The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Igor Brodetski, *fn1 an employee with the Russian Branch of Voice of America ("VOA"), a division of the United States Information Agency ("USIA"), brought this claim against defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3 (1994), as amended ("Title VII"). Plaintiff alleged that he was subjected to harassment, a hostile work environment and discriminatory treatment in retaliation for his testimony at the equal employment opportunity ("EEO") hearing of a colleague in 1989, and for his complaints against defendants that he filed with the USIA Office of Civil Rights ("OCR") and the Equal Employment Opportunity Commission ("EEOC"). Plaintiff has moved to amend his complaint, and defendants have moved for summary judgment. Just cause exists for amendment of the complaint, and plaintiff's motion will be granted. Plaintiff's amendment, which includes seven additional incidents that parties have not had the opportunity to address in their summary judgment filings, will not be evaluated in the present summary judgment analysis.
As to the remaining incidents, because plaintiff has established a prima facie showing of retaliation with respect to his two promotion denials, and because defendants did not attempt to articulate legitimate, non-retaliatory reasons for their actions, defendants' motion for summary judgment will be denied as to these promotion denials. As to plaintiff's remaining claims of retaliation, plaintiff has failed to establish a prima facie case, and defendants' motion for summary judgment as to those claims will be granted.
Brodetski has been employed as an International Radio Broadcaster with VOA since 1984. (Compl. Ex. 1(a) at 5.) Between 1984 and 1987, VOA management gave Brodetski favorable performance ratings. (Compl. Ex. 1(b) at 2-3.) In mid-1987, Brodetski provided an affidavit in support of his colleague's harassment and retaliation claims against the VOA. In March 1989, plaintiff testified at the same colleague's EEOC hearing. (Id. at 3.)
Immediately after plaintiff's 1989 EEO activity, plaintiff began documenting incidents of defendants' alleged retaliation against him for protected EEO activity in violation of Title VII. (Compl. Ex. 1(a) at 5-17.) To date, plaintiff has filed eighty-one complaints with the OCR and EEOC against defendants, (Pl.'s Mot. #10 to Consolidate (or to Amend) at 1), almost all of which allege retaliation.
This civil action is the fourth of four that plaintiff has filed in this Court against defendants stemming from the OCR and EEOC complaints. The first, Civil Action No. 93-1610, claimed that defendants lowered his yearly evaluation rating because he had participated in EEO activity on behalf of his colleague. That case was decided by Judge Urbina on May 23, 1995 in defendants' favor. The second and third, Civil Action Nos. 98-126 and 98-732, are the subjects of other orders issued today. *fn2
Plaintiff's numerous OCR complaints that are the subjects of this case fall into four subject matter groups. In the first group, plaintiff alleged that defendants retaliated against him by denying his administrative requests and subjecting him to inconvenient administrative changes. For example, defendants twice denied plaintiff's requests for administrative leave that he claimed was necessary to conduct his EEO activities properly. (Compl. Ex. 2; Pl.'s Mot. 7/21/98.) In particular, on November 6, 1996, plaintiff alleged that defendants denied him leave to prepare for and commute to an EEOC settlement conference concerning several of his EEO complaints. (Compl. Ex. 2.) On January 22, 1998, plaintiff alleged that VOA management also "denied [him] . . . administrative leave of 8 hours so that [he] could examine the contents of . . . 30 complaints filed in the EEOC." (Pl.'s Mot. 7/21/98.)
In addition, plaintiff claimed that defendants altered the department schedule, forcing him to ask for a change in his personal schedule in order to avoid coming in two hours early for his shift. (Pl.'s Mot. 8/5/99.) Defendants denied plaintiff's request, despite allegedly granting similar requests for other employees. (Id.) Further, defendants attempted to add a new provision to the yearly evaluations, designated the "Teamwork Element," that would factor in the employee's team spirit. (Pl.'s Mot. 11/10/99.) Although defendants ultimately decided against adding the element, plaintiff claimed that this proposal was intended to punish him for his EEO activity. (Id.)
Plaintiff also filed two complaints claiming that defendants denied him his right to select a new work station based on his seniority within the office. (Pl.'s Mot. 3/27/00.) Specifically, plaintiff cited two instances when colleagues with less seniority were allowed select a new work station. He alleged that he was the only person in the office "deprived of [his] right to choose" a work station. (Id.) Plaintiff perceived all of these incidents as proof that defendants used administrative procedures to retaliate against him.
Plaintiff's second group of complaints alleged that defendants distributed the workload within the Russian Branch inequitably and unevenly, deliberately overloading him in retaliation for his EEO activity. Plaintiff points to several occasions when he claimed to have shouldered a heavier burden than his peers did. (Pl.'s Mot. 7/21/98; Pl.'s Mot. 4/23/99.) On January 15, 1998, plaintiff alleged that he was the only worker staffing the news desk, even though four or five employees normally staff the desk. (Pl.'s Mot. 7/21/98.) Plaintiff alleged that on July 1, 1998, defendants assigned him to the night shift. (Pl.'s Mot. 4/23/99.) Plaintiff documented the night shift assignments again in a memorandum dated September 9, 1998, claiming that defendants had scheduled him for twice as many night shifts as his peers. (Id.) Plaintiff acknowledged, however, that defendants balanced the distribution of night shift work in response to his complaints. (Id.)
In addition, plaintiff recounted several incidents in which he said colleagues attempted to overload him by asking him to take on additional assignments. When one colleague asked plaintiff to translate several scripts on a night when plaintiff was already assigned to announce and write, plaintiff refused. (Pl.'s Mot. 3/27/00.) When the same colleague asked him to read the news for him a few months later, plaintiff again refused. On October 23, 1999, the colleague again asked him to translate some material, but plaintiff refused a third time. The colleague allegedly complained to a supervisor about plaintiff's obstinance. (Id.) On October 31, 1999, plaintiff complained that a supervisor assigned him a large task late in the day and expected him to complete it before he left work. When he accused the supervisor of "pressing" him, she responded that "'[m]aybe the pressing is good.'" (Id.) Finally, plaintiff claimed that in response to his complaints about the extra work, defendants failed to give him enough assignments at certain times. (Id.) Plaintiff has construed all of defendants' assignment allocations as retaliatory.
Plaintiff also alleged that defendants violated "[t]he principle of equal work for equal pay" by assigning the same tasks to employees despite differences in position and salary. (Pl.'s Mot. 3/27/00.) Specifically, plaintiff claimed that he was assigned many of the same tasks as two editors in higher positions who receive higher salaries, stating, "I complain because I am forced to do the job of an employee with a higher grade which was given to the employee precisely for doing this particular job and which is not a part of my job description ANY LONGER." (Id.)
The third group of complaints involves several disputes that plaintiff had with his colleagues which defendants allegedly did not adequately respond to or try to prevent, and an alleged effort to stifle plaintiff's expression. On August 15, 1999, plaintiff alleged that a colleague was rude when he told plaintiff to leave the studio while he was observing a broadcast. (Pl.'s Mot. 8/25/99.) When plaintiff reported this confrontation, defendants did not punish the offender. (Id.) On October 20, 1999, plaintiff claimed that three co-workers were talking loudly in the office and referred to plaintiff as a "cretin." Again, defendants did not reprimand the co-workers. (Pl.'s Mot. 3/27/00.) Plaintiff repeatedly complained to defendants that a co-worker harassed him by turning up the television set near plaintiff's desk to excessive volumes. Despite the ensuing heated arguments, defendants never intervened. (Pl.'s Mot. 9/10/98.) When plaintiff learned that his co-workers took his toaster oven from the office kitchen and threw it in the trash can, defendants did not take action. (Pl.'s Mot. 3/27/00) Finally, plaintiff alleged that another co-worker harassed him by fondling his (the co-worker's) wife in plaintiff's presence. Defendants took no action when plaintiff reported the incident. (Id.)
Plaintiff further alleged that defendants criticized him for expressing his views in response to defendants' request for employee input "concerning drastic changes in furniture and schedule proposed by the Russian Branch management." Plaintiff wrote a memorandum that defendants claimed "'hurt other people's feelings.'" Defendants advised plaintiff that he should retain union counsel for a subsequent discussion on the matter. Plaintiff maintained that the memorandum was perfectly "ethical and polite," and that the only reason defendants reprimanded him was in retaliation for his EEO activity. (Id.)
The fourth group of complaints addresses defendants' refusals to promote plaintiff on two separate occasions, allegedly because of his EEO activity. (Compl. at 5.) Plaintiff applied for two different vacancies within the Russian Branch that were posted in March 1994. He was invited to interview for one of the openings and made a specific point of informing the selection panel of his protected EEO activity. Despite plaintiff's efforts, he was not offered either position. (Id.) He also claimed that he was better qualified than both of the candidates who were selected because he specializes in Russian, while the two selected candidates do not. (Compl. Ex. 1(a) App. 1 at ¶ 21.) Plaintiff stated that he is the "only person who never got a Grade promotion, the reason being his protected activity which went contrary to the Agency's management's wishes." (Compl. at 5.) Plaintiff brought this suit after exhausting his administrative remedies by submitting these complaints to the OCR and, subsequently, filing appeals on the complaints at issue with the EEOC. Plaintiff now appeals to this Court pursuant to 29 C.F.R. § 1614.110(b) (West 2000), and seeks to add new incidents to this case.
MOTION TO CONSOLIDATE OR TO AMEND
Plaintiff filed a motion to consolidate or to amend, seeking to join to the complaint seven additional incidents of alleged retaliation that have occurred since he filed this action. (Pl.'s Mot. #10 to Consolidate (or to Amend) at 1.) *fn3
Five of these incidents involve work assignments, whereby defendants allegedly distributed the workload inequitably to burden plaintiff in retaliation for plaintiff's EEO activity. The remaining two incidents involve disputes between plaintiff and his colleagues, which defendants allegedly did not try to prevent. Plaintiff asserts that the additional incidents, like the incidents alleged in his original complaint, reflect a continuing pattern of workplace retaliation through defendants' disproportionate assignment of work duties to plaintiff and defendants' general campaign against plaintiff's EEO activities. Defendants oppose consolidation, claiming that the new incidents are not the subject of an action pending before the court as required under Fed. R. Civ. P. 42(a), and that the new incidents and the incidents in the original complaint do not involve a common question of law and fact. (Def.'s Opp'n to Pl.'s Mot. #10 to Consolidate (or to Amend) at 3-4.) Construing plaintiff's motion as one to amend, and finding amendment proper, I will grant this motion.
While the right to amend or supplement the original pleading is not automatic, see Foman v. Davis, 371 U.S. 178, 182 (1962), "leave [of the court] shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Factors to consider in evaluating a motion to amend include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman, 371 U.S. at 182. At the same time, "refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion." Id.
Defendants do not address the substance of the individually alleged incidents in their opposition to plaintiff's motion and offer no argument that the amendment would unduly prejudice them. Therefore, plaintiff's motion to amend will be granted. However, although there is no indication that plaintiff inordinately delayed moving to amend or that plaintiff acted in bad faith, the Court cautions that any subsequent motions by plaintiff to add additional ...