Bright v. Federal Communications Commission ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
ANN. A. BRIGHT )
)
Plaintiff, )
)
v. ) Civil Action No. 08-0755 (ESH)
)
MICHAEL J. COPPS, Acting Chairman )
Federal Communications Commission )
)
Defendant. )
)
__________________________________________)
MEMORANDUM OPINION
Plaintiff Ann Bright (“Bright”), an African American female, is employed as an auditor
with the Federal Communications Commission (“FCC”). She contends that her employer
discriminated against her and subjected her to a hostile work environment because of her race
and gender and retaliated against her in violation of Title VII of the Civil Rights Act of 1964,
codified as amended at 42 U.S.C. § 2000e -2(a).1 Before the Court is defendant's motion for
summary judgment. For the reasons set forth below, defendant's motion for summary judgment
will be granted in part and denied in part.
BACKGROUND
I. FACTUAL BACKGROUND
Bright began her career with the FCC as an accountant in the Cable Services Bureau in
1994. (Def.’s Mot. for Summ. J. (“Def.’s Mot.”), Statement of Material Facts Not in Dispute
1
This is a consolidated case consisting of claims made in two complaints, one filed in 2008 in
this case, Bright v. FCC, No. 08-cv-755, Apr. 30, 2008 (“2008 Complaint”) and one filed in
2010 in Bright v. Genachowski, FCC, No. 10-cv-0397, Mar. 9, 2010 (“2010 Complaint”). There
is some overlap of claims and factual allegations within these two complaints, as well as between
these complaints and Bright’s prior Title VII suits. (See infra n. 11.)
(“Def.’s Stmt.”) ¶ 1; Def.’s Mot. at 3.) In 2002, Bright and a number of other auditors joined the
newly-created Investigations and Hearings Division (“IHD”), which is part of the FCC’s
Enforcement Bureau (“EB”), as part of an agency-wide reorganization. (Id. ¶ 2.)
Prior to the 2002 reorganization, the EB did not conduct audits; after the reorganization,
IHD began conducting audits as a means of investigating potential violations of the
Communications Act. (Id. ¶ 3 (referring to the Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 (1996) (amending Communication Act of 1934)); see also Def.’s Mot., Ex.
3 (Trent Harkrader Dep. (“Harkrader Dep.”)) 96:9 – 96:17, Oct. 8, 2009.) This audit work
included review of mergers, numbering audits, audit work regarding telecommunications
companies, and oversight of a large grant fund, the Universal Service Fund (“USF”), that all
telecommunications carriers pay into. (See Def.’s Stmt. ¶ 4; Harkrader Dep. 97:1-97:8; Def.’s
Mot., Ex. 2 (Ann Bright Dep. (“Bright Dep.”)) 16:6-16:10, July 12, 2011.) From the time that
Bright was promoted to the position of auditor in 2003 until March 2005, she worked on only
one audit, which was related to the USF. (Def.’s Stmt. ¶ 21; Bright Dep. 48:19-48:22.)
In March 2005 the new FCC’s Chairman, Kevin Martin, issued a mandate directing the
EB to use other means of enforcement instead of auditing individual companies. (Def.’s Stmt. ¶
6; see Def.’s Mot., Ex. 1 (Hillary DeNigro Dep. (“DeNigro Dep.”)) 18:12-19:1, July 29, 2011.)
As a result, work within the IHD moved away from traditional audit work and became more like
that performed prior to the 2002 reorganization. (DeNigro Dep. 20:1-20:13, 28:4-28:9;
Harkrader Dep. 98:7-98:13.)
A. Detailing IHD Auditors to the Office of the Managing Director (“OMD”)
In March 2005, there were eighteen full-time auditors in the IHD and, following
Chairman Martin’s announcement, supervisors within the EB struggled to find auditing work
2
commensurate with the auditors’ skill levels. (DeNigro Dep. 24:22-25, 29:7-29:9, 37:7-37:13.)2
Some auditors were “detailed” (temporarily assigned) to work with other agencies that could
make use of their skills. Some of these details resulted in “reassignment” —permanent
placement in other agencies. (Id. 36:1-36:12.) Ten of the eighteen auditors were initially
detailed (and subsequently permanently reassigned) to the Office of the Managing Director
(“OMD”). (Def.’s Mot, Ex. 10 (Decl. of Noelle M. Green) (“Green Decl.”) ¶ 3; Def.’s Mot. at
6.)3 Nine of those detailed to the OMD were Caucasian and one was African-American. (Def.’s
Reply at 6.) Eight of those detailed to the OMD were male and two were female. (Id.) The
racial and gender make-up of the eight auditors who remained in the IHD was as follows: one
African-American female, one African-American male, one Hispanic male, and one Asian male.
(Green Decl. ¶ 5; Pl.’s Mot. at 14-15.) The other four auditors remaining in the IHD were
Caucasian. (Green Decl. ¶ 5.)4 According to Bright, four of these eight individuals had either
filed EEO complaints or union grievances. (Pl.’s Opp’n at 15.)
2
The number of auditors cited by the parties does not appear to include Chief Auditor Hugh
Boyle, who is also considered part of the IHD supervisory structure and was involved in
personnel actions and other employment decisions. (See Def.’s Interrogs. Resp. 5-6).
3
Seven of the ten auditors were detailed to the OMD between January 25, 2006, and February
17, 2006. (See Def.’s Interrogs. Resp. at 10.) The eighth was detailed to the OMD on June 23,
2006. (Id.) The ninth and tenth auditors, who telecommuted, were detailed to the OMD on
January 2, 2008. (Id.) Before being detailed to the OMD, the ninth and tenth auditors were still
doing auditing work as part of the IHD (in contrast to other IHD auditors) because they were
completing audits that remained pending at the time of Chairman Martin’s announcement. (See
Def.’s Stmt. ¶ 25; Def.’s Mot., Ex. 7 (Hugh Boyle Dep. (“Boyle Dep.”) 121:9-122:14; DeNigro
Dep. 19:22-22:20; see also Def.’s Mot. at 17-19.)
4
In support of its motion, defendant has submitted a list of auditors who were detailed to the
OMD and a list of auditors who remained in the IHD. (Id. ¶¶ 3, 5.) This list includes Chief
Auditor Hugh Boyle and does not include Ann Bright. (Id. ¶ 5.) For the purposes of
determining racial and gender disparities in the two groups of auditors, the Court will use the
method of counting that the parties have used—it will count Ann Bright as one of the auditors
remaining in the IHD, but not Hugh Boyle.
3
B. Work Assignments within IHD Auditors
The auditors who remained in the IHD were required to perform other IHD work, some
significant portion of which was clerical. (Def.’s Stmt. ¶¶ 9-15; Pl.’s Stmt. ¶¶ 10-14.) These
non-auditing assignments provided to the auditors after 2005 included working with the Media
Bureau to determine the amount of local content on broadcast stations, working to transition
from analog to digital television, verifying the accuracy of invoicing related to contractor work
associated with the digital television transition, and several “all-hands assignments,” including
work related to the Telecommunications Consumer Protection Act, 47 U.S.C. §§ 227 et seq., and
processing “indecency” complaints against television stations, radio stations, and cable satellite
providers. (Def.’s Stmt. ¶¶ 10, 11; DeNigro Dep. 37:7-41:12: Def.’s Mot., Ex. 4 (Benigno
Bartolome Dep. (“Bartolome Dep.”)) 12:16-12:22, July 29, 2011.) All auditors who remained in
the IHD after 2006-2007 were asked to work on assignments relating to indecency complaints.
(Def.’s Stmt. ¶ 13; Bartolome Dep. 21:21-22:21.)
Beginning in 2007 Bright was assigned to work on indecency complaints. (2010 Compl.
¶ 8.) Bright maintains that she was asked to do more clerical work than the other auditors
remaining in the IHD. (Bright Dep. 21:5-21:7; 2010 Compl. ¶ 9; see also 2008 Compl. ¶¶ 16, 17
(alleging that Bright was required to attend a training seminar to review indecency complaints
and subsequently assigned duties including preparing mailing labels and stuffing envelopes).)
After 2005, the IHD conducted a very small amount of “in-house” audit work within the
EB. Some auditors who remained in the IHD were assigned to that auditing work and some were
offered the opportunity to do auditing work through details to other agencies. (Def.’s Stmt. ¶¶
16-18; see DeNigro Dep. 20:4-20:19, 29:10-29:18, 107:20-108:9.) Defendant contends that
work within the IHD was distributed in an equitable manner. (Def.’s Stmt. ¶¶ 13, 16.) Bright
alleges that in 2007 three Caucasian male auditors were given audit assignments and were not
4
given clerical work assignments (2008 Compl. ¶ 19) and that she, by contrast, “has not received
an auditing assignments [sic] since early 2005.” (Id.)
Between 2005 and 2009, Bright worked on one of the in-house audits and was offered
various other details (Def.’s Stmt. ¶ 28; Def.’s Mot., Ex. 5 (Hillary DeNigro Decl. (“DeNigro
Decl.”)) ¶ 3; Bartolome Dep. 54:21- 55:9; Bright Dep. 53:24-54:1), although the parties disagree
regarding whether those details involved “substantive” work. (Compare Def.’s Stmt. ¶ 18 with
Pl.’s Stmt. ¶ 18.)5 Bright worked on some of these details and declined to work on others.
(Def.’s Stmt. ¶¶ 17-19; Pl.’s Stmt. ¶ 18.) Her supervisors and coworkers on the projects she did
work on reported that she did not complete her work on some of those projects. (DeNigro Decl.
¶ 4.)
C. Reassignment Request
On March 13, 2007, Bright met with George Dillon to request to be reassigned to the
Atlanta field office of the EB. (Bright Dep. 112:16-112:22; Pl.’s Opp’n at 17; see also id. at 19
(indicating that this discussion occurred in April 2007).) 6 At that time there were no open
auditor positions in the Atlanta office and it was only staffed with engineers and compliance
specialists. (Def.’s Stmt. ¶¶ 23-24; Def.’s Mot., Ex. 8 (Kris Montieth Dep. (“Montieth Dep.”))
98:3- 98:10, Sept. 5, 2007.) The only auditors that were part of the EB but not based at EB
headquarters were the two individuals based in New York who telecommuted; these individuals
had been part of the Common Carrier Bureau since approximately 1978. (Def.’s Stmt. ¶ 25;
DeNigro Dep. 22:5-24:7.) When the FCC reorganized and moved them to the EB, they were
5
In 2009, plaintiff and all other IHD auditors were transferred out of the IHD. (See Def.’s Stmt.
¶ 29; DeNigro Dep. 108:4-108:8.)
6
Neither party has provided Dillon’s title. This meeting came about after Bright expressed her
desire for reassignment to EB Bureau Chief Kris Monteith, and Monteith advised her to speak to
Dillon about the request. (Pl.’s Opp’n, Ex. A (Pl.’s Resp. to Def.’s Interrogs.) at 13.)
5
permitted to remain part of the New York field office. (Def.’s Stmt. ¶ 25; DeNigro Dep. 22:5-
24:7.) No other field office had auditors. (Def.’s Mot. at 28; see also Bright Dep. 112:11-
112:15, 121:4-121:10.) When Bright asked to be reassigned to the Atlanta office, Dillon
explained that, in order for an employee to be reassigned, “there needs to be a vacancy at that
office.” (Def.’s Stmt. ¶ 22; Def.’s Mot., Ex. 9 (George Dillon Dep. (“Dillon Dep.”)) 153:17-
154:23, Sept. 13, 2007.)7 He told her that there were only two non-auditor positions available in
the Atlanta office—senior agent engineer and compliance specialist. (Def.’s Stmt. ¶ 24; Pl.’s
Opp’n at 19.) He indicated that he thought that she would not likely be selected because of her
lack of technical engineering experience. (Dillon Dep. 151:8-152:11; Pl.’s Opp’n at 19.) He
also said that he thought that she might make the “best qualified” list for the compliance
specialist position because it did not require a technical degree in engineering. (Dillon Dep.
151:23-152:14.) Bright responded that the compliance specialist position was not a professional
grade position and would be a demotion for her. 8
D. Subsequent Work Environment, Medical Accommodations, and Request for
In-Person Meeting
According to Bright, she was “required to endure mistreatment with regard to the
undermining of her mental capabilities” and “forced to work in an unsympathetic and hostile
working environment” throughout this time. (2008 Compl. ¶ 20.) Bright alleges that, at the time
7
Dillon testified that no auditor had ever been reassigned to an office to fill a position that did
not already exist except where necessary for “humane” reasons such as terminal illness. (Dillon
Dep. 154:3-23.)
8
Bright alleges that the compliance specialist position was a GS-7 (Pl.’s Opp’n at 17), whereas
Dillon indicated that he thought that it was a GS-14. (Dillon Dep. 152:5; accord Montieth Dep.
105:13-105:20 (stating that she believed that a compliance specialist could be a GS-13 or GS-
14).)
6
of these events, the FCC indecency policy allowed broadcasters to use the word “nigger,” which
she found “highly offensive.” (Id. ¶ 21.)
Sometime on or about May 2, 2007, Bright filed a charge of discrimination (“2007 EEO
Complaint”) with the EEO Program Manager within the FCC. (See 2008 Compl. ¶ 24.)
On June 26, 2007, Bright met with Montieth as part of the informal EEO process. (Id.)
On that same day, Bright was assigned a task involving the preparation of labels and stuffing
envelopes. (Pl.’s Opp’n at 15.)
In February 2008 Ben Bartolome, one of Bright’s direct supervisors and the IHD
manager overseeing the indeceny project, requested that Bright update the project database,
confirm that indecency complaints had been scanned, and draft letters. (Id. at 3; Def.’s Mot. at
35.) After Bright indicated that, due to her carpal tunnel syndrome,9 she could not perform
repetitive tasks like typing, she was permitted to handwrite letters. (Pl.’s Opp’n at 16.) Robin
Peltzman, a Caucasian paralegal, was assigned to type the letters she drafted. (Id.)
In April 2008 Bright was diagnosed with chronic cervical strain, in addition to her carpal
tunnel syndrome (which was originally diagnosed in 1996). (See id. ¶¶ 7, 11.) To accommodate
her medical disabilities, Bright was provided with assistants to help her write and type (Def.’s
Stmt. ¶ 31; see Bartolome Dep. 65:15 – 66:18), voice-activated software, a special chair, and
other accommodations with respect to her work station. (Def.’s Stmt. ¶ 32; see Def.’s Mot., Ex.
12 ( Lawrence Schaffner Dep. (“Schaffner Dep.”)) 24:11- 25:3, July 29, 2011.)
9
In 1996 Bright was diagnosed with carpal tunnel syndrome. (2010 Compl. ¶ 7.) Her physician
recommended that Bright’s workstation be assessed and that adjustments be made for an
ergonomic station. (Id.) The agency (through the bureau in which Bright was employed at that
time) provided an ergonomic chair and keyboard (id.), but there is no evidence that a formal
work station assessment was performed. Bright alleges that she informed her EB supervisors of
her condition at some point prior to 2005. (See Pl.’s Opp’n at 19.)
7
From May through November 2008, Bright was assigned to assist Patricia Green, another
auditor, with the “For Cause Audit/Investigation.” (2010 Compl. ¶¶ 12-13; Pl.’s Opp’n at 16
(referring to this project as the “numbering audit”.).) This assignment was made when Green,
who was already on the “For Cause Audit/Investigation,” requested assistance. (2010 Compl. ¶
12.)
On August 14, 2008, IHD Chief Hillary DeNigro (“DeNigro”) approved an agreement
allowing Bright to telecommute to work two days per week. (See Def.’s Mot., Ex. 14
(“Telecommuting Agreement”).) The first sentence of this agreement provided that, even on
telecommuting days, employees may be required to come into the office for reasons including
meetings, trainings, and work that must be conducted on-site. (Id.)
On November 20, 2008, Bright received a mid-year evaluation from her supervisors
Trent Harkrader and Bartolome. (2010 Compl. ¶ 14.) At that meeting, Bright indicated that she
experienced pain when she performed repetitive work and, when asked what work she would be
able to do, she responded “audit work.” (Id.) Bright alleges that, later that day, DeNigro yelled
at her outside her office and, when Bright told her to watch her tone, DeNigro threatened Bright
with insubordination. (Id.)
On November 21, 2008, Bright was removed from the audit assignment and assigned to
perform clerical duties instead. (Id. ¶ 13.) Later that day, a coworker told Bright that she had
been removed because management had decided that only one auditor would be permitted to
work on the “For Cause Audit/Investigation.” (Id. ¶ 15.)
In her opposition, Bright alleges that, from November 2008 through June 2009, her
clerical duties increased, she was assigned a disproportionately large number of indecency
complaints, she was given deadlines for her work, and she was required to submit daily status
8
updates. (Pl.’s Opp’n at 16.) She also alleges that EB management sent her harassing e-mails
and made harassing telephone calls regarding her work performance. (Id.)
On April 30, 2009, Bartolome asked Bright to come to the office the next day to attend an
in-person meeting with him and another employee. (Id. ¶ 17.) He called for this face-to-face
meeting after he learned that Bright had decided not to continue with the work assignment to
which she was detailed and had not informed her superiors. (Def.’s Mot. 38; Bartolome Dep.
45:4-48:2.) The appointed day for the meeting was a day on which Bright would ordinarily work
from home pursuant to her telecommuting agreement. (Pl.’s Opp’n at 4.) The telecommuting
agreement “requires that if the work requirement so dictate, that anyone who’s telecommuting
needs to come to the office.” (Def.’s Stmt. ¶ 30 (quoting DeNigro Dep. 86:22-87:3);
Telecommuting Agreement at 2 (“The employee, when telecommuting, agrees to report to the
official duty station as required for training, conferences, mandatory meetings, and to receive
assignments and review completed work.”).)
At that meeting Bright was assigned administrative work and given timetables for
completing her work. (2010 Compl. ¶ 19.) Bright also alleges that on the afternoon of May 1,
2009, Bartolome sent her an email that “attempted to defame Ms. Bright’s character and demean
her….” (Id. ¶ 20.)10
In October 2009, all auditors (including plaintiff) within the IHD were reassigned to other
offices— principally the OMD. (DeNigro Dep. 108:4-108:9.)
II. PROCEDURAL BACKGROUND
On April 30, 2008, Bright filed a complaint in this Court for claims arising from the 2007
EEO Complaint. (See 2008 Compl.) On March 9, 2010, Bright filed a second complaint in this
10
Neither this email, nor any other emails that Bright references (see Pl.’s Opp’n at 16), appear
in the record.
9
Court. (See 2010 Compl.)11 The cases were consolidated on June 22, 2010. (See Order of June
22, 2010 (Dkt. No. 28).) Bright sues for discrimination based on her race and gender and for
retaliation for her involvement in protected activity12 based on (1) the failure to detail her to an
auditor position within the OMD, (2) the clerical nature of the work assignments she was asked
to perform as an auditor at the IHD, (3) the denial of her request for reassignment to the Atlanta
field office, (4) the mandatory in-person meeting on May 1, 2009, (5) defendant’s manner of
responding to her request for medical accommodations, and (6) a hostile work environment. 13
Defendant has moved for summary judgment as to all claims.
ANALYSIS
I. LEGAL STANDARDS
A. RULE 56
11
Bright has litigated at least two previous discrimination cases in this jurisdiction. See Bright v.
Kennard, 99-cv-1934 (D.D.C. Feb. 22, 2001) (granting summary judgment to defendant on
claims of discrimination and retaliation based on allegations of improper work assignments,
failure to promote, unfair performance evaluations, and a hostile work environment from 1995
through 1999); Bright v. Powell, No. 00-cv-1579 (D.D.C. Oct. 20, 2003) (finding claims of
discrimination and retaliation based on allegations of failure to promote barred by res judicata,
but hostile work environment claim based on 1998 incident not barred by res judicata), appeal
voluntarily dismissed, No. 04-5056 (Apr. 28, 2004). Thus, many of the factual allegations in
Bright’s submissions to this Court (see Pl.’s Opp’n at 1-2, 11-13; 2008 Compl. ¶¶ 8-10) have
already been addressed and dismissed in other cases.
12
Although Bright alleges that she filed an EEO Complaint in 2007 and that she was involved in
an EEO deposition of some type in 2002, she has not explained her theory of causation, nor has
she clearly identified what protected activity forms the basis for her retaliation claims.
Therefore, one cannot determine if she can show a causal connection between the protected
activity and the alleged acts of retaliation.
13
Plaintiff also sues for disparate treatment (apparently because of race, gender, and possibly
retaliation) based on acts arising prior to 2007. (See 2008 Compl. ¶¶ 8-15 (alleging failure to
promote and failure to make her a team leader or “Auditor in Charge”).) In its motion for
summary judgment, defendant argues that claims based on these acts were not exhausted because
they were not part of the 2007 EEO complaint. (See Def.’s Mot. at 42-44; Def.’s Reply at 4,
n.1.) Bright has not responded to this argument in her opposition, and, therefore, it will be
treated as conceded. (See also supra note 11.)
10
Defendant has filed a motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56. “The court shall grant summary judgment if 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 party asserting that a fact is untrue or that it is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory
answers, or other materials); or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When
considering a motion for summary judgment, the court may not make credibility determinations
or weigh the evidence; the evidence must be analyzed in the light most favorable to the
nonmoving party, with all justifiable inferences drawn in her favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisputed, are
susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,
571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).
The mere existence of a factual dispute, by itself, is insufficient to bar summary
judgment. See Liberty Lobby, Inc., 477 U.S. at 248. “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of summary
11
judgment.” Id. For a dispute about a material fact to be “genuine,” there must be sufficient
admissible evidence that a reasonable trier of fact could find for the nonmoving party. Id. A
court must determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251-52. “If the evidence is merely colorable, or is not sufficiently probative, summary
judgment may be granted.” Id. at 249-50 (internal citations omitted). The adverse party must
“do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory
assertions offered without any factual basis in the record cannot create a genuine dispute. See
Ass'n of Flight Attendants-CWA v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
B. TITLE VII
Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, condition, or privileges of employment, because of such individual's race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The “two essential elements” of a
discrimination claim under this section are “that (1) plaintiff suffered an adverse employment
action (2) because of the plaintiff's race… [or] sex.” Baloch v. Kempthorne, 550 F.3d 1191,
1196 (D.C. Cir. 2008). “A plaintiff must prove both elements to sustain a discrimination claim.”
Id.Title VII also contains an anti-retaliation provision that makes it unlawful for an
employer to “discriminate against any of his employees or applicants for employment . . .
because he has opposed any practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” Id. § 2000e-3(a). The two
12
essential elements of a retaliation claim under this section are that plaintiff has “suffered (1) a
materially adverse action (2) because he or she had brought or threatened to bring a
discrimination claim.” Baloch, 550 F.3d at 1198.
In the absence of direct evidence of discrimination or retaliation, Title VII claims are
assessed under a burden-shifting framework set out by the Supreme Court in McDonnell
Douglas Corp. v. Green. 411 U.S. 792, 802-03 (1973). Pursuant to that framework, the plaintiff
has the initial burden of proving by a preponderance of the evidence a prima facie case of
discrimination or retaliation. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53
(1981). To establish a prima facie case of discrimination, Bright must show that (1) she is a
member of a protected class; (2) 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) (internal quotation marks omitted). The requirements to establish a
prima facie case of retaliation differ slightly, requiring her to show that (1) she engaged in
statutorily protected activity; (2) she suffered a materially adverse action by her employer; and
(3) a causal connection existed between the two. Id.Once the plaintiff has made a prima facie case, “the burden shifts to the defendant ‘to
articulate some legitimate, nondiscriminatory reason for the [challenged employment action].’”
Id. (quoting McDonnell Douglas, 411 U.S. at 802). However, the D.C. Circuit has stressed that
once an employer has proffered a nondiscriminatory reason, the McDonnell Douglas burden-
shifting framework disappears, and the court must simply determine whether the plaintiff has put
forward enough evidence to defeat the proffer and support a finding of retaliation. Woodruff v.
Peters, 482 F.3d 521, 530 (D.C. Cir. 2007); see also Brady v. Office of the Sergeant at Arms, 520
F.3d 490, 494 (D.C. Cir. 2008) (“[W]here an employee has suffered an adverse employment
13
action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the
district court need not—and should not—decide whether the plaintiff actually made out a prima
facie case under McDonnell Douglas.”).
II. WORK ASSIGNMENTS
Plaintiff claims that defendant discriminated and retaliated against her by requiring her to
perform non-auditing (clerical) work while providing her fellow auditors with substantive work.
(Pl.’s Opp’n at 11-18.) Her challenge is based on two discrete claims, both of which she says
were motivated by discrimination and retaliation: first, she claims that discrimination and
retaliation underlay the decision to detail certain auditors to another department—the OMD, and,
second she claims that discrimination and retaliation informed the work that was assigned to her
as compared with the other auditors who remained within the IHD. (Id.)
A. Detailing IHD Auditors
Plaintiff alleges that even after the 2005 policy statement indicating that the EB would no
longer conduct audits, some IHD auditors were detailed to other divisions of the FCC—in
particular the OMD— to perform substantive auditing work and she further claims that the
decision not to detail her was based on discrimination and retaliation. (Pl.’s Opp’n at 11-12.) It
is undisputed that all remaining IHD auditors were detailed to OMD in 2009 (Def.’s Stmt. ¶ 29;
DeNigro Dep. 36:4-36:12; 36:18-37:3), so any claim for damages will be limited to the time
period prior to plaintiff’s transfer. Defendant seeks summary judgment on this claim, arguing
that Bright cannot establish that this decision was made for discriminatory or retaliatory reasons.
(Def.’s Mot. at 31.) It also argues that it has submitted a legitimate, nondiscriminatory reason for
its work assignment, which it claims that Bright has not rebutted. (Def.’s Reply at 5-7.)
According to defendant, there is a “legitimate, nondiscriminatory reason” for detailing
ten auditors (nine of whom were Caucasian and eight of whom were male) to the OMD while
14
leaving eight auditors (two of whom were African American, two of whom were female, and
four of whom had filed EEO complaints or union grievances) to perform non-audit work in the
IHD. (Def.’s Mot. at 31-32; Def.’s Reply at 5-7.) This decision was, according to the
declaration of a Human Resources Specialist in the OMD, “based on the operational needs of
OMD.” (Green Decl. ¶ 4; Def.’s Reply at 6.)
Title VII defendants typically offer far more detailed explanations for the actions at issue.
See, e.g., Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (weighing evidence
where employer explained that another applicant was more qualified than the plaintiff); see also
Boone v. Clinton, 675 F. Supp. 2d 137, 147 (D.D.C. 2009) (applying Aka, which dealt with a
claim of age discrimination, to claims of racial and gender discrimination under Title VII);
Martinez v. P.R. Fed. Affairs Admin., No. 08-404, 2011 U.S. Dist. LEXIS 109025, at *37-38
(D.D.C. Sept. 26, 2011) (explaining that a budget reduction was the reason for terminating the
plaintiff); Evans v. Dist. of Columbia, 754 F. Supp. 2d 30, 47 (D.D.C. 2010) (explaining that the
need to hire additional people to reach proper staffing levels was the reason for the reduction in
the plaintiff’s duties). In contrast, defendant’s explanation here is, at best, opaque for it provides
no clue as to what is meant by “operational needs,” nor any indication as to how the chosen
auditors fulfilled those needs or why Bright was not chosen. As Bright points out, defendant’s
reason provides no insight into its decisionmaking process (see Pl.’s Stmt. ¶ 20) and as a result,
the legitimacy of the proffered reason simply cannot be assessed based on the record before the
Court.
In addition, Bright offers several arguments relating to demographic disparities. (Pl.’s
Opp’n at 2-3, 11, 14-15.) The record shows that one out of the three African American auditors
was detailed to the OMD to perform substantive work while two remained to perform clerical
15
work in the IHD. (See Green Decl.) Nine out of thirteen Caucasian auditors were detailed to the
OMD while four remained in the IHD. (Id.) She has also shown that two out of five female
auditors were detailed to the OMD while three remained in the IHD. (Id.) Eight out of thirteen
men were detailed to the OMD while five remained in the IHD. (Id.) In addition, Bright argues
that the detailing of the ten auditors to the OMD, which deviated from the normal procedures
prescribed by the collective bargaining agreement, is relevant to her discrimination claim. (Pl.’s
Opp’n at 15; see Pl.’s Opp’n, Ex. B (Def.’s Resp. to Pl.’s Interrogs. (“Def.’s Interrogs. Resp.”))
at 5; id. at Ex. J.) Specifically, the agreement provides that FCC employees maybe detailed for
reasons including meeting temporary needs, responding to temporary shortages, or pending
official reassignment, but that details longer than 120 days must be processed competitively. (Id.
at 2-3) The OMD details, which were largely, if not all, over 120 days (see Def.’s Interrogs.
Resp. at 15-16), were not subject to a competitive application process, but rather given out
through a selection process that defendant justifies as based on “operational needs.” Deviation
from the established selection practice, as is apparently the case here, has been recognized as “a
factor that the trier of fact may deem probative . . . in determining the true motivation behind the
hiring decision of the prospective employer.” Johnson v. Lehman, 679 F.2d 918, 922 (D.C. Cir.
1982); Salazar v. Wash. Metro. Area Transit Auth., 401 F.3d 504, 508-509 (D.C. Cir. 2005)
(“We agree … that a jury could infer something ‘fishy’ from the [deviation from ordinary
procedures]. Specifically, a jury could conclude that [defendant] failed to provide a ‘fairly
administered selection process’ and that its claim to the contrary is pretextual.”); Lathram v.
Snow, 336 F.3d 1085, 1093 (D.C. Cir. 2003) (holding that, where an agency departed from its
normal process without justification, “[s]uch an unexplained inconsistency can justify an
inference of discriminatory motive”).
16
While it may be true, as argued by defendant, that plaintiff’s arguments will not
ultimately be sufficient to allow plaintiff to carry her burden as to pretext, the Court need not
resolve this issue at this stage, for the Court is unable to find that defendant’s proffered reason
for its selection—which is little more than “because we said so”14 —is sufficient to defeat
plaintiff’s claim. Since the above-argument is the only basis defendant offers for dismissing
plaintiff’s retaliation claim, it must also be rejected and this claim will not be dismissed,
although it bears noting that plaintiff’s complaints provide no actual support for this claim, nor is
there any evidence of a causal link between the details and any protected activity.15
B. Work Assignments Among the IHD Auditors
Bright also alleges discrimination and retaliation in the assignment of work to those
auditors who were not detailed to the OMD, but remained within the IHD. (Pl.’s Opp’n at 11-
16.) Defendant seeks summary judgment on this work assignment claim on the basis that there
was a policy shift in the nature of the IHD work in 2005 and that the auditors who remained in
14
Although defendant makes two additional arguments to show that that its detail decision is not
pretextual, neither is availing. First, it offers evidence of the fact that Bright was offered other
details. (Def.’s Stmt. ¶ 28; Def.’s Mot. at 32.) Bright counters, and defendant does not dispute,
that these details did not consist of audit work. (See Pl.’s Stmt. ¶ 18; cf. Def.’s Stmt. ¶ 18
(describing work as “substantive,” but not as auditing work).) The offering of other details,
particularly those that did not involve auditing work, does not undermine the claim that Bright
advances here. Second, defendant asserts that the “fact that all of the IHD auditors were
ultimately transferred to [other divisions] further undermines [p]laintiff’s argument that the
decisions were based on … discrimination.” (Def.’s Mot. at 32.) However, this could just as
well demonstrate that the auditors who remained in IHD after the 2005 policy shift were as
qualified for auditing work as those who were initially detailed— and that it was a consequence
of discriminatory decisionmaking that they were forced to wait longer to engage in substantive
auditing work.
15
The only protected activity that is clearly identified in the complaints is plaintiff’s filing of an
EEO complaint in May 2007, but as the undisputed evidence makes clear, most of the details
took place before she engaged in protected activity, and therefore, there cannot, as a matter of
law, be a causal link. (See supra note 3.)
17
the IHD had to perform non-auditing work and that assignments did not differ on the basis of
race or sex. (Def.’s Mot. at 16.)
The record is clear that Bright was assigned clerical work after 2005 because the
previously-existing IHD auditing work ceased to exist after Chairman Martin decided that the
EB would no longer conduct FCC enforcement via audits (Def.’s Stmt. ¶ 6, 9; see DeNigro
Dep. 18:12- 19:1), that the IHD’s substantive work changed (see DeNigro Dep. 18:8-20:13,
28:4-28:9; Harkrader Dep. 97:13-97:25; Bright Dep. 20:18-20:24), and that Bright was assigned
the same type of work as her colleagues in the IHD. (Bartolome Dep. 17:1-18:15; Boyle Dep.
117:24-118:23; DeNigro Dep. 29:1-29:9; Bright 91:1-91:3.)
Nonetheless, Bright asserts that “she was discriminated against based on her race and
gender and in retaliation for protected activity when she was assigned to clerical work in the
indecency project,” but she fails to cite any competent evidence to support this claim. Rather,
she relies on her own conclusory statements that work was assigned in a discriminatory fashion
and that she received the brunt of the clerical work (see Pl.’s Opp’n at 11-12 (“[W]hile a number
of auditors worked on the indecency project along with Ms. Bright, Ms. Bright was not given
substantive work on the project and was instead relegated to clerical tasks such as data entry and
preparing mailings.”); id. at 15; Pl.’s Stmt. ¶¶ 10-14 (citing to Bright’s own interrogatory
responses)),16 which are, as a matter of law, insufficient to satisfy plaintiff’s burden. See
16
In an attempt to buttress her statements, Bright relies upon Exhibit E, which contains Patricia
Green’s interrogatory responses in Green’s own EEO proceeding. (Pl.’s Opp’n, Ex. E.) Bright
does not provide a page number or otherwise indicate why Green’s responses support her claim.
On the contrary, in the fourteen page, single-spaced document, her name is only mentioned once
and it does not relate to the tasks that Bright performed. (Id. at 12.) She also cites to Exhibit L
as demonstrative of the FCC’s “clear pattern of discriminatory practices relating to promotions
and work assignments.” (Pl.’s Opp’n at 14.) Since Exhibit L appears to be a list of the training
seminars that various employees attended and a number of personnel action slips, the Court
cannot fathom its relevance to plaintiff’s argument regarding work assignments.
18
Williams v. Dodaro, 576 F. Supp. 2d 72, 87 (D.D.C. 2008) (“Mere allegations and conclusory
assertions made on the basis of ‘belief’ do not suffice to establish discrimination for purposes of
the McDonnell Douglas test.”); see also Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
In fact, her own statements undermine her claim that “after February 2005, whoever needed any
type of clerical or function, you know, my name was submitted” (Bright Dep. 21:5-21:7), since
she admits that Patricia Green, a Caucasian woman, was also assigned data entry (Pl.’s Stmt. ¶
14; see also Pl.’s Opp’n, Ex. E.), and she concedes that she had been given a Caucasian assistant
to perform the clerical task of typing her hand-written letters. (Pl.’s Opp’n at 16.)
Bright also attempts to show discrimination by arguing that two auditors who live in New
York were still performing auditing work after the 2005 announcement. (Pl.’s Opp’n at 14-15;
2008 Compl. ¶ 19.) Although adducing evidence of disparate treatment of similarly situated
employees may establish pretext, see Brady, 520 F.3d at 495, Bright has not made such a
showing here. As defendant has explained, the New York auditors were not in fact similarly
situated to Bright: namely, they were continuing work on previously-begun audits. (See Def.’s
Mot. at 17-19; Boyle Dep. 121:9-122:14; DeNigro Dep. 20:21-21:4). In Bright’s case, by
contrast, there was no longer work to be done on the single auditing job on which she worked
(Bright Dep. 24:9-24:1, 48:2-48:7), and thus, she cannot argue that she was “similarly situated”
in that respect. McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 4 (D.C. Cir.
2010) (finding that allegation that other employees received accommodations not offered to the
plaintiff did “not provide the slightest reason to doubt” the defendant’s proffered explanation
where the plaintiff had failed to show that she was similarly situated to the alleged comparators);
Royall v. Nat'l Ass'n of Letter Carriers, 548 F.3d 137, 145 (D.C. Cir. 2008) (finding that
allegation that other employees were treated more favorably could not establish pretext where
19
plaintiff had not shown “all of the relevant aspects of [his] employment were nearly identical”)
(internal quotation marks omitted)).
With respect to her retaliation claim, Bright alleges that her work assignments became
more menial, even among the IHD clerical duties, as a result of her complaint about
discrimination. (Pl.’s Opp’n at 15-16.)17 Her retaliation allegation here differs slightly from her
above claim of discrimination. She points to two specific incidents that, she says, demonstrate
retaliatory animus. (Pl.’s Opp’n at 15-16.) First, she alleges that, on June 26, 2007, she was
assigned to stuff envelopes and prepare mailing slips on the same day that she had a meeting
with the EB Bureau Chief following a meeting that was part of the EEO process and
“immediately” after she filed an EEO complaint. (Pl.’s Opp’n at 15.) Second, she alleges that,
in November 2008, she was removed from two substantive work assignments and reassigned to
indecency project assignments and further that she was assigned a disproportionately large
number of indecency complaints from November 2008 through June 2009. (Id. at 16.)
As is the case with her discrimination claim, her retaliation claim fails because there is a
lack of competent evidence that she was treated differently than her colleagues in the IHD, all of
whom were doing non-audit work, including indecency cases. (Def.’s Reply at 3-4). As
explained above, there is no indication, aside from her unsupported statements, that her
assignments were more clerical than her colleagues’ assignments. Moreover, her claim is further
negated by her contention that, of the eight auditors left in the IHD, at least four of them had
filed EEO complaints or union grievances, making it difficult, if not impossible, to infer that she
was singled out for protected activity.
17
Again, it is not entirely clear what protected activity is alleged to have prompted the supposed
retaliatory conduct. The only protected activity clearly identified is the 2007 EEO Complaint.
However, the allegedly discriminatory/retaliatory change in her work assignments (i.e. assigning
clerical instead of auditing work) dates back to 2005. (Pl.’s Opp’n at 14; Bright Dep. 22:12-13.)
20
Accordingly, the Court concludes that there is no basis upon which a reasonable juror
could conclude that defendant’s assignment of work to plaintiff was motivated by discriminatory
or retaliatory animus.
III. DENIAL OF REQUEST FOR REASSIGNMENT
Plaintiff also alleges that defendant violated Title VII by denying her request for
reassignment to the Atlanta field office. (Pl.’s Opp’n at 17.) Defendant argues that its decision
not to assign Bright to serve as an auditor in the Atlanta field office does not constitute an
adverse action within the meaning of Title VII18 (Def.’s Mot. at 25), and it also offers a
legitimate, nondiscriminatory reason for not assigning plaintiff to the Atlanta office. (Id. at 25-
30.) 19
Under Title VII, an adverse employment action sufficient to support a discrimination
claim is one that creates “a significant change in employment status such as hiring, firing, failing
18
The parties appear to view the action at issue here slightly differently; Bright sees the action as
a denial of her request for reassignment, whereas defendant explains that, as a practical matter,
the granting of her request would mean creating a new position. This difference is not relevant
for the purposes of resolving the instant dispute because it does not change the analysis.
19
Despite language by the Circuit in Brady suggesting that a defendant may be foreclosed from
attacking the sufficiency of the plaintiff's prima facie case when the defendant asserts a
legitimate, nondiscriminatory reason for its employment action, 520 F.3d at 493-94 (noting that
“once the employer asserts a legitimate, nondiscriminatory reason, the question whether the
employee actually made out a prima facie case is no longer relevant’” and instructing the district
court not to analyze whether the plaintiff has made out a prima facie case once the employer
articulates a legitimate, nondiscriminatory reason for the adverse action) (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993)), this is not always the case. See Ginger v. Dist.
of Columbia, 527 F.3d 1340, 1343 (D.C. Cir. 2008) (explaining that because the defendant
argued that the challenged action was not materially adverse and also proffered a legitimate
reason for the action, “[w]e analyze first whether the [action] was a sufficiently adverse action to
support a claim under Title VII [and] then consider whether the [plaintiffs] have adduced
sufficient evidence of discrimination to put their case before a jury”); Adesalu v. Copps, 606 F.
Supp. 2d 97, 103 (D.D.C. 2009) (noting that “[w]hile Brady directs the district court's focus to
the employer's proffered non-discriminatory reason, the Court still first must determine whether
plaintiff has suffered an adverse employment action”).
21
to promote, reassignment with significantly different responsibilities, or a decision causing
significant change in benefits. ” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
Establishing an adverse action requires that the employee “experience materially adverse
consequences affecting the terms, conditions, or privileges of employment or future employment
opportunities such that a reasonable trier of fact could find objectively tangible harm.” Douglas
v. Preston, 559 F.3d 549, 552 (D.C. Cir. 2009) (internal quotations omitted); see Forkkio v.
Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002). “Actions short of an outright firing can be
adverse within the meaning of Title VII, but not all lesser actions by employers count.” Id. at
1130. For example, “[m]ere idiosyncracies of personal preference are not sufficient to state an
injury.” Id. (quoting Brown v. Brody, 199 F.3d 457, 466 (D.C. Cir. 1999)). And “[p]urely
subjective injuries, such as dissatisfaction with a reassignment, or public humiliation or loss of
reputation, are not adverse actions.” Id. (internal citations and quotations omitted).
An actionable injury in the context of a retaliation claim under Title VII differs from that
under the anti-discrimination provision. Its anti-retaliation provision provides recourse for
“materially adverse” actions that “could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Burlington Northern & Santa Fe Ry. v. White, 548 U.S.
53, 57 (2006); Gaujacq v. EDF, Inc., 601 F.3d 565, 570 (D.C. Cir. 2010).
It is established that “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 tangible
harm.” Brown, 199 F.3d at 457. It is therefore not enough for Bright to merely claim that she
22
was denied a desired reassignment to another location. Id. She has not identified any
“objectively tangible harm” resulting from defendant’s refusal to reassign her to the Atlanta
office, see id. at 457, and she has not indicated how this denial could possibly dissuade a
reasonable worker from “making or supporting a charge of discrimination.” Burlington
Northern & Santa Fe Ry., 548 U.S. at 57. Moreover, she has failed to respond to defendant’s
argument that this did not constitute an adverse action and, therefore, this Court will treat that
argument as conceded. 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
Fed. Appx. 8 (D.C. Cir. 2004); Day v. D.C. Dep’t of Consumer & Regulatory Affairs, 191 F.
Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an argument that the opposing party
makes in a motion, the court may treat that argument as conceded.”).20
20
Even if the denial of the request for reassignment could be considered to be a “materially
adverse” action, summary judgment would still be appropriate because defendant has offered a
legitimate, nondiscriminatory/nonretaliatory reason which Bright has not rebutted. The record
establishes that for an EB employee to be considered for reassignment to a field office, “there
needs to be a vacancy at the field office.” (Def.’s Stmt. ¶ 22; Dillon Dep. 153:17-154:23). It
further shows that the Atlanta field office was only staffed with engineers and compliance
specialists and therefore it had no auditor positions available. (Def.’s Stmt. ¶ 23; Montieth Dep.
98:4 –98:10.) At the time of Bright’s request for reassignment, the only open positions were the
senior agent engineer position and the compliance specialist position. (Def.’s Stmt. ¶ 24; Dillon
Dep. 151:23-152:14.) Moreover, this explanation is not undercut by Bright’s reference to the
two auditors who worked out of the New York field office as an example of the fact that
reassignment does occur within the EB. (Pl.’s Stmt. ¶ 22; Pl.’s Opp’n at 15.) These individuals
were not reassigned to the New York field office, but rather, they were permitted to continue on
as part of the New York field office when their bureau was disbanded through an arrangement
made during an earlier reorganization. (Def.’s Stmt. ¶ 25; Def.’s Mot. at 39; see DeNigro Dep.
22:7-23:2; Montieth Dep. 99:22-100:13; Bright Dep. 110:13-110:23.) Given the distinct way in
which the New York auditors became incorporated into the EB and how they came to be part of
the New York office (which was not through a reassignment like Bright requested), it is clear
that they were not “similarly situated.” Royall, 548 F.3d at 145.
23
IV. IN-PERSON MEETING ON MAY 1, 2009
Bright also claims discrimination and retaliation based on defendant’s decision to require
attendance at a meeting on May 1, 2009, which was one of the days that she expected to work
from home. (2010 Compl. ¶ 17; Pl.’s Opp’n at 20-21.) Defendant seeks summary judgment on
the ground that the in-person meeting was not an adverse employment action (Def.’s Mot. at 36-
37), or, alternatively, that plaintiff has failed to rebut the legitimate,
nondiscriminatory/nonretaliatory reason that it has proffered for requiring Bright to attend this
meeting. (Def.’s Mot. at 36-39.)
Again, Bright fails to address defendant’s argument that this action did not constitute an
adverse action, but instead, she merely attempts to cast doubt on defendant’s reason. (Id.) Even
if the argument had not been conceded, which it has, it is clear that calling her into the office for
a face-to-face meeting, as pre-committed by her telecommuting agreement and after learning that
she had not actually worked for four months, falls far short of the kind of actionable injury
necessary for a discrimination claim under Title VII. See Forkkio, 306 F.3d at 1130. And, while
it is true that an actionable injury in the context of a retaliation claim under Title VII is different
and perhaps less onerous than a discrimination claim, it is still the case that requiring an
employee to attend a face-to-face meeting does not rise to the level of severity that “could well
dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington
Northern & Santa Fe Ry., 548 U.S. at 57; Gaujacq, 601 F.3d at 577.21
21
Even if it were an adverse action, which it is not, plaintiff has not rebutted defendant’s
legitimate, nondiscriminatory/nonretaliatory reason for doing so. Here, defendant has explained
that Bright had to attend the meeting because Bartolome, her supervisor, had learned that Bright
not done any work while assigned to a detail and wanted to check in with her face-to-face to
determine the status of her IHD cases. (Def.’s Mot. at 37-39; Bartolome Dep. 45:4-48:2.) The
meeting needed to be in the office because it required the use of computer databases located
onsite and because Bright would need to rely upon the assistants, which the FCC provided as a
medical accommodation, who were physically at the office. (Id. 47:7-47:21.) Furthermore,
24
V. MEDICAL ACCOMMODATION
Bright also raises claims under Title VII relating to defendant’s failure to provide
sufficient accommodations for her carpal tunnel syndrome and chronic cervical cancer. (See
2010 Compl. ¶¶ 7-11, 14, 25.) She alleges that defendant provided inadequate and “grossly
delayed” accommodation and that defendant required her to work on clerical tasks which
exacerbated her disabilities and that these actions were “based on race and gender and in
retaliation for her prior protected activity.” (Pl.’s Opp’n at 21-23.)
While defendant devotes much of its motion to rebutting plaintiff’s allegation of failure
to accommodate her various disabilities, its fails to even contest the fact that plaintiff bases her
claim on Title VII only, and not the Rehabilitation Act, 29 U.S.C. §§ 701 et seq., and that
whether defendant did a worksite assessment or assigned work that exacerbated her disabilities is
simply irrelevant given the total absence of any evidence that these actions were the result of
discrimination or retaliation.
Bright does not provide any evidence that other employees received worksite assessments
or that their accommodation requests were handled differently than hers, Okoroji v. Dist. of
Columbia, No. 94-1442, 1998 U.S. Dist. LEXIS 10704, at *24-25 (D.D.C. July 8, 1998), aff’d,
No. 98-7155, 1999 U.S. App. LEXIS 4002 (D.C. Cir. Feb. 2, 1999) (finding failure to establish
Bartolome explained that he could not wait for a non-telecommuting day to meet with Bright
because she was not due into the office for two more work days. (Bartolome Dep. 47:10-48:14.)
In response, Bright merely asserts that defendant has not carried its burden and that two
Caucasians who telecommuted were “never required to attend meetings at headquarters” (Pl.’s
Mot. at 21), but does not offer any evidence that these Caucasians were similarly situated nor
does she show that other employees who stopped performing work without reporting it to their
supervisors were treated in a different manner. See McGill v. Munoz, 203 F.3d 843, 848 (D.C.
Cir. 2000) (finding no pretext where defendant complied with agency policy and plaintiff
“offered no evidence that employees with similarly suspicious patterns of absenteeism were
treated any differently than she was”).
25
discrimination claim where plaintiff “d[id] not allege that other employees received different or
better treatment than she”), nor is there a scintilla of evidence that Bright’s medical problems
were not accommodated with respect to her work assignments because of race, sex or
retaliation. Therefore, all medical-disability-related claims, whether for discrimination,
retaliation, or harassment, must be dismissed.
VI. HOSTILE WORK ENVIRONMENT
In her complaints and opposition, Bright presents a number of examples of interactions
between herself and EB management that, she contends, constitute a hostile work environment.22
In particular, she alleges that she was subjected to severe harassment motivated by
discrimination and retaliation, which materialized through (1) comments and “verbal attacks by
management” (Pl.’s Opp’n at 20), (2) “excessive scrutiny” of her work (id. at 18-21), (3) the
existence of the FCC indecency policy which permits use of the word “nigger” (2008 Compl. ¶
21), and (4) “requiring her to perform clerical duties, despite her medical restrictions.” (2010
Compl. ¶ 25.)23 Defendant seeks summary judgment on the grounds that (1) the acts for which
Bright sues are not sufficiently adverse to form the basis of a claim for harassment (Def.’s Mot.
at 33-35), and (2) Bright has not demonstrated that they were motivated by race or gender-based
discrimination or by retaliation. (Def.’s Mot. at 34; Def.’s Reply at 7-8.)
22
“A hostile work environment claim is comprised of a series of separate acts that collectively
constitute one ‘unlawful employment practice.’” Nat’l RR Passenger Corp. v. Morgan, 536 U.S.
101, 116 (2002) (quoting 42 U.S.C. § 2000e-5(e)(1)). Given the structure of Bright’s opposition
and its discussion of these various acts collectively, it appears that these allegations are intended
to support her hostile work environment claim. (See Pl.’s Opp’n at 18-20; see also 2010 Compl.
¶ 25; 2008 Compl. ¶ 20.)
23
Plaintiff cannot invoke claims relating to her medical condition to make a case under Title VII
for harassment when they are, as this Court has already explained, unsupported by evidence of
discrimination or retaliation. See Lester v. Natsios, 290 F. Supp. 2d 11, 22 (D.D.C. 2003)
(explaining that claims found not to be discriminatory conduct are insufficient to support
discrimination-based hostile work environment claim).
26
To prevail on a hostile work environment claim, “a plaintiff must show that h[er]
employer subjected h[er] to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an abusive
working environment.’” Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993)); Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006). To establish a prima
facie hostile work environment claim, a plaintiff must demonstrate (1) that she is a member of a
protected class, (2) that she was subject to unwelcome harassment, (3) that the harassment
occurred because of her membership in a protected class, (4) that the harassment affected a term,
condition, or privilege of employment, and (5) that the employer knew or should have known of
the harassment, and failed to act to prevent it. Jones v. GlaxoSmithKline, LLC, 755 F. Supp. 2d
138, 149 (D.D.C. 2010) (citing Lester, 290 F. Supp. 2d at 22).
“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; see also Lester, 290 F. Supp. 2d at 22 (“The key terms, then, are ‘severe,’
‘pervasive,’ and ‘abusive,’ as not just any offensive or discriminatory conduct rises to an
actionable hostile work environment.”) (internal quotations omitted). The “conduct must be
extreme to amount to a change in the terms and conditions of employment.” Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998). This standard is “sufficiently demanding to ensure that
Title VII does not become a ‘general civility code.’” Id. (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998)). It is also critical to establish that the hostile work
environment was the result of discrimination based on a protected status or retaliation based on
protected activity. As the Second Circuit has explained:
27
Everyone 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.
Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002).
Bright alleges that she was subjected to a hostile work environment through “verbal
attacks by management.” (Pl.’s Opp’n at 20.) In support, she cites the following: her
supervisors admonished her on various occasions, one used profanity twice at which point a
second supervisor did not intervene, and Dillon stated that she did not possess the technical
background to become an engineer so as to “demean[] her accomplishments.” (Pl.’s Opp’n at
19-20.) Although Bright’s testimony reflects a level of friction between her and her supervisors,
her allegations are insufficient as a matter of law to establish a hostile working environment
claim. See, e.g., Baloch, 550 F.3d at 1201 (affirming finding of no actionable hostile work
environment where, on multiple occasions, defendant yelled, used profanity, threatened arrest,
and described plaintiff’s work as “bullshit”); Holmes–Martin v. Sebelius, 693 F. Supp. 2d 141,
165 (D.D.C. 2010) (holding that plaintiff's claims that she was publicly criticized, received
unwarranted criticism in her performance evaluations, given reduced job responsibilities,
excluded from meetings, and received unrealistic deadlines were not sufficiently severe or
pervasive to support a hostile work environment claim); Badibanga v. Howard Univ. Hosp., 679
F. Supp. 2d 99, 104 (D.D.C. 2010) (dismissing hostile work environment claim where plaintiff
was placed on administrative leave due to a false accusation, his accent was criticized, he was
told he was easy to replace with an American, and was told that his supervisor would not hire
other Africans); Johnson v. Dist. of Columbia, 572 F. Supp. 2d 94, 108-110 (D.D.C. 2008)
(dismissing hostile work environment claim where plaintiff alleged he was not paid a promised
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pay increase, his responsibility was reduced, he was told he was “out of order” in inquiring about
his reassignment of duties, and he was constantly ridiculed).
Bright also alleges that she was subjected to a hostile work environment through
excessive scrutiny of her work assignments and the time restraints imposed upon her. (2010
Compl. ¶¶ 10, 19.) These very types of claims have consistently been rejected as evidence of a
hostile work environment. See, e.g., Hussain, 435 F.3d at 366-367 (finding that plaintiff failed to
sustain a hostile work environment claim based on heightened monitoring by supervisors);
Graham v. Holder, 657 F. Supp. 2d 210, 217 (D.D.C. 2009) (“Being subjected to ‘scrupulous
monitoring’ does not support a claim for hostile work environment because ‘it is part of the
employer's job to ensure that employees are safely and properly carrying out their jobs.’”)
(citation omitted); Lester, 290 F. Supp. 2d at 30 (finding supervisors’ request to know plaintiff’s
whereabouts and activities reasonable). Moreover, contrary to plaintiff’s claims, Bright’s work
was not excessively scrutinized: Bright’s supervisors initially reviewed her work pursuant to
periodic checks of all auditor work and subsequently scrutinized her work after finding her work
incomplete and improperly done. (Bartolome Dep. 51:13-52:13; 53:6-54:7; Def.’s Mot. at 35-
36.)
Lastly, Bright alleges that the existence of the FCC policy, which “allows…
[broadcasters] to maintain usage of the word ‘nigger’” is “highly offensive” and lends itself to
the creation of an extremely hostile work environment….” (Pl.’s Opp’n at 2; 2008 Compl. ¶ 21.)
Bright has not shown how that the existence of this alleged policy24 subjected her to the
“discriminatory intimidation, ridicule, and insult” of such “sever[ity] or pervasive[ness] [as] to
alter the conditions of [her] employment and create an abusive working environment.” Harris,
24
Defendant disputes the assertion that the FCC has such a policy. (See Def.’s Interrogs. Resp.
at 17.)
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510 U.S. at 21-22 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). Thus,
Bright cannot establish a hostile working environment claim based on the existence of this FCC
policy.
Though plaintiff clearly had several contentious interactions with some of her supervisors
and disliked the way her supervisors spoke to her, no reasonable jury could find that the
“offensive remarks” and “verbal attacks” she alleges (Pl.’s Opp’n at 19-20) were “so ‘severe’ or
‘pervasive’ as to have changed the conditions of [her] employment,” Baloch, 550 F.3d at 1201(quoting Harris, 510 U.S. at 21), or that such harassment was the result of either discrimination
or retaliation. The Court, therefore, will grant defendant's motion for summary judgment as to
Bright's hostile work environment claims.
CONCLUSION
For the foregoing reasons, the Court grants defendant’s motion for summary judgment in
part and denies it in part. A separate order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: December 9, 2011
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