Hunter v. Secretary of U.S. Army, 08-1721.

• Citation: 565 F.3d 986
• Decision Date: 18 May 2009
• Docket Number: No. 08-1721.,08-1721.
• Parties: David R. HUNTER, Plaintiff-Appellant, v. SECRETARY OF UNITED STATES ARMY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

565 F.3d 986

David R. HUNTER, Plaintiff-Appellant, v. SECRETARY OF UNITED STATES ARMY, Defendant-Appellee.

No. 08-1721.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted: April 30, 2009.

Decided and Filed: May 18, 2009.

ARGUED: William L. Woodard, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: David A. Kotwicki, David A. Kotwicki, P.L.C., Utica, Michigan, for Appellant. William L. Woodard, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: GUY, GILMAN, and COOK, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

David R. Hunter filed this employment-discrimination suit against his employer, the United States Army (the government), alleging discrimination on the basis of his race (white), sex (male), and age (62) under both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). He also included a claim for retaliation due to actions allegedly taken against him once he exercised his rights under these Acts.

The essence of Hunter's discrimination claims is that, between 1991 and 2004, he was repeatedly passed over for promotion and training opportunities. Between 2002 and 2004, moreover, he was allegedly subjected to harassment by one of his supervisors. Hunter further claims that after he contacted an Equal Employment Opportunity (EEO) counselor at his place of employment his supervisors subjected him to retaliation.

The district court dismissed three of Hunter's four claims as time-barred and granted summary judgment in favor of the government on the remaining cause of action. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

Hunter is a white male born in 1947. Since 1991, he has been employed as a Mechanical Engineering Technician at the U.S. Army Research, Development and Engineering Command (TARDEC), which is a part of the U.S. Army Tank-automotive and Armaments Command (TACOM) in Warren, Michigan.

A. Administrative proceedings

On September 22, 2004, Hunter contacted an Equal Employment Opportunity (EEO) counselor at TACOM, asserting that he had been discriminated against on the basis of his race, sex, and age. He alleged that the discriminatory actions resulted in a hostile work environment and that he had been denied promotional and training opportunities available to other employees. Hunter filed a formal complaint of discrimination with TACOM's EEO office in November 2004, reasserting these same allegations. The EEO counselor notified Hunter later that month that, based on her review of his complaint, the following issue was accepted for investigation:

Wherein you alleged harassment (non-sexual) and management has held you back from career and promotional advancements resulting in a hostile working environment [at TARDEC].

Following a fact-finding conference, an investigator with the Department of Defense's Office of Complaint Investigation determined that Hunter was not claiming that he had missed any advancement opportunities during the actionable time period, and that management's testimony about why he was not promoted was credible. Hunter then requested a hearing before the Equal Employment Opportunity Commission (EEOC). An administrative law judge (ALJ) issued an order for a show-cause hearing in April 2007 and ordered Hunter to provide an affidavit and other evidence in support of his discriminatory denial-of-promotion and hostile-work-environment claims. After the hearing, the ALJ dismissed the complaint. In July 2007, the Department of the Army issued a final agency action implementing the decision of the ALJ.

B. The federal lawsuit

Hunter responded by filing suit in the federal district court in October 2007. He alleged that he became eligible for promotion to the next salary-grade level in July 1992, but he never received this promotion. Between 1992 and 1993, he was not offered an "upward mobility" program in which other, lower-graded employees participated. He requested, and was denied, in-house training courses during that same time period. TARDEC contemporaneously began a "reorganization" process that combined previously separate work sections together and transferred employees into different work groups. Hunter was transferred to different work groups approximately ten times and was allegedly assigned "mundane, repetitive tasks."

During the same time, Hunter enrolled in college. He requested funding from TARDEC to pay for his tuition and believed that other employees were being compensated for their outside education. But his supervisor told him that there was no funding currently available. He was finally able to obtain funding for his tuition from TARDEC in the summer of 1994.

Hunter was led to believe that he would be eligible to receive a conversion to the better-paid position of a GS-830 engineer when he finished his college-degree requirements. After he completed those requirements in 1996, however, the conversion did not take place. An employee in the personnel department told Hunter that he would not be promoted due to a TACOM reduction in force (RIF). The same employee later advised Hunter that he was required to complete a one-year engineering-training detail at TACOM in order to receive his promotion. Hunter completed the training in August 1997, but his conversion process was once again delayed due to another RIF.

After the RIF was complete at the end of 1997, Hunter's supervisors advised him that, to receive the conversion, he should prepare a resume, submit the resume to an online computer system, and prepare a document describing his job information. Hunter admits that he never completed these requirements. He also alleges that, from 1997 to 2003, he applied for numerous promotions to the GS-11 salary grade, but did not receive any of them. At the time that he filed his lawsuit, he had been held at the same pay grade for over 15 years.

Beginning in February 1998, Hunter requested an investigation and redress for his grievances from a variety of sources, including the TACOM Inspector General's Office, Senator Carl Levin (a member of the Senate Armed Services Committee), and through his union. None of these sources was effective in addressing his complaints.

Hunter also alleges that, beginning in July 2002, his supervisor Frank Pitts harassed him, intimidated him, and altered his "Procurement Work Directives" (PWD) work packages. According to Hunter, Pitts "would occasionally go to Mr. Hunter's work station, and harass him, about recording information in an electronic system that he managed." He also said that Pitts would "routinely corner Mr. Hunter in his work station, ... and yell orders at him, point with his hand close to Mr. Hunter's face, and, whether purposefully or inadvertently, spit on him as he talked."

Hunter alleges that this type of action would happen approximately every four to six weeks. He also suspected that some of his PWD packages were altered after he had completed working on them. After investigating the matter, Hunter discovered that one important package was in fact altered by Pitts. Hunter claims that he reported the harassment to higher management, but that no action was taken. As a result, he became "distraught" and sought counseling at the TACOM Employee Assistance Center for help in dealing with the situation.

Hunter subsequently contacted an EEO counselor and participated in a precomplaint intake interview in September 2004. He claims that the TARDEC management subsequently took retaliatory actions against him. He alleges, for example, that Pitts sabotaged another PWD package that Hunter had prepared, delaying it for a week. Hunter was also moved from his former team to a new "3D" unit and was required to leave a note whenever he left his work station. Finally, one of Hunter's supervisors stated during a team meeting in front of numerous coworkers that "any high school kid" could perform Hunter's job.

C. Procedural history in the district court

The complaint contained four counts. Based upon the facts recounted above, Counts I, II, and III alleged reverse-race, reverse-gender, and age discrimination. These counts also asserted that Hunter was subjected to a hostile work environment when he was harassed by Pitts from 2002 to 2004. In Count IV, Hunter alleged retaliation for having complained about his employer's discriminatory practices.

The district court granted the government's motion to dismiss the complaint or, in the alternative, its motion for summary judgment. In its opinion, the court found that Hunter's allegations that he was denied sufficient opportunities for career and promotional advancement were allegations of discrete acts of discrimination rather than part of a continuing hostile work environment. The court further found that these claims were time-barred because Hunter failed to seek EEO counseling within 45 days of any of these discrete acts. Furthermore, the court found that Hunter's hostile-work-environment claim failed because the allegations, even if true, did not constitute a hostile work environment, and that Hunter had not put forth any evidence that Pitts's actions were motivated by Hunter's race, sex, or age. The court further rejected Hunter's argument that more discovery was needed with respect to these claims.

As to Count IV's claim of retaliation, the district court concluded that Hunter had failed to state a prima facie case because none of the alleged actions was sufficiently adverse. The court also found that TARDEC had articulated a legitimate, nonretaliatory reason for each of its actions, and that Hunter had failed to show that any of these reasons was a pretext designed to mask retaliation. It therefore granted summary judgment as to Count IV. Hunter's timely appeal followed.

II. ANALYSIS

Hunter's claims can best be grouped into three categories. First, he alleged race, sex, and age discrimination based upon...