Chowdhury v. Gruenberg ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SULTAN M. CHOWDHURY, :
:
Plaintiff, : Civil Action No.: 05-2368 (RMU)
:
v. : Re Document No.: 32
:
SHEILA C. BAIR, Chairman, :
Federal Deposit Insurance Corporation, :
:
Defendant. :
MEMORANDUM OPINION
DENYING THE DEFENDANT’S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT ON THE
PLAINTIFF’S HOSTILE WORK ENVIRONMENT CLAIM
I. INTRODUCTION
This matter is before the court on the defendant’s supplemental motion for summary
judgment on the plaintiff’s hostile work environment claim. The plaintiff, a Bangladeshi Muslim
and former Federal Deposit Insurance Corporation (“FDIC”) employee, brought suit pursuant to
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., against the
FDIC alleging discrimination, retaliation and hostile work environment. On March 30, 2009, the
court denied the defendant’s summary judgment motion with respect to the plaintiff’s claims of
discrimination and retaliation. The defendant has now filed a supplemental motion for summary
judgment on the plaintiff’s claims of hostile work environment based on his religion and the defendant’s
allegedly retaliatory motive. Because the plaintiff has demonstrated that material facts are in
dispute, the court denies the defendant’s supplemental motion for summary judgment on that
claim.
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II. FACTUAL & PROCEDURAL BACKGROUND 1
The plaintiff was employed by the FDIC from June 1991 to July 2005. Def.’s Statement
of Material Facts as to Which There is No Genuine Issue (“Def.’s Statement”) ¶¶ 1, 54; Pl.’s
Opp’n to Def.’s Mot. for Summ. J. at 3. Mark Henning became the plaintiff’s supervisor in
2003, Mem. Op. (Mar. 30, 2009) at 2, and the plaintiff alleges that shortly thereafter Henning
created a hostile work environment by making it clear that he did not want the plaintiff on the
Central Data Repository (“CDR”) team to which they were both assigned, id. at 3. The plaintiff
claims that Henning was hostile toward him because of an EEO complaint the plaintiff had filed
against his previous supervisor and because the plaintiff is Muslim. See generally Pl.’s Opp’n to
Def.’s Supplemental Mot. For Summ. J. (“Pl.’s Opp’n”), Ex. 1 (“Pl.’s Decl.”).
The plaintiff filed his complaint on December 9, 2005. See generally Compl. On March
30, 2009, the court denied the defendant’s motion for summary judgment on the plaintiff’s
discrimination and retaliation claims, see generally Mem. Op. (Mar. 30, 2009), and ordered
further briefing on the plaintiff’s hostile work environment claim, id. at 15-17. Specifically, the
court noted that the plaintiff had failed to detail the offensiveness, frequency or severity of the
allegedly harassing conduct and that the defendant likewise had failed to address those
deficiencies in the plaintiff’s allegations. Id. at 16-17.
On May 4, 2009, the defendant filed a supplemental motion for summary judgment on
the plaintiff’s hostile work environment claim. See generally Def.’s Supplemental Mot. for
Summ. J. (“Def.’s Mot.”). The plaintiff opposed the motion on May 19, 2009. See generally
Pl.’s Opp’n. In support of his opposition, the plaintiff submitted a five-page, self-executed
declaration, providing his first-hand account of his relationship with Henning. See generally
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The court’s March 30, 2009 Memorandum Opinion contains a detailed description of the
background of this case. See Mem. Op. (Mar. 30, 2009) at 2-4.
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Pl.’s Decl. The plaintiff specifically alleges that Henning made it known that he would cast an
especially critical eye toward the plaintiff’s work because of the plaintiff’s previous EEO
complaint. Id. at 1. The plaintiff further proffers that Henning did not consider the plaintiff a
“full member of the team” because Henning often referred to the CDR team as a “Christian
family,” forced the plaintiff to report to a co-worker (as opposed to a supervisor), humiliated the
plaintiff at weekly staff meetings and precluded the plaintiff from attending other important
meetings. Id. at 1-2. Other forms of harassment, the plaintiff explains, included Henning
placing the plaintiff on a performance improvement plan (“PIP”) and advertising that fact and
Henning forcing the plaintiff to attend weekly meetings where Henning would “point his finger .
. . clench his teeth and make angry faces the entire time.” Id. at 3. Because of this conduct, the
plaintiff states that he “sought weekly therapy for this stress and eventually had to go on
medication for depression. . . . Mr. Henning’s harassment ended my enjoyment of [his] job and
made it impossible for [him] to continue working.” Id. at 4-5.
The defendant proffers that the plaintiff still has not alleged conduct that was sufficiently
offensive, severe or frequent enough to constitute a hostile work environment. See generally
Def.’s Reply in Support of Supplemental Mot. for Summ. J. (“Def.’s Reply”). The court turns
now to the applicable legal standards and the parties’ arguments.
III. ANALYSIS
A. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
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matter of law.” FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are
“material,” a court must look to the substantive law on which each claim rests. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” is one whose resolution could
establish an element of a claim or defense and, therefore, affect the outcome of the action.
Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion
for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make
a showing sufficient 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.” Celotex, 477 U.S. at 322. By pointing to
the absence of evidence proffered by the nonmoving party, a moving party may succeed on
summary judgment. Id.The nonmoving party may defeat summary judgment through factual representations
made in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir.
1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338
(D.C. Cir. 2006). Indeed, for the court to accept anything less “would defeat the central purpose
of the summary judgment device, which is to weed out those cases insufficiently meritorious to
warrant the expense of a jury trial.” Greene, 164 F.3d at 675.
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Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish
proof of discrimination, the court should view summary-judgment motions in such cases with
special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997),
overturned on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc); see also Johnson v.
Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
B. Legal Standard for Hostile Work Environment
Title VII prohibits an employer from discriminating against any individual with respect to
compensation, terms, conditions, or privileges of employment because of race, color, religion,
sex, or national origin. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Toward that end, an
employer may not create or condone a hostile or abusive work environment that is
discriminatory. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). Such an
environment exists “[w]hen 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.’” Singletary v. District of Columbia,
351 F.3d 519, 526 (D.C. Cir 2003) (quoting Meritor, 477 U.S. at 65, 67). On the other hand,
“[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work
environment – an environment that a reasonable person would find hostile or abusive – is beyond
Title VII’s purview.” Harris, 510 U.S. at 21. Thus, 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. Id. at 23; Faragher v. City of Boca Raton, 524 U.S. 775, 787-88
(1998). In considering the totality of the circumstances, however, the court is mindful that
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[e]veryone can be characterized by sex, race, ethnicity or (real or perceived)
disability; and many bosses are harsh, unjust and rude. It is therefore important in
hostile work environment cases to exclude from consideration personnel decisions
that lack a linkage of correlation to the claimed ground of discrimination.
Otherwise, the federal courts will become a court of personnel appeals.
Bryant v. Brownlee, 265 F. Supp. 2d 52, 63 (D.D.C. 2003) (quoting Alfano v. Costello, 294 F.3d
365, 377 (2d Cir. 2002)).
C. The Court Denies the Defendant’s Supplemental Motion for Summary Judgment
The defendant maintains that the plaintiff’s allegations are too conclusory and lack the
specificity necessary to survive summary judgment, Def.’s Reply at 5, and proffers that the facts,
even viewed in the light most favorable to the plaintiff, still do not demonstrate that Henning’s
conduct was frequent, severe, pervasive or abusive enough to create a hostile work environment,
id. at 1. The plaintiff supplements the record with a declaration in which he sets forth specific
facts and incidents that, together, he argues demonstrate that Henning’s conduct created a hostile
work environment. See generally Pl.’s Decl.
The majority of the allegations detailed by the plaintiff in his declaration describe
specific conduct and include Henning forcing the plaintiff to report to a co-worker, Pl.’s Decl. at
1, changing the plaintiff’s job title, id., telling other CDR team members that the plaintiff would
be leaving the team, id. at 2, questioning the plaintiff’s co-worker about the authenticity of the
plaintiff’s work, id., scolding the plaintiff about his communication with a contractor, id., placing
the plaintiff on a PIP and leaving the PIP paperwork where it was visible to others, id. at 3, and
interfering with the plaintiff’s efforts to secure a transfer, id. The plaintiff also alleges that
Henning routinely excluded him from important meetings, id. at 1-2, humiliated him in front of
his co-workers, id. at 1, and forced him to endure weekly meetings that were ostensibly intended
to improve the plaintiff’s writing, but only succeeded in harassing and insulting the plaintiff, id.
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at 3. As a result of Henning’s conduct, the plaintiff states that he “was treated as a second-class
member of the office every day, multiple times a day.” Id.
The nature and frequency of the conduct alleged by the plaintiff raises a question of fact
as to whether the plaintiff was subjected to a working environment that was “severe or pervasive
enough to create an objectively hostile or abusive work environment.” Harris, 510 U.S. at 21;
see also Test v. Holder, 614 F. Supp. 2d 73, 83 (D.D.C. 2009) (denying the defendant’s motion
for summary judgment based on the plaintiff’s allegations that the defendant “schedule[ed]
meetings expecting that [the plaintiff] could not attend, verbally ‘assault[ed]’ [the plaintiff],
undermin[ed] [the plaintiff’s] authority and reduce[ed] his workload, lock[ed] [the plaintiff] out
of the building, issu[ed] the plaintiff an unfavorable performance evaluation, den[ied] the
plaintiff a performance award, and refus[ed] to discuss [the plaintiff’s] ‘individual development
plan’ with him”) (internal citations omitted); El-Haken v. BJY, Inc., 415 F.3d 1068, 1073 (9th
Cir. 2005) (holding that calling the plaintiff “Manny” every day for two months “and in emails at
least twice a month thereafter” for approximately one year total despite the plaintiff’s objections
and requests to be called by his actual name, was sufficiently pervasive conduct to create a
hostile work environment). Accordingly, this factual dispute should be decided by a jury.
Next, the court looks to whether the plaintiff alleged sufficient facts to establish a causal
connection between Henning’s conduct and either the plaintiff’s religion or his protected EEO
activity. See 42 U.S.C. § 2000e-2(a)(1) (making it unlawful for an employer to discriminate
against an employee “because of such [employee’s] race, color, religion, sex, or national origin”)
(emphasis added); Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006) (noting that
retaliatory motive can be the basis of a hostile work environment claim). The plaintiff alleges
that Henning referred to the CDR team as “Christian family” and “repeated this often in [the
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plaintiff’s] presence, with full knowledge that [the plaintiff] was not a Christian.” Pl.’s Decl. at
1.
The defendant argues that the plaintiff contradicts his deposition testimony in his
declaration. See Def.’s Mot. at 9-12. For example, although the plaintiff noted in his declaration
that Henning kept a Bible on his desk, Pl.’s Decl. at 1, he stated in his deposition that the Bible
did not bother him and he did not find it offensive, Pl.’s Dep. at 120.
Similarly, in the plaintiff’s declaration, the plaintiff states that Henning “called our unit,
which he headed, a ‘Christian family.’” Pl.’s Decl. at 1. As reflected in the plaintiff’s
deposition, however, the context of Henning’s statement is less clear:
A It was made known that [Henning] is a religious person or religious
Christian and he came late on Friday mornings because he goes to church.
Q Who made it known?
A He made it known.
Q How did he do that?
A In conversations. We are a Christian family or something of that nature.
Q He said that to you.
A Yes in conversations and he – we knew it because we could not schedule
early Friday morning meetings with him because he would be at church
with his family.
Pl.’s Dep. 2 at 120-21. Lastly, the defendant points out that, although the plaintiff now
alleges that Henning “began organizing weekly lunch hour meetings for the Christians in the
office to study the Bible,” Pl.’s Decl. at 1, the plaintiff, in his deposition, specifically disclaimed
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Because the parties attach various portions of the plaintiff’s deposition to their briefs, the court
cites directly to the plaintiff’s deposition with the corresponding page numbers in the deposition
transcript. The portions submitted by the parties are attached as exhibits 9, 10, 12, 16, 19, 26, 27,
28, 29 and 30 to the defendant’s original motion for summary judgment, exhibits J, R, S, T, GG,
PP, QQ, RR, SS, TT and UU to the defendant’s statement of material facts not in dispute, exhibit
41 to the plaintiff’s opposition to the defendant’s original motion for summary judgment and
exhibit B to the defendant’s reply in support of its original motion for summary judgment.
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any knowledge of Henning holding “religious services” at work, Pl.’s Dep. at 121-22. 3 The
plaintiff makes no attempt to clarify these inconsistencies and contradictions. See generally Pl.’s
Opp’n.
Although the plaintiff cannot create a material fact by submitting a declaration that
contradicts his earlier deposition testimony, Pyramid Secs. Ltd. v. IB Resolution, Inc., 924 F.2d
1114, 1123 (D.C. Cir. 1991), he can utilize a subsequent affidavit to explain confusion during the
earlier testimony, Franks v. Nimmo, 796 F.2d 1230, 1237 (2d Cir. 1986). Whether a lunch-time
bible study constitutes a “religious service,” Pl.’s Dep. at 121, as the question was phrased in the
plaintiff’s deposition is a question of fact and a matter of interpretation. Thus, it is possible that
the plaintiff could state, without contradiction, both that Henning held bible studies at work and
that he had no knowledge of Henning holding “religious services.” Similarly, although the
plaintiff’s deposition testimony makes it unclear whether Henning was referring to his own
family or the CDR team when he said “we are a Christian family,” when viewed in the light most
favorable to the plaintiff, a jury could conclude that Henning was intentionally singling out the
plaintiff based on his religion. See Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (holding that
“[s]ummary judgment in favor of the party with the burden of persuasion ... is inappropriate
when the evidence is susceptible to different interpretations or inferences by the trier of fact”).
Regarding the retaliation basis for the plaintiff’s hostile work environment claim, the
plaintiff alleges that, shortly after becoming the plaintiff’s supervisor, Henning told the plaintiff
that he had fired people and that he knew the plaintiff’s background. Pl.’s Decl. at 1. Again, this
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The plaintiff testified as follows at his deposition:
Q Did [Henning] hold religious services at work?
A I don’t know that.
Q Well I am asking you, do you know if he did?
A I don’t know that.
Pl.’s Dep. at 121.
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creates a material fact surrounding Henning’s motivation for his allegedly hostile conduct toward
the plaintiff. See Hunt, 526 U.S. at 552. Accordingly, the court denies the defendant’s
supplemental motion for summary judgment on the plaintiff’s hostile work environment claim.
IV. CONCLUSION
For the foregoing reasons, the court denies the defendant’s supplemental motion for
summary judgment. An Order consistent with this Memorandum Opinion is separately and
contemporaneously issued this 26th day of January 2010.
RICARDO M. URBINA
United States District Judge
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