The opinion of the court was delivered by: John D. Bates, United States District Judge
In this action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., plaintiff Robert Burton claims that he was the victim of unlawful sexual harassment and retaliation by defendant National Labor Relations Board ("NLRB"), and specifically by his supervisor Lisa Bevels. Based on factual materials in the record, but prior to full discovery, the NLRB has moved to dismiss or for summary judgment. Treating the motion as one for summary judgment pursuant to Fed.R.Civ.P. 56 as provided in Fed.R.Civ.P. 12(b), the Court will grant the motion.
Plaintiff Burton, an African American male, is employed at NLRB as a GS-12 budget analyst responsible for planning, developing, coordinating and justifying formal NLRB budget submissions. Compl. ¶ 6. He first met Lisa Bevels, a white female, in December 2000 when she began employment at NLRB as the Deputy Budget Chief; Burton assisted her in learning that job. Id. ¶ 7. Bevels indicated in January 2001 that she intended to write performance plans to upgrade all GS-12 positions in the Budget Branch to GS-13. Id. ¶ 8. Beginning in January 2001, Bevels and Burton began to have coffee together each morning, and Burton alleges that during these meetings Bevels began to discuss intimate details of her personal life, including difficulties with her father and her ex-husband. Id. ¶ 9. Burton alleges that in April 2001,"Bevels pointedly asked Burton,'Do you like and would you ever marry a white woman?' Burton firmly responded,'No'." Id.
Another budget analyst, Bill Snuggs, who had previously worked with Bevels, was hired in April 2001 as a GS-12. Id. ¶ 10. Plaintiff alleges that although Snuggs had no prior budget experience as a GS-12 or at NLRB, his position was upgraded to a GS-13 within 90 days. Id. Burton claims that when he learned of Snuggs' advancement, he met with Bevels and Harding Darden, the Budget Branch Chief, to inquire, whereupon Bevels stated that she planned to upgrade all positions soon and asked Burton to remain at NLRB. Id. ¶ 11. Darden died in November 2001, and Bevels became acting Branch Chief and then in March 2002 became Branch Chief. Id. ¶ 14. According to Burton,"[i]n January 2002, Bevels terminated all personal conversations of a sexual nature with me." Pl.'s Opp'n, Ex. A (Burton Decl.) at ¶ 16.
Burton asked Bevels for a performance rating in January 2002 after observing no movement towards an upgrade of his position. Id. ¶ 17; Compl. ¶ 15. Burton contends that in January 2002 he also contacted the EEO office of NLRB to inquire about filing a formal complaint. Burton Decl. ¶ 18; Compl. ¶ 15. In February 2002, Bevels and Burton met, and Bevels"threatened to issue me a poor evaluation after I inquired at the EEO office about the lack of a performance appraisal." Burton Decl. ¶ 19; see Compl. ¶ 16. Burton also alleges that in February 2002 he sought EEO counseling"on sexual discrimination, lack of a performance rating and other matters." Burton Decl. ¶ 20; see Compl. ¶ 16.
The meeting between Bevels and Burton regarding his performance rating occurred on February 20, 2002. There is evidence that, at that meeting, Bevels told Burton that based on his performance at the time, she would have to give him a low rating. See Defs.' Motion to Dismiss, Ex. 1 (Bevels Aff.) at 13-14, Ex. 3 (Burton to Bevels Memo. dated Feb. 20, 2002), and Ex. 4 (Bevels to Burton Memo. dated Feb. 25, 2002). In his memorandum of February 20, Burton claimed that he was qualified for a Grade 13 position and informed Bevels that he had not received a written performance appraisal since 1999; he copied his memorandum to the EEO office. Burton Feb. 20 Memo. at 1-2. In her responsive memorandum of February 25, Bevels detailed some of the problems she observed with plaintiff's work. It was apparently on February 25, 2002, that Burton made his initial contact with the NLRB's EEO office. See Defs.' Motion to Dismiss, Ex. 5 (EEO Counselor's Report) at 1.
Burton alleges in his Complaint that, since he engaged in EEO activity, Bevels and the NLRB have taken several discriminatory and retaliatory actions against him, including: failing to provide performance appraisals until May 2002; providing him a minimally successful rating for the periods ending May 2002 and May 2003; denying him a within grade increase; yelling at him in the office; denying him an upgrade to GS-13, while giving other budget analysts upgrades; sending harassing e-mails criticizing his use of annual leave and requiring advance clearance of annual leave requests; sending an e-mail requiring that he keep his office door open; and sending an e-mail criticizing him for minor mistakes. Compl. ¶ 17; see Burton Decl. ¶ 21. Subsequently, however, Burton admits that his May 2003 performance appraisal rated him"fully successful," although he continues to complain about Bevels' failure to give him a within grade increase based on the 2003 rating. Burton Decl. ¶ 22. With respect to an upgrade of his position, Burton now contends that another budget analyst, Angie Jones, had her position upgraded to GS-13 during 2003. Id. ¶ 23.
After exhausting his administrative remedies, Burton filed a two-count complaint in August 2003. Count I alleges sexual harassment by Bevels, and Count II claims that Burton was subject to retaliation through a series of actions following his EEO activity.
I. Standard for Summary Judgment
Summary judgment is appropriate when the pleadings and the evidence demonstrate that"there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by"informing the district court of the basis for its motion, and identifying those portions of' the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed. R. Civ. P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant' s statements as true and accept all evidence and make all inferences in the non-movant' s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the"mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322."If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 497 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer"evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
II. The McDonnell Douglas Framework
A plaintiff has the burden of establishing a prima facie case of discrimination or retaliation by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Tex. Dep' t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case of discrimination, a plaintiff must demonstrate 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. Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). To make out a prima facie claim of retaliation, a plaintiff must establish 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. Brody, 199 F.3d at 452; Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985); McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984).
If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The employer' s burden, however, is merely one of production. Burdine, 450 U.S. at 254-55. The employer"need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant' s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id.
If the employer is successful, the burden shifts back to the plaintiff to show that the employer' s stated reason was a pretext for discrimination or retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). The plaintiff"may attempt to establish that he was the victim of intentional discrimination'by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Burdine, 450 U.S. at 256). But"[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination." Id. at 147. Thus, the trier of fact 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.'" Id. (quoting Burdine, 450 U.S. at 255 n.10)."Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors... includ[ing] the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Id. at 148-49. As the D.C. Circuit has explained:
Assuming then that the employer has met its burden of producing a nondiscriminatory reason for its actions, the focus of proceedings at trial (and at summary judgment) will be on whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment).
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc); see also Waterhouse v. District of Columbia, 298 F.3d 989, 992-993 (D.C. Cir. 2002). Although the"intermediate evidentiary burdens shift back and forth" under the McDonnel Douglas framework,"' [t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253). Once the defendant has proffered a legitimate non-discriminatory reason for its action, then, the question is whether that proffered reason is a pretext for discrimination, and at this point the McDonnell Douglas shifting burdens framework disappears, the sole remaining issue is discrimination vel non, and"to survive summary judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003); see Reeves, 530 U.S. at 142-43. Examination of that issue in this setting therefore requires consideration of all the relevant circumstances, including the strength of the prima facie case, any direct evidence of discrimination, and any circumstantial evidence that defendant's proffered explanation is false (which may be enough with the prima facie case to infer unlawful discrimination). See, e.g., Reeves, 530 U.S. at 147-48; Lathram, 336 F.3d at 1089; Waterhouse, 298 F.3d at 993, Aka, 156 F.3d at 1290.
In addition to his retaliation claims, Burton asserts in Count I of his Complaint that he has been the victim of"disparate treatment based on sex, when, among other things, he was subjected to sexual harassment by Lisa Bevels." Compl. ¶ 22. The NLRB initially took this vague formulation as a hostile work environment claim. While not totally disavowing that characterization, Burton has since asserted that his claim is more in the nature of quid pro quo sexual ...