HAMILTON v. O'NEIL, (W.D.Tex. 2002)

EDWARD C. PRADO, United States District Judge.

On this date, the Court considered Defendant's Motion for Summary Judgment, filed December 20, 2001, Plaintiff's Response, filed January 14, 2002, and Defendant's Reply, filed January 17, 2002. Having reviewed the record and arguments of counsel, the Court finds that Defendant's motion for summary judgment should be granted.

Plaintiff Joe Hamilton ("Hamilton") brings suit alleging discrimination and retaliation on the basis of his "age (over 40), race (Caucasian), color (white), national origin (Irish American), sex (male), mental disability (severe depression), physical disability (injured right shoulder and left knee), and reprisal for prior EEO activity." Plaintiff brings these claims pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq., as amended ("ADEA"), and the Rehabilitation Act Amendments of 1992 ("Rehabilitation Act").

In the usual case, the party seeking summary judgment must show by affidavit or other evidentiary materials that there is no genuine dispute as to any fact that is material to the resolution of the motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986); Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense or merely demonstrate that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. See Celotex Corp., 477 U.S. at 325; Lavespere, 910 F.2d at 178. Once the moving party has carried that burden, the burden shifts to the nomnoving party to show that summary judgment is inappropriate. For a court to find no genuine issue of material fact, the court must be satisfied that no reasonable trier of fact could find for the nonmoving party, i.e., that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a favorable verdict for the nonmovant. See Liberty Lobby, 477 U.S. at 249-50; FED. R. CIV. P. 56(e),

To defeat summary judgment, Hamilton must make a prima fade showing of discrimination, i.e., Hamilton must show that (1) he is a member of a protected group, (2) he is qualified for the benefit he sought, (3) be was denied such benefit and such denial amounts to an adverse employment action, and (4) the adverse employment action was differentially applied to Hamilton. See Rubinstein v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000); see also Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993) (establishing similar elements under the Rehabilitation Act). Once Hamilton establishes a prima facie case of discrimination, the burden shifts to Defendant to provide a legitimate, non-discriminatory reason for the complained of employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). If Defendant makes such a showing, the burden shifts back to Hamilton to show that Defendant's proffered reasons are merely pretext for a discriminatory motive. See id.

In his Complaint, Hamilton alleges that Defendant created and condoned a "bias[ed] and hostile work atmosphere which changed the terms and conditions of his employment," Hamilton, states, "Specifically, Plaintiff was harassed, not properly supervised, held to stricter standards of performance, . . . denied benefits of employment accorded other employees, . . . . [and] treated dissimilarly from other employees." This allegation is listed under every basis of discrimination alleged by Hamilton, race, national origin, sex, age, and disability.

Hamilton, however, has provided no evidence of the type of discrimination listed in Hamilton's complaint. Perhaps one of the most blatant deficiencies in Hamilton's prima facie case is his complete lack of evidence regarding the treatment of other employees, much less the treatment of employees outside any one of the protected classes in which he alleges that he is included. Hamilton's response to Defendant's summary judgment motion does not even mention his discrimination claims and focuses only on his claim of retaliation for engaging in protected activity. Therefore, Defendant's motion for summary judgment is granted as to all claims of discrimination.

To establish a retaliation claim, Hamilton must show that (1) he engaged in protected activity; (2) Defendant took an adverse employment action against him; and (3) a causal connection exists between his protected activity and the adverse employment action. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). Adverse employment actions include only ultimate employment decisions, such as hiring, firing, promoting, granting leave, and compensation. Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995). Employment actions that merely have a tangential effect on ultimate employment decisions do not constitute adverse employment actions for purposes of analyzing retaliation claims. See id.

Here, Hamilton claims lie was retaliated against for testifying in an Equal Employment Opportunity Commission (EEOC) hearing on April 19, 1994, pursuant to an 13130 complaint of his. Hamilton's retaliation claim centers on the two following allegedly adverse employment actions: (1) Hamilton received a "marginal" as opposed to "fully successful" Employment Performance Appraisal Summary (EPAS) rating and was placed on a Performance Improvement Plan (PIP), and (2) Hamilton's Pederal Employees Group Life Insurance (FEGLI) and Federal Employees Health Benefits Program (FEHBP) were terminated and his disability retirement application was allegedly delayed. In his Response, however, Hamilton states that he does not contest Defendant's motion for summary judgment regarding all claims based upon the termination of his FEGLI and FEHBP and the alleged delay of his disability retirement application. Therefore, the only claim that may potentially raise a genuine issue of material fact is whether Defendant retaliated against Hamilton for his prior EEO activity by giving him a "marginal" EPAS rating and placing him on a PIP.

Hamilton claims that his EPAS rating for the period of time between June 1. 1993, and May 31, 1994, was changed from "fully successful" to "marginal." Hamilton asserts that he received his "fully successful" rating on November 1, 1994, and approximately five hours later, he received a second rating of "marginal" for the same 1993/1994 time period. Hamilton states, "[u]pon further inspection of the two EPAS ratings, Mr. Hamilton noted that both ratings were dated with the same date." Because Hamilton was given a "marginal" rating, lie was placed on a PIP. Hamilton asserts that his marginal rating and placement on a PIP, in November 1994, constitute retaliation for his prior EEO activity, in April 1994.

Defendant agrees that Hamilton was in fact given a marginal rating for his 1993/1994 EPAS and subsequently placed in a PIP, but denies that such actions were in response to Hamilton's prior EEO activity. Defendant claims that Hamilton's marginal EPAS rating and placement on a PIP were in direct response to a verbal and physical altercation between Hamilton and one of his supervisors in April 1994. According to Defendant, on April 14, 1994, Plaintiff engaged in a verbal and physical attack on his supervisor and then refused to follow orders to leave the premises, culminating in a threat of arrest for criminal trespass. As a result of such misconduct, Hamilton was suspended for thirty days and subsequently received a marginal EPAS rating and placement in a PIP. Upon successful completion of his PIP, Hamilton's EPAS rating was changed to "fully successful," Defendant argues that such employment decisions do not constitute adverse employment actions and that, even if they did, there is no causal connection between Hamilton's prior EEO activity and the marginal EPAS rating and PIP placement.

Hamilton claims that his marginal rating and subsequent placement on a PIP affected his compensation because pursuant to the PIP, Hamilton was required to seek psychological counseling and therefore was not allowed to carry a firearm. Hamilton claims that his disqualification from carrying a firearm prevented him from receiving overtime pay, as carrying a firearm is a mandatory condition of his employment us a U.S. Customs Officer, Defendant responds that Hamilton's disqualification from carrying a firearm did not result from his marginal rating and PIP, but rather from his thirty-day suspension for his prior verbal and physical altercation with his supervisor. The Court finds that even if Hamilton's assertion is true, i.e., that he was prevented from carrying a firearm because of his marginal rating and placement on a PIP, the marginal rating and PIP placement, at most, had a tangential effect on Hamilton's compensation based upon his inability to carry a firearm. As such, the Court finds that Hamilton's marginal rating and PIP placement do not constitute adverse employment actions sufficient to establish a claim of retaliation. See Burger v. Cent. Apartment Mgmt, Inc., 168 F.3d 875, 878-79 (5th Cir. 1999).

Even if Hamilton could establish an adverse employment action, he has failed to establish a genuine issue of material fact as to whether a causal connection exists between Hamilton's prior EEO activity and his marginal ISPAS rating and PIP placement. Defendant provides a legitimate, non-retaliatory reason for its employment actions by explaining that Hamilton was given a marginal rating and placed on a PIP for his misconduct on April 14, 1994, not in response to Hamilton's prior EEO activity. Hamilton does not deny such misconduct and provides no evidence of pretext. Therefore, the Court finds that there is no causal connection between Hamilton's prior EEO activity and his marginal EPAS rating and PIP placement sufficient to establish a claim of retaliation.

Accordingly, the Court finds that no genuine issue of material fact exists as to Hamilton's discrimination and retaliation claims. Therefore, the Court GRANTS Defendant's motion for summary judgment (docket entry #24).