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Wise v. Ferriero

United States District Court, D. Columbia.

December 11, 2013

MARLON WISE, Plaintiff,
DAVID S. FERRIERO, Archivist of the United States National Archives and Records Administration, Defendant

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For MARLON WISE, Plaintiff: Gary T. Brown, LEAD ATTORNEY, RUCKER, BROWN AND HENRY, P.C., Washington, DC.

For DANIEL S. FERRIERO, Archivist of the United States, Defendant: John Peter Tavana, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE, DISTRICT OF COLUMBIA, Civil Division, Washington, DC; William Mark Nebeker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.


JAMES E. BOASBERG, United States District Judge.

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From 2006 to 2008, Plaintiff Marlon Wise, who is black, alleges that he was subjected to severe harassment, in violation of Title VII, at the hands of two managers in the microfilm lab at the National Archives and Records Administration. One manager -- Carlton Barnes, who is also black -- allegedly called Wise a " punk ass nigger," wrongly attempted to have him disciplined multiple times, and rejected him for a promotion. After Wise complained about Barnes, the other supervisor -- Clarence Simmons -- allegedly told him that he was " burning his bridges" by complaining, barred him from routine training opportunities, made sure he was denied yet another promotion, and deprived him of access to facilities he needed to advance in his career. Anxious to escape what he perceived as retaliation and racial hostility, Wise secured a detail to another lab around the end of 2008 and was later transferred to that office permanently. Although he remained unhappy with several aspects of his new job, the hostility from Barnes and Simmons ceased.

A couple of years after his transition to the new lab, Wise brought this suit formally complaining about his treatment at the hands of Barnes and Simmons, in addition to other, more recent slights. In a previous Memorandum Opinion, this Court permitted Wise to proceed only on his claims for a hostile work environment and not on any discrete claims of retaliation, which had not been exhausted. See Wise v. Ferriero (Wise I), 842 F.Supp.2d 120 (D.D.C. 2012). Defendant NARA now moves for summary judgment, arguing, inter alia, that Wise's transfer constitutes an intervening action that removed him from his prior, arguably hostile, work environment. Because the Court ultimately agrees both that the earlier, unexhausted incidents were not connected to later, exhausted ones and that no reasonable jury could find Wise's current environment hostile, it will grant NARA's Motion.

I. Background

Many of the facts in this case are disputed. On a motion for summary judgment, the Court takes the evidence of the non-movant -- here, Wise -- as true and views the facts in the light most favorable to him. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Wise began his career at NARA in 2001 as a technician and was later promoted to the position of microfilm-equipment operator. See Opp., Exh. 1 (Declaration of Marlon Wise I), ¶ 3; Mot., Exh. 2 (Deposition of Marlon Wise I) at 10:12-11:10. From 2001 to 2006, Wise's office environment in the microfilm lab was relatively placid. See Wise Decl. I, ¶ ¶ 4-5. His supervisors consistently evaluated him as " outstanding," and he was granted multiple promotions and performance awards. See id.; ECF No. 30-19 (Wise Awards) at 10-19. According to Wise, however, all of this " dramatically changed" in 2006. Wise Decl. I, ¶ 6.

Early that year, Wise attempted to speak with his second-level supervisor,

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Clarence Simmons, while Simmons was in conversation with the head of another microfilm lab. See Wise Depo. I at 17:15-20:2. After Wise interrupted the conversation and while Simmons's back was turned, the other supervisor -- Carlton Barnes -- allegedly told Wise he was a " punk-ass nigger." Wise Decl. I, ¶ 7. Barnes, like Wise, is black. See Wise Depo. I at 21:18-19. Understandably, the insult left Wise feeling hurt and offended, see Wise Decl. I, ¶ ¶ 9, 11, although he conceded in his deposition that, in his mind, there is " no racial slur" when the insult comes from " a black man to a black man." Mot., Exh. 3 (Deposition of Marlon Wise II) at 79:5-9. Wise first complained about this incident to Simmons, who claimed he had not heard the remark, but " if [he] had heard something like that, [he] would do something about it." Wise Decl. I, ¶ 12. In 2007, Wise notified Simmons's supervisor, Doris Hamburg, about the insult. See id., ¶ 13. No reprimand, apparently, was issued to Barnes.

Shortly after those conversations took place, Wise's immediate supervisor, Dorothy Gregory, informed Wise that he would not be trained on several new pieces of lab equipment, unlike other lab employees. See id., ¶ 14. He was also forbidden to take on any duties outside of filming and was barred from the quality-control lab. See id. Wise claims that these activities were necessary for him to advance in his career. See id. Gregory testified that Wise was not allowed to undertake some of these activities, such as working at the quality-control lab, because of complaints she had received from customers about Wise having a difficult personality. See Mot., Exh. 6 (Deposition of Dorothy Johnson-Gregory) at 34:7-38:10. She also averred that there was only one piece of equipment in the lab -- a microfilm scanner -- that Wise already knew how to use. See id. at 30:13-31:9, 32:7-13.

Wise nonetheless spoke to Gregory's supervisors about this alleged denial of training and eventually filed an EEO complaint. See Wise Decl. I, ¶ ¶ 15-17. Simmons, who was Gregory's supervisor, promised to remedy the lack of training, and the EEO complaint was ultimately withdrawn. See id., ¶ ¶ 18-19. Wise, however, later discovered that it was Simmons himself who had originally ordered Gregory to deny him training. See id. Unsurprisingly, then, even after Simmons had vowed to address the situation, Wise continued to receive fewer professional-development opportunities than his co-workers. See id., ¶ ¶ 20-21. Wise believes that Simmons was retaliating against him for complaining about the Barnes incident.

Around the same time that Wise's training was curtailed, Barnes approached him to ask about a microfilm job that had been stopped. See id., ¶ 22; Wise Depo. I at 40:3-45:11. Wise " ignored him because [Barnes] didn't know what he was talking about." Wise Depo. I at 44:13-14. As a result, Barnes became frustrated and tried to have Wise disciplined by writing him up; however, his attempts were unsuccessful because he was not in Wise's chain of command. See id. at 45:3-11; Wise Decl. I, ¶ 26.

Despite the fact that Barnes's attempt to punish him had failed, Wise insisted on speaking with Human Resources; with Hamburg, his third-level manager; and with Michael Kurtz, who is Hamburg's superior, about this latest incident. See Wise Decl. I, ¶ ¶ 24-29. He also expressed concern because he had heard rumors that Barnes might be taking over supervision of his lab, an outcome Wise did not desire. See id., ¶ 27. At this early juncture, while both Human Resources and Hamburg told him that nothing could be done, see id., ¶ ¶ 24-28, Kurtz said that he would at least

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speak with Simmons and Hamburg about the Barnes situation. See id., ¶ 29. Two days later, Simmons told Wise to stop complaining to managers like Kurtz and Hamburg because he " was burning his bridges." See id., ¶ 30. A month after this, Barnes attempted to discipline Wise by writing him up a second time. See id., ¶ 31. His attempt was rejected because, again, Wise was not under his supervision. See id.

In 2008, at least two vacancies were advertised in Wise's lab, both of which would have been promotions for him. See id., ¶ 32. He applied to both and believed he was the most qualified applicant from his lab. See id. Upon hearing that Wise was applying for the promotions, Barnes told him, " If you are selected for a promotion, I will retire from the federal government." See id., ¶ 33. In something of an ironic twist, however, Barnes was then appointed to a new position and became the hiring officer for at least one of the vacancies, which was a team leader position within the lab. See Wise Decl. I, ¶ 34; Supp. to Mot., Exh. 2 (Pl. Interrog. Resp.) at 7. As promised, Wise did not receive the promotion. See Wise Decl. I, ¶ 34. Simmons was involved in the hiring process for the other vacancy, which was a mechanical engineer position. See Pl. Interrog. Resp. at 7-8. Although Wise was initially deemed qualified for the spot, Simmons asked that his qualifications be reconsidered -- apparently, Simmons thought Wise had misrepresented his professional background and skill set. See id.; Opp., Exh. 16 (Simmons Email of Apr. 24, 2008). Wise was then determined to be unqualified, and the vacancy itself was withdrawn. See Pl. Interrog. Resp. at 7-8. A report later issued by NARA's Office of the Inspector General suggested that, in reality, Wise was not promoted because of his " poor interpersonal skills," since the leadership positions he applied for " would require increased daily interactions with personnel." See Reply, Exh. CC (Inspector General Report) at 2.

In October of 2008, Wise was again denied training -- this time, he missed out on a two-day session that all the other employees in his lab received. See Wise Decl. I, ¶ 37. He claims that Barnes was responsible for his exclusion. See id. When he complained to Hamburg and Kurtz about the missed training, he discovered that -- much to his dismay -- he was about to be transferred into a work group supervised by none other than Barnes himself. See id., ¶ 38.

Wise took up the Barnes issue with NARA's Labor Relations and Human Resources divisions. While Human Resources did not address the racial epithet -- calling it a " cultural thing" -- the Department did agree to detail Wise away from Barnes. See id., ¶ ¶ 41-42. From late 2008 or early 2009 on, then, Wise was working as a digital-imaging technician, separated from Barnes. See Wise Depo. I at 120:1-121:10. As part of the agreement to be detailed away from Barnes's microfilm lab, Wise agreed to meet a daily quota for converting hard-copy pictures into digital images. See Wise Decl. I, ¶ 44. None of his co-workers was subject to a quota. See id.

Since the day he was detailed, Wise has not interacted with Barnes. See Wise Depo. II at 13:9-12. Barnes does not evaluate his work, and Wise has not provided any evidence indicating that either Barnes or Simmons had any influence over Wise's work environment from late 2008 on. See Wise Depo. I at 82:23-24.

Despite having requested the detail to the digital-imaging lab, Wise remains dissatisfied. He contends that he does not receive the training, education, or growth opportunities that he would have received

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as a microfilm technician -- even though he had reached the top rung of his career ladder (a GS-8 ranking) and hence had limited opportunities in that position. See id. at 11:17-13:15; Wise Decl. I, ¶ 43. His new supervisor also gave him slightly lower job-performance ratings than he had received in the microfilm lab, breaking his previous string of " outstandings." See Wise Decl. I, ¶ 45; Wise Depo. I at 79:16-25. He has contested several of those ratings and had them raised somewhat. See Wise Depo. I at 79:16-25. He continues to receive " spot awards" and bonuses consisting of extra days off, but he avers that he has not received a cash award since entering the digital-imaging detail. See Wise Decl. I, ¶ 45. He speculates that this is because of his disagreement with Barnes, even though Barnes himself has never been responsible for evaluating Wise's performance. See id.; Wise Depo. I at 82:23-24. Wise's own evidence, however, shows that he did in fact ...

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