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CARTER v. GREENSPAN

February 19, 2004.

ROSS A. CARTER, Plaintiff
v.
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

MEMORANDUM OPINION

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.

BACKGROUND

  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 Page 2 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 Page 3 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. ¶ 12.)

  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 Page 4 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 Page 5 "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. Page 6

  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 Page 7 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 Page 8 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 and conclusions.

  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 neglected to Page 9 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 ...


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