2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-1-2012 

# E ve S al a v . L a br on H a w k

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-3268

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2012

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2012 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" E v e S al a v . L a br on H a wk " (2012). 2012 D e cisio n s . P a pe r 1052. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2012/1052NOT 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 I slands

(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 Appellee2 O P I N I O N

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 p arties, 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 t he 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. B ecause DEA positions in the Virgin Islands are considered hard to fill , t he DEA has pa id 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 fo r 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 assig ned to the office. In March 2007, Sala requested to extend her tour for an additional year, until3

September 14, 2008. Despite the fact that Resident Agent in Charge , Labron Eugene Hawk, Sala‟s male supervisor, had given her g enerally positive employment evaluations , he advise d 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 M arch 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 w as 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 m otion and entered judgment again st Sala. She has appeal ed only her discrimination and hostile work environment claims.
II. Discussion The District Court had juri sdiction pursuant to 28 U.S.C. § 1331 , and w e 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, 3264

(3d Cir. 2007). S ummary 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 d iscrimination 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 th e action occur red 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 establishe d her prima facie c ase, an inference of discriminatory motive ar o se and the
burden shift ed 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 discrimina tion 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 discriminatio n 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,5

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 t wenty 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 signifi cant change in benefits

. The government argues that the reason that Sala never obtained the paid home leave or cost of living allowance was because the se 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 1 1 44, 1150

- 51 (10th Cir. 2005) (finding a diminishment in leave a n 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, 8 1 9 (D.C. Cir. 2001) ( holding that an employe e‟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)

.6

U nder McDonnell Douglas , S ala need ed to raise only an inference of discrimination to meet her initial burden and establish a prima facie case . S ee , 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 we re more appropriately raised at the second step of the analysis when the burden shift ed to the Government to articulate a legitimate

non - discriminatory reason why the service agreement was not extended. See Ezold , 983 F.2d at 523. W e conclude that Sal a has established a prima facie case of discrimination due to the loss of the home leave allowance.
W e next consider whether the District Court erred when it ruled , in the alternative, that Sala could not prove that the Government ‟s alleged non

- discrimina tory reasons were merely a pretext for unlawful discrimination. H awk 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 a nd 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. LaFaye tte 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).7

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 cou ld 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 7 59, 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 ratio nally 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], . . . i n 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 asse rts 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 su bmitted in support of hi s recommendation not to extend her8

service agreement. For example, Hawk assert ed 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 evalua tion 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 claim ed 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 d id not support this assessment. R ather, Sala was described as “a team player , ” and “a tre mendous asset , ” who “formed strong bonds with several members” of the office and has even served as a “mentor” to an officer from the V irgin 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 h igh

- 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 b ringing 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 S A Sala‟s abilities.9

I n his memorandum, however, Hawk downplayed the signi ficance of Sala‟s efforts on the

case and criticized her work ethic and relationships with the local Virgin Island Police officers.
W hen viewed in their totality , Sala‟s positive annual employment evaluations raise serious questions of material fact as t o whether the reasons articulated by Hawk in his memorandum merely served as a pretext for unlawful discrimination. See Cole v. Ruidoso Mun. Sch s . , 43 F .3d 1373, 138 0 (10th Cir. 1994) (finding pretext when the employee presented evidence of “glaring contr adictions” 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 t he 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 de nied 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 “bag ful” 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 evalua tions 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 a10

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 discriminatio n 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 exi stence of respondeat superior liability

. Hawk , however, concede s 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 becaus e 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] rema ining proffered reasons,” id. , without any particular evide nce “undermining” those reasons, id

.11

offensive utterance; and whether it unreasonably interferes with an employee's work performance

. ” I

d. at 23. Sala asserts that the harassment she endured during her tenure co nsisted of the following actions by Hawk : (1) o n one occasion, she received an E

- mail from him

e ntitled “You „T he aggressive W oman ‟ will like this” that contained an attached video clip of two male law enforcement officers t asering 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, w e find that n one of Hawk‟s actions
create d a genuine issue of material fact as to whether he pervasi vely , 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, t he incident regarding the video clip , only occurred once and is most appropriately viewed as a “sporadic ” or “offhand comm ent”
that did not al t er the terms and conditions of her employment. See Clark C nty. Sch

. Dist

.

v. Breeden , 532 U.S. 268, 271 (2001); see also Wes ton, 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 t o implicate Title VII liability ” ).12

Similarly, Hawk‟s comment about Sala‟s appearance in “tight jeans with a gun and badge” is a lso 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 host ile 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 emplo yment

. 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.