BOWDEN v. SMALL

Filing 42

MEMORANDUM AND OPINION. For the reasons set forth in this Memorandum Opinion, which accompanies the Court's September 29, 2009 Order, the defendant's motion for summary judgment is granted. Signed by Judge Reggie B. Walton on 09/29/09. (lcrbw2)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) ANTHONY BOWDEN, ) ) Plaintiff, ) ) v. ) Civil Action No. 05-2202 (RBW) ) G. WAYNE CLOUGH, SECRETARY, ) SMITHSONIAN INSTITUTION, ) ) ) Defendant. 1 _______________________________________) MEMORANDUM OPINION Plaintiff Anthony Bowden brings this action against the Secretary of the Smithsonian Institution ("Institution") in his official capacity, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a), 16(a) (2000) ("Title VII"), Second Amended Complaint of Employment Discrimination and Breach of Contract ("Second Am. Compl.") ¶¶ 47-59, 66-73, 88-101, 107-110, and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794a (2000) ("Rehabilitation Act"), Second Am. Compl. ¶¶ 60-65, 74-81, 102-106, 107-110, on the basis that the Institution, an agency of the United States government and his employer, engaged in discriminatory employment practices against him based on his race (African-American), Second Am. Compl. ¶¶ 47-49, 66-69, 82-86, color (black), id. ¶¶ 50-52, 70-73, 87-91, sex (male), id. ¶¶ 53-55, 92-96, religion (Baptist), id. ¶¶ 56-59, 97-101, and disabilities (panic disorder, anxiety disorder and depression), id. ¶¶ 60-62, 74-77, 102-106, and retaliated against him because of his participation in statutorily protected Equal Employment Opportunity ("EEO") activity and a related lawsuit, id. ¶¶ 63-65, 78-81, 107-110. The plaintiff also alleges that the
Pursuant to Federal Rule of Civil Procedure 25(d)(1), the Court has substituted the current Secretary of the Smithsonian Institution, G. Wayne Clough, as the defendant in this action.
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Institution violated the Rehabilitation Act, id. ¶¶ 114-17, and its settlement agreement with him, id. ¶¶ 111-13, by failing to provide him the reasonable accommodations he requested for his disabilities. This matter is currently before the Court on the defendant's Motion for Judgment On The Pleadings Or, In The Alternative, For Summary Judgment ("Def.'s Mot."), which the plaintiff opposes, Plaintiff's Opposition To Defendant's Motion For Judgment On The Pleadings Or, In The Alternative, For Summary Judgment ("Pl.'s Opp'n"). 2 For the following reasons, the Court must grant the Institution's motion. I. BACKGROUND Viewing the evidence in the light most favorable to the plaintiff, the facts are as follows. A. The Plaintiff's Employment with the Institution At all relevant times pertaining to this lawsuit, the plaintiff, a black African-American, was a practicing Baptist and "suffer[ed] from various mental disabilities, including panic disorder, anxiety disorder and depression." Second Am. Compl. ¶ 4. At the time of the filing of this lawsuit, the plaintiff had been working for the Institution for twenty-two-years, and held the position of an Exhibits Specialist in the production unit of the Exhibits Department at the National Zoological Park ("Zoo"), a component of the Institution, at the GS-1010-11 pay grade level. Id. ¶¶ 4, 12. At any given time during the plaintiff's employment between two and three other employees held the same job title as the plaintiff. Pl.'s Opp'n, Ex. 1 (Sept. 27, 2007
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The Court also considered the following documents that were submitted in connection with this motion: the defendant's Memorandum Of Points And Authorities In Support Of Motion For Judgment On The Pleadings Or, In The Alternative, For Summary Judgment ("Def.'s Mem."); the defendant's Statement Of Material Facts As To Which There Is No Genuine Dispute ("Def.'s Stmt. of Facts"); Plaintiff's Memorandum Of Points And Authorities In Opposition To Defendants' [sic] Motion For Judgment On The Pleadings Or, In The Alternative, For Summary Judgment ("Pl.'s Opp'n"); the Plaintiff's Statement of Facts As To Which There Is A Genuine Dispute ("Pl.'s Stmt. of Facts"); and the defendant's Reply To Plaintiff's Opposition to Defendant's Motion For Judgment On The Pleadings Or, In The Alternative, For Summary Judgment ("Def.'s Reply").

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Deposition of Lynn Dolnick ("Dolnick Dep.")) at 143; id., Ex. 7 (Dec. 5, 2007 Deposition of Charles Fillah ("Fillah Dep.")) at 120. Among the other Exhibits Specialists were one Philippine female with a brown complexion and no religious affiliation, several African-American males of either black or brown skin color and with various religious affiliations, and none with any known disabilities. Pl.'s Opp'n, Ex. 5 (Dec. 4, 2007 Deposition of Anthony Bowden ("Bowden Dep. I")) at 66-67; id., Ex. 1 (Dolnick Dep.) at 143, 146-47; id., Ex. 7 (Fillah Dep.) at 57; id., Ex. 11 (Sept. 28, 2007 Deposition of Jeffery Baxter ("Baxter Dep.")) at 120-21; see also Second Am. Compl. ¶ 27(c), (e). The plaintiff maintains that his employment at the Institution has been marred by the following instances of unfairness, discrimination, and hostility. 3 Second Am. Compl. ¶ 23. 1. The Plaintiff's Allegation of Inadequate Compensation

At his request, the plaintiff received a "desk audit" on October 17, 2003, to determine the accuracy of his responsibilities as compared with his grade level and compensation. Id. ¶ 23(e)In his second amended complaint, the plaintiff alleges that the discrimination commenced in 2001. Second Am. Compl. ¶ 23(a). Specifically, the plaintiff maintains that beginning around August 2001, he was not compensated for extra work he completed while his Jewish co-workers who "performed higher graded duties" were promoted based on performing these additional responsibilities. Id. ¶¶ 17, 23(b)-(c). In addition, the plaintiff alleges that in May 2003, his immediate supervisor attempted to revise his job title to "Exhibit Specialist/Project Leader," but that he refused the revision because if his position acquired the description of "Leader," he wanted an accompanying promotion as well. Id. ¶ 23(d), (e). However, because the plaintiff's oldest EEO complaint that is at issue in this lawsuit was filed in August 2004, and it only alleges unlawful conduct by the Institution as of October 2003, id. ¶¶ 17, 23; Pl.'s Opp'n, Ex. 16 (Report of Investigation 04-16-080604, Oct. 8, 2004 Affidavit of Anthony Bowden), the plaintiff has not exhausted his administrative remedies for any events allegedly occurring prior to October 2003. See Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976); Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) ("a timely administrative charge is a prerequisite to initiation of a Title VII action in the District Court . . . 'subject to waiver, estoppel, and equitable tolling.'"); see also 42 U.S.C. § 2000e5(e)-(f) (setting forth the time limitations for filing charges with the Equal Employment Opportunity Commission or a United States district court). As with Title VII claims, the administrative exhaustion requirement equally applies to Rehabilitation Act claims. See Spence v. Straw, 54 F.3d 196, 200 (3d Cir. 1995) ("[A] party is barred from suing a federal agency for violation of section 501 [of the Rehabilitation Act] if he or she has failed to exhaust administrative remedies under Title VII."); Doe v. Garrett, 903 F.2d 1455, 1458 (11th Cir. 1990) (same); McGuinness v. U.S. Postal Serv., 744 F.2d 1318, 1319-20 (7th Cir. 1984) (same). Accordingly, the Court will address only those alleged discriminatory acts occurring as of October 2003.
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(f). The desk audit determined that the plaintiff's position was accurately graded as an 11, which was the plaintiff's existing grade level. Def.'s Mem., Ex. 28 (Evaluation Statement); see also id., Ex. 34 (Federal Position Description Cover Sheet); id., Ex. 32 (Grade Evaluation Guide for Visual Arts Work). The plaintiff disputed the outcome of the desk audit, alleging that it was "discriminatory, retaliatory, and inaccurate" because the audit "did not include many of the duties [that he] actually performed." Second Am. Compl. ¶¶ 23(e)-(g), (o), 25; Def.'s Mem., Ex. 33 (Nov. 6, 2003 Letter from Anthony Bowden to Lynn Dolnick). The desk audit included an interview with both the plaintiff and his supervisor, and, although the plaintiff does not know what information his supervisors provided the auditor, Pl.'s Stmt. of Facts at 44, he contends that his supervisors must have "lied to the auditor about [the plaintiff's] duties in order to prevent him from receiving a promotion" and must have neglected to "include in his position description the additional duties that he was performing so that he would not be promoted." 4 Second Am. Compl. ¶ 23(j); see also id., ¶¶ 23(g), 25. In response to the plaintiff's complaints about the audit, the Institution offered to reconduct it, but the plaintiff refused a second desk audit, stating that he "[had] given the auditor all of the info[rmation] that was needed for [the auditor] to make a clear and accurate assessment of what [his] job [entails]." Def.'s Mem., Ex. 18 (Nov. 12, 2003 E-mail from Anthony Bowden to Lynn Dolnick).

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Nowhere does the plaintiff indicate what these additional duties include, but, regardless, the Court is not persuaded that having the desk audit include duties that the plaintiff was actually performing was anything but proper, given that the purpose of the desk audit was to make an accurate assessment of his duties.

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2.

The Plaintiff's Performance Assessments Allegations

The plaintiff challenges two assessments of his work performance. The first assessment that he contests was his "Fully Successful" rating for his job performance from "June 2004 through December 2004." 5 Second Am. Compl. ¶ 28(f). The plaintiff alleges that the rating he received is inexplicable because it was the first time during his tenure with the Zoo that he had not received an "Outstanding" rating. Pl.'s Stmt. of Facts at 22; Def.'s Mem., Ex. 9 (Apr. 22, 2004 National Zoological Park, Smithsonian Institution, Performance Appraisal Form). He also challenges his "Improvement Needed" rating for his 2005 job performance. Second Am. Compl. ¶ 42. That assessment was rendered because although the plaintiff received a "Met" or "Exceeded" rating in six of the seven categories of that review, he received an "Improvement Needed" rating in the areas of "Communication, Teamwork and Customer Service Skills." Id.; Def.'s Mem., Ex. 10 (Feb. 3, 2006 National Zoological Park, Smithsonian Institution, Performance Appraisal Form). The plaintiff disputed this rating when he received it and refused to sign the appraisal form based upon his own assessment of his "strong communication skills" and the fact that the rating was inconsistent with the verbal comments that his supervisor conveyed when reviewing the performance assessment with the plaintiff, a verbal review which did not address the plaintiff's communication skills but included reassuring phrases like "everything [i]s working out fine" and "keep up the good work." Second Am. Compl. ¶ 43.

The plaintiff's judicial complaint is inconsistent as to when he received his 2004 performance review and who reviewed his job performance. In one portion of his complaint he refers to "May[] 2004" as the date when his "second line supervisor" gave him his 2004 rating, Second Am. Compl. ¶¶ 19, 23(r), 28(f), but elsewhere he refers to "March 1, 2005" as the date when Mr. Baxter, his immediate supervisor, gave him his 2004 rating, id. ¶ 28(f). Because the record contains the plaintiff's March 17, 2005 EEO complaint, which indicates that the plaintiff received the rating on March 1, 2005, id., the Court assume that is the correct date.

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3.

The Plaintiff's Non-Selection Allegations

The plaintiff also challenges the Institution's hiring of his superior, a job the plaintiff aspired to acquire. The position was filled on April 22, 2004, by the selection of a "white, male, Christian [with] no disability" as the GS-1010-12 Supervisory Exhibits Specialist, the immediate supervisory position over the position held by the plaintiff. Id. ¶ 18; see also id. ¶ 24(a). After the vacancy of the position was first posted, the position's description was revised to include the need for computer skills. Pl.'s Stmt. of Facts at 38-39. Following this revision, the plaintiff contacted one of his supervisors to inquire about the position's computer skills requirement and was informed by the supervisor that she would not be aware of who applied for the position until the date for submitting applications for the position closed, although she told the plaintiff that she was aware that he had not applied for the position before the computer-skills revision was added. Def.'s Mem., Ex. 40 (Aug. 28, 2003 E-mail from Lynn Dolnick to Anthony Bowden). The plaintiff then applied for the position and he contends that his non-selection was wrongful because he "was significantly better qualified for the position than [the selectee] and had been performing many of the position's duties for some time." Second Am. Compl. ¶ 24(b). The plaintiff also alleges that the revision for the position was made in retaliation for his prior EEO activity because computer skills "were not relevant to the position but . . . [had] the effect of reducing [the] [p]laintiff's ability to compete and/or qualify for the position." Id. ¶ 24(g). The plaintiff also complains that his "interview for the position was different from that of other candidates in that it lasted only about 15 minutes[,] . . . during [which] . . . he was told words to the effect that [the interviewers] 'knew everything about [him].'" Id. ¶ 24(d).

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4.

The Plaintiff's Hostile Work Environment Allegations

The plaintiff provides a litany of general allegations that he contends form the basis for the hostile work environment to which he was purportedly subjected. Those allegations include that he was: question[ed] . . . about his activities (. . . [while] other employees [were not subjected to such questions]); assign[ed] duties . . . that [he] should not be doing because they [we]re properly [his supervisor's responsibilities]; sp[oken] to . . . in a harsh and demanding manner when [his supervisor] d[id] not treat other employees of other protected groups in that manner; more closely monitor[ed] . . . than . . . other employees; re-assigned . . . to a small, windowless office; deliberately overloaded . . . with work assignments; [not] . . . provide[d] [with] reasonable accommodations to which he is entitled by law and [by the terms of a] settlement [agreement;] and sp[oken] to . . . in an unprofessional manner. Id. ¶¶ 23(t), 28(d). He also lists the following specific incidents that he contends created a hostile work environment: a supervisor stating "you people" in his presence, which he took as a racial slur, id. ¶ 28(h); his supervisor calling him "broad shoulder[ed]," which he took as a euphemism for being a black, African-American male, Pl.'s Opp'n at 11-12; see also Second Am. Compl. ¶ 23(l)-(k), his receipt of a counseling letter after he remarked that one of his co-workers "must be crazy," Second Am. Compl. ¶ 28(b); requiring him to "schedule in advance all sick leave," which the plaintiff understood to include unanticipated illnesses (not simply the planned scheduling of his doctors' appointments), id. ¶ 28(c); requiring that he "attend a meeting only for supervisors[,] which was clearly above his . . . job responsibilities and [that] made [him] feel uncomfortable," id. ¶ 28(e); his supervisor "yell[ing] at [him] in front of many [Zoo] visitors" regarding one of his job related tasks, id. ¶ 41(a); being provided with "impossible work deadlines," id. ¶ 41(c); being assigned more "work tickets" than his co-workers, id. ¶ 41(d); 7

"[permitting an Asian-American, brown, atheist female co-worker with unknown disability status] to work in a comfortable office environment while [he] ha[d] to do 'grunt work' [outdoors] in all types of weather," id. ¶¶ 27(e), 41(e); and being assigned "to clean a wall in the Giraffe House which was filled with animal droppings and other hazardous germs" despite the plaintiff's protestations that he "suffered from allergies," and "didn't have the proper safety equipment . . . and . . . had not been vaccinated against the germs that might be in th[e] [giraffe] area [due to one giraffe's death from tuberculosis]," id. The plaintiff further alleges that he was mocked and ignored when he complained about having "to work alone on large and heavy projects," despite his back injury that had been caused by similar "heavy lifting" assignments. Id. ¶ 23(k)-(l). In particular, the plaintiff alleges that when he complained to his immediate supervisor that he "could not physically do [the work assigned to him] by himself because of the magnitude of the work and the size/weight of the machines (up to 500 pounds)," the supervisor recommended that the plaintiff "assign other employees to help," an unhelpful suggestion, according to the plaintiff, due to the fact that he was not a "supervisor" or "team leader" and therefore "ha[d] no authority to assign [these] duties [to others]" or "direct other employee [sic] to assist him." Id. ¶ 28(g). 5. The Plaintiff's Settlement Agreement Breach Allegations

In April 1999, the plaintiff was transferred to the Zoo from the American Museum of Natural History, both components of the Institution, pursuant to a settlement agreement stemming from his previous lawsuit against the Institution. Id. ¶¶ 14-15. The settlement agreement required that the Institution "make certain specific reasonable accommodations to [address the] [p]laintiff's medical conditions," id. ¶¶ 14-15, i.e., his panic disorder, anxiety

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disorder and depression, id. ¶ 32, by "allow[ing him] short breaks to go to the bathroom or if he is not feeling well, . . . permit[ing him] to go outside for a breath of fresh air when working in the spray booth, . . . allow[ing him] to eat snacks when he takes his medication . . . [and] continu[ing] to . . . permit[] [him to take] time for doctor's appointment [sic] in accordance with agency policies and availability of leave." Id. ¶ 15. The plaintiff alleges that on many occasions since his transfer to the Zoo he has complained to his supervisors that the Institution was not honoring the provisions of the settlement agreement to accommodate his disabilities due to his supervisor's "continuous[] question[ing]" of him when he leaves for bathroom breaks and doctors' appointments, and his supervisor's requirement that he document his medical visits. Id. ¶¶ 26, 29-34. The plaintiff also maintains that the Institution "failed to take action appropriate action [sic] regarding an assault on [him] by a [female] co-worker," id. ¶ 29, when she "intentionally and repeatedly bump[ed] against him," id. ¶ 37, and that the Institution "subject[s] [him] to physical assault, intimidation and humiliation," id. ¶ 39, by forcing him to attend meetings with this co-worker because she "aggravate[s] his disabilities," id. ¶ 38. B. Procedural History 1. The Plaintiff's Judicial Complaint

The plaintiff filed five EEO administrative complaints against the Institution between August 6, 2004, and May 26, 2006. 6 Id. ¶¶ 7-10. After receiving the Institution's final decisions on three of his five EEO administrative complaints, Second. Am. Compl. ¶¶ 7, 9-10, and waiting

Despite the plaintiff's representation in his Second Amended Complaint that he "filed four (4) individual administrative formal complaints of discrimination," throughout his complaint he actually discusses five prior complaints. Second Am. Compl. ¶¶ 6-11.

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180 days after the filing of the two remaining administrative complaints during which no action was taken by the Institute, id. ¶¶ 8, 11 (citing 42 U.S.C. § 2000e-16(c) (stating that the plaintiff may bring a lawsuit "after one hundred eighty days from the filing of the initial charge with the department, agency, or unit"), the plaintiff initiated this action, Second Am. Compl. ¶ 6. In his Second Amended Complaint, the plaintiff has pled eighteen counts, comprising four legal theories: (1) that the Institution violated Title VII and the Rehabilitation Act by unlawfully subjecting him to a hostile work environment based on his race (Count 1), id. ¶¶ 4749; color (Count 2), id. ¶¶ 50-52, gender (Count 3), id. ¶¶ 53-55; religion (Count 4), id. ¶¶ 56-59; and disabilities (Count 5), id. ¶¶ 60-62; (2) that the Institution violated Title VII and the Rehabilitation Act by unlawfully discriminating against him by (a) not selecting him for the Supervisory Exhibits Specialist position based on his race (Count 7), id. ¶¶ 66-69; color (Count 8), id. ¶¶ 70-73; and disabilities (Count 9), id. ¶¶ 74-77; (b) not compensating him for the duties that he was actually performing based on his race (Count 11), id. ¶¶ 82-86; color (Count 12), id. ¶¶ 87-91; gender (Count 13), id. ¶¶ 92-96; religion (Count 14), id. ¶¶ 97-100; and disabilities (Count 15), id. ¶¶ 102-06; and (c) not providing him accommodations he was entitled to based on his disabilities (Count 18), id. ¶¶ 114-17; (3) that the Institution violated Title VII and the Rehabilitation Act when it unlawfully retaliating against him based on his prior EEO activity and related litigation by (a) harassing him and fostering a hostile work environment (Count 6), id. ¶¶ 63-65; (b) not selecting him for the Supervisory Exhibits Specialist position (Count 10), id. ¶¶ 78-81; and (c) not compensating him for the duties that he was actually performing, (Count 16), id. ¶¶ 107-10; and (4) that the Institution breached its settlement agreement with him by not

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providing him reasonable accommodations according to the terms of that agreement (Count 17), id. ¶¶ 111-13. As a result of the allegations advanced in each count of his complaint, the plaintiff contends that (1) he lost wages he would have otherwise received and a promotion to the proper grade level in recognition of the responsibilities he is currently performing, (2) was unjustly denied a promotion to the Supervisory Exhibits Specialist position when someone not of his protected class was selected, and (3) was forced to work in a hostile and discriminatory environment causing him to "suffer[] great emotional pain and suffering," including the following symptoms: exacerbat[ion of] his anxiety disorder, panic disorder and depression; distress, humiliation and work related stress; physical pain and suffering such as shortness of breath, heart palpitations, dizziness, headaches, lack of appetite and lack of sleep . . . . Id. ¶ 46(a)-(d). The plaintiff maintains that he "has been forced to seek medical treatment for [these] workcaused symptoms," resulting in hospital visits and the need to take medications. Id. ¶ 46(c)(d). 2. The Institution's Motion to Dismiss, Or in the Alternative, For Summary Judgment

The Institution has filed a motion to dismiss this action pursuant to Federal Rule of Civil Procedure 12(h) or, in the alternative, for summary judgment pursuant to Rule 56. See Def.'s Mot. Specifically, the Institution contends that: (1) the plaintiff cannot maintain his hostile work environment claims because he has alleged "nothing more than ordinary work-place slights insufficient to support an employment discrimination or retaliation claim," Def.'s Mem. at 4; (2) the plaintiff cannot establish that the Institution's legitimate, non-discriminatory rationale for 11

selecting the candidate it did for the Supervisory Exhibits Specialist position was false, and the Institution's selection decision was not based on the plaintiff's race, color, disabilities, or reprisal, id. at 23; (3) the plaintiff cannot maintain his claims that the Institution failed to properly compensate or promote him because he has not proffered evidence to invalidate the legitimate, non-discriminatory rationale offered by the Institution for the classification of his position ­ i.e., an independent analysis of his position concluded that it was properly classified and compensated, id. at 29-31; (4) the plaintiff has failed to proffer enough evidence to support the conclusion that the Institution made any decision for the purpose of retaliating against him, Def.'s Reply at 4; (5) the plaintiff cannot maintain his breach of contract claim because this Court lacks subject matter jurisdiction over this claim, Def.'s Mem. at 34-35, but that even if the Court had jurisdiction, this claim is time-barred, id. at 42, and that, in any event, he has not proffered evidence to demonstrate a contractual breach, id. at 37-38; (6) the plaintiff cannot maintain any claim that his disabilities were not accommodated because the acts over which he complains are not actionable, id. at 44; and (7) the plaintiff has conceded as accurate the Institution's version of the facts by failing to oppose them in accordance with Local Rule 7(h), which requires that the party opposing summary judgment submit a "separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, . . . includ[ing] references to the parts of the record relied on to support the statement," 7 Def.'s Reply at 1-2.

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As to the sufficiency of the Plaintiff's Statement of Facts as to Which There is a Genuine Dispute, which the defendant contests as inadequate in his reply, Def.'s Reply at 2, while the plaintiff's submission is prepared in a convoluted and unhelpful format that is far from "concise," it does not constitute the type of "egregious conduct" to justify the Court treating the defendant's statement of facts as conceded as urged by the defendant. Burke v. Gould, 286 F.3d 513, 518 (D.C. Cir. 2002).

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In opposition to the Institution's motion, the plaintiff contends that dismissal or, in the alternative, summary judgment is improper because: (1) the "complaint easily satisfies the requirements of the general rules of pleading set forth [in the Federal Rules]," Pl.'s Opp'n at 2-3; (2) he has properly pled the elements of a breach of contract claim and met the notice pleading requirements for this claim, id. at 41; (3) there are witness credibility issues that create genuine issues of material fact, id. at 4; (4) the evidence suggests that the Institution's justification for its employment decisions was discriminatory and illegitimate, id. at 7; and (5) there is ample evidence to establish the factual basis for all of his claims, id. at 8, 29, 38, 40-42. II. LEGAL ANALYSIS 8 A. The Defendant's Motion to Dismiss The first issue that the Court will address the defendant's subject matter jurisdiction challenge. See Fed. R. Civ. P. 12(h)(3). The defendant argues that the Court does not have subject matter jurisdiction over the plaintiff's breach of contract claim (Count 17) because the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000), only confers jurisdiction upon the United States Court of Federal Claims to consider a contract claim for damages against the United States government valued at over $10,000. Def.'s Mem. at 34-35; see Second Am. Compl. ¶¶ 46, 113, 117 (alleging as part of Count 17 that the plaintiff suffered all the damages listed in paragraph
As the plaintiff points out, the defendant presumably intended to move in the first instance for judgment under Federal Rule of Civil Procedure 12(c), Pl.'s Opp'n at 2 n.3, because although the defendant cited Federal Rule of Civil Procedure 12(h), Def.'s Mot. at 1, and the case law assessing the pleading standard of Rule 8, Def.'s Mem. at 2, only Rule 12(c) provides for the relief the defendant is seeking, i.e., judgment on the pleadings. Because, as set forth below, the Court finds that the plaintiff's complaint easily satisfies the general pleading standards under Rule 8, which defeats the basis underlying the defendant's alternative motion for judgment on the pleadings under Rule 12(h), and because the plaintiff has set forth "the 'grounds' of his 'entitle[ment] to relief,'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Court will evaluate the balance of the defendant's motion that raise nonjurisdictional challenges under the defendant's alternative basis for relief, summary judgment, which is governed by Rule 56.
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46, which, in turn, incorporates the prayer for relief seeking $300,000 in economic damages based on his lost wages, medical treatment, and pain and suffering). The plaintiff failed to address this argument in his opposition. Pl.'s Opp'n at 39-41. "It is to be presumed that a cause lies outside [a federal court's] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). The plaintiff has not met this burden through his silence, but even if he had addressed the jurisdictional challenge to his contract claim, the Institution's position would nonetheless prevail. Although the Court has federal question jurisdiction under 28 U.S.C. § 1331 (2006) and 28 U.S.C. § 1343(a)(3) (2006) over the plaintiff's Title VII and Rehabilitation Act claims, only the Court of Federal Claims has jurisdiction to hear contract claims alleging damages above $10,000, as this claim does by alleging economic damages of $300,000, see 28 U.S.C. § 1491(a)(1) (2006); Second Am. Compl. ¶¶ 46, 113, 117. And as the District of Columbia Circuit has held, "even though Title VII might have been the basis of a settlement agreement, a breach claim is a straightforward contract dispute." Greenhill v. Spellings, 482 F.3d 569, 575 (D.C. Cir. 2007) (citing Hansson v. Norton, 411 F.3d 231, 232 (D.C. Cir. 2005) ("This court generally treats settlement agreements as contracts subject to the exclusive jurisdiction of the Court of Federal Claims."); see also Brown v. United States, 389 F.3d 1296, 1297 (D.C. Cir. 2004). 9

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Nor is there any basis for this Court to entertain the breach of contract claim upon the theory that the settlement agreement was approved by this Court in the plaintiff's previous case, and therefore the Court can assume jurisdiction on its inherent authority to oversee and enforce its decrees. See Def.'s Mem. at 34 n.10. The settlement agreement states nothing about this Court retaining jurisdiction over the matter, Def.'s Mem., Ex. 37 (Stipulation of Settlement and Dismissal), and without evidence before it indicating otherwise, the Court cannot assume that it retained jurisdiction over the settlement agreement. See Kokkonen, 511 U.S. at 381-82 ("The judge's mere awareness and approval of the terms of the settlement agreement do not suffice to make them part of his order[,] . . . . [and] [a]bsent [incorporation of (continued . . .)

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Accordingly, the Court must dismiss without prejudice Count 17 of the plaintiff's Second Amendment Complaint based on its lack of jurisdiction to consider the merits of this claim. 10 B. Summary Judgment The Court will assess the survivability of remaining counts of the plaintiff's complaint under the standard of review that governs summary judgment. A motion for summary judgment under Rule 56 is proper where "all parties both [had] a 'reasonable opportunity to present all material made pertinent to such a motion by Rule 56' and a chance 'to pursue reasonable discovery.'" Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997) (quoting Fed. R. Civ. P. 12(b)(6)) (citation omitted); see Fed. R. Civ. P. 12(b) & 56. "Given that the [defendant's] motion[] [was] in the alternative for summary judgment and that the parties had the opportunity to submit . . . materials in support and in opposition, it is not unfair to [the plaintiff] to treat the [motion] as [one for] summary judgment[]." Americable Int'l v. Dep't of Navy, 129 F.3d 1271, 1274 n.5 (D.C. Cir. 1997). To grant a motion for summary judgment under Rule 56(c), the Court must find that "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Bayer v. U.S. Dep't of

( . . . continued) a settlement agreement into a court order] . . . , enforcement of the settlement agreement is for state courts, unless there is some independent basis for federal jurisdiction."). A dismissal without prejudice is proper so that the plaintiff may seek relief for his breach of contract claim with the United States Court of Claims, if he chooses to do so. See Brown, 389 F.3d at 1298.
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Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992). However, the non-moving party cannot rely on "mere allegations or denials . . . , but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). In addition, the non-moving party cannot rely upon inadmissible evidence to survive summary judgment; rather, the non-moving party must rely on evidence that would be arguably admissible at trial. Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (finding that "'sheer hearsay[]' . . . 'counts for nothing' on summary judgment" because "[t]o survive summary judgment the non-moving party must 'produce evidence . . . capable of being converted into admissible evidence'" (internal citations omitted)). Under Rule 56(c), if a party fails to "establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, the party moving for summary judgment bears the burden of establishing the absence of evidence that supports the non-moving party's case. Id. 1. The Plaintiff's Hostile Work Environment Claims 11

"When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII [and the Rehabilitation Act are] violated." 12

Counts 1-5 of the plaintiff's complaint allege that he was subject to a hostile work environment based on his race, color, gender, religion, and disabilities. Second Am. Compl. ¶¶ 47-62. The plaintiff also brings one of his hostile work environment claims (Count 5) under the Rehabilitation Act. To establish this claim, the following is required: To make out a prima facie case of a hostile work environment based on disability, plaintiff must show that (1) []he is a qualified individual with a disability; (2) []he was harassed; (3) the harassment occurred because of [his] disability; (4) the harassment affected a term, condition, or (continued . . .)
12

11

16

George v. Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993))) (internal quotation marks omitted). "To establish hostile work environment claims under Title VII . . . [the] plaintiff[] must show harassing behavior sufficiently severe or pervasive to alter the conditions of [his] employment." Steele v. Schafer, 535 F.3d 689, 694 (D.C. Cir. 2008) (citing Pa. State Police v. Suders, 542 U.S. 129, 133 (2004)) (internal quotations omitted). The evidence must show that the environment was "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). "[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. In other words, the conduct complained of "must be extreme to amount to a change in the terms and conditions of employment," Faragher, 524 U.S. at 788, although it need not rise to the level of conduct which "seriously affect[s] [the] employee['s] psychological well-being," Harris, 510 U.S. at 22. However, conduct such as "simple teasing, offhand comments, and isolated incidents (unless
( . . . continued) privilege of employment; and (5) the employer knew or should have known of the harassment but took no action to prevent it. Marshall v. Potter, __ F. Supp. 2d __, __, 2009 WL 2023496 at *4 (D.D.C. 2009) (citing Zeigler v. Potter, 510 F. Supp. 2d 9, 17 (D.D.C. 2007)). Regardless whether the plaintiff's hostile work environment claims are advanced under Title VII or the Rehabilitation Act, the essential elements of the claim are "that [the plaintiff's] employer subjected him to 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008).

17

extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher, 524 U.S. at 788 (citation and internal quotation omitted). On the other hand, conduct which can "reasonably be perceived, and is perceived, as hostile or abusive" is actionable. Harris, 510 U.S. at 22. The Institution argues that the plaintiff has not established the existence of a hostile work environment by objective evidence, Def.'s Mem. 13-16, because the plaintiff's interpretation of the evidence is not reasonable, and no claim can lie based on the facts alleged, Def.'s Reply at 12-14. The plaintiff responds that "[a] fair examination of the evidence . . . reveals a persistent, severe, and pervasive pattern of abuse and mistreatment, from which any reasonable jury could conclude the workplace was 'permeated with discriminatory intimidation, ridicule, and insult [that is] sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and create an abusive working environment.'" Pl.'s Opp'n at 9 (quoting George, 407 F.3d at 416). The Court finds that the Institution has the prevailing position because it cannot find that the plaintiff can demonstrate to a jury that his perception of being subjected to a hostile work environment was reasonable or that his conditions of employment changed as a result of the events alleged. In short, the plaintiff has merely complied a long list of isolated incidents, which even when considered collectively, do not give rise to the level of actionable hostile work environment claims. The plaintiff has not alleged facts which would support a finding that he was subjected to an objectively hostile or abuse work environment. See Faragher, 524 U.S. at 787; see also George, 407 F.3d at 415. Rather, the plaintiff takes great offense to what amounts collectively to nothing more than sporadic "offhand comments[] and isolated incidents." Faragher, 524 U.S. at

18

788. The plaintiff's extensive enumeration of what he alleges were hostile acts amount to nothing more than neutral comments perceived by the plaintiff as racial slurs, especially in the absence of any underlying racial context; supervisors' requests that he perform tasks within the realm of his employment responsibilities, account for his whereabouts, and abide by workplace procedures and appropriate dress standards; and irrelevant and inadmissible office place rumors. Pl.'s Opp'n at 10-29. While the Court considered all of the plaintiff's allegations based on the totality of the circumstances, as it must, the following allegations warrant specific discussion. The plaintiff claims that a supervisor made a reference to "you people" in his presence, which the plaintiff interpreted as a racial slur directed at the supervisor's African-American subordinates. Pl.'s Opp'n at 10-11; see also id., Ex. 11 (Baxter Dep.) at 112-13, 118-20. This interpretation is not only irrational in the context in which it was made ­ made by the supervisor about all of his subordinates without regard to race, ethnicity, gender, religion, or disabilities ­ but even if the statement was intended to have a derogatory meaning, it did not alone create a work environment of the level of severity necessary for the plaintiff's claims to survive. While being "subjected to the phrase 'you people'" by a supervisor may be "rude and insensitive,""[such] comments and incidents do not describe a hostile environment under Title VII" or the Rehabilitation Act. Caldwell v. Servicemaster Corp., 966 F. Supp. 33, 51 (D.D.C. 1997); see also Prince v. Rice, 570 F. Supp. 2d 123, 135 n.8 (D.D.C. 2008) (finding that the "mere use" of the phrase "'you people'" did not create a triable issue of racial discrimination). 13

Likewise, the plaintiff's allegations that his supervisor made "an offensive racist comment" when he stated that it appeared that the plaintiff had "attitude" by wearing his hat at an angle, Pl.'s Opp'n at 11, is not objectively reasonable. A comment regarding one's attitude being purportedly projected by the manner in which one dresses cannot be said to implicate one's race without additional evidence that proves the point; the inferential leap necessary to connect such seemingly unrelated subjects is simply too tenuous. Cf. Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345-46 (7th Cir. 1999) (finding that (continued . . .)

13

19

Similarly, the plaintiff complains that he was stereotypically referred to as "broad shoulder[ed]," along with the other African-American men in the Exhibits Department by two of his female supervisors after he inquired about why he was being asked to lift heavy objects. Pl.'s Opp'n at 11-12. The plaintiff maintains that this term was a euphemism for being a black, African-American male. Id. The Court cannot find a legally sufficient level of hostility in this comment to support the plaintiff's claim. The plaintiff admits that he is stronger and has broader shoulders than the only person in his department excluded from his supervisors' broadshouldered description, i.e., his female co-worker who weighs about 100 pounds (roughly forty to fifty pounds less than the plaintiff when the comment was made). Pl.'s Opp'n, Ex. 5 (Bowden Dep. I) at 73, 158-62. Without any information that the comment was factually inaccurate with respect to him and his male colleagues in comparison to his female colleague ­ an inference which the evidence supports ­ the Court again cannot import to the comment any racially discriminatory meaning or intent. Moreover, the plaintiff has failed to proffer any evidence to demonstrate how any of the alleged remarks by his supervisors "affect[ed] a 'term, condition, or privilege' of [his] employment within the meaning of Title VII" or the Rehabilitation Act. Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57, 67 (1986) (citing, among others, Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) for the principle that the "'mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII")).

( . . . continued) course language and comments that did not "implicate negative attitudes toward African-Americans. . . . cannot be said with any degree of certainty" to possess a discriminatory character).

20

Having alleged no other express comments that he contends fostered a hostile work environment, the plaintiff relies upon a cadre of circumstantial evidence, such as the amount and nature of work assigned to him, his environmental workplace conditions (including having to work with colleagues he does not wish to work with), none of which, even considered in their totality, demonstrate that the plaintiff was forced to endure a hostile working environment in violation of Title VII or the Rehabilitation Act. First, the plaintiff makes several allegations relating to his workplace responsibilities. Specifically, the plaintiff contends that he was given extra tasks, including heavy lifting, and that he had to work outside and in the animal living quarters to a greater extent than a Filipino female on the staff who was brown-skinned and had no known religious affiliation or disability. These allegations do not demonstrate a hostile work environment for several reasons. As the plaintiff admits, he is clearly larger than the only woman on the staff, Pl.'s Opp'n, Ex. 5 (Bowden Dep. I) at 73, 158-62 (indicating that the plaintiff was about 50 pounds heavier than his female coworker during the time period pertinent to this lawsuit). And, while all Exhibits Specialists must perform some lifting, 14 Def.'s Mem., Ex. 2 (Bowden Dep. I) 72-73, 162; id., Ex. 34 (Federal Position Description Cover Sheet) at 6, the tasks among all Exhibits Specialists vary according to their skill and experience, see Pl.'s Opp'n at 14; id., Ex. 1 (Dolnick Dep.) at 143-47; id., Ex. 5 (Bowden Dep. I) at 76; Def.'s Mem., Ex. 2 (Bowden Dep. I) at 76. In fact, sometimes Exhibits Specialists' tasks varied significantly, Def.'s Mem., Ex. 2 (Bowden Dep. I) at 67-68, 71-72, 84;

The plaintiff makes contradictory allegations on this point. In one section of his opposition brief he argues that he and "other African-American males" were "exclusively assigned [to do] heavy moving," Pl.'s Opp'n at 11-12, but later remarks that there was one instance when he and only one of his fellow African-American male co-workers was assigned to move heavy objects, id. at 14. This latter allegation merely adds to the plaintiff's admission that the tasks assigned to the Exhibits Specialists varied.

14

21

id., Ex. 4 (Bowden Dep. II) at 23-24; Pl.'s Opp'n, Ex. 1 (Dolnick Dep.) at 142-43 ­ such as when the Institution was experiencing a staff shortage and often employees' tasks were dictated by necessity, Def.'s Mem., Ex. 2 (Bowden Dep. I) at 114-15, 117-18; id., Ex. 4 (Bowden Dep. II) at 23-24 ­ while sometimes the Exhibits Specialists have "basically the same" responsibilities, id., Ex. 2 (Bowden Dep. I) at 68. In addition, although the plaintiff remarks that his female coworker was able to sit at her desk all day, Pl.'s Opp'n at 13, he admits that he too has a desk, Def.'s Mem., Ex. 4 (Bowden Dep. II) at 207, where he would just sit when he had nothing else to do, id., Ex. 4 at 208. Finally, his allegations that his supervisors were troubled when he wore biking clothes to work, Pl.'s Opp'n at 23, or that he was reprimanded on one occasion in front of Zoo visitors, Pl.'s Stmt. of Facts at 18, do not rise to the level of severity or frequency needed to establish a hostile work environment or show that the conditions of his employment were affected. Second, as to the plaintiff's claims that his workplace conditions were unsafe "and it was beyond [his] power to improve the situation," Pl.'s Opp'n at 16, not only has the plaintiff stated that he was in charge of ordering the machinery and keeping the workshop orderly and clean, Def.'s Mem., Ex. 2 (Bowden Dep. I) at 78, 80; id., Ex. 4 (Bowden Dep. II) at 146-47; see also id., Ex. 33 (Nov. 6, 2003 Letter from Anthony Bowden to Lynn Dolnick) at 2 (representing that the plaintiff was the "Safety Officer" and "Fire Officer for Exhibit Office" and "[o]rganize[d] and supervise[d] production shop operations"), and he could have acquired the safety equipment he contends was not made available to him, id., Ex. 4 (Bowden Dep. II) at 68, 73 (acknowledging that he could have acquired the items from another "shop" at his work place or purchased them at a store)), he has acknowledged that his requests for some of the additional safety equipment

22

probably was beyond his supervisors' authority to approve, id. at 72. Moreover, after the plaintiff complained about it being unsafe to use two saws at his worksite due to improper ventilation, id., Ex. 2 (Bowden Dep. I) at 118, he admits that he was not required to work "much" at that location again, id. at 118, 120-21, and subsequently has not shown how his selfdesignated relocation affected the conditions under which he carried out his employment responsibilities. Id. On this record, the plaintiff's concerns about the safety of his work environment fall well short of the standard necessary to establish a hostile work environment, especially given that he could have taken steps to improve the conditions, at least to some extent. Third, while the plaintiff complains about being required to document the time when he left work for medical reasons and to account for his bathroom breaks, he admits that his pay was never reduced or that he was not permitted to take leave when requested. Id., Ex. 4 (Bowden Dep. II) at 206. Accordingly, the Court is unable to find that his work environment was affected by the requirement that he document his whereabouts. Moreover, with respect to the inquiries made by his supervisors concerning his whereabouts when he would leave take bathroom breaks and go to medical appointments, the plaintiff's own description of these inquiries suggests no unlawful ulterior motives by his supervisors, other than to be apprised his whereabouts when he was away from his workstation. Id., Ex. 4 (Bowden Dep. II) at 207-09. Indeed, the specific exchange between the plaintiff and his supervisor about which he complains merely involved his supervisor stating that he "better manage [his medical] appointments" and that he had to provide a "doctors [sic] note" or a "regular app[ointment] schedule" to his supervisors instead of taking "immediate" unexcused absences as he had done in the past. Id., Ex. 7 (Mar. 16, 2004 E-mail from Kathleen Samity to Anthony Bowden) (listing five times over 15 days when the plaintiff

23

either left work "immediately after talking to [his] doctors" or called to indicate that he was taking sick leave). Moreover, the plaintiff admits that sometimes it takes him about twenty minutes to go to the bathroom, id., Ex. 4 (Bowden Dep. II) at 287, and that on other occasions he just "step[s] out," id. at 209. Considering that an employer has a general interest in ensuring that it is accurately compensating employees for the time they are at work or for when they have taken leave, the Court cannot find fault with the Institution requiring the plaintiff to account for his whereabouts or provide his employer with a more predictable work schedule. Fourth, the plaintiff's allegation that the Institution condoned at least one "assault" against him by not adequately responding when his co-worker "rammed" him in the shoulder as she passed, 15 causing him "anxiety, stress, and . . . attendant physical and emotional traumas," Pl.'s Opp'n at 18 & n.4, 20, is also baseless. 16 The plaintiff also alleges that it was a hostile act by the
The plaintiff also stated that his employer should have acted to prevent any altercations with his co-worker due to her prior and repeated inappropriate behavior. Def.'s Mem., Ex. 4 (Bowden Dep. II) at 212-18. However, the prior behavior alleged by the plaintiff is not of the type that would lend support to the plaintiff's claim of a hostile work environment or have put the Institution on notice that inappropriate physical contact was imminent. Specifically, upon questioning, the plaintiff described his co-worker's prior objectionable behavior as including an incident where she blocked his passage through a doorway by merely "standing there." Id., Ex. 4 (Bowden Dep. II) at 218-19. The plaintiff recounted that she never acted in a manner to suggest that she was "daring" the plaintiff to pass through the door, but regardless, he purportedly felt that he had to take a longer route to reach his intended destination, even though it would have been shorter to walk through the doorway where she was standing. Id. Although the plaintiff construed his co-worker's behavior as "her way of getting back at [him]," id. the Court cannot find that a reasonable jury could conclude from such unremarkable behavior that the Institution was on notice that the co-worker would assault the plaintiff. Despite the plaintiff's allegation of physical harm, Pl.'s Opp'n at 18 n.4; see also Second Am. Compl. ¶ 41 (seeking compensation for "pain and suffering"), the plaintiff has not established that the ramming by his coworker, Am. Compl. ¶ 36, resulted in anything more than hurt feelings, Def.'s Mem., Ex. 4 (Bowden Dep. II) at 216. When asked specifically if he was physically injured by the event, including any bruising or broken bones, the plaintiff responded that he had sustained no physical injuries, he was merely "sw[u]ng around" when she came into contact with his right shoulder, and the only resultant harm was that he was left "heartbroken" by the incident. Id. at 216, 219-20. Further, the plaintiff said nothing to this co-worker at the time of the incident. Id. at 221. Regardless, even if the plaintiff was "'injured and inconvenienced,' [or] even 'treated somewhat unkindly, . . . there is a significant gap between such conduct, which [appears to have arose from a] fundamentally personal (continued . . .)
16 15

24

Institution when it refused to make an "accommodation" for him by allowing him to be physically absent from any meetings when his co-worker who allegedly assaulted him was present, for example, by allowing him to attend such meetings by telephone, the Internet, or closed circuit television, or by allowing him to review tapes and transcripts of all meetings at which the co-worker was present. Id. at 21. The plaintiff being unable to demonstrate that any of these incidents caused him to sustain objectively reasonable and material harm, given that he sustained no physical harm or bruising, Def.'s Mem., Ex. 4 (Bowden Dep. II) at 216, 219-20, the Institution met its obligations by cooperating with the plaintiff in regards to the filing of a police report, id. at 224, and upon the assurance of his supervisor and discussions with the co-worker, no similar conduct ever occurred, id. at 225. 17 Title VII and the Rehabilitation Act do not "set

( . . . continued) [employee disagreement], and discrimination.'" Franklin v. Potter, 600 F. Supp. 2d 38, 78 (D.D.C. 2009) (quoting Hancock v. Potter, 531 F.3d 474, 480 (7th Cir. 2008)). 17 Nor was the counseling letter that the plaintiff received after the incident, see Def.'s Mem., Ex. 17 (Dec. 17, 2004 Letter from Jeff Baxter to Anthony Bowden) (seeking the plaintiff's confirmation of receipt of the counseling letter and summarizing the circumstances of the counseling letter), indicative of discrimination either by fostering a hostile work environment, singling him out because of his protected statuses, or retaliation. The plaintiff admits that the counseling letter was in response to his calling his coworker "crazy" in front of two of his supervisors, id., Ex. 4 (Bowden Dep. II) at 177, 213, "misconduct" that the supervisors found unacceptable, id., Ex. 17 (Dec. 17, 2004 Letter from Jeff Baxter to Anthony Bowden). There is no indication that the letter targeted the plaintiff based on his protected statuses. While the plaintiff complains that others were not counseled for similar comments, he fails to provide any specific examples that support this allegation. Regardless, the counseling letter was never placed in the plaintiff's personnel file, id. (informing the plaintiff that "[the counseling letter] and any response will NOT be filed in your Official Personnel Folder" (additional emphasis omitted)); see also Pl.'s Opp'n at 19, and accordingly the Court cannot conclude that this unofficial reprimand for admitted conduct was "sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment and create an abusive working environment," George, 407 F.3d at 416, or would "dissuade a reasonable employee from making or supporting a charge of discrimination." Jones v. Johanns, 264 Fed. App'x 463, 469 (6th Cir. 2007) (finding that three warning letters over three years from the employer to the employee were not "materially adverse action[s]"); accord Williams v. Dodaro, 576 F. Supp. 2d 72, 89 (D.D.C. 2008) (finding that a "letter [that] did not indicate that it was a reprimand, . . . was not placed in [the plaintiff's] personnel file, and . . . did not lead to any disciplinary action . . . . did not alter any of the conditions of [the plaintiff's] employment such that it would dissuade a reasonable employee from filing a discrimination complaint").

25

forth 'a general civility code for the American workplace,'" and they do not insulate employees from "personality conflicts at work that generate antipathy" or "snubbing by supervisors and coworkers." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation and internal quotations omitted). And given the factual record in this case, the plaintiff cannot demonstrate a sufficient change in his workplace conditions resulting from the conduct about which he complains to survive summary judgment. In short, considering all of the plaintiff's allegations, individually and collectively, this Court cannot conclude that a reasonable jury could find that the Institution created a severely hostile work environment based upon any of his protected statuses (his gender, color, race, religion or disabilities) that was "extreme [enough] to amount to a change in the terms and conditions of [his] employment," thereby violating Title VII or the Rehabilitation Act. Faragher, 524 U.S. at 788. Compare Hussain v. Nicholson, 435 F.3d 359, 366-67 (D.C. Cir. 2006) (finding that no hostile work environment existed where the plaintiff was subject to "heightened monitoring by supervisors, . . . poor performance evaluations, . . . and [his employer] fail[ed] to address insubordination by other employees" because "[a]lthough the work environment . . . was hardly ideal," it did not rise to the level of being "'abusive'"), with Singletary v. District of Columbia, 351 F.3d 519, 528-29 (D.C. Cir. 2003) (finding that a hostile work environment claim could potentially lie where, "for over a year and a half," the employee was forced to work in a "poorly lit," "unheated," and unventilated storage room full of "brooms [and] boxes of debris"). Simply, the frequency and severity of the allegations here fall short of the pervasive and longterm conduct required to merit a hostile work environment claim proceeding to trial. See, e.g., George, 407 F.3d at 416-17 (holding that statements by three employees over a six-month period

26

telling plaintiff to "go back where she came from," separate acts of yelling and hostility; and allegations that plaintiff was singled out for undesirable work assignments were insufficient to demonstrate a hostile work environment); Sewell v. Chao, 532 F. Supp. 2d 126, 142 (D.D.C. 2008); Singh v. U.S. House of Representatives, 300 F. Supp. 2d 48, 54-57 (D.D.C. 2004) (finding allegations that the plaintiff's employer humiliated her at important meetings, screamed at her on one occasion, told her to "shut up and sit down" on another occasion, and was "constantly hostile and hypercritical" did not amount to a hostile work environment). The Court does not doubt that the plaintiff felt slighted when things were not done to his liking or did not go his way, but that does not mean the events the plaintiff complains about amounted to objective violations of the protections provided under Title VII or the Rehabilitation Act. 2. The Plaintiff's Workplace Discrimination Claims 18

The plaintiff asserts claims of discrimination, challenging the Institution's actions under both Title VII and the Rehabilitation Act. Title VII provides that "personnel actions affecting employees . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, [or] sex." 42 U.S.C. § 2000e-16(a). The Rehabilitation Act prohibits discrimination based upon one's disability by an entity that receives public funding. 29 U.S.C. § 794(b)(3). Specifically, the Rehabilitation Act provides: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
Counts 7-9, 11-15, and 18 of the plaintiff's complaint allege that he was subject to unlawful discrimination. Second Am. Compl. ¶¶ 66-77, 82-106, 114-17.
18

27

Id. at § 794(a). The standards articulated in Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12111-12210 (2008), "determine whether [the Rehabilitation Act] has been violated in a complaint alleging employment discrimination." 29 U.S.C. § 794(d); see also Breen v. Dep't of Transp., 282 F.3d 839, 841 (D.C. Cir. 2002) (applying ADA employment discrimination standards to Rehabilitation Act claim). The ADA provides: "No covered entity shall discriminate against a qualified individual on the basis of [a] disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The ADA defines discrimination as failing to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship." 42 U.S.C. § 12112(b)(5)(A). "Under Title VII[] . . . and the Rehabilitation Act, the two essential elements of a discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff's race, color, religion, sex, national origin, age, or disability." Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008); see also Totten v. Norton, 421 F. Supp. 2d 115, 119 n.2 (D.D.C. 2006) (commenting that the "analysis would be the same" regardless whether the plaintiff brought a retaliation claim pursuant to the Rehabilitation Act or Title VII). Where, as here, the plaintiff has proffered no direct evidence of intentional discrimination,19 his

"Direct evidence of discrimination is evidence that, if believed by the fact finder, proves the particular fact in question without any need for inference. [Such evidence] includes any statement or written document showing a discriminatory motive on its face." Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 86 (D.D.C. 2006) (Walton, J.) (internal quotation marks, citations, and ellipsis (continued . . .)

19

28

claims are evaluated under the burden-shifting framework first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Porter v. Natsios, 414 F.3d 13, 17-18 (D.C. Cir. 2005). Under this framework, the plaintiff bears the initial burden of "establish[ing] a prima facie case of . . . discrimination" by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802. This standard requires showing that the plaintiff: "(1) [is a] member[] [of] a protected group; (2) [is] qualifi[ed] for the job in question; (3) [was subjected to] an adverse employment action; and (4) [the existence of] circumstances that support an inference of discrimination." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002) (citations omitted). "If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant employer to produce evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007) (quoting Reeves, 530 U.S. at 142) (internal quotations omitted)). Once "the employer offers a nondiscriminatory justification for its actions, the McDonnell Douglas framework falls away," Vickers v. Powell, 493 F.3d 186, 195 (D.C. Cir. 2007), and the burden shifts back to the plaintiff to show that the employer's proffered reason is merely "pretextual," and designed to "shield[] discriminatory motives," Jackson, 496 F.3d at 707 (citing Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005)). However, the prima facie test essentially becomes inconsequential when evaluating a motion for summary judgment once an employer proffers a legitimate, nondiscriminatory rationale for its decision, and a Court's analysis should be limited to whether, based upon the entire record, "a reasonable inference of discrimination" exists. Jones v.

( . . . continued) omitted) (emphases in original). The plaintiff does not argue, nor could he, that the factual record in this case contains any such direct evidence of discrimination.

29

Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) ("Given that the Board asserted its legitimate nonretaliatory explanation for the [plaintiff's job performance] evaluation ­ that it reflected an honest assessment of [the plaintiff's] performance ­ the district court should have proceeded to the ultimate issue of retaliation vel non instead of evaluating whe