Valentine-Johnson v. Roche
| Decision Date | 09 January 2003 |
| Docket Number | No. 01-73345.,01-73345. |
| Parties | Rennie B. VALENTINE-JOHNSON, Plaintiff, v. Dr. James G. ROCHE, Secretary, Department of the United States Air Force, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Daniel Traver, Traver, Walzak & Lepley, Port Huron, MI, for plaintiff.
Alan M. Gershel, Vanessa Miree Mays, Detroit, MI, for defendant.
Plaintiff Rennie Valentine-Johnson filed suit against defendant alleging Title VII race and sex discrimination and retaliation under 42 U.S.C. § 2000e. Plaintiff asserts that she was subject to disparate treatment and a hostile work environment. Defendant moved to dismiss her complaint, or in the alternative seeks summary judgment.
Plaintiff is an African-American woman. She began work at Selfridge Air Force Base ("Selfridge") as the Director of Family Readiness in May 1993. Immediately prior to starting her work at Selfridge, plaintiff worked in Wyoming; there she filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discriminatory treatment and retaliation.
To substantiate her race discrimination claim, plaintiff reports specific instances when co-workers made racially derogatory comments about her or about her interracial marriage. In her deposition testimony, she states that she was in the car with a superior who had been drinking and who uttered a racist slur at her. The person who made this remark was not plaintiff's supervisor, but someone who was involved in hiring her. At a training session in 1994, plaintiff overheard another participant tell the instructor that she did not wish to work with plaintiff because she is black. In another instance, plaintiff asked her supervisor Colonel Brown what he thought of her recent marriage to a white man. He replied "I was shocked."
In support of her sexual harassment claim, plaintiff states that in August of 1993 Colonel Brown put his arm around her shoulders without her consent. On another occasion he came into her office and stood close to her indicating that he would sign certain papers if she was "nice" to him. She also observed flirtatious behavior among other staff members at Selfridge. For instance, she complains that Colonel Brown often touched other women in the office.
In October 1993, plaintiff was called back to Wyoming for mediation concerning her EEO complaint. Though regulations required him to pay for the trip, Colonel Brown reacted angrily when plaintiff brought him her travel request. Plaintiff claims that after this incident she was "shunned" by her co-workers. Colonel Brown allegedly refused to continue as her supervisor, and on December 2, 1993, she was informed that Captain Sutton, a subordinate of Brown, would take over as plaintiff's supervisor. Plaintiff claims that Sutton treated her in a demeaning way, created an unreasonable "plan" for plaintiff's position and was overly critical of her work. On January 12, 1994, plaintiff filed her first EEO complaint letter, alleging harassment, discrimination and retaliation for her EEO activity in Wyoming. She claims that after the filing of this complaint, Colonel Brown had a meeting with plaintiff in which he stated that things would not get better until "the EEO stuff goes away."
In January 1995, plaintiff was fired from her job at Selfridge, and replaced by a white woman. Plaintiff appealed her termination to the U.S. Merit Systems Protection Board ("MSPB") on the basis of illegal discrimination and retaliation. Plaintiff also filed the previously mentioned complaint with the EEOC for unlawful discrimination. On March 8, 1996, the EEOC issued written notice to plaintiff of her right of election. Plaintiff was given a choice among three procedures to prosecute her EEO claims. Plaintiff chose the first option offered by the EEOC, that is, to hold her termination claims in abeyance and have her non-termination claims heard by the EEOC. The remedy she elected provided that after a final decision by the EEOC and any appeals, she could then pursue the claims regarding her termination with the MSPB.
The EEOC Administrative Judge issued a decision finding no discrimination on all issues on August 4, 1997. The EEOC affirmed the agency's final decision on May 31, 2001, and notified plaintiff of her right to file a civil action in United States District Court within 90 days. On August 30, 2001, plaintiff filed suit in this court.
On December 10, 2001 plaintiff filed a request for a hearing before the MSPB challenging her termination, but did not include any claims that her termination was discriminatory. Plaintiff withdrew her appeal to the MSPB, to "allow her complete case to proceed in the U.S. District Court" on March 14, 2002. The MSPB dismissed her appeal, accordingly, because the withdrawal deprived the board of jurisdiction over her claim.
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to summary judgment as matter of law. Fed.R.Civ.P. 56(c).1 As the moving party defendant bears the burden of showing the absence of a genuine issue of material fact as to at least one essential element on each of plaintiff's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Plaintiff must then present sufficient evidence from which a jury could reasonably find for her. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, the court accepts all of plaintiff's evidence as true and draws reasonable inferences in her favor. National Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir.1997).
The Civil Service Reform Act of 1978, 5 U.S.C. § 7702, sets forth statutory conditions which must be satisfied as a requisite to filing suit in a case involving an action that is appealable to the MSPB and an alleged discriminatory basis for that action. In general, "when an appeal has been taken to the MSPB, until the discrimination issue and the appealable action have been decided on the merits by the MSPB, an appellant is granted no rights to a trial de novo in a civil action under § 7702 or § 7703." Ballentine v. MSPB, 738 F.2d 1244 (Fed.Cir.1984).
Though the United States Court of Appeals for the Sixth Circuit does not consider failure to exhaust administrative remedies a jurisdictional bar, it is a condition precedent to filing suit in this court. Kubicki v. Brady, 829 F.Supp. 906, 909 (E.D.Mich.1993), Boddy v. Dean, 821 F.2d 346, 350 (6th Cir.1987). Granting summary judgment is an appropriate remedy where plaintiff has failed to exhaust administrative remedies. Economou v. Caldera, 286 F.3d 144 (2nd Cir.2002).
Plaintiff is bound by her election of remedies: to have the claims not related to her termination heard by the EEOC and then pursue her termination claims with the MSPB. Instead of following this election, plaintiff prematurely withdrew her appeal to the MSPB. Not only did plaintiff not perfect her appeal before the MSPB, she did not include any discrimination claims related to her termination in her MSPB appeal. Plaintiff's termination-related claims are barred by her failure to exhaust administrative remedies with the MSPB.
Title VII of the Civil Rights Act of 1964 prohibits an employer from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . race" 42 U.S.C. § 2000e-2(a)(1). Plaintiff claims that she was subject to disparate treatment on the basis of her race because of the comments made to her and about her race.
Plaintiff can avoid summary judgment on her disparate treatment claims by showing that race directly played a role in an employment decision, or by presenting evidence that raises an inference of discrimination. Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir.1997). Here, plaintiff fails to present evidence that racial discrimination directly played a role in an employment decision.
In the absence of direct evidence, unlawful discrimination can be established by circumstantial evidence under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish a prima facie case of discrimination, a plaintiff must show that 1) she is a member of a protected class; 2) she was qualified for his job and performed it satisfactorily; 3) despite her qualifications and performance, she suffered an adverse employment action; and 4) that she was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside his protected class. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992).
In this case, it is not necessary to establish whether plaintiff performed her job satisfactorily because plaintiff has not brought forth evidence that she suffered an adverse employment action. An adverse employment action is defined as a significant or material adverse change in the terms and conditions of employment. Hollins v. Atlantic Co., Inc., 188 F.3d 652, 662 (6th Cir.1999). The requirements for establishing a materially adverse change are met by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. Id. (); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 886 (6th Cir.1996) (). In addition, "[t]he Sixth Circuit has...
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