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July 31, 2003


The opinion of the court was delivered by: Alan Kay, Magistrate Judge


Pending before the Court is Defendant's Motion for Summary Judgment ("Motion") [52], Plaintiff's Opposition to Defendant Bruce James' Motion for Summary Judgment ("Opposition") [53], and Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Reply") [55]. A hearing was held on this Motion on April 29, 2003. Upon consideration of the Motion, Opposition, and Reply, and the parties' oral arguments, and for the reasons set forth below, the Court has determined that Defendant's Motion for Summary Judgment [52] shall be GRANTED. An appropriate Order accompanies this Memorandum Opinion. [ Page 2]


A. The Plaintiff's Claims of Racial Discrimination, Hostile Work Environment, and Retaliation During Her Employment at the United States Government Printing Office.

The Plaintiff, Diane L. Marshall, is an African American woman who is currently employed by the United States Government Printing Office ("GPO") as a Printing Specialist at Grade 12. (Opposition at 1; Motion at 13.) In the instant law suit, the Plaintiff is pursuing an unfocused litany of claims against the GPO for actions which she alleges constitute racial discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Complaint [1] at 2-3.) On October 17, 1996, the Plaintiff contacted an Equal Employment Opportunity ("EEO") counselor alleging that she was discriminated against based on her race. (Motion at 5-6 and Ex. 2 EEO Counselor's Report.) According to the report by the EEO counselor, Nathan Smith, the Plaintiff's allegation was that she was discriminated against based on her race when she received a lesser performance evaluation than a white employee in the same position. (Id.) The counselor stated that the Plaintiff believed this was "an example of the continuing disparate treatment that blacks receive . . . while white employees are often given an unfair advantage." (Id.) Having been unable to informally resolve her claim of discrimination, on December 12, 1996, the EEO counselor provided the Plaintiff with a Notice of Final Interview with EEO Counselor and advised her that she had 15 days in which to file a formal administrative complaint. (Id. at 6 and Ex. 3 Notice of Final Interview with EEO Counselor.) Because the Plaintiff received notice of her right to file a formal complaint on December 12, 1996, she had until December 27, 1996 to file her complaint [ Page 3]

with the Equal Employment Opportunity Commission ("EEOC").

On January 9, 1997, the Plaintiff mailed her formal administrative complaint to the GPO. (Id. at 6-7 and Ex. 4 Envelope enclosing Complaint of Discrimination.) According to the file stamp on the envelope, the complaint was received at the EEO on January 16, 1997. (Id.) This was well beyond the 15 day deadline established by the federal regulations.

The Plaintiff was represented by an attorney at least as early as the filing of her formal complaint. (Id. at Ex. 4 Complaint of Discrimination identifying Joseph Cardona of Kooritzy & Associates in Arlington, Virginia as the person representing the Plaintiff in processing the complaint.) However, the Plaintiff's discrimination claim is difficult to decipher from her EEO complaint. It appears that the Plaintiff transposed her responses to the questions inquiring as to how she believed she was discriminated against and what corrective action she was seeking. In stating the corrective action she sought, the Plaintiff stated that "Chris Brown [her supervisor] marked #6 element on my evaluation, which should have been unobserved. White employee same grade and title doing same job outstanding when she does do element either." (Id.) The Court assumes this response does not set out the corrective action the Plaintiff sought, but was instead an attempt to articulate the Plaintiff's perception that she was discriminated against when she was evaluated as "excellent" on a criteria she believed did not apply to her position, while a white employee in the same job received an "outstanding" for the same criteria.

In responding to the question asking how the Plaintiff believed she was discriminated against, the Plaintiff appears to be articulating the corrective action she sought, stating:

(1) All discrimination practices and disparity [sic] treatment cease. (2) Chris Brown [Plaintiff's supervisor] be removed. (3) I be given points for my job applications applied for during this time. (4) My performance evaluation be [ Page 4]


The Plaintiff's formal EEO complaint was accepted for processing and investigation. According to the letter advising the Plaintiff that her complaint had been accepted for processing, the investigation would examine "whether [the Plaintiff was] allegedly discriminated against, because of [her] race (black), when [she] received a lesser rating than [her] white counterpart in performing an identical function." (Opposition Ex. I Letter from Director of GPO's EEO Office to the Plaintiff of 12/31/97.) Clearly, the GPO understood the Plaintiff's discrimination complaint to encompass only her lower performance evaluation and nothing more. The Court emphasizes that during this time the Plaintiff was represented by counsel, but she provides no evidence that she attempted to amend her formal EEO complaint to clarify her claim.

On July 13, 1998, the Plaintiff filed suit against the GPO under Title VII, claiming race discrimination, hostile work environment, and retaliation for attempting to eliminate the racial discrimination. (Complaint at 2-3.) The Defendant filed a Motion to Dismiss [17] arguing that the Plaintiff's discrimination claim was not actionable because it did not rise to the level of an adverse action and that her hostile work environment and retaliation claims were barred for her failure to exhaust administrative remedies because they were not included in the Plaintiff's administrative complaint. (Defendant's Motion to Dismiss at 1, 4-7.)

The Trial Court denied the Motion to Dismiss. With respect to the discrimination claim, the Trial Court concluded that the Plaintiff had "minimally satisfied the pleading requirement for an adverse employment action." (Memorandum Opinion and Order [28] at 5.) With respect to the hostile work environment claim, the Trial Court found that the Plaintiff's EEO complaint, [ Page 5]

which requested that "all discrimination practices and disparity [sic] treatment cease," could be interpreted as either raising or being reasonably related to a hostile work environment claim. (Id. at 6-7.) The Trial Court concluded that the Plaintiff had exhausted her administrative remedies for the hostile work environment claim. (Id.) The Trial Court also determined that most courts do not require administrative exhaustion of retaliation claims which arise after the filing of an administrative complaint. (Id.. at 7.) Because the Complaint did not specify when the alleged retaliation occurred, the Trial Court denied the motion to dismiss the retaliation claim. (Id. at 7-8.)

On August 29, 2001, the case was assigned to the undersigned United States Magistrate Judge for all purposes including trial with the consent of all parties. (Consent to Proceed Before a United States Magistrate [31].) The parties have completed discovery in this matter and the Defendant has now moved for summary judgment. The Defendant seeks judgment on all claims on grounds that (1) the Plaintiff has failed to timely exhaust her administrative remedies for any of her claims and (2) the Plaintiff cannot establish a prima facie case of racial discrimination, hostile work environment, or retaliation. (Motion at 1.)


A. Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment if the pleadings and evidence show that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52 (1986). In reviewing a motion for summary judgment, the court must [ Page 6]

view the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. However, the nonmoving party must present more than a "scintilla of evidence" and must come forward with specific facts that would enable a reasonable jury to find in its favor. Id. at 252; Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the evidence presented by the nonmoving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).

In the context of discrimination cases, summary judgment should be approached with special caution because of the difficulty of proving discriminatory intent and disparate treatment. Morgan v. Federal Home Loan Mortgage Corp., 172 F. Supp.2d 98, 104 (D.D.C. 2001) ("While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of [his] obligation to support [his] allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.") (quoting Calhoun v. Johnson, Civil No. 95-2397, 1998 WL 164780 at *3 (D.D.C. Mar. 31, 1998) (citation omitted); Ross v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994). However, this does not eliminate the use of summary judgment in discrimination cases. See, e.g., Clark County School District v. Breeden, 532 U.S. 268, 271 (2001) (finding that District Court's grant of summary judgment was proper and overturning Court of Appeals decision that reversed District Court); Forkkio v. Powell, 306 F.3d 1127, 1132 (D.C. Cir. 2002) (upholding grant of summary judgment for defendant in Title VII case alleging racial discrimination and retaliation); Brown v. Brody, 199 F.3d 466, 448 (D.C. Cir. 1999) (upholding grant of summary judgment for defendant in Title VII suit alleging racial and gender discrimination and retaliation). Summary judgment is not a "disfavored procedural shortcut," but is an integral procedural tool which promotes the speedy and inexpensive [ Page 7]

resolution of every case. Celotex Corp., 477 U.S. at 327.

B. Legal Standard for Title VII Claims.

(1) Burden-Shifting Framework Governing Title VII Claims.

In McDonnell Douglas v. Green, 411 U.S. 792 (1973), the Supreme Court established a burden-shifting framework that governs the analysis of racial discrimination and retaliation claims. See, e.g., Aka v. Washington Hospital Center, 156 F.3d 1284, 1288-89 (D.C. Cir. 1998); Richard v. Bell Atlantic Corp., 165 F. Supp.2d 1, 6-7 (D.D.C. 2001); Hastie v. Henderson, 121 F. Supp.2d 72, 78 (D.D.C. 2000). The plaintiff bears the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802. Then the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the action. Id. If the defendant meets this burden, then the presumption of discrimination is rebutted and drops from the case. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 508 (1993). The plaintiff must then show that the articulated reason was a pretext and the actual reason was discriminatory. McDonnell Douglas, 411 U.S. at 804. At all times, the ultimate burden of persuasion remains with the plaintiff to prove that she was subjected to discrimination. Hicks, 509 U.S. at 507-08.

The requirements for a prima facie case of racial discrimination are flexible and vary depending on the type of case. McDonnell Douglas, 411 U.S. at 804. Here, to establish a claim of discrimination, the Plaintiff must prove that (1) she is a member of a protected class; (2) she was subjected to an adverse employment action; and (3) the adverse action gives rise to an inference of discrimination. Stella v. Mineta, 284 F.3d 135, 144-45 (D.C. Cir. 2002) (citing [ Page 8]

Brown v. Brody, 199 F.3d at 452).

A prima facie case of retaliation requires the Plaintiff to prove that (1) she engaged in statutorily protected activity; (2) the employer subjected her to an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action. Brodetski v. Duffey, 199 F.R.D. 14, 19 (D.D.C. 2001); Hastie, 121 F. Supp.2d at 79-80. Causation is often demonstrated by temporal proximity, and "[a]lthough courts have not established the maximum time lapse between protected Title VII activity and alleged retaliatory actions for establishing a causal connection, courts generally ...

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