Cochise v. Norton ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RENE COCHISE, )
)
Plaintiff, )
)
v. )
)
KEN SALAZAR, Secretary, ) Civil Case No. 06-980 (RJL)
Department of the Interior, l )
)
Defendant. )
)
~
MEMORANDUM OPINION
(March a-,
2009) [#13, 14]
Plaintiff Rene Cochise ("Cochise") sued defendant Gale Norton, then-Secretary
of the Department of the Interior, in her official capacity, alleging three separate
claims under Title VII of the Civil Rights Act: hostile work environment, retaliation,
and discrimination based on race. Plaintiff and defendant filed cross-motions for
summary judgment. Because there is no genuine issue of material fact and defendant
is entitled to judgment as a matter of law, defendant's motion for summary judgment
is GRANTED, and plaintiffs motion for partial summary judgment is DENIED.
BACKGROUND
Plaintiff, a Native American, is a policy analyst with the United States
Department of the Interior. Compi. `` 3, 11. She has been employed by the agency's
Bureau of Reclamation in the Native American Affairs Office since 1997, Compi. ~ 3,
I Pursuant to Federal Rule of Civil Procedure 25( d), if a public officer named as a party to an action in his
official capacity ceases to hold office, the court will automatically substitute that officer's successor.
Accordingly, the Court substitutes Secretary of the Interior Ken Salazar for former Secretary Gale Norton.
and has not been promoted to a OS-14 pay grade level during that time. PI. Mot. for
Partial Summ. J. at 3.
Conflict erupted in the workplace between plaintiff and her supervisor, Chris
Kenney, shortly after plaintiff joined the Bureau of Reclamation. In June 1999,
plaintiff and Mr. Kenney met with an Equal Employment Opportunity ("EEO")
mediator to discuss several issues, including plaintiffs allegations of a hostile work
environment, an inappropriate relationship between Mr. Kenney and another
employee, and Mr. Kenney's failure to approve plaintiffs promotion to a OS-14
position. PI. Statement of Material Facts in Supp. ofPI.'s Opp. ("PI. Opp. Facts"),-r
10. As a result of that mediation, the parties formally agreed to talk to one another
when either one perceived something the other had done as offensive. PI. Mot. for
Partial Summ. J. Ex. 1.
On December 6, 1999, plaintiff issued Mr. Kenney a letter, stating that she
believed he was in violation of the agreement. Def. Mot. for Summ. J. Ex. D. Mr.
Kenney followed up with a non-disciplinary letter of counseling, which highlighted
plaintiffs "rude and discourteous behavior" and problems with her travel and work
routine. PI. Mot. for Partial Summ. J. Ex. 3. Mr. Kenney asked plaintiff to give
proper respect to other employees in the office and to keep Mr. Kenney informed of
plaintiffs travel, activities, and contacts outside the agency. Id.
Despite these communications, conflicts continued. In March 2000, when Mr.
Kenney was not present, his secretary locked time-sensitive information in his office,
which prevented plaintiff from meeting an agency deadline. PI. Opp. Mot. at 14-15.
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About one month later, Mr. Kenney suspended plaintiff's open travel authorization
after plaintiff relocated to a different hotel on a company trip without informing Mr.
Kenney of her change in plans. PI. Opp. Facts,-r 21. Mr. Kenney later denied
plaintiff's request for a travel reimbursement for that trip and, upon realizing he had
failed to make a copy of the voucher, entered plaintiff's office and requested it back.
PI. Opp. Facts ,-r,-r 23-24. The parties differ significantly as to what happened next, but,
according the plaintiff's version of events, Mr. Kenney "pinned" plaintiff against her
desk and "twisted her fingers" until she released the voucher. Id. Another incident
occurred on March 15,2001, when Mr. Kenney conducted an administrative
investigation into plaintiff's misconduct and warned her that she could be subject to
criminal prosecution if she answered questions falsely. 2 PI. Statement of Material
Facts in Support of PI. Mot. for Partial Summ. J. ,-r 14.
During the time frame in which these various incidents occurred, plaintiff filed
several complaints with the EEO, all alleging that she was subject to a hostile work
environment and that she was being discriminated against because of her race and
prior EEO activity. PI. Mot. for Partial Summ. J. Exs. 4-5. After considering her
complaints, an Administrative Judge ("AJ") found that plaintiff had not established,
by a preponderance of the evidence, that the agency subjected her to discrimination or
a hostile work environment, or retaliated against her for prior EEO activity. Def. Mot.
for Summ. J. Ex. L at 5, 7-8. The AJ concluded that plaintiff "was a disruptive and
2Plaintiff offers other cursory descriptions of incidents as evidence of discrimination, retaliation, or hostile work
environment, but none of those allegations were substantially addressed in the summary judgment briefs or the
parties' statements of material facts.
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insubordinate employee." Id. at 5. Plaintiff appealed that order to the EEOC's Office
of Federal Operations, which upheld the AJ's decision. Def. Statement of Undisputed
Facts ~ 31. Plaintiff filed her complaint in this Court on May 26, 2006. The parties
filed cross-motions for summary judgment in June 2008. For the following reasons,
the Court GRANTS defendant's motion for summary judgment.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment shall be rendered
"if the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking
summary judgment bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party
opposing a motion for summary judgment, however, "may not rely merely on
allegations or denials in its own pleading; [but] ... must ... set out specific facts
showing a genuine issue for trial." Fed. R. Civ. P. 56(e). In deciding whether there is
a disputed issue of material fact, the Court must draw all justifiable inferences in favor
of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
ANALYSIS
Plaintiff alleges three separate causes of action under Title VII: discrimination
based on race, retaliation for engaging in protected activity, and a hostile work
environment. Unfortunately for Cochise, there are no genuine issues of material fact
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as to any of these causes of action and the defendant is entitled to judgment as a
matter of law.
I. Discrimination
Title VII of the Civil Rights Act prohibits the federal government from
discriminating in employment on the grounds of race. 42 U.S.C. § 2000e-16(a). Until
recently, when a plaintiff had not provided direct evidence of discrimination, the
complex burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973), governed the Court's analysis. The D.C. Circuit has
now simplified this procedural structure. See Brady v. Office of Sergeant at Arms,
520 F.3d 490, 493-94 (D.C. Cir. 2008). Pursuant to Brady, if an employee has
suffered an adverse employment action and the employer asserts a legitimate non-
discriminatory reason for taking such action, a court need only determine whether a
reasonable jury could find that the employer's asserted reason "was not the actual
reason and that the employer intentionally discriminated against the employee[.]" Id.Plaintiff alleges that she was denied a promotion to a GS-14 position, which
qualifies as an adverse employment action,3 because of racial animus on the part of
her supervisor. The Department of the Interior provided a legitimate, non-
discriminatory reason for her non-promotion: plaintiff was a "difficult employee" who
3 Plaintiff asserts numerous wrongs that were done to her by Mr. Kenney, but only her allegation that she was
denied a promotion to a OS-14 status qualifies as an adverse employment action. See Baloch v. Kempthorne,
550 F.3d 1191, 1196 (D.C. Cir. 2008) (the typical adverse actions in employment discrimination cases are being
"fired, or denied a job or promotion, [or] ... suffer[ing] any reductions in salary or benefits"); Burton v. Batista,
339 F. Supp. 2d 97, 110 (D.D.C. 2004) (in determining what constitutes an adverse employment action, "a court
should focus on 'ultimate employment decisions' such as 'hiring, granting leave, discharging, promoting, and
compensating,' not intermediate decisions 'having no immediate effect upon employment decisions."') (internal
citations omitted).
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had trouble completing projects in a timely manner and who had problems working
with fellow employees. Def. Mot. for Summ. J. at 2, 12. Because plaintiff has not
shown that this reason is a pretext, her discrimination claim must fail.
Plaintiffs argument amounts to little more than this: in a performance
evaluation, Mr. Kenney rated her performance level as "achieved," and, on three
occasions, approved her for monetary awards. PI. Opp. Mot. at 6-12. He did not later
consider those awards when making his promotion decisions. PI. Opp. Mot. at 9-12.
Plaintiff somewhat confusingly points to these awards and her performance appraisals
- which were at the bare minimum to be eligible for promotion - as clear evidence
that she should have been given a promotion and argues that defendant's failure to
promote her was therefore discriminatory. PI. Opp. Mot. at 12. But this argument
does not adequately rebut the non-discriminatory reason provided by defendant.
Plaintiff was a "difficult employee," Def. Mot. for Summ. J. at 2, who exhibited "rude
and discourteous behavior" towards other employees. PI. Mot. for Partial Summ. J.
Ex. 3. Plaintiffs reliance on an unexceptional performance evaluation and a
smattering of awards is not sufficient to show pretext when so many other factors
weighed heavily against giving plaintiff a promotion. The discrimination claim must
therefore be dismissed.
II. Retaliation
Plaintiffs allegations in support of her retaliation claim fare little better. To
prove retaliation, the plaintiff generally must establish that she suffered (i) a
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materially adverse action (ii) because she had brought or threatened to bring a
discrimination claim. Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008).
Plaintiff points to four separate events as the basis for her retaliation claim: (1)
the December 1999 letter of counseling sent by Mr. Kenney to plaintiff; (2) the
plaintiffs inability to retrieve time-sensitive material from Mr. Kenney's office; (3)
the altercation over a travel voucher; and (4) the warning Mr. Kenney gave to plaintiff
during the administrative investigation. PI. Mot. for Partial Summ. J. at 3. None of
these allegations qualify as materially adverse employment actions because they
would not '''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) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
N either letters of counseling that contain job-related constructive criticism, 4
like the one Mr. Kenney issued to plaintiff, nor warnings without attendant effects on
employment, such as Mr. Kenney's caution against dishonesty during the
administrative investigation, are materially adverse employment actions. See Baloch,
550 F.3d at 1199; Halcomb v. Office o/Sergeant at Arms, 563 F. Supp. 2d 228,246-
47 (D.D.C. 2008). Plaintiffs inability to access time-sensitive documents also does
not qualify because it did not result in any tangible job consequence, but was instead
emblematic of what the Supreme Court itself has characterized as the "minor
4 Plaintiff alleges that this particular letter contained confidential information from a settlement agreement, but
the Court fails to see how the inclusion of this information - which was known both by the sender and the
recipient of this letter - is an adverse employment action.
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annoyances that often take place at work and that all employees experience." White,
548 U.S. at 68.
The most serious claim of the bunch is the alleged altercation between Mr.
Kenny and plaintiff over the travel voucher, but even this incident fails to rise to the
level of regularity or severity that would qualify it as a materially adverse action.
While a tug-of-war over a document may be emotionally or physically draining, it was
a single incident involving minimal contact, not a materially adverse employment
action. See Baloch, 550 F.3d at 1199 (four separate verbal altercations between an
employee and a supervisor "did not meet the requisite level of regularity or severity to
constitute material adversity for purposes of a retaliation claim.").
Even if these incidents could be read as materially adverse actions, or if
plaintiff could be deemed to be alleging the denial of a promotion as the basis for her
retaliation claims, she fails to show a causal connection between her EEO activity and
these incidents. Plaintiff alleges a close temporal proximity between the protected
activity and the adverse actions, and, in many cases, a temporal relationship may be
enough for a court to infer causation. Holcomb v. Powell, 433 F.3d 889, 903 (D.C.
Cir. 2006). However, plaintiff undercuts her claims by providing an alternate cause
for these incidents: the conflict created by Mr. Kenney's "inappropriate romantic
relationship with a subordinate employee." PI. Reply at 2. Because plaintiff herself
points to reasons for Mr. Kenney's behavior other than the EEO activity, she has
failed to show the necessary causal connection between the protected activity and the
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adverse actions. Therefore, defendant's motion for summary judgment as to this
cause of action must be granted.
III. Hostile Work Environment
Plaintiff further alleges that she was subject to a hostile work environment, but
this claim, too, fails. To establish a prima facie hostile work environment claim, a
plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was
subject to unwelcome harassment; (3) the harassment occurred because of her race or
her protected activity; (4) the harassment affected a term, condition or privilege of
employment; and (5) the employer knew or should have known of the harassment, but
failed to take any action to prevent it. See Singletary v. District o/Columbia, 225 F.
Supp. 2d 43, 62 (D.D.C. 2002); Kelley v. Billington, 370 F. Supp. 2d 151, 156 (D.D.C.
2005). To sustain a hostile work environment claim, a plaintiff "must produce
evidence that she was discriminated against because of her [status]." Bryant v.
Brownlee, 265 F. Supp. 2d 52, 63 (D.D.C. 2003) (quoting Richardson v. New York
State Dep't o/Corr. Serv., 180 F.3d 426,440 (2d Cir. 1999)).
Plaintiff fails to provide any evidence that the alleged harassment occurred
because of her race or protected activity, and, in fact, points to her supervisor's
romantic relationship with a subordinate as the cause for the hostile work
environment. PI. Opp. Facts ~ 5; PI. Opp. Mot. at 13. Plaintiff contends she was
subject to a hostile work environment because, among other things, her supervisor
allegedly denied her a promotion, Compl. ~ 13; denied her request to have another
witness present in a meeting, Compi. ~ 21; suspended her open travel authorization,
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CompI. ~ 22; engaged in a physical altercation with plaintiff, CompI. ~ 24; and
proposed a three day suspension, CompI. ~ 26. But this list of incidents and
allegations "contains at least one glaring defect: none of the allegations give rise to an
inference of discrimination by defendant based on race[.]" Bryant, 265 F. Supp. 2d at
63. Similarly, plaintiff provides no evidence that the allegedly hostile work
environment occurred because of her protected activity.
In fact, plaintiff undermines her claims by pointing to another cause altogether
for the allegedly hostile work environment: "the romantic relationship between Mr.
Kenney and his subordinate employee." PI. Opp. Mot. at 13. While Mr. Kenney's
relationship with a subordinate, if true, may be unprofessional, it is neither
discriminatory nor retaliatory as to the plaintiff. Therefore, because plaintiff herself
argues that the alleged romantic relationship, not discrimination or retaliation, caused
the hostile work environment, this claim must also be dismissed.
CONCLUSION
F or the foregoing reasons, defendant's motion for summary judgment is
GRANTED, and plaintiff's motion for partial summary judgment is DENIED.
United States District Judge
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