UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STEPHEN H. GRAVES,
Plaintiff, Civil Action No. 07-00156 (CKK) v.
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION (April 14, 2011)
Plaintiff Stephen H. Graves (“Graves”) commenced this action against the District of
Columbia (the “District”) on January 22, 2007, claiming that he was subjected to a hostile work
environment based on race during the course of his two-decade career with the District of
Columbia Fire and Emergency Services Department, in violation of both Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and § 1 of the Civil Rights Act of
1866, 42 U.S.C. § 1981 (“Section 1981”). Presently before the Court is the District’s [20]
Motion for Summary Judgment. Based on the parties’ submissions, the relevant authorities, and
the record as a whole, the Court shall deny the District’s motion in its entirety.1
1 While the Court renders its decision today on the record as a whole, its consideration has focused on the following documents, listed in chronological order of their filing: Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Mem.”), Docket No. [20]; Def.’s Stmt. of Material Facts Not in Genuine Dispute (“Def.’s Stmt.”), Docket No. [20]; Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), Docket No. [24]; Pl.’s Counter-Stmt. of Material Facts as to Which There Exist No Genuine Grounds for Dispute (“Pl.’s Resp.”), Docket No. [24]. I. PRELIMINARY MATTERS
At the outset, five overarching observations must be made about the limitations of the
District’s Motion for Summary Judgment. Succinctly stated, the approach the District has taken
in briefing the instant motion leaves much to be desired.
First, nearly all of the arguments tendered by the District in support of its motion are
premised, at least to some degree, on the erroneous assumption that Graves intends to pursue
individual claims of discrimination for each of the employment-related incidents identified in his
Complaint. But in opposition to the instant motion, Graves has made it clear that he only intends
to pursue two factually coextensive hostile work environment claims in this action, one arising
under Title VII and a second arising under Section 1981, and he expressly disavows an intention
to pursue individual claims of discrimination for each separate incident contributing to the
allegedly hostile work environment. As a result, the vast majority of the District’s motion speaks
to claims that simply are not at issue in this action, with surprisingly little attention paid to the
only claims that are at issue—that is, Graves’ hostile work environment claims.
Second, of the approximately eighty-one incidents that collectively comprise the hostile
work environment allegedly suffered by Graves during his employment, only a handful receive
even passing mention in the District’s moving papers. Specifically, the District has tailored its
arguments to the nine incidents that are expressly identified in Graves’ Complaint, leaving
altogether unaddressed over seventy other incidents that Graves identified as part of his hostile
work environment claim during the course of discovery in this action. The omission is no small
matter; having failed to account for all or even a majority of these incidents, the District’s motion
does not speak to the totality of the hostile work environment allegedly suffered by Graves.
2 Third, with few exceptions, the instant motion turns on straightforward questions of law,
such as whether Graves’ claims are barred by the applicable statute of limitations and whether his
allegations, if assumed to be true, are sufficient to support a claim for relief. Where the District
does address a particular incident claimed by Graves to have contributed to the hostile work
environment he allegedly suffered, the incident is invariably described in terms of Graves’
characterization of the incident, providing the Court with little factual context to resolve the
instant motion and leaving the Court with little sense as to what extent the District will
controvert Graves’ characterization of the events should this action proceed to trial. In other
words, the District has more or less assumed Graves’ factual allegations to be true for the present
moment, making this motion almost more akin to a motion to dismiss for failure to state a claim
than a motion for summary judgment. As a result, the factual record presently before the Court is
considerably less developed than is typical for a motion for summary judgment in an employment
discrimination action.
Fourth, the United States District Court for the District of Columbia has supplemented
Rule 56 of the Federal Rules of Civil Procedure with Local Civil Rule 7(h)(1), which requires
that each party submitting a motion for summary judgment attach a statement of material facts
for which that party contends there is no genuine dispute. The party opposing the motion must,
in turn, submit a responsive statement enumerating all material facts which the party contends are
genuinely disputed. See LCvR 7(h)(1). Where the opposing party has additional facts that are
not directly relevant to its response, it must identify such facts in consecutively numbered
paragraphs at the end of its responsive statement of facts. If additional factual allegations are
made, the opponent must file a responsive statement of its own. This well-reasoned rule “places
3 the burden on the parties and their counsel, who are most familiar with the litigation and the
record, to crystallize for the district court the material facts and relevant portions of the record.”
Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir.
1996). The parties in this action have been cautioned on more than one occasion that this Court
strictly adheres to the dictates of Local Civil Rule 7(h)(1) when resolving motions for summary
judgment. See Scheduling & Procedures Order (June 5, 2007), Docket No. [7], at 4-5;
Scheduling & Procedures Order (July 21, 2008), Docket No. [18], at 1-2. Nevertheless, the
District has failed to file a statement responding to the additional factual allegations identified by
Graves in opposition to the instant motion. In an exercise of its discretion, the Court shall treat
those factual allegations as admitted for purposes of resolving the instant motion. However,
those factual allegations are few in number and relatively non-controversial when considered in
the full context of the instant motion, meaning that the impact of this conclusion is de minimis.
Fifth, and finally, the District has elected not to file a reply memorandum responding to
the arguments raised by Graves in opposition to the instant motion, despite having more than
ample opportunity to do so. While that is certainly the District’s right, the failure is particularly
problematic in this case because, in opposition to the instant motion, Graves corrects certain
misunderstandings underlying the District’s opening memorandum, clarifies the scope of the
claims that he intends to pursue in this action, and explains why the District’s arguments are not
tailored to speak to those claims. The upshot is that the Court is left with a motion and an
opposition that are not in direct conversation.
None of the foregoing is necessarily fatal to the success of the District’s motion; to the
extent the District is still entitled to judgment as a matter of law in the face of these various
4 shortcomings, it may secure relief through the vehicle of summary judgment. The Court merely
observes that, despite the advanced stage of these proceedings, it remains largely in the dark as to
what factual and legal issues are likely to arise at trial or to require greater attention during the
course of pretrial proceedings. Nonetheless, the Court shall now turn to the task of delineating
the relevant factual and procedural background based upon the limited record presently available.
II. BACKGROUND
Graves self-identifies as an individual of “mixed race,” explaining that he has Native
American, African American, and Caucasian heritage. Compl., Docket No. [1], ¶ 6. Graves was
formerly employed by the District of Columbia Fire and Emergency Services Department (the
“Department”). Def.’s Stmt. ¶ 1; Pl.’s Resp. ¶ 1. Over the course of his two-decade career with
the Department, which extended from September 5, 1985 through February 12, 2006, he held a
variety of positions and worked at a number of locations. Def.’s Stmt. ¶ 1; Pl.’s Resp. ¶¶ 1, 3.
Graves contends that he was subjected to a hostile work environment throughout his two-
decade career. Altogether, he has identified approximately eighty-one separate incidents as the
component acts comprising the allegedly hostile work environment at issue in this action. Def.’s
Stmt. ¶¶ 2-10; Pl.’s Resp. ¶¶ 1, 3. The first contributing incident is alleged to have occurred
within days of his hiring, on or about September 19, 1985, and the final contributing incident is
alleged to have occurred shortly before the termination of his employment, on or about
September 18, 2005. Pl.’s Resp. ¶ 3. The incidents are of a wide variety and cut a broad swath:
some involve physical violence; others involve facially discriminatory comments by
subordinates, co-workers, and supervisors; and still others involve allegedly punitive assignments
or unjustified disciplinary actions. Id. They involve literally dozens of actors working at various
5 locations, and it is often unclear based on the limited record created by the parties what position a
given actor held at the time of the events in question and what that actor’s relationship was to
Graves at that moment in time. Id.
Attempting to identify all of the approximately eighty-one incidents at issue is neither
necessary nor helpful in resolving the instant motion. However, the following fifteen incidents
provide a useful snapshot of the scope of Graves’ hostile work environment claim:2
September 19, 1985. While still in training, Graves began to receive racially charged comments, such as, “[Y]ou think you’re too good to be black.” Pl.’s Resp. ¶ 3.1.
April 1, 1986. While working at Engine No. 16, Graves was repeatedly subjected to racially charged comments such as “Light Bright Wanna-be White” and “High Yellow.”3 Pl.’s Resp. ¶ 3.2.
August 9, 1986. While requesting assistance from an equal employment opportunity officer, Graves was “rebuffed” and told he was “with the white boys.” Pl.’s Resp. ¶ 3.4.
September 24, 1986. Graves was criticized by a fire chief “for [his] continued friendship with white firefighters.” Pl.’s Resp. ¶ 3.5.
January 2, 1987. Racially charged comments became “pervasive,” occurred “on a daily basis,” and included remarks concerning “the color of [Graves’] skin, eyes and hair.” Pl.’s Resp. ¶ 3.8.
June 1, 1988. During morning line-up, a captain singled out Graves and remarked, “That’s no way for a Black man to look.” Pl.’s Resp. ¶ 3.14.
August 27, 1989. An emergency medical technician questioned the
2 Because the record created by the parties in connection with the instant motion simply sheds no light on whether there are genuine disputes as to whether and how these incidents actually transpired, the Court, taking its cue from the parties, shall merely set forth a brief description of the incidents as they have been characterized by Graves. 3 The term “high yellow” has historically been used to refer to light-skinned individuals of African American background, often in a derogatory manner.
6 authenticity of Graves’ African American heritage, and ultimately slapped him across the face after tensions escalated. Def.’s Stmt. ¶ 2; Pl.’s Resp. ¶¶ 1, 3.16.
May 10, 1990. Following two days of “constant harassment,” an African American employee followed Graves to the instructor’s office and physically struck him multiple times, causing Graves to suffer a detached retina. Pl.’s Resp. ¶¶ 3.20, 4.
April 2, 1995. Graves was reassigned to Engine No. 20, marking the beginning of a series of “punitive assignments.” Pl.’s Resp. ¶ 3.32.
January 28, 1997. An African American civilian employee accused Graves of stealing equipment and, when Graves attempted to respond, threw various objects in Graves’ direction. Def.’s Stmt. ¶ 4; Pl.’s Resp. ¶¶ 1, 3.35.
January 23, 1998. Two African American firefighters remarked to Graves that they “had heard that [he] ‘treat[ed] white people better than black people and [they] were not going to have it in Southeast.’” Pl.’s Resp. ¶ 3.39.
June 19, 1999. When Graves told an African American employee that he could not perform certain tasks on work premises while off- duty, the employee responded, “Fuck you faggot mother fucker, fucking white bitch can’t tell me shit,” and spat in Graves’ face. Def.’s Stmt. ¶ 6; Pl.’s Resp. ¶¶ 1, 3.43.
December 2, 2000. During a meeting with Graves, a battalion fire chief commented, “Graves, a lot of people do not like you because of the color or your skin[.] [I]f you were as dark as me you would not have problems.” Pl.’s Resp. ¶ 3.52.
May 13, 2003. An African American employee remarked in front of third parties that he had punched and spit on Graves in the past and that he would do it again, and described Graves as a “high yellow mother fucker.” Pl.’s Resp. ¶ 3.63.
July 12, 2005. Graves was involved in a physical altercation with an African American lieutenant, during which the lieutenant remarked that he was “going to kick [Graves’] white ass.” Def.’s Stmt. ¶ 10; Pl.’s Resp. ¶¶ 1, 3.79.
According to Graves, this final incident, and the Department’s response, was the “last
7 straw.” He resigned on February 12, 2006. Def.’s Stmt. ¶ 11; Pl.’s Resp. ¶¶ 1-2.
Graves filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on August 1, 2005, Def.’s Stmt. ¶ 15; Pl.’s Resp. ¶ 1, alleging that he
had “been subjected to a continuing pattern of insults and other on-the-job harassment because of
[his] multi-racial background,” and that he had “been discriminated against because of [his] race
(Caucasian, African American, and Native American).” Def.’s Stmt. Ex. V at 1. The EEOC
issued Graves a right-to-sue letter on October 24, 2006. Def.’s Stmt. ¶ 15; Pl.’s Resp. ¶ 1. He
commenced the instant action exactly ninety days later, on January 22, 2007. See Compl. The
parties proceeded to conduct discovery, which, after a series of extensions, finally concluded on
May 19, 2008. See Min. Order (Jan. 11, 2008). On October 10, 2008, the District filed the
instant motion. See Def.’s Mem. Graves filed a timely opposition. See Pl.’s Opp’n. Although
the District sought and received an extension of time to file its reply, see Min. Order (Dec. 18,
2008), the District did not file a reply on the designated date or at any time thereafter. The
motion is therefore fully briefed and ripe for adjudication.
III. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and [that it] . . . is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact, and therefore “[o]nly disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Nor may summary judgment be avoided based on just any disagreement as to the
8 relevant facts; the dispute must be “genuine,” meaning that there must be sufficient admissible
evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual
basis in the record cannot create a genuine dispute sufficient to survive summary judgment.
Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
Moreover, where “a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact,” the district court may “consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty
Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are
susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to 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.” Liberty Lobby, 477
U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith
9 Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not
sufficiently probative, summary judgment may be granted,” Liberty Lobby, 477 U.S. at 249-50
(internal citations omitted).
IV. DISCUSSION A. The District Is Not Entitled to Summary Judgment Based on its Contention that Graves’ Claims Under Section 1981 and Title VII Are Time-Barred
The District argues that the vast majority of Graves’ claims are time-barred. But in
making this argument, the District erroneously assumes that Graves seeks to pursue individual
claims for discrete discriminatory acts, and as a result almost entirely ignores Graves’ hostile
work environment claims. When the actual claims at issue in this action are analyzed with
reference to the appropriate timeliness standard, it is clear that Graves’ claims are timely.
1. Graves’ Brought Suit on His Hostile Work Environment Claims Within the Applicable Statutes of Limitations
Graves’ has asserted two hostile work environment claims in this action, one under
Section 1981 and a second under Title VII. The two claims are subject to two different statutes
of limitations.
On the one hand, claims for hostile work environment under Section 1981 are subject to a
four-year statute of limitations, Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004),
though both parties erroneously assume that the applicable statute of limitations is three years.
See Def.’s Mem. at 15; Pl.’s Opp’n at 29. The mistake is not an uncommon one. Some Section
1981 claims will be subject to a three-year limitations period; others, a four-year limitations
period. This case happens to fall in the latter category. Once upon a time, federal courts faced
with Section 1981 claims were directed to “select the most appropriate or analogous state statute
of limitations,” whatever the nature of the claim, Goodman v. Lukens Steel Co., 482 U.S. 656,
10 660 (1987), which in the case of the District of Columbia was indeed a three-year statute of
limitations, Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir. 1998). But that landscape
changed somewhat with the enactment of the Civil Rights Act of 1991, Pub. L. No. 102-166, 105
Stat. 1071, which added a new subsection to Section 1981—subsection (b)—expanding Section
1981 to reach a universe of post-contract-formation conduct that was previously non-actionable.
Compare Patterson v. McLean Credit Union, 491 U.S. 164, 177 (1989) (concluding that the pre-
amendment Section 1981 did not cover “postformation conduct . . . implicat[ing] the
performance of established contract obligations and the conditions of continuing employment.”),
with 42 U.S.C. § 1981(b) (“[T]he term ‘make and enforce contracts’ includes the making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.”). Because the amendment to
Section 1981 brought about by the Civil Rights Act of 1991 was an expansion and not a
clarification of existing law, Rivers v. Roadway Exp., Inc., 511 U.S. 298, 313 (1994), some
conduct will arise under the pre-amended Section 1981—subsection (a)—and some conduct will
arise under post-amendment Section 1981—subsection (b). The distinction is critical in
identifying the applicable statute of limitations: if a claim arises under subsection (a), then the
district court must select the most appropriate or analogous state statute of limitations; but if a
claim arises under subsection (b), then the four-year “catch-all” statute of limitations for any
claim arising under a federal statute enacted after December 1, 1990 is triggered. See 28 U.S.C.
§ 1658(a). Claims for hostile work environment involve the sort of post-contract-formation
conduct that was not covered by Section 1981 until Congress enacted the Civil Rights Act of
1991—in other words, such claims arise under subsection (b) and the four-year statute of
11 limitations comes into play. Graves commenced the instant action on January 22, 2007, meaning
that his hostile work environment claim under Section 1981 must have accrued on or after
January 22, 2003 in order to be timely filed.
On the other hand, in order to recover on a hostile work environment claim under Title
VII, a plaintiff must generally file a charge of discrimination with the EEOC “within one hundred
and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-
5(e)(1). In this case, Graves filed the relevant charge of discrimination on August 1, 2005,
meaning that his hostile work environment claim under Title VII must have accrued on or after
February 2, 2005 in order to be timely.
The District argues that Graves is precluded from seeking relief on discrete acts of
discrimination falling outside the applicable limitations period. Def.’s Mem. at 15. While this is
undeniably true, and is in fact conceded by Graves, Pl.’s Opp’n at 28, the argument rests on a
fundamental misunderstanding as to the claims that are at issue in this action. Graves has made it
clear that he does not seek to pursue claims for discrete acts of discrimination in this action, but
instead intends to pursue only two factually coextensive hostile work environment claims under
Title VII and Section 1981. Id. at 28-30. Therefore, the operative question is whether Graves’
hostile work environment claims accrued on or after January 22, 2003, with respect to his Section
1981 claim, and on or after February 2, 2005, with respect to his Title VII claim. In both
instances, the question must be answered in the affirmative.
Significantly, although never expressly acknowledged by the District, the timeliness of a
hostile work environment claim is determined according to a different standard than the standard
governing discrete acts of discrimination. So long as at least one act “contributing to the claim
12 occurs within the filing period, the entire time period of the hostile environment may be
considered by a court for the purposes of determining liability.” Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 105 (2002); see also Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550
U.S. 618, 638 n.7 (2007) (“[A]t least some of the discriminatorily-motivated acts predicate to a
hostile work environment claim [must] . . . occur within the charging period.”), superseded by
statute in part, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 11-2, 123 Stat. 5 (2009). In
other words, “[i]t does not matter . . . that some of the component acts of the hostile work
environment fall outside the statutory time period.” Morgan, 536 U.S. at 105. The relevant
inquiry is essentially two-fold: the district court must first ask whether any act falls within the
limitations period; thereafter, the court must ascertain whether the acts about which the plaintiff
complains are part of the same actionable hostile work environment. Vickers v. Powell, 493 F.3d
186, 198-99 (D.C. Cir. 2007).
Beginning with the first part of this inquiry, at least twenty-one of the approximately
eighty-one component acts at issue with respect to Graves’ hostile work environment claims
occurred on or after January 22, 2003, the time period relevant to Graves’ Section 1981 claim,
and at least seven occurred on or after February 2, 2005, the time period relevant to his Title VII
claim. Pl.’s Resp. ¶ 3. Simply by way of example, both periods encompass the alleged physical
altercation between Graves and a lieutenant, during which the lieutenant remarked that he was
“going to kick [Graves’] white ass” and which resulted in Graves losing some of the function of
his right arm and wrist and which allegedly led Graves to resign his employment with the
Department. Def.’s Stmt. ¶ 10; Pl.’s Resp. ¶¶ 1, 3.79, 5. In short, because at least some of the
component acts at issue fall within the applicable limitations period, Graves’ hostile work
13 environment claims are timely and he may seek relief even for component acts that fall outside
the limitations period, provided they are part of the same environment. Morgan, 536 U.S. at 105.
Turning now to the second part of the timeliness inquiry, the question that remains is just
how far the hostile work environment at issue in this action extends in time and scope. The
District argues, in cursory fashion and with minimal explication, that the incidents comprising
Graves’ hostile work environment claims are “each discrete incidents” and “involve[] different
players, and different events.”4 Def.’s Mem. at 21-22. There are two fundamental problems with
the District’s argument.
First, and most importantly, the District discusses a total of nine incidents—specifically,
the incidents that are explicitly mentioned in Graves’ Complaint.5 See Compl. ¶ 8. The District
completely ignores at least seventy other incidents that Graves identified as part of his hostile
work environment claims during the course of discovery in this action. See Pl.’s Resps. to
Interrogs., Docket No. [24-1], at 7-18. The omission is fatal; having failed to account for all or
even a majority of these incidents, the District’s motion does not speak to the totality of the
hostile work environment allegedly suffered by Graves. While the scope of Graves’ claims is
undeniably broad and may at times appear overwhelming, the District cannot simply elect to
ignore the vast majority of incidents that collectively comprise the alleged hostile work
environment challenged in this action.
4 Strictly speaking, the District does not even make this argument in the context of its contention that Graves’ claims are time-barred, but instead does so in suggesting that Graves cannot make out an actionable claim for hostile work environment. See Def.’s Mem. at 20-22. 5 Three of the nine incidents fall within the limitations period for at least one of Graves’ claims, meaning that the Court need not ask whether they are sufficiently related to the timely portion of Graves’ hostile work environment claim.
14 Second, even the District’s more limited arguments are unaccompanied by competent
record support. For instance, the District argues that an unidentified number of the nine incidents
it addresses in its moving papers involved “colleagues of lesser or equal rank,” Def.’s Mem. at
23, but neither party has sought to supply this Court with any record evidence specifically
identifying the relationship between the parties to the various incidents at issue. Indeed, it is not
even entirely clear to the Court what Graves’ rank was at the time of most of these incidents.
This defect carries throughout the District’s motion. In the end, the record has been so poorly
developed by the parties that the Court is left largely in the dark as to the precise factual
circumstances surrounding Graves’ hostile work environment claims.
Simply put, the District has completely failed to discharge its burden of providing this
Court with a basis for concluding that any of the incidents falling outside the limitations period
are so distant in time or so different in kind that, as a matter of law, they cannot be said to be part
of the same actionable hostile work environment claim. Vickers, 493 F.3d at 199. Meanwhile,
the incidents are alleged to have occurred with some regularity over the entirety Graves’ career,
and share common themes of physical violence, facially discriminatory comments, and punitive
assignments or unjustified disciplinary actions. That is, the suggestion that they comprise part of
the same hostile work environment is at least plausible and, in the absence of specific and
competent countervailing evidence, the Court cannot conclude otherwise. In any event, the
critical point is that it is beyond cavil that at least some portion of Graves’ hostile work
environment claim is timely, which suffices to resolve the instant motion. To the extent the
District intends to argue that certain component acts identified by Graves cannot be said to be
part of the same actionable hostile work environment, the Court shall consider a proper motion in
15 limine to exclude evidence concerning such incidents in the context of pretrial proceedings. At
this time, based on the extremely limited record created by the parties, the Court cannot say that
Graves is precluded from recovering as to certain component acts of his hostile work
environment claims on the basis that they are insufficiently related to the timely component acts.6
2. Graves’ Commenced the Instant Action Within Ninety Days After Receiving a Right-to-Sue Letter from the EEOC
Title VII also requires plaintiffs to commence suit within ninety days after they receive a
right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). In its opening memorandum, the District argued at
some length that, with one critical exception, Graves failed to commence the instant action
within ninety days after receiving right-to-sue letters in connection with his various charges of
discrimination. Def.’s Mem. at 17-18. This argument, like many others made by the District in
connection with the instant motion, turns on a fundamental misunderstanding as to the nature of
the claims that Graves intends to pursue in this action. Because Graves indisputably commenced
this action within ninety days after receiving a right-to-sue letter on the only charge of
discrimination that is relevant to this case—specifically, the one that relates to his claims for
hostile work environment—he has fully complied with Title VII’s ninety-day time limitation.
During the course of his long career with the Department, Graves filed a total of four
6 To his credit, Graves, unprompted, observes that because his Section 1981 claim rests on a provision that did not exist until Congress enacted the Civil Rights Act of 1991, he may be precluded from recovering under Section 1981 for any part of the alleged hostile work environment that existed before the effective date of the Civil Rights Act of 1991. Pl.’s Opp’n at 30 n.85. The Court declines to address the issue in the absence of any responsive briefing from the District and the limited record created by the parties in connection with the instant motion. The Court merely raises the issue as one that may require further attention by the parties in the context of pretrial proceedings. To the extent the parties are able to resolve the issue by stipulation, they are strongly encouraged to do so.
16 charges of discrimination with the EEOC and he received four corresponding right-to-sue letters:
NO. DATE OF CHARGE OF DATE OF RIGHT TO SUE DISCRIM INATION LETTER
1 October 4, 1994 April 15, 1996 2 July 20, 2000 November 17, 2000 3 August 1, 2005 October 24, 2006 4 October 17, 2005 June 30, 2006
Def.’s Stmt. ¶¶ 12-15; Pl.’s Resp. ¶ 1. Graves commenced the instant action on January 22,
2007, meaning that he would be barred from securing relief on any charge of discrimination for
which he received a right-to-sue letter on or before October 23, 2006. Consistent with this
conclusion, the District conceded in its opening memorandum that Graves commenced this
action in a timely manner insofar as his claims relate to the third of these four charges of
discrimination—the August 1, 2005 charge of discrimination—but argued that his action is
otherwise untimely. Def.’s Mem. at 17-18.
While that is undeniably true, it is also irrelevant. In this action, Graves simply does not
seek relief in connection with any charge of discrimination other than the one he filed with the
EEOC on August 1, 2005. Therein, Graves specifically alleged that he had “been subjected to a
continuing pattern of insults and other on-the-job harassment because of [his] multi-racial
background.”7 Def.’s Stmt. Ex. V at 1. That is, Graves’ August 1, 2005 charge of discrimination
7 Graves’ other charges of discrimination do not contain a similar allegation that he was subjected to a hostile work environment while employed at the Department, but rather are targeted towards discrete acts of alleged discrimination or retaliation. See Def.’s Stmt. Exs. H, M, W. The District has never suggested that Graves’ earlier charges of discrimination somehow encompassed a hostile work environment claim and that he should for some reason be barred from introducing evidence as to the events underlying those charges.
17 pertained to the same hostile work environment claims that he intends to pursue in the instant
action. For this reason, the District’s argument is misplaced; while other claims that Graves may
have asserted against the District on the administrative level may hypothetically be time-barred
under Title VII’s ninety-day time limitation, that is not the case for the specific claims that
Graves has asserted in this action. Graves filed a charge of discrimination alleging that he was
subjected to a hostile work environment; he received a right-to-sue letter on that charge; and he
commenced the instant action exactly ninety days later. He has fully complied with Title VII’s
ninety-day time limitation.
B. The District Is Not Entitled to Summary Judgment on Graves’ Section 1981 Claim on the Basis That He “Has Not Suffered an Impaired Contractual Relationship”
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed
by white citizens,” a right extending to “the making, performance, modification, and termination
of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.” 42 U.S.C. § 1981(a)-(b). In this case, the District contends that Graves
is absolutely precluded from securing relief “because he has not suffered an impaired contractual
relationship”—specifically, the District argues that because Graves was serving by appointment
pursuant to D.C. Code § 5-402(a), he did not have the sort of contractual relationship with the
Department that is required to support a claim under Section 1981. Def.’s Mem. at 12-13. The
argument is one frequently raised by the District, but as often as it has been raised, it has been
rejected. See, e.g., Wilk v. District of Columbia, 730 F. Supp. 2d 20, 23 n.3 (D.D.C. 2010)
(applying Section 1981 to member of the Department); Hamilton v. District of Columbia, 720 F.
18 Supp. 2d 102, 114 (D.D.C. 2010) (applying Section 1981 to members the Department); see also
Kennedy v. District of Columbia, 730 F. Supp. 2d 20, 60 (D.D.C. 2007) (applying Section 1981
to employee of the Metropolitan Police Department serving by public appointment); Dougherty
v. Barry, 869 F.2d 605, 614-15 (D.C. Cir. 1989) (holding that members of the Department were
entitled to monetary relief under Section 1981); Adams v. McDougal, 695 F.2d 104, 108-09 (5th
Cir. 1983) (concluding that Ҥ 1981 provides a remedy . . . even if the desired position is
appointive and not for a definite period of time.”).
Against this backdrop, the District offers up two authorities—the decision of the Supreme
Court in Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006) and the decision of the
United States Court of Appeals for the District of Columbia Circuit in Kizas v. Webster, 707 F.2d
524, 541-43 (D.C. Cir. 1983), cert. denied, 464 U.S. 1042 (1984)—neither of which provides any
support for its position.8 The first case addresses the question of whether an individual who is
neither a party nor a third-party beneficiary to a contract may use that contract as the foundation
for a Section 1981 claim, see Domino’s Pizza, 546 U.S. at 479-80, a question that simply has no
bearing here because Graves’ Section 1981 claim rests on his direct employment relationship
with the Department. The second case addressed the question of whether federal employees’
exclusive remedy for discrimination lies in Title VII, Kizas, 707 F.2d at 541-43, but it has long
been established that members of the Department “are the counterparts of employees of state and
8 The District also cites to two authorities standing for the proposition that under some circumstances actions may be maintained under Section 1981 even in the absence of contractual privity. See Moonblatt v. District of Columbia, 572 F. Supp. 2d 15, 25 (D.D.C. 2008); Mazloum v. District of Columbia Metro. Police Dep’t, 522 F. Supp. 2d 24, 39 (D.D.C. 2007). Suffice it to say that neither case is factually analogous to the instant action and, if anything, both undermine the District’s position.
19 local governmental units” and may therefore maintain an independent cause of action under
Section 1981, Torre v. Barry, 661 F.2d 1371, 1373 (D.C. Cir. 1981).
The District has provided no support for its contention that Graves’ status as an appointed
public employee poses a per se bar to him securing relief under Section 1981. Because the
overwhelming weight of authority says the exact opposite, the District is not entitled to summary
judgment on this basis.
C. The District Is Not Entitled to Summary Judgment Based on its Contention that the Hostile Work Environment Alleged by Graves Was Insufficiently “Severe or Pervasive”
To prevail on a claim for hostile work environment, a plaintiff must establish that his
“workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive
working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 & 67 (1986)). The inquiry has an objective
component and a subjective component: the environment must be one that a reasonable person in
the plaintiff’s position would find hostile or abusive, and the plaintiff must actually perceive the
environment to be hostile or abusive. Id. In determining whether a hostile work environment
exists, the district court must take into account “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 v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir.
2008).
The District first contends that Graves “cannot succeed on a hostile work environment
claim because the evidence adduced shows that his work environment was not severe or
20 pervasive enough to constitute a hostile work environment,” and then offers a litany of disjointed
and confusing arguments in support of that contention. Def.’s Mem. at 20. However, as has
become a recurring theme, the District’s contention suffers from at least two fundamental defects
that cause it to fail at the outset.
First, as before, the District discusses only the nine incidents specifically identified in
Graves’ Complaint and completely ignores at least seventy other incidents that Graves identified
as part of his hostile work environment claim during the course of discovery in this action. Id. at
21-22. An employment discrimination plaintiff, like any other, need not set forth “detailed
factual allegations” in his complaint, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), only
sufficient factual content to permit a “reasonable inference that the defendant is liable for the
misconduct alleged,” Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009). Significantly,
when it comes to claims for hostile work environment, it is immaterial whether a single act of
hostility or abuse is “actionable on its own.” Morgan, 536 U.S. at 115. The unlawful
employment action is the environment itself, viewed as an indivisible whole. Consistent with
this framework, plaintiffs asserting a claim for hostile work environment are not required to
plead “each element of their claim in their [c]omplaint,” Tucker v. Howard Univ. Hosp., __ F.
Supp. 2d __, 2011 WL 52863, at *6 (D.D.C. Jan. 7, 2011), nor specify in exhaustive detail each
and every component act comprising the allegedly hostile or abusive work environment. Instead,
the plaintiff must set forth enough factual content to provide the defendant with fair notice of his
claim and to render it plausible that his workplace was permeated with hostility or abuse that was
sufficiently “severe or pervasive” to alter the conditions of his employment. Harris, 510 U.S. at
21; see also Holmes-Martin v. Leavitt, 569 F. Supp. 2d 184, 193 (D.D.C. 2008) (complaint
21 alleging “some conduct in support” of the plaintiff’s hostile work environment claim held
sufficient to satisfy pleading standards). In this case, Graves alleged in his Complaint that “[f]or
the entirety of his two decades of service with the Department, [he] was continuously subjected
to a hostile work environment” based upon his “mixed-race background.” Compl. ¶ 8. While
Graves identified nine specific incidents supporting his claims in his Complaint, he clearly stated
that the list was illustrative and non-exhaustive. Id. ¶¶ 8-9. The District never sought to
challenge the sufficiency of these allegations through the vehicle of a motion to dismiss for
failure to state a claim. Meanwhile, in the course of discovery, Graves identified at least seventy
other incidents as part of his hostile work environment claims in response to an interrogatory
posed by the District. See Pl.’s Resps. to Interrogs. at 7-18. Inexplicably, the District completely
ignored all these incidents in briefing the instant motion. The omission is fatal; the relevant legal
standard requires reference to the “totality of the circumstances,” but the District fails to address
all or even a majority of the component acts comprising the environment that Graves contends
was hostile or abusive.
Second, the record presently before the Court has been so poorly developed by the parties
that the Court frankly knows very little about the factual circumstances surrounding the
component acts comprising Graves’ hostile work environment claim. The Supreme Court has
observed that “the real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully captured by a
simple recitation of the words used or the physical acts performed.” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998). With a record such as this, the Court simply
cannot engage in the highly fact-intensive inquiry called for by the applicable legal standard.
22 Meanwhile, the District fails to fully acknowledge the nature of the component acts
comprising Graves’ hostile work environment claim. Well over a dozen incidents allegedly
involved physical violence or a physical altercation of some sort, including one causing Graves to
suffer a detached retina and a second causing him to lose some function of his right arm and
wrist; even more allegedly involved what can only be described as racially charged comments;
and others concern allegedly punitive work assignments or unjustified disciplinary actions. Pl.’s
Resp. ¶¶ 3-5. If proven at trial, these component acts may very well suffice to “evidence [the]
tangible workplace consequences, whether financial, physical or professional,” Baloch, 550 F.3d
at 1201, sufficient to support an actionable claim for hostile work environment. That question,
however, is for another day. For purposes of the instant motion, it suffices to say that the District
has fallen woefully short of discharging its burden of establishing that there is no genuine dispute
requiring trial and that it is entitled to judgment as a matter of law on Graves’ hostile work
environment claims.
D. The District Is Not Entitled to Summary Judgment Based on the Faragher- Ellerth Affirmative Defense
The District notes, in passing, that “a defendant employer may avoid vicarious liability
for misconduct of a supervisor in a Title VII hostile environment case by establishing that it
exercised reasonable care to prevent and correctly promptly any [] harassing behavior, and [] that
the plaintiff employee unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer or to avoid harm otherwise,” Def.’s Mem. at 23, which
the Court assumes is a reference to the affirmative defense articulated by the Supreme Court in
the companion cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). However, “the Faragher-Ellerth defense is
23 explicitly an ‘affirmative defense’ as to which the employer has the burden of proof,” Jones v.
D.C. Dep’t of Corrections, 429 F.3d 276, 279 (D.C. Cir. 2005), and apart from reciting the
requirements of the defense, the District has not provided any argument—let alone competent
evidence—in support of the contention that the defense has any applicability here. Therefore,
summary judgment may not rest on this basis.
E. Graves Has Never Sought to Pursue a Claim for Retaliation in this Action
Finally, the District argues at considerable length that Graves cannot establish that his
transfer to Engine Company No. 8 on or about September 18, 2005 was retaliatory. Def.’s Mem.
at 23-25. The argument is a non-starter; Graves simply has never asserted a claim for retaliation
in this action. See Compl. ¶¶ 11-16. Indeed, in response to the District’s argument, Graves
expressly states that he “does not contend [] that the 2005 transfer . . . was, by itself, actionable,”
and clarifies that he only considers the transfer to be part of his broader hostile work environment
claim. Pl.’s Opp’n at 31 n.87. Based on this explicit concession, there is no dispute for the
Court to resolve, and the Court shall deny as moot the District’s Motion for Summary Judgment
insofar as it seeks dismissal of a non-existent claim for retaliation.
V. CONCLUSION
The Court has considered the remaining arguments tendered by the parties and has
concluded that they are without merit. Therefore, and for the reasons stated above, the Court
shall deny the District’s [20] Motion for Summary Judgment. An appropriate Order
accompanies this Memorandum Opinion.
Date: April 14, 2011
/s/ COLLEEN KOLLAR-KOTELLY
24 United States District Judge