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Mbulu v. Bureau of National Affairs

February 28, 2006


The opinion of the court was delivered by: John D. Bates United States District Judge


After working for two and a half years without obtaining a promotion, plaintiff Daniel N. Mbulu quit his job as a legal editor and commenced this pro se action against his employer, the Bureau of National Affairs, Inc. ("BNA" or "defendant"), alleging that he was subjected to racially discriminatory employment practices, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the District of Columbia Human Rights Act, D.C. Code § 2-1401.01 et seq. ("DCHRA"). Following the completion of discovery, the parties filed motions for summary judgment along with supporting memoranda and exhibits. Upon consideration of the cross-motions and the entire record herein, and for the reasons that follow, the Court concludes that there are no material factual disputes, that all questions of law are ripe for judicial resolution, and that plaintiff either is unable to show that BNA's actions caused him any legally relevant detriment or has failed to produce evidence that would support a determination that race was a factor in the challenged conduct or that otherwise would rebut BNA's race-neutral explanations for its actions. Accordingly, the Court will grant defendant's motion for summary judgment and order judgment for defendant as a matter of law.


BNA, a private publisher of law-related newsletters, information services, and reference products, employed plaintiff, an African-American, as a "Tax Law Editor I" in the U.S. Income Group of BNA's Tax Management division from June 18, 2001, through November 27, 2003, when plaintiff tendered his resignation. Pl.'s Stmt. at 1-3; Def.'s Stmt. at 1-3. Plaintiff, who holds a juris doctor degree from American University's Washington College of Law and is a Certified Public Accountant ("C.P.A."), previously had worked for BNA on a temporary full-time basis during a summer break from law school in 1999. Pl.'s Stmt. at 1; Pl.'s Ex. J (plaintiff's résumé). At the time of plaintiff's hiring in 2001, BNA set his compensation at the third step of the Grade 8 or "G8" pay range, which amounted to a weekly salary of $908.62. Def.'s Stmt. at 2; Def.'s Opp'n Ex. 5 (2002 Length-of-Service Review); Pl.'s Stmt. at 2.*fn2 His immediate supervisor was, at all times, Eric Rubin, a Caucasian who held the position of assistant managing editor for Tax Management. Pl.'s Stmt. at 2-3. Mr. Rubin supervised both the U.S. Income Group, which had six tax law editors (including plaintiff), and the Procedure Group, which had three tax law editors. Of the nine tax law editors under Mr. Rubin's supervision, two were African-American (plaintiff and Andre Mander). Pl.'s Stmt. at 2-3; Def.'s Stmt. at 2-3.

Plaintiff received two annual reviews during his time at BNA, both of which generally rated his performance as "satisfactory" (he received one rating of "above average" for "cooperation" in his 2003 review). Pl.'s Ex. H; Def.'s Opp'n Exs. 15 & 17. The memoranda from Mr. Rubin to plaintiff that accompanied the reviews contained mostly favorable comments, with a few suggestions for areas of improvement. Pl.'s Ex. H; Def.'s Opp'n Exs. 16 & 18. At the time of his resignation, plaintiff had received only non-merit pay increases -- which, according to plaintiff's own documentation amounted to an increase of $87.37 per week (about $4,543 in annualized pay) or nearly ten percent over the course of his two-plus years of employment with BNA*fn3 -- and his title and pay grade remained the same as when he started: Tax Law Editor I at a G8 level. Def.'s Stmt. at 5; Def.'s Opp'n Exs. 15 & 17. Defendant does not dispute that plaintiff expressed to his superiors an interest in obtaining a promotion to the position of Tax Law Editor II, which qualified for the higher G9 pay grade, or that defendant implicitly rejected that request for promotion as part of plaintiff's annual performance reviews. The parties further agree that a BNA employee who holds the title of Tax Law Editor I performs the same work, in all material respects, as an employee who holds the title of Tax Law Editor II or III, notwithstanding the variances in pay.

The parties also do not dispute that Mr. Rubin had frequent daily interactions with plaintiff regarding his work or that the two men had some conversations about workplace behaviors such as plaintiff's personal use of telecommunications and computer equipment for sending or receiving facsimiles and e-mail -- although the parties, naturally, characterize the relevant events in different terms (what plaintiff labels "harassment" and "surreptitious surveillance," Pl.'s Stmt. at 4-5, defendant describes as "aggressively uph[olding] BNA's policies," Def.'s Stmt. at 11). Nor do the parties disagree about the fact that Mr. Rubin required plaintiff to submit doctor's notes to validate two sick-leave absences in October 2003.

On September 3, 2004 -- approximately nine months after plaintiff resigned -- plaintiff initiated this pro se action, which alleges that BNA committed unlawful discrimination on the basis of race by failing to promote plaintiff and through other actions related to the supervision of plaintiff; he also alleges that BNA created a racially hostile work environment, in contravention of federal and D.C. anti-discrimination statutes. Both parties contend that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law.


Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed. R. Civ. P. 56(c)).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

Although the parties have filed cross-motions for summary judgment, that "does not automatically relieve the court from determining if a genuine issue of material fact exists." Cartwright v. Dist. of Columbia, 267 F.Supp. 2d 83, 85 (D.D.C. 2003) (citing Krug v. Santa Fe Pac. R.R. Co., 158 F.2d 317 (D.C. Cir. 1946)). "The rule governing cross-motions for summary judgment ... is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion." Sherwood v. Washington Post, 871 F.2d 1144, 1147 n.4 (D.C. Cir. 1989) (quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982)).


Plaintiff has packaged the alleged incidents of racially discriminatory treatment into four separate counts that essentially raise two distinct Title VII or DCHRA causes of action: disparate treatment and hostile work environment.*fn4 The Court will address each cause of action, in turn.

I. Disparate Treatment Based on Race

A. Legal Framework

Under Title VII, it is "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (2005). Where, as here, there is no direct evidence of unlawful discrimination, federal courts apply the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny.

Pursuant to McDonnell Douglas, the plaintiff, as an initial matter, has the burden of establishing a prima facie case of discrimination by a preponderance of the evidence. Id. at 802; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case of discrimination, a plaintiff must demonstrate that (1) he is a member of a protected class; (2) he suffered an adverse employment action;*fn5 and (3) the unfavorable action gives rise to an inference of discrimination. Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); Brody, 199 F.3d at 452.

Once 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 produces sufficient evidence of a nondiscriminatory justification, the burden shifts back to the plaintiff to show that the employer's stated reason was a pretext for discrimination or retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). The plaintiff "may attempt to establish that he was the victim of intentional discrimination 'by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting 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." Id. at 147. Thus, the trier of fact may also "consider the evidence establishing ...

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