United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge
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.
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).
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.
December 2016 or January 2017-there is some dispute as to the
precise date-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
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
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.
Plaintiff's EEO Contact
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.
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
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.
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
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
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 ...