Morrison v. Mills , 928 F. Supp. 2d 241 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VAUNIA MORRISON,
Plaintiff,
v. Civil Action No. 10-2329 (JDB)
KAREN G. MILLS, Administrator, U.S.
Small Business Administration
Defendant.
MEMORANDUM OPINION
Plaintiff Vaunia Morrison alleges that she was subjected to retaliation and discrimination
based on race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq., when her request to transfer to a different position was denied. She also
contends that she was subjected to a hostile work environment based on retaliation. Defendant
Karen Mills, in her capacity as Administrator for the U.S. Small Business Administration, has
moved for summary judgment. For the reasons set forth below, the Court will grant defendant’s
motion.
BACKGROUND
Vaunia Morrison, an African-American woman, is a GS-13 Program Analyst assigned to
the Office of Business Development within the Small Business Administration. During all
relevant times, Morrison was part of the Termination Team, which worked on termination
actions for businesses participating in a particular development program. Linda Waters was
Team Leader. Morrison’s first-line supervisor was Mariana Pardo and then, beginning in 2008,
Leo Sanchez. Leanne Delaney was the second-line supervisor, and Joseph Loddo was the third-
1
line supervisor. See Pl.’s Statement of Disputed Material Facts [Docket Entry 23-2] ¶¶ 1-4, 7-8,
34 (July 31, 2012).
Morrison told her supervisors on multiple occasions beginning in November 2007 that
she wanted to transfer to another division. Id. ¶¶ 9, 19. Loddo advised Morrison that she could
apply and compete for another position via USAJobs.com or find someone to swap positions
with her, and that he would ask about other available positions. See Loddo Dep. [Docket Entry
18-4] at 7:10-17 (June 21, 2012). Morrison did not apply for any Small Business Administration
jobs and “[t]o her knowledge, there were no job announcements made by the [agency] relevant to
her skills and experience.” Pl.’s Statement of Disputed Material Facts ¶ 49. Loddo subsequently
transferred two other employees, Luke Williams, an African-American male, and Bohdan Kilyk,
a white male, within the Office of Business Development, directing them to report directly to
him rather than to their prior first-line supervisor, Teresa Lewis. Id. ¶¶ 37, 39-40. But Morrison
remained under Team Leader Waters. Morrison considers her request to transfer denied on the
date she made her final request to Loddo, March 17, 2008. See id. ¶ 22; see also Pl.’s Opp. to
Def.’s Mot. for Summ. J. [Docket Entry 23-1] at 10 (July 31, 2012) (“Pl.’s Opp.”).
On the Termination Team, Morrison had a number of conflicts with Waters. Morrison
perceived Waters as “rude” and “cold.” See Morrison Dep. [Docket Entry 18-10] at 23:18-19
(June 21, 2012). Taken in the light most favorable to Morrison, the record reflects that Waters
invited other team members to certain meetings Morrison ultimately attended, allowing Morrison
to overhear that a meeting was to take place without inviting her directly. Id. at 24:23-26:7. She
accused Morrison of misplacing files, see Waters 2012 Dep. [Docket Entry 23-8] at 59:4-15
(July 31, 2012). Morrison and Waters also disagreed over the appropriate level of guidance
Morrison should receive. See Ex. H to Pl.’s Opp. [Docket Entry 23-11] at 8, 19 (July 31, 2012).
2
Waters and first-line supervisor Sanchez criticized Morrison’s work. See, e.g., Morrison Dep. at
45:22-46:6. They even held a meeting where they criticized Morrison without giving her prior
notice that such a meeting would take place. Id. at 41:21-42:21. Finally, Waters and Sanchez
assigned Kimberly Mace, another team member who was at the GS-12 pay grade, rather than
Morrison, to carry out certain Team Leader tasks in Waters’s absence. See Waters 2012 Dep. at
49:8-50:15.
On June 3, 2008, Morrison filed an Equal Employment Opportunity (EEO) complaint
against Waters, Pardo, and Loddo based on the non-transfer. See Pl.’s Statement of Disputed
Material Facts ¶ 23; see also June 2008 EEO Complaint [Docket Entry 17-25] (June 18, 2012).
On December 11, 2008, she filed an EEO complaint against Waters and Sanchez alleging a
hostile work environment based on reprisal for her prior EEO activity. See Pl.’s Statement of
Disputed Material Facts ¶ 35; see also Attach. to June 2008 EEO Complaint [Docket Entry 17-
28] (June 18, 2012). Morrison had filed two prior EEO complaints, one in 2003 and one in 2005,
against different officials. See Pl.’s Statement of Disputed Material Facts ¶¶ 27-28, 33.
Morrison filed this action on December 29, 2010. After discovery completed, defendant
filed the instant motion for summary judgment.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and the evidence demonstrate 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). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its
motion by identifying those portions of “the record, including depositions, documents,
3
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of motion only), admissions, interrogatory answers, or other materials,” which it
believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see
also Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to
preclude summary judgment, the Court must regard the non-movant’s statements as true and
accept all evidence and make all inferences in the non-movant’s favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than
the “mere existence of a scintilla of evidence” in support of its position. Id. at 252. Moreover,
“[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may
be granted.” Id. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the non-
movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].”
Id. at 252.
ANALYSIS
I. Failure to Transfer Morrison
a. Sex and Race Discrimination Claims
Morrison contends that she was denied a transfer due to race and sex discrimination and
in retaliation for her prior protected activity. The claim, however, founders at the outset because
Morrison has established no adverse employment action cognizable under Title VII.1
As the D.C. Circuit has explained,
a plaintiff who is made to undertake or who is denied a lateral transfer—that is, one in
which she suffers no diminution in pay or benefits—does not suffer an actionable injury
unless there are some other materially adverse consequences affecting the terms,
conditions, or privileges of her employment or her future employment opportunities such
that a reasonable trier of fact could conclude that the plaintiff has suffered objectively
1
The Court thus need not assess defendant’s asserted legitimate reason for Morrison’s non-transfer.
4
tangible harm. Mere idiosyncracies of personal preference are not sufficient to state an
injury.
Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). Morrison sought a quintessential “lateral
transfer” that would have no effect on her pay or benefits. Id. And she has identified no
“materially adverse consequences” that constitute “objectively tangible harm.” Id.Taking the transfers of Williams and Kilyk, the two individuals Morrison alleges were
similarly situated, as representative of the position she could have obtained, upon transfer
Morrison would have been supervised by a different supervisor and would have worked in a
different environment. But Morrison has presented no evidence that a transfer would have
presented her with “significantly different” and improved responsibilities. See Baloch v.
Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008); see also Youssef v. FBI, 687 F.3d 397, 401
(D.C. Cir. 2012). She does not dispute that the desired transfer would have no effect on her pay,
benefits, or supervisory responsibilities. Although Morrison asserts that “the denial of
reassignment prevented [her] from obtaining career enhancing opportunities and training,” Pl.’s
Opp. at 12, she has pointed to no record evidence supporting this assertion nor identified any
such opportunities. And she has not identified any training opportunities or added responsibilities
Williams and Kilyk obtained after the transfer.
Morrison also argues that the denial harmed her by forcing her “to remain under the
hostile conditions created by” Team Leader Waters, whom Morrison perceived as “rude and
demeaning” as well as unfairly critical. See id. at 11-12. That is not enough. Although remaining
on Walter’s team was undesirable to Morrison, “not everything that makes an employee unhappy
is an actionable adverse action.” Brown, 199 F.3d at 457 (internal quotation marks omitted).
Indeed, the D.C. Circuit has found no actionable adverse action where a reasonable jury could
find that a new assignment “was generally less favorable than other assignments,” Jones v. D.C.
5
Dep’t of Corr., 429 F.3d 276, 281 (D.C. Cir. 2005). Similarly, it found no adverse action where
changes resulted in plaintiff supervising fewer people, no longer attending management meetings
or receiving management-related communications, and working with a supervisor critical of his
work because plaintiff “failed to provide any evidence, beyond his conclusory assertions of loss
of prestige, of any adverse consequence to his position or future career.” Forkkio v. Powell, 306
F.3d 1127, 1129, 1130-31 (D.C. Cir. 2002) (internal quotation marks omitted). The law is clear:
the unpleasantness or undesirability of a work situation is not enough absent adverse
consequences to either present or future employment. Again, Morrison has provided no evidence
of any adverse consequences, relying instead on her subjective perception that the “hostility
negatively affected Ms. Morrison’s work environment and productivity.” Pl.’s Opp. at 12 (citing
plaintiff’s declaration in support of her EEO complaint). “[P]urely subjective injuries, such as
dissatisfaction with a reassignment, public humiliation, or loss of reputation,” however, “are not
adverse actions.” Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (internal quotation
marks omitted). A failure to reassign that forces an employee to remain in a position concerning
which she is dissatisfied or even feels demeaned, is similarly not actionable.
Although the preceding analysis provides ample basis to grant defendant’s motion, it is
worth noting that Morrison’s type of claim is particularly weak. The D.C. Circuit has
emphasized that “there are few circumstances in which a mere lateral transfer can rise to the
level of an adverse employment action.” Jones, 429 F.3d at 281. And Morrison’s actual claim—
that she was not transferred—presents an even weaker case: rather than being moved to a less
desirable post, she was simply not afforded an opportunity to obtain one that was subjectively
more desirable (although materially similar). Morrison has identified only one case where a non-
transfer—as opposed to a transfer to a materially different position—amounted to an adverse
6
action. There, plaintiff was not selected for his supervisor’s job, a transfer that was akin to a
“promotion,” that the defendant itself conceded was “higher in the hierarchy,” and which carried
the same pay and benefits due to the unique structure of the agency in question. Stewart v.
Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003) (internal quotation marks omitted). Morrison’s
case is far different: she concedes that there were no vacancies matching her skills and abilities.
See Pl.’s Statement of Disputed Material Facts ¶ 49. She failed to identify a position to which
she would have been transferred, let alone established that the desired position would be “higher
in the hierarchy,” Stewart, 352 F.3d at 427 (internal quotation marks omitted), than her current
role. A court second-guessing an employer’s decision not to create a position in order to transfer
an employee in such circumstances threatens impermissible “judicial micromanagement of
business practices,” see Baloch, 550 F.3d at 1197 (internal quotation marks omitted), allowing
any perceived workplace slight to be the subject of a Title VII action. This offers further support
for rejecting Morrison’s adverse action argument.
b. Retaliation Claim
The standard for actionable retaliation is broader than for discrimination. See Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006). “The scope of the antiretaliation
provision extends beyond workplace-related or employment-related retaliatory acts and harm.”
Id. at 67. To establish an actionable event for a retaliation claim, “a plaintiff must show that a
reasonable employee would have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. at 68 (internal quotation marks omitted).
Because the challenged action must be “materially adverse,” where the alleged retaliatory
action is employment-related the standard for an adverse action is functionally identical to that in
7
the discrimination context. See Pardo-Kronemann v. Donovan, 601 F.3d 599, 607 (D.C. Cir.
2010) (applying “materially adverse consequences affecting the terms, conditions, or privileges
of the plaintiff’s employment” test to retaliatory transfer action). Morrison has identified no
materially adverse consequences from the non-transfer, nor “significantly different
responsibilities” that a transfer would provide, see id. (internal quotation marks omitted), and
hence a reasonable juror could not conclude that the non-transfer would dissuade a reasonable
worker from engaging in EEO activity.
Morrison’s retaliation claim also fails for an independent reason: she has not established
a causal connection between her protected activity and her non-transfer. To show a causal link, a
plaintiff “must show that the [employer] had knowledge of [plaintiff’s] protected activity, and
that the adverse personnel action took place shortly after that activity.” Holbrook v. Reno, 196
F.3d 255, 263 (D.C. Cir. 1999) (internal quotation marks omitted); see also Holcomb, 433 F.3d
at 903. Morrison’s protected activity lacks the requisite temporal proximity to the non-transfer
because even the most recent activity, an EEO complaint filed in March 2005, occurred three
years before the non-transfer. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001)
(“Action taken . . . 20 months later suggests, by itself, no causality at all.”); Woodruff v. Peters,
482 F.3d 521, 529 (D.C. Cir. 2007) (temporal proximity supports an inference of causation “only
where the two events are ‘very close’ in time”); see also Allen v. Napolitano, 774 F. Supp. 2d
186, 201 n.2 (D.D.C. 2011) (“In the D.C. Circuit, courts have held that alleged retaliatory acts
must occur within three or four months of the protected activity to establish causation by
temporal proximity.”). Finally, the fact that Morrison’s prior EEO complaints concerned an
entirely different set of decision-makers further weakens any inference of retaliation. See
Vickers v. Powell, 493 F.3d 186, 196 (D.C. Cir. 2007) (holding that no reasonable jury could
8
“find a retaliatory motive at work” where deciding official never “participate[d] in any of the
alleged incidents that make up [plaintiff’s] [underlying] claim”); see also Gilbert v. Napolitano,
670 F.3d 258, 263 (D.C. Cir. 2012) (“no reasonable jury could infer that the mere mention of
such long-ago activity at a distant office would give [an official] a reason to discriminate[,]”
especially given that the official “had no involvement in the events underlying [plaintiff’s
protected activity]”).2
II. Hostile Work Environment Claim
Morrison alleges that the team leader Linda Waters and first-line supervisor Leo Sanchez
created a hostile work environment based on retaliation. Viewed in the light most favorable to
Morrison, the record reflects that, soon after Waters came on board in 2007, she began to treat
Morrison in a “rude” and “cold” manner. See Morrison Dep. at 23:18-19, 28:4-29:22. Waters
invited other team members to certain meetings Morrison ultimately attended, allowing Morrison
to overhear without inviting her directly. See id. at 24:23-26:7. Waters kept case files in a locked
office. See id. at 29:25-30:2. She accused Morrison of misplacing files, see Waters 2012 Dep. at
59:4-15, and together with Sanchez blamed Morrison for leaving a package on one of their chairs
although doing so consistent with common practice, see Morrison Dep. at 43:5-21. Waters
declined to offer requested guidance as to what Morrison should put in the termination letters,
see Ex. H to Pl.’s Opp. at 8, 19. Together with other supervisors, Waters held a meeting with
Morrison that was confrontational in tone. Id. at 19:3-20:3. Waters and Sanchez held an
impromptu meeting where they criticized Morrison. Id. at 41:21-42:21. Finally, when Waters
went on leave between June 30, 2008, and July 8, 2008, and again on at least one date in
2
Morrison attempts to show a causal link by pointing out that another employee without prior EEO activity was
treated more favorably, i.e., allowed to transfer. That, however, is not enough: knowledge and temporal proximity
are needed to create an inference of causation in the absence of direct evidence. See Holcomb, 433 F.3d at 903;
Holbrook, 196 F.3d at 263. Morrison cites no cases where different treatment of an employee without protected
activity sufficed. Besides lacking legal authority, her argument is particularly weak on the facts here because, as
Morrison concedes, one of the two employees treated differently had engaged in prior protected activity.
9
September 2008, she and Sanchez assigned Kimberly Mace, another team member who was a
GS-12, certain Team Leader tasks. See Waters 2012 Dep. at 49:8-50:15.
To establish a hostile work environment, a plaintiff must show that “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[.]” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation and internal
quotation marks omitted); see also Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006)
(holding that this standard applies to retaliatory hostile work environment claim). “To determine
whether a hostile work environment exists, the court looks to the totality of the circumstances,
including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether
it interferes with an employee’s work performance.” Baloch, 550 F.3d at 1201.
Taking these facts in the light most favorable to Morrison, a reasonable jury could
conclude that she worked in an unpleasant setting where her supervisor treated her with some
disrespect. But the conduct she describes does not come close to the severity or abusiveness
required for an actionable hostile work environment claim. Indeed, none of the instances alleged
amount to objective harm with tangible workplace consequences. See id. (rejecting hostile work
environment claim where “[plaintiff’s] claims of harm are not supported by evidence of tangible
workplace consequences, whether financial, physical, or professional”). For instance, Waters’
announcing a meeting to other team members by name within Morrison’s earshot might well
have made Morrison feel excluded, but it did not prevent her from attending the meeting. See
Morrison Dep. at 26:3-4. That case files were kept in a locked room so she had to go through
Waters or Mace to obtain them was surely inconvenient, but Morrison agrees that this never
caused a significant delay in obtaining a file she needed. See Pl.’s Answers to Interrogs. [Docket
10
Entry 25-9] at 8 (Aug. 20, 2012). That Mace, a lower-graded employee, was asked to serve as
acting Team Leader also created no harm. Acting as team leader involved no substantive work,
but only administrative tasks like inputting information about termination action letters into the
tracking system. The record is undisputed that Mace never substantively reviewed Morrison’s
work, although she did “sign off on some work . . . just to show that it had already been moved
over in the system.” Mace Dep. [Docket Entry 18-6] at 30:11-13 (June 21, 2012); see also
Waters 2009 Dep. [Docket Entry 18-20] at 10:4-8 (June 21, 2012) (“Kim [Mace] really cannot
review, she would initial off on it before she put it back into the system, to let me know that it
had been inputted into the system before it went on to the next line of the chain of command.”).
Although Morrison states that she felt demeaned by having a lower-graded employee sign off on
her work, this does not amount to objective harm. See Patterson v. Johnson, 505 F.3d 1296, 1298
(D.C. Cir. 2007) (“there is no evidence that materially adverse consequences to Patterson’s
employment could have flowed from Davis’s not designating him as Acting Director of OAM
for a single day” where plaintiff argued that action made him feel “undermined”). Nor did
Waters’ or Sanchez’s substantive criticism create tangible harm, especially given that Morrison’s
performance ratings remained satisfactory (and, indeed, improved under Waters as Team
Leader), see Morrison EEO Decl. [Docket Entry 25-3] at 4 (Aug. 20, 2012).
Moreover, even if these incidents could be viewed as objectively harmful (which they
cannot be), none of them reflect the extreme conduct necessary to transform “the ordinary
tribulations of the workplace” into a hostile work environment claim. See Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks omitted). That a work
environment is “hardly ideal” does not suffice. See Hussain, 435 F.3d at 366 (“Although the
work environment described by [plaintiff] was hardly ideal, we think no reasonable jury could
11
find it ‘abusive’ under the standard set forth in Harris.”). In short, Morrison’s relatively routine
complaints about her work environment do not amount to a hostile work environment claim
based on retaliation.3
III. Assignment of a Lower-Graded Employee as Acting Team Leader
Finally, Morrison’s complaint alleges that her supervisors’ decision to assign a lower-
graded employee to act as Team Leader was itself actionable retaliation. Morrison never
mentions this as an independent claim in the argument section of her opposition, and she offers
no response to defendant’s argument that the non-assignment failed to amount to an actionable
adverse action and was done for legitimate, non-retaliatory reasons. Hence, she has conceded this
claim. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25
(D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a
dispositive motion and addresses only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as conceded.”), aff’d, 98 F. App’x 8
(D.C. Cir. 2004).
In any case, the claim would fail on the merits. The loss of an opportunity to be acting
Team Leader caused Morrison no objective harm. The record is undisputed that acting as Team
Leader involved no substantive responsibilities, but only administrative tasks. Morrison has
provided no evidence that the loss of an opportunity to carry out such tasks harmed her career
opportunities in any way, and it is difficult to conceive how such harm would be possible.
Absent detrimental effects, any offense that Morrison felt at having a lower-graded employee
formally sign off on her work is not actionable harm. See Holcomb, 433 F.3d at 902; see also
3
Nor has Morrison indicated that Waters or Sanchez ever mentioned her protected activity, that any comments
could be viewed as referring to that activity, or that any of the allegedly negative treatment otherwise had a
retaliatory overtone. This further weakens any inference that the negative treatment constituted a hostile work
environment based on retaliation. See Baloch, 550 F.3d at 1201 (rejecting hostile work environment claim in part
because “none of the comments or actions directed at [plaintiff] expressly focused on his race, religion, age, or
disability”).
12
Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68 (“An employee’s decision to report
discriminatory behavior cannot immunize that employee from those petty slights or minor
annoyances that often take place at work and that all employees experience.”). The non-
assignment was therefore not an adverse action under Title VII.
CONCLUSION
For these reasons, defendant’s motion for summary judgment will be granted. A separate
order has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: March 11, 2013
13