Roberson v. SnowRoberson v. Snow
- Reporters:
- ,
- Before:
- Richard W. Roberts
Plaintiff filed a complaint alleging that the Internal Revenue Service (“IRS”) discriminated against him by failing to select him for a promotion. Plaintiff also claims that after he filed a grievance regarding his non-selection for the promotion, the defendant retaliated against him by initiating two investigations, which led to plaintiff’s arrest and prosecution. Defendant has filed a motion for summary judgment, arguing that plaintiff was not selected for the promotion because of his relatively low rating from the interviewing committee and that the investigations leading to plaintiff’s arrest and prosecution occurred in response to employees’ reports of threats plaintiff made against his superiors.
Because the plaintiff has failed to rebut the defendant’s valid, non-discriminatory justifications for plaintiff’s non-promotion, investigation, and prosecution, defendant’s motion for summary judgment will be granted.
Plaintiff, an African-American malе, is a career federal employee who has worked for the IRS for over twenty-two years. (Compl. at 2-3.) Plaintiff is a GS-13 level computer specialist and is employed in the Statistics of Income Division (“SOI”) of the IRS, which publishes data with respect to the operation of tax laws. (Id. at 3; Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Mem. Opp’n”) at 1; Def.’s Mot. Summ. J., Ex. 1, Dep. of Daniel Skelly (“Skelly Dep.”) at 8.) Daniel Skelly was the SOI director until early 2001, at which time Thomas Petska replaced him. (Pl.’s Mem. Opp’n at 3; Compl. at 3-4.)
On June 5, 2000, the SOI announced vacancies for computer specialist positions at the GS-14 level. (Compl. at 3; Def.’s Mot. Summ. J., Ex. 2, SOI Div. Vacancy Announcement.) The “vacant” positions were actually promotions, whereby the selected persons would continue in their same jobs, but at the GS-14 level rather than the GS-13 level. (Def.’s Mot. Summ. J., Ex. 3, Dep. of Denise Herbert (“Herbert Dep.”) at 68:9-21.) On June 16, 2000, plaintiff submitted his application for the promotion. (Compl. аt 3.) Over thirty people applied for up to twenty available positions. (Def.’s Mem. of Law in Supp. of Mot. for Summ. J. (“Def.’s Mem. Supp.”) at 3-4; Def.’s Mot. Summ. J., Ex. 4, Promotion Certificate.)
The mathematical formula used by the panel scored the applicants based on three factors: (1) the applicant’s performance evaluation completed during the previous year by the applicant’s supervisor; (2) a review of the applicant’s knowledge, skills, and abilities (“KSAs”); and (3) awards received by the applicant in the last three years. (Pl.’s Stmt. Gen. Iss. at 12.) The maximum score possible for any applicant was fifty-three points - - thirty points for the performance evaluation, twenty points for the KSAs review, and three points for awards. (Id.)
After calculating the total scores for each applicant, the panel provided the scoring information to the personnel office in New Carrollton, Maryland. (Herbert Dep. at 43.) Subsequently, both the panel and the personnel office reviewed the package to determine a “Best Qualified” cut-off point. (Id. аt 43-46.) The cut-off point was calculated by looking at the number of available positions. (Id. at 69-71, 73-74.) For the first available position, four applicants appeared on the Best Qualified List. (Id. at 69.) For each additional available position after the first, the applicant with the next highest score was placed on the list. Tie scores placed more than one applicant’s name on the list. (
The cut-off point established for the SOI promotions was a score of 44.7. (Def.’s Mot. Summ. J., Ex. 6, Listed Rankings; Def.’s Stmt. Mat. Facts at 4.)1 The panel calculated plaintiff’s overall score to be 35.12, and therefore, plaintiff did not appear on the Best Qualified List. (Def.’s Mot. Summ. J., Ex. 5, Rating Sheet for Pl.; Def.’s Mem. Supp. at 4-5.) Only the names and application materials of the individuals on the Best Qualified List were given to Skelly, the selecting official. (Herbert Dep. at 66.) Skelly interviewed only applicants on that list and selected fourteen of them for the promotion on January 2, 2001. (Def.’s Mem. Supp. at 5; Skelly Dep. at 70.)
Although Skelly did not name the employees selected for promotion until January 2, 2001 (Skelly Dep. at 70), plaintiff claims that he knew on or about November 20, 2000, that he was not chosen when a list bearing the names of those who were promoted was affixed to the back of his chair. (Compl. at 3; Pl.’s Mem. Opp’n, Ex. 6, Dep. of Earl Roberson (“Roberson Dep.”)
On January 17, 2001, plaintiff filed a grievance with the National Treasury Employees Union (“NTEU”) over his non-selection for the promotion. (Compl. at 4.) Plaintiff alleged that his employer engaged in prohibited personnel practices and discrimination based on sex, color, and race. (Id.; Def.’s Mem. Supp. at 5.) A collective bargaining agreement adopted by the IRS and NTEU requires an employee who believes he has been discriminated against to make a binding choice between raising his claims under either the statutory procedure outlined in
On February 6, 2001, SOI manager Chris Carson contacted the Treasury Inspector General for Tax Administration (“TIGTA”) Office, otherwise known as the IRS police, to report that plaintiff allegedly made threatening statements. (Def.’s Mem. Supp. at 5-6.) TIGTA interviewed Carson, as well as Andrew Luttrell and Dean Plueger, economists at SOI. (Def.’s Mot. Summ. J., Ex. 9, Report of Investigation of Threats to Director Skelly (“Skelly Threat Investigation”).) Carson alleged that plaintiff had “hypothetically talked about how easy he could bring a gun into the building and shoot his manager” and that “he would only get six months to a year jail time by pleading temporary insanity.” (Id. at 4.) Carson also alleged that plaintiff said “he could give a homeless person [fifty dollars] and a knife to stick it in Skelly’s neck while he was walking to Union Station.” (Id.) Luttrеll stated that plaintiff said that if someone were under the same amount of stress that plaintiff was, he might respond “violently” or “retaliate by bringing a gun into the office.” (Id. at 7.) According to Luttrell, plaintiff added that “[i]t would be very easy to just walk into the boss’s office and shoot him” and that he could also have a homeless person “stab Skelly in the neck while he [was] walking to Union Station.” (Id.) Dean Plueger testified that he overheard the conversation between Luttrell and plaintiff. (Id. at 10.) Special Agent Ratliff checked plaintiff’s arrest record and found that plaintiff had previously been convicted for carrying a concealed weapon without a license, possession of an unregistered firearm, unlawful possession of ammunition, and driving with an open container. (Id. at 13-23.)
On February 7, 2001, Paris, one of plaintiff’s superiors, came to plaintiff’s desk and identified plaintiff to TIGTA Special Agent Kevin Jackson. (Compl. at 4.) Jackson forcibly removed plaintiff from his work area and led him to plaintiff’s manager’s office. Jackson thеre alerted plaintiff that the agent acted because plaintiff had made a threat of violence against Skelly. (Id.) Plaintiff initially denied making any such statements, but later said that perhaps his comments were made jokingly and taken out of context by surrounding co-workers. (Pl.’s Mem. Opp’n, Ex. 21, Dep. of Kevin Jackson (“Jackson Dep.”) at 61:6-13.) Jackson felt that the witnesses probably misunderstood plaintiff’s comments and thought that he was serious. (Id. at 61:14-20.) Nevertheless, Jackson admonished plaintiff and advised him of the penalties for making threats against fellow employees. (Id. at 62:2-8.)
The First Step meeting between plaintiff, his NTEU union representative, Gerald Plater, and a management official, Kay Khuu, to discuss plaintiff’s non-promotion grievance occurred on
On May 31, 2001, a Second Step meeting occurred between plaintiff, his union representatives, and Paris to discuss plaintiff’s discrimination and retaliation claims. (Compl. at 5.) On June 22, 2001, Paris sent plaintiff a written memorandum
Meanwhile, in July 2001, Petska contacted TIGTA alleging that plaintiff made threats against him in the presence of his co-workers. (Def.’s Mem. Supp. at 8.) TIGTA opened a second investigation on July 2, 2001, and co-workers Martha Eller and Catherine Gullickson Thomas alleged that plaintiff made comments that “he was going to take [Petska] out” and that he would “come in like a ninja and they would never know it.” (Def.’s Mot. Summ. J., Ex. 16, Report of Investigation of Threats to Director Petska (“Petska Threat Investigation”) at 307-11.) Gullickson Thomas said she asked plaintiff about whom he was talking, and plaintiff allegedly said “Tom.” (Id. at 310.) Plaintiff denies making any such threatening statеments or comments. (Roberson Aff. at 12.)
Plaintiff’s criminal bench trial began on April 15, 2002 and plaintiff was acquitted on April 24, 2002. (Def.’s Mem. Supp. at 10.) Plaintiff returned to work approximately one month later. (Roberson Aff. at 12.) Plaintiff had responded to various emails he received during his time away from work with messages such as “I’m Back!!!!!” (Pl.’s Mem. Opp’n, Ex. 15, Email to Denise Herbеrt at 203.) Plaintiff directed one such message to at least one co-worker who had testified against him at trial and who felt threatened by the message. (Pl.’s Mem. Opp’n at 15; Def.’s Reply to Pl.’s Opp’n at 6.) On June 11, 2002, plaintiff received a
Following further proceedings, the IRS issued its final agency decision in January 2003, finding no discrimination in plaintiff’s non-promotion, and no retaliation by defendant against plaintiff in TIGTA’s investigations and arrest of plaintiff. (Pl.’s Mem. Opp’n, Ex. 16, Final Agency Decision.) This final order exhausted the plaintiff’s administrative remedy, after which plaintiff timely appealed his employer’s final ruling in the administrative grievance process to the EEOC on March 10, 2003. (Pl.’s Mem. Opp’n, Ex. 17, Complainant’s Br. Supp. Appeal (“EEOC Appeal”); Pl.’s Mem. Opp’n, Ex. 18, EEOC receipt letter.) See
DISCUSSION
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.”
The moving party carries the initial burden to either identify evidence that demonstrates the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), or “point[] to the absence of evidence proffered by the nonmoving party.” Baker v. Potter, 294 F. Supp. 2d 33, 38 (D.D.C. 2003). Summary judgment is inappropriate if a reasonable factfinder could find in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The non-moving party’s opposition, however, ‘must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial.’” McCain v. CCA of Tenn., Inc., 254 F. Supp. 2d 115, 119 (D.D.C. 2003) (citation omitted); see Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993) (“[A] mere unsubstantiated allegation . . . creates no ‘genuine issue of fact’ and will not withstand summary judgment.”); Sage v. Broad. Publ’ns, Inc., 997 F. Supp. 49, 53 (D.D.C. 1998) (“Conclusory allegations made in affidavits opposing a motion for summary judgment are insufficient to create a genuine issue of material fact.”); Baker, 294 F. Supp. 2d at 38 (holding that a nonmoving party may not rely solely on allegations or conclusory statements). “If the evidence ‘is merely colorable, or is not significantly probative, summary judgment may be granted.’” Baker, 294 F. Supp. 2d at 38 (quoting Anderson, 477 U.S. at 249-50).
Discrimination claims brought under Title VII are governed by the burden-shifting framework articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1149 (D.C. Cir. 2004). Under that framework, the plaintiff has the initial burden of demonstrating by a preponderance of the evidence a prima facie case of discrimination. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If a plaintiff succeeds in establishing his prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employment action being challenged. See id. at 253. The employer “need not persuade the court that it was actually motivated by the proffered reasons.” Id. at 254. Rather, “[t]he defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Burdine, 450 U.S. at 254-55, and n.8)(internal quotation marks omitted).
If the defendant proffers a legitimate and nondiscriminatory justification for its employment decision, the plaintiff must have an opportunity to prove by a preponderance of the evidence
A. Plaintiff’s prima facie case
The plaintiff carries the initial burden of establishing a prima facie case of discrimination. Burdine, 450 U.S. at 252-53. The elements of a prima facie case of employment discrimination include proof that (1) plaintiff is a member of a protected class; (2) plaintiff was subject to an adverse employment action; and (3) similarly situated employees outside of his protected
Here, it is undisputed that plaintiff, an African-American, is a member of a protected class. (Compl. at 2; Answer at 2.) It is also clear that plaintiff suffered an adverse employment action when he was not selected to receive a promotion.5 (Def.’s Mem. Supp. at 5.) The final requirement in establishing the prima facie case is also met in that thirteen of the fourteen GS-13 computer specialists prоmoted were white. (Pl.’s Mem. Opp’n at 5-6.) The burden of establishing a prima facie case of discrimination “is not onerous,” Burdine, 450 U.S. at 253, and plaintiff has met his burden here.
B. Defendant’s neutral explanation
Because the plaintiff has established a prima facie case giving rise to a “presumption of discrimination,” the burden shifts to the defendant “to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate,
Here, to rebut the presumption of discrimination, defendant asserts that its selection process was race-neutral and objective. (Def.’s Mem. Supp. at 2-5.) The two-tiered process of selecting employees for promotion began with a three-member panel that mathematically calculated scores based on the employee’s prior performance evaluation, the content of the employee’s application for the promotion, and the number of awards received by the employee in the previous three years. (Id. at 3.) The panel did not interview the candidates, and it did not directly choose which employees would receive interviews by Skelly, the selecting official. (Herbert Dep. at 45, 51-52.) Instead, the panel scored each applicant, and later, with the assistance of the personnel office, determined a cut-off point based on the number of available positions to determine which employees were selected to interview with Skelly. (Herbert Deр. at 44, 49, 66.) Defendant asserts that the minimum score to be placed on the Best Qualified List and receive an interview was
Defendant has produced sufficient evidence to indicate a legitimate, non-discriminatory reason for plaintiff’s non-promotion by showing that the other applicants achieved higher scores when their applications were graded. (See Def.’s Mot. Summ. J., Ex. 6, Listed Rankings.) Consequently, defendant has met his burden to rebut the presumption of discrimination.
C. Plaintiff’s evidence of pretext
If the defendant proffers a legitimate and nondiscriminatory reason for its employment decision, the plaintiff must have an opportunity to prove by a preponderance of the evidenсe that the offered reason was not the employer’s true reason, but was a pretext for intentional discrimination. See Burdine, 450 U.S. at 253. A plaintiff may meet his burden of proving intentional discrimination by “‘either directly persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’” Dunaway v. Int’l Bd. of Teamsters, 310 F.3d 758, 763 (D.C. Cir. 2002) (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). To survive a
Plaintiff offers little to suggest that his non-promotion was based on his race. Plaintiff begins by pointing to the racial makeup of the SOI office and argues that SOI has a history of not promoting black employees. (Pl.’s Mem. Opp’n at 4.) Although statistics can in some cases support a finding of pretext, Cook v. Boorstin, 763 F.2d 1462, 1468 (D.C. Cir. 1985) (stating that statistics can be used in disparate treatment discrimination cases to illustrate a history of discrimination or to show that a defendant’s nondiscriminatory justification is merely a pretext for not hiring or promoting an employee), plaintiff has provided no sufficiently meaningful or detailed historical statistics. (See Pl.’s Mem. Opp’n at 4 (stating that there are no African-American male managers at SOI and that plaintiff is one of only seven African-Americans in his entire division).) Rather than merely stating that the majority of highly-ranked employees at SOI are white, the plaintiff must “demonstrate to the court’s satisfaction that [his] statistical comparisons are meaningful, and in particular, plaintiff[’s] statistics must compare the promotion rates of class members with
Thus, plaintiff has not produced evidence to show that defendant‘s proffered explanation for defendant‘s non-promotion is unworthy of credence, nor has plaintiff presented independent evidenсe of defendant‘s racial discrimination to show that discrimination more likely motivated the non-promotion. See Burdine, 450 U.S. at 253. On this record, no reasonable jury could find such discrimination, see Morgan, 328 F.3d at 651, and defendant‘s motion for summary judgment on the discrimination claim will be granted.
II. RETALIATION
Like discrimination claims, claims of retaliation are also “governed by the McDonnell Douglas burden-shifting scheme.” Carney v. Am. Univ., 151 F.3d 1090, 1094 (D.C. Cir. 1998). In short, then, the burden first rests with the plaintiff to establish a prima facie case, after which the burden shifts to the defendant to rebut the presumption of retaliation. See Burdine, 450 U.S. at 252-53. Finally, the burden shifts back to
A. Plaintiff‘s prima facie case
To establish a prima facie case of retaliation, the plaintiff must show that: (1) he engaged in a statutorily protected activity; (2) his employer took an adverse personnel action against him; and (3) a causal connection exists between the protected activity and the adverse action. Carney, 151 F.3d at 1095; see Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003).
Here, plaintiff clearly hаs met the first prong of the prima facie analysis. Title VII protects the rights of federal employees to oppose any “unlawful employment practice” enumerated in Title VII.
Identifying the adverse personnel action for this claim, however, requires closer scrutiny. “An adverse personnel action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Romero-Ostolaza v. Ridge, 370 F. Supp. 2d 139, 150 (D.D.C. 2005). The Tenth and Seventh
Here, the plaintiff was placed on administrative leave following the second TIGTA investigation which involved his alleged threats against Petska. (Def.‘s Mot. Summ. J., Ex. 21, Admin. Leave Notice.) However, placement on administrative leave may not constitute an adverse personnel action. See Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000) (holding that an employee on administrative leave had not suffered adverse action with respect to the leave); Haddon v. Executive Residence at the White House, 313 F.3d 1352, 1363 (Fed. Cir. 2002) (stating that “[m]ost of the actions that courts have recognized as adverse employment actions are more tangible and permanent than [a] short suspension without loss of pay“); Peltier v. United
The plaintiff claims that the retaliation included the two investigations of his conduct, his arrest, and his criminal prosecution. (Compl. at 7.) An internal investigation, police complaint, or police report will generally not qualify as an adverse action. Haddon, 313 F.3d at 1363-64 (internal investigation); Lu v. Billington, Civil Action No. 02-938 (PLF), 2005 WL 670771, at *6 (D.D.C. Mar. 22, 2005) (police complaint/report). Here, however, defendant initiated a criminal prosecution by obtaining an arrest warrant against plaintiff, which led to his being charged and tried. (Def.‘s Mot. Summ. J., Ex. 18, Aff. Supp. Arrest Warrant at 178; Def.‘s Mot. Summ. J., Ex. 16, Petska Threat Investigation at 16.) Although these actions are not obvious “personnel” actions, they could have an adverse effect on the plaintiff‘s future career prospects, and as such, could be considered adverse personnel actions. See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (holding that the “filing of charges against a former employee may constitute adverse action” because a “criminal trial, such as that to which [the plaintiff] was subjected, is necessarily public and therefore carries a significant risk of humiliation,
The third prong of the prima facie case is whether a causal connection exists between the statutorily protected activity and the adverse action. See Carney, 151 F.3d at 1095. The causal connection element can be established by showing “that the employer knew of [plaintiff‘s] protected activity and that the retaliаtion closely followed it.” Kwon v. Billington, 370 F. Supp. 2d 177, 187 (D.D.C. 2005); see also Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985). As more time “elapses between the protected activity and the alleged acts of retaliation, however, the more difficult it is to demonstrate any causal connection.” Saunders v. DiMario, Civil Action No. 97-1002 (PLF), 1998 WL 525798, at *5 (D.D.C. Aug. 14, 1998) (holding that where eight to ten years had passed between the plaintiff‘s EEO activity and the adverse personnel action, a causal connection was not demonstrated); see also Clark v. Chrysler Corp., 673 F.2d 921, 930 (7th Cir. 1982) (holding that time lapse of two years between the filing of an EEO charge and the alleged retaliatory act negates an inference of causal connection).
B. Defendant‘s neutral explanation
The defendant effectively rebuts the presumption of retaliation by providing evidence of the non-discriminatory reason compelling the TIGTA investigations, arrest, and prosecution of the plaintiff: employee reports of threats made to the lives of Skelly, Petska, and other SOI employees. (Def.‘s Mot. Summ. J., Ex. 9, Skelly Threat Investigation; Def.‘s Mot. Summ. J., Ex. 16, Petska Threat Investigation.) Employees said that they heard plaintiff threaten the lives of both Skelly and
C. Plaintiff‘s evidence of pretext
Plaintiff claims that the reports of alleged threats he made were pretexts for the investigations, his arrest, and his criminal prosecution, because SOI actually singled him out for harassment because of his race and in retaliation for having filed a grievance. (Pl.‘s Mem. Opp‘n at 25.) Plaintiff also cites to the fact that out of the hundreds of other investigations for threatening statements, Jackson can remember only one other resulting prosecution. (Id.; Pl.‘s Mem. Opp‘n, Ex. 21, Jackson Dep.) Plaintiff attests that, because of this
Although a reasonable fact finder could believe that the plaintiff never made the threats alleged by his co-workers - - charges of which he was acquitted - - plaintiff has not produced evidence showing that management knew, or had reason to know, that reports of the threats were fabricated. Without any such evidence showing that the defendant should not have believed the reports of threats, there is no indication that the defendant acted on the reports to retaliate against the plaintiff for having filed a discrimination grievance. Instead, the evidence suggests only that the defendant acted out of workplace safety concerns. (See Def.‘s Mem. Supp. at 24-25.) Because the plaintiff has failed to meet his burden of production on this issue, summary judgment will be granted.
III. HOSTILE WORK ENVIRONMENT
Defendant argues that plaintiff is now, for the first time, attempting to assert a hostile work environment claim in his opposition and should be precluded from doing so. (See Pl.‘s Mem. Opp‘n at 21-25; Def.‘s Reply to Pl.‘s Opp‘n at 1 n.1.) Plaintiff did not speсifically articulate a hostile work environment claim in his complaint or raise one in any of the
Even when “administrative claims did not formally allege a hostile work environment charge, the claim is properly before the Court[] . . .[where a] Title VII lawsuit includes the claims that are ‘like or reasonably related to the allegations of the administrativе charge and growing out of such allegations.‘” Jones v. Billington, 12 F. Supp. 2d 1, 7 (D.D.C. 1997) (citing Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)) (holding that where the plaintiff‘s complaint alleges facts forming the basis for discrimination and retaliation claims, those same facts sufficiently alluded to a claim of hostile work environment where all claims were based on conduct alleged in the EEOC charge); see also Bell v. Gonzales, Civil Action No. 03-163 (JDB), 2005 WL
Here, as in Jones, 12 F. Supp. 2d at 7, the plaintiff‘s hostile work environment claim stems from the plaintiff‘s original allegations of discrimination and retaliation. Plaintiff‘s complaint states that his EEO complaint alleged race “discrimination on the part of the defendant by, inter alia, having him arrested and prosecuted based upon trumped-up charges . . . ; barring him from access to Agency buildings; placing him on indefinite administrative leave with pay; and . . . issuing a letter of counseling.” (Compl. at 1.) These allegations are sufficient to support plaintiff‘s contention that the defendant was put on notice of a potential hostile work environment claim by plaintiff. See, e.g., Childs-Pierce v. Utility Workers Union of America, Civil Action No. 03-1271 (JDB), 2005 WL 1983577, at *14 & n.15 (D.D.C. Aug. 10, 2005) (holding that defendant was on notice that plaintiff might pursue a claim for hostile work environment where plaintiff‘s hostile work environment claim was based on the same set of facts as her disparate treatment and retaliation claims, specifically that plaintiff was subject to unwelcome harassment when she was suspended for five days, denied sick leave, ordered to provide medical documentation, ordered to
Nevertheless, plaintiff has not made a prima facie showing of a hostile work environment claim. To prevail on a hostile work environment сlaim based on race, the plaintiff employee must show that: (1) the employee was a member of a protected class; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based upon race; (4) the charged harassment had the effect of unreasonably interfering with the plaintiff‘s work performance and creating an intimidating, hostile, or offensive working environment; and (5) that the employer knew or should have known of the harassment, but failed to take any action to prevent it. Snowden v. Kelso, II, Civil Action No. 93-1393 (PLF), 1996 WL 43549, *3 (D.D.C. Jan. 31, 1996); Jones, 12 F. Supp. 2d at 11; Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 863 (7th Cir. 2005).8 The hostile work environment must be the result of discrimination based on the plaintiff‘s protected status. Kelley v. Billington, 370 F. Supp. 2d 151, 157 (D.D.C. 2005) (noting that because almost any person
Here, plaintiff has failed to satisfy essential elements of a prima facie showing of a hostile work environment claim based on race. Plaintiff describes the various facts surrounding his non-promotion, administrative leave, arrest, prosecution, and return to work. (Compl. at 1, 3-6; Pl.‘s Reply to Reply at 1-4.) However, as in both Beamon and Jones, where the courts found “one omission particularly glaring . . . [namely, that] there is no evidence that any of [the employer‘s] actions were motivated by [plaintiff‘s] race,” 411 F.3d at 863; 12 F. Supp. 2d at 12, plaintiff here has presented no direct, circumstantial, statistical, or other evidence showing that the harassment of which he complains was based on or prompted by his race, nor has he shown that his working conditions were permeated with racially discriminatory behavior. Thus, any hostile work environment claim plaintiff has sought to raise cannot survive summary judgment.
Because the plaintiff has failed to adequately rebut the defendant‘s non-discriminatory justifications for the non-promotion, investigation, and prosecution of the plaintiff, the plaintiff has not established that any material facts are left in dispute and, consequently, defendant‘s motion for summary judgment will be granted on both the discrimination and retaliation claims. Because plaintiff has failed to demonstrate that the harassment he complains of was based upon his race, summary judgment will be granted on any hostile work environment claim. A final Order accompanies this Memorandum Opinion.
SIGNED this 12th day of September , 2005.
/s/
RICHARD W. ROBERTS
United States District Judge