United States District Court, District of Columbia
[Copyrighted Material Omitted]
For EARNEST DURANT, JR, Plaintiff: DeAnna S. Schabacker, Michael D.J. Eisenberg, LEAD ATTORNEYS, LAW OFFICE OF MICHAEL D.J. EISENBERG, Washington, DC.
For DISTRICT OF COLUMBIA GOVERNMENT, Defendant: Kerslyn D. Featherstone, Shermineh C. Jones, LEAD ATTORNEYS, OFFICE OF ATTORNEY GENERAL, Washington, DC.
AMY BERMAN JACKSON, United States District Judge.
In this action, plaintiff, Earnest Durant, Jr., alleges that his former employer, the District of Columbia Government Department of Corrections (" DOC; " " department" ), retaliated against him for prior protected activities and subjected him to a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, as amended (" Title VII" ), 42 U.S.C. § 2000e et seq.  Before the Court is defendant District of Columbia's motion for summary judgment, [Dkt. # 67], as well as a motion to strike a supplemental Rule 26(a)(2) statement that plaintiff filed out of time, [Dkt. # 79]. While the Court finds that plaintiff has identified at least one action by his employer that is sufficiently adverse to be actionable under Title VII, he has failed to demonstrate that a reasonable jury could find that defendant's justification for that action is mere pretext and that the real reason was retaliation for plaintiff's prior protected activities. The Court also finds that plaintiff has failed to demonstrate that there is a genuine dispute of material fact as to whether he was forced to endure a hostile work environment in retaliation for his filing of Title VII claims. At bottom, plaintiff has done very little to supply the Court with the facts that are needed at this point in the proceedings, and he simply reiterates his allegations. Accordingly, the Court will grant summary judgment for defendant in full and will deny the motion to strike as moot.
The following facts are undisputed, except where noted.  At all times relevant
to this case, plaintiff was employed with the DOC. Durant Dep., Ex. 1 to Def.'s Mot. for Summ. J. (" Def.'s Mot." ) [Dkt. # 67-4] at 9:9-13, 28:19-22. He eventually attained the position of a Grade 11 Criminal Investigator in the Warrant Squad in 2001, following his participation in the class action, Neal v. Director, Department of Corrections, Civil No. 93-2420, (D.D.C.). Durant Dep. at 9:9-13; Exs. A.1, A.3 to Pl.'s Opp. [Dkt. # 69-5, 69-7]. In that case, another court in this district found in favor of a class of male and female employees of the DOC who suffered retaliation for opposing the department's practices of sexual harassment. Neal v. Director, Civ. A. No. 93-2420 (RCL), 1995 WL 517248, at *1 (D.D.C. Aug. 9, 1995). 
On June 14, 2007, plaintiff was placed on administrative leave based on allegations that he had permitted an unauthorized person to enter the DOC office to make photocopies of union documents the day before. Notice of Administrative Leave, Ex. B to Pl.'s Opp. [Dkt. # 69-8]; Memorandum from Wanda Patten to Devon Brown Regarding Unauthorized Use of Office Xerox Machine, Unauthorized Admittance of Personnel to the OIA, Ex. C to Pl.'s Opp. [Dkt. # 69-9]; Am. Compl. ¶ ¶ 16-18. In the wake of that employment action, plaintiff began filing unfair labor complaints with the Public Employee Relations Board (" PERB" ) and later, discrimination complaints with the D.C. Human Rights Commission (" DCHRA" ) and the United States Equal Employment Opportunity Commission (" EEOC" ). Those complaints and the allegations therein are summarized below. Also summarized are the remaining adverse actions that plaintiff claims to have suffered :
o June 27, 2007: Plaintiff filed an unfair labor practice complaint with the PERB, challenging his administrative leave. See Durant v. District of Columbia Dept. of Corr., Case Nos. 07-U-43 & 08-U-57, Opinion No. 1286, at 1 (PERB May 30, 2012). 
o August 1, 2007: Plaintiff filed a second unfair labor practice complaint with the PERB, which was consolidated with the first. Id. at 3.
o August 10, 2007: According to the findings of the PERB, plaintiff was informed that he should return to work on August 13, 2007, based on an internal investigator's conclusion that no discipline should be imposed for the June 13 incident. Id. at 10. However, he was told to report to the records office at the D.C. Jail instead of the OIA headquarters at 300 Indiana Avenue Northwest. Id. at 10-11.
o August 13, 2007: According to the findings of the PERB, plaintiff was reassigned to the Community Corrections
Office at Department headquarters in the Grimke Building, located at 1923 Vermont Avenue Northwest. Id. at 11.
o October 17, 2007: Plaintiff submitted a " memorandum" to Fred Staten, whom he identifies as the EEOC Coordinator for DOC. The memorandum states that " [a]ttached is an EEOC Complaint to be filed against the Department of Corrections . . . ." The memorandum concerns the June 13, 2007 photocopy incident, the June 14 to August 13, 2007 period of administrative leave, the transfer out of the Warrant Squad Offices, and DOC's refusal to furnish plaintiff with documents about the internal investigation of the photocopy incident that plaintiff claimed he needed in order to " pursue this serious matter through other appropriate channels including EEOC and PERB on charges of discrimination and retaliation." Ex. E to Pl.'s Opp. at 1-3. While Durant recites the word " discrimination" in his memorandum, he does not make any references to his status as a member of a protected class or to any actions supposedly taken against him on those grounds; like the PERB complaints, the focus of the memorandum was the administrative leave and the events that transpired thereafter. See id.
o October 31, 2007: Plaintiff submitted a second " memorandum" to Fred Staten. Id. at 4- 6. The memorandum states, " [t]his complaint is filed under the provisions of the Human Rights Act of 1977 [concerning " coercion or retaliation" ] . . . against Supervisory Criminal Investigator Wanda Patten[.]" Id. at 4. It alleges " coercion or retaliation" and states that the complaint " concern[s] an alleged incident which in part is based upon retaliation for being involved in protected activities . . ." and the department's refusal to furnish him with documents from the internal investigation of the photocopy incident. Id. at 4. 
o November 9, 2007: Plaintiff submitted a third " memorandum" to Fred Staten. Id. at 8-10. The memorandum states that it is being filed " under the provisions of the Human Rights Act of 1977 [concerning 'coercion or retaliation'] . . . and is filed against Supervisory Criminal Investigator Wanda Patten[,] Department of Corrections Internal Affairs Division and against the Department of Corrections in the support of her continued actions[.]" Id. at 8. It addresses the same workplace grievances addressed in the previous memoranda, as well as other allegations of workplace grievances. Id. at 8-10.
o November 14, 2007: Plaintiff submitted a fourth " memorandum" to Fred Staten. Id. at 11-13. Again, the memorandum states, " [t]his complaint is filed under the provisions of the Human Rights Act of 1977" concerning " [c]oercion or [r]etaliation." Id. at 11. This memoranda was filed against Wanda Patten and Devon Brown, who is identified as the Director of the Department of Corrections. Id. It addresses the same workplace grievances addressed in the previous memoranda, as well as other allegations of workplace grievances.
It stated that the complained-of actions were " based solely upon my participation into legally protected activities." Id. at 12.
o November 28, 2007: Plaintiff submitted his first memorandum to the D.C. Office of Human Rights (" DCOHR" ). Id. at 14-15. The memorandum states that " [attached is a copy of the Resolution Letter, dated November 15, 2007 from Mr. Fred Staten, EEO Officer . . . and in accordance with provisions of the Human Rights Act of the District of Columbia, my complaint is being forwarded for further action in that agency . . . ." Id. at 14. The memorandum first describes the memoranda that plaintiff had submitted to Fred Staten. It further states that " I am a member of a prior 'protected group' action filed against the Department of Corrections [in Bessye Neal ] and am concerned over this action as a continuation of the retaliation and disparate treatment continued to be received as a result of my participation." Id. at 15. Attached to the memorandum is a " resolution letter" from Fred Staten, addressed to plaintiff, dated Nov. 15, 2007. It is signed by Staten and plaintiff. The resolution letter explains that plaintiff met with an EEO officer on November 15, 2007 and was provided with a copy of the documents that he had requested (a copy of the Investigation Report and the eight attachments). Id. at 16. It also provides that if plaintiff believes the agency has not complied with the terms of the informal resolution, he must contact the DCOHR within fifteen days of the final interview and file a formal complaint. Finally, it states that the signatures on the document signify that both parties have agreed to the terms of the informal resolution of the dispute. Id. at 15.
o December 9, 2007: Plaintiff submitted a memorandum to the Washington Field Office of the EEOC and to Mr. Alan Balaran, Esq. Id. at 18-20. The memorandum states that " [t]his is a request that a formal complaint be filed against the District of Columbia Government, Department of Corrections and specifically against Devon Brown, Director, Patricia Britton, Deputy Director, Joan Murphy Office of Special Projects and Wanda Patten, Supervisor Internal Affairs[.]" Id. at 18. It alleges that the June 14 administrative leave and the post-August 13, 2007 transfer of offices were imposed in retaliation for plaintiff's Neal activities. Id. at 19-20.
o April 1, 2008: Plaintiff submitted a memorandum to the Washington Field Office of the EEOC, Balaran, and the DCOHR, which is labeled " Amended EEOC Complaint." Id. at 21-22. It requests that the December 9 " complaint" be amended to reflect " continued retaliation that has adversely affected my terms and conditions of employment within the Department of Corrections . . . and a deliberate refusal by Devon Brown, Director Department of Corrections to resolve approximately four (4) separate complaints filed under provisions of the Human Rights Act of 1977." Id. at 22.
o August 1, 2008: Plaintiff submitted a memorandum to the Washington Field Office of the EEOC, which is labeled " 2d Amended Equal Employment Opportunity Complaint." Id. at 25-27. It requests that his December 9, 2007 " complaint" be amended to " include continued and
additional violations of Section 704(a), Title VII of the Civil Rights Act of 1964. The Civil Rights Act of 1871 Title 42 Section 1983 U.S.C. and the Age Discrimination in Employment Act (AEDA) [sic] Public Law 20-2272[.]" Id. at 27. In addition to recounting the same incidents described in the December 9 memorandum, it alleges that the same people named in the previous complaint engaged in " continued disparate treatment and other unlawful employment practices, which individually, collectively, maliciously and illegally over a period of time, have deprived [him] of [his] rights under color of law, directed, allowed, encouraged and participated in an [sic] more sophisticated, severe, recurring and pervasive pattern and practice of retaliation, reprisals, creation of a disparate, discriminatory and dual standard hostile work environment, issuance of and involvement of defamatory statements or actions that has deliberately deprived [him] of equal employment opportunities, intentionally inflicted extreme and severe emotional distress." Id.
o January 27, 2009: Plaintiff submitted a memorandum to Eugene T, Reed Jr., EEOC Intake Officer for the Washington Field Office of the EEOC, which indicates that it is intended to be a third amended complaint to the EEOC. Id. at 28-34. The memorandum explains that plaintiff had not received any response " concerning the status of [his] complaint[.]" Id. at 29. It further alleges that the allegedly " discriminatory and retaliatory practices of Respondent Department of Corrections . . . still continue[.]" Id. It also requests that the December 9 " complaint" be amended to include new and continued allegations of discrimination on the basis of age and retaliation on the basis of testimony given in hearings before the Public Employees Relations Board in 2008. Id. Although it provides a detailed description of his alleged mistreatment through August 2007 transfer of offices, it states only that " [w]ithout going into any further details, these actions have continued to this date." Id. at 33.
o January 6, 2010: Plaintiff filed his original complaint in this action. [Dkt. # 1].
o March 6, 2010: Plaintiff filed an official Charge of Discrimination with the EEOC, which alleges discrimination based only on retaliation. Attach. 1.H to Ex. 6 to Def's Mot. [Dkt. # 67-4]. It recounts that plaintiff filed " an Amended EEOC Charge Form 5, EEOC Complaint Number 570-2008-00315" on August 13, 2009, which contained allegations that he " had been retaliated against by the Department of Corrections as a result of 'prior' and 'current' participation into 'protected' activities[.]" Id. at 1. It also recounts that on October 10, 2009, plaintiff received a right to sue letter dated October 6, 2009.  It further alleges that " [a]s a direct result of filing a federal EEOC civil suit before the U.S. District Court on January 6, 2010 . . . I was the object of additional acts of retaliation and reprisals." Id. at 2. It alleges that on February 5, 2010, Wanda Patten effectively revoked his police arrest powers. It also alleges that plaintiff was deprived of and
denied promotions on four separate occasions. Finally, it acknowledges that on May 28, 2009, plaintiff was transferred back to the warrant squad offices in accordance with the report and recommendation of a hearing examiner in his case before the PERB, who had found that the transfer away from those offices had been conducted in retaliation for his union activities. Id. at 3. The charge alleges that despite this, he was still physically separated and isolated from the internal affairs offices and the other investigators and clerical staff, and he was denied equal access to any of the vehicles assigned to the Internal Affairs Section. Id. at 3-4.
o May 25, 2010: Plaintiff was notified that his position would be terminated pursuant to an upcoming reduction in force (" RIF" ), and he was placed on administrative leave. Ex. K to Pl.'s Opp. [Dkt. # 69-18] ¶ 9.
o July 2, 2010: Plaintiffs employment was terminated. Pl.'s Opp. at 11.
o August 3, 2010: Plaintiff filed an appeal of the RIF with the District of Columbia Government Office of Employee Appeals (OEA Case number 2401-0354-10). Pl.'s Opp. at 12.
o November 6, 2010: Plaintiff filed an employment intake questionnaire with the DCOHR. Att. 1.F to Ex. 6 to Def.'s Mot. [Dkt. # 67-4]. The form states " Completing this intake questionnaire does not constitute the filing of a discrimination charge." Id. at 1. On the form, plaintiff indicated that he was discriminated on the basis of age based on the following issues: retaliation, discharge, promotion, hostile work environment, failure to hire, violation of the district priority re-employment program preferences, and violation of federal veterans preference program. Id. at 4.
o November 19, 2010: Plaintiff filed a formal EEOC Charge of Discrimination based on retaliation. Although the cover page for the charge is attached to defendant's motion for summary judgment as page seven of Attachment 1.F to Exhibit 6, and the signature page is attached to plaintiffs opposition to the motion for summary judgment as page fifteen of ...