The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge
Plaintiff Jerry N. Bunyon ("Bunyon") brings an action alleging
employment discrimination based on Title VII of the Civil Rights Act of
1964 ("Title VII"), as amended, 42 U.S.C.A. § 2000e, et seq. (1994),
the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.A. §
12101, et seq. (1995), and the Rehabilitation Act of 1973
("Rehabilitation Act"), 29 U.S.C.A. § 701 et seq. (1999).
Bunyon, an African-American male, began working at the United States
Postal Service in Washington, D.C. in 1973 as a postal police officer
("PPO"). Affidavit of plaintiff, Jerry Bunyon, at ¶ 2 (hereafter
"Aff.") In this capacity, plaintiff carried a firearm and was authorized
to make arrests. Deposition of Jerry Bunyon at 9 (hereafter "Dep.") His
primary duty entailed screening visitors to the post office. Dep. at 16;
Aff. ¶ 3. Furthermore, although such incidents are rare, PPO's have
the authority to respond to burglaries and intervene in disturbances.
Dep. at 15. Plaintiff testified that he made about three arrests and
responded to "a lot" of alarms during his 29 years on PPO duty. Id. at
16. Plaintiff is, by his own admission, obese; he weighs 410 pounds.
Aff. ¶ 3. On January 28, 1998, Bunyon was ordered through a form
letter by Captain Thomas LaFond ("LaFond") to undergo a Fitness for Duty
("FFD") examination. Compl. ¶ 8. LaFond was apparently concerned that
plaintiff could not perform all of his duties because of his weight
problems. Declaration of Thomas J. LaFond ¶ 3. The FFD took place on
February 11, 1998, and plaintiff was found fit for duty and returned to
work. In a formal EEO complaint filed on May 19, 1998, Bunyon claimed
that he was humiliated and embarrassed by having to subject himself to
the FFD. Plaintiff alleges that other similarly situated employees who
are not African-American were not sent for an FFD.
Plaintiff further alleges that defendant retaliated against him for his
May 1998 EEO complaint. The alleged retaliation occurred on July 30,
1998, when Bunyon, a union shop steward, met with the responding official
named in his complaint, LaFond, to discuss a union grievance. The
grievance did not concern plaintiff individually but rather related to
changes LaFond had made regarding the PPOs' shift times and duty sites.
Bunyon alleges that LaFond became irate during this meeting, directed a
racial epithet at plaintiff, knocked some papers off his desk, and
approached plaintiff in a threatening manner. Compl. ¶ 10. Other
police officers intervened and escorted a very distraught Bunyon out of
the office. Id. Following the incident, plaintiff was so disturbed that
he sought the care of a mental health counselor and psychiatrist. . Aff.
¶ 10. When plaintiff returned in late 1998, LaFond had been
transferred to another office. Dep. at 150. Since this time, plaintiff
has remained a full-time employee of the Postal Service, although he is
no longer serving as a PPO.*fn1
All four of plaintiff's claims require some showing that defendant took
some action against him that was significant enough to support a prima
facie discrimination claim. Both disparate-treatment and retaliation
Title VII and Rehabilitation Act claims require a showing of an "adverse
employment action." Mack v. Strauss, 134 F. Supp.2d 103, 109 (D.D.C.
2001) (requiring an adverse employment action in a disparate-treatment
Rehabilitation Act claim), aff'd, without opinion 2001 WL 1286263 (D.C.
Cir. Sept. 28, 2001); Childers v. Slater, 44 F. Supp.2d 8, 18 (D.D.C.
1999), vacated in part on other grounds, 197 F.R.D. 185, 191 (D.D.C.
2000). See Brown v. Body, 199 F.3d 446, 452-55 (D.C. Cir. 1999) (adverse
employment action required in Title VII retaliation claim). Furthermore,
to prevail on a hostile work environment claim, a plaintiff must show a
workplace 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 environment." Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
In general, an adverse employment action is a diminution in pay or
benefits or an action with "materially adverse consequences affecting the
terms, conditions, or privileges of employment." Brown, 199 F.3d at 457.
See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761
(1998). The harm suffered may not be subjective, but must constitute an
"objectively tangible harm." Russell v. Principi, 257 F.3d 815, 818
(D.C. Cir. 2001). In short, "the actions must engender some negative
consequences with respect to the plaintiff's employment." Childers, 44 F.
Supp.2d at 19. Plaintiff identifies two adverse employment actions taken
against him. First, he points to a warning included in the form letter
ordering him to undergo the FFD. In particular, the letter noted that
"failure to adhere to these instructions could result in disciplinary
action." Defts. Mot. for Summary Judgment, Ex. C. Plaintiff contends that
the mere threat of disciplinary action constitutes an adverse employment
action, as he "labored under the duress of possible disciplinary action
when he received the request for a Fitness for Duty." Memorandum of
Points & Authorities in Support of Plaintiff's Opposition to the
Defendant's Motion for Summary Judgment at 5. I need waste little time
dispensing with this argument, as it is a quintessentially subjective
harm. A perfunctory and boilerplate warning of possible disciplinary
action certainly fails to rise to the level of an employment action, let
alone an adverse one.
Plaintiff further contends that the July 30, 1998 shouting incident
with LaFond was an adverse employment action because it was so "severe"
that if affected the terms and conditions of plaintiff's employment.
But, plaintiff does not cite any duty that he was given or refused,
promotion denied, or raise withheld, as a result of the incident. Except
in the most extraordinary cases, a single verbal dispute with an employer
does not, in and of itself, constitute an adverse employment action. In
two similar cases, this court has held that "merely being yelled at by
your supervisor does not rise to the level of an adverse employment
action." Colbert v. Chao, 2001 WL 710114 (D.D.C. 2001); Russ v. Van
Scoyoc Assoc., Inc., 122 F. Supp.2d 29, 32 (D.D.C. 2000).
Nor can LaFond's actions support a hostile work environment claim, for
they were not sufficiently severe or pervasive to alter plaintiff's
conditions of employment. Harris, 510 U.S. at 21. As this Circuit
recently noted in Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir.
2002): "Except in extreme circumstances, courts have refused to hold that
one incident is so severe to constitute a hostile work environment."*fn2
LaFond's alleged racial epithet, and his anger, while certainly odious
and hostile, did not create a hostile work environment.
Because plaintiff cannot identify any adverse employment action, it is
not necessary to address defendant's other arguments as to ...