Eve Sala v. Labron Hawk , 481 F. App'x 729 ( 2012 )


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  •                                                              NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 10-3268
    __________
    EVA SALA,
    Appellant.
    v.
    LABRON HAWK; ATTORNEY GENERAL OF THE UNITED STATES
    On Appeal from the District Court of the Virgin Islands
    (Division of St. Croix)
    District Court No. 1-08-cv-00063
    District Judge: Honorable George W. Cannon
    Argued on December 5, 2011
    Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges
    (Opinion filed: May 1, 2012)
    Andrew C. Simpson, Esquire (Argued)
    Andrew C. Simpson Law Offices
    2191 Church Street, Suite 5
    Christiansted, St. Croix, VI 00820
    Counsel for Appellant
    Timothy J. Abraham, Esquire (Argued)
    Office of United States Attorney
    5500 Veterans Building, Suite 260
    United States Courthouse
    Charlotte Amalie, St. Thomas, VI 00802-6924
    Counsel for Appellee
    OPINION
    ROTH, Circuit Judge:
    Eva Sala appeals the District Court‟s entry of summary judgment in favor of the
    government. For the reasons that follow, we will affirm in part and vacate in part the
    judgment of the District Court and remand this matter for further proceedings.
    I. Background
    We write exclusively for the parties, who are familiar with the factual context and
    legal history of this case. Therefore, we will set forth only those facts necessary to our
    analysis.
    Sala is a female Special Agent of the Drug Enforcement Administration. She has
    been employed with the DEA since 1994. In September 2004, she requested assignment
    to the DEA‟s office in St. Croix, U.S. Virgin Islands, and was presented with the option
    of signing a three, four, or five year service agreement. Because DEA positions in the
    Virgin Islands are considered hard to fill, the DEA has paid agents transferring there
    incentive payments based upon the length of the service agreement. As further
    encouragement to extend the original assignment, the DEA has also offered agents, who
    initially signed for a three year tour of duty, 20 days home leave if they agree to remain
    in St. Croix for a fourth year. Sala signed an agreement for a three year tour until
    September 14, 2007.
    During her tenure in St. Croix, Sala was the only female special agent assigned to
    the office. In March 2007, Sala requested to extend her tour for an additional year, until
    2
    September 14, 2008. Despite the fact that Resident Agent in Charge, Labron Eugene
    Hawk, Sala‟s male supervisor, had given her generally positive employment evaluations,
    he advised against the DEA‟s granting her a one-year extension. Upon receiving Hawk‟s
    recommendation, Jerome Harris, Special Agent in Charge for the Caribbean Division,
    requested that Hawk write a memorandum explaining the basis for it. On March 28,
    2007, Hawk submitted a memorandum that cited 25 incidents as his justification for why
    Harris should not extend Sala‟s agreement. Approximately a month later, on April 30,
    2007, Harris relied on the information contained in Hawk‟s memorandum and denied
    Sala‟s request. After her extension was denied, Sala submitted a list of the top seven
    locations to which she wanted to transfer. She was assigned to her second choice,
    Orlando, Florida.
    On July 22, 2008, Sala initiated the present litigation. The District Court
    dismissed one of Sala‟s claims, and the parties proceeded with discovery on her
    remaining claims. At the close of discovery, the government moved for summary
    judgment. The District Court granted the motion and entered judgment against Sala. She
    has appealed only her discrimination and hostile work environment claims.
    II. Discussion
    The District Court had jurisdiction pursuant to 
    28 U.S.C. § 1331
    , and we have
    jurisdiction pursuant to 
    28 U.S.C. § 1291
    . We exercise plenary review of the District
    Court‟s order granting summary judgment, and, in doing so, “must view the facts in the
    light most favorable to the non-moving party, and draw all reasonable inferences
    therefrom in that party's favor.” N.J. Transit Corp. v. Harsco Corp., 
    497 F.3d 323
    , 326
    3
    (3d Cir. 2007). Summary judgment is appropriate when there “is no genuine dispute as
    to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
    Civ. P. 56(a).
    A. Discrimination
    Sala attempted to prove her discrimination claim under a pretext theory. To do
    this, she must first establish a prima facie case by showing that she was a member of a
    protected class, that she was qualified for the position, that she suffered an adverse
    employment action, and that the action occurred in such a way as to give rise to an
    inference of intentional discrimination. Makky v. Chertoff, 
    541 F.3d 205
    , 214 (3d Cir.
    2008) (citing McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802 (1973)). Once she
    established her prima facie case, an inference of discriminatory motive arose and the
    burden shifted to the employer “to articulate a legitimate, non-discriminatory reason for
    the adverse employment action.” 
    Id.
     If the employer articulates such a reason, “the
    inference of discrimination drops and the burden shifts back to the plaintiff to show that
    the defendant's proffered reason is merely pretext for intentional discrimination.” 
    Id.
    Here, the District Court concluded that Sala failed to present a prima facie case of
    discrimination because she could not establish an adverse employment action.
    An adverse employment action involves “a significant change in employment
    status, such as hiring, firing, failing to promote, reassignment with significantly different
    responsibilities, or a decision causing a significant change in benefits.” Burlington
    Indus., Inc. v. Ellerth, 
    524 U.S. 742
    , 761 (1998). In other words, the action by the
    employer must be “serious and tangible enough to alter an employee‟s compensation,
    4
    terms, conditions, or privileges of employment.” Storey v. Burns Int'l Sec. Servs., 
    390 F.3d 760
    , 764 (3d Cir. 2004) (quoting Cardenas v. Massey, 
    269 F.3d 251
    , 263 (3d Cir.
    2001)). Sala asserts that she suffered an adverse employment action because she lost the
    benefits of twenty additional days of paid home leave and St. Croix‟s higher cost of
    living allowance when her service agreement was not extended for an additional year. In
    response, the government contends that Sala‟s transfer to Orlando did not result in any
    significant change in benefits. The government argues that the reason that Sala never
    obtained the paid home leave or cost of living allowance was because these benefits are
    acquired only if an employee‟s service agreement is converted from three to four years.
    We conclude that the District Court erred when it determined that Sala did not
    suffer an adverse employment action. Sala experienced a significant change in her
    benefits when she lost twenty days of paid home leave as a result of the DEA‟s decision
    not to extend her service agreement. See Orr v. City of Albuquerque, 
    417 F.3d 1144
    ,
    1150-51 (10th Cir. 2005) (finding a diminishment in leave an adverse employment
    action). Although the home leave was conditioned on an extension of her service
    agreement, it was error for the court to conclude that Sala did not suffer an adverse
    employment action merely because the DEA possessed discretion on whether to extend
    the agreement. See Russell v. Principi, 
    257 F.3d 815
    , 819 (D.C. Cir. 2001) (holding that
    an employee‟s negative employment evaluation which resulted in the denial of a purely
    discretionary bonus constituted an adverse employment action); see also Ezold v. Wolf,
    Block, Schorr and Solis-Cohen, 
    983 F.2d 509
    , 523 (3d Cir. 1993).
    5
    Under McDonnell Douglas, Sala needed to raise only an inference of
    discrimination to meet her initial burden and establish a prima facie case. See, e.g.,
    Swierkiewicz v. Sorema N. A., 
    534 U.S. 506
    , 510 (2002). The particular reasons why the
    DEA declined to extend Sala‟s agreement were more appropriately raised at the second
    step of the analysis when the burden shifted to the Government to articulate a legitimate
    non-discriminatory reason why the service agreement was not extended. See Ezold, 
    983 F.2d at 523
    . We conclude that Sala has established a prima facie case of discrimination
    due to the loss of the home leave allowance.
    We next consider whether the District Court erred when it ruled, in the alternative,
    that Sala could not prove that the Government‟s alleged non-discriminatory reasons were
    merely a pretext for unlawful discrimination. Hawk offered twenty-five reasons why he
    recommended the denial of Sala‟s request to extend her assignment. These included (1)
    her violation of DEA policies involving travel, (2) her failure to deliver a prisoner for
    grand jury testimony in San Juan, Puerto Rico, (3) her involvement in leaving a prisoner
    unattended in the DEA office‟s holding cell, (4) her failure to properly maintain case
    files, (5) her increasing friction within the office and with other agencies, and (6) the
    numerous complaints he received from other special agents about her conduct.1 Sala
    does not dispute the factual basis for Hawk‟s contentions; therefore, the burden shifts to
    her to prove pretext. See Atkinson v. LaFayette Coll., 
    460 F.3d 447
    , 454 (3d Cir. 2006).
    1
    Although Hawk did not make the final determination on whether Sala‟s
    extension should be granted, his opposition was the primary reason Harris denied her
    request. Therefore, we find that Hawk‟s memorandum was the proximate cause and
    motivating factor for Sala‟s adverse employment action. See Staub v. Proctor Hosp., ___
    U.S. ___, 
    131 S. Ct. 1186
    , 1191-92 (2011).
    6
    To prove pretext and rebut an employer‟s legitimate non-discriminatory reasons
    for an adverse employment action, the employee “must point to some evidence, direct or
    circumstantial, from which a factfinder could reasonably either (1) disbelieve the
    employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory
    reason was more likely than not a motivating or determinative cause of the employer's
    action.” Fuentes v. Perskie, 
    32 F.3d 759
    , 764 (3d Cir. 1994). This requires the employee
    to “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
    contradictions in the employer's proffered legitimate reasons for its actions that a
    reasonable factfinder could rationally find them unworthy of credence.” 
    Id. at 765
    (internal quotations omitted); see Kautz v. Met-Pro Corp., 
    412 F.3d 463
    , 467 (3d Cir.
    2005) (“We have applied the principles explained in Fuentes to require plaintiffs to
    present evidence contradicting the core facts put forward by the employer as the
    legitimate reason for its decision”). The evidence the employee provides need not
    “include evidence of discrimination [because], . . . in appropriate circumstances, the trier
    of fact can reasonably infer from the falsity of the explanation that the employer is
    dissembling to cover up a discriminatory purpose.” Kautz, 
    412 F.3d at 467
     (quoting in
    part Reeves v. Sanderson Plumbing Products, Inc., 
    530 U.S. 133
    , 147 (2000)) (internal
    quotations omitted).
    Sala asserts that Hawk‟s proffered non-discriminatory reasons are pretexual
    because she consistently received positive employment evaluations from him. As Sala
    points out, stark and glaring contradictions exist between her annual reviews and the
    memorandum Hawk submitted in support of his recommendation not to extend her
    7
    service agreement. For example, Hawk asserted in the memorandum that “Sala . . . has
    fallen short of what DEA should expect of someone with her time on the job.” However,
    in her employment evaluation that occurred approximately a year earlier, Sala was
    described as an “asset” to the office that possessed “a wide range of experience with
    DEA and will likely be a future leader in this organization.” In another portion of the
    memorandum Hawk claimed Sala “caused problems within the St. Croix” Office and
    between the DEA and Task Force Officers of the Virgin Islands Police Department. Her
    employment evaluations did not support this assessment. Rather, Sala was described as
    “a team player,” and “a tremendous asset,” who “formed strong bonds with several
    members” of the office and has even served as a “mentor” to an officer from the Virgin
    Islands Police Department.
    Perhaps the best example of the inconsistencies between Sala‟s employment
    evaluations and Hawk‟s memorandum was his characterization of her work on “a very
    old and complex investigation know as „The Commission Investigation.‟” According to
    her evaluation:
    This high-profile and in-depth case has left many lesser agents by the
    wayside. SA Sala was asked to accept this case because of her can-do
    attitude and she has done an outstanding job of moving the case forward.
    SA Sala has also made great strides in the case by bringing witnesses
    forward that had refused to cooperate with other agents in the past. Some
    of these witnesses would not cooperate with local officers but did cooperate
    with SA Sala . . .. This is rare on the island of St. Croix and is a credit to
    SA Sala‟s abilities.
    8
    In his memorandum, however, Hawk downplayed the significance of Sala‟s efforts on the
    case and criticized her work ethic and relationships with the local Virgin Island Police
    officers.
    When viewed in their totality, Sala‟s positive annual employment evaluations raise
    serious questions of material fact as to whether the reasons articulated by Hawk in his
    memorandum merely served as a pretext for unlawful discrimination. See Cole v.
    Ruidoso Mun. Schs., 
    43 F.3d 1373
    , 1380 (10th Cir. 1994) (finding pretext when the
    employee presented evidence of “glaring contradictions” between her evaluations and the
    employer‟s proffered reason for adverse action); see also Fisher v. Pharmacia & Upjohn,
    
    225 F.3d 915
    , 921-22 (8th Cir. 2000) (holding similarly). A jury may conclude that the
    description of Sala‟s accomplishments and abilities depicted in the evaluations provide
    evidence of pretext because they starkly contrast with the reasons proffered in Hawk‟s
    memorandum for why her extension should not be granted. See Green v. New Mexico,
    
    420 F.3d 1189
    , 1193 (10th Cir. 2005) (citing Greene v. Safeway Stores, Inc., 
    98 F.3d 554
    ,
    564 (10th Cir. 1996)). Therefore, since a jury may conclude that Sala‟s request to extend
    her service agreement was denied for discriminatory reasons, we find that the District
    Court erred in granting summary judgment.2
    2
    We also note that “to avoid summary judgment,” an employee need not “cast
    doubt on each” of the employer‟s proffered “bagful” of legitimate non-discriminatory
    reasons. Fuentes, 
    32 F.3d at
    764 n.7. Instead, she need only “cast substantial doubt on a
    fair number of them . . . to discredit the remainder.” 
    Id.
     We find that the contradictions
    between Sala‟s employment evaluations and the reasons contained in Hawk‟s
    memorandum as justification for his recommendation that the DEA not extend her
    service agreement “may impede [the government‟s] credibility seriously enough so that a
    9
    B. Hostile Work Environment
    To state a claim under Title VII for discrimination resulting from a hostile work
    environment, Sala must demonstrate that she suffered intentional discrimination because
    of her sex, that the discrimination was pervasive and regular, that she was detrimentally
    affected by it, that a reasonable person of the same sex in that position would have been
    detrimentally affected, and that there is respondeat superior liability. Andreoli v. Gates,
    
    482 F.3d 641
    , 643 (3d Cir. 2007). Sala asserts that the District Court erred because it
    concluded that she did not suffer intentional discrimination on the basis of her sex, that
    her alleged discrimination was not pervasive or regular, and that she failed to prove the
    existence of respondeat superior liability. Hawk, however, concedes that he was Sala‟s
    direct-line supervisor and the existence of respondeat superior liability.
    For purposes of this analysis, we will assume that any discrimination Sala suffered
    was because of her sex. Consequently, we will examine whether the alleged
    discrimination was “sufficiently severe or pervasive to alter the conditions of the victim's
    employment and create an abusive working environment.” Harris v. Forklift Sys., Inc.,
    
    510 U.S. 17
    , 21 (1993). In making this determination, we analyze whether the alleged
    discrimination was objectively detrimental to the victim, 
    id.,
     and focus on the totality of
    the circumstances, including such factors as “the frequency of the discriminatory
    conduct; its severity; whether it is physically threatening or humiliating, or a mere
    factfinder may rationally disbelieve [its] remaining proffered reasons,” 
    id.,
     without any
    particular evidence “undermining” those reasons, 
    id.
    10
    offensive utterance; and whether it unreasonably interferes with an employee's work
    performance.” 
    Id. at 23
    .
    Sala asserts that the harassment she endured during her tenure consisted of the
    following actions by Hawk: (1) on one occasion, she received an E-mail from him
    entitled “You „The aggressive Woman‟ will like this” that contained an attached video
    clip of two male law enforcement officers tasering a female into submission during a
    vehicle stop, (2) commented about her appearance in “tight jeans with a gun and a
    badge,” (3) denied her access to the office‟s gun safe despite her qualifications to handle
    firearms, (4) selected males as the acting agent in charge of the office during periods of
    his absence, and (5) treated her differently than male agents regarding work related
    travel.
    After careful examination of the record, we find that none of Hawk‟s actions
    created a genuine issue of material fact as to whether he pervasively, regularly, or
    severely discriminated against Sala so as to alter the conditions of her employment and
    create a hostile environment. See Weston v. Pennsylvania, 
    251 F.3d 420
    , 426 (3d Cir.
    2001).
    In particular, Sala‟s most serious claim, the incident regarding the video clip, only
    occurred once and is most appropriately viewed as a “sporadic” or “offhand comment”
    that did not alter the terms and conditions of her employment. See Clark Cnty. Sch. Dist.
    v. Breeden, 
    532 U.S. 268
    , 271 (2001); see also Weston, 
    251 F.3d at 428
     (“The mere
    utterance of an epithet, joke, or inappropriate taunt that may cause offense does not
    sufficiently affect the conditions of employment to implicate Title VII liability”).
    11
    Similarly, Hawk‟s comment about Sala‟s appearance in “tight jeans with a gun and
    badge” is also a single isolated comment that did not create an atmosphere of harassment.
    See Drinkwater v. Union Carbide Corp., 
    904 F.2d 853
    , 863 (3d Cir. 1990). Ultimately,
    Sala failed to present a prima facie case of a hostile work environment because she did
    not offer any evidence that Hawk‟s alleged discriminatory conduct detracted from her job
    performance, discouraged her from remaining on the job, kept her from advancing her
    career, or altered the conditions of her employment. See Faragher v. City of Boca Raton,
    
    524 U.S. 775
    , 787-88 (1998).
    III. Conclusion
    For the foregoing reasons, we will affirm in part and vacate in part the judgment of
    the District Court and remand this matter for further proceedings consistent with this
    opinion.
    12
    

Document Info

Docket Number: 10-3268

Citation Numbers: 481 F. App'x 729

Judges: Fisher, Greenaway, Roth

Filed Date: 5/1/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023

Authorities (25)

Orr v. City of Albuquerque , 417 F.3d 1144 ( 2005 )

Green v. New Mexico Dept. , 420 F.3d 1189 ( 2005 )

Nancy O'Mara Ezold, at No. 91-1780 v. Wolf, Block, Schorr ... , 983 F.2d 509 ( 1993 )

Curtis Blaine Storey v. Burns International Security ... , 390 F.3d 760 ( 2004 )

Greene v. Safeway Stores, Inc. , 98 F.3d 554 ( 1996 )

texanita-cole-plaintiff-appellantcross-appellee-v-ruidoso-municipal , 43 F.3d 1373 ( 1994 )

Richard J. Kautz v. Met-Pro Corporation , 412 F.3d 463 ( 2005 )

Makky v. Chertoff , 541 F.3d 205 ( 2008 )

michael-a-weston-deborah-weston-hw-v-commonwealth-of-pennsylvania-dba , 251 F.3d 420 ( 2001 )

Gerard Cardenas v. Jon Massey James Rebo Robert Lipscher ... , 269 F.3d 251 ( 2001 )

New Jersey Transit Corp. v. Harsco Corp. , 497 F.3d 323 ( 2007 )

Eve Atkinson v. Lafayette College Arthur J. Rothkopf, ... , 460 F.3d 447 ( 2006 )

Luis A. Fuentes v. Steven P. Perskie, Chairman of the New ... , 32 F.3d 759 ( 1994 )

janice-andreoli-v-robert-m-gates-secretary-of-defense-keith-lippert , 482 F.3d 641 ( 2007 )

Marvin L. Fisher v. Pharmacia & Upjohn , 225 F.3d 915 ( 2000 )

Russell, Lisa K. v. Principi, Anthony J. , 257 F.3d 815 ( 2001 )

56-fair-emplpraccas-483-53-empl-prac-dec-p-40002-dorothy-drinkwater , 904 F.2d 853 ( 1990 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Harris v. Forklift Systems, Inc. , 114 S. Ct. 367 ( 1993 )

Burlington Industries, Inc. v. Ellerth , 118 S. Ct. 2257 ( 1998 )

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