UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) KARL HAMPTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-2221 (ESH) ) TOM VILSACK, Secretary,1 ) United States Department of Agriculture, ) ) Defendant. ) )
MEMORANDUM OPINION
Plaintiff Karl Hampton was terminated from his position as a Foreign Service Officer for
the United States Department of Agriculture (“USDA”) and has now sued his former employer,
claiming discrimination on the basis of his race, retaliation for engaging in protected activity, and
a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. Before the Court is defendant’s motion for summary judgment. For the reasons
set forth below, defendant’s motion will be granted in part and denied in part.
BACKGROUND
I. FACTUAL HISTORY
A. Background
Plaintiff is an African-American male who was hired by the USDA in its foreign
agriculture service (“FAS”) in 1987. (Plaintiff’s Deposition [“Pl.’s Dep.”] at 13:6-13.) In 1991,
plaintiff was a member of a class action alleging racial discrimination in FAS promotions,
1 Tom Vilsack, current Secretary of the United States Department of Agriculture, is substituted for his predecessor. Fed. R. Civ. P. 25(d). rotations, and training. (Id. at 14:12-15:10.) This case ultimately settled in the 1990s. (Id.)
While serving abroad as the Agricultural Attache to Brazil in 1996, Plaintiff again participated in
protected employment activity by filing an EEO complaint against his then supervisor regarding
“discriminating disparate statements in [his] performance assessment.” (Id. at 16:14-20:13.)
This case settled prior to 2000. (Id.)
Upon returning from Brazil in 1996, plaintiff’s first-line supervisor was Dale Miller, a
Caucasian USDA employee. (Id. at 20:14-17.) Plaintiff alleges his relationship with Miller at
this time was marked by occasional “animosity,” particularly when plaintiff was not selected for
a requested promotion. (Id. at 22:3-25:6.)
From March through June 2002, plaintiff was detailed to the Executive Office of the
President. (Id. at 25:7-10.) In reference to plaintiff’s detail and his participation in an executive
development program, plaintiff alleges that Miller told Patricia Perkins, one of plaintiff’s
African-American co-workers, that plaintiff was “thinking that he’s a nigger from California
instead of a nigger from Mississippi.” (EEOC Testimony of Patricia Perkins, Sept. 18, 2007
[“Perkins Testimony”] at 644:19-20; 673:20-22.) Miller denies making this comment. (Dale
Miller Deposition [“Miller Dep.”] at 125:8-15.)
B. 2002 Printing of Sexually Explicit Emails
On April 26, 2002, a male employee named Tim Powers informed Miller that he had
found sexually explicit materials on one of the USDA printers. (Miller Dep. at 77:8-14; 80:21-
81:5.) Miller retrieved the materials and asked the Human Resources Division what he should
do about them. (Id. at 79:3-6.) Miller was informed that he should take the printed materials to
the Computer Security Office, which he did. (Id. at 79:17-80:7.) Human Resources and the
Computer Security Office then indicated they would handle the matter from that point forward
and would conduct an investigation to determine who had printed the materials. (Id. at 80:18-
2 81:22; Lolla Smith Deposition [“Smith Dep.”] at 28-33.) The investigation (which Miller did not
take part in) traced the electronic printer logs, and determined that the sexually explicit materials
were printed from plaintiff’s computer. (Smith Dep. at 31:20-32:1.)
On July 12, 2002, Miller sent a letter to plaintiff proposing a two-week suspension for
plaintiff based on “Misuse of a U.S. Government color printer to print sexually explicit pictures.”
(Def. Mot. Ex. 5 at 1.)2 Miller was not the deciding official for the matter and had no role in the
ultimate decision on the suspension. (Miller Dep. at 95:15-96:9.) The deciding official was the
then administrator, Ellen Terpstra, and Miller had no communications with Terpstra about his
proposal or her decision. (Id.) In addition, the recommendation for the 14-day suspension
originally came from Ms. Lolla Smith, an employee relations specialist, and was “based on the
normal practices” within the office at the time. (Smith Dep. at 79:4-6.)
Plaintiff responded in writing to the proposed suspension. In his letter, plaintiff did not
deny having printed sexually explicit materials to the USDA color printer—and indeed, admitted
that he “did access these [sexually explicit] sites and . . . did misjudge the situation and printed
off some pictures.” (Def. Mot. Ex. 6 at 48.) Plaintiff argued, however, that he did not print
sexually explicit materials during the exact periods of time specified by USDA. (Id. at 47-49
(e.g., “I did not print off over 218 pages of such material during the hours of midnight and 5 am
on April 2, 2002.”).) Plaintiff further challenged the length of his proposed suspension as
excessive. (Id. at 50, 55.)
Administrator Terpstra noted that while FAS had not had a prior case of computer misuse
related to sexually explicit materials, the proposed 14-day suspension was consistent with prior
2 While Miller was officially the proposing official for plaintiff’s suspension and signed the suspension letter, the letter itself was drafted by the Employee Relations Division. (Miller Dep. at 90:1-91:18.)
3 incidents at the USDA. (Def. Mot. Ex. 2 at 5.) Terpstra ultimately sustained two of the three
allegations against plaintiff and reduced his suspension to one week. (Id.)
C. Alleged Conflict of Interest in Connection with Personal Business Venture
On June 30, 2003, Ms. Lolla Davies of the Employee and Labor Relations branch of
FAS’s human resources department opened an investigation into allegations that plaintiff had
created a conflict of interest and had attempted to abuse his position for personal gain. (Def.
Mot. Ex. 8 at 1.) Plaintiff had sought to open a sweet potato processing plant called Syrisia
Foods by incorporating the company in 1998 and having a feasibility study done by Sparks
Company. (Pl.’s Dep. at 134:8-13.) Plaintiff paid $66,000 of his own money for the feasibility
study (id. at 136:3-13), and the study contained plaintiff’s representation that he was a USDA
employee. (Def. Mot Ex. 10.) Before having this feasibility study done, however, plaintiff
successfully applied for a grant from the USDA. (Pl.’s Dep. at 137:22-138:12.) Plaintiff did not
disclose his affiliation with the USDA as a part of this grant application, although apparently he
was not required to disclose this information as part of the application process. (Id. at 143:16-
144:14.) Plaintiff also failed to disclose his financial interest in Syrisia Foods to the USDA as
required by USDA ethics regulations. (Def. Mot Ex. 11 [Proposed Removal Letter, January 27,
2005] at 10.)
In October 2003, plaintiff discussed his financial interest in Syrisia Foods with a FAS
Ethics Officer, who recommended that plaintiff adjust his disclosure forms to include Syrisia
Foods. (Plaintiff’s Declaration [“Pl.’s Decl.”] ¶ 15.)
D. Investigation into Plaintiff’s Hotel Receipts
4 In early 2004 plaintiff submitted a hotel receipt for reimbursement. A new employee,
Christine Lipscomb, processed plaintiff’s receipts for reimbursement.3 (Miller Dep. at 176:21-
179:21.) Following procedure, Lipscomb asked plaintiff for the original hotel receipt, having
originally been provided only with a copy. (Id.) When plaintiff submitted what he purported to
be the original receipt, Lipscomb noted that it seemed to contain handwritten changes, so she
contacted the hotel for the original receipts. (Id.) Based on her review, she concluded that
plaintiff’s receipts had been altered. (Id.) Lipscomb contacted Miller, who upon looking at the
documents took them to his supervisor, Mr. Roy Henwood. (Id.) Mr. Henwood in turn believed
the matter should be investigated by Compliance Review Staff (“CRS”). (Id.) Mr. Miller
concurred, and took the receipts to FAS Security Officer Richard Maxwell. (Id.) Maxwell, an
Army criminal investigator for 25 years before joining the USDA, conducted an investigation
into whether plaintiff had submitted additional altered travel receipts for reimbursement.4
Maxwell’s investigation concluded that numerous hotel bills submitted by plaintiff had
been altered. (Def. Mot. Ex. 11.) These alterations indicated that plaintiff had spent additional
nights at hotels, thereby increasing the reimbursement amount supposedly owed to plaintiff. (Id.)
Some receipts had been altered by pen, and printed bills had been changed. (Id. at 2-3.) Others
were typed in a format that did not resemble genuine bills provided by the hotels, such as,
different fonts, missing account numbers, misaligned columns, or missing signature lines. (Id. at
2-7.) Some receipts contained changed dates that did not match a hotel’s file copy of the bill.
(Id. at 3.) Some receipts indicated that plaintiff’s Visa credit card was used to pay for charges.
The credit card statements, however, contained no corresponding charges (or contained charges
3 Plaintiff did not, and does not know Ms. Lipscomb. (Pl.’s Dep. at 249:14-17.) 4 Plaintiff did not know Maxwell prior to meeting with him as part of the investigation. (Pl.’s Dep. at 249:7-13; Richard Maxwell Deposition [“Maxwell Dep.”] at 36:1-3.)
5 for smaller amounts.) (Id. at 3-6.) Plaintiff became aware of this investigation on January 29,
2004, when he was contacted by Maxwell, who then met with plaintiff the following day to
discuss his government travel, conflicts of interest, and possible ethics violations. (Pl.’s Decl. ¶
16.)
At this time in mid-2004, plaintiff was under investigation by CRS for both possible
conflicts of interest related to the Syrisia sweet potato plant, as well as for allegations that he had
altered hotel receipts that he had submitted for reimbursement. In addition, plaintiff was due for
“periodic reinvestigation,” which is a background investigation that must be conducted every
five years for all individuals who hold top secret security clearances, as plaintiff did at that time.
(Martin Brumback Deposition [“Brumback Dep.”] at 15:7-16:12.) The fact that plaintiff’s
periodic reinvestigation occurred at this time was not connected to the ongoing CRS
investigations. (Id. at 41:11-42:1.) Martin Brumback, the Chief of the Personnel and Document
Security Division and the official in charge of USDA security clearances, received a call from
CRS notifying him that CRS was investigating allegations of misconduct that had been made
against plaintiff. (Id. at 9:13-10:3; 16:20-17:17.) Such notification is required when CRS
investigates allegations that would adversely reflect on a person’s eligibility to hold a national
security clearance. (Id. at 17:18-18:3.) Brumback reviewed a packet of information that
contained both the allegations against plaintiff, as well as his response. (Id. at 20:5-18.)
Pursuant to his normal practice, Brumback suspended plaintiff’s security clearance on June 30,
2004, and held in abeyance his office’s decision on plaintiff’s eligibility for a renewed clearance
pending resolution of the misconduct charges. (Pl. Opp. Ex. 12; Brumback Dep. at 28:9-29:1.)
6 On June 20, 2004—the same day his security clearance was suspended—plaintiff filed an
EEO complaint alleging that the investigation into his misconduct was discriminatory. (Pl.’s
Decl. ¶ 19.)
In October 2004, plaintiff was denied a promotion from FS-03 to FS-02. (Compl. ¶ 16;
Pl.’s Decl. ¶ 20.)
In November 2004, plaintiff was denied a foreign assignment by FAS. (Compl. ¶ 18;
Pl.’s Decl. ¶ 22.) Later that month, plaintiff alleges that FAS Deputy Administrator Lyle
Sebranek told Sheila Bruce, a Personnel Management Specialist in Human Resources, that
plaintiff was not being sent overseas because of his EEO complaint.5 (Affidavit of Sheila Bruce,
Pl.’s Opp. Ex. 15 at 2-3.) Sebranek denies making this statement. (Lyle Sebranek Deposition
[“Sebranek Dep.”] at 55:16-60:12.)
E. Plaintiff’s Proposed Termination
The results of the investigation into plaintiff’s hotel reimbursement requests were
ultimately forwarded to Lacy Muir, a USDA employee relations specialist, who had had no prior
interactions with plaintiff. (Lacy Muir Deposition [“Muir Dep.”] at 9:11-13; 12:17-19.) After
examining the results of the investigation, Muir believed that plaintiff should be terminated. (Id.
at 41:15-42:13.) Muir then discussed the matter with Miller, and she drafted a proposal of
removal ultimately signed by Miller and delivered to plaintiff on January 27, 2005. (Id. at 43:2-
10; 44:12-46:2; Def. Mot. Ex. 11.) Plaintiff was subsequently placed on paid administrative
leave. (Id.)
5 The Court notes that Bruce’s affidavit is somewhat at odds with plaintiff’s complaint, which states that Sebranek told Bruce that plaintiff “was not being sent overseas because of his suspended security clearance and his EEO complaint.” (Compl. ¶ 19 (emphasis added).)
7 As plaintiff’s second-line supervisor, the deciding official for plaintiff’s removal was Mr.
Roy Henwood, a political appointee and the then Director of External Affairs and Confidential
Assistant to the Administrator. (Roy Henwood Deposition [“Henwood Dep.”] at 6:21-7:7.)
Plaintiff responded to his proposed removal in writing and at a hearing in March 2005.
(Def. Mot. Ex. 16; Pl.’s Dep. at 203:9-17.) Plaintiff, Henwood, and Muir were present at the
hearing. (Pl.’s Dep. at 203:18-21.)
At least one hotel manager had already indicated to CRS investigators that he was
unwilling to release the original receipts without a court order or a letter of authorization from
plaintiff. (Henwood Dep. at 39:9-14; Def. Mot. Ex. 17.) Henwood therefore requested that
plaintiff sign a release allowing the hotel to release the records. (Henwood Dep. at 38:4-40:4.)
Plaintiff refused. (Id.) In addition (and unbeknownst to USDA), plaintiff had contacted the hotel
manager first by telephone in August 2004 and later in a letter dated March 8, 2005, and he
threatened legal action should the manager disclose further information to the USDA.6 (Def.
Mot. Exs. 18, 24.)
F. Henwood Requests Additional Details
On May 3, 2005, Henwood sent a letter to Maxwell requesting that CRS undertake
additional investigation in order to clarify several “reasonable questions” raised by plaintiff
regarding some of the charges against him. (Def. Mot. Ex. 17.) Specifically, Henwood wanted
to see if it was possible to obtain the original hotel bills at issue (notwithstanding plaintiff’s
6 Plaintiff’s March 8, 2005 letter also accused the hotel manager of having already violated plaintiff’s rights. (See Def. Mot. Ex 18.) Plaintiff requested that the manager provide him with “a signed statement that [the manager] did not discuss or provide any information to Mr. Maxwell or anyone regarding [plaintiff’s] records/file for [his] stay with [the] hotel.” (Id.) Plaintiff then threatened legal action against the hotel manager in the event that any prior disclosure resulted in his termination. (Id.)
8 earlier refusal to authorize the release of these records) in order to determine “the extent of
alteration, if any, made to the copies submitted for reimbursement” (Id.) These originals had not
been submitted by plaintiff, nor could they be obtained during the course of the initial
investigation. (Id.) Alternatively, Henwood requested that Maxwell “supplement the record
with confirmation that each receipt in question is identified by the manager [of the hotel in
question] as fraudulent,” preferably by means of sworn statements. (Id.)
Compliance Review Staff conducted a follow-up investigation by re-interviewing several
hotel managers and employees in mid-July 2005. (Def. Mot. Ex. 24.) This investigation was
completed on July 29, 2005. (Def. Mot. Ex. 19.) The reinvestigation revealed the legal threats
plaintiff had made against the hotel manager should he cooperate with the CRS investigation.
(Def. Mot. Ex. 24; Henwood Dep. at 27:2-15.) In addition, the reinvestigation revealed the
opinion of the employees of each of the hotels in question that the receipts submitted by plaintiff
for reimbursement were not valid or legitimate invoices used by the hotels during plaintiff’s
alleged stays. (Id.)
Plaintiff was again denied promotion and overseas assignment in October and November
of 2005. (Pl.’s Decl. ¶ 27.) Plaintiff remained on a leave-with-pay status at this time. (Compl. ¶
33.)
On April 25, 2006, Henwood issued his decision recommending that plaintiff be
separated for cause. (Pl.’s Opp. Ex. 19; Pl.’s Decl. ¶ 28.) In reaching this decision, Henwood
sustained the allegations that plaintiff had: (1) submitted false documents for travel claims; (2)
failed to properly remit to USDA a credit issued by a hotel to his government-issued credit card;
(3) failed to report his development and ownership of Syrusia Foods as required on his financial
disclosure forms from 1998-2002; and (4) provided false information to CRS when questioned
9 during an official investigation. (Pl.’s Opp. Ex. 19.) In concluding that plaintiff should be
suspended for cause, Henwood’s April 25, 2006 letter focused particularly on the allegations
involving plaintiff’s government-issued charge card. (Id.) The next day plaintiff was placed on
leave-without-pay. (Pl.’s Dep. at 225:12-18.)
On May 4, 2006, USDA notified the Foreign Service Grievance Board (“FSGB”) that it
intended to separate plaintiff for cause. (Compl. ¶ 39; Pl.’s Decl. ¶ 28.) On April 30, 2007, the
FSGB issued its initial decision finding that that the USDA presented sufficient cause for
plaintiff’s separation. (Compl. ¶ 41.) On May 1, 2007, FAS issued plaintiff Standard Form SF-
50 noting his termination. (Compl. ¶ 42; Pl.’s Decl. ¶ 29.) On June 6, 2007, the FSGB released
its final recommendation recommending plaintiff’s termination. (Compl. ¶ 44.)
Plaintiff filed a formal complaint of discrimination with the USDA on June 11, 2007.
USDA issued its final order regarding this complaint on October 22, 2007. Plaintiff filed the
instant suit on December 6, 2007. Defendant responded by moving to dismiss certain counts for
untimeliness and failure to exhaust. This Court denied defendant’s motion on June 25, 2008.
Hampton v. Schafer, 561 F. Supp. 2d 99 (D.D.C. 2008). Defendant now moves for summary
judgment.
ANALYSIS
I. LEGAL STANDARDS
A. Summary Judgment
A motion for summary judgment “should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). There is a “genuine
issue” of material fact if a “reasonable jury could return a verdict for the nonmoving party.”
10 Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C. Cir. 2007) (quoting Anderson, 477 U.S. at
248). A moving party is thus entitled to summary judgment against “a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Waterhouse v. District of Columbia, 298
F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
When considering a motion for summary judgment, “[t]he evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at
255; see also Wash. Post Co. v. U.S. Dep’t of Health and Human Servs., 865 F.2d 320, 325 (D.C.
Cir. 1989). However, the non-moving party “may not rely merely on allegations or denials in its
own pleading.” Fed. R. Civ. P. 56(e)(2). “While summary judgment must be approached with
special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her
allegations by affidavits or other competent evidence showing that there is a genuine issue for
trial.” Calhoun v. Johnson, No. 95-2397, 1998 U.S. Dist. LEXIS 22376, at *3 (D.D.C. Mar. 31,
1998), aff’d No. 99-5126, 1999 U.S. App. LEXIS 25165 (D.C. Cir. Sept. 27, 1999) (internal
citation omitted).
B. Discrimination Based on Race
Under Title VII, it is an “unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race [or] color.” 42 U.S.C. § 2000e-2.
The “two essential elements” of a discrimination claim under this section are “that (i) plaintiff
suffered an adverse employment action (ii) because of the race [or] color” Baloch v.
Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). “A plaintiff must prove both elements to
sustain a discrimination claim.” Id.
11 Under the framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973), plaintiff “must [first] establish a prima facie case of discrimination.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). A plaintiff establishes a prima facie
case of discrimination by showing that “(1) []he is a member of a protected class; (2) []he
suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference
of discrimination.” Wiley v. Glassman, 511 F.3d 151, 156 (D.C. Cir. 2007). Once plaintiff
makes out a prima facie case, the burden shifts to defendant, who must “articulate some
legitimate, nondiscriminatory reason” for the adverse action. McDonnell Douglas, 411 U.S. at
802; see Reeves, 530 U.S. at 142.
If the defendant satisfies its burden, “the McDonnell Douglas framework — with its
presumptions and burdens — disappear[s], and the sole remaining issue [is] discrimination vel
non.” Reeves, 530 U.S. at 142-43 (internal quotations and citations omitted); see also Brady v.
Office of Sgt. at Arms, 520 F.3d 490, 494 n.2 (D.C. Cir. 2008) (“In a Title VII disparate-
treatment suit where an employee has suffered an adverse employment 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.”); Baloch, 550 F.3d at 1197 n.2.
“[I]n considering an employer’s motion for summary judgment or judgment as a matter
of law in those circumstances, the district court must resolve one central question: Has the
employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted
non-discriminatory reason was not the actual reason and that the employer intentionally
discriminated against the employee on the basis of race, color, religion, sex, or national origin?”
Brady, 520 F.3d at 494; Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (to “survive
12 summary judgment the plaintiff must show that a reasonable jury could conclude from all of the
evidence that the adverse employment decision was made for a discriminatory reason.”). The
evidence to consider includes (1) the plaintiff’s prima facie case, (2) any evidence the plaintiff
presents to attack the employer’s proffered explanation, and (3) any further evidence of
discrimination that may be available to the plaintiff. Waterhouse v. Dist. of Columbia, 298 F.3d
989, 992-93 (D.C. Cir. 2002) (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir.
1998) (en banc)).). However, the plaintiff need not present evidence in each of these categories
to avoid summary judgment. Aka, 156 F.3d at 1289. Rather, the court should assess the
plaintiff’s challenge to the employer’s explanation “in light of the totality of the circumstances of
the case,” keeping in mind that “[i]t is permissible for the trier of fact to infer the ultimate fact of
discrimination from the falsity of the employer’s explanation.” Reeves, 530 U.S. at 147 (“[O]nce
the employer’s justification has been eliminated, discrimination may well be the most likely
alternative explanation, especially since the employer is in the best position to put forth the
actual reason for its decision.”).
A Title VII plaintiff may, however, bypass the McDonnell Douglas framework and rely
instead on so-called “direct evidence”—expressions by the decision maker that are evidence of
discriminatory or retaliatory intent. The existence of such evidence in itself defeats the motion
for summary judgment and takes the case to the jury. Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511 (2002) (“The McDonnell Douglas test is inapplicable where the plaintiff presents direct
evidence of discrimination.”) (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985)); McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000) (“A plaintiff may always prove a
claim of discrimination [or retaliation] by introducing direct evidence of discriminatory [or
retaliatory] intent.”).
13 C. Retaliation
Under Title VII, it is an “unlawful employment practice 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.” 42 U.S.C. § 2000e-3(a). The “two 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.
The same McDonnell-Douglas burden-shifting framework applies to claims of retaliation.
Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010). Plaintiff establishes a prima facie
case of retaliation by showing “that he engaged in a statutorily protected activity; (2) that he
suffered a materially adverse action by his employer; and (3) that a causal link connects the
two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). Again, once plaintiff makes out a
prima facie case, the burden shifts to the employer “to articulate some legitimate,
non[retaliatory] reason” for the adverse action. McDonnell Douglas, 411 U.S. at 802; see
Reeves, 530 U.S. at 142. If the employer satisfies that burden, “the burden-shifting framework
disappears, and a court reviewing summary judgment looks to whether a reasonable jury could
infer retaliation from all the evidence.” Jones, 557 F.3d at 677.
II. PLAINTIFF’S NON-PROMOTION AND NON-SELECTION FOR FOREIGN ASSIGNMENT (COUNTS ONE, TWO, FIVE AND SIX)
Defendant argues that it had a legitimate, non-discriminatory reason for failing to
promote plaintiff or select him for a foreign assignment: namely, that plaintiff engaged in
misconduct, which ultimately triggered an investigation into this misconduct. This investigation
14 affected his ability to be promoted and led to the suspension of his security clearance. (Def. Mot.
at 23-27.) Plaintiff argues that defendant’s proffered reasons for its actions are in fact a pretext
for discrimination and retaliation.7 (Pl.’s Opp. at 21-36.) With respect to plaintiff’s non-
promotion, the record supports the legitimate, non-retaliatory nature of defendant's explanation,
and plaintiff has failed to demonstrate that it is pretextual. Plaintiff appears, however, to have
raised a material dispute of fact regarding his non-selection for foreign assignment, and the Court
will, therefore, deny defendant’s motion for summary judgment as to Count Five only.
A. Dale Miller’s Alleged Remarks
Plaintiff focuses a significant portion of his Opposition on his first-line supervisor, Dale
Miller, accusing him of having “constantly made jokes [about him] as an African American male
from the south,” telling plaintiff in 1996 that he “had skill sets that [he] should not have because
if [his] race,” and having told one of plaintiff’s co-workers in 2002 that plaintiff acted like “he’s
a nigger from California instead of a nigger from Mississippi.” (Perkins Testimony at 644:19-
20; 673:20-22.) Plaintiff argues that a reasonable factfinder could conclude that USDA’s reasons
for taking action against him are pretextual because “each allegation of plaintiff’s misconduct
was initiated by Dale Miller.” (Pl.’s Opp. at 22.)
Plaintiff’s argument suffers from several fatal flaws. While Miller, plaintiff’s first-line
supervisor, officially “initiated” the investigations into his conduct, the investigations were
triggered as a result of other individuals reporting this conduct to Miller. For example, the
7 The Court finds that plaintiff’s prior protected activity as a member of a class action that settled in the 1990s cannot form the basis for a retaliation claim. At least four years had elapsed between plaintiff’s prior activity and the allegations against him in this case, and plaintiff has offered no additional evidence suggesting a causal relationship between the two. See, e.g., Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009) (two-and-a-half month lapse between prior protected activity and allegedly materially adverse action insufficient to show a relation between the two); Brown v. Mills, 674 F. Supp. 2d 182, 193 (four-year delay between EEO claims and adverse action did not suggest causation).
15 investigation into plaintiff’s hotel reimbursement requests was triggered when Christine
Lipscomb noted handwritten changes to plaintiff’s hotel bills and concluded that plaintiff’s
receipts had been altered in some fashion. (Miller Dep. at 176:21-179:21.) Presented with this
evidence, Miller asked CRS to open an investigation. (Id.) Plaintiff has put forward no evidence
suggesting that Ms. Lipscomb, a new employee at the time, bore any discriminatory animus
toward him. Indeed, the two have never met. (Pl.’s Dep. at 249:14-17.) And no reasonable jury
could conclude that Miller’s decision to at least investigate such serious charges of wrongdoing
was so unreasonable as to itself suggest pretext for discrimination. Rather, plaintiff argues that
Miller’s racially-tinged remarks—the most recent of which allegedly occurred more than a year
before, outside plaintiff’s presence, and had no relation to any alleged misconduct by plaintiff—
automatically taint any and all actions taken by Miller from that date forward. This is not the
law. “‘[S]tray remarks,’ even those made by a supervisor, are insufficient to create a triable
issue of discrimination where, as here, they are unrelated to an employment decision involving
the plaintiff.” Simms v. United States GPO, 87 F. Supp. 2d 7, 9 (D.D.C. 2000). See also Sewell
v. Chao, 532 F. Supp. 2d 126, 139 (D.D.C. 2008), aff’d sub nom. Sewell v. Hugler, 2009 U.S.
App. LEXIS 4136 (D.C. Cir., Feb. 25, 2009) (quoting Ayala-Gerena v. Bristol Myers-Squibb
Co., 95 F.3d 86, 96 (1st Cir. 1996) (“Stray remarks in the workplace, particularly those made by
nondecisionmakers or statements made by decisionmakers unrelated to the decisional process
itself,” do not constitute evidence of discrimination.).
B. Merits of Underlying Allegations
Plaintiff argues that defendant’s articulated legitimate reasons for not promoting him or
selecting him for foreign assignment are pretextual because “the Agency’s allegations of
misconduct are without merit.” (Pl.’s Opp. at 23.) Plaintiff expends considerable effort arguing,
variously, that: he did not violate USDA policies (id. at 24), he had legitimate reasons for failing
16 to disclose his employer on his grant application (id.), he has repeatedly denied submitting
inaccurate hotel receipts (id. at 25), the investigation into his hotel receipts was insufficiently
“persuasive” and therefore defendant failed to “prove” that the receipts were falsified (id. at 26).
Each and every one of these challenges must fail. “[W]hether [plaintiff’s] supervisors were
ultimately correct in their belief that plaintiff was violating the policies is totally irrelevant.”
Velikonja v. Gonzales, 501 F. Supp. 2d 65, 75 (D.D.C. 2007), aff’d sub nom. Velikonja v.
Mukasey, 2008 U.S. App. LEXIS 22465 (D.C. Cir., Oct. 27, 2008). “Once the employer has
articulated a non-discriminatory reason for its action, . . . the issue is not the correctness or
desirability of the reasons offered, but whether the employer honestly believes in the reasons it
offers.” Fischbach v. D.C. Dep’t of Corrs., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (internal
quotation marks, modifications, and ellipses omitted); Brady, 520 F.3d at 496 (“The question is
not whether the underlying . . . incident occurred; rather, the issue is whether the employer
honestly and reasonably believed that the underlying . . . incident occurred.” (emphasis in
original)).
C. “Neutral Bodies” Determination of Underlying Merits
Plaintiff additionally argues that defendant’s investigation lacked merit because “several
neutral bodies had determined that [his] conduct did not warrant further investigation” (Pl.’s
Opp. at 24), thereby bolstering an inference of pretext. These claims do not withstand scrutiny.
Plaintiff argues that in January 2004, the Office of the Inspector General (“OIG”) and the
Department of Justice (“DOJ”) concluded that the USDA grant matter was not “appropriate for
prosecution under conflict of interest statutes.” (Id. Ex 8.) Similarly, plaintiff notes that OIG
and DOJ also declined to prosecute plaintiff for the travel-related allegations as well. (Id. at 25.)
The fact that OIG and DOJ declined to bring criminal charges against plaintiff, however, has no
bearing on the underlying merits of the charges themselves, particularly when coupled with the
17 testimony of Robert Huttenlocker (the USDA Director of Investigative and Enforcement
Services) that OIG and DOJ declined to prosecute because the amount at issue “was not of
sufficient magnitude to warrant prosecution.” 8 (Robert Huttenlocker Deposition [“Huttenlocker
Dep.”] at 109:16-22.)
D. Alleged Procedural Defects in Suspension of Plaintiff’s Security Clearance
Plaintiff claims that USDA failed to follow its own policies when it held his security
clearance in abeyance pending completion of the investigation into his conduct. (Pl.’s Opp. at
28-29.) The record is to the contrary. In support of his position, plaintiff cites section 4429 of
volume three of the U.S. State Department’s Foreign Affair’s Manual, which provides, “The
agency will use its best endeavors to expedite security clearance procedures whenever necessary
to assure a fair and prompt resolution of a grievance.” Plaintiff does not allege how defendant’s
procedures regarding his security clearance violate this provision, and it is the uncontroverted
testimony of Martin Brumback, the Chief of the Personnel and Document Security Division and
the official in charge of USDA security clearances, that it is his normal practice to suspend the
determination of eligibility for a security clearance in cases where allegations have been made
against an employee that would have a bearing on that determination. (Brumback Dep. at 26:12-
28:15.) Defendant’s actions were therefore consistent with its standard practice and therefore do
demonstrate pretext.
E. Lyle Sebranek’s Statement to Sheila Bruce
Plaintiff alleges that he was denied a foreign assignment because of his EEO complaint
filed in June 2004, notwithstanding the ongoing investigation into his conduct and the suspension
of his security clearance the very day plaintiff filed his complaint. (Pl.’s Opp. at 16-17; Pl.’s
8 Defendant cites portions of Maxwell’s deposition supporting Huttenlocker’s recollection of events (Def. Reply at 3), but failed to submit this testimony to the Court.
18 Decl. ¶ 19.) Plaintiff offers direct evidence in support of this claim: namely, a sworn affidavit by
Sheila Bruce, a Personnel Management Specialist in Human Resources, stating that she was
informed by FAS Deputy Administrator Lyle Sebranek that plaintiff was not being sent overseas
in November 2004 because of his EEO complaint. (Pl.’s Opp. Ex. 15 at 2-3.) While Sebranek
denies making this statement (Sebranek Dep. at 55:16-60:12), Bruce’s statement creates a
genuine issue of material fact as to the issue of direct evidence of retaliation against plaintiff for
his June 2004 EEO activity. See Swierkiewicz, 534 U.S. at 511 (“The McDonnell Douglas test is
inapplicable where the plaintiff presents direct evidence of discrimination.”) (quoting Trans
World Airlines, 469 U.S. at 121).
Even such direct evidence of retaliation, however, could be negated at the summary
judgment stage if defendant were able to demonstrate that it would have reached the same
decision absent the prohibited discrimination. See Beckford v. Geithner, 661 F. Supp. 2d 17, 25
(D.D.C. 2009) (suggestion that retaliation was merely “among” the factors motivating adverse
action is insufficient as a matter of law to defeat summary judgment); Pennington v. City of
Huntsville, 261 F.3d 1262 (11th Cir. 2001) (“mixed-motive” theory not available to prove
retaliation claim under Title VII); Speedy v. Rexnord Corp., 243 F.3d 397 (7th Cir. 2001) (same);
Matima v. Celli, 228 F.3d 68 (2d Cir. 2000) (same); Norbeck v. Basin Elec. Power Coop., 215
F.3d 848 (8th Cir. 2000) (same); Kubicko v. Ogden Logistics Servs., 181 F.3d 544 (4th Cir.
1999) (same); Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997) (same); Tanca v.
Nordberg, 98 F.3d 680 (1st Cir. 1996) (same). Here, the burden shifts to USDA to prove that it
would have denied plaintiff’s request for an overseas assignment regardless of any allegedly
retaliatory animus.
19 Defendant argues that as a result of the CRS investigation into allegations of misconduct,
plaintiff’s security clearance was suspended in June 2004, pending resolution of the misconduct
charges. (Pl. Opp. Ex. 12; Brumback Dep. at 28:9-29:1.) Brumback testified at his deposition
that this suspension was his normal practice where allegations have been made that would
adversely reflect on a person’s eligibility to hold a national security clearance. (Brumback Dep.
at 17:18-18:3.) Defendant’s position is that its suspension of plaintiff’s security clearance
precluded FAS from assigning him abroad. (Def. Mot. at 17, 24; Def. Statement of Undisputed
Facts ¶ 33.)
Defendant’s sole evidence in support of this position is an excerpt of Lyle Sebranek’s
deposition9:
Q. Were there ever any instances where someone was perhaps considered ineligible for assignment at the time that you all met?
A. Yes.
Q. What kind of instances would those have been?
A. Would have lost their security clearance.
(Sebranek Dep. at 23:11-18.) In the absence of something more (i.e., a regulation or rule), this
exchange is insufficient to establish the existence of a per se rule precluding plaintiff’s
assignment overseas. Furthermore, Brumback himself testified later in his deposition that
various agencies within USDA had different policies for dealing with employees whose
clearances had been suspended, including “detail[ing] them to other positions that don’t require a
9 Defendant initially cited the deposition of Martin Brumback (Def. Mot. at 17, 24; Def. Statement of Undisputed Facts ¶ 33), but, after receiving notification by the Court of its error, it notified the Court and counsel that it had actually intended to cite to the deposition transcript of Lyle Sebranek. (Dkt. #36.)
20 clearance.”10 (Brumback Dep. at 29:2-12.) The Court is therefore left without sufficient
evidence to support what would otherwise be a persuasive argument that the suspension of
plaintiff’s security clearance would have precluded an overseas assignment regardless of his
EEO complaint. Given this record, the Court has no choice but to deny defendant’s motion for
summary judgment as to Count Five.
III. PLAINTIFF’S LEAVE-WITHOUT-PAY STATUS AND TERMINATION (COUNTS TWO, THREE, NINE, AND TEN)
Defendant again argues that plaintiff’s misconduct motivated its decision to place him on
leave-without-pay and ultimately to terminate him for cause. (Def. Mot. at 23-27.) Plaintiff
likewise argues that defendant’s proffered legitimate reasons for its actions are a pretext for
discrimination and retaliation. (Pl.’s Opp. at 21-36.) With respect to plaintiff’s placement on
leave-without-pay and his ultimate termination, the record amply supports the legitimate, non-
retaliatory nature of defendant's explanation, and plaintiff has failed to rebut this explanation.
The Court will therefore grant defendant’s motion for summary judgment as to Counts Two,
Three, Nine, and Ten.
A. Dale Miller
As previously argued, plaintiff contends that a reasonable factfinder could conclude that
USDA’s reasons for placing him on leave-without-pay and terminating his employment are
pretextual due to Dale Miller’s involvement in initiating the investigations against him. (Pl.’s
Opp. at 29, 31-32.) Specifically, plaintiff asserts that because Henwood did not sustain two of
the six charges against him, “a reasonable fact-finder would almost have to conclude that the
allegation[s] w[ere] pretext for discrimination and retaliation. (Pl.’s Opp. at 30-31.) Because
10 It is unclear from Brumback’s deposition transcript whether any foreign assignments are among the “other positions that don’t require a clearance.”
21 these two charges were not sustained, however, they did not formally support Henwood’s
decision to place plaintiff on leave-without-pay or his decision to ultimately terminate him for
cause. (Def. Mot. Ex. 19.) Moreover, plaintiff’s invocation of Miller is irrelevant to the issue of
plaintiff’s leave-without-pay status and termination, because Henwood—not Miller—was the
deciding official. See Hall v. Giant Food, Inc., 175 F.3d 1074 (D.C. Cir. 1999) (supervisor’s
discriminatory remarks cannot be considered as evidence of discrimination where decision to
dismiss the employee was made not by the supervisor, but a different individual or department
who “made an independent assessment” of challenged conduct); accord Holbrook v. Reno, 196
F.3d 255, 260-261 (D.C. Cir. 1999). And although plaintiff has claimed that Henwood’s actions
were likewise motivated by discriminatory animus, (see, e.g., Pl’s Opp. at 9; Pl’s Dep. at 212:8-
1), he has put forward no evidence whatsoever to support this allegation.
Plaintiff also rehashes his arguments regarding the merits of the underlying allegations
against him by arguing that his failure to reconcile his travel vouchers was an honest mistake.
(Pl.’s Opp. at 30.) Henwood, however, concluded to the contrary, noting that he found plaintiff’s
explanation “less than credulous” in light of the evidence. (Def. Mot. Ex. 19 at 3.) Plaintiff may
not re-litigate the underlying misconduct charges against him in this fashion: the only question is
whether Henwood honestly and reasonably believed the reasons he gave for his decision, not
whether this decision was ultimately correct. Brady, 520 F.3d at 496.
C. Procedural Flaws
Finally, plaintiff cites a number of minor procedural flaws regarding his termination.
(Pl.’s Opp. at 33-35.) Specifically, plaintiff complains that the wrong official’s name appeared
on the form notifying him that he would be terminated, that this form was issued after the initial
decision by the Foreign Service Grievance Board instead of one month later after the final
22 decision by the Board, and that he has not received a “decision in writing” informing him of
what he already knew: that USDA had terminated him as a result of the FSGB’s decision. (Id.)
While “a plaintiff can . . . discredit the employer’s [stated] reason [for adverse action] by,” inter
alia, “pointing to the employer's failure to follow established procedures or criteria,” Houston v.
SecTek, Inc., 680 F. Supp. 2d 215, 221 (D.D.C. 2010) (internal citation and quotation marks
omitted), “to show pretext, a plaintiff ‘must show both that the reason was false, and that
discrimination . . . was the real reason.’” Id. (quoting Weber v. Battista, 494 F.3d 179, 186 (D.C.
Cir. 2007) (internal citation omitted). The “procedural errors” cited by plaintiff are immaterial,
occurred after Henwood’s final decision to terminate plaintiff, and are simply” not enough from
which to reasonably infer that [USDA’s] true motivation for [its] treatment of [plaintiff] was
racially discriminatory.” Id.
Plaintiff’s alleged “procedural errors” committed by USDA when it placed him on leave-
without-pay are frivolous. Plaintiff claims that 3 FAM 4364.3(d) required his first-line
supervisor, Miller, to place plaintiff on leave-without-pay, where in fact plaintiff was placed on
this status by Henwood, his second-line supervisor. In fact, this provision of the Foreign Affairs
Manual states that where, as here, the first-line supervisor’s decision is to recommend that an
employee be separated for cause, an employee should be placed on leave without pay status at
that time, pending final decision. In other words, USDA’s deviation from the FAM resulted in
plaintiff being placed on leave with pay status for over a year when he should have been placed
on leave-without-pay. Needless to say, such a “deviation” hardly supports any inference of
pretext.
23 IV. HOSTILE WORK ENVIRONMENT (COUNTS SEVEN AND EIGHT)
Plaintiff argues that the investigations into his conduct were not only pretexts for
defendant’s direct discrimination and retaliation against him, but separately constituted a hostile
work environment. (Pl.’s Opp. at 36-39.)
To establish a claim of a hostile work environment, “plaintiff must show that his
employer subjected him 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., 510 U.S. 17,
21 (1993) (internal citation omitted)); accord Pantazes v. Jackson, 366 F. Supp. 2d 57, 71
(D.D.C. 2005) (quoting Harris). To determine whether a hostile work environment exists, courts
should consider “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. Plaintiff cannot satisfy this test, because none of the
acts that he alleges, whether considered alone or cumulatively, meets “the demanding standards”
for a hostile work environment claim. Sewell, 532 F. Supp. 2d at 141-42.
Plaintiff complains that Miller’s jokes about plaintiff’s race, his 1996 comment that
plaintiff “had skill sets that [he] should not have because if [his] race,” and his having told one
of plaintiff’s co-workers in 2002 that plaintiff had acted like “he’s a nigger from California
instead of a nigger from Mississippi” are sufficiently severe to constitute a hostile work
environment. (Pl.’s Opp. at 37; Perkins Testimony at 644:19-20; 673:20-22.) Even when
abusive behavior is “‘motivated by discriminatory animus,’” it may not be actionable, especially
where, as here, much of the conduct occurred many years earlier. Stewart v. Evans, 275 F.3d
1126, 1133 (D.C. Cir. 2002) (quoting Barbour v. Browner, 181 F.3d 1342, 1347 (D.C. Cir.
1999). The conduct complained of “must be extreme to amount to a change in the terms and
24 conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(emphasis added). This standard is designed to be “sufficiently demanding” so that anti-
discrimination statutes do not become “‘general civility code[s].’” Id. (quoting Oncale v.
Sundowner Offshore Servs., 523 U.S. 75, 80 (1998). See also Vickers v. Powell, 493 F.3d 186,
198-201 (D.C. Cir. 2007) (noting that district court correctly concluded that a hostile work
environment was not created solely by three incidents that involved being “singled out for a
requirement to provide inordinate amounts of medical information to support requests for leave,”
poor performance evaluations, supervisor’s “angry threats,” and derogatory comments about
minorities).
In short, the acts that plaintiff complains about are simply not the type of “discriminatory
intimidation, ridicule, and insult’ that are ‘sufficiently severe or pervasive to alter the conditions
of [her] employment and create an abusive working environment.’” Baloch, 550 F.3d at 1201
(quoting Harris, 510 U.S. at 21). This is particularly true where, as here, Miller’s alleged use of
a racial slur was not made in plaintiff’s presence, but rather was relayed to him by another
employee. See Manson v. General Motors Corp., 66 Fed. Appx. 28, 33 (7th Cir. 2003)
(unpublished) (“[A]lthough [plaintiff] claimed that another co-worker had told him that
derogatory language had been used in reference to him, such third-hand allegations are
insufficient to create a hostile work environment.”); Black v. Zaring Homes, Inc., 104 F.3d 822,
826 (6th Cir. 1997) (the fact that comments were not directed at plaintiff herself contributed to
conclusion that they were merely "offensive" rather than objectively hostile).
The remainder of plaintiff’s hostile work environment claims merely restates his
underlying discrimination and retaliation claims, alleging a hostile work environment resulted
from defendant’s “continual investigations” into plaintiff’s misconduct. (Pl.’s Opp. at 38.)
25 Plaintiff cannot, however, rely on the discrete acts upon which he bases his discrimination and
retaliation claims to support a hostile work environment claim. “Because plaintiff’s allegedly
‘hostile’ events ‘are the very employment actions he claims are retaliatory[,] he cannot so easily
bootstrap alleged retaliatory incidents into a broader hostile work environment claim.’” Franklin
v. Potter, 600 F. Supp. 2d 38, 76 (D.D.C. 2009) (quoting Keeley v. Small, 391 F. Supp. 2d 30,
51 (D.D.C. 2005)); accord Smith v. Jackson, 539 F. Supp. 2d 116, 138 (D.D.C. 2008) (“[I]nsofar
as Plaintiff attempts to base his hostile work environment claim on his [compressed work
schedule] revocation and AWOL charge, he cannot simply regurgitate his disparate treatment
claims in an effort to flesh out a hostile work environment claim.”). “Cobbling together a
number of distinct, disparate acts will not create a hostile work environment, because ‘[d]iscrete
acts constituting discrimination or retaliation claims . . . are different in kind from a hostile work
environment claim . . . .’” Franklin, 600 F. Supp. 2d at 77 (quoting Lester v. Natsios, 290 F.
Supp. 2d 11, 33 (D.D.C. 2003)); accord Wada v. Tomlinson, 517 F. Supp. 2d 148, 211 (D.D.C.
2007), aff’d, 296 F. App’x 77 (D.C. Cir. 2008). “‘[T]he dangers of allowing standard disparate
treatment claims to be converted into a contemporaneous hostile work environment claim are
apparent. Such an action would significantly blur the distinctions between both the elements that
underpin each cause of action and the kinds of harm each cause of action was designed to
address.’” Rattigan v. Gonzales, 503 F. Supp. 2d 56, 82 (D.D.C. 2007) (quoting Parker v. State
Dep’t of Pub. Safety, 11 F. Supp. 2d 467, 475 (D. Del. 1998)).
The Court will therefore grant defendant’s motion for summary judgment as to Counts
Seven and Eight.
26 CONCLUSION
For the foregoing reasons, the Court grants defendant’s motion for summary judgment as
to Counts One through Four and Six through Ten and denies defendant’s motion for summary
judgment as to Count Five. A separate order accompanies this Memorandum Opinion.
/s/ ELLEN SEGAL HUVELLE United States District Judge
Date: January 13, 2011