UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) TERRY SAULSBERRY, ) ) Plaintiff, ) ) v. ) Case No. 17-cv-00384 (APM) ) WILLIAM P. BARR, 1 ) in his capacity as the Attorney General of the ) United States, ) ) Defendant. ) _________________________________________ )
MEMORANDUM OPINION AND ORDER
Before the court is Defendant William Barr’s Motion for Summary Judgment on the two
remaining counts of Plaintiff Terry Saulsberry’s Amended Complaint. Def.’s Mot. for Summ. J.,
ECF No. 33, Mem. of P. & A. in Support of Def.’s Mot., ECF No. 33-1 [hereinafter Def.’s Mot.].
The court previously dismissed Plaintiff’s retaliation and retaliatory hostile work environment
claims. See generally Order, ECF No. 20. Plaintiff’s remaining claims are (1) Defendant, on
account of Plaintiff’s race and sex, selected a less qualified white woman, Heidi Kugler, for the
Chief Chaplaincy Administrator position in violation of Title VII, Am. Compl., ECF No. 6
[hereinafter Am. Compl.], ¶¶ 53–58; and (2) Plaintiff’s supervisors engaged in a practice of
discriminatory behavior that created a hostile work environment, id. ¶¶ 59–65. For the reasons
explained below, the court denies Defendant’s Motion as to the non-selection claim and grants it
as to the hostile work environment claim.
1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes the current Attorney General as the defendant in this case. I.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is “material” if it is capable of affecting the substantive outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is
enough evidence for a reasonable jury to return a verdict for the non-movant. Wheeler v.
Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016). Accordingly, the inquiry under
Federal Rule of Civil Procedure 56 is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.” Anderson, 477 U.S. at 251–52.
In assessing a motion for summary judgment, the court considers all relevant evidence
presented by the parties. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008).
The court views the facts in the light most favorable to the nonmoving party and draws all
reasonable inferences in that party’s favor, and if the court determines “no reasonable jury could
reach a verdict in [the non-movant’s] favor,” then summary judgment is appropriate. Wheeler,
812 F.3d at 1113. When ruling on a summary judgment motion, the court does not “make
credibility determinations or weigh the evidence.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C.
Cir. 2006). Nevertheless, conclusory assertions offered without any evidentiary support do not
establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
II.
A. Plaintiff’s Non-Selection Claim
Defendant argues that Plaintiff’s non-selection claim fails because the Bureau of Prisons
(“BOP”) had a nondiscriminatory reason for selecting a white woman, Heidi Kugler, as the Chief
2 Chaplaincy Administrator over Plaintiff, an African American man—namely, Kugler was the
superior candidate because of “her prior relevant experience as the Assistant Chaplaincy
Administrator.” Def.’s Mot. at 8.
Claims based on circumstantial evidence, like Plaintiff’s, trigger the three-step, burden-
shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).
Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of
discrimination by a preponderance of the evidence. Id. at 802; St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 506 (1993). If a plaintiff succeeds in making out a prima facie case, the burden
shifts to the defendant to rebut the presumption of discrimination by producing “evidence that the
adverse employment actions were taken for a legitimate, nondiscriminatory reason.” Aka v. Wash.
Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc) (quoting St. Mary’s Honor Ctr., 509
U.S. at 507 (internal quotation marks omitted)). If the defendant rebuts the presumption, the
burden shifts back to the plaintiff to discredit the employer’s nondiscriminatory explanation. Id.
at 1288–89. Where, as here, the employer has asserted a legitimate, non-discriminatory reason for
the employment decision at issue, “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; see also Hamilton v. Geithner, 666 F.3d 1344, 1347 (D.C. Cir. 2012).
There are multiple ways a plaintiff may support an inference that unlawful discrimination,
rather than the employer’s stated reason, motivated an adverse employment discrimination. The
“common ways of proving invidious motive—whether retaliation or discrimination—include
pointing to evidence that . . . the employer is ‘lying about the underlying facts’ of its decision; that
3 there were ‘changes and inconsistencies’ in the employer’s given reasons for the decision; [or] that
the employer failed to ‘follow established procedures or criteria.’” Allen v. Johnson, 795 F.3d 34,
40 (D.C. Cir. 2015) (quoting Brady, 520 F.3d at 495 & n.3). Where a plaintiff claims
discriminatory non-selection, he may present evidence of “disparity in qualifications” as well as
“other flaws in the employer’s explanation.” Hamilton, 666 F.3d at 1352 (internal quotation marks
omitted). Here, Plaintiff puts forward two principal arguments to attack Defendant’s proffered
non-discriminatory explanation: (1) Plaintiff has superior qualifications for the position; and
(2) there were procedural irregularities in the highly-subjective selection process. Pl.’s Mem. of
P. & A. in Opp’n to Def.’s Mot. for Summ. J., ECF No. 39 [hereinafter Pl.’s Mot.], at 5.
The court begins with Plaintiff’s claim that he “has significantly more experience than
Ms. Kugler and was a more qualified candidate for the Chief of Chaplaincy Services position.”
Am. Compl. ¶ 31; see also Pl.’s Opp’n at 5–11. Specifically, Plaintiff had served as a staff chaplain
at five different correctional facilities covering every security level “and nearly every type of
institution under the Bureau’s authority.” Am. Compl. ¶ 31; see also Pl.’s Stmt. of Disputed Facts,
ECF No. 39-1 [hereinafter SDF], ¶ 2. Plaintiff’s responsibilities in these positions included “duties
[over] male and female inmates, medical centers, prison camps, detention centers, low-, medium-,
and high-security units, protective custody units, the death and dying program, domestic terrorists,
sexual offender programs, and violent crimes and serious offenders populations.” Pl.’s Mot. at 6
(citing Plaintiff’s Exhibit (“PEX”) 2 7 at 969–71, 980–93; PEX 1 at 61:10-19; PEX 17 at 1–2; PEX
21 at 14–16); SDF ¶ 2. Plaintiff also had extensive experience working with inmates from a wide
variety of faith groups. SDF ¶ 38. As the Complex Supervisory Chaplain in Butner, North
Carolina, for example, Plaintiff had a supervisory role over five correctional institutions, which
2 Plaintiff’s Exhibits, noted as “PEX,” are found at ECF No. 39.
4 housed prisoners representing over twenty different religious faith groups. Pl.’s Mot. at 7 (citing
PEX 7 at 980–83, PEX 1 at 31:5–32:1).
By contrast, Kugler had worked at only two facilities—the first a low-security, male-only
facility, and a second that housed 800 inmates in transit—and she had never worked as a supervisor
at a Federal Correctional Complex. Pl.’s Mot. at 7.
Plaintiff maintains that the depth and breadth of his field experience make him a better
candidate for the Chief Chaplaincy Administrator position. As he points out, the position
description for the Chief Chaplaincy Administrator states that the Chief Chaplain “must have
knowledge of the religious beliefs and practices of all faith groups identified within [the] inmate
population,” “[k]nowledge of the purpose and scope of chaplaincy services within a prison
setting,” and “[k]nowledge of inmate management (custody, care and treatment).” PEX 19 at 275;
see also Pl.’s Mot. at 8. The description further provides that the Chief Chaplain “must have
knowledge of the variety of institutions, inmate populations and the resulting problems presented
by the various combinations,” id. at 276, and “must have a thorough understanding of the operating
problems involved in working within an institution,” id. at 277. The description also contemplates
that the Chief Chaplain will “give and exchange information regarding religious issues within
prisons,” and expects that the Chief Chaplain will “[i]nterface[] with all religious faiths groups
regarding their advocacy issues of concern.” Id. at 277–78.
In addition to his broader experience with different inmates from different religious
backgrounds, Plaintiff also argues that he has more extensive supervisory experience than Kugler.
He had supervised 18 staff members in a variety of positions including 10 chaplains, a program
coordinator, a religious services assistant, and a mentor coordinator, as well as worked with more
than 500 volunteers and 20 contractors over his career at BOP. Pl.’s Mot. at 9 (citing PEX 17 at
5 1–2; PEX 7 at 980). By contrast, Kugler had supervised only two employees in her field positions
and an additional three employees in the Central Office of the Chaplaincy Services Branch. Id.
(citing PEX 16 at 000308; PEX 5 at 25:15–26:14). Moreover, Plaintiff points out that he has more
years of experience than Kugler, having worked at BOP for more than fourteen years to Kugler’s
thirteen, and he holds a Doctorate of Ministry and a Master of Divinity, whereas Kugler has only
the latter. PEX 18 at 299–300; Pl.’s Mot. at 10 (citing PEX 7 at 976; PEX 16 at 308).
Defendant does not dispute that Plaintiff was qualified for the position but contends that
Kugler was the best qualified candidate because she had served longer in the Central Office and
because she had performed duties similar to the Chief Chaplaincy Administrator in her role as
Assistant Chaplaincy Administrator. Def.’s Mot at 10–11; SDF ¶¶ 32–33, 37. Patti Butterfield,
the Senior Deputy Assistant Director of the Reentry Services Division, testified that she evaluated
and ranked the candidates for the Chief Chaplain position, placing Kugler above Plaintiff on
account of Kugler’s better oral communication skills and because of her experience as Assistant
Chaplaincy Administrator. Def.’s Mot. at 3, 13; SDF ¶¶ 24–25, 33. Linda McGrew, a white
woman and the Assistant Director of the Reentry Services Division, ultimately selected Kugler
over Plaintiff because “Kugler had been serving in the role of Assistant Chaplaincy Administrator.
As such, her position description largely mirrored that of the Chaplaincy Administrator, and she
had already been performing on a delegated basis many of the same responsibilities and functions
that would be required of the Chaplaincy Administrator.” SDF ¶ 36 (citing Defendant’s Exhibit
(“DEX”) 3 14, at 124:9–125:14; DEX 15; DEX 16).
Indeed, like the Chief Chaplain, who is responsible for “[d]evelop[ing] and refin[ing]
national policy regarding religious beliefs and practices,” and “[e]valuating all aspects of policy
3 Defendant’s exhibits, noted as “DEX,” are found at ECF No. 33.
6 relating to religious ministry and chapel programming for all facilities of the Bureau of Prisons,”
PEX 19 at 274, the Assistant Chaplaincy Administrator “monitors chaplaincy programs throughout
the BOP” and “evaluates all aspects of policy relating to religious ministry and chapel
programming for all facilities of the BOP,” DEX 16 at BOP0494. Moreover, the Assistant
Chaplaincy Administrator provides “technical assistance and coordination of all activities related
to pastoral care and religious programs,” id., and both the Chief Chaplain and the Assistant
Chaplaincy Administrator “[p]rovide[] national overview, technical assistance and coordination of
all activities related to pastoral care and religious programs,” id., PEX 19 at 274. Plaintiff disputes,
however, the overlap between Kugler’s role as Assistant Chaplaincy Administrator and the Chief
Chaplain position, arguing that Kugler’s responsibilities as Assistant Chaplaincy Administrator
actually focused on “handling administrative grievances and litigation, responding to
congressional inquiries, and, later in Ms. Kugler’s tenure, overseeing the [Chaplaincy Services
Coordinators]” in the Central Office,” SDF ¶ 33; see also Pl.’s. Mot. at 9–10.
Reviewing the relative qualifications of Plaintiff and Kugler as set forth in the record, the
court finds that a reasonable jury could conclude that Plaintiff is more qualified than Kugler but
would not find him “substantially more qualified.” Holcomb, 433 F.3d at 897 (internal citation
omitted). As the D.C. Circuit has explained, “a disparity in qualifications, standing alone, can
support an inference of discrimination only when the qualifications gap is ‘great enough to be
inherently indicative of discrimination’—that is, when the plaintiff is ‘markedly more qualified,’
‘substantially more qualified,’ or ‘significantly better qualified’ than the successful candidate.”
Hamilton, 666 F.3d at 1352 (quoting Holcomb, 433 F.3d at 897). Here, while Plaintiff possesses
broader and deeper experience in some areas, the court is unable to conclude that he is
“substantially more qualified” given Kugler’s comparable education qualifications and her
7 relevant tenure as Assistant Chaplaincy Administrator. See Adeyemi v. District of Columbia, 525
F.3d 1222, 1227 (D.C. Cir. 2008) (explaining that “[i]n cases where the comparative qualifications
are close,” courts “must respect the employer’s unfettered discretion to choose among qualified
candidates” (internal quotation marks and citations omitted)).
That conclusion does not end the court’s analysis, however. In addition to his disparate
qualification argument, Plaintiff also points to additional “procedural irregularities in a highly
subjective selection process,” Hamilton, 666 F.3d at 1352, as evidence from which a reasonable
jury could conclude that Defendant’s stated reason for Plaintiff’s non-selection is pretextual,
see Pl.’s Mot. at 11–18. Specifically, he describes variations from BOP’s standard hiring practice,
the use of subjective criteria, and the lack of contemporaneous documentation substantiating
Defendant’s selection decision. Id.
Plaintiff complains of a number of alleged procedural irregularities in the selection process.
Linda McGrew, the Assistant Director of the Reentry Services Division and the selecting official
for the Chief Chaplain position, admitted that she did not have “direct observation of [Plaintiff’s]
duties,” PEX 2 at 59:25–60:2, or “enough knowledge or day-to-day interaction” to assess his
qualifications, id. at 61:25–62:6, yet she did not interview any of the candidates, id. at 86:11-14;
SDF ¶ 18, or personally speak to Michael Smith, the African-American incumbent Chief Chaplain
who had directly supervised both Plaintiff and Kugler for a number of years, SDF ¶ 27 (citing
PEX 9 ¶¶ 24–25; PEX 2 at 75:19–77:1). Smith would have been an obvious person to contact to
assess and compare his supervisees’ relative strengths and weaknesses, and Smith stated that in
his past experience with McGrew, as the selecting official, she would have contacted him, as a
recommending official. PEX 9 at ¶ 25.
8 Instead, McGrew relied on materials prepared by Patti Butterfield, also a white woman and
the Senior Deputy Assistant Director of the Reentry Services Division. SDF ¶ 19. Butterfield had
taken over that role six months prior and had worked with Plaintiff and Kugler in only a limited
capacity. Id. Butterfield reviewed the applications and conducted reference checks, including
reaching out to Smith for a brief phone call sometime after Smith had completed the reference
forms. Id. ¶¶ 19, 27. Smith stated that this, too, was unusual, given that such conversations would
normally take place in person and “promptly” after he completed the forms, rather than allowing
a “significant [time] gap” between the reference forms and the conversation. PEX 9 ¶ 23.
Butterfield testified that Smith recommended, in order of preference, Mary Tyes-William, an
African-American woman, Kugler, and then Saulsberry, yet Tyes-William did not appear on the
final three candidates for review. SDF ¶¶ 27–28, 31; see also PEX 3 at 105:18–106:4. Plaintiff
disputes his ranking, claiming that Smith told Plaintiff that he had recommended Saulsberry over
Kugler. SDF ¶ 29.
Butterfield then composed a summary chart of the top three candidates’ qualifications in
order of her recommendation: Kugler first, Plaintiff second, and a white male candidate third. Id.
¶ 31; PEX 18. In her deposition, however, McGrew stated that normally Smith would have
prepared the summary chart rather than Butterfield. PEX 2 at 45:25–46:13. And according to
Plaintiff, the chart is far less detailed than the spreadsheets Plaintiff had been asked to prepare by
McGrew in other selections she had conducted in the past. SDF ¶ 31.
Plaintiff also points out that both Butterfield’s and McGrew’s assessment rely on subjective
criteria. While Smith assigned both Saulsberry and Kugler identical, above-average ratings in all
six specified skills and abilities, above average on leadership, and suitable for the position, id.
¶¶ 22–23, Butterfield rated Saulsberry average in “oral communication” and Kugler above
9 average, id. ¶¶ 24–25. Plaintiff maintains that Butterfield’s lower oral communication score is
based on only two personal interactions with him. Pl.’s Mot. at 14. Additionally, Plaintiff asserts
that in another selection process, Butterfield had given the two candidates—one a white man, one
an African-American woman—top marks in all categories except that she gave the African-
American candidate a lower score in oral communication as compared to the white candidate. Id.
at 14–15 (citing SDF ¶ 24). With respect to McGrew, Plaintiff contends that she, too, identified
“subjective criteria” that made Kugler better suited for the Chief Chaplaincy position, such as
Kugler’s “ability to develop policy and national initiatives,” “ability to work with outside religious
and faith-based organizations,” and “leadership abilities.” Pl.’s Mot. at 21 (citing SDF ¶¶ 36–38).
Yet Smith testified that he shared with Butterfield his opinion that Kugler’s “leadership skills were
not a strength.” DEX 3 at ¶ 3.
Finally, Plaintiff points to the lack of contemporaneous documentation supporting either
Butterfield’s or McGrew’s hiring evaluations and McGrew’s ultimate decision. Butterfield’s only
documentation of the call between Butterfield and Smith was the sticky note recording Smith’s
ratings. SDF ¶¶ 28, 33. The comparison chart prepared by Butterfield includes no comments
comparing the three candidates nor any comments noting Kugler’s specific suitability for the
position given her role as Assistant Chaplaincy Administrator. See PEX 18. Nor is there any
documentation regarding Butterfield’s discussion of the candidates with McGrew, SDF ¶ 36; see
also PEX 2 at 47:13–48:5, and, McGrew took no notes when she reviewed the applications and
made her ultimate selection, SDF ¶¶ 33–34, 36.
Taken together, the court is persuaded that Plaintiff has adduced sufficient additional
evidence in the record from which a reasonable jury could conclude that Defendant’s stated reason
for Plaintiff’s non-selection is pretextual. The selection process appears to have deviated from
10 standard practice in notable ways, including seemingly little input from Smith, who was Plaintiff’s
and Kugler’s direct supervisor. Moreover, Plaintiff has pointed to statements made by Butterfield
and McGrew regarding subjective criteria, such as oral communication and leadership skills. The
D.C. Circuit has explained that such subjective hiring criteria should be “treat[ed] . . . with caution
on summary judgment.” Hamilton, 666 F.3d at 1356; see also Aka, 156 F.3d at 1298 (noting that
“courts traditionally treat explanations that rely heavily on subjective considerations with caution”
and that “an employer’s heavy use of highly subjective criteria, such as interpersonal skills, could
support an inference of discrimination” (internal quotation marks omitted)). This is because
“[s]ubjective criteria lend themselves to racially discriminatory abuse more readily than do
objective criteria.” Harris v. Group Health Ass’n, 662 F.2d 869, 873 (D.C. Cir. 1981). Finally, a
jury could find troubling the lack of contemporaneous notes evaluating Plaintiff relative to Kugler.
In Hamilton, the D.C. Circuit denied summary judgment in part because of the “absence of any
contemporaneous documentation supporting” the defendant’s stated rationale for the plaintiff’s
discriminatory promotion claim. 666 F.3d at 1357; see also Grosdidier v. Broad. Bd. of
Governors, Chairman, 709 F.3d 19, 27 (D.C. Cir. 2013) (observing that “the missing notes could
have provided a more complete picture of what transpired during the interview process, especially
regarding the types of questions the panelists asked generally and of specific applicants and their
focus on particular qualities of an applicant”). Here, too, the absence of important
contemporaneous documentation supports the denial of summary judgment as to Plaintiff’s non-
selection claim.
In sum, viewing the record as a whole and in the light most favorable to Plaintiff, the court
concludes that a genuine issue of material fact exists as to whether Defendant’s stated rationale for
Plaintiff’s non-selection is pretextual, and thus a reasonable jury could conclude that Plaintiff was
11 actually not selected on account of his race. The court concludes the same as to Plaintiff’s sex
discrimination claim, although that is a closer call. A reasonable jury could infer sex
discrimination based on the decision-makers and the selected candidate all being women;
Plaintiff’s greater field and supervisory experience than Kugler’s; unusual aspects of the selection
process, including McGrew’s failure to consult with Smith, a male; and the lack of
contemporaneous notes documenting the rationale for selecting Kugler over Plaintiff. “Of course,
after hearing live testimony, assessing witness credibility, and weighing the evidence,” a jury
might well conclude that Defendant’s stated rationale is legitimate because Kugler was better
suited for the position, Butterfield’s and McGrew’s assessments about Plaintiff’s oral
communication and leadership skills did not mask a discriminatory motive, and the absence of
interview notes and the various deviations from standard hiring procedures were innocuous.
See Hamilton, 666 F.3d at 1357. These are, however, questions for the jury to resolve. The court
therefore denies Defendant’s motion for summary judgment as to Plaintiff’s non-selection claim.
B. Plaintiff’s Hostile Work Environment Claim
Up next is Plaintiff’s hostile work environment claim. In support of this claim, Plaintiff
points to a number of workplace incidents and actions taken by two white female supervisors,
Kathryn Tracy and Heidi Kugler, from 2012 to 2017. Pl.’s Opp’n at 23–33. These include:
(1) Tracy did not greet Plaintiff in the morning or otherwise acknowledge him, Am. Compl. ¶ 19;
SDF ¶ 41; (2) Tracy did not allow Plaintiff to serve as Acting Chief or Senior Deputy Assistant
Director during absences and instead appointed Kugler or other white employees, Am. Compl.
¶¶ 26–28; SDF ¶ 63; (3) Tracy blocked Plaintiff’s efforts to join a Department of Justice leadership
program but sponsored the participation of white women, including Kugler, Am. Compl. ¶ 29;
SDF ¶ 94; (4) in September 2012, Tracy criticized a prayer Plaintiff had delivered and instructed
12 Smith to speak to him about it, Am. Compl. ¶ 21; SDF ¶¶ 47–49; (5) also in September 2012,
Tracy initially forbade Plaintiff and Smith from attending a training seminar for prison chaplains,
Am. Compl. ¶ 22; SDF ¶¶ 53–55; (6) in August 2013, Tracy instructed Plaintiff to stop producing
a newsletter, Am. Compl. ¶¶ 23–24; SDF ¶ 74; (7) in August 2014, Tracy yelled at Plaintiff and
Smith when she came upon them dismantling, with the help of building management, portable
walls and erecting new walls to create a shared workspace, SDF ¶ 88; (8) in November 2015,
Kugler was selected as Chief Chaplaincy Administrator over Plaintiff, Am. Compl. ¶¶ 30–31;
SDF ¶ 35; (8) Kugler assigned Plaintiff an “excellent” performance ratings even though he
believed he deserved to be rated “outstanding,” Am. Compl. ¶¶ 37–50; SDF ¶¶ 117, 129, 135;
(9) in the spring of 2017, Kugler asked Plaintiff to notify her before leaving the office, Am. Compl.
¶ 52; SDF ¶ 138; and (10) Kugler approved Plaintiff for only one day of telework per week when
he had applied for three, but she did not apply this same treatment to white colleagues, SDF
¶¶ 144–45.
According to Plaintiff, the actions by Tracy and then Kugler “isolate[d] [Plaintiff] in the
office, ensure[d] he was systematically denied career advancement opportunities, ignored . . .
proposals and initiatives he sought to implement, blocked [him] from performing tasks or duties”
that could “grow and build his experiences” and “increase his exposure,” “denied [him] important
training and leadership opportunities,” “subjected [him] to unfair performance criticisms and
unjust double standards, and berated [him] for simply trying to do his job to the best of his ability.”
Pl.’s Mot. at 33.
Still, Plaintiff has failed to show that he was subjected to a hostile work environment.
To prevail on a claim of hostile work environment, a plaintiff must “show that he or she was
subjected to ‘discriminatory intimidation, ridicule, and insult’ that [was] ‘sufficiently severe or
13 pervasive to alter the conditions of [his or her] employment and create an abusive working
environment.’” Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (per curiam)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “The key terms . . . are ‘severe,’
‘pervasive,’ and ‘abusive,’ as not just any offensive or discriminatory conduct rises to an
actionable hostile work environment.” Bell v. Gonzales, 398 F. Supp. 2d 78, 91 (D.D.C. 2005).
In assessing hostile work environment claims, then, courts look to the totality 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.” Harris, 510 U.S. at 23.
Only one of the incidents comes close to being threatening, humiliating, or insulting. In
September 2012, Tracy refused to allow Plaintiff and Smith to travel to an African Methodist
Episcopal Church conference and training seminar for prison chaplains, telling Smith, “I don’t
know who all these black people are who’s [sic] going to be at this seminar. For all I know, Louis
Farrakhan could be one of the speakers.” Am. Comp. ¶ 22; SDF ¶¶ 55, 60. Though the court finds
this incident troubling, Tracy did not make the comment directly to Plaintiff; instead, he heard it
second-hand from Smith. Id. ¶¶ 55, 61; PEX 9 ¶ 16. “Comments made outside of the employee’s
presence are generally not actionable as the basis for a hostile work environment claim.”
Bergbauer v. Mabus, 934 F. Supp. 2d 55, 91 (D.D.C 2013); see also Jones v. Billington,
12 F. Supp. 2d 1, 12 (D.D.C. 1997) (plaintiff’s report that he heard that “racial and prejudicial
remarks” were being made against him, but not in his presence, was not sufficiently severe as to
create a hostile working environment); Mason v. So. Ill. Univ. at Carbondale, 233 F.3d 1036, 1046
n.9 (7th Cir. 2000) (rejecting hostile environment claim where a coworker told the plaintiff that
other employees had used racial epithets because “through the grapevine” conduct is not
14 sufficiently severe or pervasive). As a result, Tracy’s comment to Smith, as well as several other
incidents that were not experienced first-hand by Plaintiff—including Tracy asking Smith to talk
to Plaintiff about a prayer he gave in September 2012, Tracy stating a preference that only Kugler
serve as acting Chief Chaplain in February 2013, and Tracy expressing anger at an accusation that
Plaintiff had supposedly submitted an application to run a halfway house in March 2014, see SDF
¶ 82—fail to support his claim of a hostile work environment.
As for the remaining incidents about which Plaintiff complains, these are the types of work-
related disputes not sufficiently severe or pervasive to be actionable as a hostile work environment
claim. Bell, 398 F. Supp. 2d at 92. For example, Plaintiff claims that he was required to
discontinue circulating a newsletter about chaplaincy training even though Kugler was permitted
to circulate a comparable newsletter that she initiated around the same time. SDF ¶¶ 71–75, 77.
Although Plaintiff was instructed to discontinue sending the formal newsletter, he was able to
continue sending the same essential information in an email format that did not have to be
preapproved by Tracy. Id. ¶ 76. Plaintiff also claims that he was not assigned to serve as acting
Chaplaincy Administrator during Smith’s absences. Id. ¶ 63. But the record shows that it was the
practice in most branches in the Reentry Services Division that the assistant administrator would
generally serve as acting administrator when the administrator was out of the office. Id. ¶ 65. And,
when Plaintiff objected to this practice, the Chaplaincy Services Branch changed its practice to
rotate the assignment among the central office staff, including Plaintiff. Id. ¶¶ 67–69. He also
claims that in 2014 Tracy allegedly raised her voice when she came upon Smith and Saulsberry
rearranging the office walls, id. ¶¶ 88–93, and was generally rude and dismissive, id. ¶ 41. But
these workplace indignities are neither severe nor pervasive enough to comprise a hostile work
environment.
15 In short, these incidents, spread over several years, do not amount to conduct constituting
a hostile work environment. Plaintiff alleges no “discriminatory intimidation, ridicule, and insult,”
that “alter[ed] the conditions of [Plaintiff’s] employment and create an abusive working
environment.” Meritor Sav. Banks, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986). Rather, these
incidents reflect “[o]ccasional instances of less favorable treatment involving ordinary daily
workplace decisions [which] are not sufficient to establish a hostile work environment.” Bell, 398
F. Supp. 2d at 92 (citations omitted) (granting summary judgment to the defendants where they,
among other things, “monitored [the plaintiff’s] behavior more closely than that of other
employees, excluded him from the informal chain of command and staff meetings, restricted his
travel and teaching assignments, restricted his high visibility projects, reprimanded and criticized
him, and spoke to him in derogatory terms”); see also Brooks v. Grundmann, 851 F. Supp. 2d 1,
6–7 (D.D.C. 2012) (holding that no reasonable jury could find a hostile work environment where
supervisor gave plaintiff negative performance appraisals, criticized her, increased scrutiny of her
work, raised his voice during meetings, and placed her in a “Team of One,” which isolated her
from her coworkers).
With respect to Kugler’s actions, Plaintiff’s main claim is that she held Plaintiff, but not
the other white employees, to the Reentry Services Division telework policy, limiting him to only
one day of telework per week rather than his preferred three days. SDF ¶¶ 144–45. But even if
the telework policy were selectively enforced, such selective enforcement of office attendance
policies “does not necessarily indicate conduct giving rise to a hostile work environment claim.”
Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014). As for Kugler’s assignment of
“excellent” rather than “outstanding” ratings, SDF ¶¶ 117, 123, 129, 135, these performance
reviews “do little to evince abusive conditions,” Brooks, 748 F.3d at 1276. The “excellent” ratings
16 are nevertheless favorable for Plaintiff, and while Kugler offered inconsistent explanations for the
standards attached to “outstanding” versus “excellent” ratings, when Plaintiff disagreed with his
ratings, Kugler re-reviewed her evaluations and occasionally adjusted some of Plaintiff’s scores.
SDF ¶¶ 118, 122, 130, 133. This is “hardly the stuff of severe or pervasive workplace hostility.”
Brooks, 748 F.3d at 1277.
In the end, Plaintiff has not met his burden of establishing a hostile work environment. The
court will grant summary judgment to Defendant on this claim.
III.
For the foregoing reasons, Defendant’s Motion for Summary Judgment, ECF No. 33, is
granted in part and denied in part.
___________________________ Dated: June 23, 2020 Amit P. Mehta United States District Judge