Earnest Durant v. District of Columbia Government

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2017 Decided November 17, 2017
No. 13-7060
EARNEST DURANT,
APPELLANT
v.
DISTRICT OF COLUMBIA GOVERNMENT,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00025)
Anthony F. Shelley, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on the
briefs were Michael J. Satin and Amelia D. Hairston-Porter.
Holly M. Johnson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellee. With her on the brief were Karl A. Racine,
Attorney General, Todd S. Kim, Solicitor General, and Loren
L. AliKhan, Deputy Solicitor General.
Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Appellant Earnest Durant,
Jr. filed a complaint in the District Court against his former
employer, the District of Columbia Department of Corrections,
claiming violations of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e–2000e-17 (2012). Durant
alleged that the Department of Corrections (“Department”)
retaliated against him for engaging in activities that were
protected under Title VII and subjected him to a hostile work
environment.
After the close of discovery, the District of Columbia
(“District”) filed a motion for summary judgment, contending,
inter alia, that Durant’s retaliation claims concerning
employment actions taken prior to October 2007 were barred
because there was nothing in the record to indicate that Durant
had filed a timely charge with the Equal Employment
Opportunity Commission (“EEOC”) or with the D.C. Office of
Human Rights, as required by Title VII. See id. § 2000e-
5(e)(1). The District also moved for summary judgment on
Durant’s retaliation claims based on employment actions taken
after October 2007 and on his hostile work environment claims.
The District Court granted summary judgment in favor of the
District in full. See Durant v. Dist. of Columbia, 932 F. Supp.
2d 53 (D.D.C. 2013). Durant, acting pro se, filed a timely
notice of appeal. This court appointed Miller & Chevalier as
amicus curiae to present arguments in support of Durant.
We affirm the judgment of the District Court regarding
Durant’s retaliation claims relating to actions taken prior to
October 2007. The District Court correctly found not only that
Durant never responded to this portion of the District’s motion
for summary judgment but also that there was no evidence in
3
the record that Durant filed any charge of discrimination that
would have rendered the claims timely. “[T]he burden on a
defendant moving for summary judgment may be discharged
without factual disproof of the plaintiff’s case; the defendant
need only identify the ways in which the plaintiff has failed to
come forward with sufficient evidence to support a reasonable
jury to find in [his] favor on one or more essential elements of
[his] claim.” Grimes v. Dist. of Columbia, 794 F.3d 83, 93
(D.C. Cir. 2015). Because Durant failed to “present affirmative
evidence” sufficient to show that a reasonable jury could return
a verdict in his favor, Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 257 (1986), summary judgment for the District regarding
the actions taken prior to October 2007 was proper.
We also affirm the District Court’s grant of summary
judgment for the District on Durant’s remaining retaliation
claims arising out of events occurring after October 2007. A
reasonable jury could not infer from the proffered evidence that
the challenged employment actions might have “dissuade[d] a
reasonable worker from making or supporting a charge of
discrimination,” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006), or that the Department’s legitimate,
nonretaliatory reason for Durant’s termination was a pretext for
retaliation, see Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981). We further affirm the District Court’s grant of
summary judgment for the District on Durant’s hostile work
environment claims because there are no genuine disputes
between the parties over the material facts that negate Durant’s
claims. Finally, we deny Durant’s request to remand the case
to the District Court to reopen discovery so that he can
supplement the record with additional documents. Durant had
ample opportunity during the trial court proceedings to obtain
and present discovery in support of his claims, and he fails to
explain how introduction of additional discovery would create
4
a genuine dispute of material fact sufficient to overcome
summary judgment.
I. BACKGROUND
A. Factual Background
Earnest Durant, Jr. began his career with the Department
in July 1983 and was subsequently terminated on July 2, 2010.
During his tenure at the Department, Durant was promoted to
the position of Criminal Investigator, DS-1811-11, with the
Department’s Warrant Squad, whose headquarters were
located at 300 Indiana Avenue NW. The Warrant Squad was
responsible for obtaining warrants for, locating, and
apprehending individuals who had escaped, been erroneously
released, or absconded from the Department’s custody.
In the mid-1990s, Durant participated in a federal class
action sexual harassment lawsuit against the Department. See
Neal v. Dir., Dist. of Columbia Dep’t of Corr., Civ. A. No. 93-
2420, 1995 WL 517248 (D.D.C. Aug. 9, 1995). The case was
tried before a jury, which ultimately found in favor of the
plaintiffs after determining that the defendants had engaged in
a pattern and practice of sexual harassment and retaliation in
violation of Title VII and 42 U.S.C. § 1983. See id. at *9. For
purposes of this appeal, the salient employment actions began
several years later, in mid-2007.
On June 14, 2007, Durant was placed on a two-month
administrative leave pending the Department’s investigation of
allegations that Durant had used a Department Xerox copy
machine for impermissible purposes and had permitted an
unauthorized individual to enter the Warrant Squad’s offices.
Upon Durant’s return to the Warrant Squad in August 2007, he
was reassigned to work in a different building, the Office of
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Community Corrections located at 1923 Vermont Avenue NW,
separate from the Warrant Squad’s headquarters. He was
transferred back to the Warrant Squad’s offices at 300 Indiana
Avenue NW in June 2009.
On April 8, 2008, Durant’s supervisor, Wanda Patten,
issued Durant a “Letter of Admonition” for “specific
deficiencies regarding [his] conduct and to warn [him] that
future violations w[ould] result in corrective or adverse
action.” Appendix of Amicus Curiae (“A.A.”) 493. According
to the letter, on March 29, 2008 at approximately 9:45 p.m., a
halfway house resident “escaped out of the front door of the
facility.” Id. Patten attempted to reach Durant on his
Department-issued cell phone and left a message “informing
[him] of the escape . . . and advising [him] to immediately
respond.” A.A. 494. Durant responded approximately nine
hours later. Id. The Letter of Admonition advised Durant that
because he was “the only investigator assigned to the Warrant
Squad” at the time, he “should [have had] a heightened state of
awareness concerning [his] response to all Warrant Squad
incident notifications.” Id.
A few months later, on August 12, 2008, Durant filed a
formal charge with the EEOC. A.A. 110. The EEOC assigned
a charge number to the case, No. 570200800315. Id. The
charge alleged that from June 1999 to August 2008, Durant was
adversely treated by his employer in retaliation for his
“protected activity (i.e., [having been] a class member in
[Neal]),” which included being “stripped of [his] weapon on
more than one occasion,” “placed on limited duties,” and
“reassigned to another facility with little or no support.” Id.
On October 6, 2009, the U.S. Department of Justice issued
a written notice to Durant regarding “EEOC Charge Against
District of Columbia Department of Corrections No.
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570200800315.” A.A. 496. The notice stated that, because
“more than 180 days have elapsed since . . . the [EEOC]
assumed jurisdiction over the charge and no suit based thereon
has been filed by [the Department of Justice],” Durant had the
right to pursue a civil action under Title VII against the
Department within 90 days of receipt of the notice. Id. Durant
then commenced the instant action on January 6, 2010.
Durant alleged additional claims of retaliation in a sworn
EEOC charge dated March 6, 2010, including the previously
described workplace grievances as well as the Department’s
suspension of his arrest authority, ongoing isolation, denial of
promotions, and lack of access to a government vehicle. A.A.
347–50.
According to Durant, on May 25, 2010, the Department
informed him that his position on the Warrant Squad was being
eliminated and that he would be terminated on July 2, 2010.
See Pl.’s Statement of Points and Authorities in Supp. of Opp’n
to Def.’s Mot. Summ. J., Ex. J at 4. Durant’s position – as well
as the entire Warrant Squad – was eliminated pursuant to a
District-wide Reduction in Force (“RIF”) due to budgetary
constraints. See A.A. 516–17. In total, the Department
eliminated thirteen positions due to the RIF. A.A. 516. In
August of that same year, Durant appealed the Department’s
RIF with the District of Columbia Office of Employee Appeals.
See id.
Over the next several months, Durant continued to
correspond with the EEOC. In a letter dated November 15,
2010, Durant described allegations of retaliation,
discrimination, and hostile work environment in violation of
Title VII. See A.A. 501–15. The letter alleged that the
Department retaliated against him by failing to notify him of
7
job vacancies and giving preferential hiring treatment to other,
less qualified Department employees.
On December 9, 2010, the EEOC provided a written
acknowledgment of Durant’s “correspondence dated
November 15, 2010,” which “raise[d] several incidents in 2010
you believe are retaliatory actions by the [Department] because
you filed the previous EEOC Charge.” A.A. 497. The EEOC
informed Durant that it was “in the process of drafting a new
EEOC Charge to address the most recent incidents of harm to
you.” Id. The letter also referred to an EEOC charge Durant
filed “on or about August 12, 2009,” and noted that the
agency’s investigation of that charge was closed on September
21, 2009. Id.
B. Procedural Background
Durant filed his lawsuit pro se on January 6, 2010. He
subsequently retained counsel who began representing him on
January 17, 2011. Durant, 932 F. Supp. 2d at 62 n.8. In his
original complaint, Durant sued several District of Columbia
officials and various federal defendants, in addition to the
District of Columbia. Id. at 61. For reasons not pertinent to this
appeal, the trial court dismissed the claims against all of the
defendants except the District. A.A. 179. In addition to the
claims discussed below, Durant initially raised age and race
discrimination claims, but he voluntarily withdrew those
claims during the pendency of the litigation. Durant, 932 F.
Supp. 2d at 62.
After receiving several extensions to amend his complaint,
Durant filed a revised amended complaint on May 11, 2012,
alleging, inter alia, that the District retaliated against him for
his involvement in protected activities, including “prior
participation in . . . EEO litigation, unfair labor complaints, and
8
prior and current union activity,” and created a hostile work
environment by “failing to provide him with due process or
adequate responses in other proceedings, by terminating him
through a fraudulent Reduction in Force, and by failing to place
him in a new position in violation of Federal and District
Priority Re-Employment Programs and Veteran’s Preference
Rights.” Revised Am. Compl. 23.
Discovery closed on May 11, 2012 and the District filed a
motion for summary judgment on July 13, 2012. With the
assistance of counsel, Durant filed a memorandum in
opposition to the District’s motion for summary judgment on
August 10, 2012. The District Court issued a Memorandum
Opinion granting summary judgment in full. Durant, again
acting pro se, filed a timely notice of appeal with this court.
In the proceedings before the District Court, the District
challenged the court’s subject-matter jurisdiction, alleging that
the Collective Bargaining Agreement between the Department
and its union and the D.C. Government Comprehensive Merit
Personnel Act, D.C. CODE §§ 1-601.01–1-607.08 (2001),
governed resolution of Durant’s claims. See Durant, 932 F.
Supp. 2d at 65–67. The District Court rejected these challenges
to its subject-matter jurisdiction. Id. at 67. In their briefing to
this court and during oral argument, the parties acknowledged
that subject-matter jurisdiction is no longer in dispute. See Oral
Arg. Recording at 1:48–2:08. We agree that the District Court
properly exercised jurisdiction over this case. See 42 U.S.C. §
2000e-5(f)(3) (granting to the district courts jurisdiction over
“actions brought under” Title VII). Because we have
jurisdiction to review the lower court’s decision, we will
proceed to the merits. See 28 U.S.C. § 1291 (2012).
9
II. ANALYSIS
A. Standard of Review
We review the District Court’s grant of summary judgment
de novo. Gaujacq v. EDF, Inc., 601 F.3d 565, 575 (D.C. Cir.
2010). This court considers a motion for summary judgment
anew, with no deference to the District Court’s analysis. Ctr.
for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir.
2003). And, when appropriate, “we may affirm on any ground
properly raised.” EEOC v. Aramark Corp., 208 F.3d 266, 268
(D.C. Cir. 2000). Summary judgment may be granted only
when “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). When assessing a motion for summary judgment,
we view the evidence in the light most favorable to the
nonmovant and draw all reasonable inferences in his favor.
Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016).
Summary judgment is warranted where the party bearing the
burden of proof at trial fails to show a triable issue as to an
essential element of that party’s claim. Arrington v. United
States, 473 F.3d 329, 335 (D.C. Cir. 2006).
B. The Claims on Appeal
On appeal, amicus curiae, on behalf of Durant, contends
that the District Court improperly granted summary judgment
on Durant’s claims concerning employment actions taken prior
to October 2007 solely on the ground that Durant had not
responded to, and therefore conceded, the District’s argument
that such claims were time-barred. Amicus curiae also alleges
that the District Court erred in awarding summary judgment on
Durant’s remaining retaliation claims involving employment
actions taken after October 2007, because genuine disputes of
material fact existed as to whether the actions were materially
10
adverse and, with respect to Durant’s termination, whether the
Department met its burden of providing a legitimate,
nonretaliatory reason for its decision. Amicus curiae also
contends that, with respect to all of Durant’s retaliation claims,
the District Court improperly placed the burden on Durant to
provide sufficient evidence to avoid summary judgment, rather
than hold the District to its obligations as the movant to show
the absence of a genuine dispute of material fact. In addition,
amicus curiae claims that the District Court erred in granting
summary judgment on Durant’s hostile work environment
claim. Lastly, Durant requests that this court remand the case
to the District Court so that he can supplement the record with
documents his trial counsel allegedly failed to enter into the
record.
C. The Retaliation Claims
Title VII makes it unlawful “for an employer to
discriminate against [an employee] . . . because he has opposed
any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding,
or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). A
separate provision of the statute extends Title VII protections
to employees of agencies in the District of Columbia. See id. §
2000e-16(a); Bundy v. Jackson, 641 F.2d 934, 942 (D.C. Cir.
1981).
An individual alleging discrimination on the basis of
retaliation must file a charge of discrimination with the EEOC
“within [180] days after the alleged unlawful employment
practice occurred,” or within 300 days if the complainant
“initially instituted proceedings with a State or local agency,”
such as the D.C. Office of Human Rights. 42 U.S.C. § 2000e-
5(e)(1); see Bethel v. Jefferson, 589 F.2d 631, 635 (D.C. Cir.
11
1978) (stating that the D.C. Office of Human Rights is “the
agency designated to entertain complaints of discrimination
emanating from employment with the District of Columbia
Government”). Charges must “be in writing under oath or
affirmation and shall contain such information and be in such
form as the [EEOC] requires.” 42 U.S.C. § 2000e-5(b). The
charge serves the purpose of notifying the agency and the
charged party of the complained of conduct, after which the
agency is given time to consider the matter and notify the
complainant of its decision whether to bring a civil action. Park
v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995).
1. Employment Actions Taken Prior to October 2007
We begin with Durant’s contention that the District Court
erred in dismissing his claims that the Department unlawfully
retaliated against him by: (1) placing him on administrative
leave on June 14, 2007 after he permitted an unauthorized
individual to enter the Warrant Squad’s offices and made an
impermissible use of the Department’s copy machine, and (2)
transferring him to a separate building away from the Warrant
Squad’s headquarters upon his return from administrative leave
in August 2007. The District Court dismissed these claims and
other actions taken against Durant prior to October 2007
because he failed to file any formal charges within the required
180- or 300-day statutory time limits. See Durant, 932 F. Supp.
2d at 64 & n.14.
Amicus curiae challenges this holding on several grounds.
First, amicus curiae contends that the District Court violated
Rule 56 by granting summary judgment solely on the ground
that Durant failed to respond to the District’s exhaustion
argument. In support of this argument, amicus curiae cites this
court’s decision in Winston & Strawn, LLP v. McLean, 843
F.3d 503 (D.C. Cir. 2016), in which we held that “a motion for
12
summary judgment cannot be deemed ‘conceded’ for want of
opposition,” id. at 508. We made it clear that a District Court
“must determine for itself that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as
a matter of law, and then ‘should state on the record the reasons
for granting or denying the motion.’” Id. at 509 (quoting Fed.
R. Civ. P. 56(a)). The decision in Winston & Strawn is
inapposite here.
In Winston & Strawn, the District Court failed to consider
the merits of the matter in dispute and deemed the matter
“conceded” on the sole basis that the non-moving party failed
to meet the court’s deadline for responding to the motion for
summary judgment. See id. at 505–06 (stating that the District
Court’s order granting summary judgment “did not analyze any
of the substance of [the] motion for summary judgment, nor did
it purport to apply the standards of Rule 56,” but rather
“focused solely on [the nonmovant’s] failure to file a timely
response as the basis for summary judgment against him”). In
contrast, the trial judge in this case adhered to Rule 56 by
reviewing the entire record, assessing the merits of the
District’s argument, and stating its reasons for finding that
there was no evidence to defeat the District’s motion for
summary judgment on timeliness grounds. See Durant, 932 F.
Supp. 2d at 64 & n.14.
Second, in its reply brief, amicus curiae claims that even if
the District Court properly considered the merits of the
District’s timeliness argument, the court failed to recognize
that the District had the burden of proving the affirmative
defense of untimely exhaustion of administrative remedies. See
Amicus Reply Br. 6–8. This argument comes too late. During
the summary judgment proceedings before the District Court,
when Durant was represented by counsel, he never raised an
argument that the District’s position was infirm as a matter of
13
law because the District carried the burden of proving that
Durant had failed to file any timely charges. See Kingman Park
Civic Ass’n v. Williams, 348 F.3d 1033, 1039 (D.C. Cir. 2003)
(“It is the general rule . . . that a federal appellate court does not
consider an issue not passed upon below.” (quoting Singleton
v. Wulff, 428 U.S. 106, 120 (1976))). Moreover, we do not
ordinarily consider an argument on appeal that is raised for the
first time in a reply brief. Forman v. Korean Air Lines Co., 84
F.3d 446, 448 (D.C. Cir. 1996); see McBride v. Merrell Dow
and Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986)
(“Considering an argument advanced for the first time in a
reply brief . . . is not only unfair . . . , but also entails the risk of
an improvident or ill-advised opinion on the legal issues
tendered.” (citation omitted)).
Finally, amicus curiae argues that the District Court
committed an error of law by imposing on Durant the burden
of presenting evidence in support of his retaliation claims
rather than holding the District to its obligation, as the movant,
to show its entitlement to summary judgment. According to
amicus curiae, a party moving for summary judgment bears the
burden to “show initially the absence of a genuine issue
concerning any material fact,” Amicus Br. 26 (quoting Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159 (1970)), and “it makes
no difference if the non-moving party fails to offer opposing
evidence, or even to respond at all,” id. at 25–26. This argument
misstates the law and is contrary to the principles governing
summary judgment. It is true that “a party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). However, the Supreme
Court in Celotex clearly said:
14
[W]e do not think the Adickes language . . .
should be construed to mean that the burden is on
the party moving for summary judgment to
produce evidence showing the absence of a
genuine issue of material fact, even with respect
to an issue on which the nonmoving party bears
the burden of proof. Instead, as we have
explained, the burden on the moving party may
be discharged by ‘showing’—that is, pointing out
to the district court—that there is an absence of
evidence to support the nonmoving party’s case.
Id. at 325; see also Grimes, 794 F.3d at 93 (explaining that “the
burden on a defendant moving for summary judgment may be
discharged without factual disproof of the plaintiff’s case; the
defendant need only identify the ways in which the plaintiff has
failed to come forward with sufficient evidence to support a
reasonable jury to find in [his] favor on one or more essential
elements of [his] claim”). Summary judgment is warranted if
the plaintiff has failed to “present affirmative evidence . . . to
defeat a properly supported motion for summary judgment.”
Liberty Lobby, 477 U.S. at 257.
The record is clear that Durant did not present any evidence
that he filed a formal charge with the EEOC or D.C. Office of
Human Rights within the required 180- or 300-day time
periods. See 42 U.S.C. § 2000e-5(e)(1). The earliest charge
filed by Durant was date stamped on August 12, 2008, and was
deemed filed with the D.C. Office of Human Rights and the
EEOC as of that date, which was more than 300 days after the
alleged retaliatory conduct that occurred before October 2007.
See A.A. 110. Durant does not seriously contend otherwise on
appeal, as the late 2007 unsworn correspondence he had with
the Department’s EEO coordinator and mentioned in the briefs
was insufficient to constitute a charge. See Fed. Exp. Corp. v.
15
Holowecki, 552 U.S. 389, 402 (2008). Accordingly, we hold
that because Durant provided no evidence that he timely filed
a formal charge with the EEOC or the D.C. Office of Human
Rights regarding his retaliation claims based on pre-October
2007 events, summary judgment in favor of the District on
these claims was proper.
2. Employment Actions Taken After October 2007
Durant’s next set of claims pertain to allegedly retaliatory
actions taken by the Department against him after October
2007. These actions include: (1) receiving a Letter of
Admonition on April 8, 2008 from his supervisor, Patten,
alleging that he failed to respond in a timely manner to a phone
call regarding an emergency work situation; (2) denial of his
request to use a government vehicle in or around May 2009;
(3) ongoing isolation after being transferred back to the
Warrant Squad’s headquarters in June 2009; (4) Patten’s order
in February 2010 to cease making arrests until he could
demonstrate his authority to do so; (5) denials of requests for
promotion and lack of access to job vacancy announcements or
preferential hiring in 2010; (6) the Department’s decision to
escort him from the building and place him on administrative
leave while his termination was pending in May 2010; and (7)
his termination due to the RIF, which was effective July 2,
2010.
Retaliation claims under Title VII are governed by the
familiar burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie
case of retaliation, a plaintiff must show that “(1) [he] engaged
in activity protected by Title VII; (2) the employer took an
adverse employment action against [him]; and (3) the adverse
action was causally related to the exercise of [his] rights.”
Holcomb v. Powell, 433 F.3d 889, 901–02 (D.C. Cir. 2006). If
16
a prima facie case is shown, the burden shifts to the employer
to provide a legitimate, nonretaliatory reason for its action. Id.
at 901. If the employer provides a legitimate, nonretaliatory
reason for its conduct, “the burden-shifting framework
disappears” and the question becomes “‘whether a reasonable
jury could infer . . . retaliation from all the evidence,’ which
includes not only the prima facie case but also the evidence the
plaintiff offers to ‘attack the employer’s proffered explanation
for its action’ and other evidence of retaliation.” Jones v.
Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (quoting Carter
v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir.
2004)). In rebutting the proffered explanation, the plaintiff may
show “that the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for [retaliation].”
Burdine, 450 U.S. at 253.
Amicus curiae first contends that the District Court’s order
granting summary judgment to the District should be reversed
because the court misapplied the evidentiary burdens set forth
in McDonnell Douglas. In particular, amicus curiae argues that
the court wrongly assessed whether Durant provided sufficient
evidence that he suffered adverse actions rather than whether
the District submitted evidence to prove that its actions were
not materially adverse. Amicus Br. 33. This misstates the
applicable legal framework for assessing Durant’s claims.
McDonnell Douglas places the initial burden on the plaintiff to
establish a prima facie case of retaliation, the second element
of which includes showing “that he suffered a materially
adverse action by his employer.” Jones, 557 F.3d at 677. At the
prima facie stage, the defendant is under no obligation to
present evidence proving that the challenged employment
actions were not materially adverse. Only if the plaintiff makes
an initial prima facie showing does the burden then shift to the
defendant to articulate a legitimate, nonretaliatory reason for
its action. See id. The District Court properly concluded that
17
Durant failed to make out a prima facie case because he had
not submitted sufficient evidence – beyond his own conclusory
assertions in his pleadings and summary judgment briefing – to
show that many of the challenged actions actually occurred, let
alone that they were materially adverse. See Harding v. Gray,
9 F.3d 150, 154 (D.C. Cir. 1993) (“[A] mere unsubstantiated
allegation . . . creates no genuine issue of fact and will not
withstand summary judgment.” (internal quotation marks
omitted)). For that reason, we will consider only the claims for
which Durant pointed to evidentiary support: the Letter of
Admonition, the lack of access to a government vehicle,
suspension of his arrest authority, and his termination.
The parties do not dispute that Durant satisfied the first
element of a prima facie case of retaliation by participating in
the Neal sexual harassment lawsuit, filing EEOC charges, and
commencing the instant action. See Amicus Br. 18–19;
Appellee’s Br. 17, 33, 54. The gravamen of the parties’ dispute
is whether Durant satisfied the second element – that is,
whether the actions taken by the Department were materially
adverse to Durant. See Amicus Br. 34–38; Appellee’s Br. 27–
49. The Supreme Court has clarified that, in the context of
retaliation claims, materially adverse actions are “not limited
to discriminatory actions that affect the terms and conditions of
employment,” Burlington N., 548 U.S. at 64, but also include
actions that might have “dissuade[d] a reasonable worker from
making or supporting a charge of discrimination,” id. at 57.
Applying the Burlington Northern standard, we affirm the
District Court’s holding that only one of the challenged actions
for which Durant provided supporting evidence – his
termination in 2010 – rose to the level of a materially adverse
action. We will consider the retaliation claims in turn, starting
with the admonition letter.
18
We reject Durant’s contention that a reasonable jury could
find that his supervisor’s issuance of a Letter of Admonition on
April 8, 2008 constituted a materially adverse action. The letter
merely informed Durant of “specific deficiencies regarding
[his] conduct” in neglecting to respond in a timely manner to a
phone call regarding an escapee and “warn[ed] [him] that
future violations w[ould] result in corrective or adverse
action.” A.A. 493. A reprimand letter setting forth allegations
of deficient work performance is not a materially adverse
action absent a showing that the letter would have dissuaded a
reasonable employee from engaging in protected activity. See,
e.g., Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir.
2008) (finding that a letter of reprimand containing “job-related
constructive criticism” but no “abusive language” was not
materially adverse); Whittaker v. N. Illinois Univ., 424 F.3d
640, 648 (7th Cir. 2005) (holding that an employee’s negative
evaluation and written warnings from her employer were
“putatively disciplinary matters” that did not rise to the level of
materially adverse actions).
Next, Durant’s assertion that a reasonable trier of fact could
find that the Department’s refusal to assign him a government
vehicle constitutes a materially adverse action also lacks merit.
Durant’s only evidence in support of this claim is a
memorandum he wrote to Patten requesting that he be assigned
a vehicle to perform his Warrant Squad obligations. A.A. 538–
39. As the District Court correctly determined, Durant did not
provide any evidence, beyond his own conclusory allegations,
that his inability to access a vehicle “produce[d] an injury or
harm,” Burlington N., 548 U.S. at 67, such as instances in
which he could not complete a particular assignment, Durant,
932 F. Supp. 2d at 69.
We also reject Durant’s claim that the Department’s
decision to suspend his arrest authority was a materially
19
adverse action. Durant contends that, on February 5, 2010,
Patten ordered him to cease making arrests until he provided
proof of his authority to do so. See A.A. 498–500. Assuming
Durant’s arrest powers were actually suspended, we find no
merit in his claim that his supervisor’s request for
documentation regarding his authority to perform arrests was
materially adverse. In Baloch, we held that an employer’s
requirement that an employee provide doctors’ certificates
when requesting sick leave was not materially adverse absent
“evidence of any instances when the procedures led him to
forgo leave.” 550 F.3d at 1198. Durant has likewise failed to
offer evidence that he was unable to perform his workplace
obligations due to Patten’s demand for proof of his arrest
authority.
Finally, we consider Durant’s claim that he was terminated
in 2010 in retaliation for engaging in protected activities. We
agree with the District Court that Durant’s termination is the
only action that rises to the level of a materially adverse action.
See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)
(stating that adverse employment actions under Title VII
include termination of employment). After reviewing the
record, the District Court determined that the Department
proffered a legitimate, nonretaliatory reason for its termination
of Durant – namely, a District-wide RIF due to budgetary
constraints. See Durant, 932 F. Supp. 2d at 72. This rationale,
the District Court noted, was set forth in “the [Department’s]
response to [Durant’s] appeal of the RIF before the [District’s]
Office of Employee Appeals,” which Durant submitted as
evidence in his case. Id. According to this document – which is
a sworn statement of a Department representative – “the
Department reviewed its programs and determined which
functions would have the least negative impact on the
Department’s ability to perform its mandated functions” and
determined that thirteen positions would be eliminated. A.A.
20
516. Amicus curiae contends that it was improper for the
District Court to have identified this reason on its own in the
evidentiary record, because it was the District’s burden to
assert the Department’s reasons for termination through
admissible evidence. Amicus Br. 40. We disagree.
A sworn statement by a Department official explaining the
Department’s reasons for eliminating Durant’s position
satisfied the Department’s burden of “explaining clearly the
[nonretaliatory] reasons for its actions.” Burdine, 450 U.S. at
260; see Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 548
F.3d 137, 144 (D.C. Cir. 2008) (holding that sworn depositions
and documentary evidence sufficed to meet the employer’s
burden to produce a legitimate, nondiscriminatory reason for
its conduct). Moreover, the District Court’s reliance on this
documentary evidence was not improper, as it is well-
established that when considering a motion for summary
judgment a District Court may “consider other materials in the
record,” Fed. R. Civ. P. 56(c)(3), beyond those “called to its
attention by the parties,” Fed. R. Civ. P. 56 Advisory
Committee’s Note to 2010 Amendment; see Brady v. Office of
Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008) (“When
determining whether summary judgment or judgment as a
matter of law is warranted for the employer, the court considers
all relevant evidence presented by the plaintiff and
defendant.”).
Because the Department offered a legitimate,
nonretaliatory explanation for Durant’s termination, we
“proceed[] to the ultimate issue of retaliation vel non instead of
evaluating whether [Durant] made out a prima facie case.”
Jones, 557 F.3d at 678. On this point, the only question we
must resolve is whether Durant has proffered evidence that “the
legitimate reasons offered by the defendant were not its true
reasons, but were a pretext” for retaliation. Burdine, 450 U.S.
21
at 253. After careful review of the record, we conclude that the
District Court properly determined that summary judgment
was warranted because there is no genuine dispute as to
whether the Department’s reason for Durant’s termination was
pretextual. At numerous points in this litigation – including in
his own deposition and response to the District’s Statement of
Undisputed Facts – Durant conceded that he was separated as
a result of the RIF. See A.A. 303–04. Compare A.A. 258
(asserting that Durant’s separation from employment was due
to a RIF), with A.A. 427 (admitting the factual assertion that
Durant’s termination was due to a RIF). Given Durant’s
concession, a reasonable jury could not find that the stated
reason for his termination was not the “actual reason,” Brady,
520 F.3d at 495, or that a retaliatory reason “more likely
motivated” the Department, Jones, 557 F.3d at 678 (quoting
Burdine, 450 U.S. at 256).
Moreover, the only evidence Durant provided to support an
inference of retaliation was the temporal proximity between his
having filed the present action (on January 6, 2010) and his
termination (for which he received notification on May 25,
2010). See Pl.’s Statement of Points and Authorities in Supp.
of Opp’n to Def.’s Mot. Summ. J. at 33–34. Where, as here, an
employer has provided a legitimate, nonretaliatory reason for
its employment action, “positive evidence beyond mere
proximity is required to defeat the presumption that the
proffered explanation[] [is] genuine.” Talavera v. Shah, 638
F.3d 303, 313 (D.C. Cir. 2011) (quoting Woodruff v. Peters,
482 F.3d 521, 530 (D.C. Cir. 2007)). Durant provided no such
positive evidence. Accordingly, summary judgment on
Durant’s claim of retaliatory termination was proper.
22
D. The Hostile Work Environment Claim
We find no merit in Durant’s hostile work environment
claim. Title VII prohibits employers from “requiring people to
work in a discriminatorily hostile or abusive environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A plaintiff
pleading a hostile work environment claim must show that he
was exposed 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.’” Id. (citation omitted) (quoting Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). To
assess a claim of hostile work environment, the court considers
“the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Id. at 23.
In the proceedings before the District Court, Durant
provided no evidence that he was subjected to “severe or
pervasive” conduct by the Department. He failed to
substantiate his contentions with evidence that, for example, he
was “routinely subjected to isolation away from his
colleagues,” “continually subjected to threats to his
employment [or] admonishments,” and “denied equal pay and
equal access to resources.” Pl.’s Statement of Points and
Authorities in Supp. of Opp’n to Def.’s Mot. Summ. J. at 38.
And for several other challenged actions for which Durant
offered evidentiary support – including the 2007 administrative
leave and 2008 reprimand letter – the evidence suggests that
such actions were taken not to “intimidat[e], ridicule, [or]
insult” him, Harris, 510 U.S. at 21, but rather to address his
deficient work performance. Accordingly, summary judgment
on this claim was proper.
23
E. Request to Remand the Case to Supplement the Record
Finally, Durant requests that we remand the case to the
District Court to permit him to submit new documents into the
record. He alleges that his attorney – who represented him prior
to and throughout the summary judgment proceedings, see
Durant, 932 F. Supp. 2d at 62 n.8 – omitted to enter into the
record “critical sworn depositions and affidavits, entire
documents, [and] exhibits . . . in his possession,” including
depositions of “two individuals” who had “direct knowledge”
of this case and previously represented Durant before the
Department in “similar instances of allegations of retaliations”
and were “co-complainants in other retaliatory complaints.”
Appellant’s Br. 3–4. He asks that the case be remanded so that
discovery can be “re-opened to allow re-introduction of th[e]se
documents.” Id. at 4. We deny this request.
The District Court provided Durant ample time to obtain
discovery and present evidence in support of his claims. The
court permitted Durant to amend his complaint twice and
extended the discovery deadline four times. See Durant, 932 F.
Supp. 2d at 62–63. The trial court also allowed Durant to file
an expert report pursuant to Rule 26(a)(2)(B) “nearly five
months after the close of discovery and over a year after the
deadline for plaintiff to file expert reports.” Id. at 63. There is
no indication in the record that Durant filed a motion with the
District Court requesting time for additional discovery under
Federal Rule of Civil Procedure 56(d).
Similarly, on appeal, Durant did not move to supplement
the appellate record pursuant to Federal Rule of Appellate
Procedure 10(e)(2)(C) or describe in his briefings the contents
of the documents he alleges were in his attorney’s possession
but not entered into the record. Nor has he explained how the
documents would have shown a genuine issue of material fact
24
sufficient to overcome summary judgment on any of his claims.
Because Durant had a full opportunity to depose witnesses and
obtain documents by discovery and has failed to explain to this
court why additional discovery would be helpful, we deny his
request to remand the case for supplementation of the record.
See Grenier v. Med. Eng’g Corp., 243 F.3d 200, 208 (5th Cir.
2001) (holding that because “[plaintiff] had ample opportunity
to present evidence supporting her claims, but she failed to do
so,” there was “no reason to remand the case to reopen
discovery”).
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
District Court with respect to Durant’s retaliation and hostile
work environment claims and deny Durant’s request to remand
the case to the District Court to reopen discovery.
So ordered.