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August 30, 2005.

SHAWN KEELEY, Plaintiff,
LAWRENCE M. SMALL, Secretary, Smithsonian Institution, Defendant.

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 judgment.


  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.

  I. Performance Reviews

  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.

  II. Promotions

  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 administrative process).


  I. 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, 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 ...

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