UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
VALERIE KLINE, : : Plaintiff, : : v. : Civil Action No. 07-0451 (JR) : LINDA M. SPRINGER, Director, : U.S. Office of Personnel : Management, : : Defendant. :
MEMORANDUM
Pro se plaintiff Valerie Kline, a white female, sues
the Director of the United States Office of Personnel Management,
alleging race and sex discrimination and retaliation in her
employment as an analyst in the Publications Management Group at
OPM. On March 13, 2009, I granted the government’s motion for
summary judgment.1 This memorandum explains that ruling, which
was entered, to put it most succinctly, because most of the
plaintiff’s complaints are not materially adverse employment
actions, and because, as to the rest, no reasonable juror could
find that any of them were discriminatory or retaliatory.
Analysis
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
1 On March 17, 2009, the plaintiff moved for reconsideration. That motion has been reviewed and will be denied. fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact
exists if the evidence “is such that a reasonable jury could
return a verdict for the nonmoving party,” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986), but the party opposing a
motion for summary judgment must “go beyond the pleadings and by
her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986) (internal citations
omitted). “[A] mere unsubstantiated allegation . . . creates no
genuine issue of fact and will not withstand summary judgment.”
Ginger v. District of Columbia, 527 F.3d 1340 (D.C. Cir. 2008)
(quoting, Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993).
A. Legal Standards
“Under Title VII, the ADEA, and the Rehabilitation Act,
the two essential elements of a discrimination claim are that
(I) the plaintiff suffered an adverse employment action
(ii) because of the plaintiff’s race, color, religion, sex,
national origin, age, or disability.” Baloch v. Kempthorne, 550
F.3d 1191, 1196 (D.C. 2008). “[T]ypical adverse actions in
employment discrimination cases” are being “fired or denied a job
or promotion . . . [or] suffer[ing a] reduction[] in salary or
benefits,” Baloch, 550 F.3d at 1199, although other acts may
- 2 - qualify, such as “withdrawing an employee’s supervisory duties,”
Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003), or
“reassignment with significantly different responsibilities,”
Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002).
“To prove retaliation, the plaintiff generally must
establish that he or she suffered (I) a materially adverse action
(ii) because he or she had brought or threatened to bring a
discrimination claim.” Baloch, 550 F.3d at 1198. “Adverse
actions in the retaliation context encompass a broader sweep of
actions than those in a pure discrimination claim . . . [and] are
not limited to discriminatory actions that affect the terms and
conditions of employment and may extend to harms that are not
workplace-related or employment-related so long as a reasonable
employee would have found the challenged action materially
adverse,” Id. at 1198 fn. 4 (internal citation omitted), “which
in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination,”
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53,
66 (2006). Close temporal proximity to a plaintiff’s EEOC
activity can sometimes support an inference of retaliation, but
only when “the employer knew that the plaintiff engaged in
protected activity.” Moses v. Howard University Hosp., 474
F.Supp.2d 117 (D.D.C. 2007) (citing Holcomb v. Powell, 433 F.3d
889 (D.C. Cir. 2006)).
- 3 - Because “there is nothing inherently suspicious about
an employer's decision to promote a minority applicant instead of
a white applicant . . . or to fire a white employee . . . a
majority-group plaintiff alleging Title VII discrimination . . .
must show additional background circumstances that support the
suspicion that the defendant is that unusual employer who
discriminates against the majority.” Mastro v. Potomac Elec.
Power Co., 447 F.3d 843, 851 (D.C. Cir. 2006) (internal citations
and quotations omitted). “Two general categories of evidence
constitute background circumstances . . . evidence indicating
[that] the particular employer has some reason or inclination to
discriminate invidiously against whites . . . [and] evidence
indicating that there is something fishy about the facts of the
case at hand that raises an inference of discrimination.”
Mastro, 447 F.3d at 851 (internal citation omitted). A panel of
the Court of Appeals found “evidence [such] as political pressure
to promote a particular minority because of his race, pressure to
promote minorities in general, and proposed affirmative action
plans” sufficient to satisfy the first category. Id. (internal
citation omitted). “[E]vidence that a plaintiff was given little
or no consideration for a promotion and that the supervisor never
fully reviewed the qualifications of the minority promotee . . .
[or] that a minority applicant was promoted over four objectively
better-qualified white applicants in an unprecedented fashion”
- 4 - has been found sufficient to satisfy the second. Id. at 851-852
(internal citations omitted).
Because the defendant in this case has “asserted a
legitimate, non-discriminatory reason for” all of the allegedly
adverse acts, the required analysis proceeds directly to the
question of whether the contested acts were material, and whether
the plaintiff has “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 [or retaliated] against the”
plaintiff. Brady v. Office of the Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008).
B. The Plaintiff’s Evidence Regarding “Background Circumstances”
The plaintiff first attempts to prove background
circumstances of reverse discrimination by asserting that, at
times relevant to the complaint, only three percent of employees
at PMG (one of 32) were white women, as compared to comprising 17
percent of the population in the Washington Capital area, and
27.5 percent of the federal workforce. Compl. ¶ 2. She cites
nothing but her complaint to support these figures, Pl. SMF at 3,
but even if the numbers were properly supported with record
evidence they would not be enough. Without additional context,
such as correctly defined pools, no reasonable juror could infer
- 5 - a background of reverse discrimination at PMG from the bare
numbers.2
C. The Discrimination Claims
The plaintiff has filed a number of EEO complaints.
This case involves three of them. The first was filed on
December 28, 2005, and complained of an October 19, 2005, “fully
successful” performance evaluation, the denial of a request to
“telework” (work remotely from home), and a December 8, 2005
2 See, McReynolds v. Sodexho Marriott Services, Inc., 349 F.Supp.2d 1 (D.D.C. 2004) (discussing the use of statistics in disparate treatment cases and citing to various D.C. Circuit cases); Whitener v. England, 2006 WL 3755220 (D.D.C. 2006) (“It is well-settled that merely noting the composition of a workforce, without more, cannot sustain a discrimination action.”) (citing, Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650 (1989) and Koger v. Reno, 98 F.3d 631, 639 (D.C. Cir. 1996)); Horvath v. Thompson, 329 F.Supp.2d 1, 11 (D.D.C. 2004) (“[E]vidence that merely indicates an underrepresentation . . . in the workforce does not itself establish pretext” and “absent a showing of their significance, [such] numbers are simply irrelevant.”); cf., Thomas v. Chao, 65 Fed.Appx. 321 at *3 (D.C. Cir. 2003) (“The District Court was correct to exclude from evidence the list of employees identified by race and sex, and witness' observations about the race and sex of employees, in the absence of an expert who could testify that the alleged underrepresentation was statistically significant.”). In any event, PMG’s hiring practices are not at issue in this case. See, 45C Am. Jur. 2d Job Discrimination § 2410 (“statistics must pertain to the decision being challenged, and must be sufficient to raise the inference of disparate treatment discrimination with regard to the plaintiff's situation.”) (citing, Davis v. Califano, 613 F.2d 957 (D.C. Cir. 1979). Even if the numbers were relevant, “[i]n individual disparate treatment cases . . . statistical evidence is less significant [than in pattern of practice cases] because the ultimate issue is whether the particular plaintiff was the victim of an illegitimately motivated employment decision.” Krodel v. Young, 748 F.2d 701, 710 (D.C. Cir. 1984).
- 6 - email sent to the plaintiff (and some of her colleagues) by her
supervisor, Davis. The second was filed on February 21, 2006,
and complained of the denial of a private office space, the
removal of the plaintiff’s “administrative rights” to a software
program, and coverage of the telephones. The third was filed on
March 21, 2006, and complained of a February 2, 2006 letter of
reprimand about over-reported time, and of disputes over her
lunch hour and her sick leave.
The plaintiff presents no direct proof of
discrimination. As support for her discrimination claim, she
asserts disparate treatment. For her retaliation claim she
asserts temporal proximity and permissible inference.
1. Denial of telework (race discrimination)3
After repeated denials of her requests, Pl. Aff. ¶¶ 6-
34; Opp. ex. 5, the plaintiff was given a trial period of
telework in the spring of 2005. The trial was terminated when it
was determined that she needed to be onsite to better complete
her day-to-day assignments and, among other things, to be
available to customers and because of a lack of coverage in her
absence. Opp. ex. 20. In October 2005 another request was
denied, this one made by her union representative after the
plaintiff’s mother became ill. Opp. at 2-3. She argues that an
3 Unless indicated, all of the other claims are for both race and sex discrimination, and for retaliation.
- 7 - inference of discrimination can be drawn from the fact that
Carter, a black female whose husband suffered several strokes,
was allowed to telework, as was another minority woman. Opp. 26-
30.
Carter, however, was not similarly situated. She was
an employment grade higher than the plaintiff and had different
responsibilities, including review of the plaintiff’s work. MSJ
at 27-28; Reply at 5-6, 9-10. Plaintiff’s other comparator was
not a PMG employee, but a temporary detailee who had been allowed
to telework before her assignment to PMG. Reply at 6, 9-10. The
plaintiff cannot “demonstrate that all of the relevant aspects of
her employment situation were nearly identical to” those
employees. Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999)
(internal quotation omitted). Nor does she respond to the
government’s showing that other minority women were refused
telework for the same reasons as in the plaintiff’s case, Reply
at 10, or offer evidence of pretext on this point.
2. Performance evaluation
Plaintiff complains that a “fully successful” annual
performance appraisal was both discriminatory and retaliatory.
“[P]erformance reviews typically constitute adverse actions only
when attached to financial harms.” Baloch, 550 F.3d at 1199.
Here, there is evidence that PMG’s appraisals are related to
monetary rewards. See, Weber v. Battista, 494 F.3d 179 (D.C.
- 8 - Cir. 2007). The defendant’s affiant testified that “to be
considered for a Sustained Superior Performance award, the
employee must have been rated at ‘Exceeds Fully Successful’ or
‘Outstanding’ on all important job elements,” Smith Aff. ¶ 5,
and that “no employee may receive a career ladder promotion who
has a rating below ‘Fully Successful’ on a critical element,” id.
¶ 7. There is also some anecdotal evidence of such a relation.
See, SurReply at 9; Reply at 11.
But the defendant argues that the plaintiff deserved
her evaluation, and points to an affidavit by Davis -- who gave
her the rating -- detailing his reasoning; an affidavit by
Benedi -- the director of the group -- concurring; and
significant undisputed evidence in the record supportive of the
proposition that the plaintiff had been warned about her
performance long before the issuance of the evaluation, and that
the rating and its criticisms, which were not insulting or
disparaging, were not inspired by retaliatory or discriminatory
animus. See generally, MSJ; Reply at 10-13; Dkt. #23 attchs. 1-
2. No reasonable juror could find these reasons pretextual.
The plaintiff’s assertions about her own performance
are self-serving and unsupported, and they will not give rise to
an inference of impermissible motive. Plaintiff seeks to compare
herself with Carter, and with a white man named Coco, both of
whom received “Outstanding” evaluations. Opp. ex. 35. As
- 9 - discussed above, however, Carter is not a similarly situated
comparator, and neither is Coco, whom the plaintiff assisted, and
who was a grade higher than the plaintiff and had different
responsibilities, including procurement and purchasing work.
Reply at 6. Moreover, whether Carter and Coco are valid
comparators or not, the plaintiff failed to show that her
performance was similar to theirs, merely asserting, mostly
without support, that Carter made a few mistakes too over the
course of a year, and noting that Coco once failed to respond to
an email she sent. Pl. Aff. ¶¶ 81, 131, 132.
Nor is there evidence from which a juror could find
that the plaintiff’s “fully successful” performance review was
retaliatory. The plaintiff has neither adduced evidence nor
pointed to anything in the record indicating that Davis knew
about her EEO activity when he gave her the appraisal. Indeed,
there is significant evidence in the record that the plaintiff
knew about her performance appraisal long before she commenced
her EEO activity. See, Opp. attch. 1; Opp. ex. 37. The
plaintiff was at some pains to make sure that the EEOC correctly
recorded the date of discrimination regarding her performance
appraisal as October 19, 2005 instead of November 28, 2005. Dkt.
#23 attch. 1 pgs. 8-9. Then, in her answer to interrogatories by
the EEOC, the plaintiff placed the issuance of her performance
ratings at November 7, 2005. Dkt. #23 attch. 1 pg. 41. A copy
- 10 - of the appraisal was provided to the plaintiff on November 22,
2005. Opp. ex. 37. The latest date on which Davis signed the
document was November 28, 2005. Opp ex. 28. And the plaintiff’s
EEO action was not initiated until her November 30, 2005
interview.4 Opp. at 6; Dkt. #23 attch. 2 pg. 73-74. Moreover,
the plaintiff’s appraisal for the previous year was “fully
successful.” Dkt. #23 attch. 1 pg. 10. So was her mid-year
review. Dkt. # 23 attch. 2 pg. 92.
3. Offensive email
The plaintiff complains about an email that Davis sent
on or about December 12, 2005. The email concerned a visit paid
to the plaintiff by a co-worker during which some changes were
made to the Federal Register Management System.5 Opp. ex. 37.
This was not an material adverse act under any standard. The
email was work-related, contained no disparaging or antagonistic
4 The plaintiff produced a document stating that she had called an EEOC counselor on November 17, 2005 to complain about the telework denial. Dkt. #56. But given the EEOC’s emphasis on anonymity, see, 29 C.F.R. § 1614; EEOC Management Directive-110, and the fact that the plaintiff’s EEO interview was November 30, 2005, the hypothetical possibility Davis could have known about the call (unaccompanied by even a theory of how he might have known) is insufficient for a reasonable juror to infer that he did. 5 The email stated: “Arlene: Good afternoon!!! I happened to notice that you were in our office twice today for a good amount of time. I then discovered that there are changes being made to [Federal Register Management System]. What changes? The FRMS is the responsibility of PMG and as such no changes, other then technical should be made without explicit authorization from Claudio or me. Please let me know what the current issue is and how it will affect this office.”
- 11 - language, see Baloch, 550 F.3d at 1198, 1200, and the plaintiff
has done nothing to undermine the accuracy of its factual
assertions.
4. Removal of administrative rights
Around December 22, 2005, the plaintiff’s
“administrative rights” to the FRMS system were removed. Opp. at
6. “Administrative rights” apparently give an individual the
ability to allow members of other offices access to the FRMS
system, and to make major changes to the system. Dkt. 23 attch.
1 pg. 11, 25; Reply at 15-16. The plaintiff points to no
evidence that such administrative rights were part of her job,
offers no explanation about how she actually used them, and does
not explain how, if at all, the rescission affected her. Neither
the generalized phrases in her job description that she cites
(that her position involves “state of the art publishing
systems”), nor her ipse dixit assertions that the rights were
important to her, make out a genuine issue of material fact.
Opp. at 35-36; Compare, Czekalski v. Peters, 475 F.3d 360 (D.C.
Cir. 2007) (adverse act where employee overseeing 260 federal
employees, 700 contractors, 50 programs, and a $400 million
budget was reduced to overseeing fewer than 10 employees and one
program with a minimal budget.); Burlington, 548 U.S. at 68 (“We
speak of material adversity because we believe it is important to
separate significant from trivial harms.”) (quotations omitted).
- 12 - 5. Staff help
The plaintiff alleges that she was trying to meet a
deadline and was refused help answering the phones. SurReply. at
17-18. The allegation is taken as true, but this was not a
material adverse action. At most it was a petty slight. “Title
VII . . . does not set forth a general civility code for the
American workplace.” Burlington, 548 U.S. at 68 (internal
quotation omitted).
6. Office space
On December 21, 2005 plaintiff’s request for an office
was denied. The office had been assigned to a minority male
graphics designer for over a year. Opp. at 37; Pl. Aff. at
¶¶ 200-201. The plaintiff has neither produced nor cited to
evidence that she was in any way entitled to this space or that
the reason given for the denial of the request was pretextual.
It is undisputed that the space was “on loan” from another
department and already assigned. Opp. ex. 100; MSJ. attch 1.
pgs. 24-25. Indeed, the plaintiff concedes that at least two
other employees had priority over her claim to the space, and
they did not receive it either. Pl. SurReply at 11-12. Similar
requests by the plaintiff had been rejected long before she
engaged in any EEO activity. Pl. aff. ¶¶ 199, 200.
- 13 - 7. Lunch break
Around January 31, 2005, the plaintiff went to an
appointment in the morning. Upon her return, she requested of
Davis that the time be considered her lunch break. Pl. aff.
¶ 213. After checking with human resources, and being told that
the plaintiff could not do this, Davis advised the plaintiff that
she would have to take leave or make up the time she missed at
the end of the day. Pl. aff. ¶¶ 213, 214. This single incident
does not have the “requisite level of regularity or severity to
constitute material adversity for purposes of . . . retaliation”
or any other Title VII claim. Balloch, 550 F.3d at 1199.
8. Audit of time records and reprimand for over-reported time
The plaintiff complains that, around January 2006,
after he noticed the plaintiff come in late one day, Davis
reviewed her time records for the dates that on which Davis
himself had been on sick leave, recovering from surgery. Opp.
ex. 104; SurReply. at 15-16. The review itself, of course, was
not an adverse action. Nor was a letter of reprimand that Davis
sent about five hours and five minutes of over-reported time.
Opp. ex. 109. The letter did not affect the terms of the
plaintiff’s employment, it “contained no abusive language,” and
its content was based on records provided by human resources.
See, Baloch v. Kempthorne, 550 F.3d at 1199 (letters of reprimand
not materially adverse acts in context of retaliation when they
- 14 - “contained no abusive language, but rather job-related
constructive criticism, which can prompt an employee to improve
her performance.”) (internal quotation omitted); Opp. exs. 104,
109. The reasons for the review and the issuance of the
reprimand are facially valid. Opp. exs. 103, 104, 109.
9. Leave tampering (retaliation)
The plaintiff theorizes that Davis, or someone at his
direction, tampered with her sick leave records sometime around
November 25, 2005, with the result that she was later denied sick
leave on January 10 and 21, 2006. Opp. at 23-24; SurReply at 17;
PL. SMF ¶ 43. Davis denies any tempering. MSJ ex. 3 pg. 26.
The plaintiff has provided no evidence that Davis was responsible
for any changes or for delay in correcting any errors. See
generally, Pl. SOMF; Opp.; SurReply. Nor were the changes
materially adverse, as the only consequence was that the
plaintiff had to use annual leave instead of sick leave on, at
most, two occasions.6
B. Hostile work environment
To prevail on a discrimination and/or retaliation
hostile work environment claim a plaintiff must show that her
employer subjected her to “discriminatory intimidation, ridicule,
6 At 3:50 P.M. on January 9th, the plaintiff called to tell Davis that she had a doctor’s appointment the next day. Opp. ex. 124. She did not provide him with a full accounting of her time records before January 11th. Id. January 21, 2006 was a Saturday.
- 15 - 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; Hussain v.
Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006). “To determine
whether a hostile work environment exists, the court looks to the
totality of the circumstances, including the frequency of the
discriminatory conduct, its severity, its offensiveness, and
whether it interferes with an employee’s work performance.” Id.
“[T]o be actionable . . . a sexually objectionable environment
must be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the
victim in fact did perceive to be so.” Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998).
None “of the comments or actions directed at [the
plaintiff] expressly focused on [her] race.” Baloch, 550 F.3d at
1201. She has provided no evidence from which a reasonable juror
could reach an inference of any reverse racial discrimination.
Similarly, few of her contentions have any direct
connection to her sex. Those that do are based on
unsubstantiated allegations and assumptions which she makes no
effort to connect with any alleged harassment. For example, the
plaintiff speculates that several years before she filed suit,
Davis was “flirty” with her, felt spurned, and retaliated against
her when she ignored him. Pl. aff. ¶ 138. She provides no
- 16 - examples of this “flirty” behavior, nothing to substantiate the
allegation, and no connection between the supposed rejection and
anything that happened after. She asserts that Davis looked at
her breasts when giving her the performance evaluation, and that
she inferred from this that a quid pro quo was being offered, but
she fails to provide the slightest explanation for why she made
this assumption, let alone any direct or other circumstantial
evidence to corroborate its validity.
Her other hostile environment claims and arguments are
unsupported by record evidence, are completely unconnected to
impermissible motive, are not objectively offensive, or are
simply employee grievances completely untied to discriminatory
animus. “[T]he totality of circumstances presented in this
record does not rise to the level necessary to support a hostile
work environment claim.” Baloch, 550 F.3d at 1201.
JAMES ROBERTSON United States District Judge
- 17 -