period 1992-1996. Mr. Mehlberg grew angry when he learned at some
point in 1992 that he had been named in Mr. Simms's
discrimination complaint, and told Mr. Simms: "From this day
forth, I don't want you to say hello to me, don't talk to me in
the hall. I don't want to know you. Just stay away from me. I
will go my way, you go yours. Leave me alone." Def.'s Mot. at 9
(quoting Administrative Hearing Testimony ("HT") at 410).
Three years later, in 1995, Mr. Mehlberg stated that he did not
like plaintiff and would not train him. See id. An
administrative judge heard this complaint, and issued a
recommended decision on May 7, 1998, in favor of the defendants.
Discrimination at the FAA Section
GPO's motion seeks dismissal of Mr. Simms's discrimination
claims because he failed to contact an EEO counselor within 30
days of the alleged discriminatory events. Def.'s Mot. at 14-16.
In 1991 and 1992, when the alleged discrimination occurred, a
plaintiff was required to bring discriminatory events to the
attention of an EEOC counselor "within 30 calendar days of the
date of the alleged discriminatory event or personnel action, or
the date that the aggrieved person knew or reasonably should have
known of the discriminatory event of personnel action."
29 C.F.R. § 1613.214(a)(1)(i) (1992).
The training trip to Atlantic City took place in October, 1991.
See IR, Tab 6, pp. 10-12. Mr. Zoeller made the allegedly racist
remark in November or December of 1991.*fn2 See Def.'s Facts ¶
11; IR, Tab 6, p. 10. Mr. Simms first sought EEO counseling on
February 21, 1992, see Def.'s Facts ¶ 11; IR, Tab 3, more than
30 days after both incidents.
Mr. Simms appears to concede this chronology, see Pl.'s Facts
¶ 9. His central argument in opposition to the motion is that his
claims are saved by the continuing violations doctrine. In order
successfully to invoke that doctrine, a plaintiff must show "a
series of related acts, one or more of which falls within the
limitations period." Valentino v. United States Postal Serv.,
674 F.2d 56, 65 (D.C.Cir. 1982). Mr. Simms has not done so.
Instead, he has attached to his opposition a self-serving,
unsupported, unsigned statement that contains a flurry of claims
of recent "violations." See Ex. G, Pl.'s Opp'n. These new
allegations do not establish or support a claim that a "related
act" fell within the limitations period or that GPO has
"maintain[ed] . . . a discriminatory system both before and after
the [statutory] period," Valentino, 674 F.2d at 65.
In any event, Mr. Simms did not explicitly plead a continuing
violation in either his original complaint or his amended
complaint. This fact alone bars assertion of this equitable
defense at this time. See Childers v. Slater, 44 F. Supp.2d 8,
17 n. 8 (D.D.C. 1999).
In claims of reprisal or retaliation under Title VII, the
plaintiff must demonstrate as part of his prima facie case that
the employer-defendant took an "adverse employment action."
Brown v. Brody, 199 F.3d 446, 455 (D.C.Cir. 1999). To establish
an adverse employment action, a Title VII plaintiff must at a
minimum allege some "objective tangible harm." Id. at 457.
"Mere idiosyncrasies of preference are not sufficient to state an
injury." Id.; see also Childers, 44 F. Supp.2d at 18 (adverse
employment action must involve "a
tangible change in the duties or working conditions constituting
a material employment disadvantage").*fn3 For verbal "comments
to rise to the level of adverse action, the conduct must be so
egregious as to alter the conditions of employment." Henry v.
Guest Servs., 902 F. Supp. 245, 252 n. 9 (D.D.C. 1995).
The two comments made by Mr. Mehlberg in 1992 and 1996 are
insufficient to establish a prima facie case of retaliation,
and indeed Mr. Simms has failed to present affirmative evidence
that he suffered any negative employment consequences based on
his exercise of a statutorily-protected right. See Harlston v.
McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). To
the contrary, he was assigned to a more desirable position in the
Text Processing Unit after leaving the FAA section,*fn4 and he
has received no fewer than five salary increases and one
promotion since May 16, 1993. See Def.'s Supp. Filing in
Support of Def's Mot. to Dismiss or for Summary Judgment and
Mr. Simms appears to assert (for the first time in his
opposition papers) that he was subjected to a hostile work
environment. The claim is made too late, but it also fails to
state a claim upon which relief can be granted. A hostile work
environment claim must assert that an employee's "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." Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (citation
omitted); Barbour v. Browner, 181 F.3d 1342, 1348 (D.C.Cir.
1999) (no jury could find hostile work environment based on two
isolated incidents where plaintiff was mistreated even though
"[t]hese episodes certainly reflect poorly upon the
professionalism of [defendant's] employees"). Mr. Simms makes no
An appropriate order accompanies this memorandum.
For the reasons set forth in the accompanying memorandum, it is
this 2nd day of February 2000,
ORDERED that defendant's motion for summary judgment [# 11]