United States District Court, D. Columbia
December 13, 2005.
CHARLES B. JONES, Plaintiff,
ALAN GREENSPAN, Chairman of The Board of Governors of the Federal Reserve System, Defendant.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART THE
DEFENDANT'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT
The plaintiff, Charles Blaine Jones, brings an employment
discrimination suit against his former employer, the Federal
Reserve Board. The plaintiff alleges that the defendant
retaliated against him after he filed an age discrimination
charge with the Equal Employment Opportunity Commission ("EEOC").
This matter is before the court on the defendant's motion to
dismiss and for summary judgment. Because the plaintiff has made
out a prima facie case of retaliation with respect to the 2000
performance evaluation, but not as to the other performance
evaluations, the court grants in part and denies in part the
defendant's motion to dismiss and for summary judgment. II. BACKGROUND
A. Factual Background
The plaintiff, a certified public accountant, was born on May
30, 1948. He began working at the defendant's Division of Reserve
Bank Operations and Payment Systems in April 1991. Compl. ¶ 6. In
July 1993, the plaintiff transferred to the Division of Banking
Supervision and Regulation at grade level FR-27. Id. ¶ 8.
Michael Martinson became the plaintiff's immediate supervisor in
late 1997. Pl.'s Opp'n to Def.'s Mot. to Dismiss and for Summ. J.
("Pl.'s Opp'n") at 3.
The plaintiff alleges that Martinson denied him a promotion to
a managerial position at the FR-29 grade level, and instead
selected Heidi Richards, "a woman in her early thirties." Id.
at 3, 6. Concerned that his supervisor was "effectuating
[d]efendant's policy of promoting young women to positions of
management," the plaintiff approached Martinson after Richards'
selection. Id. at 4. In response to the plaintiff's concerns,
Martinson allegedly "assured" the plaintiff that he would receive
a promotion to grade level FR-28. Id.
"Having not received the promised promotion by September 1998,"
the plaintiff approached Martinson again to inquire about the
status of the promotion to the FR-28 grade level. Id. Martinson
allegedly "assured" the plaintiff that "he would be promoted with
the next group of promotions." Id. The plaintiff alleges that
during this time period, Martinson "effectively demoted [him] by
stripping him of his primary job duties and reassigning them to
Mrs. Richards." Id. at 5.
"Based on Mr. Martinson's assurances that a promotion was
forthcoming, [the plaintiff] did not pursue the matter with the
[d]efendant's EEO office." Id. at 4-5. On October 7, 1999, Martinson promoted a group of individuals. Id. at 5. The
plaintiff, however, was not one of those individuals. Id. at 6.
Martinson explained that he could not justify the plaintiff's
promotion "because of his recently truncated work
Soon afterwards, in November 1999, the plaintiff filed an
informal complaint with the defendant's EEOC office alleging age
and gender discrimination. Compl. ¶ 9. The plaintiff filed a
formal discrimination complaint in January 2000. Pl.'s Opp'n at
6. The plaintiff alleges that after he initiated the EEOC charge,
Martinson "unjustifiably" downgraded the plaintiff's performance
evaluations from "outstanding" in 1999 to "commendable" in the
years 2000, 2001, 2002, and 2003. Id. at 2. The plaintiff
further asserts that the allegedly retaliatory performance
evaluations "have negatively impacted his salary increases, his
bonus entitlement, and his [promotion potential]." Compl. ¶ 11.
B. Procedural Background
On July 9, 2004, the plaintiff received a notice of final
agency action, stating that an EEOC administrative judge
dismissed the plaintiff's charge regarding his non-promotion to
the FR-29 managerial position, concluding that it was
time-barred. Pl.'s Opp'n at 9; Def.'s Mot., Ex. 9A at 1. The
plaintiff filed his complaint in this court on October 4, 2004.
The plaintiff's complaint alleges that the lowered performance
ratings constitute unlawful retaliation, in violation of Tile
VII, 42 U.S.C. § 2000e-1 et seq., and the Age Discrimination in
Employment Act, 29 U.S.C. § 633a et seq. ("ADEA"). Compl. ¶ 1.
The defendant moves for: (1) dismissal of the complaint on the
basis that the plaintiff did not exhaust his administrative
remedies, and (2) summary judgment on the plaintiff's claims of
retaliation. Def.'s Mot. at 1. The court now turns to these
motions. III. ANALYSIS
A. The Court Denies the Defendant's Motion to Dismiss
The defendant moves to dismiss the plaintiff's allegations that
the 2000 and 2001 performance evaluations were retaliatory on the
basis that the plaintiff did not exhaust his administrative
remedies. Def.'s Mot. at 1. The plaintiff opposes the defendant's
motion, arguing that he was not required to exhaust his
administrative remedies with regards to the 2000 and 2001
performance evaluations. Pl.'s Opp'n at 12. Because the plaintiff
is not required to exhaust administrative remedies to file a
retaliation claim in court, the court denies the defendant's
motion to dismiss the allegations concerning the 2000 and 2001
(1) Legal Standard for Exhaustion of Administrative Remedies
In actions brought under Title VII and the ADEA, a court has
authority over only those claims that are (1) contained in the
plaintiff's administrative complaint or claims "like or
reasonably related to" those claims in the administrative
complaint and (2) claims for which the plaintiff exhausted
administrative remedies. Park v. Howard Univ., 71 F.3d 904, 907
(D.C. Cir. 1995); Caldwell v. Serv. Master Corp.,
966 F. Supp. 33, 49 (D.D.C. 1997). It is the defendant's burden to prove by a
preponderance of the evidence that the plaintiff failed to
exhaust administrative remedies. Brown v. Marsh, 777 F.2d 8, 13
(D.C. Cir. 1985) (stating that "because untimely exhaustion of
administrative remedies is an affirmative defense, the defendant
bears the burden of pleading and proving it"). Meager, conclusory
allegations that the plaintiff failed to exhaust his
administrative remedies will not satisfy the defendant's burden.
Id. at 12 (noting that a mere assertion of failure to exhaust
administrative remedies without more is "clearly inadequate under prevailing regulations to establish a failure to
exhaust administrative remedies").
Dismissal results when a plaintiff fails to exhaust
administrative remedies. Rann v. Chao, 346 F.3d 192, 194-95
(D.C. Cir. 2003) (affirming the trial court's dismissal of the
plaintiff's ADEA claim for failure to exhaust administrative
remedies); Gillet v. King, 931 F. Supp. 9, 12-13 (D.D.C. 1996)
(dismissing the plaintiff's Title VII claim because he failed to
exhaust his administrative remedies).
(2) The Plaintiff is not Required to Exhaust Administrative
Remedies to File a Retaliation Claim in Court
The defendant argues that the plaintiff's claim that the 2000
and 2001 evaluations were retaliatory should be dismissed because
the plaintiff did not timely pursue his administrative remedies.
Def.'s Mot. at 8. Specifically, the defendant argues that the
plaintiff should have amended his November 1999 EEOC charge to
include subsequent retaliatory acts. Id. at 9. The defendant
recognizes that the applicable regulation,
12 C.F.R. § 268.105(d), does not explicitly require that a motion to amend an
EEOC charge be filed within 45 days of the allegedly
discriminatory event. Id. at 8. The defendant nevertheless
urges the court to read in such a requirement. Id. at 9.
The court, however, declines to read in such a requirement in
the instant case because a plaintiff need not exhaust
administrative remedies to file a retaliation claim in court.
Turner v. Dist. of Columbia, 383 F. Supp. 2d 157, 178 (D.D.C.
2005). "The proposition that exhaustion is unnecessary for
retaliation claims stems, in part, however, from the fear that
filing a separate charge will result in more retaliation, and
that a retaliation claim is necessarily related to the underlying charge." Id., 383 F. Supp. 2d at 178 n. 11.
Accordingly, the court denies the defendant's motion to dismiss
the plaintiff's claims that the 2000 and 2001 performance
evaluations were retaliatory.
B. The Court Grants in Part and Denies in Part the Defendant's
Motion for Summary Judgment
The defendant further moves for summary judgment as to the
plaintiff's claims that the 2000, 2001, 2002, and 2003
performance evaluations were retaliatory. Def.'s Mot. at 11. For
the reasons that follow, the court denies the defendant's motion
with respect to the 2000 performance evaluations, and grants the
defendant's motion with respect to the 2001, 2002, and 2003
(1) Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).
To determine which facts are "material," a court must look to the
substantive law on which each claim rests. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one
whose resolution could establish an element of a claim or defense
and, therefore, affect the outcome of the action. Celotex,
477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw
all justifiable inferences in the nonmoving party's favor and
accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must
establish more than "the mere existence of a scintilla of
evidence" in support of its position. Id. at 252. To prevail on
a motion for summary judgment, the moving party must show that
the nonmoving party "fail[ed] to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial." Celotex, 477 U.S. at 322. By pointing to the absence of
evidence proffered by the nonmoving party, a moving party may
succeed on summary judgment. Id.
In addition, the nonmoving party may not rely solely on
allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150,
154 (D.C. Cir. 1993). Rather, the nonmoving party must present
specific facts that would enable a reasonable jury to find in its
favor. Greene, 164 F.3d at 675. If the evidence "is merely
colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 477 U.S. at 249-50 (internal
Finally, the D.C. Circuit has directed that because it is
difficult for a plaintiff to establish proof of discrimination,
the court should view summary judgment motions in such cases with
special caution. See Aka v. Wash. Hosp. Ctr., 116 F.3d 876,
879-80 (D.C. Cir. 1997), overturned on other grounds,
156 F.3d 1284 (D.C. Cir. 1998) (en banc); see also Johnson v. Digital
Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
(2) Legal Standard for a Retaliation Claim
To prevail on a claim of retaliation, a plaintiff must follow a
three-part burden-shifting analysis generally known as the
McDonnell Douglas framework. Morgan v. Fed. Home Loan Mortgage
Corp., 328 F.3d 647, 651 (D.C. Cir. 2003) (applying the
McDonnell Douglas framework to a Title VII retaliation claim); Duncan v. Wash.
Metro. Area Transit Auth., 214 F.R.D. 43, 49-50 & n. 8 (D.D.C.
2003) (applying the McDonnell Douglas framework to a
Rehabilitation Act retaliation claim). The Supreme Court
explained the framework as follows:
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in
proving the prima facie case, the burden shifts to
the defendant "to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection". . . . Third, should the defendant carry
this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a
pretext for discrimination. . . . The ultimate burden
of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff
remains at all times with the plaintiff.
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248
(1981) (internal citations omitted) (quoting McDonnell Douglas
v. Green, 411 U.S. 792
, 802 (1973)).
To establish a prima facie case of retaliation, a plaintiff
must show that (1) he engaged in a statutorily protected
activity, (2) the employer took an adverse personnel action, and
(3) there existed a causal connection between the two. Id. The
plaintiff's burden is not great: the plaintiff "merely needs to
establish facts adequate to permit an inference of retaliatory
motive." Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001).
With regard to the first prong of the plaintiff's prima facie
case of retaliation, statutorily protected activities include the
filing of EEO complaints. Forkkio v. Powell, 306 F.3d 1127,
1131-32 (D.C. Cir. 2002). As for the second prong, "to establish
an adverse personnel action in the absence of diminution of 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 Brown v. Brody, 199 F.3d 446,
457 (D.C. Cir. 1999)). Minor changes in work-related duties or
opportunities do not qualify as actionable injuries unless accompanied by adverse changes in the terms,
conditions, or privileges of employment. Id. at 1135. Likewise,
"[m]ere inconveniences and alteration of job responsibilities
will not rise to the level of adverse action." Id. (internal
citations omitted). Finally, under the third prong, the plaintiff
may establish a causal connection "by showing that the employer
had knowledge of the employee's protected activity, and that the
adverse personnel action took place shortly after that activity."
Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (quoting
Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985)). To
qualify as a causal connection, however, the temporal proximity
between the employer's knowledge of the protected activity and
the adverse personnel action must be "very close." Clark County
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (noting that a
three- or four-month period between an adverse action and
protected activity is insufficient to show a causal connection,
and that a 20-month period suggests "no causality at all").
If the plaintiff establishes a prima facie case, a presumption
then arises that the employer unlawfully discriminated against
the employee. Burdine, 450 U.S. at 254, 101 S.Ct. 1089. To
rebut this presumption, the employer must articulate a
legitimate, non-discriminatory reason for its action. Id. The
employer "need not persuade the court that it was actually
motivated by the proffered reasons." Id. Rather, "[t]he
defendant must clearly set forth, through the introduction of
admissible evidence, reasons for its actions which, if believed
by the trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action." St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993).
If the employer successfully presents a legitimate,
non-discriminatory reason for its actions, "the McDonnell
Douglas framework with its presumptions and burdens
disappears, and the sole remaining issue is discrimination vel non."
Lathram, 336 F.3d at 1088 (internal citations omitted). At this
point, to survive summary judgment, the plaintiff "must show that
a reasonable jury could conclude from all of the evidence that
the adverse employment decision was made for a discriminatory
reason." Id. (citing Aka, 156 F.3d at 1290). The court must
consider whether the jury could infer discrimination from (1) the
plaintiff's prima facie case, (2) any evidence the plaintiff
presents to attack the employer's proffered explanation, and (3)
any further evidence of discrimination that may be available to
the plaintiff. Waterhouse v. Dist. of Columbia, 298 F.3d 989,
992-93 (D.C. Cir. 2002) (quoting Aka, 156 F.3d at 1289). The
plaintiff need not present evidence in each of these categories
in order to avoid summary judgment. Aka, 156 F.3d at 1289.
Rather, the court should assess the plaintiff's challenge to the
employer's explanation in light of the total circumstances of the
case. Id. at 1291.
(3) The Plaintiff Established a Causal Connection Between the
2000 Performance Evaluation and his Protected Activity
The plaintiff's November 2000 review rated his performance as
"commendable," the third on a scale of five possible ratings.
Pl.'s Opp'n at 7; Def.'s Mot. at 3. The November 2000 performance
evaluation came five weeks after the plaintiff's attorney
requested a hearing from an administrative judge at the EEOC.
Pl.'s Opp'n at 7. According to the defendant, the plaintiff's
allegation that the 2000 performance appraisal was retaliatory
should be dismissed because the plaintiff cannot prove a prima
facie case of retaliation. Def.'s Mot. at 11. Specifically, the
defendant argues that the plaintiff cannot show a causal
connection between the plaintiff's protected activity and the allegedly retaliatory
Id. The defendant bases its argument on the
time that elapsed between the plaintiff's protected activity and
the plaintiff's performance review. Id. at 12. To establish
causation based on the temporal proximity*fn2
protected activity and an adverse employment action, the case law
holds that the temporal proximity must be "very close."
Breeden, 532 U.S. at 273 (citing with approval cases holding
that a three-month and a four-month period is insufficient to
establish the necessary temporal proximity).
The plaintiff's September 2000 request for a hearing
constitutes a protected activity. Singletary v. Dist. of
Columbia, 351 F.3d 519, 524-25 (D.C. Cir. 2003) (holding that an
attorney's letter inquiring about the status of an appeal from a
decision dismissing a discrimination charge constituted protected
activity). Because the plaintiff received his November 2000
evaluation five weeks after his protected activity, the court
determines that the plaintiff established the causal link
necessary for a prima facie case of retaliation. Goos v. Nat'l
Ass'n of Realtors, 715 F. Supp. 2, 3-4 (D.D.C. 1989) (holding
that the plaintiff has established temporal proximity when the
plaintiff engaged in protected activity on June 23, 1988 and the
defendant terminated the plaintiff on August 1, 1988). Because the plaintiff established a prima facie case that the
2000 performance appraisal was retaliatory, "the burden now
shifts to the employer to articulate a legitimate,
non-discriminatory reason" for its action. Sullivan-Obst v.
Powell, 300 F. Supp. 2d 85, 95 (D.D.C. 2004). The defendant
explains that the plaintiff's 2000 performance rating was
"commendable," rather than "outstanding," because "in some
instances, plaintiff's assignments required additional work by
managers or other analysts, and in other instances, plaintiff did
not complete assignments." Def.'s Mot. at 14. The court
accordingly concludes that the defendant met its burden of
articulating a legitimate reason for the 2000 performance
After the defendant employer successfully presents a
legitimate, non-discriminatory reason for its actions, the
plaintiff may survive summary judgment only by showing "that a
reasonable jury could conclude from all of the evidence that an
adverse employment decision was made for a discriminatory
reason." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003)
(citing Aka, 156 F.3d at 1290). In deciding whether a
reasonable jury could conclude that the plaintiff's 2000
performance evaluation was discriminatory, the court considers
whether the jury could infer discrimination from the plaintiff's
prima facie case. Sullivan-Obst, 300 F. Supp. 2d at 93 (citing
Waterhouse v. Dist. of Columbia, 298 F.3d 989, 992-93 (D.C.
Cir. 2002)). The court also looks to evidence to attack the
defendant's proffered explanation, and to any other evidence of
discrimination. Id. Significantly, "[t]he plaintiff need not
present evidence in each of these categories in order to avoid
summary judgment." Id.
The plaintiff in this case has offered evidence from which a
reasonable jury could conclude that the defendant's criticism in
the 2000 performance appraisal is not based on his actual
performance. For example, the plaintiff states that one of his
supervisors said that he was "old school." Pl.'s Opp'n at 25. The plaintiff further states
that he was never given some of the assignments he allegedly
failed to complete. Id. at 29. He also states that he and his
supervisor agreed that he need not complete a particular
assignment. Id. at 30. Drawing all justifiable inferences in
the plaintiff's favor, the plaintiff implies that the defendant's
proffered legitimate reason for lowering his 2000 performance
rating is untruthful. The plaintiff, therefore, has presented a
legitimate challenge to the defendant's proffered explanation.
Fischbach v. D.C. Dep't of Corrections, 86 F.3d 1180, 1183
(D.C. Cir. 1996) (citing a Seventh Circuit case concluding that a
plaintiff wishing to rebut the employer defendant's proffered
legitimate reason for the adverse action must show "that the
explanation given is a phony reason"); see also George v.
Leavitt, 407 F.3d 405, 414 (D.C. Cir. 2005) (holding that a
reasonable jury could find pretext for a termination where the
plaintiff stated that her work was satisfactory and there was no
indication that the plaintiff's statement was "either incredible
or fanciful"). The court therefore denies the defendant's motion
for summary judgment on the claim related to the 2000 performance
(4) The Plaintiff Did not Establish a Causal Connection Between
the 2001 Performance Evaluation and his Protected Activity
The defendant argues that the plaintiff has not made out a
prima facie case that his 2001 performance evaluation was
retaliatory because the plaintiff cannot establish that the 2001
"commendable" rating was causally related to his protected
activity. Def.'s Mot. at 12. The plaintiff's attorney contacted
the EEOC in July 2001 to determine the status of the plaintiff's
request for a hearing. Pl.'s Opp'n at 8. The EEOC issued an
acknowledgment of the plaintiff's hearing request in October
2001. Id. In that same month, the plaintiff received the
allegedly retaliatory evaluation. Id. Consequently, the plaintiff argues
that he has established sufficient temporal proximity between the
alleged retaliation and the protected activity to fulfill the
causation prong of the prima facie case of retaliation. Id.
The EEOC's acknowledgment of the plaintiff's request for a
hearing, however, is not a protected activity. Breeden.,
532 U.S. at 273 (reasoning that the EEOC's issuance of a right-to-sue
letter is not a protected activity because the employee takes no
part in it). By the plaintiff's own version of events,
approximately three to four months elapsed between his attorney's
inquiry and the allegedly retaliatory evaluation. Pl.'s Opp'n at
19. This time gap is too large for the plaintiff to establish the
temporal proximity required to show that the allegedly
retaliatory action is causally connected to his protected
activity. Id. (citing cases holding that a three or four month
gap between the plaintiff's protected activity and the
defendant's adverse action was insufficient to establish a prima
facie case of retaliation); see also Sullivan-Obst,
300 F. Supp. 2d at 94 (holding that the more than three month gap
between the plaintiff's EEOC complaint and the allegedly adverse
action was insufficient to show causation).
(5) The Plaintiff Did not Establish a Causal Connection Between
the 2002 and 2003 Performance Evaluations and his Protected
The plaintiff's October 2002 and October 2003 performance
evaluations, like the 2001 and 2002 performance evaluations, also
rated his work performance as "commendable." Pl.'s Opp'n at 2.
Except for a June 2002 motion to amend his EEOC charge, id. at
8, the plaintiff does not claim to have engaged in any protected
activity prior to receiving the allegedly retaliatory performance
evaluations. Accordingly, the court holds that the plaintiff has
not shown a sufficient temporal proximity between his EEOC
activity and the 2002 and 2003 evaluations. IV. CONCLUSION
For the foregoing reasons, the court grants in part and denies
in part the defendant's motion to dismiss and for summary
judgment. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued this 13th day of
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