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Holiday Home Quinta Grande
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Interhome is a vacation rental provider founded in 1965. We are an International entity with its head office located in Switzerland. With more than 33.000 vacation homes and apartments in more than 30 countries to choose from, you will find the perfect getaway that best fits your expectations and your budget. Interhome is highly dedicated to making your vacation an unforgettably pleasant experience, through an efficient and secure booking process, reliable key handover, and assistance during your stay. We are available for any enquiries 24/7.
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October 29, 2010
STEVEN YOUNG AND EZEKIEL YOUNG, PLAINTIFFSv.ST. JAMES MANAGEMENT, LLC, STONEHENGE-WALNUT, LLC AND STONEHENGE ADVISORS, LLC, (D.B.A. STONEHENGE-WALNUT, LLC), DEFENDANTS
This case arises out of Steven Young and Ezekiel Young's allegations of race discrimination against their former employer, Defendants St. James Management, LLC, Stonehenge-Walnut, LLC, and Stonehenge Advisors, LLC ("Defendants"). In their Second Amended Complaint, both Plaintiffs allege violations of Title VII (Counts I & III) and the Pennsylvania Human Relations Act (Count II). Ezekiel Young also alleges violations of 42 U.S.C. § 1981 (Count IV). Defendants move for summary judgment on all four counts.*fn1
I. FACTUAL BACKGROUND*fn2
A. Facts Pertinent to Steven Young's Race Discrimination Claims
Plaintiff Steven Young ("Steve") is African American. From April 12, 2004 through May 1, 2007, Steve was employed as a maintenance technician at the St. James, a luxury apartment building in Philadelphia, Pennsylvania.
In addition to working at the St. James, Steve was also a resident of the building. Steve had a twelve-month residential lease for a one-bedroom unit that began on May 1, 2004. By its terms, the lease renewed automatically each year unless one party gave written notice at least sixty days before the end of the term. One-bedroom units at the St. James can rent for up to $2,000 a month. (Sablosky Dep. 55:8-9, Nov. 4, 2009.) The Employment Addendum to Steve's Residential Lease Agreement waived rent in exchange for Steve waiving overtime compensation for on-call responsibilities. Steve was the only employee provided with an on-site residence. (Hughes Dep. 11:20, Jan. 21, 2010.) The Employment Addendum also provided that Steve must vacate the unit within fourteen days if he resigned or was terminated.
During his tenure at the St. James, Steve received numerous written warnings from Defendants for various infractions including: (1) overusing his company cell phone for personal calls; (2) refusing to move a second vehicle from the garage at the St. James; (3) behaving in a loud and abusive manner while on the premises; (4) spending time in his apartment during working hours; (5) intimidating and harassing a fellow employee; (6) refusing to abide by the company dress code; (7) working overtime hours without authorization; and (8) refusing to perform assigned duties.
In December 2006, Steve's son moved in with him at the St. James. (Sec. Am. Compl. ¶ 58.) Steve's son is African American. (See id. ¶ 62.) Shortly after Steve's son moved in with him, his son's Caucasian girlfriend began to visit Steve's son at the St. James. (Id. ¶ 59.) On January 18, 2007, Alex Walker, Property Manager at the St. James, approached Steve to discuss Steve's son and his son's girlfriend. (Id. ¶ 60.) Walker told Steve that he had seen them holding hands in the lobby and that "it didn't look right." (Id.) When Steve asked Walker what he meant, Walker replied: "You know what I mean." (Id. at 61.) Steve believes Walker meant that it was inappropriate for an African American male to be seen holding a Caucasian female's hand at the St. James, where the majority of residents are Caucasian. (Id. ¶ 62.) On January 29, 2007, Alan Casnoff, former owner and current consultant of Defendant Stonehenge,*fn3 asked Steve if he had spoken to Walker about his son's girlfriend. (Id. ¶ 63.) When Steve asked if there was a problem, Casnoff replied: "Think about it. It doesn't look right." (Id.)
On February 1, 2007, Steve received a letter from Daniel Sablosky, President of Stonehenge, notifying him that his lease would be terminated at the end of the term. (Id. ¶ 64.) On February 15, 2007, Sablosky approached Steve and initiated a third conversation concerning Steve's son. (Id. ¶ 65.) Sablosky asked Steve if he had ever met his son's girlfriend's parents. (Id.) When Steve asked what difference it made, Sablosky responded: "You know what I mean."
(Id.) Sablosky went on to tell Steve that if his son and his son's girlfriend ever got into an argument, the police would take the girlfriend's side. (Id.) Steve believes that Sablosky meant to imply that the police would be less likely to believe his son because he was African American.
Steve failed to vacate his apartment by the end of the lease term. On May 1, 2007, Steve received a letter from Sablosky notifying him that he was being terminated from his employment for "insubordination, including refusal to perform assigned duties or refusal to perform work in the manner described by a supervisor or manager." The letter also cited Steve's refusal to vacate his apartment as a reason for termination.
On August 24, 2007, Steve filed charges with the Equal Employment Opportunity Commission ("EEOC") claiming that Defendants terminated him because they disapproved of his son's interracial relationship. Steve claims that Defendants' explanation that Steve was terminated for insubordination is merely a pretext for discrimination or, in the alternative, that Defendants had mixed motives in their decision to terminate his employment. (Sec. Am. Compl. ¶¶ 101-02.) Steve also alleges that Defendants negligently violated Title VII. (Id. ¶ 97.)
B. Facts Pertinent to Ezekiel Young's Race Discrimination Claims
Plaintiff Ezekiel Young ("Ezekiel") is African American. From October 18, 2004 through October 10, 2007, Ezekiel was an employee at the St. James. Ezekiel was hired as a doorman and was promoted on August 21, 2006 to the position of maintenance mechanic. Ezekiel was occasionally asked to move items in the basement of the St. James, which was generally a housekeeping duty. (Sec. Am. Compl. ¶ 85; Defs.' Mem. Supp. Summ. J. Ex. 34.)
During his three years as a St. James employee, Ezekiel received two warnings. The first was for improperly punching out on the time clock. (Defs.' Mem. Supp. Summ. J. Exs. 31-32.)
Management later realized that the warning was a mistake and placed a note in Ezekiel's file indicating that the problem had been resolved. (Id.) A second warning was issued to Ezekiel after he was allegedly seen playing Solitaire on a company computer during working hours. (Id. at Ex. 33.) Ezekiel denies that he was playing Solitaire. (Sec. Am. Compl. ¶ 29.)
On August 17, 2007, Ezekiel filed charges of racial discrimination with the EEOC, claiming that: (1) African Americans were denied access to the office bathroom, parking spaces, and company-supplied bottled water; (2) only African American employees were required to punch in using the time clock; (3) he was improperly warned for failing to punch out on the time clock and for playing Solitaire on a company computer; and (4) he was discriminated against when the St. James hired Paul Kuzan as Chief Engineer. (Id. at Ex. 37.)*fn4
In his Second Amended Complaint to this Court, Ezekiel adds several new allegations. Ezekiel alleges that he was discriminated against because: (1) African American employees were denied access to company-supplied snacks; (2) African American employees were prohibited from taking breaks on the loading dock where Caucasian employees took their breaks, (3) employees were racially segregated at the 2006 company Christmas party; (4) he overheard managers claiming that they could increase profits by replacing African American employees with Caucasians; (5) African American employees were prohibited from using the office water fountain; and (6) he was demoted to housekeeping duties following a workplace injury. (Sec. Am. Compl. ¶¶ 77-79, 81-82, 86, 92-93.)
Ezekiel claims that Defendants' actions were discriminatory or, most favorably to Defendants, that Defendants had mixed motives for taking these actions. (Id. ¶¶ 101-02.) Ezekiel also asserts that Defendants negligently violated Title VII. (Id. ¶ 97.)
Summary judgment will be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). There is a "genuine" issue of material fact if the evidence would permit a reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The "mere existence of a scintilla of evidence" is insufficient. Id. at 252.
The moving party must make an initial showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-movant must then "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, "'the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed. R. Civ. P. 56(e)). In determining whether the nonmoving party has established each element of its case, the court must draw all reasonable inferences in the nonmoving party's favor. Id.
Steve and Ezekiel allege several counts of race discrimination: violation of Title VII (Count I), violation of the Pennsylvania Human Relations Act ("PHRA") (Count II), and negligent violation of Title VII (Count III). Ezekiel also alleges race discrimination in violation of 42 U.S.C. § 1981 (Count IV).
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1). A Title VII plaintiff may use either the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or the mixed-motive approach established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Steve and Ezekiel also assert negligent Title VII violations. These claims are analyzed using a separate five-part framework. PHRA violations are subject to the same analysis as Title VII claims. Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083-84 (3d Cir. 1995).
Under 42 U.S.C. § 1981, "all persons within the jurisdiction of the United States shall have the same right... to make and enforce contracts... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." The elements of a § 1981 claim are identical to the elements of a Title VII employment discrimination claim. Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009).
A. Analytical Framework
1. The McDonnell Douglas Burden-shifting Framework
A plaintiff asserting Title VII claims may proceed using a three step burden-shifting framework set forth by the Supreme Court in McDonnell Douglas. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999). First, the McDonnell Douglas approach requires a plaintiff to establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Under this approach, a plaintiff must show that:
(1) he is a member of a protected class;
(2) he was qualified for the position he sought to attain or retain;
(3) he suffered an adverse employment action; and
(4) the action occurred under circumstances that could give rise to an inference of intentional discrimination.
Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). Courts vary the precise components required for a prima facie case because "the elements... depend on the facts of the particular case." Jones, 198 F.3d at 411. The burden to establish a prima facie case is a not an onerous one, but a prima facie case can allow a court "to eliminate the most obvious, lawful reasons for the defendant's action." Pivirotto v. Innovative Sys., 191 F.3d 344, 352 (3d Cir. 1999).
If a plaintiff successfully establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its decision. McDonnell Douglas, 411 U.S. at 802. If the defendant succeeds, the burden returns to the plaintiff to show that the employer's stated reason for termination was merely a pretext for intentional discrimination. Id. at 804. To survive a motion for summary judgment, a nonmoving plaintiff must point to evidence which: 1) "casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonable conclude that each reason was a fabrication;" or 2) allows the factfinder to reasonably conclude that "discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes v. Perksie, 32 F.3d 759, 762 (3d Cir. 1994). The ultimate burden of persuasion remains with the plaintiff at all times. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
2. The Price Waterhouse Mixed-motive Approach
A plaintiff claiming Title VII violations may also proceed using the mixed-motive approach, as defined by the Supreme Court in Price Waterhouse. In Title VII cases, the mixed-motive approach applies when a plaintiff contends that an adverse employment decision was made for both legitimate and discriminatory reasons. Makky, 541 F.3d at 213. The Third Circuit has noted:
The McDonnell Douglas burden-shifting framework does not apply in a mixed-motive case in the way it does in a pretext case because the issue in a mixed-motive case is not whether discrimination played the dispositive role but merely whether it played "a motivating part" in an employment decision.
Id. at 214. See also 42 U.S.C. § 2000e-2(m) ("[A]n unlawful employment practice is established when the complaining party demonstrates that race... was a motivating factor for any employment practice, even though other factors also motivated the practice.").*fn5 To succeed on a Title VII claim using a mixed-motive approach, "a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race, color, religion, sex, or national origin was a motivating factor for any employment practice." Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (internal citations and quotation marks omitted).*fn6 The Title VII mixed-motive formulation anticipates that there may be both a legitimate and prohibited reason for the defendant's action. Thus, a defendant cannot avoid liability simply by pointing to a legitimate reason for the adverse employment action.
3. Title VII Hostile Work Environment Framework*fn7
A plaintiff may also prove that an employer violated Title VII by showing that the employer's actions created a hostile work environment. Huston v. Procter & Gamble Paper Prods., 568 F.3d 100, 104 (3d Cir. 2009). To establish a hostile work environment claim, a plaintiff must establish that: (1) he suffered intentional discrimination because of his race; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected him; (4) the discrimination would detrimentally affect a reasonable person of the same race; and (5) there is a basis for employer liability. See Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 2007); Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
B. Steve Young's Title VII and PHRA Claims
Steve claims that he was terminated because Defendants objected to the presence of his African American son together with his Caucasian girlfriend at the St. James. (Defs.' Mem. Supp. Summ. J. Ex. 27.)*fn8 He alleges that Defendants' stated reasons for terminating his lease and employment are merely a pretext for racial discrimination. Alternatively, Steve claims that his lease and employment were terminated for both legitimate and discriminatory reasons. Finally, Steve asserts that Defendants negligently violated Title VII by creating a hostile work environment.
1. Steve Young Satisfies his Burden Under the McDonnell Douglas Pretext Analysis
Because Steve has shown circumstances from which a reasonable jury could infer that race was a motivating factor, he satisfies the McDonnell Douglas test.*fn9
Steve must fulfill the initial step of the McDonnell Douglas test by establishing a prima facie case of race discrimination. The first three elements of Steve's prima facie case are not in dispute. He is African American and a member of a class protected from race discrimination by Title VII. He is qualified for the position of maintenance technician from which he was discharged. He suffered adverse employment actions when the St. James stopped providing him with a rent-free apartment, and again when the St. James fired him.
Only the fourth element of Steve's prima facie case is disputed by Defendants.*fn10
Defendants argue that Steve "has not presented, and cannot present, any evidence of a nonmember of the protected class being treated more favorably than him by the St. James under those circumstances which were present at the time of his lease termination nor at the time of his subsequent termination of employment." (Defs.' Mem. Supp. Summ. J. 15.) The law, however, does not require a plaintiff to make such a showing. Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 939 (3d Cir. 1997) ("[F]avorable treatment outside the protected class... by no means must be present."). A plaintiff need only show that the adverse employment actions occurred under circumstances that give rise to an inference of unlawful discrimination. Pivirotto, 191 F.3d at 357.
On August 24, 2007, Steve filed a charge with the EEOC, claiming that Defendants terminated his employment because they objected to the presence of his son and his son's
Steve's race was a motivating factor in his termination under McDonnell Douglas.
Caucasian girlfriend in the building's public areas. (Defs.' Mem. Supp. Summ. J. Ex. 27.) In the charge, Steve claimed that Walker told him in January 2007 that "it didn't look right" for Steve's son and his son's girlfriend to be"hugging and holding hands" in the St. James lobby. (Id.) When Steve asked Walker what he meant, Walker answered: "You know what I mean." (Id.) Later that month, Steve had a similar exchange with Casnoff, where he was again told that "it didn't look right." (Id.) On February 1, 2007, Sablosky sent Steve a letter notifying him that his lease would be terminated at the end of the term. Two weeks later, Sablosky initiated a third conversation with Steve about Steve's son and his son's girlfriend. (Id.) Sablosky informed Steve that if his son and his son's girlfriend "ever got in an argument and the police were called, the police would take her side." (Id.) Steve believes that all three comments reflected Defendants' disapproval of his African American son being seen with a Caucasian female in the St. James. (Sec. Am. Compl. ¶ 62.) On May 1, 2007, Sablosky sent Steve a letter notifying him that his employment at the St. James was terminated. Steve believes that he was terminated because Defendants disapproved of his son's interracial relationship.
The fact that three managers complained to Steve about his son's interracial relationship suggests that the relationship was a significant point of concern for Defendants. A reasonable jury could infer that this concern led to Defendants' decision to terminate Steve's lease and, later, Steve's employment. This is especially so because of the proximity between the exchanges and Defendants' decision to terminate Steve's lease. Thus, Steve has established that he was terminated under circumstances that could give rise to an inference of discrimination.
It is not self-evident, however, that legally these circumstances state discrimination against Steve because of his race. This is a case of first impression on a narrow question: whether, under Title VII, discriminating against an individual for his child's interracial relationship constitutes racial discrimination "because of such individual's race." 42 U.S.C. § 2000e-2(a). The Third Circuit has not ruled on whether discriminating against a person because of an interracial relationship constitutes race discrimination under Title VII. The Courts of Appeals that have decided the issue have found that it does. Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999); Defenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998), reinstated in relevant part on reh'g en banc, Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (per curiam); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986).
Federal courts have previously found the interracial association doctrine to include plaintiffs' romantic relationships, e.g., Parr, 791 F.2d 888, and at least one court has found the doctrine to include a parent-child relationship. Tetro, 173 F.3d 988. Steve's claim asks that the association doctrine be applied to a combination of these relationships. Given the trend of courts to find discrimination can be based on the individual's interracial association to state a Title VII claim, this may be a reasonable application of the doctrine. Steve's claim is logically consistent with the principles of Title VII in that if he were Caucasian, his son would be Caucasian, and his employers would not have had an issue with the son's relationship. That is, the Defendants discriminated against Steve because of his race, "even though the root animus for the discrimination is a prejudice against" a third party. Id. at 944.
The present Defendants do not dispute this issue and so I find it is unnecessary for me to further address whether discrimination against someone for his child's interracial relationship constitutes, as a matter of law, racial discrimination against the individual under Title VII. That Steve's particular racial discrimination claim relies on a more indirect association is a fact that a jury can weigh when considering whether to find that race was actually a motivating cause of Defendants' actions.
In the second step of the McDonnell Douglas test, the burden shifts to Defendants to provide a "legitimate, nondiscriminatory reason" for termination. McDonnell Douglas, 411 U.S. at 802. Defendants have done so. Defendants state that Steve's lease was terminated because of the high demand for one-bedroom apartments and because the St. James no longer needed on-site maintenance workers. (Sablosky Dep. 40:11-21, 46:6-10, 55:2-10; Hughes Dep. 11:12-17.) Defendants explain that they terminated Steve's employment because he refused to vacate the apartment and for "insubordination, including refusal to perform assigned duties or refusal to perform work in the manner described by a supervisor or manager." (Defs.' Mem. Supp. Summ. J. Ex. 25.) Defendants have offered evidence demonstrating that Steve engaged in other insubordinate acts during his employment at the St. James. (See id. at Ex. 10 (warning Steve about his improper use of his work cell phone); id. at Ex. 12 (notifying Steve that he had violated the St. James code of conduct by: (1) refusing to move his second vehicle from the garage in a timely fashion; (2) spending time in his apartment during work hours; (3) intimidating another employee; and (4) using abusive and loud language in the main lobby); id. at Ex. 14 (warning Steve about his personal appearance, improper use of the time clock, and billing overtime hours without authorization); id. at Ex. 17 (notifying Steve that he had violated the St. James code of conduct by failing to install a lock on the door to the switchgear room, thereby creating a safety hazard).)
In step three of the McDonnell Douglas analysis, the burden returns to Steve to show that the defendant's "stated reason for [the adverse employment action] was in fact pretext." McDonnell Douglas, 411 U.S. at 804. Steve shows that Defendants' reasons are pretext under the first method identified in Fuentes.*fn11 Steve has produced "sufficient evidence from which a factfinder could reasonably conclude that an illegitimate factor more likely than not was a motivating cause of the adverse employment decision." Fuentes, 32 F.3d at 765. In Steve's declaration, he describes circumstances from which a reasonably jury could conclude that race was a motivating cause of his lease and employment termination. A factfinder must first believe that some or all of the comments were made. The EEOC charge declared to by Steve describing the conversations is sufficient evidence for this motion.*fn12 (Defs.' Mem. Supp. Summ. J. Ex. 27.) Next, a factfinder would have to agree with Steve's interpretation that the managers' disapproval related to the races of the couple. Defendants argue that the comments could relate to disapproval of displays of affection generally in the building lobby. However, there is no evidence in the record that intraracial displays of affection was met with similar concern from management. The meaning of statements such as "it didn't look right" is ambiguous and is a matter that must be left to a jury to determine. Finally, a factfinder would have to infer that there was a causal nexus between the speakers' disapproval of Steve's son's interracial relationship and the St. James's decision to terminate Steve's lease. That the comments were made by management personnel and in close temporal proximity to the termination of Steve's lease supports such an inference. See Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) ("Stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision.").
2. Steve Young Fails to Establish a Title VII Hostile Work Environment Claim
A plaintiff alleging that his employer negligently maintained a hostile work environment must prove that: (1) he suffered intentional discrimination because of his race; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected him; (4) the discrimination would detrimentally affect a reasonable person of the same race; and (5) there is a basis for employer liability. See Andreoli, 482 F.3d at 643; Jensen, 435 F.3d at 449.
Steve fails to show three of the five prongs of a hostile work environment. For the reasons discussed in the McDonnell Douglas analysis, I will assume that Steve shows the first prong of intentional race discrimination. Steve also meets the fifth prong of establishing a basis for employer liability because a plaintiff can demonstrate liability by showing that supervisors created the hostile work environment. See Jensen, 435 F.3d at 452. However, even if the comments were taken to be racially offensive, three ambiguous verbal remarks to Steve about his son's girlfriend do not rise to the level of severe or pervasive racial harassment. There is no evidence that Steve suffered "retaliatory harassment severe or pervasive enough to 'alter the conditions of [his] employment and create an abusive working environment.'" Jensen, 435 F.3d at 451 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Therefore, I will grant Defendants' motion for summary judgment on Count III as to Steve's claim.
C. Ezekiel Young's Title VII, PHRA, and § 1981 Claims
Ezekiel's Title VII claims are confined to the scope of the complaints he asserted in his EEOC charge.*fn13 In his charge, Ezekiel claimed that Defendants racially discriminated in his terms and conditions of employment by declaring: (1) African American employees were denied parking spaces, access to the office bathroom, and the use of bottled water; (2) Defendants only required African American employees to punch in using a time clock; and (3) Ezekiel was improperly warned (a) for failing to punch out on the time clock and (b) for playing Solitaire on the company computer. (Defs.' Mem. Supp. Summ. J. Ex. 37.) In his pleadings, Ezekiel elaborates on the presence of discriminatory conditions by further alleging that (1) he overheard managers saying that they could increase company profits by replacing African American employees with Caucasians (Sec. Am. Compl. ¶¶ 92-93); (2) African American employees were prohibited from using the water fountain (id. ¶¶ 54-56); (3) African American employees were denied access to company-supplied snacks (id. ¶¶ 81-82); (4) African American employees were prohibited from taking breaks on the loading dock, where Caucasian employees took breaks (id. ¶¶ 78-80); and (5) African American employees were segregated from Caucasian employees at the 2006 company Christmas party (id. ¶¶ 76-77).
Ezekiel claims Defendants discriminated by failing to promote him to Chief Engineer. In his EEOC charge, Ezekiel claimed that he was discriminated against when Defendants hired Paul Kuzan, a Caucasian. (Defs.' Mem. Supp. Summ. J. Ex. 37.) In his pleadings, Ezekiel clarifies that Kuzan was hired as Chief Engineer even though Ezekiel was qualified for and applied for the position.*fn14 (Sec. Am. Compl. ¶¶ 32-40.)
Ezekiel incorporates the above Title VII allegations under § 1981 and asserts a new claim.*fn15 Ezekiel alleges he was demoted to the housekeeping department following a workplace injury, and Defendants replaced him with a Caucasian male. (Id. ¶¶ 83-89.)
Ezekiel contradicts some of the above allegations and others completely lack support in evidence. I begin by identifying which allegations will simply be disregarded. I then analyze whether the remaining allegations establish a prima facie case of race discrimination in Ezekiel's conditions of employment or in Defendants' failure to promote Ezekiel.
1. Contradicted and Unsupported Allegations
For the purpose of this motion, Ezekiel's declaration to the EEOC is sufficient evidence. Two allegations in the declaration must be disregarded, however, because of Ezekiel's contradictory admissions in testimony. First, Ezekiel declared that African American employees were denied parking spaces. Ezekiel admits, however, that he had access to a parking spot throughout his employment at the St. James. (Ezekiel Dep. 68:11-69:24, Nov. 11, 2009.) Ezekiel does not attempt to explain this direct contradiction, and there is no other evidence in the record to support finding that African American employees were denied parking spaces. Indeed, Steve also testified that he had a parking space throughout his employment and that the allegation in the Complaint about parking spaces was "incorrect." (Steve Dep. 122:13-17, Nov. 6, 2009.) Second, Ezekiel declared that African American employees were "denied use of, and a key to, the office bathroom." (Defs.' Mem. Supp. Summ. J. Ex. 37.) Ezekiel admits in testimony that the key to the restroom was available to all employees, including African Americans, at the concierge desk. (Ezekiel Dep. 57:9-18.) Defendants also provide evidence that maintenance employees such as Ezekiel were allowed to use the office bathroom. (Hughes Dep. 22:20-23:5.) Given that Ezekiel's testimony directly contradicts these two allegations, a factfinder could not reasonably rely on these portions of his EEOC declaration.
The allegations that Ezekiel adds in his Second Amended Complaint regarding discriminatory conditions must also be disregarded for the purpose of this motion because there is no support for them in evidence.*fn16 When a properly supported motion for summary judgment is made, "an opposing party may not rely merely on allegations or denials in its own pleading." Fed. R. Civ. P. 56(e)(2). I draw all reasonable inferences in Ezekiel's favor on this motion, however, the above allegations cannot reasonably be given any weight.
2. Ezekiel Fails to Meet his Burden Under McDonnell Douglas Pretext Analysis
Ezekiel's remaining allegations can be divided into a claim of discriminatory terms and conditions of employment and a claim of discrimination in Defendants' failure to promote him. I apply the McDonnell Douglas framework to each of these claims. In the first step of McDonnell Douglas, Ezekiel must show a prima facie case of race discrimination. Because Ezekiel is a member of a protected class, he is able to establish the first element of the prima facie test and the inquiry focuses on the other three elements. I find that Ezekiel fails to meet his burden under McDonnell Douglas because he cannot show the elements of a prima facie case for either claim.
a. Ezekiel Does Not Establish a Prima Facie Case of Discriminatory Employment Conditions
Ezekiel's remaining allegations relating to discriminatory conditions of employment are that: (1) African Americans were denied bottled water; (2) only African Americans were required to use a time clock; and (3) Defendants gave him two improper warnings. Ezekiel's claim fails to establish the third element of a prima facie case: that he suffered an adverse employment action.*fn17
Ezekiel has not established a prima facie case because the events he describes do not rise to the level of an actionable adverse employment action. An adverse employment action is one "that is 'serious and tangible enough to alter an employee's compensation, 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)). "Not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Although "formal reprimands that result in a notation in an employee's personnel file" can support a finding of adverse employment action, Robinson v. City of Pittsburgh, 120 F.3d 1286, 1298 (3d Cir. 1997), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), this is true only if they significantly change an employee's employment status. Haynes v. Level 3 Commc'ns, LLC, 456 F.3d 1215, 1224 (10th Cir. 2006).
Although the denial of snacks, bottled water and parking spaces may be frustrating, these actions are not so significant as to alter the terms of Ezekiel's employment. See Storey, 390 F.3d at 764. Ezekiel's reprimands also did not affect his employment status. The first warning did not adversely affect him because the warning was rescinded. On May 2, 2007, management added a note to Ezekiel's file acknowledging that he had, in fact, punched out on the time clock correctly. (Defs.' Mem. Supp. Summ. J. Exs. 31-32.) The second warning was never resolved in Ezekiel's favor. Nonetheless, Ezekiel fails to show that this single warning in any way affected his employment status. See Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001) (refusing to consider two written reprimands as adverse employment actions when the employee was "not demoted in title, did not have his work schedule changed, was not reassigned to a different position or location..., did not have his hours or work changed or altered in any way, and... was not denied any pay raise or promotion").
I will grant summary judgment for Defendants on the discriminatory conditions claim because Ezekiel has not established that he suffered an adverse employment action.
b. Ezekiel Does Not Establish a Prima Facie Case of a Discriminatory Failure to Promote
Ezekiel's discriminatory promotion claim fails to show the second and third elements required for his prima facie case under McDonnell Douglas. To show the second element, a plaintiff must possess the qualifications for the position he seeks to attain. Makky, 541 F.3d at 214. For the third element in a failure-to-promote claim, a plaintiff must show that he made "every reasonable attempt to convey his interest in the job to the employer." E.E.O.C. v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 1990).
Ezekiel fails to show that he was qualified for the position he sought to attain, Chief Engineer. The Chief Engineer position required a Philadelphia Engineer's License and HVAC certification. (Defs.' Mem. Supp. Summ. J. Ex. 39.) Ezekiel's curriculum vitae shows that he did not possess those qualifications. (Id. at Ex. 40.) This evidence is uncontroverted. Ezekiel fails to show that he suffered an adverse employment action because he has not shown that he conveyed his interest in the Chief Engineer position to anyone. Ezekiel admits in testimony that he did not apply for the position of Chief Engineer (Ezekiel Dep. 116:14-19), or otherwise ask to be considered for the position (id. at 75:19-23).
Because Ezekiel fails to establish the existence of two of the elements essential to his failure-to-promote claim, I will grant summary judgment for Defendants on this claim as well.
3. Ezekiel Fails to Satisfy his Burden Under the Price Waterhouse Mixed-Motive Approach
To show that a Title VII claim satisfies the mixed-motive analysis, a plaintiff must provide "sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race... was a motivating factor" behind the defendants' employment actions. Desert Palace, 539 U.S. at 101. As under McDonnell Douglas, a mixed-motive plaintiff must show that he was qualified for the position he sought to attain and that he suffered an adverse employment action. Makky, 541 F.3d at 215. For the reasons discussed above, Ezekiel fails to satisfy these requirements and so his Title VII claims cannot proceed under a mixed-motive theory.
4. Ezekiel Fails to Establish a Hostile Work Environment Claim
Ezekiel alleges that management employees at the St. James created a hostile work environment. Because he fails to provide any evidence of intentional race discrimination, Ezekiel cannot establish the first four elements of the test. I will therefore grant Defendants' motion for summary judgment on this claim as well.
5. Ezeikiel's § 1981 ClaimsAlso Fail
Because the elements of an employment discrimination claim brought under § 1981 are identical those under Title VII, all of the claims rejected above must be rejected under § 1981 as well. Ezekiel's only additional claim is that he was demoted to housekeeping. Ezekiel testified that he was once asked to clean and move items from the basement. (Ezekiel Dep. 98:19-22.)
A temporary reassignment does not constitute a demotion or an adverse employment action. See Alvarado v. Tex. Rangers, 492 F.3d 605, 614 (5th Cir. 2007) ("'[A] plaintiff's subjective perception that a demotion has occurred is not enough.'") (quoting Forsyth v. City of Dallas, Tex., 91 F.3d 769, 774 (5th Cir. 1996)); Crady v. Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993) ("[A] materially adverse change in the terms and conditions of employment must be more disruptive than... an alteration of job responsibilities."); Ferguson v. E.I. duPont de Nemours & Co., Inc., 560 F. Supp. 1172, 1201 (D. Del. 1983) (holding that an employee who was temporarily transferred and who retained her pay and benefits had not suffered an adverse employment action).
Ezekiel cannot show that his assignment to housekeeping duties constitutes an adverse employment action. Although Ezekiel terms this a "demotion," he provides evidence showing only that he was assigned isolated housekeeping responsibilities.*fn18 He provides no evidence that Defendants permanently assigned him to a housekeeping position or decreased his wage.
Ezekiel's temporary assignment to housekeeping duties does not show the necessary "adverse employment action" for his claim. I will therefore grant Defendants' motion for summary judgment with respect to all of Eziekel's § 1981 claims.
I will deny Defendants' motion for summary judgment on Steve's Title VII (Count I). Because the same analysis is applicable to the PHRA claim, I will deny the motion on his state claim as well (Count II).
I will grant Defendants' motion for summary judgment on Steve's claim for "negligent violation" of Title VII (Count III). I will also grant Defendants' motion for summary judgment on all of Ezekiel's claims (Counts I, II, III, and IV).
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The House Intelligence Committee approved legislation Nov. 21 that would set policy and funding levels for intelligence community programs for fiscal 2014, including efforts to modernize IT and target insider threats.
The measure would authorize full funding for a Director of National Intelligence initiative to modernize and consolidate technology, although it also includes reductions in other areas of IT.
The bill would authorize $75 million to target insider threats in the wake of the Edward Snowden leaks that have embroiled the National Security Agency in a spying scandal this year.
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An amendment from Rep. Devin Nunes (R-Calif.) included in the bill would order a declassification review of documents seized from Osama bin Laden's compound in Abbottabad, Pakistan, after the raid that killed the al-Qaeda leader.
Another amendment, by Rep. Jim Langevin (D-R.I.), would expand opportunities for cybersecurity education.
"I am pleased that this committee continues to build upon the good, bipartisan work we began in 2011," Chairman Mike Rogers (R-Mich.) said in a released statement.
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Stock Photo: The Purification of the Leper and the Temptation of Christ, by Sandro Filipepi a.k.a Botticelli (1445-1510). . In the foreground, the celebration of a Jewish sacrifice conducted before the temple. The High Priest is receiving the blood-filled sacrificial bowl while several people are bringing animals and wood as offerings. This celebration refers to the crucifixion of Christ for the redemption of mankind. In the background, the different temptations of Christ, with the Devil disguised as a Hermi
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Let Your Best Self Filter Through by Elizabeth Hamilton-Guarino, with Dr. Katie Eastman
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Five Slowcore Bands That Weren't Really Slowcore
Dean and Britta, tonight at the Belmont
Last year, we detailed five fantastic post-rock bands that scoff at the term post-rock and, more or less, pissed on the very thought of being tagged as such.
With Luna's Dean Wareham and Britta Phillips conquering the grassy hill at the Belmont Hotel tonight as a part of KXT 91.7's Barefoot at the Belmont Series, for what's being billed as a "Dean Sings Galaxie 500" show, we thought it'd be fun to take a look at five splendid slowcore bands from the past and present that would rather us just leave them alone with all of the slow-talk.
Bedhead Many articles discussing the seminal Dallas band mention that, predictably, the band wasn't fond of the label, but one short, simple answer in an interview with Matt and Bubba Kadane gave a profound explanation as to why the slowcore tag missed the mark. To be sure, Bedhead and The New Year's catalogs are cohesive, but they're anything but one-dimensional.
See also: How Merle Haggard turned me on to Bedhead
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Codeine As with other great bands of their ilk, the New York-based group that's now touring in support of some remastered reissues don't seem as bitter as other bands when it comes to being lumped into the slowcore bin. Chris Brokaw is pretty nonchalant and even jocular about the label when compared to other bands.
Low Many Internet resources trace the term "slowcore" back to Alan Sparhawk and his Minnesotan mates.He knows where and when the term itself was jokingly originated, and hasn't been a fan since. Regardless, their 2011 Sub Pop LP, C'Mon, manages to be simultaneously minimal and lush.
Galaxie 500
Galaxie 500 Depending on who you ask, the Dean Wareham-led trio are either slowcore forerunners or simply not slowcore at all. Similar to Bedhead, there are plenty of moments in the band's unfortunately short three-album catalog where they kick in and switch things up quicker than the genre title suggests. Wareham's work with Luna certainly maintained a slower feel while mixing in a greater amount of whimsy. Like the melodic textures of Bedhead, and the majestic poetry of Low, Wareham's open-throated, high-pitched vocal yelping set apart the band. Galaxie 500's Damon Krukowski admits he wasn't a fan of the term after he realized that people were throwing them into the pile posthumously.
Idaho Perhaps the least heralded of this particular grouping of artists, the still-active Jeff Martin vehicle, which was formed in 1992 in Los Angeles, certainly shares the vibe and mood. As was the case with many other bands of the early-to-mid-'90s, Idaho toured with Low and Red House Painters, so it's easy to see the threads. Martin admits as much, even though he doesn't grasp the connection beyond those rather vague parameters.
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United States District Court, District of Columbia
June 29, 2015
SAFARI CLUB INTERNATIONAL, et al., Plaintiffs,v.SALLY M. R. JEWELL, in her official capacity as Secretary of the U.S. Department of the Interior, et al., Defendants.
ROYCE C. LAMBERTH, District Judge.
Plaintiffs in this case challenge a decision of the United States Fish and Wildlife Service ("FWS" or "the Service") to suspend imports of African elephant trophies sport-hunted in Zimbabwe. The suspension resulted from FWS's preliminary and final determinations in 2014 that sport-hunting of African elephants intended for import to the United States would not enhance the survival of the species. See 2d Am. Compl. [Dkt. #49] ¶¶ 1-3. These determinations reversed the agency's prior position on the matter, see id., and plaintiffs in this lawsuit claim that the Service violated the Administrative Procedure Act ("APA") and the Endangered Species Act in making the determinations. Id. ¶ 5.
Plaintiffs have filed a motion to compel supplementation of the administrative record, which they argue is incomplete. Pls.' Mot. to Compel Supplementation of Admin. R. & Admit Extra-R. Evidence [Dkt. #64] ("Mot."). Two documents are at issue in this motion. The first is an email dated June 7, 2002 authored by Timothy Van Norman, chief of FWS's Branch of Permits, concerning import permits for trophies of sport-hunted leopards from Zimbabwe. Email from Timoty Van Norman, Chief, FWS Br. of Permits, to Richard McDonal, FWS (June 7, 2002, 3:05 P.M.), Ex. A to Mot. [Dkt. # 64-2] ("Van Norman Email"). Plaintiffs request that the Court order this email to be added to the administrative record because, they assert, it is part of the record but not included in it by the agency, or alternatively, it should be treated as extra-record evidence. Mot. at 13-17, 21.
The second document at issue is an email dated June 14, 2002 authored by Karl Stromayer of FWS, with the subject "Visit to Zimbabwe and some issues concerning sport hunting and rhino in Zimbabwe." Email from Karl Stromayer, FWS, to Kenneth Stansell, et al., FWS (June 14, 2002, 4:24 P.M.), Ex. B to Mot. [Dkt. # 64-3] ("Stromayer Email"). Plaintiffs request that the Stromayer email be admitted as extra-record evidence or added to the administrative record. Mot. at 17-21; Reply in Supp. of Mot. [Dkt. #68] ("Reply") at 8 & n.4.
Defendants oppose the motion, and the issue is fully briefed. See Opp. to Mot. [Dkt. #67] ("Opp."); Reply. Because plaintiffs have not satisfied their burden to show that these emails should be added to the administrative record or considered as extra-record evidence, the Court will deny the motion.
Judicial review of an agency action under the APA is limited to the administrative record that was before the agency at the time it made its decision. See 5 U.S.C. § 706 (2012); James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam) ("In applying [the abuse of discretion] standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."). "[T]he record must include all documents and materials that the agency directly or indirectly considered" and "neither more nor less." Maritel, Inc. v. Collins, 422 F.Supp.2d 188, 196 (D.D.C. 2006) (citations and internal quotation marks omitted).
Supplementing the administrative record in an APA case means adding material to the volume of documents the agency considered, while admitting extra-record evidence means adding material outside of or in addition to the administrative record that was not necessarily considered by the agency. Pac. Shores Subdiv. Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 5 (D.D.C. 2006).
A. Supplementing the Record
Supplementing administrative records in APA cases is the exception, not the rule. Id. at 5, citing Motor & Equip. Mfrs. Ass'n Inc. v. EPA, 627 F.2d 1095, 1105 (D.C.Cir. 1979), and Fund for Animals v. Williams, 391 F.Supp.2d 191, 197 (D.D.C. 2005). The agency enjoys a presumption that it properly designated the administrative record, and the record will not be supplemented absent clear evidence to the contrary. See Maritel, Inc., 422 F.Supp.2d at 196. "Because administrative records are presumed complete, motions to supplement the record are granted only in limited circumstances." Nat'l Mining Ass'n v. Jackson, 856 F.Supp.2d 150, 155 (D.D.C. 2012), citing Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010); see also Calloway v. Harvey, 590 F.Supp.2d 29, 37 (D.D.C. 2008) ("There is a standard presumption that the [administrative] agency properly designated the Administrative Record.") (alteration in original) (citation and internal quotation marks omitted).
Plaintiffs bear a "heavy burden" in seeking to overcome this presumption in order to supplement the record. WildEarth Guardians v. Salazar, 670 F.Supp.2d 1, 6 (D.D.C. 2009). To carry this burden, "plaintiff[s] must identify reasonable, non-speculative grounds for [their] belief that the documents were considered by the agency and not included in the record.'" Sara Lee Corp. v. Am. Bakers Ass'n, 252 F.R.D. 31, 34 (D.D.C. 2008), quoting Pac. Shores, 448 F.Supp.2d at 6. "Plaintiff[s] cannot merely assert that other relevant documents were before the [agency] but were not adequately considered." Id. They "must do more than imply that the documents at issue were in the [agency's] possession. Rather, plaintiff[s] must prove that the documents were before the actual decisionmakers involved in the determination." Id. (citations omitted).
This burden maintains the "harmonious relationship between agency and court." Pac. Shores, 448 F.Supp.2d at 5, quoting Deukmejian v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1325 (D.C. Cir. 1984), aff'd on reh'g sub nom. San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm'n, 789 F.2d 26 (D.C. Cir. 1986) (en banc). "Were courts cavalierly to supplement the record, they would be tempted to second-guess agency decisions in the belief that they were better informed than the administrators empowered by Congress and appointed by the President." Deukmejian, 751 F.2d at 1325. The principle that judicial review normally should be confined to the administrative record "exerts its maximum force when the substantive soundness of the agency's decision is under scrutiny." Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989).
B. Admitting Extra-Record Evidence
In addition to supplementing administrative records with material that an agency considered but failed to include, courts have in certain circumstances departed from the general rule of limiting judicial review to the administrative record and permitted the introduction of extra-record information. The D.C. Circuit has noted eight circumstances in which other courts have allowed this. Esch v. Yeutter, 876 F.2d at 991 ("(1) when agency action is not adequately explained in the record before the court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; (6) in cases where agencies are sued for a failure to take action; (7) in cases arising under the National Environmental Policy Act: and (8) in cases where relief is at issue, especially at the preliminary injunction stage").[1]
The D.C. Circuit, in a later case, identified four instances that might allow for the addition of extra-record evidence: (1) when the agency failed to examine all relevant factors; (2) when the agency failed to explain adequately its grounds for decision; (3) when the agency acted in bad faith; or (4) when the agency engaged in improper behavior. See IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C. Cir. 1997). And it held in 2010 that "[t]he APA limits judicial review to the administrative record except when there has been a strong showing of bad faith or improper behavior or when the record is so bare that it prevents effective judicial review.'" Theodore Roosevelt Conservation, 616 F.3d at 514, quoting Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C. Cir. 1998); see also Cape Hatteras Access Pres. Alliance v. U.S. Dep't of the Interior, 667 F.Supp.2d 111, 115 (D.D.C. 2009) (Lamberth, C.J.) ("[T]he Esch exceptions are generally more appropriately applied in actions contesting the procedural validity of agency decisions, but even if they are not so limited, it is clear that they were to be sparingly applied to only those cases where extra-record evidence was necessary to make judicial review effective."); Oceana, Inc. v. Locke, 674 F.Supp.2d 39, 44 (D.D.C. 2009) (" Esch 's discussion of eight exceptions to the general rule regarding consideration of extra-record evidence was dicta. "); Earthworks v. U.S. Dep't of the Interior, 279 F.R.D. 180, 185-86 (D.D.C. 2012) (following the analysis in Cape Hatteras and Oceana ).
Plaintiffs' lawsuit raises a number of challenges to FWS's April 4, 2014 preliminary determination and July 24, 2014 final determination that imports of sport-hunted African elephants from Zimbabwe would not enhance the survival of the species. Among them, they claim procedural defects with the determinations. Count I asserts that the agency improperly based its decision on a lack of information, and Count III asserts that it failed to provide the public with notice and opportunity to comment before issuing the determinations. 2d Am. Comp. ¶¶ 94-99, 107-112.
As part of these proceedings, defendants filed a certified list of the contents of the administrative record for both determinations. [Dkt. ## 35-1, 39-1, 60-1]. The parties conferred about several documents plaintiffs obtained from the agency through FOIA requests that plaintiffs believed should have been included in the administrative record. Mot. at 5-13; see also Ex. C to Mot. [Dkt. # 64-4] (April FOIA request); Ex. D to Mot. [Dkt. # 64-5] to Mot. (July FOIA request). The parties were able to narrow the scope of their dispute to two emails that plaintiffs contend should be part of the administrative record before the Court. Mot. at 12.
I. The Van Norman Email
A. Plaintiffs have not satisfied their burden for supplementation of the administrative record.
Plaintiffs assert that the administrative record must be supplemented with an email that Timothy Van Norman wrote on June 7, 2002. Mot. at 13-17. Van Norman is chief of the FWS Branch of Permits, which was responsible for making the "enhancement of survival" determinations at issue in this case. Van Norman Decl., Ex. 1 to Opp. [Dkt. # 67-1] ("Van Norman Decl.") ¶ 1.
The Van Norman email concerned import permits for trophies of leopards from Zimbabwe. Van Norman Email. In the email, Van Norman states that he would be drafting a Federal Register notice about issuing the leopard permits. Id. The notice would also identify the agency's concerns "about what is happening in Zimbabwe and the increase in poaching, " that it would seek information from the public on those issues, and that it would "state that we do not know at this time whether we would be able to issue permits for leopards or allow elephant imports next year." Id.
Plaintiffs assert that the email "memorialized information that was part of Mr. Van Norman's knowledge base and that remained available for his use in making the April and July importation ban decisions." Mot. at 13. They argue that it supports their position that defendants failed to follow the required process in making the April and July determinations, but instead based it "on lack of information and without providing formal notice and an opportunity for the public to comment." Mot. at 15. "Van Norman expressed his understanding of the correct process for the FWS to follow to reverse its position on the legality of the importation of sport-hunted animals from Zimbabwe." Mot. at 11.
Defendants provide a declaration from Van Norman stating that the agency did not consider the email "directly or indirectly in the decision-making process." Van Norman Decl. ¶ 13. Given this, they argue, plaintiffs have not overcome the presumption that the Service properly compiled the administrative record because plaintiffs have not produced reasonable, non-speculative grounds for their belief that the agency considered the email. Opp. at 6, citing Sara Lee Corp., 252 F.R.D. at 34.
The Court agrees with defendants. Plaintiffs seek to supplement the record in this case concerning elephant imports with what is now a thirteen-year-old email about leopard imports. See Van Normal Email. The email's passing reference to elephant imports is not concrete evidence that the agency considered the email in deciding whether to suspend elephant imports in 2014.
Plaintiffs argue the agency must have at least indirectly considered it because Van Norman, a key-decision maker in the 2014 elephant determinations, knew about the email and its contents "by virtue of his authorship, " and it "remained available for his use." Mot. at 13. But plaintiffs have done nothing more than imply that the document was in the agency's possession; they have not proven that the document was "before the actual decisionmakers involved in the determination." Sara Lee Corp., 252 F.R.D. at 34. Plaintiffs obtained the email in a response to their July 24, 2014 FOIA request for materials "regarding or supporting the enhancement of survival finding" made in July 2014. Ex. D to Mot. at 1. Plaintiffs pressed the agency to supplement the July administrative record with this email, but the agency responded that it did not consider the email in making the July finding and erroneously produced it in response to plaintiff's July FOIA request. Mot. at 12, citing email from Meredith Flax, U.S. Dep't of Justice, to Anna Seidman, counsel for Pls., March 19, 2015, Ex. J to Mot. [Dkt. # 64-11]. The fact that the agency produced the document in response to a FOIA request - whether erroneously or not - does not demonstrate that the agency considered it in making the determinations at issue in this case. The Court finds it speculative that the email was "before the agency" when it made the 2014 determinations, and thus finds that plaintiffs have not satisfied their burden to warrant supplementation of the administrative record with the Van Norman email.
B. Plaintiffs have not satisfied their burden to admit the email as extra-record evidence.
Plaintiffs alternatively request the Van Norman email to be admitted as extra-record evidence because the email demonstrates that defendants "knew of the mandatory decision-making process that would have been appropriate for a similar concern in 2002, " and so the Court can "effectively assess whether the FWS properly complied with APA rulemaking and the agency's own procedures for reversing its position on elephant importation." Mot. at 21.
Plaintiffs have not met the requirements for admitting the email as extra-record evidence. They do not allege bad faith nor improper behavior by the agency, and the Court finds that this email is not necessary to make judicial review effective in this case. See Theodore Roosevelt Conservation, 616 F.3d at 514; Cape Hatteras, 667 F.Supp.2d at 115-16. The email does not establish what procedure the agency was required to follow in deciding to suspend elephant imports. Rather, it reflects Van Norman's statement in 2002 that the agency would publish a Federal Register notice regarding its issuance of leopard import permits, that the agency was "concerned about what is happening in Zimbabwe and the increase in poaching, " that the Federal Register notice would seek "any information people might have, " and that it would also state the agency did not know at that time whether it would allow elephant imports the following year.[2] Van Norman Email.
Whether the agency was required to provide for notice and comment before deciding to suspend elephant imports is a legal question for the Court to decide. See Mendoza v. Perez, 754 F.3d 1002, 1020 (D.C. Cir. 2014) (describing claims of agency's failure to comply with notice and comment requirements as "purely legal questions" subject to de novo review); Nat'l Mining Ass'n v. Jackson, 768 F.Supp.2d 34, 46 (D.D.C. 2011) (holding that whether EPA violated the notice and comment requirement of the APA presented a purely legal question). Thus, Van Norman's view on the issue - in 2002 or now - does not inform the Court's analysis. See Earthworks, 279 F.R.D. at 188 (declining to add a document to the administrative record the "[i]nclusion or exclusion of [which] neither advances nor retards the analysis" for the Court). Accordingly, the Court denies plaintiffs' motion to admit the Van Norman email as extra-record evidence.
II. The Stromayer Email
Plaintiffs also seek to have a June 14, 2002 email from Karl Stromayer with the subject "Visit to Zimbabwe and some issues concerning sport hunting and rhino in Zimbabwe" admitted as extra-record evidence. Mot. at 17-21. The email went to multiple individuals at FWS, including then-Assistant Director of FWS for International Affairs Kenneth Stansell. Mot. at 10. It states that Stromayer had recently visited Zimbabwe and reported: "Ariel [sic] survey results suggested that there are approximately 88, 000 elephants in Zimbabwe; whereas the carrying capacity of the elephant range is thought to be in the 42, 000-45, 000 range." Stromayer Email at 1.
Plaintiffs argue that the email "demonstrates that Federal Defendants failed to consider factors relevant to its April and July decisions to ban the importation of elephants from Zimbabwe, " namely "the carrying capacity' of elephants in Zimbabwe." Mot. at 17-18. They assert that the "carrying capacity of Zimbabwe's elephants has always been a significant factor in the FWS's consideration of the status and conservation of the species, " citing two Federal Register notices in support. Mot. at 18-19, citing 53 Fed. Reg. 11, 392, 11, 393 (Mar. 18, 1991), and 58 Fed. Reg. 7813, 7814 (Feb. 9, 1993). They argue this email provides "first hand data relevant to the population status of Zimbabwe's elephants." Mot. at 10.
A. Plaintiffs have not satisfied their burden to admit the email as extra-record evidence.
Plaintiffs argue that the Stromayer email should be admitted as extra-record evidence because the agency "failed to examine all relevant factors, '" Mot. at 18, quoting Cape Hatteras, 667 F.Supp.2d at 116, and because plaintiffs assert procedural challenges to the agency's decisions. Mot. at 20-21.
Defendants contend that carrying capacity "is not directly relevant" to its suspension of imports, but even if it were, there is more recent information in the record on the issue than the statement in the 2002 email about Zimbabwe's carrying capacity. Opp. at 10, citing Van Norman Decl. ¶¶ 20, 22, 23.
While a court may admit extra-record evidence when an agency fails to examine all relevant factors, IMS, P.C. v. Alvarez, 129 F.3d at 624, no bad faith nor improper behavior is alleged here, and the Court finds the Stromayer email is not necessary for effective judicial review. Theodore Roosevelt Conservation, 616 F.3d at 514; Cape Hatteras, 667 F.Supp.2d at 116. Plaintiffs want the Stromayer email admitted because it "specifically identified the existing carrying capacity of elephants in Zimbabwe." Mot. at 19 n.6. But if the email were admitted, the Court would not use the statement about the country's carrying capacity to substitute its judgment for the judgment of the agency. Instead, it would remand the matter back to FWS for consideration. "If the non-record information indicates a failure to consider all relevant factors, remand to the agency for consideration of that information may be in order; substitution of the court's determination for the agency's, based on the non-record information, is not." Sw. Ctr. for Biological Diversity v. Babbitt, 131 F.Supp.2d 1, 8 (D.D.C. 2001), citing Camp v. Pitts, 411 U.S. 138 (1973).
If plaintiffs want the email admitted to show that carrying capacity is a relevant factor that the agency has considered in the past but failed to consider here, plaintiffs may use the two Federal Register notices cited in their motion to make this argument. The 2002 email is therefore not necessary for effective judicial review of the challenged determinations, and the Court denies plaintiffs' request to admit the Stromayer email as extra-record evidence.[3]
For the reasons stated above, plaintiffs' motion will be denied. A separate order will issue.
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Broken Social Scene Isn't Broken at All
Broken Social Scene is anything but broken. With a roster that casts a wide, if loose, net across the musical landscape of Toronto, band members float into and out of each other's musical projects like the friends they very genuinely appear to be.
A short list of solo and band projects related to the BSS collaborative: Feist, Amy Millan, Emily Haines, Stars, Apostle of Hustle, Do Make Say Think and Metric.
To put it in a local context: Think of Broken Social Scene as the Toronto Family Band.
Broken Social Scene
Broken Social Scene perform Saturday, February 19, at the House of Blues.
Andrew Whiteman, the lead guitarist and one of the six core members of the band, explains how it works: "I would call the band a 'collective' with Kevin [Drew] an enlightened despot. You definitely have to cast your musical vote, but Kevin has the final say."
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Drew co-founded the band and also co-created the Arts & Crafts label that serves as the label home to many of his main band's tangential acts. It's an environment, Whiteman says, that naturally encourages collaboration.
Whiteman's own experiences and history further explain the alchemy of the band. Although from Toronto, he spent time living in Havana and soaking up Cuban music and culture—a culture that has evolved from the conditions resulting from the past 40 years of economic embargo.
"Conditions are so harsh, the people have to get along and help each other to survive," he explains. "You have to deal with your neighbors, and that is definitely something you have to do in Broken Social Scene."
His Cuban musical influences tend to shine more on his own Apostle of Hustle side project, where elements of found sounds, samba rhythms and montunos surface in as expected. What's remarkable, though, is that, despite members involved in so many other projects like these, the band still finds time to return to its roots together—like last year, when Broken Social Scene recorded and released Forgiveness Rock Record, one of the most acclaimed albums of last year.
Given all of their other commitments, though, the process this time around proved different from past efforts. Rather than staying home in Toronto to get the disc finished, the band decamped to Chicago and enlisted one of their musical heroes, John McEntire (Tortoise, The Sea & Cake), as producer. But that's not to say that it was an easy transition. The band recorded a grand total of 40 songs with McEntire, and collaboration played an even bigger role this time around, especially on one song, which featured vocals by Feist, Haines and Millan together for the first time.
Of course, not all of those cuts made it onto Forgiveness Rock Record, which was composed of the most finished of the tracks recorded during the session. But more releases from these sessions can still be expected, Whiteman says.
"Kevin and [bassist] Charlie [Spearin] are going back to Chicago to listen to the tapes and decide what to work on next," he reveals.
The unfortunate thing about the collaborative nature of Broken Social Scene, though, is that not all of its members can join the band's touring lineup. To that end, this February tour in support of Forgiveness Rock Record will feature the same lineup that played the Palladium last year. Fans can still expect a beefy offering, though, with as many as four guitarists performing at a time and sets that run as long as three hours.
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Two congressmen expected to pass on ticket to Denver
Denver -- Wisconsin may have 16 superdelegates, those elected officials and party leaders who are automatically part of the state's convention delegation. But the state will likely be two superdelegates light this week in Denver.
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Wineke, who is due to arrive in Denver later tonight, made his comments in a telephone interview.
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text: Did you know? October 31, 2008December 4, 2008 • Mike Aubrey While everyone in the US has been hearing about election politics for the past year, up here in Canada we had an entire campaign and election in a third of the time. Talk about efficiency. Rate this:Share this:GoogleRedditTwitterFacebookLike this:Like Loading... Related


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