Perryman v. West

• Decision Date: 23 December 1996
• Docket Number: No. CV-95-A-362-S.,CV-95-A-362-S.
• Citation: 949 F.Supp. 815
• Parties: Brenda A. PERRYMAN, Plaintiff, v. Togo D. WEST, Jr., Secretary Department of the Army, Defendant.
• Court: U.S. District Court — Middle District of Alabama

949 F.Supp. 815

Brenda A. PERRYMAN, Plaintiff, v. Togo D. WEST, Jr., Secretary Department of the Army, Defendant.

No. CV-95-A-362-S.

United States District Court, M.D. Alabama, Southern Division.

December 23, 1996.

Kenneth C. Sheets, Dothan, AL, for plaintiff.

James E. Macklin, Arlington, VA, Patricia Snyder, Montgomery, AL, for defendant.

MEMORANDUM OPINION

ALBRITTON, District Judge.

I. INTRODUCTION

This cause is before the court on a Motion for Summary Judgment filed by the Defendant, Togo D. West, Jr., in his official capacity as Secretary of the Department of the United States Army ("West").

The Plaintiff, Brenda Perryman ("Perryman") initiated this case with claims for breach of a settlement agreement and for employment discrimination and retaliation under 42 U.S.C. §§ 2000e et seq. ("Title VII") and 42 U.S.C. § 1981. West's subsequent motion for dismissal was granted by this court as to the § 1981 claim. West now moves for summary judgment as to the breach of settlement agreement and Title VII claims.

For reasons to be discussed, West's motion is due to be GRANTED.

II. FACTS

The facts in this case arise from Perryman's employment with the Department of the Army ("Department"). Perryman is an African-American woman who was employed by the Department beginning in October 1987. During her employment, Perryman filed several formal EEO charges against the Department alleging discrimination on the basis of race, sex and/or reprisal. In April of 1994, the Department and Perryman entered into a Negotiated Settlement Agreement ("Settlement Agreement") settling all pending EEO charges. Pursuant to this agreement, Perryman was transferred to the position of Procurement Clerk and her personnel filed was expunged of all counseling and disciplinary actions. Also pursuant to the terms of the Settlement Agreement, Perryman withdrew her pending EEO complaints.

In June of 1994, the Department began an investigation concerning a possible forged signature on Perryman's worker's compensation form. Perryman was never disciplined in the matter. She claims that the investigation was a reprisal in violation of the Settlement Agreement.

III. STANDARD OF REVIEW

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "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 and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. at 2553. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23, 106 S.Ct. at 2552-53.

Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. at 2553. To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986).

After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if 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).

IV. DISCUSSION

A plaintiff bringing a claim under Title VII must establish that the employer's actions were the result of intentional discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Where, as in this case, a plaintiff seeks to prove a claim by use of circumstantial evidence of the employer's intent, a framework of shifting burdens of proof applies. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

The first phase of the analysis is the plaintiff's prima facie case of discrimination. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once the plaintiff establishes the prima facie case, the burden then shifts to the employer to state a legitimate, nondiscriminatory reason for its actions. Id. This is a burden of production, not persuasion. Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094-95. If the employer articulates a legitimate nondiscriminatory reason for its actions, then the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the reasons offered by the employer were a pretext for discrimination. St Mary's Honor Center, 509 U.S. at 510-11, 113 S.Ct. at 2749. To avoid summary judgment, the "evidence must be sufficient to create a genuine factual issue with respect to the truthfulness of the defendant's proferred explanation." Howard v. BP Oil Co., 32 F.3d 520, 525 (11th Cir. 1994).

A. Breach of Settlement Agreement and Retaliation Claims

Perryman alleges a breach of the Settlement Agreement which she entered into with her employer. The agreement states, in relevant part, that

The Army agrees to: Reassign Ms. Perryman to a Procurement Clerk ... expunge Ms. Perryman's official personnel file and adverse action file of any and all documents related to the proposed change to lower grade; expunge Ms. Perryman's AG personnel file of any and all counselling and other disciplinary actions; and, take no reprisal actions against Ms. Perryman.

The complainant agrees to withdraw any and all pending actions ...

Complainant's signature on this agreement constitutes full and complete settlement of this EEO complaint. In addition, the complainant agrees to waive her right to pursue administrative or judicial action in any form concerning the matters raised in this complaint and that they will not be made the subject of future litigation.

Perryman and West agree that the alleged violation of the settlement agreement arises from the Department's agreement to "take no reprisal actions against" Perryman. Perryman further narrows the alleged violation to the investigation of an alleged forgery of her worker's compensation form. Perryman's Memorandum in Support of Response to Defendant's Motion for Summary Judgment. Although this is a breach of contract claim, whether or not the contract was breached depends upon whether or not there was reprisal. Therefore, the court will address Perryman's reprisal claim in connection with her claim for retaliation, since both claims arise from the same investigation and both claims have the same legal elements. See Dunning v. National Industries, Inc., 720 F.Supp. 924, 932 (M.D.Ala.1989) (equating a retaliation claim with a reprisal claim).

A plaintiff bringing a retaliation¹ claim must establish a prima facie case by showing that 1) she engaged in statutorily protected expression, 2) that there was subsequently an adverse employment action, and 3) that there is a causal link between the protected expression and the adverse action. Meeks v. Computer Assoc. Intern'l., 15 F.3d 1013, 1021 (11th Cir.1994).

In the instant case, it is undisputed that Perryman filed EEOC charges, that this expression is a protected activity under Title VII, and, furthermore, that the employer knew of this expression. West disputes, however, that there was an adverse employment action sufficient to establish a prima facie case of retaliation.

Perryman asserts that her employer's investigation into the possible forged worker's compensation claim form was in retaliation for protected activities and characterizes this action as retaliatory harassment. According to West, mere harassment cannot be considered an adverse employment action.

"Divergent authority, nationwide, obscures the parameters of adverse employment action." Nelson v. Univ. of Maine System, 923 F.Supp. 275, 281 (D.Maine, 1996). For example, an adverse employment action was found where a plaintiff had been relocated to an isolated corner of the workplace, Harris v. Richards Mfg. Co., Inc., 511 F.Supp. 1193 (W.D.Tenn.1981), aff'd in part, rev'd in part, 675 F.2d 811 (6th Cir.1982), but was not found where a plaintiff was relocated to the "dirtier" part of the basement. Ward v. Johns Hopkins Univ., 861 F.Supp. 367 (D.Md.1994).

The Eleventh Circuit has not conclusively determined whether or not harassment can constitute an adverse employment action. See Wu v. Thomas, 996 F.2d 271, 274 (11th Cir.1993), cert. denied, 511 U.S. 1033, 114 S.Ct. 1543, 128 L.Ed.2d 195 (1994). The Wu court noted that although the Eleventh Circuit has interpreted Title VII to mean that an employer cannot retaliate by taking an "adverse employment action," that general phrase has never been defined. Wu, 996 F.2d at 274. The court went on to explain that

In some retaliation cases, we have encountered claims that an employer harassed an employee but caused the employee no economic harm. But, because we disposed of each of these cases on other grounds, none establish the proposition that every unkind act, even those without economic...