United States District Court, M.D. Louisiana
JOHN W. DeGRAVELLES, District Judge.
Before the Court is Defendants' Motion for Summary Judgment filed by Jeh Johnson, Secretary of the Department of Homeland Security, and the Federal Emergency Management Agency, seeking an order from this Court granting summary judgment against Plaintiff Derrick Allen ("Allen"), with prejudice, pursuant to Federal Rule of Civil Procedure ("Rule") 56. Plaintiff opposes that motion. Following a status conference in which this Motion was discussed, Plaintiff was given an opportunity to supplement his Opposition and did so on November 17, 2014. Defendant filed a Reply Memorandum on December 15, 2014.
This Court has jurisdiction to consider this Motion pursuant to 28 U.S.C. § 1331.
A. Plaintiff's Claims
Plaintiff filed this lawsuit pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), alleging claims of retaliation, hostile work environment, and disparate treatment. Specifically, Plaintiff alleges that the Federal Emergency Management Agency ("FEMA") discriminated and retaliated against him when it fired him from a position as a local hire.
Plaintiff was hired by FEMA in December 2005 and began working in the Community Relations Department assisting Hurricane Katrina victims. In April of 2006, Plaintiff transferred from the Community Relations Department to the Public Assistance Department.
Plaintiff alleges that, following his transfer, he was told he had not followed the proper procedure to be transferred to the Public Assistance Department. Plaintiff alleges he was labeled as a "troublemaker" because he, unknowingly, did not follow the proper transfer procedure. Plaintiff contends that because of this label, he was prevented from applying for CORE positions and that he was assigned to work in deplorable conditions.
In November of 2007, Plaintiff participated in an alternative dispute resolution session in which he complained about the agency's hiring practices. The record reveals that he complained to Ms. Tonda Scott about FEMA's hiring practices,  but the record is not clear as to the details of Plaintiff's complaints in these sessions or when they took place in relation to the retaliation Plaintiff claims occurred. Plaintiff does not allege that his complaints about FEMA's hiring practices were based on race, color, religion, sex or national origin, the protected classes set forth in 42 U.S.C.A. § 2000e-2(a)).
Plaintiff complains of the following seven issues:
1. On November 28, 2007, the Director of the IA Department (Rafael Roman) sent an email to his subordinate managers in order to employ Disaster Assistance Employees (DAE's) rather than local hires without following federal laws and agency protocol;
2. On December 1, 2007, Juan Parker was reprimanded for finding Mr. Roman's email on the fax machine and providing it to "dog pound" members, who were reprimanded by being separated into single groups;
3. Between November 20 to December 15, 2007, IA managers separated and labeled Plaintiff as a member of the Dog Pound, then isolated the Dog Pound members into a department and gave them bottom of the barrel jobs;
4. On March 27, 2008, a DHS/FEMA EEO spreadsheet that contained personally identifiable information was released to DHS/FEMA employees regarding Plaintiff's EEO activity;
5. On May 14, 2008, Plaintiff's supervisor was instructed by upper management to instruct Plaintiff to clean an infested trailer after sending out an email that asked employees not to go into trailers until they had been reported and looked at by management;
6. The agency improperly hired Darrell Edmonds as an ADR representative prior to the closing date for vacancy announcement KAT-08-LATRO-2803-LDC, for the position of Alternative Dispute Resolution (ADR) Advisor. Plaintiff alleges the early closing of this vacancy announcement prevented an equal opportunity for the him to apply for this position;
7. As of July 3, 2008, Plaintiff was not offered a CORE position (for announcement numbers KAT-08-TRP-0018-LN, KAT-08-TRO-12-LN, KAT-08-TRO-0020-LN, KAT-08-TRO-0017-LN, and KAT-08-TRO-7001-JAZ) and was terminated on July 3, 2008.
B. Procedural History
This case was originally brought by Plaintiff in the United States District Court for the Eastern District of Louisiana. Judge Ivan L.R. Lemelle and Magistrate Judge Karen Wells Roby were originally assigned to this matter. On March 24, 2011, the case was reassigned from Magistrate Judge Roby to Magistrate Judge Daniel E. Knowles, III. In October of 2011, the parties consented to trial of the case before Magistrate Judge Knowles. On March 19, 2012, Magistrate Judge Knowles dismissed Plaintiff's action "without prejudice to afford Allen the opportunity to choose the most appropriate forum in which to litigate his claim."
Plaintiff filed a Motion for New Trial and Motion for Reconsideration of Magistrate Judge Knowles' judgment. Magistrate Judge Knowles denied Plaintiff's Motion on June 6, 2012. Plaintiff appealed this decision. The United States Court of Appeals for the Fifth Circuit reversed and remanded the case, finding that the then-Defendants waived their objection to venue by failing to raise the objection in their answer. The Fifth Circuit stated, "[b]ecause a party may seek a §1404(a) transfer of venue after filing its first responsive pleading, and the defendants did so below, we reverse and remand for consideration of whether the case should be transferred."
On remand, Plaintiff filed a Motion for Leave to File an Amended Complaint/Motion to Add Unaddressed Issues. Defendants renewed their Motion to Transfer Case for Forum Non Conveniens.  Oral argument was held on both motions on June 26, 2013. Magistrate Judge Knowles granted Defendants' Motion to Transfer for Forum Non Conveniens and dismissed without prejudice Plaintiff's Motion to Add Unaddressed Issues "for the transferee court to resolve."
This matter was transferred to the United States District Court for the Middle District of Louisiana and assigned to Judge Shelly D. Dick and Magistrate Judge Stephen C. Riedlinger. On August 16, 2013, Magistrate Judge Riedlinger denied Plaintiff's Motion for Leave to File an Amended Complaint/Motion to Add Unaddressed Issues. Magistrate Judge Riedlinger held that Plaintiff had failed to exhaust his administrative remedies before the EEOC on five claims arising from vacancy notices KAT-08-TRO-0012-LN, KAT-08-TRO-0017-LN, KAT-08-TRO-0018-LN, KAT-08-TRO-0020-LN, and KAT-08-TRO-7001-JAZ, and because of Plaintiff's failure to exhaust his administrative remedies, these claims were not properly before the court.
Following Magistrate Judge Riedlinger's ruling, Plaintiff again appealed Magistrate Judge Knowles' decision to transfer the case to the Middle District of Louisiana. The Fifth Circuit dismissed the appeal, holding that the transfer of a civil action to another district court pursuant to § 1404 is interlocutory in nature and not appealable prior to the entry of a final judgment, and that an order denying leave to amend the complaint is also not final or otherwise appealable.
On June 13, 2014, Defendants filed a Motion to Dismiss based upon 42 U.S.C. § 2000(e)-16(c)'s provision that in an action brought under Title VII, the only proper defendant is the head of the federal agency in his or her official capacity. On August 13, 2014, this matter was reassigned to the undersigned. Defendants' Motion to Dismiss was granted as to all Defendants except the agency head, Jeh Johnson.
On June 13, 2014, then-Defendants also filed a Motion for Summary Judgment which the Court now addresses. A status conference was held on September 18, 2014 at which time Plaintiff was ordered to file supplemental briefing regarding the present Motion. Following the filing of Plaintiff's Supplemental Response,  Defendant filed a Motion for Leave to File Reply Brief, which was granted. Defendant's Reply was filed on December 15, 2014.
II. Arguments of Parties
In the instant Motion, Defendant argues that: (1) Plaintiff failed to exhaust his administrative remedies for most claims including, among others, his non-selection for five Louisiana job vacancies which resulted in the expiration of his appointment with FEMA; (2) Plaintiff cannot prove that he suffered retaliation for engaging in protected activity in the form of increased work scrutiny; and (3) Plaintiff cannot prove that he suffered retaliation for engaging in protected activity based on his assignment to clean out an infested trailer, which he ultimately refused to do. Defendant points out that during the EEOC complaint process, Plaintiff did not allege that any of his EEOC complaints arose from his inclusion in a class protected by Title VII, and therefore his participation in making these complaints cannot form the basis of a claim of retaliation under Title VII.
In his Opposition, Plaintiff lists several witnesses who he contends will provide testimony contrary to Defendants' assertions. Plaintiff has attached to his Supplemental Opposition sworn answers of his former co-worker, Malcom Summers, to questions apparently provided by Plaintiff. Mr. Summers, in his sworn answers, states that he recalls Plaintiff's EEOC complaints, but does not state that these complaints are based on any discrimination due to Plaintiff's inclusion in a protected class.
III. Standard of Review
Summary judgment shall be granted when there are no genuine issues of material facts and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56; Celotex v. Carrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id. at 248-49, 106 S.Ct. 2505. In order to grant a motion for summary judgment, the Court must be satisfied "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagra Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505).
The moving party bears the burden of establishing that there are no genuine issues of material fact. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. However, if the dispositive issues is one on which the nonmoving party will bear the burden of proof at trial, the nonmoving party may satisfy the burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the non-moving party's claim. Id. at 325, 106 S.Ct. 2548; Lavaspere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referencing evidence, set out specific facts showing that the genuine issue exists. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. Id. at 325, 106 S.Ct. 2548; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
In an employment discrimination case, the Court must "focus on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff." LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 447-48 (5th Cir. 1996). The Court "must draw all reasonable inferences in favor of the non-moving party, and [the Court] may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
However, the non-movant's burden in a summary judgment motion is not satisfied by conclusory allegations, unsubstantiated assertions, or by a mere scintilla of evidence. Liquid Air Corp., 37 F.3d at 1075. Instead, "[t]he non-movant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim." Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010) (internal quotation marks omitted). If the non-moving party's evidence is "merely colorable" or "not significantly probative, " summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986).
Summary judgment may be improper, even though the basic facts are undisputed, if the ultimate facts in question are to be inferred from them, and the parties disagree regarding the permissible inferences that can be drawn from the basic facts. Winters v. Highlands, 569 F.2d 297, 299 (5th Cir. 1978). "[T]he choice between permissible inferences is for the trier of facts.'" Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir. 1978), quoting, Walker v. U.S. Gypsum Co., 270 F.2d 857, 862 (5th Cir. 1959), cert. denied, 363 U.S. 805 , 80 S.Ct. 1240, 4 L.Ed.2d 1148 (1960). Where a jury is called for, the litigants are entitled to have the jury choose between conflicting inferences from basic facts. Nunez, 572 F.2d at 1124.
A. Failure to Exhaust ...