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Graham v. Holder

September 29, 2009


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Pro se Plaintiff Gilbert Graham, a 58-year-old African-American retired Special Agent for the Federal Bureau of Investigation ("FBI"), filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., against the Attorney General and other federal officers and agencies, alleging that his former federal employer subjected him to a hostile work environment in retaliation for his participation in protected activities. Defendants move for summary judgment. Because Graham neither establishes that the defendants subjected him to a retaliatory hostile work environment nor rebuts as pretextual the defendants' neutral reasons for their challenged actions, the defendants' motion for summary judgment will be granted and Graham's cross-motion for summary judgment will be denied at moot.


Graham worked as a Special Agent for the FBI in its Washington Field Office ("WFO") for 25 years. Graham alleges that the defendants subjected him to a hostile work environment because of his participation in protected activities. (Pl.'s Am. Compl. ("Am. Compl.") ¶ 1.) Graham filed against the FBI an EEO complaint in 1985 and a civil action under Title VII in 1992, and he actively participated in a class action against the FBI that was filed in 1993. (Id. at ¶¶ 24, 92; Pl.'s Stmt. of Mat. Facts ("Pl.'s Stmt.") ¶¶ 20, 25-26.) In November 2000, Graham filed an EEO complaint about a 1999 investigation by the Intelligence Oversight Board ("IOB"). (Pl.'s Stmt. ¶ 29.) In March 2002, the defendants notified Graham that he would be suspended for three days without pay as a result of the IOB investigation findings. (Am. Compl. ¶ 66; Defs.' Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") at 2-3.) Graham later filed a second EEO complaint alleging discrimination based on race, age, and retaliation, and he appealed his proposed punishment. (Am. Compl. ¶¶ 12, 67; Pl.'s Stmt. ¶ 30.) In addition, Graham complained to the Justice Department's Office of the Inspector General about what he viewed as mismanagement and abuse of authority reflected in his workload assignment, the conduct of the IOB investigation, and reported unauthorized use of electronic surveillance relating to a public corruption investigation. (Am. Compl. ¶ 72; Pl.'s Stmt. ¶ 31.) Graham's proposed three-day suspension was eventually reduced to a letter of censure. (Am. Compl. ¶ 69.)

In June 2002, Graham filed a civil action in this court regarding the agency's handling of the IOB investigation and decision to censure him. See Graham v. Gonzales, Civil Action No. 03-1951 (RWR), 2005 WL 3276180, at *4 (D.D.C. September 30, 2005). In August 2002, Graham asked to take a "reasonable" amount of administrative leave to address matters related to his 2002 EEO complaint. (Am. Compl. ¶ 71; Defs.' Stmt. of Mat. Facts ("Def.'s Stmt.") ¶ 8.) Graham's supervisor sought guidance from the Assistant Special Agent in Charge ("ASAC") about whether to approve the request and sign Graham's time and attendance register, because Graham's supervisor believed that his oversight could be a conflict of interest. (Defs.' Stmt. ¶ 9; Defs.' Mem. Ex. 1 ("Fogle Decl.") ¶¶ 5-6.) The ASAC contacted the Office of EEO Affairs to ask how to proceed with Graham's request to take administrative leave. The Office of EEO Affairs informed the ASAC that it did not authorize requests for administrative leave, and that Graham's request should be forwarded to the Employment Law Unit. (Defs.' Stmt. ¶ 12; Defs.' Mem. Ex. 3 ("Trent Decl.") ¶¶ 4-7.) Approximately three weeks after Graham made his request for administrative leave, his request was approved by a different ASAC. (See Defs.' Mem. Ex. 4 ("Bolcar Decl.") ¶¶ 4-6.) Graham alleges that his request was never acted upon, and that his request subjected him to "unwarranted administrative scrutiny." (Am. Compl. ¶ 71.)

In November 2002, Graham filed another EEO complaint, alleging mental harassment and retaliatory hostile working environment. (Pl.'s Stmt. ¶ 33.) Shortly thereafter, Graham's 2002 civil action was dismissed with prejudice, because the claims he raised were not viable. See Graham v. Ashcroft, Civil Action No. 02-1231 (ESH), 2002 WL 32511002, at *5-6 (D.D.C. November 20, 2002).

In January 2003, the defendants transferred Graham to another squad and assigned to him a bureau vehicle that Graham claims had "an inoperable door locking mechanism, an inoperable heating and air conditioning system, a dead battery, very high mileage and delinquent parking tickets." (Am. Compl. ¶ 71; Pl.'s Stmt. ¶ 96.) According to Graham, in February 2003, the defendants advised him that he could not use previously unclassified letters in appealing the dismissal of his 2002 federal action, and threatened to prosecute him if he disclosed any classified information. (Am. Compl. ¶ 71; Pl.'s Stmt. ¶ 98.) In response, Graham asked the Justice Department's Office of Professional Responsibility ("OPR") to investigate whether the threats were made to impede an official proceeding. (Am. Compl. ¶ 74.) In July 2003, Graham met with OPR staff to review his allegations and other complaints - - a meeting which, according to him, "quickly turned into a hostile interrogation and threats of administrative action [that could be] taken against the plaintiff." (Id. ¶ 76.) In September 2003, Graham retired from the FBI and filed this action in which he alleges that he was subjected to a retaliatory hostile work environment when the defendants failed to authorize his request for reasonable administrative leave to address matters related to his EEO complaint, subjected him to strict scrutiny in response to his request for administrative leave, transferred him to another squad and assigned him a mechanically deficient vehicle, advised him that he could not use certain classified information in his pending litigation, and threatened him with criminal prosecution for any unauthorized disclosure of classified information. (Id. ¶¶ 27, 71; Defs.' Stmt. ¶ 2.)*fn1

The defendants now move for summary judgment under Federal Rule of Civil Procedure 56, arguing that the five bases for Graham's assertion of a retaliatory hostile work environment could not as a matter of law constitute a hostile work environment:

(a) [Graham] was not afforded "reasonable leave" to work on his EEO complaint; (b) his request for leave was subjected to scrutiny; (c) his reputation was tarnished when he was given a mechanically deficient FBI car; (d) he was told by FBI counsel that he could not publish a document that contained classified information . . . ; and (e) he was threatened that he could be prosecuted if he published the classified document. (Defs.' Mem. at 7; see Am. Compl. ¶ 71.) See also Graham v. Mukasey, 608 F. Supp. 2d 50, 51 (D.D.C. 2009). Graham filed a cross-motion for summary judgment, but did not file an opposition to the defendants' motion for summary judgment.


"Summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citing Fed. R. Civ. P. 56 (c) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A genuine issue of fact exists where the evidence is "such that a reasonable jury could return a verdict for the nonmoving party," after "resolving ambiguities and drawing all factual inferences in favor of the nonmoving party." Moore, 571 F.3d at 66 (quoting Anderson, 477 U.S. at 255). "The nonmoving party cannot defeat summary judgment by 'simply show[ing] that there is some metaphysical doubt as to the material facts.'" Moore, 571 F.3d at 66 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Not all alleged factual disputes represent genuine issues of material fact which may only be resolved by a jury. Material facts are those that might affect the outcome of the suit under governing law[.]" Nails v. England, 311 F. Supp. 2d 116, 121 (D.D.C. 2004) (internal quotations omitted).

"In deciding whether there is a genuine issue of material fact, the court must assume the truth of all statements proffered by the non-movant except for conclusory allegations lacking any factual basis in the record." Hussain v. Nicholson, 435 F.3d 359, 365 (D.C. Cir. 2006) (quoting Dist. Intown Prop. L.P. v. Dist. of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999)). To successfully oppose a motion for summary judgment under Rule 56(c), a non-moving party must present sufficient admissible evidence for a reasonable trier of fact to find for the nonmoving party. Juergens v. Urban Title Servs., 533 F. Supp. 2d 64, 73 (D.D.C. 2008) (citing Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987)). Briefs containing mere allegations or merely denying the movant's pleading are not enough to prevent summary judgment; instead, a non-movant must go beyond the pleadings to proffer specific facts rebutting the movant's assertions. See Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007); Burke v. Gould, 286 F.3d 513, 517-18 (D.C. Cir. 2002). "Although the burden on the nonmoving party is not great, it is still required to show specific facts, as opposed to general allegations, that present a genuine issue worthy of trial."

Palestine Info. Office v. Shultz, 853 F.2d 932, 944 (D.C. Cir. 1988).

To establish a successful claim of retaliation, a plaintiff must initially show "that (1) he engaged in a statutorily protected activity, (2) a reasonable employee would have found the challenged action materially adverse, and (3) there existed a causal connection between the protected activity and the materially adverse action." Baloch v. Norton, 517 F. Supp. 2d 345, 353-54 (D.D.C. 2007) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 58 (2006)). "Statutorily protected activities include the filing of EEOC complaints and the initiation of litigation to vindicate ...

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