Nessar v. District of Columbia , 962 F. Supp. 2d 234 ( 2013 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ALI NESSAR,
    Plaintiff,
    v.                                          Civil Action No. 12-627 (JEB)
    DISTRICT OF COLUMBIA,
    Defendant.
    MEMORANDUM OPINION
    For almost twenty years, Plaintiff Ali Nessar was employed as a correctional officer with
    the District of Columbia Department of Corrections. In October 2008, however, he claims that
    he was forced to resign as a result of discrimination based on his race, religion, and national
    origin. Having filed an administrative complaint and having been issued a right-to-sue letter,
    Plaintiff filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
    seq., alleging disparate treatment (Count I), hostile work environment (Count II), and retaliation
    (Count III). The District now moves for summary judgment, challenging both the timeliness of
    the suit and its merits. Because the Court finds that the non-promotion claims in Count I are
    untimely and that Plaintiff has failed to raise a genuine issue of material fact as to any of his
    remaining claims, it will grant Defendant’s Motion.
    I.     Background
    For the most part, the evidence in this case is undisputed. As Nessar is the nonmoving
    party, the Court will, in discussing the state of the record, credit his evidence and draw justifiable
    inferences in his favor.
    1
    Plaintiff began his lengthy career as a correctional officer in the District of Columbia
    when he was hired by the Department of Corrections in March of 1988. See Opp., Exh. 1
    (10/25/12 Deposition of Ali Nessar (Nessar Dep. I)) at 15:7-17. Over the next ten years, Nessar
    passed numerous tests and was promoted to Corporal, Sergeant, and ultimately Lieutenant. See
    id. at 17:6-18:12. In 2001, however, he was released from his position in what the District
    claimed was a reduction in force. See id. at 25:11-19. Nessar was the only employee with the
    rank of Lieutenant who was released during the reduction, and other employees with similar rank
    who had been at the Department for less time remained. Nessar filed a lawsuit in this District in
    2003 stemming from the discharge, which was later dismissed for want of prosecution. See id. at
    26:1-13; Opp., Exh. 3 (11/30/12 Deposition of Ali Nessar (Nessar Dep. II)) at 6:5-9; Opp., Exh.
    2 (Pl.’s Response to Interrogatories), ¶ 9. Plaintiff was re-hired by the District in 2003 and
    remained at the rank of Lieutenant until he resigned in 2008. See Nessar Dep. I at 34:3-6, 18:15-
    19:14; Nessar Dep. II at 6:11-12.
    During both periods of employment with the District, Nessar claims that he was subjected
    to discrimination on the basis of his race (non-black), religion (Muslim), and national origin
    (Afghani). See Nessar Dep. II at 5:1-9, 6:13-17. This discrimination, he contends, grew worse
    following the terrorist attacks of September 11, 2001. See Nessar Dep. I at 79:11-22. From
    2003 to 2008, Nessar contends he was passed over for numerous promotions that ultimately went
    to less-qualified employees who were black, Christian, and native-born. See Nessar Dep. II at
    10:4-12:17. The specifics of what these promotions were and when they were available will be
    discussed in greater detail below. See Section III.A.1, infra.
    In addition to being passed over for promotions, Nessar maintains that:
    •   Supervisors “would attempt to find false reasons to
    reprimand [Nessar] and [he] was verbally abused with
    2
    threats to terminate [his] employment,” see Pl.’s Resp. to
    Interrogs. at 6;
    •   He was “made to feel very uncomfortable and unwanted,”
    see id.;
    •   He “was assigned to more difficult zones (special handling
    units), which [he] often had to work alone to supervise . . .
    while other people in the same positions would often
    receive additional help,” see id.;
    •   He was “ignored” and “treat[ed] . . . badly,” see id. at 7;
    and
    •   He was “talked to by others, even if the actual words were
    not threats or harassment, the tone conveyed something
    discriminatory.”
    See id. at 8.
    Two events in October 2008 punctuate the ongoing abuses Nessar experienced. First,
    while speaking to his superior (and friend) Captain Murray Jones, Nessar complained that the
    Department “give[s] their own relatives and friends in the same race and culture and color and
    nationality [promotions]. I don’t think I don’t have no future in this department.” See Nessar
    Dep. II at 50:15-18; see also id. at 34:14-17. Several minutes later, Jones passed along this
    comment to Captain Nora Talley, and “both of them laughed.” See id. at 51:2. Nessar
    understood their laughter as an acknowledgment by his superiors that he had no future there. See
    id. at 51:1-3. Second, later that month Nessar’s supervisors threatened to fire him for refusing to
    sign an incident report related to an issue with an inmate. See Nessar Dep. I at 28:10-32:15;
    Nessar Dep. II at 25:10-27:13. According to Nessar, his supervisors concocted this dispute as
    part of a plan to oust him from the Department. See id. As a result of these incidents, Nessar
    tendered his resignation, effective October 29, 2008. See Opp., Exh. 5 (Resignation Letter).
    3
    On April 24, 2009, Nessar filed a charge of discrimination with the D.C. Office of
    Human Rights, which was cross-filed with the Equal Employment Opportunity Commission.
    See Opp., Exh. 4 (Charge of Discrimination). The Charge alleged that he had “been subjected to
    a disparate treatment and retaliated against on the bases of race (Asian), religion (Muslim) and
    national origin (‘Persian’)” from June 30 through November 29, 2008. See id. at 1. He received
    a right-to-sue letter on January 24, 2012, and subsequently filed this suit on April 20. See Opp.,
    Exh. 6 (Right-to-Sue Letter).
    II.    Legal Standard
    Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 247-48 (1986); Holcomb v.
    Powell, 
    433 F.3d 889
    , 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
    substantive outcome of the litigation. See Liberty Lobby, 
    477 U.S. at 248
    ; Holcomb, 
    433 F.3d at 895
    . A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
    for the nonmoving party. See Scott v. Harris, 
    550 U.S. 372
    , 380 (2007); Liberty Lobby, 
    477 U.S. at 248
    ; Holcomb, 
    433 F.3d at 895
    . “A party asserting that a fact cannot be or is genuinely
    disputed must support the assertion” by “citing to particular parts of materials in the record” or
    “showing that the materials cited do not establish the absence or presence of a genuine dispute,
    or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
    56(c)(1).
    When a motion for summary judgment is under consideration, “[t]he evidence of the non-
    movant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor.”
    Liberty Lobby, 
    477 U.S. at 255
    ; see also Mastro v. PEPCO, 
    447 F.3d 843
    , 850 (D.C. Cir. 2006);
    4
    Aka v. Wash. Hosp. Ctr., 
    156 F.3d 1284
    , 1288 (D.C. Cir. 1998) (en banc). On a motion for
    summary judgment, the Court must “eschew making credibility determinations or weighing the
    evidence.” Czekalski v. Peters, 
    475 F.3d 360
    , 363 (D.C. Cir. 2007).
    The nonmoving party’s opposition, however, must consist of more than mere
    unsupported allegations or denials and must be supported by affidavits, declarations, or other
    competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
    See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 324 (1986). The nonmovant is
    required to provide evidence that would permit a reasonable jury to find in its favor. Laningham
    v. Navy, 
    813 F.2d 1236
    , 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is “merely
    colorable” or “not significantly probative,” summary judgment may be granted. Liberty Lobby,
    
    477 U.S. at 249-50
    .
    III.   Analysis
    In moving for summary judgment, the District of Columbia contends that all three of
    Plaintiff’s counts are infirm. The Court agrees.
    A. Count I: Disparate Treatment
    Plaintiff’s disparate-treatment claim rests on two distinct types of discrimination: being
    passed over for promotions and being constructively discharged. See Compl, ¶¶ 22-26. Because
    the facts and defenses relevant to each are unrelated, the Court will discuss them separately.
    1. Failure to Promote
    Plaintiff contends that “[d]uring his 20 year tenure” with the District, he was
    discriminated against because Defendant failed to promote him, instead promoting “others with
    lesser qualifications and less seniority that were not members of his protected group.” See 
    id.,
     ¶
    5
    7. Any analysis of Plaintiff’s failure-to-promote claims must be divided temporally between acts
    before June 9, 2008, and acts after.
    a. Promotions before June 9, 2008
    Defendant first maintains that any claims stemming from promotions that occurred before
    June 9, 2008, are time barred because they involve discrete acts outside of the 300-day window
    from the date Plaintiff filed his charge of discrimination (April 24, 2009). See Mot. at 6-7 (citing
    42 U.S.C. § 2000e-5(e)(1)); Reply at ECF pp. 1-4. Plaintiff concedes that such claims would be
    untimely under U.S.C. § 2000e-5(e)(1), but contends that the timeliness issue can be cured
    through application of the continuing-violations doctrine. See Opp. at 8.
    This doctrine, however, does not apply in a failure-to-promote case. The Supreme Court
    made clear in Nat’l R.R. Passenger Corp. v. Morgan, 
    536 U.S. 101
     (2002), that courts should not
    treat individual incidents of alleged discrimination as part of a discriminatory pattern for
    exhaustion purposes: “Discrete acts such as termination, failure to promote, denial of transfer, or
    refusal to hire are easy to identify. Each incident of discrimination . . . constitutes a separate
    actionable ‘unlawful employment practice.”’ 
    Id. at 114
     (emphasis added). Unlike hostile work
    environments, for example, which may involve continuing violations, failure to promote does not
    trigger this doctrine. See Nguyen v. Mabus, 
    895 F. Supp. 2d 158
    , 172-73 (D.D.C. 2012)
    (rejecting application of continuing-violation theory in failure-to-promote context). Plaintiff’s
    failure-to-promote claims for positions pre-dating June 9, 2008, are thus time barred.
    b. Promotions after June 9, 2008
    Turning next to the later claims, the Court must first determine whether any promotions
    were actually available after June 9. See Yarber-Butler v. Billington, 
    53 Fed. Appx. 120
    , 120
    (D.C. Cir. 2002) (per curiam) (a failure-to-promote claim will fail “if there is no open position”
    6
    to be had); see also 45B Am. Jur. 2d Job Discrim. § 788 (2013) (“In order to prove
    discrimination in the making of a promotion decision, there must have been a position open.”).
    Having scoured the record, the Court can find no evidence that the District promoted anyone
    from Lieutenant to Captain during this period.
    In support of his contention that Defendant promoted numerous, less-qualified
    individuals over him, Plaintiff directs the Court to his deposition testimony. See Opp. at 10.
    None of the promotions he points to, however, occurred between June 9, 2008, and Plaintiff’s
    resignation that October. See Nessar Dep. I at 64:22-65:1 (Harper promoted from Captain to
    Major in 2003), 48:5-49:21 (Nelson promoted to Captain in 2007); 51:20-52:18 (McDonald
    Haynes promoted to Captain in 2007), 54:10-55:3 (Bishop promoted to Captain in 2007), 59:7-
    60:10 (Gray promoted to Captain in 2007), 60:18-61:19 (Talley promoted to Captain before
    2007), 65:5-15 (Watford promoted to Captain in 2007), and 73:5-10 (Kolley promoted to
    Captain in 2003).
    Plaintiff had an opportunity through discovery to develop factual support for the
    allegations in his Complaint, yet he has failed to do so. With no evidence that any positions were
    filled in the June - October 2008 time-frame, no genuine issue of material fact remains to justify
    a denial of summary judgment with respect to the failure-to-promote claims.
    2. Constructive Discharge
    Plaintiff also alleges a constructive-discharge claim in Count I. See Compl., ¶ 18 (“After
    being subjected to the consistent discrimination, hostile work environment, retaliation and
    disparate treatment, Plaintiff realized that after he was told he had no future there, that he had no
    choice but to tender his resignation on October 28, 2008, knowing that he could not be moved up
    in the ranks, advance his career, or make more money if he stayed.”).
    7
    “Under the constructive discharge doctrine, an employee’s reasonable decision to resign
    because of unendurable working conditions is assimilated to a formal discharge for remedial
    purposes. The inquiry is objective: Did working conditions become so intolerable that a
    reasonable person in the employee’s position would have felt compelled to resign?” Pa. State
    Police v. Suders, 
    542 U.S. 129
    , 141 (2004) (citation omitted); see also Aliotta v. Bair, 
    614 F.3d 556
    , 566 (D.C. Cir. 2010) (“The test for constructive discharge is an objective one: whether a
    reasonable person in the employee’s position would have felt compelled to resign under the
    circumstances.”). A finding of intentional discrimination, furthermore, is a necessary predicate
    for a Title VII claim based on constructive discharge. Bishopp v. Dist. of Columbia, 
    788 F.2d 781
    , 790 (D.C. Cir. 1986); see also Peters v. Dist. of Columbia, 
    873 F. Supp. 2d 158
    , 199
    (D.D.C. 2012) (discussing necessary causal connection between employees’ resignations and
    employer’s discriminatory acts).
    While the allegations in the Complaint attempt to lump together all acts of discrimination
    as a basis for the constructive discharge, the Court will focus its inquiry here on the two events
    of October 2008, as Plaintiff unequivocally testified that he resigned as a result of those
    incidents. See Nessar Dep. I at 37:14-18. The first involves conduct that was not so intolerable
    that a reasonable person would have felt compelled to resign. The second could support a
    constructive-discharge claim, yet it also fails as it involves no discriminatory animus.
    First, as related earlier, while speaking to his friend and superior Captain Jones, Nessar
    complained that the Department “give[s] their own relatives and friends in the same race and
    culture and color and nationality [promotions]. I don’t think I don’t have no future in this
    department.” See Nessar Dep. II at 50:15-18; see also id. at 34:14-17. Several minutes later,
    Jones mentioned this comment to Captain Talley, and “both of them laughed.” See id. at 51:2.
    8
    Nessar believed their laughter demonstrated he was unlikely to be promoted at the Department of
    Corrections. See id. at 51:1-3. A constructive-discharge claim cannot be based on evidence as
    flimsy as the mere laughter of superiors in a seemingly friendly conversation. See, e.g., Quarless
    v. Bronx Lebanon Hosp. Ctr., 
    75 Fed. Appx. 846
    , 848 (2d Cir. 2003) (complaints of
    mistreatment by colleagues insufficient to support constructive-discharge claim); Sanchez v.
    Gen. Growth Mgmt. Co., No. 96-21070, 
    1998 WL 44520
    , at *2 (5th Cir. Jan. 23, 1998)
    (unpublished) (“considerable unpleasantness” between plaintiff and employer, including being
    “verbally attacked, belittled and ‘nick-pick[ed]’” could not support constructive-discharge
    claim).
    The second incident occurred shortly after this and involved a dispute Nessar had with his
    superiors regarding his refusal to sign paperwork related to an incident with an inmate. See
    Nessar Dep. I at 36:14-37:18. Nessar refused to sign the forms because he felt that his superiors
    were “trying to find one way or the other to get rid of [him].” Nessar Dep. II at 26:12-20. Major
    Harper told Nessar that “if he [refused to sign] it next time,” he’d be written up and be fired. See
    Nessar Dep. I at 37:4-13 (“Major Harper . . . said next time write Lieutenant Nessar [up], I’m
    firing him and taking money out of [his] pocket.”).
    While a threatened termination may theoretically support a wrongful-discharge claim,
    see, e.g., Williams v. Johnson, 
    870 F. Supp. 2d 158
    , 166 (D.D.C. 2012), there is no evidence here
    of any discriminatory bias on the part of Major Harper, who was not a party to the earlier
    discussion with Jones and Talley. Instead, Harper’s threat to fire Nessar was made in response to
    his refusal to comply with a directive from his superior. See Nessar Dep. I at 37:4-13. While
    Nessar attempts to link the threat to his complaints about being passed over for promotions –
    9
    speculating that this was part of a bigger scheme to oust him – there is no evidence connecting
    the two.
    Because Plaintiff has failed to provide any evidence to suggest that Harper’s threat of
    termination was discriminatory – i.e., that it was based on his race, religion, or national origin –
    Defendant is entitled to judgment on this part of Count I as well.
    B. Count II: Hostile Work Environment
    In Count II, Plaintiff alleges that he was subjected to a hostile work environment in which
    he was “constantly harassed with reprimands based on false allegations,” “constantly threatened
    to be terminated,” and “told he had no future with Defendant . . . [and] would never be
    promoted.” See Compl., ¶¶ 28-31. Defendant contends that there is no evidence that the
    complained-of conduct was sufficiently egregious to support his claim. See Reply at 8; see also
    Mot. at 11-12. The Court agrees and will grant Defendant’s Motion on this count.
    To prevail on a hostile-work-environment claim, “a plaintiff must show that his employer
    subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
    pervasive to alter the conditions of the victim’s employment and create an abusive working
    environment.’” Baloch v. Kempthorne, 
    550 F.3d 1191
    , 1201 (D.C. Cir. 2008) (quoting Harris v.
    Forklift Sys., Inc., 
    510 U.S. 17
    , 21, 114 (1993)). “To determine whether a hostile work
    environment exists, the court looks to the totality of the circumstances, including the frequency
    of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an
    employee’s work performance.” 
    Id.
     (citing Faragher v. City of Boca Raton, 
    524 U.S. 775
    , 787–
    88 (1998)).
    “The Supreme Court has made it clear that ‘conduct must be extreme to amount to a
    change in the terms and conditions of employment.’” George v. Leavitt, 
    407 F.3d 405
    , 416
    10
    (D.C. Cir. 2005) (quoting Faragher, 
    524 U.S. at 788
    ). By adhering to these standards, the Court
    thereby “ensure[s] that Title VII does not become a general civility code” that involves courts in
    policing “the ordinary tribulations of the workplace.” Faragher, 
    524 U.S. at 788
     (citation and
    internal quotation marks omitted). Although it did not apply to the failure-to-promote claim, the
    continuing-violation doctrine does permit the Court to look at conduct that took place outside of
    the statute of limitations period for the hostile-work environment claim. See Keohane v. United
    States, 
    669 F.3d 325
    , 329 (D.C. Cir. 2012); see also Earle v. Dist. of Columbia, 
    707 F.3d 299
    ,
    306 (D.C. Cir. 2012).
    Plaintiff bases his hostile-work-environment count on the following purported evidence:
    •   “[He] was continuously assigned to very difficult and dangerous
    work zones without backup, while other Lieutenants received
    much easier assignments,” see Opp. at 20 (no citation to record);
    •   “[H]e was verbally abused with threats to be reprimanded and
    terminated, and he was treated differently than others in the way he
    was talked to and reacted to,” see 
    id.
     (citing Exh. 2 (Pl.’s Response
    to Def.’s Interrogatories), ¶¶ 5-8, 14);
    •   “He was made to feel very uncomfortable and unwanted and was
    in the environment where he didn’t feel safe physically or
    emotionally, often being ignored. It was clear by the way people
    looked at him, talked to him, and reacted to him that he was being
    treated differently,” see 
    id.
     (citing Pl.’s Response to Def.’s
    Interrogatories, ¶¶ 5-8, 14);
    •   “[He] was continuously denied any opportunity for a promotion,
    while others were promoted. Furthermore, Plaintiff was yelled at,
    laughed at, and humiliated,” 
    id.
     (citing Nessar Dep. I at 31:7-22;
    Nessar Dep. II at 32:7-11, 50:14-51:3);
    •   “[He] started realizing that his superiors were trying to set him up
    to fire him,” 
    id.
     (citing Nessar Dep. II at 26:12-27:13, 53:7-54:6);
    and
    •   “[His] working conditions became so intolerable that he was
    forced to resign.”
    11
    
    Id.
     at 20-21 (citing Nessar Dep. II at 37:20-38:15, 40:4-9).
    The Court need not decide whether such cumulative evidence could ever substantiate a
    hostile-work-environment claim, however, because the record simply does not support Plaintiff’s
    characterization of the facts. For instance, there is no evidence that Nessar was assigned to
    “difficult and dangerous work zones.” See Opp. at 20 (no citation to record). Although Nessar
    describes in detail his frustrations with his assignment to a specific unit – and his feeling that his
    requests for backup at times would be ignored – the difficulties he describes are consistent with
    the challenges any correctional officer faces in handling inmates. See Nessar Dep. I at 41:16-
    46:1, 81:10-82:18; see also Nessar Dep. II at 23:13-25:5 (acknowledging that assignment to
    specific complained-of unit was part of normal shift change); Pl.’s Response to Def.’s
    Interrogatories, ¶¶ 5, 7, 8, 11.
    Similarly, while he contends he was “yelled at, laughed at, and humiliated,” see Opp. at
    20 (citing Nessar Dep. I at 31:7-22; Nessar Dep. II at 32:7-11, 50:14-51:3), the record does not
    include facts that support these allegations either. See, e.g., Nessar Dep. II at 32:7-11
    (describing incident of humiliation involving a comment that Plaintiff was “‘looking for an easy
    job. He hiring detail.’”). Conclusory allegations that conditions “became so intolerable that he
    was forced to resign” are also insufficient to defeat summary judgment, as Plaintiff must
    substantiate such allegations with actual facts. See Savage v. Scales, 
    310 F. Supp. 2d 122
    , 132
    (D.D.C. 2004) (discussing Fed. R. Civ. P. 56(e) and its requirement that party opposing summary
    judgment set forth specific facts and not rely on “the bald allegations contained in its complaint”)
    (internal citations omitted); see also Springer v. Durflinger, 
    518 F.3d 479
    , 484 (7th Cir. 2008)
    (“[S]ummary judgment is the put up or shut up moment in a lawsuit, when a party must show
    12
    what evidence it has that would convince a trier of fact to accept its version of the events.”)
    (internal quotation marks omitted).
    The record here simply does not support Plaintiff’s contentions that he was subjected to
    conduct “sufficiently severe or pervasive to alter the conditions of [his] employment and create
    an abusive working environment.” Harris, 
    510 U.S. at 21
     (quoting Meritor Sav. Bank, FSB v.
    Vinson, 
    477 U.S. 57
    , 67 (1986)) (internal quotation marks omitted). The indignities that are
    present in the record here come nowhere close to this standard. See, e.g., George v. Leavitt, 
    407 F.3d 405
    , 408, 416-17 (D.C. Cir. 2005) (statements by three employees over a six-month period
    that plaintiff should “go back where she came from,” separate acts of yelling, and hostility did
    not rise to the level of severity necessary to find a hostile work environment); Badibanga v.
    Howard Univ. Hosp., 
    679 F. Supp. 2d 99
    , 104 (D.D.C. 2010) (dismissing hostile-work-
    environment claim where plaintiff was placed on administrative leave due to a false accusation,
    his accent was criticized, he was told he was easy to replace with an American, and he was told
    that his supervisor would not hire other Africans); Singh v. U.S. House of Representatives, 
    300 F. Supp. 2d 48
    , 54-57 (D.D.C. 2004) (employer’s treatment of employee did not amount to
    hostile work environment where employee was humiliated during meetings, screamed at and told
    to “shut up and sit down,” and treated in manner that was “constantly hostile and hypercritical”);
    Bryant v. Brownlee, 
    265 F. Supp. 2d 52
    , 64 (D.D.C. 2003) (no hostile work environment where
    co-worker referred to plaintiff as “nigger” and another co-worker said “black women were at the
    bottom. The white men were first, the white women were right up there with them.”). The Court
    will thus grant Defendant’s Motion as to Count II.
    13
    C. Count III: Retaliation
    Plaintiff last alleges that he was retaliated against for complaining to his supervisors
    about discriminatory promotions practices. See Compl., ¶¶ 28-38; see also Opp. at 17-19.
    Defendant maintains that this count is deficient because “plaintiff cannot meet his burden in
    establishing that any claimed protected activity was the but-for cause of his alleged adverse
    action.” Reply at 6. The Court believes Plaintiff cannot prevail here either, but for different
    reasons.
    Title VII makes it illegal for an employer to discriminate against an employee because
    the employee “opposed any practice made an unlawful employment practice by this subchapter,
    or because he has made a charge . . . or participated in any manner in an investigation,
    proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To bring such a claim,
    Plaintiff must allege that he engaged in a statutorily protected activity, that his employer took an
    adverse personnel action against him, and that a causal connection exists between the two.
    Carney v. Am. Univ., 
    151 F.3d 1090
    , 1095 (D.C. Cir. 1998).
    Plaintiff here contends that he was
    retaliated against for pointing out that he was being discriminated
    against in the promotions process and being treated differently than
    others. This happened most prominently in Mid-October, which
    was met with laughter and ridicule. Nessar Dep. II at 50:19-51:3.
    A few minutes after Plaintiff complained, Captain Jones conveyed
    Plaintiff’s concern that he had no future at the Department to
    Captain Talley, and they both laughed right in front of the Plaintiff.
    
    Id.
     At that point, Plaintiff went so far as to threaten to expose the
    Department of Corrections for their discriminatory practices.
    Opp. at 18 (citing Exh. 4 (Letter of Determination) at 6). Such an argument satisfies neither of
    the first two prongs of the retaliation test.
    14
    As to the first, the record seems clear that Nessar’s statements were not an actual
    complaint, but rather a friendly, if perhaps somewhat edged, exchange with a colleague. Indeed,
    in Nessar’s deposition, he repeatedly denied making any complaints to his superiors. See Nessar
    Dep. I at 32:7-8 (“I didn’t talk to anybody because I couldn’t bring [being discriminated against
    in the promotions process] up”), 32:18 (responding that he never discussed his future with his
    superiors).
    Even if this were protected activity, his claim would nonetheless fail because he suffered
    no adverse action. As the Court found in Section III.A.2, supra, Plaintiff was not constructively
    discharged, nor has he contended that any other adverse action was taken against him. Indeed,
    this Court has previously explained:
    It is not enough for Plaintiff to simply testify that he was retaliated
    against. In this Circuit, “‘there is no rule of law that the testimony
    of a discrimination plaintiff, standing alone, can never make out a
    case . . . that could withstand a summary judgment motion.’”
    Desmond v. Mukasey, 
    530 F.3d 944
    , 964 (D.C. Cir. 2008)
    (quoting George v. Leavitt, 
    407 F.3d 405
    , 414 (D.C. Cir. 2005)).
    That said, “Although, as a rule, statements made by the party
    opposing a motion for summary judgment must be accepted as true
    for the purpose of ruling on that motion, some statements are so
    conclusory as to come within an exception to that rule.” Greene v.
    Dalton, 
    164 F.3d 671
    , 675 (D.C. Cir. 1999). The problem for
    Plaintiff, then, is not that he is the one asserting that it is “obvious”
    he was retaliated against, but that “[a]bsent supporting facts – and
    [he has] provided none – a jury would be in no position to assess
    [his] claim” that the Agency had in fact retaliated against him. 
    Id.
    “Accepting such conclusory allegations as true, therefore, would
    defeat the central purpose of the summary judgment device, which
    is to weed out those cases insufficiently meritorious to warrant the
    expense of a jury trial.” Id.; see also Harding v. Gray, 
    9 F.3d 150
    ,
    154 (D.C. Cir. 1993) (discrimination plaintiff asserting superior
    qualifications “must support his allegations . . . with facts in the
    record; a mere unsubstantiated allegation of superior qualifications
    creates no genuine issue of fact and will not withstand summary
    judgment”).
    Alford v. Def. Intelligence Agency, 
    908 F. Supp. 2d 164
    , 173-174 (D.D.C. 2012).
    15
    Because there is no evidence that Plaintiff either engaged in protected activity or suffered
    an adverse action, the Court will grant Defendant’s Motion on this Count.
    IV.    Conclusion
    For the aforementioned reasons, the Court will grant Defendant’s Motion for Summary
    Judgment. A separate Order consistent with this Opinion will be issued this day.
    /s/ James E. Boasberg
    JAMES E. BOASBERG
    United States District Judge
    Date: August 27, 2013
    16
    

Document Info

Docket Number: Civil Action No. 2012-0627

Citation Numbers: 962 F. Supp. 2d 234, 2013 U.S. Dist. LEXIS 121403, 2013 WL 4516397

Judges: Judge James E. Boasberg

Filed Date: 8/27/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (23)

Badibanga v. Howard University Hospital , 679 F. Supp. 2d 99 ( 2010 )

Etim U. Aka v. Washington Hospital Center , 156 F.3d 1284 ( 1998 )

Scott v. Harris , 127 S. Ct. 1769 ( 2007 )

Harris v. Forklift Systems, Inc. , 114 S. Ct. 367 ( 1993 )

Casper Eugene Harding v. Vincent Gray , 9 F.3d 150 ( 1993 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

Meritor Savings Bank, FSB v. Vinson , 106 S. Ct. 2399 ( 1986 )

Savage v. Scales , 310 F. Supp. 2d 122 ( 2004 )

Carney, Darion M. v. Amer Univ , 151 F.3d 1090 ( 1998 )

Mastro, Brian A. v. Potomac Elec Power , 447 F.3d 843 ( 2006 )

Singh v. United States House of Representatives, Committee ... , 300 F. Supp. 2d 48 ( 2004 )

Holcomb, Christine v. Powell, Donald , 433 F.3d 889 ( 2006 )

Faragher v. City of Boca Raton , 118 S. Ct. 2275 ( 1998 )

Baloch v. Kempthorne , 550 F.3d 1191 ( 2008 )

Ross J. Laningham v. United States Navy , 813 F.2d 1236 ( 1987 )

George, Diane v. Leavitt, Michael , 407 F.3d 405 ( 2005 )

Bryant v. Brownlee , 265 F. Supp. 2d 52 ( 2003 )

Desmond v. Mukasey , 530 F.3d 944 ( 2008 )

Springer v. Durflinger , 518 F.3d 479 ( 2008 )

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