BING v. ARCHITECT OF THE CAPITOL

Filing 46

MEMORANDUM OPINION granting in part and denying in part 39 Defendant's Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 09/30/2019. (lcrc1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WAYNE BING,
Plaintiff,
v.
THE ARCHITECT OF THE CAPITOL,
Defendant.

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Civil Action No.:

16-2121 (RC)

Re Document No.:

39

MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Wayne Bing has sued his former employer, the Architect of the Capitol
(“AOC”), for racial discrimination, retaliation, and a hostile work environment in violation of
Title VII, 42 U.S.C. §§ 2000e et seq., and the Congressional Accountability Act (“CAA”), 2
U.S.C. §§ 1301 et seq. With discovery complete, the AOC has now moved for summary
judgment as to all claims. Because Mr. Bing has put forward evidence from which a jury could
reasonably find in his favor on one claim but not on others, the Court will grant the motion in
part and deny the motion in part.
II. BACKGROUND
A. Factual history
Mr. Bing worked as a Laborer (Recycler) prior to his termination. Def.’s Mot. Summ. J.
at 2, ECF No. 39. 1 AOC employees Ronald LeGrand and William Contee supervised Mr. Bing

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The Court cites to original pagination when it is available. For documents that were not
consecutively paginated originally, the Court cites to the ECF page numbers. Facts described are
uncontested by the parties, except where explicitly noted.

and eight or nine others working as recyclers alongside him. Id. Mr. Bing, his two supervisors,
and his fellow Laborers (Recyclers) were all African-American. Id.
During his time at the AOC, Mr. Bing was occasionally subject to disciplinary action. In
November 2009, he was suspended for being absent without leave, and in January 2012, he was
suspended for sleeping on the job and failing to perform his duties in a satisfactory manner. Id.
at 3. In both instances, Mr. Bing was warned that future misconduct could result in the
termination of his employment. Id.
A further incident occurred on March 31, 2015, when Mr. Bing interrupted a safety
briefing led by Mr. Contee and Mr. LeGrand. Id. at 3–4. Specifically, according to an Incident
Report dated March 31 and signed by both supervisors on April 2, Mr. Bing “became very
disruptive and made outbursts,” repeatedly used profanity, and finally walked out of the meeting
altogether. Id. at 4; see also Incident Report (Mar. 31, 2015), Def.’s Mot. Summ. Judg. Attach.
(“Def.’s Attach.”) (Ex. 9) at 91, ECF No. 39-1.
Around April 29, 2015, Mr. LeGrand sent a memorandum proposing Mr. Bing’s
termination to Roy Thomas Jr., the Night Building Superintendent, and Robert Washington Jr.,
the Facility Supervisor, who subsequently proposed termination to Lawrence Barr, the AOC’s
Deputy Superintendent. Def.’s Mot. Summ. J. at 4. The basis for the recommendation was Mr.
Bing’s “disruptive behavior.” Termination Proposal (Apr. 29, 2015), Def.’s Attach. (Ex. 10) at
94. Specifically, the memorandum stated that, on March 31, 2015, “Mr. Bing displayed
disruptive behavior, used inappropriate and offensive language towards his supervision, and
refused to follow the directives of a supervisor.” Id. at 96. For support, the memorandum
included the March 31 Incident Report, as well as records of Mr. Bing’s disciplinary issues in
2009 and 2012. See id. at 97–101.

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On June 1, 2015, an Assistant Superintendent, acting on behalf of Mr. Barr, accepted the
memorandum’s recommendation and initiated the proposed termination. Id. The proposal was
shared with Mr. Bing around July 8, 2015; as justification for the termination, it again cited his
disruptive behavior and his failure to follow the directive of a supervisor on March 31, 2015. Id.
It also referenced the prior 2012 disciplinary incident. Proposal to Remove (July 8, 2015), Def.’s
Attach. (Ex. 12) at 110.
On August 25, 2015, Mr. Bing met with Stephen Ayers, the Architect of the Capitol, to
respond to the proposed removal. Def.’s Mot. Summ. J. at 4. At the meeting, Mr. Bing disputed
some of the details of the events on March 31, but admitted to becoming angry, saying
inappropriate things, and walking out of the safety briefing. Id. at 4–5. Mr. Bing also provided a
written statement from a colleague, David Mosier, which detailed workplace episodes in which
Mr. LeGrand had allegedly been untruthful. Id. at 5. Mr. Mosier’s statement did not, however,
include any mention of the March 31 safety briefing or Mr. Bing’s earlier infractions. Id.; see
also Mosier Statement (Aug. 4, 2015), Def.’s Attach. (Ex. 15) at 120. The Superintendent of the
Senate Office Buildings, after reviewing the proposed removal and Mr. Bing’s response,
ultimately decided that removal was appropriate. Def.’s Mot. Summ. J. at 5. On September 4,
Mr. Ayers subsequently issued the final decision to remove Mr. Bing, which became effective on
September 18, 2015. Id. Mr. Bing invoked the AOC’s grievance procedures to challenge his
removal, but his request was denied. Id.
Mr. Bing does not challenge these facts, but highlights some additional ones. First,
sometime after the March 31, 2015 incident, Mr. Bing initiated a meeting with Mr. Thomas and
another AOC employee, Ms. Joyner, who were questioning Mr. Bing’s colleagues about what
happened at the safety briefing. See Pl.’s Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”) at 4, ECF

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No. 42. The precise timing of this meeting is somewhat unclear; at his deposition, Mr. Bing
could not “recall the exact date,” but suggested it was “maybe a month or two after the March
incident.” Bing Dep., Def.’s Attach. (Ex. 3) at 38. At that meeting, after Mr. Bing apologized
and expressed remorse for his conduct at the safety briefing, Mr. Thomas told him that the matter
could be handled “in house.” Pl.’s Opp’n at 6. Mr. Bing understood this to mean that no formal
discipline would be forthcoming and that the matter was closed. Id.
Second, again at some point after the March 31, 2015 incident, Mr. Bing spoke up at a
staff meeting, expressing the view that he, as an African-American male, was not treated as
favorably as other employees by the AOC’s management. Pl.’s Opp’n at 4–5. At his deposition,
Mr. Bing was similarly unsure of exactly when this meeting occurred. At times, he suggested or
agreed it took place “a few months” or “a couple of months” after March 31. Bing Dep., Def.’s
Attach. (Ex. 3) at 43, 48–49, 52. At other points in the deposition, he stated or agreed that it was
in “April or May.” Id. at 44, 46, 52. In his briefing here, Mr. Bing takes the position that the
meeting took place before Mr. Bing was internally recommended for termination on April 29,
2015. See Pl.’s Opp’n at 5 (“After making this statement [about discrimination] to AOC
management, Mr. Bing was internally recommended for termination on April 29, 2015 by Mr.
LeGrande [sic] based upon the incidents of March 31, 2015 which had already previously been
addressed by Mr. Thomas and Ms. Joyner.”).
Finally, Mr. Bing points to two additional Incident Reports, dated July 8, 2015 and July
16, 2015, which, according to Mr. Bing, reflect incidents of misconduct that did not actually
occur. See Pl.’s Opp’n at 6.

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B. Procedural history
A few months after his termination, on February 1, 2016, Mr. Bing filed a request for
counseling with the AOC’s Office of Compliance, alleging both “disparate treatment in the terms
and conditions of his employment” and “reprisal/retaliation resulting in a hostile work
environment and his termination for having engaged in protected activity.” Def.’s Mot. Dismiss
Ex. 3 at 1, ECF No. 17-3. Mediation was ultimately unsuccessful, giving Mr. Bing the right to
sue in federal court. See Compl. at 2, ECF No. 1. He then filed this suit on October 24, 2016,
alleging one count of race discrimination and reprisal in violation of Title VII. Id. at 3. On
January 26, 2017, he filed an amended complaint, now splitting his allegations into one count of
race discrimination in violation of Title VII and one count of retaliation in violation of Title VII.
Am. Compl. at 7–8, ECF No. 9.
At that point, the AOC moved to dismiss all claims against it arising from acts that
occurred before August 5, 2015. See Def.’s Memo. Supp. Partial Mot. Dismiss, ECF No. 17. As
the AOC argued, the CAA (which extends the protections of Title VII to employees of the
legislative branch) requires that employees seeking redress for unlawful discrimination complete
a three-step process, which includes a request for counseling “not later than 180 days after the
date of the alleged violation.” 2 U.S.C. §1402(a). Because Mr. Bing did not request counseling
until February 1, 2016, any claims accruing before August 5, 2015 (i.e., 180 days prior) would be
untimely, barred by the CAA’s jurisdictional provisions. See Ross v. U.S. Capitol Police, 195 F.
Supp. 3d 180, 199 (D.D.C. 2016).
The Court acknowledged the force of the AOC’s jurisdictional argument, but
nevertheless denied the partial motion to dismiss. See Mem. Op., ECF No. 21. The Court
recognized that the “[t]he only act alleged in Mr. Bing’s Amended Complaint that occurred

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within the filing period is his termination,” id. at 7, which narrowed the scope of Mr. Bing’s
potential discrimination and retaliation claims. However, the Court noted that pre-August 5 acts,
if sufficiently connected to post-August 5 ones, could support a timely hostile work environment
claim. See id. at 13–14 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002)). It therefore denied the motion to dismiss and gave Mr. Bing leave to file an amended
complaint setting forth a coherent hostile work environment claim linking the pre- and postAugust 5 acts. Id. at 14. But the Court also noted that “[i]f Mr. Bing fails to draw this
connection, however, he will only be able to use the acts occurring before August 5, 2015 as
background evidentiary support for his timely claim of discriminatory or retaliatory termination.”
Id. at 13–14.
Mr. Bing duly filed an amended complaint on December 1, 2017, now alleging both
hostile work environment and retaliatory hostile work environment claims in addition to the
earlier discrimination and retaliation claims. See Second Am. Compl. at 9–12, ECF No. 22. The
AOC moved for summary judgment after the close of discovery, and that motion is now ripe for
this Court’s consideration.
III. LEGAL STANDARD
Summary judgment is proper when “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A “material” fact is one capable of affecting the substantive outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is
enough evidence for a reasonable finder of fact to decide in favor of the non-movant. See Scott
v. Harris, 550 U.S. 372, 380 (2007).

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In considering a motion for summary judgment, a court must “eschew making credibility
determinations or weighing the evidence[,]” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007), and all underlying facts and inferences must be analyzed in the light most favorable to the
non-movant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without
any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999). And because the nonmovant’s evidence must allow a reasonable jury
to find in its favor, “merely colorable” or “not significantly probative” evidence will not preclude
summary judgment. Potter v. District of Columbia, 558 F.3d 542, 549 (D.C. Cir. 2009).
IV. ANALYSIS
First, a clarification. Mr. Bing has alleged violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. See Second Am. Compl. at 7–12. Although Title VII does
not by its own terms apply to the AOC, Title IV of the Congressional Accountability Act of
1995, 2 U.S.C. §§ 1311, 1317(a)(2), extended Title VII’s protections to employees of the
legislative branch, including the AOC. See Mayorga v. Merdon, 928 F.3d 84, 88 (D.C. Cir.
2019). As a result, Title VII and associated case law govern Mr. Bing’s claims here. See
Harrison v. Office of Architect of Capitol, 68 F. Supp. 3d 160, 167 (D.D.C. 2014).
A. Discrimination and retaliation
Consistent with the Court’s earlier ruling on the AOC’s motion to dismiss, Mr. Bing’s
discrimination and retaliation claims are premised on his termination, rather than any other
manifestations of prejudice or bias. Specifically, Mr. Bing’s basic argument is that the AOC’s
stated reasons for his firing are pretextual; that is, that he was actually terminated because of his
race, for speaking up about discrimination at the staff meeting, or both. See Pl.’s Opp’n at 10–
12.

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1. Legal framework
As both parties agree, see Pl.’s Opp’n at 10–11; Def.’s Mot. Summ. J. at 11–13, these
claims of circumstantial discrimination are properly analyzed under the burden-shifting
framework originally established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04
(1973). See Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (noting that an employee
may allege both discrimination and retaliation based on the same incident and applying the
McDonnell Douglas framework).
Under McDonnell Douglas, in order to establish a prima facie case for a discrimination
claim, the plaintiff must show that (1) he or she “is a member of a protected class;” (2) he or she
“suffered an adverse employment action;” and (3) “the unfavorable action gives rise to an
inference of discrimination.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting
Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). Likewise, for a retaliation claim, the
plaintiff must show that “(1) she engaged in a statutorily protected activity; (2) she suffered an
adverse employment action; and (3) there is a causal connection between the two.” Carter v.
George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004).
However, when (1) “an employee has suffered an adverse employment action” and (2)
“an employer has asserted a legitimate, non-discriminatory reason for the decision,” courts “need
not—and should not—decide whether the plaintiff actually made out a prima facie case under
McDonnell Douglas.” Brady v. Office of Sergeant at Arms, U.S. House of Reps., 520 F.3d 490,
494 (D.C. Cir. 2008); see also Jones, 557 F.3d at 678 (explaining that Brady’s instruction
“appl[ies] equally to retaliation claims”). Instead, once the employer has met its burden, the
question becomes “whether a reasonable jury could infer intentional discrimination or retaliation
from all the evidence, including ‘(1) the plaintiff’s prima facie case; (2) any evidence the

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plaintiff presents to attack the employer’s proffered explanation for its action; and (3) any further
evidence of discrimination that may be available to the plaintiff (such as independent evidence of
discriminatory statements or attitudes on the part of the employer).’” Carter, 387 F.3d at 878
(quoting Waterhouse v. District of Columbia, 298 F.3d 989, 992–93 (D.C. Cir. 2002)).
2. Analysis
In this case, the AOC has offered a legitimate, non-discriminatory, non-retaliatory reason
for Mr. Bing’s termination: his inappropriate behavior at the March 31 safety briefing and his
previous disciplinary infractions. See Def.’s Mot. Summ. J. at 13 (“Plaintiff’s angry outburst and
insubordination on March 31, 2015, violated several AOC standards of conduct and, when
combined with his prior disciplinary history, which included two prior suspensions, warranted
termination.”). These episodes are well-documented in the record and not materially contested
by Mr. Bing; indeed, he admits to behaving inappropriately at the meeting. See Pl.’s Opp’n at 6
(acknowledging that “Mr. Bing used profanity in the presence of his supervisor Mr. Contee and
left a safety briefing prematurely”).
Instead, to undermine the AOC’s stated rationale, Mr. Bing offers a different narrative,
focused on retaliation rather than discrimination. He points out that, shortly after the March 31
safety briefing, he was assured by Mr. Thomas that the fallout from the incident would be
handled “in house,” without any formal disciplinary action. See Pl.’s Opp’n at 11. However,
after Mr. Bing complained of race-based discrimination at the staff meeting, his employer
switched course and recommended him for termination. See id. at 12 (referring to the April 29
Termination Proposal). According to Mr. Bing, a reasonable jury could infer from the timing of
these events that the AOC changed position in retaliation for Mr. Bing’s comments about
discrimination. See id.

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The AOC has a few arguments in reply. It first points out that Mr. Thomas’s statement to
Mr. Bing is hearsay, unsupported by any witness or documentary evidence. Def.’s Reply Pl.’s
Opp’n to Def.’s Mot. Summ. J. (Def.’s Reply) at 2–3, ECF No. 44; see also Greer v. Paulson,
505 F.3d 1306, 1315 (D.C. Cir. 2007) (“‘[S]heer hearsay’ . . . ‘counts for nothing’ on summary
judgment.”) (quoting Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)). But as the AOC allows, Mr. Thomas’s statement may well be admissible as a
statement of an opposing party. Def.’s Reply at 3; Fed. R. Evid. 801(d)(2). And in this posture,
the Court must credit Mr. Bing’s version of events and resolve all questions of credibility in his
favor.
But of course, Mr. Thomas’s assurances are only part of the picture; the crux of the
retaliation claim is the staff meeting, when Mr. Bing spoke out against the AOC’s discriminatory
practices. Here, again, the AOC points to weaknesses in Mr. Bing’s evidence for such a
meeting. See Def.’s Reply at 3 (“[E]ven if the Court were to credit Plaintiff’s statements and
assume that this constituted protected activity, Bing has no recollection of exactly when this
alleged meeting and statement took place—only that it was a couple of months after his outburst
and insubordination at the March 31, 2015, staff meeting.”). Of course, if the staff meeting
indeed took place “a couple of months” after the March 31 incident, Mr. Bing’s retaliation claim
falls apart: formal procedures for Mr. Bing’s termination began at least by April 29, 2015, so, as
a matter of logic, they could not have been initiated in retaliation for a protected activity that
occurred later. But the timing of the staff meeting is not as clearly established in the record as
the AOC suggests (at multiple points in his deposition, Mr. Bing agreed that it may have taken
place in “April or May”). See Bing Dep., Def.’s Attach. (Ex. 3) at 44, 46, 52 (emphasis added).
Again, resolving all credibility determinations and drawing all inferences in Mr. Bing’s favor, a

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factfinder could conclude that the staff meeting took place sometime in April, before the
termination process was set in motion.
The question, then, is whether the resulting narrative (insubordination—assurance of nontermination—protected activity—termination) is enough to survive summary judgment. Our
Circuit has recently cautioned against inferring retaliation solely on post hoc ergo propter hoc,
explaining that
[m]ere temporal proximity is not sufficient to [defeat a proffered non-retaliatory
explanation and thereby support a finding of retaliation], because otherwise
“protected activities would effectively grant employees a period of immunity,
during which no act, however egregious, would support summary judgment for
the employer in a subsequent retaliation claim.” As a result, “positive evidence
beyond mere proximity is required to defeat the presumption that the proffered
explanations [for the adverse employment action] are genuine.”
Iyoha v. Architect of the Capitol, 927 F.3d 561, 574 (D.C. Cir. 2019) (quoting Woodruff v.
Peters, 482 F.3d 521, 530 (D.C. Cir. 2007)). But here, Mr. Bing has painted a more complex
picture: the AOC was content with letting Mr. Bing’s insubordination slide until he spoke up at
the staff meeting. As Mr. Bing argues, this “apparent reversal” arguably raises questions about
AOC’s true motives and casts doubt on its proffered non-retaliatory explanation. Pl.’s Opp’n at
12. Doctrinally, it represents “positive evidence beyond mere proximity” that distinguishes this
case from Iyoha. Cf. Jones, 557 F.3d at 680–81 (denying summary judgment for employer when
employee, in addition to showing temporal proximity, offered evidence discrediting employer’s
pretextual explanation); Massaquoi v. D.C., 285 F. Supp. 3d 82, 96 (D.D.C. 2018) (“The Court
finds that the temporal proximity of the relocation of the plaintiff's workstation, coupled with his
proffer of evidence rebutting the District’s explanation for the relocation, is sufficient to
establish pretext and for a reasonable juror to infer retaliation.”) (emphasis added). As a result,
Mr. Bing’s retaliation claim survives.

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The same cannot be said of Mr. Bing’s discrimination claim. Mr. Bing does not identify
any independent evidence of discrimination in the record, like discriminatory statements or
attitudes on the part of the employer. See Carter, 387 F.3d at 878. Likewise, he does not point
to any similarly situated comparators who were treated more favorably than he was. See Def.’s
Mot. Summ. J. at 13–14; Pl.’s Opp’n at 11. Indeed, in his Opposition, Mr. Bing focuses almost
exclusively on his retaliation claim, mentioning discrimination only in passing. See Pl.’s Opp’n
at 10–12. The Court concludes that no reasonable jury could infer intentional discrimination
from the evidence marshalled here.
B. Hostile Work Environment and Retaliatory Hostile Work Environment
As described above, Mr. Bing also pleaded two related claims in his Second Amended
Complaint: hostile work environment based on race and retaliatory hostile work environment.
Second Am. Compl. at 9–12. Both claims are based on an alleged “campaign of administrative
harassment” culminating in Mr. Bing’s termination. Pl.’s Opp’n at 14.
1. Legal framework
Title VII protects employees against hostile and abusive working environments. “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 is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). But Title
VII’s protections do not set out a “general civility code for the American workplace.” Casey v.
Mabus, 878 F. Supp. 2d 175, 189 (D.D.C. 2012) (quoting Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80 (1998)).

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To make out any kind of hostile work environment claim, the conduct must not only be
subjectively perceived as abusive, but also be so “severe or pervasive” that it “create[s] an
objectively hostile or abusive work environment.” Casey, 878 F. Supp. 2d at 188 (quoting
Harris, 510 U.S. at 21); see also Bergbauer v. Mabus, 934 F. Supp. 2d 55, 79 (D.D.C. 2013)
(“Courts in our circuit typically apply the same legal standard as that used in the discriminatory
harassment context to determine whether retaliatory harassment is actionable.”). There is no
“mathematically precise test,” Harris, 510 U.S. at 22, for what makes a workplace “so
objectively offensive as to alter the ‘conditions’ of the victim’s employment,” Oncale, 523 U.S.
at 81. To determine whether the allegedly discriminatory conduct rises to this level, a court is to
analyze the totality of the circumstances. In doing so, a court must “consider the frequency of
the harassing conduct, its severity, whether it is physically threatening or humiliating, and
whether it unreasonably interferes with an employee’s work performance.” Stewart v. Evans,
275 F.3d 1126, 1134–35 (D.C. Cir. 2002) (citing Harris, 510 U.S. at 21–23).
In addition, to successfully make out a hostile work environment claim based on race, a
plaintiff must show that the alleged “harassment occurred because of the plaintiff’s protected
status.” Peters v. District of Columbia, 873 F. Supp. 2d 158, 189 (D.D.C. 2012) (citation
omitted). In other words, there must be a “‘linkage between the hostile behavior and the
plaintiff’s membership in a protected class’ for a hostile work environment claim to proceed.”
Douglas-Slade v. LaHood, 793 F. Supp. 2d 82, 101 (D.D.C. 2011) (quoting Na’im v.
Clinton, 626 F. Supp. 2d 63, 73 (D.D.C. 2009)). An analogous requirement applies to a
retaliatory hostile work environment claim. See Bergbauer, 934 F. Supp. 2d at 79 (“Logically,
the elements of a retaliatory hostile work environment claim are similar to those of a

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discriminatory hostile work environment claim.”). Specifically, a plaintiff must show “a causal
connection” between the harassment and the protected activity. Id.
2. Analysis
Mr. Bing argues that “for a period of several months prior to his termination he was
subjected to repeated incidents in which his supervisors, whom he ultimately discovered were
actively seeking his termination at the time, used Defendant’s ‘incident report’ mechanism to
paper Mr. Bing’s personnel record with false allegations of poor performance and improper
behavior.” Pl.’s Opp’n at 14. Specifically, he points to two Incident Reports (filed on July 8,
2015 and July 16, 2015), which he argues were fabricated as part of this campaign of
harassment. See id. Mr. Bing also highlights “witness testimony regarding Mr. Contee’s
penchant for falsehood in reporting upon alleged misconduct,” id. at 15, presumably referring to
Mr. Mosier’s statement about Mr. LeGrand’s untruthfulness, see Mosier Statement (August 4,
2015), Def.’s Attach. (Ex. 15) at 120.
As an initial matter, this evidence falls short of indicating the sort of “objectively
offensive” conduct required to establish a hostile environment claim. Conceivably, in some
contexts, the repeated filing of false disciplinary reports could be sufficiently severe or pervasive
so as to alter the conditions of employment. But the two incident reports cited here fail to rise to
that level. As far as the record indicates, nothing came of the two reports—they were not cited
as justification for any further disciplinary action and did not affect Mr. Bing’s pay, grade, or
working conditions. Cf. Turner v. Shinseki, 824 F. Supp. 2d 99, 124 (D.D.C. 2011) (finding that
employer’s two warnings to employee regarding his work performance were not sufficient to
create a hostile workplace environment).

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Even assuming the AOC’s conduct here was sufficiently severe or pervasive to create a
hostile environment, Mr. Bing has not introduced evidence causally connecting the July reports
(or Mr. Contee’s penchant for lying) to Mr. Bing’s protected status or participation in a protected
activity. There is, for example, nothing in the record suggesting that either of the two reports
were related to Mr. Bing’s race. And with respect to retaliation, there is no basis to infer a causal
connection between the reports and Mr. Bing’s participation in a protected activity. Mr. Bing
received these kinds of write-ups before speaking out at the staff meeting; receiving just two
additional written citations, some months after that meeting, does not evidence the sort of
accelerated abuse allowing an inference of retaliation. In the absence of more defined causal
linkages, Mr. Bing’s hostile work environment claims cannot survive summary judgment. See,
e.g., Ward v. District of Columbia, 950 F. Supp. 2d 9, 19 (D.D.C. 2013) (“[A]lthough the facial
neutrality of an action does not necessarily bar a Title VII claim, the plaintiff must at least
demonstrate that there is a factual basis for inferring that the incidents were motivated by a
retaliatory animus.”).
Finally, Mr. Bing has failed to connect the incident reports to his ultimate termination,
which raises a timeliness issue. Recall that Mr. Bing was allowed to pursue his hostile work
environment claims on the theory that any alleged pre-August 5 acts (like the July reports) would
be coherently linked to post-August 5 acts (namely, his firing). See Section II.B supra. Here,
however, Mr. Bing seems to suggest that the false incident reports alone created a hostile work
environment, see Pl.’s Opp’n at 14–15—a claim which, regardless of its merit, would be timebarred. In any case, it remains unclear what connection the reports had to his ultimate firing,
given that the termination process was already well underway by April and at no point
referenced any July incidents. This failure to “adequately link[]” the pre- and post-August 5 acts

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into a “coherent hostile environment claim” constitutes an independent basis for summary
judgment on these claims. Baird v. Gotbaum (Baird I), 662 F.3d 1246, 1251 (D.C. Cir. 2011).
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED IN
PART and DENIED IN PART. Mr. Bing’s retaliation claim can go before a jury; the other
three claims cannot. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: September 30, 2019

RUDOLPH CONTRERAS
United States District Judge

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