United States District Court, District of Columbia
James M. BROWN, Plaintiff,
Davita VANCE-COOKS, Acting Public Printer of the U.S. Government Printing Office, Defendant.
Theodore S. Allison, Karr & Allison, P.C., Washington, DC, for Plaintiff.
ROBERT L. WILKINS, District Judge.
Plaintiff James M. Brown (" Brown" ) has stated four counts against the Public Printer  of the U.S. Government Printing Office (" GPO" ), claiming discrimination by GPO based on Brown's age, sex, and race, as well as retaliation by GPO against
Brown for engaging in protected activity. Presently before the court is GPO's motion for summary judgment (Dkt. No. 31), on which the Court held a hearing on January 17, 2013. Upon careful consideration of the parties' briefs and the arguments presented by counsel, for the reasons stated below the GPO's motion will be GRANTED.
I. Factual Background
Brown filed his complaint in this action on June 30, 2010, stating four counts. (Dkt. No. 1). He alleges claims of race, sex, and age discrimination, as well as retaliation, based on a variety of interactions with his former supervisor Jeffrey Brooke (" Brooke" ).
GPO employed Brown for over 30 years, mostly as an Audio Visual Production Specialist; his last day there was September 30, 2008. ( Id. ¶¶ 4, 7, 8). GPO began a major reorganization around 2003 and placed Brown in a new section called the Employee Communications Office (" ECO" ). ( Id. ¶ 12). In July 2004, Brooke became ECO Director. ( Id. ¶ 13). Brooke is Caucasian; Brown is African American. According to Brown, at their first meeting Brooke made comments about his own homosexuality that Brown perceived as " odd." ( Id. ¶ 14). At the same meeting, Brown claims that Brooke spoke negatively about GPO's former Chief of Human Capital, which Brown later came to believe to be because the former Chief is African American. ( Id. ¶ 15).
Brown's complaint includes numerous allegations. He claims that in 2004 and 2005 Brooke unfairly divided GPO photography equipment, and also that there was an unequal distribution of work. (Dkt. No. 1, ¶¶ 18, 25, 33).  Brown alleges that on April 29, 2005, Brooke called him a " delivery boy" during a conversation about personally dropping off photos to GPO clients, which Brown found to be racist because of the use of the word " boy." ( Id. ¶ 35). Brooke disputed this account, stating that after he " suggested that since the rest of the team often delivered final products to their customers, [Brown] should do the same.... [Brown] angrily responded[,] ‘ [A]re you calling me a delivery boy?!’ " (Dkt. No. 34, at 21).
Brooke wanted Brown to move to the floor where Brooke and the remainder of the group worked in 2006. (Dkt. No. 1, ¶ 30). Brown complained to William Harris (" Harris" ), GPO's Chief Human Capital Officer, " and explained the discomfort he had working closely with Mr. Brooke because of his comments about homosexuality." ( Id. ). Harris said there was nothing he could do, so Brown then met with Nadine Elzy, GPO's Director of the Equal Employment Office (" EEO" ). Elzy convinced Brooke to allow Brown to remain on his current floor. ( Id. ¶¶ 30-31).
Brown received a " fully successful" review for fiscal year 2007 in early September 2007, but the review contained some caveats. ( See Dkt. Nos. 35-16, 35-18).
The review notes that Brown " did not adhere" to certain requirements, and " that similar performance in FY08 will not be rated as fully successful." (Dkt. No. 35-16, at 1). On September 11, 2007, Brooke sent Brown a performance plan for fiscal year 2008. ( See Dkt. No. 35-19). Brown responded a few days later, stating in part [sic]: " I no longer know what my duties are let me make something clear to you right now I am not somekind of personal (SLAVE BOYTOY) if you think you gonna Pimp me you must be crazy telling me I better communicate with Creative Services Designers, respect my peers. think you gonna Pimp me. you want a BoyToy go someplace else." (Dkt. No. 35-18, at 2). Brown contacted Harris and Nadine Elzy of EEO in September 2007 after these events regarding what he perceived as unfair treatment. ( See Dkt. No. 35-8). He told Brooke he was doing so. (Dkt. No. 35-18, at 3).
Brooke alleged certain specific problems with Brown's performance in early December 2007 ( see Dkt. No. 31-8, at 8-9), and things deteriorated quickly. Brown worked at an event on December 12, 2007, where he says his photographic equipment stopped working suddenly. (Dkt. No. 34, at 15). The Defendant claims that the equipment was subsequently tested and found to work, but set to the wrong modes. (Dkt. No. 31-1, at 6). A report from a GPO Grievance Committee later concluded that Brown " had not adequately prepared the equipment for the event since he had not taken sufficient measures to prepare the backup equipment in advance." (Dkt. No. 35-23, at 2). The Defendant also claims that Brown took GPO property out of the building without permission; Brown claims he merely put a personal memory card in a GPO camera with home photos from Thanksgiving by accident, not that he ever took the camera out of the office. (Dkt. No. 1, ¶¶ 40-41). Regarding a separate event on December 15, 2007, the Defendant contends that Brown failed to attend a standard pre-event briefing, showed up late, and missed key photos. (Dkt. No. 31-1, at 6-7). The same Grievance Committee report concluded that Brown's " actions resulted in an unacceptable work product" from the December 15 event. (Dkt. No. 35-23, at 2).
In January 2008, Brown received a notice of proposed removal from Brooke, which included information about several of the issues from December 2007. ( See Dkt. No. 31-5). Brown contacted the EEO the same day. (Dkt. No. 31-8, at 5). On February 15, 2008, Brown filed a Formal Complaint of Discrimination, alleging race and sex discrimination. (Dkt. No. 31-9). On February 28, 2008, Brooke formally proposed Brown's removal. (Dkt. No. 31-6). Upon further review, including an appeal through the American Federation of Government Employees (" AFGE" ) Union grievance process, the penalty of removal was deemed far too severe and Brown received a three-day paper suspension. (Dkt. No. 35-23). The Grievance Report concludes: " It is hoped that by having the gravity of this matter brought to his attention [, Brown] will correct his future performance without additional discipline." ( Id. ). On his May 2008 performance evaluation, Brown received unsatisfactory feedback on photographic quality, scanning, and customer satisfaction. (Dkt. No. 34-1, ¶ 25).
As of May 1, 2008, Brooke placed Brown on a Performance Improvement Plan (" PIP" ). (Dkt. No. 31-11). Brown's union " agree[d] with the implementation of the performance plan." (Dkt. No. 31-14, at 2). Initially proposed to run through July 2008, the PIP was later extended through September because, according to Brown, he " had become very ill and was under a doctor's care due to the harassment and
stress placed on him by Mr. Brooke." (Dkt. No. 1, ¶ 50). On August 5, 2008, Brooke issued Brown a notice of proposed removal for not successfully performing under the PIP. (Dkt. No. 31-12). GPO stated " [t]he quality of the photographs Mr. Brown submitted for review were unacceptable 69% of the time; Plaintiff did not meet the scanning goals set for him even though they were actually reduced during the PIP; customer satisfaction scores did not improve because Mr. Brown did not meet with agency clients before the events he photographed, and the photographs he produced were of insufficient quality." (Dkt. No. 31-1, at 8-9). The proposed removal was approved by GPO's Chief Technology Officer " because the record demonstrated that Plaintiff's unacceptable performance did not improve despite GPO's repeated efforts to help the Plaintiff meet those performance improvement goals." ( Id. at 9). Plaintiff retired from GPO on September 30, 2008, claiming he did so " under duress." (Dkt. No. 31-16). On November 14, 2008, Brown filed an EEO complaint alleging that Brooke discriminated against him because of his race, color, religion, national origin, sex, and age, and also alleging retaliation. (Dkt. No. 31-17).  On that EEO complaint he wrote: " I know that I passed the PIP program." ( Id. ).
Brown filed his complaint in this action on June 30, 2010. (Dkt. No. 1). After the completion of discovery, GPO moved for summary judgment on July 12, 2012. (Dkt. No. 31). The Court held a hearing on the motion on January 17, 2013.
II. Summary Judgment Standard
Summary judgment is appropriate when the moving party demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Moore v. Hartman,571 F.3d 62, 66 (D.C.Cir.2009) (citing FED. R. CIV. P. 56(c) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of material fact exists if the evidence " is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. " The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505. The nonmoving party cannot simply rely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 ...