Brasch v. Peters (479 F. Supp. 2d 1045, 2007)

AMENDED MEMORANDUM AND ORDER

SHAW, District Judge.

This matter is before the Court on defendant’s motion to dismiss or in the alternative for summary judgment. Plaintiff opposes the motion. For the following reasons the Court will grant the alternative motion for summary judgment with respect to all claims.

Background

Plaintiff Stanley Brasch filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., against the United States Department of Transportation for employment discrimination based on religion (Judaism), national origin (Jewish), and retaliation. Brasch alleges twenty-nine separate acts of retaliation, disparate treatment, and discrimination which he claims have occurred and are ongoing in his employment with the Federal Aviation Administration (“FAA” or the “agency”). Plaintiffs primary claim concerns a fourteen-day suspension without pay which he received in 2002. Plaintiff asserts that he was denied due process in connection with the suspension, and that both the suspension and the denial of due process were acts of retaliation and discrimination. Defendant moves to dismiss, or in the alternative, for summary judgment, on the basis that plaintiff has failed to exhaust administrative remedies and has failed to set forth a prima facie case of discrimination or retaliation. Defendant also asserts that if the Court were to find that plaintiff established a prima facie case, plaintiff cannot show that defendant’s legitimate nondiscriminatory reasons for its actions are a pretext for illegal discrimination.

Legal Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) must be treated as a motion for summary judgment when matters outside the pleadings are presented and not excluded by the trial court. Hamm v. Rhone-Poulenc Rarer Pharm., Inc., 187 F.3d 941, 948 (8th Cir.1999), cert. denied, 528 U.S. 1117, 120 S.Ct. 937, 145 L.Ed.2d 815 (2000); Woods v. Dugan, 660 F.2d 379, 380 (8th Cir.1981) (per curiam). When matters outside the pleadings are presented on a motion to dismiss, as in this case, the Court may either treat the motion as one to dismiss and exclude the matters outside the pleadings, or treat the motion as one for summary judgment and provide the parties with notice and an opportunity to provide further materials. See Gibb v. Scott, 958 F.2d 814, 816 (8th Cir.1992). As defendant’s motion was alternatively captioned as a motion for summary judgment, plaintiff has had adequate notice and opportunity to provide further materials. See Gibb, 958 F.2d at 816. The Court notes that plaintiff submitted 193 exhibits of his own in opposition to the motion for summary judgment. The Court will therefore address defendant’s alternative motion for summary judgment.

The standards applicable to summary judgment motions are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the information before the court shows “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir.1988) (the moving party has the burden of clearly establishing the nonexistence of any genuine issue of fact that is material to a judgment in its favor). Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on a material factual issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Once the burden shifts, the non-moving party may not rest on the allegations in his pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir.2000); Allen v. Entergy Corp., 181 F.3d 902, 904 (8th Cir.), cert. denied, 528 U.S. 1063, 120 S.Ct. 618, 145 L.Ed.2d 512 (1999). The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute about a material fact is “genuine” only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Herring, 207 F.3d at 1029 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A party resisting summary judgment has the burden to designate the specific facts that create a triable question of fact. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir.2004). “Self-serving, conclusory statements without support are not sufficient to defeat summary judgment.” Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir.1993).

The Eighth Circuit has stated that summary judgment should seldom be used in cases alleging employment discrimination. Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 830 (8th Cir.2000). Summary judgment is appropriate, however, if the plaintiff has failed to present evidence sufficient to create a jury question as to an essential element of his claim. Whitley v. Peer Review Systems, Inc., 221 F.3d 1053, 1055 (8th Cir.2000) (citing Chock v. Northwest Airlines, Inc., 113 F.3d 861, 865 (8th Cir.1997)). “In an employment discrimination case, if evidence of the employer’s proffered reason for its action is undisputed, the movant is entitled to a grant of summary judgment.” Bassett v. City of Minneapolis, 211 F.3d 1097, 1107 (8th Cir.2000).

With these standards in mind, the Court finds the following facts as true for purposes of resolving this motion for summary judgment.

Factual and Procedural Background

Plaintiff Stanley Brasch has been employed by the FAA as a Grade Level FV~ 334-1 Computer Specialist since November 1997. Plaintiff filed an EEO complaint against the agency’s Kansas City Regional Office where he originally worked. Plaintiff states that the EEO complaint raised issues under the USERRA concerning his taking of military leave. PL’s Response at 4. Through a Settlement Agreement reached between plaintiff and the FAA to resolve the EEO complaint, plaintiff was reassigned from Kansas City to the St. Louis Gateway (T75) TRACON Service Support Center (“TRACON-75 SSC”) in Bridgeton, Missouri, beginning January 16, 2001. The Settlement Agreement states in part that the move to St. Louis “is for the benefit of the employee.” Defi’s Ex. B at 2, ¶ l.a. The Settlement Agreement also states that “no disciplinary actions will be taken related to Mr. Brasch’s employment while assigned to the Resource Management Branch on or before the date of this Settlement Agreement. This includes Mr. Brasch’s detail to the Operations Branch during this timeframe.” Id., ¶ l.c. The Settlement Agreement is dated December 21, 2000. The EEO complaint filed in Kansas City forms the basis for the issues challenged in this action as being retaliatory.

At the time plaintiff transferred to St. Louis, the TRACON-75 SSC was preparing for a move to a new building in St. Charles, Missouri. Plaintiff remained a FV-334-I Computer Specialist following the reassignment. The FV-E334-I Computer Specialist is classified as an administrative position. Plaintiff is the only FV-334-1 Computer Specialist assigned to the TRACON-75 SSC, and is supervised by Supervisor David Barr. All of the other employees supervised by Barr are FV-2101 Airway Transportation System Specialists (“2101 Specialists”), who work on National Air Space equipment at the facility. The 2101 Specialists are technical, rather than administrative, positions. Plaintiff is responsible for the maintenance of computer systems, work stations, file servers and other equipment that supports the National Air Space equipment maintained by the 2101 Specialists.

Plaintiff filed an EEO complaint on February 7, 2002, alleging retaliation and discrimination regarding the following issues: (I) plaintiff’s fourteen-day suspension from work without pay effective February 10, 2002; (2) denial of floating meal break times; (3) denial of “spot leave” in January 2001 and August 2001; (4) exclusion from division telephone conferences from January 2001 through April 2002; (5) denial of work schedule adjustment requests; (6) not reimbursed for compensatory travel time in June 2001; (7) not provided PBX Telephone Systems training; (8) not selected for temporary promotion to Manager, Program Support Unit; (9) management denied his request to serve as a Volunteer Ombudsman; (10) his supervisor Barr warned or advised other employees to be careful in dealing with plaintiff; (II) the agency dictated to plaintiff what route he should drive to work; (12) management located plaintiff in a computer equipment room that is harmful to his health and refused to provide him with other office space outside the computer room in an effort to force him to become sick and lose his job; (13) in June 2002, supervisor Jane Knoche accused plaintiff of damaging a government vehicle; (14) plaintiff did not receive a cash award and/or time off award for his work toward installation of the new TRACON-75 SSC building in St. Charles, Missouri although others did; (15) plaintiff did not receive a Superior Contribution Increase award for work performed during fiscal year 2002; (16) plaintiff did not receive a cash award and/or time off ward for his work on the Labor Distribution Reporting Program while other employees did; (17) the agency denied plaintiff the opportunity to serve as “Acting” TRACON-75 SSC Manager while other employees were granted this opportunity; (18) the agency disapproved plaintiffs request for compensatory time while he was traveling on official duty in July 2003, (19) plaintiff was not provided with safety shoes; (20) the agency removed plaintiffs duties of providing computer support to the FAA offices of St. Louis NAVCOM, St. Louis RADAR and the St. Louis Facility Manager; and (21) the agency failed to accommodate plaintiffs religion (Judaism) when he was required to stay late and work on the evening of April 16, 2003, when he had previously explained to his supervisor that the evening was a religious holiday.

A hearing was conducted before an Administrative Law Judge (“ALJ”) on plaintiffs EEO complaint on March 1 and 2, 2004. Five witnesses testified, including plaintiff, and numerous exhibits were received. By Findings of Fact and Conclusions of Law, the ALJ concluded that plaintiff had waived his right to challenge the agency’s dismissal of his claims for denial of spot leave in January and August 2001, and his non-selection for the temporary promotion to Manager, Program Support Unit. The ALJ noted that plaintiff withdrew two issues during the hearing, listed as number (6) above (claim regarding reimbursement of travel time in June 2001), and number (18) above (request for compensatory time while traveling on duty in July 2003). The ALJ discussed each of plaintiffs claims in detail, and concluded that all of the claims lacked merit and there was no evidence of retaliation or religious discrimination. On November 9, 2004, the agency entered its final decision implementing the ALJ’s decision. Plaintiff filed an appeal with the United States Equal Employment Opportunity Commission but the appeal was dismissed on February 17, 2005, because plaintiff had filed the instant action on February 3, 2005.

The Court now makes factual findings concerning each of plaintiffs claims.

1. Suspension.

Plaintiff was suspended from work for fourteen days without pay by letter dated January 30, 2002, based on misuse of his government position for personal gain, absence without leave on August 28, 2001, and unauthorized absence from work. Plaintiffs supervisor, David Barr, stated by affidavit that he had never suspended another employee, and had never had another employee engage in similar conduct. Barr Affidavit at 5-6.

The FAA received a complaint from Trans World Airlines (TWA) management in St. Louis about plaintiff using his position as an FAA employee to request and gain a meeting with TWA management officials on August 28, 2001 (the “TWA incident”). According to TWA’s complaint, plaintiff had contacted TWA during his working hours, identified himself as being with the FAA, and requested to speak with a manager. The complaint further alleged that when plaintiff arrived at the TWA offices he was displaying his FAA credentials. TWA policy required that at least two managers be present for any meeting with the FAA. At the meeting on August 28, 2001, three TWA managers met with plaintiff. Expecting the meeting to be about an official FAA matter, the three managers were surprised to learn that plaintiff called the meeting to discuss his claim for a tooth injury he allegedly sustained during a TWA flight in 1999 when he bit into food provided by TWA.

The FAA’s Civil Aviation Security Division, ACE-700, investigated the TWA complaint to determine if plaintiff had misused his position with the FAA and possibly abused rules concerning time and attendance by his actions on August 28, 2001. During the investigation, plaintiff admitted to FAA investigators that he had contacted TWA during his scheduled work shift, went to its offices during that time without seeking leave from his supervisor, and was displaying his FAA employee badge when he arrived at the TWA offices.

Plaintiff was given more than one opportunity prior to the actual suspension to “present his side of the story” concerning his contact with TWA on August 28, 2001. Plaintiff was interviewed by Special Agent Danny W. Simpson, the agent conducting the investigation, on October 4, 2001. Plaintiffs union representative was present during the interview. Simpson explained the purpose of the meeting prior to beginning the interview. Plaintiff was allowed to provide a written statement of his account of the event on October 9, 2001, and was given another opportunity to offer further comment on October 11, 2001.

Plaintiffs supervisors, David Barr and St. Louis Field Office Facility Manager Jane Knoche, conducted an investigatory interview (the “Weingarten interview”) of plaintiff on November 26, 2001 to raise some questions they had regarding the FAA’s Final Report of Investigation (“ROI”) into the TWA incident. Plaintiff had advance knowledge of the purpose of the Weingarten interview, had union representation at the interview, and was allowed to provide a written response to the proposed suspension. Plaintiff was presented with the proposed suspension by a letter dated December 13, 2001, at a meeting with his supervisors and a union representative. In addition, plaintiff had a second meeting with them on this issue on December 17, 2001. Plaintiff was ultimately suspended from work for fourteen days without pay by letter from Barr dated January 30, 2002.

2.“Floating ” Lunch Breaks.

Administrative employees, such as plaintiff, are not entitled to have floating lunch breaks, although technicians in the unit, the 2102 Specialists, are allowed floating lunch breaks. Barr testified that the technicians work ten-hour shifts, twenty-four hours a day, seven days a week, 365 days a year. The technicians have no official lunch break, are on-duty and paid during any lunch break they manage to take, and are not allowed to leave the facility. Additionally, these employees are not allowed to take their lunch at the end of their tour of duty and leave early. On the other hand, administrative employees such as plaintiff receive a one-half hour lunch break fixed between 11:00 a.m. and 1:00 p.m., and plaintiff knew this prior to his reassignment to the St. Louis facility. Plaintiff admitted that he was told these were the rules concerning his lunch period after he came to St. Louis, twice by Barr and once by Knoche. As a result, plaintiff knew that he did not have the right to take his lunch break at the end of the day, leave the agency’s facility early, or go to the TWA offices on August 28, 2001.

3. Work Schedules.

Barr also testified that it was the agency’s Regional policy that no administrative support personnel were allowed a work schedule of eight ten-hour work days per pay period. For this reason Barr denied plaintiffs request to work eight ten-hour days per pay period because plaintiff, a Computer Specialist, was classified as administrative support. Plaintiff was told that did have the option to work a 5/4/9 schedule, which involved working nine-hour days for five days in one week, and four days the following week, and then taking the second Friday of the two-week period off.

4. Religious Leave.

Plaintiff requested and was granted religious leave for April 17, 2003 to observe the Jewish Passover holiday. Plaintiff testified that on the afternoon of April 16, 2003, Barr told plaintiff he needed to stay to complete work that plaintiff was doing on a secretary’s computer. Barr testified that he asked plaintiff if he could stay to complete the installation of an e-mail program on a computer, but denied telling plaintiff that he had to stay until the work was finished. Barr also denied that plaintiff told him he had to get home to prepare for a religious holiday, and testified that had if he had known of the conflict, he would not have made the request. Barr testified that he had never denied any request for observance of a religious holiday. Plaintiff missed part of his family’s Passover religious observance because he worked until 6:55 p.m. on April 16, 2003, to finish the work.

5. Teleconferences.

Plaintiff testified that the agency had twice monthly meetings by teleconference, and that when he worked for the agency’s Kansas City Regional Office, he conducted these conferences. Plaintiff further testified that he did not participate in these conferences after transferring to St. Louis because Barr did not have him added to the list of participants as promised. Plaintiff stated that he did not call into the conferences on his own because he did not know exactly when they were to take place, and he did not feel comfortable participating in a meeting to which he was not formally invited. Plaintiff also testified that no one from the St. Louis facility, including Barr, was on the participant list. Barr testified that he had never had any discussions about plaintiff being excluded from these teleconferences, nor had plaintiff ever requested that Barr place him on the list of participants.

6. Telephone System Training.

Before he transferred to St. Louis, plaintiff was informed by Barr that he would be given training on the PBX Telephone System. Shortly after his arrival, however, Barr informed plaintiff that he would not be working on the system. Barr testified that his original intention was to have plaintiff trained on the PBX Telephone System so that he could maintain the new system when the unit changed locations in April 2002. Barr testified that he changed his mind when a 2101 Specialist union representative informed him that a grievance would be filed if he turned over the work to plaintiff, as the 2102 Specialists wished to retain control over the PBX Telephone System.

7. Volunteer Ombudsman Request.

Plaintiff made a request to Barr to serve as a volunteer ombudsman for the Department of Defense on November 9, 2001, and the request was denied. Plaintiff testified that although his request was denied, other employees were allowed to participate in another volunteer program called Youth Friends. After receiving plaintiffs request, Barr testified that he contacted the agency’s regional office because he was unfamiliar with the program. Barr stated that he denied the request because plaintiff already received 120 hours a year for military leave, and his request came at a busy time when the unit was moving to a new facility. Barr did not supervise any of the employees that plaintiff cited as participating in the Youth Friends Program. Barr did not have any other employees under his supervision who had ever requested official time to perform volunteer work.

8. Warnings about Plaintiff.

Plaintiff alleges that Barr warned plaintiffs co-workers to “watch out” for him because he was “legalistic.” Plaintiff testified that he had never heard management refer to him as legalistic, nor could he identify any co-worker that heard Barr make such statements. Barr testified that he never warned any of his employees about plaintiff. Barr also never overheard any employee referring to plaintiff in this manner.

9. Travel Route Issue.

Plaintiff was contacted by Denise Schae-fer, the Administrative Officer for the agency’s Gateway Systems Management Office, to discuss travel vouchers on March 27, 2002. St. Louis Field Office Facility Manager Jane Knoche requested that Schaefer provide local travel voucher training to plaintiff. Schaefer testified that she assumed she was directed to provide travel voucher training to plaintiff because he was new to the St. Louis facility. In preparation for the meeting, Schae-fer used the Map Quest Internet computer program to determine plaintiffs local route between home and work, which showed that plaintiff could claim ten miles for the trip rather than the nine miles plaintiff had claimed. Schaefer then used the result to show plaintiff how to complete the proper travel voucher form. Schaefer informed plaintiff that he should claim the actual mileage traveled when completing his voucher, regardless of what Map Quest showed. Schaefer did not know that plaintiff had been involved in any prior EEO activity when she conducted the training, and did not learn of plaintiffs prior EEO activity until approximately one month before the March 2004 EEOC hearing, when plaintiff informed her of it.

10. Work Location in Computer Room.

Plaintiff was assigned to work in the computer equipment room after his unit moved to its new location in St. Charles, and he complained about of a lack of heat, noise and a malfunctioning electromagnetic door lock. Although plaintiff claimed that the two other individuals he shared the room with had other spaces they could occupy, he also admitted he had never directly asked these employees if they actually had other space in which to work. Plaintiff asserts that there was other space in the new facility he could have used as a work space, including a storage room and Barr’s former office. Plaintiff made a request to move on May 16, 2002, but Barr denied the request on June 12, 2002.

Barr testified that when he made office assignments, he was not aware of any problems with the computer room, and he testified that the room was specifically designed for the computer equipment. Barr testified that plaintiff was assigned to this room because it was the “Local Area Network IRM” room where other Air Traffic employees who performed similar tasks as plaintiff were also assigned. The other employees assigned to the computer room did not have prior EEO activity.

Barr testified that he did not receive any direct complaints from plaintiff about the room’s temperature, but when he heard that plaintiff had made complaints, he had them investigated. Barr testified he went to the computer room and found that it maintains a constant 75-degree temperature. Barr agreed with plaintiff that the room does not contain heating coils, but testified that the room heated up from the computer equipment, and from the surrounding areas. After learning that plaintiff had concerns about the heat, Barr testified that he planned to augment the heat in the room with an auxiliary heater in cold weather. Barr testified that the other two employees who were permanently assigned to the same work space as plaintiff did not have other work space, and had not complained about the temperature of the room.

Barr testified that he had an Industrial Hygienist and Environmental Technician check the ventilation of the space, and it was found to be more than adequate. Barr also had the construction crew of the new building change the lock mechanism on the security door, although the replacement was delayed a month because parts had to be ordered. Barr testified he had a noise sampling taken throughout the entire facility, including plaintiffs work space, and this study concluded that the noise within plaintiffs work area was within the acceptable level prescribed by the Occupational Safety and Health Administration. Barr testified there were other work rooms in the new building where other employees were assigned to work which had more computer equipment than the room in which plaintiff worked.

Barr testified that the reason he did not move plaintiff to his former office was that Barr was told to make no further office changes, because a reorganization was pending and additional personnel would be reassigned to the facility. Barr further stated that the storage room plaintiff asked to move into was not designed to be an office, and although a duct ran to the room, there was no thermostat and therefore no way to regulate the flow of heat or air conditioning into the room.

11. Government Vehicle Damage.

Plaintiff reported some minor problems with a government vehicle to supervisor Jane Knoche in early June 2002. Plaintiff was given the assignment to take the van in for repairs but said that Knoche told him, “Don’t break the van again.” Hearing Transcript at 264. After returning to work from vacation Knoche needed to use the van for business, and discovered that several features were broken. Knoche’s secretary, Candy Hoffmann, told her that plaintiff had been the last person to use the van, and she questioned him about the problems, expressing her frustration that no steps had been taken to repair it. Knoche had Hoffman and plaintiff take the van in for repairs. Knoche had no recollection of telling plaintiff, “Don’t break the van again,” but testified that, if she did make the statement, it was done in a joking manner.

12. Denial of Cash Award/Time Off Award.

Plaintiff testified that he was denied a cash award and/or a time off award for work performed during 2001 and 2002 at the new facility in St. Charles. Plaintiff stated that he was either the only individual or one of very few who did not receive some type of award. Barr testified that he recommended cash awards for Systems Specialist William Eichelberger and Communications Specialist Steven Nichols based on their specialized areas of work at the new facility for more than one year prior to the actual move. Barr also recommended a number of employees for time off awards to recognize their efforts in transitioning to the new facility. Barr stated that he did not recommend plaintiff for any award because his contributions did not warrant such a recommendation.

13.Denial of Superior Contribution Increases Award.

According to Barr, employee applications for Superior Contribution Increase Awards were due on October 1, 2002, and he did not receive an application from plaintiff until October 29, 2002. Barr explained that these applications could include not only self-assessments, but also input from peers and customers; these applications formed the basis for the supervisor to determine if the employee was qualified for an award. Barr announced at the August 2002 staff meeting that all applications were due by October 1, 2002, as he was required to send a list of selec-tees to the Gateway Systems Management Office to be forwarded to the Regional Office in Kansas City. The employees whose names Barr submitted were selected on October 18, 2002, eleven days before plaintiff provided Barr with his application. Barr accepted plaintiffs application on October 29, 2002, but told him the application was untimely and that the selections had already been made. Barr testified that plaintiff was the only employee who submitted an untimely application.

14. Denial of Labor Distribution Reporting Award.

Barr did not nominate any of his employees for either a cash award or time off award for any work performed with the Labor Distribution Reporting program (“LDR”). Barr stated that the two employees that plaintiff named as receiving an LDR award, Pam Neitzert and Ken Eaker, were not under his supervision, and that Barr’s unit had minimal involvement in this program. Barr did not know that awards were being given out for the LDR program, nor was he asked to nominate anyone for them.

15. Non-Selection for Temporary TRACON-75 SSC Manager Position.

Barr testified that the requirements to serve temporarily in Barr’s his position as TRACON-75 SSC Manager, were provided in each vacancy announcement regarding the position, and plaintiff did not meet these requirements. Barr explained that the basic qualifications for his position required that the employee be a FV-2101 Airway Transportation System Specialist with 52 weeks at the I-Band pay level. Only four 2101 Specialists met the basic requirements to serve in Barr’s position: David Dixon, James Turner, William Ei-chelberger and Charles Breece. The rationale behind the requirement that applicants be a FV-2101 Airway Transportation System Specialist with 52 weeks at the I-Band pay level was that the Acting Manager had to understand all of the operational procedures to work with the Air Traffic personnel, including handling radar or other equipment outages.

16. Safety Shoes.

Barr offered safety shoes to plaintiff in 2002 although Computer Specialists do not usually have a need for this type of shoe. Barr did so because he thought he would have plenty of funds in the budget for the purchase. However, Barr learned after he made the offer to plaintiff that he did not have money in the budget to make the purchase. Safety shoes are generally worn by technicians in the Airway Facilities workforce. The safety shoes generally have steel toes to protect the technicians’ feet when they climb radar towers, work on equipment out in the field and inside buildings, crawl and climb in any number of apparatus while working on equipment, and take equipment weighing thousand of pounds off of fork lifts. Barr testified that plaintiff never asked for safety shoes, but he stated at the EEO hearing that if plaintiff wanted a pair, the shoes could be purchased out of the 2004 operational budget.

17.Cessation of Work at Other Units.

After transferring to St. Louis, in addition to his assigned duties of providing computer support services at TRACON-75 SSC, plaintiff provided computer support services at three other sites, the FAA offices of St. Louis NAVCOM, St. Louis RADAR and the St. Louis Facility Manager. In June 2003, these locations began to use two other computer specialists instead of plaintiff. After her return to St. Louis in July 2003 and based on a strong recommendation from a managerial colleague, Knoche recommended to the employees in her office that they no longer seek computer help from plaintiff. Knoche made this decision because there were computer specialists located only seven miles from these three sites, whereas TRACON-75 SSC, where plaintiff worked, was twenty-five miles away.

Discussion

In the absence of direct proof of discrimination, a Title VII plaintiff can prove his case under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, a plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. To establish a prima facie case of retaliation under Title VII, plaintiff must show that (1) he engaged in a protected activity; (2) a reasonable employee would have found the challenged retaliatory action materially adverse; and (3) a causal connection exists between the protected activity and the materially adverse action. Higgins v. Gonzales, 481 F.3d 578, 590 (8th Cir.2007) (citing Burlington Northern & Santa Fe Ry. Co. v. White, - U.S. -, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006)).

A disparate treatment case based on religion requires a plaintiff to show that he was treated less favorably than others because of his religious beliefs. Mann v. Frank, 7 F.3d 1365, 1370 (8th Cir.1993) (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). In a disparate treatment case, the plaintiff must prove that he is a member of a protected class and must compare his treatment to that of a similarly situated member of a non-protected class. Id. (citing Hervey v. City of Little Rock, 787 F.2d 1223, 1231 (8th Cir.1986)). The elements of a prima facie case of disparate treatment because of religion are: (1) the plaintiff was a member of a protected class because of the plaintiffs religious affiliation or beliefs; (2) the employee informed the employer of his religious beliefs; (3) the plaintiff was qualified for the position; (4) despite the plaintiffs qualifications, the plaintiff was fired or suffered an adverse employment action; and (5) similarly situated employees outside of the plaintiffs protected class were treated differently or there is other evidence giving rise to an inference of discrimination. Vetter v. Farmland Indus., Inc., 884 F.Supp. 1287, 1302 (N.D.Iowa 1995).

To show that he suffered an adverse employment action, plaintiff must establish a tangible change in duties or working conditions that constitutes a material employment disadvantage. See Cossette v. Minnesota Power & Light, 188 F.3d 964, 972 (8th Cir.1999). Mere inconvenience without any decrease in title, salary, or benefits is insufficient to show an adverse employment action. Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994).

At the second step of the McDonnell Douglas analysis, after the plaintiff has established a prima facie case, the defendant must offer evidence of a reason other than illegal discrimination for its action. The employer’s burden at step two of the analysis is one of production, not proof. Krenik v. County of Le Sueur, 47 F.3d 953, 958 (8th Cir.1995); see Britton v. City of Poplar Bluff, Mo., 244 F.3d 994 (8th Cir.2001) (city’s articulation of legitimate, non-discriminatory basis for terminating plaintiffs employment, its belief that she was responsible for the theft of electricity at her home, was adequate to meet its burden, despite plaintiffs challenge to the allegation).

When the prima facie case has been successfully rebutted, the presumption of discrimination disappears. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1334 (8th Cir.1996) (age discrimination case). The burden then shifts back to the plaintiff to present evidence sufficient to support two findings. First, the plaintiff must present evidence which creates a fact issue as to whether the employer’s proffered reasons are mere pretext for illegal discrimination. Second, he must present evidence which creates a reasonable inference that the adverse employment decision was an act of intentional discrimination. Rothmeier, 85 F.3d at 1336-37; see Carter v. St. Louis University, 167 F.3d 398, 401 (8th Cir.1999).

1. Exhaustion of Administrative Remedies.

Defendant first argues that the Court lacks subject matter jurisdiction over items 6, 11, 12, 14, and 27 of plaintiffs complaint because plaintiff failed to exhaust his administrative remedies as to these claims. Defendant asserts that 29 C.F.R. § 1614.105(a)(1) requires a federal employee to consult with an Equal Employment Opportunity (EEO) counselor within forty-five days of either the alleged act of discrimination or the effective date of a personnel action. Defendant alleges that plaintiff did not contact an EEO counselor within forty-five days of the following alleged acts: Item 6 (denial of spot leave); and Item 12 (delay of five months in reimbursing plaintiff for travel voucher, Reimbursement for the first week of October 2001). Defendant alleges that plaintiff did not contact an EEO counselor regarding these allegations until December 13, 2001, well past the forty-five day deadline. Defendant states that plaintiff never contacted an EEO counselor regarding Item 14 (Non-Selection for Temporary Position). Finally, defendant states that plaintiff did not exhaust his administrative remedies as to items 11 and 27 because he withdrew these allegations during his EEOC hearing. Plaintiff does not address defendant’s exhaustion arguments in his response memorandum.

As a federal employee, plaintiff is subject to the federal employment provisions of Title VII, which contemplate that each federal agency will establish procedures for the processing of discrimination complaints. See 42 U.S.C. § 2000e-16(b). EEOC regulations require that employees of federal agencies who believe they have been discriminated against must consult an EEO counselor prior to filing a complaint in order to try to informally resolve the matter. See 29 C.F.R. § 1614.105(a). Such employees must initiate contact with a counselor within forty-five days of the matter alleged to be discriminatory, or in the case of a personnel action, within forty-five days of the effective date of the action. See 29 C.F.R. § 1614.105(a)(1). Contrary to defendant’s assertion, however, this administrative prerequisite to a court action is not jurisdictional, and instead is interpreted as a statute of limitations. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Briley v. Carlin, 172 F.3d 567, 570 (8th Cir.1999). Accordingly, these claims are not subject to dismissal for lack of subject matter jurisdiction. See also Banks v. National Personnel Records Center, 2006 WL 1663491, *3 n. 3 (E.D.Mo. June 15, 2006) (noting that the government incorrectly asserted a lack of subject matter jurisdiction over the complaint because the plaintiff failed to exhaust administrative remedies).

The Court finds that plaintiff did not comply with EEOC regulations and timely exhaust all administrative remedies as to complaint item 6 (denial of spot leave), complaint item 12 (local travel reimbursement), and complaint item 14 (non-selection for temporary position of Manager, Program Support Unit). Because plaintiff did not comply with 29 C.F.R. § 1614.105(a) and contact an EEO counsel- or within forty-five days of the occurrences, these claims must be dismissed for failure to exhaust administrative remedies. Complaint Items 11 (denial of compensation for work travel in June 2001) and 27 (denial for compensation for work travel in July 2003) must be dismissed in accordance with 29 C.F.R. § 1614.107(a)(2) because plaintiff elected to withdraw these issues from consideration at the EEOC hearing held on March 1 and 2, 2004.

2. Fourteen-Day Suspension in February 2002.

In complaint Item 1 plaintiff alleges that when he was suspended from work by the FAA by letter dated January 30, 2002, he was denied due process of law because the FAA’s Report of Investigation file, which he requested, was not provided to him until after the suspension occurred. Plaintiff alleges that this withholding of information was based on retaliation and discrimination. Plaintiff alleges that defendant did not “provide the plaintiff the ability to defend himself.” Complaint at 5, ¶ 8.a. Plaintiff alleges that this constitutes a denial of due process and was retaliation and discrimination. In complaint Items 2 through 5, plaintiff alleges that the suspension itself was unfounded and based on inaccurate information, was based on retaliation and discrimination, and created a hostile work environment. Plaintiff also alleges in complaint item 16 that management conducted an unfair investigation against him in compiling the Report of Investigation.

a. Retaliation.

Defendant argues that plaintiff cannot establish a prima facie case of retaliation based on his fourteen-day suspension. Although defendant acknowledges that plaintiff participated in protected activities and was subject to an adverse employment action, it argues that plaintiff cannot establish a causal link between the two. Defendant contends that plaintiff was suspended not as a result of retahation, but because he violated FAA policies when he used his position within the agency to gain access to TWA officials to discuss non-FAA personal business during work hours.

In response, plaintiff does not deny that he used his FAA credentials to gain access to TWA managers for his own personal business. Instead, plaintiff offers two main arguments. First, plaintiff argues that the agency improperly used information from his employment with the agency in Kansas City as set forth in the Settlement Agreement as the basis for the fourteen-day suspension. Plaintiff argues that in using this information, defendant breached the Settlement Agreement reached in Kansas City in 2000. Plaintiff argues that issues concerning the breach of the settlement agreement should be determined by the trier of fact.

Second, plaintiff focuses on the agency’s determination that he was absent without leave from his position when he went to the TWA offices on August 28, 2001. Plaintiff argues that he was actually on his lunch break, as he was free to take lunch at any time during the day when he was able. Plaintiff complains that the agency told him that his lunch had to be taken between 11:00 a.m. and 1:00 p.m. only after the TWA incident, and argues that he was the only employee in his section with a set meal break, as all of the other employees had “floating” meal breaks. Plaintiff contends that until December 13, 2001, management gave him the discretion to use floating meal breaks. To support this contention, plaintiff lists several dates where he worked through normal lunch times and took a later meal break. Plaintiff argues that although he regularly took floating meal breaks, the suspension letter dated December 13, 2001 stated that plaintiff he had been absent without leave and had taken unauthorized leave from the work site during duty hours. Plaintiff argues that the agency’s action of changing his meal breaks without notice and then charging him with being absent without leave is evidence of retaliation. In essence, plaintiff attempts to show that he received disparate treatment than other employees concerning his meal breaks, and as a result an issue of fact exists concerning whether the suspension was an act of retaliation.

Defendant replies that plaintiff has failed to exhaust his administrative remedies with respect to any claim concerning breach of the Settlement Agreement, because he has not complied with (1) 29 C.F.R. § 1614.105(a)(1), which requires that a person seeking redress under Title VII for discrimination by a federal agency bring his or her complaint to the attention of an EEO counselor within forty-five days of the alleged discriminatory action, and (2) 29 C.F.R. § 1614.504, which mandates that if a complainant believes an agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the EEO Director in writing within thirty days of the date the complainant knew or should have known of the alleged noncompliance. Defendant further argues that plaintiff received the suspension for his behavior in meeting with TWA managers on August 28, 2001, and the Settlement Agreement only applied to plaintiffs actions on and before December 21, 2000, and was not intended to constrain the agency from its ability to discipline plaintiff in the future if he violated rules and regulations.

With respect to the issue of a floating lunch break, defendant cites Supervisor Barr’s EEOC hearing testimony that on two occasions after plaintiff began working in St. Louis, he was informed he had to take his lunch between 11:00 a.ra. and 1:00 p.m., and could not leave thirty minutes early at the end of the work day for his lunch break. Defendant also states that plaintiff has conceded that he had been informed by both of his supervisors, Jane Knoche and David Barr, regarding the time for his lunch breaks. Defendant states that this was a regional policy for all administrative staff, so plaintiff was not being treated differently than any other administrative employee. Barr testified that the policy was different with respect to the 2101 Specialists, who have no set lunch breaks and take floating lunch breaks when they can, because they must be available at all times to respond to issues concerning the National Air Space equipment for which they are responsible.

As a threshold matter, plaintiff cannot assert an alleged breach of the Settlement Agreement as a defense to the summary judgment motion. If plaintiff believed that any breach of the Settlement Agreement occurred, he was required to notify the Director of Civil Rights in writing within thirty calendar days of the alleged violation and request specific implementation of its terms, pursuant to 29 C.F.R. Part 1614, Section 504. The alleged violation occurred, at the latest, when the fourteen-day suspension became effective in February 2002. It is uncontro-verted that plaintiff did not notify the Director of Civil Rights of any claimed breach. Further, defendant is correct that the Settlement Agreement only refers to conduct which occurred on and prior to the date of its execution, and cannot protect plaintiff from discipline arising out of his subsequent actions. Plaintiffs attempt to raise a potential breach of the Settlement Agreement as an issue of fact precluding summary judgment in this action fails, and the Court will not discuss it further.

It is undisputed in this case that plaintiff engaged in statutorily protected activity by participating in previous EEO activities, and that he suffered an adverse employment action when he was suspended. The third element of the case, a causal connection between the two, is in dispute. In retaliation case, a causal connection is a showing that the employer’s “retaliatory motive played a part in the adverse employment action.” Kipp v. Missouri Highway & Tmnsp. Comm’n, 280 F.3d 893, 897 (8th Cir.2002). Evidence that gives rise to an inference of retaliatory motive on the part of the employer is sufficient to establish a causal connection. Id. Moreover, “evidence that gives rise to an inference of such a motive is not only sufficient to establish a causal link but is also necessary.” Id.

In this case, plaintiff offers no direct evidence of a causal connection. Plaintiff argues that all of defendant’s disciplinary actions against him arising from the TWA incident are based on retaliation, but the argument is not supported by evidence as opposed to mere conjecture. With respect to temporal proximity, the eight-month gap between the protected activity and the discipline in this case is too great to establish a prima facie case of a causal relationship. “The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima face case uniformly hold that the temporal proximity must be very close.” Clark County Sch. Dist. v. Breeden, 582 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam) (internal quotation marks and cited case omitted). The Eighth Circuit has generally refused to find evidence of causation where the adverse employment action follows the protected activity by six months or more. See, e.g., Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 685 (8th Cir.2001) (seven-month time lapse between protected activity and the alleged retaliatory act, without more, was “too long for the incidents to be temporally — and therefore causally-related”); Feltmann v. Sieben, 108 F.3d 970, 977 (8th Cir.1997) (plaintiff fired six months after the protected activity; without more, temporal proximity was insufficient to show causal link), cert. denied, 523 U.S. 1041, 118 S.Ct. 1341, 140 L.Ed.2d 501 (1998). The Court also notes that plaintiffs prior EEO activity took place in a different FAA regional office with different supervisory personnel, which lessens any inference of retaliation. There is also no evidence of prior discipline of plaintiff in the St. Louis office before the suspension occurred. Cf. Bassett v. City of Minneapolis, 211 F.3d 1097, 1104 n. 12 (8th Cir.2000) (a causal connection existed sufficient to create an inference of retaliation where, in addition to a two-month temporal proximity, a pattern of increasing levels of discipline existed).

The Court concludes that plaintiff has failed to establish a prima facie case of retaliation discrimination because he cannot establish that a causal connection exists between his prior protected activity and the fourteen-day suspension. Plaintiff articulates only the existence of his prior EEO complaint to establish the causal connection, and this is insufficient.

Moreover, even if the Court were to assume that plaintiff had established a prima facie case, the defendant has successfully rebutted it with its nondiscriminatory reason for the suspension, plaintiffs use of his FAA credentials to gain a meeting with TWA managers on personal business, in violation of FAA policy. Plaintiff has not offered any evidence tending to show that defendant’s articulated nondiscriminatory reason is a mere pretext for illegal discrimination, and has not presented evidence which creates a reasonable inference that the adverse employment decision was an act of intentional discrimination. See Rothmeier, 85 F.3d at 1336-37. It is clear to the Court that plaintiff was suspended as a result of his own misconduct. Defendant is therefore entitled to summary judgment on plaintiffs retaliation claim based on the fourteen-day suspension.

b. Religious Discrimination.

Plaintiff also alleges that the fourteen-day suspension was imposed as a result of discrimination against him because of his Jewish religion. The elements of a prima facie case of disparate treatment because of religion are: (1) the plaintiff was a member of a protected class because of the plaintiffs religious affiliation or beliefs; (2) the employee informed the employer of his religious beliefs; (3) the plaintiff was qualified for the position; (4) despite the plaintiffs qualifications, the plaintiff was fired or suffered an adverse employment action; and (5) similarly situated employees outside of the plaintiffs protected class were treated differently or there is other evidence giving rise to an inference of discrimination. Vetter v. Farmland Indus., Inc., 884 F.Supp. 1287, 1302 (N.D.Iowa 1995).

Defendant argues that plaintiff cannot establish a prima facie case of discrimination. Although defendant concedes that plaintiff is a member of a protected religious class and that the fourteen-day suspension was an adverse personnel action, defendant denies that there is any evidence similarly-situated employees outside plaintiffs protected class who were treated more favorably under similar circumstances, as required by Lynn v. Deaconess Medical Center, 160 F.3d 484, 487 (8th Cir.1998).

There is no dispute as to the first four elements of the prima facie case. Under the fifth element, plaintiff bears the burden to proffer “specific, tangible evidence” that employees who were “similarly situated in all respects” to him received different treatment from management. Rose-Maston v. NME Hosp., Inc., 133 F.3d 1104, 1109 n. 4 (8th Cir.1998) (first quote); Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.) (second quote), cert. denied, 540 U.S. 955, 124 S.Ct. 405, 157 L.Ed.2d 291 (2003). The Court finds that plaintiff has not met his burden to establish the fifth element of the prima facie case. Although plaintiff presents evidence that he was the only employee in his section who had a set meal break while the other employees had floating meal breaks, it is undisputed that the other employees were 2101 Specialists, classified as technicians, who did not have an official meal break (i.e., they had a “floating” meal break) because of the demanding nature of their jobs. It is undisputed that plaintiff was a Computer Specialist with different job duties than the 2101 Specialists, was classified as an administrative employee, and that administrative employees were required to take their meal breaks between 11:00 a.m. and 1:00 p.m. Plaintiff is therefore not similarly situated to the other employees. In addition, plaintiff admitted he was told at least twice since he came to the St. Louis office that he did not have a floating meal break and must take his meal break between 11:00 a.m. and 1:00 p.m. The facts asserted by plaintiff concerning the issue of meal breaks therefore does not raise an issue of fact as to different treatment based on religion.

Plaintiff presents no other evidence that any similarly-situated non-Jewish employee received different treatment from management. Plaintiffs supervisor David Barr avers that he has never had another employee engage in similar conduct for which plaintiff was suspended, and has never suspended another employee.

Even if the Court were to assume that plaintiff had established a prima facie case, an assumption that is not warranted, defendant has successfully rebutted it with its nondiscriminatory reason for the suspension — plaintiffs use of his FAA credentials to gain a meeting with TWA managers on personal business, in violation of FAA policy. Plaintiff has not presented any evidence that TWA’s reason for imposing the suspension was a pretext for illegal discrimination, or which creates an inference that religious discrimination was the real reason for the suspension. Again, defendant’s own misconduct was the direct cause of his suspension. Defendant’s motion for summary judgment should therefore be granted on this aspect of plaintiffs case.

c. Hostile Work Environment.

Plaintiff also alleges that the suspension itself was unfounded and based on inaccurate information, and created a hostile work environment. With respect to the allegation that the suspension was unfounded, “[f]ederal courts do not sit as a super-personnel department that reexamines an entity’s business decisions.... Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior.” Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 973 (8th Cir.1994) (quoted case omitted). It is not material whether the FAA’s findings were correct concerning plaintiffs suspension, because there is no evidence the reasons given for suspending plaintiff were a disguise for an illegal discriminatory motive. See id. at 972. The Court finds there is no genuine issue of fact concerning whether the FAA honestly believed plaintiff improperly used his FAA credentials to obtain a meeting with TWA management, was absent without leave, and had an unauthorized absence from his worksite during duty hours. See, e.g., Scroggins v. University of Minn., 221 F.3d 1042, 1045 (8th Cir.2000) (explaining that relevant inquiry is whether employer believed employee was guilty of conduct justifying discharge); Euerle-Wehle v. United Parcel Service, Inc., 181 F.3d 898 (8th Cir.1999) (same).

With respect to the issue of a hostile work environment, “A hostile environment exists when ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Palesch v. Missouri Comm’n on Human Rights, 233 F.3d 560, 566 (8th Cir.2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotations and further citation omitted)). Hostile work environments created by supervisors or coworkers have the following elements in common: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subject to unwelcome harassment; (3) a causal nexus exists between the harassment and the plaintiffs protected group status; and (4) the harassment affected a term, condition, or privilege of employment. Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1038 (8th Cir.2005).

To constitute a hostile work environment, the harassment must be “ ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Harris, 510 U.S. at 21, 114 S.Ct. 367 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). “To be actionable, harassment must be both objectively and subjectively offensive, such that a reasonable person would consider it to be hostile or abusive, and courts make this determination ‘by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1158 (8th Cir.1999) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); see Stuart v. General Motors Corp., 217 F.3d 621, 630 (8th Cir.2000).

The Court finds that plaintiff has not alleged any facts which would be sufficient to raise a genuine issue as to whether he was subjected to a hostile work environment by virtue of the fourteen-day suspension. Defendant is therefore entitled to summary judgment on this claim.

d. Due Process.

Plaintiff also alleges that his suspension occurred in violation of his due process rights, because he requested the FAA’s Report of Investigation (“ROI”) file into the TWA incident, but it was not provided to him until after the suspension occurred. Plaintiff alleges that the withholding of information constituted retaliation and discrimination. Plaintiff alleges that defendant did not “provide the plaintiff the ability defend himself,” presumably by not providing the ROI. Complaint at 5, ¶ 8.a. Plaintiff also alleges that defendant retaliated against him by forcing him into a Weingarten meeting “unprepared without any notice.” Complaint at 6.

In the public employment context, “due process” requires that the government employer provide: 1) oral or written notice of the charges against the employee, 2) an explanation of the employer’s evidence, and 3) an opportunity for the employee to present his or her side of the story before his or her job is terminated. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citation omitted).

In this case, plaintiff appears to challenge either the first or second element, as he contends that he should have been provided with the FAA Security Division’s ROI before the discipline was imposed. Plaintiff fails to allege a due process violation. The ROI, Gov’t Ex. H, was the internal investigation of the TWA incident. The ROI was dated October 25, 2001, several months before plaintiffs suspension was ever proposed. Plaintiff had not yet been charged with any misconduct, so he was not yet a party to any suspension action. Therefore, no due process right attached to plaintiff at that time and there can be no ex parte violation. Cf. Harold v. Barnhart, 450 F.Supp.2d 544, 559 (E.D.Pa.2006).

With respect to plaintiffs notice of the charges against him and ability to prepare a response, plaintiff was notified of the charges against him, was interviewed by the agent conducting the investigation on October 4, 2001, and had his union representative present with him at the interview. The Special Agent explained the purpose of the meeting prior to beginning the interview. Subsequently, plaintiff was allow