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Cornell Herbert v. the Architect of the Capitol

February 23, 2011


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Cornell Herbert ("Herbert"), an African American, commenced this action against his current employer, the Architect of the Capitol (the "AOC") on August 24, 2007, claiming that he was discriminated and retaliated against in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and the Congressional Accountability Act of 1995 (the "CAA"), 2 U.S.C. § 1301 et seq. Presently before the Court is the AOC's [25] Motion for Summary Judgment, wherein the AOC contends principally that a reasonable fact finder could not conclude either (a) that the specific employment actions challenged by Herbert in this action were sufficiently adverse to support Herbert's claims for discrimination or to support his claims for retaliation or (b) that its proffered explanations for taking the challenged employment actions were not the actual reasons and were instead undertaken with discriminatory or retaliatory intent. As set forth in greater detail below, the Court concludes that Herbert has failed to discharge his burden of identifying specific facts establishing that there is a genuine dispute requiring trial on essential elements of each of his causes of action. Therefore, based upon the parties' submissions, the attachments thereto, the relevant authorities, and the record as a whole, the Court shall GRANT the AOC's [25] Motion for Summary Judgment and DISMISS this action in its entirety.*fn1


Preliminarily, the Court pauses to make an overarching observation about the nature of Herbert's opposition to the present motion. The United States District Court for the District of Columbia has supplemented Rule 56 of the Federal Rules of Civil Procedure with Local Civil Rule 7(h), which requires that each party submitting a motion for summary judgment attach a statement of material facts for which that party contends there is no genuine dispute, with specific citations to those portions of the record upon which the party relies in fashioning the statement. The party opposing the motion must, in turn, submit a statement enumerating all material facts which the party contends are genuinely disputed. See Local Rule LCvR 7(h)(1). This well-reasoned rule "places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996).

In this case, the parties were informed that the Court strictly adheres to the dictates of this rule. See Scheduling & Procedures Order, Docket No. [13], ¶ 6. Indeed, Herbert was expressly instructed as follows:

A party responding to a statement of material facts must respond to each paragraph with a correspondingly numbered paragraph, indicating whether that paragraph is admitted or denied. The responding party should include any information relevant to its response in that paragraph. If the responding party has additional facts that are not addressed in the corresponding paragraphs, the responding party should include these at the end of its responsive statement of facts. At all points, parties must furnish precise citations to the record on which they rely.

Id. While Herbert has provided the required response statements in opposition to the AOC's pending motion, he has nevertheless failed to fully discharge his burden. First, while Herbert precedes each paragraph in his statement with the term "agrees" or "disputes," it is often difficult to discern the extent of his agreement or disagreement. On the one hand, where Herbert "agrees," he repeatedly restates the facts identified by the AOC in such a way as to obfuscate the extent of his agreement. On the other hand, where Herbert "disputes" a paragraph, he frequently fails to clarify whether he disputes the paragraph in full or in part and, if only in part, specifically identify which portions are undisputed. Second, Herbert's denials consistently devolve into a lengthy narrative of purported facts-and, on occasion, legal argument-that simply are not directly relevant to opposing the discrete facts put forward by the AOC. To the extent Herbert considered additional facts to be relevant to the issues raised in the pending motion, he should have, as instructed, included those additional facts as separate paragraphs at the end of his statement in order to afford the AOC a meaningful opportunity to respond to those facts. Instead, Herbert has impermissibly shifted his burden to locate and identify the relevant disputed facts to this Court. In an exercise of its discretion, the Court has considered Herbert's statement in its entirety and references it, where appropriate, in identifying those facts germane to the pending motion. Nevertheless, to the extent there has been any confusion as to the extent of Herbert's agreement or disagreement with the AOC's proffered facts, the Court underscores that the fault and accountability for any such confusion must rest with Herbert, and not the AOC or this Court.


Herbert is an African American employed in the AOC's Paint Shop. Def.'s Stmt. ¶¶ 1, 4; Pl.'s Stmt. ¶¶ 1, 4. Herbert began his employment with the AOC as a W-4 Laborer and over the years has progressed through the ranks; most notably, in March 2006, Herbert was promoted to the position of W-7 Painter Worker, and, in February 2007, he became a W-9 Painter. Def.'s Stmt. ¶¶ 2-4; Pl.'s Stmt. ¶¶ 2-4. During the course of his employment with the AOC, Herbert has repeatedly complained of allegedly unfair, discriminatory, and retaliatory treatment suffered by him and his fellow employees. The precise contours of each of these complaints are not germane here. Some of the allegations have been resolved amicably by the parties; others are or have been the subject of separate actions brought by Herbert in this District. See Herbert v. Architect of Capitol, No. 07 Civ. 1605 (CKK) (D.D.C.); Herbert v. Architect of Capitol, 09 Civ. 1719 (CKK) (D.D.C.). In the instant action, after a fair amount of early uncertainty, it is now clear that Herbert challenges a total of three employment actions. See generally Second Am. Compl. ("2d Am. Compl."), Docket No. [47]. Those actions are as follows:

* Letter of Reprimand. Herbert first challenges the AOC's decision to issue a letter of reprimand-proposed in early January 2007 and formally issued in June 2007-admonishing him for failing to perform assigned duties and using inappropriate language in the workplace. Id. ¶¶ 15-17, 20, 21.

* Delayed Promotion. Herbert next challenges an alleged delay in his promotion to the position of W-9 Painter, which became effective in early February 2007 even though Herbert's supervisors had allegedly determined that he merited the promotion earlier. Id. ¶ 14.

* Internal Investigation. Finally, Herbert challenges the AOC's alleged decision to launch an investigation into his purportedly "disruptive" behavior at the tail-end of 2006. Id. ¶¶ 18-19.

In all three instances, Herbert alleges that the challenged employment action was both discriminatory and retaliatory, meaning that there are a total of six discrete claims in this action. Id. ¶¶ 22-27. With this landscape set out, the Court now turns to the task of identifying the facts pertaining to these claims as to which there is no genuine dispute.

A. Herbert's Internal Complaints and the Parties' Settlement Agreement

In the late summer and early fall of 2005, Herbert began making several internal complaints with respect to purportedly unfair, discriminatory, and retaliatory treatment allegedly suffered by him and other African Americans working at the AOC.*fn2 Def.'s Stmt. ¶ 5; Pl.'s Stmt. ¶ 5. For purposes of the present motion, the AOC does not contest that Herbert engaged in "protected activities." Most notably, in a letter dated September 16, 2005, Herbert wrote to the AOC's internal Equal Employment Opportunity and Conciliation Program ("EEO-CP"), raising allegations as to the use of racial epithets in the Paint Shop. Pl.'s Stmt. Ex. 1 at 180. In addition, in a letter dated October 12, 2005, Herbert and three other individuals alleged that qualified African Americans working at the AOC had been "overlooked for promotions and awards" and subjected to other disparate treatment. Pl.'s Stmt. Ex. 2 at 187. Herbert and the AOC were able to amicably resolve some of the issues involved in these disputes informally. Def.'s Stmt. ¶ 5 & Ex. 3 at 55, 58; Pl.'s Stmt. ¶ 5. Others required a formal settlement agreement.

On July 6, 2006, Herbert and the AOC entered into a written settlement agreement, pursuant to which Herbert released any and all claims that, as of that point in time, had been or could have been asserted against the AOC through his internal complaints and the associated alternative dispute resolution procedures. Def.'s Stmt. Ex. 2 ¶ 5(A). That is, the settlement was expressly designed to "constitute full and complete satisfaction of all claims . . . against the AOC that [Herbert] brought or could have brought arising out of his employment." Id. ¶ 6(E). In exchange for this broad release, so long as Herbert received a performance rating for year-end 2006 of "fully successful" or above, the AOC would "submit the necessary request to promote" Herbert to the position of W-9 Painter no later than January 31, 2007, with the promotion becoming effective "as soon as possible thereafter" and under no circumstances "beyond . . . February 17, 2007." Id. ¶ 5(C). In other words, the settlement agreement required the AOC to set the process of promoting Herbert in motion by the end of January 2007 and to ensure that the promotion became effective by mid-February 2007.

In accordance with the contemplated time frame, the AOC commenced the process for formally approving Herbert's promotion on or about December 27, 2006 and completed the approval process by January 25, 2007. Def.'s Stmt. ¶ 29; Dep. of Frank John Tiscione ("Tiscione Dep."), Docket No. [32-10], at 103 & Ex. 13 at 1. Herbert's promotion to the position of W-9 Painter became effective on February 4, 2007. Def.'s Stmt. ¶ 29 & Ex. 1 at 4; Tiscione Dep. at 103 & Ex. 13 at 1. Herbert remains in that position.

B. The Events Occurring During the 2006 Congressional Move

Every two years, in the month following the congressional elections, the AOC is tasked with organizing what it refers to as the "congressional move." Def.'s Stmt. ¶ 7; Pl.'s Stmt. ¶ 7. In a three-week period, the AOC is charged with moving 180 to 200 members of Congress, a project that includes painting, wiring, carpeting, and reorganizing congressional facilities. Def.'s Stmt. ¶ 7; Pl.'s Stmt. ¶ 7. The project is a major one for the AOC and the Paint Shop in which Herbert is employed. Def.'s Stmt. ¶ 7; Pl.'s Stmt. ¶ 7. Indeed, it is generally considered to be the "busiest time" for the Paint Shop. Dep. of William Wood, Jr. ("Wood Dep."), Docket No. [32-9], at 13. In order to meet the tight time constraints imposed upon its work, the Paint Shop engages 40 to 50 painters on a temporary basis and paints around the clock. Def.'s Stmt. ¶ 7; Pl.'s Stmt. ¶ 7.

On a single evening during the 2006 congressional move, Herbert was involved in a pair of incidents, one concerning the responsibility of Paint Shop workers for moving furniture in the course of discharging their painting responsibilities and a second involving a verbal altercation between Herbert and a co-worker. Def.'s Stmt. ¶ 8; Pl.'s Stmt. ¶ 8. While Herbert and the AOC sharply dispute the precise sequence of events pertaining to these two incidents, there is surprisingly little disagreement over their general contours and the parties' respective contemporaneous interpretations thereof; unless otherwise indicated, the narrative that follows rests on undisputed facts or those facts as to which there can be no genuine dispute.

1. Herbert's "Failure to Perform Assigned Duties"

On the evening of December 2, 2006, Herbert and others in his crew were assigned to paint a suite in the Longworth House Office Building. Def.'s Stmt. ¶ 9; Pl.'s Stmt. ¶ 9. Charlie Brown ("Brown") was the crew leader, or "point man," for that evening and was working on location with the crew. Def.'s Stmt. ¶ 9; Pl.'s Stmt. ¶ 9. Herbert and Brown were the only permanent painters on the crew that evening. Dep. of Cornell Herbert ("Herbert Dep."), Docket No. [32-7], at 30-31. Meanwhile, David Dean ("Dean"), the Shift Supervisor, and Edward Williams ("Williams"), the Supervisor of the Paint Shop, were both on duty and were on the premises in administrative offices located a relatively short distance away from the crew. Def.'s Stmt. ¶ 3; Pl.'s Stmt. ¶3.

Upon arriving at the suite, the crew discovered that furniture in the room had not been moved and would need to be before painting could begin. Def.'s Stmt. ¶ 9; Pl.'s Stmt. ¶ 9. The crew members, including Brown, were displeased with the prospect of having to move furniture before beginning their work and proceeded to complain among themselves. Def.'s Stmt. ¶¶ 9, 21; Pl.'s Stmt. ¶¶ 9, 21. The crew's displeasure likely had its origins in a long-running tension between the Paint Shop and the Chief Administrative Office of the House (the "CAO") over the allocation of responsibility for moving furniture during the course of a congressional move. The exact details of that tense relationship are immaterial here; suffice it to say that although efforts had been made within the Paint Shop to shift more of the burden of moving furniture from the Paint Shop to the CAO, workers in the Paint Shop had nevertheless historically been required, albeit not without some resentment, to occasionally move furniture in order to complete their assigned duties. Def.'s Stmt. ¶ 21 & Ex. 9 at 133; Pl.'s Stmt. ¶¶ 7, 21; Tiscione Dep. at 88-89; Dep. of Edward Williams, Sr. ("Williams Dep."), Docket No. [32-15], at 81-82, 148-49. Unfortunately, as was the case here, the CAO was not always sufficiently reliable to meet the tight deadlines imposed during a congressional move. Def.'s Stmt. ¶ 21; Pl.'s Stmt. ¶ 21.

Herbert, relying upon a written statement prepared by Brown*fn3 and his own deposition testimony, maintains that, upon discovering the state of the furniture in the suite, others within the crew began complaining about having to move the furniture and using inappropriate language. Pl.'s Stmt. ¶ 9(b) (citing Def.'s Stmt. Ex. 8; Herbert Dep. at 38). These allegations are, if not undisputed, sufficiently supported by the record such that, viewing the evidence in the light most favorable to Herbert, the Court shall assume them to be true for purposes of the present motion. Brown's recollection of the events is that both he and his crew began complaining "a bit" amongst themselves when they discovered the suite was full of furniture, Def.'s Stmt. Ex. 6 at 224, and Herbert concedes that he "got fussing" and "got cussing like the rest of the guys got cussing," Herbert Dep. at 38. Brown then recalls that, when he informed the crew that it would have to start moving furniture, Herbert "[i]mmediately . . . started yelling [and] complaining," and using inappropriate language. Def.'s Stmt. Ex. 6 at 224. Consistent with this recollection, Herbert admits that he said to Brown, "I didn't come here tonight to F'ing move this furniture." Herbert Dep. at 40. Brown's recollection of Herbert's statement is essentially the same: he provides that Herbert said, "[I] didn't come down to this Mother-F--er today to move no mother f---ing furniture." Def.'s Stmt. Ex. 6 at 224. By his own admission, Herbert then "told [] Brown that [he] was not going to move furniture."*fn4 Def.'s Stmt. Ex. 8 at 173.

Brown immediately called Dean, who in turn informed Brown that the crew would have to move the furniture and that anyone who refused to do so would have to report to him and Williams. Def.'s Stmt. ¶¶ 9-11 & Ex. 6 at 224; Pl.'s Stmt. ¶¶ 9-11. Herbert left the suite to see Dean and Williams. Def.'s Stmt. ¶ 12 & Ex. 8 at 173; Pl.'s Stmt. ¶ 12. According to Brown,*fn5 who remained in the suite, the other members of the crew were "very upset" that Herbert had left while they began moving the furniture. Def.'s Stmt. Ex. 6 at 224. It is undisputed that Herbert was the only member of the crew who left the suite to complain, and there is no evidence in the record suggesting that anyone apart from Herbert told Brown that they would not move furniture.

Herbert then met with Williams. Def.'s Stmt. ¶ 14; Pl.'s Stmt. ¶ 14. Admittedly upset, Herbert continued his complaints about moving furniture and the allocation of responsibility between the Paint Shop and the CAO. Def.'s Stmt. ¶ 14 & Ex. 8 at 173; Pl.'s Stmt. ¶¶ 12, 14; Herbert Dep. at 40-41. After Herbert suggested that the CAO was responsible for moving the furniture in the suite, Williams informed Herbert that moving furniture was part of his job description in the event the CAO failed to do so and that he had to move furniture like anyone else.*fn6 Def.'s Stmt. ¶ 14 & Ex. 4 at 135; Pl.'s Stmt. ¶ 14; Williams Dep. at 54, 148-49. At his deposition, Williams testified definitively that, at this point in the conversation, Herbert stated that he would not move any furniture in the suite. Williams Dep. at 49, 54. Herbert, for his part, denies that he "specifically" told Williams that he refused to move furniture. Pl.'s Stmt. ¶ 12. Regardless of whether Herbert did or did not "specifically" refuse to move furniture a second time, it is undisputed that Herbert ...

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