The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Frank Peterson sued defendant Alan M. Hantman in his official capacity as Architect of the Capitol ("AOC") for violations of Title VII of the Civil Rights Acts of 1964, as applied to the Office of the AOC by Title IV of the Congressional Accountability Act of 1995, alleging that he was not promoted because of racial discrimination and retaliation and that he was subjected to a hostile work environment. The defendant denies Peterson's allegations and has moved for summary judgment. Summary judgment will be granted for the defendant on all three claims because Peterson has not rebutted the defendant's legitimate, non-discriminatory reason for not promoting him; he has failed to demonstrate a prima facie case of retaliation; and there is no genuine issue of material fact with respect to the hostile work environment claim and the defendant is entitled to judgment as a matter of law.
Peterson, a 44-year-old black man, worked for the AOC from 1981 through 1986 and again beginning in 1989. When he returned in 1989, he worked as a laborer at the WG-4 level. In 1995, Peterson filed an equal employment opportunity complaint alleging racial discrimination. As part of the settlement of his complaint, Peterson was transferred to an air conditioning position in another building at the WG-4, step 5, level. Peterson alleges that other similarly-qualified employees were paid at the WG-5 or the WG-8 level. He claims that he was denied a promotion to the WG-5 level in 1999.
Sometime prior to October 2001, Peterson complained to his supervisor's supervisor, Gregory Simmons, about his lack of job advancement. Then, in October 2001, Peterson was promoted to the WG-5 level, his current position. In this position, he is a laborer whose job is to assist more senior laborers and mechanics in various tasks such as plumbing maintenance, electrical maintenance, installation and repair of air-conditioning equipment, and troubleshooting of general malfunctions with the heating/cooling system in the Senate office buildings. As a WG-5, Peterson is also assigned simple unsupervised tasks such as janitorial duties, manual labor, and clean-up of work sites. Peterson works with a number of other people who are either at his same WG-5 level, at a higher level, or are supervisors.
Those who worked with Peterson in the years leading up to his application for the WG-8 position in November 2001 include Myron Briscoe, a mechanic at the WG-10 level; Mark Weeks, a mechanic at the WG-10 level; Lonnie Ruffin, a laborer at the WG-8 level; and David Whitman, a laborer at the WG-8 level. Current or former supervisors include Kevin Richmond, assistant supervisor on the night shift; Ronald Marcey, also assistant supervisor on the night shift; Robert Davis, supervisor on the day shift; and Michael Parmer, assistant supervisor in the AOC.
In November 2001, a month after being promoted to the WG-5 position, Peterson applied for a vacant position at the WG-8 level. He was not selected. In January 2002, Whitman, a white employee, was selected for the position. Peterson maintains that he did not know until March 2002 that he had not been selected for the position. Peterson also states that during the year 2002, an employee he declined to identify used the term "redneck" multiple times in his presence.
Peterson alleges that his supervisors, and Davis in particular, have denied him a promotion because of racial animus and/or retaliation, have withheld training and other advancement opportunities from him, and have permitted racially derogatory comments to be used, creating a hostile work environment. Peterson argues that his training and his work history qualified him for the WG-8 position, but that Davis instead chose Whitman on grounds of race and in retaliation for Peterson complaining to Davis' supervisor, Simmons, about Peterson's lack of job advancement. Peterson's amended complaint states claims of racial discrimination, retaliation, and hostile work environment.*fn1 The defendant has moved for summary judgment.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). All of the evidence in the record is assessed in evaluating a motion for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court "must view the evidence in the light most favorable to [the non-moving party], draw all reasonable inferences in [his] favor, and eschew making credibility determinations or weighing the evidence." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir.) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). However, it is clear that the non-moving party is entitled to only reasonable inferences in his favor. See Holcomb v. Powell, 433 F.3d 889, 901 (D.C. Cir. 2006). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists." Mitchell v. DCX, Inc., 274 F. Supp. 2d 33, 39 (D.D.C. 2003). A genuine dispute of material fact exists "only 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Morgan v. Federal Home Loan Mortgage Corp., 328 F.3d 647, 650 (D.C. Cir. 2003) (quoting Liberty Lobby, 477 U.S. at 258).
I. RACIAL DISCRIMINATION CLAIM
A. Timeliness of Peterson's claim
Defendant argues that Peterson's claim is time-barred. An employee of the AOC who believes that he has been subjected to race discrimination or retaliation must request counseling from the Office of Compliance within 180 days after the alleged wrongful act. See 2 U.S.C. § 1402 (2000). The issue of whether Peterson's claim is timely has been addressed before, but not determined conclusively. (Mem. Op., June 30, 2003 at 5.) It remains unclear when Peterson knew or reasonably should have known that he had not been selected for the WG-8 position. (See id.; Pl.'s Opp'n to Def.'s Mot. Summ. J. ("Opp'n") at 19.) A white employee, Whitman, was promoted effective January 13, 2002 to the WG-8 position for which Peterson had applied. In May of 2003, Peterson declared "Mr. Davis told me that he would not approve my selection for the WG-8 position and that he would not approve any additional training for me. I believe that this was still in March 2002." (Opp'n Ex. 10, Decl. of Frank Peterson ("Peterson Decl.") at 3, May 13, 2003.) In his later deposition in March of 2004, Peterson could say only that he learned of Whitman's promotion sometime after the beginning of 2002. He could not name the particular month. (Opp'n Ex. 2, Dep. of Frank Peterson ("Peterson Dep. Day 2") at 47-48, Mar. 30, 2004.) Defendant argues that Peterson was informed of his non-selection during the week of January 13, 2002. (Def.'s Mot. Summ. J. ("Mot.") at 12-14; Mot. Ex. 4, Decl. of Robert Davis ("Davis Decl.") at 1-2, Mar. 7, 2005; Mot. Ex. 5, Decl. of David Whitman ("Whitman Decl.") at 1-2, Jan. 18, 2005.)
Viewing the evidence in the light most favorable to Peterson at this summary judgment stage, the latest Peterson would have been unaware of his non-selection was March of 2002. That would not render Peterson's claim time-barred, as he sought the required counseling on August 12, 2002, within the six-month time frame allowed.
B. Prima Facie Case of Discrimination in Promotion
Because Peterson presents no direct evidence that the defendant refused to promote him to the WG-8 position on account of his race, his claim will be analyzed under the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Holcomb, 433 F.3d at 895; Lathram, 336 F.3d at 1088; Morgan, 328 F.3d at 650. Under this framework, Peterson must first establish a prima facie case of discrimination by showing that: "(1) [he] is a member of a protected class; (2) [he] applied for and was qualified for an available position; (3) despite [his] qualifications, [he] was rejected; and (4) either someone filled the position or it remained vacant and the employer continued to seek applicants." Holcomb, 433 F.3d at 895. In making a prima facie showing of his qualifications, "a plaintiff need not show that [he] is as qualified as the successful applicant, only that [he] is qualified 'relative to the entire pool from which applications are welcome.'" Carter v. George Washington Univ., 387 F.3d 872, 881 (D.C. Cir. 2004) (quoting Mitchell v. Baldridge, 759 F.2d 80, 85 (D.C. Cir. 1985)). However, "Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates." Fischbach v. D.C. Dep't of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996). Courts have "consistently declined to serve as a super- personnel department that reexamines an entity's business decision." Holcomb, 433 F.3d at 897 (internal quotation marks and citation omitted).
"If the plaintiff establishes his prima facie case, the defendant then bears the burden of producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Morgan, 328 F.3d at 651 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)) (internal quotation marks omitted). "If the defendant produces such evidence, the McDonnell Douglas framework -- with its presumptions and burdens -- disappears, and the sole remaining issue is discrimination vel non." Morgan, 328 F.3d at 651 (citing Reeves, 530 U.S. at 142-43) (internal quotation marks omitted). While this framework shifts evidentiary burdens between the parties, the "ultimate burden of persuading the trier of ...