Robinson v. District of Columbia , 275 F. Supp. 3d 95 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARK E. ROBINSON, :
:
Plaintiff, : Civil Action No.: 15-0444 (RC)
:
v. : Re Document No.: 19
:
DISTRICT OF COLUMBIA, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
The District of Columbia Metropolitan Police Department uses high-tech cameras to
catch traffic offenders without the need for real-time observation by police officers. To organize
the photographs, analyze evidence of violations, and issue citations, the police department
created the Automated Traffic Enforcement Unit (“ATEU”). Plaintiff Mark Robinson, a
Sergeant with the Metropolitan Police Department who has devoted his career to traffic safety,
worked in the ATEU full-time starting in 2008. In 2011, he began training and certifying sworn
officers to work as part of the ATEU Overtime Program, which allowed police officers to
supplement their normal workload with traffic-safety work in the ATEU. Mr. Robinson himself
logged considerable time in the ATEU—in many years exceeding 1,500 hours of overtime.
Then, in December 2011, Mr. Robinson was transferred out of the ATEU as part of a
civilianization of the Unit. Although MPD asserts that no sworn officers worked in the ATEU
full-time after 2011, the Overtime Program continued, meaning hundreds of officers were able to
work there outside of their normal assignments. Mr. Robinson’s requests to work overtime,
however, were denied. He believes he was transferred out of the ATEU and denied overtime
opportunities because of his race, and thus sues for discrimination. He also believes that his
requests for reassignment to the ATEU and overtime were continuously denied because he
previously had complained of discrimination, and thus sues for retaliation.
The District of Columbia moves to dismiss on relatively narrow grounds. It argues that
neither the reassignment from the ATEU nor the denial of overtime opportunities constituted
sufficiently adverse employment actions to support a lawsuit under Title VII of the Civil Rights
Act of 1964. It also argues that it had a nondiscriminatory reason for transferring Mr.
Robinson—it civilianized the unit, and thus no sworn officer worked in the ATEU on a full-time
basis after the transition in 2011.
The civilianization of the ATEU is indeed a valid nondiscriminatory reason for Mr.
Robinson’s transfer, and Mr. Robinson has not shown any indication that it was not the actual
reason that he was transferred. Thus, the Court will grant Defendant summary judgment with
respect to Plaintiff’s claim that his transfer from the ATEU was discriminatory and retaliatory.
But because Mr. Robinson has shown that he sought out and was denied a significant amount of
overtime while other sworn officers were allowed to work in the ATEU Overtime Program, he
has shown that he suffered an adverse employment action in the form of loss of significant
overtime opportunities. As a result, the Court will deny Defendant’s motion for summary
judgment insofar as it relates to the alleged loss of overtime.
II. FACTUAL BACKGROUND
A. The Automated Traffic Enforcement Unit
Mr. Robinson is a police officer whose career has been devoted to traffic safety. Aff. of
Mark E. Robinson (“Robinson Decl.”) ¶ 4, ECF No. 24-1. He has worked for the D.C.
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Metropolitan Police Department (“MPD”) since 1990.1 Robinson Decl. ¶ 3. Prior to working
for MPD, he worked for the Fairfax County Police Department, where he was certified in the use
of radar to detect speeding. Robinson Decl. ¶¶ 1–2. Shortly after starting with MPD, Mr.
Robinson was certified in the use of Traffic Doppler Radar, and then two years later, became
certified as an instructor in the use of radar devices to detect speed. Robinson Decl. ¶¶ 5–6. In
2004, after having been certified as an instructor for “Lidar”—another speed-detecting device—
Mr. Robinson was certified to operate photographic speed measuring equipment. Robinson
Decl. ¶¶ 9–10. In 2008, Mr. Robinson was permanently assigned, on a full-time basis, to the
ATEU, the unit that administers automated traffic tickets based on photographic evidence.
Robinson Decl. ¶¶ 10, 12–13. In that role, Mr. Robinson worked with other officers to draft
MPD regulations pertaining to automated traffic enforcement, instructed classes, and supervised
ATEU employees. Robinson Decl. ¶¶ 12–15. For over ten years, he also co-taught classes on
traffic enforcement for other MPD officers. Robinson Decl. ¶ 14.
Mr. Robinson, along with other certified ATEU operators, logged significant overtime in
the ATEU. Robinson Decl. ¶ 15. Shortly after Mr. Robinson began working in the ATEU, MPD
solicited officer volunteers to work overtime in the Unit. Robinson Decl. ¶ 15. Over 855 MPD
members volunteered, of which 213 were selected through a lottery system. Robinson Decl.
¶ 15. Because Mr. Robinson was one of the two officers who trained the volunteers to be
ATEU-certified and was already working in the ATEU, he claims that he was not required to
participate in the lottery system. Robinson Decl. ¶¶ 15–16.
According to Defendant’s affiant—who is also Plaintiff’s supervisor—Lisa Sutter, ATEU
was civilianized in 2011, after which no sworn officers were employed on a full-duty basis. Aff.
1
The Court refers to Defendant as “MPD.”
3
of Elisabeth Sutter (“Sutter Decl.”) ¶¶ 2–3, ECF No. 19-3. Mr. Robinson states that Ms. Sutter’s
account of the ATEU civilianization is “a misrepresentation,” noting that several officers
received overtime from the ATEU from 2011 to 2016. Robinson Decl. ¶ 31. Importantly, Ms.
Sutter only stated that no sworn officers were employed within the ATEU on a full-time,
permanent basis; in fact, she specifically stated that, “[f]ollowing the civilianization of the
ATEU, some sworn officers were detailed to the ATEU on a less-than-full-duty temporary
basis.” 2 Sutter Decl. ¶¶ 3–4; see also Aff. of Lamont Hinton (“Hinton Decl.”) ¶¶ 3–4, ECF No.
27-1. Regardless, both sides agree that, by 2014, MPD employed civilian technicians to operate
automated traffic devices. Sutter Decl. ¶¶ 3–4; Robinson Decl. ¶ 17. Notably, no witness has
stated that the ATEU continued employing officers on a full-time basis after 2011. See Robinson
Decl. ¶ 17 (quoting MPD regulations as stating that the ATEU program uses “‘sworn MPD
members’ who ‘receive compensation . . . outside of their regular assigned duties and
responsibilities’” (ellipses in original)).
2
Notably, even the handful of part-time assignments remaining in the ATEU would not
have been suitable for Mr. Robinson. In her deposition, Michelle Molotsky, deputy program
manager for the ATEU, stated that four officers were still detailed to the ATEU to process tickets
at the time of her deposition. See Dep. of Michelle Molotsky (“Molotsky Dep.”) at 4, 65–66.
Plaintiff does not cite to this deposition or otherwise argue that the part-time detail of these four
officers demonstrates that the unit was not fully civilianized, presumably because processing
tickets—which the Court understands to be a clerical exercise, see Lehtinen v. Town of
Greenport, 2014 WL 3477037, at *5 (N.D.N.Y. July 11, 2014)—has nothing to do with the
responsibilities that Plaintiff had when he was assigned, on a full-time basis, to the ATEU.
When Mr. Robinson was assigned to the ATEU, his responsibilities included instructing classes,
drafting regulations, and otherwise supervising participants in the program. See Robinson Decl.
¶¶ 12–15; Robinson Charge of Discrimination at 2, 4, ECF No. 24-15. There is no dispute of
facts that a full-time detail in the ATEU—let alone one like the one Mr. Robinson held and
subsequently requested reassignment to—did not exist after 2011, and nothing in the record
suggests that Mr. Robinson requested a part-time assignment processing tickets. See Robinson
Decl. ¶ 17; Sutter Decl. ¶¶ 3–4; Hinton Decl. ¶¶ 3–4. Thus, notwithstanding the four officers
assigned to the ATEU to process tickets on a part-time basis, see Sutter Decl. ¶¶ 3–4, the
universe of assignments that Mr. Robinson could have continued to occupy—and to which he
could have been reassigned per his requests—ceased to exist after 2011.
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B. The Transfer of Mr. Robinson
In 2011, following the start of MPD’s civilianization of the ATEU, MPD reassigned Mr.
Robinson to MPD’s Special Events Branch. See Robinson Decl. ¶ 18; Sutter Decl. ¶¶ 2–3. Mr.
Robinson’s supervisors—Ms. Sutter and Commander Sund—told him that he was transferred as
part of the civilianization process. Robinson Decl. ¶ 18. Mr. Robinson believes that he was
transferred out and repeatedly denied reassignment back because of his race. Robinson Decl.
¶¶ 34–35.
Mr. Robinson was also denied overtime work in the ATEU. Although he did not
participate in the lottery described above, he was a certified operator and instructor, and thus,
according to him, qualified to work in the ATEU Overtime Program. Robinson Decl. ¶ 18. He
requested overtime work starting on February 8, 2014 until the program ended on May 16, 2015,
but his requests were denied each time by Ms. Sutter and Commander Sund. Robinson Decl.
¶ 18; Sutter Decl. ¶ 6; see also Dep. of Mark E. Robinson (“Robinson Dep.”) at 31, ECF No. 19-
1. His supervisors’ stated reason for denying his request was that he did not meet the
requirements for participation in the program, including the requirement to deploy radar car
within the last six months. Robinson Dep. at 20–21. At one point, MPD also suggested that he
was denied overtime opportunities because he did not participate in the 2010 lottery. Robinson
Decl. ¶ 23. Mr. Robinson does not contend that he completed the usual prerequisites, instead
arguing that they were only required for newly trained employees. Robinson Dep. at 21.
Despite his claim that he was denied overtime in the ATEU, he did earn over 525 hours of
overtime elsewhere in MPD from February 8, 2014 through May 16, 2016. Aff. of Priya
Mathews (“Mathews Decl.”) ¶ 6, ECF No. 19-2. In comparison, the average number of overtime
hours received by officers participating in the ATEU Overtime Program was 468 during that
5
same period. Mathews Decl. ¶ 4. Mr. Robinson states that, had he been allowed to work
overtime in the ATEU, he would have worked many more hours than the 525 hours he already
worked, citing his history of working 1,500 to 2,000 hours of overtime per year. Robinson Decl.
¶¶ 29–30.
In support of his contention that he was transferred out of ATEU and denied overtime
opportunities because of his race, Mr. Robinson points to situations where he believes less-
qualified white employees were given opportunities ahead of him in the ATEU. According to
Mr. Robinson, Terry Thorne—who is white—was selected to teach a photo radar class in the
ATEU over Mr. Robinson in 2014, despite the fact that Mr. Thorne was less qualified. Robinson
Decl. ¶ 26. In fact, all of Mr. Thorne’s trainees were ultimately denied certification “because a
problem was identified with respect to [Mr.] Thorne’s qualifications.” Robinson Decl. ¶ 26. Mr.
Robinson also stated that Keith Blakely, who is white, was allowed to work in the ATEU
Overtime Program despite not having participated in the lottery or used ATEU equipment in
many years. Robinson Decl. ¶ 25. According to Mr. Robinson, Mr. Blakely was in the exact
same situation he was with respect to the purported prerequisites to earning overtime, but Mr.
Blakely did not have as much experience with the latest speed-detection equipment. Robinson
Decl. ¶ 25. More broadly, Mr. Robinson contends that he is “more qualified to work in the
ATEU overtime program than all of the white sworn members who earned overtime wages . . .
because [he is] a certified instructor,” and there were no certified instructors above him and one
of his colleagues. Robinson Decl. ¶ 27. In fact, Mr. Robinson, along with only one other person,
trained and certified all of the sworn officers who participated in the ATEU program. Robinson
Decl. ¶ 27.
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Mr. Robinson also states more generally that he “perceived [that] Ms. Sutter . . .
discriminate[d] against [him] based on [his] race.” Robinson Decl. ¶ 24. In support of this
contention, he states that Ms. Sutter “was always more responsive to the white members and
technicians” than she was to him. Robinson Decl. ¶ 34. He alleges that Ms. Sutter and
Commander Sund knew about his complaints of discrimination when they rejected his requests
for overtime. Robinson Decl. ¶ 36.
III. LEGAL STANDARD
The Court must grant summary judgment to a movant who “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); see also Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505
(D.C. Cir. 2016). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit
under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the
summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of fact is
“genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. The Court “view[s] the evidence in the light most favorable
to the nonmoving party and draw[s] all reasonable inferences in [his] favor.” Mastro v. Potomac
Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006).
A party opposing summary judgment generally cannot rest on his pleadings. See Fed. R.
Civ. P. 56(e). After the moving party comes forward with proof of the absence of a genuine
issue of material fact, the nonmoving party bears the burden of showing that there is such a
genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party must
cite to materials other than the pleadings themselves, show that the moving party’s materials are
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insufficient, or show that its claims could not be supported by admissible evidence at trial. See
id. at 324; Fed. R. Civ. P. 56(c).
Under Title VII of the Civil Rights Act of 1964, “[a]ll personnel actions affecting
employees . . . shall be made free from any discrimination based on race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-16(a). Direct evidence of discrimination or retaliation
generally entitles the plaintiff to a jury trial. Vatel v. All. of Auto. Mfrs., 627 F.3d 1245, 1247
(D.C. Cir. 2011); see also Telesford v. Md. Provo-I Med. Servs., P.C., 204 F. Supp. 3d 120, 128
(D.D.C. 2016). In the absence of direct evidence of discrimination or retaliation, such claims are
usually analyzed under the three-step framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Clipper v. Billington, 414 F. Supp. 2d 16, 21, 25 (D.D.C.
2006); see also George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005).
The first step of the McDonnell Douglas framework requires the plaintiff to make out a
prima facie case of disparate treatment. In the case of discrimination, this requires the plaintiff to
show that (1) he is a member of a protected class, (2) he suffered an adverse employment action,
and (3) “the unfavorable action gives rise to an inference of discrimination.” Achagzai v. Broad.
Bd. of Governors, 170 F. Supp. 3d 164, 180–81 (D.D.C. 2016), reconsideration denied, 185 F.
Supp. 3d 135 (D.D.C. 2016); see also Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1150
(D.C. Cir. 2004) (noting that the D.C. Circuit has “articulated an alternative formulation” of the
McDonnell Douglas test for claims “that extend beyond . . . typical ‘failure-to-hire’ situations”).
For retaliation claims, the plaintiff must show that (1) he engaged in protected activity, (2) he
suffered an adverse employment action, and (3) his engagement in the protected activity caused
the adverse employment action. Achagzai, 170 F. Supp. 3d at 185. The phrase “adverse
8
employment action” has a broader meaning in retaliation cases than it does in discrimination
cases. Id.
Under the McDonnell Douglas formulation, once the employee establishes a prima facie
case, the burden shifts to the employer to “‘articulate some legitimate, nondiscriminatory reason’
for the adverse employee action.” Id. at 181 (quoting McDonnell Douglas Corp., 411 U.S. at
802). If the employer succeeds in doing so, the burden shifts back to the employee to show that
“the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination.” George, 407 F.3d at 411 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 252–53 (1981)).
However, in disparate-treatment discrimination and retaliation cases where there is no
dispute that the plaintiff experienced an adverse employment action and the employer proffers a
valid, nondiscriminatory (or nonretaliatory) basis for that action, courts shortcut the McDonnell
Douglas framework. In such as case, the court asks only whether “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 [or retaliated]
against the employee on the basis of race, color, religion, sex, or national origin,” or the
employee’s engagement in protected activity. Brady v. Office of Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008); see McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012)
(adopting Brady’s formulation in a retaliation case).
In addition to applying to Title VII claims, the McDonnell Douglas/Brady formulation
applies to claims brought under the District of Columbia Human Rights Act (“DCHRA”).
Bryant v. District of Columbia, 102 A.3d 264, 267 (D.C. 2014) (citing Cain v. Reinoso, 43 A.3d
302, 306 (D.C. 2012)); accord Rush v. Fed. Nat’l Mortg. Ass’n, 208 F. Supp. 3d 1, 14 n.11
9
(D.D.C. 2016); see also Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 878, 886 (D.C.
2008). Thus, the Court’s analysis concerning Title VII applies equally to Mr. Robinson’s
DCHRA claims.
IV. ANALYSIS
MPD argues that Mr. Robinson does not establish a prima facie case of discrimination
because he fails to show that he was subjected to an adverse employment action, and that he has
not rebutted MPD’s non-discriminatory and non-retaliatory reason for his reassignment from the
ATEU.3 In support of its first argument, MPD contends that neither a lateral transfer from the
ATEU nor the loss of overtime—the adverse actions alleged by Mr. Robinson, see Compl. ¶¶ 5,
17, ECF No. 1-3—constitute adverse employment actions. See Def.’s Mot. Summ. J. at 8–10,
ECF No. 19.4 In support of its second argument, MPD argues that Mr. Robinson has failed to
show that its reasons for not transferring him to ATEU were pretextual because he never showed
that, after the civilianization process, any sworn officer was reassigned to the ATEU on a
permanent basis. Def.’s Mot. Summ. J. at 12–13. The Court begins its analysis with Mr.
Robinson’s transfer from the ATEU program, then proceeds to his claim that he has been denied
overtime opportunities because of his race.
3
Notably, Defendant does not move for summary judgment on the grounds that Mr.
Robinson failed to rebut the nondiscriminatory reason MPD has provided for its refusal to allow
him to participate in the ATEU Overtime Program. See Def.’s Mot. Summ. J. ¶ 2, ECF No. 19
(claiming that Defendant “has satisfied its burden to show that it had a legitimate,
nondiscriminatory reason for denying Plaintiff’s request to be reassigned to the [ATEU],”
without mentioning the ATEU Overtime Program); Def.’s Mot. Summ. J. at 11. In fact, MPD
has not directly asserted any non-discriminatory/non-retaliatory reasons for denying Defendant’s
request for overtime opportunities in the ATEU.
4
Because Defendant did not include page numbers in its motion for summary judgment
and accompanying memorandum of points and authorities, the Court cites to the numbers
generated by ECF in referring to both documents.
10
A. Mr. Robinson’s Transfer from the ATEU
MPD argues that Mr. Robinson’s claim of discriminatory transfer is faulty in two
respects. First, it claims that a lateral transfer within MPD does not constitute an adverse
employment action. Second, MPD argues that it had a nondiscriminatory reason for doing so,
which Mr. Robinson has not rebutted—the civilianization of the ATEU. Because the Court
holds that Mr. Robinson has not rebutted MPD’s nondiscriminatory reason for his transfer, it
does not address whether the transfer itself was an adverse employment action. See Riggsbee v.
Diversity Servs., Inc., 637 F. Supp. 2d 39, 45 (D.D.C. 2009) (assuming without deciding that
early termination from a temporary position is an adverse employment action, then proceeding to
step two of McDonnell Douglas).
As noted above, under McDonnell Douglas, once a plaintiff establishes a prima facie case
of discrimination or retaliation, the burden shifts to the defendant to articulate a
nondiscriminatory basis for the adverse action taken against the employee. Achagzai, 170 F.
Supp. 3d at 181. If the employer is able to show such a reason, the plaintiff then has the
opportunity to show that the nondiscriminatory action was mere pretext for discrimination.
George, 407 F.3d at 411. He can do this by showing, for example, that he had “stark[ly]
superior[] . . . credentials” to the employee chosen at his expense. Morales v. Gotbaum, 42 F.
Supp. 3d 175, 193 (D.D.C. 2014) (quoting Porter v. Shah, 606 F.3d 809, 816 (D.C. Cir. 2010)).
Assuming without deciding that Mr. Robinson’s transfer from the ATEU (or denial of his
requests to transfer back to the ATEU) could constitute an adverse employment action, MPD has
articulated a nondiscriminatory basis for the reassignment and subsequent denials to transfer
back to the ATEU. MPD transferred Mr. Robinson from his full-time detail at the ATEU—
along with all other sworn officers—when the unit was civilianized in 2011. Robinson Decl.
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¶ 18. As shown by Ms. Sutter’s declaration, after the ATEU was civilianized, no sworn officers
were detailed to the ATEU on a full-time basis. Sutter Decl. ¶¶ 2–3. Although there were
officers who worked in the ATEU on a “less-than-full-duty temporary basis,” those officers
either held part-time assignments that were not comparable to Mr. Robinson’s full-time detail,
see supra note 2, or did so in the context of the ATEU Overtime Program, which is addressed by
the Court in Section B below. See Sutter Decl. ¶¶ 4–5; see also Pl.’s Mem. Supp. Opp’n Def.’s
Mot. Summ. J. (“Pl.’s Opp’n) at 7, ECF No. 24 (disputing the concept of civilianization because
“MPD continued to operate the ATEU . . . as an overtime program utilizing sworn members of
MPD”); Pl.’s Opp’n Ex. 3, MPD Gen. Order 303.10 at 2, ECF No. 24-3 (“The ATE Program
utilizes sworn [MPD] members who have been certified . . . . These members receive
compensation for a duty assignment that it outside of their regular assigned duties and
responsibilities . . . .”); Robinson Decl. ¶ 31 (taking issue with Ms. Sutter’s declaration because
sworn officers earned ATEU overtime). Mr. Robinson has failed to show that this reason is
pretextual and the real reason was discrimination based on his race or retaliation based on his
previous complaints about discrimination.
Mr. Robinson attempts to show that MPD’s characterization of the civilianization is
incorrect by noting that several officers received overtime from the ATEU from 2011 to 2016,
see Robinson Decl. ¶ 31, but his reasoning does not pertain to the portion of the complaint MPD
seeks to have dismissed. Defendant’s argument applies only to Mr. Robinson’s claim that he
was reassigned to MPD’s Special Events Branch, not to his claim for loss of overtime. See
Def.’s Mot. Summ. J. ¶ 2, 11. In fact, in failing to directly address the transfer claim in his
opposition, Mr. Robinson appears to have implicitly abandoned it. Because Mr. Robinson has
not shown that other officers remained detailed to the ATEU on a full-time basis—or that the
12
civilianization of the ATEU was otherwise pretextual—the Court will dismiss Mr. Robinson’s
claims of retaliation and discrimination insofar as they seek recovery for his reassignment from
the ATEU to the Special Events Branch or his subsequent requests to be transferred back to the
ATEU. The Court now proceeds to address the issue that seems to be at the core of this case—
the allegedly discriminatory denials of his request for overtime in the ATEU.
B. The Denial of Overtime in the ATEU
Mr. Robinson also claims that he suffered discrimination and retaliation when his
requests for overtime within the ATEU were denied. Compl. ¶ 5. MPD argues that, under the
circumstances here, the mere denial of overtime does not constitute an adverse employment
action. See Def.’s Mot. Summ. J. at 9–10. But MPD’s argument comes up short.
The standards for establishing adverse employment actions in discrimination cases and
retaliation cases are not identical. Jones v. Castro, 168 F. Supp. 3d 169, 178 (D.D.C. 2016). In
discrimination cases, “[a]n adverse employment action is ‘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.’” Jones, 168 F. Supp. 3d at
174 (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009)). In contrast, “[f]or
employment actions that do not obviously result in a significant change in employment status[,]
such as giving a poor performance evaluation, reassigning office space and equipment . . .[,] an
employee must go the further step of demonstrating how the decision nonetheless caused such an
objectively tangible harm.” Id. at 178 (quoting Douglas, 559 F.3d at 553).
A retaliatory employment action is materially adverse if “it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks and citation
13
omitted); see also Segal v. Harris Teeter Supermarkets, Inc., No. 15-cv-1496, 2016 WL
7223273, at *7 (D.D.C. Dec. 13, 2016). But “not everything that makes an employee unhappy is
an actionable adverse action”—“petty slights” and “minor annoyances” are not actionable under
Title VII’s retaliation provisions. Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013)
(quoting Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001); and then quoting Burlington N.
& Santa Fe Ry. Co., 548 U.S. at 68).
In limited circumstances, “a lost opportunity to earn overtime pay may amount to an
adverse employment action.” Caul v. U.S. Capitol Police, No. 15-cv-1243 (BAH), 2016 WL
2962194, at *10 (D.D.C. May 19, 2016). Although overtime comes with “a tangible monetary
advantage,” it “is not universally regarded as desirable.” Id. at *9. Indeed, requiring an
employee to work paid overtime when he does not want to can constitute an adverse employment
action. See Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 77–78 (D.D.C. 2002). Thus,
determining whether the loss of overtime constitutes an adverse employment action is a fact-
specific inquiry. Caul, 2016 WL 2962194, at *10. In part because it shows that the employer
viewed overtime opportunities favorably, “a lost opportunity for overtime . . . is only an adverse
employment action where the trier of fact could reasonably conclude that plaintiff in the past
sought opportunities for overtime pay or it was otherwise known to defendant that plaintiff
desired such opportunities.” Bell v. Gonzales, 398 F. Supp. 2d 78, 97 (D.D.C. 2005).
Additionally, the plaintiff must show that the loss of overtime fundamentally altered the terms,
conditions, or privileges of the plaintiff’s employment. See id. (citing Dickerson, 238 F. Supp.
2d 66, 76–77). Taken together, “[a]lleged denials of overtime opportunities may suffice to
support a discrimination or retaliation claim when those denials are associated with a
fundamental alteration in the conditions of employment . . . and the plaintiff demonstrates that
14
‘[he] in the past sought opportunities for overtime pay or it was otherwise known to defendant
that plaintiff desired such opportunities.’” Caul, 2016 WL 2962194, at *9 (quoting Sims v.
District of Columbia, 33 F. Supp. 3d 1, 7 (D.D.C. 2014)).
A reasonable juror could find that the consistent denial of Mr. Robinson’s requests for
overtime in the ATEU constituted discriminatory and retaliatory adverse employment actions.
Mr. Robinson repeatedly requested that he be allowed to work overtime in the ATEU. See
Robinson Decl. ¶ 18; Sutter Decl. ¶ 6; see also Robinson Dep. at 31. MPD does not dispute this
claim. Thus, a jury could reasonably find that he sought overtime opportunities and that his
employers were aware of his desire to work overtime. See Bell, 398 F. Supp. 2d at 97.
Additionally, given Mr. Robinson’s unrebutted claim that he had a history of working 1,500 to
2,000 hours of overtime annually—compared to the 525 he worked when he was reassigned—a
reasonable jury could also find that the denials of his requests fundamentally altered the nature
and privileges of his employment.5 See Robinson Decl. ¶¶ 29–30; Caul, 2016 WL 2962194, at
*9. By the same logic, a reasonable jury could find that the loss of up to 1,500 hours of overtime
5
MPD notes that 525 hours of overtime is actually more than the average number of
overtime hours logged by sworn officers in the ATEU Overtime Program during the time period
at issue. See Def.’s Mot. Summ. J. at 10; Mathews Decl. ¶ 4. As a result, MPD argues, Mr.
Robinson cannot show that he suffered a tangible harm. See Def.’s Mot. Summ. J. But Mr.
Robinson responds that he suffered tangible harm regardless of the average number of overtime
hours in the unit, because the denial of his requests for overtime deprived him of pay for his
usual 1,500–2,000 hours of overtime he logged per year while in the ATEU program. See
Robinson Decl. ¶ 30. The fact that officers in the ATEU logged, on average, less than Mr.
Robinson, is irrelevant to whether he suffered a tangible harm. Moreover, Defendant’s own
exhibit shows that Mr. Robinson’s expectation that he could have logged that many hours may
be reasonable; several officers logged over 1,000 hours in the ATEU program, with one logging
over 1,950 hours. See Mathews Decl. at 4–10. Thus, whether Mr. Robinson suffered an adverse
employment action and/or a materially adverse employment action is a question for the finder of
fact. See Ortiz-Diaz v. United States Dep’t of Hous. & Urban Dev., 831 F.3d 488, 492 n.6 (D.C.
Cir. 2016).
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pay6 “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” See Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68 (internal quotation marks
omitted).
Thus, under Caul, a reasonable juror could find that Mr. Robinson suffered a
discriminatory and retaliatory adverse employment action. Mr. Robinson’s supervisors knew
that he wanted to work overtime but did not allow him to do so. A jury could reasonably find
that MPD’s decision significantly changed the nature of Mr. Robinson’s employment, because he
lost the benefits—financial, professional, and otherwise—that come along with working in the
ATEU Overtime Program. See Caul, 2016 WL 2962194, at *9; Jones, 168 F. Supp. 3d at 174.
Moreover, MPD has not endeavored to justify these denials based on non-discriminatory/non-
retaliatory reasons. As a result, the Court denies Defendant’s motion for summary judgment
with respect to Plaintiff’s claim that he was discriminatorily and retaliatorily denied overtime
opportunities in the ATEU.
6
As Plaintiff points out, the undisputed evidence shows that he would have been able to
earn $76 per hour in the ATEU had he been able to work overtime. Robinson Decl. ¶ 30. Based
on the number of hours that he would have worked, Mr. Robinson’s assertion that he could have
made $80,000 more per year had he been allowed to work overtime in the ATEU is reasonable.
See Robinson Dep. at 43. Courts in this circuit have found far smaller decreases in income
actionable under Title VII. See Ginger v. District of Columbia, 527 F.3d 1340, 1343–44 (D.C.
Cir. 2008) (holding that “[a] nontrivial loss of pay is ‘an objectively tangible harm’”); Russell v.
Principi, 257 F.3d 815, 818–19 (D.C. Cir. 2001) (holding that a performance evaluation that
resulted in “loss of a bonus that is worth hundreds of dollars” was an adverse employment
action); Walker v. Johnson, No. 11-cv-816, 2013 WL 12061037, at *7 (D.D.C. Dec. 20, 2013)
(suggesting that the loss of two days’ pay could constitute a “nontrivial loss of pay,” which
would be an adverse employment action), aff’d, 798 F.3d 1085 (D.C. Cir. 2015).
16
V. CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Defendant’s motion
for summary judgment. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: August 1, 2017 RUDOLPH CONTRERAS
United States District Judge
17