the burden to Plaintiff to show that the reasons were pretextual or that discrimination was more likely than not the reason for discrimination. See Fuentes, 32 F.3d at 763.
1. Were the reasons advanced by the Defendant for not promoting the Plaintiff pretextual?
Plaintiff argues that he was never given the opportunity to train for the position, and thus, the Defendant's purported reliance on his lack of experience was a pretext for discrimination. He contends that the rotation ended after the other four officers completed their turn and before he had a chance to serve as Acting Desk Sergeant. [Affidavit of Jacob Williams, Exh. 3 to Pl.'s Br. in Opp'n to S.J.]. In response, the Defendant asserts that Plaintiff declined his opportunity to serve as Desk Sergeant in the first rotation. [Affidavit of Richard H. Snyder, Exh. 2 to Def.'s Br. in Supp. of S.J.]. We agree that there is a factual dispute as to whether Plaintiff voluntarily chose not to participate in the first rotation. However, Plaintiff was subsequently provided an opportunity to serve a shift as Acting Desk Sergeant when Snyder requested volunteers and when Snyder offered him the position on October 5, 1993 and October 12, 1993. [J. Williams Dep. at 55].
Plaintiff admitted the offers were made, but testified that he declined to accept them because "the milk was already spilt". [J. Williams Dep. at 55]. It is unclear what Plaintiff means by this statement, since it is undisputed that the decision to promote Varner had not been made when Plaintiff declined Chief Snyder's invitation. [J. Williams Dep. at 55]. If Plaintiff had volunteered, or accepted Snyder's offer, Snyder could not have used Plaintiff's lack of experience at the position in deciding to promote Varner. It is irrelevant whether Plaintiff was voluntarily or involuntarily removed from the original rotation.
Even if he was skipped on the first rotation, Plaintiff was given a chance to serve as Acting Desk Sergeant, just as the other officers had done. Because Plaintiff chose not to take advantage of the opportunity, he cannot now complain that Snyder improperly relied on Plaintiff's lack of experience in not promoting him.
Plaintiff also claims that his work record proves that he was qualified for the job. This fact is not in dispute since the Defendant admits that Plaintiff was one of seven applicants for the promotion who was rated as "highly qualified". [Aff. of Lisa K. Watkins, Exh. 6 to Def.'s Reply Br.]. However, the mere fact that Plaintiff was qualified does not mean that Snyder did not honestly believe Varner was better suited for the promotion, since six other candidates, including Varner, were also considered highly qualified. [Id.]
Additionally, Plaintiff asserts that his employment record was exceptional. He identifies various awards and certificates he has received for superior performance at his position, as well as numerous favorable evaluations. However, Varner had received higher evaluations than Plaintiff, [Aff. of Lisa K. Watkins, Exh. 6 to Def.'s Reply Br.], and had also received numerous awards and commendations. [Suppl. Aff. of Richard A. Snyder [sic], Exh. 4 to Def.'s Reply Br.].
Plaintiff does not dispute Varner's credentials or work history, nor does he claim that Snyder did not actually rely on those qualifications. Rather, his arguments attack the circumstances underlying Snyder's decision, and "evidence contesting the factual underpinnings of the reason for the [employment decision] proffered by the employer is insufficient, without more, to present a jury question." Hoeppner v. Crotched Mountain Rehabilitation Center, Inc., 31 F.3d 9, 17 (1st Cir. 1994) (citation omitted) (alterations in original). "We do not judge whether the employer's decision was prudent, fair, or rational; rather, the issue is whether the Plaintiff has produced evidence indicating that the employer's proffered reason for its action was fabricated." Verney v. Dodaro, 872 F. Supp. 188, 1995 WL 6799, *4 (M.D.Pa. 1995) (Caldwell, J.). Plaintiff has failed to produce any evidence that could lead a jury to believe that Snyder's proffered reasons for denying Plaintiff the promotion were fabricated.
2. Was discrimination "more likely than not" the reason for the denial of the promotion?
Plaintiff also argues that there was other "evidence of pretext." We construe this argument to mean that this evidence makes it more likely than not that discrimination was the real reason Plaintiff was not promoted. First, Plaintiff asserts that black males were underrepresented in the position for which he applied, and in general at high ranking positions at the DDRE.
Apparently, Plaintiff believes that the lack of minority employees at higher level positions could lead a jury to conclude that the reason he was denied a promotion was because he was a minority. However, the mere fact that minorities are underrepresented is not evidence of discrimination, and does not make it "more likely than not" that Plaintiff was denied the promotion. Next, Plaintiff claims that two co-workers testified that they did not believe the Plaintiff was given equal consideration for the promotion. However, there is no evidence that these employees had any independent knowledge of the rationale behind the DDRE's promotion decisions.
Defendant has offered legitimate, non-discriminatory reasons why Plaintiff was not promoted. Plaintiff has failed to show that these reasons were a mere pretext for discrimination, on that it is more likely than not that the real reason for the employer's decision was because of Plaintiff's race. Therefore, Plaintiff has not carried his burden, and his claim must be dismissed.
C. Retaliatory Discrimination
"An employer violates Title VII of the Civil Rights Act when he discriminates against any employee who has 'made a charge. . . in an investigation, proceeding, or hearing under this subchapter.'" Ruggles v. California Polytechnic State University, 797 F.2d 782, 784 (9th Cir. 1986)(citing 42 U.S.C. § 2000e-3). To establish a prima facie case of reprisal discrimination, the Plaintiff must show that: 1) he engaged in a protected activity; 2) some adverse action was subsequently taken against him; and 3) there was a causal link between the adverse employment decision and protected activity. Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 110 S. Ct. 725, 107 L. Ed. 2d 745 (1990).
In the present action, it is unclear what conduct by the Defendant allegedly amounts to retaliation. In his amended complaint, Plaintiff's sole allegation with respect to retaliation is that "upon Plaintiff's request for a final resolution of his [EEO] complaints, the Equal Employment Officer staged a confrontation with Plaintiff in retaliation for the complaint filing which has resulted in a one-day disciplinary suspension." [Pl.'s Amended Compl. P 8(f)]. However, in his brief in opposition to summary judgment, the list of retaliatory acts also included suspending Plaintiff without an investigation on October 23 and 24, 1993 and subjecting him to a fitness-for-duty medical examination, as well as suspending him for one day for the alleged confrontation with Mr. Peterson. [Pl.'s Br. in Opp'n to S.J. at 7]. All of these claims of retaliation arise from the same incident: the alleged confrontation with the EEO Officer.
Defendant argues that the court lacks subject matter jurisdiction over this claim because Plaintiff failed to exhaust his administrative remedies. See 29 C.F.R. § 1614.105(a)(1). Specifically, Defendant contends that the alleged confrontation with the EEO manager, and the subsequent action taken against the Plaintiff, was never the subject of a formal EEO complaint. Plaintiff does not contest the fact that this incident was not investigated
, but instead argues that it would be a waste of judicial resources if we were to dismiss the claim now. While we agree that dismissal of this claim for investigation by the EEO office may result in a waste of resources, we have no choice but to dismiss claims over which we lack subject matter jurisdiction. See Joyce v. United States, 474 F.2d 215, 219 (3d Cir. 1973); Rode v. United States, 812 F. Supp. 45, 47 (M.D.Pa. 1992)(Nealon, J.). Until Plaintiff files a formal EEO complaint and his claims are investigated, they are not ripe for determination by this court. See Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984); 29 C.F.R. § 1614.105(a)(1).
D. Hostile Work Environment Discrimination
Plaintiff's final claim under Title VII is that the harassment he endured at the DDRE was so severe that it affected a term, condition, or privilege of his employment. In Harris v. Forklift Sys., Inc., U.S. , 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993), the Supreme Court addressed the hostile work environment theory of harassment, stating that Title VII is violated where "the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,'. . . that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. . . . '" Id. at , 114 S. Ct. at 370, 126 L. Ed. 2d at 301 (internal citations omitted). Although the claim in Harris involved sexual harassment, the hostile work environment theory applies equally to racial harassment. See, e.g., West v. Philadelphia Electric Company, 45 F.3d 744, 1995 WL 19636 (3d Cir. 1995); Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S. Ct. 2058, 32 L. Ed. 2d 343 (1972).
"An employer violates Title VII simply by creating or condoning an environment at the workplace which significantly and adversely affects [the psychological well-being] of an employee because of his race or ethnicity, regardless of any other tangible job detriment to the employee." Dickerson v. State of N.J. Dept. of Human Services, 767 F. Supp. 605, 613 (D.N.J. 1991) (alteration in original) (citing Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982)). To establish a claim for hostile work environment, the Plaintiff must demonstrate that: (1) employees suffered intentional discrimination because of their race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) respondeat superior liability existed. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (claim for sexually hostile work environment claim under Title VII).
"In determining if a work environment is 'hostile' or 'abusive', courts look to the totality of the circumstances, including: the frequency and severity of the conduct; whether the conduct is physically threatening or humiliating, or merely an offensive utterance; and whether the conduct unreasonably interferes with the victim's work performance." Pittman v. Correctional Healthcare Solutions, Inc., 868 F. Supp. 105, 108 (E.D.Pa. 1994) (citing Harris, U.S. at , 114 S. Ct. at 371, 126 L. Ed. 2d at 302).
Plaintiff has not proved that he, or any other DDRE employee, was subjected to intentional discrimination because of his race. He argues that the testimony of two co-workers, Stanley Eddy and James Dick, supports his claim that there existed a racially hostile work environment. However, even granting all inferences in Plaintiff's favor, Eddy's belief that Plaintiff did not get the same treatment as non-minority patrolmen and Dick's statement that Plaintiff was not liked by management are insufficient to establish harassment that was "sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment." Walker, 684 F.2d at 1359 (citation omitted). Neither individual testified that they witnessed, or knew of, any specific instances of racial harassment by management or other employees. Plaintiff himself failed to allege that he was subjected to overt acts of harassment, such as racial slurs or derogatory comments in the workplace.
The examples that Plaintiff cites as evidence of a racially hostile work environment are the incident with Richard Nornhold at the commissary; the denial of permission to go to the health clinic at 9:00 a.m.; the superglue in Plaintiff's lock and the apparent inadequate investigation of the incident; the accusation that he failed to close a gate at the DDRE; and the alleged staged confrontation with the EEO manager. However, not one of these incidents contains a shred of evidence that could lead a reasonable jury to conclude that the action was based on racial animus. Only Plaintiff's conclusory allegations link these incidents to his race. To withstand summary judgment, the Plaintiff must do more than "simply reassert factually unsupported allegations contained in [his] pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citation omitted). He "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Id. (emphasis in original)(citation omitted). Plaintiff has failed to identify any evidence, other than his own subjective conclusions, that he was harassed because of his race, and therefore has not satisfied the first element in a hostile work environment claim.
In addition, he has identified only five occurrences over a seven year period in which he claims he was harassed. These incidents, if true, do not show harassment that was "pervasive and regular". Andrews, 895 F.2d at 1482. Additionally, Plaintiff does not claim that racial slurs or any derogatory comments were made either to him or other employees. Rather, he has only his subjective belief that the alleged incidents of harassment directed at him were as a result of his race. A successful claim for hostile work environment includes both a subjective and objective standard. Id. We do not believe that a reasonable person of Plaintiff's race, placed in Plaintiff's position, would have found the incidents hostile or abusive.
We recognize that summary judgment is not appropriate in many discrimination and harassment cases since the state of mind of the employer is often at issue. However, in the present case, the Plaintiff has failed to produce any evidence that the employer's professed reasons for not promoting him were pretextual. In addition, he has not identified any competent evidence that he suffered pervasive racial harassment during the course of his employment. We conclude that no reasonable jury could conclude that the Plaintiff was discriminated against because of his race, or that he was subjected to a hostile work environment.
An appropriate order will be entered.
William W. Caldwell
United States District Judge
Date: February 17, 1995
AND NOW, this 17th day of February, 1995, upon consideration of Defendant's motion to dismiss, or in the alternative summary judgment, filed December 15, 1994, it is ordered that:
1. Plaintiff's claim of retaliatory discrimination is dismissed for lack of subject matter jurisdiction (Plaintiff failed to exhaust his administrative remedies).
2. Defendant's motion for summary judgment is granted as to all other claims.