                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2009

Glen Perry v. Secretary Army
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3339




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                                                  NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

                        No. 08-3339
                       ____________

                     GLEN J. PERRY,

                              Appellant,

                             v.

           FRANCIS J. HARVEY, SECRETARY
            OF THE UNITED STATES ARMY,

                              Appellee.

                       ____________

       On Appeal from the United States District Court
                for the District of New Jersey
                   (D.C. No. 06-cv-05386)
         District Judge: Honorable Noel L. Hillman
                        ____________

         Submitted Under Third Circuit LAR 34.1(a)
                       June 2, 2009

Before: McKEE, HARDIMAN, and GREENBERG, Circuit Judges.

                   (Filed: June 05, 2009 )

                       ____________

                OPINION OF THE COURT
                     ____________
HARDIMAN, Circuit Judge.

       Glen Perry appeals the District Court’s summary judgment on his hostile work

environment and retaliation claims against his former employer, the United States Army.

We will affirm.

                                              I.

       An African-American, Perry worked as a civilian police officer at Fort Dix from

2000 to 2006. Throughout his employ, Perry had a contentious relationship with his

immediate supervisor, Lieutenant Bonnie Graham-Morris, who is Asian-American. In

2003, Perry completed an anonymous survey on the work climate at Fort Dix, in which he

criticized Graham-Morris’s performance and insinuated that minorities were treated

unfairly. Later that year, Perry filed an EEOC complaint alleging racial discrimination

and tensions continued to flare between Perry and Graham-Morris. In 2005, incensed that

Graham-Morris had received a promotion, Perry sent an inflammatory e-mail to 11

minority officers questioning Graham-Morris’s qualifications and calling for widespread

protest of “injustice” at the police department.

       Three months later, in November 2005, the EEOC held a hearing on Perry’s 2003

complaint, where fellow African-American police officer Rick Sanders offered testimony

contradicting Perry’s discrimination claims. Two weeks later, Perry was caught placing

offensive materials in Sanders’s mailbox, accusing Sanders of sleeping with Graham-

Morris and calling him a “rat,” “traitor,” “lacky,” and “fink Uncle Tom.” This was the



                                              2
final straw for the Director of Public Safety at Fort Dix, who notified Perry in writing of

his termination. Perry’s termination became final in October 2006 when the Merit

System Protection Board (MSPB) upheld the Director’s decision. In the meantime, the

EEOC issued a ruling on Perry’s initial complaint, rejecting his discrimination charges.

In November 2006, Perry brought hostile work environment and retaliation claims in

federal court under 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a). Perry’s federal complaint

also challenged the MSPB’s decision to uphold his termination. The District Court

granted summary judgment for the Army on all claims and Perry appeals.          1



                                                II.

       In reviewing a motion for summary judgment, we view the record and draw

inferences in the light most favorable to the nonmoving party. We will reverse the

District Court’s grant of summary judgment if a reasonable jury could find for the

nonmoving party. See Moore v. City of Phila., 461 F.3d 331, 340 (3d Cir. 2006).

                                               A.

       To prove his hostile work environment claim, Perry must show, inter alia, that his

workplace was “permeated with discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of [his] employment and create an

abusive working environment.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,



       1
         The District Court had jurisdiction over Perry’s Title VII claims under 28 U.S.C. § 1331,
and jurisdiction to review the MSPB’s decision under 42 U.S.C. § 2000e-16(c) and 5
U.S.C. §§ 7702-7703. We have appellate jurisdiction under 28 U.S.C. § 1291.

                                                3
116 (2002) (quotations omitted). Moreover, the discrimination must be both subjectively

and objectively detrimental to the victim. See Weston v. Pennsylvania, 251 F.3d 420, 426

(3d Cir. 2001). In assessing the severity of alleged discriminatory treatment, “we

consider the totality of the circumstances;” our analysis “must concentrate not on

individual incidents, but on the overall scenario.” Caver v. City of Trenton, 420 F.3d 243,

262-63 (3d Cir. 2005) (quotations and citations omitted). “[O]ffhanded comments and

isolated incidents (unless extremely serious) are not sufficient to sustain a hostile work

environment claim. Rather, the conduct must be extreme to amount to a change in the

terms and conditions of employment.” Id. at 262 (quotations and citations omitted). Title

VII is not a “general civility code . . . [T]he ordinary tribulations of the workplace, such

as the sporadic use of abusive language, gender-related jokes, and occasional teasing” do

not support a hostile work environment claim. Faragher v. City of Boca Raton, 524 U.S.

775, 788 (1998) (quotation omitted).

       In this case, most of the evidence upon which Perry relies is not probative of

discriminatory animus, much less severe or pervasive enough to support a hostile work

environment claim. Over an eight-month period in 2003, Perry’s police vehicle was

reassigned; he was prohibited from attending a picnic as the department’s Drug Abuse

Resistance Education (DARE) representative; he was prohibited from working overtime;

and he was temporarily marked AWOL by Graham-Morris. However, Perry does not

rebut the Army’s legitimate explanations for each of these actions: Perry was assigned to



                                              4
desk duty and his vehicle was needed for patrols; Perry was no longer the department’s

D.A.R.E. representative at the time of the picnic; the department implemented a policy

against overtime; and Graham-Morris justifiably, albeit wrongly, believed Perry was

AWOL because he cleared his absence with a different supervisor. Perry cites racist

remarks made by Graham-Morris’s husband on two occasions, but these statements are

not germane to Perry’s hostile work environment claim because the husband was not

employed by the police department and Perry offers no evidence to justify imputing his

remarks to Graham-Morris. Even accepting Perry’s version of these events — as we must

at summary judgment — they do not support a hostile work environment claim.

       Some of Perry’s allegations, however, may be probative of a hostile work

environment. In 2000, Perry once overheard Graham-Morris “refer to men of color as

being dumb and useless.” Appellant’s Br. at 3. In 2003, Graham-Morris denied Perry

leave to take his mother to a doctor’s appointment, and wrongly advised him to report to a

“phantom” meeting with the police chief. Most significantly, in late 2003, Graham-

Morris approached Perry while sitting in a parked vehicle after his shift and asked, “What

are you doing here, boy?” Finally, in 2004, Graham-Morris asked Perry for verification

that he had taken a drug test, although such verification was not normally requested from

other officers.

       The foregoing evidence is insufficient as a matter of law for a reasonable jury to

conclude that Perry was subjected to a hostile work environment because it is not severe



                                             5
or pervasive enough to “to alter the conditions of [Perry’s] employment and create an

abusive working environment,” Nat’l R.R. Passenger Corp., 536 U.S. at 116, or to

“detrimentally affect a reasonable person . . . in that position,” Weston, 251 F.3d at 426.

Perry’s hostile work environment claim boils down to allegations that over the course of

10 months, Graham-Morris denied a leave request, lied to him about a meeting, requested

verification of a drug test, and called him “boy.”

       Indeed, Perry concedes that the majority of this conduct was “petty in nature,”

Appellant’s Br. at 24, but argues that the “boy” comment was severe enough to violate

Title VII by itself. See id. at 22 (suggesting the District Court erred in finding Graham-

Morris’s actions neither severe not pervasive, because “a jury could find that under the

circumstances the ‘boy’ comment was in fact ‘severe’”). Accepting Perry’s requested

inference that “boy” was a racially motivated epithet, it does not rise above an “offhanded

comment,” Caver, 420 F.3d at 262, or “sporadic . . . abusive language,” Faragher, 524

U.S. at 788. The Supreme Court has held that the “mere utterance of an [ethnic or racial]

epithet which engenders offensive feelings in a [sic] employee does not sufficiently affect

the conditions of employment to implicate Title VII.” Harris v. Forklift Sys. Inc., 510

U.S. 17, 21 (1993) (quotation omitted).

       Viewing the “overall scenario” in the light most favorable to Perry, Caver, 420

F.3d at 263, we hold that no reasonable jury could conclude that the Army’s conduct was

severe or pervasive enough to create a hostile work environment.



                                              6
                                              B.

       We turn now to Perry’s retaliation claim, which is based on the filing of his EEOC

complaints, the anonymous survey, and his e-mail opposing Graham-Morris’s promotion.

To establish a prima facie case of retaliation, an employee “must show that: (1) he or she

engaged in a protected employee activity; (2) the employer took an adverse employment

action after or contemporaneous with the protected activity; and (3) a causal link exists

between the protected activity and the adverse action.” Weston, 251 F.3d at 430. If the

employee establishes his prima facie case, “the familiar McDonnell Douglas approach

applies in which the burden shifts to the employer to advance a legitimate, non-retaliatory

reason for its conduct and, if it does so, the plaintiff must be able to convince the

factfinder both that the employer’s proffered explanation was false, and that retaliation

was the real reason for the adverse employment action.” Moore, 461 F.3d at 342

(quotations omitted).

       To the extent that Perry claims retaliation by Graham-Morris based on the

anonymous survey, he cannot establish a prima facie case because the survey does not

qualify as protected activity.2 Title VII’s retaliation provision prohibits discriminating


       2
         Moreover, it is questionable whether Graham-Morris’s conduct rises to the level
of adverse employment action, even under the more lenient standard articulated in
Burlington N. & Santa Fe Ry.Co. V. White, 548 U.S. 53, 68 (2006). “An employee’s
decision to report discriminatory behavior cannot immunize that employee from those
petty slights or minor annoyances that often take place at work and that all employees
experience. . . . [N]ormally petty slights, minor annoyances, and simple lack of good
manners will not [support a retaliation claim].” 548 U.S. at 68.

                                              7
against an employee “because he has opposed any practice made an unlawful employment

practice by [the statute].” 42 U.S.C. § 2000e-3(a). An informal complaint may qualify as

protected activity if it “protest[s] what an employee believes in good faith to be a

discriminatory practice.” Aman v. Cort, 85 F.3d 1074, 1085 (3d Cir. 1996). In other

words, a retaliation plaintiff must show that “he was acting under a good faith, reasonable

belief that a violation existed” when he voiced a grievance. Id. “To determine if

retaliation plaintiffs sufficiently ‘opposed’ discrimination, we look to the message being

conveyed rather than the means of conveyance.” Moore, 461 F.3d at 343 (quotation

omitted). Although informal complaints may suffice, “the employee’s ‘opposition’ to

unlawful discrimination must not be equivocal [or vague].” Id. at 341-43.

       Perry’s response to the anonymous survey was too vague to qualify as opposition

to unlawful practices under Title VII because his complaints were primarily directed at

Graham-Morris’s capabilities. Perry wrote that his supervisor “does not communicate

any ideas;” “does not keep me informed at all;” provides “no backing at all;” “shows no

interest at all in their (sic) employees;” “has NEVER discuss[ed] my training needs at

all;” and “is not COMPETENT in their (sic) job.” App. at 616. Perry also accused

Graham-Morris of driving while intoxicated, harassing male officers, inappropriately

discharging her weapon, and assaulting other officers. App. at 617.

       The fact that Perry complained about other issues does not necessarily preclude the

survey from qualifying as protected activity under Title VII. See Moore, 461 F.3d at 343



                                              8
n.4. But the survey makes only oblique reference to racial discrimination, in such vague

fashion that it is impossible to judge whether Perry reasonably believed he was protesting

a violation of Title VII. The mere mention of race does not transform a general list of

grievances into opposition to unlawful activity under Title VII. The conduct that serves

as the basis for Perry’s Title VII claims occurred entirely after he completed the survey,

and Perry cites no earlier conduct on appeal. The survey itself neither suggests the acts

Perry was protesting nor their alleged discriminatory basis. We therefore hold that Perry

cannot rely on the survey to establish a prima case of retaliation because it does not rise

to the level of protected activity.

       To the extent that Perry claims he was fired in retaliation for his inflammatory e-

mail or for filing EEOC complaints, however, he may be able to establish a prima facie

case. Like the survey, Perry’s e-mail is devoid of reference to any specific act that might

be unlawful under Title VII. However, its message may reasonably be interpreted as an

objection to perceived racial discrimination in the promotion process, making it a

somewhat closer call than the survey. Assuming, arguendo, that the e-mail constitutes

protected activity, Perry has established a prima facie case because the Army concedes

that Perry was fired in part because of the e-mail, supporting a causal inference between

Perry’s opposition to racial discrimination and his termination. Nevertheless, the Army

rebuts Perry’s prima facie case with legitimate, nonretaliatory reasons for his termination.




                                              9
       First, Perry was caught on videotape placing inappropriate and highly offensive

materials in Rick Sanders’s mailbox in retribution for Sanders’s EEOC testimony.

Second, the inflammatory manner in which Perry chose to communicate his objection to

Graham-Morris’s promotion was also inappropriate, designed to undermine the authority

of the Director of Public Safety, and create disharmony throughout the department.

Rather than voicing his concerns to his superiors, Perry essentially called for insurrection

among minority officers. See App. at 180 (“As a closing item and remembrance ‘Bloody

Sunday March 1965.’ They stood up, spoke up, walked up and made a difference in

today’s history. They took a stance why we don’t and why we can’t (sic). Ask yourself

that.”).3 On appeal, Perry presents no argument whatsoever that these reasons are

pretextual. See Appellant’s Br. at 23-24 (confining retaliation argument to elements of

the prima facie case). Although Perry’s brief implies a factual dispute concerning the

material found in Sanders’s mailbox, he has effectively admitted responsibility by

alleging in his complaint that the MSPB violated his First Amendment rights by firing

him for the material.4 See App. at 54. Because Perry fails to cast doubt upon the

legitimate reasons for his termination proffered by the Army, we will affirm summary

judgment on this claim as well.

       3
        Perry’s written termination also cited false statements he made in an EEOC
affidavit and misuse of his Government computer in downloading the offensive material
found in Sanders’s mailbox.

       4
           The District Court did not address this argument and Perry does not raise it on
appeal.

                                               10
                                             C.

       Finally, we turn to Perry’s argument that the MSPB erred in affirming his

termination. We agree with the District Court that this argument is unavailing given that

Perry has failed to show or even attempt to show that the reasons for his termination

stated by the Army were pretextual. To the extent that Perry argues the MSPB was

required to apply mixed-motive analysis, his argument fails because the Army’s reliance

on Perry’s e-mail is not direct evidence of discrimination. The Army stated that Perry

was fired for the unprofessional and inflammatory method in which he voiced his

objections to coworkers, not for the objections themselves. At best, the e-mail establishes

a prima facie case by supporting a plausible inference that Perry’s objections to perceived

discriminatory promotion practices might have been a causal factor in his termination.

However, the Army successfully rebutted Perry’s prima facie case by providing

legitimate, nonretaliatory reasons for his termination that Perry fails to challenge. We

will affirm summary judgment on this claim as well.

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            11
