The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending is Defendant Baptist Health's ("Baptist") Motion for Partial Summary Judgment.*fn1 Plaintiff Edward Luster ("Luster") filed a Response,*fn2 and Baptist filed a Reply.*fn3 This is a race, national origin, sex, and retaliation case brought under 42 U.S.C. § 2000 et seq. ("Title VII"), and an age discrimination case brought under the Age Discrimination in Employment Act*fn4 ("ADEA"). The parties presented oral arguments on December 18, 2006.
Luster began working for Baptist in 1991 as a Customer Service Leader ("CSL"). Luster's job entails supervising kitchen employees during the evening shift. In 2003, Luster was disciplined twice -- once in February when his supervisors issued him a written counseling for failure to alert the morning shift that an employee would be absent, and again in June, when he was issued a written warning for failure to adequately discipline two kitchen employees. Plaintiff alleges that white workers, who had made similar mistakes, were not disciplined. After the first disciplinary action, Luster complained of discriminatory treatment to co-workers and supervisors. According to Luster, the second disciplinary action was taken in retaliation for his complaints about the first one. Luster alleges that he was told that he would be terminated; however, he was not terminated, he was not demoted, and his wages, work hours, and benefits remained the same.
Luster filed an EEOC charge in July 2003, alleging that he was discriminated against because of his race, sex, and age. He did not check "national origin" on the charge.*fn5 The EEOC charge states:
On February 11, 2003, I was given a written counseling by the Production Manager (white male). I complained to various management officials and staff personnel regarding the difference in treatment. Since February 11, 2003 and continuing, I have been subjected to different terms and conditions of employment, including being threatened with termination. On June 27, 2003 I was given a written warning by the Department Director of Nutrition and Food Services (white female). . . . I believe that I have been discriminated against because of my race (black), sex (male), age (50), and in retaliation for opposing unlawful employment practices . . . .*fn6 The EEOC investigated the charges and issued a right to sue letter in April 2004.*fn7
Luster filed his Complaint pro se in May 2004. In the Complaint, Luster alleged, for the first time, discrimination based on national origin, and that Baptist failed to promote him. He asked that Baptist be directed to promote him and to treat him equally.*fn8
A. Adverse Employment Action
Plaintiff in this case alleges race, gender, and age discrimination, and retaliation for engaging in protected conduct. In discrimination and retaliation claims, "adverse employment action" is a critical element. For instance, the elements of a retaliation claim are: (1) protected activity; (2) subsequent adverse employment action; and (3) a causal relationship between the two.*fn9 To establish a prima facie case of retaliation, a plaintiff must show that he was subjected to an adverse employment action that was causally related to his protected activity.*fn10 The critical element to a retaliation claim is adverse employment action.*fn11
To present a prima facie case of gender or race discrimination, Luster must present evidence that: (1) he was a member of a protected class; (2) he was qualified for his job; (3) he suffered an adverse employment action; and, (4) there are facts that give rise to an inference of unlawful gender or race discrimination.*fn12 The elements of a prima facie case for age discrimination differ from the elements necessary to establish race and gender discrimination -- nevertheless, an age discrimination plaintiff must also show that he suffered an "adverse employment action."*fn13
"Not every setback amounts to an adverse employment action."*fn14 An adverse employment action is a "tangible change in duties or working conditions that constitute a material employment disadvantage."*fn15 A disciplinary warning is not an adverse employment action.*fn16 A poor performance rating is not an adverse action, unless Luster shows a clear link to a detrimental result.*fn17 "An unfavorable evaluation is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient's employment."*fn18
Plaintiff's retaliation claim involves several alleged adverse actions: (1) receipt of a second disciplinary warning; (2) threats of ...