Lee v. Department of Veterans Affairs

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 18, 2007
Charles R. Fulbruge III
Clerk
No. 05-20909
LESTER LEE,
Plaintiff-Appellant,
VERSUS
DEPARTMENT OF VETERANS AFFAIRS; ANTHONY PRINCIPI, SECRETARY,
DEPARTMENT OF VETERANS’ AFFAIRS
Defendants-Appellees
Appeal from the United States District Court
For the Southern District of Texas, Houston Division
Before DAVIS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Lester Lee (“Lee”) appeals the district court’s order granting
summary judgment in favor of his employer, Defendant-Appellee
Department of Veterans Affairs (“DVA”), on his Title VII
retaliation and race discrimination claims. For the reasons that
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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follow, we AFFIRM in part and VACATE and REMAND in part.
I.
Lee is an African-American male who began working for the DVA
in October 1989. Lee worked in the Customer Service/Hardware
Maintenance Unit (“CS/HMU”) servicing personal computers, video
monitors, and other electronic equipment.
In July 1998, Lee and two other African-American employees
filed a grievance against the DVA, claiming that white employees
were being favored and pre-selected for desirable positions.
Specifically, Lee alleged that the DVA had improperly failed to
promote him to the position of “GS-12 Lead Electronic Tech” (“GS12-
LET”).1
As union members, all three claimants were subject to a
collective bargaining agreement which set out an internal procedure
for employment grievances. This grievance procedure provided an
alternative to the filing of a formal complaint with the DVA’s
Equal Employment Office (“EEO”) under Title VII procedures.
According to the terms of the collective bargaining agreement,
employment grievances that were not successfully resolved by the
internal DVA procedures were subject to mandatory binding
arbitration. Lee and his co-claimants pursued their claims through
the grievance procedure and then, after that process proved
unsuccessful, through binding arbitration.
1
Lee’s position at the time of the suit was GS-11
Electronics Tech.
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On July 5, 2001, while not attributing promotion decisions to
racial discrimination, an arbitrator found in favor of Lee and the
one remaining co-claimant on their claim that certain individuals
had been preselected and favored for promotions.2 As a result, in
a written order, the arbitrator awarded Lee and his co-claimant the
position of “GS-12 Computer Specialist” (“GS12-CS”).
Despite this apparent victory, Lee contacted the arbitrator
and the DVA immediately after the decision was rendered to ask for
a change in the awarded position. Lee was unsatisfied with the
GS12-CS position, and insisted on being designated as a GS12-LET.3
In correspondence with Lee’s union rep, Abe Gordon, Dr. Derek
Drawhorn, a DVA representative, stated that the DVA was willing to
adjust Lee’s arbitration award through a joint stipulation, thus
leaving Lee in essentially his CS/HMU job - the position he held
before the grievance and arbitration - but with his desired
designation of GS12-LET. Lee claims that based on such assurances,
which went on until March 2002, he did not file a timely appeal of
the arbitrator’s award.
Sometime between January 2001 and January 2002, as part of an
2
For reasons that are unexplained, one co-claimant did not
remain a party to the arbitration proceeding to its conclusion.
3
Lee says he considered the GS12-CS position to be a lesser
position and concluded that the award of that position by the
arbitrator was a mistake. There is no explanation from the
parties as to how the arbitrator arrived at this particular award
and no explanation from Lee about the specific deficiencies in
the GS12-CS position as compared with the GS12-LET position.
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agency restructuring, the DVA abolished the CS/HMU – the unit in
which Lee had previously worked and to which he desired to return.
In the process, the DVA eliminated Lee’s previous electronic tech
position, leaving the DVA with no more such positions. Later, in
March 2002, Lee says he officially received word that the DVA was
no longer interested in adjusting the arbitrator’s award and giving
him a GS12-LET position.
Along with his difficulties in negotiating a revision of the
arbitrator’s award, Lee encountered other problems after his
arbitration award. For instance, Lee claims he was told he would
have to receive training and certification for his new position and
that he must complete the training in two years. He alleges that
two similarly situated white employees who had not complained about
racial discrimination were given four years to complete the same
training. He also alleges that these white employees were given
access to increased training opportunities and more high level
meetings with supervisors than he was. Finally, Lee claims that
white employees were given preferences in picking desirable
offices, while he was placed in an office with student interns.
In response to these problems, Lee filed a formal complaint
with the DVA’s EEO on April 10, 2002. In the complaint, he alleged
that the following unfavorable actions were either racially
motivated or reprisal for the 1998 grievance and the resulting 2001
arbitration award: (1) change of assigned duties; (2) transfer to
an undesirable work area; (3) removal from his career choice; (4)
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imposition of a certification requirement; (5) refusal to correct
the 2001 arbitration award; (6) abolition of his job position; and
(7) failure to train.
In a letter dated April 23, 2002, the EEO notified Lee that it
had accepted his claim regarding discrimination and retaliation on
the issue of training and it issued a right to sue letter based on
that claim. The EEO, however, rejected Lee’s other claims. The
EEO counselor explained that because actions 1-5 were all related
to and/or had been addressed in the 2001 arbitration decision and
because Lee had elected to pursue a union grievance, he was
precluded from collaterally pursuing those same complaints through
the EEO/Title VII statutory process. Further, the EEO dismissed
action 6, which concerned the abolition of Lee’s former job and
department, because Lee had failed to contact an EEO counselor
within 45 days of the action.
Lee later filed this lawsuit. However, instead of simply
pursuing a discrimination or retaliation claim based on inadequate
training, Lee reurged all the allegations presented to the EEO,
including those that were rejected. In response to Lee’s suit, the
DVA filed a motion for summary judgment, asserting the correctness
of the EEO’s conclusion that the majority of Lee’s allegations were
barred from consideration. On the subject of training disparities,
the one allegation that the EEO concluded would provide an adequate
basis for a Title VII claim, the DVA argued that Lee’s allegation
did not constitute an “adverse employment action” under this
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circuit’s precedent.
Agreeing largely with the DVA’s legal arguments, the
magistrate judge issued a memorandum to the district court
recommending dismissal of all claims. The district court adopted
the magistrate’s recommendations and issued a summary judgment
order in favor of the DVA.
In his appeal to this court, Lee argues that the district
court erred in (1) concluding that he was barred from pursing most
of his claims; (2) failing to apply principles of equitable
estoppel to avoid the time bar on his claim based on job
abolishment; (3) dismissing his retaliation claim; and (4)
dismissing his discrimination claim.
II.
This court reviews a district court's grant of summary
judgment de novo, applying the same standard as the district
court.4 Summary judgment should be granted only when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.5 The evidence should be viewed in the
light most favorable to the nonmoving party.6
III.
4
Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th
Cir. 1996).
5
Fed. R. Civ. P. 56(c).
6
Am. Home Assurance Co. v. United Space Alliance, 378 F.3d
482, 486 (5th Cir. 2004).
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1. Did the district court err in barring Lee from asserting
certain claims in his lawsuit?
By filing a written grievance, Lee made a formal election to
pursue his claim through the negotiated grievance procedure.7
Under grievance procedures outlined in the United States Code,
which the parties agree apply to the DVA, this election foreclosed
Lee from pursuing the same matters in a lawsuit:
An aggrieved employee affected by a prohibited personnel
practice . . . which also falls under the coverage of the
negotiated grievance procedure may raise the matter under
a statutory procedure [EEO/Title VII] or the negotiated
procedure, but not both.
5 U.S.C. § 7121(d).
Lee asserts that he should be allowed to pursue his claims in
court because the challenged actions dismissed by the district
court (1-5 above) were not a part of the previous grievance and
arbitration but rather grew out of later conduct on the part of the
DVA. Lee argues that representations made during post-arbitration
negotiations by the DVA induced him into foregoing his challenge of
the arbitrator’s award and that it was these false representations,
and not the arbitrator’s decision, that motivated his April 2002
charge.
Lee’s argument is unpersuasive. The arbitration award, even
if it was mistaken, was undoubtedly the direct cause of at least
7
See 29 C.F.R. § 1614.301 (“An election to proceed under a
negotiated grievance procedure is indicated by the filing of a
timely written grievance”).
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four out of the five challenged acts: (1) the change of Lee’s
duties; (2) removing him from his career choice; (3) the
certification requirement; and (4) the award itself. We have
previously explained that “a federal employee [with exclusive union
representation] who alleges employment discrimination must elect to
pursue his claim under either a statutory procedure [(e.g., the EEO
process)] or a union-assisted negotiated grievance procedure
[unless the grievance procedure specifically excludes
discrimination claims]; he cannot pursue both avenues, and his
election is irrevocable.”8 Thus, the only proper challenge to the
arbitrator’s award was an appeal of the arbitrator’s order. Lee
has cited no authority in support of his argument that
misrepresentations by the DVA relieved him either of his binding
initial election to pursue these matters in the negotiated
grievance procedure or his obligation to appeal an unsatisfactory
award.
As for Lee’s allegation concerning his assignment to an
undesirable office space, Lee implies that his office assignment
did not grow directly out of the arbitration decision, i.e., that
not all computer specialists sit in the same office or group of
offices. The DVA does not dispute this point. As such, this
matter was not “raised . . . in a negotiated grievance procedure”
8
Maddox v. Runyon, 139 F.3d 1017, 1021 (5th Cir. 1998)
(brackets and parentheses in original) (citing in part 5 U.S.C. §
7121(d)).
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pursuant to 29 C.F.R. § 1614.107(a)(4), and Lee should have been
allowed to have this act considered in the course of his Title VII
proceedings. As a result, the district court erred in failing to
consider this action.
2. Did the district court err in precluding Lee from raising the
abolishment of his old employment unit in his lawsuit?
The Code of Federal Regulations provides that federal
employees “must initiate contact with a[n] [EEO] Counselor within
45 days of the date of the matter alleged to be discriminatory or,
in the case of personnel action, within 45 days of the effective
date of the action.”9
Lee concedes that he did not file a complaint regarding the
abolishment of his old job within the 45 day time limitation.
However, Lee argues that the DVA’s representations to him that he
would be assigned to his old duties, but as a GS12-LET, prevented
him from learning that the abolishment of his position was a
discriminatory/retaliatory act and thus his complaint based on this
act should be preserved.
We disagree. Lee does not clearly explain how any
misrepresentations from the DVA served to conceal the
discriminatory or retaliatory nature of the DVA’s elimination of
his old department. He does not allege, for instance, that the
full scope or effect of the reorganization was in any way concealed
9
29 C.F.R. § 1614.105(a)(1).
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during the relevant limitations period. Further, Lee fails to cite
a single decision to support a finding that either 29 C.F.R. §
1614.105(a)(2)’s tolling provision or general equitable tolling
principles should be applied to this case. The district court did
not err when it refused to consider this allegation.
3. Did the district court err in finding disparities in training
could not support a retaliation charge?
To sustain a retaliation claim, the employee’s prima facie
case must show: (1) that the employee engaged in a protected
activity; (2) that an adverse employment action occurred; and (3)
that a causal link existed between the protected activity and the
adverse action.10 The district court, relying on precedent from
this circuit, found that Lee had failed to meet the second prong of
the prima facie case because his failure to train claim did not
constitute an “adverse employment action.”
The Supreme Court recently clarified the requirements for
proving retaliation under Title VII in Burlington Northern & Santa
Fe Railway Co. v. White.11 The Court rejected the approach taken
by several circuits, including this one, that required plaintiffs
to demonstrate an “ultimate employment decision” to satisfy the
“adverse employment action” element of a retaliation claim.12
10
Baker v. American Airlines, Inc., 430 F.3d 750, 754 (5th
Cir. 2005).
11
126 S.Ct. 2405 (2006).
12
Id. at 2414.
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Instead, the Court explained that in order for an employer’s acts
to constitute actionable retaliation: “[a] plaintiff must show a
reasonable employee would have found the challenged action
materially adverse, which . . . means it might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.”13
The district court conducted its analysis of the training
claim under the old, now rejected standard. For that reason, we
vacate the award of summary judgment on Lee’s retaliation claim and
remand this case to the district court so it can reconsider this
issue consistent with Burlington Northern. On remand, in addition
to reevaluating the allegation regarding training, the district
court should consider Lee’s allegation regarding inferior office
placement.
4. Did the district court err in dismissing Lee’s discrimination
claims?
To establish a prima facie case of discrimination, a plaintiff
must provide evidence that he “(1) is a member of a protected
class; (2) was qualified for [his] position; (3) was subject to an
adverse employment action; and (4) was replaced by someone outside
the protected class, or, in the case of disparate treatment, shows
that others similarly situated were treated more favorably.”14
13
Id. at 2415.
14
Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d
507, 512-13 (5th Cir. 2001).
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As in the retaliation context, we have required that an
employee show an ultimate employment action, such as hiring,
granting leave, discharging, promoting, and compensating, to
establish a prima facie case under Title VII’s substantive
discrimination provisions.15 Lee argues that the Supreme Court’s
recent Burlington Northern decision, while discussing only
retaliation claims, logically requires this court to relax the
standard applicable to determining whether an employer’s acts
constitute an “adverse employment action” in the discrimination
context.
We need not resolve today any claimed tension between the
Burlington Northern decision and this circuit’s “ultimate
employment decision” standard. The report of the magistrate judge,
adopted by the district court, includes no factual or legal
analysis of Lee’s discrimination claim. On remand, the district
court should include an analysis of the parties’ summary judgment
evidence on this issue and apply the Title VII substantive
discrimination provision to those facts.
IV.
For the foregoing reasons, the district court’s grant of
summary judgment in favor of DVA is AFFIRMED in all respects except
with respect to the dismissal of Lee’s retaliation and
discrimination claims based on inadequate training and inferior
15
See Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir.
2004).
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office placement. We VACATE the dismissal of those claims and
REMAND the case to the district court to reconsider the claims in
light of Burlington and consistent with this opinion. The district
court is free to evaluate whether Lee has satisfied the causation
and other elements of his discrimination and retaliation claims.
AFFIRMED IN PART.
VACATED AND REMANDED IN PART.
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