De-Jesus v. Potter , 211 F. App'x 5 ( 2006 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 06-1046
AMELIA DE JESÚS,
Plaintiff, Appellant,
v.
JOHN E. POTTER, POSTMASTER GENERAL,
UNITED STATES POSTAL SERVICE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Circuit Judge,
Baldock * , Senior Circuit Judge,
and Howard, Circuit Judge.
Nora Vargas-Acosta, with whom Adalina De Jesús-Morales
and De Jesús, Hey & Vargas was on brief, for appellant.
David G. Karro, Attorney, United States Postal Service,
with whom Isabel Muñoz-Acosta, Assistant United States
Attorney, Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Miguel A. Fernández, Assistant United States
Attorney, Chief, Civil Division, was on brief, for appellee.
December 27, 2006
*
Of the Tenth Circuit, sitting by designation.
Baldock, Senior Circuit Judge. Plaintiff Amelia de
Jesús sued her employer Defendant John E. Potter, in his
official capacity as Postmaster General of the United States
of America, for discrimination and retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. The district court granted summary judgment in favor
of Defendant and Plaintiff appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1291. For the reasons that follow
we affirm in part, vacate in part, and remand for further
consideration.
I.
On an appeal from the grant of summary judgment, we
view the facts in the light most favorable to the nonmoving
party. See Feeney v. Correctional Medical Services, Inc.,
464 F.3d 158, 161 (1st Cir. 2006). We recite the facts as
found by the district court and supported by the record
adding a few undisputed details gleaned from the record.
Plaintiff is a Hispanic woman, born in New York to
Puerto Rican parents. Plaintiff has been a United States
Postal Service employee from May 1981 through the present
date. During the time relevant to this case, Plaintiff
worked at the Postal Service Air Mail Facility in Carolina,
Puerto Rico (the Caribbean Branch), as Transportation
Contracts Manager of the Caribbean district. Since 2000,
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Plaintiff’s position has been classified as EAS Level 25. 1
The Caribbean Branch office is part of the New York Metro
Area Distribution Networks Office (“NY Metro DNO”). NY
Metro DNO is divided into two sectors: Networks functions
and Transportation Contracts functions. Plaintiff reports
to Postal Service Headquarters in Washington D.C. and also
to her supervisor, Stuart Gossoff, at the NY Metro DNO, who
among other things, is responsible for overseeing the
Networks and Transportation Contracts functions of the NY
Metro DNO. Plaintiff is the only female manager out of
twelve DNO managers nationwide. She is one of three
managers in the NY Metro DNO.
In her capacity as Transportation Contracts Manager
of the Caribbean district, Plaintiff is officially
responsible for Transportation Contracts functions work. In
addition, because she is physically present in the Caribbean
Branch office, she has been responsible for day-to-day
management of the Networks function for the Caribbean
district. She has two counterparts in the NY Metro DNO:
Mark Stein, who works on Networks and is officially the
Networks supervisor for the Caribbean district, and Héctor
Martínez, who works on Transportation Contracts.
1
EAS refers to the Executive and Administrative System of
pay and grade. The higher the EAS level, the higher the pay
range and grade.
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In April 2003, the Postal Service instituted a
nationwide Area Office Distribution Networks Realignment
Program. The realignment only affected the Networks
functions of the DNOs. 2 The realignment created four new
positions of Senior Networks Operations Analyst EAS Level
23, and fourteen Senior Networks Operations Analyst EAS
Level 21 to be allocated to the NY Metro DNO. Stein was
in charge of selecting employees to fill these positions.
Stein instructed Networks functions employees ranked lower
than EAS 21 to apply for the new positions. The Caribbean
Branch office had two such employees: Jorge Antongiorgi and
Felix Torres.
Plaintiff learned Stein announced at a meeting that
none of the EAS Level 21 or 23 positions would be assigned
to the Caribbean Branch office. 3 Plaintiff contacted Gossoff
to express her discontent. Plaintiff complained about being
excluded from participating in the decision concerning the
distribution of the newly created positions as well as the
selection of employees to fill those positions. Plaintiff
2
The realignment plan left unaffected staffing conditions
on the Contracts functions.
3
Antongiorgi applied and was granted an interview for a
EAS 21 position. During the interview, Stein asked
Antongiorgi whether if selected for the position he would be
willing to relocate to New York. Antongiorgi expressed an
unwillingness to relocate and, consequently, was not offered
the position.
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also expressed her disagreement with the decision not to
assign any of the new positions to the Caribbean Branch
office. Plaintiff told Gossoff she believed the actions
were discriminatory. Gossoff informed Plaintiff that the
nature of the Caribbean district operations, including the
volume of mail distributed in the Caribbean and the type of
Networks Transportation, did not warrant any EAS Level 21 or
23 positions when comparing those factors with New York
operations. Contemporaneously, Plaintiff complained to
Gossoff about allegedly derogatory statements he had made
and that other managers had made in his presence concerning
members of the Caribbean Branch office.
According to Plaintiff, prior to the April 2003
realignment, Plaintiff supervised three employees: Torres,
an EAS Level 19 Networks Specialist; Antongiorgi, who was
also an EAS Level 19 Networks Specialist but did some
Contracts work; and Concepción González, an EAS Level 19
Contracts Specialists. It is undisputed the Senior Networks
Operation Analyst EAS Level 23 positions were created so
that the EAS Level 25 area networks office managers would
not have to directly oversee EAS Level 21 and EAS Level 19
employees on a day-to-day basis. After the realignment
Torres and Antongiorgi were assigned to report to Danny
Farino, an EAS Level 23 Senior Networks Analyst in the New
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York Metro DNO. Nevertheless, Plaintiff’s day-to-day duties
and responsibilities over these Networks function employees
were left unaffected. Even though on paper the two
employees were under Farino’s supervision, according to
Plaintiff, they still reported to her. Following the
implementations of the realignment, however, Torres retired.
At Plaintiff’s request, Torres’s position was converted into
a Contracts position now occupied by Noemí Carrión. Carrión
and González work directly under Plaintiff’s supervision.
After exhausting all her administrative remedies,
Plaintiff brought this action claiming Defendant
discriminated against her on account of her sex and national
origin in violation of Title VII by (1) excluding her from
an important managerial decision, (2) removing members of
her staff from under her supervision, (3) failing to assign
newly created positions to the Caribbean Branch Office, and
(4) making and tolerating derogatory comments alluding to
her national origin. Plaintiff also claimed Defendant
retaliated against her after she complained of
discrimination by ceasing to communicate directly with her.
Following the conclusion of discovery, Defendant moved for
summary judgment. The district court granted summary
judgment to Defendant on all claims concluding Plaintiff did
not suffer an adverse employment action.
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II.
We review the district court order granting summary
judgment de novo. See Thore v. Howe, 466 F.3d 173, 178 (1st
Cir. 2006). The purpose of summary judgment is to pierce
the pleadings and assess the proof to determine if there is
a genuine need for trial. Thus, summary judgment is proper
“if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(c). To overcome
summary judgment, the nonmoving party must rebut such a
showing by presenting sufficient evidence from which a jury
could reasonably find in its favor. Davric Maine Corp. v.
Rancourt, 216 F.3d 143, 147 (1st Cir. 2000).
A.
Title VII makes it unlawful for a federal employer
to discriminate against an employee on the basis of the
employee’s “sex, or national origin.” 42 U.S.C. § 2000e-
16(a). Absent direct evidence of discrimination, an
employee may proceed to prove her case using the McDonnell
Douglas burden-shifting framework. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this well-known
analytical framework, an employee has the initial burden of
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coming forward with sufficient evidence to establish a prima
facie case of discrimination. To do so, an employee must
show, among other things, she suffered an adverse employment
action. See Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 54 (1st Cir. 2000) (sex discrimination);
Feliciano de la Cruz v. El Conquistador Resort and Country
Club, 218 F.3d 1, 5 (1st Cir. 2000) (national origin
discrimination). Generally, an adverse employment action
involves a discrete change in the terms and conditions of
employment, such as “hiring, firing, failing to promote,
reassignment with significantly different responsibilities,
or a decision causing significant change in benefits.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998); accord Gu v. Boston Police Dep’t, 312 F.3d 6, 14
(1st Cir. 2002) (“To be adverse, an action must materially
change the conditions of plaintiffs’ employ.”). A
materially adverse change in the terms and conditions of
employment “must be more disruptive than a mere
inconvenience or an alteration of job responsibilities.”
Marrero v. Goya of P.R., 304 F.3d 7, 23 (1st Cir. 2002).
Plaintiff argues she suffered the following adverse
employment actions: (1) Defendant excluded her from a major
managerial decision, (2) Defendant removed two employees
from under her supervision, and (3) Defendant failed to
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assign any EAS Level 21 and 23 positions to the Caribbean
Branch office. After reviewing the record before us, we
agree Plaintiff did not suffer an adverse employment action.
Plaintiff presented no evidence the allegedly adverse
employment actions materially changed the terms and
conditions of her employment.
Plaintiff’s exclusion from one managerial decision
is insufficient to constitute a material change in the terms
and conditions of her employment. See Gu, 312 F.3d at 14;
see also Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 169
(3d Cir. 2001) (concluding exclusion from committees, hiring
decisions, a single staff meeting, and a single supervisor
seminar insufficiently severe to alter conditions of
employments so as to make employment unbearable). As we
noted elsewhere, “if an employee finds herself . . . without
a voice in major decisions, this could constitute an adverse
employment action.” Gu, 312 F.3d at 14 (emphasis added).
Plaintiff, however, presented no evidence she was
subsequently excluded from other managerial decisions. More
importantly, Plaintiff presented no evidence the terms and
conditions of her employment included a right to participate
in the decision. The record reflects that at all times
relevant to this case Stein was officially the Networks
functions supervisor of the Caribbean district and, as such,
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responsible for the Networks employees in the NY Metro DNO.
While Plaintiff’s physical presence in Puerto Rico allowed
her to exert some supervisory authority over Networks
functions employees in the Caribbean Branch office, the
realignment of the Networks functions of the NY Metro DNO
(including the Caribbean district) involved matters beyond
day-to-day management that fell outside the purview of
Plaintiff’s duties and responsibilities.
Plaintiff also did not suffer an adverse employment
action as a result of Farino’s new supervisory role over
Antongiorgi and Torres. Plaintiff alleges she lost direct
supervisory authority over these employees as a result of
the realignment, but as explained, Stein, not Plaintiff, was
the official supervisor of the Networks employees in the
Caribbean Branch. It is undisputed that while Farino became
Antongiorgi and Torres’s official supervisor, Plaintiff
maintained her day-to-day supervisory role over these
employees after the realignment took effect. Therefore, the
status quo remained unaffected. See id. (noting that only
a dramatic decrease in supervisory authority may constitute
an adverse employment action). Moreover, shortly after the
realignment, Torres retired and at Plaintiff’s request his
position was converted into a Contracts position, which
Carrión currently occupies. Thus, as things currently stand
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Plaintiff officially supervises two Contracts employees, one
more employee under her official supervision than she did
prior to the realignment.
Plaintiff also argued she suffered an adverse
employment action as a result of Defendant’s failure to
assign the higher level position to the Caribbean Branch
office because according to Plaintiff, “the number of
employees assigned to supervise are criteria considered in
qualifying candidates for promotions[.]” Title VII,
however, does not guarantee a promotion. “Congress did not
intend by Title VII, however, to guarantee a job [or a
promotion] to every person regardless of qualifications. In
short, the Act does not command that any person be hired [or
promoted] simply because he was formerly the subject of
discrimination, or because he is a member of a minority
group.” McDonnell-Douglas Corp., 411 U.S. at 800-01.
Moreover, Plaintiff presented no evidence Defendant’s
failure to assign the newly created positions to the
Caribbean Branch office diminished her chances to be
promoted. See Serna v. City of San Antonio, 244 F.3d 479,
(5th Cir. 2001) (finding no adverse employment action where
the plaintiff presented no objective evidence his chances
for promotion were reduced by employer’s act). To prevail
on summary judgment the nonmoving party must do more than
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rest upon merely “conclusory allegations, improbable
inferences, and unsupported speculations.” Quiñones v.
Buick, 436 F.3d 284, 289 (1st Cir. 2006).
After the realignment was implemented, Plaintiff
was still employed as Transportation Contracts Manager of
the Caribbean district, her EAS ranking and pay were
unaffected, and her supervisory authority and day-to-day
managerial duties and responsibilities remained the same.
Therefore, the district court did not err in granting
summary judgment to Defendant on Plaintiff’s Title VII claim
of discrimination. 4
4
In addition to Plaintiff’s disparate treatment claim,
Plaintiff also brought a disparate impact claim alleging
Defendant’s practice as it relates to excluding the
Caribbean Branch from being assigned EAS Level 21 and 23
positions constitutes national origin discrimination.
According to Plaintiff, Stein’s decision to exclude “Puerto
Rico from higher grade levels, has an adverse impact on all
the employees of the Caribbean Branch . . . in terms of
their professional advancements and development[,]” and on
Plaintiff in terms of “her career development[.]”
Plaintiff’s disparate impact claim fails for two
reasons. As discussed, Plaintiff presented no evidence she
was not promoted as a result of Defendant’s decision not to
assign the newly created positions to the Caribbean Branch.
Plaintiff’s claim also fails insofar as she attempts to step
into the shoes of the Caribbean employees who were allegedly
discriminated against as a result of Defendant’s act.
Plaintiff lacks standing to bring a claim on behalf of the
Caribbean employees allegedly affected by Defendant’s act.
To have standing, a plaintiff must allege some personal
injury fairly traceable to the defendant’s allegedly
unlawful conduct, which she has not done here. See Baena v.
KPMG LLP, 453 F.3d 1, 4 (1st Cir. 2006) (citing Valley Forge
Christian Coll. v. Americans United for Separation of Church
(continued...)
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B.
As part of her claim of discrimination, Plaintiff
also alleged she suffered an adverse employment action when
Gossoff made derogatory comments and tolerated other
employees who made derogatory comments alluding to
Plaintiff’s national origin. The district court correctly
recognized that traditionally these allegations are put
forward as a hostile work environment claim. Discrimination
based on sex or national origin that creates a hostile work
environment violates Title VII. See Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993). Plaintiff makes the
following allegations of derogatory language: (1) Gossoff
once referred to the Caribbean Branch employees as “you
people,” (2) Stein once stated in reference to mail coming
from Puerto Rico as mail “coming off of the banana boat,”
and (3) a NY Metro employee once stated the employees in
Puerto Rico were like blind musicians Ray Charles and José
Feliciano.
Assuming discriminatory animus toward Puerto Ricans
was the motivation for these comments, they are
insufficient, as a matter of law, to create a hostile work
environment. “[S]imple teasing, offhand comments, and
4
(...continued)
and State, Inc., 454 U.S. 464, 472 (1982)). Therefore,
Plaintiff cannot prevail on her disparate impact claim.
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isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions
of employment.” Faragher v. City of Boca Raton, 524 U.S.
775, 787-88 (1998). A working environment must be
“permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the
terms and conditions of victim’s employment” to be
actionable under Title VII. Id. at 21. Therefore, the
district court did not err in finding the alleged derogatory
remarks could not establish a hostile work environment.
C.
Plaintiff also brought a claim under Title VII for
retaliation alleging that after she complained to Gossoff,
he stopped communicating directly with her. According to
Plaintiff, Gossoff began communicating with Plaintiff
through employees ranked lower than her. The district court
found Plaintiff’s alleged retaliatory act did not rise to
the level of an adverse employment action. While this
appeal was pending, however, the Supreme Court decided
Burlington N. & Santa Fe Ry. Co. v. White, 548 __ U.S. __,
126 S. Ct. 2405 (2006), changing the legal standard to be
applied to claims of retaliation brought under Title VII.
We express no opinion as to how this issue should be
resolved. We think it proper to allow the district court to
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first address this issue in light of Burlington.
Accordingly, we remand to the district court Plaintiff’s
Title VII retaliation claim. 5
Affirmed in Part, Vacated in Part, and Remanded in
Part.
5
Plaintiff also argues the alleged acts of discrimination
discussed above are also acts of retaliation because in 1997
she engaged in protected activity by filing a complaint of
discrimination against the Postal Service. We find
Plaintiff’s argument unpersuasive. All the alleged acts of
discrimination occurred in 2003. Plaintiff presented no
evidence of a casual connection between the adverse
employment actions in 2003 and the protected activity in
1997, nor can we reasonably infer any such evidence. See,
e.g., Centro Medico del Turabo, Inc. v. Feliciano de
Melecio, 406 F.3d 1, 11 n.5 (1st Cir. 2005) (citing cases
holding too much time between protected activity and
retaliatory act undermines argument of a causal connection).
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