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December 2, 1997

JAMES A. JONES, Plaintiff,

The opinion of the court was delivered by: KOLLAR-KOTELLY


 The Plaintiff filed a Complaint alleging race discrimination, hostile work environment, and retaliation in violation of the Civil Rights Act of 1964, § 717, 42 U.S.C. § 2000e-16 (1988), as amended by Act of June 23, 1995, 42 U.S.C. § 2000e-16 (West 1994 & Supp. 1997). The Defendant has moved for Summary Judgment, arguing that he is entitled to judgment as a matter of law on all of the claims. Having considered the Motion for Summary Judgment, the Plaintiff's Opposition, the Defendant's Reply, the arguments at the hearing on the Motion for Summary Judgment held on October 31, 1997, the entire record herein, and the relevant law, the Court concludes that there are no genuine issues of material facts, and that the Defendant is entitled to summary judgment.


 Local Rule 108(h) requires a party moving for summary judgment to state concisely those material facts deemed not to be in dispute, while imposing a similar duty on the nonmoving party to direct the Court's attention to specific facts that are genuinely disputed and should be adjudicated at trial. The manifest importance of Rule 108(h) is that it "places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 322 U.S. App. D.C. 35, 101 F.3d 145, 151 (D.C. Cir. 1996). Rule 108(h) itself cautions counsel that the Court, in adjudicating a motion for summary judgment, "may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." D.D.C. R. 108(h). This Circuit consistently has affirmed the district court's broad discretion to consider only those facts that counsel have identified. As such, the Circuit has liberated the lower courts from any duty to rummage independently through the voluminous records that often accompany summary judgment motions. See, e.g., Twist v. Meese, 272 U.S. App. D.C. 204, 854 F.2d 1421, 1425 (D.C. Cir. 1988); Tarpley v. Greene, 221 U.S. App. D.C. 227, 684 F.2d 1, 7 n.15 (D.C. Cir. 1982); Gardels v. Central Intelligence Agency, 205 U.S. App. D.C. 224, 637 F.2d 770, 773 (D.C. Cir. 1980); Thompson v. Evening Star Newspaper Co., 129 U.S. App. D.C. 299, 394 F.2d 774, 776-77 (D.C. Cir. 1968). Consistent with the foregoing principles, the Court has adduced the following undisputed material facts from the Defendant's Local Rule 108(h) Statement and the Plaintiff's Local Rule 108(h) Statements. *fn1"

 On December 10, 1990, the Plaintiff, James Jones, was hired as Compensation Representative at the Library of Congress. (Compl. P 9; Defendant's Statement of Material Facts as to Which There is No Dispute P 1 (hereinafter "Deft.'s R. 108(h) Statement.")) In his position as Compensation Representative, he was responsible for processing worker's compensation claims filed by employees of the Library of Congress. (Deft.'s R. 108(h) Statement P 1.) Dr. Sandra M. Charles, the Library Health Services Officer, was the Plaintiff's immediate supervisor. (Id.) Mr. Jones is Caucasian; Dr. Charles is African-American. (Id.)

 The position of Compensation Representative was a "stand alone" GS-8 position. (Id. P 2.) A stand alone position is not in a promotion plan and thus does not lead to a higher grade. (Id.) In order for the Plaintiff to obtain a higher grade in his position as Compensation Representative, his position would have to be redescribed as a position in a GS-9-11-12 promotion plan. (Deft.'s R. 108(h) Statement PP 4, 5.) When a position is redescribed, the Library considers the resulting position to be a new position with a vacancy, and the vacancy must be posted. ( Id. ; Deft.'s Exh. *fn2" 4 (Dep. Test. of Jessie Powell) at 25-26.)

 On May, 21, 1992, the Library implemented a hiring freeze due to budgetary concerns. (Pl.'s Exh. *fn3" 2 (Memorandum from Librarian of Congress.)) Pursuant to Dr. Charles' request, Ms. Joan Velos, a supervisory nurse, forwarded a request on June 30, 1992, to Mr. Jesse Powell in the Library's Personnel Office asking that the position of Compensation Representative be redescribed as a GS-9-11-12 position. (Deft.'s R. 108(h) Statement P 5.) On August 4, 1992, the position of Compensation Representative was redescribed as a GS-9-11-12 position. (Pl.'s Exh. 5.) On September 16, 1992, the Associate Librarian for Management requested an exception to the hiring freeze so as to allow the posting of the vacancy for the newly described position of G-9-11-12 Compensation Representative. (Id.)

 On November 23, 1992, Dr. Charles issued to the Plaintiff a counseling memorandum, in which she expressed concerns about the Plaintiff's demeanor and attitude. (Counseling Memorandum, attached to Deft.'s Exh. 5). *fn4" On November 24, 1992, the Librarian of Congress implemented a hiring freeze for administrative and professional positions. (Deft.'s Exh. 1 (Letter from Librarian of Congress to Subcommittee on Libraries and Memorials regarding hiring freeze.)) The Librarian of Congress implemented this hiring freeze because of the ruling in an unrelated case that the Library of Congress engaged in discriminatory practices in the competitive promotion process for professional and administrative positions within the Library. (Pl.'s Exh. 1; Deft.'s Exh. 1.)

 On November 25, 1992, Dr. Charles forwarded a request to Personnel to post the new GS-9-11-12 Compensation Representative position. (Deft.'s R. 108(h) P 6). The GS-9-11-12 Compensation Representative position is a GS-301-9-8344 series position. (Pl.'s Exh. 4). Positions in the 301 series are considered administrative. (Aff. of Herbert Junious, attached as Exh. 13 of Deft.'s Position Regarding Pl.'s Hostile Work Environment Claim and the Classification of a Job Series (hereinafter "Deft.'s Position.")) *fn5"

 On December 4, 1992, the Plaintiff initiated a dispute with the Library's Dispute Resolution Center because he felt that the "counseling memorandum was unfounded." (Plaintiff's Memorandum to Dispute Resolution Center, attached to Deft.'s Exh. 3.) For purposes of this Motion, the Defendant accepts the Plaintiff's claim that in this 1992 dispute, he alleged that Dr. Charles discriminated against him based on his race when she issued the Counseling Memorandum. (Deft.'s Mot. for Summ. J. at 4 n. 4.) On December 10, 1992, the Plaintiff sent a memorandum to Lucy Tremols of the Employee Assistance office, and informed her that he had heard from a Health Services Secretary that Dr. Charles had made unprofessional comments about the Plaintiff behind his back to other Library staff. (Pl.'s Exh. 13).

 In February of 1993, Dr. Charles elected not to extend the work-study program in which the Plaintiff's support staff member participated. (Pl.'s Exh. 16.) On May 14, 1993, the Plaintiff filed an informal dispute with the Library's Dispute Resolution Center. (Pl.'s Exh. 17.) In the May 14, 1993 informal dispute, the Plaintiff complained about the denial of his placement in the promotion plan. ( Id.)

 In January of 1994, the Plaintiff received a satisfactory performance evaluation from Valerie Grasso, who was the Compensation Program Manager in charge of directing the Plaintiff's work at that time. (Pl.'s Exh. 18.) *fn6" The Plaintiff contested this evaluation with Ms. Grasso, claiming that he deserved an outstanding evaluation. (Id.)

 On March 16, 1994, Ms. Grasso wrote to Dr. Charles, requesting that the Plaintiff be considered for a fitness-for-duty examination because it was her opinion that the Plaintiff was incapable of performing his duties. (Pl.'s Exh. 26.) On March 31, 1994, a panel was convened in order to determine whether the Plaintiff should undergo a fitness-for-duty examination. (Pl.'s Exh. 29.)

 In a Memorandum to the Office of Counsel for Human Resources, Mr. Edward Boling, indicated that Dr. Rodney Burbach, Valerie Grasso, Barbara Young, and Edgar Boling were present when a panel convened to discuss whether the Plaintiff should be referred for a fitness-for-duty examination. (Pl.'s Exh. 29). At the hearing on this Motion, the Plaintiff directed the Court's attention to the deposition testimony of Ms. Grasso, in which Ms. Grasso testified that "I wrote out a request that [the plaintiff] be referred for a fitness for duty examination." (Pl.'s Exh. 39, (Grasso Depos.) at 50 lines 8-10.) In response to the question of whether she voted on the decision to refer him, Ms. Grasso stated, "I was at a meeting when I got to discuss my request. A decision was made that he be referred." (Id. at lines 11-13.) In response to the question of whether she participated in the decision, she answered, "yes, I did." (Id. at line 15.)

 On March 22, 1994, the Plaintiff filed a formal complaint *fn7" of discrimination with the Equal Employment Opportunity Complaint Office at the Library. (Deft.'s Exh. 2.) In this formal EEOC complaint, the Plaintiff alleged that Dr. Charles, Jesse Powell of the Human Resources Department, and Valerie Grasso had discriminated against him based on his race and sexual orientation by denying him a promotion, defaming him, and tampering with his promotion plan and the reclassification of his position. (Id.)

 On March 31, 1994, a panel decided that the Plaintiff should undergo a fitness-for-duty examination because the information presented to the panel indicated that the Plaintiff was "[unable] to perform his duties because of personality disorders which impair his judgment and adversely affect his working relationships with others." (Id.) The Plaintiff underwent the fitness-for-duty examination and was found to be fit and able to perform his duties. (Pl.'s Exh. 36.)

 The Plaintiff was promoted on March 19, 1995, from a GS-9 to a GS-11 as a result of the reclassification. (Deft.'s R. 108(h) Statement P 9.) He then was promoted to a GS-12 after the filing of the instant complaint. (Deft.'s Mot. for Summ. J. at 16 n.9).

 In 1992 and 1994, the Plaintiff filed two worker's compensation claims for stress related problems. As to the 1992 claim, Ms. Grasso requested that the claim be assessed by Vinicia McNeil, Supervisory Claims Examiner for the Special Claims Unit. (Pl.'s Exh. 32.) This claim was denied. Similarly, the 1994 claim was denied.


 1. The Standard for Summary Judgment

 Summary judgment is appropriate pursuant to Fed. R. Civ. P. 56 if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56 (c). The movant 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' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Thereafter, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324.

 In deciding a motion for summary judgment, the court must believe all of the evidence produced by the non-movant, and must draw all favorable inferences in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Ultimately, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251. Absent a sufficient showing of a material dispute as to the existence of "an essential element of [the non-moving party's] case, with respect to which [the non-moving party] has the burden of proof," summary judgment for the moving party is required. Celotex Corp., 477 U.S. at 323.

 2. The Hostile Work Environment Claim is Properly Before the Court.

 In paragraphs nine through forty-nine in the Complaint, the Plaintiff recites the factual basis for his Complaint. In paragraphs fifty and fifty-one, the Plaintiff alleges that the conduct described in paragraphs nine through forty-nine constitutes outright discrimination based on race. Similarly, in paragraphs fifty-four to fifty-six, Plaintiff alleges that the conduct described in paragraphs nine through forty-nine constitutes intentional retaliation against the plaintiff for having opposed the discriminatory employment practices.

 In the fact section of the Complaint, however, the Plaintiff also alludes to a claim of hostile work environment. At the hearing, the Court raised a question as to whether the hostile work environment claim was properly before the Court, as it was not clear from the record that the Plaintiff's administrative claim included allegations of hostile work environment because the administrative complaints all referenced attachments, which had not been provided to the Court in either the Motion or the Opposition. The Court directed the parties to further review the administrative claims and to file with the Court documents that indicated whether the Plaintiff alleged hostile work environment in his administrative claims. The Court has reviewed those materials ...

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