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.
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 ...