The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Ahmad Nurriddin, proceeding pro se, brings this employment discrimination action against Daniel Goldin, in his official capacity as administrator of the National Aeronautics and Space Administration ("NASA"), pursuant to Title VII of the Civil Rights Acts of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging discrimination based on race, sex and religion, retaliation, and hostile work environment. Presently before the Court are defendant's motion to amend and defendant's motion for summary judgment. For the reasons that follow, the Court will grant both of defendant's motions.
The essential facts in this case are not in dispute.*fn1 Plaintiff was hired by NASA in May 1991 as part of a "contractor conversion process" whereby contractors working for NASA were converted to civil servants. See Def.'s Statement ¶¶ 1-3. Prior to his conversion, plaintiff worked for the Omega Group, Inc. as a project manager supporting the NASA Educational Affairs Division. Id. ¶ 4. Plaintiff's principal responsibilities, prior to the conversion, and immediately thereafter, included shipping, receiving, warehousing, and general dissemination of NASA educational and informational publications. Id. Upon the conversion, plaintiff became a Publication Specialist at the GS-12 level. Id. ¶ 5. This position did not have promotion potential. Id.
In October 1991, plaintiff orally complained to the Deputy Director of the Educational Affairs Division at NASA, Frank Owens, that Ms. Bacon, a white female, was converted to a civil servant at two grades above him, and indicated that he wanted to be promoted. See Pl.'s Statement ¶ 9. Ms. Bacon worked on an Oklahoma State University contract before being converted to a civil servant at the GM-14 level. Id. ¶ 3. After this complaint, and because plaintiff's position had no promotion potential, plaintiff was reassigned to the Elementary and Secondary branch, and took on responsibilities that were more in line with a Program Manager. Id. Plaintiff contends he should have been immediately promoted to GS-13 because he took on significantly more responsibilities, including some duties previously performed by an employee at GS-13. See Pl.'s Statement ¶ 13. Plaintiff also notes that defendant failed properly to document this transfer in plaintiff's official personnel file in contravention of standard agency human resource policy. Id. ¶ 14. Plaintiff's official title remained Publication Specialist until February 1995, when it was officially changed to Education Outreach Specialist. See Pl.'s Statement ¶ 48.
In December 1992, plaintiff complained to Dr. Robert Brown, Deputy Associate Administrator of the Office of Human Resources, that he had not been promoted yet. See Pl.'s Statement ¶ 20. Thereafter, in February 1993, plaintiff's immediate supervisors, Frank Owens and Dr. Eddie Anderson ("Dr. Anderson"), gave plaintiff responsibility for developing the "Turner Plan." See Pl.'s Response ¶ 11. Plaintiff was told that upon successful completion of the Turner Plan he would be promoted to grade GS-13. Id. There is some dispute between the parties over whether the Turner Plan was successfully completed. Plaintiff argues that he successfully submitted several drafts of the Turner Plan. Id. ¶ 12. According to defendant, plaintiff submitted the final Turner Plan in May 1995. See Def. Reply, Ex. R-3, Affidavit of Franklin C. Owens ("Owens Aff.") ¶ 5. In the interim, defendant contends that plaintiff submitted deficient products. Id. While issues with the Turner Plan were ongoing, plaintiff, in March 1994, met with Associate Administrator for the Office of Human Resources and Education at NASA, General Spence Armstrong ("Gen. Armstrong"), and again complained about the lack of a promotion, as well as the fact that plaintiff viewed the hiring of Ms. Bacon at two grades above him as discriminatory. See Pl.'s Statement ¶ 29.
Then on July 18, 1994, Dr. Anderson issued plaintiff a letter of reprimand that cited plaintiff's "negative attitude and deliberate refusal to properly follow [Dr. Anderson's] explicit instructions." See Pl. Opp'n, Ex. 68. The letter also cited plaintiff for his failure to complete assignments on time, and his failure to keep his supervisors abreast of his location. Id. In December 1994, plaintiff made his first contact with NASA's Equal Employment Opportunity ("EEO") counselor, complaining of unlawful discrimination and retaliation. See Def. Mem., Ex. 8. Plaintiff's EEO complaint was formally filed on February 9, 1995. Id. The Equal Employment Opportunity Commission ("EEOC") accepted for investigation plaintiff's charges that he was given a letter of reprimand on July 18, 1994 and that he had not received a promotion since the time of his employment at NASA because of discrimination and retaliation. See Def. Mem., Ex. 6. The EEOC rejected consideration of plaintiff's complaint that because of his race he had been hired two grade levels below others. Id. The EEOC determined that the latter allegation was not timely filed. Id.
Besides this EEOC activity in 1995, plaintiff also cites three specific incidents of alleged discrimination by NASA. First, in March of 1995 plaintiff was asked to assist a co-worker who was having difficulty with an agency-owned computer. See Def.'s Statement ¶ 14. Plaintiff found on the computer folders labeled "racist jokes and stories," "sex bulletin board," "W/american Heritage," and "Jessica Games." See Pl.'s Response ¶ 14. The folders titled "racist jokes and stories" and "sex bulletin board" were empty, and plaintiff's co-worker Dr. Malcolm Phelps, who had possession of the computer, was unaware how the icons got on the computer. Id. Plaintiff subsequently complained to his supervisor, Dr. Anderson, about the icons on the computer and requested an investigation. Id. Plaintiff, however, did not receive documentation that would confirm an investigation was actually conducted. Id.
Second, in October 1995, NASA went through a downsizing and the Education Division, in which plaintiff worked, was reorganized. See Second Am. Compl. ¶ 104. As part of the reorganization, plaintiff was told that if he wished to continue to work in the Elementary and Secondary Education Branch, he would be reassigned to the Goddard Space Flight Center in Greenbelt, Maryland. See Pl.'s Statement ¶ 52. Alternatively, plaintiff could remain at NASA headquarters in Washington, DC, if he accepted reassignment to the Graduate Student Researchers Program. Id. Plaintiff chose to remain at NASA headquarters and his old responsibilities were reassigned to other NASA employees, some of whom were at a higher pay grade than plaintiff. Id. ¶ 53.
Finally, in July and August of 1996 plaintiff requested travel funds to attend the Advancing Minorities in Engineering Conference in Nashville, Tennessee, at which plaintiff was invited to give a presentation. See Pl.'s Statement ¶ 65. However, NASA denied his request in September 1996, citing plaintiff's short notice on the request and the fact that he had already spent his travel allocation. NASA also said plaintiff's travel plans were not "mission critical." See Def. Mem. Ex. 19, Affidavit of Malcolm Phelps ("Phelps Aff.") ¶¶ 2-4.
On November 5, 1996, plaintiff again contacted the EEO counselor at NASA, and he filed a second administrative complaint on April 3, 1997. See Def. Mem., Ex. 8. In that complaint, plaintiff alleged that he was subject to a hostile work environment. Id. The specific incidents cited by plaintiff as comprising a hostile work environment were: (1) denial of travel; (2) a 1996 e-mail threatening a reprimand; (3) denial of promotion; (4) oral admonishment for being late to a staff meeting; (5) e-mail admonishment in 1996; and (6) an assistant director interfered with his ability to perform tasks. Id. Plaintiff's 1995 and 1997 administrative complaints were consolidated for investigation. Id. On September 21, 1999, the Final Agency Decision was issued, which found that NASA had not discriminated or retaliated against plaintiff. Id.
Fed. R. Civ. P. 15(a) governs the amendment of pleadings, and states that leave to file an amended complaint should be "freely given when justice so requires." Whether to grant a motion to amend is within the sound discretion of the district court. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). However, it is an abuse of that discretion to deny a motion to amend without a "justifying" or sufficient reason. Foman v. Davis, 371 U.S. 178, 182 (1962). These reasons include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies . . . undue prejudice to the opposing party . . . futility of amendment, etc." Id. Generally, under Rule 15(a) the non-movant bears the burden of persuasion that a motion to amend should be denied. See Dove v. Washington Metro. Area Transit Auth., 221 F.R.D. 246, 247 (D.D.C. 2004); see also Gudavich v. District of Columbia, 22 Fed. Appx. 17, 18 (D.C. Cir. Dec. 27, 2001) (noting the non-movant "failed to show prejudice from the district court's action in allowing the motion to amend")
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, 477 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; see also Holbrook v. Reno, 196 F.3d 255, 259-60 (D.C. Cir. 1999).
III. Legal Framework Under Title VII
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 McDonnell-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 in evidence, including the strength of the prima facie case, any direct evidence of discrimination, any circumstantial evidence that defendant's proffered explanation is false (which may be enough with the prima facie case to infer unlawful discrimination), and any properly-considered evidence supporting the employer's case. Reeves, 530 U.S. at 147-48; see also Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004); Lathram, 336 F.3d at 1089; Waterhouse, 298 F.3d at 993, Aka, 156 F.3d at 1290.
Plaintiff's 192-paragraph Second Amended Complaint contains a laundry list of allegedly discriminatory incidents. Plaintiff has packaged some (although not all) of these alleged events into nine separate causes of action. Notwithstanding the length of plaintiff's complaint and the number of counts, he essentially raises three categories of causes of action in his complaint: discrimination, retaliation, and hostile work environment. Plaintiff's discrimination claims (counts I, II, V & VI) center on allegations of unlawful personnel decisions including a failure of NASA to promote plaintiff. For his retaliation claims (counts III, IV, VII & VIII) plaintiff reclassifies his allegations of discrimination as claims of retaliation. Finally, plaintiff includes a list of alleged incidents that he contends amounts to a hostile work environment. Defendant argues that summary judgment should be granted because plaintiff has failed to exhaust his administrative remedies on some claims, failed to state a prima facie claim, and failed to overcome defendant's legitimate, non-discriminatory justification for the complained of employment actions. In support of its exhaustion argument, defendant also moves for leave to amend its answer to include the affirmative defense. The Court will first address defendant's motion to amend, and then turn to defendant's motion for summary judgment.
Because defendant failed to raise the affirmative defense of exhaustion in its answer, it has now moved for leave to amend the answer to include this defense. See Def. Mot. to Amend at 3. Without this amendment, defendant could not assert the exhaustion arguments contained in its motion for summary judgment. See Harris v. United States Dep't of Veterans Affairs, 126 F.3d 339, 344 (D.C. Cir. 1997) (noting that unlike in some circuits, in the D.C. Circuit an affirmative defense cannot be raised for the first time in dispositive motions, but must be raised in responsive pleadings). Plaintiff vigorously challenges defendant's motion to amend, arguing that defendant's failure to raise exhaustion in its answer has waived this defense.
Generally, an affirmative defense, such as failure to exhaust, must be raised in responsive pleadings. See Harris, 126 F.3d at 343. However, the court in Harris also noted that Fed.R.Civ.P. 15 should be used to permit amendment of pleading under appropriate circumstances. Id. at 343-44. Under Rule 15, an amendment is generally permitted unless there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies . . . undue prejudice to the opposing party . . . futility of amendment, etc." Foman, 371 U.S. at 182. Because amendment is to be liberally granted, the non-movant bears the burden of showing why amendment should not be allowed. See, Dove, 221 F.R.D. at 247.
In this case, plaintiff notes that when defendant challenged his motion to file a Second Amended Complaint, defendant argued that the complaint "sets forth substantially the same factual premise for each count" as did the Amended Complaint. See Pl. Opp'n to Mot. to Amend at 1. Plaintiff also contends that he is prejudiced by having to respond to defendant's motion for summary judgment and motion to amend. Id. at 3. Finally, plaintiff argues that defendant's motion should be denied as untimely given the length of time that has passed (eleven months) between the filing of his Second Amended Complaint and the motion to amend. Id. at 2.
The key issue in considering a motion to amend is whether the non-movant will suffer any prejudice from the amendment. Plaintiff has not established how he would be prejudiced by permitting this amendment, other than having to respond to the defense, nor can the Court envision a basis for prejudice. Although eleven months passed between defendant's answer and this motion for leave to amend the answer, there is no evidence that the delay was in bad faith. See Long v. Wilson, 393 F.3d 390, 399 (3rd Cir. 2004) (14-month delay in raising status of limitations defense not prejudicial where no evidence of bad faith); Block v. First Blood Associates, 988 F.2d 344, 351 (2d Cir.1993) (court permitted statute of limitations defense raised for first time four years after complaint filed because no bad faith, and untimeliness of suit not affected by passage of time). Furthermore, the inclusion of the exhaustion defense does not necessitate additional discovery, as the only relevant fact is whether plaintiff raised the claims in his administrative action. The affirmative defense of exhaustion is principally a question of the legal significance of plaintiff's failure to exhaust. Hence, there is no issue of lost evidence. This amendment also would not preclude plaintiff from raising any arguments or defenses or taking other steps to negate this affirmative defense. See Block, 988 F.2d at 350 (permitting late affirmative defense where plaintiff's ...