The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant, Janet Napolitano, moves for summary judgment. Plaintiff, Eugene Robinson, opposes Napolitano's motion. For the reasons stated below, Napolitano's motion for summary judgment is granted in part and denied in part.
Viewed in the light most favorable to Robinson, the nonmoving party, the facts are as follows:
Robinson applied for a supervisory baggage screener position with the Transportation Security Administration (TSA). (Application for Employment, Docket 32-3, Ex. 2 at 1.) On August 21, 2002, Robinson passed the electronic portion of the TSA employment process. (Docket 34-2, Ex. 21.) On August 27, 2002, Robinson passed the second part of TSA's employment process. (Docket 34-3, Ex. 22.) Robinson was hired by TSA to be a supervisor of baggage screeners on November 10, 2002. (Docket 32-10, Ex. 9 at 2.) Robinson then completed the required classroom training and the on-the-job training in November and December of 2002. (Docket 32-5, Ex. 4 at 2; Docket 32-8, Ex. 7 at 1, 4.)
During the classroom portion of the training, another employee of TSA, Brent Kress, claimed to have been sexually harassed by one of the trainers.*fn1 (Docket 32-5, Ex. 4 at 2.) Kress attempted to obtain legal advice about the claim from Robinson prior to the on-the-job training portion of the training process.*fn2 (Id.) One of the trainers was aware that Robinson had talked to Kress and tried to obtain information about their discussion from Robinson, but Robinson refused to disclose what was said on the basis of the attorney-client privilege. (Id.) The trainer became upset with Robinson when he would not talk about what was said. (Id.)
During the on-the-job training period, Robinson's assessor/trainer, Karan Blakeslee, made comments to Robinson about another trainee, David Ford. (Id.) Blakeslee said that she liked Ford, that she thought he was handsome and cute, and that she wanted to take him home. (Id.; Robinson Dep., Docket 21-17, at 18-19.) Robinson eventually asked Blakeslee to stop making those comments because he found them to be offensive. (Docket 32-5, Ex. 4 at 2.)
After Robinson asked Blakeslee to stop commenting about Ford, Blakeslee became upset and began to treat Robinson differently by requiring him to wear his gloves at all times and otherwise harassing him. (Id.; Robinson Dep., Docket 21-17, at 19.) Blakeslee continued to make similar comments about Ford. (Docket 32-5, Ex. 4 at 2.) Robinson then talked to Blakeslee's superior, John Sousa, about her comments. (Id. at 2-3.) Sousa did not address Robinson's concerns and began treating Robinson differently by no longer providing him additional supervisory training. (Id. at 3; Robinson Dep., Docket 33, Ex. 15 at 2.) Ford, however, continued to receive supervisory training from Sousa. (Docket 32-5, Ex. 4 at 3.) Robinson also informed his immediate TSA supervisor, Sandra Erickson, about the differential treatment that he was experiencing, but Erickson told Robinson that she was not going to interfere with the on-the-job training provided by the Boeing trainers. (Id.) On the last day of the on-the-job training, Robinson overheard Erickson, Sousa, and Sousa's boss talking about him. (Id.) During that conversation, Robinson heard one of them say "Can we do that, he'll probably sue us." (Id.)
After completing the on-the-job training segment, Robinson was not allowed to supervise. (Id.) Ford became Robinson's supervisor. (Id.)
Robinson was embarrassed by the fact that he was not allowed to be a supervisor because the other TSA employees knew that he had been hired as a supervisor and repeatedly asked him why he was not a supervisor. (Id.; Robinson Dep., Docket 33, Ex. 15 at 5.)
While in a public restroom, Robinson talked to the local Federal Security Director, Clarence Putnam, about how he had been sexually harassed and not been allowed to be a supervisor. (Robinson Dep., Docket 33, Ex. 15 at 5.) The conversation ended because Robinson was embarrassed by having to talk about his situation in front of strangers that were present in the restroom. (Id.)
Younger males and females were appointed to be "acting" supervisors, and one woman who was the same age as Robinson was made an "acting" supervisor over Robinson. (Docket 32-5, Ex. 4 at 5.) On December 22, 2002, Robinson was given the choice of either accepting a supervisory position that required him to work on Christmas Eve at 3:30 a.m. or being fired. (Id. at 3-4.) Robinson chose to take the supervisory position even though he was not scheduled to work on Christmas Eve or Christmas. (Id. at 4.)
While a supervisor, Robinson received limited guidance and was not allowed to obtain assistance or additional supervisory training from other supervisors. (Id. at 6.) Robinson never knowingly violated the standard operating procedure. (Robinson Dep., Docket 33, Ex. 15 at 7.) When he did deviate from the standard operating procedure with regard to the sequence for screening luggage, he obtained prior approval. (Id. at 8-9.) Robinson received verbal reprimands from his superiors, but he never received a letter of counseling even though written documentation existed. (Id. at 14-15; Robinson Dep., Docket 33-2, Ex. 15 part 2 at 4-5.) On January 21, 2003, Robinson was placed on administrative leave and was subsequently terminated on March 3, 2003. (Docket 33-5, Ex. 18 at 2.)
Robinson first contacted an Equal Employment Opportunity (EEO) counselor on April 3, 2003. (EEO Counselor's Report, Docket 21-4, Ex. 3.) After denying Robinson's initial claim, the EEO Commission denied Robinson's request for reconsideration on March 14, 2008. (U.S. EEO Commission, Docket 33-6, Ex. 19 at 2.) Robinson then filed this suit alleging a hostile work environment, retaliation based on prior EEO activity, sexual harassment, and age discrimination. (Complaint, Docket 1.)
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered 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). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). The nonmoving party may not, however, merely rest upon allegations or denials in its pleadings, but must set forth specific facts by affidavits or otherwise showing that a genuine issue exists. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
I. Exhaustion of Administrative Remedies
A. The Scope of the Administrative Charge
Napolitano argues that Robinson is limited to those claims asserted in an EEO letter that outlined Robinson's formal discrimination complaint. Because Robinson's claim of age discrimination and retaliation for his EEO activity involving Kress*fn3 are not mentioned in the list, Napolitano contends those claims should be dismissed. Napolitano also contends that all other incidents of alleged discrimination and retaliation should be dismissed because they were not part of the investigation.
"A Title VII plaintiff must exhaust administrative remedies before bringing suit in federal court." Cottrill v. MFA, Inc., 443 F.3d 629, 634 (8th Cir. 2006). Similarly, "[a]n exhaustion of administrative remedies is a condition precedent to the filing of an action under the ADEA in federal court." Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005) (citation omitted). "The reason for requiring the pursuit of administrative remedies first is to provide the EEOC with an initial opportunity to investigate allegations of employment discrimination and to work with the parties toward voluntary compliance and conciliation." Id. at 585 (citation omitted).
"The claims of employment discrimination in the complaint may be as broad as the scope of the EEOC investigation which reasonably could be expected to result from the administrative charge." Id. An administrative charge is "liberally construe[d]" for purposes of determining whether a plaintiff has exhausted the administrative remedies. Id. "But there is a difference between liberally reading a claim which 'lacks specificity,' and inventing, ex nihilo, a claim which simply was not made." Shannon v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996). In the context of exhaustion of administrative remedies, a plaintiff is allowed to bring the claim that was specifically alleged, "along with allegations that are 'like or reasonably related' to that claim[.]" Parisi, 400 F.3d at 585 (quoting Shannon, 72 F.3d at 684) (citation omitted).
The EEO letter that summarized Robinson's complaint specifically stated that Robinson's claims included "discrimination based on . . . age . . . and reprisal (for opposition to unlawful discriminatory policies and practices), from November 10, 2002 through March 2003, when [Robinson] was harassed by being subjected to a pattern of continued retaliation while employed . . . at the Sioux Falls Regional Airport[.]" (Docket 32-5, Ex. 4 at 1.) Thus, Robinson's age discrimination claim and retaliation claim with regard to reporting his sexual harassment are clearly within the scope of the administrative charge and the ensuing investigation.
With regard to the hostile work environment claim, both the initial EEO letter that outlined Robinson's discrimination claims, as well as the EEO investigator's questions, specifically state that Robinson claimed to have been "subjected to a pattern of continued retaliation while employed[.]" (Docket 21-2, Ex. 1 at 1; Docket 32-5, Ex. 4 at 2-3.) In Parisi, the Eighth Circuit Court of Appeals recognized that " '[t]he proper exhaustion of administrative remedies gives the plaintiff a green light to bring [an] employment-discrimination claim, along with allegations that are "like or reasonably related" to that claim, in federal court.' " Parisi, 400 F.3d at 585 (citation omitted). A hostile work environment claim is reasonably related to the claim of being "subjected to a pattern of continued retaliation." Cf. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) ("A hostile work environment claim is composed of a series of separate acts[.]"). Thus, Robinson's hostile work environment claim was reasonably expected to be within the scope of the EEOC's investigation. Parisi, 400 F.3d at 585 Robinson's sexual harassment claim involving his assessor/trainer, Blakeslee, and Robinson's claim of retaliation for partaking in EEO activity that involved talking to Kress about Kress's sexual harassment claim were not specifically set out in the EEO letter sent to Robinson on April 15, 2004. (Docket 33-5, Ex. 18.) While these claims were not specifically set forth in the EEO letter, both claims were nonetheless within the "scope of the EEOC investigation which reasonably could be expected to result from the administrative charge." Parisi, 400 F.3d at 585.
Robinson discussed both matters in his formal administrative complaint.*fn4 (Docket 34, Ex. 20 at 3.) With regard to Robinson's sexual harassment claim, the EEO letter outlining the administrative charge recognized that Robinson had "informed the senior OJT Assessor that [he] had been sexually harassed[.]" (Docket 21-2, Ex. 1 at 1.) As to Robinson's retaliation claim in relation to Kress's sexual harassment claim, the EEO letter implicitly recognized that he claimed to have been subjected to retaliation for partaking in more than one EEO activity, which would reasonably include Robinson's discussion with Kress about Kress's sexual harassment claim. (Docket 33-5, Ex. 18 at 1 (stating that Robinson's allegations were premised on "reprisal (for opposition to unlawful discriminatory policies and practices)" (emphasis added).) Finally, in his response to the questions posed by an EEO investigator, Robinson again discussed, in detail, his conversation with Kress about Kress's sexual harassment claim. (Docket 32-5, Ex. 4 at 2.) Therefore, Robinson's claims of sexual harassment and retaliation in relation to Kress's sexual harassment claim were both within the scope of the investigation that "reasonably could be expected" to ...