United States District Court, District of Columbia
September 14, 2001
IRIS RICHARD ET AL., PLAINTIFFS,
BELL ATLANTIC CORP. ET AL., DEFENDANTS. RENEE ARRINGTON ET AL., PLAINTIFFS, V. BELL ATLANTIC CORP. ET AL., DEFENDANTS.
The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge
MEMORANDUM OPINION GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
ON ALL CLAIMS OF PLAINTIFF CAROLYN GREEN
These race-discrimination and retaliation cases began with 132 current
and former employees of Bell Atlantic Corp. (now Verizon) suing their
employer and its subsidiaries (collectively, "the defendants" or "Bell
Atlantic") under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. § 1981.
Although the court has not consolidated these two cases, they have been
mediated together and briefed together because of the similarity in
claims, counsel, and parties.*fn1
Through the diligence 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
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 (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 (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; Anderson, 477 U.S. at 248.
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. 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. 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. 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. 1999). Rather, the nonmoving party "must come forward with specific
facts" that would enable a reasonable jury to find in its favor. See
id. at 675. If the evidence "is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, 477
U.S. at 249-50 (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 (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 (1981) (quoting McDonnell Douglas, 411 U.S. at 802 (citations
Thus, the plaintiff must first establish a prima-facie case of
prohibited discrimination or retaliation. See McDonnell Douglas, 411
U.S. at 802; Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C.
Cir. 1998) (en banc); see also Reeves v. Sanderson Plumbing Products,
Inc., 120 S.Ct. 2097, 2105 (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;
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. 2000).
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. 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; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
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
(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 explained:
[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. "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
(quoting Burdine, 450 U.S. at 256); see also Aka, 156 F.3d at 1290;
Mungin v. Katten Munchin & 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); 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).
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 discrimination.
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
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 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 (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. 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 (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.
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 (1998); Harris, 510 U.S. at 23.
Moreover, the harassment need not be racial in content to create a
racially hostile work environment. See Bowdr 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 same manner." Aman, 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 (citations
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, 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 Bowdr, 131 F. Supp.2d at 188.
Thus, the court grants the defendants' motion for summary judgment on the
plaintiff's hostile work environment claim.
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
an 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 held that:
[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. . . . [I]t 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, 255 F.3d 840, 844 (D.C. Cir. 2001).
Unlike the plaintiff in Sanders, who articulated the objectively
tangible harm he had suffered from his involuntary transfer to another
office, this plaintiff completely fails to make the necessary allegations
to show that her transfer constituted an adverse personnel action. Cf.
Sanders, 131 F. Supp.2d at 229. Nowhere does the plaintiff argue that
she will lose per diem compensation, that her chances of promotion will
be diminished, or that she will suffer any other "objectively tangible
harm." See Brown, 199 F.3d at 457. Because the plaintiff fails to show
that the involuntary transfer constituted an adverse personnel action,
she cannot establish a prima-facie case of retaliation. Accordingly, the
court grants the defendants motion for summary judgment on this count.
For all these reasons, the court grants the defendants' motion for
on all claims of Carolyn Green. An order directing the
parties in a fashion consistent with this Memorandum Opinion is separately
and contemporaneously issued this ___ day of September, 2001.