UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JUAN MORGAN, ) ) Plaintiff, ) ) v. ) Civil Action No. 05-0989 (RCL) ) THOMAS J. VILSACK, SECRETARY, ) UNITED STATES DEPARTMENT ) OF AGRICULTURE ) ) Defendant. ) ____________________________________)
MEMORANDUM OPINION
Plaintiff Juan Morgan, a former employee in the United States Department of
Agriculture’s Foreign Service (“Department”), brings this action against defendant Thomas
Vilsack in his official capacity as Secretary of Agriculture (collectively called “Department”). 1
Morgan alleges that the Department, through its Animal and Plant Health Inspection Service
(“APHIS”), discriminated against him on account of his race and national origin in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and created a hostile work
environment. Currently before the Court is defendant Department’s Motion [55] for Summary
Judgment and plaintiff’s Cross-Motion [63] for Summary Judgment. For the reasons set forth
below, the Court will grant the Department’s motion and deny plaintiff’s cross-motion.
I. FACTUAL BACKGROUND
Plaintiff is an African American U.S. citizen of Hispanic descent, originally born in
Panama. (Morgan Dep. 302:5–6, Feb. 23, 2009; Morgan Decl. on Summ. J. Mot. (“Morgan
1 Plaintiff’s complaint originally named Mike Johanns as defendant. (See Compl. [1] at 2.) Under Rule 25(d), if a public officer sued in his or her official capacity ceases to hold office, “the officer’s successor is automatically substituted as a party.” FED. R. CIV. P. 25(d). Upon assuming office, Secretary Vilsack became defendant in this case. Decl.”) ¶ 3.) Prior to his service with APHIS, plaintiff spent 22 years in the United States Army
working throughout Central and South America, finally retiring as a Lieutenant Colonel. (Pl.’s
Statement of Uncontested Facts [hereinafter Pl.’s Facts] ¶¶ 1–2.) In September 2000, plaintiff
accepted a Limited Non-Career Appointment (“LNCA”) with the International Services branch
of APHIS (“APHIS-IS”). (Def.’s Statement of Material Facts Not in Genuine Dispute
[hereinafter Def.’s Facts] ¶ 2.) APHIS-IS assigned plaintiff to the Panama City, Panama office,
where he became Director of Finance of the Panama-U.S. Screwworm Commission. (Id. ¶ 3.)
The Commission is a joint venture between the governments of the United States and Panama,
comprised of APHIS employees and the Panama Ministry of Agriculture and Livestock
Development employees. (Cielo Decl. ¶ 2.) Throughout his tenure with APHIS-IS, plaintiff’s
first-line supervisor was James Swenson, the co-Administrative Director of the Commission; he
also reported to the Panamanian co-Administrative Director, Luis Delegado. (Def.’s Facts ¶¶ 5,
12; Morgan Decl. ¶ 9.) The Commission’s co-Directors were Dr. John Wyss (followed by Dr.
Angel Cielo) for the United States and Dr. Jose Espinosa for Panama. (Def.’s Facts ¶¶ 7, 9, 11.)
Plaintiff’s responsibilities included reporting to both directors. (Morgan Decl. ¶ 9; Def.’s Facts ¶
13.)
Immediately upon arriving in Panama, plaintiff claims he suffered from harassment, hired
only as a “token” African American employee. (Morgan Decl. ¶ 11.) The Department’s rationale
for hiring plaintiff was to improve the service APHIS-IS received in the Panama City office.
(Wyss Aff. [56-6] at 2.) Indeed, Dr. Wyss hired plaintiff after a chance encounter on an airplane
and thought he would be a good employee; Dr. Wyss took the effort to closely monitor
Plaintiff’s employment paperwork, going through “lots of hoops” to ensure they were quickly
processed. (Id.)
2 Despite Dr. Wyss thinking that plaintiff would be a good employee, Mr. Swenson
received complaints about plaintiff from members of APHIS-IS staff and the American Embassy
in Panama from the beginning of plaintiff’s tenure. (Def.’s Facts ¶ 14.) These complaints only
magnified throughout the years, trickling up to Dr. Cielo, the co-Director of the Commission.
(Id. ¶ 23.) Mr. Swenson consistently rated Plaintiff’s work product as “satisfactory, but no
better,” despite plaintiff averring that no complaints were lodged against him. (Id. ¶ 19; Morgan
Decl. ¶¶ 29, 42.)
Plaintiff’s availability changed drastically one year into his LNCA. His daughter was
diagnosed with cancer in fall 2001, which required plaintiff to travel back and forth to the United
States for her treatment. (Morgan Decl. ¶ 34; Def.’s Facts ¶ 15.) As a result, plaintiff was absent
from Panama for two weeks per month. (Morgan Decl. ¶¶ 35, 43; Def.’s Facts ¶ 16.) During
plaintiff’s absences, APHIS-IS and Commission staff had to rely on subordinates for information
and management responsibility, even though plaintiff was available by telephone.
Throughout plaintiff’s tenure with APHIS-IS—culminating in the termination of his
LNCA in March 2003 (Def.’s Facts ¶ 72)—plaintiff claims the Department subjected him to ten
discrete instances of unlawful discrimination: (1) exclusion from a June 2002 meeting; (2) the
July 2002 selection of Ivan Bustos for a position in the Finance Department over his objection;
(3) receipt of oral reprimands in November 2000 and February 2003; (4) supervisors periodically
asking subordinates for financial information; (5) exclusion from APHIS-IS social functions; (6)
non-receipt of an Annual Expectation Letter before February 8, 2001, and non-receipt of a new
Annual Expectation Letter thereafter; (7) receipt of a performance evaluation for the 2001-2002
rating period with critical comments from Dr. Harold Hoffman, plaintiff’s second-line
supervisor; (8) non-receipt of mid-year reviews during the 2000-2001 and 2001-2002 rating
3 periods; (9) non-conversion to Career Foreign Service Status; and (10) termination of his Foreign
Service LNCA. These claims of intentional discrimination led plaintiff to file suit against the
Department. 2
After APHIS-IS terminated plaintiff’s LNCA in 2003, before he could complete his
reassignment to Riverdale, Maryland, plaintiff suffered a nervous breakdown requiring
professional medical treatment. (Morgan Decl. ¶ 109; Ex. 23 (letter from Dr. Dorian Lagrotta,
Psychiatrist).) Because of plaintiff’s medical situation and his pending legal claims, plaintiff
retired on disability rather than return to the APHIS civil service in Riverdale. (Ex. II [57-2] at
10; Ex JJ [57-2] at 12.)
II. LEGAL STANDARD
Summary judgment is appropriate when “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). The burden
is on the moving party to demonstrate that there is an “absence of a genuine issue of material
fact” in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party’s
evidence is to be believed, and all reasonable inferences from the record are to be drawn in the
non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S 242, 255 (1986). It is not
enough, however, for the non-moving party to show that there is “some factual dispute.” Id. at
247. “Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.” Id. at 248. Thus, summary judgment is
appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find
for the [non-movant].” Id. at 252.
2 The specific factual background for each of these claims is discussed in greater length infra Part III.B.2.
4 III. TITLE VII CLAIM
Plaintiff has alleged racial and national origin discrimination claims against defendant in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. As noted above, plaintiff
has identified ten alleged discriminatory actions that form the basis of his Title VII claim.
The Department contends that plaintiff’s alleged discriminatory actions (1)-(8) do not
constitute adverse employment actions and therefore fail as a matter of law. In the alternative,
the Department contends that its non-discriminatory rationale for the alleged discriminatory
actions (1)-(8) is not pretext for unlawful discrimination. The Department concedes that
plaintiff’s alleged discriminatory acts (9) and (10) are adverse employment actions, but
maintains that the Department’s non-discriminatory rationale for those actions is not pretext for
discrimination. As set forth below, the Court agrees with the Department’s arguments.
A. Legal Standard
Traditionally, with a Title VII discrimination claim, district courts were required to apply
a three-step burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973). Under that framework, the plaintiff must first prove a prima facie case of
discrimination. Id. at 802. If the plaintiff is successful, the burden then shifts to the defendant to
articulate a legitimate, non-discriminatory reason for its action. Id. Finally, if the defendant
satisfies its burden, the plaintiff must prove that the defendant’s stated reason is pretext for
discrimination. Id. at 804-05.
In Brady v. Office of Sergeant at Arms, the Court of Appeals simplified the District
Court’s analysis in Title VII disparate-treatment suits. 520, F.3d 490, 494 (D.C. Cir. 2008).
Stating that the prima facie determination had become a “largely unnecessary sideshow,” the
court held that in Title VII disparate-treatment suits, the District Court need not determine if the
5 plaintiff makes a prima facie case of discrimination if the defendant has asserted a legitimate,
non-discriminatory reason for the challenged actions. Id. As a result, this Court is left with “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 notional origin?” Id. In other words, the Court must determine if the plaintiff has
produced enough evidence such that a reasonable jury would find that the Department’s non-
discriminatory reasons are mere pretext for underlying unlawful discrimination.
Before the Court can undertake that inquiry, however, the Court must determine whether
the alleged acts of discrimination constitute adverse employment actions. Douglas v. Donovan,
559 F.3d 549, 551-52 (D.C. Cir. 2009). For an employment action to be adverse, it must result
in “materially adverse consequences affecting the terms, conditions, or privileges of employment
or future employment opportunities such that a reasonable trier of fact could find objectively
tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). Accordingly, an
adverse employment action is defined as “a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing significant change in benefits.” Id. at 552 (internal citation and quotation
omitted). Alleged acts of discrimination that do not constitute adverse employment actions fail
as a matter of law. Brantley v. Kempthorne, 2008 WL 2073913, at *4-*5 (D.D.C. May 13,
2008).
6 B. Analysis
1. Adverse Employment Actions
The Department contends that plaintiff’s alleged discriminatory actions (1)-(8) do not
constitute adverse employment actions because these actions did not have a materially negative
effect on the terms or conditions of plaintiff’s employment. The Department admits that actions
(9) and (10) constitute adverse employment actions.
The Court finds that plaintiff’s alleged discriminatory actions (1)-(8) do not constitute
adverse employment actions and fail as a matter of law. It is clear that (1) plaintiff’s exclusion
from a June 2002 meeting; (2) the July 2002 selection of Ivan Bustos for a position in the
Finance Department over plaintiff’s objection; (3) plaintiff’s receipt of oral reprimands in
November 2000 and February 2003; (4) supervisors periodically asking plaintiff’s subordinates
for financial information; (5) plaintiff’s exclusion from APHIS-IS social functions; (6) plaintiff’s
non-receipt of an Annual Expectation Letter before February 8, 2001, and his non-receipt of a
new Annual Expectation Letter thereafter; and (8) plaintiff’s non-receipt of mid-year reviews
during the 2000-2001 and 2001-2002 rating periods fail to have a materially negative effect on
the terms or conditions of plaintiff’s employment. Indeed, plaintiff does not dispute the
Department’s assertion that these alleged discriminatory actions do not constitute adverse
employment actions.
Plaintiff, however, does dispute the Department’s contention that the alleged act of
discrimination (7) does not constitute an adverse employment action. Plaintiff’s alleged act of
discrimination (7) is plaintiff’s receipt of a performance evaluation for the 2001-2002 rating
period that contained critical comments. Ordinarily, negative performance evaluations do not
constitute adverse employment actions. Douglas, 559 F.3d at 552. If, however, a negative
7 performance evaluation denies the employee “the opportunity to compete for a promotion, [he]
has suffered an adverse employment action.” Id. Thus, the Court must look to whether the harm
alleged from the discriminatory act is speculative. Id.
Here, the alleged harm—plaintiff’s non-conversion to Career Foreign Service status—is
speculative. Plaintiff’s performance evaluation for the 2001-2002 rating period did not result in
plaintiff’s non-conversion to Career Foreign Service status. The Foreign Service selection board
used a variety of factors when it decided against converting plaintiff to Career Foreign Service,
including recommendations against converting plaintiff from two additional supervisors. (Def.’s
Ex. Q.) Thus, no reasonable fact finder could find that plaintiff suffered a tangible harm as result
of plaintiff’s performance evaluation for the 2001-2002 rating period. Accordingly, plaintiff’s
alleged discriminatory actions (1)-(8) do not constitute adverse employment actions.
2. Pretext for Unlawful Discrimination
Defendants next argue that the legitimate non-discriminatory reasons for the ten alleged
acts of discrimination are not pretext for discrimination. As set forth below, the Court agrees
with defendant. 3
a. Exclusion from a June 2002 meeting
Plaintiff’s first alleged act of unlawful discrimination is his exclusion from a June 2002
meeting in Panama City. Plaintiff asserts that this was a “major meeting” involving personnel
from the United States and Panamanian governments, as well as APHIS-IS staff from Riverdale,
Maryland. (Morgan Decl. on Summ. J. Mot. ¶ 44.) He also alleges that all other commission staff
members knew of the meeting and because of this failure of communication, APHIS-IS treated
3 With respect to plaintiff’s alleged discriminatory acts (1)-(8), the Court’s findings below are in the alternative because the Court concluded above that those acts do not constitute adverse employment actions.
8 him as an “[in]significant part of the US management team” who could be “safely [] ignored.”
(Id.)
The Department offers a number of reasons why plaintiff would have been excluded from
the meeting. First, Mr. Swenson, plaintiff’s first-line supervisor cannot recall if plaintiff received
an invitation to the meeting or not. (Swenson Decl. ¶ 20.) Second, assuming that plaintiff was
not invited to attend, the justification is one of three reasons: (1) the issues to be discussed were
not financial in nature; (2) Mr. Swenson felt comfortable discussing any financial-related matters
that might arise; or (3) the meeting was limited to the APHIS-IS Executive Committee which did
not include plaintiff. (Id.; see also Def.’s Mot. for Summ. J. [55] at 37.)
Each of these non-discriminatory reasons for plaintiff’s exclusion—assuming that
plaintiff was not invited despite Mr. Swenson’s inability to recall—suffice to show that no
reasonable jury would find the justifications pretextual. First, if the meeting agenda had no
financial-related matters, then plaintiff, as director of the finance office would have no need to be
present unless his duties had been expanded; the record makes no mention of increased
responsibility of the plaintiff beyond the financial concerns of the Commission and APHIS-IS
activities within the Central American Region. Second, Mr. Swenson was the co-Administrative
Director of the Commission and supervised plaintiff to ensure that plaintiff’s work product met
APHIS-IS expectations. This shows that Mr. Swenson understood the basic financial nature of
the Commission and was confident that he could address any financial related matters if the need
arose. Indeed, plaintiff supplied Mr. Swenson with financial data and spreadsheets in the days
before the June 2002 meeting; had Mr. Swenson needed more information, the easiest way to do
so would have been to contact plaintiff. (See Morgan Dep. 168:5–9, Feb. 23, 2009.)
9 Finally, the Director of Finance was not on the Executive Committee. (See Swenson
Decl. ¶ 20 (noting that no department chiefs were members of the Executive Committee).) If the
meeting only required the Executive Committee, of which plaintiff was not a member, plaintiff’s
exclusion is justified. As a result, no reasonable jury could find that such justification is
pretextual for discrimination. Plaintiff claims further, though, that Otis Sollami, the director of
the procurement office—the same rank on the department hierarchy chart as plaintiff—attended
the meeting as well. (Morgan Decl. ¶ 46.) But without proof of such attendance by Mr. Sollami,
plaintiff’s assertion is baseless. Thus, the Department’s non-discriminatory justification for the
June 2002 meeting is not pretextual.
b. The July 2002 selection of Ivan Bustos for a position in the Finance
Department over plaintiff’s objection
Plaintiff’s second alleged discriminatory action is the selection of Ivan Bustos for a
position in the Finance Department over plaintiff’s objection. The selection process for the
position resulted in a tie between Ivan Bustos and plaintiff’s preferred candidate. (See Ex. K [56-
13] at 32.) Two members preferred Ivan Bustos; plaintiff and Otis Sollami preferred the other. In
order to break the tie, Mr. Delegado—the Panamanian co-Administrative Director of the
Commission—suggested that Maria de la Madrid, the accounting supervisor in the finance
department decide, because she had experience working with both candidates. (Id.) Ms. de la
Madrid selected Ivan Bustos for the position, to the surprise of some at the Commission. (Id.) At
the time Ms. de la Madrid made her decision, plaintiff was not in Panama. 4 (Id.)
The Department’s non-discriminatory justification for the action taken is that the decision
was assigned to Ms. de la Madrid, who at the time was acting as Chief of Finance while plaintiff
4 Plaintiff, throughout 2002, traveled out of the office for two weeks of every month, related to his daughter’s cancer diagnosis and treatment. (Morgan Decl. on Summ. J. Mot. ¶ 43.)
10 was outside of Panama. (Def.’s Mot. for Summ. J. [55] at 38.) This non-discriminatory
justification could not be found pretextual by a reasonable jury. Plaintiff was not in Panama at
the time that the hiring decision was made. Thus, this decision was properly left to the acting
Chief of Finance. Moreover, although plaintiff was available by telephone, his support for the
other candidate led to the tie, which necessitated a tie-breaker. It was quite reasonable for Ms. de
la Madrid, the acting Finance Chief, who had experience working with both employees, to make
the decision that Ivan Bustos had the best credentials for the job. There is no indication in the
record that the Department purposefully bypassed plaintiff in the decisionmaking process
because of race or national origin. Indeed, plaintiff had a vote for the candidate; his preferred
choice just did not ultimately succeed.
c. Receipt of Oral Reprimands in November 2000 and February 2003
Plaintiff’s third alleged discriminatory action consists of the oral reprimands he received
on two separate occasions. The first occurred shortly after plaintiff arrived in Panama to work for
the Commission in November 2000; the second occurred in February 2003 during plaintiff’s
interim evaluation meeting. (Def.’s Mot. for Summ. J. [55] at 36.)
The November reprimand stemmed from plaintiff’s decision to audit Commission field
offices without informing Luis Delegado, the Panamanian co-Administrative Director of the
Commission. (Swenson Decl. ¶ 19; Ex. E [56-13] at 17 (noting that Mr. Delegado told Dr.
Swenson that plaintiff “had to understand that he worked for us [both American and Panamanian
co-Administrative Directors] and that he couldn’t just come and go as he pleased”).) Plaintiff
concedes that, in his position as Finance Director of the Commission, he reported to both Mr.
Swenson and Mr. Delegado. (Morgan Decl. on Summ. J. Mot. ¶ 9; see id. ¶ 24 (reiterating that
plaintiff never informed the Panamanian officials of his planned, unannounced audits).) Still,
11 plaintiff contends that his unannounced audits were merely good accounting practices. (See id. ¶
24.) This Court is not fluent in what are and are not good—or even best—accounting practices.
All that matters is that, in spite of such good accounting practices, the Commission required
plaintiff to inform both his American and Panamanian supervisors of audit plans. He did not
inform his Panamanian supervisor as he was required to do, and consequently, he was
reprimanded. No reasonable jury could find that this justification is pretextual for unlawful
discrimination.
The February 2003 oral reprimand 5 occurred during plaintiff’s interim evaluation
meeting with Mr. Swenson. (Ex. V [56-14] at 10.) The meeting focused on plaintiff’s job
performance up to that point, resulting in Mr. Swenson’s oral “reprimand.” (Id.) Mr. Swenson
focused on a number of problems with plaintiff’s work: (1) plaintiff did not take initiative to call
attention to potential problems or issues; (2) plaintiff’s failure to discuss in more detail problems
with certain cash funds, rather than just compile a report; and (3) plaintiff’s failure to compile
certain monthly status-of-funds reports—or the failure to communicate that such reports had
been compiled. (Id.) Mr. Swenson’s concern with plaintiff’s job performance had developed
over the course of plaintiff’s employment. (See Swenson Decl. ¶ 14; see also Ex. W [56-14] at
12 (where Mr. Swenson, after noting many of the same problems, stated that plaintiff “continued
to perform at a minimum level of effort” and that Mr. Swenson “expected more of a person in
[plaintiff’s] position as head of a major Commission department”).)
Here again, the reprimand stemmed from less than satisfactory performance in the tasks
assigned to plaintiff, even after plaintiff’s supervisor communicated that his performance had
been less than satisfactory. No reasonable jury could find this justification a pretext for
5 The Department characterizes this, though, as nothing more than oral “guidance” about plaintiff’s work product. (Def.’s Reply in Supp. of its Mot. for Summ. J. & Opp’n to Pl.’s Cross-Mot. for Summ. J. [80] at 7.)
12 discrimination; all they could find is a supervisor attempting to work with an employee to
improve performance.
Plaintiff does point out, though, that there are procedures in place for unsatisfactory job
performance. (See Pl.’s Cross-Mot. for Summ. J. [63] at 25; see also Pl.’s Ex. 6 (describing
APHIS-IS guidelines for either an improvement strategy or, for more severe problems, a
Performance Improvement Plan (“PIP”)).) Plaintiff is wrong to rely on the Department’s failure
to adhere to these procedures to prove pretext. First, as far as the PIP is concerned, the
supervisor is only obligated to initiate one if, and only if, the supervisor judges the performance
deficiencies to be severe. (See Pl.’s Ex. 6.) There is nothing in the record to indicate that Mr.
Swenson adjudged plaintiff’s performance problems to be severe; plaintiff’s own subjective view
of the situation is not enough for a PIP to be initiated. Second, even if the Department failed to
follow the guidelines setting forth performance review requirements and improvement plans for
deficient performance, this cannot turn the non-discriminatory oral reprimand into unlawful
discrimination. At most, it just shows that the Department—through Mr. Swenson—failed to
comply with procedure. No reasonable jury could find the Department’s non-discriminatory
justification to be pretextual.
d. Supervisors periodically asking subordinates for financial information
Plaintiff’s fourth alleged discriminatory action stems from plaintiff’s supervisors
periodically asking subordinates for financial information. The Department readily admits that
such activities did occur, but explicitly notes that such actions were taken for efficiency reasons.
(Swenson Decl. ¶ 21.) The Department notes that obtaining financial information directly from
the source of the information saved time; a one-step process, rather than a two-step process
(using plaintiff as intermediary) aided both Mr. Swenson and Mr. Delegado in execution of their
13 responsibilities. (Id.) Also, starting in the fall of 2001, plaintiff left Panama for weeks at a time to
care for his daughter. (Id.; see also Morgan Decl. ¶¶ 34, 43.) Plaintiff maintains that, despite his
absences, he was available by phone twenty-four hours a day. (Id. ¶ 43.) Even so, the
Department cannot be expected to call plaintiff while out of Panama for every financial related
task that needs to be completed. (See Ex. K [56-13] at 32.)
Plaintiff also avers that this direct-to-subordinate communication violated the rules. (Pl.’s
Cross-Mot. for Summ. J. [63] at 6.) He directs attention to comments by Dr. Angel Cielo, the
then-Director of the Commission. (Cielo Dep. 25: 2–6, Nov. 16, 2007.) The Department offers a
lengthy justification that Dr. Cielo’s comments, when contextualized, do not and cannot mean
what plaintiff ascribes to them. (Def.’s Reply in Supp. of its Mot. for Summ. J. & Opp’n to Pl.’s
Cross-Mot. for Summ. J. [80] at 11.) This Court agrees with the Department’s view of the
comments. Earlier in the deposition, Dr. Cielo talked about protocol and chain-of-command
concerns regarding his Panamanian counterparts. Dr. Cielo stressed that he did not want
Panamanian officials who had concerns with American APHIS-IS employees to directly address
the employee; he wanted the coordinate American counterpart to be notified first. (Cielo Dep.
24: 3–13, Nov. 16, 2007.) Nothing in the record indicates that Department employees violated
the rules, nor does the method chosen by the Department to efficiently further the Commission’s
work—especially when plaintiff absented himself for weeks at a time—allow a reasonable jury
to conclude that these justifications are pretextual.
e. Exclusion from APHIS-IS Social Events
Plaintiff’s fifth alleged discriminatory act is his exclusion from APHIS-IS social events.
Plaintiff can only identify two discrete events where he was not invited—Dr. Wyss’ son’s
birthday party and a fishing trip on Otis Sollami’s boat. (Def.’s Mot. for Summ. J. [55] at 27.)
14 Aside from these two instances, plaintiff offers only generalized assertions that he was excluded
from APHIS-IS social functions; the record does not reflect such exclusion though. Dr. Swenson,
at least on one occasion, invited plaintiff to his home for a dinner party. (Morgan Dep. 266-267:
23–1, Feb. 23, 2009; Swenson Dep.45:4–15, Sep. 4, 2008.) Indeed, Dr. Swenson cannot recall
any APHIS-IS social event to which plaintiff was not invited; if such omission did occur, it was
likely due to oversight and not hostility. (Swenson Decl. ¶ 23.) Rather than APHIS-IS staff
excluding plaintiff from events, the converse seems true: plaintiff chose to extricate himself from
the social events. (See Ex. V [56-14] at 11 (noting that APHIS-IS staff frequently requested
plaintiff to join them for lunch, but that plaintiff consistently refused because he should be able
to choose how he spends his lunch period).) Nothing in the record indicates that plaintiff was
excluded from any event—and if he was, not for discriminatory reasons. 6 Accordingly, no
reasonable jury could find that the Department’s non-discriminatory justification is pretextual.
f. Non-Receipt of an Annual Expectation Letter before February 8, 2001
Plaintiff’s sixth alleged discriminatory action is his non-receipt of an Annual Expectation
Letter—a letter developed annually that clarifies, among other things, the employee’s job
description, primary responsibilities, and expectations for the appraisal period (see Def. Ex. 6
(APHIS Directive 4430.2))—before February 8, 2001, months after he began his tenure with
APHIS-IS. (See Ex. J [56-13].) Plaintiff further complains of the Department’s failure to issue a
new Annual Expectation Letter thereafter. (See id. (noting that according to Department policy,
the letter is “developed annually”).) Despite plaintiff’s failure to receive his letter prior to
February 8, 2001, the Department told plaintiff the nature of his duties and plaintiff acted in
6 Though Dr. Swenson mentioned that any exclusion would have been due to negligence, another possible, non- discriminatory reason is that plaintiff’s demeanor and personality bristled other members of the APHIS-IS staff. (See Swenson Decl. ¶¶ 9–10.)
15 conformity with those duties throughout his employment. (See Swenson Aff., Oct. 8, 2003; see
also Morgan Dep. 181:22–184:5, Feb. 23, 2009.) As for the failure to issue a new Annual
Expectation Letter, the Department offered two reasons for this inaction: (1) plaintiff’s job
description did not change; and (2) the “common practice” of the Panama City APHIS-IS office
did not involve issuing new letters when no substantive change in job description occurred.
(Def.’s Mot. for Summ. J. [55] at 39.)
Plaintiff expends much energy on his claim that the Department failed to “follow the
rules.” (See Morgan Decl. on Summ. J. Mot. ¶ 15.) But this energy, much like that expended on
his oral reprimand claim, does not amount to pretext; at most, it elucidates a Department office
that is not following the guidelines of every policy document exactly as written.
The Department’s justifications cannot be found by a reasonable jury to be pretextual.
First, as already noted, plaintiff had been informed of his job duties. The delay in its receipt is
not shown, anywhere on the record, to be based on plaintiff’s race or national origin. Though
plaintiff avers that he requested multiple times for the letter (see id.), the Department did not find
it necessary to issue it forthwith, confident in the knowledge that plaintiff had been informed of
his duties. Plaintiff is correct when he writes that the letter “is the frame upon which mid year
and year-end evaluations are to be built” (see id.), but there is nothing to indicate that Mr.
Swenson, plaintiff’s first-line supervisor, would be unable to evaluate plaintiff’s work
performance absent the official expectation letter. Second, regarding the lack of a new
expectation letter, the Panama City office had a customary rule that, absent new job
requirements, a new letter would not be issued. There is nothing to suggest this is based on
animus; rather, it is the institutional decision of the Panama City office to not fix what is not
broken. Indeed, Mr. Swenson’s own Annual Expectation Letter was three years old. (See
16 Swenson Aff. [56-9] at 3.) In fact, Mr. Swenson—an APHIS-IS supervisor—explicitly stated
that his understanding of Department policy mandated that no new letter be issued absent a
change in employment responsibilities. (See id.) As such, no reasonable jury could find pretext
for unlawful discrimination.
g. Receipt of a Performance Evaluation from 2001-2002 with Critical
Comments from Dr. Harold Hoffman
Plaintiff’s seventh alleged discriminatory action is the 2001-2002 performance evaluation
with critical comments by Dr. Harold Hoffman. Dr. Hoffman, in 2002, became plaintiff’s
second-line supervisor, i.e., Mr. Swenson’s supervisor, replacing Dr. John Wyss. (See Cielo
Decl. ¶ 4.) Plaintiff strenuously asserts that Dr. Hoffman never became his second-line
supervisor (see Morgan Decl. ¶¶ 62–3), but the record reflects that Dr. Hoffman, prior to Dr.
Cielo’s formal assignment, took over as plaintiff’s second-line supervisor. (See Hoffman Aff.
[56-8] at 1 (but noting that after formally becoming plaintiff’s supervisor in July 2002, Dr.
Hoffman could not recall if “[anyone] ever communicated that change to [plaintiff]”).)
In plaintiff’s 2001-2002 performance evaluation, Dr. Hoffman wrote that “[c]onflict and
confrontation has arisen in [plaintiff’s] contact with several members of the U.S. and
Panamanian Sections” and that until plaintiff’s communication with APHIS-IS Commission staff
improved, he “should not be placed on tenure tract or promoted.” (See Def. Ex. 7.) The
communication problems noted by Dr. Hoffman had reached a point where both co-
Administrative Directors of the Commission jointly penned a letter to the co-Directors of the
Commission, venting their frustration about the lack of communication between plaintiff and
themselves. (See Def. Ex. 29 (also noting that no such problem existed between them and Otis
Sollami, the procurement chief).) In the end, Dr. Cielo hired a private consulting firm, at great
17 expense, to implement a plan to improve relations between plaintiff and other APHIS-IS staff.
(See Ex. G [56-13] at 20 (e-mail from Dr. Cielo to plaintiff informing him of this plan); see also
Ex. H [56-13] at 25 (report of Prince & Phelps Consultants); Ex. I [56-13] at 27 (showing the
cost of Prince & Phelps as $16,310.00).)
The 2001-2002 evaluation also included comments by Mr. Swenson, and plaintiff had an
opportunity to respond to such comments. (See Ex. D [56-13] at 12–5 (showing plaintiff’s
dispute of his job performance by Mr. Swenson despite Mr. Swenson commenting that plaintiff
had done a “commendable job of carrying out his duties and responsibilities during the rating
period . . . .”).) Dr. Hoffman, though, after learning of the problems between plaintiff and other
Commission staff, found it necessary to include his comments; he did not do so for
discriminatory reasons, but in an attempt to alleviate the communication problem and resolve
conflicts. (See Hoffman Aff. [56-8] at 4 (“[Plaintiff] was not performing at the level we would
expect.”); Hoffman Dep. 33:1–16, Sep. 5, 2008 [56-11] at 3.) Plaintiff’s generalized refutation of
these conflicts and communication problems by claiming that Dr. Hoffman is biased is not
enough to sustain pretext. See Woodruff v. Peters, 482 F.3d 521, 533 (D.C. Cir. 2007) (noting
that courts review “not the correctness or desirability of the reasons offered but whether the
employer honestly believes in the reasons it offers”). Nothing in the record disclaims Dr.
Hoffman’s asserted belief that his comments were necessary to spur a change in the existing
tension between plaintiff and other staff. Despite plaintiff’s wish that self-serving statements in
his favor will refute a non-discriminatory reason for the action taken, those statements cannot be
given the weight he desires. Accordingly, no reasonable jury could find that Dr. Hoffman’s
actions were pretext for discrimination; these were actions taken by a supervisor to diffuse a
tense work environment.
18 h. Non-receipt of Mid-Year Reviews for 2000-2001 and 2001-2002
Plaintiff’s eighth alleged discriminatory action is his non-receipt of mid-year reviews
during the 2000-2001 ratings period and the 2001-2002 ratings period. The Department offers
the non-discriminatory justification that Mr. Swenson—plaintiff’s first-line supervisor—did not,
as a matter of course, provide mid-year reviews. (See Swenson Decl. ¶ 22 [56-4] at 6.) Mr.
Swenson noted that Otis Sollami, the procurement chief, did not receive a mid-year review—nor,
to his knowledge, did any APHIS-IS employee in Panama—and that he himself did not receive
one. (Id.) Once the outside consulting firm concluded its report, calling for more frequent
meetings between plaintiff and his supervisors, Mr. Swenson conducted a mid-year review. (See
Ex. U [56-14] at 8 (review concluded on Dec. 16, 2002).)
Nothing in the record, or plaintiff’s reply, contradicts the Department’s justification that
in the Panama City office, the custom was—much like with Annual Expectation Letters—to not
conduct mid-year reviews. Thus, no reasonable jury could find that such practice—among all
staff members—was pretext for unlawful discrimination.
i. Non-Conversion to Career Foreign Service Status
Plaintiff ‘s ninth alleged discriminatory action is his failure to be converted from his
LNCA position to career foreign service. Plaintiff requested to be converted to career foreign
service status in July of 2002. (See Ex. N [56-13] at 40 (letter from plaintiff to Mr. Swenson with
request).) The decision to convert or not convert plaintiff was decided by a Conversion
Committee. (See Ex. Q [56-14] at 4 (listing committee members).) The Committee based its
decision to not convert plaintiff (Ex. R [56-14] at 5) on a complete review of plaintiff’s last two
performance evaluations—one of which included critical comments by Dr. Hoffman—and
comments from plaintiff’s supervisor, reviewing official and regional director. (Ex. Q [56-14] at
19 4.) The comments received by the Committee from both Dr. Swenson and Dr. Cielo
recommended that the Committee not convert plaintiff. (Ex. O [56-14] at 1 (noting that
plaintiff’s conversion would not be in his best interests or that of APHIS-IS especially because of
the uncertainty of plaintiff’s presence in Panama due to his daughter’s illness and the uncertainty
about her progress); Ex. P [56-14] at 3 (noting that previous letters of complaint about plaintiff
could not be ignored and that “in fairness to all and in the interest of [APHIS-IS], that IS, DO
NOT covert [plaintiff] . . . .”).)
The Committee’s decision to not convert plaintiff did not fatally affect plaintiff’s career.
The Committee, in its letter to plaintiff, specifically informed him that he was free to continue
serving out the remainder of his LNCA position—not to exceed five years— and that he could
request reconsideration for conversion to career foreign service status one year later. (Ex. R [56-
14] at 5.) Plaintiff contends that unlawful discrimination tainted the Committee’s decision
because Dr. Cielo ordered Dr. Swenson to change his recommendation to the Committee—
namely, to remove a second option that would have converted plaintiff and then rotated him to
Washington, D.C., to be more available for his daughter’s cancer treatments. (See Pl.’s Cross-
Mot. for Summ. J. [63] at 21; see also Cielo Decl. ¶ 17 [56-5] at 4.) But this one incident is not
enough to change the basic nature of the candidate review process undertaken by the Conversion
Committee: a complete review of all the materials requested by the Committee. As the
Department notes in its reply, the “anti-discrimination laws were not intended to render the
judiciary a super-personnel department that re-examines an entity’s business decisions.” (Def.’s
Reply in Supp. of its Mot. for Summ. J. and its Opp’n to Pl.’s Cross-Mot. for Summ. J. [80] at
23–4 (quoting Adeyami v. District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008) (internal
quotation marks omitted).) Moreover, the Committee’s decision, based on the totality of the
20 circumstances, did not single out plaintiff based on his race or national origin. At the Committee
meeting deciding plaintiff’s request, only two other requests were denied—both white men. (Ex.
S [56-14] at 6.) Finally, though Dr. Wyss, a member of the Committee, mentioned that plaintiff’s
supervisory chain did not recommend him for conversion, a necessary requirement to him, this
does not suffice to establish that Dr. Cielo’s and Dr. Swenson’s recommendations were
definitive. (See Wyss Aff. [56-6] at 4.) Dr. Wyss was but one member of a seven-member
committee; the factors he found dispositive in denying plaintiff’s request may not have been as
weighty for, or necessary, to other members of the panel. (See id.)
Accordingly, the non-conversion of plaintiff to career Foreign Service status resulted
from a committee meeting in Washington, DC, reviewing the totality of plaintiff’s employment
file. They did not see fit to grant his request; but this did not foreclose all possibilities of
conversion to plaintiff. No reasonable jury could conclude that this decision was pretext for
unlawful discrimination.
j. Termination of Plaintiff’s LNCA
Plaintiff’s tenth and final alleged discriminatory actions is the termination of his LNCA
in March of 2003. (See Ex. CC [56-14] at 47 (letter from Ralph Iwamoto, Deputy Administrator
of APHIS, to plaintiff informing him of the termination).) APHIS based its decision to terminate
plaintiff’s LNCA on (1) an alphabetical ranking of plaintiff among his peers indicating he is not
competitive against them and ineligible for performance awards, (2) the decision of the
Conversion Committee not to convert plaintiff to career foreign service status, and (3) ongoing
performance below what is expected of someone in plaintiff’s position. (Id. (noting that these
factors are non-exclusive).) This termination of plaintiff’s LNCA did not sever his employment
with APHIS, however, because his previous employment in APHIS’s civil service afforded him
21 reemployment rights to another civil service position and because APHIS assigned plaintiff to a
position in Riverdale, Maryland. (See id.; see also Ex. FF [57-2] at 2 (reiterating the position in
Maryland while postponing the transition date).) Despite this offer of further employment with
APHIS, plaintiff retired due to disability rather than report to Riverdale, Maryland. (Ex. II [57-2]
at 10; Ex. JJ [57-2] at 12.)
The Department’s asserted non-discriminatory justification for plaintiff’s LNCA
termination is much the same as used in the non-conversion to career foreign service status. After
a thorough review of plaintiff’s employment file, the Department no longer had confidence in
plaintiff’s ability to fully perform his duties. (See Def.’s Mot. for Summ. J. [55] at 44.) Plaintiff
has not offered any direct evidence that would show pretext on behalf of the Department aside
form his own subjective claim of discriminatory animus. This cannot suffice to overcome
plaintiff’s burden to prove pretext. See Felder v. Johanns, 595 F. Supp. 2d 46, 70 (D.D.C. 2009)
(“A plaintiff cannot establish pretext simply based on his own subjective assessment of his own
performance, for plaintiff’s perception of hi[m]self, of his work is not relevant. It is the
perception of the decisionmaker which is relevant.” (internal quotation marks omitted)). Dr.
Iwamoto, one of the members of the Conversion Committee, perceived the situation, based on
the factors laid out in his letter to plaintiff, that plaintiff’s continued LNCA employment was no
longer justified. No reasonable jury could find pretext in this justification.
* * *
In sum, the Court concludes that plaintiff’s alleged discriminatory actions (1)-(8) do not
constitute adverse employment actions and fail as a matter of law. In the alternative, plaintiff has
failed to prove that the Department’s non-discriminatory justifications for the alleged
discriminatory actions (1)-(8) were pretext for unlawful discrimination. In addition, the Court
22 concludes that plaintiff has failed to prove that the Department’s non-discriminatory
justifications for the alleged discriminatory actions (9) and (10) were pretext for unlawful
discrimination. Accordingly, the Court will grant the Department’s motion for summary
judgment on the Title VII claim.
IV. HOSTILE WORK ENVIRONMENT CLAIM
In addition to the employment discrimination claim, plaintiff also claims that the actions
of defendant constituted a hostile work environment. For the reasons set forth below, the
Department’s motion for summary judgment on this claim will be granted.
In order to determine if a hostile work environment exists, the Court must find that the
work environment is sufficiently hostile or abusive by “looking at all of the circumstances,
including the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998). The Supreme Court has elucidated this threshold by noting that the “behavior [must be]
so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 79, 81 (1998) (emphasis added).
If instances of discriminatory conduct are found, the objective severity of the harassment
should be judged “from the perspective of a reasonable person in the plaintiff’s position,
considering all of the circumstances.” Harris v. Wackenhut Servs., Inc., 590 F. Supp. 2d 54, 77
(D.D.C. 2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). These standards are
“sufficiently demanding to ensure that Title VII does not become a general civility code.”
Faragher, 524 U.S. at 788 (citation and internal quotation marks omitted). But isolated incidents
23 of discriminatory conduct will not suffice to sustain a hostile work environment claim; rather, the
discriminatory acts must be pervasive and prolonged. See Stewart v. Evans, 275 F.3d 1126, 1133
(D.C. Cir. 2002) (“[A] workplace environment becomes hostile for the purposes of Title VII only
when offensive conduct permeates the workplace with discriminatory [conduct] . . . .” (internal
quotation marks and alterations omitted)); Akonji v. Unity Healthcare, Inc., 517 F. Supp. 2d 83,
98 (D.D.C. 2007) (noting that five discrete acts of discriminatory conduct over a two-year period
were insufficient to constitute a hostile work environment).
B. Analysis
Under the hostile work environment standard set forth in Faragher, plaintiff’s claim fails.
Despite plaintiff’s fastidious subjective belief that his tenure at APHIS-IS was plagued with
discriminatory animus and conduct, he simply has not produced a factual showing of the
objective severity required by Faragher and its progeny. Plaintiff uses the same ten incidents of
alleged discrimination in his Title VII claim; this “bootstrapping” of claims simply cannot form
the basis of a hostile work environment claim. See Keeley v. Small, 391 F. Supp. 2d 30, 51
(D.D.C. 2005) (noting that a plaintiff cannot “bootstrap” discrete allegedly discriminatory
incidents “into a broader hostile work environment claim”). Also, these ten events, spread over a
period of three years, simply cannot be found to be so objectively hostile, especially in light of
other cases with less frequency of allegedly discriminatory conduct. See Akonji, 517 F. Supp. 2d.
at 98.
Finally, when it is reiterated that “the objective severity of harassment should be judged
from the perspective of a reasonable person in the plaintiff’s position, considering all of the
circumstances,” Harris, 590 F. Supp. 2d at 77, plaintiff’s hostile work environment evaporates.
As severe as the subjective hostility appeared to plaintiff during his tenure in Panama City,
24 unless plaintiff can offer concrete proof of objectively severe and consistent hostile actions, his
claim cannot be sustained. Plaintiff has not met this “sufficiently demanding standard.” See
Faragher, 524 U.S. at 788. Accordingly, the Court will grant the Department’s motion for
summary judgment on plaintiff’s hostile work environment claim.
V. RETALIATION CLAIM
Finally, in his cross-motion for summary judgment, plaintiff for the first time seeks to
raise a claim of retaliation. (See Pl.’s Cross-Mot. for Summ. J. [63] at 39–40.) Plaintiff had an
opportunity to raise this claim in his original complaint or by filing an amended complaint soon
afterward to assert the claim. Unfortunately, plaintiff chose neither route. (See Morgan Dep.
300:2–18, Feb. 23, 2009.) Because of this omission, this Court has no choice but to dismiss the
retaliation claim as untimely and need not reach the merits. FED. R. CIV. P. 15(a)(2) (noting that
in all cases where a party cannot as a matter of course amend, “a party may amend its pleading
only with the opposing party’s written consent or the court’s leave”); see also Sharp v. Rosa
Mexicano, D.C., L.L.C., 496 F. Supp. 2d 93, 97 n.3 (D.D.C. 2007) (stating that a plaintiff may
not, “through summary judgment briefs, raise . . . new claims . . . because plaintiff did not raise
them in his complaint, and did not file an amended complaint”). Thus, plaintiff is barred from
bringing this claim and it shall be denied.
VI. CONCLUSION
For the foregoing reasons, defendant Thomas Vilsack’s Motion for Summary Judgment
[55] shall be GRANTED and plaintiff Juan Morgan’s Cross-Motion for Summary Judgment [63]
shall be DENIED.
A separate order shall issue this date.
25 Date
June 7, 2010.
_________/s/_____________ ROYCE C. LAMBERTH Chief Judge United States District Court