The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Lori D. McLaughlin is a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). She complains here of discrimination based on her sex (female) and race (African American); retaliation for protected equal employment opportunity activity; and a hostile work environment. Attorney General Eric H. Holder, Jr. is sued in his official capacity because ATF is a constituent agency of the Department of Justice. Defendant moves for summary judgment. The Court will grant in part and deny in part the motion. A genuine dispute of material fact precludes summary judgment on one of Ms. McLaughlin's retaliation claims.
Lori D. McLaughlin in an African American female. She has been employed in various capacities with ATF since 1988. For all relevant times to this matter, from March 2002 to 2009, she worked as a Criminal Investigator (Special Agent) in the Orlando Field Office, Tampa Field Division.
From March 2002 to April 2004, Ms. McLaughlin's first line supervisor was Michael Hegerfeld, Resident Agent in Charge ("RAC") of the Orlando Field Office. Mr. Hegerfeld was eventually replaced by Russell May. From December 2002 to 2009 -- when she was reassigned to the Dallas Field Division of -- Ms. McLaughlin's second level supervisor was John Ryan, Assistant Special Agent in Charge ("ASAC") of the Tampa Field Division. Mr. Ryan was physically located in Tampa, Florida. Each of these men is White.
In January 2004, the Tampa Field Division underwent a routine office review by the ATF Office of Inspection. The Orlando Field Office fared very poorly on the review. One or more "significant exceptions to established policies and procedures" was found in most of the topics for review, including: Investigation and Documentation Analysis, Confidential Informants, Electronic Surveillance Procedures, the Agent Cashier Fund, Accountable/Controlled Property and Investigative Equipment, Time and Attendance, the Evidence Vault, Employee Records, Management Controls, and Task Forces and Asset Forfeiture. Def.'s Opp'n ("Opp'n") [Dkt. #39], Ex. 51. Additionally, during the review, "some of the special agents cited an uncomfortable work environment as a negative morale factor"*fn1 and "one special agent reported being singled out for disparate treatment on the basis of race and/or gender." Id. In response to the unfavorable review, ASAC Ryan visited the Orlando Field Office and interviewed the employees. During her interview, Ms. McLaughlin raised her concerns about a hostile work environment and about her boss, RAC Hegerfeld, with Mr. Ryan. A few months later, Mr. Hegerfeld retired, and Russell May was eventually brought in as the RAC.
Ms. McLaughlin initiated equal employment opportunity ("EEO") counseling in February 2004 and filed a formal complaint of discrimination, alleging race, sex, and reprisal discrimination on April 2, 2004. This complaint was dismissed by the Department of Justice on September 30, 2004. Ms. McLaughlin did not further pursue the matter.
On April 17, 2006, Ms. McLaughlin applied to attend the Women in Federal Law Enforcement ("WIFLE") Conference to be conducted in Washington, D.C. from June 20 to 22, 2006. The parties dispute what happened to her application. Defendant insists that the application was not forwarded for approval because Lorena Zabel, Senior Operations Officer in Tampa, went on vacation and forgot to forward it before she left. When alerted that the deadline had arrived, Deputy Operations Officer Hardesty did not take action because he was trying to learn who would pay for the travel of a Conference attendee. Ms. McLaughlin contests these explanations. It is undisputed, however that Ms. McLaughlin's application was not approved, and she did not attend the Conference.
Soon thereafter, all ATF employees were notified of an opportunity to submit nominations for DOJ's Community Service Award and Citizen Volunteer Service Award for 2006. Mr. May told Ms. McLaughlin that he wanted to nominate her for the Community Service Award, and she provided background information to him. What happened next is subject to controversy: either Mr. May forwarded the nomination to Mr. Ryan in Tampa but Mr. Ryan did nothing with or about it; or Mr. May forgot or failed to forward it to Mr. Ryan. In either case, Ms. McLaughlin's application was not forwarded to headquarters for consideration, and she did not receive the award.
On September 1, 2006, Ms. McLaughlin filed another EEO complaint alleging discrimination and reprisal with respect to the handling of her applications for the WIFLE Conference and DOJ Community Service Award. Administrative Judge Ana Lehmann of the Equal Employment Office Commission issued a decision denying Ms. McLaughlin's claims. This decision was adopted as the DOJ's Final Agency Decision and appealed by Ms. McLaughlin to the EEOC. On April 24, 2008, the EEOC's Office of Federal Operations denied Ms. McLaughlin's appeal.
In the meantime, in July 2007, the Orlando Violent Crime Impact Team ("VCIT") was established. ATF Agents were detailed to the VCIT unit, usually for 90 days. All of the Special Agents who served on the first 90-day detail (from July 9, 2007 to September 30, 2007) were White males. All of them received a $1,000 cash award at the end of their detail. Ms. McLaughlin served on the second detail, from October 1, 2007 to December 31, 2007. None of the agents who served on the second detail received cash awards. Most, but not all, of the second group of agents received time-off awards. Ms. McLaughlin was one of the agents who did not. Ms. McLaughlin filed another EEO complaint with the agency on December 14, 2008 alleging that she had been discriminated against when she did not receive an award for her detail to the VCIT.
On November 4, 2008, Ms. McLaughlin received her annual performance appraisal for the period ending September 30, 2008, by which Messrs. May and Ryan judged her "Fully Satisfactory," a lower rating than many of her colleagues. She disputed this rating and filed a formal EEO complaint on November 18, 2008.
Thereafter, in April 2009, Ms. McLaughlin received a time-off award for her work on the Disney Pipe Bomb investigation and prosecution. Ms. McLaughlin alleges that she should have been given a cash award. Similarly, Ms. McLaughlin alleges that she received a lesser time-off award for her work on Operation Kissimmee than the lead agent on the case. She sought EEO counseling with respect to these claims on May 8, 2009 and filed a formal EEO complaint on June 2, 2009.
Ms. McLaughlin's EEO complaints with respect to the VCIT award, the 2008 performance evaluation, and the Disney Pipe Bomb and Operation Kissimmee investigations were later consolidated by the Department of Justice. More than 180 days passed from the time Ms. McLaughlin filed these complaints and the filing of her Amended Complaint in this action on October 9, 2009.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
B. Discrimination and Retaliation
For many years, courts evaluated discrimination and retaliation*fn2 claims using the familiar burden-shifting framework of McDonnell Douglas. See, e.g. Adewole v. PSI Services, Inc., - F.Supp.2d - , 2011 WL 2938137 (D.D.C. 2011).Plaintiffs were first required to establish a prima facie case of discrimination and then the burden shifted to defendant to articulate a nondiscriminatory reason for the adverse action. See Holocomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006); Carney v. Am. Univ., 151 F.3d 1090, 1092-93 (D.C. Cir. 1998). Recently, however, the D.C. Circuit has stated that whether a plaintiff has made out a prima facie case is "almost always irrelevant" and "is a largely unnecessary sideshow," Brady v. Office of the Sgt. at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008). Instead, when "an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not - and should not - decide whether plaintiff actually made out a prima facie case under McDonnell Douglas." Id. at 494 (emphasis in original). The district court immediately proceeds to the ultimate issue of discrimination or retaliation: "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 national origin?" Id. In answering this ultimate question, the prima facie case remains relevant, but only as part of the evidence the court considers. See Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009) ("[T]he court reviews each of the three relevant categories of evidence-prima facie, pretext, and any other--to determine whether they 'either separately or in combination' provide sufficient evidence for a reasonable jury to infer [discrimination or] retaliation.") The same framework applies to claims of retaliation. See, e.g., Prado-Kronemann, 601 F.3d 599, 603-04 (D.C. Cir. 2011) (abandoning prima facie analysis when employer articulated a nondiscriminatory reason for the alleged retaliatory action).
In those cases where an employer contests whether an alleged action is legally "adverse," however, a court does not immediately proceed to the ultimate question of discrimination or retaliation. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). Instead, a court first determines whether the action was "adverse" within the meaning of Title VII. See id. The nature of an "adverse" action varies, depending on whether the allegation is one of discrimination or retaliation.
"Not everything that makes an employee unhappy" is an adverse action that can support a claim of discrimination. Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996); accord Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001).Some types of adverse actions are obvious, such as discharge or failure to promote. For those that are less clear, a plaintiff must show an action with "materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities." Brown, 199 F.3d at 457. The employment decision must inflict "objectively tangible harm." Russell, 257 F.3d at 818. "An employment decision does not rise to the level of an actionable adverse action . . . unless there is a tangible change in the duties or working conditions constituting a material employment disadvantage." Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (citation omitted). See also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760 (1998) ("A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.")
There is a notable difference, however, between "adverse actions" that support a claim for discrimination and "materially adverse actions" that support a claim for retaliation. Burlington Northern, 548 U.S.at 67. "[T]he proscription against retaliation sweeps more broadly than the proscription against discrimination." Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010) (citing Burlington, 548 U.S. at 66--67). Unlike discriminatory actions, retaliatory actions need not be employment related or occur in the workplace, to be prohibited by Title VII, Burlington Northern, 548 U.S. at 67, nor must they result in a "a materially adverse change in the terms or conditions of [one's] employment." Id. at 70. Nonetheless, not all forms of retaliation are actionable under Title VII. "The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Id. at 67. The injury or harm must be "material," meaning that it could "dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington Northern, 548 U.S.at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). Whether the retaliatory action could dissuade a worker from making a charge of discrimination is an objective standard based on how a reasonable employee would respond. Id. And, whether an action "is materially adverse depends upon the circumstances of the particular case, and 'should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.'" Id. at 71 (quoting Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 81 (1998)).
C. Hostile Work Environment
"To determine whether a hostile work environment exists, the court looks to the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee's work performance." Baloch, 550 F.3d at 1201. To prevail on a hostile work environment claim, a plaintiff must show that her employer subjected her to "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). The conduct must be sufficiently extreme to constitute an alteration in the conditions of employment, so that Title VII does not evolve into a "general civility code." Faragher v. City of Boca Raton, 524 U.S. 788 (1998). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id.
Ms. McLaughlin brings her claims under Title VII.*fn3 She alleges that she was discriminated against and/or retaliated against with respect to the following actions and events: 1) her application to attend the WILFE Conference was not forwarded to headquarters; 2) she did not receive a Department of Justice Community Service Award; 3) she did not receive an award for her work on the Orlando VCIT; 4) she received an unfavorable performance evaluations in 2008; 5) she received a time-off award, instead of cash award for her work on the Disney Pipe Bomb investigation; 6) she received a reduced time-off award for her work on Operation Kissimmee; and 7) she was "berated" by her boss, Mr. May. Each of Ms. McLaughlin's claims for discrimination fail as do most of her retaliation claims; ...