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Vance v. O'Rourke

United States District Court, District of Columbia

February 22, 2019

PETER O'ROURKE[1] Defendant.


          Amit P. Mehta United States District Judge


         This matter comes before the court on Plaintiff Reginald Vance's single-count complaint, which alleges a hostile work environment on the basis of race. Presently before the court is Defendant's Motion for Judgment on the Pleadings or, in the alternative, Motion for Summary Judgment. For the reasons that follow, the court grants Defendant's Motion in part and denies it in part.


         A. Factual Background

         Plaintiff Reginald Vance is an African American male, Compl., ECF No. 1 [hereinafter Compl.], ¶ 4, employed by the U.S. Department of Veterans Affairs (“VA”). From July 2013 to January 9, 2017, Plaintiff held the position of Supervisory Program Supervisor in the VA's Veteran Affairs Learning University (“VALU”). Def.'s Mot. for J. on the Pleadings or, in the Alternative, for Summ. J., ECF No. 12 [hereinafter Def.'s Mot.], Def.'s Stmt. of Material Facts Not in Genuine Dispute, ECF No. 12-1 [hereinafter Def.'s Stmt.], ¶¶ 1-2; Pl.'s Mem. of P&A in Opp'n to Def.'s Mot., ECF No. 14 [hereinafter Pl.'s Opp'n], Pl.'s Stmt. of Disputed Material Facts, ECF No. 14-5 [hereinafter Pl.'s Stmt.], at 1 (not disputing Def.'s Stmt. ¶¶ 1-2). During this period, Plaintiff's second-line supervisor was the Dean of VALU, George Tanner, a Caucasian male. Def.'s Stmt. ¶ 2; Pl.'s Stmt. at 1 (not disputing Def.'s Stmt. ¶ 2). Plaintiff's first-line supervisor was Mary Holland, a Caucasian female. Def.'s Stmt. ¶ 3; Pl.'s Stmt. at 1 (not disputing Def.'s Stmt. ¶ 3).

         On or about January 9, 2017, the VA disbanded VALU and realigned its programs and services to other organizations within the agency. See Def.'s Stmt. ¶ 5; Pl.'s Stmt. at 1 (not disputing Def.'s Stmt. ¶ 5). Due to this reorganization, Plaintiff was reassigned to the position of Director, Learning Infrastructure, Office of Enterprise Support Services. See id.

         In December 2016 or January 2017-there is some dispute as to the precise date[2]-Tanner created a farewell video for a departing employee, Amber Blake (“Blake Video”). Def.'s Stmt. ¶¶ 6, 8; Pl.'s Stmt. (not disputing Tanner participated in Blake Video). The video's contents are not in dispute. Tanner is seated alone behind a small table, on which sits four statuettes of monkeys. Def.'s Mot., Ex. 8, ECF No. 12-5. One monkey has its hands covering its eyes; another its ears; and the third its mouth. See Id. The fourth monkey has its hands by its side. See Id. In front of the statuettes sits an approximately two-foot-long, two-inch-high sign that reads: “You Don't Have To Be Crazy To Work Here . . . We'll Train You.” See Id. During the 26-second long video, Tanner states as follows:

Hi Amber. Several members of the senior staff and I have gathered here today to wish you a fond farewell. Of course you can see some of the Directors here, I won't name them, you can figure out which ones are which. We want to wish you the very best in your new job. Um, you are a person that we'll miss here. You've done a lot of great work in the communications area but I look forward to hearing great things about you in your new position.

Def.'s Stmt. ¶ 8; Pl.'s Stmt (not disputing statement). According to Tanner, the four monkey statuettes represented “see no evil, ” “hear no evil, ” “speak no evil, ” and “do no evil, ” and he meant no offense by alluding to the “Directors” as monkeys. See Def.'s Mot., Ex. 6, Decl. of George Tanner, ECF No. 12-4, at 29.[3] There is a dispute of fact as to whether all four Directors serving under Tanner were in fact African Americans. See Def.'s Stmt. ¶ 4 (two African Americans, two Caucasians); Pl.'s Stmt. ¶ 4 (four African Americans).

         Plaintiff was not present at Blake's farewell party, so he did not see the video when it was first shown. But he claims that the Blake Video became “viral” and “received numerous views.” Pl.'s Opp'n at 4; See Pl.'s Opp'n, Ex. B, ECF No. 14-2 [hereinafter Perry Aff.], at 7. According to his Complaint, Plaintiff first saw the video on February 10, 2017, when a colleague, Deirdre Wallace, showed it to him. See Compl. ¶ 10. In a prior statement, however, Plaintiff represented that he first viewed the video in December 2016. See Def.'s Mot., Ex. 5, Aff. of Reginald Vance, ECF No. 12-4 [hereinafter Vance Aff.] at 23. For reasons discussed below, the date on which Plaintiff first viewed the Blake Video is a critical factual dispute.

         B. Plaintiff's EEO Contact

         Plaintiff contacted an Equal Employment Opportunity (“EEO”) counselor on February 27, 2017. Def.'s Stmt. ¶ 16; Def.'s Mot., Ex. 1, ECF No. 12-4 [hereinafter EEO Counselor Report] at 2. Following that contact, an EEO counselor met with Plaintiff for an informal counseling session. See Def.'s Stmt. ¶ 18; EEO Counselor Report at 2. Thereafter, on March 30, 2017, Plaintiff was notified of his right to file a formal EEO complaint. See Def.'s Stmt. ¶ 19; Def.'s Mot., Ex. 2, ECF No. 12-4 [hereinafter Right to File Letter], at 6.

         Plaintiff filed his formal EEO complaint with the Agency's EEO office on April 11, 2017, making two allegations. Def.'s Mot., Ex. 3, ECF No. 12-4 [hereinafter EEO Compl.]; Def.'s Stmt. ¶ 20; Pl.'s Stmt (not disputing statement). First, Plaintiff asserted that Tanner made false statements regarding Plaintiff's position being susceptible to a reduction in force. Second, he claimed that Tanner acted with racial animus when making the Blake Video. Plaintiff maintained that, taken together, these events created a hostile work environment. Def.'s Stmt. ¶ 20; EEO Compl. at 11. The agency's EEO Office accepted for investigation Plaintiff's claim concerning the Blake Video, but not his contention that Tanner had informed him that he might be subject to a reduction in force. Def.'s Stmt. ¶ 21; Def.'s Mot., Ex. 4, ECF No. 12-4 [hereinafter Partial Acceptance Letter], at 16-17; see also Def.'s Mot., Ex. 12, ECF No. 12-5 [hereinafter Appointment Letter], at 26. The EEO Office explained that it was dismissing the former claim because Plaintiff was not, in fact, subject to a reduction in force, and merely being informed of such possibility was not an adverse action. See Def.'s Stmt. ¶ 22; Pl.'s Stmt. (not disputing fact).

         On December 14, 2017, the Agency's Office of Employment Discrimination Complaint Adjudication (“OEDCA”) issued a final decision. Def.'s Stmt. ¶ 31; Def.'s Mot., Ex. 9, ECF No. 12-5, at 5-17. The OEDCA affirmed the dismissal of Plaintiff's contention regarding the threatened reduction in force. See Id. at 7-8. As to Tanner's use of the monkey statuettes in the Blake Video, the OEDCA found that, although Tanner's conduct was “inappropriate, racially insensitive and perceived as racially derogatory, ” Plaintiff had not offered “sufficient evidence . . . to establish that [Tanner's] remark in conjunction with the use of the monkey statuettes was motivated by race in violation of Title VII.” Id. at 15.

         C. Procedural History

         Plaintiff filed suit in this District on March 14, 2018, asserting a single count of hostile work environment in violation of Title VII of the Civil Rights Act of 1964. See Compl. ¶¶ 12-18. Plaintiff's claim is more expansive than that originally presented to the agency. Plaintiff now alleges that from 2013 to 2017, Tanner “often” harassed Plaintiff in his position as his second-line supervisor. Id. ¶ 8. Plaintiff identifies a host of behaviors, discussed in further detail below, that he claims comprise the alleged hostile work environment. Id.

         Shortly after filing its Answer, see Def.'s Answer, ECF No. 8, and instead of proceeding to discovery, Defendant requested leave to file a pre-discovery dispositive motion, see Meet and Confer Statement, ECF No. 10, at 3, which the court permitted, see Order, July 26, 2018. Consequently, neither party has taken discovery in advance of this motion.


         Although Defendant moves in the alternative for judgment on the pleadings or for summary judgment, the court treats Defendant's motion as one for summary judgment, as Defendant relies on “matters outside the pleadings.” Fed.R.Civ.P. 12(d). A court shall grant a summary judgment “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). To make this determination, the court must “view the facts and draw reasonable inferences in the light most favorable to the [non-moving] party.” Scott v. Harris, 550 U.S. 372, 378 (2007) (citations and internal quotation marks omitted). The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, “to defeat a motion for summary judgment, the non-moving party must offer more than mere unsupported allegations or denials.” Dormu v. District of Columbia, 795 F.Supp.2d 7, 17 (D.D.C. 2011) (citing CelotexCorp. v. Catrett, 477 U.S. 317, 324 (1986)). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact ...

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