United States District Court, District of Columbia
BILLY R. GREEN, Plaintiff,
JEH C. JOHNSON, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, Defendant.
CHRISTOPHER R. COOPER United States District Judge
it or not, this federal employment discrimination
case stems entirely from a bag of peanuts. In February 2011,
Plaintiff Billy Green, an Immigration and Customs Enforcement
(“ICE”) deportation officer, attempted to
purchase the snack at a liquor store near Washington's
Union Station. Purportedly dissatisfied with how the
cashier returned his change, Green upbraided the clerk and
the store manager, both of whom are Hispanic, asking if they
spoke English and flashing his ICE business card. Another
store employee later complained to ICE that Green had tried
to intimidate her and her co-workers. A subsequent
investigation by the agency's Office of Professional
Responsibility failed substantiate the intimidation charge,
but found that Green had engaged in “conduct
unbecoming” of an ICE officer by “us[ing] his
government identification for other than an official
purpose.” Def.'s Statement of Facts ¶ 13. An
ICE disciplinary panel recommended that Green receive a
five-day suspension. Id. ¶ 18. The deciding
agency official mitigated the penalty to a letter of
reprimand, which was never placed in Green's personnel
file. Id. ¶ 22-23.
content to leave well enough alone, Green, who is black,
filed an employment discrimination suit against the Secretary
of the Department of Homeland Security (“DHS”),
in his official capacity, under Title VII of the Civil Rights
Act of 1964 (“Title VII”). Green alleges that ICE
disciplined him because of his race and in retaliation for
his participation in a co-worker's discrimination claim.
He further contends that his reprimand has unfairly
disqualified him from professional advancement opportunities,
a phenomenon that he claims disproportionately affects
African-Americans within the agency. Finally, he vaguely
complains of experiencing a hostile work environment during a
previous tenure in ICE's Newark, New Jersey field office.
Discovery having been completed, DHS moves to dismiss
Green's Amended Complaint or, in the alternative, for
summary judgment. Finding Green's claims to be wholly
unsubstantiated, the Court has little trouble granting
summary judgment in favor of the agency.
discovery has been completed and the Court will rely on
evidence in the record (or lack thereof), it will apply the
standards for summary judgment under Rule 56 in deciding the
motion. “One of the principal purposes of the summary
judgment rule is to isolate and dispose of factually
unsupported claims or defenses.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). The Court shall
grant summary judgment if “there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
non-moving party may oppose summary judgment using “any
of the kinds of evidentiary materials listed in Rule
56(c).” Thomas v. Dist. of Columbia, No.
13-cv-1087, slip op. at 6 (D.D.C. Sep. 16, 2016) (quoting
Celotex, 477 U.S. at 322-23). This evidence includes
materials found in the record, such as “depositions,
documents, electronically stored information, affidavits or
declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” Fed.R.Civ.P. 56(c)(1).
And like a motion under Rule 12(b)(6), the Court is obligated
to review the “[u]nderlying facts and inferences . . .
in the light most favorable to the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
VII claim can survive summary judgment if the plaintiff
presents direct or circumstantial evidence of discrimination.
Dunaway v. Int'l Bd. of Teamsters, 310 F.3d 758,
763 (D.C. Cir. 2002). If the plaintiff relies upon the
latter, the Court turns to the familiar three-part framework
established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973). The plaintiff must first establish a
prima facie case of discrimination. Once the plaintiff does
so, the employer must put forward a nondiscriminatory reason
for the adverse employment decision. The Court must then
assess whether the jury could infer from the plaintiff's
evidence that the employer's reason is merely pretext for
discrimination. Id.; Brady v. Office of Sergeant
at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).
Discrimination and Retaliation Claims
Amended Complaint contains two counts. Count I asserts a
claim of race discrimination based on the purported
unfairness of Green's reprimand and its negative effect
on his career advancement. Amend. Compl. ¶¶ 71-83.
Count II alleges that ICE disciplined Green in retaliation
for having provided a declaration and testimony in support of
a co-worker's discrimination claim. Amend. Compl.
the discrimination claim, the reprimand itself is not an
actionable adverse employment action under Title VII. An
employee suffers an adverse employment action “if he
experiences materially adverse consequences affecting the
terms, conditions, or privileges of employment or future
employment opportunities such that a reasonable trier of fact
could find objectively tangible harm.” Forkkio v.
Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). And
“[i]n this Circuit, a letter of counseling, written
reprimand, or unsatisfactory performance review, if not
abusive in tone or language or a predicate for a more
tangible form of adverse action, will rarely constitute
adverse action.” Herbert v. Architect of the
Capitol, 839 F.Supp.2d 284, 302 (D.D.C. 2012) (citing
Hyson v. Architect of Capitol, 802 F.Supp.2d 84, 102
(D.C. Cir. 2011)). Perhaps recognizing this, Green argues
that the reprimand disqualified him from subsequent promotion
opportunities. Amend. Compl. ¶ 77. Even so, the
government has produced uncontested evidence that the
reprimand was never placed in Green's personnel file and
therefore could not have been considered in any decisions
involving positions for which he may have applied. Def.'s
Statement of Facts ¶ 34; Def.'s Mot. Summ. J.
(“MSJ”), Ex. 9.
event, Green has failed to offer any evidence to suggest that
ICE's decision to reprimand him was tainted by
discrimination. The only evidence he provides are transcript
excerpts from the depositions taken during discovery, of
himself and the three individuals involved in the
disciplinary process. Without reference to any specific
deposition testimony, Green offers the conclusory statement
that “[t]he depositions in this case will . . .
substantiate all of these race based actions and
events.” Pl.'s Opp'n Def.'s MSJ
(“Pl.'s Opp'n”) 3. Not so. The
depositions contain no evidence whatsoever that ICE's
legitimate, non-discriminatory reason for reprimanding
Green-his misuse of his ICE business card-was pretext for
discrimination. See id., Exs. B-D. The Court will
therefore grant summary judgment for DHS on Count I.
retaliation claim is equally flawed. Most immediately, each
of the ICE employees who participated in the disciplinary
process testified that they were unaware that Green had
participated in prior EEO activity, and Green offers no
evidence to the contrary. Def.'s Statement of Facts
¶ 32. The Court will therefore grant summary judgment
for the agency on Count II as well.
Hostile Work Environment Claim
not included as a separate count, the Amended Complaint
suggests that Green was subjected to a hostile work
environment during a previous tenure-of unstated duration-in
ICE's Newark field office. Green specifically alleges
that he “witnessed a swastika drawn prominently in the
workplace.” Amend. Compl. ¶ 58. He further claims
that a co-worker “made [him] aware” that a noose
had been displayed in a “racially charged manner”
and that racial insults were still occurring after he left
the Newark office. Id Even assuming that these
alleged instances of conduct are sufficiently pervasive to
make out a hostile work environment claim, ...