Durkin v. Potter

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 02-30507
Summary Calendar
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DONALD M. DURKIN,
Plaintiff-Appellant,
versus
UNITED STATES POSTAL SERVICE, John E. Potter,
Postmaster General,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
For the Eastern District of Louisiana
(01-CV-0914)
___________________________________________________
December 5, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Donald Durkin, a white male, worked for the United States
Postal Service (“USPS”) from March 1972 until his retirement in
December 1995. Beginning in 1991, after applying for and failing
to receive a team leader position, Durkin requested training that
would make him eligible for such a position in the future. When
*
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this opinion should not be published and is not precedent except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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Durkin was placed on the Internal Crimes Team as the audit
inspector and not given a team leader position as he requested, he
filed a formal complaint; the Equal Employment Opportunity
Commission (“EEOC”) found no discrimination. Durkin’s second
formal complaint alleged that USPS (1) placed him on a non-team
assignment and did not provide him with proper equipment and
supplies during his five-year audit assignment; (2) denied him
training opportunities when two vacancies were available in the New
Orleans Division; (3) assigned him to positions with no opportunity
for advancement; and (4) did not select him to interview for two
team leader vacancies. The EEOC affirmed a final agency decision
denying Durkin’s claims and denied reconsideration.
In April 2001, Durkin brought this action under Title VII, 42
U.S.C. § 2000e, et seq., alleging that USPS discriminated against
him based on his race and gender and that he was retaliated against
for filing complaints with the EEOC. The retaliation claims were
dismissed in October 2001. USPS moved to dismiss the claims
related to Durkin’s second administrative complaint under Federal
Rule of Civil Procedure 12(b)(1) because the lawsuit was not filed
within the statutory period and moved to dismiss the remainder of
Durkin’s claims for failure to state a claim under Rule 12(b)(6) or
in the alternative for failure to present genuine issues of
material fact under Rule 56. Durkin filed a response and sought
summary judgment. The district court granted USPS’s motion for
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summary judgment on Durkin’s discrimination claim, dismissed
Durkin’s hostile work environment claim, and found that Durkin was
time-barred from bringing claims stemming from his second
administrative complaint. Durkin appeals the grant of summary
judgment and the dismissal.
Discrimination Claim
We review summary judgment rulings de novo, Potomac Ins. Co.
v. Jayhawk Med. Acceptance Corp., 198 F.3d 548, 550 (5th Cir.
2000), and apply the same standard as the district court. Wyatt v.
Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th Cir. 2002). Summary
judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(c). We view all evidence and factual
inferences in the light most favorable to the party opposing the
motion. Price v. Federal Exp. Corp., 283 F.3d 715, 719 (5th Cir.
2002).
A Title VII plaintiff bears the initial burden of proving a
prima facie case of discrimination by a preponderance of the
evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). A plaintiff may prove a prima facie case of discrimination
by showing (1) that he is a member of a protected class, (2) that
he was qualified for the position, (3) that he suffered an adverse
employment action, and (4) that others similarly situated were more
favorably treated. LaPierre v. Benson Nissan, 86 F.3d 444, 448
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(5th Cir. 1996). The elements of a prima facie case for failure to
promote vary slightly; for such a case, plaintiff must show: (1)
membership within a protected class, (2) that he applied and was
qualified for the position sought, (3) that he was not promoted or
transferred, and (4) after his rejection, the position remained
open and the employer continued to seek applicants from persons
with plaintiff’s qualifications. See Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 254 n. 6 (1981) (quoting McDonnell
Douglas, 411 U.S. at 802); Perez v. Region 20 Educ. Serv. Ctr., 307
F.3d 318, 324 (5th Cir. 2002). Once established, the plaintiff’s
prima facie case raises an inference of intentional discrimination.
McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the
defendant to rebut the presumption by articulating a legitimate,
nondiscriminatory reason for the challenged employment action. See
Burdine, 450 U.S. at 254-55. The plaintiff then has the
“opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.” Id. at 253.
Durkin claims that USPS did not offer a legitimate,
nondiscriminatory reason for the challenged employment actions. On
appeal, Durkin emphasizes his allegation that he was placed in the
audit inspector position on the Internal Crimes Team for
discriminatory reasons and to keep him from gaining leadership
experience. He asserts that the reasons given by USPS and accepted
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by the district court do not address his assignment as audit
inspector.
Though the district court did not directly rule on whether or
not Durkin’s assignment to the Internal Crimes Team was
discriminatory, we find that USPS’s action of placing Durkin on
that team does not satisfy the adverse employment action element
needed to create a prima facie case of discrimination. Durkin
himself alleges that he was assigned to the new position because of
his complaints about his previous position and its lack of
advancement, so at the very least he was no worse off in the new
position. At the time Durkin was placed on the Internal Crimes
Team and given the audit inspector position, his supervisor, Karl
Kell, believed that other inspectors would be assigned to the team
over time and that Durkin might become team leader when that
happened. From April 10 - 15, 1992, and November 27 - December 3,
1992, Durkin was appointed as acting team leader of the Internal
Crimes Team. Not only was the assignment not adverse, there is no
evidence that his placement on the team was motivated by gender or
race discrimination.
The district court properly addressed Durkin’s allegation that
he was discriminated against in being passed over for team leader
positions, which the district court characterized as a failure to
promote claim. Assuming that Durkin made a prima facie case of
discrimination in regards to this allegation, as the district court
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assumed, USPS has put forth legitimate, nondiscriminatory reasons
for its actions and Durkin has failed to show any pretext. Kell
testified that Durkin was not given a team leader position because
there was not enough work to justify creating a team in the audit
field. Durkin was not transferred to team-oriented work outside of
the audit field because after spending money and time training him
for the audit inspector’s position USPS felt it was a waste of
resources to reassign him. The two team leader openings Durkin did
not receive went to individuals with leadership experience in the
fields in which the leadership positions were available. Their
experience in those fields made it possible to fill the positions
without additional training. The district court properly found
that Durkin did not establish that USPS’s explanation for failing
to promote him was pretextual.
Hostile Work Environment Claim
We review a Rule 12(b)(6) dismissal de novo, accepting all
well-plead facts as true. Mowbray v. Cameron County, Tex., 274
F.3d 269, 276 (5th Cir. 2001). Questions of fact are viewed in the
light most favorable to the plaintiff, and questions of law are
reviewed de novo. Id.The district court found that Durkin did not make a hostile
work environment claim in his administrative proceedings. “The
scope of inquiry of a court hearing in a Title VII action ‘is
limited to the scope of the EEOC investigation which can reasonably
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be expected to grow out of a charge of discrimination.’” Young v.
City of Houston, 906 F.2d 177, 179 (5th Cir. 1990) (quoting Sanchez
v. Standard Brands, 431 F.2d 455, 466 (5th Cir. 1970). The scope
of Durkin’s claim in his first complaint was limited to an
investigation of his placement on the Internal Crimes Team as an
auditor inspector rather than as a team leader. Given the scope of
hostile work environment claims, the second complaint also did not
include such a claim.
A hostile work environment claim under Title VII requires a
court to evaluate whether the harassment is “so severe or pervasive
as to alter conditions of [the victim’s] employment and create an
abusive working environment.” Faragher v. City of Boca Raton, 524
U.S. 775, 786 (1998) (internal quotes omitted). Workplace conduct
is not measured in isolation; instead, “whether an environment is
sufficiently hostile or abusive” must be judged “by looking at all
the circumstances, 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 787-88 (internal quotes omitted). The district court properly
found that given the scope of investigation required by the filing
of a hostile work environment claim, the EEOC proceedings did not
encompass a hostile work environment claim.
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Conclusion
For the reasons given above, we AFFIRM the district court.
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