The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Plaintiff H. Alexander ("Alex") Manuel brings this action against the Postmaster General of the United States Postal Service ("Postal Service") in his official capacity, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (2006) ("Title VII"), Complaint ("Compl.") ¶¶ 1, 9-12, on the basis that the Postal Service, an agency of the United States government and his employer, engaged in discriminatory employment practices against him based on his race (African-American), id. ¶¶ 9-10, and national origin (Japanese), id., retaliated against him after he engaged in statutorily protected activity, id. ¶¶ 11-12, and constructively discharged him from his position, id. ¶ 9. This matter is currently before the Court on the defendant's Motion For Summary Judgment ("Def.'s Mot."), which the plaintiff opposes, Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n"). After carefully considering the parties' pleadings, the defendant's motion and the plaintiff's opposition, and all memoranda of law and exhibits submitted with these filings,*fn1 the Court concludes the defendant is entitled to summary judgment on all of the plaintiff's claims.
Viewing the evidence in the light most favorable to the plaintiff, the facts are as follows.
The plaintiff is a former employee of the Employment and Labor Law Section (the "ELL Section"), Law Department, of the Postal Service. Pl.'s Opp'n, Exhibit ("Ex.") 16 (Declaration of H. Alexander Manuel) ("Manuel Decl.") ¶ 6. The plaintiff, an African-American male of Japanese ancestry, Compl. ¶ 4, was an attorney with the Postal Service for five years, beginning in 2002 and ending with his resignation in March of 2007. Pl.'s Opp'n, Ex. 16 (Manuel Decl.) ¶¶ 1, 5. The plaintiff initially accepted a contract position with the Postal Service's Capital Metro field office in Washington, D.C., before being offered a career position at the ELL Section at the Postal Service's Headquarters. Id. ¶¶ 5-6. The ELL Section is headed by a Managing Counsel, who oversees its three units, each managed by a Chief Counsel. Def.'s Mem., Ex. E (ELL Section General Information). During the time period covered in this complaint, the plaintiff's first-line supervisor was Stephan Boardman, Chief Counsel of the Labor Relations unit, and his second-line supervisor was Eric Scharf, Managing Counsel of the ELL Section. Def.'s Stmt. ¶¶ 2-3.*fn2 As a member of the ELL Section, the plaintiff worked in the labor relations unit, representing the USPS in negotiations, arbitrations, and federal court litigation. Pl.'s Opp'n, Ex.1 (Deposition of Stephan Boardman) ("Boardman Dep.") at 80. Before commencing his employment at the Postal Service, the plaintiff worked as an attorney for over twenty years, practicing in both the public and private sectors. Pl.'s Opp'n, Ex. 16 (Manuel Decl.) ¶¶ 2-3, 5.
The incident precipitating the plaintiff's engagement in protected activity occurred in approximately early December, 2004.*fn3 At that time, the plaintiff was preparing for an arbitration hearing with labor relations Technical Assistant Marty Welles. Pl.'s Opp'n, Ex. 4 (Deposition of Herman A. Manuel) ("Manuel Dep.") at 6-7. The plaintiff and the other Postal Service attorneys assigned to work on the arbitration instructed Mr. Welles to deliver documents to a witness residing in Prince George's County, Maryland. Def.'s Mem. (Deposition of Courtney Wheeler) at 28. Welles refused to make the delivery, and when pressed for an explanation, purportedly stated, "I'm not going to go into that neighborhood with those people." Pl.'s Opp'n, Ex. 4 (Manuel Dep.) at 7.*fn4 Further, Mr. Welles commented that it would be more appropriate for the plaintiff to go to the neighborhood to make the delivery. Id. Feeling unpleasant about the remark and that it was "understood by everyone" to be inappropriate, id. at 11, he reported the incident to Mr. Boardman the following morning, Def.'s Stmt. ¶ 6. According to the plaintiff, he also told Mr. Boardman at that time about a prior incident in which Mr. Welles allegedly displayed "Black Sambo" cartoon images at a Postal Service slideshow presentation at an earlier year's conference.*fn5 Pl.'s Opp'n, Ex. 4 (Manuel Dep.) at 18-20. After reporting the incident, the plaintiff attended two meetings with Messrs. Boardman, Scharf, and Kevin Rachel, Mr. Welles' supervisor. Def.'s Stmt. ¶ 7. During the second meeting, the three supervisors "stated that Mr. Welles' statement was 'improper' and 'regrettable,' and asked [the] [p]laintiff how he wanted to proceed." Id. ¶ 8. The plaintiff responded "that it 'was not [his] purpose to bring a claim against anyone, or anything along those lines,'" but only to ensure "that Mr. Welles 'did his job . . . and that [a similar incident did not] happen again,'" id. (citations omitted). Thereafter, Mr. Welles was called into the meeting to apologize to the plaintiff, which he did, Def.'s Stmt. ¶ 9, the two shook hands, and the plaintiff "told [Mr. Welles that he] accepted his apology" and indicated that he did not intend to pursue further action against Welles or the Postal Service, Pl.'s Opp'n, Ex. 4 (Manuel Dep.) at 27-28. The plaintiff believed that his supervisors "initially" handled the matter well and thanked them, id. at 30, however, no written record was made to document the incident or the oral reprimand Mr. Welles received. Pl.'s Opp'n, Ex. 1 (Boardman Dep.) at 161.
After reporting the incident (the "Welles incident"), according to the plaintiff, he suffered detrimental career consequences. Compl. ¶ 7. To begin with, the plaintiff claims that after the Welles incident, he never again received a bonus while other attorneys in his department did, Pl.'s Opp'n, Ex. 4 (Manuel Dep.) at 125, receiving his last cash award on February 4, 2005, for his work on the Stone litigation. Def.'s Stmt. ¶ 50.
In addition, the plaintiff claims that he received fewer training opportunities than his colleagues. Pl.'s Opp'n, Ex. 4 (Manuel Dep.) at 110. Specifically, during the 2005-2006 rating period, the plaintiff received only 33.25 hours of training, while four other attorneys under Mr. Boardman's supervision received 35.25, 56.75, 55.25, and 62.25 hours of training respectively.*fn6
Def.'s Stmt. ¶¶ 20, 23. The plaintiff stated that his "colleagues attended seminars and legal events that [he] was never presented as an opportunity," Pl.'s Opp'n, Ex. 4 (Manuel Dep.) at 110, but concedes that he was offered the opportunity to attend the National Academy of Arbitrators 2006 Annual Meeting, a "valuable" training event, but declined the invitation because of scheduling conflicts, id. at 122-23.
Further, the plaintiff contends that after reporting the Welles incident, his supervisors expressed concern about the quality of his "writing." Pl.'s Opp'n, Ex. 16 (Manuel Decl.) ¶ 16. For example, in November 2005 the plaintiff was assigned to conduct the arbitration hearing and draft the post-hearing brief in the "Sunday premium" remedy case. Def.'s Stmt. ¶ 37. On November 14, 2005 Mr. Boardman reviewed the plaintiff's briefing sheet and assessed it as "below par." Pl.'s Opp'n, Ex. 8 (Boardman Email Nov. 15, 2005) at 1. According to the plaintiff, Mr. Boardman's review focused on style, formatting, and subjective criteria. Pl.'s Opp'n, Ex. 4 (Manuel Dep.) at 155-56. After the plaintiff submitted his first draft of the legal brief Mr. Boardman reviewed it critically, noting perceived deficiencies in "substan[ce], style, and appearance," and concluding that "I recommend you buy a good book on writing/composition and take a writing course." Pl.'s Opp'n, Ex. 8 (Boardman Email Feb. 24, 2006) at 1, 3. Mr. Boardman ultimately made "substantial" revisions to the brief before filing it with the arbitrator. Def.'s Stmt. ¶ 62.
In a similar vein, the plaintiff asserts that although he disagreed with Mr. Boardman's criticism of his writing, he agreed to take "an on-line American Law Institute course on writing" at his own expense. Pl.'s Opp'n, Ex. 16 (Manuel Decl.) ¶¶ 15-16. Mr. Boardman believed that the two-hour online course was insufficient and maintains that the Postal Service would have paid for an upper level writing course if the plaintiff had sought the necessary approval. See Def.'s Mem. (Affidavit of Stephan Boardman) ¶ 25; id., Ex. O (Scharf Email Jan. 8, 2007) (approving payment for a District of Columbia Bar advanced writing course).
The plaintiff also contends that after reporting the Welles incident, he was not promoted "to the Career Executive Service." Compl. ¶ 7. Specifically, in October 2005, the plaintiff submitted an application for placement on the Postal Service's Succession Planning List, the process by which employees are considered for Postal Career Executive Service positions.
Def.'s Stmt. ¶ 14. As Managing Counsel, Mr. Scharf was charged with submitting a written evaluation of the plaintiff indicating whether he supported the plaintiff's candidacy for several management positions. Def.'s Stmt. ¶ 15; Def.'s Mem., Ex. J (Manuel's Postal Career Executive Service Application) at 3. Although the plaintiff claims that Messrs. Scharf and Boardman initially gave him a "positive" evaluation and Mr. Boardman communicated to him that that he would support his application for a promotion, Pl.'s Opp'n, Ex. 16 (Manuel Decl.) ¶ 7, Mr. Scharf did not make the recommendation. Def.'s Mem., Ex. J (Manuel's Postal Career Executive Service Application) at 3. In his evaluation, Mr. Scharf wrote that while the plaintiff "is a well-liked, hard-working attorney," he "had not demonstrate[d] that his writing and analytical abilities [were] sufficient to enable him to lead other attorneys." Id. Subsequently, the Postal Service's management committee declined to place the plaintiff on the Succession Planning List, and notified him of its decision in April 2006. Def.'s Stmt. ¶ 18.
Additionally, the plaintiff claims that he was denied or removed from certain assignments in response to him reporting the Welles incident. Compl. ¶ 7. The plaintiff lists several assignments he believes he was wrongfully deprived, noting in particular not being assigned the labor contract negotiations for the Information Technology and Accounting Service Centers. Pl.'s Opp'n, Ex. 16 (Manuel Decl.) ¶¶ 20-21. According to the plaintiff, although he "knew far more about that [particular] bargaining unit than any other Postal Service attorney" because of his prior experience with the unit, id., Mr. Boardman assigned the labor negotiations to another in March 2006, Def.'s Stmt. ¶ 43, even though she "had no labor negotiations experience or connection to the [Information Technology and Accounting Service Center's] bargaining unit," Pl.'s Opp'n, Ex. 16 (Manuel Decl.) ¶ 21, while Mr. Boardman explains that he chose the other attorney for the assignment because he had been "impressed with her work," and "did not believe that she would require the same level of oversight [as the plaintiff would require]." Def.'s Mem. (Declaration of Stephan Boardman Under Seal) ¶ 23. Rather, when those negotiations were being conducted, Mr. Boardman assigned the plaintiff to work on two other negotiations. Def.'s Stmt. ¶ 43.
In 2004, the plaintiff was assigned as the lead Postal Service attorney on the Bland litigation, a Fair Labor Standards Act class action proceeding that was being litigated in the Court of Federal Claims. Def.'s Mem. (Declaration of Kevin A. Calamoneri) ("Calamoneri Decl.") ¶¶ 3, 6. Because the Bland litigation was a putative class action, the plaintiff's direct supervisor in that matter was Kevin Calamoneri, Chief Counsel of the National Employment Litigation Unit ("NEL Unit"). Id. (Calamoneri Decl.) ¶¶ 4-6. In 2006 Bland was scheduled for alternative dispute resolution ("ADR"), Def.'s Mem. (Declaration of David B. Ellis) ("Ellis Decl.") ¶ 6, and on October 19, 2006, while preparing for those proceedings, Mr. Boardman assigned the plaintiff to second chair the "article 32" arbitration scheduled for early 2007 and encouraged him to begin working on the case immediately because the arbitration was "important" and "involve[d] a lot of money." Def.'s Mem., Ex. P (Boardman Email Oct. 19, 2006). The following day, the plaintiff sent Mr. Boardman an email detailing his work assignments and current "schedule conflicts" that could interfere with his ability to perform the new assignment. Def.'s Stmt. ¶ 34. On October 23, 2006, the plaintiff sent another email to Mr. Boardman, stating,
In addition to the projects [identified in the October 20, 2006 email], I am working on the Bland ADR which involves work on a brief due to DOJ in 2 weeks, some spreadsheet review and the actual sessions that start in mid-November. I don't see how it will be possible to put in meaningful time on the [article 32] arbitration and get this other work done also. Can [we] get a postponement [with respect to the article 32 arbitration]? Do you want to talk to Eric [Scharf] or Dave Ellis about my working on the Bland ADR? Please let me know.
Id. (citing Def.'s Mem., Ex. P (Manuel Email Oct. 23, 2006) at 443). Mr. Boardman forwarded the email to Mr. Scharf, id. ¶ 35, who met with the plaintiff's current supervisor, Dave Ellis, Def.'s Mem. (Ellis Decl.) ¶ 6. Mr. Ellis "suggested to Eric Scharf that [the plaintiff] could be relieved from his assignment on the Bland case so that he could concentrate on his Labor Law workload." Id. Mr. Ellis felt that Bland, once scheduled for ADR, could be adequately handled by the first chair Department of Justice attorney and Postal Service attorney Dennis Syzbala, who had assisted the plaintiff in the preparation of that case since 2005. Id. Accordingly, Mr. Scharf authorized the plaintiff's removal from Bland, which the plaintiff insists he never desired. Pl.'s Opp'n, Ex. 16 (Manuel Decl.) ¶ 13.
Following his removal from the Bland litigation, in November 2006, the plaintiff received his annual performance appraisal for the 2005-2006 rating period. Def.'s Stmt. ¶ 54. The evaluation was drafted by Mr. Boardman, approved by Mr. Scharf, and contained both numeric and narrative "ratings." Id. ¶¶ 54, 56. In preparation for this review, Mr. Boardman requested that the plaintiff send him all of his written work products, which he passed along to Mr. Scharf, a practice not demanded "to this extent" with respect to other Postal Service attorneys. Pl.'s Opp'n, Ex. 2 (Deposition of Eric J. Scharf) at 81-83. Mr. Boardman rated the plaintiff as a "Contributor" and assigned him a numeric rating of 4.*fn7 Def.'s Stmt. ¶ 54. The other four attorneys under Mr. Boardman's supervision were also rated as "Contributors," but each was assigned a "6."*fn8 Id. ¶ 55. In contrast, in rating period 2004-2005, Mr. Boardman rated the plaintiff a "Contributor" and assigned him a "6." Id. ¶ 69.*fn9 The 2005-2006 evaluation also contained several critical comments, including the observation that, "though Alex tries to be responsive to management and works hard, he is slow to develop a sound theory of the case." Def.'s Mem., Ex. S (Manuel Evaluation 2005-2006) at 178. Further, Boardman stated, "Alex has had difficulty producing an adequate number of satisfactory work products. Part of the problem is timeliness, another is writing, and the final is analytical-all need improvement." Id. at 179. Mr. Boardman also echoed his criticism of the plaintiff's work on the "Sunday premium" brief and highlighted two research memoranda, the "union assignment" and "external law" assignments, that were "seriously tardy (without advance notice)," noting one was "marginally satisfactory." Id. To improve the plaintiff's written products, Mr. Boardman suggested that "Alex and I will go over a basic book about the rules of grammar and composition one chapter per week until finished." Id. at 179. Despite his conclusion that the plaintiff had a "positive work ethic," Mr. Boardman also concluded that his deficiencies warranted placement on a mandatory performance improvement plan ("PI Plan"). Id. at 181.
The PI Plan crafted by Mr. Boardman directed the plaintiff to "prepare a comprehensive memorandum about the [article 32 arbitration]" that must "not require more than minor editing." Def.'s Mem., Ex. GG (Manuel's PI Plan) at 171. The PI Plan was not placed in the plaintiff's official personnel file, but, Mr. Boardman informed the plaintiff that he should consider alternative employment if he was not able to complete the PI Plan successfully. Pl.'s Opp'n, Ex. 1 (Boardman Dep.) at 177-78. Mr. Boardman suggested that the plaintiff consider moving back to the Postal Service's Capital Metro field office, but later discovered that no vacancies were available. Id. at 174-75. Shortly thereafter, Messrs. Boardman and Scharf offered the plaintiff a position with the Postal Service's Corporate Law section, which the plaintiff declined, characterizing the offer as "a ruse." Pl.'s Opp'n, Ex. 4 (Manuel Dep.) at 196-97.
Subsequently, the plaintiff began working on the PI Plan assignment but requested and was granted several extensions. Def.'s Stmt. ¶ 78. Ultimately, the PI Plan assignment was never completed before the plaintiff's employment at the Postal Service ended because he maintains that he was not given the requisite materials needed to prepare the memorandum required by the PI Plan. Pl.'s Opp'n, Ex. 4 (Manuel Dep.) at 183-87.
On November 27, 2006, the plaintiff informed Messrs. Boardman and Scharf of his intention to seek Equal Employment Opportunity ("EEO") counseling, Def.'s Mem., Ex. G (Manuel Email Nov. 27, 2006) at 1, and on March 7, 2007, the plaintiff filed the EEO complaint that gave rise to this suit. Def.'s Stmt. ¶ 13. Thereafter, on March 16, 2007, the plaintiff informed his supervisors that he was resigning from the Postal Service to accept an administrative law judge position with the Department of Housing and Urban Development. Def.'s Mem., Ex. D (Manuel Email March 16, 2007); Pl.'s Opp'n, Ex. 4 (Manuel Dep.) at 218.
The plaintiff received a final agency decision on November 8, 2007, Compl. ¶ 2, then filed this action in this Court on November 26, 2007.
The plaintiff has pled two counts of discrimination under Title VII: (1) discrimination and constructive discharge based on race, Compl. ¶ 9, and (2) retaliation and constructive discharge because of his earlier participation in protected EEO activity, id. ¶ 11. As a result of this allegedly discriminatory and retaliatory activity, the plaintiff contends that he "has suffered and continues to suffer severe curtailment of his career opportunities, loss of pay, personal and professional humiliation, and emotional pain and suffering." Id. ¶¶ 10, 12.
The defendant has filed the motion currently before the Court seeking summary judgment pursuant to Federal Rule of Civil Procedure 56. Def.'s Mot. at 1. Specifically, the defendant contends that he is entitled to the relief being requested because: (1) with respect to several of the discrete employment actions that support the plaintiff's claims, he has failed to timely exhaust his administrative remedies, Def.'s Mem. at 27-28; (2) several of the actions about which the plaintiff has complained are not "adverse under the governing law," id. at 28-31, 40-42; (3) "[the] defendant has asserted legitimate, nondiscriminatory reasons for the actions upon which they are based," and therefore "no reasonable jury could conclude that [the] [d]efendant discriminated [or retaliated] against [the] [p]laintiff when it engaged in the actions," id. at 28, 31-39; and (4) the plaintiff's claim of constructive discharge fails because "none of [the p]laintiff's claims of race discrimination or retaliation is viable" and "he cannot show that his work environment was so intolerable that a reasonable employee in his position would have felt compelled to resign," id. at 43-45.
In opposition to the defendant's motion, the plaintiff contends that summary judgment is improper because: (1) "targeted actions" and "a pattern of antagonism" directed at the plaintiff constitute adverse actions sufficient under the governing law, Pl.'s Opp'n at 15; (2) the defendant's proffered legitimate, nondiscriminatory reasons are pretextual, id. at 21; (3) the defendant's exhaustion of remedies argument "lacks merit," because proof of prior discriminatory actions may be admitted as background evidence, id. at 37-38; and (4) the plaintiff's constructive discharge claim is viable because he can ...