also claim they were denied administrative leave time to meet with an EEO counselor on May 26, 1993, also in retaliation for their complaint.
This Circuit requires plaintiffs to demonstrate the following three elements in making out a prima facie retaliation case: (1) that they engaged in an activity statutorily protected by Title VII; (2) that they were subject to adverse action by defendant, their employer; and (3) that a causal connection exists between the protected activity and the adverse employment action. Berger v. Iron Workers Reinforced Rodmen Local 201, 269 U.S. App. D.C. 67, 843 F.2d 1395, 1423 (D.C. Cir. 1988), cert. denied, 490 U.S. 1105, 109 S. Ct. 3155, 104 L. Ed. 2d 1018 (1989); Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 86 (D.C. Cir. 1985); McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984); Klein v. Derwinski, 869 F. Supp. 4, 8 (D.D.C. 1994); Dhuria v. Trustees of Univ. of Dist. of Columbia, 827 F. Supp. 818, 828 (D.D.C. 1993).
Plaintiffs' EEO complaint constitutes participation in the EEO process, which Title VII protects against reprisal. See 42 U.S.C.A. § 2000e-3(a). Many different employer actions can be viewed as retaliatory treatment; for example, retaliatory treatment may consist of harassment, disciplinary demotion, suspensions with pay, unjustified evaluations and reports, loss of normal work assignments, denial of letters of commendation, statements to prospective employers, or termination. See Barbara Lindemann Schlei and Paul Grossman, Employment Discrimination Law, Ch. 15, § V (2d ed. 1983).
1. Plaintiffs' First Retaliation Claim
Plaintiffs' first retaliation claim is comprised of three separate components. The first component alleges defendant subjected them to harassment and a hostile work environment in retaliation for filing their administrative complaint, and is advanced by all six plaintiffs. The harassment and hostile work environment of which plaintiffs complain consisted of: (1) defendant insisting that plaintiffs comply with the UDP; (2) OPS supervisors inspecting them at roll call to determine whether they were fit for duty; and (3) supervisors shouting at them on occasion when they were in violation of the UDP. This same alleged "harassment" and "hostile work environment" existed prior to plaintiffs' engaging in the protected activity, as their own evidence shows. As early as January 1993, four months prior to plaintiffs' claim, defendant was insisting that plaintiffs comply with the order and was inspecting them for possible violations of the policy. An inference of causation is improper under these facts. Since plaintiffs have not shown any credible evidence of causation, defendant's motion for summary judgment is granted as to the first component of plaintiffs' claim.
In the second component of their first claim, all six plaintiffs allege that they were disciplined in retaliation for filing their complaint. This claim also suffers for failure of a showing of causation. Plaintiffs' own evidence shows that they were being placed on absence without leave and suspended as early as March, 1993, while their discrimination complaint was not filed until May 6, 1993. Again, no inference of causation is proper, and defendant's motion for summary judgment is granted as to the second component of their first claim.
The third component of plaintiffs' first claim is advanced by Batson, M. Harvey, and Mathis, alleging they were terminated in retaliation for filing a discrimination claim.
For purposes of this Opinion, the Court will assume, without deciding, that Batson and Mathis have established that their firings were causally linked to their participation in a protected activity because of the proximity in time.
Since the fired plaintiffs have established a prima facie case, defendant bears the burden of articulating some legitimate, nondiscriminatory reason for his action. Defendant has produced evidence showing both Batson and Mathis engaged in objectionable non-protected activity. Defendant's uncontested evidence shows that on April 2, 1993, Batson wore a sign attached to her hair reading "I PROTEST" to roll call, while her hair was styled in violation of the order. She was ordered to report to the office of James Davis, OPS Deputy Chief, but instead left the building. On April 18, 1993, Batson reported to work in compliance with the UDP, but then let her hair down during duty. OPS supervisor Boomer requested Batson to comply; she first stated, "no, send me home," and later said, "no, I do not feel like it." (Def.'s Mot. for Summ. J. Ex. C.) Batson later requested leave from work on or about November 11, 1993. Her request was denied because she failed to provide proper medical documentation of the necessity for leave. Nonetheless, she did not show up for work from November 14, 1993, until January 8, 1994. That fact alone could justify defendant's adverse action.
Defendant's uncontested evidence also shows that Mathis failed to report to work on January 16, 1994, February 5, 1994, and April 9 and 12, 1994. On March 29, 1994, she called a supervisor who was counseling her for violating the dress policy "stupid," and accused the same supervisor of abusing his authority, telling him to "use [his] better judgment, not [his] title or position to bother people." (Def.'s Mot. for Summ. J. Ex. C.) On May 10, 1994, she told a counseling officer that "It [was not her] fault if you are not getting any at home," implying she was being counseled because her supervisor was sexually frustrated. (Def.'s Mot. for Summ. J. Ex. C.) Defendant has shown Mathis was absent from work without excuse, insubordinate to her superiors, and grossly disrespectful of authority, all legitimate grounds for termination.
Since defendant has provided legitimate, nondiscriminatory reasons for the fired plaintiffs' dismissal, the fired plaintiffs must come forward with evidence showing that defendant's reasons are merely pretextual, and that defendant's proffered reasons are not the true and actual reasons for their termination. St. Mary's Honor Center, 113 S. Ct. at 2747. Batson and Mathis bear the ultimate burden of persuasion on the issue of whether they were the victims of intentional discrimination. St. Mary's Honor Center, 113 S. Ct. at 2748; Burdine, 450 U.S. at 253, 101 S. Ct. at 1093; Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir.), cert. denied, 502 U.S. 861, 112 S. Ct. 181, 116 L. Ed. 2d 143 (1991). If the fired plaintiffs could show defendant's actions were more likely than not the product of intentional discrimination, the jury should find in their favor; but if they merely discredit defendant's proffered reasons, and show that they are unworthy of credence, the jury may infer that defendant's actions were discriminatory and find for the fired plaintiffs, although it is not required to make such a finding. Barbour v. Merrill, 310 U.S. App. D.C. 419, 48 F.3d 1270, 1276 (D.C. Cir. 1995); Nayar v. Howard Univ., 881 F. Supp. 15, 21 (D.D.C. 1995) (citing St. Mary's Honor Center, 113 S. Ct. at 2749).
Here, defendant's legitimate reasons for firing Batson and Mathis have gone unrebutted. The fired plaintiffs have not introduced evidence showing defendant's given reasons are pretextual, nor have they produced evidence to cast sufficient doubt as to the credibility of defendant's reasons. To avoid summary judgment, the fired plaintiffs are required to produce some objective evidence showing defendant's proffered reasons are mere pretext. This requirement demands no more than the Federal Rules of Civil Procedure, which require the non-moving party to demonstrate the existence of a dispute of material fact. See Villanueva, 930 F.2d at 129 (citing Liberty Lobby, 477 U.S. at 247-48, 106 S. Ct. at 2509-10). Even assuming Batson and Mathis had established a prima facie case of retaliatory firing, that presumption dropped from the case once defendant offered legitimate, nondiscriminatory reasons for their firing. The fired plaintiffs were repeatedly told they would be subject to disciplinary action if they failed to follow their supervisor's orders. Not only did they disobey direct verbal and written orders, but they were also insubordinate, absent without excuse, and insolent to their supervisors. Defendant is entitled to expect cooperation from his employees, and the firing of these plaintiffs under the circumstances before the Court was reasonable. Devera, 874 F. Supp. at 21 (D.D.C. 1995) (citing Paul v. Fed. Nat'l Mortgage Ass'n, 697 F. Supp. 547, 556 (D.D.C. 1988)). No material issue of fact remains, and defendant's motion for summary judgment is granted as to the third component of plaintiffs' retaliation claim.
2. Plaintiffs' Second Retaliation Claim
Plaintiffs' original class complaint was filed with the NGA and their EEO officer, Cathy Yates, on May 6, 1993. On May 18, Yates informed plaintiffs that 29 C.F.R. § 1614.204(b) required them to first seek counseling and be counseled in accordance with 29 C.F.R. § 1614.105 before filing a class complaint.
On May 24, plaintiffs' counsel arranged an EEO counseling meeting for May 26. However, on May 26, plaintiffs' OPS supervisor, Captain James Thompson, denied them administrative leave time to attend their scheduled meeting. Plaintiffs' counsel contacted Yates about the denial of leave time. Yates took the position that defendant was not required to grant administrative time for EEO counseling, and instead defendant's policy was to require employees to take annual leave in order to participate in the counseling process.
The plaintiffs each filed annual leave requests that day. Except for Sumter's, all were denied. Bailey, M. Harvey, T. Harvey, and Mathis did not attend the counseling meeting on May 26, 1993; Sumter was the only plaintiff to attend that originally scheduled session. On June 10, 1993, the other plaintiffs attended an EEO counseling session, at which time they were told their counseling was complete.
Viewed in the light most favorable to plaintiffs, their allegations have satisfied the requirements for making out a prima facie case of retaliation under the McDonnell Douglas model. Filing a class complaint with the EEOC was a protected activity under Title VII. Denial of leave to attend a counseling meeting can qualify as an adverse employment action. There is a close proximity in the sequence of events, which raises a presumption of causation. Thus, defendant must present a legitimate, nondiscriminatory explanation for his adverse action.
Defendant has given a legitimate, nondiscriminatory reason for Captain Thompson's denial of leave: plaintiffs' request for leave -- to begin immediately -- was submitted without advance notice at 9:50 A.M., on a day on which Bailey, M. Harvey, T. Harvey, and Mathis were scheduled to start work at 10:00 A.M. Thompson worried that releasing the four security guards assigned to duty that day without opportunity to secure replacement guards would jeopardize the security of the art works on display. Since protection of the Gallery's art is OPS's primary responsibility, plaintiffs' request could not be accommodated on such short notice. In addition, plaintiffs were able to attend a counseling meeting on June 10, 1993, during non-public hours, suggesting plaintiffs were not disadvantaged by the initial denial of leave.
Plaintiffs have not offered evidence showing defendant's proffered reasons are pretextual, nor have they demonstrated that they were disadvantaged by defendant's actions. Title VII can be "misused in a futile attempt to resolve what are essentially problems attributable to insensitive personnel management, not to discrimination." Nance v. Librarian of Congress, 661 F. Supp. 794, 798 (D.D.C. 1987). Yates may have made an administrative error. The Mitchell case suggests that plaintiffs were entitled to administrative leave time to attend their counseling meeting. But cf. Jones v. Babbitt, 52 F.3d 279 (10th Cir. 1995) (limiting the scope of complainant activities requiring administrative leave time). Still, administrative errors are not discrimination. A policy that complainants were not owed administrative time for counseling suggests a nondiscriminatory explanation for Yates's position. Furthermore, from the record before the Court, it appears that Yates had nothing to do with the decision to deny administrative leave. Although she was contacted by plaintiffs' counsel that day, the decision to deny leave appears to have been made solely by Captain Thompson. Plaintiffs' only injury seems to be that Sumter was forced to take annual leave to attend the counseling meeting, and the rest of the plaintiffs had to wait 16 days to attend a counseling session. Plaintiffs bear the burden of proving that they have been the victims of illegal retaliation, and they have failed to produce evidence showing defendant's proffered reasons for denying administrative leave are pretextual. No conflict as to the material facts in question remains, and since there is no issue of material fact in dispute, defendant's motion for summary judgment on plaintiffs' second retaliation is granted.
For the reasons stated above, the Court denies plaintiffs' motion for class certification. In addition, the Court grants defendant's motion for summary judgment as to plaintiffs' disparate treatment and retaliation claims. Defendant's motion for summary judgment as to plaintiffs' disparate treatment claim is denied. Thus, this federal case barely survives, after already consuming extensive resources, based upon one man's ponytail.
An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED that plaintiffs' motion for class certification is denied. It hereby further is
ORDERED, that defendant's motion for summary judgment is granted on plaintiffs' disparate impact claim. It hereby further is
ORDERED, that defendant's motion for summary judgment is granted as to each of plaintiffs' retaliation claims. It hereby further is
ORDERED, that defendant's motion for summary judgment on plaintiffs' disparate treatment claim is denied.
Stanley S. Harris
United States District Judge