Opinion

Haas v. Barr

Court
District Court, M.D. Pennsylvania
Filed
Mar 24, 2022
Cited by
0 cases
Authority
More cited than 29.1%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM HAAS, No. 4:19-CV-02152

Plaintiff, (Chief Judge Brann)

v.

MERRICK GARLAND, ATTORNEY

GENERAL, et al.,

Defendants.

MEMORANDUM OPINION

MARCH 24, 2022

When I ascended to the federal bench in 2013, I presumed that the cases

brought before me, even if ultimately unsuccessful, would be predicated on

legitimate grievances and have at least some bases under the law—this is, after all,

federal court. Sadly, that is not always the case. Even in federal court, plaintiffs

(represented by attorneys who should know better) routinely file lawsuits utterly

devoid of merit. This is one such case.

Plaintiff William Haas sued his former employer, the United States Bureau

of Prisons, as well as the Department of Justice and the Attorney General of the

United States alleging sex discrimination and retaliation in violation of Title VII of

the Civil Rights Act of 1964. But Haas never filed a sex discrimination claim with

his agency’s Equal Employment Opportunity office. He did not allege, and has not

identified facts showing, that he experienced sex-based harassment or disparate

treatment. He likewise identifies no actionable adverse employment decision or

instances of retaliation. In short, Haas’s claims fail on every front. Accordingly,

the Government’s motion for summary judgment is granted.

I. BACKGROUND

Starting in 2005, Plaintiff William Haas worked as a Correctional Lieutenant

with the United States Bureau of Prisons (“BOP”) at the Federal Correctional

Complex in Allenwood, Pennsylvania.1 He was assigned to the Federal

Correctional Institution (“FCI Allenwood”), a medium-security facility.2

In early 2013, FCI Allenwood’s Office of Internal Affairs opened an

investigation into Haas for possible violations of the facility’s security protocols.3

Specifically, while Haas was supervising officers in a high-security area, a BOP

staff member did not go through the screening process and brought in a cellphone.4

Additionally, Haas personally violated the screening process by walking around

the metal detector after entering the facility.5

That April, Haas received a performance evaluation for his work from the

prior year.6 The reviewer, FCI Allenwood Captain Christopher Bergen, rated

1 Doc. 23-3, Ex. C (July 9, 2014 Haas Decl.) at 1–2.

2 Id.

3 Doc. 23-5, Ex. E (Aug. 19, 2014 Recktenwald Decl.) at 6–7.

4 Id.

5 Id. at 6 (“[A]s a lieutenant he entered the facility as well and did not follow any of our screening

procedures. So he, unfortunately, he was turned in for an investigation based on him being a

lieutenant supervising officers . . . he didn’t even follow our own procedures for security in

such a high, you know, risk area.”).

Haas’s performance in three categories: (1) Organizational Results;

(2) People/Workforce & Communication/Teamwork; and (3) Taxpayer Value.7 For

each category, Haas received a rating on a five-point scale:

Outstanding=5

Excellent=4

Achieved Results=3

Minimally Satisfactory=2

Satisfactory Unsatisfactory=U.8

Bergen rated Haas as “Outstanding” for categories two and three

(“People/Workforce & Communication/Teamwork” and “Taxpayer Value”) and

“Excellent” for category one (“Organizational Results”).9 Adding these ratings

together, Haas received an “Overall Performance Rating” of “Excellent.”10

Haas contested this rating, arguing that he “should have received” a rating of

“Outstanding.”11 According to Haas, he “received Outstanding since [he’d been] a

Lieutenant” and “nothing . . . changed in [his] performance from that time

period.”12 But Captain Bergen explained that “the security issue of him going

through the metal detector . . . might have affected [Haas’s] security ratings.”13

7 Doc. 23-9, Ex. I (Aug. 25, 2014 Bergen Decl.) at 2, 6; Doc. 23-18, Ex. R (Apr. 10, 2013

Evaluation) at 1.

8 Doc. 23-18, Ex. R (Apr. 10, 2013 Evaluation) at 1.

9 Id.

10 Id. Please note, BOP employees (including Haas) occasionally refer to the “Excellent” rating

as an “Exceeds” rating. See Doc. 23-3, Ex. C (July 9, 2014 Haas Decl.) at 18 (“[Q]. [C]an you

explain what the BOP’s rating system is? A. Yes, Outstanding; Exceeds; Satisfactory; and then

Minimal[ly] Satisfactory.”); Doc. 23-9, Ex. I (Aug. 25, 2014 Bergen Decl.) at 6 (“Q. What

rating did [Haas] receive on that evaluation? A. He was rated as an exceeds overall.”).

11 Doc. 23-3, Ex. C (July 9, 2014 Haas Decl.) at 20.

12 Id.

Additionally, Bergen stated that “a lot of [Haas’s] assignments weren’t turned in

on time,” which similarly “would [have] affect[ed] his [Organizational Results]

rating.”14

On August 2, 2013, the Warden at FCI Allenwood, Monica Recktenwald,

notified Haas via letter that he would be suspended for one day on August 5, 2013,

for violating security screening procedures.15 Two days later, Haas learned that he

would be rotated from FCI Allenwood to the United States Penitentiary, a separate

facility on the Allenwood Federal Correctional Complex.16 Warden Recktenwald

explained that lieutenants were rotated among the Correctional Complex’s

facilities every quarter and that they moved Haas because “they needed more

senior lieutenants at the penitentiary.”17

Haas alleges that the following month, he sustained an on-the-job injury

while working at the Penitentiary.18 Specifically, Haas claims that “[h]e twisted his

back while running to an emergency assistance call,” resulting in “soreness and

sharp pain in [his] upper back.”19 After the injury, Haas met with a doctor, who

14 Id. at 8.

15 Doc. 23-5, Ex. E (Aug. 19, 2014 Recktenwald Decl.) at 6–7.

16 Id. at 4–7.

17 Id. at 5.

18 Doc. 23-3, Ex. C (July 9, 2014 Haas Decl.) at 6; see also Doc. 23-6, Ex. F (Heath Decl.) at 3–

4.

19 Doc. 23-6, Ex. F (Aug. 22, 2014 Heath Decl.) at 4; see also Doc. 23-10, Ex. J (Sept. 28, 2015

Haas Decl.) at 4–5 (“Q. How did you become physically impaired? A. While responding to an

incident at USP Allenwood. Q. Was it work related? A. Yes. Q. And you just responded to

that. Please provide detailed information. A. Basically, I was responding to an incident and my

imposed the following restrictions: “[n]o running; no lifting; no inmate contact.”20

Haas then filed an Office of Worker’s Compensation claim and was on medical

leave from September 7, 2013, through March 5, 2014.21

On September 21, 2013—less than a month after his alleged injury and

while off work because of it—Haas participated in a community “pistol shoot.”22

During this event, participants competed in a “shooting match” that was divided

into stages, with “each stage of the event requir[ing] the participants to engage in

certain activities.”23 At one stage, participants “had to run and engage some targets

and then drag a [35-pound] dummy back to a certain point and then engage some

more targets.”24 Haas “participated in and completed all four stages of [the] pistol

shooting event,” including the stage requiring him to “bend over, lift up a dummy,

and drag it approximately ten to fifteen feet.”25 Haas explained that this “had

nothing to do with work at all”; it was instead a “private event in the

community.”26

20 Doc. 23-3, Ex. C (July 9, 2014 Haas Decl.) at 36.

21 Id. at 10 (“Q. Okay. So were you completely off duty for a period of time. A. Yes. Q. Do you

remember when that was? A. From probably September 7th through March 5th.”).

22 Id. at 37.

23 Doc. 23-6, Ex. F (Aug. 22, 2014 Heath Decl.) at 6.

24 Id.

25 Doc. 23-10, Ex. J (Sept. 28, 2015 Haas Decl.) at 14; see also Doc. 23-3, Ex. C (July 9, 2014

Haas Decl.) at 36 (“Q. And how did you allegedly violate these restrictions on September 21st?

A. They’re saying there was a dummy[;] they’re saying I picked up the dummy to drag it. Q.

And did you? A. I picked up the hand of the dummy and drug it, yes.”).

One of Haas’s colleagues at the Allenwood Penitentiary, Special

Investigative Agent Corey Heath, also participated in the community pistol shoot.27

Although Heath “didn’t actually see [Haas] perform any of the tasks,” the two men

spoke after the event, and Haas told Heath “he thought he had done well, which

was later substantiated when the score sheets came out.”28 Heath was aware that

Haas filed an injury report earlier that month, so after the event, he reported Haas’s

participation in the pistol shoot to the warden at the Allenwood Penitentiary,

Donna Zickefoose.29 Based on Heath’s report, dated September 24, 2013, Warden

Zickefoose referred the matter to the Office of Internal Affairs for investigation.30

On September 27, 2013, Haas contacted a Counselor in the BOP’s Equal

Employment Opportunity (“EEO”) office, claiming race, age, and disability

discrimination.31 Additionally, Haas reported that he was “retaliated against for

reporting,” in October 2012, “off-duty misconduct of a former (now retired)

Warden.”32 Haas claimed that the “management” at the Allenwood Correctional

Complex “discriminated and retaliated against him” by giving him a performance

rating of “Excellent” (rather than “Outstanding”), suspending him in August 2013,

27 Doc. 23-6, Ex. F (Aug. 22, 2014 Heath Decl.) at 5.

28 Id. at 7.

29 Id. at 5–8.

30 See Doc. 23-4, Ex. D (Aug. 27, 2014 Feltman Decl.) at 9 (“Q. Do you know who referred

[Haas] for investigation? A. I would say it had to be the Warden, Warden Zickefoose probably

signed the report.”).

31 Doc. 23-14, Ex. N (EEO Counselor’s Report) at 3.

reassigning him from FCI Allenwood to the Allenwood Penitentiary, and

documenting his attendance at the pistol shoot.33 The EEO Counselor issued Haas

a Notice of Right to File on December 12, 2013.34

On January 2, 2014, Haas filed a formal Complaint with the United States

Equal Employment Opportunity Commission (“EEOC”), alleging discrimination

based on race (white), age (42), and disability (unspecified)35 as well as reprisal.36

He did not claim discrimination on the basis of sex.37

That same month, Special Investigative Agent James Fosnot opened an

investigation into Haas’s worker’s compensation claim—examining, in light of

Haas’s participation in the pistol shoot, whether the claim was meritorious.38 Agent

Fosnot completed his investigation that February and concluded that Haas’s

worker’s compensation claim was fraudulent.39

In April 2014, the BOP’s EEO office informed Haas that because he “closed

EEO counseling with the EEO counselor” on his claims of discrimination related

to the August 2013 suspension and reassignment from FCI Allenwood to the

33 Id. Haas also claimed that he was discriminated against when he was removed from the

“SORT” team. Id. Because Haas did not raise this matter in his Complaint, see Doc. 1, it has

no bearing on the instant motion.

34 23-14, Ex. N (EEO Counselor’s Report) at 2.

35 Haas claimed that the work injury he suffered in September 2013 constituted his “disability”;

he acknowledged that the physical impairments related to this injury were temporary. Doc. 23-

3, Ex. C (July 9, 2014 Haas Decl.) at 5–7.

36 Doc. 23-13, Ex. M (EEO Compl.) at 1–4.

37 Id.

38 Doc. 23-7, Ex. G (Aug. 22, 2014 Fosnot Decl.) at 5–9.

Allenwood Penitentiary, it deemed the allegations “abandoned.”40 The EEO office

noted that “abandoned allegations cannot be raised in another EEO Complaint and

as such, are dismissed for failure to state a claim.”41

On December 1, 2017, the BOP filed a motion for summary judgment on

Haas’s EEO Complaint.42 EEOC Administrative Judge Dawn M. Edge granted the

BOP’s motion on January 23, 2018, finding that Haas could not substantiate a

claim for discrimination because of race, age, disability, or reprisal based on his

performance evaluation and the fraud investigation into the pistol shoot.43 The

Department of Justice Complaint Adjudication Office upheld the summary

judgment order, and the ruling was affirmed on appeal by the EEOC’s Office of

Federal Operations.44

On December 17, 2019, Haas filed the instant suit against the BOP, the

Department of Justice, and the Attorney General (collectively, the

“Government”).45 In his Complaint, Haas included only two counts: Count I –

Sexual Discrimination; and Count II – Retaliation.46 Unlike the EEO Complaint,

the federal Complaint did not include claims of discrimination based on race, age,

or disability.

40 Doc. 23-16, Ex. P (Apr. 3, 2014 Letter from EEO Office) at 7–9.

41 Id. at 9.

42 Doc. 23-19, Ex. S (EEOC Decision) at Attachment A.

43 Id. at 2 ¶¶ 1 (a), (b).

44 Doc. 23 ¶¶ 45–46.

45 Doc. 1.

The Government filed a motion for summary judgment on August 23,

2021.47 That motion has been fully briefed and is now ripe for disposition.48

II. LAW

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate

where “the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”49 Material facts are

those “that could alter the outcome” of the litigation, “and disputes are ‘genuine’ if

evidence exists from which a rational person could conclude that the position of

the person with the burden of proof on the disputed issue is correct.”50 A defendant

“meets this standard when there is an absence of evidence that rationally supports

the plaintiff’s case.”51 Conversely, to survive summary judgment, a plaintiff must

“point to admissible evidence that would be sufficient to show all elements of a

prima facie case under applicable substantive law.”52

The party requesting summary judgment bears the initial burden of

supporting its motion with evidence from the record.53 When the movant properly

supports its motion, the nonmoving party must then show the need for a trial by

47 Doc. 16.

48 See Doc. 23; Doc. 24; Doc. 26.

49 Fed. R. Civ. P. 56(a).

50 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern

Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).

51 Clark, 9 F.3d at 326.

52 Id.

setting forth “genuine factual issues that properly can be resolved only by a finder

of fact because they may reasonably be resolved in favor of either party.”54 The

nonmoving party will not withstand summary judgment if all it has are “assertions,

conclusory allegations, or mere suspicions.”55 Instead, it must “identify those facts

of record which would contradict the facts identified by the movant.”56

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”57 the Court “must view the

facts and evidence presented on the motion in the light most favorable to the

nonmoving party.”58 Moreover, “[i]f a party fails to properly support an assertion

of fact or fails to properly address another party’s assertion of fact as required by

Rule 56(c),” the Court may “consider the fact undisputed for purposes of the

motion.”59 Finally, although “the court need consider only the cited materials, . . . it

may consider other materials in the record.”60

54 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

55 Betts v. New Castle Youth Development Center, 621 F.3d 249, 252 (3d Cir. 2010).

56 Port Authority of N.Y. and N.J. v. Affiliated FM Insurance Co., 311 F.3d 226, 233 (3d Cir.

2002) (quoting Childers v. Joseph, 842 F.2d 689, 694–95 (3d Cir. 1988)).

57 Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S.

442, 448 (1871)).

58 Razak v. Uber Technologies, Inc., 951 F.3d 137, 144 (3d Cir. 2020).

59 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613–14 (3d

Cir. 2018).

III. ANALYSIS

A. Sexual Discrimination (Count I)

The Government asks the Court to grant summary judgment on Count I for

two reasons: (1) Haas failed to exhaust his administrative remedies before bringing

this claim in federal court; and (2) the evidence does not support a claim for sex

discrimination. Although Haas argues that the claim should proceed, he offers no

factual or legal basis for this position. Accordingly, the Government’s motion for

summary judgment as to Count I is granted.

1. Failure to Exhaust

First, the Government notes that Haas did not assert sex discrimination in

any of his claims with the EEOC.61 This alone necessitates summary judgment as

to Count I.

As the Third Circuit explained in Wilson v. United States Postal Service, “it

is a basic tent of administrative law” that “[b]efore bringing a Title VII claim,” a

federal employee alleging discrimination in the workplace “must exhaust all

required administrative remedies.”62 Specifically, the employee must contact a

Counselor with his agency’s EEO office within 45 days of the alleged

discriminatory conduct or adverse employment action.63 If the matter cannot be

resolved, the Counselor will inform the employee of his right to file an

61 Doc. 24 at 15–17.

62 814 F. App’x 719, 721 (3d Cir. 2020).

administrative complaint,64 and the employee then has fifteen days to file.65 If a

plaintiff fails to follow this administrative process, he cannot maintain a Title VII

discrimination claim in federal court.66

In his initial complaint with the EEO Counselor, Haas claimed race (white),

age (42), and disability (physical) discrimination as well as reprisal.67 Haas

reiterated these claims in his formal EEO Complaint.68 He did not, however,

include any mention of sex discrimination.

Despite this, Haas asserts (without citation or reference to any filing with the

EEOC) that “[t]he evidence of record would evince that [he] has, in fact, exhausted

all remedies relating to the employment discrimination claims.”69 That won’t do.

Before the Court is a motion for summary judgment—not a motion to dismiss. At

this juncture, Haas bears the burden of “identify[ing] those facts of record which

would contradict the facts identified by the [Government]” showing that Haas

failed to pursue a sex discrimination claim with the EEOC; simply asserting that

the evidence of record would establish that he exhausted his administrative

64 29 C.F.R. § 1614.105(d).

65 29 C.F.R. § 1614.106(b).

66 See Wilson, 814 F. App’x at 721 (“Failure to submit a charge within the requisite time period

fails to preserve a claim and thus is subject to dismissal.”).

67 Doc. 23, Ex. N (EEO Counselor’s Report) at 57–58.

68 Doc. 23, Ex. M (EEO Complaint).

remedies, without identifying the relevant facts at issue, is insufficient to survive

summary judgment.70

Because Haas never filed a claim for sex discrimination with the EEOC, he

cannot now bring a sex discrimination claim in federal court. The Court therefore

grants the Government’s motion for summary judgment as to Count I (sex

discrimination) for failure to exhaust all administrative remedies.

2. Sex Discrimination

Independent of the exhaustion inquiry, Count I fails to survive summary

judgment because Haas has not presented evidence to establish a claim for sex

discrimination. Specifically, the summary judgment record does not contain an

actionable adverse employment decision or evidence of disparate treatment. And

even if it did, Haas cannot establish that the Government’s proffered legitimate,

nondiscriminatory explanations for its employment actions against him were

simply pretextual.

a. Prima Facie Case of Discrimination

Here, the Government argues that none of the alleged employment decisions

qualifies as an “adverse employment action” under Title VII and that the summary

judgment record contains no evidence from which a reasonable juror could

conclude that Haas’s “similarly situated women co-workers were treated or would

have been treated any differently.”71 The Court agrees.

When analyzing claims for sex discrimination under Title VII, courts apply

the burden shifting analysis outlined by the Supreme Court of the United States in

McDonnell Douglas Corp. v. Green.72 Under this analysis, the plaintiff “bears the

initial burden of establishing a prima facie case by a preponderance of the

evidence.”73 To satisfy this burden, the plaintiff must show the following: (1) he

was a member of a protected class; (2) he was performing his job satisfactorily;

(3) he suffered an adverse employment action; and (4) similarly situated employees

of the opposite sex were treated more favorably.74

For the third element—“adverse employment action”—the United States

Court of Appeals for the Third Circuit explains that Title VII “do[es] not provide

relief for unpleasantness that may be encountered in the workplace”; rather, it

“provide[s] a remedy only if discrimination seriously and tangibly altered the

employee’s ability to perform the job or impacted the employee’s job benefits.”75

Put differently, the employment action must be “serious and tangible enough to

alter an employee’s compensation, terms, conditions, or privileges of

71 Doc. 24 at 18–19.

72 411 U.S. 792, 802 (1973).

73 Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2003) (citing St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 506 (1993)).

74 See Summy-Long v. Pennsylvania State University, 226 F. Supp. 3d 371, 395 (M.D. Pa. 2016),

aff’d, 715 F. App’x 179 (3d Cir. 2017).

employment.”76 Accordingly, courts generally hold that “[a] negative

[performance] evaluation, by itself, is not an adverse employment action.”77

Similarly, “investigations, separate from any negative consequences that may

result from them, also do not generally constitute adverse employment actions.”78

In his Complaint, Haas identifies three employment actions relevant to his

sex discrimination claim: (1) the April 2013 employment evaluation79; (2) the

fraud investigation into the “pistol shoot”80; and (3) the August 2013 suspension.81

But Haas presents no evidence that either the employment evaluation or the

investigation into his “pistol shoot” adversely affected his compensation or the

terms, conditions, or privileges of his employment, and the August 2013

suspension is no longer a live claim.

First, Haas asserts that “[s]ince the ‘exceeds’ evaluation, there had been

numerous GS-12 job opening[s] posted[;] however, [he] never received any

promotion due to his no longer being considered ‘qualified.’”82 But he cites no

evidence substantiating this claim—no evidence of job listings; no evidence that he

76 Story v. Burns International Security Services, 390 F.3d 760, 764 (3d Cir. 2004) (internal

quotation marks omitted).

77 Walker, 558 F. App’x at 220.

78 Flores v. Charlton, 2019 WL 3801951, *4 (E.D. Pa. Aug. 13, 2019); see also Boandl v.

Geithner, 752 F. Supp. 2d 540, 564 (finding that a referral for an investigation, which had no

bearing on the terms of the plaintiff’s employment, did not constitute an adverse employment

action).

79 Doc. 1 ¶ 23.

80 Id. ¶¶ 30–33.

81 Id. ¶ 25.

applied; no evidence that he was rejected because of this performance evaluation.

At this stage in the litigation, bare assertions devoid of evidentiary support are

insufficient to sustain a claim.83

Second, in his opposition to the Government’s motion for summary

judgment, Haas inexplicably offers no argument for why the investigation into the

pistol shoot constitutes an adverse employment action.84 Indeed, Haas makes no

reference to the pistol shoot or related investigation.85 If Haas is unwilling to

mount a defense to save his claim, the Court will not do it for him. Absent some

evidence that the investigation affected the “compensation, terms, conditions, or

privileges of [Haas’s] employment,” the Court cannot conclude that it qualifies as

an “adverse employment decision” under Title VII.86

Third, as the EEO office held in April 2014, Haas abandoned his claims of

discrimination related to the August 2013 suspension.87 Haas does not dispute

this.88 As the Third Circuit held in Katz v. Winter, once a plaintiff abandons or

83 Walker, 558 F. App’x at 220 (holding that “negative evaluation” did not “constitute [an]

adverse employment action[]” because “the record does not support the conclusory description

[the plaintiff] affixes to the evaluation, and she has offered no evidence to support a finding

that her conditions of employment were impacted by it”).

84 See Doc. 1.

85 Id.

86 Story, 390 F.3d at 764.

87 Doc. 23-16, Ex. P (Apr. 3, 2014 Letter from EEO Office) at 7–9.

88 In his opposition, Haas claims only that “[t]he evidence of record would evince that [he] has,

in fact, exhausted all remedies relating to the employment discrimination claims.” Doc. 26 at

9. But this assertion, which is not supported by a citation to any evidence in the record, does

not directly respond to or refute the evidence the Government presents that Haas abandoned

waives his claims at an administrative level, he cannot bring those claims to the

district court.89

Moreover, even if Haas could establish that he suffered an adverse

employment action, he has not shown that any such action was the product of sex

discrimination—i.e., that similarly situated employees of the opposite sex were

treated more favorably. The summary judgment record contains no evidence on the

employment evaluations that women lieutenants at FCI Allenwood received, let

alone evidence of how any female lieutenants with similar workplace infractions

were evaluated. The record is likewise devoid of any evidence showing that

similarly situated women lieutenants were treated differently than Haas regarding

the investigation into his fraudulent worker’s compensation claim or the

suspension for failure to adhere to security protocols.

Because the summary judgment record does not contain evidence of any

adverse employment action or disparate treatment by sex, Haas has failed to

establish a prima facie case of sex discrimination. That is another independent

basis for granting summary judgment.

discrimination claim where plaintiff “offered no evidence to support a finding that her

conditions of employment were impacted by [the alleged employment action]”).

b. Pretext for Discrimination

Even if Haas could establish a prima facie case of discrimination, summary

judgment as to Count I would still be appropriate because he has not refuted the

Government’s stated reasons for its actions affecting him.

Once a plaintiff makes a prima facie case, the burden then shifts to the

employer to “articulate some legitimate, nondiscriminatory reason for the [adverse

employment action].”90 Specifically, the employer must “clearly set forth, through

the introduction of admissible evidence, reasons for its actions which, if believed

by the trier of fact, would support a finding that unlawful discrimination was not

the cause of the employment action.”91

If the defendant meets this burden, “the presumption of discriminatory

action raised by the prima facie case is rebutted” and the burden shifts back to the

plaintiff.92 To sustain the claim, “[t]he plaintiff then must establish by a

preponderance of the evidence that the employer’s proffered reasons were merely a

pretext for discrimination, and not the real motivation for the unfavorable job

action.”93 Specifically, the plaintiff must “provid[e] evidence that would allow a

fact finder reasonably to (1) disbelieve the employer’s articulated legitimate

90 Sarullo, 352 F.3d 797 (citing McDonnell Douglas, 411 U.S. at 802).

91 St. Mary’s Honor Center, 509 U.S. at 507 (internal quotation marks and emphasis omitted).

92 Sarullo, 352 F.3d at 797 (citing Texas Department of Community Affairs v. Burdine, 450 U.S.

248, 255 (1981)).

reasons; or (2) believe that an invidious discriminatory reason was more likely than

not the motivating or determinative cause of the employer’s action.”94

Here, the Government identifies legitimate, nondiscriminatory reasons for

all employment actions at issue. First, the Government explains that Haas received

an “Excellent” rating—rather than the highest rating of “Outstanding”—for his

performance from 2012 to 2013 because he was being investigated for violating

security protocols and consistently failed to complete his assignments on time.95

Second, the investigation into the “pistol shoot” was well founded: Haas filed a

worker’s compensation claim based on a workplace injury that prevented him from

running and lifting, but at a non-work event less than a month after the injury, Haas

participated in a competition where he ran from one location to the next and

dragged a 35-pound body dummy between shooting his pistol at designated

targets.96 Third, the warden at FCI Allenwood stated that Haas received a one-day

suspension in August 2013 because he failed to follow and enforce the facility’s

safety protocols.97

Haas offers no evidence to undermine these legitimate, nondiscriminatory

reasons for the three alleged employment actions. Indeed, in his opposition, Haas

does not address these explanations or even use the word “pretext.” Again, that

94 Id. at 800 (internal quotation marks and citation omitted).

95 See Doc. 23-9, Ex. I (Aug. 25, 2014 Bergen Decl.) at 7–8.

96 Doc. 23-6, Ex. F (Aug. 22, 2014 Heath Decl.) at 6.

won’t do. The Government’s motion for summary judgment as to Count I (sex

discrimination) is granted.

B. Retaliation (Count II)

The Government argues that Count II similarly cannot survive summary

judgment because Haas fails to present evidence sufficient to sustain a claim for

retaliation. Specifically, the Government asserts that Haas has not established

(1) he engaged in a protected activity prior to any BOP employment action, (2) any

such move by the BOP constituted an “adverse employment action,” and (3) the

BOP’s proffered explanations for its actions affecting Haas were pretextual.98

Again, the Court agrees with the Government.

To prevail on a claim for retaliation under Title VII, an employee must

prove that “(1) he was engaged in protected activity; (2) he was subject to an

adverse job action subsequent to or contemporaneous with such activity; and

(3) there is a causal link between the protected activity and the subsequent adverse

job action.”99 As with claims of illegal discrimination under Title VII, if an

employer articulates a legitimate reason for the adverse employment action, the

plaintiff “must [then] produce sufficient evidence to allow a reasonable fact finder

to conclude that the proffered reasons for [the action] are a pretext.”100

98 Doc. 24 at 21–23.

99 Sarullo, 352 F.3d at 800.

Here, Haas acknowledges that before he contacted the EEO Counselor in

September 2013 regarding the allegations underlying this case, he had no prior

EEO activity.101 Accordingly, the only action Haas took prior to initiating the EEO

complaint process that could potentially qualify as a “protected activity” is the

complaint he purportedly made in October 2012 about a separate warden who has

no relation to the events at issue here.102 But Haas does not allege or provide

evidence that any of the BOP officials relevant to this case knew of this complaint.

Absent evidence that the relevant BOP officials were aware of the 2012 complaint,

Haas cannot prove a causal link between the complaint and the alleged adverse

actions.103

Further, as explained, none of the alleged employment decisions affecting

Haas qualify as “adverse employment actions” under Title VII, and Haas presents

no evidence from which a factfinder could reasonably conclude that the

Government’s explanations for its actions were pretextual. Accordingly, Count II

(retaliation) cannot survive summary judgment.

101 Doc. 23 ¶ 23 (citing Doc. 23, Ex. N (EEO Counselor’s Report) at 59, 61; Doc. 23, Ex. Q (Aug.

28, 2014 Agency Email) at 00347).

102 Doc. 23-14, Ex. N (EEO Counselor’s Report) at 3.

103 See Sarullo, 352 F.3d at 801 (holding that district court properly granted summary judgment

on plaintiff’s Title VII retaliation claim because the plaintiff “provided no evidence to rebut

[his supervisor’s] declaration that he was unaware of [the plaintiff’s] EEO activity when he

made his decision not to reinstate [the plaintiff]”); see also Ambrose v. Township of Robinson,

Pennsylvania, 303 F.3d 488, 493 (3d Cir. 2002) (“It is only intuitive that for protected conduct

to be a substantial or motivating factor in a decision, the decisionmakers must be aware of the

IV. CONCLUSION

William Haas is a middle-aged white man with no discernable disability. He

claims to be the victim of discrimination—initially, based on his age (42), race

(white), and disability (unidentified); later, based on his sex (male). But he offers

no allegations and presents no evidence of actionable discrimination. Moreover, by

modifying his case mid-stream, abandoning certain claims and presenting others,

in the first instance, in federal court, Haas failed to follow the prescribed procedure

for advancing claims under Title VII. Accordingly, this suit—illogically conceived

and inconsistently pursued—cannot proceed. The Government’s motion for

summary judgment is granted.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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