The opinion of the court was delivered by: RICHEY
Before the Court in the above-entitled cause are the defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment, filed October 29, 1996, and the plaintiff's Opposition thereto, filed November 5, 1996.
The plaintiff alleges racial harassment discrimination in violation of 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964 and retaliatory action against the plaintiff for having filed a discrimination complaint with the Equal Employment Opportunity Commission (the "EEOC") in violation of § 704(a) of Title VII.
Upon consideration of the party's pleadings, the entire record herein, the law applicable thereto, and for the reasons set forth below, the Court shall deny the defendant's Motion to Dismiss and shall grant the defendant's Motion for Summary Judgment.
The plaintiff, Antonio Ridley, an African American, has been employed since 1990 by the District of Columbia Department of Corrections ("the Department") as a correctional officer at the Medium Security Facility, Lorton Complex, Lorton, Virginia. The plaintiff contends that he has been subjected to discrimination in the form of a hostile work environment caused by the repeated use of the racial epithet "nigger" by other African American co-workers when referring to fellow African Americans, including the plaintiff. He also alleges that he has been subjected to unlawful retaliation by the Department because it failed to give him advance approval of eight hours leave to meet with an official at the EEOC. The Department, instead, approved four hours in advance and the remaining four hours after he took the entire eight hours leave.
Plaintiff asserts that he has spoken to individual co-workers to inform them of his objections to the use of the term in question and has raised the issue at "Roll Call" before beginning two work shifts. The plaintiff continues to work at the facility and does not contend that the alleged discrimination has affected his career or the terms and conditions of his employment.
I. THE COURT SHALL DENY THE DEFENDANT'S MOTION TO DISMISS AS MOOT.
In its Motion to Dismiss, the defendant moves for dismissal of this case on the ground that, in his original Complaint, the plaintiff named as the sole defendant the District of Columbia Department of Corrections, which, the defendant argues, is not a suable entity. In response to this motion, the plaintiff amended his Complaint, as he is entitled to do as a matter of right pursuant to Rule 15 of the Federal Rules of Civil Procedure, removing the Department of Corrections as a party and adding the District of Columbia as the sole defendant.
II. THE COURT SHALL GRANT THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.
In its Motion for Summary Judgment, the defendant moves for summary judgment on all counts on the grounds that, as a matter of law, the plaintiff: (1) cannot show that he has been the subject of racial discrimination or a hostile environment by the use of racial epithets by other African American co-workers, (2) did not notify the defendant of the alleged discrimination such that the defendant had an opportunity to investigate and remedy the alleged discrimination; (3) cannot prevail on his § 1983 claim because he has failed to show a policy of deliberate indifference to the plaintiff's alleged complaints; and (4) cannot show that he was subjected to retaliation by the failure to give him advance approval for eight rather than four hours leave to pick up a file regarding his EEOC complaint.
In order for the Court to grant summary judgment under Rule 56, the moving party must demonstrate that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In considering the summary judgment issue, the Court must view all of the evidence in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A careful analysis of the record in this case demonstrates that the defendant is entitled to summary judgment on the plaintiff's Title VII, § 1983, and retaliation claims.
A. The Court Shall Grant Summary Judgment in Favor of the Defendant on the Plaintiff's Title VII Claim Because the Defendant Did not Know Nor Should Have Known of the Alleged Discrimination.
1. A claim of hostile environment racial harassment under Title VII.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1988) makes it unlawful for an employer
(1) ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, ... or national origin.
A violation of Title VII occurs when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of victim's employment and create an abusive working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993); Batson v. Powell, 912 F. Supp. 565, 575-76 n.13 (D.D.C. 1996). Merely isolated or incidental usages of racial epithets in casual conversation, however, will not constitute a Title VII violation. See Batson, 912 F. Supp. at 575-76 n.13 (holding that few isolated incidents not actionable); Friend v. Leidinger, 446 F. Supp. 361, 382-83 (E.D. Va. 1977) (isolated incidents of racial epithets not actionable), aff'd, 588 F.2d 61 (4th Cir. 1978).
When a discriminatory hostile work environment is created by non-supervisory co-workers, the plaintiff also must show that the employer knew, or should have known, of the harassment and failed to take remedial action. Actual notice may be found if the employee complained of the harassment to the agency's personnel or equal employment office, or other management personnel. See, e.g., Ellerth v. Burlington Industries, Inc., 912 F. Supp. 1101, 1118 (N.D. Ill. 1996) (finding no actual knowledge of alleged discrimination when plaintiff failed to notify EEO officer or management personnel). Knowledge may also be imputed if the harassment is so severe or pervasive that "a reasonable employer would be inspired to investigate and discover the facts." 3 Lex K. Larson, Employment Discrimination § 46.07[a] (2d ed. 1996); Spicer v. Commonwealth of Virginia, 66 F.3d 705, 710 (4th Cir. 1995).
2. The defendant had no actual knowledge of the alleged discrimination.
The plaintiff alleges that the word "nigger" was used many times in his presence by African American "co-workers and officers of superior rank." Amended Complaint PP 5 & 6. Failing to allege that his supervisors engaged in the such conduct, the plaintiff must show that the defendant knew or should have known of it and failed to take ...