was compensated through sick leave funds and workers'
compensation until her mandatory retirement in May 2000. See
Mot. for Summ. J. at 6.
After the parties unsuccessfully tried to mediate, Ms. Raymond
filed a complaint in the United States District Court on April
25, 2000. The defendant filed a motion to dismiss on June 26,
2000. The plaintiff then submitted her first amended
complaint.*fn2 Thereafter, the plaintiff submitted a third
and fourth amended complaint.*fn3 On March 13, 2001, the
defendant moved for summary judgment. To date, no discovery has
A. Legal Standard
Summary judgment is appropriate when the pleadings and
evidence demonstrate that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a
matter of law. See FED. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir. 1995).
To determine what facts are "material," a court must look to the
substantive law on which each claim rests. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution
could establish an element of a claim or defense, and therefore,
affect the outcome of the action. See Celotex, 477 U.S. at
322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct.
In ruling on a motion for summary judgment, the court must
draw all justifiable inferences in the nonmoving party's favor
and accept the nonmoving party's evidence as true. See
Anderson, 477 U.S. at 255, 106 S.Ct. 2505. All evidence and the
inferences drawn therefrom must be considered in the light most
favorable to the nonmoving party. A nonmoving party, however,
must establish more than "the mere existence of a scintilla of
evidence" in support of its position. Anderson, 477 U.S. at
252, 106 S.Ct. 2505. To prevail on a motion for summary
judgment, the moving party must show that the nonmoving party
"fail[ed] to make a showing sufficient to establish the
existence of an element essential to that party's case, and in
which that party will bear the ultimate burden of proof at
trial." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. By pointing
to the absence of evidence proffered by the nonmoving party, a
moving party may succeed on summary judgment. See id.
1. Pre-Discovery Summary Judgment
A party against whom a claim is alleged may move for summary
judgment at any time. See FED. R. CIV. P. 56(b). In Celotex,
the Supreme Court explained that there must be "adequate time
for discovery" to determine whether summary judgment is
appropriate. See 477 U.S. at 322, 106 S.Ct. 2548. If there is
insufficient evidence indicating that a jury could return a
favorable verdict for the nonmoving party, however, then summary
proper. See National Geographic Soc'y v. International Media
Assoc., Inc., 732 F. Supp. 4, 4 (D.C. 1990).
Appellate courts disagree on the meaning of "adequate time for
discovery" and, more specifically, whether pre-discovery
summary-judgment motions are necessarily premature. Some
circuits hold that discovery does not have to be complete to
grant a motion for summary judgment. See Alholm v. American
Steamship Co., 144 F.3d 1172, 1176-1177 (8th Cir. 1998) (the
district court did not abuse its discretion by hearing a motion
for summary judgment before discovery was scheduled to end,
because the plaintiff did not move for a continuance and had
"ample opportunity" to secure the information he sought prior to
the hearing on the motion); see also Brill v. Lante Corp.,
119 F.3d 1266, 1275 (7th Cir. 1997) (holding that a motion for
summary judgment made before discovery has ended is appropriate
in the absence of a genuine issue of material fact). Other
courts reserve pre-discovery summary judgment for exceptional
circumstances. See Patton v. General Signal Corp., 984 F. Supp. 666,
669 (W.D.N.Y. 1997).
In this case, the parties have not begun discovery. Based on
the complaint and the plaintiffs affidavits in opposition to the
motion for summary judgment, however, the plaintiff fails to
present any genuine issues of material fact. Even if given the
opportunity to conduct discovery, the plaintiff would not be
able to establish a prima-facie case for any of her claims.
Accordingly, this case falls into the unusual category in which
the court will grant the defendant's motion for summary judgment
before any discovery has begun.
1. Count I: Discrimination on the Basis of Race
The plaintiff alleges that she was discriminated against based
on her race. Specifically, she claims that other Capitol Police
officers issued parking tickets only to African-American
officers. See Compl. ¶¶ 19-20. The defendant argues that the
plaintiff has not suffered an adverse employment action and,
therefore, cannot establish a prima-facie case of racial
discrimination. See Mot. for Summ. J. at 9.
Under the McDonnell Douglas framework, the plaintiff has the
burden of proving by a preponderance of the evidence a
prima-facie case of discrimination.*fn4 The plaintiff must
establish that: (1) she is a member of a protected class; (2)
she suffered an adverse employment action; and (3) similarly
situated employees not within the same class were not subjected
to the same action by the employer. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288
(D.C.Cir. 1998) (en banc). If the plaintiff succeeds in making
a prima-facie case, the burden then shifts
to the employer to articulate a non-discriminatory reason for
its action. At this stage, the employer's burden is merely one
of production. See Burdine, 450 U.S. at 254-55, 101 S.Ct.
1089. If the employer is successful, the burden shifts back to
the plaintiff to show that the defendant's proffered reasons are
pretextual and that unlawful discrimination was the actual
reason for the action. See McDonnell Douglas, 411 U.S. at
802-05, 93 S.Ct. 1817.
In this Circuit, however, the plaintiff is not required to set
forth the elements of a prima-facie case at the initial pleading
stage. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1114 (D.C.Cir. 2000). In Sparrow, the D.C. Circuit held:
In sum, we agree with the conclusion reached by Judge
Easterbrook in Bennett[v. Schmidt, 153 F.3d 516
(7th Cir. 1998)]: "Because racial discrimination in
employment is `a claim upon which relief can be
granted,' . . . `I was turned down for a job because
of my race' is all a complaint has to say" to survive
a motion to dismiss under Rule 12(b)(6).
Id. at 1115 (citation omitted). As the D.C. Circuit also noted
in Sparrow, however, a plaintiff can actually plead too much,
effectively pleading "himself out of court by alleging facts
that render success on the merits impossible." See id. at
1. The Parking Tickets Were Not an Adverse Employment
In determining whether something constitutes an adverse
employment action, "[c]ourts applying Title VII have
consistently focused on `ultimate employment decisions such as
hiring, granting leave, discharging, 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) (quoting Page v.
Bolger, 645 F.2d 227, 233 (4th Cir. 1981)). This court has
recognized that "an employee need not be fired, demoted or
transferred to make out a case of retaliation." Gary v. WMATA,
886 F. Supp. 78, 90 (D.C. 1995). An adverse action is not
actionable under Title VII, however, unless there is a tangible
change in responsibilities or working conditions that
constitutes a material employment disadvantage. See Kilpatrick
v. Riley, 98 F. Supp.2d 9, 21 (D.C. 2000) (Urbina, J.);
Childers v. Slater, 44 F. Supp.2d 8, 19 (D.C. 1999) (Urbina,
J.). For example, the D.C. Circuit recently explained that even
a lateral transfer may be actionable: "It is not enough to ask
whether the transfer was purely lateral. We must also ask if
other changes in terms, conditions, or privileges followed from
the transfer." Freedman v. MCI Telecomm. Corp., 255 F.3d 840,
843 (D.C.Cir. 2001).
In this case, the dispute centers on whether the plaintiff is
entitled to receive a courtesy. Simply put, the court holds that
the failure to receive a courtesy, without more, does not
constitute an adverse action under Title VII. In Bailey v.
Henderson, the court rejected the proposition that a male
employee's refusal to transport a female employee in his car to
receive medical attention was an actionable adverse employment
action. See Bailey v. Henderson, 94 F. Supp.2d 68, 73 (D.C.
2000). Rather, the court held "discrimination cannot be based on
this conduct because the failure to receive a courtesy . . . is
not an adverse employment action." Id.
In this case, the plaintiff claims that she was issued parking
tickets based on her race. See Compl. ¶ 19. The tickets do not
constitute an adverse employment action for two reasons: (1) the
plaintiff has never contested that she was parked
illegaily in a zone without a permit, and that the ticket was
therefore proper; and (2) upon her request, both tickets were
cancelled and the plaintiff was not required to pay the fines.
Even the cases relied on by the plaintiff demonstrate that some
type of tangible harm must form the basis for an adverse
employment action. See Pl.'s Opp'n at 14, 15. For example, the
plaintiff cites Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.
1999), which involved a lateral transfer, for the proposition
that "[a plaintiff] does not suffer an actionable injury unless
there are some other material adverse consequences affecting the
terms, conditions, or privileges of her employment or her future
employment opportunities such that a reasonable trier of fact
could conclude that the Plaintiff suffered objectively tangible
harm." Pl.'s Opp'n at 14. She also relies on Page v. Bolger,
645 F.2d 227, 233 (4th Cir. 1981), which held that "hiring,
granting leave, discharging, promoting and compensating"
constitute personnel actions. See Pl.'s Opp'n at 15.
The facts of this case stand in stark contrast to those in
Brown and Page. Two withdrawn tickets do not amount to
tangible harm. The plaintiff was not required to pay these
tickets. In addition, the plaintiff does not dispute that the
tickets had no effect on the plaintiffs work evaluation.
In sum, even under the liberal pleading standard articulated
by the D.C. Circuit in Sparrow, the plaintiff has essentially
pleaded too much. That is, even assuming all her allegations to
be true, she still could not establish an adverse employment
action. See Sparrow, 216 F.3d at 1116. Accordingly, the court
grants the defendant's motion for summary judgment on Count I.
2. Count II: Hostile Work Environment
The plaintiffs next claim is that the defendant's failure to
discipline Officer McGeown for his derogatory comment, coupled
with "continued harassment" from fellow Capitol Police Officers,
created a hostile work environment. See Compl. ¶ 22.
Furthermore, the plaintiff claims that the hostile work
environment caused her severe mental distress. See id. While
the defendant does not dispute this incident, the defendant
argues that this single incident does not rise to the level of
hostility required for a hostile work environment. See Mot.
for Summ. J. at 14.
Title VII makes it unlawful for an employer to "discriminate
against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or nation of origin."
42 U.S.C. § 2000e-2(a)(1). "Terms, conditions, or privileges"
encompass tangible as well as psychological harm. See Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399,
91 L.Ed.2d 49 (1986). In addition, the Supreme Court has held
that "[w]hen the 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, Title VII is violated."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367,
126 L.Ed.2d 295 (1993) (quotation omitted).
To establish a claim of a hostile work environment based on
race, a plaintiff must demonstrate: "(1) that he or she suffered
intentional discrimination because of race; (2) the
discrimination was pervasive and regular; (3) the discrimination
detrimentally affected the plaintiff; (4) the discrimination
would detrimentally affect a reasonable person of the same race
in that position; and (5) the existence of respondeat superior
liability." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,
1081 (3d Cir. 1996). To determine
whether a hostile work environment exists, a court must look at
the totality of the circumstances, including the frequency of
the discriminatory conduct, its severity, its offensiveness, and
whether it interferes with the employee's work performance. See
Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct.
2275, 141 L.Ed.2d 662 (1998); Harris, 510 U.S. at 23, 114
S.Ct. 367. While the plaintiff is not required to plead a
prima-facie case of hostile work environment in the complaint,
the alleged facts must be able to support such a claim. See
Sparrow, 216 F.3d at 1114. In addition, the Supreme Court has
circumscribed the definition of a hostile work environment so
that "[t]hese standards for judging hostility are sufficiently
demanding to ensure that Title VII does not become a `general
civility code.'" Faragher, 524 U.S. at 788, 118 S.Ct. 2275
The D.C. Circuit has set forth a standard to evaluate employer
liability for co-worker harassment. See Curry v. District of
Columbia, 195 F.3d 654, 660 (D.C.Cir. 1999). Specifically, an
employer is liable for co-worker harassment if "the employer
knew or should have known of the harassment and failed to
implement prompt and appropriate corrective action." Id. This
standard applies to co-workers who are not in supervisory
positions. See id.
In this case, the plaintiff has pleaded too many facts,
demonstrating the weakness of her hostile work environment
claim. See Sparrow, 216 F.3d at 1116. The totality of the
circumstances indicates the following: there was one isolated,
derogatory comment; the plaintiff allegedly received the cold
shoulder from other officers; one day elapsed between the
comment and the time the plaintiff left work permanently; and
Sergeant Gerber promptly disciplined Officer McGeown. In short,
the plaintiff will not be able to show conduct that is
"sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working
environment."*fn5 Harris, 510 U.S. at 22, 114 S.Ct. 367;
see also Russ v. Van Scoyoc Assoc., Inc., 122 F. Supp.2d 29, 32
(D.C. 2000) (holding that in the absence of physical contact,
sexually explicit and offensive comments were insufficient to
substantiate a hostile work environment claim).
The plaintiff also argues that the defendant failed to
discipline Officer McGeown, and therefore violated Title VII.
See Pl.'s Opp'n at 20. Specifically, the plaintiff alleges
that Officer McGeown has a "history of insulting members of the
African American race" and therefore, the defendant knew or
should have known that Officer McGeown would make a derogatory
comment. See id. The plaintiff, however, misreads this
Circuit's precedent. Even if the defendant should have known of
the harassment, the defendant took prompt action to discipline
Officer McGeown. See Curry v. District of Columbia,
195 F.3d 654, 660 (D.C.Cir. 1999) (stating that a defendant is liable for
coworker harassment if the employer knew or should have known of
the harassment and failed to correct the situation).
Specifically, Sergeant Gerber questioned a Capitol Police
Officer about the incident the following day. See Pl.'s Opp'n
at 4-5. Furthermore, the defendant provides a time and
attendance sheet for Officer McGeown dated a week after the
which indicates a deduction of eight hours of accrued
leave.*fn6 See Mot. for Summ. J., Ex. 6. By promptly
disciplining Officer McGeown, the defendant complied with this
Circuit's interpretation of what Title VII requires. See
Curry, 195 F.3d at 660. Considering the defendant's compliance
and the demanding standards that the court must apply when
examining a claim of hostile work environment, the plaintiff
cannot substantiate her claim. See Faragher, 524 U.S. at 788,
118 S.Ct. 2275. Accordingly, the court grants the defendant's
motion for summary judgment on Count II.
3. Count III: Reprisal
Lastly, the plaintiff alleges that the defendant retaliated
against her for challenging the parking tickets and for filing a
complaint with the Capitol Police Office of Compliance, alleging
discrimination and reprisal. See Compl. ¶ 24. Specifically,
she claims that fellow officers gave her the cold shoulder, and
while she was on sick leave, the Capitol Police Board withheld
her paycheck and then forced her into retirement. See id. ¶
28; Pl.'s Opp'n at 23. In response, the defendant argues that
coworker ostracism is not an adverse employment action, and,
therefore, the plaintiff cannot establish a prima-facie case of
reprisal. See Mot. for Summ. J. at 20-21. The defendant also
maintains that it compensated the plaintiff in accordance with
Capitol Police policies, specifically through sick leave funds
and workers' compensation. See id. at 19. In addition, the
defendant notes that the plaintiff was retired as required by
statute. See id. at 18.
To establish a retaliation claim under Title VII, a plaintiff
must demonstrate that: (1) the plaintiff engaged in protected
activity; (2) the plaintiff suffered an adverse personnel
action; and (3) a causal link existed between the protected
activity and the employment action. See Jones v. WMATA,
205 F.3d 428, 433 (D.C.Cir. 2000). As discussed above, an adverse
employment action is not actionable unless it results in a
tangible change in the employee's benefits or working
conditions. See Childers, 44 F. Supp.2d at 19; Kilpatrick,
98 F. Supp.2d at 21.
a. Co-Worker Ostracism
The plaintiff alleges that other Capitol Police officers
ostracized her for challenging the parking tickets on racial
grounds. See Compl. ¶ 24. But the defendant correctly counters
that co-worker ostracism does not constitute an adverse
employment action. See Mot. for Summ. J. at 19-21. "The fact
that plaintiff believes she was getting the cold shoulder from
her coworkers does not constitute a materially adverse
consequence or disadvantage in the terms and conditions of her
employment so as to establish an adverse personnel action."
Roberts v. Segal Co., 125 F. Supp.2d 545, 549 (D.C. 2000);
accord Brooks v. San Mateo, 229 F.3d 917, 929 (9th Cir. 2000).
In this case, the plaintiff left work the same day that the
alleged ostracism began. While the court does not diminish the
impact of such alleged
treatment, there was no material change in the conditions of the
b. Paycheck and Retirement Benefits
Next, the plaintiff claims that the defendant retaliated
against her by withholding the plaintiffs paycheck while she was
on stress-related sick leave. See Compl. ¶¶ 26-28. During this
time, however, the plaintiff was compensated through sick leave
funds and workers' compensation. See Mot. for Summ. J. at 19,
Ex. 2-4. Moreover, the plaintiff does not deny that she was
compensated through her sick leave and that she was advanced
sick-leave time. See Pl.'s Opp'n at 21 n. 1. Accordingly, this
allegation does not amount to an adverse employment action. See
Childers, 44 F. Supp.2d at 19.
The plaintiff also charges that the defendant forced her into
retirement. Specifically, she claims that she was not notified
of her mandatory retirement and that she did not consent to
retire. See Pl.'s Opp'n at 22. In addition, she says she was
not released by her doctor before she was "summarily" retired.
See id. This claim also lacks support. The Capitol Police
Retirement Act mandates retirement when:
A member of the Capitol Police who is otherwise
eligible for immediate retirement under section
8412(d) shall be separated from the service on the
last day of the month in which such member becomes 57
years of age or completes 20 years of service if then
over that age . . . The Board shall notify the member
in writing of the date of separation at least 60 days
before that date. Action to separate the member is
not effective, without the consent of the member,
until the last day of the month in which the 60-day
5 U.S.C. § 8425(c). The plaintiff turned 57 on May 23, 2000. On
March 6, 2000, more than 60 days before the date of separation,
the Office of the Chief of the Capitol Police sent the plaintiff
a letter informing her that May 31, 2000 was her mandatory
retirement date and suggesting that the plaintiff contact the
employee benefits specialist in the Capitol Police Employee
Services Section to discuss her retirement. See Reply, Ex. 2.
Without receiving the completed retirement papers from the
plaintiff, the defendant retired her on May 31, 2000. The
plaintiff admits that she did not sign the necessary paperwork
to receive her retirement annuity and states that she did not
consent to retirement. See Raymond Aff. at 3. Title 5,
however, mandates retirement on the last day of the month in
which an officer turns 57 years old, with or without the
officer's consent. See 5 U.S.C. § 8425(c). Accordingly, an
unambiguous statute dictated the defendant's actions, and,
therefore, those actions do not constitute an adverse employment
Lastly, the plaintiff claims that she was retired without
being released by her doctor. See Pl.'s Opp'n at 22. The
plaintiff, however, fails to provide any support for the notion
that a doctor's release is a prerequisite to mandatory
retirement. Title 5 U.S.C. § 8425(c) does not mention such a
requirement. It is the plaintiffs responsibility to apply for
benefits, not the defendant's. Accordingly, because the
defendant complied with Title 5 U.S.C. § 8425(c), there was no
adverse employment action, and the court grants the defendant's
motion for summary judgment on Count III.
For all these reasons, the court grants the defendant's motion
for summary judgment on all counts. An order directing the
parties in a fashion consistent with this Memorandum Opinion is
contemporaneously issued this 26th day of July, 2001.
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
For the reasons stated in this court's Memorandum Opinion
separately and contemporaneously issued this 26th day of July,
2001, it is
ORDERED that the defendants' motion for summary judgment
shall be and hereby is GRANTED.