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Marlon Wise v. David S. Ferriero

February 3, 2012

MARLON WISE,
PLAINTIFF,
v.
DAVID S. FERRIERO, ARCHIVIST OF THE UNITED STATES NATIONAL ARCHIVES AND RECORDS ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Marlon Wise is a black employee of the U.S. National Archives and Records Administration. He contends in this lawsuit that NARA discriminated against him on the basis of race and retaliated against him for engaging in protected activity through a series of incidents that took place over the course of nearly five years. Defendant David Ferriero, the Archivist of NARA, has now filed a Motion to Dismiss or in the Alternative for Summary Judgment. Much of the Motion concerns discrete claims that the Court determines - and Wise concedes - were not raised in his Second Amended Complaint. The Court finds, however, that the two causes of action that Plaintiff has in fact brought in this case - a discrimination-based hostile-work-environment claim and a retaliation-based hostile-work-environment claim - do survive the present Motion.

I.Background

According to Plaintiff's Second Amended Complaint, which the Court must credit at this stage, Wise has been employed by NARA since October 2001. Second Am. Compl., ¶ 4. The events at issue in this case began in 2006 when Carlton Barnes, a black supervisor who was not then in Wise's chain of command, called him "a punk ass nigger" in the presence of Clarence Simmons, the white supervisor of both Wise and Barnes. See id., ¶ 6. Simmons did not address Barnes's use of the racial slur. See id., ¶ 8. Wise subsequently reported the incident to Simmons's supervisor, Doris Hamburg, and after Hamburg too failed to address the episode, he reported it to her supervisor, Michael Kurtz. See id. No one took action. See id.

After "Barnes learned that . . . Wise had reported the name calling incident to his supervisors," he twice sought to have Wise disciplined relating to "phony allegations of wrong-doing." Id., ¶ 9. The Human Resources department declined to discipline Wise, but did not admonish Barnes for having made allegedly false accusations. See id.

"The following year," Wise applied for promotions to two vacant positions in his work unit. See id., ¶ 10. After discovering that Wise was seeking these promotions, Barnes purportedly told Simmons that he "would rather resign his position with the federal government than to see [Wise] promoted." Id. Barnes was subsequently transferred to a new position and thereby became the selecting official for both of the vacancies Wise had applied to fill. See id., ¶ 11. Although he contends that he was "the most experienced applicant and the employee with the most . . . Outstanding evaluations," Wise was not selected for either position. See id.

By virtue of this transfer, Barnes also became Wise's direct supervisor. See id., ¶ 13. Upon learning that Barnes was to supervise him, Wise went to Kurtz seeking a transfer "on five or six occasions and also attended an outside mediation session to address his workplace concerns." Id. Kurtz, along with Hamburg, who was also present, refused to offer him a transfer. See id.

Once Barnes officially became Wise's supervisor, the situation did not improve. Barnes, Wise alleges, continued to harass him and was "repeatedly rude, impolite and otherwise hostile toward Plaintiff." Id., ¶ 12. In October 2008, Barnes arranged for every full-time permanent employee in his office except for Wise to receive two full days of training. See id., ¶ 15. Wise also suggests that he was expected to meet higher standards of production than other employees, see id., ¶ 17, and alludes to "other incidents of denial of training, denial of access to computers which he had frequently used for work before he protested the name calling incident, and other denials of opportunities to advance his career." Id., ¶ 22.

Wise also sought help from numerous individuals. He wrote letters to Simmons, his Congresswoman, and his union complaining of the harassment he believed he was suffering at Barnes's hands. See id., ¶¶ 14, 17. He contacted and requested assistance from, among others, the current Archivist, two former Archivists, NARA's Chief of Staff, and the Director of NARA's EEO office. See id., ¶ 23. These officials, however, "either denied that Plaintiff had a valid EEO claim . . . and/or mislead [sic] Plaintiff as to the proper administrative process to file an EEO claim and/or ignored Plaintiff's requests to address his EEO claims." Id., ¶ 25. He ultimately received some relief from the HR department, which agreed to temporarily detail Wise away from Barnes's supervision. See id., ¶ 19. Wise, however, was informed that HR would not be addressing Barnes's use of the racial epithet, which it wrote off as a "cultural thing." Id., ¶ 18.

Though Wise is no longer working under Barnes, he remains Wise's supervisor of record because the detail is only temporary. See id., ¶ 19. The opportunities for educational and career growth he had in his permanent position, moreover, are not available to him in the detail. See id., ¶ 20. He also claims that even since being detailed he has not received performance ratings or monetary awards he deserves. See id., ¶ 21.

In September 2009, Plaintiff, continuing his efforts to obtain redress from supervisory officials, attempted to deliver a letter expressing his concerns to the office of the then-Acting Archivist, Adrianne Thomas. See id., ¶ 33. After being told that Thomas was unavailable, he returned to his office. Id. About an hour later he tried again with the same result. See id. He then received a call from Kevin McCoy, who stated that he "was not to try to see, meet or give Ms. Thomas any letters. In fact, the staff in Ms. Thomas' area did not want [him] to come back to the fourth floor and if [he] did there would be actions taken against him." Id., ¶ 34 (alterations in original). He was later summoned to the Branch Chief's office and given formal notice that he would face disciplinary action if he were to approach Thomas's office again because "Thomas, who is white, and her staff . . . felt threatened by him." Id., ¶ 35.

Most recently, Wise contends that in 2010 Barnes wrongly omitted him from a list of employees who were to receive cash awards for their work on a project. See id., ¶ 37. Wise did ultimately receive the cash award, but only after having brought the issue to the attention of the EEO Office. See id., ¶ 37. He maintains that he was nevertheless harmed by having "missed the award ceremony and the positive recognition from co-workers and managers such participation in the ceremony would have provided him." Id.

Wise first contacted an EEO counselor on September 23, 2009, and he filed a formal complaint of discrimination on November 12, 2009. See id., ¶ 41. This complaint "assert[ed] discrimination on the basis of race and identifie[d] facts describing retaliation . . . and referencing the hostility he faces in the workplace." Id. NARA dismissed all claims brought therein, and Wise appealed the agency's decision to the EEOC. See id. The EEOC rendered its decision on August 5, 2010. Id. Wise filed a Complaint, which has since been twice amended, initiating the instant action on November 4, 2010. On December 6, 2010, Wise again initiated contact with NARA's EEO Office and subsequently filed a second formal complaint of discrimination. See id., ¶ 42. In this one, Wise "asserted both race and retaliation as bases for the unlawful treatment resulting in a hostile work environment." Id. NARA's EEO Office again dismissed Wise's complaint.

Ferriero has now filed a Motion to Dismiss or in the Alternative for Summary Judgment. The request for summary judgment relates only to the failure to exhaust discrete claims and whether the denial of an award was an adverse employment action. See Reply at 9. As these issues are ultimately moot, see ...


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