United States District Court, D. Columbia
September 6, 2005.
FEDERICO SANTA CRUZ, Plaintiff,
JOHN W. SNOW, Defendant.
The opinion of the court was delivered by: HENRY KENNEDY, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Federico Santa Cruz, brings this action against his
employer, the Department of the Treasury ("Treasury"), alleging
that Treasury discriminated against him on the basis of race,
national origin, and age, in violation of Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.,
and the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 621 et seq., and retaliated against him for complaining about
the discriminatory conduct.*fn1 Presently before the court
is Treasury's motion for summary judgment [#29]. Upon
consideration of the motion, the opposition thereto, and the
record of this case, the court concludes that the motion must be
Santa Cruz, a 67 year-old Filipino man, is employed by the
Bureau of Engraving and Printing ("BEP"), a division of the
Department of the Treasury, as a GM 13 Supervisory Chemical Engineer.*fn2 Santa Cruz began working for BEP in
1988, "performing chemical engineering functions . . . related to
the manufacture of ink[,] printing of currency and other security
methods," Santa Cruz Dep. at 15. In 1991, Santa Cruz received a
promotion and served as branch head of the Chemical Engineering
Branch. BEP apparently eliminated this branch in 1996 and that
same year transferred Santa Cruz to the Office of Engineering,
Environmental and Energy Management Division ("the Division").
Upon his transfer, Santa Cruz's primary responsibilities became
identifying and recommending energy and water conservation
projects, tracking annual energy and water consumption at BEP,
and preparing an annual report for Treasury. Once at the
Division, Santa Cruz came under the direct supervision of Mark
Antagonism between the two men developed within a few months of
Santa Cruz's arrival. Santa Cruz filed a formal Equal Employment
Opportunity ("EEO") complaint on March 18, 1997. See Def.'s
Mot. for Summ. J., Ex. 5 at 1-4. In his EEO complaint, Santa Cruz
detailed some 25 individual discriminatory acts occurring over
the course of eight years.*fn3 Among other charges, Santa
Cruz accused Pipkin of: reminding him on November 7, 1996,
"[r]emember now, there is no more Chemical Engineering Branch,"
id. at 16; telling Santa Cruz on November 19, 1996 that "we have bad experience [sic] with Chemical Engineers,"
id.; accelerating the deadline for completion of a project,
id. at 15; on November 20, 1996, giving Santa Cruz an
assignment "on a note scribbled on a 3" × 5" yellow Post It
sheet," which in Santa Cruz's view was "not the proper way to
initiate an engineering project," id. at 14; distributing a
document to Santa Cruz on the same date, with the comments that
"[i]f you cannot understand it verbally, I will read it to you,"
and "[s]ince you cannot take it verbally, I will have it for you
in writing," id.; in December 1996, preparing a 1997
Performance Plan for Santa Cruz that allegedly reduced the scope
of his job duties, id. at 9; and, in the course of a December
4, 1996 meeting concerning the 1997 Performance Plan, using a
"loud and demeaning voice," banging on Santa Cruz's office door,
and generally treating Santa Cruz with a lack of respect, id.
The 1997 Performance Plan became a source of ongoing conflict
between Santa Cruz and Pipkin. On April 28, 1997, Jeffrey Van
Houten, then Santa Cruz's second-line supervisor, wrote to Santa
Cruz that "[t]he fact that you disagreed with the standards and
refused to sign them does not mean they are not in effect.
Performance standards, like assignments of work, are not a
negotiable issue." Def.'s Mot. for Summ. J., Ex. 33. Van Houten
explained that "it is Bureau policy to conduct both an annual
performance evaluation and a mid-year performance review based on
your performance in achieving or meeting these standards." Id.
Two days later, Pipkin conducted a Mid-Year Performance Review
with Santa Cruz. Pipkin noted that "Mr. Santa Cruz is not
achieving the standards outlined in his performance plan," and
criticized Santa Cruz's failure to complete assignments in a
timely manner, to work with others in the Division, and to
provide updates on his activities. Pl.'s Opp'n, Ex. 19. The next
day, on May 1, 1997, Pipkin wrote to Santa Cruz that "[a]s
discussed at your mid-year review on 4/30/97, you are not achieving the standards outlined
in your performance plan, and your performance is bordering being
[sic] unacceptable. As a result of this less than satisfactory
performance, you are being officially notified that unless your
performance improves, you will be placed on a performance
improvement plan." Def.'s Mot. for Summ. J., Ex. 48. Santa Cruz
ultimately had his Final Year 1997 Performance Review in November
1997 and received a rating of "achieved standards" in all
categories. Pl.'s Opp'n, Ex. 20 at 2. Also in November 1997,
Santa Cruz requested that BEP fund a course at George Washington
University; Pipkin authorized the course, but Santa Cruz's
second-line supervisor at the time, George Shue, did not.
Friction between Santa Cruz and Pipkin worsened in 1998. On
January 14, 1998, Pipkin apparently tasked Santa Cruz to work on
BEP standards. See Def.'s Mot. for Summ. J., Ex. 18. Two days
later, Santa Cruz wrote a memorandum to Pipkin asking that the
supervisor supply "a copy of the procedures and criteria that you
will use in reviewing the BEP standards that I am writing," and
noting that "[i]t would be a waste of U.S. Taxpayer money if I
spend time developing the procedures and criteria for writing BEP
standards because you have them already." Id. Santa Cruz also
mentioned that "standards are very highly technical documents.
The reviewer must have a level of competence in standards
development and on the subject of the standard which are at least
equal to that of the originator, preferably higher." Id.
(emphasis omitted). Santa Cruz sent copies of this memo to Shue
and two other BEP managers, Carla Kidwell, the Associate Director
of Technology, and Thomas Kidwell, the Deputy Director.
Pipkin replied to Santa Cruz in a memo dated January 21, 1998
that "it is your responsibility to provide this information as
part of your assignment," and that "[t]he level of oversight and
direction required by you on assignments of this nature is far
too extensive for an employee at the GS-13 level." Id., Ex. 19 at 1. Pipkin noted
Santa Cruz's dissatisfaction with his "current work situation"
and requested that he not circulate memoranda "to parties outside
this office without first receiving my concurrence." Id. at 2.
Pipkin called Santa Cruz to the former's office the next day,
on January 22, 1998, furnishing his memorandum to Santa Cruz and
asking to discuss its contents. After an argument over whether
the men would have the meeting by themselves or with Shue
present, Santa Cruz departed and returned to his own office.
Pipkin allegedly followed Santa Cruz back to the latter's desk;
according to Santa Cruz, his supervisor "stood very close to me . . .
trying to stare me down and intimidate me," and "spoke with
hatred," Id., Ex. 20 at 1. Pipkin left Santa Cruz's office, and
apparently returned later in the day to notify Santa Cruz that
they would meet with Shue on January 29, 1998. During this second
encounter, Santa Cruz noted that Pipkin screamed at him.
On January 26, 1998, Santa Cruz wrote to Shue, Kidwell,
Ferguson, and Jean Pitts, the Chief of the Office of EEO/Employee
Counseling, requesting a "transfer to another BEP component" due
to allegedly discriminatory acts perpetrated by Pipkin. Id.,
Ex. 21 at 1. Three days later, Santa Cruz wrote another
memorandum to Shue, Kidwell, Ferguson, and Pitts, repeating his
request for a transfer and his allegations that Pipkin had
consistently discriminated against him. As scheduled, Santa Cruz
met with Pipkin and Shue on January 29, 1998. Shue testified that
"we were in agreement to transfer [Santa Cruz] to some other part
of the organization," but that Santa Cruz never followed up on
the proposal. Id. at 57. At the meeting, Shue also suggested
that to "get over [the] hump," Pipkin list the tasks he had
already assigned to Santa Cruz, "and give that list to [Santa Cruz] with the target
dates for completion . . . so that it's very clear to [Santa
Cruz] what is expected of him." Id. at 68, 66-67.
On the same day as his meeting with Pipkin and Shue, Santa Cruz
wrote to Shue that "[i]n the meeting on January 29, 1998, you
gave the direction that I should stop work on the development of
standards. In accordance with your directions, I have stopped
working on the development of standards immediately." Pl.'s
Opp'n, Ex. 28. In response, Shue wrote to Santa Cruz that
"obviously you misunderstood my instructions to continue working
on the assignments given to you by Mr. Pipkin . . . you are to
continue working on the assignments that Mr. Pipkin has given you
and outlined in his 2/2/98 memorandum." Id., Ex. 29.
Meanwhile, Santa Cruz had written to Pipkin on January 30, 1998
that "you will give me a list of tasks and I will comment/work on
these tasks. . . . In order to be able to follow this schedule it
is necessary that I receive at least one task a day from Feb. 3,
4, 5, 6, 9, 10, and 11 at the beginning of each working day. . . .
If the list of tasks is submitted late, the number of tasks
evaluated will be reduced accordingly." Def.'s Mot. for Summ. J.,
Ex. 25. As apparently agreed at the January 29, 1998 meeting,
Pipkin then provided Santa Cruz with a list of three tasks and
corresponding deadlines: the development of "energy efficient
standards or guidance for use in writing engineering
specifications," due February 9, 1998; "a comprehensive energy
tracking plan with initiatives and milestones for reducing energy
costs, improving energy efficiency, and energy consumption," due
February 25, 1998; and "a formal reporting format for energy
expenditures that can be incorporated into [the] quarterly
environmental reports," due March 9, 1998. Id., Ex. 27 at 1. In
Pipkin's view, Santa Cruz turned in only an incomplete version of
the first assignment; on March 5, 1998, Pipkin wrote that "you are
not adhering to the mutually agreed upon terms of our meeting
with Mr. Shue." Id., Ex. 28 at 2.
On March 9, 1998, Pipkin presented Santa Cruz with a Memorandum
of Warning, noting "serious deficiencies" in Santa Cruz's conduct
and outlining expectations for Santa Cruz's workplace performance
and demeanor. Pl.'s Opp'n, Ex. 2. Pipkin wrote a "memorandum for
file" indicating that on April 1, 1998, he asked Santa Cruz about
the status of his work assignments, stated that he felt Santa
Cruz was spending too much time on one particular issue area, and
reminded him "about the original focus of his work." Def.'s Mot.
for Summ. J., Ex. 29. Santa Cruz, by Pipkin's telling, "became
angry when I asked to see draft documents of his work," and
"muttered something and abruptly left" Pipkin's office. Id.
Tensions between Santa Cruz and Pipkin continued to escalate in
early 1998. During a staff meeting held on April 23, 1998,
conflict between the men flared again. Pipkin stated that Santa
Cruz "starting yelling at and verbally attacking" Mohamud Saleh,
a co-worker, and "shook [his] fists at [Saleh] while screaming
that he is unqualified for his position." Pl.'s Opp'n, Ex. 6 at
1. Santa Cruz, for his part, denied screaming and shaking his
fists at Saleh, but testified that Pipkin talked to him "in a
very stern and angry and belligerent manner," Santa Cruz Dep. at
70, after Santa Cruz offered a clarification about BEP's
recycling program. Prompted by Santa Cruz's alleged misbehavior
at the April 23, 1998 staff meeting, Pipkin decided to suspend
Santa Cruz without pay for five days. Pipkin indicated that the
suspension was also based on Santa Cruz's failure to remedy the
problems outlined in the March 9, 1998 Memorandum of Warning, and
failure to complete the assigned tasks Pipkin had conveyed to him
in the January 29, 1998 meeting and through the February 2, 1998
memorandum. Several months later, on October 2, 1998, Santa Cruz sent Pipkin a memorandum requesting that "a BEP
employee other than yourself or George Shue" perform his year-end
evaluation, because "you have a college degree but it is not in
Engineering. Therefore, you cannot even make an evaluation of my
performance because the tasks I am doing are engineering in
nature." Def.'s Mot. for Summ. J., Ex. 45 at 1. On October 22-23,
1998, Santa Cruz again received a rating of "achieved standards"
on his Final Year 1998 Performance Review, an evaluation to which
he again objected. Id., Ex. 41.
In 1999, Henry Toney became Santa Cruz's first-line supervisor.
On the basis of the available record, several years passed
without incident. Santa Cruz received his formal right-to-sue
notice regarding his initial EEO complaint on April 6, 2001, and
filed this suit on June 20, 2001. Several months later, though,
BEP initiated a second round of disciplinary action against Santa
Cruz with a Letter of Warning on August 23, 2001. According to
Toney, there were two bases for the warning: "creating a
disturbance, and failure to follow orders." Pl.'s Opp'n, Ex. 13
The next summer, Toney asked Santa Cruz to perform billing
reconciliation, but Santa Cruz purportedly "refused to complete
the task and gave invalid reasons why [he] could not validate the
procedure by performing the task" that Toney had directed him to
complete. Id., Ex. 14 at 1. On this basis, Toney issued Santa
Cruz a Notice of Proposed Suspension on June 25, 2002, indicating
that Santa Cruz would be suspended for three days for failure to
follow supervisory instructions. Santa Cruz filed a grievance
based on his suspension on July 29, 2002. II. ANALYSIS
A. Plaintiff's Disparate Treatment Claims*fn4
Title VII makes it unlawful for an employer to discriminate
against an individual on the basis of race, national origin, or
sex. 42 U.S.C. § 2000e-2(a). ADEA prohibits an employer from
failing to hire an individual on the basis of an individual's
age, 29 U.S.C. § 623(a)(1), a protection applying to workers 40
years of age and older. Id. § 631(a). Santa Cruz's claims under
both statutes require analysis under the ubiquitous
burden-shifting framework first set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973); see also Hall v.
Giant Food, Inc., 175 F.3d 1074, 1077-78 (D.C. Cir. 1999)
(applying McDonnell Douglas factors to ADEA claims). Under this
approach, the plaintiff bears the burden of making a prima
facie case of discrimination by bringing forth facts sufficient
"to create a reasonable inference" that the plaintiff's status as
a member of a protected class, such as race or age, "was a factor
in the employment decision at issue." Krodel v. Young,
748 F.2d 701, 705 (D.C. Cir. 1984). If the plaintiff successfully meets
this burden, he creates a rebuttable presumption that the
defendant employer unlawfully discriminated against him. Teneyck v. Omni
Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004) (citation
omitted). The burden then passes to the defendant to articulate a
"legitimate, nondiscriminatory reason" for its actions.
McDonnell Douglas, 411 U.S. at 802. Once the defendant has done
so, "the ultimate question . . . is whether intentional
discrimination may be inferred from all of the evidence before
the trier of fact." Teneyck, 365 F.3d at 1151. Such evidence
includes the plaintiff's prima facie case, any evidence the
plaintiff presents to rebut the employer's assertedly
non-discriminatory rationale for its actions, and "any further
evidence of discrimination that may be available to the
plaintiff." Id. (citations omitted).
To establish a prima facie case of disparate treatment
discrimination, the plaintiff must show: (1) that he is a member
of a protected class; (2) that he suffered an adverse employment
action; and (3) that he was treated differently than similarly
situated employees who are not part of the protected class. See
id.; Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). The
parties do not dispute that as a Filipino man over age 40, Santa
Cruz is a member of a protected class under both Title VII and
ADEA, satisfying the first element of his prima facie case.
An "adverse employment action" is "a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing significant change in benefits." Taylor v.
Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). While
economic harm is not a prerequisite, it is the typical injury
flowing from an adverse employment action. See Dickerson v.
SecTek, Inc., 238 F. Supp. 2d 66, 80 (D.D.C. 2003); see also
Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) ("while
adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee
unhappy is an actionable adverse action" (citations omitted)).
Santa Cruz alleges six different incidents in support of his
claim of disparate treatment: a warning letter issued on March 9,
1998, Compl. ¶ 57, Pl.'s Opp'n at 3-6, 10-12; a similar warning
letter issued on August 23, 2001, id. at 3-6, 14-16; a Notice
of Proposed Suspension issued on May 21, 1998, Compl. ¶¶ 37, 57,
Pl.'s Opp'n at 3-6, 12-14; a second Notice of Proposed Suspension
issued on June 25, 2002, id. at 3-6, 16-17; purportedly
substandard performance evaluations in 1996-97 and 1997-98,
Compl. ¶¶ 18-21, 32, 34, Pl.'s Opp'n at 6-7, 22-24; and denial of
his 1997 request to attend a George Washington University course,
id. at 5-6, 20-22. The court evaluates each of these claimed
discriminatory acts individually.
2. March 9, 1998 Memorandum of Warning
On March 9, 1998, Pipkin presented Santa Cruz with a Memorandum
of Warning, noting "serious deficiencies" in Santa Cruz's
conduct. Pl.'s Opp'n, Ex. 2 at 1 ("March 9, 1998 Memorandum of
Warning"). Pipkin wrote:
[Y]ou are currently displaying a number of behaviors
that are very inappropriate. Among other things, you
display a hostile and contentious attitude with the
staff and me; you often delay or fail to follow my
directions; you write an inordinate number of
superfluous memoranda to others and me that are often
inflammatory; and, you often fail to carry out your
assigned duties in an effective manner or within
prescribed parameters. This list of shortcomings is
not exhaustive . . .
Pipkin directed Santa Cruz to keep his office door open,
"unless warranted by business necessity"; to "execute my
instructions as directed and without delay"; "to complete
assigned duties in a timely and thorough manner"; to work with
others "in a pleasant and business-like manner"; and to seek any needed clarification of work
instructions. Id. at 1-2. Pipkin also advised Santa Cruz that
"failure to heed these warnings may result in administrative
action being taking against you, including the possibility of
removal from your position." Id. at 2 (emphasis omitted).
Santa Cruz argues that this warning letter constitutes an
adverse employment action because it was "closely connected with
[his] subsequent suspension, which Defendant does not contend is
not an adverse employment action." Pl.'s Opp'n at 11. A mere
warning of possible future disciplinary action, however, does not
constitute an independent adverse employment action simply
because the employer later followed through on the warning.
Bunyon v. Henderson, 206 F. Supp. 2d 28, 30 (D.D.C. 2002).
Rather, to be considered an adverse employment action, the
warning must itself affect the terms, conditions, or privileges
of Santa Cruz's employment. Harris v. Potter,
310 F. Supp. 2d 18, 21 (D.D.C. 2004). Santa Cruz does not allege that the March
9, 1998 Memorandum of Warning cost him pay or benefits, effected
a change to his job title or responsibilities, altered his work
hours, or otherwise affected "any material matter" of his
employment. Although Santa Cruz speculates that "it is
conceivable that [his] warnings could be placed in his personnel
file to be reviewed in connection with applications for future
promotions, thereby affecting his grade and salary," Pl.'s Opp'n
at 11, this possibility is too attenuated to create the requisite
"adversity" needed for Santa Cruz's prima facie case. Santa
Cruz does not argue that he was actually denied a promotion on
the basis of the warning letter, or even that he sought any
promotion after the issuance of the warning. Consequently, Santa Cruz's discrimination claim based on the
March 9, 1998 Memorandum of Warning is dismissed.*fn5
3. August 23, 2001 Letter of Warning
Santa Cruz received the second notice of warning several years
later from another supervisor, Henry Toney. Toney issued the
August 23, 2001 Letter of Warning for two stated reasons. First,
Toney wrote that Santa Cruz was "unprofessional and
disrespectful" during an August 7, 2001 meeting on the office's
FY 2002 Annual Energy Report. At the meeting, Santa Cruz
allegedly admonished Toney that the "Secretary of the Treasury
does not tolerate documents being late that require his
signature," and that "if the energy report were late, it would be
[Toney's] fault" since Toney had specified the procedures for
obtaining copies of the utilities invoices necessary for the
preparation of the report. Pl.'s Opp'n, Ex. 13 at 1. Toney wrote
to Santa Cruz that "I do not have a problem with you disagreeing
with me on office issues and procedures; however, once a decision
is made, I expect you to follow the guidance that is issued."
Id. As a second ground for the warning, Toney wrote that after
he asked Santa Cruz to prepare a spreadsheet showing BEP's
utilities usage, Santa Cruz replied that he was "too busy" to perform the task, and that doing so would delay his completion of
other assignments. Id. at 1. Toney indicated that the warning
would not be filed in Santa Cruz's Official Personnel Folder, but
"will be retained in the Division files" for a period of one
year. Id. at 2.
Santa Cruz offers no argument that the August 23, 2001 Letter of
Warning materially affected his pay, benefits, responsibilities,
or working conditions. Consequently, he has not shown that the
letter constituted an adverse employment action. See Walker v.
Wash. Metro. Area Transit Auth., 102 F. Supp. 2d 24, 29 (D.D.C.
2000) (disciplinary notice "did not constitute an adverse
personnel action because it affected neither the appellant's
grade nor his salary.") (discussing Brown, 199 F.3d at 458).
For the same reasons that his claim based on the March 9, 1998
Memorandum of Warning fails, his claim based on the second
warning must also be dismissed.*fn6
4. May 21, 1998 Notice of Proposed Suspension
On May 21, 1998, Pipkin presented Santa Cruz with a Notice of
Proposed Suspension. Pipkin indicated that he intended to suspend
Santa Cruz without pay for five days on three grounds: creating a
disturbance at the April 23, 1998 staff meeting; failure to
follow orders; and failure to complete assigned duties. Pl.'s
Opp'n, Ex. 6 at 1. On the first charge, Pipkin stated that Santa
Cruz "displayed an [sic] extremely hostile, loud, and
confrontational behavior" when he began "verbally attacking" a
co-worker during the staff meeting. Id. Santa Cruz allegedly
"shook [his] fists at the person while screaming that he is
unqualified for his position, that he did not know what he was talking about, and that he was therefore
wasting the government's money." Id. As to Santa Cruz's
apparent failure to follow orders, Pipkin noted that his March 9,
1998 Memorandum of Warning cautioned Santa Cruz to work with
"customers, colleagues, and management in a pleasant and
business-like manner," and that Santa Cruz failed to follow this
exhortation. Pipkin wrote in the Notice of Proposed Suspension
that Santa Cruz "continued to write a large volume of
inflammatory memoranda that describe [his] perceptions of
mismanagement." Id. Finally, Pipkin stated that he had
"repeatedly counseled" Santa Cruz "about the need to complete
assigned duties in a timely manner," to no avail. Id. at 2.
Pipkin noted that pursuant to their meeting of January 29, 1998,
he had assigned Santa Cruz three projects, all due between
February 9 and March 9, 1998, and that at the time of the
suspension notice Santa Cruz had not completed any of three.
It is undisputed that the five-day unpaid suspension
constituted an adverse employment action. Treasury relies on the
three reasons stated in the Notice of Proposed Suspension to
supply its assertedly legitimate, non-discriminatory reason for
the suspension Santa Cruz's inappropriate behavior at the April
23, 1998 staff meeting, his failure to follow his supervisor's
orders, and his failure to completed assigned tasks.
In attempting to show that Treasury's claimed reasons are
really a pretext for unlawful discrimination, Santa Cruz
challenges Pipkin's characterization of the April 23, 1998 staff
meeting. Santa Cruz asserts that he a shoulder injury left him
physically unable to shake his fists.*fn7 Santa Cruz Dep. at
71-72. He also "question[s] the sincerity behind the suspension,"
Pl.'s Opp'n at 13, because Saleh and another co-worker, Ricardo
Lopez-Merced, both sent memoranda to Pipkin complaining about
Santa Cruz's behavior at the staff meeting. See id., Exs. 7 and
8. Because both letters were dated on the same day, April 28,
1998, and because Pipkin testified that "it's possible" that he
requested that Saleh and Lopez-Merced write letters regarding the
alleged incident, Pipkin Dep. at 210, Santa Cruz concludes that
Pipkin acted out of "discriminatory animus." Pl.'s Opp'n at 13.
Conspicuously absent from Santa Cruz's argument, though, is a
connection between Pipkin's purported orchestration of the
complaint letters and any impermissible motivation. Even if
Pipkin sought to "set up" Santa Cruz, as Santa Cruz claims, such
a maneuver is not actionable under Title VII or ADEA absent a
demonstration that race, nationality, or age prompted Pipkin's
actions. Santa Cruz offers no evidence on this account.
Santa Cruz does not dispute the other two bases for the May 21,
1998 Notice of Proposed Suspension failure to follow orders and
failure to complete assigned duties. His only challenge is to
argue that in the aftermath of the January 29, 1998 meeting held
between Santa Cruz, Pipkin, and Shue to discuss Santa Cruz's work
projects, Shue incorrectly claimed that Santa Cruz wrote to him
that he had "stopped work on all of his assignments." Id., Ex.
27. Santa Cruz in fact wrote to Shue that "[i]n accordance with
your directions, I have stopped working on the development of
standards immediately." Id., Ex. 28. Shue replied that "I did
not instruct you to stop work on any assignments given previously
by Mr. Pipkin . . . you are to continue working on the
assignments that Mr. Pipkin has given you and outlined in his
2/2/98 memorandum." Id., Ex. 29. Santa Cruz's point is
irrelevant, because the Notice of Proposed Suspension was based
on Santa Cruz's failure to complete three specific projects
Pipkin assigned to him, not on Santa Cruz's stopping work "on all of his assignments."*fn8
Because Santa Cruz has not offered even a shred of evidence that
Treasury's reasons for imposing the five-day suspension on him in
1998 were a cover for unlawful discrimination, the court
dismisses this claim.
5. June 25, 2002 Notice of Proposed Suspension
Toney issued Santa Cruz the June 25, 2002 Notice of Proposed
Suspension on the ground that Santa Cruz failed to follow Toney's
supervisory instructions with regard to two matters. First, Santa
Cruz allegedly refused to complete a task Toney assigned to him,
a comparison of utility billings with actual steam usage.
According to Toney, after being asked to perform this assignment
Santa Cruz "refused to complete the task and gave invalid
reasons" why he could not do so. Id., Ex. 14 at 1. Toney also
charged Santa Cruz with contravening instructions provided to him
regarding information distribution, stating that Santa Cruz took
a letter to James Sirinakis, Toney's first-line supervisor,
"without discussing the letter with [Toney] first" and apparently
telling Toney by way of explanation "that [Toney] did not have
any right to the information." Id. As with the May 21, 1998 Notice of Proposed Suspension, Santa
Cruz does not deny the substance of these charges. Instead, he
asserts that Toney "conveniently could not remember any of these
alleged invalid reasons during his deposition." Pl.'s Opp'n at
16. Toney, when asked about "what the invalid reasons are" that
Santa Cruz apparently offered for his refusal to complete the
project, testified that "I can't remember exactly. But he did not
perform the task. That's the bottom line." Toney Dep. at 88.
Santa Cruz again seems to misunderstand the nature of the showing
he must make to avoid summary judgment for Treasury. It is
insufficient for him to assert that in his view, Treasury's
actions against him were imprudent or unfair; an employer may
make an employment decision for "a good reason, a bad reason, or
no reason at all so long as racial or other discriminatory
distinctions do not influence the decision." Winston v.
Smithsonian Sci. Info. Exch., 437 F. Supp. 456, 473 (D.D.C.
1977) (citations omitted). At most, Santa Cruz has adduced
evidence that his supervisors are forgetful, ornery, or petty,
but these qualities alone absent evidence of unlawful
discrimination do not give rise to liability.
Santa Cruz also argues that with respect to his second
suspension, a white co-worker, Donald O'Connor, "was repeatedly
allowed to verbally abuse his co-workers and his supervisor,
destroy property and skip work, yet he received no more than a
`good talking to,'" while Treasury "`threw the book'" at Santa
Cruz. Pl.'s Opp'n at 19. Santa Cruz thus seeks to establish that
his employer discriminated against him because a colleague
outside of Santa Cruz's protected class allegedly committed more
serious infractions, but was disciplined less severely. Evidence
that similarly situated employees outside the plaintiff's
protected class were treated more favorably allows the plaintiff
to establish a prima facie case of discrimination. Holbrook v.
Reno, 196 F.3d 255, 261 (D.C. Cir. 1999). In evaluating whether
the plaintiff and the relevant co-worker are similarly situated, "[t]he nature of the offenses committed and
the punishments imposed are the most significant variables in a
case alleging discrimination in connection with disciplinary
actions." Childs-Pierce v. Util. Workers Union of Am., ___ F.
Supp. 2d ___, 2005 WL 1983577 at *7 (D.D.C. Aug. 10, 2005) (citing
Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985)
(internal citation omitted); Holbrook, 196 F.3d at 261).
Santa Cruz does not establish that he was "similarly situated"
to O'Connor. Santa Cruz received the June 25, 2002 Notice of
Proposed Suspension for failure to follow supervisory
instructions. O'Connor, in contrast, apparently had an "anger
problem," Pl.'s Opp'n at 18, and according to the testimony of
Saleh, "always used to yell at the manager," Saleh Dep. at 86,
screamed at Saleh, and kicked the shelf of a desk. Id. at
60-61. O'Connor also allegedly arrived at work "any time he
wants," id. at 84, and possibly slept during working hours,
id. at 87-88. Employees are not similarly situated when their
workplace problems are, as here, "entirely different." Neuren v.
Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir.
1995) (female employee terminated for difficulty in meeting
deadlines and "getting along with others" not similarly situated
to male co-worker who had trouble with "legal writing abilities
and [a] tendency to stretch work out"); see also Phillips v.
Holladay Property Servs., Inc., 937 F. Supp. 32, 36-37 (D.D.C.
1996) (white employee who arrived at work late not "similarly
situated" to black colleague fired for insubordination); Kidane
v. Northwest Airlines, Inc., 41 F. Supp. 2d 12, 17 n. 8 (D.D.C.
1999) (employees not similarly situated where plaintiff offered
no evidence that "they had the same history of disciplinary
problems."). Because Santa Cruz was not similarly situated to
O'Connor, he cannot use alleged disparities between Treasury's
approach to the two men's alleged misconduct to support his
discrimination claims. 6. 1997 and 1998 Performance Evaluations
In most circumstances, "performance evaluations alone at the
satisfactory level or above should not be considered adverse
employment actions." Russell, 257 F.3d at 819; see also
Hussain v. Principi, 344 F. Supp. 2d 86, 106 (D.D.C. 2004) (the
fact that a plaintiff "receives a lower performance evaluation
than [he] thought [he] deserved does not constitute adverse
action" sufficient to make a prima facie case of
discrimination). Even performance evaluations that are
"unequivocally negative" are "not necessarily adverse actions"
when they do not affect the plaintiff's salary, benefits, work
duties, or other material conditions of employment. Id.
(quoting Brown, 199 F.3d at 458 (internal quotation marks
Santa Cruz asserts discrimination claims with regard to three
specific evaluations: his Mid-Year Performance Review for 1997,
dated April 30, 1997, and his Final Year Performance Reviews for
1997 and 1998. On Santa Cruz's 1997 mid-year evaluation, Pipkin
Mr. Santa Cruz is not achieving the standards
outlined in his performance plan. Mr. Santa Cruz has
been given numerous assignments and has not completed
them in a timely or successful manner. Mr. Santa Cruz
does not provide updates on his assignments, does not
attend scheduled meetings, and must be constantly
reminded and asked about the status of his project
activities. Mr. Santa Cruz continues to stay locked
in his office and does not participate with others in
the Division. Mr. Santa Cruz needs to take initiative
and to be more pro-active in his approach towards his
assignments and energy management. This includes
conducting energy assessments and recommending other
environmental/energy related initiatives for
production sections, facilities projects, and
equipment acquisitions . . .
Pl.'s Opp'n, Ex. 19.
The evaluation form asks each evaluated employee to "reflect on
your efforts during the rating period" and to "express any issues
of a professional or personal nature that are pertinent to your
performance during this rating period." In the space reserved for
employee comments, Pipkin apparently wrote "Employee Refused to Contribute," and on
the signature line noted that Santa Cruz refused to sign the
evaluation. Id. Santa Cruz's Final Year 1997 Performance Review
indicates that he received a rating of "achieved standards" in
all categories. Pipkin wrote that "Mr. Santa Cruz has minimally
achieved the standards outlined in his performance plan and met
the reporting deadlines for the energy reporting requirements.
[He] needs to use more initiative," and "needs to conduct energy
audits and more aggressive reviews of energy conservation
initiatives." Id., Ex. 20 at 2. Santa Cruz also received a
rating of "achieved standards" in all categories of his Final
Year 1998 Performance Review, and Pipkin wrote that "[a]fter a
tepid start and the issuance of a letter of warning, Mr. Santa
Cruz provided clear, consistent information regarding his energy
assignments." Def.'s Mot. for Summ. J., Ex. 41 at 2. Santa Cruz
noted his disagreement with both final year evaluations, and on
the 1998 evaluation wrote that he was suspended without pay
"based on false allegations," and that "I deserve the highest
rating because Mark Pipkin does not have the education, training
and experience to understand what I am doing. I have been
initiating all my work." Id.
Santa Cruz seeks to withstand Treasury's summary judgment
motion while deferring for another day his obligation to
establish a prima facie case of discrimination. He argues that
he "must engage in expert discovery in order to show that his
performance evaluations negatively impacted the terms of his
employment, including, but not limited to any promotions for
which he has applied and been rejected." Pl.'s Opp'n at 22.
Hypothetical expert testimony in the future, however, cannot
substitute for a showing at the present moment that the
performance evaluations actually had negative consequences for
Santa Cruz. "Although the evaluations were perhaps not all that
[he] hoped they would be," there is no evidence that they were
"adverse in an `absolute sense.'" Lester v. Natsios, 290 F. Supp. 2d 11, 29 (D.D.C.
2003). Santa Cruz's statement that as a general matter "the most
important indicator of a federal employee's performance is his
annual evaluation, determining his promotions within grade and
his suitability for grade advancement," Compl. ¶ 18, does not
create a genuine issue of material fact with respect to the
performance evaluations. Because he "did not present evidence
suggesting that [he] suffered any `significant change in [his]
employment status'" due to the performance reviews, Taylor,
350 F.3d at 1293, Santa Cruz's claim based on these evaluations must
7. January 1998 Denial of Funding for University Course
Denial of a training opportunity on allegedly discriminatory
grounds can constitute an adverse employment action, Freedman v.
MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir.
2001), but only if the denial materially affects the plaintiff's
pay, hours, job title, responsibilities, promotional
opportunities, and the like, Hoffman v. Caterpillar, Inc.,
256 F.3d 568, 574 (7th Cir. 2001) (citations omitted).
In this case, Santa Cruz sought approval for BEP funding for a
self-study course at George Washington University, "Advanced
Reading and Research." Def.'s Mot. for Summ. J., Ex. 38 at 2. As
Santa Cruz explained in his proposal, "[i]n this course, the
student develops a course of study on the subject of
concentration," and meets with an adviser regularly throughout
the semester to discuss the student's progress. Santa Cruz's
chosen topic was "The Engineering Organization of Energy
Efficiency and Water Conservation in a Printing Facility." Id.
at 2. On November 19, 1996, Pipkin authorized this course, which
cost just over $2,100. Id. at 1. The following year, Santa Cruz
sought to enroll in the same course at George Washington
University, this time with the goal of "develop[ing] an
engineering procedure to determine energy consumption changes," Id., Ex. 39. Although Pipkin approved
this request on November 26, 1997, id., Santa Cruz's
then-second-line supervisor, George Shue, apparently did not. On
January 13, 1998, Shue wrote to Santa Cruz that he was denying
the course approval request because he was "unable to see any
benefits to the Bureau's mission from your project paper." Pl.'s
Opp'n, Ex. 18.
Rather than explain how BEP's refusal to pay for a second
university self-study course adversely affected his grade,
salary, work responsibilities, promotional opportunities, or
other material conditions of his employment, Santa Cruz merely
asserts that "this issue is not ripe for decision because expert
testimony has not been developed yet, which may show that
denial of the course opportunity resulted in [Santa Cruz] not
getting his PHD [sic], which thereby might have an affect" on
his employment. Pl.'s Opp'n at 21 (emphases added). Yet again,
Santa Cruz is flatly wrong that he need not make the required
prima facie showing of an adverse employment action at the
summary judgment stage and may instead postpone this requirement
until trial.*fn9 Because Santa Cruz fails to show any
legally cognizable adversity flowing from the denial of the
course, this discrimination claim cannot be sustained. Lester,
290 F. Supp. 2d at 27, 29; see also Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 407 (5th Cir. 1999) (plaintiff failed
to produce evidence that denial of training opportunity
"peripheral" to hear primary job duties would "tend to affect"
her employment status or benefits). B. Plaintiff's Hostile Work Environment Claim
A hostile work environment exists "when workplace conditions
are so suffused with `discriminatory intimidation, ridicule and
insult' of such severity or pervasiveness as to alter the
conditions of the victim's employment." Hussain,
344 F. Supp. 2d at 107 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
21-22 (1993) (other internal quotation marks omitted)). To
establish a viable claim, a plaintiff must show not only that he
experienced harassment in the workplace, but that such harassment
arose because of the plaintiff's race (or here, national origin
or age). Ware v. Billington, 344 F. Supp. 2d 63, 71 n. 1
(D.D.C. 2004) (citing Stewart v. Evans, 275 F.3d 1126, 1133
(D.C. Cir. 2002)). In determining whether the plaintiff has
satisfied this requirement, the court must consider all relevant
circumstances, including the frequency and severity of the
conduct at issue, "whether it is physically threatening or
humiliating, or a mere offensive utterance," and whether the
alleged abuse "unreasonably interferes with an employee's work
performance." Curry v. District of Columbia, 195 F.3d 654, 663
(D.C. Cir. 1999) (citing Harris, 510 U.S. at 23). In this
Circuit, "casual or isolated manifestations of a discriminatory
environment" do not provide a sufficient basis for a hostile work
environment claim. Park v. Howard University, 71 F.3d 904, 906
(D.C. Cir. 1995).
Santa Cruz bases his hostile work environment claim on a number
of incidents, most notably: Pipkin allegedly spitting on Santa
Cruz during a heated exchange in late 1997 or early 1998, Santa
Cruz Dep. at 145-47; Pipkin "stalk[ing]" Santa Cruz and
"star[ing] at [him] for long periods of time," Pl.'s Opp'n, Ex.
23 at 26; Pipkin and others questioning Santa Cruz's handwriting
and English language comprehension, Def.'s Mot. for Summ. J., Ex.
5 at 10, 14; Pipkin encouraging co-workers to "ridicule and
criticize" Santa Cruz, Pl.'s Opp'n at 26; Pipkin replying "aha, another Filipino" after Santa Cruz
identified a colleague at the April 23, 1998 staff meeting,
id., Ex. 23 at 27; Pipkin telling Santa Cruz at the same
meeting "you will see what will happen" when Santa Cruz asked
that a colleague stop interrupting him, id.; a comment made in
1996 by another BEP manager who said that "all Filipinos that I
know are happy-go-lucky," Santa Cruz Dep. at 141-42; and Toney
"scold[ing] [Santa Cruz] like a child, referencing [his] apparent
need for a babysitter." Pl.'s Opp'n, Ex. 23 at 16.
While Santa Cruz has undoubtedly come forward with sufficient
evidence to prove to a near certainty that BEP is an unpleasant
and contentious workplace environment for him, he fails to
establish that he was subjected to an unlawful hostile work
environment because of his race, national origin, or age. Only
two of the numerous incidents Santa Cruz cites bear even the
slightest trace of reference to race. While the statements
attributed to Pipkin ("aha, another Filipino") and Williams ("all
Filipinos are happy-go-lucky") might be ignorant or offensive,
these comments are "simply insufficiently severe" or pervasive
"to create an abusive working environment." Glovinsky v. Cohen,
983 F. Supp. 1, 4 (D.D.C. 1997); see also Harris,
500 U.S. at 21 (noting that the "mere utterance of an . . . epithet which
engenders offensive feelings in an employee . . . does not
sufficiently affect the conditions of employment to implicate
Title VII") (citation and internal quotation marks omitted).
Because Santa Cruz has failed to meet his burden, the court
grants summary judgment for Treasury on the hostile workplace
claim.*fn10 III. CONCLUSION
For the foregoing reasons, the court concludes that Treasury's
motion for summary judgment must be granted. An appropriate order
accompanies this memorandum opinion.
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