summary-judgment motion, Mr. Maddox
asserts that the plaintiff (1) failed to state a claim for race
discrimination; (2) failed to make a prima-facie case of retaliatory
reassignment; and (3) did not establish a prima-facie case of retaliatory
termination. For the reasons that follow, the court grants the
defendant's motion for summary judgment with regard to the first two
arguments, and denies the motion as it pertains to the third argument.
A. Legal Standard for Motion for Summary Judgment
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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540
(D.C. Cir. 1995). To determine which facts are "material," a court must
look to the substantive law on which each claim rests. 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. 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. 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. 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." 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. Id.
In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.
1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the
nonmoving party must present specific facts that would enable a
reasonable jury to find in its favor. Greene, 164 F.3d 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 (internal
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. Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir.
1997), rev'd on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc);
see also Johnson v. Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C.
1993). Lastly, the court should construe a pro se plaintiff's filings
liberally. Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir.
B. The McDonnell Douglas Framework
To prevail on a claim of discrimination under Title VII, a plaintiff
must follow a three-part burden-shifting analysis. McDonnell Douglas v.
Green, 411 U.S. 792, 802 (1973). The Supreme Court explained this scheme
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 omitted)).
Thus, the plaintiff must first establish a prima-facie case of
prohibited discrimination. McDonnell Douglas, 411 U.S. at 802; Aka, 156
F.3d at 1288; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
140-43 (2000). The plaintiff need not, however, establish a prima-facie
case in the complaint. Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
To establish a prima-facie case of race discrimination, the plaintiff
must show 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. McDonnell Douglas, 411 U.S. at 802-805; Aka, 156 F.3d at
1288. To demonstrate a prima-facie case of retaliation, the plaintiff
must establish that: (1) she was engaged in a statutorily 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. Jones v. Washington Metro. Area Transit Auth.,
205 F.3d 428, 433 (D.C. Cir. 2000); Forkkio v. Powell, 2002 WL 31322757,
at *4 (D.C. Cir. Oct. 18, 2002).
The plaintiff has the burden of proving the prima-facie case by a
preponderance of the evidence. Burdine, 450 U.S. at 252-53. "The burden of
establishing a prima facie case of disparate treatment is not onerous."
Id. at 253. By proving a prima-facie case, the plaintiff has established
"a legally mandatory, rebuttable presumption." Id. at 254 n. 7. The
function of the prima-facie case is to ensure that the plaintiff
"establish facts adequate to permit an inference of retaliatory motive."
Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985); cf. Quaratino v.
Tiffany & Co., 71 F.3d 58, 65 (2d Cir. 1995) (noting that the
plaintiff's burden of proof in a pregnancy discrimination action under
Title VII was de minimus at the prima-facie stage). Accordingly, if at
trial, the trier of fact believes the plaintiff's evidence, and if the
employer is silent in the face of the presumption, the court must enter
judgment for the plaintiff because no issue of fact remains in the case.
Burdine, 450 U.S. at 254.
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. Id.
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. McDonnell Douglas, 411 U.S. at 802-05; St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 508 (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." Burdine, 450 U.S. at 258
(citation omitted). The defendant must articulate a clear and reasonably
specific factual basis for its subjective reason to be legally
sufficient, legitimate, and nondiscriminatory. 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 to the fact finder 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. 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. Reeves, 530 U.S. at
142-44 (quoting Burdine, 450 U.S. at 256); see also Aka, 156 F.3d at
1290; Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1554 (D.C.
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 earlier. Reeves, 530 U.S. at 142-44; Aka, 156 F.3d at
1289. At that point, the relevant inquiry is whether there is sufficient
evidence from which a reasonable fact finder 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." Reeves, 530 U.S. at 142-144 (citing Burdine, 450 U.S at
255 n. 10); see also Aka, 156 F.3d at 1290; Mungin, 116 F.3d at 1554.
The D.C. Circuit has ruled that simply casting doubt on the employer's
proffered justification does not automatically enable the plaintiff to
survive summary judgment. Aka, 156 F.3d at 1290-94. 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 short,
once an employer has met its burden of advancing a nondiscriminatory
reason for its actions, the focus of proceedings at summary judgment:
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).
Id. at 1289. But the plaintiff need not present evidence "in each of
these categories in order to avoid summary judgment." Id. Indeed, the
D.C. Circuit interprets Supreme Court precedent to mean that, in some
cases, a plaintiff who presents a prima facie case that "strongly
suggests intentional discrimination may be enough by itself to survive
summary judgment." Id. n. 4 (citing Burdine, 450 U.S. at 255 n. 10).
C. The Plaintiff Fails to State a Claim for Race Discrimination
The defendant argues, and the court agrees, that Mr. Johnson has not
established a prima-facie case of race discrimination. While the
plaintiff provides numerous arguments and facts in support of his
retaliation claim, he does not similarly support his race discrimination
Mr. Johnson fails to provide evidence demonstrating that race played a
specific role in the defendant's employment decisions regarding Mr.
Johnson. Aka, 156 F.3d at 1288. In his opposition, the plaintiff states
that "[r]ace was the foundation on which the original class-action
lawsuit was legally certified . . . [and] from which the resultant
retaliatory action was nurtured and allowed to grow into the plaintiff's
termination." Pl.'s Opp'n at 8. Also, in his deposition, Mr. Johnson
admitted that he had no evidence that anyone at the OIG intentionally
discriminated against him because of his race. Mot. for Summ. J. at 14
(quoting Ex. D). Mr. Johnson's complaint and opposition — which
focus on retaliation — suggest that the plaintiff may have
conflated race discrimination and retaliation. See generally Compl.;
Pl.'s Opp'n. This is understandable, especially when the retaliation
allegedly took place because of the plaintiff's involvement in a
class-action suit charging earlier acts of race discrimination. Although
the two claims are intertwined, they are legally distinct. Compare Aka,
156 F.3d at 1288 with Jones, 205 F.3d at 433; Part III.B, supra (listing
the elements for a prima facie-case of race discrimination and the
elements for a prima facie-case of retaliation).
To present a prima-facie case, the plaintiff must prove that similarly
situated employees not within the same class were not subjected to the
same action by the employer. Aka, 156 F.3d at 1288. More specifically, to
prove this third prong of the prima-facie case, the plaintiff must show
that "the individuals with whom he seeks to compare his treatment `have
dealt with the same supervisor, have been subject to the same standards
and have engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the
employer's treatment of them for it.'" Laboy v. O'Neill, 180 F. Supp.2d 18,
25 (D.D.C. 2001), aff'd, 2002 U.S. App. WL 1050416 (D.C. Cir. Mar. 13,
2002) (citations omitted). In his opposition, Mr. Johnson argues, without
referencing specific portions of the record that support the argument,
that the defendant treated him differently from two white employees whom
he perceived to be similarly situated. Pl.'s Opp'n at 12-13; see
Anderson, 477 U.S. at 25. But Mr. Johnson fails to provide any evidence
that non-African American employees who had similar jobs, were subject to
the same standards, worked for the same supervisors, and engaged in
similar conduct did not suffer similar adverse actions. Id.; Laboy, 180
F. Supp.2d at 25. Thus, the court concludes that Mr. Johnson has not
established a prima-facie case for race discrimination. Aka, 156 F.3d at
1288; Johnson, 836 F. Supp. at 18. Because Mr. Johnson has failed to
present specific facts that would enable a reasonable jury to find in his
favor on this claim, the court grants the defendant's motion for summary
judgment on the race discrimination claim. Greene, 164 F.3d at 675;
Celotex, 477 U.S. at 322.
D. The Plaintiff Fails to Establish a Prima-Facie Case
of Retaliatory Reassignment
The defendant argues that the plaintiff fails to establish a
prima-facie case of retaliatory reassignment because the plaintiff
provides no evidence that the transfer to the General Investigations Unit
was an adverse action. The court concludes that the reassignment was not
an adverse action and therefore grants the motion for summary judgment as
it pertains to the transfer.
In Brown v. Brody, 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.
199 F.3d 446, 457 (D.C. Cir. 1999) (emphasis added). The plaintiff bears
the burden of showing that the transfer caused materially adverse
consequences, which could include a considerable change in benefits,
significantly different responsibilities, a lost promotion, or a
termination. Id. at 452, 456; Flaherty v. Gas Research Inst.,