The opinion of the court was delivered by: JOHN BATES, District Judge
Presently before the court in this employment discrimination
case brought pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, is the
motion of defendant Lawrence M. Small, Secretary of the
Smithsonian Institution, for summary judgment. Plaintiff has
brought claims against defendant for retaliation and a
retaliation-based hostile work environment. For the reasons
stated below, the Court will grant defendant's motion for summary
Plaintiff is an employee of the Smithsonian Institution
("Smithsonian") and, at all times relevant to the facts and
disputes at issue in this case, served as a financial manager
with responsibility for all of its museum shops. In May 1997,
plaintiff filed his first action against the Smithsonian in this
Court, alleging that he suffered retaliation in violation of
Title VII based on the testimony he had provided in another
employment discrimination action in 1995. See Defendant's
Second Statement of Material Facts Not in Genuine Dispute ("Def.
Statement") ¶ 1; Keeley v. Smithsonian Inst., Civil Action No. 97-1076 (D.D.C.).
A jury verdict in plaintiff's favor was returned in that case in
March 1999, and an amended judgment on the verdict awarding
plaintiff compensatory damages, back pay, three merit salary
increases, costs, and attorney's fees was filed in May 1999.
See Def. Statement ¶ 2. The Smithsonian fully complied with the
amended judgment after it voluntarily withdrew its notice of
appeal in October 1999. Id. ¶ 3. As part of the relief awarded
by the Court, plaintiff was given a merit salary increase for his
performance evaluation in 1998. Id. ¶ 4. Shortly after the
conclusion of the litigation, plaintiff alleges he was told that
the "official word" at the Smithsonian is that plaintiff was
successful in the litigation because of the racial make-up of the
jury. See Second Am. Compl. ¶ 15. Following that, according to
plaintiff, he suffered a series of adverse employment actions
including: no merit salary increases following successful
performance reviews, denial of several promotions, and a loss of
responsibilities in the budget process and accounting.
Shortly after the conclusion of his prior litigation against
the Smithsonian on November 29, 1999, plaintiff submitted his
"self-appraisal" review for fiscal year 1999. Def. Statment ¶ 12.
Subsequently, plaintiff received his performance review with a
rating of "highly successful" for fiscal year 1999. Id. ¶¶
12-13. After that review, plaintiff's supervisor, Joseph Carper,
did not give plaintiff a merit salary increase. Id. ¶ 17. A
salary increase was not automatic after a rating of "highly
successful," as Mr. Carper had discretion to determine any salary
increase. Id. ¶¶ 17-18. Moreover, Mr. Carper did not give a
salary increase to any of his subordinates. Id.
Plaintiff experienced similar incidents at the next two fiscal
year reviews. For fiscal year 2000, he never received a review
from his new supervisor, Paul Wessel. Id. ¶ 20. However, Mr. Wessell did not provide fiscal year 2000 performance reviews for
any of his subordinates. Id. Plaintiff did not receive a merit
salary step increase for fiscal year 2000, nor did any other
employee supervised by Mr. Wessel. Id. ¶ 23. For fiscal year
2001, plaintiff did receive a performance review on or about
February 7, 2002. Id. ¶ 68. However, this time instead of a
rating of "highly successful" plaintiff received a "fully
successful" rating. Id. Plaintiff's 2001 evaluation was issued
by Gary Mercer, the new Chief Operating Officer of Retail
Operations at SBV, who began working at SBV on January 20, 2001.
Id. ¶¶ 71-72. Mr. Mercer gave four of the six employees he
directly supervised a performance evaluation of "fully
successful." Id. ¶ 73. The Smithsonian provided a one-time
bonus to employees based on their fiscal year 2001 ratings. A
rating of "fully successful" merited a 3.5% of salary bonus,
while "highly successful" garnered 4.5%. Id. ¶ 69.
In November 1999, the same month his earlier litigation ended,
plaintiff alleges that he was shown a proposed reorganization
chart by Ronald Banscher. Def. Statement ¶ 65. According to
plaintiff, Mr. Banscher indicated that the chart showed
plaintiff's position being terminated, and Mr. Banscher
encouraged plaintiff to consider another position. Id. In
February 2000, the CEO of Smithsonian Business Ventures ("SBV"),
Gary Beer, initiated the actual reorganization of SBV for
business purposes. Id. ¶ 25. As part of that reorganization,
plaintiff was required to report "pro tem" to Mr. Wessell. Id.
¶ 24. Throughout the reorganization, plaintiff continued to work
as the Financial Manager of Museum Stores. Id. ¶¶ 24-25.
Plaintiff complains about the promotion, on June 18, 2000, of
Robert Schelin, the SBV Transition Manager and supervisor of
plaintiff, who was named the Special Projects and Deputy Financial Officer for all of SBV. See Id. ¶ 120. This
position was "secretary designated" and therefore not open for
competition. Id. ¶ 122. However, plaintiff contends that in
August 1999 he learned of the possibility that a "corporate
controller" position would be created. Pl. Statement ¶ 145. He
contends that he expressed interest in the position to Mr.
Banscher, Mr. Beer and Mr. Wessel. Id. ¶¶ 146-147. Mr. Wessel,
according to plaintiff, said he would let plaintiff know when the
position was available. Id. ¶ 147. Plaintiff believes that Mr.
Schelin's promotion to Special Projects and Deputy Financial
Officer was the same "corporate controller" position in which he
was interested. Id. ¶ 148.
Plaintiff next claims he was unfairly denied a promotion to
"administratively exempt" ("AE") status. Prior to January 2002,
SBV's compensation system was divided into two designations, "AE"
and "institution schedule" ("IS"). Def. Statement ¶ 28. Those
employees who were classified as "AE" did not receive an
automatic annual cost of living increases, and did not qualify
for merit salary step increase. Id. ¶ 32. An employee
designated as "IS," on the other hand, was paid according to a
salary schedule. Pl. Statement ¶ 27d-2. Sometime after March
1999, SBV began converting "IS" employees to "AE." Def. Statement
¶ 27. An SBV employee became designated "AE" when he was hired,
promoted, or reassigned to a different position. Id. Until
January 2002, if a SBV employee was not hired as an "AE"
designee, unless he was later promoted or reassigned he would not
be converted to "AE." Id. Effective January 12, 2002, SBV
created a compensation system known as "paybanding" for all
employees who were designated as "AE" or "IS" and not part of the
collective bargaining agreement. Id. ¶ 33. After that point all
"AE" designations were eliminated. Plaintiff was never designated
"AE" before the old system was discarded in favor of
"paybanding." Id. ¶ 36. III. Responsibilities
Plaintiff also complains that he lost budgetary and accounting
responsibility because of his previous discrimination claim
against the Smithsonian. Plaintiff asserts that he suffered
reduced accounting responsibilities when a new accounting
software was selected and implemented. The new software selection
process began in the spring of 2000, when a committee at SBV was
formed to select the software. Def. Statement ¶ 55. Initially,
plaintiff attended those meetings. Id. ¶ 56. Kathy King, who
reported to plaintiff and was at that time a manager of the Sales
Audit and Reports Division, also began to attend the committee
meetings in May 2000. Id. After Ms. King began to attend the
meetings, plaintiff stopped attending them. Id. In the fall of
2000, SBV implemented the new accounting and financial software
system known as Lawson. Id. ¶ 47. According to plaintiff, he
went nine or ten months without having the software installed on
his computer. Pl. Statement ¶ 47d.
During the implementation of the Lawson software, plaintiff
also consulted with Ms. King regarding the level of access each
employee in the Museum stores would have to the new software.
Def. Statement ¶ 50. The possible designations were "G/L Entry"
for general ledger entry, "A/P" for accounts payable entry, and
"Inquiry Only" access. Id. Ms. King sent to Mr. Schelin an
e-mail, which she had compiled with plaintiff, that listed the
level of access for each employee in the Museum Stores. Id. ¶
51. Plaintiff was included on that e-mail. Id. As a result of
being listed as "inquiry only" status, plaintiff did not receive
training on the new Larson software. Id. ¶ 52.
Plaintiff complains that he lost responsibilities in the budget
process after the reorganization. On or about January 20, 2001,
SBV hired Mr. Mercer as the Chief Operating Officer of Museum Retail Operations. Def. Statement ¶ 37. Mr.
Mercer was responsible for all business units within Museum
Retail Operations, including ultimate responsibility for the
budgets of the various units. Id. ¶ 37. As part of his
involvement in the budget process, Mr. Mercer requested budget
information from the heads of each department within the Museum
Stores. Id. ¶ 39. This meant Mr. Mercer received budget
information from those on plaintiff's staff and not directly from
plaintiff. Id. In the spring of 2001, plaintiff complained to
Mr. Mercer that budget numbers were being directly submitted
rather than going through plaintiff. Id. ¶ 40.
IV. Plaintiff's EEO Complaints
As a result of these actions, in late 1999 plaintiff contacted
an EEO counselor and began filing a series of three formal EEO
complaints in or about December 1999, February 2000 and June
2000. Def. Statement ¶¶ 5-10. Plaintiff's EEOC complaints made
the following retaliation claims that have also been raised in
this action: Mr. Banscher told plaintiff he was "sick of this
lawsuit bullsh "; plaintiff received a late fiscal year 1999
performance review and did not receive a merit salary increase;
plaintiff's position was classified "pro tem"; in April 2000
plaintiff received a new position description; Ms. King took over
some of plaintiff's accounting responsibilities; and plaintiff
received a threatening voice mail from Mr. Wessel. Id. ¶¶ 5-9.
Plaintiff raised in his Second Amended Complaint the following
claims that were not before the EEOC: denial of fiscal year 2000
performance review and salary increase; denial of promotion to
"AE"; removal from the budget process; denial of necessary
accounting training; the promotion of Mr. Schelin; and lower
fiscal year 2001 rating that resulted in a reduced bonus.
Compare Second Am. Compl. ¶¶ 8-41 with Def. Mem., Exs. 4-6
(showing claims raised in Second Amended Complaint that were not raised in the
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.
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).
II. Legal Framework Under Title VII
A plaintiff has the burden of establishing a prima facie case
of 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 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. Brown v.
Brody, 199 F.3d 446, 452 (D.C. Cir. 1999); 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 retaliation. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000). The plaintiff may attempt to establish
pretext "by showing that the employer's proffered explanation is
unworthy of credence." 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." Reeves, 530 U.S. 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 ...