Peyus v. Lahood , 919 F. Supp. 2d 93 ( 2013 )

UNITED STATES DISTRlCT COURT
FOR THE DISTRICT OF COLUMBIA
ALBERT V. PEYUS JR., )
)
Plaintiff, )
)
v. ) Civil Case No. 11-02087 (RJL)
)
RAY LAHOOD, Secretary, United States )
Department of Transportation, ) F I L E D
> N29 ms
Defendant. ) JA 2
Glerk, U.S. District & Bankruptcy
{’*f*‘ Gourts mr the District of Co|umbia
MEMORANDUM OPINION
January B_, 2013 [Dkt. #4]
Plaintiff Albert V. Peyus, Jr. ("plaintiff") brings this suit against the defendant Ray
Lahood, Secretary for the U.S. Department of Transportation ("defendant"), alleging
discrimination based on age and retaliation in violation of Title VII of the Civil Rights
Act of 1964 ("Title VII"), 42 U.S.C. §§ ZOOO(e) et seq., and the Age Discrimination in
Emp1oyment Act ("ADEA"), 29 U.S.C. § 626 et. seq. On March 5, 2012, the defendant
moved to dismiss the plaintiffs complaint or, in the alternative, for summary judgment
[Dkt. #4]. Upon consideration of the parties’ pleadings, relevant law, and the entire
record therein, the defendant’s motion is GRANTED.
BACKGROUND
Plaintiff, a sixty-five-year-old Aviation Safety Inspect0r, has been employed by
the U.S. Department of Transportation’s F ederal Aviation Administration ("FAA") since
l996. C0mpl. 111 6-8, ECF No. 1. In 2007, plaintiffjoined FAA’s AFS-52 team and was
supervised by Marlene Livack ("Livack"), Manager of the international Operations and
Standardization Branch of the AFS-52 team. Id. 1111 9-10; Def.’s Mem. in Support of Mot.
to Dismiss or, in the Alt., for Summ. J. ("Def.’s Mem.") at l, ECF No. 4; Pl.’s Mem. in
Opp’n to Def.’s Mot. to Dismiss, or, in the Alt., for Summ. Judgment ("Pl.’s Opp’n"),
Ex. 3, ECF No. 7.
Since plaintiff s employment with the AFS-52 team, plaintiff alleges that Livack
has repeatedly and consistently discriminated against him on the basis of his age, as well
as retaliated against him for filing a complaint with the Equa1Employment Opportunity
Commission ("EEOC"). He points to a veritable laundry list of incidents which he
claims were discriminatory or retaliatory, which include: (l) Livack’s comments upon
plaintiff s employment with the AFS-52 team that Livack was forced to bring him to the
branch (Compl. 1111 l l-l2); (2) on a 2009 business trip to Kenya, Livack’s demand that
plaintiff maintain contact or he would not be allowed to travel anymore, and Livack’s
criticism of plaintiff for the large telephone bill that accrued as a result (z`d. 1111 13-17); (3)
on May 25, 2010, Livack’s reprimand of plaintiff for making her look bad by not
informing her of a lack of data with regard to the international Aviation Safety Data
Exchange ("IASDEX") program prior to a managers meeting, and her instruction to
plaintiff thereafter to get her approval on each and every action needed to manage the
program (id. 1111 18-22); (4) Livack’s nonresponse to plaintiff` s request to take a class on
May l6, 2010, causing him to miss the registration deadline (zd. 1111 23-24); (5) Livack’s
failure to sign plaintiffs travel voucher in a timely fashion, rendering plaintiff late in
paying his government credit card bill (z`ci. 1111 32-34); (6) in June 2010, Livack’s
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suspension of plaintiff s government credit card, despite a death in plaintiffs family, due
to late payment, which prevented him from travelling to a June 2, 2012 assignment (z`a’. 1111
25-31, 35-36, 38); (7) Livack’s admonishment and suspension of plaintiff for late
payment of his government credit card (id. 1111 25-31, 35, 37); (8) between June 16 and
June 18, 20l0, Livack’s threat to get rid of the plaintiff or put him in another line of work
because of his inability to travel, along with plaintiff s receipt of two angry voicemail
messages from Livack (z'a’. 1111 39-41, 43); (9) Livack’s removal of plaintiff as Program
Manager for IASDEX because he could no longer travel for the government without a
government credit card (z'd. 11 42); (10) in July 2010, Livack’s admonishment of plaintiff
for failing to track down the original paperwork on a Safety Recommendation project (z'd.
1111 55-57); (l l) in August 20l0, Livack’s lack of response to plaintiffs need for a
signature and review of a completed project, as well as her failure to acknowledge his
presence (z`cz’. 1111 61-65); (l2) in late August and September 2010, Livack’s failure to
provide plaintiff with new assignments, and her reassignment of two programs that were
previously assigned to plaintiff to younger employees (z`d. 1111 66-70); (13) on September
2l, 20l0, Livack’s assignment to plaintiff to set up a storage site for papers, briefs, power
points, letters, and statements on the computer system (z`d 1111 71-72); (l4) in November
20l0, Livack’s failure to acknowledge plaintiffs presence on multiple occasions (z'd. 1111
77-78); (15) on January 6, 201 l, Livack’s demand for proof that plaintiff was actually
volunteering with the Red Cross (icz’. 1111 79-80); (16) in January and February 201 l,
Livack’s failure to acknowledge plaintiffs presence (ia’. 1111 81-82); (17) Livack’s demand
for an in-person discussion prior to her approval of his request for a teaching assignment
3
in Oklahoma City (ia’. 1111 83-85); and (18) in May 2011, Livack’s failure to approve a
leave slip for the plaintiff (z'a’. 1111 86-88).
ln July 2010, plaintiff emailed the Equal Employment Opportunity ("EEO")
Counselor’s office regarding the discrimination he was suffering at the hands of Livack.
Ia’. 11 50. Based on his Division Manager John Barbagallo’s request, however, plaintiff
agreed to try to work things out with Livack before filing a formal complaint with the
EEO Counselor, which he eventually did. Id. 1111 51-52; Pl.’s Opp’n, Ex. 8. Plaintiff filed
this suit on November 21, 2011, seeking compensatory damages, a reassignment of
duties, and costs for claims of age discrimination and retaliation against the defendant.
See generally Compl. The defendant filed a Motion to Dismiss or, in the Alternative, for
Summary judgment on March 5, 2012, asking this Court to dismiss plaintiffs complaint
or grant summary judgment in its favor. See generally Def.’s Mot. to Dismiss or, in the
Alt., for Summ. Judgment, ECF No. 4. For the following reasons, the defendant’s motion
is GRANTED.
STANDARD 0F REVIEW
I. Rule 12(b)(6)
The defendant moves to dismiss plaintiffs claims that have not been exhausted for
"failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6);
Def.’s Mem. at 8-9. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiffs obligation to provide the grounds
of his entitle[ment] to relief requires more than labels and conclusions, and a forrnulaic
recitation of the elements of a cause of action will not do." Bell Az‘lantz`c Corp. v.
4
Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (citations and internal
quotations marks omitted). The complaint "must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). "[T]he [C]ourt
need not accept inferences drawn by plaintiff[] if such inferences are unsupported by the
facts set out in the complaint." Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994). The Court may, however, consider "any documents either attached to
or incorporated in the complaint and matters of which [the court] may take judicial
notice." EEOC v. St. Francis Xavier Parochz'al Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
II. Rule 56
The defendant here moves alternatively for summary judgment. Summary
judgment is appropriate when, based on the record, there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a); Hussain v. Principi, 344 F. Supp. 2d 86, 94 (D.D.C. 2004). Summary
judgment is not available, however, when there are factual disputes that may determine
the outcome of the case under the governing law or when sufficient evidence exists such
that a reasonable juror could return a verdict for the non-moving party. See Anderson v.
Liberzj) Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary
judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences
are to be drawn in [her] favor." Id. at 255.
The moving party has the initial burden of demonstrating that there is no genuine
issue of material fact to be decided with respect to any essential element of the
5
nonmoving party’s claim. Ia’. at 263. Once that burden is met, the nonmoving party must
set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v.
Catrelt, 477 U.S. 317, 324 (1986). The nonmoving party’s opposition may not rest upon
the mere allegations or denials of the pleadings, but must be supported by affidavits or
other competent evidence. Ia’. By pointing to the absence of evidence proffered by the
nonmoving party, a moving party may succeed on summary judgment. Id. at 322-23.
ANALYSIS
I. Failure to Exhaust Administrative Remedies
As a threshold matter, defendant asserts that plaintiff failed to exhaust his
administrative remedies before filing this action with respect to age discrimination
claimsl that stem from conduct that occurred prior to May 27, 2010. 1 agree.
The ADEA, which makes it unlawful for an employer to discriminate against an
employee based on age, 29 U.S.C. § 623(a)(1), provides two avenues for federal
employees aged 40 or older to assert claims. See 29 U.S.C. § 633a. First, an employee
can exhaust his or her administrative remedies, and if the case is not resolved
administratively, the employee can file a civil suit thereafter ld. Second, the employee
can forego the administrative process, file notice of intent to sue with the Equal
Employment Opportunity Commission ("EEOC") within 180 days of the "alleged
l Although defendant claims that the conduct at issue, specifically incidents that occurred
45 days or more before plaintiffs meeting with an EEO Counselor, could be linked to
plaintiffs retaliation claims, see Def.’s Mem. at 8-9, it is difficult to understand how.
Indeed, the record indicates that plaintiff did not meet with an EEO Counselor until July
11, 2010, well after the incidents at issue took place. See Compl. 11 50; Pl.’s Opp’n, Ex. 8
at 2. Accordingly, this Court will only address plaintiffs age discrimination claims in the
context of failure to exhaust.
unlawful practice," and wait thirty days before commencing suit in a United States
district court. 29 U.S.C. §§ 633a(c)-(d). If an employee chooses to proceed with the
administrative process first, however, the Court may dismiss those claims that were not
exhausted administratively before the filing of a discrimination action. See Ra)m v.
Chao, 346 F.3d 192, 194-95 (D.C. Cir. 2003) (affirming the trial court’s dismissal of` the
plaintiffs ADEA claim for failure to exhaust administrative remedies).
In this case, plaintiff chose to pursue his administrative remedies prior to initiating
suit in this Court. As part of the administrative process, employees "must initiate contact
with [an EEO] Counselor within 45 days of the date of the matter alleged to be
discriminatory," 29 C.F.R. § l614.105(a)(1), and each "discrete act" of allegedly
unlawful discrimination must be administratively exhausted. Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. lOl, 110-13 (2002); Chana'ler v. Bernarzke, 531 F. Supp. 2d l93,
198-99 (D.D.C. 2008)', Coleman-Aclebayo v. Leavitt, 326 F. Supp. 2d 132, 137 (D.D.C.
2004). Plaintiff asserts that he contacted the EEO Counselor’s office regarding the
conduct and circumstances that formed the basis of his age discrimination claim on July
11, 2010. See Compl. 11 50, Pl.’s Opp’n, Ex. 8 at 2. Accordingly, all of the "discrete
acts" of unlawful discrimination that occurred on or before May 27, 20102 cannot be
considered as part of plaintiffs age discrimination claim, and are thus dismissed for
failure to exhaust. See Gora’on v. Napolz'tano, 786 F. Supp. 2d 82, 85 (D.D.C. 2011)
(holding that any discrete employment conduct occurring 45 days before plaintiff first
2 see Compl. 1111 11_24.
contacted an EEO Counselor should be deemed unexhausted and thus procedurally
barred).
II. Age Discriminati0n Claim under ADEA
Plaintiff contends that the defendant violated the ADEA by taking on a
discriminatory attitude toward him, as opposed to other similarly situated employees not
of his age group, and that such age discrimination affected "the terms, conditions and
privileges of his employment." Compl.1111 89-97. The defendant counters that it had
legitimate, non-discriminatory reasons for taking the challenged actions, and that the
plaintiff has failed to rebut such reasons or produce any evidence of age discrimination
on the defendant’s part. See Def.’s Mem. at 14-22. For the following reasons, I agree
with the defendant.
The ADEA, which protects individuals who are at least 40 years of age, prohibits
an employer from failing or refusing to hire an individual, from discharging him or her,
or from other discriminating acts against the individual with respect to compensation,
terms, conditions, or privileges of employment solely because of the individual’s age.
See 29 U.S.C. §§ 623(a)(1), 631(a). Because the prohibition against age discrimination
contained in the ADEA is similar to the prohibition against discrimination contained in
Title VII, courts routinely analyze ADEA claims under the law developed under Title VII
discrimination inquiries. See Piroty v. Chaz'rman, Broaa’. Ba'. of Governors, 815 F. Supp.
2d 95, 98 (D.D.C. 201l). Until recently, under Title VII, in the absence of direct
evidence of discrimination, a plaintiff could indirectly prove discrimination under the
burden-shifting framework of McDonnell Douglas Corp. v. Greerz, 411 U.S. 792 (1973).
8
See also Carter v. George Washington Um'v., 387 F.3d 872, 878 (D.C. Cir. 2004).
However, our Circuit has since simplified the district court’s inquiry. See Braa'y v. Oj§‘ice
ofthe Sergearzt at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008). Under the new
approach, if an employee has suffered an adverse employment action and the employer
asserts a legitimate, non-discriminatory reason for the action, the Court need only
determine at the summary judgment stage whether "the employee produced sufficient
evidence for a reasonable jury to find that the employer’s asserted non-discriminatory
reason was not the actual reason and that the employer intentionally discriminated against
the employee on the basis of race, color, religion, sex, [age], or national origin." Ia’. at
494; see also Jorzes v. Bernarzke, 557 F.3d 670, 678-79 (D.C. Cir. 2009); Piroly, 815 F.
Supp. 2d at 98.3
The defendant argues that the plaintiff did not suffer an adverse employment
action under ADEA, and even if he did, the defendant had a legitimate, non-
discriminatory reason for its challenged actions. See Def.’s Mem. at 12-22. To be
considered an "adverse employment action," a particular act must constitute a
"significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
3 The evidence that plaintiff puts forth may include any combination of "evidence
establishing the plaintiffs prima facie case", "evidence . . . to attack the employer’s
proffered explanation for its actions" and "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." Holcomb v. Powell, 433 F.3d 889,
897 (D.C. Cir. 2006); see also Washington v. Chao, 577 F. Supp. 2d 27, 39 (D.D.C.
2008).
significant change in benefits."4 Courts have held that actions such as demotion,
undesirable reassignment, or a reduction in salary or benefits qualify as adverse
employment actions due to their impact on the terms, conditions or privileges of
employment. See Faragher v. City of B0ca Raton, 524 U.S. 775, 808 (1998); Russell v.
Prz`ncz'jz)i, 257 F.3d 815, 818-19 (D.C. Cir. 2001). However, "not everything that makes
an employee unhappy is an actionable adverse action." Baird v. Gotbaam, 662 F.3d
1246, 1250 (D.C. Cir. 2011) (internal citation omitted).
As explained above, plaintiff has offered eighteen discrete examples of supposedly
discriminatory conduct, four of which cannot be considered for failure to exhaust
purposes. See supra pages 2-4, 6-7. Of the remaining fourteen incidents, plaintiff has
failed to demonstrate any materially adverse employment action for ten of them.
Plaintiff was not subject to any significant change in his employment status, nor
did he suffer any objectively tangible harm as a result of any of the following incidents:
(l) Livack’s failure to sign plaintiffs travel voucher in a timely fashion; (2) Livack’s
threat to get rid of the plaintiff or put him in another line of work because of his inability
to travel; (3) in July 2010, Livack’s admonishment of plaintiff for failing to track down
the original paperwork on a Safety Recommendation project; (4) in August 2010,
Livack’s lack of response to plaintiffs need for a signature and completion of a project,
as well as her failure to acknowledge his presence; (5) in November 2010, Livack’s
4 Burlz`rzgton Indus., Inc. v. Ellerfh, 524 U.S. 742, 761 (1998); see also Mack v. Sl‘rauss,
134 F. Supp. 2d 103, 112 (D.D.C. 2001) (citing Brown v. Brody, 199 F.3d 446, 456 (D.C.
Cir. 1999)) ("Title VII plaintiffs must demonstrate that an allegedly adverse personnel
action had a tangible impact on the terms and conditions of a plaintiffs employment").
10
failure to acknowledge plaintiffs presence on multiple occasions; (6) on January 6, 2011,
Livack’s demand for proof that plaintiff was actually volunteering with the Red Cross;
(7) in January and February 2011, Livack’s failure to acknowledge plaintiffs presence;
(8) Livack’s demand for an in-person discussion prior to her approval of his request for a
teaching assignment in Oklahoma City; and (9) in May 201l, Livack’s failure to approve
a leave slip for the plaintiff. See Douglas v. Don0van, 559 F.3d 549, 553 (D.C. Cir.
2009); Bloom v. McHugh, 828 F. Supp. 2d 43, 57 (D.D.C. 2011) ("[C]ourts in this district
regularly conclude that personnel actions do not constitute adverse action where the
plaintiff has shown no effect on [her] grade or salary level, job title, dutics, benefits or
work hours.") (internal quotation marks and citations omitted) (alteration in original).
Indeed, as plaintiff describes the occurrences, each of the nine "discrete episodes seems
(at worst) akin to the sort of public humiliation or loss of reputation that [our Court of
Appeals has] consistently classified as falling below the requirements for an adverse
employment action." Baz`rd, 662 F.3d at 1249. 1n addition, our Circuit has made clear
that temporary monitoring, criticism or negative feedback from a supervisor, and delayed
responses from work peers, do not amount to adverse employment action absent
accompanying effects on salary or other elements of employment status, which the
plaintiff has not shown here.$ Thercfore, plaintiff has failed to carry his burden in
demonstrating a materially adverse employment action for these nine events.
5 See, e.g., Tayl0r v. Small, 350 F.3d 1286, 1292-93 (D.C. Cir. 2003) (supervisor’s delays
in completing plaintiffs performance evaluations and placement of plaintiff on
Performance improvement Plan were not adverse employment actions); Zelaya v.
UNICCO Serv. Co., 733 F. Supp. 2d 121, 129-30 (D.D.C. 2010) (finding that the
ll
Similarly, as to the tenth alleged incident, plaintiff suffered no adverse
employment action from Livack’s admonishment and suspension of plaintiff for the late
payment of his government credit card. The record reflects that plaintiff was suspended
for three calendar days, from Wednesday, October 6, 2010 to Friday, October 8, 2010,
without pay due to the plaintiffs "failure to pay the balance due on [his] travel card
account." Pl.’s Opp’n, Ex. 3 at 3-4. However, the plaintiff has not shown that this
suspension resulted in anything other than a minor inconvenience or temporary reduction
in work responsibilities. See Araji v. Mandarin Orz`ental, 2012 WL 2021889, *5 (D.D.C.
June 6, 20l2) (defendant’s removal of plaintiff s service during single shift does not
constitute adverse employment action); Harper v. Potter, 456 F. Supp. 2d 25, 29 (D.D.C.
2006) (holding seven-day suspension was not materially adverse because although it was
disciplinary in nature, plaintiff was able to remain on the job and in pay status).
On the other hand, plaintiff has established that the substantive duties of his job
were significantly diminished after (l) his government credit card was suspended for late
payment, (2) he was removed as Project Manager of the IASDEx program due to his
inability to travel, (3) Livack failed to provide him with new substantive assignments,
less one administrative task, and (4) his pre-assigned work was reassigned to younger
employees. See Pl.’s Opp’n, Ex. 4 at 1-2, Ex. 7 at 2, Ex. 8 at 4, 6. Indeed, if the plaintiff
"raise[s] a genuine issue as to whether [a] reassignment left [the employee] with
‘significantly different’-~and diminished-supervisory and programmatic
assignment of an employee to monitor plaintiff was a minor inconvenience that did not
rise to the level of adverse action necessary to support a claim).
12
responsibilities," then the employment action need not entail a loss of salary, grade level,
or benefits to be adverse. Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007)', see
also Barkle v. Goula’, 286 F.3d 513, 522 (D.C. Cir. 2002) (holding that the withdrawal of
an employee’s supervisory duties constitutes an adverse employment action); Forkkz`o v.
Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (adverse employment action can be shown
via "reassignment with significantly different responsibilities") (citation omitted).
Although the plaintiff was not technically reassigned to a different position or location
during or as a result of the allegedly discriminatory behavior by the defendant, in effect,
he Was. See Marnantov v. Jackson, 2012 WL 4857781, at *5 (D.D.C. Oct. 15, 2012)
("[A] reassignment of duties may be materially adverse if it places the employee in a
position with less responsibility and fewer opportunities for compensation and
advancement, or results in the loss of supervisory responsibilities.") (citations and
internal quotation marks omitted). In fact, not only does the record reflect that some of
plaintiffs previous responsibilities are no longer his, but it demonstrates that plaintiffs
duties in the wake of the suspension of his government credit card constitute qualitatively
inferior work requiring less skill and knowledge.6 As such, the substantial deterioration
6 See Compl. 1111 41-42 ("On or around June 18, 2010 . . . . Livack told [p]laintiff he is no
longer the Program Manager for IASDEx because he could no longer travel for the
government."); 67-68 ("On or around September 14, 2010, [p]laintiff discovers that the
last two programs he was assigned were reassigned . . . . [p]laintiff is left with only one
assignment which has been reduced."), 71-72 ("On or around September 21, 2010,
Livack assigned [p]laintiff to set up a storage site . . . . [a]dministrative personnel
normally handle this task."); 73 ("Plaintiff worked in the capacity of National Resource
lnspector, point of contact for U.S. aircraft abroad complaints and two committee groups,
managing an international data share program, and instructing internationally, to, at one
point, nothing."); Pl.’s Opp’n, Ex. 4 at 1 ("[plaintiff] was taken out of his position, which
13
of plaintiff s duties constitutes an adverse employment action for purposes of a
discrimination claim.7
Although the plaintiff suffered an adverse employment action when his job duties
were significantly diminished, the defendant has asserted legitimate, non-discriminatory
justifications for its actions. The record reflects that the plaintiff was sixty days past due
on payment of the entire account balance on his government-issued credit card on three
different occasions within a twelve-month period, against FAA policy, and that it was the
issuing bank, not the defendant, that initially suspended plaintiff s card due to
nonpayment. See Pl.’s Opp’n, Ex. 3 at 3; Def.’s Reply in Support of Mot. to Dismiss or,
in the Alt., for Sum1n. J. ("Def.’s Reply"), Exs. 8-9.8 ln addition, the evidence shows
that many of plaintiff s program management duties require travel, and that suspension of
plaintiffs government credit card consequently prohibited plaintiff from performing
some ofhis inspector duties. See Pl.’s Opp’n, Ex. 3 at 3; Ex. 7 at 4; Ex. 8 at 4, 6. As
such, the record reflects that reassignment of some of plaintiff s responsibilities was a
logistical inevitability, rather than a personal one. Last, Livack’s assignment for plaintiff
is the Data Sharing Program Manager"), 4 ("I asked another member of my staff to take
[plaintiffs] project and he was able to successfully hold the meeting"); Pl.’s Opp’n, Ex. 8
at 3-4.
7 See Czekalski, 475 F.3d at 364-65 (reasonable jury could find that plaintiff suffered an
adverse action where evidence showed that plaintiff went from overseeing 260 federal
employees, 700 contractors, 50 programs, and a $400 million budget, to overseeing fewer
than 10 employees and one program with a minimal budget); Bil)bs v. Bd. of T rustees for
Unz'v. oflll., No. 98-3029, 1999 WL 569028, at *3 (7th Cir. July 30, 1999) (finding
significantly diminished responsibilities where plaintiff lost supervisory and coordination
responsibilities and was lef`t with phone, filing and scheduling duties).
8 Indeed, plaintiff personally acknowledged his failure to pay these accounts in a timely
manner, and blamed his tardiness on personal issues. See Pl.’s Opp’n, Ex. 3 at 4.
14
to set up a storage site for papers, briefs, power points, letters, and statements on the
computer system is not wholly administrative, the evidence shows, but is also a technical
assignment that requires subject matter knowledge. See z`d., Ex. 4 at 5.
Unfortunately for the plaintiff, he has presented no evidence to cast doubt on the
defendant’s nondiscriminatory reasons for its decisions. lnstead, plaintiff has presented
merely conclusory allegations, without support in the record, that the defendant
suspended his government credit card, and substantially reduced his job responsibilities,
due to his age. See Malhern v. Gates, 525 F. Supp. 2d 174, 186 (D.D.C. 2007)
(unsupported allegations and self-serving, conclusory statements do not create genuine
disputes); Texas Dep 't ofCrnzj/. Affaz`rs v. Bara'ine, 450 U.S. 248, 253 (1981) (in
discrimination cases, "[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all time with the
plaintiff’). ln addition, the one-year age gap between the plaintiff and Livack also
precludes any accusation that age played a significant role in the defendant’s
decisionmaking. 9
Accordingly, the Court finds that no rational jury could find from the existing
record that the defendant took the challenged actions on the basis of plaintiffs age. As
such, summary judgment on plaintiffs ADEA age discrimination claim against the
defendant is appropriate as a matter of law.
9 See Pl.’s Opp’n, Ex. 4 at 1, 10; McNally v. Norton, 498 F. Supp. 2d 167, 181 n.l4
(D.D.C. 2007) (an inference of age discrimination can only be drawn when a plaintiff is
treated less favorably than a person who is younger by ten years or more).
15
III. Retaliation Claim under Title VII
Finally, plaintiff claims that the defendant "took adverse action against [p]laintiff
by reassigning his duties" after plaintiff met with the EEO Counselor’s office and his
Division Manager regarding defendant’s alleged discrimination against him, in violation
of Title VII, Compl. 1111 98-105. The defendant disagrees, arguing that it had a
legitimate, non-discriminatory reason for reassigning some of the plaintiffs duties, and
that there is no evidence from which a reasonable factfinder could conclude that the
defendant’s explanation is a pretext for retaliation. See Def.’s Mem. at 14-22.
Title VII makes it an unlawful employment practice for an employer "to
discriminate against any of his employees . . . because he has opposed any [unlawful
employment] practice . . . or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing." 42 U.S.C. §
2000e-3(a). Similar to ADEA claims, Title VII claims are assessed pursuant to a burden-
shifting framework initially set out by the Supreme Court in McDonnell Doaglas, 411
U.S. at 802-03. Under that construct, a plaintiff establishes unlawful retaliation under
Title VII by showing that "(1) he engaged in protected activity; (2) he was subjected to an
adverse employment action; and (3) there was a causal link between the protected activity
and the adverse action." Harnilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012)
(quoting Wooa’rayj”v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007)); Wiley v. Glassman,
511 F.3d 151, 155 (D.C. Cir. 2007). With regard to the last test, the plaintiff must show
that defendant "took the action ‘because’ [he] opposed the practice." McGrath v.
Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012). Ifthe defendant offers a legitimate, non-
16
discriminatory purpose for its disputed actions, however, the burden-shifting framework
dissipates, and a court, on summary judgment, "looks to whether a reasonable jury could
infer retaliation from all the evidence, which includes not only the prima facie case but
also the evidence the plaintiff offers to attack the employer’s proffered explanation for its
action and other evidence of retaliation." J0nes, 557 F.3d at 677 (citations and internal
quotation marks omitted).
ln this case, the parties do not dispute that plaintiff engaged in protected activity
by seeking out the EEO Counselor’s office in July 2010. And based on the analysis
above, Livack’s removal of plaintiff as Program Manager for lASDEx, her failure to
provide plaintiff with new assignments, her reassignment of two programs that were
previously assigned to plaintiff to younger employees, and her assignment to plaintiff to
set up a storage site for papers, briefs, power points, letters, and statements on the
computer system constitute adverse employment actions. See supra pages 12-13.
However, even assuming that plaintiff has stated a prima facie case of retaliation
based on the aforementioned series of events, the defendant has asserted a legitimate,
non-discriminatory explanation for its diminishment of plaintiffs job responsibilities, and
plaintiff has completely failed to demonstrate that this justification is a pretext for
retaliation. Because plaintiff has failed to do so here, his retaliation claim is dismissed.
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CONCLUSION
Thus, for all of the foregoing reasons, defendants’ motion to dismiss or, in the
alternative, for summary judgment is GRANTED. An appropriate order shall accompany
this memorandum opinion.
RICHARD J. ltgo_rj
United States District Judge
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