspension of plaintiff for late payment of his government credit card (id. ¶¶ 25-31, 35, 37); (8) between June 16 and Junе 18, 2010, Livack‘s threat to get rid of the plaintiff or put him in another line of work because of his inability to travel, along with plaintiff‘s receipt of two angry voicemail messages from Livack (id. ¶¶ 39-41, 43); (9) Livack‘s removal of plaintiff as Program Manager for IASDEx because he could no longer travel for the government without a government credit card (id. ¶ 42); (10) in July 2010, Livack‘s admonishment of plaintiff for failing to track down the original paperwork on a Safety Recommendation project (id. ¶¶ 55-57); (11) in August 2010, Livack‘s lack of response to plaintiff‘s need for a signature and review of a completed project, as well as her failure to acknowledge his presence (id. ¶¶ 61-65); (12) in late August and September 2010, Livack‘s failure to provide plaintiff with new assignments, and her reassignment of two programs that were previously assigned to plaintiff to younger employees (id. ¶¶ 66-70); (13) on September 21, 2010, Livack‘s assignment to plaintiff to set up a storage site for papers, briefs, power points, letters, and statements on the computer system (id. ¶¶ 71-72); (14) in November 2010, Livack‘s failure to acknowledge plаintiff‘s presence on multiple occasions (id. ¶¶ 77-78); (15) on January 6, 2011, Livack‘s demand for proof that plaintiff was actually volunteering with the Red Cross (id. ¶¶ 79-80); (16) in January and February 2011, Livack‘s failure to acknowledge plaintiff‘s presence (id. ¶¶ 81-82); (17) Livack‘s demand for an in-person discussion prior to her approval
In July 2010, plaintiff emailed the Equal Employment Opportunity (“EEO“) Counselor‘s office regarding the discrimination he was suffering at the hands of Livack. Id. ¶ 50. Based on his Division Manager John Barbagallo‘s request, however, plaintiff agreed to try to work things out with Livack before filing a formal complaint with the EEO Counselor, which he eventually did. Id. ¶¶ 51-52; Pl.‘s Opp‘n, Ex. 8. Plaintiff filed this suit on November 21, 2011, seeking compensatory damages, a reassignment of duties, and costs for claims of age discrimination and retaliation against the defendant. See generally Compl. The defendant filed a Motion to Dismiss or, in the Alternative, for Summary Judgment on March 5, 2012, asking this Court to dismiss plaintiff‘s complaint or grant summary judgment in its favor. See generally Def.‘s Mot. to Dismiss or, in the Alt., for Summ. Judgment, ECF No. 4. For the following reasons, the defendant‘s motion is GRANTED.
STANDARD OF REVIEW
I. Rule 12(b)(6)
The defendant moves to dismiss plaintiff‘s claims that have not been exhausted for “failure to state a claim upon which relief can be granted.”
II. Rule 56
The defendant here moves alternatively for summary judgment. Summary judgment is appropriate when, based on the record, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See
The moving party has the initial burden of demonstrating that there is no genuine issue of material fact to be decided with respect to any essential element of the nonmoving party‘s claim. Id. at 263,
ANALYSIS
I. Failure to Exhaust Administrative Remedies
As a threshold matter, defendant asserts that plaintiff failed to exhaust his administrative remedies before filing this action with respect to age discrimination claims1 that stem from conduct that occurred prior to May 27, 2010. I agree.
The ADEA, which makes it unlawful for an employer to discriminate against an employee based on age,
In this case, plaintiff chose to pursue his administrative remedies prior to initiating suit in this Court. As part of the administrative process, employees “must initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory,”
II. Age Discrimination Claim under ADEA
Plaintiff contends that the defendant violated the ADEA by taking on a discriminatory attitude toward him, as opposed to other similarly situated employees not of his age group, and that such age discrimination affected “the terms, conditions and privileges of his employment.” Compl. ¶¶ 89-97. The defendant counters that it had legitimate, non-discriminatory reasons for taking the challenged actions, and that the plaintiff has failed to rebut such rеasons or produce any evidence of age discrimination on the defendant‘s part. See Def.‘s Mem. at 14-22. For the following reasons, I agree with the defendant.
The ADEA, which protects individuals who are at least 40 years of age, prohibits an employer from failing or refusing to hire an individual, from discharging him or her, or from other discriminating acts against the individual with respect to compensation, terms, conditions, or privileges of employment solely because of the individual‘s age. See
The defendant argues that the plaintiff did not suffer an adverse employment action under ADEA, and even if he did, the defendant had a legitimate, non-discriminatory reason for its challenged actions. See Def.‘s Mem. at 12-22. To be considered an “adverse employment action,” a particular act must constitute a “significant change in employment status, such as hiring, firing, failing to promote,
As explained above, plaintiff has offered eighteen discrete examples of supposedly discriminatory conduct, four of which cannot be considered for failure to exhaust purposes. See supra pages 97-98, 99-100. Of the remaining fourteen incidents, plaintiff has failed to demonstrate any materially adverse emplоyment action for ten of them.
Plaintiff was not subject to any significant change in his employment status, nor did he suffer any objectively tangible harm as a result of any of the following incidents: (1) Livack‘s failure to sign plaintiff‘s travel voucher in a timely fashion; (2) Livack‘s threat to get rid of the plaintiff or put him in another line of work because of his inability to travel; (3) in July 2010, Livack‘s admonishment of plaintiff for failing to track down the original paperwork on a Safety Recommendation project; (4) in August 2010, Livack‘s lack of response to plaintiff‘s need for a signature and completion of a project, as well as her failure to acknowledge his presence; (5) in November 2010, Livack‘s failure to acknowledge plaintiff‘s presence on multiple occasions; (6) on January 6, 2011, Livack‘s demand for proof that plaintiff was actually volunteering with the Red Cross; (7) in January and February 2011, Livack‘s failure to acknowledge plaintiff‘s presence; (8) Livack‘s demand for an in-person discussion prior to her approval of his request for a teaching assignment in Oklahoma City; and (9) in May 2011, Livack‘s failure to approve a leave slip for the plaintiff. See Douglas v. Donovan, 559 F.3d 549, 553 (D.C.Cir.2009); Bloom v. McHugh, 828 F.Supp.2d 43, 57 (D.D.C.2011) (“[C]ourts in this district regularly conclude that personnel actions do not constitute adverse action where the plaintiff has shown no effect on [her] grade or salary level, job title, duties, benefits or work hours.“) (internal quotation marks and citations omitted) (alteration in original). Indeed, as plaintiff describes the occurrences, each of the nine “discrete episodes seems (at worst) akin to the sort of public humiliation or loss of reputation that [our Court of Appeals has] consistently classified as falling below the requirements for an adverse employment action.” Baird, 662 F.3d at 1249. In addition, our Circuit has made clear that temporary monitoring, criticism or negative feedback from a supervisor, and delayed responses from work peers, do not amount to adverse employment action absent accompanying effects on salary or other elements of employment status, which the plaintiff has not shown here.5
Similarly, as to the tenth alleged incident, plaintiff suffered no adverse employment action from Livack‘s admonishment and suspension of plaintiff for the late payment of his government credit card. The record reflects that plaintiff was suspended for three calendar days, from Wednesday, October 6, 2010 to Friday, October 8, 2010, without pay due to the plaintiff‘s “failure to pay the balance due on [his] travel card account.” Pl.‘s Opp‘n, Ex. 3 at 3-4. However, the plaintiff has not shown that this suspension resulted in anything other than a minor inconvenience or temporary reduction in work responsibilities. See Arafi v. Mandarin Oriental, 867 F.Supp.2d 66, 72-73 (D.D.C.2012) (defendant‘s removal of plaintiff‘s service during single shift does not constitute adverse employment action); Harper v. Potter, 456 F.Supp.2d 25, 29 (D.D.C.2006) (holding seven-day suspension was not materially adverse because although it was disciplinary in nature, plaintiff was able to remain on the job and in pay status).
On the other hand, plaintiff has established that the substantive duties of his job were significantly diminished after (1) his government credit card was suspended for late payment, (2) he was removed as Project Manager of the IASDEX program due to his inability to travel, (3) Livack failed to provide him with new substantive assignments, less one administrative task, and (4) his pre-assigned work was reassigned to younger employees. See Pl.‘s Opp‘n, Ex. 4 at 1-2, Ex. 7 at 2, Ex. 8 at 4, 6. Indeed, if the plaintiff “raise[s] a genuine issue as to whether [a] reassignment left [the employee] with ‘significantly different‘--and diminished--supervisory and programmatic responsibilities,” then the employment action need not entail a loss of sаlary, grade level, or benefits to be adverse. Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007); see also Burke v. Gould, 286 F.3d 513, 522 (D.C.Cir.2002) (holding that the withdrawal of an employee‘s supervisory duties constitutes an adverse employment action); Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002) (adverse employment action can be shown via “reassignment with significantly different responsibilities“) (citation omitted). Although the plaintiff was not technically reassigned to a different position or location during or as a result of the allegedly discriminatory behavior by the defendant, in effect, he was. See Mamantov v. Jackson, 898 F.Supp.2d 121, 128-29 (D.D.C.2012) (“[A] reassignment of duties may be materially adverse if it places the employee in a position with less responsibility and fewer opportunities for compensation and advancement, or results in the loss of supervisory responsibilities.“) (citations and internal quotation marks omitted). In fact, not only does the record reflect that some of plaintiff‘s previous responsibilities are no longer his, but it demonstrates that plaintiff‘s duties in the wake of the suspension of his government credit card constitute qualitatively inferior work requiring less skill and knowledge.6 As
Although the plaintiff suffered an adverse employment action when his job duties were significantly diminished, the defendant has asserted legitimate, non-discriminatory justifications for its actions. The record reflects that the plaintiff was sixty days past due on payment of the entire account balance on his government-issued credit card on three different occasions within a twelve-month period, against FAA policy, and that it was the issuing bаnk, not the defendant, that initially suspended plaintiff‘s card due to nonpayment. See Pl.‘s Opp‘n, Ex. 3 at 3; Def.‘s Reply in Support of Mot. to Dismiss or, in the Alt., for Summ. J. (“Def.‘s Reply“), Exs. 8-9.8 In addition, the evidence shows that many of plaintiff‘s program management duties require travel, and that suspension of plaintiff‘s government credit card consequently prohibited plaintiff from performing some of his inspector duties. See Pl.‘s Opp‘n, Ex. 3 at 3; Ex. 7 at 4; Ex. 8 at 4, 6. As such, the record reflects that reassignment of some of plaintiff‘s responsibilities was a logistical inevitability, rather than a personal one. Last, Livack‘s assignment for plaintiff to set up a storage site for papers, briefs, power points, letters, and statements on the computer system is not wholly administrative, the evidence shows, but is also a technical assignment that requires subject matter knowledge. See id., Ex. 4 at 5.
Unfortunately for the plaintiff, he has presented no evidence to cast doubt on the defendant‘s nondiscriminatory reasons for its decisions. Instead, plaintiff has presented merely conclusory allegations, without support in the record, that the defendant suspended his government credit card, and substantially reduced his job responsibilities, due to his age. See Mulhern v. Gates, 525 F.Supp.2d 174, 186 (D.D.C.2007) (unsupported allegations and self-serving, conclusory statements do not create genuine disputes); Texas Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (in discrimination cases, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff“). In addition, the one-year age gap between the plaintiff and Livack also precludes any accusation that
Accordingly, the Court finds that no rational jury could find from the existing record that the defendant took the challenged actions on the basis of plaintiff‘s age. As such, summary judgment on plaintiff‘s ADEA age discrimination claim against the defendant is appropriate as a matter of law.
III. Retaliation Claim under Title VII
Finally, plaintiff claims that the defendant “took adverse action against [p]laintiff by reassigning his duties” after plaintiff met with the EEO Counselor‘s office and his Division Manager regarding defendant‘s alleged discrimination against him, in violation of Title VII. Cоmpl. ¶¶ 98-105. The defendant disagrees, arguing that it had a legitimate, non-discriminatory reason for reassigning some of the plaintiff‘s duties, and that there is no evidence from which a reasonable factfinder could conclude that the defendant‘s explanation is a pretext for retaliation. See Def.‘s Mem. at 14-22.
Title VII makes it an unlawful employment practice for an employer “to discriminate against any of his employees ... because he has opposed any [unlawful employment] practice ... or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.”
In this case, the parties do not dispute that plaintiff engaged in protected activity by seeking out the EEO Counselor‘s office in July 2010. And based on the analysis above, Livack‘s removal of plaintiff as Program Manager for IASDEx, her failure to provide plaintiff with new assignments, her reassignment of two programs that were previously assigned to plaintiff to younger employees, and her assignment to plaintiff to set up a storage site for papers, briefs, power points, letters, аnd statements on the computer system constitute adverse employment actions. See supra pages 102-03.
CONCLUSION
Thus, for all of the foregoing reasons, defendants’ motion to dismiss or, in the alternative, for summary judgment is GRANTED. An appropriate order shall accompany this memorandum opinion.
RICHARD J. LEON
United States District Judge