Peter NG, Plaintiff, v. Ray LAHOOD, Secretary, U.S. Department of Transportation, Defendant.
Civil Action No. 11-CV-0673 (KBJ).
United States District Court, District of Columbia.
July 5, 2013.
919 F. Supp. 2d 85
KETANJI BROWN JACKSON, District Judge.
The FCRA also includes specific re-quirements that are not mentioned in the plaintiff‘s complaint. For example, in or-der to show a violation of the FCRA, the plaintiff must allege that the defendant is a “consumer reporting agency,”3 or that it creates “consumer report[s],”4 or that it “regularly engages in ... assembling or evaluating consumer credit information, or other information on consumers for the purpose of furnishing consumer reports to third parties.”
Finally, although the plaintiff mentions the CPPA in her complaint, see Comp. ¶ 1, she claims only that the defendant violated the FCRA and FDCPA. Her complaint fails to include a short and plain statement alleging that the defendant violated the CPPA and, therefore, she fails to state a claim for relief under it.
III. CONCLUSION
The Court concludes that it lacks per-sonal jurisdiction over the defendant and that the complaint fails to state claims under the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the D.C. Consumer Protection Procedures Act upon which relief can be granted. Ac-cordingly, the defendant‘s motion to dis-miss will be granted. An Order accompa-nies this Memorandum Opinion.
Javier M. Guzman, U.S. Attorney‘s Of-fice, Washington, DC, for Defendant.
MEMORANDUM OPINION & ORDER
KETANJI BROWN JACKSON, District Judge.
Plaintiff Peter Ng filed this action on October 21, 2011, alleging three counts: discrimination based on race (Count I), discrimination based on national origin (Count II), and retaliation (Count III), all in violation of Title VII of the Civil Rights Act of 1964,
I. BACKGROUND
Ng is an Asian-American male of Chi-nese national origin. (Defendant‘s State-ment of Undisputed Material Facts (“D-SOF“) ¶ 1 [ECF No. 21].) Ng has worked for ATO for over thirty years. (Plaintiff‘s Statement of Disputed Material Facts (“P-SOF“) ¶ 10 [ECF No. 24].) In 2006, Ng took the position of Technical Support Manager in ATO‘s Communications Ser-vices Unit (“Communications Unit“), and remained in that position at all times rele-vant to this action. As a Technical Sup-port Manager, Ng provided technical ex-pertise in support of the Communications Unit‘s mission to provide timely and rele-vant information to ATO employees and to communicate ATO programs and objec-tives to employees, customers, and stake-holders. (D-SOF ¶ 2.) Although Ng was based in Boston, he was responsible for supervising employees in Washington, D.C. (Complaint (“Compl.“) ¶¶ 6-7; D-SOF ¶ 3.)1
Prior to the fall of 2008, Ng‘s immediate supervisor was then-Communications Unit Vice President Sandra Sanchez. (Compl. ¶¶ 8, 9; D-SOF ¶ 6.) In August of 2008, Gerald Lavey replaced Sanchez and be-came Ng‘s immediate supervisor. (Compl. ¶ 9.)
Ng‘s allegations of discrimination arise out of the following acts. The facts are undisputed except where otherwise noted:
Prior to Sanchez‘s departure in August 2008, she recommended that Ng receive the highest Superior Contribution Increase rating (“SCI“) for 2008—called SCI-1.2 (Compl. ¶ 10.) In October of 2008, two months after Lavey succeeded Sanchez to become Ng‘s supervisor and before San-chez‘s SCI recommendation for Ng was approved, Lavey recommended that Ng receive the second-highest rating, SCI-2. (Compl. ¶ 11.) Lavey‘s supervisor, John Pipes, chose instead to credit the prior recommendation that Sanchez had made. (Compl. ¶ 13.) As a result, Ng received the highest possible SCI rating for 2008. (Compl. ¶¶ 10-13.)
At the time Lavey became Ng‘s supervi-sor, Lavey had four direct reports: Ng, Kimberly Pyle, Edward Braese, and Terry Snyder. (D-SOF ¶¶ 7, 10.) In October of 2008, Lavey undertook to restructure the Communications Unit by trimming the or-ganizational structure from four groups (each headed by one of Lavey‘s four direct reports) to two groups. (D-SOF ¶¶ 10-12.) As a result of the restructuring, Ng‘s Technology Information group was sub-sumed into a newly formed Communica-tions Operations group and Ng began re-porting to Braese, one of his former peers, rather than directly to Lavey. (Plaintiff‘s Brief in Opposition to Summary Judgment (“Pl. Br.“) Ex. B [ECF No. 24-2]; D-SOF ¶ 13.) Similarly, Pyle‘s Congressional Communications group was folded into a
In November of 2008, Ng submitted a request to Lavey to attend a training ses-sion about administrative investigation. (Def. Br. Ex. 13 [ECF No. 21-2].) Lavey responded to Ng that a “decision [had been] made” that only one member of the Communications Unit staff should attend the training session. (Id.) One of Ng‘s former colleagues, Terry Snyder, a white male and one of two Communications Unit employees who directly reported to Lavey after the restructuring, attended the train-ing. (Compl. ¶¶ 22-25.)
In the course of his duties, Ng created and managed the technical aspects of a pilot communications project known as the “Vortex Project.” (P-SOF ¶ 22.) The Vortex Project was a system designed to convey information to ATO employees. (D-SOF ¶ 24.) Ng asserts that certain Communications Unit employees opposed the project and consistently sought to un-dermine it. (P-SOF ¶ 24.) Ng claims that sometime around the end of 2008 or the beginning of 2009, his role in supervision of this project was significantly reduced. (Compl. ¶¶ 29-30.) Ng alleges that Braese took over many of Ng‘s duties with respect to the Vortex, including substituting Braese‘s name for Ng‘s as a point of con-tact for the Vortex Project. (Compl. ¶ 30.) Ng also alleges that his name was removed from the project wall, and many of his other Vortex-related tasks were delegated to Richard Roberts, a lower-ranking mem-ber of the Communications Unit. (P-SOF ¶ 25.)
In January 2009, Ng was directed to report to ATO headquarters in Washing-ton, D.C., for a 60-day period, to work on the Vortex Project. (Compl. ¶ 31; D-SOF ¶ 27.) Ng contends that he was required to travel to the District of Columbia on the day after the Presidential Inauguration, making it difficult for him to obtain travel and living accommodations. (Compl. ¶ 32.) Ng also claims that, upon arrival, Ng found that all other employees had been instructed to work from home that day. (Compl. ¶ 33.) Additionally, Ng maintains that, when he arrived in Washington, “there was nothing for [him] to do,” caus-ing him to feel “embarrassed when other employees saw him sitting with nothing to do.” (P-SOF ¶ 31.) Ng did not spend the entirety of the 60 days in Washington, instead leaving for at least three weeks for various non-Vortex related events. (D-SOF ¶ 32.)
Finally, while not included in the Com-plaint or in his Statement of Disputed Material Facts, Ng‘s summary judgment brief includes allegations that employees in the Communications Unit at times made disparaging comments regarding his ac-cent. (Pl. Br. at 20-22.) Specifically, Ng alleges that Pyle made fun of his accent at a staff meeting; that on several occasions Claudia Bogard (another Communications Unit employee) said that she could not understand Ng; and that that Braese consis-tently made snide comments that Ng alleg-
II. LEGAL PRINCIPLES
A. Standard of Review for Summary Judgment
Summary judgment is appropriate when the moving party demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
B. Legal Standard for Employment Discrimination and Retaliation
Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, condi-tions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin.”
C. Standard for Reviewing Motions to Strike Supporting Affidavits
“The decision to grant or deny a motion to strike is vested in the trial judge‘s sound discretion.” Canady v. Erbe Elektromedizin GmbH, 384 F.Supp.2d 176, 180 (D.D.C.2005). The moving party “bears a heavy burden as courts generally disfavor motions to strike.” (Id.) “A court may strike all improper portions of an affidavit or declaration used to support or to oppose a motion for summary judgment, but in resolving a motion to strike a court uses a scalpel, not a butcher knife.” As-com Hasler Mailing Systems, Inc. v. U.S. Postal Service, 815 F.Supp.2d 148, 162-163 (D.D.C.2011) (internal citations and quota-tions omitted).
III. NG‘S MOTION TO STRIKE
In support of its motion for summary judgment, Defendant submitted three dec-larations from employees in the Communi-cations Unit: Claudia Bogard, Thomas No-vak, and Edward Braese. Ng requests that the Court strike these declarations in full because they were submitted after the close of discovery, and because Ng alleges that the written declarations contradict prior deposition testimony of the declar-ants. (See Plaintiff‘s Motion to Strike (“Mtn. to Strike“) at 1 [ECF No. 25]; Plaintiff‘s Reply in Support of Motion to Strike (“Pl. Reply“) at 1 [ECF No. 30].) Defendant responds that the declarations were correctly and timely filed pursuant to
Ng has failed to carry his burden of establishing that the challenged declara-tions should be stricken. There is no question that Rule 56 contemplates that a movant may submit supporting materials, including affidavits and declarations, along with a motion for summary judgment. The Rule sets out guidelines for such sub-missions, stating that they “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Ng first argues that Bogard‘s written declaration suddenly provides reasons for why certain Communications Unit employ-ees did not have their reporting structure changed as a result of the October, 2008, internal reorganization, while during her deposition she testified that she was not aware of such reasons. (Pl. Reply at 2-3.) But closer inspection reveals that Ng has misattributed the relevant deposition testi-mony: it was Braese, not Bogard, who professed under oath not to remember. (See Def. Surreply [ECF No. 33], Ex. 1 at 21:10-16.)
Next, Ng argues that Braese stat-ed in his written declaration that none of Ng‘s supervisory responsibilities changed after the reorganization, but at his deposi-tion, Braese testified that he had shoul-dered some of Ng‘s responsibilities due to the restructuring. (Pl. Reply at 3.) How-ever, even a cursory review of the deposi-tion transcript shows that Braese was making a general reference to his new role as the employee to whom Ng reported, and was not discussing any specific reduc-tion in Ng‘s level of supervisory responsi-bility. (See Def. Surreply, Ex. 1 at 45:14-19.) Consequently, there is no inconsis-tency at all—much less a clear contra-diction—between Braese‘s testimony and his written declaration in regard to Ng‘s supervisory responsibilities.
Finally, Ng contends that Braese‘s written declaration contradicted Braese‘s deposition testimony insofar as the declaration states that certain manage-ment training, which Ng had not complet-ed, was “mandatory” before Ng was eligi-ble for the additional investigation training that Ng sought to attend. (Pl. Reply at 3.) Specifically, Ng claims that, when Braese was asked in his deposition how he knew that management training was mandatory, Braese said something that indicated he was unsure of whether the management training was in fact mandatory. (Id.) But the full quote from Braese‘s deposition paints a very different picture:
Q: And when you say that the manage-ment training was mandatory how do you know that? I mean from where do we know that? ...
A: I‘d have to get back with you. I mean I‘m not positive what the require-ment—I know that it‘s a management requirement when you assume a man-agement role in the FAA you must com-plete certain management courses with-in a specific period of time.
(Def. Surreply, Ex. 1 at 37:7-16.) Because Braese‘s full deposition testimony makes it clear that he was well aware that manage-ment training was mandatory, Ng has once again failed to identify any actual contra-diction between the declarants’ deposition testimony and the statements in their dec-larations.
Therefore, for the reasons set forth
IV. DEFENDANT‘S MOTION FOR SUMMARY JUDGMENT
For the reasons that follow, the Court GRANTS Defendant‘s Motion for Sum-mary Judgment and dismisses Ng‘s dis-crimination case.
A. Ng Has Failed to Identify Any Ad-verse Employment Actions
Ng identifies five incidents as the basis for his discrimination claims. As ex-plained below, none qualifies as an “ad-verse employment action” for the purposes of Title VII.
First, Ng‘s Complaint contains al-legations related to Lavey‘s recommenda-tion that Ng warranted an SCI-2, rather than SCI-1, rating for 2008. (Compl. ¶¶ 10-13.) But, as Ng has acknowledged from the filing of his Complaint, Lavey‘s supervisor rejected Lavey‘s recommenda-tion and instead awarded Ng the highest SCI rating for the relevant time period. (Compl. ¶ 13.) The fact that Ng was awarded the highest possible merit bonus cannot be construed as adverse in any sense, and it certainly falls short of meet-ing the definition of an “adverse employ-ment action” for the purposes of Title VII. Accordingly, Ng has failed to allege ade-quately that he suffered an adverse em-ployment action with respect to his SCI claim.6
Second, Ng argues that the reor-ganization of his unit, which resulted in his reporting to someone who had previously been his peer, was effectively a demotion and thus an adverse employment action. (Pl. Br. at 15-16.) The gravamen of Ng‘s complaint with regard to the reorganiza-tion is that it “require[d] him to report to someone subordinate to Lavey,” whereas he had previously reported directly to La-vey. (Pl. Br. at 15.) There is no dispute, however, that Ng‘s salary and benefits re-mained the same after the reorganization. (D-SOF ¶ 13.) Moreover, Lavey‘s email of October 21, 2008, which announced the reorganization—and which Ng himself cites as evidence to support his claim—explicitly noted that Ng would “continue to manage the same group he now has.” (Pl. Br. Exhibit B.) Prior decisions of this Court clearly establish that an employee‘s having to report to a former peer as the result of a reorganization does not consti-tute an adverse employment action for Ti-tle VII purposes. See, e.g., Forkkio v. Tanoue, 131 F.Supp.2d 36, 40 (D.D.C.2001) (“[T]he change in plaintiff‘s title and re-porting relationship due to ... reorga-niz[ation] ... does not constitute an ad-verse action ... Plaintiff‘s own belief that the reassignment was a ‘demotion’ and was accompanied by a loss in stature or pres-tige is insufficient to render it otherwise.“);
Third, Ng points to the denial of his request to attend investigation training as an adverse employment action. (Pl. Br. at 23-24.) But Ng cites no precedent sup-porting the argument that the denial of training opportunities to an employee con-stitutes an adverse employment action. Nor does Ng address the cases Defendant cites, which indicate just the opposite. See, e.g., Casey v. Mabus, 878 F.Supp.2d 175, 184 (D.D.C.2012) (“The mere denial of training opportunities, however, does not constitute an adverse employment ac-tion.“); Brooks v. Clinton, 841 F.Supp.2d 287, 301 (D.D.C.2012) (denial of approval to attend a training seminar did not consti-tute adverse employment action). Ng merely states conclusorily that denial of the training “prevented Plaintiff from learning about an aspect of his potential job duties.” (Pl. Br. at 24.). Even assum-ing that Ng was qualified to attend the investigation training (which Defendant disputes, Def. Br. at 15), Defendant‘s re-fusal to allow Ng to attend a single train-ing seminar does not meet the standard articulated in Baird for an adverse em-ployment action. 662 F.3d at 1248.
Fourth, Ng asserts that changes in his role as a manager of the Vortex Project constituted an adverse employ-ment action. Ng summarizes his claims relating to the Vortex Project by alleging that he was “pulled off the project that he spearheaded and for which he was primar-ily responsible.” (Pl. Br. at 25.) But the evidence that Ng has proffered in regard to Vortex does not support this assertion. It is undisputed that Ng had responsibility only for the technical aspects of Vortex, while others had responsibility for the con-tent. (Ng Dep. at 134:9-21; D-SOF ¶ 24.) This being so, Ng vastly overstates his management role and the extent to which the Vortex project was his responsibility. Moreover, Ng‘s contention that he was “pulled off” the project at approximately “the end of 2008 [or] early 2009” (Pl. Br. at 25) is at odds with Ng‘s additional claim that he was forced to travel to Washing-ton, D.C. in January 2009 specifically to work on Vortex. (Pl. Br. at 27.) At most, the evidence indicates that Ng‘s role with respect to Vortex may have been reduced for a limited period of time. (See Defen-dant‘s Reply Brief in Support of Motion for Summary Judgment (“Def. Reply“) at 16.) However, such a limited reduction in work responsibilities does not qualify as an adverse employment action under the Baird standard. See, e.g., Peyus v. La-hood, 919 F.Supp.2d 93, 101-102 (D.D.C. 2013) (a temporary reduction in work re-sponsibilities does not constitute an ad-verse employment action); Rhone v. U.S. Capitol Police, 865 F.Supp.2d 65, 71 (D.D.C.2012) (“minor losses in job respon-sibility” do not constitute adverse employ-ment actions).
Finally, Ng alleges that he suf-fered an adverse employment action by virtue of his sixty-day assignment to work on the Vortex Project in Washington, D.C., in January 2009. (P-SOF ¶¶ 28-32.) Ng argues that this assignment was an ad-verse employment action for three primary reasons: first, he was required to travel to the District of Columbia on the day after the Presidential Inauguration, which he alleges made it difficult for him to obtain
The Court is not persuaded that Ng suffered an adverse employment action as a result of his being required to travel to his established duty station around the time of a national holiday to work on a project that he claims was his own. First of all, it is undisputed that Ng spent only a small portion of the 60-day period in Washington. (D-SOF ¶¶ 31-33.) More-over, Ng cites no authority for the proposi-tion that an adverse employment action can result from an employer‘s requirement that an employee work from a particular location. Indeed, the case law points to the opposite conclusion. See, e.g., Bright v. Copps, 828 F.Supp.2d 130, 148-149 (D.D.C.2011) (employer‘s requiring em-ployee to attend an in-person meeting was not an adverse employment action); Beck-ham v. National R.R. Passenger Corp., 736 F.Supp.2d 130, 149 (D.D.C.2010) (“Be-ing denied the ability to work from home ... is a minor annoyance, not an adverse action.“). At most, Ng‘s temporary Wash-ington D.C. assignment was a minor incon-venience—not the “significant change” re-quired to meet the adverse action standard as articulated in Baird. Additionally, Ng‘s assertion that there was little if any work waiting for him upon his arrival amounts at most to an allegation that his workload was temporarily reduced. As noted above, such temporary reduction is insufficient to constitute an adverse em-ployment action. See, e.g., Peyus, 919 F.Supp.2d at 101-102 (temporary reduc-tion in work responsibilities due to suspen-sion was not an adverse employment ac-tion). This is particularly true where, as here, the alleged reduction had no effect on Ng‘s pay or benefits. Cf. Than v. Radio Free Asia, 496 F.Supp.2d 38, 49 (D.D.C.2007) (noting that a significant re-duction in work hours along with reduction in pay may constitute adverse employment action).
B. Ng Has Failed to Establish Any Relationship Between His Claims and His Race or National Origin
For the reasons described above, this Court concludes that none of the inci-dents that form the basis of Ng‘s Title VII claims qualifies as an adverse employ-ment action. However, even if one or more of the incidents constituted an ad-verse employment action for Title VII purposes, Defendant would still be enti-tled to summary judgment because Ng has also failed to show that any of the alleged adverse employment actions oc-curred because of his race, national origin, or as retaliation for his engaging in pro-tected activity. Apart from maintaining that certain of Ng‘s colleagues mimicked Ng‘s accent and/or commented that they had a hard time understanding him (Pl. Br. at 20-22), Ng offers no evidence of any discriminatory motivation for any of the alleged adverse actions. And while the accent-related incidents that Ng de-scribes are troubling, Ng makes no at-tempt to tie them in any way to the com-pletely separate incidents that form the basis of his claims. In sum, assuming that Ng suffered any adverse employment actions, the record is devoid of any evi-dence connecting the alleged adverse em-ployment actions that Ng identifies to his
V. CONCLUSION
For the reasons set forth above, the Court hereby DENIES Ng‘s motion to strike certain declarations related to the defendant‘s summary judgment motion; and GRANTS Defendant‘s motion for sum-mary judgment.
SO ORDERED.
KETANJI BROWN JACKSON
District Judge
SD3, LLC, Plaintiff, v. Jon W. DUDAS, Director, United States Patent & Trademark Office, Defendant.
Civil Case No. 08-1242 (RCL).
United States District Court, District of Columbia.
July 8, 2013.