The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court
Plaintiff Juan Morgan, a former employee in the United States Department of Agriculture's Foreign Service ("Department"), brings this action against defendant Thomas Vilsack in his official capacity as Secretary of Agriculture (collectively called "Department").*fn1
Morgan alleges that the Department, through its Animal and Plant Health Inspection Service ("APHIS"), discriminated against him on account of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and created a hostile work environment. Currently before the Court is defendant Department's Motion  for Summary Judgment and plaintiff's Cross-Motion  for Summary Judgment. For the reasons set forth below, the Court will grant the Department's motion and deny plaintiff's cross-motion.
Plaintiff is an African American U.S. citizen of Hispanic descent, originally born in Panama. (Morgan Dep. 302:5--6, Feb. 23, 2009; Morgan Decl. on Summ. J. Mot. ("Morgan Decl.") ¶ 3.) Prior to his service with APHIS, plaintiff spent 22 years in the United States Army working throughout Central and South America, finally retiring as a Lieutenant Colonel. (Pl.'s Statement of Uncontested Facts [hereinafter Pl.'s Facts] ¶¶ 1--2.) In September 2000, plaintiff accepted a Limited Non-Career Appointment ("LNCA") with the International Services branch of APHIS ("APHIS-IS"). (Def.'s Statement of Material Facts Not in Genuine Dispute [hereinafter Def.'s Facts] ¶ 2.) APHIS-IS assigned plaintiff to the Panama City, Panama office, where he became Director of Finance of the Panama-U.S. Screwworm Commission. (Id. ¶ 3.) The Commission is a joint venture between the governments of the United States and Panama, comprised of APHIS employees and the Panama Ministry of Agriculture and Livestock Development employees. (Cielo Decl. ¶ 2.) Throughout his tenure with APHIS-IS, plaintiff's first-line supervisor was James Swenson, the co-Administrative Director of the Commission; he also reported to the Panamanian co-Administrative Director, Luis Delegado. (Def.'s Facts ¶¶ 5, 12; Morgan Decl. ¶ 9.) The Commission's co-Directors were Dr. John Wyss (followed by Dr. Angel Cielo) for the United States and Dr. Jose Espinosa for Panama. (Def.'s Facts ¶¶ 7, 9, 11.) Plaintiff's responsibilities included reporting to both directors. (Morgan Decl. ¶ 9; Def.'s Facts ¶ 13.)
Immediately upon arriving in Panama, plaintiff claims he suffered from harassment, hired only as a "token" African American employee. (Morgan Decl. ¶ 11.) The Department's rationale for hiring plaintiff was to improve the service APHIS-IS received in the Panama City office. (Wyss Aff. [56-6] at 2.) Indeed, Dr. Wyss hired plaintiff after a chance encounter on an airplane and thought he would be a good employee; Dr. Wyss took the effort to closely monitor Plaintiff's employment paperwork, going through "lots of hoops" to ensure they were quickly processed. (Id.)
Despite Dr. Wyss thinking that plaintiff would be a good employee, Mr. Swenson received complaints about plaintiff from members of APHIS-IS staff and the American Embassy in Panama from the beginning of plaintiff's tenure. (Def.'s Facts ¶ 14.) These complaints only magnified throughout the years, trickling up to Dr. Cielo, the co-Director of the Commission. (Id. ¶ 23.) Mr. Swenson consistently rated Plaintiff's work product as "satisfactory, but no better," despite plaintiff averring that no complaints were lodged against him. (Id. ¶ 19; Morgan Decl. ¶¶ 29, 42.)
Plaintiff's availability changed drastically one year into his LNCA. His daughter was diagnosed with cancer in fall 2001, which required plaintiff to travel back and forth to the United States for her treatment. (Morgan Decl. ¶ 34; Def.'s Facts ¶ 15.) As a result, plaintiff was absent from Panama for two weeks per month. (Morgan Decl. ¶¶ 35, 43; Def.'s Facts ¶ 16.) During plaintiff's absences, APHIS-IS and Commission staff had to rely on subordinates for information and management responsibility, even though plaintiff was available by telephone.
Throughout plaintiff's tenure with APHIS-IS-culminating in the termination of his LNCA in March 2003 (Def.'s Facts ¶ 72)-plaintiff claims the Department subjected him to ten discrete instances of unlawful discrimination: (1) exclusion from a June 2002 meeting; (2) the July 2002 selection of Ivan Bustos for a position in the Finance Department over his objection;
(3) receipt of oral reprimands in November 2000 and February 2003; (4) supervisors periodically asking subordinates for financial information; (5) exclusion from APHIS-IS social functions; (6) non-receipt of an Annual Expectation Letter before February 8, 2001, and non-receipt of a new Annual Expectation Letter thereafter; (7) receipt of a performance evaluation for the 2001-2002 rating period with critical comments from Dr. Harold Hoffman, plaintiff's second-line supervisor; (8) non-receipt of mid-year reviews during the 2000-2001 and 2001-2002 rating periods; (9) non-conversion to Career Foreign Service Status; and (10) termination of his Foreign Service LNCA. These claims of intentional discrimination led plaintiff to file suit against the Department.*fn2
After APHIS-IS terminated plaintiff's LNCA in 2003, before he could complete his reassignment to Riverdale, Maryland, plaintiff suffered a nervous breakdown requiring professional medical treatment. (Morgan Decl. ¶ 109; Ex. 23 (letter from Dr. Dorian Lagrotta, Psychiatrist).) Because of plaintiff's medical situation and his pending legal claims, plaintiff retired on disability rather than return to the APHIS civil service in Riverdale. (Ex. II [57-2] at 10; Ex JJ [57-2] at 12.)
Summary judgment is appropriate when "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). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party's evidence is to be believed, and all reasonable inferences from the record are to be drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S 242, 255 (1986). It is not enough, however, for the non-moving party to show that there is "some factual dispute." Id. at 247. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Thus, 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.
Plaintiff has alleged racial and national origin discrimination claims against defendant in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. As noted above, plaintiff has identified ten alleged discriminatory actions that form the basis of his Title VII claim.
The Department contends that plaintiff's alleged discriminatory actions (1)-(8) do not constitute adverse employment actions and therefore fail as a matter of law. In the alternative, the Department contends that its non-discriminatory rationale for the alleged discriminatory actions (1)-(8) is not pretext for unlawful discrimination. The Department concedes that plaintiff's alleged discriminatory acts (9) and (10) are adverse employment actions, but maintains that the Department's non-discriminatory rationale for those actions is not pretext for discrimination. As set forth below, the Court agrees with the Department's arguments.
Traditionally, with a Title VII discrimination claim, district courts were required to apply a three-step burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under that framework, the plaintiff must first prove a prima facie case of discrimination. Id. at 802. If the plaintiff is successful, the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its action. Id. Finally, if the defendant satisfies its burden, the plaintiff must prove that the defendant's stated reason is pretext for discrimination. Id. at 804-05.
In Brady v. Office of Sergeant at Arms, the Court of Appeals simplified the District Court's analysis in Title VII disparate-treatment suits. 520, F.3d 490, 494 (D.C. Cir. 2008). Stating that the prima facie determination had become a "largely unnecessary sideshow," the court held that in Title VII disparate-treatment suits, the District Court need not determine if the plaintiff makes a prima facie case of discrimination if the defendant has asserted a legitimate, non-discriminatory reason for the challenged actions. Id. As a result, this Court is left with "one central question: Has the employee 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 against the employee on the basis of race, color, religion, sex, or notional origin?" Id. In other words, the Court must determine if the plaintiff has produced enough evidence such that a reasonable jury would find that the Department's non-discriminatory reasons are mere pretext for underlying unlawful discrimination.
Before the Court can undertake that inquiry, however, the Court must determine whether the alleged acts of discrimination constitute adverse employment actions. Douglas v. Donovan, 559 F.3d 549, 551-52 (D.C. Cir. 2009). For an employment action to be adverse, it must result in "materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). Accordingly, an adverse employment action is defined as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Id. at 552 (internal citation and quotation omitted). Alleged acts of discrimination that do not constitute adverse employment actions fail as a matter of law. Brantley v. Kempthorne, 2008 WL 2073913, at *4-*5 (D.D.C. May 13, 2008).
1.Adverse Employment Actions
The Department contends that plaintiff's alleged discriminatory actions (1)-(8) do not constitute adverse employment actions because these actions did not have a materially negative effect on the terms or conditions of plaintiff's employment. The Department admits that actions (9) and (10) constitute adverse employment actions.
The Court finds that plaintiff's alleged discriminatory actions (1)-(8) do not constitute adverse employment actions and fail as a matter of law. It is clear that (1) plaintiff's exclusion from a June 2002 meeting; (2) the July 2002 selection of Ivan Bustos for a position in the Finance Department over plaintiff's objection; (3) plaintiff's receipt of oral reprimands in November 2000 and February 2003; (4) supervisors periodically asking plaintiff's subordinates for financial information; (5) plaintiff's exclusion from APHIS-IS social functions; (6) plaintiff's non-receipt of an Annual Expectation Letter before February 8, 2001, and his non-receipt of a new Annual Expectation Letter thereafter; and (8) plaintiff's non-receipt of mid-year reviews during the 2000-2001 and 2001-2002 rating periods fail to have a materially ...