Patricia Brooks v. Susan Grundmann ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2013 Decided April 15, 2014
No. 12-5171
PATRICIA A. BROOKS,
APPELLANT
v.
SUSAN TSUI GRUNDMANN, CHAIRMAN, MERIT SYSTEMS
PROTECTION BOARD,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00100)
Anne King argued the cause for appellant. With her on
the briefs was Brian Wolfman.
John G. Interrante, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: BROWN and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge BROWN.
2
BROWN, Circuit Judge. In a classic (and perhaps ironic)
instance of quis custodiet ipsos custodes, we are presented
with a case where the Merit Systems Protection Board—the
entity charged with addressing the grievances of federal
workers challenging discriminatory employment practices,
see 5 U.S.C. § 2301(b)(2)—is itself accused of discrimination.
A Board employee claims her supervisors engendered a
hostile work environment, discriminating against her on the
basis of her race and sex. We conclude that, while the
supervisors’ actions may have been unprofessional, uncivil,
and somewhat boorish, they did not constitute an adequate
factual basis for the Title VII claims presented here.
Accordingly, we affirm the district court’s grant of summary
judgment.
I
Patricia Brooks, an African-American woman, has
worked at the Office of Information Resources Management
(IRM) of the Merit Systems Protection Board since 1998.
While we know little about her employment prior to 2005, we
know she considers that particular year as the starting point of
a series of unfortunate events.
Brooks’ chronology of woe began when her supervisor,
An-Minh (Tommy) Hwang, expressed his disappointment
with her demonstration of a new document migration project
by yelling at her in front of co-workers, insulting and
demeaning her, and flinging a heavy notebook which Brooks
thought was aimed in her direction. That incident was
followed later in the year by a performance appraisal by
Hwang and his deputy, Nick Ngo, which, while deeming her
“Fully Successful,” was highly critical of her management
abilities and urged her to take a more proactive management
approach. In turn, that disappointment was followed by a
3
dispute over a timesheet entry when Ngo accused Brooks of
fudging the number of hours worked. Although a Board
official intervened and Brooks received pay for the disputed
hours, Brooks resented what she perceived as Ngo’s selective
scrutiny. Meanwhile, her performance appraisals continued
their downward spiral. By 2006, she was only rated as
“Minimally Successful” and was given a laundry list of
needed improvements: timely filing of weekly reports,
participation in leadership meetings, and improvement of
interpersonal, teamwork, and communication skills.
Brooks filed her first internal EEO complaint in February
2007, claiming Hwang and Ngo had discriminated and
retaliated against her. Despite regaining her “Fully
Successful” rating that year, Brooks had a confrontation with
another IRM Team Leader—Bill McDermott—who became
visibly angry and insulted Brooks in front of other Team
Leaders during a meeting. When Hwang e-mailed
McDermott to discuss the latter’s conduct, McDermott replied
to express some contrition but circulated his response to all
the other Team Leaders. Brooks informally notified the
Board’s EEO Director about the incident.
On January 28, 2008, Brooks filed a complaint in district
court, alleging various violations of Title VII. A month later,
she filed a second internal EEO complaint—once again for
purported discrimination and retaliation—asserting Hwang
and Ngo fostered a hostile work environment and engaged in
disparate treatment. The two fired back during the course of
the internal EEO investigation and expressed annoyance
about Brooks’ EEO activities.
In May 2008, IRM was reorganized. Brooks remained a
Team Leader but had no supervisory responsibilities—a
marked departure from an earlier proposed plan. She filed a
4
third internal EEO complaint on August 13, 2008. Several
months later, Brooks received an “Unacceptable”
performance rating because of her alleged unwillingness to
accept responsibility for administrative mishaps and her poor
communication with IRM staff. Brooks was placed on a
“Performance Improvement Plan,” which left her susceptible
to “performance-based action, including possibly a reduction
in grade or removal from the federal service,” but she
eventually completed the Plan without incident. J.A. at 264,
266–67.
On February 11, 2009, Brooks amended her district court
complaint to allege the Board engendered a race-based,
gender-based, and retaliatory hostile work environment. The
Board filed what was effectively a motion for summary
judgment. The district court granted the motion, determining
“[n]o reasonable jury could find that [Hwang and Ngo’s]
conduct was so severe and pervasive as to alter the conditions
of Brooks’s employment.” Brooks v. Grundmann, 851 F.
Supp. 2d 1, 6 (D.D.C. 2012). Brooks appealed.
II
We review a district court’s grant of summary judgment
de novo. Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19,
23 (D.C. Cir. 2013). Summary judgment is appropriate when
“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 genuine issue of
material fact exists if the evidence, ‘viewed in a light most
favorable to the nonmoving party,’ could support a reasonable
jury’s verdict for the non-moving party.” Hampton v. Vilsack,
685 F.3d 1096, 1099 (D.C. Cir. 2012) (quoting McCready v.
Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006)).
5
Much of Brooks’ appeal is devoted to her hostile work
environment claims. To prevail, she “must first show that . . .
she was subjected to ‘discriminatory intimidation, ridicule,
and insult’ that [was] ‘sufficiently severe or pervasive to alter
the conditions of [her] employment and create an abusive
working environment.’” See 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 strength of
her various claims is determined by “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.” See
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008).
The deficiency in Brooks’ case is her inability to
demonstrate that the actions of her superiors were sufficiently
severe or pervasive so as to constitute a hostile work
environment. Severity and pervasiveness are complementary
factors and often go hand-in-hand, but a hostile work
environment claim could be satisfied with one or the other.
Ayissi-Etoh, 712 F.3d at 579 (Kavanaugh, J., concurring)
(“The test set forth by the Supreme Court is whether the
alleged conduct is ‘sufficiently severe or pervasive’—written
in the disjunctive—not whether the conduct is ‘sufficiently
severe and pervasive.’”). But here, we do not have enough of
either.
In discerning severity and pervasiveness, we assess the
timeline of events as a whole. See Baloch, 550 F.3d at 1201.
Each event that Brooks identifies as an example of abusive
conduct fails to add materially to the alleged aura of hostility.
For instance, selective enforcement of a time and attendance
policy does not necessarily indicate conduct giving rise to a
hostile work environment claim. See Bhatti v. Trs. of Bos.
Univ., 659 F.3d 64, 74 (1st Cir. 2011) (concluding the
6
selective enforcement of workplace rules and the failure to
extend certain informal courtesies are part of conduct that is
“far from severe [and] never physically threatening”).
Brooks’ performance reviews also do little to evince abusive
conditions—they were not uniformly negative and had some
legitimate bases. See Baloch, 550 F.3d at 1201 (noting
“legitimate reasons and constructive criticism offered in . . .
letters of counseling and reprimand” undercut allegations of a
hostile work environment). Moreover, her reviews
recommended areas of improvement—hardly the stuff of
severe or pervasive workplace hostility. See Darbha v.
Capgemini Am. Inc., 492 F. App’x 644, 647 (7th Cir. 2012).
Brooks also suggests outbursts by a coworker and her
supervisor prove she suffered a hostile work environment.
We disagree. Certainly, her superiors and colleague may
have been tactless and ill-mannered. But by her own
admission, Brooks was of like rank and position as her
colleague McDermott, and he had no supervisory authority
over her. See J.A. at 310. Therefore, the Board cannot be
deemed liable for his conduct unless Brooks “prove[s] that the
employer was at least negligent in not preventing or
correcting the [alleged] harassment.” See Ayissi-Etoh, 712
F.3d at 577. Not only does Brooks fail to assert such a
supervisory lapse, the record suggests her supervisor in fact
met with McDermott to discuss the incident and indicated to
him that his behavior was inappropriate.
That leaves the incident with Hwang. There is some
dispute over what exactly occurred, but even taking the facts
in the light most favorable to Brooks (as we must in
reviewing a grant of summary judgment), we cannot conclude
this outburst contributed much in the way of a hostile work
environment. Compare J.A. at 208 (giving Hwang’s account
of the meeting in which he admits to frustration and slamming
7
down his hand), with J.A. at 224 (recounting Brooks’ version
of events in which Hwang “yelled at [her] and violently threw
a book (thick notebook) on a table”). The incident, at its
worst, was an isolated expression of frustration. That alone
cannot rise to the level of severity indicating hostility or
abuse. See Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998) (“[I]solated incidents (unless extremely serious)
will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” (emphasis added and citation
omitted)).
While Brooks heavily relies on Gowski v. Peake, 682
F.3d 1299 (11th Cir. 2012) (per curiam), to make her case as
to severity, that decision does little to help her cause. Gowski
involved supervisors of a hospital facility who engaged in
retaliatory acts that cumulatively amounted to a hostile work
environment. These actions included but were not limited to:
(1) the revocation of privileges necessary for working in
critical-care units; (2) a two-week suspension based on a
dubiously substantiated allegation of unprofessional behavior
with a nurse; (3) the rescinding of the employees’ medical
committee membership; and (4) a two-year suspension from
participating in research programs. See id. at 1305–08. To
the Eleventh Circuit, these actions evinced “a workplace filled
with intimidation and ridicule that was sufficiently severe and
pervasive to alter [the two plaintiff-doctors’] working
conditions.” Id. at 1313.
In contrast, nothing resembling that level of malevolence
is present here. Of course, the record shows the supervisors
engaged in unprofessional conduct. But unlike the plaintiffs
in Gowski, Brooks has not been shut out from her work
because her privileges have been revoked and her duties
eliminated; rather, she is continually assigned discrete tasks
and performs them with mixed degrees of success. The facts
8
underlying Brooks’ claims seem more like the “ordinary
tribulations of the workplace,” see Faragher, 524 U.S. at 788,
a series of “petty insults, vindictive behavior, and angry
recriminations” that are not actionable under Title VII, see
Bhatti, 659 F.3d at 74. Considered in the aggregate, the
episodes cited by Brooks do not sufficiently demonstrate the
sort of severity or pervasiveness needed to prove a hostile
work environment.1
III
Brooks’ discrete-acts retaliation claim fares no better.
Indeed, the district court ignored it altogether, and, contrary to
Brooks’ assertions, there was no error in the court’s omission.
While she urges us to pass upon the merits of her retaliation
claim, the inartful and inadequate state of Brooks’ pleadings
prevents us from doing so.
Unlike a hostile work environment claim, which
“involves repeated conduct . . . [that] occurs over a series of
days or perhaps years and . . . [where] a single act of
harassment may not be actionable on its own,” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002), a
discrete-acts claim involves a single act of discrimination
“such as termination, failure to promote, denial of transfer, or
refusal to hire.” Id. at 114. “[A] plaintiff may not combine
discrete acts to form a hostile work environment claim
without meeting the required hostile work environment
standard,” Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir.
2011), but a hostile work environment claim is not rendered
invalid “merely because it contains discrete acts that the
1
We therefore need not decide whether Brooks adequately satisfied
the discrimination component of the hostile work environment
analysis.
9
plaintiff claims (correctly or incorrectly) are actionable on
their own.” Id.
Brooks points to several discrete acts—e.g., her 2006
“Minimally Successful” rating, her 2008 “Unacceptable”
rating, etc.—that ostensibly serve as the bases for her prima
facie retaliation claims. One problem: she neglected to allege
a discrete-acts retaliation claim in her complaint. See J.A. at
94–95. Tacitly acknowledging this inadequacy, Brooks
points to various references hinting at a prima facie retaliation
claim in her opposition to the defendant’s motion for
summary judgment. See Appellant’s Br. at 43–46; see also
J.A. at 298–302.
Her position is not entirely without support. In Wiley v.
Glassman, 511 F.3d 151 (D.C. Cir. 2007) (per curiam), we
were confronted with an instance in which a plaintiff first
raised a claim of retaliatory harassment in her opposition to
the defendant’s motion for summary judgment. Id. at 159.
The district court, acting on the defendant’s motion, struck the
claim. See id. We, however, determined striking the claim
was inappropriate, as “[t]he factual basis for [the] appellant’s
‘new’ claim was substantially similar to the hostile work
environment claim that [the] appellant had alleged in her
original complaint, and [the defendant] did not demonstrate
that allowing [the] appellant’s claim would cause undue
prejudice.” Id.
That could also be true here, but for two noteworthy
differences. First, the obvious: unlike Wiley, the Board never
filed a motion to strike and therefore we have no discrete
procedural decision to review. Cf. Brooks, 851 F. Supp. 2d at
5 & n.6. But that distinction merely scratches the surface of
an even greater one—the opposition to summary judgment
does not clearly lay out a prima facie retaliation claim.
10
Instead of identifying “discrete episodes” that constituted
adverse employment actions, see Baird, 662 F.3d at 1248–49,
the opposition conflated the purported discrete-acts retaliation
claim with a retaliatory hostile work environment claim—two
distinct theories of relief, see J.A. at 302 (“A reasonable jury
could find that these intensifications of the hostile work
environment were in retaliation for Ms. Brooks’
complaints.”). Both the defendant and the district court
should have had fair notice of the legal theories behind a
claim, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007), and neither the complaint nor the opposition
sufficiently conveyed the discrete-acts claim in this instance.
Therefore, we decline to conclude the district court erred by
disregarding the inchoate claim.
We are sympathetic to Brooks’ assertion that a similar,
ongoing case cast a fog of uncertainty that made her second-
guess whether she could plead a discrete-acts claim
simultaneously with her hostile work environment allegations.
But that uncertainty does not excuse her failure to present and
preserve the claim. True, the district court in Baird v.
Snowbarger, 744 F. Supp. 2d 279 (D.D.C. 2010), did seem to
suggest discrete acts could not form part of a hostile work
environment claim. See id. at 295–96. It was not until our
decision in Baird v. Gotbaum, 662 F.3d 1246 (D.C. Cir.
2011), that we were able to clear the air, noting the assertion
of a discrete-acts claim did not bar per se the incorporation of
such acts in a hostile work environment claim. See id. at
1252. Perhaps in Brooks’ view, she could only rely on one
theory or the other.
But Title VII cases often involve multiple, sometimes
mutually exclusive, theories of relief, and nothing prevents a
plaintiff from pleading in the alternative, if only for the sake
of preservation. Cf. Ponce v. Billington, 679 F.3d 840, 845
11
(D.C. Cir. 2012) (noting the alternative nature of “but-for”
and “mixed-motive” Title VII cases and discussing the
strategic implications of proceeding under one or both
theories). To be sure, litigants need not be clairvoyant; they
are not expected to augur future legal developments with
exactitude. Nor do we expect them to run into a wall of
futility by asserting an expressly barred claim—to the
contrary, our rules forbid it. See generally FED. R. CIV. P.
11(b)(2).
Here, however, there was some room to maneuver. At
the time Brooks filed her complaint, nothing in our caselaw
addressed the question of whether a plaintiff may assert both
discrete-acts and hostile work environment claims. She was
therefore free to question the wisdom of the district court
decision in Baird. See Johnson v. Dist. of Columbia, 850 F.
Supp. 2d 74, 79 (D.D.C. 2012) (“A District Court is
comprised of individual judges who reach decisions that are
not binding on any one else.”); see also Owens-Ill., Inc. v.
Aetna Cas. & Sur. Co., 597 F. Supp. 1515, 1520 (D.D.C.
1984) (“The doctrine of stare decisis compels district courts
to adhere to a decision of the Court of Appeals of their Circuit
until such time as the Court of Appeals or the Supreme Court
of the United States sees fit to overrule the decision.”).
Indeed, the Baird plaintiff successfully did so on appeal. See
Baird, 662 F.3d at 1252.
Moreover, the law of this circuit prevents us from
remanding this case to the district court so that Brooks may
have an opportunity to amend her complaint in light of
Baird’s clarification. The district court believed no discrete-
acts claim was raised. See Brooks, 851 F. Supp. 2d at 5 n.6
(“Because Brooks does not assert that she has suffered a
discriminatory or retaliatory adverse employment action, the
Court need not and does not consider whether any of the
12
incidents described above might satisfy that element of a
prima facie case.”). Brooks could have asked the district
court for leave to amend her complaint so that she could more
clearly establish a separate theory of relief. But she failed to
do so, and her failure bars us from remanding this case to give
her an opportunity to fix her complaint. Cf. City of Harper
Woods Emps.’ Ret. Sys. v. Olver, 589 F.3d 1292, 1304 (D.C.
Cir. 2009) (“When a plaintiff fails to seek leave from the
District Court to amend its complaint, either before or after its
complaint is dismissed, it forfeits the right to seek leave to
amend on appeal.”).
IV
The decision of the district court is
Affirmed.