For the reasons which follow, the court will grant the motion
for summary judgment and will dismiss the complaint in its
entirety with prejudice.
Tyrone Lloyd Walker is a 58-year-old African-American man who
has been employed by WMATA since June 1970. See Compl. ¶ 11;
Def.'s Statement of Material Facts as to Which There is No
Genuine Issue ("Def.'s SMF") ¶ 2; Def.'s Mot. for Summ. J. at 3.
In May 1992, Mr. Walker filed a discrimination charge against
WMATA with the EEOC that ultimately ended with a settlement in
April 1993.*fn2 See Compl. ¶ 12; Def.'s SMF ¶¶ 7, 25.
The instant action arises out of the events of July 13, 1998,
when Mr. Walker was working as Station Manager at the Arlington
Cemetery Metrorail Station in Virginia. See Compl. ¶ 5; Def.'s
SMF ¶ 4; Def.'s Mot. for Summ. J. at 1. On that day, a female
patron asked Mr. Walker for directions and, he says, began
rubbing his arm. See id. Mr. Walker asked the female patron to
stop rubbing his arm, and when she did not stop, Mr. Walker
became upset and yelled at her. See Compl. ¶ 13; Def.'s SMF ¶
3. As related by WMATA, the patron's account of the incident is
different; the patron complained that Mr. Walker was rude in
response to her request for directions and "tried to embarrass
her." See Def.'s Mot. for Summ. J. at 3. As a result, WMATA
reprimanded Mr. Walker by issuing a Notice of Caution and
Reinstruction against him on August 4, 1998. See Compl. ¶ 13;
Def.'s SMF ¶ 5. Believing that WMATA had issued the disciplinary
notice unlawfully, Mr. Walker filed a discrimination charge with
the EEOC on August 25, 1998. See Compl. ¶ 16; Def.'s SMF ¶ 5.
One month later, WMATA rescinded the Notice of Caution and
Reinstruction on September 24, 1998.*fn3 See Compl. ¶ 17;
Def.'s SMF ¶ 10. WMATA states, and Mr. Walker does not contest,
that the rescinded Notice can have no effect on his work duties,
salary, benefits or opportunities for training or promotion.
See Def.'s Mot. for Summ. J. at 3-4; Def.'s SMF ¶¶ 8-10.
In his complaint, Mr. Walker alleges that WMATA racially
discriminated and retaliated against him in violation of Title
VII. See Compl. ¶¶ 14, 15, 16. First, Mr. Walker contends that
WMATA issued the disciplinary notice on the basis of his race and
gave disparate treatment to a white co-worker in a similar
situation.*fn4 Id. ¶¶ 14, 15. Second, Mr. Walker contends that
WMATA issued the disciplinary notice in retaliation for his 1992
EEOC charge rather than as a genuine response to the patron's
III. LEGAL STANDARD
Summary judgment is appropriate when "there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law." FED. R. CIV. P. 56(c). The
substantive law upon which
a claim rests determines which facts are "material." See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986); Skelton v. ACTION, 668 F. Supp. 25,
28 (D.D.C. 1987), aff'd, 1988 WL 156306 (D.C.Cir. 1988). If a
fact bears upon an essential element of the legal claim, then it
is material; otherwise, it is not. See Anderson, 477 U.S. at
248, 106 S.Ct. 2505; Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Skelton, 668
F. Supp. at 28. Only disputes over facts that can establish an
element of the claim, and thus might affect its ultimate
resolution, can create a "genuine issue" sufficient to preclude
summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct.
2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
To prevail on a motion for summary judgment, the moving party
bears the burden of establishing that there are no genuine issues
of material fact and that the nonmoving party has failed to offer
sufficient evidence to support a valid legal claim. See
Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S.
at 325, 106 S.Ct. 2548. In ruling on the motion, the court must
accept the factual allegations of the nonmoving party as true and
must draw all justifiable inferences therefrom in favor of the
nonmoving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
It is not sufficient, however, for the nonmoving party to
establish "the mere existence of a scintilla of evidence in
support of the [nonmoving party's] position . . . there must be
evidence on which the jury could reasonably find for the
[nonmoving party]." Id. at 252, 106 S.Ct. 2505; Borgo v.
Goldin, 204 F.3d 251, 254 (D.C.Cir. 2000). If the evidence in
favor of the nonmoving party "is merely colorable, or is not
significantly probative, summary judgment may be granted."
Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal
Applying the foregoing standard, the court concludes that there
are no genuine issues of material fact and the defendant is
entitled to judgment as a matter of law.
Claims for Discrimination and Retaliation Fail for Lack of
"Adverse Employment Action" under both Title VII and DCHRA
WMATA moves to dismiss Mr. Walker's discrimination claim on the
ground that he has not made out a prima facie case of
discrimination. WMATA contends, inter alia, that the
disciplinary action taken against Mr. Walker (the Notice of
Caution and Reinstruction) does not constitute an adverse
employment action within the meaning of Title VII. The court
agrees with the defendant on this point.
Title VII Requires Adverse Employment Action. Under the
framework laid out in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII
plaintiff is first required to establish a prima facie case of
racial discrimination by demonstrating that "(1) the plaintiff is
a member of a protected class; (2) the plaintiff has suffered an
adverse employment action; and (3) other similarly situated
employees from outside the protected class were not subject to
that action." McDonnell, 411 U.S. at 802-805, 93 S.Ct. 1817;
Brown v. Brody, 199 F.3d 446, 455 (D.C.Cir. 1999) (emphasis
added); Keith v. Duffey, 77 F. Supp.2d 46, 50 (D.D.C. 1999);
accord Nichols v. Comcast Cablevision of Maryland, 84 F. Supp.2d 642,
653 (D.Md. 2000). Similarly, to establish a prima facie
case of retaliation under Title VII, the plaintiff must
demonstrate an adverse employment action. See Cones v. Shalala,
199 F.3d 512, 520 (D.C.Cir. 2000); Childers v. Slater,
44 F. Supp.2d 8, 18 (D.D.C. 1999); accord Settle v. Baltimore
County, 34 F. Supp.2d 969, 993 (D.Md. 1999), aff'd,
203 F.3d 820 and 203 F.3d 822 (4th Cir. 2000).
DCHRA Requires Adverse Employment Action. Likewise, "the
legal analysis of a DCHRA claim follows the
pattern established" by McDonnell Douglas for Title VII claims.
See Johnson v. Curtis Dworken Chevrolet, 242 B.R. 773, 779
(D.D.C. 1999). Consequently, to sustain a claim of discrimination
or retaliation under the DCHRA, Mr. Walker must allege an adverse
employment action. See Carpenter v. Federal National Mortgage
Ass'n., 174 F.3d 231, 236 n. 3 (D.C.Cir.) (DCHRA retaliation
claim) (citing Arthur Young & Co. v. Sutherland, 631 A.2d 354,
368 (D.C. 1993)), cert. den., ___ U.S. ___, 120 S.Ct. 184, 145
L.Ed.2d 155 (1999); see, e.g., King v. Georgetown University
Hospital, 9 F. Supp.2d 4, 6 (D.D.C. 1998) (granting summary
judgment to employer on DCHRA discrimination claim where employee
showed her job responsibilities were altered but could not show
any change in her salary, benefits or job grade); Hunter v. Ark
Restaurants Corp., 3 F. Supp.2d 9, 20 (D.D.C. 1998) (granting
summary judgment to employer on DCHRA retaliation claim because
supervisors' scolding employee and filing disciplinary write-ups
against him had no "demonstrably adverse employment
The Plaintiff Has Failed to Allege an Adverse Employment
Action. An employee must show that he has "suffered an adverse
personnel action in order to establish a prima facie case of
disparate-treatment discrimination." Brown v. Brody,
199 F.3d 446, 455 (D.C.Cir. 1999); Bailey v. Henderson, 2000 WL 488466,
*3 (D.D.C. 2000); accord Nichols v. Comcast Cablevision of
Maryland, 84 F. Supp.2d 642, 653 (D.Md. 2000).
While this circuit has not exhaustively defined what
constitutes an adverse employment action under Title VII, "courts
have consistently focused on ultimate employment decisions such
as hiring, granting leave, promoting, and compensating . . . [and
not] interlocutory or intermediate decisions having no immediate
effect upon employment decisions." Taylor v. FDIC,
132 F.3d 753, 764 (D.C.Cir. 1997); see also Mungin v. Katten, Muchin &
Zavis, 116 F.3d 1549, 1557 (D.C.Cir. 1997) (court found that a
transfer that does not involve a demotion in form or substance
was not an adverse personnel action); Carpenter v. Federal Nat'l
Mortgage Ass'n, 949 F. Supp. 26, 28 n. 3 (D.D.C. 1996) (noting
that a significant decrease in material responsibilities
constitutes an adverse personnel action); Kilpatrick v. Riley,
2000 WL 708391, *11 (D.D.C. 2000). "There are many interlocutory
or mediate decisions having no immediate effect upon employment
conditions which were not intended to fall within the
proscriptions of Title VII." Page v. Bolger, 645 F.2d 227, 233
(4th Cir.), cert. den., 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d
206 (1981); see, e.g., Von Gunten v. Maryland Dep't. of the
Environment, 68 F. Supp.2d 654 (D.Md. 1999) (dismissing Title VII
retaliation claim on ground that employer did not take adverse
action by taking away employee's official vehicle, according
extra scrutiny to her reports and giving her unsatisfactory job
On the other hand, this court has recognized that "an employee
need not be fired, demoted or transferred" to constitute an
adverse personnel action. See Gary v. WMATA, 886 F. Supp. 78, 90
For example, the courts have held that comments directed at an
employee may constitute adverse personnel action if they are so
egregious as to "alter the conditions of employment." See
Patterson v. McLean Credit Union, 491 U.S. 164, 179, 109 S.Ct.
2363, 105 L.Ed.2d 132 (1989) (holding that racial harassment was
an adverse employment action since it affected a "term,
condition, or privilege of employment"); see, e.g., Henry v.
Guest Servs., Inc., 902 F. Supp. 245, 251 (D.D.C. 1995) (holding
that management personnel jokes directed at the plaintiff's
depression were not severe enough to constitute adverse
employment action), aff'd, 98 F.3d 646 (D.C.Cir. 1996); see
also Passer v. American Chemical Soc'y, 935 F.2d 322, 331
(D.C.Cir. 1991) (cancellation of an employee's public symposium
was an adverse personnel action); Blake v. Johns Hopkins
University, 1994 WL 617294 (D.Md. 1994) (not allowing an
employee to make up time when he was late "arguably constitutes
an adverse employment action").
An employment decision does not rise to the level of an
actionable adverse action, however, unless there is a "tangible
change in the duties or working conditions constituting a
material employment disadvantage." Kilpatrick, 98 F. Supp.2d 9,
10; see also Brown v. Brody, 199 F.3d 446, 456 (D.C.Cir. 1999);
Childers v. Slater, 44 F. Supp.2d 8, 19 (D.D.C. 1999). In sum,
for there to be an adverse employment action, there must be a
"significant change in employment status." Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d
633 (1998) (noting that a tangible employment action in most
cases inflicts direct economic harm).
Mr. Walker alleges that WMATA took an adverse personnel action
against him by issuing a Notice of Caution and Reinstruction
(which it rescinded shortly thereafter). In Brown v. Brody,
199 F.3d 446, 458 (D.C.Cir. 1999), the D.C. Circuit squarely held
that a letter of admonishment, strikingly similar to the
disciplinary notice filed against Mr. Walker, did not constitute
an adverse personnel action because it affected neither the
appellant's grade nor his salary. Similarly, in Johnson v.
Danzig, 2000 WL 458887, *2 (4th Cir. 2000), the Fourth Circuit
held that a letter of reprimand and admonishment was not an
actionable adverse employment action. Accord Mattern v. Eastman
Kodak Co., 104 F.3d 702, 708 (5th Cir.), cert. den.,
522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997); Lucas v. Cheney,
821 F. Supp. 374, 376 (D.Md. 1992) (holding that a letter of
reprimand did not "represent an adverse employment action within
the scope of Title VII"), aff'd, 991 F.2d 790 (4th Cir. 1993).
The mild disciplinary notice filed against Mr. Walker did not
effect any material change in his title, duty, salary, benefits,
or working hours, nor does he so allege. Cf. Medina v.
Henderson, 1999 WL 325497, *1 (D.C.Cir. 1999) (holding that even
a change in assignment or work-related duties did not constitute
an adverse employment action if unaccompanied by a decrease in
salary or workhour changes). Moreover, it bears emphasizing that
WMATA rescinded the disciplinary notice shortly after it was
Thus, the court finds that WMATA's rescinded August 1998 Notice
of Caution and Reinstruction was not an adverse personnel action
within the intendment of Title VII.*fn6 Since Mr. Walker fails
to satisfy this element of a prima facie case of discrimination
and retaliation, the court will dismiss his claims that the
disciplinary notice constituted actionable racial discrimination
or retaliation. Cf. Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.
For the foregoing reasons, the court will grant the defendant's
motion for summary
judgment. An Order directing the parties in a fashion consistent
with this Memorandum Opinion is separately and contemporaneously
executed on this 20 day of June 2000.
Granting the Defendant's Motion for Summary Judgment; Vacating
Status Hearing; Terminating Case
For the reasons set forth in this court's separately and
contemporaneously executed Memorandum Opinion,
it is this 20 day of June 2000,
ORDERED that the defendant's motion for summary judgment is
hereby GRANTED; and it is
FURTHER ORDERED that the complaint is DISMISSED with
prejudice; and it is
ORDERED that the status hearing scheduled for June 29, 2000
is hereby VACATED.
The Clerk shall terminate this case and remove it from this
THIS IS A FINAL AND APPEALABLE ORDER.