DURANT v. DISTRICT OF COLUMBIA Civil Action No. 10-0025 (ABJ).
EARNEST DURANT, Jr., Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
United States District Court, District of Columbia.
March 25, 2013.
AMY BERMAN JACKSON, District Judge.
In this action, plaintiff, Earnest Durant, Jr., alleges that his former employer, the District of Columbia Government Department of Corrections ("DOC;" "department"), retaliated against him for prior protected activities and subjected him to a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq.
The following facts are undisputed, except where noted.
On June 14, 2007, plaintiff was placed on administrative leave based on allegations that he had permitted an unauthorized person to enter the DOC office to make photocopies of union documents the day before. Notice of Administrative Leave, Ex. B to Pl.'s Opp. [Dkt. # 69-8]; Memorandum from Wanda Patten to Devon Brown Regarding Unauthorized Use of Office Xerox Machine, Unauthorized Admittance of Personnel to the OIA, Ex. C to Pl.'s Opp. [Dkt. # 69-9]; Am. Compl. ¶¶ 16-18. In the wake of that employment action, plaintiff began filing unfair labor complaints with the Public Employee Relations Board ("PERB") and later, discrimination complaints with the D.C. Human Rights Commission ("DCHRA") and the United States Equal Employment Opportunity Commission ("EEOC"). Those complaints and the allegations therein are summarized below. Also summarized are the remaining adverse actions that plaintiff claims to have suffered
The litigation in this Court has a tortured history. Plaintiff filed his original complaint on January 6, 2010, against the District of Columbia, several District of Columbia officials, the United States Department of Justice, the United States Marshal Service, and the National Capital Regional Joint Fugitive Task Force. [Dkt. # 1]. On March 31, 2011, after plaintiff failed to respond to the federal defendants' motion to dismiss, the court granted the motion as conceded and dismissed the federal defendants.
On October 5, 2011, plaintiff filed a motion for leave to file an amended complaint, [Dkt. # 40].
Plaintiff did not file the revised amended complaint within the time permitted by the Court; rather, on May 10, 2012, he filed a motion for leave to file the amended complaint three days out of time. [Dkt. # 60]. The Court granted the motion, [Dkt. # 62], and plaintiff filed the revised amended complaint on May 11, 2012. [Dkt. # 63]. Count I, which has since been voluntarily dismissed by plaintiff, alleged discrimination and hostile work environment on the basis of age and race in violation of Title VII. Count II alleged that defendant retaliated against plaintiff for filing his complaints in violation of Title VII and that it subjected him to a hostile work environment in retaliation for protected activities, also in violation of Title VII.
Discovery closed on May 11, 2012, after four extensions to the original deadline. Defendant filed its motion for summary judgment on July 13, 2012. [Dkt. # 67]. The motion has been fully briefed and is now before the Court.
One of the issues raised in the motion for summary judgment was the sufficiency of the evidence showing any monetary loss. Mem. of Points and Authorities in Support of Def. District of Columbia's Mot. for Summ. J. [Dkt. # 67-3] ("Def.'s Mem.") at 19-22. On October 3, 2012, plaintiff filed a supplemental Rule 26(a)(2)(B) expert report by Eric M. Sherman addressing plaintiff's monetary loss. [Dkt. # 73]. The report was filed nearly five months after the close of discovery and over a year after the deadline for plaintiff to file expert reports.
STANDARD OF REVIEW
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is only "material" if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, "[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party." N.S. ex rel. Stein v. District of Columbia, 709 F.Supp.2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.
I. Plaintiff has identified a proper defendant.
Defendant first argues that plaintiff has failed to designate a proper defendant in this action. Although the Court agrees that plaintiff's amended complaint is not the model of clarity, it finds that plaintiff has properly identified the District of Columbia as the defendant. "It is beyond peradventure that a `noncorporate department or other body within a municipal corporation is not sui juris.'" Hinton v. Metro. Police Dep't, Fifth Dist., 726 F.Supp. 875, 875 (D.D.C. 1989), quoting Braxton v. Nat'l Capital Hous. Auth., 396 A.2d 215, 216-17 (D.C. 1978). Moreover, plaintiff does not assert that any provision of the D.C. Code provides for the Department of Corrections to be sued. Accordingly, the proper party to this action is the District of Columbia.
Although plaintiff refers to the DOC as "defendant" throughout the amended complaint, the caption of the amended complaint lists "District of Columbia, et al." as defendants. The Court therefore finds that the District of Columbia has been properly named as a defendant in this action. Moreover, since plaintiff concedes in his opposition to the motion for summary judgment that the District of Columbia is the proper defendant in this action and that the Department of Corrections is not an appropriate defendant, Pl.'s Opp. at 15, the Court will construe the amended complaint as asserting claims against only the District of Columbia.
II. The Court will dismiss any part of the retaliation claim that is based on adverse actions taken against plaintiff prior to 2007.
Defendant also argues that to the extent Count II of the amended complaint claims that actions taken against plaintiff by DOC prior to October 2007 violated Title VII, those claims should be dismissed as time-barred. Defendant points to a provision of Title VII that provides that an aggrieved employee must submit a charge of discrimination to the EEOC within 180 days of the allegedly unlawful incident, or within 300 days of the incident if the employee first presented the charge to a state or local equal opportunity agency. 42 U.S.C. § 2000e-5(e)(1).
In his opposition to defendant's motion to dismiss, plaintiff does not address this argument at all. "It is well understood in this Circuit that when a plaintiff files an opposition to a motion . . . addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." McMillan v. Wash. Metro. Area Transit Auth., ___ F. Supp. 2d ___, 2012 WL 4845641, at *3 (Oct. 12, 2012), citing Howard v. Locke, 729 F.Supp. 85, 87 (D.D.C. 2010). Defendant asserts that the timeliness argument has therefore been conceded. Def.'s Reply to Pl.'s Opp. [Dkt. # 71] ("Def.'s Reply") at 2. The Court agrees. Accordingly, the Court will grant this portion of defendant's motion and enter summary judgment for defendant on Count II of the amended complaint to the extent that it is based on any actions alleged to have been taken before October 2007.
III. The Collective Bargaining Agreement Between the District of Columbia Department of Corrections and Fraternal Order of Police Department of Corrections Labor Committee does not deprive this Court of subject matter jurisdiction.
Defendant next argues that this Court lacks subject matter jurisdiction over plaintiff's claims because plaintiff failed to follow the grievance procedures outlined in the Collective Bargaining Agreement between the District of Columbia Department of Corrections and its union, the Fraternal Order of Police Department of Corrections Labor Committee ("Collective Bargaining Agreement").
The Collective Bargaining Agreement provides that:
Ex. 3 to Def.'s Mot. at Art. 10 § 1. This provision does not expressly carve out charges of discrimination, but even defendant reads it as if it does: "[The Collective Bargaining Agreement] explicitly distinguishes discrimination charges from other forms of grievances, and states that discrimination charges are `not subject to the negotiated grievance procedure' but must be presented `to the appropriate administrative agency having jurisdiction over the matter." Def.'s Mem. at 13 n.5, citing Collective Bargaining Agreement, Art. 10, § 1. Since a claim alleging retaliation under Title VII is a type of discrimination claim, see Gomez-Perez v. Potter, 553 U.S. 474, 479-82 (2008) (finding in the context of the Age Discrimination in Employment Act of 1967 that retaliation based on a complaint of discrimination is a form of discrimination), defendant's concession suggests that the grievance procedures in the Collective Bargaining Agreement do not apply to plaintiff's claims in this case.
Moreover, plaintiff's claims do not appear to fall within the categories of allegations described in the operative paragraph of the Collective Bargaining Agreement. Plaintiff challenges various actions taken by his employer on the grounds that they were taken in retaliation for activity protected by Title VII. This is not an allegation of a violation, misapplication, or misinterpretation of the terms of any agreement, but rather an allegation of improper retaliation in violation of a federal statute. Nor is this a challenge to disciplinary actions. The alleged actions taken by defendant that plaintiff challenges — the termination of his job through an RIF, his placement on administrative leave pending termination, his placement in an isolated office, denials of promotions, and failure to inform him about vacancies — are undesirable, but there is no evidence that they were disciplinary in nature.
The cases that defendant cites are all distinguishable from the present case. Hughes v. CACI, Inc.-Commercial, 384 F.Supp.2d 89, 97-98 (D.D.C. 2005), and Booker v. Robert Half International, Inc., 315 F.Supp.2d 94, 97 (D.D.C. 2004), both stand for the proposition that where a valid binding contract between an employer and an employee sets out an alternative grievance procedure for a discrimination claim, that provision is not superseded by the EEO process. As the District suggests in its own footnote — and as explained above — the Collective Bargaining Agreement invoked here does not set out an alternative grievance procedure for a discrimination claim. Similarly, in Carson v. Sim, 778 F.Supp.2d 85, 94 (D.D.C. 2011), the court held that the plaintiff was required to resolve a claim that his employer breached his employment contract, as codified in a collective bargaining agreement, through the grievance procedure established by the agreement. Although the court also dismissed the plaintiff's Title VII claims, it did so for an entirely separate reason: the plaintiff had failed to exhaust his administrative remedies with the EEOC.
IV. The District of Columbia Government Comprehensive Merit Personnel Act does not deprive this Court of subject matter jurisdiction.
Defendant's argument that the District of Columbia Government Comprehensive Merit Personnel Act ("CMPA"), D.C. Code §§ 1-601.01-1-607.08 (2001), preempts this Court's jurisdiction over plaintiff's retaliation claim is also flawed. Although the CMPA is the exclusive remedy for nearly all work-related complaints of District of Columbia public employees, see Robinson v. District of Columbia, 748 A.2d 409, 411 (D.C. 1997), it is not the remedy for discrimination complaints, such as those arising under Title VII. See King v. Kidd, 640 A.2d 656, 664 (D.C. 1993), quoting D.C. Personnel Regulations § 1632.1(o), 34 D.C. Reg. 1845, 1878 (1987) (explaining that the District of Columbia Personnel Regulation concerning "adverse actions" and "grievances" covered by the CMPA expressly excludes from employee grievance procedures "[a]n allegation of unlawful discrimination, or any matter within the jurisdiction of the D.C. Office of Human Rights.").
Defendant does not appear to disagree with that statement. Rather, it argues that plaintiff's alleged protected activities "are not the type contemplated by Congress under Title VII." Def.'s Mem. at 16. And defendant maintains that the protected activities that plaintiff alleges prompted a retaliatory response are more properly classified as union grievances, for which the CMPA is the exclusive remedy. Id. at 16-18. As the Court has already noted, this is certainly a fair characterization of the first several rounds of complaints filed by Mr. Durant. For some time, plaintiff expressly complained that he was the subject of retaliation and coercion due to protected collective bargaining activities. But the amended complaint before this Court, which followed charges lodged with the EEOC invoking Title VII, is styled as an action arising under Title VII, and the Court must assess it under that statutory framework. And, even though the amended complaint challenges some of the same conduct that plaintiff previously labeled as an unfair labor practice, it is based on some other events as well. So the Court will not enter judgment for defendant on this basis either. This brings us to the merits of plaintiff's claims.
V. The termination of plaintiff's employment is the only action that rises to the level of an adverse employment action.
The legal framework for assessing the evidence
Title VII retaliation claims are evaluated under the framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 792 (1973). Under the McDonnell Douglas framework, a plaintiff bears the burden of making a prima facie showing of retaliation. Id. Once that showing has been made, the burden shifts to the defendant to produce a "legitimate, nondiscriminatory reason" for its actions. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (internal quotation marks omitted). If the employer makes this showing, then "the burden-shifting framework disappears," Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004), and the question before the court is "whether a reasonable jury could infer . . . retaliation from all the evidence." Id.
In order to make a prima facie showing of retaliation, plaintiff must show that (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse action. Jones, 557 F.3d at 677; see also Taylor v. Solis, 571 F.3d 1313, 1320 n.* (D.C. Cir. 2009).
At the summary judgment stage, however, if the employer produces a legitimate nondiscriminatory reason for its actions, "`the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.'" Jones, 557 F.3d at 678, quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). The central question becomes whether the plaintiff produced evidence sufficient for a reasonable jury to find that the employer's stated reason for the adverse action was not the actual reason and that the employer actually retaliated against the plaintiff. See Brady, 520 F.3d at 495. In assessing this question, the court considers "all the evidence, which includes not only the prima facie case but also the evidence the plaintiff offers to attack the employer's proffered explanation for its action and other evidence of retaliation." Jones, 557 F.3d at 677 (internal quotation marks and citations omitted).
B. The elements of an adverse employment action
To prove a retaliation claim under Title VII, a plaintiff must show "materially adverse action" by his employer. Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008). Materially adverse actions "encompass a broader sweep of actions than those in a pure discrimination claim," id. at 1198 n.4, because they are "`not limited to discriminatory actions that affect the terms and conditions of employment' and may extend to harms that are not workplace-related or employment-related so long as `a reasonable employee would have found the challenged action materially adverse,'" id., quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 68 (2006). Thus, to be "materially adverse," an action need only be of the type that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N., 548 U.S. at 68, quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006).
Defendant first argues that plaintiff has failed to make a showing that he suffered an adverse employment action that is actionable under Title VII because he has not demonstrated that he suffered lost wages as a result of any of defendant's actions. Def.'s Mem. at 19-21. This is an overly narrow construction of what constitutes a materially adverse action and does not comport with the standard described above.
Defendant has also argued that "[a]ny assertion that Plaintiff's duties and responsibilities changed so as to constitute an adverse employment action must be rejected." Def.'s Mem. at 21. For the most part, the Court agrees. Despite the fact that plaintiff need not demonstrate lost wages per se in order to demonstrate that an action is materially adverse, the Court finds that many of the actions plaintiff cites are not materially adverse under the Burlington Northern standard. Plaintiff has identified the following allegedly adverse actions:
1. Plaintiff was placed on administrative leave with pay in June through August 2007 after the photocopy incident; and upon plaintiff's return in August 2007, he was transferred to the Grimke Building instead of returning to the Warrant Squad office. Pl.'s Opp. at 26, 29.
Since these actions occurred between June and August 2007, and the Court has already found that plaintiff is barred from claiming a Title VII violation for any action before October 2007, the Court need not address these allegations.
2. On May 6, 2008, plaintiff received a "letter of admonishment" based on the fact that his supervisor had been unable to contact him during non-duty hours. Pl.'s Opp. at 26, 29-30; Ex. G to Pl.'s Opp.
Plaintiff does not allege that the letter of admonishment in any way affected the terms and conditions of his employment or caused him any harm that would dissuade a reasonable person from filing a complaint of discrimination. Rather, the letter simply warns that "future violations will result in corrective or adverse action." Ex. G to Pl.'s Opp. at 1. In this circuit, evaluations and written warnings do not constitute materially adverse actions unless they have "tangible job consequences." Baloch, 550 F.3d at 1199, citing Whittaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir. 2005). But plaintiff does not offer any evidence showing that the admonition had any consequences at all, whether for his job responsibilities, advancement opportunities, or anything else. Accordingly, this is not a sufficiently adverse action to form the basis of a retaliation claim under Title VII.
3. On May 19, 2008, plaintiff was not permitted to use a government vehicle. Pl.'s Opp. at 26.
As evidence of this, plaintiff submits a memorandum that he wrote to his supervisor Wanda Patten, explaining that "[a]s my duties and responsibilities as a warrant squad criminal investigator involves [sic] address checks and or surveillance. [sic] I do not have any vehicle assigned to perform that and any of my other duties and responsibilities." Ex. N to Pl.'s Opp. at 1. Although plaintiff claims in the memorandum that the lack of a vehicle interfered with his ability to perform his job, he has not submitted any evidence that his alleged inability to access a vehicle had any tangible consequences. For example, he does not show — or even allege — that he failed to complete any particular assignments because he could not access a vehicle, or that this resulted in negative performance reviews or deprived him of promotions. Cf. Baloch, 550 F.3d at 1199. Accordingly, the Court finds that plaintiff has not submitted sufficient evidence to show that this alleged action rises to the level of a materially adverse action.
4. On June 1, 2009, plaintiff was transferred back to the Warrant Squad Offices, but was placed in a separate office, isolated from the rest of the Warrant Squad. Pl.'s Opp. at 26.
First, plaintiff has not pointed to any evidence that shows even that he was actually placed in a separate office, that he was isolated, or that his isolation affected his performance of his job. Rather, he relies entirely on conclusory, unsupported assertions in his opposition to the motion for summary judgment. Pl.'s Opp. at 26 (stating that the DOC "kept [him] isolated from the remaining members of the Warrant Squad" and that his "duties and responsibilities were severely limited"). Plaintiff cites no evidence to support these assertions and the Court is not required to scour the record for evidence on his behalf. See Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record."); see also Martinez v. Puerto Rico Fed. Affairs Admin., 813 F.Supp.2d 84, 96 n.10 (D.D.C. 2011). But even if plaintiff had adduced some evidence of these changes to his conditions of employment, he has not come forward with any evidence that would show that the office transfer had tangible consequences that would dissuade a reasonable person from filing a complaint of discrimination. For example, there is no evidence that it resulted in bad performance reviews, a failure to be promoted, a reduction in salary, a reduction in job responsibility, or anything else.
Since it is plaintiff's burden at this stage to come forth with evidence showing that there is a genuine dispute of material fact, and plaintiff has not provided any evidence on which the Court could find that plaintiff's placement in an isolated office in June 2009 constitutes a materially adverse employment action, the Court cannot find that plaintiff's claim succeeds on that ground. See Tarpley v. Greene, 684 F.2d 1, 6 (D.C. Cir. 1982) (stating that under Federal Rule of Civil Procedure 56(e) and the local rules of this Court, a plaintiff "may not rest upon the mere allegations or denials of his pleadings . . . .").
5. In 2010, the DOC suspended plaintiff's arrest powers and authority as a Warrant Squad Criminal Investigator, subjected him to isolation and assignment to limited administrative duties, and denied him job upgrades and promotions. Pl.'s Opp. at 26.
Again, plaintiff does not point to any evidence that would show that DOC engaged in activity that would dissuade a reasonable worker from bringing a charge of discrimination. In his opposition to the motion for summary judgment, plaintiff relies entirely on unsupported assertions about what happened and how it affected him. Pl.'s Opp. at 26-27. The Supreme Court has held that "reassignment of job duties is not automatically actionable. Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and `should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.'" Burlington N., 548 U.S. at 71, quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (some internal quotation marks omitted). Yet plaintiff cites no evidence in the record that would illuminate the circumstances or the consequences of these events. Accordingly, the Court cannot find that he has sustained his burden of showing that the circumstances of the transfer rise to the level of an adverse action.
As to the alleged denial of job upgrades and promotions, the Court finds that plaintiff has not designated any facts showing that there is a genuine issue for trial, as the Celotex standard requires. Plaintiff has produced no evidence that he applied for any particular job or that his application was denied. Similarly, there is no evidence that he was denied a promotion or overlooked when others were being promoted. Accordingly, the Court cannot find that plaintiff has established a genuine dispute of material fact as to whether he suffered these allegedly materially adverse actions.
6. In 2010, plaintiff's employment was terminated through an alleged RIF. Pl.'s Opp. at 26-29.
This is the only allegation of an adverse employment action for which evidence has been presented that satisfies this key element of a Title VII case. Plaintiff provides the Court with the agency's response to his appeal of the reduction in force before the District of Columbia Office of Employee Appeals. Moreover, the portions of plaintiff's deposition that defendant submits contain plaintiff's testimony about the termination of his employment. Ex. 1 to Def.'s Mot. at 192, 194-96. Termination of employment clearly constitutes a materially adverse action. See Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003).
7. After receiving notice of the RIF and before his employment was terminated, plaintiff was escorted from his place of employment and put on administrative leave. Pl.'s Opp. at 26-27.
Once again, plaintiff does not supply sufficient evidence to support this allegation, or to show that he experienced any adverse consequences as a result. He does not even allege — much less, provide evidence that shows — that the administrative leave period was unpaid. Moreover, although plaintiff asserts in his opposition to the motion for summary judgment that being escorted from his office was "humiliating and degrading," Pl.'s Opp. at 27, he does not offer any evidence of negative consequences flowing from that event: he does not show whether his co-workers witnessed the event, whether the escort was forceful, or whether there were any other aspects of how his discharge was effected that would "dissuade a reasonable worker" from bringing a charge of discrimination. Compare Greer v. Paulson, 505 F.3d 1306, 1317-18 (D.C. Cir. 2007) (holding that suspension with back pay was materially adverse because plaintiff presented evidence of a demonstrable effect involving objectively tangible harm, which included personal bankruptcy, two real estate foreclosures, and negative marks on her employment record), with Harper v. Potter, 456 F.Supp.2d 25, 29 (D.D.C. 2006) (holding seven-day suspension was not materially adverse because although it was disciplinary in nature, plaintiff was able to remain on the job and in pay status); see also Boykin v. England, No. 02-950, 2003 WL 21788953, at *5 (D.D.C. July 16, 2003) (notice of proposed removal is not materially adverse because it is essentially a precursor to a decision to remove). Accordingly, the Court finds that plaintiff has not raised a genuine dispute of material fact as to whether he suffered this alleged materially adverse action either.
8. DOC withheld job vacancy announcements from plaintiff and did not provide him with preferential placement opportunities. Pl.'s Opp. at 27.
Yet again, this assertion is unsupported by evidence. As to the alleged withholding of vacancy announcements, plaintiff does not proffer the vacancy announcements or identify the opportunities that were available. And as to the allegation that he was denied preferential placements, he fails to identify any placements that were available or show that he was qualified for them. Rather, in his opposition to the motion for summary judgment, he simply lists several individuals who he alleges received employment opportunities in his stead. Pl.'s Opp. at 30-31. And the only piece of evidence he cites in support of these assertions is his own "first amendment to the unfair labor practice complaint" that he filed before the PERB. Ex. P to Pl.'s Opp. In other words, the only material plaintiff musters in opposition to the motion for summary judgment is simply a previous unsworn iteration of his own conclusory allegations, submitted to another forum. Defendant says: "plaintiff's references to his previously filed complaints with the EEOC cannot be the basis for which triable issues can be created." Def.'s Reply at 4.
The Court observes at the outset that this document does little to advance plaintiff's Title VII case because it specifically characterizes the complained-of hiring decisions as unfair labor practices that retaliated for plaintiff's collective bargaining activities, and it references provisions in the Collective Bargaining Agreement that were violated by the DOC. If anything, it seems to support defendant's position that at bottom, this case concerns matters that should be taken up under the Collective Bargaining Agreement or the CMPA.
Plaintiff has not supplied the Court with an affidavit or declaration indicating that he has personal knowledge of the facts set out in the First Amendment to the PERB complaint. He has not submitted the job vacancy announcements in question or explained why he did not apply for the jobs he complains were given to others. And, he did not advise the Court of any efforts he may have made during the discovery period in this case to obtain material that would have related to these claims.
In ruling on a motion for summary judgment, the Court is required to draw all justifiable inferences in the nonmoving party's favor, and it must accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. But the filing of a summary judgment motion requires the nonmoving party to "designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, and the nonmoving party must establish more than "the mere existence of a scintilla of evidence." Anderson, 477 U.S. at 252.
The remaining question, then, is whether plaintiff has come forward with sufficient evidence to create a triable issue on the question of whether DOC's RIF was merely pretextual or whether it was retaliatory.
VI. Plaintiff has failed to produce evidence sufficient for a reasonable jury to find that the RIF was mere pretext and that plaintiff's job was actually terminated in retaliation for his participation in protected activity.
Defendant argues that plaintiff has failed to establish any nexus between the termination of his employment and the allegedly protected activities in which he engaged. Def.'s Mem. at 18. The Court agrees.
Defendant has produced a legitimate nondiscriminatory reason for its actions — an agency reduction in force. The agency's response to plaintiff's appeal of the RIF before the Office of Employee Appeals, which plaintiff submits in support of its case, explains that due to budgetary constraints, thirteen positions were subject to a reduction of force based on the programs whose functions would have the least negative impact on the agency's ability to perform its mandated functions. Ex. K to Pl.'s Opp. at 1-2. As a result, the entire warrant squad was eliminated. Id. Therefore, the Court's sole job at this stage is to determine whether the plaintiff produced evidence sufficient for a reasonable jury to find that the employer's stated reason was not the actual reason for the adverse action and that the employer actually retaliated against the plaintiff. Brady, 520 F.3d at 495.
Plaintiff relies on temporal proximity to show causation. He asserts that "within one month from the date [he] filed the present action with the Court [(January 6, 2010)], his arrest powers and Warrant Squad authority were suspended (February 5, 2010); he was placed in isolation from his colleagues and removed from resources necessary to carry out his job functions; he was denied job upgrades/promotions (April 2010); [and] he was terminated his [sic] employment through an alleged RIF . . . ." Pl.'s Opp. at 33-34. But the evidence that plaintiff has put forward does not reflect that everything took place within the span of a month. According to the chronology that plaintiff himself provides, he was notified of his termination four months after he filed the original complaint in this action, and the termination actually took place two months after that. Even at the prima facie stage, courts in this district generally require closer temporal proximity in order to establish causation in the absence of direct evidence. See Harris v. D.C. Water and Sewer Auth., ___ F. Supp. 2d ___, 2013 WL 518641, at *4 (D.D.C. Feb. 13, 2013) (summarizing the precedent to show that courts in this district have rejected intervals of two and a half months, three months, five months, and ten months as establishing temporal proximity).
Moreover, while mere temporal proximity might be sufficient to establish the causation prong of a prima facie case of retaliation, proximity alone is insufficient to prove that defendant's legitimate non-retaliatory reasons are pretextual. Talavera v. Shah, 638 F.3d 303, 313 (D.C. Cir. 2011) ("Although an adverse action that occurs shortly after the protected activity can be part of a finding of retaliation, positive evidence beyond mere proximity is required to defeat the presumption that the proffered explanations are genuine[.]") (citations and internal quotation marks omitted).
Plaintiff has not provided any affirmative evidence that the RIF was pretextual. In fact, in his deposition, plaintiff admits that the entire warrant squad was abolished in the reduction in force, not just his position within the warrant squad. Durant Dep. at 195:8-10 ("Q: Well, let me ask you this: Was the warrant squad abolished? A: Yes it was — well, yes."); Durant Dep. at 195:22-196:3 ("Q: [D]id the warrant squad itself, the warrant squad still exist after the RIF? A: No."). Plaintiff contends that after DOC terminated the employees in the warrant squad, it hired correctional officers to perform the duties of the warrant squad. Durant Dep. at 195:20-21. Even if the Court accepts that statement as true, the fact that the department transferred the duties of the warrant squad employees to different employees in the department does not show that the RIF was pretext for retaliation against plaintiff for filing the complaint in this action. See Globus v. Skinner, 721 F.Supp. 329, 336 (D.D.C. 1989) (finding that the plaintiff's showing that the agency did not take into account in its RIF calculations the fact that it would seek approval for certain new hires does not "discredit the reasons for the RIF, establish that they were pretextual, or prove that they were motivated even in part by a retaliatory motive.").
Accordingly, since the Court finds that plaintiff has failed to put forth any evidence of a materially adverse action other than the termination of his employment, and he has failed to establish evidence that the reduction in force was pretext such that a reasonable jury could find that defendant's stated reason was not the actual reason for the termination of his employment and that defendant actually retaliated against him, the Court will grant defendant's motion for summary judgment as to the part of Count II that claims plaintiff suffered discrete acts of retaliation by his employer.
VII. Plaintiff fails to show that a dispute of material fact exists as to whether defendant created a hostile work environment.
The only remaining claim alleges that defendant subjected plaintiff to a hostile work environment in retaliation for his protected activities.
To make out a hostile work environment claim, a plaintiff must demonstrate that the "workplace is permeated with discriminatory intimidation, ridicule, and insult" and that this behavior is "sufficiently severe or pervasive [as] to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (internal quotation marks omitted). To determine "whether an actionable hostile work environment claim exists, [courts] look to `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.'" Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002), quoting Harris, 510 U.S. at 23; see also Baloch, 550 F.3d at 1201. This standard "ensure[s] that Title VII does not become a general civility code" that involves courts in policing "the ordinary tribulations of the workplace." Faragher v. City of Boca Raton, 524 U.S. 775, 788, (1998) (internal citation and quotation marks omitted).
Plaintiff spends four pages of his opposition to the motion for summary judgment arguing that a genuine dispute of material fact exists as to whether plaintiff's work environment was hostile and as to whether the hostile work environment was linked to his protected activity. See Pl.'s Opp. at 36-40. However, in making this argument, not once does plaintiff cite to the record. Rather, he continues to make unsupported conclusory assertions about what happened to him. See, e.g., id. at 38 ("First, it is clear from the record in this case that Mr. Durant subjectively perceived a hostile working environment. He filed repeated claims for relief, and attempted to obtain assistance from various sources. He was routinely subjected to isolation away from his colleagues and the tools necessary for him to carry out his duties. He was continually subjected to threats to his employment, admonishments, suspensions of arrest powers/authority, and placed on involuntary leave . . . .").
Moreover, the Court cannot find that plaintiff has established a sufficient causal link between the allegedly hostile work environment and his protected activity. Even if one assumes that all of the complaints to the EEO coordinator for DOC and to the EEOC that plaintiff has submitted as exhibits to his opposition are actually protected under Title VII, plaintiff has failed to adduce more than mere temporal proximity between the filing of those complaints and some of the allegedly hostile actions. And in opposing the motion for summary judgment on the hostile work environment claim, plaintiff simply refers the Court to the discussion of causation in the section of the opposition dealing with discrete retaliatory actions. As the Court has already discussed, temporal proximity alone is not enough to raise a genuine dispute of material fact over causation.
Moreover, plaintiff has provided the Court as exhibits numerous previous complaints that he wrote, in which he attributed his treatment by DOC officials to retaliation for his collective bargaining activities, and in which he alleged that his environment became hostile for those reasons before he ever engaged in the particular activity that he asserts is protected by Title VII. This undermines his argument that the hostile work environment was motivated by retaliation for the EEOC complaints.
A court in this district has noted that "opposition to an unlawful employment practice qualifies as protected activity even if it may have occurred outside of the EEO context." Rattigan v. Gonzales, 503 F.Supp.2d 56, 77 n.7 (D.D.C. 2007), quoting Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006) (internal quotation marks omitted). However, the complaint must in some way allege discrimination made unlawful by Title VII. Williams v. Spencer, 883 F.Supp.2d 165, 177 (D.D.C. 2012), citing Broderick, 437 F.3d at 1232; 42 U.S.C. § 2000e-3(a). Accordingly, the complaints and reports that plaintiff identifies as his "protected activities" must have in some way alleged discrimination on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. §§ 2000e-2, 2000e-3(a).
Under that framework, the first protected act that appears in the record is the memorandum plaintiff sent to the DOC's EEOC coordinator on October 17, 2007. Ex. E to Pl.'s Opp. at 1. Yet, plaintiff alleges that the hostility began in June 2007, when he was put on administrative leave. Pl.'s Opp. at 25-26, 37. So even if the Court were to find that plaintiff has identified sufficient evidence to show that he faced a hostile work environment, it cannot find that he has met his burden of showing that genuine issue of material fact exists about whether the cause of the hostility was retaliation for his protected activity. See Lewis v. District of Columbia, 653 F.Supp.2d 64, 79 (D.D.C. 2009) ("The fact that the allegedly retaliatory actions preceded the protected activity precludes a determination that the protected activity caused the defendant to retaliate against the plaintiff.").
Accordingly, the Court will grant defendant's motion for summary judgment in full. As a result, it will dismiss the pending motion to strike as moot. A separate order will issue.
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