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Kline v. Springer

March 18, 2009


The opinion of the court was delivered by: James Robertson United States District Judge


Pro se plaintiff Valerie Kline, a white female, sues the Director of the United States Office of Personnel Management, alleging race and sex discrimination and retaliation in her employment as an analyst in the Publications Management Group at OPM. On March 13, 2009, I granted the government's motion for summary judgment.*fn1 This memorandum explains that ruling, which was entered, to put it most succinctly, because most of the plaintiff's complaints are not materially adverse employment actions, and because, as to the rest, no reasonable juror could find that any of them were discriminatory or retaliatory.


Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if the evidence "is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), but the party opposing a motion for summary judgment must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal citations omitted). "[A] mere unsubstantiated allegation . . . creates no genuine issue of fact and will not withstand summary judgment." Ginger v. District of Columbia, 527 F.3d 1340 (D.C. Cir. 2008) (quoting, Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993).

A. Legal Standards

"Under Title VII, the ADEA, and the Rehabilitation Act, the two essential elements of a discrimination claim are that

(I) the plaintiff suffered an adverse employment action

(ii) because of the plaintiff's race, color, religion, sex, national origin, age, or disability." Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. 2008). "[T]ypical adverse actions in employment discrimination cases" are being "fired or denied a job or promotion . . . [or] suffer[ing a] reduction[] in salary or benefits," Baloch, 550 F.3d at 1199, although other acts may qualify, such as "withdrawing an employee's supervisory duties," Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003), or "reassignment with significantly different responsibilities," Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002).

"To prove retaliation, the plaintiff generally must establish that he or she suffered (I) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim." Baloch, 550 F.3d at 1198. "Adverse actions in the retaliation context encompass a broader sweep of actions than those in a pure discrimination claim . . . [and] are not limited to discriminatory actions that affect the terms and conditions of employment and may extend to harms that are not workplace-related or employment-related so long as a reasonable employee would have found the challenged action materially adverse," Id. at 1198 fn. 4 (internal citation omitted), "which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination," Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 66 (2006). Close temporal proximity to a plaintiff's EEOC activity can sometimes support an inference of retaliation, but only when "the employer knew that the plaintiff engaged in protected activity." Moses v. Howard University Hosp., 474 F.Supp.2d 117 (D.D.C. 2007) (citing Holcomb v. Powell, 433 F.3d 889 (D.C. Cir. 2006)).

Because "there is nothing inherently suspicious about an employer's decision to promote a minority applicant instead of a white applicant . . . or to fire a white employee . . . a majority-group plaintiff alleging Title VII discrimination . . . must show additional background circumstances that support the suspicion that the defendant is that unusual employer who discriminates against the majority." Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 851 (D.C. Cir. 2006) (internal citations and quotations omitted). "Two general categories of evidence constitute background circumstances . . . evidence indicating [that] the particular employer has some reason or inclination to discriminate invidiously against whites . . . [and] evidence indicating that there is something fishy about the facts of the case at hand that raises an inference of discrimination." Mastro, 447 F.3d at 851 (internal citation omitted). A panel of the Court of Appeals found "evidence [such] as political pressure to promote a particular minority because of his race, pressure to promote minorities in general, and proposed affirmative action plans" sufficient to satisfy the first category. Id. (internal citation omitted). "[E]vidence that a plaintiff was given little or no consideration for a promotion and that the supervisor never fully reviewed the qualifications of the minority promotee . . . [or] that a minority applicant was promoted over four objectively better-qualified white applicants in an unprecedented fashion" has been found sufficient to satisfy the second. Id. at 851-852 (internal citations omitted).

Because the defendant in this case has "asserted a legitimate, non-discriminatory reason for" all of the allegedly adverse acts, the required analysis proceeds directly to the question of whether the contested acts were material, and whether the plaintiff has "produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated [or retaliated] against the" plaintiff. Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).

B. The Plaintiff's Evidence Regarding "Background Circumstances"

The plaintiff first attempts to prove background circumstances of reverse discrimination by asserting that, at times relevant to the complaint, only three percent of employees at PMG (one of 32) were white women, as compared to comprising 17 percent of the population in the Washington Capital area, and 27.5 percent of the federal workforce. Compl. ΒΆ 2. She cites nothing but her complaint to support these figures, Pl. SMF at 3, but even if the numbers were properly supported with record evidence they would not be enough. Without additional ...

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