could have been placed. This argument is immaterial because it fails to demonstrate an illegitimate motive by the ERB or a link between such a motive and the reassignment of Fagin to the Deputy Director position. See Price Waterhouse, 490 U.S. at 251.
Fourth, plaintiff claims that the Department tried to hide from Gentile the fact that the position was no longer in competition. The only proffered evidence of this alleged fact is Gentile's conversation with Ann Chapman, an employee in personnel. Chapman's statements to Gentile are inadmissible hearsay. (Dep. of Robert Gentile at 69-71.) Even if they were admissible, they are not evidence that the decision not to compete the position was motivated by a desire to discriminate against plaintiff because of her gender.
Fifth, plaintiff claims through Cecelia Holmes's deposition that the Department wanted anyone in the position but plaintiff. This is in the form of an alleged statement from Fagin to Holmes.
Fagin's statement to Holmes is also hearsay and inadmissible. (Dep. of Cecelia Holmes at 79.) The alleged statement by "the Department" does not specify the individual who made the statement, therefore it is impossible to identify whether the person who made the statement was involved in the selection process. Even assuming that this evidence were admissible and that "the Department" consisted of members of the ERB who wanted "anyone in the position but plaintiff," this statement does not reveal the motivation behind such a statement. Because this evidence does not demonstrate illegitimate intent, it does not contribute to the establishment of a prima facie case of gender discrimination. See Price Waterhouse, 490 U.S. at 241 (noting that plaintiff must "prove that the employer relied upon sex-based considerations in coming to its decision").
Therefore, plaintiff fails to state a prima facie case. She does not present admissible evidence to create a disputed issue of material fact as to the alleged discriminatory nature of the noncompetitive selection of Fagin. Failure of proof as to even one element of a prima facie case leaves a complaint fatally defective and susceptible to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Because plaintiff failed to establish a prima facie case, it is not necessary to determine whether this case is a "pretext" case or a "mixed motives" case for purposes of determining whether the burden of proof shifts to the defendant. See, e.g., Price Waterhouse, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 ; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Plaintiff's failure to offer evidence of a link between the alleged discrimination based on gender and the ERB's decision to assign noncompetitively a permanent replacement for the Deputy Director position and its subsequent approval of Fagin makes partial summary judgment appropriate as to the gender discrimination claim.
2. Reprisal Claim
Plaintiff also alleges that Fagin's noncompetitive reassignment was in reprisal for her prior participation in EEO activity. See 42 U.S.C.A. § 2000e-3. The elements of a prima facie case of employment discrimination based on reprisal are that: (1) plaintiff engaged in protected opposition to Title VII discrimination or participated in a Title VII proceeding and defendant employer had knowledge of plaintiff's EEO activity; (2) plaintiff was disadvantaged by an action of her employer subsequent to or contemporaneously with such opposition or participation; and (3) there is a causal connection between the protected activity and the adverse employment action. Barnes v. Small, 840 F.2d 972, 976 (D.C. Cir. 1988); Burrus v. United Tel. Co., 683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071, 74 L. Ed. 2d 633, 103 S. Ct. 491 (1982); see Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 377 (6th Cir. 1984), cert. denied, 478 U.S. 1006, 92 L. Ed. 2d 712, 106 S. Ct. 3298 (1986); Smalley v. City of Eatonville, 640 F.2d 765, 769 (5th Cir. Unit B Mar. 1981); Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980); Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, 450 U.S. 979, 67 L. Ed. 2d 814, 101 S. Ct. 1513 (1981); Gunther v. County of Washington, 623 F.2d 1303, 1314 (9th Cir. 1979), aff'd on other grounds, 452 U.S. 161, 68 L. Ed. 2d 751, 101 S. Ct. 2242 (1981).
Plaintiff filed two EEO complaints in August 1986 and May 1988 relating to her employment with the Department of the Interior. (Second Am. Compl. PP 7-8.) Both were filed prior to Fagin's April 1989 noncompetitive reassignment. Plaintiff's EEO complaints constitute "participation" in the EEO process that is protected against reprisal. See 42 U.S.C.A. § 2000e-3(a). Plaintiff also alleges, and defendant does not dispute, that defendant was aware of plaintiff's prior EEO activities. (Def.'s Mot. for Partial Summ. J. at 13.)
Defendant argues that plaintiff has not suffered an adverse employment decision since the Deputy Director position was filled noncompetitively and because plaintiff did not suffer loss of benefits or salary as a result of that action. The Court recognizes, however, that plaintiff's inability to compete for the position denied plaintiff an opportunity to occupy that position on a permanent basis. Since plaintiff resumed a position which was subordinate to the Deputy Director position after Fagin's reassignment, the decision not to compete the position was adverse to plaintiff. (Ex. 1 PP 2, 4-5.)
Plaintiff fails to make a prima facie case of reprisal, however, because she presents no facts demonstrating a causal connection between her participation in the EEO process and the ERB's decision to reassign Fagin noncompetitively to the Deputy Director position. While a causal nexus is inferred when the adverse employment action occurs shortly after participation in protected activity, see, e.g., Grant, 622 F.2d at 1296 & n.6, the Court finds that such an inference would be inappropriate in this case. Plaintiff's EEO complaints were filed in August of 1986 and May of 1988. (Compl. PP 7-8.) Fagin's noncompetitive reassignment became effective on April 27, 1989, almost a full year after plaintiff's most recent complaint. (Ex. G.) The length of time between plaintiff's EEO activity and the adverse employment decision is too great to support an inference of reprisal. Compare Burrus, 683 F.2d 339 (holding that almost three years is too long to infer retaliation); Clark v. Chrysler Corp., 673 F.2d 921 (7th Cir.) (holding that two years is too long to support an inference), cert. denied, 459 U.S. 873, 74 L. Ed. 2d 134, 103 S. Ct. 161 (1982); Juarez v. Ameritech Mobile Communications, Inc., 746 F. Supp. 798 (N.D. Ill. 1990) (holding that almost six months does not support an inference), aff'd, 957 F.2d 317 (7th Cir. 1992); Parrott v. Cheney, 748 F. Supp. 312 (D. Md. 1989) (holding that less than four months does not support an inference), aff'd per curiam, 914 F.2d 248 (4th Cir. 1990), and Blumensaadt v. Standard Products Co., 744 F. Supp. 160 (N.D. Ohio 1989) (holding that 20 months does not support an inference), aff'd per curiam, 911 F.2d 731 (6th Cir. 1990); with Womack, 619 F.2d 1292 (holding that five days is sufficient to infer retaliation); Globus v. Skinner, 721 F. Supp. 329 (D.D.C. 1989) (finding two years sufficient to support an inference of retaliation because plaintiff's participation in litigation against defendant ended only a few months before plaintiff was laid off and resulting tensions still existed), aff'd per curiam, 57 Fair Empl. Prac. Cas. (BNA) 145 (D.C. Cir. 1990), cert. denied, 111 S. Ct. 2851, 115 L. Ed. 2d 1019 (1991); McCarthy v. Cortland County Community Action Program, Inc., 487 F. Supp. 333 (N.D.N.Y. 1980) (holding that two weeks is sufficient to support an inference), and Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.) (holding that alleged retaliation within six months of settlement of plaintiff's civil action and within one month of complaint to employer is sufficient to support an inference of retaliation), aff'd, 545 F.2d 222 (1st Cir. 1976).
Even if an inference of reprisal were warranted, defendant's evidence of a legitimate, nondiscriminatory reason for Fagin's reassignment resulting from the Lander decision was insufficiently rebutted by plaintiff. Absent an inference of reprisal, plaintiff must show that the ERB's decision not to compete the Deputy Director position was motivated at least in part by a desire to bar plaintiff from applying for the position because of her prior complaints of discrimination. Plaintiff contends that Snyder's alleged derogatory remark to Gentile is evidence of discrimination based on reprisal. As discussed above, this statement is not admissible because it is hearsay. And, as noted, even if it were not hearsay and were true, it is not material to a finding of employment discrimination because Snyder neither participated in nor contributed to the process to fill the Deputy Director slot. Price Waterhouse, 490 U.S. at 241-242; see EEOC v. Gaddis, 733 F.2d 1373, 1380 (10th Cir. 1984).
Plaintiff also relies upon the allegation that Fagin told Holmes that the Department wanted anyone in that position but plaintinff. (Dep. of Cecelia Holmes at 79.) As noted above, this evidence would be inadmissible and is therefore inappropriate to defeat a motion for summary judgment. Therefore, the Court finds that plaintiff fails to state a prima facie case of reprisal.
Accordingly, the Court grants summary judgment for defendant as to her reprisal claim.
For the reasons stated above, defendant's motion for partial summary judgment as to plaintiff's allegation of gender discrimination and reprisal based on the noncompetitive reassignment of Fagin is granted. An appropriate Order accompanies this Opinion.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 799 F. Supp. 198.
Stanley S. Harris
United States District Judge
Date: SEP 18 1992
ORDER - September 18, 1992, Filed
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that defendant's partial summary judgment motion is granted. It hereby further is
ORDERED, that plaintiff's gender discrimination and reprisal claims are dismissed with prejudice.
Stanley S. Harris
United States District Judge
Date: SEP 18 1992