Glen J. PERRY, Appellant, v. Francis J. HARVEY, Secretary of the United States Army, Appellee.
No. 08-3339.
United States Court of Appeals, Third Circuit.
June 5, 2009.
Submitted Under Third Circuit LAR 34.1(a) June 2, 2009.
As to Counts Two through Five, which charged Platts with attempting to evade tax payments owed by Pinnacle, the government and Platts agreed thаt a deficiency existed. Specifically, testimony from both sides established that Pinnacle was deficient in paying its withholding taxes throughout 1998 and in the first quarter of 1999.3 In response to an IRS investigation, Platts provided paperwork establishing that Pinnacle was unable to pay the outstanding balance; thus, the deficiency fell on Platts, who, as the company‘s sole shareholder and president, and pursuant to
III. Conclusion
Because the evidence, viewed in the light most favorable to the government, was sufficient for a reasonable jury to conclude that Platts is, beyond a reasonable doubt, guilty of the charged offenses, we will affirm his conviction on all counts of the indictment.
F. Michael Daily, Jr., Esq., Westmont, NJ, for Appellant.
Leah A. Bynon, Esq., Office of United States Attorney, Newark, NJ, for Appellee.
Before: McKEE, HARDIMAN, and GREENBERG, Circuit Judges.
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Glen Perry appeals the District Court‘s summary judgment on his hostile work environment and retaliation claims against his former employer, the United States Army. We will affirm.
I.
An African-American, Perry worked as a civiliаn police officer at Fort Dix from 2000 to 2006. Throughout his employ, Perry had a contentious relationship with his immediate supervisor, Lieutenant Bonnie Graham-Morris, who is Asian-American. In 2003, Perry completed an anonymous survey on the work climate at Fort Dix, in which he criticized Graham-Morris‘s performance and insinuated that minorities were treated unfairly. Later that year, Perry filed an EEOC complaint alleging racial discrimination and tensions continued to flare between Perry and Graham-Morris. In 2005, incensed that Graham-Morris had received a promotion, Perry sent an inflammatory e-mail to 11 minority officers questioning Graham-Morris‘s qualifications and calling for widespread protest of “injustice” at the police department.
Three months later, in November 2005, the EEOC held a hearing on Perry‘s 2003 complaint, where fellow African-American police officer Rick Sanders offered testimony contradicting Perry‘s discrimination claims. Two weeks later, Perry was caught placing offensive materials in Sanders‘s mailbox, accusing Sanders of sleeping with Graham-Morris аnd calling him a “rat,” “traitor,” “lacky,” and “fink Uncle Tom.” This was the final straw for the Director of Public Safety at Fort Dix, who notified Perry in writing of his termination. Perry‘s termination became final in October 2006 when the Merit System Protection Board (MSPB) upheld the Director‘s decision. In the meantime, the EEOC issued a ruling on Perry‘s initial complaint, rejecting his discrimination charges. In November 2006, Perry brought hostile work environment and retaliation claims in federal court under
II.
In reviewing a motion for summary judgment, we view the record and draw inferences in the light most favorable to the nоnmoving party. We will reverse the District Court‘s grant of summary judgment if a reasonable jury could find for the nonmoving party. See Moore v. City of Phila., 461 F.3d 331, 340 (3d Cir.2006).
A.
To prove his hostile work environment claim, Perry must show, inter alia, that his workplace was “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to
In this case, most of the evidence upon which Perry relies is not probative оf discriminatory animus, much less severe or pervasive enough to support a hostile work environment claim. Over an eight-month period in 2003, Perry‘s police vehicle was reassigned; he was prohibited from attending a picnic as the department‘s Drug Abuse Resistance Education (DARE) representative; he was prohibited from working overtime; and he wаs temporarily marked AWOL by Graham-Morris. However, Perry does not rebut the Army‘s legitimate explanations for each of these actions: Perry was assigned to desk duty and his vehicle was needed for patrols; Perry was no longer the department‘s D.A.R.E. representative at the time of the picnic; the department implemented a policy agаinst overtime; and Graham-Morris justifiably, albeit wrongly, believed Perry was AWOL because he cleared his absence with a different supervisor. Perry cites racist remarks made by Graham-Morris‘s husband on two occasions, but these statements are not germane to Perry‘s hostile work environment claim because the husband was not employed by the police department and Perry offers no evidence to justify imputing his remarks to Graham-Morris. Even accepting Perry‘s version of these events—as we must at summary judgment—they do not support a hostile work environment claim.
Some of Perry‘s allegations, however, may be probative of a hostile work environment. In 2000, Perry once overheard Graham-Morris “refеr to men of color as being dumb and useless.” Appellant‘s Br. at 3. In 2003, Graham-Morris denied Perry leave to take his mother to a doctor‘s appointment, and wrongly advised him to report to a “phantom” meeting with the police chief. Most significantly, in late 2003, Graham-Morris approached Perry while sitting in a parked vehicle after his shift and asked, “What аre you doing here, boy?” Finally, in 2004, Graham-Morris asked Perry for verification that he had taken a drug test, although such verification was not normally requested from other officers.
The foregoing evidence is insufficient as a matter of law for a reasonable jury to conclude that Perry was subjected to a hostile work environment because it is not severe or pervasive enough to “to alter the conditions of [Perry‘s] employment and create an abusive working environment,” Nat‘l R.R. Passenger Corp., 536 U.S. at 116, or to “detrimentsally affect a reasonable person ... in that posi
Indeed, Perry concedes that the majority of this conduct was “petty in nature,” Appellant‘s Br. at 24, but argues that the “boy” comment was severe enough to violate Title VII by itself. See id. at 22 (suggesting the District Court erred in finding Graham-Morris‘s actions neither severe nor pervasive, because “a jury could find that under the circumstances the ‘boy’ comment was in fact ‘severe‘“). Accepting Perry‘s requested inference that “boy” was a racially motivated epithet, it does not rise above an “offhanded comment,” Caver, 420 F.3d at 262, or “sporadic ... abusive language,” Faragher, 524 U.S. at 788. The Supreme Court has held that the “mere utterance of an [ethnic or racial] epithet which engenders offensive feelings in a[sic] employee does not sufficiently affect the conditions of employment to implicate Title VII.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quotation omitted).
Viewing the “overall scenario” in the light most favorable to Perry, Caver, 420 F.3d at 263, we hold that no reasonable jury could conclude that the Army‘s conduct was severe or pervasive enough to create a hоstile work environment.2
B.
We turn now to Perry‘s retaliation claim, which is based on the filing of his EEOC complaints, the anonymous survey, and his e-mail opposing Graham-Morris‘s promotion. To establish a prima facie case of retaliation, an employee “must show that: (1) he or she engaged in a protected employee activity; (2) the employer took an advеrse employment action after or contemporaneous with the protected activity; and (3) a causal link exists between the protected activity and the adverse action.” Weston, 251 F.3d at 430. If the employee establishes his prima facie case, “the familiar McDonnell Douglas approach applies in which the burden shifts to the employer to advance a legitimate, non-retaliatory reason for its conduct аnd, if it does so, the plaintiff must be able to convince the factfinder both that the employer‘s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.” Moore, 461 F.3d at 342 (quotations omitted).
To the extent that Perry claims retaliation by Graham-Morris based on the anonymous survey, he cannot establish a prima facie сase because the survey does not qualify as protected activity. Title VII‘s retaliation provision prohibits discriminating against an employee “because he has opposed any practice made an unlawful employment practice by [the statute].”
Perry‘s response to the anonymous survey was too vague to qualify as opposition to unlawful practices under Title VII because his complaints were primarily directed at Graham-Morris‘s capabilities. Perry wrote that his supervisor “does not communicate any ideas;” “does not keep me informed at all;” provides “no backing at all;” “shows no interest at all in their (sic) employees;” “has NEVER discuss[ed] my training needs at all;” and “is not COMPETENT in their (sic) job.” App. at 616. Perry also accused Graham-Morris of driving while intoxicated, harassing male officers, inappropriately discharging her weapon, and assaulting other officers. App. at 617.
The fact that Perry complained about other issues does not necessarily preclude the survey from qualifying as protected activity under Title VII. See Moore, 461 F.3d at 343 n. 4. But the survey makes оnly oblique reference to racial discrimination, in such vague fashion that it is impossible to judge whether Perry reasonably believed he was protesting a violation of Title VII. The mere mention of race does not transform a general list of grievances into opposition to unlawful activity under Title VII. The conduct that serves as the basis for Pеrry‘s Title VII claims occurred entirely after he completed the survey, and Perry cites no earlier conduct on appeal. The survey itself neither suggests the acts Perry was protesting nor their alleged discriminatory basis. We therefore hold that Perry cannot rely on the survey to establish a prima facie case of retaliation because it does nоt rise to the level of protected activity.
To the extent that Perry claims he was fired in retaliation for his inflammatory email or for filing EEOC complaints, however, he may be able to establish a prima facie case. Like the survey, Perry‘s e-mail is devoid of reference to any specific act that might be unlawful under Title VII. However, its message may reasonаbly be interpreted as an objection to perceived racial discrimination in the promotion process, making it a somewhat closer call than the survey. Assuming, arguendo, that the e-mail constitutes protected activity, Perry has established a prima facie case because the Army concedes that Perry was fired in part because of the e-mail, suрporting a causal inference between Perry‘s opposition to racial discrimination and his termination. Nevertheless, the Army rebuts Perry‘s prima facie case with legitimate, non-retaliatory reasons for his termination.
First, Perry was caught on videotape placing inappropriate and highly offensive materials in Rick Sanders‘s mailbox in retribution for Sanders‘s EEOC testimony. Second, the inflammatory manner in which Perry chose to communicate his objection to Graham-Morris‘s promotion was also inappropriate, designed to undermine the authority of the Director of Public Safety, and create disharmony throughout the department. Rather than voicing his concerns to his superiors, Perry essentially called for insurrection among minority officers. See App. at 180 (“As a closing item and remembrance ‘Bloody Sunday March 1965.’ They stood up, spoke up, walked up and made a difference in today‘s history. They took a stance why we don‘t and why we can‘t (sic). Ask
C.
Finally, we turn to Perry‘s argument that the MSPB erred in affirming his termination. We agree with the District Court that this argument is unavailing given that Perry has failed to show or even attempt to show that the reasons for his termination stated by the Army were pretextual. To the extent that Perry argues the MSPB was required to apply mixed-motive analysis, his argument fails because the Army‘s reliance on Perry‘s e-mail is not direct evidence of discrimination. The Army stated that Perry was fired for the unprofessional and inflammatory method in which he voiced his objections to co-workers, not for the objections themselves. At best, the e-mail establishes a prima facie case by supporting a plausible inference that Perry‘s objections to perceived discriminatory promotion practices might have been a causal factor in his termination. However, the Army successfully rebutted Perry‘s prima facie case by providing legitimate, nonretaliatory reasons for his termination that Perry fails to challenge. Wе will affirm summary judgment on this claim as well.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
