and persistence of the parties, the lawyers, and alternative dispute
resolution, only three plaintiffs remain in the case.
The defendants have filed motions for summary judgment against all
three remaining plaintiffs. In this case, the defendants move for summary
judgment on all claims of Carolyn Green ("the plaintiff" or "Ms.
Green"). For the reasons that follow, the court will grant the
defendants' motion for summary judgment.
Carolyn Green has worked for Bell Atlantic-Maryland, Inc. ("Bell
Atlantic") from October 26, 1977 until the present. See Mot. for Summ.
J. at 3. She began as a directory assistance operator, received a
promotion to customer service representative in 1979, and remained in that
position until 1986, when she received a promotion to Frame Attendant. See
id. On February 25, 1990, Ms. Green received a promotion to Central
Office Technician ("COT"), and on June 29, 1997, she received a promotion
to Engineering Assistant. See id. On December 1, 1999, the company
promoted her to management (Specialist), where she currently remains. See
In April 1991, the company assigned Ms. Green, then a COT, to the Voice
Mail crew, which maintains and monitors the company's voice-mail system.
See Mot. for Summ. J. at 3. In February 1996, Bell Atlantic manager Peter
Bogdan made the decision to reassign Ms. Green from the Voice Mail crew
to the Electronic Switching Team ("5ESS team"). See id. at 4. The parties
offer different reasons from Mr. Bogdan's decision. The plaintiff charges
that "unlike similarly situated white associates in Ms. Green's
workgroup, she was not asked whether or not she would voluntarily accept
reassignment to the electronic switching system team. . . ." See Pl.'s
Statement of Material Facts As to Which There Are Genuine Disputes
("Pl.'s Statement") at 1.
The defendants counter that one technician needed to be reassigned
because there was a sufficient amount of work to keep all the voice-mail
technicians busy while the 5ESS team needed more workers to meet its
demands. See Mot. for Summ. J. at 4. Bell Atlantic explains that when
reassigning associates, Mr. Bogdan normally investigates whether one
employee has job knowledge "that would make that associate a logical
choice for reassignment." See id. If no employee fits this description,
Mr. Bogdan asks for volunteers. See id. If no employee volunteers, he
then selects the crew member with the least seniority at Bell Atlantic.
See id. In this case, the company states that no technician had
specialized job knowledge, nobody volunteered for the reassignment, and
Mr. Bogdan simply selected Ms. Green because she had the least tenure at
Bell Atlantic. See id. at 4-5. The company says "Green's reassignment did
not affect her title, pay or benefits." Id. at 5.
Ms. Green makes a number of allegations against Bell Atlantic. First,
she claims she was segregated from her white co-workers, and excluded
from company parties, anniversaries of co-workers, and recognition
breakfasts. See Pl.'s Statement at 2. Second, Ms. Green claims she
requested but was denied on-the-job training. See id. Third, she alleges
that the company retaliated against her when Mr. Bogdan involuntarily
transferred her to the 5ESS team. See id. Fourth, Ms.
Green claims the company denied her equal access to the tools and
facilities associated with her job, such as a personal computer and, in
some instances, a desk phone. She also states she was not given a key to
the "quiet room" at her work location. See id. at 3. Fifth, she asserts
that the company denied her both regular and emergency overtime that was
given to similarly situated white employees. See Pl.'s Statement at 4.
Sixth, Ms. Green claims that Bell Atlantic falsely evaluated her by
rating her as an employee who only "meets some" requirements in several
categories in her 1995 year-end performance appraisal. See id. Seventh,
she claims she applied for more than 200 positions but was unfairly
denied promotions. See id. at 5. Lastly, she alleges that the combination
of many of these things subjected her to a hostile work environment. See
Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Opp'n") at 8.
The defendant denies all the allegations. In terms of Ms. Green's
attempts to obtain a promotion, the company states that before it
eliminated the Business Management Abilities Test ("BMAT") in May 1998,
Ms. Green had taken the test several times and never earned a qualifying
score. See Mot. for Summ. J. at 5. The company notes that it promoted
Ms. Green to the management position of Specialist on December 1, 1999.
See id. The company also points out that of the "103 positions which
Green sought that were filled by someone other than Green, 27% of the
placements were African-American." See id.
The defendants now move for summary judgment on all the claims of Ms.
A. Legal Standard
Summary judgment is appropriate when "the pleadings, depositions,
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 moving party is entitled to a judgment as a
matter of law." 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. 2505.
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. A nonmoving party, however, must establish more than "the
mere existence of a scintilla of evidence" in support of its position.
See id. 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 on which that party will bear the
burden of proof at trial." See Celotex, 477 U.S. at 322, 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.
In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. See Greene v. Dalton, 164 F.3d 671, 674 (D.C.Cir.
the nonmoving party "must come forward with specific facts" that would
enable a reasonable jury to find in its favor. See id. at 675,
164 F.3d 671. If the evidence "is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, 477
U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Finally, the D.C.
Circuit has directed that because it is difficult for a plaintiff to
establish proof of discrimination, the court should view summary-judgment
motions in such cases with special caution. See Aka v. Washington Hosp.
Ctr., 116 F.3d 876, 879 (D.C.Cir. 1997); see also Johnson v. Digital
Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
B. The McDonnell Douglas Framework
To prevail on a claim of race discrimination or retaliation under Title
VII, a plaintiff must follow a three-part burden-shifting analysis. See
McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973). The Supreme Court explained this scheme as follows:
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in
proving the prima facie case, the burden shifts to the
defendant "to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection." Third, should the defendant carry this
burden, the plaintiff must then have an opportunity to
prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for
discrimination. . . . The ultimate burden of
persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff
remains at all times with the plaintiff.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101
S.Ct. 1089 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas, 411 U.S. at
802, 93 S.Ct. 1817 (citations omitted)).
Thus, the plaintiff must first establish a prima-facie case of
prohibited discrimination or retaliation. See McDonnell Douglas, 411 U.S.
at 802, 93 S.Ct. 1817; Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288
(D.C.Cir. 1998) (en banc); see also Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2105, 147 L.Ed.2d 105
(2000). As a general matter, a prima-facie case of discriminatory denial
of promotion based on race consists of the following elements: (1) the
plaintiff is a member of a protected class; (2) the plaintiff applied for
and was qualified for the position at issue; (3) despite the plaintiff's
qualifications, the defendant rejected the plaintiff; and (4) the
position was filled by a similarly qualified employee from outside the
protected class. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817;
Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir. 1981). To demonstrate a
prima-facie case of retaliation, the plaintiff must establish that: (1)
the plaintiff was engaged in a protected activity; (2) the employer took
an adverse personnel action against her; and (3) there is a causal link
between the adverse action and the protected activity. See Jones v.
Washington Metro. Area Transit Authority, 205 F.3d 428, 433 (D.C.Cir.
If the plaintiff succeeds in making a prima-facie case, the burden
shifts to the employer to articulate a non-discriminatory reason for its
action. The employer's burden, however, is merely one of production. See
Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089. The employer "need not
persuade the court that it was actually motivated by the proffered
reasons. It is sufficient if the defendant's evidence raises
a genuine issue of fact as to whether it discriminated against the
plaintiff." Id. 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 real reason for the
action. See McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. 1817; St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508, 113 S.Ct. 2742, 125
L.Ed.2d 407 (1993).
The defendant's explanation of its legitimate reasons must be "clear
and reasonably specific" so that the plaintiff is "afforded a full and
fair opportunity to demonstrate pretext." See Burdine, 450 U.S. at 258,
101 S.Ct. 1089 (citation omitted). A subjective reason can be legally
sufficient, legitimate, and nondiscriminatory if the defendant
articulates a clear and reasonably specific factual basis on which it
based its subjective opinion. See id. As the Eleventh Circuit has
[I]t might not be sufficient for a defendant employer
to say it did not hire the plaintiff applicant simply
because "I did not like his appearance" with no
further explanation. However, if the defendant
employer said, "I did not like his appearance because
his hair was uncombed and he had dandruff all over his
shoulders," or . . . "because he came to the interview
wearing short pants and a T-shirt," the defendant
would have articulated a "clear and reasonably
specific" basis for its subjective opinion — the
applicant's bad (in the employer's view) appearance.
That subjective reason would therefore be a legally
sufficient, legitimate, nondiscriminatory reason for
not hiring the plaintiff applicant.
Chapman v. AI Transport, 229 F.3d 1012, 1034 (11th Cir. 2000) (en banc).
Once the defendant carries its burden of articulating a "legitimate,
nondiscriminatory reason" for the employee's rejection, the plaintiff
must then have an opportunity to prove by a preponderance of the evidence
that the legitimate reasons offered by the defendant were not its true
reasons, but rather were a pretext for discrimination. See McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. 1817. "That is, the plaintiff may
attempt to establish that he was the victim of intentional discrimination
`by showing that the employer's proffered explanation is unworthy of
credence'" and that the plaintiff's membership in a protected class was
the true reason for the employment action. See Reeves, 120 S.Ct. at
2106, 120 S.Ct. 2097 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089);
see also Aka, 156 F.3d at 1290; Mungin v. Katten Muchin & Zavis,
116 F.3d 1549, 1554 (D.C.Cir. 1997).
Both the Supreme Court and the D.C. Circuit have held that the
burden-shifting scheme becomes irrelevant once both parties have met the
burdens discussed above. See Reeves, 120 S.Ct. at 2106; Aka, 156 F.3d at
1289. At that point, the relevant inquiry is whether there is sufficient
evidence from which a reasonable trier of fact could find in favor of the
plaintiff, although "the trier of fact may still consider the evidence
establishing the plaintiff's prima facie case and inferences properly
drawn therefrom . . . on the issue of whether the defendant's explanation
is pretextual." See Reeves, 120 S.Ct. at 2106 (citing Burdine, 450 U.S at
255 n. 10, 101 S.Ct. 1089); see also Aka, 156 F.3d at 1290; Mungin, 116
F.3d at 1554. In Aka, the D.C. Circuit found that the plaintiff had
presented no evidence directly suggesting discrimination, but instead
presented evidence that the defendant's proffered justification was
false. The Aka court ruled that simply casting doubt on the employer's
proffered justification did not automatically enable the plaintiff to
survive summary judgment. See Aka, 156 F.3d at 1290-91. Rather,
"the plaintiff's attack on the employer's explanation must always be
assessed in light of the total circumstances of the case." Id. at 1291.
In sum, once an employer has met its burden of advancing a
nondiscriminatory reason for its actions, the focus of proceedings at
will be on whether the jury could infer discrimination
from the combination of (1) the plaintiff's prima
facie case; (2) any evidence the plaintiff presents to
attack the employer's proffered explanation for its
actions; and (3) any further evidence of
discrimination that may be available to the plaintiff
(such as independent evidence of discriminatory
statements or attitudes on the part of the employer)
or any contrary evidence that may be available to the
employer (such as evidence of a strong track record in
equal opportunity employment).
See Aka, 156 F.3d at 1289.
In Reeves, the Supreme Court reaffirmed the principles set forth in
Aka. Mandating a case-by-case approach, the Supreme Court instructed the
district courts to examine a number of factors, including "the strength
of the plaintiff's prima facie case, the probative value of the proof
that the employer's explanation is false, and any other evidence that
supports [or undermines] the employer's case." Reeves, 120 S.Ct. at
2109; see also Aka, 156 F.3d at 1289.
Lastly, the D.C. Circuit has recognized that courts "may not
`second-guess' an employer's personnel decision absent demonstrably
discriminatory motive." Fischbach v. D.C. Dep't of Corrections,
86 F.3d 1180, 1183 (D.C.Cir. 1996) (citing Milton v. Weinberger,
696 F.2d 94, 100 (D.C.Cir. 1982)); see Marshall v. Federal Express
Corp., 130 F.3d 1095, 1100 (D.C.Cir. 1997); Mungin, 116 F.3d at 1556
(quoting Fischbach, 86 F.3d at 1183). "It is not enough . . . to
disbelieve the employer; the fact finder must believe the plaintiff's
explanation of intentional discrimination." Reeves, 120 S.Ct. at 2108
(citing St. Mary's Honor Ctr., 509 U.S. at 519, 113 S.Ct. 2742).
C. The Plaintiff's Claims
The plaintiff makes three principal allegations against the
defendants: (1) that the plaintiff suffered from disparate treatment on
the basis of her race; (2) that the defendants subjected the plaintiff to
a hostile work environment; and (3) that the defendants retaliated
against the plaintiff upon learning of her protected activities.*fn2
Applying the above legal standards to the instant case, the court will
grant the defendant's motion for summary judgment on all three counts.
1. Disparate Treatment
Citing Title VII and 42 U.S.C. § 1981, the plaintiff alleges that
the defendants denied her promotions, denied her regular and emergency
overtime and denied her on-the-job training on the basis of her race.
See Pl.'s Opp'n at 3-8. In terms of the emergency-overtime issue, the
defendants argue that the plaintiff cannot establish a prima-facie case
on this claim because she fails to show that similarly situated white
technicians received overtime that she requested. See Mot. for Summ. J.
at 14. The defendants note —
and the plaintiff never contests — that the company gave the
plaintiff a comparable amount of emergency overtime as Charles Kelly, a
white employee who was the other COT at the Pikesville facility. See id.
at 14-15. The court agrees with the defendants that the plaintiff fails
to establish a prima-facie case. Moreover, even assuming arguendo that
she could pass her initial hurdle, the defendants note — and, once
again, the plaintiff never contests — that she never asked her
supervisor, Mr. Housley, for more emergency call-out overtime. See id.
Thus, the defendants meet their burden of offering a legitimate,
nondiscriminatory reason for not providing the plaintiff with additional
emergency overtime. The plaintiff, in turn, falls well short of
presenting sufficient evidence for a reasonable jury to infer
The plaintiff's regular-overtime claim also may not proceed. Even
assuming arguendo that the plaintiff could present a prima-facie case of
discriminatory treatment, the defendants successfully meet their burden
of offering a legitimate, nondiscriminatory reason for the disparity in
regular overtime hours between Ms. Green and Mr. Kelly by noting that
regular overtime "is normally assigned to the Technician involved in the
`trouble.'" See Mot. for Summ. J. at 15. The defendants state that Mr.
Kelly worked more hours of regular overtime than the plaintiff in 1995
because he handled more "troubles" than the plaintiff, which "is not
surprising, given that Kelly had been a technician for almost 20 years
longer than Green." See id. The plaintiff fails entirely to counter this
contention. Accordingly, the court will not allow the plaintiff's
regular-overtime claim to survive summary judgment.
Next, the plaintiff claims the defendants discriminated against her by
denying her additional on-the-job training. See Pl.'s Opp'n at 7.
Specifically, she claims that in February 1993, her supervisor informed
her that based on her 1992 year-end appraisal, she needed additional
technical training. See id. The defendants properly counter by observing
that the plaintiff fails to make out a prima-facie discriminatory
denial-of-training claim because she does not identify any similarly
situated white employees whom the company treated more favorably with
regard to training. See Mot. for Summ. J. at 15. Indeed, the plaintiff
never does identify any such employee in her opposition. See Pl.'s Opp'n
at 7. The court agrees with the defendants on this point.
The plaintiff's final claim of discriminatory treatment centers on the
fact that Bell Atlantic denied her promotions "ostensibly" because she
did not pass the BMAT, while the company hired white people as
supervisors without making them take this test. See Pl.'s Opp'n at 7. In
support of her argument, the plaintiff identifies one white person, Holli
Lloyd, whom the company hired "into a first level management position in
January of 1997 without requiring that individual to take the BMAT." See
Pl.'s Opp'n at 8. Conceding that Ms. Lloyd did not take the BMAT, the
defendants explain that Ms. Lloyd was hired into a management position
from outside Bell Atlantic and that she went through the Experience
Specialist Interview process, an alternative to the BMAT and other testing
requirements. See Reply at 5 n. 14.
Because Ms. Lloyd was hired from outside the company, the court holds
that she and the plaintiff were not similarly situated. The plaintiff
fails, therefore, to establish a prima-facie case of discriminatory
denial of promotion. Furthermore, even if the plaintiff had met her
initial burden, because Ms. Lloyd had to satisfy an alternative
qualifying route to be hired, the defendants would meet their burden of
offering a legitimate, nondiscriminatory reason for why Ms. Lloyd never
had to take the BMAT test. Once again, the plaintiff would have failed to
offer sufficient evidence for the court to allow this claim to go before
a jury. See Aka, 156 F.3d at 1289.
2. Hostile Work Environment
The plaintiff alleges that the defendants created a hostile work
environment in violation of Title VII. Specifically, the plaintiff
charges that she was:
falsely evaluated, excluded from company sponsored
outings and celebrations, segregated. falsely accused
of lacking motivation, denied a personal computer, not
allocated a key to the voice mail quiet room, referred
to as the "N" word, denied on-the-job training,
involuntarily transferred and denied numerous
promotions that were doled out to less qualified
Caucasians and African-Americans who did not complain
See Pl.'s Opp'n at 9 (internal footnotes omitted).
a. Legal Standard for a Hostile Work
Environment Violation under Title
Title VII prohibits an employer from creating or condoning a
discriminatorily hostile or abusive work environment. See Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49
(1986). 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). The
Supreme Court has made it clear that the language "terms, conditions, or
privileges" is not limited to economic or tangible discrimination and may
include psychological harm. See Meritor, 477 U.S. at 64, 106 S.Ct. 2399.
In addition, the 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). On the other hand,
conduct that does not create a hostile or abusive environment is beyond
the purview of Title VII. See id. at 21, 114 S.Ct. 367.
To establish a claim of a hostile work environment based on racial
discrimination, 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).
The Supreme Court has held that a finding of a hostile work environment
depends on the totality of the circumstances, including the frequency of
the discriminatory conduct, its severity, its offensiveness, and whether
it interferes with an 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. Moreover, the harassment
need not be racial in content to create a racially hostile work
environment. See Bowdre v. Richardson, 131 F. Supp.2d 179, 187 (D.D.C.
2001) (Urbina, J.). Rather, it must be shown that "had the plaintiff [not
been part of the protected class,] she would not have been treated in the
Amaun, 85 F.3d at 1083. The Supreme Court 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 (citations omitted).
b. The Plaintiff Fails to Demonstrate
a Hostile Work Environment
In this case, the plaintiff has failed to present sufficient evidence
of a hostile work environment to survive summary judgment. First, the
court has already held that the defendants did not unlawfully deny the
plaintiff either on-the-job training or promotions. See Section III.C.1.
supra. Second, the court now rules that the defendants offer a
legitimate, nondiscriminatory explanation — which the plaintiff
never counters — for how Mr. Bogdan, the plaintiff's supervisor,
made the decision to transfer the plaintiff to the 5ESS team, albeit in
spite of her wishes. Simply put, Mr. Bogdan looked to see if any employee
had specific qualifications for the new role, and realizing that nobody
did, he asked for volunteers. When nobody volunteered, he chose the
employee of the voice-mail crew with the least tenure: in this case, the
Based on the plaintiff's other allegations of a hostile work
environment, the court concludes that the plaintiff's claim does not
succeed. Viewing the totality of the circumstances, see Faragher, 524
U.S. at 787-88, 118 S.Ct. 2275, including the fact that the company has
promoted the plaintiff five times since she began working for Bell
Atlantic (including twice after she became a plaintiff in this case,
which includes her most recent promotion to a management position in
1999), the court is not convinced that the plaintiff had to endure
"severe or pervasive" racially based harassment that amounted to a
hostile work environment. See Barbour, 181 F.3d at 1347-48; see also
Bowdre, 131 F. Supp.2d at 188. Thus, the court grants the defendants'
motion for summary judgment on the plaintiff's hostile work environment
One other point warrants mention. In this case, the plaintiff relies
solely on her own allegations in pressing her hostile work environment
claim. Although she cites to the depositions of other witnesses, the
portions of these depositions that she relies on do not support her
position in any meaningful way. See Pl.'s Opp'n at 9 & n. 1-12. The
court cautions that its holding on this point should be read narrowly
because, in some cases, the plaintiff's allegations alone will be enough
to allow a hostile work environment claim to proceed to a jury. In this
case, however, the plaintiff's allegations are not sufficient.
Lastly, the plaintiff alleges that the defendants retaliated against
her by transferring her involuntarily and by denying her promotions.
Since the court has already held that the defendants did not unlawfully
deny the plaintiff promotions, the court focuses the retaliation inquiry
on the plaintiff's claim of an involuntary transfer to the 5ESS team.
As previously noted, to demonstrate a prima-facie case of retaliation,
the plaintiff must establish that: (1) the plaintiff was engaged in a
protected activity; (2) the employer took an adverse personnel action
against her; and (3) there is a causal link between the adverse action
and the protected activity. See Jones, 205 F.3d at 433. In this case, the
key inquiry hinges on whether the defendants' involuntary transfer of the
plaintiff constituted an adverse personnel action.
The D.C. Circuit recently laid out the standard for determining whether
involuntary reassignment can form the basis of a Title VII claim. See
Brown v. Brody, 199 F.3d 446 (D.C.Cir. 1999). In Brown, the D.C. Circuit
[A] plaintiff who is made to undertake or who is
denied a lateral transfer — that is, one in
which she suffers no diminution in pay or benefits
— does not suffer an actionable injury unless
there are some other materially 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 has suffered objectively tangible harm.
Id. at 457. In their motion for summary judgment, the defendants
interpret Brown to mean that "[r]outine lateral transfers — whether
voluntary or involuntary — are as a matter of law not adverse
employment actions." See Mot. for Summ. J. at 13. The court deems this an
overstatement of the D.C. Circuit's holding. Indeed, in applying Brown's
line of reasoning, this court recently held that "even if the defendant
labels a reassignment as `lateral,' if the Plaintiff can show objectively
tangible harm, the transfer may be deemed an adverse personnel action."
See Sanders v. Veneman, 131 F. Supp.2d 225, 229-30 (D.D.C. 2001)
(Urbina, J.) (holding that the plaintiff's transfer to a regional office
could be deemed an adverse action if it meant a loss of per diem
compensation and diminished opportunities for a promotion). Even more
recently, the D.C. Circuit reinforced the scope of its Brown. decision in
admonishing a district court that it had "read our decision in Brown too
broadly . . . . 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." See Freedman v. MCI,