(disparate treatment) under the Rehabilitation Act in
being sent for an FFD; (3) hostile work environment based on the LaFond
incident; and (4) retaliation based on plaintiff's May 1998 EEOC
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 why summary
judgment is appropriate.
Even reading plaintiff's complaint in a most favorable light, as
required under Fed.R.Civ.P. 56, I conclude that all of his claims must
fail as a matter of law. I shall therefore dismiss this action with
prejudice. A separate order and final judgment accompany this opinion.
In accordance with the accompanying Memorandum Opinion, it is hereby
ORDERED that Defendant's Motion for Summary Judgment [#18] is GRANTED.
The motion of defendant William J. Henderson for summary judgment
having been granted, IT IS ORDERED THAT plaintiff take nothing, that the
action be dismissed on its merits and that the parties bear their own
costs of this action.