United States District Court for the District of Columbia
February 19, 2004.
ROSS A. CARTER, Plaintiff
ALAN GREENSPAN, Chairman, BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, Defendant
The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge
Plaintiff Ross Carter, an African-American male, was employed by the
Board of Governors of the Federal Reserve System ("the Board") from
December 1998 until May 1999. He has sued his employer, alleging sexual
harassment, disparate treatment and retaliation in violation of Title VII
of the Civil Rights Act of 1964, codified as amended at
42 U.S.C. § 2000e et seq. Defendant has moved for dismissal and summary
judgment on the grounds that, inter alia, plaintiff has failed
to present sufficient facts to establish a prima facie case of
discrimination or retaliation. As explained more fully below, defendant's
motion will be granted.
Mr. Carter was hired as a Payroll Specialist at the Board in late
December 1998. (Opp. at 3.) During the interview for the position, his
supervisors Charles Thompson and Bruce Shamberger stressed the importance
of teamwork in the office. (See Compl. ¶ 6; Thompson Decl.
¶ 3; Shamberger Decl. ¶ 3.) By mid-March 1999, however, Mr.
Carter's supervisors had
concluded that he was unable and unwilling to work as a
member of the Board's team. (Thompson Decl. ¶ 7; Shamberger Decl.
¶ 9.) He refused to be trained by anyone other than Mr. Shamberger,
objected to being trained for the same tasks as a female coworker, and
demanded that he be trained outside the presence of any of his
colleagues. (Shamberger Decl. ¶ 5.) He frequently locked the door to
his office, backed himself against hallway walls when passing others, and
exhibited other behaviors that made his coworkers
uncomfortable.*fn1 (Id. ¶ 5.)
His supervisors also expressed concern about his rate of absenteeism.
In his first three months on the job he had taken a significant amount of
unscheduled, and often unearned, leave. (Id. ¶ 7; Thompson
Decl. ¶ 5.) Mr. Carter responds by explaining that he missed a week
of work in January due to a stomach virus, and claims that Mr. Thompson
encouraged some, and approved all, of his leave time. (Compl. ¶¶ 9,
87; PL's Facts ¶ 5.)*fn2
Mr. Shamberger and Mr. Thompson both counseled Mr. Carter several times
about his antisocial behavior and excessive leave, but his work
performance did not improve. (Thompson Decl. ¶ 6; Shamberger Decl.
¶ 8.) Thus, on March 24, Mr. Thompson contacted Rena Carlton, an
Employee Relations Specialist at the Board, to discuss procedures for
terminating Mr. Carter's
employment. (Thompson Decl. ¶ 7; Carlton Decl. ¶¶
4-5.) Ms. Carlton advised Mr. Thompson that since Mr. Carter was still in
a provisional period, he could be terminated if his supervisors
determined that his performance and competencies indicated that he was
unsuitable for continued employment, but suggested that Mr. Thompson meet
with Mr. Carter first to discuss his performance deficiencies. (Carlton
Decl. ¶ 7.)
At a meeting involving Mr. Carter, Mr. Thompson and Mr. Shamberger on
March 29, Mr. Thompson informed Mr. Carter that management did not think
he was a good fit for the position, and that if he failed to improve his
teamwork and reduce his absences, he would be let go. (Compl. ¶ 26;
Thompson Decl. ¶ 9.) After being reprimanded, Mr. Carter alleged that
he had been sexually harassed by coworker Marcie Edwards during a
training session in January. (Compl. ¶ 28; Shamberger Decl. ¶
12.) He also claimed that Ms. Edwards had touched him inappropriately
that morning. (Shamberger Decl. ¶ 12.)
To address Mr. Carter's harassment allegations, Mr. Thompson again
contacted Ms. Carlton, who met with Mr. Carter on March 30, 1999.
(Carlton Decl. ¶¶ 8-9.) She explained that "he had the right to report
his allegations to the EEO office by contacting an EEO counselor," but
"Mr. Carter declined to contact the EEO office, indicating instead that
he thought a meeting among the parties would resolve the problem."
(Id. ¶ 9.) Ms. Carlton therefore met with Mr. Carter, Ms.
Edwards, and Mr. Thompson on March 31, at which time Mr. Carter
identified three instances in which Ms. Edwards allegedly touched him
inappropriately. (Compl. ¶ 30; Carlton Decl. ¶ 10; Thompson Decl.
According to the complaint, the first incidence of offensive conduct
occurred during a January 1999 training session when he was "caressed on
the knee by Ms. Edwards." (Compl. ¶ 70.) In late February or early
March, Ms. Edwards "placed her breast" on Mr. Carter's arm
while instructing him on payroll duties. (Id.
¶ 81.) And then, on March 29, Mr. Carter was in Mr. Shamberger's
office "looking for a particular payroll form when coworker Marcie
Edwards placed her fingers on plaintiffs buttocks." (Id. ¶
82.) While describing these incidents at the March 31 meeting, Mr. Carter
became "emotional and agitated," while Ms. Edwards "vigorously denied any
inappropriate touching and said she did not want to work with Mr. Carter
if he was going to make allegations like that."*fn3 (Carlton
Decl. ¶ 10.) Mr. Thompson suggested that Mr. Carter and Ms. Edwards
avoid interacting in person for a while, and asked them to communicate
with each other only by email. (Thompson Decl. ¶ 13.) They both
agreed. (Id.) To confirm that Mr. Carter's sexual harassment
claim had been dealt with to his satisfaction, Mr. Thompson sent an email
to Mr. Carter on April 9. (Id. ¶ 14.) Mr. Carter responded
by apologizing for some of his "offensive action," expressed his
willingness to email with Ms. Edwards, and indicated that "the whole
matter . . . will be dropped." (Email from Ross A. Carter to Chuck
Thompson, April 12, 1999.)
After the meetings with management, Mr. Carter's job performance
deteriorated further. He took three days of leave in the two weeks
following the meeting. (Shamberger Decl. ¶ 14.) His supervisor stated
that Mr. Carter refused to communicate with anyone but him, and although
he attempted to find work suitable for Mr. Carter given his limited level
of training, Mr. Carter "basically stopped working." (Shamberger Decl.
¶ 14.) Mr. Carter contends that management held training efforts in
abeyance and stopped assigning him work. (Compl. ¶¶ 36-37.) He
complains that after the meetings coworkers limited their contact with
him, and that he was
"ostracized." (PL's Facts ¶¶ 14-15.) He did not,
however, lodge any further complaints of sexual harassment with
management. (Carlton Decl. ¶ 11.)
Because Mr. Carter's performance showed no improvement, Mr. Thompson
went forward with his discharge. On April 20, 1999, Mr. Carter received a
Notice of Proposed Termination, citing his excessive absences and
inability to work well with others as the grounds for the proposal.
(See Compl. ¶ 105; Memorandum from Stephen J. Clark to Ross
A. Carter.) He was placed on paid administrative leave, during which time
the Board's Associate Director of Human Resources Functions, Darrell
Pauley, investigated the proposed termination by interviewing Mr. Carter,
his supervisors and his coworkers. (Pauley Decl. ¶¶ 4-6.) Mr. Carter
also submitted a letter to Mr. Pauley, in an attempt to explain the
"discriminatory behavior and retaliation" he was allegedly suffering.
(Opp. at 7; see also Letter from Ross A. Carter to Darrell R.
Pauley, April 27, 1999.) Mr. Pauley ultimately recommended termination of
Mr. Carter's employment, and Mr. Carter received notice that his
employment was terminated as of May 15, 1999, due to his "inability and
apparent unwillingness to work effectively as part of the payroll team."
(Letter from Darrell R. Pauley to Ross A. Carter, May 7, 1999.) On May
19, 1999, Mr. Carter contacted the Board's Equal Employment Opportunity
Office to complain about the sexual harassment he had allegedly
experienced.*fn4 (Compl. ¶ 50.) Plaintiff thereafter
filed this action pro se.
STANDARD OF REVIEW
Defendant has moved to dismiss or, in the alternative, for summary
judgment. Under Rule 12(b)(6), dismissal is appropriate only where a
defendant has shown "`beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief" In
re Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1442
(D.C. Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1955)). The allegations in Mr. Carter's complaint are presumed true for
purposes of a 12(b)(6) motion, and all reasonable factual inferences
should be construed in his favor. Maljack Prods., Inc. v. Motion
Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995);
Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir.
1979). If factual matters outside the pleadings are submitted and
considered by the court, however, the motion must be treated as a summary
judgment motion under Fed.R.Civ.P. 56. In such cases, the standard
changes from determining "whether a claim for relief has been stated" to
determining whether there is a "genuine issue of material fact in
dispute" and if "the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c).
Under Rule 56, the Court shall grant summary judgment if the pleadings,
depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine issue of material fact, and that
the moving party is entitled to judgment as a matter of law. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A dispute about a
material fact is genuine, and should preclude summary judgment, if a
reasonable jury could return a verdict in favor of the non-moving party.
Id. at 248. In contrast, a moving party is entitled to summary
judgment against "a party who 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).*fn5
In considering a motion for summary judgment, "the court must draw all
reasonable inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see
also Washington Post Co. v. United States Dep't of Health and Human
Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). However, the nonmoving
party's opposition must consist of more than mere unsupported allegations
or denials and must be supported by affidavits or other competent
evidence setting forth specific facts showing that there is a genuine
issue for trial. See Fed.R.Civ.P. 56(e); Celotex,
477 U.S. at 324. "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Liberty
Lobby, 477 U.S. at 249-50 (internal citations omitted).
The court, therefore, "must assume the truth of all statements
proffered by the party opposing summary judgment" except for
wholly conclusory statements for which no supporting evidence is offered.
Greene v. Dalton, 164 F.3d 671, 674-75 (D.C. Cir. 1999). "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." Waterhouse v. Dist. of Columbia, 124 F. Supp.2d 1,
4 (D.D.C. 2000), aff'd, 298 F.3d 989 (D.C. Cir. 2002). In
addition, Local Civil Rule 7(h) provides that "[a]n opposition to such a
motion shall be accompanied by a separate concise statement of genuine
issues setting forth all material facts as to which it is contended there
exists a genuine issue necessary to be litigated, which shall include
references to the part of the record relied on to support the statement."
As a pro se plaintiff, Mr. Carter was advised by the Court
that factual assertions in defendant's sworn statements would be accepted
as true unless he submitted his own affidavits, verified complaint, or
documentary evidence contradicting them. (See Order December 17,
2003). See also L.Cv.R. 7(h) ("the court may assume that facts
identified by the moving party in its statement of material facts are
admitted, unless such a fact is controverted in the statement of genuine
issues filed in opposition to the motion"). Despite the requirements of
the local rules and the Court's admonition that simple allegations would
be insufficient to oppose a summary judgment motion, Mr. Carter has
submitted almost nothing more. "Plaintiffs Statement of Material Facts as
to Which it is Contended There Exists a Genuine Issue Necessary to be
Litigated" ("Pl.'s Facts") fails to controvert most of the facts set
forth by defendant, instead it merely repeats the complaint's allegations
Thus, the Court will assume that Mr. Carter admits those facts
presented by defendant in its statement of material facts and
accompanying declarations which he does not refute. While he has not yet
had the opportunity to conduct significant discovery, Mr. Carter has
submit a sworn statement or a verified complaint, even
after court prompting.*fn6 But even assuming the
unsubstantiated facts presented by Mr. Carter in his pleadings and in his
complaint are true, he has failed to present a genuine issue of material
fact that would preclude the entry of summary judgment.
I. Sexual harassment claim
Mr. Carter claims that he "was placed in a hostile work environment
because the conduct in question was unwelcome . . . [and] sufficiently
severe or pervasive to alter the condition of his employment." (Compl.
¶ 84.) Defendant contends that Mr. Carter's sexual harassment claim
should be dismissed because: 1) he failed to bring it to an EEO counselor
on a timely basis and thus did not exhaust administrative remedies; 2) as
a matter of law the incidents he describes do not constitute actionable
harassment; and 3) the Board took prompt and appropriate corrective
action when it learned of the alleged harassment.
A Title VII plaintiff must exhaust administrative remedy requirements
set forth in the Act's implementing regulations in order to preserve the
right to proceed with a claim against the employer in court. See
Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985); Lloyd v.
Chao, 240 F. Supp.2d 1, 3 (D.D.C. 2002). These regulations require
an aggrieved party to initiate contact with an EEO counselor within 45
days of the alleged incident in an effort to resolve the situation
informally. See 29 C.F.R. § 1614.105(a). Mr.
Carter claims that he was sexually harassed on three occasions, the last
of which occurred on March 29, 1999. Thus, he had until May 13, 1999 to
initiate the EEO process.*fn7 It is undisputed, however, that
he did not contact an EEO counselor until May 19, 1999.*fn8
Mr. Carter contends, however, that he was led to erroneously believe that
Ms. Carlton, a Board Employee Relations Specialist, was an EEO counselor,
and that the meeting he attended with her, Mr. Thompson and Ms. Edwards
on March 31, 1999 was an "informal EEO complaint meeting" that initiated
the "informal EEOC complaint discrimination process." (Compl. ¶¶ 30,
41; Opp. at 11.)
Although the 45-day time limit may be equitably tolled, it is extended
"only in extraordinary and carefully circumscribed instances." Smith
v. O'Neill, 277 F. Supp.2d 12, 17 (D.D.C. 2003) (citing Mondy
v. Sec'y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)). For
example, the 45-day period may be extended "when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them. . . ." 29 C.F.R. § 1614.105(a)(2). If the
information is available to the employee, however, he cannot claim
unawareness as an excuse for missing the deadline. O'Neal v.
England, No. 02-0172, 2003 WL 21788956, at *2 (D.D.C. July 17, 2003)
(summary judgment granted for defendant when plaintiff claimed he was
unaware of the 45-day deadline but record revealed that plaintiff had
been given the information); Pauling v. Sec `y of the Dept. of the
Interior, 960 F. Supp. 793, 804-05
(S.D.N.Y. 1997) (same). Courts may also toll the time
limit when the defendant engaged in affirmative misconduct that caused
plaintiff to miss the deadline. Williams v. Munoz, 106 F. Supp.2d 40,
43 (D.D.C. 2000) (citing Washington v. WMATA,
160 F.3d 750, 752-53 (D.C. Cir. 1998) (equitable tolling would be applied if
defendant "tricked" plaintiff into allowing the filing deadline to
pass)); Jarrell v. USPS, 753 F.2d 1088, 1092 (D.C. Cir. 1985)
(equitable tolling allowed where plaintiff failed to contact an EEO
counselor in reliance on the advice of a government official).
Mr. Carter does not claim that he was unaware of the 45-day time limit
for EEO notification (see Opp. at 12), and the record
demonstrates that Mr. Carter was informed of the
deadline.*fn9 While the evidence indicates that Mr. Carter
indeed may have believed that Ms. Carlton was an EEO counselor
(see Letter from Mr. Carter to Mr. Pauley, April 27, 1999),
there is no evidence to support plaintiffs conclusory claim that
"Mr. Thompson and Ms. Carlton made Plaintiff think Ms. Carlton
was an EEO counselor." (Pl.'s Facts ¶ 9.)
In fact, Ms. Carlton's declaration directly refutes Mr. Carter's
unsubstantiated allegation that he was misled by describing how she
informed him of his right to contact an EEO counselor on March 30, 1999
and recounting his refusal to do so. (Carlton Decl. ¶¶ 8-9.)
Furthermore, the Board's EEO Programs Director has stated that EEO
complaint procedures were distributed to all
employees in multiple formats, identifying EEO counselors
and providing their contact information, and that Ms. Carlton was not on
that list. (Clark Decl. ¶¶ 2-3.) The record is void of any evidence of
affirmative misconduct on defendant's part, and therefore, Mr. Carter's
misconception cannot serve to extend the deadline for EEO action. See
Brucks v. O'Neill, 184 F. Supp.2d 1103, 1112 (D. Kan. 2001)
(employee's assumption that EEOC representative she contacted was an EEO
counselor when in fact he was an EEO specialist, stemming from the
specialist's advice that management took this type of claim very
seriously, his authoritarian tone, and his suggestions regarding how to
solve the problem, did not rise to the level of "active deception"
required to warrant equitable tolling of the 45-day deadline).
Moreover, the fact that Mr. Carter engaged in an internal dispute
resolution procedure with his supervisors and a human resources
representative cannot replace the required initial contact with an EEO
counselor within 45 days of the allegedly offensive incident. See
Johnson v. Henderson, 314 F.3d 409, 415-16 (9th Cir. 2002) (although
plaintiff complained regularly to supervisors and complied with internal
sexual harassment complaint procedures, this conduct did not extend
official EEO deadline); Washington, 160 F.3d at 752-53 (deadline
was not extended even though plaintiff claimed that employer's touting of
internal procedures as the appropriate complaint forum lulled him into
presuming he had met the necessary requirements); Steiner v.
Henderson, 194 F. Supp.2d 688, 690-91 (N.D. Ohio 2002),
aff'd, 354 F.3d 432 (6th Cir. 2003) (plaintiff's diligent
pursuit of her grievances through supervisory channels did not excuse her
from filing a timely claim with the EEO); Dillard v. Runyon,
928 F. Supp. 1316, 1327 (S.D.N.Y. 1996), aff'd, 108 F.3d 1369 (2d
Cir. 1997) (supervisor's knowledge of complaint and failure to advise
employee to contact EEO counselor did not constitute affirmative
the tolling of the 45-day period).*fn10
Plaintiffs sexual harassment claim is therefore appropriately dismissed
for failure to exhaust administrative remedies.
B. No actionable harassment
Even assuming arguendo that Mr. Carter did exhaust the
necessary administrative remedies, his sexual harassment claim would
nonetheless fail for several reasons. Title VII is not a "general
civility code for the American workplace." Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998). It does not serve as
a remedy for all instances of verbal or physical harassment, but only
those creating a hostile work environment. Id. A workplace is
not "hostile" under Title VII unless the offensive conduct "permeates the
workplace with discriminatory intimidation, ridicule or insult that is
sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment." Williams v.
Verizon Washington, D.C., Inc., 266 F. Supp.2d 107, 124 (D.D.C.
2003) (quoting Barbour v. Browner, 181 F.3d 1342, 1347 (D.C.
Therefore, to sustain a sexual harassment
claim, the alleged incidents must be "more than
episodic; they must be sufficiently continuous and
concerted in order to be deemed pervasive." Id. (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1 (1998));
see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264
(5th Cir. 1999) ("All of the sexual hostile environment cases decided by
the Supreme Court have involved patterns or allegations of extensive,
long lasting, unredressed, and uninhibited sexual threats or conduct that
permeated the plaintiffs' work environment."). It is not enough,
furthermore, that the plaintiff feel intimidated or abused. To be
actionable, the offensive conduct must create "an objectively hostile or
abusive work environment an environment that a reasonable person
would find hostile or abusive. . . ." Harris, 510 U.S. at 21
(1993); see also Oncale, 523 U.S. at 81 ("the objective severity
of the harassment should be judged from the perspective of a reasonable
person in the plaintiff's position, considering all the circumstances")
(internal quotation and citation omitted).
Assuming that Mr. Carter's allegations that Ms. Edwards "caressed [him]
on his knee," "placed her breast on [his] arm," and "placed her fingers
on [his] buttocks" are true, as one must do at this stage, these three
isolated incidents are not sufficiently severe in quantity or quality to
unreasonably interfere with plaintiff's work performance or create a
hostile work environment. Workplace sexual harassment claims based on
such minor allegations are dismissed because "isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the
`terms and conditions of employment.'" Faragher, 524 U.S. at
788. See, e.g., Hilt-Dyson v. City of Chicago, 282 F.3d 456,
463-64 (7th Cir. 2002) (allegations that supervisor twice rubbed
plaintiff's back and shoulders and stared at her inappropriately were
insufficient to create hostile work environment); Gupta v. Fla. Bd.
of Regents, 212 F.3d 571, 585 (11th Cir. 2000) (claim that coworker
momentarily put his hand on plaintiff's knee, touched the hem of her
dress, touched her ring and bracelet, and repeatedly asked her to lunch
did not establish a hostile environment
claim); Valentine-Johnson v. Roche, 238 F. Supp.2d 911,
917 (E.D. Mich. 2003) (claim that supervisor put his arm around
plaintiff without her consent and stood too close to her did not rise to
the level of "severe and pervasive" harassment); Murray v.
City of Winston-Salem, 203 F. Supp.2d 493, 498-99 (M.D.N.C.
2002) (allegations that supervisor made a suggestive comment to
plaintiff, put his arm around her, touched her thigh twice, and
inappropriately stared at her were insufficient to establish a hostile
Moreover, Mr. Carter has failed to present evidence that Ms. Edwards'
conduct was objectively "physically threatening or humiliating," or that
a reasonable person would view the conduct as severe, abusive, or even
distracting. See Gupta, 212 F.3d at 586. Instead, the record
suggests that Mr. Carter's discomfort with the incidents stems from his
general discomfort with being in close proximity to other
people.*fn12 Despite his extreme sensitivities, the alleged
harassment represents, at most, "ordinary tribulations of the workplace."
Faragher, 524 U.S. at 788.
There is nothing, furthermore, to support or corroborate Mr. Carter's
assertion that Ms. Edwards' alleged conduct was attributable to his
gender or was in any way sexual in nature. See
Oncale, 523 U.S. at 80-81 (plaintiffs who pursue
sexual harassment claims "must always prove that the conduct at issue was
not merely tinged with offensive sexual connotations, but actually
constituted discrimination because of sex"); Hartsell v. Duplex
Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997) (sexual harassment
plaintiff must present evidence to show that but for the fact of her sex,
she would not have been the object of harassment). Mr. Carter's
submissions illustrate the contrary. After the first alleged harassment
incident, he claims that he accused Ms. Edwards of inappropriately
touching him, and she responded by stating that she had no personal
interest in plaintiff and asked him to leave her office. (Compl. ¶¶
71-72; Opp. at 14.) Mr. Carter again accused her of improper conduct
after the third incident, and she was so "extremely upset by these
allegations" that she sought Ms. Carlton's advice. (Carlton Decl. ¶
8.)*fn13 While the fair inference from the undisputed evidence
is that the incidents of touching were merely inadvertent, the Court does
not rest its decision on that basis. Instead, it concludes, crediting
plaintiff's allegations and assuming intentional touchings, that Mr.
Carter's complaints of subjective discomfort do not warrant Title VII
relief because these incidents fall outside the law's prohibition against
Finally, the defendant can only be held liable for Ms. Edwards' conduct
if it "knew or should have known of the [alleged] harassment and failed
to implement prompt and appropriate corrective action." Curry v.
Dist. of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999). Corrective
action is appropriate if it is reasonably designed to stop coworker
harassment. Coles v. Kelly Servs., Inc., 287 F. Supp.2d 25,
31-32 (D.D.C. 2003) (citing Landgraf v. USI Film Prods.,
968 F.2d 427, 430 (5th Cir. 1992), aff'd, 511 U.S. 244 (1994)).
Although Mr. Carter states that he "does not believe management fully
investigated his claim of sexual harassment" (Pl.'s Facts ¶ 21), he
does not deny that his supervisors responded quickly and reasonably to
his complaint by immediately involving an Employee Relations Specialist,
conducting a meeting with the parties, and arriving at a workable
solution for everyone involved. Indeed, he responded to Mr. Thompson's
email confirming the satisfactory resolution of the matter by indicating
that the "whole matter . . . will be dropped." Management could be
expected to do nothing more for his protection. See Coles,
287 F. Supp.2d at 32.
For the above reasons, Mr. Carter has failed to establish a prima
facie hostile work environment claim and thus, his sexual harassment
claim will be dismissed.
II. Disparate treatment based on gender
Among the complaint's sexual harassment allegations, Mr. Carter also
seems to be alleging that he was subject to disparate treatment at the
workplace based on his gender. Mr. Carter appears to be complaining that
he was treated differently than a female coworker in two respects. He
alleges that while he was required to complete a series of calculations
before being trained on a specific process, his supervisor did not
require his female colleague to do the equivalent calculations before
training. (Compl. ¶¶ 75-80.) Secondly, he suggests that he was
"reprimanded for excessive absenteeism," while a female coworker
"[n]otably . . . was absent
from work much longer" than he was, which "did not seem
to concern management, nor did it appear to create problems."
(Id. ¶ 16; Opp. at 4; PL's Facts ¶ 5.)
Under Title VII, in order to state a prima facie case of
gender discrimination Mr. Carter must establish that: (1) he is a member
of a protected class; (2) he suffered an adverse employment action; and
(3) the unfavorable action gives rise to an inference of discrimination.
Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). He cannot
prevail, therefore, unless his employer took some adverse action because
of his membership in a statutorily protected group. See Forkkio v.
Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002).
Actions short of an outright firing can be adverse, but not all
personnel decisions with negative consequences for the employee
necessarily qualify as adverse actions. To be legally sufficient, the
action must have had "materially adverse consequences affecting the
terms, conditions, or privileges of [plaintiff's] employment or
[plaintiffs] future employment opportunities. . . ." Brown,
199 F.3d at 457; see also Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998) ("A tangible employment action constitutes 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."). Thus, changes
such as demotion, undesirable reassignment, or the loss of a bonus may be
sufficiently significant, see Faragher, 524 U.S. at 808;
Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001), but
actions imposing purely subjective harms, such as dissatisfaction or
humiliation, are not adverse. See Forkkio, 306 F.3d at 1130-31;
Childers v. Slater, 44 F. Supp.2d 8, 19 (D.D.C. 1999) ("conduct
that sporadically wounds or offends but does not hinder an employee's
performance does not rise to the level of adverse action"), modified
on reconsideration, 197 F.R.D. 185 (D.D.C. 2000); Jones v.
Billington, 12 F. Supp.2d 1, 13 (D.D.C. 1997), aff'd, No.
98-5014, 1998 WL 389101
(B.C. Cir. Jun 30, 1998) ("not everything that makes an
employee unhappy is an actionable adverse action").
Applying these governing legal principles, the Court must conclude that
plaintiff's claim of gender-based disparate treatment falls woefully
short of constituting "adverse employment actions." He may well have been
offended by the imposition of different training requirements and hurt by
his supervisor's reprimands, but he did not experience a change in job
responsibilities of the magnitude necessary to give rise to a cause of
action. See Bryant v. Brownlee, 265 F. Supp.2d 52, 62 (D.D.C.
III. Retaliation claim
Mr. Carter claims that after he voiced his allegations of sexual
harassment, he was retaliated against, which created a hostile work
environment and led to his termination. In order to establish a
retaliation claim, he must demonstrate that: (1) he engaged in a
statutorily protected activity; (2) the employer took an adverse
personnel action; and (3) a causal connection existed between the two.
See Brown, 199 F.3d at 452. Causation is often demonstrated by
proximity in time, see Gleklen v. Democratic Congressional Campaign
Comm., Inc., 199 F.3d 1365, 1368 (B.C. Cir. 2000), but can be
negated by evidence discrediting any claim of retaliation. See
Roberts v. Segal Co., 125 F. Supp.2d 545, 550 (D.D.C. 2000).
If Mr. Carter establishes a prima facie case, the Board must
articulate a legitimate, nondiscriminatory reason for its actions.
See Bryant, 265 F. Supp.2d at 67 (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). The Board's burden is
only one of production, however, and it "need not persuade the court that
it was actually motivated by the proffered reasons." Id. (citing
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55
(1981)). If the Board is successful, the burden shifts back to Mr. Carter
to show that the Board's stated reason was a mere pretext for
retaliation. Id. (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000)). Pretext may be established
"by showing that the employer's proffered explanation is unworthy of
credence." Burdine, 450 U.S. at 256. The Court may also
"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 143
(citation and internal quotations omitted). However, "[i]t is not enough
for the plaintiff to show that a reason given for a job action is not
just, or fair, or sensible. He must show that the explanation given is a
phony reason." Fischbach v. D.C. Dep't of Corrections,
86 F.3d 1180, 1183 (D.C. Cir. 1996).
A. Retaliatory hostile work environment
Mr. Carter has alleged that both management and his coworkers
retaliated against him after he brought the accusations against Ms.
Edwards to the attention of his supervisors. He claims that "management
held training in abeyance," and "stopped assigning [him] work." (Compl.
¶¶ 36-37.) He also complains that his supervisors permitted his
coworkers "to use e-mail to contact him, . . . to bar him from
entering their offices and . . . not to allow [him] to use the
equipment in their offices." (Opp. at 13.) Against his coworkers, he
alleges that several of them sent him (and their supervisors) a
memorandum "stating they did not want to work with
[him] because he had participated in the informal EEOC
complaint process against co-worker Marcie Edwards." (Compl. ¶ 115.)
He also provides a specific example of a coworker's refusal to interact
with him, alleging that a Ms. Jefferson told him "he could no longer come
into her office to use her printer." (Id. ¶ 98.)
As in general disparate treatment cases, an "adverse personnel action"
can result from retaliatory actions of management that have materially
adverse consequences affecting the terms, conditions, or privileges of
the employee's position. See Walker v. WMATA, 102 F. Supp.2d 24,
29 (D.D.C. 2000) (an "employment decision does not rise to the level
of an actionable adverse action . . . unless there is a tangible
change in the duties or working conditions constituting a material
employment disadvantage"). As in claims alleging hostile work
environments created by sexual harassment, retaliatory harassment claims
must demonstrate severe or pervasive retaliation relative to the
circumstances of the workplace. See Bryant, 265 F. Supp.2d at
Assuming that training sessions and new assignments were in fact
deferred, Mr. Carter's employment was affected for a period of only
eleven working days, and he fails to address how these changes actually
disadvantaged him such that they could be considered adverse personnel
actions. See Haddon v. Executive Residence at the White House,
313 F.3d 1352, 1364 (Fed. Cir. 2002) ("Most of the actions that courts
have recognized as adverse employment actions are more tangible and
permanent than [a] short suspension without loss of pay. . . .").
Even if they amount to severely detrimental employment changes, which
they are not, it is obvious from the record that the Board's actions were
not caused by Mr. Carter's complaints about Ms. Edwards, but by his own
performance deficiencies. It is difficult to train an employee who comes
"in to work in the morning and close[s] his door, refusing to communicate
with anyone" other than his direct supervisor, and nearly impossible to
assign tasks to someone who refuses to work with the
other staff and has "basically stopped working."
(Shamberger Decl. ¶ 14.) It is reasonable, moreover, to assume that
an employer would choose not to expend training resources or assign new
projects to an employee on the verge of termination. (See id.
¶ 9, 11.) Furthermore, Mr. Carter claims that he was subject to
disparate treatment before he alleged sexual harassment, as
discussed in Part II above, which undermines any causal inference.
See Roberts, 125 F. Supp.2d at 550 (plaintiffs admission that
offensive behavior preceded her protective activity rendered causal
connection illogical). The undisputed evidence therefore precludes the
conclusion that management made changes in Mr. Carter's employment
because of his EEO activity.
Mr. Carter's claim that his coworkers retaliated against him also
suffers from a failure to establish causation. Descriptions of his
"unusual zone of privacy" and his difficulties getting along with his
coworkers indicate that he was complicit in undermining their working
relationships. See Bryant, 265 F. Supp.2d at 69. The evidence
also demonstrates that Mr. Carter's difficulties working with his
colleagues preceded his EEO complaint by many months. (See,
e.g., Shamberger Decl. ¶ 4 ("Shortly after Mr. Carter began his
employment at the Board, I became aware of performance problems related
to his inability to work well with others.").) This evidence further
undercuts any proof or presumption of causation. See Bryant,
265 F. Supp.2d at 70.
In any event, "shunning or ostracism by co-workers and supervisors is
insufficient to sustain a retaliation claim." Id.; see also Williams
v. City of Kansas City, 223 F.3d 749, 754 (8th Cir. 2000)
("[Defendant's] silent treatment [of plaintiff] is at most ostracism,
which does not rise to the level of an actionable adverse employment
action."); Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000)
("`mere ostracism' by co-workers does not constitute an adverse
employment action"). The fact that Mr. Carter believes he was getting the
cold shoulder from his
coworkers simply does not constitute a materially adverse
consequence or disadvantage in the terms and conditions of his employment
so as to establish an adverse personnel action. See Roberts,
125 F. Supp.2d at 549; Raymond v. U.S. Capitol Police Bd.,
157 F. Supp.2d 50, 59 (D.D.C. 2001).
B. Retaliatory termination
Although termination from an employment position clearly constitutes an
adverse personnel action for Title VII purposes, see, e.g.,
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998), Mr.
Carter's retaliation claim suffers from a lack of evidence of causation.
The sworn declarations submitted by defendant consistently aver that by
March 24, 1999, management had decided to fire Mr. Carter. (Thompson
Decl. ¶ 7; Shamberger Decl. ¶ 9; Carlton Decl. ¶ 4.) Mr.
Thompson stated that he contacted Ms. Carlton on that date because he
"wanted to terminate [Mr. Carter] immediately." (Thompson Decl. ¶ 7.)
On March 26, Mr. Shamberger told Mr. Carter that he was going to meet
with him on March 29, and in that meeting, he and Mr. Thompson discussed
Mr. Carter's deficiencies, basically telling him to "shape up or ship
out." (Shamberger Decl. ¶¶ 9, 11.) It was then that Mr. Carter
asserted to management for the first time that he had been
sexually harassed by Ms. Edwards. (Id. ¶ 12.) In fact, in
the complaint Mr. Carter identifies March 30, the day he first met with
Mr. Carlton, as the initiation of "the informal EEOC complaint
discrimination process." (Compl. ¶ 101.) Because his supervisors'
dissatisfaction with his performance and their intentions to terminate
him predated his protected activity, his retaliatory discharge claim is
illogical and must be dismissed.*fn15 See Trawick v.
Hantman, 151 F. Supp.2d 54, 63 (D.D.C. 2001), aff'd,
No. 01-5309, 2002 WL 449777 (D.C. Cir. Feb 21, 2002)
(because the termination process had already been initiated, no
reasonable juror could conclude that the termination had been caused by
the EEO activity).
Even if Mr. Carter could establish a prima facie case,
defendant has produced non-retaliatory, legitimate reasons for
plaintiffs termination, and plaintiff has been unable to adduce any
evidence of pretext. The letters proposing and effecting his discharge
echo the consistent concerns voiced by his supervisors: despite the fact
that "the ability to work in close proximity to others and part of a team
[was] crucial to [his] job," and the Board's attempts to "work around
[his] sensitivity to physical contact," he consistently "demonstrated an
unwillingness and an inability to work well with others," and through his
conduct "indicated that [he was] not willing to deal face-to-face with
other staff on a continuing basis." (Letter from Mr. Clark to Mr. Carter,
April 20, 1999.) As a second grounds for termination, Mr. Carter's
"unanticipated and excessive absences [were] disruptive" (id.),
and would not be any less so even if they were approved by management as
Mr. Carter contends.
In evaluating the Board's justification for its actions, "the issue is
not the correctness or desirability of the reasons offered but whether
the employer honestly believes in the reasons it offers."
Trawick, 151 F. Supp.2d at 63 (citing Fischbach, 86
F.3d at 1183). The record before the Court is devoid of any reason to
doubt the Board's rationale. Mr. Carter does not refute the Board's
assertions that teamwork was critical in his position, and he makes
little attempt to
dispute the sworn statements of his supervisors
describing his numerous problems with coworkers.*fn16
Moreover, Mr. Thompson and Mr. Shamberger explained to Mr. Carter that
his performance inadequacies were the reason for their March 29, 1999
meeting (see Compl. ¶ 88), and both the official who
proposed Mr. Carter's discharge and the manager who officially terminated
his employment have declared that Mr. Carter's sexual harassment
complaint had no bearing on their decision. (Clark Decl. ¶ 5; Pauley
Decl. ¶ 7.)
"Filing a Title VII action . . . is meant to shield employees from
the discriminatory actions of their employers, not to excuse an
employee's poor job performance, impudence, or insubordination."
Gregg v. Hay-Adams Hotel, 942 F. Supp. 1, 9-10 (D.D.C. 1996). Mr.
Carter has not demonstrated that he was terminated for any reason other
than his performance deficiencies, and thus, his retaliation claim must
IV. Improper evidence submission claim
Mr. Carter's final claim in Count III relates to the administrative
phase of his case. He complains that the Board introduced an updated
version of its Sexual Harassment brochure during the administrative
proceeding a version that became effective after plaintiffs
termination. (Compl. ¶ 121-122.) In support of this claim he cites
29 C.F.R. § 1614.109, which provides for an "adverse inference and other
sanctions" when a party commits "misconduct in the development of the
record." (Opp. at 1.) This regulation provides sanctions that an
administrative law judge may impose if the agency "fail[s] without good
cause shown to respond fully and in timely fashion to an order of an
administrative judge." 29 C.F.R. § 1614.109(f)(3).
Mr. Carter offers no authority, however, to suggest that this
regulation gives rise to a private right of action in federal court, and
even more significantly, fails to identify any injury with respect to its
alleged violation. Instead, it is clear that Title VII creates no
independent cause of action for the mishandling of an employee's
discrimination complaints, see Nelson v. Greenspan,
163 F. Supp.2d 12, 18 (D.D.C. 2001), and in any event, Mr. Carter's failure to
identify any injury he may have suffered from the alleged substitution of
an updated brochure requires the Court to dismiss the claim.
Plaintiff has failed to present a genuine issue of material fact that
would preclude the entry of summary judgment for defendant on Counts I
and II of his complaint, and has failed to state a claim for relief with
respect to Count III. Defendant's motion, therefore, will be granted, and
the complaint will be dismissed with prejudice. A separate Order
accompanies this Memorandum Opinion.
For the reasons presented in the accompanying Memorandum Opinion, it is
this 19th of February, 2004, hereby
ORDERED that defendant's Motion to Dismiss or, in the
Alternative, for Summary Judgment is GRANTED; and it is
FURTHER ORDERED that plaintiff's complaint is DISMISSED
THIS IS A FINAL APPEALABLE ORDER.