United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE.
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
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).
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.
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.
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.
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
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.
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.
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).
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.
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 ...