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Harris v. McDonald

United States District Court, District of Columbia

September 19, 2017

ROBERT MCDONALD, Secretary, Department of Veteran Affairs, Defendant.



         Plaintiff Herbert Harris was a food-service worker at the Department of Veteran Affairs Medical Center here in Washington. He brings this pro se action against the VA, alleging that it discriminated against him on the basis of sex and retaliated against him after he complained about the discrimination. Plaintiff further contends that the Equal Employment Opportunity Commission Administrative Judge improperly dismissed his case without a hearing. The Agency has now filed an unopposed Motion for Summary Judgment. After an independent review of the record, the Court finds that there is no genuine issue of material fact and therefore grants the Motion.

         I. Background

         Because Harris did not file an opposition to the instant Motion, the Court draws the following facts from the record, accepting as true all of Defendant's supported factual assertions. See Fed.R.Civ.P. 56(e)(2); Winston & Strawn, LLP v. McLean, 843 F.3d 503, 509 (D.C. Cir. 2016).

         Plaintiff worked as a part-time Wage Grade 1 (WG-1) Food Service Worker for the VA under the supervision of two women, Renea Fortune and Cecilia Magnetti. See Def. MSJ, Exh. 3 (Administrative Record) at 80 (Administrative Judge Decision). WG-1 Food Service Workers are assigned to one of three units, depending on the need: (1) serving line/dining room; (2) dishwashing; or (3) food preparation. Id. at 36 (Position Description). Dishwashing duty - not surprisingly - includes washing pots and pans. Id. The VA also employs WG-2 Food Service Workers, who typically work full time. The job tasks for the two grades overlap substantially, but WG-1 workers differ from higher-grade WG-2 workers in that the former “perform[] routine tasks, with only a basic understanding of sanitation and contamination, ” while the latter “[are] required to have a working knowledge of sanitation and Infection procedures, and perform tasks with several steps.” Id. at 38. A supervisor may, nonetheless, assign a WG-1 “higher graded duties to fill in for employees on leave, to cover vacancies or for cross training purposes.” Id. During the relevant timeframe, the VA employed 22 WG-1 food-service workers, consisting of 19 men and 3 women. Id. at 31 (EEO Counselor's Report). Additionally, 10 other men and 1 woman had dishwashing as part of their job descriptions. One woman was unable to wash pots and pans due to a disability. Id. at 32. Collectively, then, 29 men and 3 women carried out dishwashing duties.

         On October 17, 2007, Harris spoke with an EEO Counselor to report alleged sex discrimination. According to Plaintiff, his supervisors did not rotate work assignments equitably, leaving the men to wash pots and pans most of the time. Id. at 31. One week later, Harris made an informal complaint about this concern to the Agency's Office of Resolution Management. Id. at 39. He stated that, during his employment, he saw women “wash[] pots and pans [only] 5 to 6 times.” Id. In addition, Harris complained that he had to fill in for higher-grade employees when they were out sick, but was not compensated for doing so. Id. at 31.

         About one month later, on November 30, Plaintiff lodged a formal complaint against the Agency, which it accepted on December 10. Id. at 40 (Complaint), 79 (AJ Decision). In addition to the sex-discrimination claim, Harris added a claim for retaliation, alleging that, on October 18, 2007, he was assigned “extra work duties during [his] regular scheduled hours.” Id. at 39. Plaintiff alleged that the Agency assigned him the extra duties as retaliation for his October 17 EEO Counselor interaction. Specifically, he contended that his contact with the EEOC resulted in “work duties that are different from other employees, ” including “[c]leaning out the grease room [and being] sent to the nursing home to do cleaning duties.” Id. at 40. Harris believes that he was made to clean “while other employees s[a]t around and watch[ed] . . . as punishment for filing a complaint with the EEOC.” Compl. at 3.

         Following the Agency's investigation of his claims, Harris requested a hearing before an EEOC Administrative Judge. See AR at 116. The case was assigned to an AJ, who issued an order providing a discovery and briefing schedule. After the close of discovery, the Agency filed a Motion for Decision Without a Hearing. Harris did not file an opposition to the Motion, and, on January 14, 2009, the AJ granted the Agency summary judgment. The Agency accepted the AJ's decision and entered its final order on December 13, 2013. Id. at 107-09. (The record does not fully explain why a simple dispute about cleaning duties took six years to resolve.)

         On January 13, 2014, Plaintiff filed an appeal with the EEOC pursuant to 29 C.F.R. § 1614.403(a), asserting that the AJ had improperly decided his case without a hearing and erred in granting the Agency summary judgment. On December 8, 2016, the Commission, upon de novo review, affirmed the AJ's decision. It first determined that the AJ had “properly issued a decision without a hearing as there are no material facts at issue.” Id. at 128. Then it held that even if Harris had made out a prima facie case of discrimination and retaliation, the Agency had “articulated legitimate, nondiscriminatory reasons for its actions and [he] did not show that the reasons given by the Agency were pretext for discrimination.” Id. at 129.

         On March 3, 2017, Plaintiff timely filed this civil action, reprising the same grievances that were before the EEOC. The Agency filed a Motion for Summary Judgment on July 31, 2017. That same day, the Court issued an Order directing Harris to file any response by August 21. See ECF No. 11. Plaintiff never filed an opposition, and this Opinion issues almost a month after the Court's deadline.

         II. Legal Standard

         Summary judgment may only be granted if “the movant shows that 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         When a motion for summary judgment is under consideration, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must “eschew making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

         The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant, in other words, is required to provide evidence that ...

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