Swanson v. General Services Admin.

• Decision Date: 24 April 1997
• Docket Number: No. 95-30880,95-30880
• Citation: 110 F.3d 1180
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 483, 71 Empl. Prac. Dec. P 44,797 Tommy L. SWANSON, Plaintiff-Appellee/Cross-Appellant, v. GENERAL SERVICES ADMINISTRATION, Roger W. Johnson, Administrator, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1180

110 F.3d 1180

75 Fair Empl.Prac.Cas. (BNA) 483,

71 Empl. Prac. Dec. P 44,797

Tommy L. SWANSON, Plaintiff-Appellee/Cross-Appellant, v. GENERAL SERVICES ADMINISTRATION, Roger W. Johnson Administrator, Defendant-Appellant/Cross-Appellee.

No. 95-30880.

United States Court of Appeals,Fifth Circuit.

April 24, 1997.

Victor Roma Farrugia, New Orleans, LA, for Swanson.

Glenn Kenneth Schreiber, Assistant U.S. Attorney, New Orleans, LA, for General Services Admin.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before KING, JOLLY and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, we once again address the nature and degree of evidence required to support a jury verdict in a Title VII action alleging race discrimination and retaliation. Tommy L. Swanson sued his employer, the General Services Administration ("GSA"), alleging race discrimination and retaliation. Judgment was entered upon a jury verdict in favor of Swanson, and GSA appeals. Following well-established precedent, we conclude that the evidence presented in this case was insufficient to support the verdict because Swanson failed to offer competent evidence suggesting either that GSA's non-discriminatory explanations were pretextual, or that illegal discrimination was a motivating factor notwithstanding the existence of a legitimate explanation.

I

Swanson has worked for GSA since 1973. Swanson has received both automatic and merit-based promotions, and has worked in several cities of GSA "Region Seven," which is headquartered in Fort Worth, Texas. At the beginning of 1988, Swanson served as a Building Manager in Little Rock, Arkansas; Swanson's government rank at that time was GS-11. In the summer of 1988, there was a vacancy announcement for a "Supervisory Building Management Specialist" at the newly-conceived GSA "Facility Support Center" in New Orleans. Swanson applied for and was awarded the position, which carried a rank of GS-11/12. Because Swanson had already served in a GS-11 capacity for some time, he was promoted to GS-12 upon his arrival in New Orleans in October of 1988.

Many of Swanson's difficulties in New Orleans related directly to a series of organizational changes in the New Orleans office structure. The GSA office in New Orleans was originally only a "Field Office." In 1988, a GSA reorganization effort determined that the New Orleans office should be expanded and redesignated a "Facility Support Center." Mr. Glenn Moore, previously head of the New Orleans Field Office, became Director of the New Orleans Facility Support Center as a part of the reorganization.

An internal GSA document prepared by the regional office, dated June 24, 1988, outlined the changes to the New Orleans office, and identified four separate "branches" of the new Facility Support Center: Real Estate, Design and Construction, Contracts, and Real Property Management and Safety. The vacancy announcement to which Swanson replied announced the opening for the head of the Real Property Management and Safety branch. Moore hired Swanson for this position, believing at the time that Swanson would be a branch chief and that the new Facility Support Center could offer its branch managers career advancement opportunities.

Unknown to either Moore or Swanson, however, the June 1988 document labeling Swanson's department a "branch" was incorrect. A second document, dated September 7, 1988, no longer listed Swanson's position as the head of a branch. Although Swanson's "branch" had been formally eliminated even before he arrived in New Orleans, Moore and the other New Orleans employees did not realize the error until a December 1989 inspection, at which point Moore was told to eliminate the branch chief designation from Swanson's position.

The original description of Swanson's position indicated that he would directly supervise as many as five other employees: a building management specialist, a computer programmer, two physical security specialists, and one budget clerk. Swanson never directly supervised a computer programmer; Moore testified that this position was incorrectly listed in Swanson's supervisory description. The New Orleans office did have a computer programmer who occasionally accepted document inputting assignments from Swanson, because Swanson had requested assistance with his typing.

For more than a year, Swanson did supervise employees in the other four positions. However, the December 1989 inspection determined that the workload in Swanson's area would not support the building management specialist, and Moore was told to transfer her to the Real Estate branch. Later, a decision at the national level removed the entire security program from the buildings management area; Swanson's two security specialists subsequently left the New Orleans Facility Support Center entirely. By 1992, Swanson supervised only the budget clerk, and received occasional secretarial assistance from Moore's secretary and a part-time student intern.

In January 1990, Swanson submitted a letter and request for transfer to Earl Eschbacher; Eschbacher was the Assistant Regional Administrator in Fort Worth, and he was Moore's direct superior at the time. Swanson indicated that he had developed severe asthma, his health was suffering, and he was unhappy that his status as a branch chief had been eliminated. Swanson stated that he felt he had been misled as to the advancement possibilities in the New Orleans position, stating that he "bought this scenario, hook, line and sinker." In the letter, Swanson requested that he be considered for a transfer to the Fort Worth or Dallas area.

Following his change in status, Swanson's working relationship with Moore and his co-workers rapidly deteriorated. Sometime in early 1990, Moore established a sign-out board that applied to Swanson and the employees he supervised. In his March review, Swanson received an overall rating of "3" out of a maximum of five. A "3" rating was "fully satisfactory," but was a step down from the "4" that Swanson had received the previous year; Swanson refused to sign the review, although the employee signature line did not indicate agreement with the rating.

In May 1990, Swanson sent a memorandum to Jimmie Jones, a GSA building manager who was a colleague rather than a subordinate of Swanson. Swanson's memorandum included a demand that Jones perform some action in accordance with Swanson's specifications: "[t]he bottom line is I expect you all to stop whining, get off your duffs and do your damn job." When Jones complained to Moore, Moore responded by requiring Swanson to submit for Moore's review all correspondence Swanson intended to send beyond the New Orleans office.

In June 1990, Swanson filed his first EEO charge alleging racial discrimination. In July, Swanson sent an overnight package at GSA expense to a Mr. Robert Goodspeed at Goodspeed's personal post office box in Fort Worth. Goodspeed was a former member of the "Black Affairs Committee," apparently an informal committee of black GSA employees that was "recognized" by GSA, but had no official purpose within GSA. When the expense was discovered later that month, Moore demanded that Swanson reimburse GSA for the expense. When Swanson refused to do so, he was suspended for one day.

At some point in mid-1990, Swanson indicated to Moore that he wanted to tape-record their phone conversations. In August, without waiting for a response, Swanson secretly taped a personnel-related conversation among himself, Moore, Eschbacher, and Kathy Wyche, a GSA personnel representative. In January 1991, Swanson delivered a typed transcript of the taped conversation with cover letter to Mr. Hollis Rutledge, the head of GSA Region Seven. At trial, Swanson further conceded that he had initially denied taping the conversation, and that he had destroyed the tape. In January 1991, Swanson was suspended on Eschbacher's recommendation for taping the phone conversation without the knowledge or consent of the other participants; Eschbacher testified that he had recommended a fourteen-day suspension, but that Rutledge reduced it to five days.

In April 1991, Swanson received a "letter of counseling" from Moore regarding his failure to follow procedures when requesting leave. In August, Swanson filed an assault charge with GSA security alleging that Moore had kicked Swanson about the ankle and lower leg; Moore stated that he stepped on Swanson's foot accidentally. The incident occurred during a confrontation between Moore and Swanson in Swanson's office, concerning a report Swanson needed to complete. In December, Moore sent Swanson a memorandum detailing ten occasions when Swanson had been tardy over the previous two months, and charging Swanson approximately two hours of annual leave.

Throughout this period, Swanson continued to file formal EEO complaints alleging race discrimination and retaliation. After his June 1990 complaint, Swanson filed a second complaint in February 1991. A third complaint was filed in September and a fourth in December. In April 1992, Swanson submitted a grievance to Casey Bowen, the Regional Director or Real Property Management and Safety, concerning his performance evaluation for that year, which had again been a "fully satisfactory" rating of "3," and complaining of his mistreatment in New Orleans. Also in April 1992, a hearing was held on Swanson's EEO complaints.

The entire "facility support center" concept for the New Orleans office eventually failed in mid-1992. Swanson was not the only manager who never supervised the full staff he anticipated; none of the center's branches ever achieved the full staffing indicated in the 1988 plan. In mid-1992, the New Orleans GSA office was downgraded from a "facility support center" to an "enhanced field office." In this reorganization, the managers of the Real Estate, Design and Construction, Contracts areas all lost their status as ...