United States District Court for the District of Columbia
January 22, 2004.
Milford S. Jones, Plaintiff,
John E. Potter, Post Master General, United States Postal Service, Defendant
The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
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
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,
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.
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
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
reassignment to ensure that plaintiff never works with Mr. Wallace
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.
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
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
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
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
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
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
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
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
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
allegedly harassing behavior was so pervasive as to alter Plaintiff's
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
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,
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
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
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
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
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
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
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
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
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.