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Pagan v. Holder


October 5, 2010


The opinion of the court was delivered by: Irenas, Senior District Judge


Plaintiff Marisol Pagan ("Plaintiff") initiated this employment discrimination action against the Department of Justice, the Federal Bureau of Prisons and the United States Attorney General, Eric Holder. Plaintiff alleges that she was discriminated against on the basis of her sexual orientation, age, sex and race, and that she was the victim of sexual harassment and retaliation. Pending before the Court is Defendants' Motion for Summary Judgment.


Since 1992, Plaintiff has been employed by the United States Department of Justice, Bureau of Prisons, at the Federal Correctional Institution at Fort Dix, New Jersey ("FCI"). (Defs' 56.1 Stat. ¶2)*fn1 As a recreation specialist in the east compound unit of FCI, Plaintiff can be assigned to either the gymnasium, wellness center or hobby shop. (Id. ¶4) Plaintiff had been assigned to the hobby shop for many years. (Id. ¶7) Following the implementation of a rotation system in 2004, Plaintiff was assigned to the gymnasium and wellness center and then back to the hobby shop in 2009.*fn2 (Id. ¶7, Pl's Resp. ¶4)*fn3 The rotation system was implemented by Brett Conley ("Conley"), supervisor of recreation and Plaintiff's immediate supervisor. (Defs' 56.1 Stat. ¶7c)

Although most of Plaintiff's allegations of discrimination involve actions by Conley, her racial discrimination claim is based on a statement made in 1993 by the FCI warden upon Plaintiff's election as president of the union.*fn4 Plaintiff alleges the warden said to her, "Congratulations, the Puerto Ricans are moving up in the world."*fn5 (Id. ¶17)

Plaintiff alleges that Conley made a number of offensive comments about her sexual orientation. He has allegedly referred to her as a "lesbian" and a "dyke," told inmates to "stay away from that lesbian," and expressed disapproval of her "lifestyle." (Id. ¶14). In addition, at some point prior to 2000, Plaintiff believes Conley placed a bicycle handle on her desk made to resemble a "dildo"*fn6 with the words "eat me" written on it ("bicycle handle incident"). (Id.) Plaintiff believes Conley was responsible for this incident because he appeared grinning at her door shortly after she found it. (Id.)

Plaintiff alleges that Conley also demonstrated age-based animus towards her. (Id. ¶15) According to Plaintiff, after she had a hysterectomy in 2002, Conley told her she was "walking like an old lady." (Id. ¶15) Plaintiff alleges that Conley stated "I'm kidding" at the time he made the comment.*fn7 (Id.)

Plaintiff alleges that she suffered retaliation following her August 7, 2004 request for a transfer due to "continuous years of discriminatory harasssment [sic] and retaliation from Recreation Supervisors." (Pl's Resp. ¶19) In September 2004, Plaintiff was rotated to the gymnasium pursuant to Conley's newly-instituted rotation system. (Defs' 56.1 Stat. ¶7) Plaintiff contends that her rotation out of the hobby shop where she had worked for many years constituted retaliation and further evidence of discrimination.*fn8 (Id. ¶7b) Plaintiff did not like working in the gymnasium because she would often work alone with over one hundred inmates. (Id. ¶25c) However, all recreational specialists routinely worked alone in the gymnasium. (Id.)

Plaintiff's union filed a grievance to protest her rotation from the hobby shop, but the rotation was upheld. (Id.) Despite this, Plaintiff vowed to fight Conley on the rotation. (Id.) After her rotation to the gymnasium, Plaintiff ignored three requests to remove her belongings from the hobby shop. (Id. ¶25b) On October 20, 2004, while removing her belongings, Plaintiff suddenly became ill with chest pains and was transported via ambulance to the hospital. (Id. ¶30) Her doctor diagnosed her with "severe panic attacks and depression...stemming from work related stress."*fn9 (Anger Dec. Ex. G)

On November 2, 2004, Plaintiff filed her first Equal Employment Opportunity Commission (EEOC) complaint.*fn10 (Defs' Rule 56.1 Stat. ¶7a) In it she alleged discrimination based on her status as a "Hispanic Female Lesbian." (Anger Dec. Ex. D) Plaintiff reported a series of incidents of discrimination by Conley primarily regarding his alleged discriminatory intent to remove Plaintiff and her belongings from the hobby shop permanently. (Id.) Notably, Plaintiff did not report in her EEOC complaint the warden's 1993 "moving up in the world" comment, the bicycle handle incident, or Conley's comment that she was "walking like an old lady." (Anger Dec. Ex. D)

On February 28, 2005, Plaintiff was notified by the warden that an accommodation had been made for stress by placing Plaintiff and Conley in different compounds. (Defs' Rule 56.1 Stat. ¶32) Despite this separation, Conley frequently appeared in and wandered through Plaintiff's compound. (Id.)

On September 24, 2007, Plaintiff initiated this action. (Id. ¶11) On January 23, 2009, Plaintiff filed a motion to amend to consolidate two EEOC complaints into her pending action in this Court. (Id. ¶12) This Court granted her motion on August 28, 2009, and Plaintiff filed an Amended Complaint on October 27, 2009. (Id.) Defendants' filed the instant Motion for Summary Judgment on March 12, 2010.


"[S]ummary 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 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).


Plaintiff alleges one count under the Age Discrimination in Employment Act ("ADEA"), and five counts under Title VII of sexual harassment, retaliation, and discrimination based on race, sex, and sexual orientation.

A. Discrimination Based on Race

It is well established that federal employees who believe they are the victims of employment discrimination must comply with administrative remedies before filing a civil action in federal district court. Brown v. General Servs. Admin., 425 U.S. 820, 832 (1976); see also Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d Cir. 1997). Failure to comply with the administrative remedies renders an action time barred much like a statute of limitations. See Velazquez-Rivera v. Danzig, 234 F.3d 790, 794 (1st Cir. 2000); Hornsby v. U.S. Postal Service, 787 F.2d 87, 89 (3d Cir. 1986).

The administrative remedies require that the employee contact an EEOC counselor within 45 days of the alleged discriminatory conduct. See 29 C.F.R. § 1614.105(a)(1). If the matter is not informally resolved, the employee must file a formal complaint with the EEOC. See 29 C.F.R. § 1614.106(b); see also Robinson, 107 F.3d at 1020-21 (administrative exhaustion for Title VII requires "consultation with an agency counselor and filing a formal EEOC complaint within the required times"). If the employee is dissatisfied with the agency's final decision or if the decision was not issued within the prescribed period, then the employee may commence an action in district court. See 29 C.F.R. § 1614.107. If the employee files suit in district court, only those claims that are "fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom" are considered to have been exhausted. Moss v. Potter, 2007 WL 2900551, at *2 (3d Cir. Oct. 3, 2007) (quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984)).

Plaintiff's race claim is based on a single statement made to Plaintiff in 1993 by the warden.*fn11 Plaintiff did not consult an EEOC counselor within 45 days after this statement was made. Plaintiff did not even mention this incident in her November 2004 EEOC complaint. Therefore, Plaintiff has failed to exhaust her administrative remedies with respect to the warden's statement and it is not properly before the Court. Since Plaintiff has failed to exhaust her administrative remedies, the Court will grant summary judgment in favor of Defendants on Plaintiff's racial discrimination claim.

B. ADEA Claim

The regulations mandating timely exhaustion of administrative remedies to claims under Title VII are also applicable to claims under the ADEA. 29 C.F.R. §1614.103(a), 105(b); see also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.4 (3d Cir. 1994). Plaintiff's ADEA claim is based on Conley's statement in 2002 that she was "walking like an old lady." Plaintiff neither consulted an EEOC counselor within 45 days, nor reported the incident on her November 2004 EEOC complaint.*fn12 Therefore, the Court will grant summary judgment in favor of Defendants on Plaintiff's ADEA claim.

C. Discrimination Based on Sexual Orientation

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Discrimination based on failure to conform to gender stereotypes is cognizable discrimination on the basis of sex under Title VII. Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 290-91 (3d Cir. 2009)(citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). However, "Title VII does not prohibit discrimination based on sexual orientation." Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001).

Plaintiff alleges that Conley made a number of offensive comments about her sexual orientation, including calling her a "dyke," and a "lesbian," and making references to her "lifestyle." (Defs' 56.1 Stat. ¶14) Plaintiff attempts to characterize her allegations as discrimination on the basis of sex rather than sexual orientation. Plaintiff's Opposition Brief explains: "Pagan has alleged that Conley state [sic] to her that he did not like her lifestyle, which she believed reference [sic] her sexual orientation - that she did not comply with a gender stereotype. Pagan mis-identified the issue as sexual orientation, however the correct identification would be gender stereotyping." (Pl's Opp. Br. at 19)

This is a hollow attempt to amend the Complaint through briefing and recast a sexual orientation claim as a gender stereotyping claim. Plaintiff has offered no evidence that she behaved in a stereotypically masculine manner and that the harassment she suffered was based on her non-conformity with gender norms instead of her sexual orientation. Moreover, Plaintiff's Amended Complaint includes separate counts for discrimination on the basis of sex and sexual orientation. There is simply no basis to infer from the Amended Complaint that Conley's comments were because of Plaintiff's sex and not, as she alleges, because of her sexual orientation.

The Court will not permit Plaintiff to bootstrap protection for sexual orientation into Title VII by re-packaging her sexual orientation claim as gender stereotyping. Prowel, 579 F.3d at 292; Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2nd Cir. 2005). Accordingly, the Court will grant Defendants' Motion for Summary Judgment on Plaintiff's sexual orientation claim.

D. Discrimination Based on Sex

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination because of an individual's sex, see 42 U.S.C. § 2000e-2(a)(1).

The analysis of a Title VII action with no direct evidence of discrimination follows the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). First, the plaintiff must establish a prima facie case of discrimination by showing that (1) she is a member of a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action, and (4) circumstances exist that give rise to an inference of unlawful discrimination. Vernon v. A & L Motors, 2010 WL 2089640, at *2 (3d Cir. May 26, 2010). Once the plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the alleged discriminatory action. McDonnell Douglas, 411 U.S. at 802. Once the defendant does this, then plaintiff must present evidence that the proffered reason is pretextual. Id. at 804.

Plaintiff's sex discrimination claim depends on her allegation made to the EEOC investigator in 2005 that she was the only member of the recreation staff not to be trained and certified as a personal trainer. Plaintiff alleges that she was not given this opportunity because Conley told her "that's a guy position" and "all about lifting weights and exercising. That's for the guys." (Sunnergren Dec. Ex. C at 35)*fn13 Plaintiff has failed to establish a prima facie case because she did not present evidence that she suffered an adverse employment action.

An adverse employment action is "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." Durham life Ins. Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999)(quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). An adverse employment action may also be found where an employee's earning potential has been substantially decreased and a significant disruption to her working conditions results. Id. at 153.

Plaintiff has not alleged that she has been fired, suspended, demoted, denied a requested promotion, or suffered any other loss of pay. Instead, Plaintiff details a series of workplace slights and petty grievances, including, inter alia, denied requests for days of annual leave, a three week delay in repairing an air conditioner, working alone in the gymnasium, having her personal belongings boxed up and removed from her former work station, supervisory reports of her failure to comply with policies, and not being told to go home early in a snow storm.*fn14 These allegations, taken individually or collectively, do not constitute an adverse employment action.*fn15 See, e.g., Clayton v. Pennsylvania Dept. of Welfare, 304 Fed. Appx. 104, 106-07 (3d Cir. 2008)(plaintiff's complaints of reduced on-call time, threat of furlough, change of work schedule, moved mailbox, denied bonus, removal of furniture from office, and failure to timely respond to grievances did not amount to adverse employment action); Nagel v. RMA, 513 F.Supp. 2d 383, 391 (E.D.Pa. 2007)(heated meeting with supervisor who made performance criticisms followed by tense and uncomfortable working environment is not adverse employment action); Mihalko v. Potter, 2003 WL 23319594, at *2,6 (W.D.Pa. Dec. 12, 2003)(denying leave, issuing warnings, monitoring plaintiff at work, forcing plaintiff to work in unheated room, ordering other employees not to speak to plaintiff do not amount to adverse employment actions).

Furthermore, the denial of Plaintiff's request for training as a personal trainer*fn16 does not constitute an adverse employment action. There is no evidence that Plaintiff's work suffered as a result of her lack of training as a personal trainer or that such training was necessary for advancement in status or pay. See Rogers v. Alternative Resources Corp., 440 F.Supp. 2d 366, 375 (D.N.J. 2006)(granting summary judgment where plaintiff could not establish that a certain level of training was required for promotion, retention or financial benefit); Cf. Hodgkins v. Kontes Chemistry & Life Sci. Product, 2000 WL 246422 at *19 (D.N.J. March 6, 2000)(denying summary judgment where training was necessary for job advancement and pay increases).

Because Plaintiff cannot demonstrate that she suffered an adverse employment action, summary judgment will be granted for Defendants on Plaintiff's discrimination on the basis of sex claim.

E. Sexual Harassment

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination because of an individual's sex, see 42 U.S.C. § 2000e-2(a)(1).*fn17 An employer will be liable for hostile work environment sexual harassment when a plaintiff proves that:

(1) she suffered intentional discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affected a reasonable person of the same sex, in like position; and (5) a basis for respondeat superior liability. Kunin v. Sears Roebuck Co., 175 F.3d 289, 293 (3d Cir. 1999) (citing Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990)).

The Supreme Court has made it clear that "not all workplace conduct that may be described as 'harassment'" is actionable under Title VII. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Sexual harassment is only actionable if the discriminatory conduct is "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Id. (internal quotations marks omitted). The "'mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not affect the conditions of employment to a sufficiently significant degree to violate Title VII." Meritor, 477 U.S. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). In assessing a hostile work environment claim, district courts should consider the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). Plaintiff has failed to make out a prima facie case of hostile work environment sexual harassment. First, Plaintiff admits that she "could point to no comment or action within the statutory time period that could be defined as sexual harassment."*fn18 (Pl's Resp. ¶18) As discussed supra in Section III.C, Conley's alleged statements about Plaintiff's "lifestyle" and his alleged references to Plaintiff as a "lesbian" and "dyke" are not discrimination because of sex. Although Conley's alleged statement that Plaintiff could not be a personal trainer because of her gender is discrimination because of sex, it is not sufficiently severe or pervasive so as to create a hostile work environment.*fn19 Therefore, Plaintiff has failed to establish a prima facie case.

Accordingly, the Court will grant summary judgment in favor of Defendants on Plaintiff's sexual harassment claim.

F. Retaliation

Title VII prohibits retaliation for opposing an unlawful employment practice. See 42 U.S.C. § 2000e-3. To establish a prima facie case of retaliation under Title VII, a plaintiff must prove that (1) she engaged in protected activity, (2) an employer took an adverse action against her, and (3) there was a causal connection between her participation in the protected activity and the adverse action. Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008).

The adverse action must be "materially adverse" such that it would "dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). This standard is intended to distinguish significant from trivial harms. Id. "An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience." Id.

As discussed supra in Section III.D, Plaintiff has failed to allege an adverse employment action, let alone a materially adverse action. Accordingly, summary judgment will be granted for the Defendants on Plaintiff's retaliation claim.


For the reasons stated above, Defendants' Motion for Summary Judgment will be granted. An appropriate Order accompanies this Opinion.


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