Glen Perry v. Secretary Army , 332 F. App'x 728 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-5-2009
Glen Perry v. Secretary Army
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3339
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 08-3339
____________
GLEN J. PERRY,
Appellant,
v.
FRANCIS J. HARVEY, SECRETARY
OF THE UNITED STATES ARMY,
Appellee.
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 06-cv-05386)
District Judge: Honorable Noel L. Hillman
____________
Submitted Under Third Circuit LAR 34.1(a)
June 2, 2009
Before: McKEE, HARDIMAN, and GREENBERG, Circuit Judges.
(Filed: June 05, 2009 )
____________
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 civilian 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 and calling him a “rat,” “traitor,” “lacky,” and “fink Uncle Tom.” This was the
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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 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a). Perry’s federal complaint
also challenged the MSPB’s decision to uphold his termination. The District Court
granted summary judgment for the Army on all claims and Perry appeals. 1
II.
In reviewing a motion for summary judgment, we view the record and draw
inferences in the light most favorable to the nonmoving 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 alter the conditions of [his] employment and create an
abusive working environment.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
1
The District Court had jurisdiction over Perry’s Title VII claims under 28 U.S.C. § 1331,
and jurisdiction to review the MSPB’s decision under 42 U.S.C. § 2000e-16(c) and 5
U.S.C. §§ 7702-7703. We have appellate jurisdiction under 28 U.S.C. § 1291.
3
116 (2002) (quotations omitted). Moreover, the discrimination must be both subjectively
and objectively detrimental to the victim. See Weston v. Pennsylvania, 251 F.3d 420, 426
(3d Cir. 2001). In assessing the severity of alleged discriminatory treatment, “we
consider the totality of the circumstances;” our analysis “must concentrate not on
individual incidents, but on the overall scenario.” Caver v. City of Trenton, 420 F.3d 243,
262-63 (3d Cir. 2005) (quotations and citations omitted). “[O]ffhanded comments and
isolated incidents (unless extremely serious) are not sufficient to sustain a hostile work
environment claim. Rather, the conduct must be extreme to amount to a change in the
terms and conditions of employment.” Id. at 262 (quotations and citations omitted). Title
VII is not a “general civility code . . . [T]he ordinary tribulations of the workplace, such
as the sporadic use of abusive language, gender-related jokes, and occasional teasing” do
not support a hostile work environment claim. Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998) (quotation omitted).
In this case, most of the evidence upon which Perry relies is not probative of
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 was 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
4
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
against 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 “refer 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
are 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
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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
“detrimentally affect a reasonable person . . . in that position,” Weston, 251 F.3d at 426.
Perry’s hostile work environment claim boils down to allegations that over the course of
10 months, Graham-Morris denied a leave request, lied to him about a meeting, requested
verification of a drug test, and called him “boy.”
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 not 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 (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 hostile work environment.
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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 adverse 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 and, 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 case because the survey does not
qualify as protected activity.2 Title VII’s retaliation provision prohibits discriminating
2
Moreover, it is questionable whether Graham-Morris’s conduct rises to the level
of adverse employment action, even under the more lenient standard articulated in
Burlington N. & Santa Fe Ry.Co. V. White, 548 U.S. 53, 68 (2006). “An employee’s
decision to report discriminatory behavior cannot immunize that employee from those
petty slights or minor annoyances that often take place at work and that all employees
experience. . . . [N]ormally petty slights, minor annoyances, and simple lack of good
manners will not [support a retaliation claim].” 548 U.S. at 68.
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against an employee “because he has opposed any practice made an unlawful employment
practice by [the statute].” 42 U.S.C. § 2000e-3(a). An informal complaint may qualify as
protected activity if it “protest[s] what an employee believes in good faith to be a
discriminatory practice.” Aman v. Cort, 85 F.3d 1074, 1085 (3d Cir. 1996). In other
words, a retaliation plaintiff must show that “he was acting under a good faith, reasonable
belief that a violation existed” when he voiced a grievance. Id. “To determine if
retaliation plaintiffs sufficiently ‘opposed’ discrimination, we look to the message being
conveyed rather than the means of conveyance.” Moore, 461 F.3d at 343 (quotation
omitted). Although informal complaints may suffice, “the employee’s ‘opposition’ to
unlawful discrimination must not be equivocal [or vague].” Id. at 341-43.
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
8
n.4. But the survey makes only 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 Perry’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 case of retaliation because it does not rise
to the level of protected activity.
To the extent that Perry claims he was fired in retaliation for his inflammatory e-
mail 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 reasonably 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, supporting a causal inference between
Perry’s opposition to racial discrimination and his termination. Nevertheless, the Army
rebuts Perry’s prima facie case with legitimate, nonretaliatory reasons for his termination.
9
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 yourself
that.”).3 On appeal, Perry presents no argument whatsoever that these reasons are
pretextual. See Appellant’s Br. at 23-24 (confining retaliation argument to elements of
the prima facie case). Although Perry’s brief implies a factual dispute concerning the
material found in Sanders’s mailbox, he has effectively admitted responsibility by
alleging in his complaint that the MSPB violated his First Amendment rights by firing
him for the material.4 See App. at 54. Because Perry fails to cast doubt upon the
legitimate reasons for his termination proffered by the Army, we will affirm summary
judgment on this claim as well.
3
Perry’s written termination also cited false statements he made in an EEOC
affidavit and misuse of his Government computer in downloading the offensive material
found in Sanders’s mailbox.
4
The District Court did not address this argument and Perry does not raise it on
appeal.
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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 coworkers, 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. We
will affirm summary judgment on this claim as well.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
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