The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
In this employment discrimination lawsuit, pro se plaintiff Esco Lewis Blaylock, III (―Blaylock‖) is suing his former employer, the Transportation Security Administration (―TSA‖), an agency within the United States Department of Homeland Security, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-16, alleging that TSA unlawfully discriminated against him by not promoting and by ultimately firing him based on his race and sexual orientation. Blaylock claims he is a bisexual male and has Native American ancestry.
Before the Court is defendant's motion for summary judgment. The Court's federal question jurisdiction is undisputed and proper pursuant to 28 U.S.C. § 1331. Venue is also undisputed, and is proper in this Court pursuant to 28 U.S.C. § 1391(e)(2).
On August 25, 2002, Blaylock began working at Newark Liberty International Airport as a Transportation Security Officer with TSA. (Pl.'s Nar. Statement ¶ 1.) On or about January 25, 2004, Blaylock submitted a promotion application for the position of Supervisory Transportation Security Screener. (Pl.'s Nar. Statement ¶ 10.) In order to generate a list of certified candidates for the position, TSA headquarters in Virginia utilized a human resources contractor (―HR contractor‖) to develop a list of applicants who could be certified as meeting the basic qualifications. (Ruiz Decl., Sept. 11, 2008, ¶ 4.) A group of 27 Newark Airport screening supervisors and managers formed a panel that evaluated the 143 certified candidates the HR contractor provided. (Ruiz Decl., ¶¶ 2-3.)
As the first requirement listed under ―Qualification Requirements,‖ the position vacancy announcement specified that ―All applicants must demonstrate at least six months of experience performing the duties of a Lead Transportation Security Screener.‖ (Ruiz Decl., Exh. A at 3.) Although Blaylock did not meet that criterion (Blaylock Dep. 116:5-9), he submitted his application anyway, and advanced through the first selection round with a score of 16 out of 18, which placed him among the 73 candidates on the ―primary list.‖ (Ruiz Decl. ¶ 8.) The panel members were then given the opportunity to oppose promotion of any of those 73 candidates by justifying, in writing, their reasons for opposing a given candidate's promotion, after which the candidate was eliminated from the process. (Id.)
Three panel members, all supervisors who worked with Blaylock, opposed his candidacy. Their written notes describe him as unreliable, lacking leadership skills, and possessing an insubordinate attitude. (Ruiz Decl., Exh. F3 at 22-24). Henry Murray wrote that Blaylock ―would not report to assignments he did not want. He would constantly get lost and not tell his supervisors.‖ Another supervisor, Lawrence Callahan, believed Blaylock ―show[ed] little initiative to work lanes and perform other screening duties and exhibits no leadership skills.‖ According to supervisor Curtis Harriott, Blaylock ―never worked any position other than the exit lane and never willingly accepts any task given,‖ and Blaylock ―does not see the big picture.‖ (Ruiz Decl., Exh. F3 at 22-24 (copies of individual signed statements by Murray, Callahan and Harriott).) In his motion papers, Blaylock asserts that his co-workers ―praised [him] for his . . . duties and hard days work . . . [and] willingness to stay [overtime]‖ (Pl.'s Nar. Statement ¶ 8), but he does not present third-party support for this.
Blaylock asserts that his co-workers and supervisors made fun of his Native American heritage and sexual orientation, and generally ―hazed‖ him during work. (Pl.'s Nar. Statement ¶¶ 4-5, 9, 11, 21-24, 33-34.) In his factual narrative, Blaylock identifies fellow screeners Tina McLeod and Jerrell Jones as potential witnesses, but he does not provide affidavits or other documentary evidence from them. (D.E. 110-4, p. 24.) No other evidence appears in the record that co-workers or supervisors made disparaging comments about Blaylock's heritage or sexual orientation. Blaylock did formally complain that he was being mocked by co-workers, and documents show that TSA granted Blaylock's December 10, 2004 request for lane change a few days later. (Cf. Perron Decl. Exs. F (request for schedule change), H (email correspondence discussing granted transfer); see also Pl.'s Nar. Statement ¶¶ 21-25.)
By his own account, Blaylock's grounds for Native American racial identity are premised on an informal conversation with his father ―sometime in 2002,‖ from which Blaylock asserts that he discovered his heritage to be Native American from the Blackfoot Tribe. (Pl.'s Mem. Disp. Summ. J. 3.) Blaylock testified that he did not identify himself as Native American on his TSA application. (Blaylock Dep. 67:11-13, Apr. 16, 2008.) According to Blaylock, his great-grandmother on his father's side is Native American.*fn1 (Blaylock Dep. 64:21-67:1, Apr. 16, 2008.) Blaylock testified that he has not further investigated his Native American heritage despite the fact that his great-grandmother lives in the Bronx, New York, as did Blaylock at the time briefing was submitted. (Id.) Blaylock also testified that he never lived on a Native American reservation, has never attended any Blackfoot events, and is unsure exactly where the Blackfoot reservation is located, other than that it is somewhere in upstate New York. (Blaylock Dep. 93:5-18, May 14, 2008; Blaylock Dep. 64:24-25, 67:3-9, April 16, 2008.)
Blaylock testified that a few TSOs inquired about his race, and asserted that people felt he looks ―more of a Native American‖ during the summer time ―because [his] skin becomes real red . . . .‖ (Blaylock Dep. 63:22-64:10, April 16, 2008.)
Q: Did you state on your application for employment with TSA that you were Native American?
A: Initially, no, I haven't.
Q: Did your application for promotion in 2004 state that you were Native American?
Q: Did you ever tell any TSA employee that you were of Native American ancestry?
A: Yes. An employee asked me, and I said yes.
Q: What employee was that?
A: I'm not certain of the name. I know we called her Z. I think it started with a Z. She's a lead but I forgot her name.
(Blaylock Dep. 67:11-23, April 16, 2008.) Blaylock further testified about the manner in which other TSA co-workers learned and inquired about his purported Native American identity:
Q: This TSA employee who was a security screener who asked you if you were a Native American, did she ask it in a nice way?
A: In a matter of fact way.
Q: Did she ask it in an offensive way?
Q: Okay. So you were not offended by her inquiry.
Q: Okay. What did you tell her?
Q: Now, did you speak with anyone else at TSA about the fact that you were Native American?
A: Thereafter, two other people asked me about my heritage.
Q: Who was the -- what was the next time when someone asked you about your Native American heritage?
A: It was shortly after -- I can't elaborate the time distance, but it was, you know, maybe the next day, next two days. We had a Native American actually working on the checkpoint that I didn't know about, you know, what his heritage was, and he asked me.
Q: So this was in early 2004?
Q: And what was that employee's name?
A: Rudolph -- short for Rudy. I'm not sure of his last name, but he's a lead screener now.
Q: At what checkpoint; do you know?
A: The last I know when I worked there, he was at A2. Right now, I don't know.
A: Well, he asked me also, he says hey, I heard you was Native American.
Q: Okay. And what did you respond?
A: I said yes, I am. He asked me who was Native American in my family, and I told him my father.
A: Thereafter, he asked me have I ever been to a powwow and such and such, you know. I told him no. That was something that was just new to me.
Q: Okay. And did you ask Rudolph about his Native American background?
Q: Did he invite you to a powwow?
Q: Did you consider his inquiry offensive?
Q: Did you tell him who told him that you had Native American ancestry?
Q: Did you ask the other woman who asked if you were Native American, did you ask her how she heard?
Q: Okay. So you're not sure how Rudolph or this other woman heard about your Native American ancestry, correct?
Q: Okay. Were you insulted by Rudolph's inquiry?
Q: Okay. And then you mentioned a third person who spoke to you about your Native American ancestry?
A: They mentioned it briefly along with another comment, which was insulting.
Q: Okay. When was this conversation?
A: This was during -- I was doing an overtime shift in checkpoint C2 in 2004 -- I think it was early 2004 -- and while this was just as the shift was about to change -- no, no, no. This was on my day off, because I often worked seven days out of the week. So I'd come in on my regular day off and I would work different checkpoints other than my, you know, regular checkpoint. I may be at C2. I may be in baggage. You know, wherever they may need me. So that particular day, I was at C2.
We had a supervisor -- I'm trying to think of his name. But he had asked me -- he had asked me -- he says -- he had mentioned about my heritage, but then he had said, you know, out loud, you know, by the podium, and you're not gay, are you? Just like that.
Q: What's this supervisor's name?
A: And it wouldn't narrow it down if I say he has gray hair. I forget his name, but he has relations with the lead, the female that I spoke about.
Q: What time of day was it?
A: This was in the -- this was during the morning shift, the first shift.
Q: Okay. What time would that be?
A: It could have been between 10:00, 11:00, because it was relatively -- the rush hour slowed down, so I'm only approximate it was around that time.
Q: And who else was present?
A: You had people in the distance but not close enough. I'm not sure whether they heard or not, and I didn't check to see if anybody did hear, because I wanted to try to save face and, you know, not even acknowledge it. But it was offensive to me.
Q: Do you know the names of the any people who were present at that time?
Q: So I guess it would be fair to say you don't know the names of anybody who heard that comment.
A: Yeah. I mean you know, I don't know their names. You know, I don't know their names.
Q: And you don't know if they heard.
A: I can only assume, because the podium is here and the first immediate lane, it was -- it's to the right. That's the closest. So you had people right there. I mean, the way that checkpoint is designed, you voice can echo. And it --
Q: So how many people do you think heard?
A: The four people that was on that lane. I don't know that lane -- I don't know their names, because I don't readily work that checkpoint.
Q: On this occasion, was your Native American ancestry brought up?
A: I mean, at first the comment was made about, you know, my Native American ancestry, but then it was just -- that comment came out real quick.
Q: What was the comment about your Native American ancestry?
A: You're Native American? What, and you're gay? Like that.
Q: Was it ―What, and you're gay?‖ Or ―You're not gay.‖
A: Something along that lines, you know. It was some time ago, but it was something along that lines, and I became extremely offended by it, and that's what, you know, really prompted me to, you know, officially file that EEO.
(Blaylock Dep. 72:10-78:21, April 16, 2008 (portions omitted).)
On his sexual identification, Blaylock characterizes himself as ―a male who is bisexual‖ in the first paragraph of his Statement of Facts (Pl.'s Statement Facts 3), and he testified in his deposition that he has had four or five sexual encounters with male-to-female transsexuals and/or male-to-female transvestites. (Blaylock Dep. 55:24-58:15, April 16, 2008.)
The record shows that within the six months prior to his termination on November 21, 2006, Blaylock was involved in two separate incidents with airline passengers on their way through security checkpoints at Newark Liberty International Airport. Vincent Mossa, one of Blaylock's supervisors, testified that on July 7, 2006 passenger Norberto Pagan filed a complaint against Blaylock for being rude, aggressive, and argumentative with Pagan and his wife. (Mossa Dep., Apr. 30, 2008, 43:6-44:22.)
Later that month, on July 23, 2006, a second incident occurred between Blaylock and a handicapped individual, Rogelio Marroquin, a non-passenger who was given a visitor pass to assist his elderly mother through the security checkpoint. (Pl.'s Mem. Disp. Summ. J. 13-14.) There is some dispute as to whether Blaylock pushed or shoved Marroquin and whether he damaged Marroquin's cell phone during the incident, but Blaylock states that Marroquin quickly filed a grievance against him with Michael Lynch, one of Blaylock's supervisors, regarding this encounter with Blaylock at the security checkpoint. (Pl.'s Mem. Disp. Summ. J. 15.)
On September 19, 2006, TSA informed Blaylock of its intention to terminate his employment.*fn2 (Pl.'s Nar. Statement ¶ 57.) On November 1, 2006, however, TSA offered Blaylock the opportunity to retain his job with TSA at Newark if he agreed to dismiss all pending EEOC proceedings against TSA, and relinquished his right to file any future complaints if he were to be terminated after accepting this agreement. (Pl.'s Nar. Statement ¶¶ 58-59.) After Blaylock rejected this so-called Last Chance Agreement, TSA terminated Blaylock's employment on November 21, 2006. (Pl.'s Nar. Statement ¶¶ 60, 62.)
B. Blaylock's EEOC Complaints and the Present Action
On December 28, 2003, shortly before submitting his application for promotion, Blaylock filed a complaint with the Equal Employment Opportunity Commission (―EEOC‖) alleging that other TSA security screeners made ―constant remarks about his sexual orientation . . . and . . . his heritage‖ at work. (Pl.'s Mem. Disp. Summ. J. 5.) After being denied the Supervisory Transportation Security Screener promotion in March 2004, Blaylock revised his original complaint to include a complaint of discrimination in the promotion selection process, based on his race and sexual orientation. (Pl.'s Mem. Disp. Summ. J. 8.) The allegations within the amended complaint were investigated by the EEOC, and subsequently dismissed in a hearing by Administrative Judge Francis A. Polito on October 12, 2005. (Perron Decl., Oct. 22, 2008, Exh. P at 1.) Judge Polito ruled that Blaylock's sexual preference is not a protected class under Title VII of the Civil Rights Act, so any discrimination based on his sexual orientation instead could be regarded as sexual harassment, but in that case Blaylock had not offered sufficient evidence to make that claim. (Perron Decl., Exh. P at 4.) As to Blaylock's claim of race discrimination, Judge Polito ruled that although Blaylock established a prima facie case of race discrimination, TSA nonetheless put forth legitimate non-discriminatory reasons for his non-promotion, and Blaylock had not shown those reasons to be simply a pretext for race discrimination. (Perron Decl., Exh. P at 4-6.) The legitimate non-discriminatory reasons included a lack of ―requisite experience . . . appropriate conduct . . . [and] attitude for the supervisory position at issue.‖ (Perron Decl., Exh. P at 5.) Further, primarily due to a lack of evidence, Judge Polito rejected Blaylock's allegations that his co-workers' derogatory comments were linked to his subsequent non-promotion. (Perron Decl., Exh. P at 6.)
On November 17, 2006, only days before being terminated by TSA and over a year after Judge Polito's ruling dismissing his complaint, Blaylock appealed. (Perron Decl., Exh. P at 0120070723.) The EEOC reviewed de novo and affirmed Judge Polito's decision finding that a preponderance of the record evidence did not establish any occurrence of discrimination in the March 17, 2004 promotion selection process. (Perron Decl., Exh. P at 0120070723.) The EEOC appellate decision was issued on April 27, 2007, and included a right to sue letter. (Perron Decl., Exh. P at 0120070723.)
In the federal lawsuit, Blaylock alleges that his non-promotion in March 2004 and termination in November 2006*fn3 resulted from discrimination against him based on his race and sexual orientation, thereby violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-16.*fn4
III. STANDARD FOR SUMMARY JUDGMENT
Summary judgment shall be granted only 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). The Court's obligation is to ―[view the facts] in the light most favorable to the nonmoving party and [must] draw all inferences in that party's favor.‖ Gray v. York Newspapers, 957 F.2d 1070, 1078 (3d Cir. 1992).
In order to successfully counter a summary judgment motion, the nonmoving party must provide ―specific facts‖ showing that there is a genuine issue of material fact that must be decided through a trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When deciding if there is a genuine issue, the Court must draw all justifiable inferences in the favor of the nonmoving party, and that party's evidence must be regarded as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Title VII of the Civil Rights Act of 1964 states in pertinent part:
It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .
It shall [also] be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). Section 1983 of the Civil Rights Act of 1871 provides private individuals the option to sue based on violation(s) of federally-protected rights, and enforce rights such as the prohibition of public sector employment discrimination based on race, color, religion, sex, or national origin, as stated supra in Title VII. 42 U.S.C. § 1983.
Under the traditional McDonnell Douglas burden-shifting paradigm for analyzing employment discrimination actions, the plaintiff has the initial and relatively light burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-04 (1973); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The defendants must then posit a legitimate non-discriminatory justification in response. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). If such justifications are put forth, the discriminatory inferences are dispelled, and the burden of going forward returns to the plaintiff to rebut those justifications as pre-textual. Id.
To defeat summary judgment at the third stage of the McDonnell Douglas analysis, the plaintiff ―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.‖ Id. at 764. To do this, the plaintiff may not nakedly refute the non-discriminatory justification as unbelievable; but the plaintiff is not required to ―adduce evidence directly contradicting the defendant's proffered legitimate explanations ..‖ Id. To defeat summary judgment, ―the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, contradictions, or incoherence in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‗unworthy of credence.'‖ Id. at 765(quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992) (emphasis inserted in Fuentes)).
B. Application of Law to the Facts
1. Race Discriminations Claims
The elements of a prima facie case ―must not be applied woodenly, but must rather be tailored flexibly to fit the circumstances of each type of illegal discrimination.‖ Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d Cir. 1996).
a. Prima Facie Claim of Termination Based on Race
To establish a prima facie case of discriminatory treatment based on race, Blaylock must establish: (1) is a member of a protected class; (2) was qualified for the position he held; (3) was fired from that position; and (4) suffered adverse action under circumstances that give rise to an inference of discrimination. Johnson v. St. Luke's Hosp., 307 Fed. App'x 670, 671-72 (3d Cir. 2009) (citing Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999)).
As to the protected class element, drawing inferences in favor of the non-movant, despite thin, anecdotal evidence, the Court will accept Blaylock's identification as a Native American, and there is no dispute that he ...