Keith Ullrich v. Secretary Department of Vetera

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 11-1826
KEITH ULLRICH,
Appellant,
V.
UNITED STATES SECRETARY
OF VETERANS AFFAIRS
On Appeal from the United StateS District Court
for the Middle District of Pennsylvania
(D.C. No. 3:09-cv-16()5)
DiStrict Judge: Honorab1e A. Richard Caputo
Subrnitted Under Third Circuit LAR 34.1(a)
December 9, 2011
Before: HARDIMAN, BARRY, Cz'rcuz'2‘ .]udges,
and RUFE,* Disz‘rict .]udge
(Fi1ed: January 10, 2012)
OPINION OF THE COURT
*The Honorable Cynthia M. Rufe, United StateS District Judge for the Eastern DiStrict of
Pennsylvania, sitting by designation
RUFE, Dz``strz``ct Judge.
This is an employment discrimination case brought under the federal sector
provisions of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-
16, and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C.
§ 633a. Keith Ullrich appeals the March 8, 2011 Order of the District Court for the
l\/[iddle District of Pennsylvania granting summary judgment in favor of Ullrich’s
employer, the United States Secretary of Veterans Affairs ("the VA"). For the reasons
that follow, we affinn the District Court’s order granting summary judgment in favor of
the VA.
I.
Because we write primarily for the benefit of the parties, we recite only those facts
which are essential to our analysis; these facts are undisputed unless otherwise noted.
Appellant, Keith Ullrich, has been employed by the Wilkes-Barre Veterans Affairs
l\/Iedical Center ("VAMC") as the Safety and Occupational Health l\/lanager since l993.
Ullrich is the biological father and partial physical custodian of a minor daughter, whose
mother, Judith O’Leary, is also an employee of the Wilkes-Barre VAMC. At the time of
the incidents in question, there was in effect a 2007 Wyoming County, Pennsylvania,
Court of Common Pleas custody order ("Custody Order") specifying that "neither party
shall take their daughter to their place of employment, except to an event sanctioned by
said employer." (Supp. App. 52.)
l
On the morning of January 6, 2()()9, Ullrich took his daughter to school, only to
discover that the school was closed due to inclement weather. Ullrich called his
immediate supervisor Cassandra Davis, Chief of Facilities Management at the VAl\/lC,
and asked permission to bring his daughter into work until his parents could pick her up
and take her home. Davis gave Ullrich permission to bring his daughter to the VAl\/lC,
and he did so for a brief period of time. Later that day, O’Leary complained to VAl\/lC
police sergeant Ted Gabriel that Ullrich had violated the Custody Order by bringing their
daughter to work. On or about January 7th or 8th, Mark Donnelly, Chief of VAMC
Police, questioned Ullrich about the incident and the Custody Order. Donnelly maintains
that Ullrich told him there was no such order in effect. (Supp. App. 27, 1111 10-l2.)
Ullrich insists that, contrary to Donnelly’s recollection, he admitted to Donnelly that
there was a Custody Order.
At some point toward the end of January or the beginning of February, O’Leary
contacted Janice Boss, Director of the VAMC, to complain that Ullrich had violated the
Custody Order by bringing their daughter to work, and that the VAMC was "aiding and
abetting" Ullrich in violating the Order. (Supp. App. 47-48, 11 5.) Boss attests that she
had known about the Custody Order when it was issued in 2007, but had forgotten the
Order eXisted. (Supp. App. 48, 111 6-7.) In response to O’Leary’s complaint, Boss spoke
to Donnelly, who reported that Ullrich had denied there was such an order. Troubled by
what seemed to be Ullrich’s dishonesty, Boss met with Ullrich and his supervisor Davis
to ask if Ullrich had told Donnelly about the Order; Ullrich replied that he had. Boss
asked Davis to look into the matter further, to determine whether Ullrich had, in fact, lied
2
to Donnelly. Davis met with Ullrich and again asked if he had concealed the Custody
Order from Donnelly; Ullrich apparently responded, "No. Mark knows all about it,"
(Supp. App. 32, 11 13.) Davis then spoke to Donnelly, who confirmed that Ullrich had
denied the existence of the Order during their January conversation. Davis spoke twice
more to Ullrich, who continued to insist that he had told Donnelly about the Order. Davis
attests that, after speaking to all involved, she believed Donnelly’s version of events
rather than Ullrich’s. Davis and Boss then consulted the VAl\/1C’s Labor
Relations/Employee Relations Section to determine whether and how Ullrich should be
disciplined. On March 13, 2()()9, Davis proposed that Ullrich receive a five-day
suspension without pay for "lack of candor when answering questions regarding whether
or not a court order existed prohibiting bringing your daughter onto the Wilkes-Barre
VAMC premises." (Supp. App. 37-38.)
Ullrich was given the opportunity to respond to the proposed suspension, and he
did so in a lengthy letter, maintaining that he had been entirely candid with Donnelly,
Davis and Boss about the Custody Order. In addition, Ullrich questioned the VAMC’s
right to interfere in a civil custody matter and suggested that the investigation and
proposed suspension was part of a larger management agenda to harass him and other
employees "who have recently filed formal EEO actions against VAMC Management
and against [l\/ls. Davis1 specifically." (Supp. App. 42.) Shortly thereafter, Ullrich’s
attorney also responded to the proposed suspension by letter, reiterating his client’s
position that the investigation and disciplinary action were unfounded, were taken against
3
Ullrich with a discriminatory purpose, and constituted harassment. On April 23, 2009,
Davis suspended Ullrich for five days without pay for "lack of candor."
Ullrich filed a civil action in the District Court for the l\/Iiddle District of
Pennsylvania on August 19, 2009, asserting claims under Title VII and the ADEA for sex
and age discrimination, retaliation for prior protected EEO activity, and hostile work
environment. After what appears to have been very limited discovery, the VA filed a
motion for summary judgment on January 3, 2011, which the District Court granted on
l\/[arch 8, 2011.
As an initial matter, the District Court held that Ullrich had failed to counter the
VA’s Statement of Material Undisputed Facts in the manner required by l\/Iiddle District
of Pennsylvania Local Rule of Civil Procedure 56.1, and deemed the VA’s version of the
facts admitted for purposes of the summary judgment motion. The District Court then
held that Ullrich had (1) failed to establish a prima facie case of age or sex discrimination
because he put forth no evidence giving rise to an inference of discrimination; and (2)
failed to make out a prima facie case of retaliation because he put forth no evidence
establishing a causal connection between his suspension and any protected activity. The
District Court further held that, even assuming Ullrich had made out a prima facie case of
discrimination or retaliation, he had produced no evidence of pretext with which to
challenge the VA’s proffered legitimate non-discriminatory reason for his suspension.
Finally, the District Court held that Ullrich had failed to present evidence of
discrimination or harassment severe or pervasive enough to state a claim for hostile work
environment.
4
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § l29l. Our review of
an order granting summary judgment is plenary; therefore, we apply the same standard as
the District Court to determine whether summary judgment is appropriate. Sz‘a2‘e Aut0
Pr0p. & Cas. Ins. C0. v. Pr0 Desz``gn, P.C., 566 F.3d 86, 89 (3d Cir. 2009) (citing N0rf0lk
S. Ry. C0. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008)). We generally give
deference to a district court’s interpretation of its own local rules. G0v ’t of V.I. v. Mills,
634 F.3d 746, 750 (3d Cir. 2011).
III.
Summary judgment is appropriate "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).1 A disputed fact is "material" if it could affect the outcome of the
suit, given the applicable substantive law. Ande1/son v. Lz``be1/ly L0bby, Inc., 477 U.S. 242,
248 (1986). And a dispute about a material fact is "genuine" if the evidence presented "is
such that a reasonable jury could return a verdict for the nonmoving party." Id.
1 The District Court cited an earlier version of Federal Rule of Civil Procedure 56, which
stated that summary judgment was appropriate 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 . . . ." Fed. R. Civ. P. 56(c)(2) (2010).
Amendments to Rule 56 effective December l, 2010, changed the operative language
slightly, to require a "genuine dispute as to any material fact," but these amendments did
not alter the standard for granting summary judgment. See Fed. R. Civ. P. 56, Advisory
Comm. Note (2010 Amendments).
5
In evaluating a summary judgment motion, a court "must view the facts in the
light most favorable to the non-moving party," and make every reasonable inference in
that party’s favor. Hugh v. ButIer Cnly. Famz``ly YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Nonetheless, the party opposing summary judgment must support each essential element
of the opposition with concrete evidence in the record. Cel0tex C0rp. v. Catrett, 477 U.S.
317, 322-23 (1986). This requirement upholds the underlying purpose of the rule, which
is to avoid a trial "in cases where it is unnecessary and would only cause delay and
expense." G00dman v. Mead J0hns0n & C0., 534 F.2d 566, 573 (3d Cir. 1976).
Therefore, if, after making all reasonable inferences in favor of the non-moving party, the
court determines that there is no genuine issue of material fact, summary judgment is
appropriate. Cel0tex, 477 U.S. at 322; Wism``ewskz' v. J0hns-Manville C0rp., 812 F.2d 81,
83 (3d Cir. 1987).
A plaintiffs mere belief or contention that he was subject to discrimination is not
enough to create a dispute of material fact sufficient to survive summary judgment. See
Lexz``ngZ0n Ins. C0. v. W. Pa. H0sp., 423 F.3d 318, 333 (3d Cir. 2005) (holding that
speculation is not sufficient to defeat a motion for summary judgment). As we have said
before, "summary judgment is essentially ‘put up or shut up’ time for the non-moving
party: the non-moving party must rebut the motion with facts in the record and cannot
rest solely on assertions made in the pleadings, legal memoranda, or oral argument."
Berckeley 11/zv. Grp., Ltd. v. COIkz``It, 455 F.3d 195, 201 (3d Cir. 2006).
6
IV.
A. Middle District of Pennsylvania Local Rule 56.1
First, we address Ullrich’s contention that the District Court erred in deeming the
facts contained in the VA’s Statement of Material Undisputed Facts "admitted" pursuant
to Middle District of Pennsylvania Local Rule 56.1 ("Local Rule 56.1"). Local Rule 56.1
provides that:
A motion for summary judgment filed pursuant to Fed. R. Civ. P.
56, shall be accompanied by a separate, short and concise statement
of the material facts, in numbered paragraphs, as to which the
moving party contends there is no genuine issue to be tried. The
papers opposing a motion for summary judgment shall include a
separate, short and concise statement of the material facts,
responding to the numbered paragraphs set forth in the statement
required [above1, as to which it is contended that there exists a
genuine issue to be tried. Statements of material facts in support of,
or in opposition to, a motion shall include references to the parts of
the record that support the statements All material facts set forth in
the statement required to be served by the moving party will be
deemed to be admitted unless controverted by the statement required
to be served by the opposing party.
Although Ullrich filed a Response to the VA’s Statement of Material Facts, in
which he "admitted" or "denied" each numbered paragraph in the VA’s Statement, he did
not support his responses with any citations to the record. Consequently, the District
Court held that Ullrich had "failed to adequately counter [the VA’s Statement], as per
Local Rule 56.1," and deemed the VA’s facts admitted
As we have noted in reviewing similar procedural rules in other district courts,
such local rules are permissible so long as district courts do not use them to bypass the
merits analysis required by Federal Rule of Civil Procedure 56. Anch01/age Ass0cs. v.
7
V.1. Bd. of T ax Review, 922 F.2d 168, 175 (3d Cir. 1990). Federal Rule 56 explicitly
requires the party asserting the absence or existence of a genuinely disputed fact to
support that assertion by citing to specific parts of the record. Fed. R. Civ. P. 56(c)(1). A
court may consider other materials in the record, but need only consider cited materials,
Fed. R. Civ. P. 56(c)(3), and may consider undisputed any fact not properly addressed by
the party opposing it. Fed. R. Civ. P. 56(e).
We agree with the District Court that Ullrich’s response is woefully lacking in
citations to the record (nor can we find any evidence that Ullrich attempted to expand the
record beyond the VA’s submissions with depositions or affidavits that support his own
position) and fails to conform with Local Rule 56.1. But it is evident from the pleadings,
the briefing and Ullrich’s few supporting documents that Ullrich disputes that he lied to
Donnelly about the existence of the Custody Order, disputes the VA’s determination that
he showed "lack of candor," and believes he was disciplined for discriminatory or
retaliatory reasons. Although the District Court deemed the VA’s facts admitted, it is
apparent that the Court based its decision on all the evidence before it.
B. Sex and Age Discriminati0n
Section 2000e-16 of Title VIl, pertaining to nondiscrimination in federal
government employment, provides that "[a]ll personnel actions affecting employees or
applicants for employment . . . shall be made free from any discrimination based on race,
color, religion, sex, or national origin." 42 U.S.C. § 2000e-16. In almost identical
8
language the ADEA prohibits employment discrimination based on age, for individuals
over the age of forty. 29 U.S.C. § 633a.
The same evidentiary framework is used to evaluate claims of discrimination
based upon sex and age. Where, as here, a plaintiff has adduced no direct evidence of
discrimination based on his sex or age, the familiar McD0nnell D0uglas burden-shifting
analysis is used to evaluate the claims. See McD0nnell D0uglas C0rp. v. Green, 411 U.S.
792, 802 (1973); see also Wz'shkz``n v. P0z‘2‘er, 476 F.3d 180, 185 (3d Cir. 2007) (citing
Nev1/man v. GHS Oste0paI//zz``c, 11/zc., 60 F.3d 153, 157 (3d Cir. 1995) ("ADEA and Title
VII . . . serve the same purpose . . . . [t]herefore it follows that the methods and manner of
proof under one statute should inform the standards under the other[] as well")).2
Under McD0nnell D0aglas, a plaintiff bears the initial burden of establishing a
prima facie case of discrimination, the existence of which is "a question of law that must
be decided by the court." Wz``shkz``n, 476 F.3d at 185. If a plaintiff establishes his prima
facie case, the burden shifts to the employer to "articulate some legitimate,
nondiscriminatory reason for the [adverse employment action]. . . . The plaintiff then
must establish by a preponderance of the evidence that the employer’s proffered reasons
were merely a pretext for discrimination, and not the real motivation for the unfavorable
job action." Sarull0 v. U.S. P0sz‘al Serv., 352 F.3d 789, 797 (3d Cir. 2003) (per cariam);
2 The Supreme Court "has not definitively decided whether the evidentiary framework of
McD0nnell D0aglas . . . utilized in Title VII cases is appropriate in the ADEA context."
Gr0ss v. FBL Fz``n. Servs., Inc., 557 U.S. 167, ---, 129 S. Ct. 2343, 2349 n.2 (2009).
However, we have already concluded that Gr0ss does not conflict with our continued
application of the McD0nnell D0uglas paradigm in age discrimination cases. Smz'z‘h v.
Cily 0fAllem‘0wn, 589 F.3d 684, 691 (3d Cir. 2009).
9
see also Keller v. Orix Crea'z'z‘Alliance, 1nc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en
banc) (ADEA). A plaintiff may evince pretext, and so defeat a motion for summary
judgment, by either "(i) discrediting the proffered reasons, either circumstantially or
directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination
was more likely than not a motivating or determinative cause of the adverse employment
action" FuenZes v. Perskz``e, 32 F.3d 759, 764 (3d Cir. 1994).
To establish a prima facie case of age or sex discrimination under a disparate
treatment theory, a plaintiff must demonstrate that: (1) he was within the protected class;
(2) he was qualified for the position; (3) he was subject to an adverse employment action;
and (4) the adverse action occurred under circumstances that could give rise to an
inference of intentional discrimination. Makky v. Cherz‘0jj”, 541 F.3d 205, 214 (3d Cir.
2008y3
lt is undisputed that Ullrich, who was over the age of forty when his suspension
took place, is fully qualified for his position as Safety & Occupational Health l\/lanager,
and a five-day suspension without pay is an adverse employment action sufficient to
satisfy the third requirement of a prima facie case. See Wes2‘0n v. Pennsylvam'a, 251 F.3d
3 Discrimination might be inferred, for example, from the fact that a similarly situated
employee who was not within the protected class was treated more favorably, see, e.g.,
J0nes v. Sch. Dz``st. 0fP//zz``Ia., 198 F.3d 403, 413 (3d Cir. 1999) (Title V1I), or in an ADEA
case, that a plaintiff s replacement was sufficiently younger to permit a reasonable
inference of age discrimination See Hz'll v. B0r0agh of Kuz‘z2‘0wn, 455 F.3d 225, 247 (3d
Cir. 2006).
10
420, 430 (3d Cir. 2001). But we agree with the District Court that nothing in the record
suggests that Ullrich’s age or gender played the slightest role in his suspension.4
We also agree with the District Court that Ullrich has offered no evidence to
discredit the VA’s reason for investigating and suspending him. Even assuming Ullrich
was truthful in his conversations with Donnelly, Boss, and Davis, it is not enough for
Ullrich to show that the VA’s decision was wrong or mistaken "since the factual dispute
at issue is whether discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence." Faem‘es, 32 F.3d
at 765 (citations and quotation marks omitted). Ullrich has demonstrated no such
discrepancies here.
C. Retaliati0n
Title Vll and the ADEA protect employees who attempt to exercise the rights
guaranteed by the Act against retaliation by employers. 42 U.S.C. § 2000e-3(a); 29
U.S.C. § 623(d).5 To establish a prima facie case of retaliation a plaintiff must show
4 After diligent perusal of the record, the Court can find only a single allegation related
to gender, which appears nowhere in Ullrich’s pleading or briefing, but rather in his
lawyer’s EEOC Notice of Intent to Sue, explaining that Ullrich’s claim of discrimination
is based on the fact that he is "male with all female supervisors." (App. 22.)
5 The federal-sector provisions of Title Vll and the ADEA do not explicitly ban
retaliation; however, the Supreme Court has held that § 633a(a) prohibits retaliation
11
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. Activities protected from retaliation include opposing any practice made
unlawful by Title Vll or the ADEA; making a charge of employment discrimination or
testifying, assisting or participating in any manner in an investigation proceeding or
hearing under Title Vll or the ADEA. See 42 U.S.C. § 2000e-3(a). A plaintiff may
establish the requisite causal link between the protected activity and the retaliatory act by,
for example, showing "temporal proximity" or a pattern of ongoing antagonism sufficient
to give rise to an inference of retaliation Jensen, 435 F.3d at 450; Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir. 2000).
Ullrich argues repeatedly that he was disciplined not for "lack of candor," but in
retaliation for filing an earlier EEOC complaint against l\/ls. Davis and the VAMC
However, other than Davis’s admission that, "in the past," Ullrich had filed an EEO
claim against her for another disciplinary matter (Supp. App. 30, 11 4), neither the record
nor the pleadings provide any information regarding the outcome of that complaint,
claims made or parties named therein on what incident the complaint was based, or even
a ballpark estimate of the date on which the complaint was filed. The District Court held
that Ullrich failed to establish the requisite causal connection We agree. The fact that
against a federal employee who complains of age discrimination Go1nez-Perez v. Pon‘er,
553 U.S. 474, 491 (2008). The Court declined to address whether Title VII similarly
bans retaliation in federal employment, id. at 488 n4, but we have generally assumed it
does. See Jensen v. Poz‘ter, 435 F.3d 444, 449-50 (3d Cir. 2006), overruled in pari on
other grounds by Burlington N. & San2‘a Fe Ry. v. Whiz‘e, 548 U.S. 53, 67-68 (2006).
12
Ullrich filed another EEOC complaint at some unspecified point prior to the incidents
underlying this action is insufficient evidence, from which no reasonable factfinder could
determine that Ullrich’s suspension was causally connected to earlier protected activity.
D. H0stile W0rk Envir0nment
ln Bonenl)erger v. Ply1noui//1 Towns//zip, 132 F.3d 20 (3d Cir. 1997), we set forth
the following requirements for proving a hostile work environment claim in a sex
discrimination case under Title Vll: "(1) the employee suffered intentional discrimination
because of [his or her] sex; (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 sex in that position; and (5) the
existence of respondeat superior liability."6 Id at 25 (quotation omitted). Here, the
District Court held that the VA’s actions in investigating and suspending Ullrich did not
support a hostile work environment claim. We agree.
To fall within the purview of Title Vll, the conduct in question must be severe and
pervasive enough to create an environment the employee subjectively perceives as
abusive or hostile, and an "objectively hostile or abusive work environment_an
environment that a reasonable person would find hostile or abusive." Harris v. Forklif‘
Sys., Inc., 510 U.S. 17, 21 (1993). ln determining whether an environment is hostile or
6 Assuming without deciding that hostile work environment claims are cognizable under
the federal-sector provisions of Title VlI and the ADEA, similar requirements apply.
See, e.g., Jensen, 435 F.3d at 448-52 (Title Vll); Racico2‘ v. Wal-Mart Siores, Inc., 414
F.3d 675, 678 (7th Cir. 2005) (ADEA).
13
abusive, a court looks to a number of factors, including "the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee’s
work performance." Id. at 23. Ullrich points only to incidents related to the Custody
Order investigation and suspension as proof of harassment and hostile work environment.
These incidents appear to include (1) generally, being subject to an investigation Ullrich
believes was unwarranted; (2) being questioned once by Chief Donnelly, once by Ms.
Davis and Ms. Boss, and three times by l\/ls. Davis alone; (3) receiving the proposed
suspension; and (4) ultimately, being suspended for five days without pay. We cannot
conclude that these incidents_however unpleasant and embarrassing_constitute
conduct that a reasonable person would find sufficiently abusive to support a hostile work
environment claim.
l\/lore importantly, Title VlI protects a plaintiff only as to harassment based on
discrimination against a protected class. "Many may suffer severe or pervasive
harassment at work, but if the reason for that harassment is one that is not proscribed by
Title Vll, it follows that Title VII provides no relief." Jensen, 435 F.3d at 449. Because
nothing in the record suggests that Ullrich was the victim of sex or age discrimination he
cannot show the type of discriminatory conduct required to establish a hostile work
environment under Title VII or the ADEA.
14
V.
For the foregoing reasons, we affirm the District Court’s grant of summary
judgment in favor of the VA.
15