United States District Court, District of Columbia
WILLARD T. KING, JR., Plaintiff,
ERIC HIMPTON HOLDER, JR., et al., Defendants.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Plaintiff Willard T. King, Jr., filed suit against Attorney General Eric H. Holder, Jr., and Tam Mary Wyatt, alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. §§ 1981, 1988, arising out of Plaintiff’s employment as a Criminal Investigator/Deputy United States Marshal in Washington, D.C. Plaintiff alleges that his former supervisor, Defendant Wyatt, discriminated against him on the basis of his race, and retaliated against him for filing discrimination complaints. The Court previously granted in part Defendants’ partial motion to dismiss, dismissing portions of Plaintiff’s racial discrimination and retaliation claims, and dismissing Plaintiff’s hostile work environment and common law tort claims in full. Plaintiff subsequently filed an Amended Complaint and Defendants filed a motion to dismiss the Amended Complaint. The Court dismissed the majority of Plaintiff’s claims leaving only Plaintiff’s racial discrimination claim based on Defendant Wyatt initiating an Office of the Inspector General investigation into Plaintiff in 2010 and Plaintiff’s retaliation claim as it relates to Plaintiff’s protected activity in 2008. Presently before the Court is Defendants’  Motion for Summary Judgment. Upon consideration of the pleadings,  the relevant legal authorities, and the record as a whole, the Court finds that Plaintiff has raised a genuine issue of material fact as to his discrimination claim, but failed to produce sufficient evidence for a reasonable jury to find that Defendants retaliated against Plaintiff. Accordingly, Defendants’ Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART.
A. Factual Allegations
The following facts are drawn from Defendants’ Statement of Material Facts as to which there is No Genuine Dispute. Plaintiff has failed to comply with Federal Rule of Civil Procedure 56(c)(1) and Local Civil Rule 7(h) and provide a “statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated.” LCvR 7(h)(1). Accordingly, the Court will cite to Defendants’ Statement of Material Facts, but nevertheless note if Plaintiff disputes any of Defendants’ factual allegations in his Opposition to Defendants’ Motion for Summary Judgment.
Plaintiff is an African American male who, since 2005, has been employed as a Criminal Investigator/Deputy United States Marshal assigned to the District of Columbia Superior Court in Washington, D.C. Defs.’ Stmt., ECF No. [43-2], ¶¶ 1, 2; Am. Compl., ECF No. , ¶¶ 4, 7. In October 2007, Defendant Wyatt, a Supervisory Deputy U.S. Marshal, became Plaintiff’s supervisor. Defs.’ Stmt. ¶ 3. On March 6, 2008, the U.S. Marshals Service Office of Inspection, Internal Affairs (“IA”) received an allegation from Wyatt that Plaintiff “submitted time and attendance records inconsistent with District of Columbia Superior Court attendance records.” Id. ¶ 6. On March 12, 2008, this allegation was referred to the Department of Justice’s Office of Inspector General (“OIG”). Id. ¶ 7. OIG declined to investigate Wyatt’s misconduct allegation and referred the allegation to IA for investigation. Id. On May 5, 2008, Chief Inspector Stanley Griscavage determined that the allegations against Plaintiff were unsubstantiated based on a review of the investigative file evidence and issued a letter of closure. Id. ¶ 8.
In November 2008, Plaintiff claims to have learned of a conversation between Defendant Wyatt and Deputy U.S. Marshal Lorne Stenson that purportedly took place in February 2008 in which Defendant Wyatt made discriminatory remarks. Id. ¶ 9; Am. Compl. ¶ 20. Upon learning of the conversation, Plaintiff contacted the U.S. Marshals Service’s Equal Employment Opportunity (“EEO”) office. Defs.’ Stmt. ¶ 9. On November 25, 2008, Plaintiff filed a formal EEO complaint. Id. Plaintiff’s complaint was dismissed, but Plaintiff was granted an appeal to reopen the complaint in November 2009. Id. ¶ 10.
According to Defendants, on April 1, 2009, the U.S. Marshals Service’s Office of Compliance Review sent formal notification to the District of Columbia Superior Court regarding its Compliance Review scheduled for May 4, 2009. Id. ¶ 12. As part of the pre-review process, premium pay records, including overtime records, were queried. Id. ¶ 13. The queried pay records indicated an “unusually high amount of overtime paid” at the District of Columbia Superior Court. Id. Upon further review, the pay records indicated that overtime paid to Plaintiff exceeded other deputies from fiscal year 2007 to 2009. Id. ¶ 14. According to Defendants, on April 13, 2009, IA “used this pre-review material as the basis to open an investigation of King” and “to refer the investigation to the DOJ OIG.” Id. ¶ 15. Defendants note that Wyatt’s March 6, 2008, complaint was among the documents reviewed by OIG. Id. ¶ 17. On August 20, 2009, DOJ OIG opened an investigation of Plaintiff. Id. ¶ 16.
Both parties appear to agree that as a result of the OIG investigation ongoing in 2010, Plaintiff’s career-ladder promotion to GS-11, which Plaintiff expected to receive in April 2010, was “held up.” Pl.’s Opp’n at 4; see also Defs.’ Stmt. ¶¶ 21-23; Am. Compl. ¶ 24. Plaintiff filed an EEOC complaint on August 30, 2010 alleging that Wyatt initiated the OIG investigation to prevent Plaintiff from receiving a promotion to GS-11. Defs.’ Stmt. ¶ 24.
B. Procedural History
Plaintiff filed suit on February 28, 2012, alleging five counts: (1) discrimination based on his race; (2) hostile work environment also based on Plaintiff’s race; (3) unlawful retaliation; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress. See generally Compl., ECF No. . Defendants moved to dismiss portions of the Complaint. After the parties briefed Defendants’ motion, the Court granted Defendants’ partial motion to dismiss, leaving only Plaintiff’s Title VII discrimination claim based on the 2010 OIG investigation in Count I, and Count III as to retaliation under Title VII based on protected activity after 2007. Mem. Op. (April 24, 2013), ECF No. , at 13. Plaintiff subsequently filed an Amended Complaint and Defendants filed a second motion to dismiss. The Court granted Plaintiff leave to file his Amended Complaint, but found that the revised allegations still failed to state a claim as to many of Plaintiff’s counts. Mem. Op. (June 20, 2013), ECF No. , at 13. The Court did, however, find that Plaintiff “stated a claim for racial discrimination based on Defendant Wyatt initiating an OIG investigation into the Plaintiff in 2010.” Id. The Court also did not dismiss “Plaintiff’s retaliation claim as it relates to the Plaintiff’s protected activity in 2008” because Defendants did not challenge the adequacy of the allegations in support of this claim. Id. at 13-14. Defendants now move for summary judgment on these two remaining claims. As Plaintiff has filed an Opposition and Defendants have filed a Reply, Defendants’ motion is now ripe for review.
II. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine, ” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record – including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence – in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of ...