2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-1-2012

Eve Sala v. Labron Hawk

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3268

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Recommended Citation

"Eve Sala v. Labron Hawk" (2012). 2012 Decisions. Paper 1052.

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NOT PRECEDENTIAL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
2

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 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 
3

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 
4

(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, 
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 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). 
6

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).
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 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
8

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. 
9

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 
10

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.
11

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”). 
12

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.