United States District Court, D. Columbia
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
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.
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
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.
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 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
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
[retaliated] 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 retaliation, and
at this point the McDonnell Douglas shifting burdens framework
disappears, the sole remaining issue is retaliation 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 [retaliatory] 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 retaliation, any
circumstantial evidence that defendant's proffered explanation is
false (which may be enough with the prima facie case to infer
retaliation), 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 Second Amended Complaint asserts a wide ranging
list of discrete retaliation claims plus a retaliation-based
hostile work environment claim. However, once each claim is
assessed against the facts in the record, it is clear that
plaintiff's claims cannot survive summary judgment. First, many
of plaintiff's claims were not timely exhausted and therefore
cannot be pursued here. Moreover, the record shows that for all
of plaintiff's claims, he either cannot establish a prima facie
case or fails to show that defendant's proffered explanation was
a pretext for retaliation.
Defendant argues in its second motion for summary judgment that
plaintiff has failed to timely exhaust his administrative
remedies with respect to several of the claims in the Second
Amended Complaint. See Def. Mem. at 11-14. Specifically,
defendant contends that plaintiff has failed to exhaust the
following claims: (1) denial of performance review for fiscal
year 2000; (2) denial of salary increase for fiscal year 2000;
(3) reclassification of plaintiff's position to "pro tem"; (4)
denial of promotion to "AE" status; (5) removal from budget
process; (6) denial of access to training for new accounting
system; (7) failure to promote to "corporate controller"
position; and (8) low fiscal year 2001 review resulting in
reduced one-time bonus. See Def. Mem. at 12. Defendant's
particular focus is on the last two claims which were raised for
the first time in the Second Amended Complaint. Plaintiff
responds that even if these claims were not timely exhausted,
this Court's September 26, 2003 Memorandum Opinion issued in this
case found that those claims did not have to be exhausted because
"[i]t is well established that `in circumstances where an initial
complaint with an administrative agency alleges discrimination
and acts of reprisal for previous grievances lodged against the
department, it is unnecessary for an employee to refile a new
complaint upon every new instance.'" Sept. 26, 2003 Mem. Op at 6
(quoting Bonds v. Heyman, 950 F. Supp. 1202, 1208 (D.D.C.
1997)). Plaintiff argues that "law of the case" dictates this
Court should again deny defendant's exhaustion arguments as to
these two claims.
A review of the Court's September 26, 2003 Memorandum Opinion
leads the Court to conclude that its prior decision denying
defendant's exhaustion motion failed to consider Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which had been
recently decided. That case calls into question the cases relied
on in this Court's earlier decision, and over the past two years
a consensus has developed in the courts on the need to exhaust
all discrete discrimination and retaliation claims.
Generally, a Title VII plaintiff must exhaust his
administrative remedies prior to filing an action in federal
court. See Morgan, 536 U.S. at 122. This requirement also
applies to federal employees, who must contact an EEO counselor
within 45 days of the alleged personnel action. See
29 C.F.R. § 1614.105. Prior to Morgan, many courts held that a plaintiff
did not have to exhaust retaliation claims that arose after the
filing of an initial administrative complaint. See Nealon v.
Stone, 958 F.2d 584, 590 (4th Cir. 1992); Kirkland v. Buffalo
Bd. of Educ., 622 F.2d 1066, 1068 (2nd Cir. 1980); Sussman v.
Tanoue, 39 F. Supp. 2d 13, 21 (D.D.C. 1999) ("most courts have
concluded plaintiffs are not required to exhaust administrative
remedies for claims of retaliation which arise following the
filing of administrative complaints"). This Court's prior opinion relied upon that same reasoning. See Sept. 26, 2003
Mem. Op. at 6-8.
However, in the years since Morgan that reasoning has been
undermined. Morgan itself rejected the "continuing violation"
theory that would permit plaintiffs to recover for discrete acts
of discrimination and retaliation that were not exhausted but
were "sufficiently related" to exhausted claims. 536 U.S. at 105.
The decision also emphasized "strict adherence" to the procedural
requirements of Title VII. Id. at 108. Although the facts of
Morgan dealt with discrete incidents of discrimination and
retaliation occurring prior to any administrative exhaustion of
claims, it has been understood to bar unexhausted claims arising
after the filing of an administrative action. Martinex v.
Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003);
Romero-Ostolaza v. Ridge, 370 F. Supp. 2d 139, 149 (D.D.C.
2005). Moreover, since Morgan many of the cases relied upon in
this Court's earlier decision have been called into question. In
Bowie v. Ashcroft, 283 F. Supp. 2d 25, 24 (D.D.C. 2004), for
example, the court found the reasoning of Bonds v. Heyman,
950 F. Supp. 1202, 1208 (D.D.C. 1997) (relied upon in the Sept. 26,
2003 Opinion), inapposite in light of Morgan. See also
Romero-Ostolaza, 370 F. Supp. 2d at 148 (noting that the
analysis of Nealon, 958 F.2d at 590, and Malhotra v. Cotter &
Co., 885 F.2d 1305, 1312 (7th Cir. 1989), both cited in the
Court's earlier decision, is irrelevant after Morgan).
Thus, given Morgan's strict adherence to procedural
requirements including exhaustion, and the subsequent development
of the law that casts doubt on the reliability of cases on which
this Court previously relied, the Court concludes that its
earlier opinion is no longer sound. In order for plaintiff to
pursue his claims in federal court, he must establish that he
timely exhausted his administrative remedies for each discrete
claim of retaliation. Plaintiff essentially concedes that he has failed to timely exhaust those claims identified by
defendant. See Pl. Opp'n at 8-9.*fn1 Therefore, because
plaintiff failed to exhaust those claims, he may not pursue them
here for the first time.*fn2 However, in light of the
Court's earlier opinion, and the fact that the parties have fully
briefed the merits of all of plaintiff's claims, the Court will
nonetheless consider the merits of all plaintiff's claims, even
those subject to dismissal for failure to exhaust.
II. Retaliation Claims
A. Prima Facie Case
To state a prima facie claim for retaliation, plaintiff must
establish that he engaged in protected activity and suffered an
adverse employment action, and that there was a causal connection
between the two. See Brody, 199 F.3d at 452. Clearly,
plaintiff engaged in statutorily protected activity when he filed
administrative complaints in December 1999, February 2000, and
June 2000. Furthermore, plaintiff's prior Title VII litigation
against the Smithsonian ending in late 1999 constitutes protected
activity. However, for several of his retaliation claims,
plaintiff cannot show that he suffered an adverse employment
1. Adverse Employment Action
"`To establish an adverse personnel action in the absence of
diminution in pay or benefits, plaintiff must show an action with
`materially adverse consequences affecting the terms, conditions, or privileges of employment.'" Stewart v. Evans,
275 F.3d 1126, 1134 (D.C. Cir. 2002) (quoting Brody,
199 F.3d at 457 (decision of district court reprinted with endorsement
from D.C. Circuit panel)). Indeed, "[a]n `employment decision
does not rise to the level of an actionable adverse action . . .
unless there is a tangible change in the duties or working
conditions constituting a material employment disadvantage.'"
Id. (quoting Walker v. WMATA, 102 F. Supp 2d 24, 29 (D.D.C.
2000)); see also Burlington Indus., Inc. v. Elllerth,
524 U.S. 742, 761 (1998) ("A tangible employment action constitutes a
significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits."); Brody, 199 F.3d at 457 (must show "objectively
tangible harm"). Examining plaintiff's discrete retaliation
claims, for several he has not offered any evidence to show that
he suffered an objectively tangible harm to the terms of his
a. Promotion Claims
Plaintiff makes multiple claims of retaliation that relate in
some form to what he calls a non-promotion. Two such claims are
that plaintiff's position at SBV would be reclassified from
permanent to "pro tem" and that plaintiff was told that his
position would be terminated. However, for neither claim can
plaintiff establish that he actually suffered an adverse
employment action. Plaintiff appears to concede the point
regarding his claim about his "pro tem" status because he does
not address defendant's arguments in his opposition. In any
event, there is no evidence that his position was in fact
reclassified as temporary, or that any such reclassification, if
it did occur, caused an objectively tangible harm to the terms of
his employment. The same analysis applies to plaintiff's claim
that he was threatened with termination. See Second Am. Coml. ¶ 38. Although there is a
dispute as to whether plaintiff was actually told his position
would be terminated, there is no dispute that plaintiff was in
fact not terminated. Thus, he did not suffer an adverse
employment action because he suffered no objectively tangible
harm to the terms or conditions of his employment. On these two
claims, defendant is therefore entitled to summary judgment
because plaintiff has not establish a prima facie case.
b. Performance Reviews
Plaintiff makes multiple claims of retaliation relating to his
performance reviews for fiscal years 1999 through 2001. For one
such claim a three-month delay in receiving his fiscal year
1999 performance review, see Second Am. Compl. ¶ 18 plaintiff
does not establish that it was an adverse employment action. He
did in fact receive the performance review, just three months
late, along with other employees at SBV. See Def. Statement ¶
13. He has asserted no tangible harm from the delay. Plaintiff
was rated "highly successful" and there is no evidence the delay
in the review, itself, constituted a harm to plaintiff's
employment. Absent evidence of some distinct tangible harm to the
terms or conditions of his employment, a highly successful
evaluation is not an adverse employment action. See Russell v.
Principi, 257 F.3d 815, 819 (D.C. Cir. 2001) ("In most
circumstances performance evaluations alone at the satisfactory
level or above should not be considered adverse employment
c. Comments from Supervisors
Plaintiff makes three claims based on comments either relayed
to plaintiff or made to him directly, but all three of the
alleged incidents fall well short of establishing an adverse
employment action. The three individual statements are: a message
conveyed to plaintiff shortly after the conclusion of his prior litigation that the "official
word" was that his success was based on the racial makeup of the
jury, Second Am. Compl. ¶ 15; after plaintiff filed his December
1999 administrative complaint, Mr. Banscher told him that he was
"sick of this lawsuit bullsh " and demanded that plaintiff
withdraw his complaint, id. ¶ 34; and on June 2, 2000,
plaintiff received a voice-mail from his supervisor, Mr. Wessel,
stating that he was "going to conduct a witch hunt." Id. ¶ 37.
Comments directed at an employee, especially from a supervisor,
can constitute an adverse employment action. See Patterson v.
McLean Credit Union, 491 U.S. 164, 179-80 (1989) (noting that
racial harassment could affect the "terms, condition, or
privileges of employment" under Title VII). However, Title VII
does not operate to police the level of civility in the
workplace. See Oncale v. Sundowner Offshore Serv., Inc.,
523 U.S. 75, 80 (1998); Jones v. Billington, 12 F. Supp. 2d 1,13
(D.D.C. 1997) (critical letter from supervisor not an adverse
action); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.
1996) ("not everything that makes an employee unhappy is an
actionable adverse action"). The focus, then, is on whether the
comments are so severe as to affect the terms of employment and
thereby constitute an adverse action. See Henry v. Guest
Services, Inc., 902 F. Supp. 245, 252 (D.D.C. 1995).
For each of these alleged comments, plaintiff cannot establish
that it is so severe as to constitute, by itself, an adverse
employment action. With respect to the statement regarding the
"official word" about plaintiff's prior litigation, not only does
plaintiff fail to provide evidence about who told him this
"official word," but he does not have any evidence about who the
"official word" came from. Even if this evidence were available,
the comment, by itself, does not constitute an adverse employment
action because it is not so severe as to affect the terms and conditions of plaintiff's employment. Similarly, the June 2000
voice-mail from Mr. Wessel, when read in its full context, is
merely a critical message directed at plaintiff and another SBV
employee about their availability in the budget process. See
Def. Mem., Ex. 47. Such criticism is part of the "ordinary
tribulations of the workplace" for which Title VII does not
provide a remedy. Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998). Finally, while Mr. Banscher's alleged comment that he
was "sick of this lawsuit bullsh " certainly is vulgar, and even
may show that plaintiff's protected activity was on the mind of
his supervisors, the comment itself is not actionable. See
Stewart, 275 F.3d at 1133 (Title VII does not "purge the
workplace of vulgarity") (quoting Baskerville v. Culligan Int'l
Co., 50 F.3d 428, 430 (7th Cir. 1995)). There is no evidence
that this comment hindered plaintiff's performance or had any
effect on the terms of his employment, or that any similar
comments were ever again made to plaintiff. See Childers v.
Slaters, 44 F. Supp. 2d 8, 19 (D.D.C. 1999), modified on
reconsideration 197 F.R.D. 185 (D.D.C. 2000) ("[C]onduct that
sporadically wounds or offends, but does not hinder an employee's
performance does not rise to the level of adverse action.").
Defendant has thus failed to establish that these workplace
comments constituted discrete retaliatory actions that satisfy
the prima facie case requirement of adverse employment actions.
d. Reduction in Responsibilities
According to plaintiff, because of his protected activity his
position description was changed, he lost responsibilities in the
budget process, he was excluded from the accounting systems and
denied necessary training, subordinates took over his accounting
responsibilities, and his supervisors avoided dealing with him.
See Second Am. Compl. ¶¶ 26-31. Generally, an adverse
employment action constitutes "a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits." Brody, 199 F.3d at 456. On the
other hand, "changes in assignments and work-related duties do
not ordinarily constitute adverse employment actions if
unaccompanied by a decrease in salary or work hour changes."
Mungin v. Katten, Muchin & Davis, 116 F.3d 1549, 1557 (D.C.
Cir. 1997). To make a claim based on a reduction in
responsibilities, a plaintiff must show that the change in duties
resulted in a loss of pay, benefits or promotion possibilities,
or resulted in a change in position that was not as "high
profile." See Tasser v. Ramsey, 125 F. Supp. 2d 1, 5 (D.D.C.
2000) (reassignment to a "desk job" meant lost overtime potential
and reduction in promotion potential). "Mere inconvenience and
alteration of job responsibilities will not rise to the level of
adverse action." Childers, 44 F. Supp. 2d at 19.
Examining plaintiff's claims regarding changes in his
responsibilities at SBV, it is apparent that he fails to show he
suffered any material change in the terms of his employment from
the alleged changes in responsibilities, and thus he cannot
establish that he suffered an adverse employment action. First,
plaintiff claims that his position description was changed in
2000, taking away his responsibilities for "designing and
developing of integrated financial management systems." Pl. Opp'n
at 30-31. He also claims that he was forced to report to three
supervisors rather than one. Id. at 31. However, examining the
evidence put forth by plaintiff reveals that his position
description underwent minimal changes in 2000. See Pl. Opp'n,
Ex. 20 (edits upon plaintiff's old position description). More
importantly, plaintiff does not make any allegation that he
suffered tangible harm to his employment, and thus he cannot make
out a prima facie case. His claim that he was taken out of the
budget process is equally unavailing. Even were the Court to credit all of plaintiff's evidence on this
claim (much of which is based on hearsay or plaintiff's
unsubstantiated allegations), it merely shows that in 2001
plaintiff's new supervisor, Mr. Mercer, became involved in the
budget process. Def. Statement ¶ 37. According to plaintiff, as a
result of Mr. Mercer's involvement, plaintiff had diminished
responsibilities. Even if this were the case, plaintiff has not
shown how his reduced budgetary responsibilities (which appear to
have occurred only in 2001) amounted to a tangible harm to his
Plaintiff also makes a number of allegations regarding his
involvement in the accounting systems at SBV. He complains that
he was usurped as "team leader" on the committee that selected
new accounting software, was not given training on or access to
the new software, and had subordinates take over his accounting
responsibilities. Second Am. Compl. ¶¶ 28-29. Again, he is
attempting to make a federal case out of what are otherwise the
"ordinary tribulations of the workplace." Faragher,
524 U.S. at 788. Plaintiff's evidence on these claims consists almost
exclusively of his own speculation, but the full record shows
that most of plaintiff's allegations are unfounded. No one
testified that plaintiff was removed from the software selecting
committee. Moreover, Ms. King testified that plaintiff was
designated "inquiry only" on the new software after a meeting
between herself and plaintiff. See Def. Mem. Ex. 24, Deposition
of Kathy King ("King Dep.") at 50. As a result of that
designation, plaintiff was not given training on the software.
Id. at 51. However, even if all of plaintiff's allegations were
substantiated, he has not explained how these changes in his
accounting responsibilities affected the terms of his employment,
and for that reason he cannot establish a prima facie case.
Plaintiff next alleges that his supervisors ceased dealing
directly with him and instead conferred with his subordinates on
financial management matters. Second Am. Compl. ¶ 30. Defendant responds that the evidence shows only one occasion on
which plaintiff's supervisors went to his subordinates, in
December 2000 when Mr. Wessel e-mailed Ms. King. See Def.
Statement ¶ 58. Defendant also notes that for instances when SBV
employees who were not plaintiff's supervisors contacted Ms.
King, plaintiff was always informed and made the ultimate
decision. Id. ¶ 59. These few (possibly only one) incidents
where some SBV employees avoided working with plaintiff, without
more concrete impact on the material terms of plaintiff's
employment, do not constitute adverse employment actions. See
Roberts v. Segal Co., 125 F. Supp. 2d 545, 549 (D.D.C. 2000)
("The fact that plaintiff believes she was getting the cold
shoulder from her co-workers does not constitute a materially
adverse consequence or disadvantage in the terms and conditions
of her employment so as to establish an adverse personnel
action."); Strother v. S. Cal. Permanente Med. Group,
79 F.3d 859, 869 (9th Cir. 1996) ("[M]ere ostracism in the workplace is
not enough to show an adverse employment decision.").
e. EEOC Investigation
Plaintiff's final category of allegations relates to
defendant's alleged interference with his EEOC investigation.
Second Am. Compl. ¶ 41.1. However, a federal employee may not
bring a claim under Title VII for allegations concerning EEOC
investigation procedures. See Jordan v. Summers,
205 F.3d 337, 342 (7th Cir. 2000). Some courts have found that claims
about the EEOC process do not constitute adverse employment
actions. See, e.g., Lowell v. Brown, 2000 WL 521726, *7
(N.D. Ill. March 2, 2000) (dilatory processing of EEOC complaint
does not constitute an adverse employment action). But as a
preliminary matter, there is no cause of action under Title VII
for complaints of delay or interference in the investigative
process. See McCottrell v. E.E.O.C., 726 F.2d 350, 351 (7th
Cir. 1983); Trout v. Lehman, 1983 WL 578, *1 (D.D.C. July 7, 1983) (a claim regarding interference with an
EEOC investigation is not about a condition of employment and
"therefore not cognizable as a separate cause of action in a
judicial proceeding brought under Title VII"). Plaintiff's sole
remedy for complaints about the administrative investigative
process is to bring a de novo action in federal court. See
Trout, 1983 WL 578 at *1. Plaintiff's citation to Forman v.
Small, 271 F.3d 285 (D.C. Cir. 2001), does not save this claim.
Forman dealt with a failure to promote and had nothing to do
with a claim alleging interference with an EEOC investigation.
For plaintiff's remaining discrete claims of retaliation, he
has established that he suffered an adverse employment action.
Three of these claims deal with plaintiff's performance reviews
for fiscal years 1999 to 2001, and plaintiff's allegation that he
did not receive the regular salary increase or that he received
an insufficient bonus following those reviews. On these claims,
plaintiff's allegations regarding a reduction in salary is
clearly an adverse action. Plaintiff also has three non-promotion
claims, each of which allege that plaintiff was denied some type
of a promotion that would have allegedly increased his salary.
The remaining element of plaintiff's prima facie case is
whether there is a causal connection between plaintiff's
protected activity and these adverse actions. See Brody,
199 F.3d at 452. Plaintiff brought EEOC complaints against defendant
in 1999 and 2000, and filed his Complaint in this case in 2001.
Furthermore, in 1999 plaintiff successfully concluded litigation
against defendant for previous retaliatory conduct against him.
The alleged retaliatory actions occurred over the same time
period as plaintiff's administrative actions. Plaintiff also
alleges his protected activity was well known to his supervisors
indeed, his supervisor in 1999, Mr. Banscher, told him that he was "sick" of
plaintiff's "lawsuit bullsh ." Pl. Statement ¶ 61d. Plaintiff
has also offered other evidence that shows his prior litigation
was discussed among his supervisors. See Pl. Statement ¶¶
173d-175d. Thus, not only were plaintiff's supervisors aware of
his protected activity, but plaintiff's remaining claims of
adverse action all occurred in close temporal proximity to at
least one of his protected activities. See Clark Cty. School
Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (close temporal
proximity between protected activity and adverse action can
establish causation). Plaintiff therefore can establish a
sufficient causal connection between his protected activity and
the adverse actions to make a prima facie case.
B. Non-Retaliatory Justifications and Pretext
Because plaintiff has established a prima facie case on six of
his claims, the burden shifts to defendant to articulate a
legitimate, non-retaliatory reason for the challenged performance
reviews and non-promotions. See McDonnell Douglas,
411 U.S. at 802. If defendant satisfies that burden, then the burden
shifts back to plaintiff to put forth evidence that shows the
proffered justification is a pretext for retaliation. Id.
1. Performance Reviews
Three of plaintiff's remaining claims arise from his
performance reviews (or lack thereof) for the fiscal years 1999
to 2001. Plaintiff alleges that following each review (or the
absence of a review in 2000) he was denied either a merit salary
increase or a sufficiently high bonus. In 1999, following a
delayed performance review, plaintiff was rated "highly
successful," which according to plaintiff should have meant he
would get a merit salary increase. Defendant contends that even
though plaintiff received a positive rating he was not guaranteed
a merit salary increase. See Def. Mem. at 18. Furthermore, plaintiff's
immediate supervisor at that time, Joesph Carper, believed there
was a salary freeze so he did not give salary increases to any of
his subordinates. Id. at 20-21.
Although plaintiff concedes that merit salary increases are
discretionary, he argues (without providing any evidence) that it
is established policy to grant increases after a "highly
successful" review. See Pl. Opp'n at 22. Plaintiff also calls
defendant's justification about a salary freeze a "lie." Id. at
23. According to plaintiff, five SBV employees, including two in
the same organizational line as plaintiff, were given raises in
2000. See Pl. Statement ¶ 19d. However, defendant is quick to
point out that none of the employees cited by plaintiff were
supervised by Mr. Carper. See Def. Mem., Ex. 20. Furthermore,
for three of them Mr. Schelin, Ms. King, and Frank DiGiovine
the only salary increase they received was a cost of living
adjustment of 4.9%. See Def. Mem., Ex. 48, Supplemental
Affidavit of Paul Wessel ("Supp. Wessel Aff.") ¶ 6. This is the
same cost of living adjustment that plaintiff received in 2000.
Id. Defendant also contends that the other two salary increases
cited by plaintiff were for an employee not in museum shops and
one who was given an increase as part of a promotion. Id. ¶¶
7-8. On this record, plaintiff has fallen well short of
establishing that defendant's proffered explanation was
pretextual. Moreover, it is a bit troubling that plaintiff would
attempt to pass off cost of living adjustments received by some
of his co-workers, which he also received, as the merit salary
increases he seeks.
In response to plaintiff's claim that he did not receive a
performance review in 2000 and as a result did not receive a
merit salary increase, defendant contends that plaintiff's
supervisor, Mr. Wessel, was new to SBV and therefore did not have
time to complete performance reviews for any of his subordinates. See Def. Mem. at 22. Plaintiff
attempts to show pretext by asserting that four of the six
subordinates of Mr. Wessel were "AE" employees and thus did not
require a performance review. Pl. Opp'n at 24. But plaintiff does
not provide any evidence to support his assertion that
performance reviews were not needed for certain employees.
Defendant points out that for fiscal year 2001 Mr. Wessel
provided performance reviews for all his subordinates, including
those with "AE" status. See Def. Mem. Ex. 49, Deposition of
Paul Wessel ("Wessel Dep.") at 56-58. Thus, again, plaintiff has
not offered any evidence to show that defendant's proffered
justification is a pretext for retaliation.
Plaintiff's final claim regarding his performance reviews is
that in fiscal year 2001, he was only rated "fully successful"
and thus lost out on an additional one-time bonus that was tied
to the rating. After fiscal year 2001, employees at SBV were
entitled to a one-time bonus that was directly tied to the
performance rating received by the employee, i.e., a rating of
"highly successful" garnered a bonus of 4.5% of the employees
salary while a "fully successful" rating was worth a bonus of
3.5% of salary. See Pl. Statement ¶ 243d. Although plaintiff
received some fiscal year 2001 bonus, receipt of a less than
expected bonus can constitute an adverse employment action. See
Russell, 257 F.3d at 819.
Defendant contends that plaintiff's supervisor in 2002, Mr.
Mercer, had several nonretaliatory reasons for giving the
plaintiff a "fully successful" rating. Mr. Mercer determined that
plaintiff merely "met" but did not exceed all seven elements of
his performance plan. See Def. Mem. at 25. To get a "highly
successful" rating, plaintiff needed to "exceed" the performance
standards for at least half of the seven elements of his
performance plan. Id. at 25 n. 11. On some of the particular
elements, Mr. Mercer noted that plaintiff had problems "dealing
with employee issues." See Def. Mem., Ex. 69, Fiscal Year 2001
Performance Appraisal Form. Mr. Mercer also testified that he had
received several complaints about plaintiff from store operations
and merchandising functions. See Def. Mem., Ex. 88 Deposition
of Gary Mercer ("Mercer Dep.") at 100. On plaintiff's review, Mr.
Mercer also stated that "[plaintiff] needs to become more
involved in looking for opportunities for improvement in
operating results." See Def. Mem., Ex. 69. Defendant finally
notes that Mr. Mercer gave "fully successful" ratings to four of
his six subordinates. Def. Mem. at 26.
Plaintiff takes issue with Mr. Mercer's review. He notes that
Mr. Mercer's justification for his rating lacked specificity, and
in fact plaintiff contends that Mr. Mercer called plaintiff
"outstanding" in the area of inventory safeguards, one of the
seven elements. See Pl. Opp'n at 27. Plaintiff also observes
that an independent auditor review of the SBV inventory controls
approved the processes put in place by plaintiff. Id. Finally,
he contends that he received positive comments from Mr. Mercer's
predecessor in 2000 for his ability to work with his
subordinates. Pl. Statement ¶ 248d.
In evaluating whether plaintiff has established that
defendant's justification was a pretext for discrimination, the
Court may consider all relevant evidence, including the strength
of the prima facie case and any properly-considered evidence
supporting the employer's case. Reeves, 530 U.S. at 147-48.
Plaintiff's prima facie case for this claim is not particularly
strong. He received a bonus, just not as large a bonus as he
would have liked. Although a less than expected bonus may be an
adverse action, there is not much (albeit enough) evidence
establishing a causal connection between plaintiff's prior
protected activity and the reduced bonus. Not only did three
other subordinates of Mr. Mercer receive "fully successful"
ratings and hence similar bonuses, but Mr. Mercer joined SBV in January of 2001, after plaintiff
filed his final administrative action in this case. See Def.
Statement ¶ 72. Plaintiff's other evidence of a pretext for
retaliation is similarly weak. Plaintiff's statement that Mr.
Mercer called him "outstanding" in the area of inventory
safeguards does not fully represent the nature of the review. In
that same performance element, Mr. Mercer notes that plaintiff
"will gain a better understanding and will be able to offer
recommendations for improvement by attending store physical
inventories." Def. Mem., Ex. 69. Moreover, a positive comment in
one of the seven performance elements does not establish that
plaintiff should have met the criteria for "highly successful"
an overall rating that requires "exceeds" for at least half of
the performance elements. For fiscal year 2001, plaintiff was
rated "met" for all seven elements, thus his quibbles with one of
the seven still leaves him well short of meeting the requirement
for a "highly successful" rating. The lack of any other evidence
to cast doubt on defendant's non-retaliatory explanation for
plaintiff's rating means defendant is entitled to summary
judgment on this claim.
Plaintiff's non-promotion claims are that he was offered and
then denied the position of financial analyst, denied a promotion
to administratively exempt ("AE") status, and not promoted to the
position of "corporate controller." Taking each claim in turn,
plaintiff cannot show that the defendant's proffered
justifications are a prextext for retaliation. First, plaintiff
alleges that, in October 1999, Mr. Banscher, a second level
supervisor of plaintiff, told him that his position would be
abolished, but that plaintiff could work in a new "financial
analyst" position being created. See Second Am. Compl. ¶¶
38-39. However, plaintiff claims the new position was withdrawn
when Mr. Banscher learned of plaintiff's EEOC complaint. Id. ¶
40. Defendant asserts that plaintiff was not promoted to a financial
analyst position because such a position was never created or
open for applications. See Def. Mem. at 56-57 & Ex. 108,
Banscher Dep. at 58. Defendant also notes that there is no
evidence plaintiff was ever informally or formally offered the
position, and at best, plaintiff was merely shown a proposed
reorganization chart that was never implemented. Def. Mem. at 57.
In response, plaintiff insists the "offer" for this position
was retracted when he filed his November 1999 EEOC complaint.
See Pl. Opp'n at 19. However, beyond plaintiff's own
speculation, there is no evidence of this quid pro quo. There is
also no evidence that the financial analyst position was ever
offered to plaintiff, or that the position was ever actually
created and filled. Thus, plaintiff cannot show that defendant's
reason for not promoting him the position itself was never
created was a pretext for retaliation. See Stella v.
Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (noting "`the two
most common legitimate reasons on which an employer might rely to
reject a job applicant: an absolute or relative lack of
qualifications or the absence of a vacancy in the job sought.'")
(quoting Int'l Brotherhood of Teamsters v. United States,
431 U.S. 324, 358 n. 44 (1977)).
Plaintiff next claims that he should have been designated an
"AE" employee, a status that he believes would have constituted a
promotion. Defendant, however, contends that not only is "AE"
status not a promotion, but plaintiff did not qualify for such a
designation because he was not hired, promoted, or reassigned
during the relevant period. See Def. Mem. at 32-34. Plaintiff's
attempt to rebut defendant's justification focuses on whether
"AE" designation is in fact a promotion. See Pl. Opp'n at
20-21. However, putting aside the question of whether "AE" status
itself is a promotion, plaintiff has no response to defendant's
explanation that he did not qualify for "AE" status. Plaintiff concedes that employees were
designated "AE" only if they were recently hired, promoted, or
reassigned, see Pl. Statement ¶ 27, but argues that changes in
his position description amounted to a de facto promotion
warranting "AE" designation, see Pl. Opp'n at 21. Plaintiff's
evidence, however, is merely his own speculation flowing from
changes in his position description. See id., Exs. 19-21. But
during all relevant times in this action, plaintiff held the
position Financial Manager of Museum Stores. See Def. Statement
¶ 60. Moreover, there is no evidence in the record that plaintiff
was actually promoted or reassigned to a different position so
that he would have qualified for a designation to "AE." Thus,
plaintiff's unsubstantiated and self-serving statement that he
was effectively promoted or reassigned is not sufficient to
create a genuine issue of material fact. See, e.g., Harding
v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993) ("mere unsubstantiated
allegation . . . creates no `genuine issue of fact' and will not
withstand summary judgment"); Bryant v. Brownlee,
265 F. Supp. 2d 52, 68 (D.D.C. 2003) (conclusory allegations in affidavit
opposing summary judgment do not raise genuine issue of material
Plaintiff's final non-promotion claim is that he was wrongfully
denied a promotion to the position of "SBV corporate controller."
In the fall of 1999, plaintiff was informed by Mr. Banscher that
a "corporate controller" position was going to be created. See
Pl. Opp'n, Ex. V, Oct. 17, 2003 Deposition of Shawn Kelley at 14.
Plaintiff also indicated at that time that, were a "corporate
controller" position ever created, he would like to apply for it.
Id. at 22. Subsequently, in June 2000, Rob Schelin was promoted
to the position of Special Projects Deputy Financial Officer
through a non-competitive hiring process. See Wessel Aff. ¶ 18.
According to plaintiff, this was the same "corporate controller"
position for which he had earlier indicated an interest. Defendant, however, contends that Mr.
Schelin was hired to the position through a non-competitive
process, and thus there was no requirement that applications be
accepted for the position. Def. Mem. at 34. Defendant also notes
that Mr. Schelin had developed experience working in a series of
"transition" positions across a variety of SBV businesses. Id.
at 35-36. Plaintiff, on the other hand, only had experience in
the SBV museum stores division. Id. at 36.
Plaintiff's claim of pretext is essentially that he was more
qualified for the position than was Mr. Schelin. Plaintiff bases
this assessment on a review of his qualifications, noting that he
possessed a college degree while Mr. Schelin did not. See Pl.
Opp'n at 14-15. Plaintiff also notes that Mr. Schelin testified
that plaintiff was more qualified than he was. See Pl. Opp'n at
14. But plaintiff misstates Mr. Schelin's testimony. Mr. Schelin
testified that although plaintiff had greater technical
accounting experience, he had more experience than plaintiff.
See Schelin Dep. at 72, 82. More importantly, only where a
reasonable employer would have found plaintiff "significantly
better qualified" can a fact finder infer that the employer
consciously selected the less qualified applicant. Carter v.
George Washington Univ., 387 F.3d 872, 881 (D.C. Cir. 2004)
(quoting Aka, 156 F.3d at 1294); see also Walker v.
Dalton, 94 F. Supp. 2d 8, 16 (D.D.C. 2000) ("slight questions of
comparative qualifications do not warrant a jury trial"). In
order for disparities in qualifications to be evidence of pretext
that would lead this Court to second-guess defendant's hiring
decision, they must be "so apparent as to virtually jump off the
page and slap us in the face.'" Choates v. Powell, 265 F.
Supp.2d 81, 95 (D.D.C. 2003); see also Bickerstaff v.
Nordstrom, Inc., 48 F. Supp. 2d 790, 801 (N.D.Ill. 1999) (being
in defendant's employ for longer than selectee does not by itself
qualify plaintiff for the position in question, particularly
where selectee had different and potentially more relevant experience).
A review of the record shows that plaintiff was not significantly
more qualified than Mr. Schelin. Moreover, plaintiff's evidence
of his superior qualifications is based solely on his own
assessment, which is generally not enough. See Waterhouse v.
District of Columbia, 124 F. Supp. 2d 1, 7 (D.D.C. 2000) (pretext
is not shown "simply based on [plaintiff's] own subjective
assessment of [her] own performance"), aff'd, 298 F.3d 989 (D.C.
Cir. 2002). Hence, plaintiff has not shown that defendant's
proffered justification is pretextual.*fn3
III. Retaliatory Hostile Work Environment
Plaintiff's final claim is for what is best described as a
retaliation-based hostile work environment. He reiterates the
grounds for his discrete retaliation claims, as well as
allegations that his "problematic" posture at SBV was frequently
discussed by his supervisors and he was subjected to a barrage of
personal insults by his supervisors and co-workers. A workplace
environment becomes "hostile" for purposes of Title VII, of
course, only when offensive conduct "permeate[s] [the workplace]
with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment."
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998); accord Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993); see also Pa. State Police v. Suders,
124 S.Ct. 2342, 2347 (2004); Clark Cty. School Dist.,
532 U.S. at 270-271; Holbrook v. Reno, 196 F.3d at 262.
The key terms, then, are "severe," "pervasive," and "abusive,"
as not just any offensive or discriminatory conduct constitutes an actionable hostile work
environment. Under Faragher v. Boca Raton, 524 U.S. 775, 787-88
(1998), in order to determine whether a work environment is
sufficiently hostile to be actionable under Title VII, a court
should consider: (1) the frequency of the discriminatory conduct;
(2) the severity of the conduct; (3) whether the conduct is
physically threatening or merely offensive; and (4) whether the
conduct reasonably interferes with the employee's performance.
These standards for judging hostility are
sufficiently demanding to ensure that Title VII does
not become a "general civility code." Properly
applied, this will filter out complaints attacking
"the ordinary tribulations of the workplace, such as
the sporadic use of abusive language, gender-related
jokes, and occasional teasing."
Id. at 787 (citations omitted).
Plaintiff has failed to establish his hostile work environment
claim. Considering the totality of the evidence proffered, and
drawing all inferences in favor of plaintiff, there are no
genuine issues of material fact and no reasonable jury could find
that plaintiff was subjected to an actionable hostile work
environment. Simply put, plaintiff cannot meet the burden of
showing hostility in the work environment at SBV that was
"severe," "pervasive," and "abusive."
The verbal insults directed at plaintiff by his supervisors
were unrelated to plaintiff's protected activity and, moreover,
only occurred on a few occasions. See Pl. Statement ¶ 182d
(work-related insults directed at plaintiff "two or three
times"). The record also shows that there were only a few alleged
statements regarding plaintiff's prior litigation and subsequent
administrative complaints. These comments fall well short of
actionable harassment under a hostile work environment
assessment. See Faragher, 524 U.S. at 788 (Title VII does not
redress "the ordinary tribulations of the workplace, such as
sporadic use of abusive language"). The remainder of plaintiff's alleged "hostile" events are the very
employment actions he claims are retaliatory; he cannot so easily
bootstrap alleged retaliatory incidents into a broader hostile
work environment claim. See Lester v. Natsios,
290 F. Supp. 2d at 33 ("Discrete acts constituting discrimination or
retaliation claims . . . are different in kind from a hostile
work environment claim that must be based on severe and pervasive
discriminatory intimidation or insult."). Plaintiff's claim
simply does not meet the threshold of severe, pervasive and
abusive retaliatory conduct, and thus defendant is entitled to
summary judgment on this claim as well.
For the above reasons, defendant's motion for summary judgment
is granted. A separate order is issued on this date.
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