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JONES v. POTTER

United States District Court for the District of Columbia


January 22, 2004.

Milford S. Jones, Plaintiff,
v.
John E. Potter, Post Master General, United States Postal Service, Defendant

The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

MEMORANDUM OPINION

This lawsuit involves claims of sexual harassment and retaliation. The defendant has filed a motion for summary judgment regarding Plaintiff's claims. The Court will grant this motion for the reasons set forth below.

I. Factual Background

  The facts pertaining to this case are relatively straightforward. At the time the events pertinent to this matter occurred, plaintiff, Milford Jones, was employed by the defendant, the United States Postal Service, as a material handler, Grade Level PS-4, at the Brentwood postal facility located in the District of Columbia. Complaint filed on September 10, 2001 ("Compl.") ¶ 9.*fn1 On October 23, 2000, plaintiff was working in the Brentwood facility's stock room, talking to several co-workers, when James Wallace, the stock room manager, allegedly "sexual[ly] assault[ed]" plaintiff. Id. ¶ 11. Specifically, Page 2 plaintiff alleges that Mr. Wallace

 

came up behind [him], grabbed his arms, pulled Mr. Jones toward him, and rubbed his penis against Mr. Jones' buttocks. Mr. Jones pulled away from Supervisor Wallace, but before Mr. Jones could turn around, Supervisor Wallace pulled Mr. Jones back toward him, and rubbed his penis against Mr. Jones' buttocks again. Mr. Jones broke away from Supervisor Wallace's grip and got away from him.
Id.*fn2 Plaintiff states that this incident occurred in full view of his co-workers and the incident was "non-consensual, and extremely humiliating and embarrassing." Id. Plaintiff states that Mr. Wallace is a homosexual,*fn3 while he is a heterosexual and Page 3 married. Id.

  On the same day as the incident occurred, plaintiff filed a charge of discrimination with the Postal Service's Equal Employment Opportunity ("EEO") office. Id. ¶ 12. Plaintiff alleges that after he filed his charge of discrimination, the "[d]efendant embarked on a campaign of retaliation against [him]." Id. ¶ 13. This "campaign of retaliation" allegedly included

 

harassing [plaintiff] on a daily basis; the elimination of his cubicle work area; denying [plaintiff] the opportunity to work overtime hours which he frequently worked prior to the initiation of EEO proceedings[,] thus[] reducing [p]laintiff's work hours and thereby causing him to lose overtime compensation; etc.
Id. ¶ 13. Based on the above allegations, plaintiff filed his two-count complaint in this Court alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000). He seeks $300,000 in compensatory and punitive damages; a permanent injunction prohibiting the defendant from future sexual harassment or retaliation; Mr. Wallace's dismissal, transfer or Page 4 reassignment to ensure that plaintiff never works with Mr. Wallace again;*fn4 a letter from defendant apologizing for the sexual harassment and retaliatory actions; any overtime compensation plaintiff may have obtained but for the defendant's retaliatory conduct; the re-establishment of Plaintiff's cubicle work station, medical expenses, and the costs of bringing this action.

  II. Analysis

 A. Standard of Review

  As already indicated, this matter is currently before the Court on defendant's motion for summary judgment. Federal Rule of Civil Procedure 56 provides that summary judgment "shall be rendered forthwith if 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). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. . . ." Id. at 255. The entry of summary judgment is appropriate after there has been an "adequate time for discovery . . . [and the] party [against whom the motion has been filed] fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will Page 5 bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When reviewing the evidence, the Court must draw "all inferences . . . in favor of the nonmoving party[.]" Coward v. ADT Security Systems, Inc., 194 F.3d 155, 158 (D.C. Cir. 1999); Aka v. Washington HOSP. Center, 156 F.3d 1284, 1295 (D.C. Cir. 1998).

 B. Plaintiff's Sexual Harassment Claim

  The October 23 incident comprises the sole incident*fn5 of sexually harassing behavior that plaintiff alleges in his complaint.*fn6 Defendant advances two arguments regarding why summary judgment should be entered in its favor on this count of the complaint. First, defendant argues that the plaintiff cannot demonstrate that the alleged sexual harassment was "motivated by Mr. Wallace's sexual desire." Defendant's Memorandum in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem.") at 10. Rather, defendant argues, "Mr. Wallace's actions were in the nature of horseplay." Id. at 11. Second, the defendant argues that plaintiff cannot demonstrate "that the alleged conduct was sufficiently severe or persuasive to create an objectively hostile or abusive work environment that altered the conditions of [plaintiff's] employment." Id. at 13. In opposition, plaintiff argues that his claim is sufficient to withstand summary judgment because this one incident was clearly based on sex, and was so "outrageous, offensive, unwelcome, and egregious" that the event, standing Page 6 alone, constitutes a violation of Title VII. Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n") at 23. Alternatively, plaintiff argues that he has presented sufficient facts and evidence from which this Court can conclude that he was the victim of a hostile working environment. Id. at 24.

  In Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75, 82 (1998), the Supreme Court acknowledged "that sex discrimination consisting of same-sex harassment is actionable under Title VII. . . ." In this acknowledgment, the Court was careful to emphasize that claims of same-sex harassment remain subject to the identical requirements as claims of opposite-sex harassment; namely, a plaintiff making either type of sexual harassment claim "must always prove that the conduct at issue . . . actually constituted `discrimina[tion] . . . because of . . . sex.'" Id. at 81. Thus, to establish his claim of "same-sex harassment, [the] court[] first must determine whether the harasser's conduct constitutes sex discrimination." La Day v. Catalyst Technology, Inc., 302 F.3d 474, 478 (5th Cir. 2002). If this determination is answered in the affirmative,

  the court must decide whether the challenged conduct meets the applicable standards for either a quid pro quo[*fn7] or hostile environment claim. For example, same-sex harassment that is `severe or pervasive' enough to create a hostile environment . . . might be excluded from the coverage of [T]itle VII because it was not discriminatory on the basis of sex. On the other hand, same-sex harassment that is indisputably discriminatory might not be serious enough to make out either a quid pro Page 7 quo or hostile environment claim.

 id. (citation omitted). See, e.g., Davis v. Coastal Int'l Security. Inc., 275 F.3d 1119, 1126 (D.C. Cir. 2002) (holding that actions of Plaintiff's co-workers, which included slashing Plaintiff's tires, grabbing their crotches and making kissing gestures, and uttering a phrase used to describe oral sex, "however vulgar . . . [did not] constitute[] discrimination because of sex.").

  The Court's first task is to determine whether Mr. Wallace's action was taken because of Plaintiff's sex. The Oncale decision "suggested three ways to prove that same-sex sexual behavior rises to the level of illegal harassment[.]" Davis. 275 F.3d at 1123. The first method requires a showing "that the sexual behavior is motivated by actual homosexual desire[.]" Id. The second method of demonstrating same-sex harassment requires a showing "that the harassment is framed in `such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility' towards members of the same gender in the workplace[.]" Id. (citing Oncale. 523 U.S. at 80). Third, the plaintiff may demonstrate "that there is `direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.'" Id. (quoting Oncale. 523 U.S. at 80-81).

  Plaintiff appears to rely on the first method of proof, because he asserts that "there is ample evidence to support a finding that Manager Wallace was homosexual and/or bisexual, and independently, his conduct was motivated by sexual desire." Pl.'s Opp'n at 21. Plaintiff argues that "[t]he conduct itself was because of sex." Id. at 20. This is so because, according to plaintiff's version of the events, "[w]hen a person grabs you and rubs his body . . .[,]his penis against you, you know what he — [you] know what Page 8 his intentions are." Id., Ex. 21, Deposition of Milford Jones dated March 18, 2003 ("Jones' Dep.") at 91. Plaintiff testified during his deposition that he knows Mr. Wallace is gay because he is "[a] lot on the feminine side[,]" and because of "little actions" taken by Mr. Wallace, such as "how he walks, and things he said, like, sister girl. . . ." Id., Ex. 21, Jones' Dep. at 24.*fn8 Plaintiff also testified that there were several things Mr. Wallace did that made plaintiff "uncomfortable," for example, when Mr. Wallace asked for a picture of plaintiff in his Marine uniform; the one occasion when Mr. Wallace invited plaintiff to spend the night at his house if he got snowed in because it was snowing at the time; the several occasions when Mr. Wallace invited plaintiff to take walks with him to see the air handlers; the ten or so occasions when Mr. Wallace walked past plaintiff and brushed his chest on Plaintiff's back; and previously inviting plaintiff to sit in his office "to talk about . . . the ladies in [their] stock room[,]" id. at 26-31, 38.*fn9

  The problem with Plaintiff's evidence is that it fails to conclusively establish that Mr. Wallace explicitly made sexual advances to plaintiff or that Mr. Wallace is a homosexual or more importantly that he had that sexual preference when the event at issue occurred.*fn10 Cf. La Day, 302 F.3d at 480 (concluding that there was "credible Page 9 evidence" that the Plaintiff's supervisor was "a homosexual and that he was making sexual advances[,]" to the plaintiff based on the fact that he stated "that he was `jealous' of [the Plaintiff's] girlfriend, combined with his poking of [the Plaintiff's] anus. . . . [and his] later hostility toward [the plaintiff], exemplified by his spitting tobacco at him, [which the court noted could] plausibly . . . be interpreted as anger over [the Plaintiff's] rejection of his sexual advances." In addition, the court noted that other employees claimed the supervisor made "sexual advances" to them).*fn11 In fact, the claim that Mr. Wallace is a homosexual is solely based on plaintiff's subjective beliefs.*fn12 However, without affirmatively concluding that plaintiff has satisfied the "because of sex" requirement of his claim, interpreting the facts in a light most favorable to plaintiff as the non-moving party, see Coward, 194 F.3d at 158, the Court concludes that there is a genuine issue of material fact as to whether or not Mr. Wallace is a homosexual and whether or not the conduct occurred because of plaintiff's gender. See La Day. 302 F.3d at 478 (stating a plaintiff can demonstrate sexual harassment if he "show[s] that the alleged harasser made `explicit or implicit proposals of sexual activity' and [can] provide `credible evidence that the harasser was homosexual."). Mr. Wallace acknowledged during his deposition testimony that he had sexual relations with men before, and Page 10 accepting Plaintiff's version of the events as true, Mr. Wallace's act of rubbing his penis against the Plaintiff's buttocks could be viewed by a fact-finder as objectively explicit sexual activity. See id. at 481 (stating that Plaintiff's supervisor's action in touching the Plaintiff's anus "constituted `explicit or implicit proposals of sexual activity.'") (quoting Oncale, 523 U.S. at 80).

  "Once sex discrimination has been proven sufficiently to survive summary judgment . . . there is no distinction between same-sex and opposite-sex harassment with respect to the next stage of the inquiry: determining whether the discriminatory action was serious enough to constitute quid pro quo or hostile environment harassment." La Day, 302 F.3d at 481. Because plaintiff has not presented any evidence from which a reasonable jury could find quid pro quo discrimination,*fn13 he must establish that there is a genuine issue of material fact as to whether he was subject to a hostile working environment. This he has failed to do.

  The Supreme Court has clearly held that "`[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview.'" Oncale, 523 U.S. at 81 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Thus, the behavior must be severe in order "to ensure that courts and juries do not mistake ordinary socializing in the workplace — such as male-on-male horseplay Page 11 or intersexual flirtation — for discriminatory `conditions of employment.'" Id. In determining whether the behavior was objectively offensive, the Court must judge the behavior "from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'" Id. (quoting Harris. 510 U.S. at 23). In this same-sex case, "(as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Id. This is so because "[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." Id. at 82. As an example, the Supreme Court noted that while a "football player's working environment [would not be considered] severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field . . . the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office." Id. at 81. With these concepts in mind, the Court has objectively, from a reasonable fact-finder's perspective, evaluated the behavior alleged by plaintiff and concludes that Mr. Wallace's behavior, standing alone, was not violative of Title VII, as it was not so severe or pervasive as to constitute a hostile working environment.

  First, it is clear that this one incident was not pervasive; it happened on one occasion and was not repeated. Although plaintiff asserts that Mr. Wallace engaged in prior behavior that made plaintiff feel "[r]eal uncomfortable[,]" Pl.'s Opp'n, Ex. 21, Jones' Dep. at 26, such as asking plaintiff for a picture of him in his Marine uniform; inviting plaintiff on one occasion to spend the night at his house if plaintiff got snowed in Page 12 because it was snowing; inviting plaintiff on walks to see the air handlers; walking past plaintiff and brushing his chest past plaintiff's back, and inviting plaintiff to sit in his office "to talk about . . . the ladies in [their] stock room[,]" id. at 26-31, 38, plaintiff admitted that he, and his co-workers, laughed at Mr. Wallace's behavior. Id. at 32-33. The atmosphere prior the incident was not oppressive; indeed, Plaintiff's co-workers teasingly referred to plaintiff as Mr. Wallace's "boy" because they perceived that Mr. Wallace favored plaintiff and was more likely to grant any request the plaintiff made over their requests. Id. at 33-34. One of Plaintiff's co-workers, Ada Sherrill, testified that plaintiff and Mr. Jones had a very good relationship and when Mr. Wallace's car was broken into, he called on Mr. Jones to come and pick him up and plaintiff "rode him around a lot." Def.'s Mot., Ex. C, Deposition of Ada Sherrill dated March 26, 2003 ("Sherrill Dep.") at 14.*fn14 Plaintiff himself testified that his relationship with Mr. Wallace "might have made [his co-workers] a little jealous." Pl.'s Opp'n, Ex. 21, Jones' Dep. at 34. Furthermore, once the incident occurred, Mr. Wallace was promptly removed from the Brentwood facility. Id. at 98. Although Mr. Wallace eventually returned to Brentwood after an investigation was conducted and a determination was made that the incident was "in the nature of horseplay . . .[,]" Def.'s Mot., Ex. H, Declaration of Louis I. Higginbotham, Manager, Maintenance, dated June 27, 2003, ¶ 4, it is also undisputed that plaintiff was transferred to another department so he did not have to work directly for Mr. Wallace. In light of this evidence, the Court is unable to conclude that the Page 13 allegedly harassing behavior was so pervasive as to alter Plaintiff's working conditions.

  Nor can the Court conclude that this one incident was so severe as to alter Plaintiff's working conditions. Plaintiff's deposition testimony and other evidence in the record indicates that his working environment prior to this incident was generally amicable. See Def.'s Mot., Ex. A, Jones Dep. at 52 (stating that the employees in his department "all socialize together . . . like, eat[ing] lunch together . . . [and] talk[ing]. Sometimes somebody [would] tell a joke or something."); 58 (testifying that he and Mr. Newell "would tease each other all day. That would make out day go by."); see also id. at 46 (agreeing that his subsequent supervisor, Ms. Gaskins was "a harsher supervisor than Mr. Wallace. . . ."); Ex. B, Curry Dep. at 33 (stating that prior to the incident, the working atmosphere was "relaxed. . . ."). Nonetheless, plaintiff argues that this one incident was so severe that it alone establishes that he was subjected to a hostile work environment.*fn15 The Court cannot agree with this assessment.*fn16 First, it is undisputed that the incident lasted a few seconds and after separating himself from Mr. Wallace, plaintiff clocked out of work because "it was [almost] time for [him] . . . to go home." Def.'s Mot., Ex. A, Jones Dep. at 93. Second, it is also undisputed that Mr. Wallace's Page 14 actions were performed in the plain view of several of Plaintiff's co-workers, and Mr. Wallace jokingly called to Mr. Newell "to get" the plaintiff, Pl.'s Opp'n, Ex. 2, Statement by Cheryl Curry; Ex. 3, Statement by Valeria Carter, although plaintiff contends he did not remember what Mr. Wallace said to Mr. Newell. Def.'s Mot., Ex. A, Jones Dep. at 63. Plaintiff testified in his deposition that Mr. Newell made a motion as if he was coming to hit him but then walked away, although he also testified that if Mr. Wallace told Mr. Newell "to hit . . . or get" him, that was merely Mr. Wallace's "way of making it look like he was just playing with me." Id. at 78.*fn17 Plaintiff acknowledged in his deposition that he may have been laughing after this incident occurred, although he contends that any laughing was "mad and nervous laughter . . . it wasn't happy laughter." Def.'s Mot., Ex. A, Jones Dep. at 142. Furthermore, Mr. Newell, the third participant in this event, "was laughing because [he] thought it was funny." Id. at 93. Given the circumstances in this case, the Court finds that a reasonable jury, at most, could conclude that while Mr. Wallace's actions may have been in bad taste, and personally offensive, they were not severe enough to constitute a hostile working environment.*fn18 See Lee-Crespo v. Schering-Plough Del Caribe Inc., No. CIV.A. 03-1033, Page 15 2003 WL 23095261, at *2-3, 9 (1st Cir. Dec. 31, 2003) (holding that Plaintiff's allegations that her supervisor was a lesbian and that she made improper remarks to her, including telling the plaintiff to invite her to lunch and making comments about Plaintiff's co-workers' "private lives and sexual preferences . . .[,]" and, on one occasion approaching the plaintiff "from behind, hugg[ing] her, and whisper[ing] in her ear a request for a cookie from another table[,]" did not suffice to establish a hostile working environment); Tatum v. Hyatt Corp., 918 F. Supp. 5, 7 (D.D.C. 1994) (holding that Plaintiff's allegation of one incident where supervisor wrapped his arms around her and made sexually explicit statements was not sufficient to establish a claim of a hostile working environment; "absent the most stringent circumstances, courts have refused to hold that one incident in itself was so severe as to create a hostile work environment.") (citations omitted): cf. Ferris v. Delta Air Lines. Inc., 277 F.3d 128, 136 (2d Cir. 2001) (holding that "[a]lthough a continuing pattern of hostile or abusive behavior is ordinarily required to establish a hostile environment, a single instance can suffice when it is sufficiently egregious[]" and holding that the plaintiff established that she suffered a Page 16 sexually hostile working environment where she alleged she was raped by a male co-worker).

  Accordingly, given the totality of the circumstances, including the Plaintiff's and Mr. Wallace's working relationship over the prior two years, Plaintiff's failure to ever voice any complaints to management that Mr. Wallace's behavior allegedly made plaintiff uncomfortable, and the fact that the conditions of Plaintiff's working environment were not altered, there being nothing in the record indicating that prior to or after this incident plaintiff was unable to perform efficiently in his work environment due to Mr. Wallace's conduct, see Lee-Crespo. 2003 WL 23095261, at *9 (holding that plaintiff did not establish a severe or pervasive hostile work environment where "the complained of conduct was episodic, but not so frequent as to become pervasive; was never severe; was never physically threatening (though occasionally discomforting or mildly humiliating); and significantly, was never according to the record, an impediment to [the Plaintiff's] work performance."), the Court grants summary judgment to the defendant on Plaintiff's sexual harassment claim.

 C. Plaintiff's Retaliation Claim

  Plaintiff alleges that after he complained about Mr. Wallace, he was retaliated against.*fn19 To establish a prima facie claim of retaliation, "plaintiff must establish that he Page 17 engaged in activity protected by Title VII, that the employer took an adverse employment action against him, and that the adverse action was causally related to the exercise of his rights." Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (citing Paquin v. Federal Nat'l Mortgage Ass'n, 119 F.3d 23, 31 (D.C. Cir. 1997)). Adverse actions are defined by the District of Columbia Circuit as "tangible employment action[s] [that] constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Brown v. Brody, 199 F.3d 446, 456-57 (D.C. Cir. 1999) (citations omitted). Once the plaintiff has established a prima facie case, it is the employer's burden "to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Texas Dep't of Cmtv. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Cones, 199 F.3d at 520-21. Once the defendant has met this burden, the burden then shifts back to the plaintiff "to demonstrate that the proffered reason was not the true reason for the employment decision[,] [which he can do] . . . either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 256 (citing McDonnell Douglas, 411 U.S. at 804-05). The Court finds that none of the actions plaintiff complains about constitute adverse actions sufficient to establish a case of retaliation or, alternatively, that plaintiff has failed to rebut the defendant's legitimate explanation for its actions.

  First, the plaintiff claims the defendant retaliated against him by re-assigning him Page 18 from the stock room to the building services department.*fn20 However, plaintiff did not testify that this assignment was a less desirable assignment; rather, when asked whether the assignment was less desirable, he stated, "Well, it didn't bother me, but I knew they did it because of retaliation." Def.'s Mot., Ex. A, Jones Dep. at 106. Furthermore, he was informed by his supervisor at that time, Laura Gaskins, that he was being transferred because he had stated that he did not want to work under Mr. Wallace's supervision. Id. at 107; see also Def.'s Mot, Ex. E, Declaration of Laura Gaskins, ("Gaskins' Decl.") ¶ 3 (stating that the plaintiff was transferred to the building services area in accordance with his request that he not work in an area that was under Mr. Wallace's management). Plaintiff does not deny making this request, although he stated that he did not even want to work in the same building as Mr. Wallace, because he still saw him daily, although Mr. Wallace did not speak to him. Def.'s Mot, Ex. A, Jones Dep. at 107, 110. Furthermore, it is undisputed that once Mr. Wallace was permanently transferred, plaintiff was brought back to the stock room to work, and Plaintiff's temporary reassignment did not result in the lost of grade level or pay. Id. at 132; Def.'s Mot, Ex. E, Gaskins' Decl. ¶ 4. These circumstances do not permit the Court to conclude that Plaintiff's temporary assignment to the building services department amounted to an adverse employment action. See Brodetski v. Duffey. 141 F. Supp.2d 35, 45 (D.D.C. 2001) (holding that "defendants' decision to change the office schedule, without allowing plaintiff leave to alter his personal schedule, did not Page 19 constitute an adverse action. Although plaintiff allege[d] that, because of the schedule revisions, he was forced to come in two hours early for his shift, `a mere inconvenience' is not sufficiently adverse to sustain a prima facie case.") (citation omitted). More significantly, plaintiff cannot refute the defendant's legitimate reason for his transfer, namely, that the defendant complied with Plaintiff's request that he not work under Mr. Wallace's supervision. See Lofton v. Rosens, 743 F. Supp. 6, 10 (D.D.C. 1990), aff'd, 950 F.2d 797 (D.C. Cir. 1991) (holding that plaintiff failed to establish that her transfer to another department was retaliatory as opposed to her employer's attempt to "diffuse a personality conflict."); cf. Villines v. United Brotherhood of Carpenters & Joiners of America. AFL-CIO, 999 F. Supp. 97, 106 (D.D.C. 1998) (holding that plaintiff established a prima facie claim of retaliation because the defendant's failure to transfer her out of her abusive working environment could be viewed as an "adverse personnel action" and there was a causal link between the filing of Plaintiff's complaint and the defendant's failure to transfer her).

  Next, plaintiff claims he was denied the opportunity to work overtime on the occasions when his co-worker, Mr. Newell, was out of the office. The defendant has stated that it is the policy of the Post Office to avoid paying overtime to reduce its expenses. Def.'s Mot., Ex. E, Gaskins' Decl. ¶ 8. Plaintiff does not refute this explanation in his opposition; he testified at his deposition that he did not "know about the Post Officers policie[s]." Def.'s Mot, Ex. A, Jones Dep. at 125. Plaintiff appears to argue that it would have made more sense, business wise, to grant him the overtime rather than give it to someone else. Id. However, "Title VII . . . does not authorize a federal court to become `a super-personnel department that reexamines an entity's Page 20 business decisions.'" Barbour v. Browner. 181 F.3d 1342, 1346(D.C. Cir. 1999) (citation omitted); see also Brodetski. 141 F. Supp. at 45 (holding that "[p]laintiff's . . . complaint concerning work inequity alleg[ing] that defendants required him to do the same work that employees did in higher positions[,]" was "the level of personnel decision-making in which courts should not meddle."). Accordingly, in light of Plaintiff's failure to refute the defendant's legitimate business reason for not affording him overtime, the Court concludes that Plaintiff's denial of overtime claim is not actionable.

  Finally,*fn21 plaintiff complains that the defendant's dismantling of a cubicle he and Mr. Newell used as their work station constituted retaliation. According to the affidavit of Laura Gaskins, this cubicle was dismantled because it was in disrepair and posed a safety hazard. Def.'s Mot., Ex. E, Gaskins' Decl. ¶ 5. Although plaintiff said that he "heard the rumor about [the cubicle] being unsafe[,]" he contends that the cubicle was not in disrepair and was removed solely in retaliation for his EEO complaint. Def.'s Mot., Ex. A, Jones Dep. at 113, 115. However, plaintiff did not testify that he was unable to complete his work assignments; rather, he testified that the result of the Page 21 cubicle being dismantled was that he "had no place to put none of [his] stuff[,]" which included "records and stuff[,]" although he testified that the cubicle was replaced with a desk, albeit a small one. Id. at 114-15. These facts do not support a finding of an adverse action sufficient to establish a prima facie case of retaliation. See, e.g., Brodetski, 141 F. Supp.2d at 45 (holding that "[p]laintiff's allegations that defendants denied him his right to choose a new workstation on two occasions do not constitute adverse employment actions even if they made plaintiff feel slighted or wrong.") (citation omitted).

  III. Conclusion

  For the reasons set forth above, the Court concludes that summary judgment regarding the Plaintiff's sexual harassment and retaliation claims is warranted in the defendant's favor. While Mr. Wallace's actions were not in accordance with proper workplace etiquette, "a supervisor's unprofessional managerial approach and accompanying efforts to assert his authority are not the focus of the discrimination laws." Lee Crespo. 2003 WL 23095261, at * 10. Nor are any of the claims of retaliation actionable as they were not adverse employment actions and the defendant has asserted legitimate reasons for its actions. Accordingly, summary judgment is entered in favor of the defendant and Plaintiff's complaint is dismissed with prejudice.

  SO ORDERED on this 22nd day of January, 2004.*fn22

  ORDER

  For the reasons set forth in the Memorandum Opinion that is being issued contemporaneously with this Order, it is hereby

  ORDERED that the defendant's motion for summary judgment is granted. It is further

  ORDERED that summary judgment shall be entered in the defendant's favor. It is further

  ORDERED that the Plaintiff's complaint is dismissed with prejudice. It is further

  ORDERED that the pretrial conference date of February 17, 2004, is vacated.

  SO ORDERED.


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