Sledge v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
DAVID H. SLEDGE, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-cv-1888 (KBJ)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff David H. Sledge (“Plaintiff” or “Sledge”) is an African-American police
officer in the District of Columbia’s Metropolitan Police Department (“MPD”) who has
high blood pressure and hypertension. Sledge brought the instant action against the
District of Columbia (“Defendant” or “the District”), alleging that MPD officials
subjected him to race discrimination, retaliation, and a hostile work environment in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and that the
District is also liable under Section 1983 for violating his Fifth Amendment right to
equal protection. (See Compl., ECF No. 1, ¶¶ 64-121.) The gravamen of Sledge’s
complaint is that his supervisor, Assistant Chief of Police Diane Groomes, has long
discriminated and retaliated against him on the basis of his race and medical
condition—primarily by singling him out for heightened scrutiny and harsher discipline.
(Id. ¶¶ 45-48, 66-81.) In addition, Sledge faults the District for failing to act on his
prior complaints regarding Groomes’s alleged acts of discrimination. (Id. ¶¶ 53-54.)
Before this Court at present is Defendant’s motion for summary judgment.
(Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 24.) Defendant maintains that
Sledge has failed to show that the District’s legitimate, non-discriminatory reason for
disciplining Sledge is pretext for discrimination or retaliation, and that there is no
record evidence to demonstrate either the causation necessary to sustain Sledge’s
retaliation claim or that Sledge was subjected to a hostile work environment.
Additionally, Defendant argues that Sledge has failed to demonstrate a basis for
municipal liability with respect to his Section 1983 claim. This Court agrees that the
District is entitled to summary judgment on all of Sledge’s claims; accordingly,
Defendant’s motion for summary judgment will be GRANTED. A separate order
consistent with this opinion will follow.
I. BACKGROUND
This case primarily arises out of a series of events in February of 2009 involving
Sledge and Groomes, which are recounted below and are undisputed unless otherwise
noted. 1 As mentioned, Sledge is an African-American police officer who has worked as
an officer of the MPD since 1985 and has held the rank of captain since 2007. (See
Compl. ¶ 11; see also Dep. of David Sledge (“Def.’s Sledge Dep.”), ECF No. 25-1, at
5-6.) 2 Sledge’s medical condition—hypertension and high blood pressure—has
1
Many of the facts have been culled from exhibits to the parties’ memoranda that were filed in this
Court under seal. (See May 2008 Request for Administrative Leave to Attend Outside Training, ECF
No. 26-1; Request for Administrative Leave, ECF No. 26-2; Notice of Proposed Adverse Action, ECF
No. 26-3; Final Notice of Adverse Action, ECF No. 26-4; Letter of Chief of Police Cathy Lanier dated
July 29, 2009, ECF No. 26-5; Investigation with Recommendations Regarding Neglect of Duty by
Captain David Sledge, ECF No. 26-6; Letter of Chief of Police Cathy Lanier dated Apr. 26, 2010, ECF
No. 26-7; Sledge Performance Evaluation, ECF No. 26-8; June 2008 Request for Administrative Leave
to Attend Outside Training, ECF No. 26-10; Order of Dismissal Regarding Appeal of Non-
Performance-of-Duty, ECF No. 26-11; Mem. Regarding Sledge’s Demotion Appeal, ECF No. 33-1;
Decision on Sledge’s Demotion Appeal, ECF No. 33-2.) In their unsealed briefs on the instant motion,
the parties have referenced and quoted from portions of these exhibits, and this Court has done the
same in this opinion. However, the documents themselves will remain sealed in their entirety on the
docket until further notice.
2
Page numbers throughout refer to the numbers that the Court’s electronic filing system assigns. In
addition, the Court notes that both parties have submitted excerpts of Sledge’s deposition. Defendant’s
2
interfered with his ability to work at times, requiring him to take sick leave. (See
Def.’s Sledge Dep. at 4.)
In April of 2008, Sledge’s immediate supervisor, Commander Joel Maupin
(“Maupin”), and his second-level supervisor, Groomes, appointed Sledge to serve as
“administrative captain.” (Id. at 2; Def. District of Columbia’s Stmt. of Material Facts
as to which there is No Genuine Issue (“Def.’s Facts”), ECF No. 24, at 3-6, ¶ 3). In this
capacity, Sledge was responsible for assigning officers to criminal investigations;
monitoring the assignees’ timeliness, progress, and completion of tasks; and reviewing
administrative correspondence. (Role of Admin. Cpt., ECF No. 25-2, at 1; Pl.’s Sledge
Dep., ECF No. 31-3, at 18.) At the time of the appointment, Sledge and Maupin worked
at MPD’s Seventh District headquarters in the Southeast quadrant of the District of
Columbia, while Groomes was stationed in Northwest D.C. (Def.’s Facts ¶ 3.)
By all accounts, the administrative captain position involved a significant
amount of extra work for Sledge. (See Pl.’s Sledge Dep. at 12-15.) In June of 2008,
two months into his service as administrative captain, Sledge requested leave to attend a
week-long training program, but Maupin denied the request on the ground that Sledge
was too far behind on work-related tasks. (See Request for Training, ECF No. 26-1, at
1-2; Pl.’s Sledge Dep. at 25; see also Denial Letter, ECF No. 26-2, at 1.) According to
the complaint, in the fall of that same year, Sledge “began to complain to management
regarding the discrimination he believed he was being subjected to.” (Compl. ¶ 21.)
excerpts are referred to throughout as “Def.’s Sledge Dep.,” while the excerpts that Sledge submitted
are referred to as “Pl.’s Sledge Dep.”
3
Sledge’s Neglect Of Duty Charge
While serving as administrative captain, Sledge briefly took on an additional
role: Maupin assigned Sledge to serve as Acting Commander of the Seventh District
for one week—from Wednesday, January 28, 2009, until Wednesday, February 4,
2009—while Maupin was out on leave. (Groomes Inv. Report, ECF No. 26-6, at 1.)
Over the weekend during this assigned period, there were two shooting homicides and a
stabbing incident in the Seventh District. (Id. at 1.) The precinct called Sledge at home
and sent him emails directing him to return to work immediately in order to oversee the
investigations. (Id. at 1-2.) Sledge did not respond to the calls or the emails, nor did he
oversee the homicide and stabbing investigations, and he did not return to work until
Monday, February 2nd. (Id.) In addition, according to Groomes, Sledge was unable to
apprise his supervisors sufficiently at a briefing session upon his return. (Id. at 2
(providing examples of specific questions that Sledge was unable to answer).) For his
part, Sledge has admitted that he was absent over the weekend, but also has insisted that
the captain who was on duty at the time should have been held responsible. (See Pl.’s
Sledge Dep. at 75-76.) In addition, Sledge disputes Groomes’s characterization of his
briefing performance: Sledge maintains that he answered every question he was asked
during the session, despite the fact that Groomes “scream[ed] and holler[ed] at [him],
and just humiliated [him] in front of everybody” present. (Pl.’s Sledge Dep. at 79.)
At the end of the briefing session, Groomes assigned Sledge several tasks,
including writing a report that was due the following day. (See Groomes Inv. Report at
2.) Shortly after the meeting, Groomes followed up with e-mails requesting the report
even sooner—by later that same afternoon. (See Pl.’s Sledge Dep. at 79-80; Groomes
4
Inv. Report at 2.) It is undisputed that Sledge did not complete the report or the other
assigned tasks. Instead, he left the office after he began to feel ill, and went to the
police officer’s clinic, which placed him on sick leave due to hypertension-related
symptoms. (Pl.’s Sledge Dep. 80-83; Groomes Inv. Report at 4-5.) Sledge did not tell
Groomes that he was leaving the office, but he did speak with Maupin, who was out of
town at the time. (See Groomes Inv. Report at 2-3.) In their brief phone call, Sledge
told Maupin that he was leaving the office due to illness and asked Maupin to send in a
replacement; Maupin denied the request. (See id.; see also Pl.’s Sledge Dep. at 82-83.)
The parties dispute whether Sledge told Maupin that he had pressing assignments due to
Groomes. (Compare Groomes Inv. Report. at 2-3 (noting that Sledge never told Maupin
about the outstanding reports), with Pl.’s Sledge Dep. at 82-84 (contending that he told
Maupin about the reports).) In any event, Sledge asked a lower-ranking officer to
complete the tasks for him, and it is undisputed that the officer did not finish the work.
Sledge did not return to the office until February 17, 2009; from Groomes’s
perspective, Sledge’s sudden absence for fifteen days resulted in the failure to address
“numerous issues and requested items[.]” (Groomes Inv. Report at 3.)
In the wake of Sledge’s weekend absence, unexpected and generally
unannounced departure from work during the following week, and incomplete
assignments, Groomes initiated an administrative investigation into Sledge’s conduct.
(See id.; see also EEOC Intake Questionnaire, ECF No. 25-5, at 6.) This investigation
commenced on February 3, 2009, and concluded on February 21, 2009, and involved
collecting statements from officers with knowledge of the pertinent events, such as
Sledge, Maupin, and the lower-ranking officer Sledge asked to fill in for him.
5
(Groomes Inv. Report at 4-9; EEOC Intake Questionnaire at 6.) Upon completing her
investigation, Groomes issued a report recommending that Sledge be disciplined for
neglect of duty. (See Groomes Inv. Report at 14 (recommending that Sledge “be cited
for adverse action” but not suggesting a particular course of action).) The bases for the
suggested disciplinary action were: (1) Sledge’s failure to report to duty on Sunday,
February 1st; (2) Sledge’s failure to respond sufficiently to the homicide incidents and
to prepare for the briefing session; (3) Sledge’s failure to complete priority assignments
or to ensure that they were otherwise completed; and (4) Sledge’s failure to notify
Groomes that he was leaving the office due to illness. (Id. at 13-14.)
Groomes’s neglect-of-duty report made its way through MPD’s administrative
channels. On March 2, 2009, the chief of MPD’s Internal Affairs Division concurred
with Groomes’s report and recommendation. (See EEOC Intake Questionnaire at 6.)
An MPD Disciplinary Review Officer then reviewed Groomes’s investigative report,
concurred with the findings, and recommended that Sledge be demoted to the rank of
lieutenant. (Id.) The MPD served Sledge with a Notice of Proposed Adverse Action for
Demotion on April 13, 2009. (See ECF No. 26-3, at 1-2.) Days later, Sledge filed a
formal response in which he denied the charge and contended inter alia that the
responsibility for the failure to complete the assignments should not lie with him. (See
Final Notice of Adverse Action, ECF No. 26-4, at 1-2 (referencing Sledge’s response);
see also EEOC Intake Questionnaire at 7 (same).) Upon review, the MPD disagreed
with Sledge and concurred with the earlier finding that he was remiss in his duties and
that the neglect-of-duty charge was warranted. (Final Notice of Adverse Action at 2,
6
4.) Sledge received a Final Notice of Adverse Action informing him of his demotion on
June 24, 2009. (Id. at 1.)
Pursuant to MPD regulations, Sledge then appealed the decision to the Chief of
the MPD, Cathy Lanier. (See Letter of Chief of Police Cathy Lanier dated July 29,
2009, ECF No. 26-5, at 1.) While that appeal was pending, Sledge received his first
ever negative performance evaluation. (See EEOC Intake Questionnaire at 2.) By letter
of July 29, 2009, Chief Lanier upheld the neglect-of-duty finding but reduced the
punishment: instead of demotion, the Chief imposed a twenty-day suspension without
pay, ten days of which would be held in abeyance for one year. (Id. at 9.) According to
Sledge, this punishment prevented him from being eligible for a promotion for the next
three years. (See Pl.’s Sledge Dep. at 58 (explaining that an officer cannot be appointed
to a higher-ranking position within three years of any disciplinary actions).)
EEO Complaints
Groomes’s neglect-of-duty investigation was still in its early stages when Sledge,
who was out on sick leave, met with Assistant Chief of Police Alfred Durham to
complain that Groomes had been discriminating against him. The meeting took place
on February 12, 2009, and Sledge maintained that Groomes had created a hostile work
environment for him because of his hypertension and use of sick leave. (See EEOC
Intake Questionnaire at 5.) Later that same day, Sledge met with MPD’s EEO
administrator Nicole Webster and made the same report. (Id.) In reflecting on these
two meetings later, Sledge could not specifically recall mentioning race discrimination
to either Durham or Webster. (See Pl.’s Sledge Dep. at 22 (Plaintiff “cannot recall”
whether he mentioned race discrimination to Webster on February 12, 2009); id. at 29
7
(Sledge asserts that he spoke to Durham about Groomes on February 12, 2009, without
any reference to having discussed race discrimination); id. at 30 (with respect to
Durham, “I believe I told him that [Groomes] was singling me out”); EEOC Intake
Questionnaire at 5 (Sledge describes his February 12, 2009, reports to Webster and
Durham as complaining of disability discrimination); but see Pl.’s Sledge Dep. at 30
(with respect to the meeting with Durham, Sledge “believe[d]” he mentioned “the racial
issue also”).)
These February 2009 complaints to Durham and Webster were not Sledge’s first
time reporting Groomes’s alleged mistreatment of him. According to Sledge, he first
complained to Maupin about Groomes in November of 2008, and at that time, Sledge
purportedly told Maupin that Groomes had been “discriminating against [him] racially.”
(Pl.’s Sledge Dep. at 22, 26-28.) Sledge maintains that he also complained to Chief
Lanier about Groomes over the next year (EEOC Intake Questionnaire at 5); however,
there is nothing in the record that establishes Sledge ever mentioned race discrimination
in his complaint to Chief Lanier.
On March 3, 2009, Sledge formally filed his first EEO complaint, alleging that
he had “been discriminated against based on [his] disability, in violation of the [ADA.]”
(Mar. 3, 2009, Charge of Discrimination (“March Charge of Discrimination”), ECF No.
25-3, at 1.) 3 Specifically, Sledge contended that Groomes’s neglect-of-duty
investigation constituted discrimination based on his disability and use of sick leave,
and was initiated in retaliation for his having reported her to Durham on February 12,
2009. (See id. at 1.) Sledge also noted that he had requested to be transferred and
3
The written charge of discrimination that was served on the MPD is dated March 17, 2009, but the
parties agree that Sledge went to the EEOC office to file the charge on March 3, 2009. (See March
Charge of Discrimination at 1.)
8
removed from Groomes’s supervision on several occasions, but his request had not been
granted. (Id.)
On November 9, 2009, Sledge returned to the EEOC and completed an “Intake
Questionnaire.” (See EEOC Intake Questionnaire at 1.) The Intake Questionnaire is a
standard form that includes questions regarding the nature and circumstances of the
alleged discrimination; Sledge completed the form by hand. Apparently seeking to
amend his March charge of disability discrimination, at the top of the questionnaire
Sledge wrote “AMENDMENT” and the administrative case number of his March
charge. In response to a question asking for a description of the alleged discriminatory
actions, Sledge wrote that Groomes and Maupin were engaged in “ongoing”
discriminatory acts against him (id. at 2); specifically, the “proposal for demotion,”
“[i]nitiating unwarranted discipline action and heightened scrutiny of work,” and
“preparing and submitting [a] negative performance report[.]” (Id.) Sledge also stated
that he had sent a memo to Chief Lanier “requesting to be removed from the
environment and from under the supervisory control” of Groomes and Maupin, but that
his request had been denied. (Id. at 3.)
Sledge attached to the Intake form a letter he had written (also dated November
9, 2009) that was titled “Retaliation and Harassment Complaint.” (See id. at 5.) This
narrative largely related to Sledge’s retaliation allegations insofar as it recounted
Sledge’s complaints about Groomes to various authorities and MPD’s alleged
response—actions that Sledge characterized as “unlawful discrimination, a hostile
workplace[,] and retaliation[,]” and attributed to a number of MPD officials, including
Durham, Groomes, Maupin, and the officials involved in the neglect of duty
9
investigation and determination. (Id. at 10.) For example, Sledge specifically
contended that Groomes’s investigation and the resulting Notice of Proposed Adverse
Action recommending his demotion were retaliation for his filing the March charge of
discrimination. (Id. at 7.) In support of this retaliation contention, Sledge also noted
that Groomes had not initiated investigations into other officers who had failed to
complete assignments, nor had she recommended any discipline for such officers, and
he apparently attached a list of instances of overdue correspondence by other captains
that were purportedly similar to the assignments he had failed to complete. (See id. at
9.) 4 In addition, Sledge described his repeated requests that officials conduct
investigations into Groomes and Maupin and that Sledge be removed from their
supervision, and he contended that MPD’s denial of these myriad requests had created a
hostile work environment. (See id. at 7-8.)
Notably, at points during the narrative description that was attached to the Intake
Questionnaire, Sledge reiterated his belief that Groomes “was unlawfully discriminating
against me because of my chronic hypertension and disability sick leave usage
regarding my medical condition.” (Id. at 5; see also, e.g., id. at 6 (asserting that
Groomes’s “administrative investigation” was “a pretext . . . to further mask her
unlawful discriminatory conduct towards me regarding my chronic medical condition
and disability sick leave usage.”).) On the Intake form itself, Sledge checked three
boxes in response to a request for an assertion of “the reason (basis) for your claim of
employment discrimination”: “race[,]” “disability[,]” and “retaliation[.]” (Id. at 2.)
4
The record in this matter does not include this attachment; however, the narrative that Sledge attached
to the Intake form references it. (See EEOC Intake Questionnaire at 9.) Without access to that attached
document, the Court is unable to determine whether Sledge noted the race of any other officers he
purportedly listed, nor is it clear whether the listing contained any specific information about the nature
of the purported infractions.
10
Sledge elaborated on the “disability” basis in a separate section of the form (id. at 3),
but other than a checkmark in the “race” box as a described, the EEOC Intake
Questionnaire form and its attachments make no mention of discrimination on the basis
of race.
On November 18, 2009, just ten days after Sledge completed the Intake
Questionnaire, the MPD transferred Sledge to a different district. (See Email Regarding
Transfer, ECF No. 25-6, at 1.) According to Sledge, although he retained his rank as
captain, he lost seniority and had to work undesirable midnight shifts as a result of the
transfer. (See Pl.’s Sledge Dep. at 52-54.)
On December 1, 2009, Sledge returned to the EEOC to file another charge of
discrimination, this time specifically alleging that his treatment by the MPD—including
the discipline and related suspension Groomes had initiated, the poor work performance
evaluation of July 25, 2009, and his transfer to a different district—constituted
disability discrimination and retaliation in violation of the ADA. (Dec. 1, 2009, Charge
of Discrimination (“Dec. Charge of Discrimination”), ECF No. 25-7, at 1.) The EEOC
issued a second “Notice of Charge of Discrimination” on December 2, 2009, informing
the MPD of Sledge’s new complaint. (See Notice of Charge of Discrimination, ECF
No. 25-8, at 1.) According to Defendant, the EEOC mailed a copy of Sledge’s
November Intake Questionnaire along with that December notice. (Def.’s Mot. at 10.)
On January 21, 2010, Sledge met with MPD’s Internal Affairs Department and
informed staff in that office that he intended to file another EEO action in this matter.
(See Pl.’s Answers to the District’s Interrogs. (“Pl.’s Interrog. Resps.”), ECF No. 31-4,
at 30.) Four days later, an officer in the Medical Claims review division dismissed
11
Sledge’s appeal of a disability claim that he had filed a year earlier. (See Order of
Dismissal Regarding Appeal of Non-Performance-of-Duty, ECF No. 26-11, at 1.) As
rationale for dismissal of the appeal, the Medical Claims review division stated that it
had construed Sledge’s failure to report for scheduling hearings as a withdrawal of the
appeal. (See id. at 2.) Later that same month, Maupin completed a performance review
of Sledge (see Sledge Performance Evaluation, ECF No. 26-8), which Sledge contends
was a negative performance review. Specifically, Maupin rated Sledge as a “valued
performer,” id., while he had previously received a higher overall rating of “highly
effective performer[.]” (See Def.’s Mot. at 25.)
The Instant Litigation
The EEOC issued Sledge a right-to-sue letter on July 26, 2011 (Compl. ¶ 8), and
Sledge filed the instant complaint in federal court on October 25, 2011. In Count I,
Sledge alleges that he was subjected to discrimination and a hostile work environment
due to his race in violation of Title VII of the Civil Rights Act. (Id. ¶¶ 64-81.) In
Count II, Sledge alleges that he was subject to materially adverse actions (i.e.,
retaliation) and a hostile work environment in response to his earlier protected EEO
activity, also in violation of Title VII. (Id. ¶¶ 82-99.) 5 In addition, in Count IV, Sledge
alleges a Section 1983 claim, stating that the District “denied Plaintiff equal protection
of the laws under the Fifth Amendment” as a result of the alleged discriminatory
conduct of the MPD officers, and that the city is “directly liable for the discriminatory
acts or omissions of its agents, servants and employees while acting within the course
5
The jurisdictional statement in the complaint also lists the D.C. Human Rights Act (“DCHRA”), D.C.
Code §§ 2-1401.01 et seq., as the statutory basis for Sledge’s claims, but the counts themselves do not
reference the DCHRA at all. (Compare Compl. ¶ 3, with id. ¶¶ 64-99.)
12
and scope of their employment, under the theory of Respondeat Superior.” (Id. ¶¶ 118,
119 (emphasis in original).) 6
The District filed the instant motion for summary judgment at the close of
discovery on December 13, 2013. (See Def.’s Mot. at 34.)
II. LEGAL STANDARD
The Court must grant a motion for summary judgment if the moving party
demonstrates that there is no genuine dispute as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A fact
is material if it ‘might affect the outcome of the suit under the governing law,’ and a
dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury
could return a verdict for the non[-]moving party.’” Steele v. Schafer, 535 F.3d 689,
692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
Initially, the moving party has the burden of demonstrating the absence of a
genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has met this burden, the non-moving party must
designate “specific facts showing that there is a genuine issue for trial.” Id. at 324.
While the Court must view the evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in that party’s favor, see, e.g., Grosdidier v.
Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23-24 (D.C. Cir. 2013), the non-
moving party must show more than “[t]he mere existence of a scintilla of evidence in
6
Plaintiff’s original complaint also included a race discrimination claim under Section 1981 of Title 42
of the U.S. Code (Count III), but the Court dismissed this claim previously because a plaintiff cannot
assert a private right of action against a state actor under Section 1981. See Sledge v. District of
Columbia, 869 F, Supp. 2d 140, 144-45 (D.D.C. 2012).
13
support of” his or her position; instead, “there must be evidence on which the jury could
reasonably find” for the non-moving party. Anderson, 477 U.S. at 252. Moreover, the
non-moving party “may not rest upon mere allegation or denials of his pleading but
must present affirmative evidence showing a genuine issue for trial.” Laningham v.
U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (internal quotation marks and citation
omitted).
It is well established that “[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not
those of a judge at summary judgment.” Barnett v. PA Consulting Grp., Inc., 715 F.3d
354, 358 (D.C. Cir. 2013) (citation omitted). Indeed, a court’s role in deciding a
summary judgment motion is not to “determine the truth of the matter, but instead [to]
decide only whether there is a genuine issue for trial.” Id. (citation omitted).
Moreover, “the potential difficulty for a plaintiff in an employment discrimination or
retaliation action to uncover clear proof of discriminatory or retaliatory intent” warrants
caution, Nurriddin v. Bolden, No. 04-2052, 2014 WL 1648517, at *5 (D.D.C. Apr. 25,
2014) (citation omitted); therefore, in determining whether there are genuine issues of
material fact for trial, the Court reviews a defendant’s motion for summary judgment
with a slightly “heightened standard[.]” Walker v. England, 590 F. Supp. 2d 113, 133
(D.D.C. 2008) (citation omitted). Nevertheless, despite the fact that “summary
judgment must be approached with specific caution in discrimination cases, a plaintiff
is not relieved of his obligation to support his allegations” with competent evidence
showing a genuine issue for trial. Id. at 132-33 (quoting Morgan v. Fed. Home Loan.
Mortg. Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001)); see also Marshall v. James, 276
14
F. Supp. 2d 41, 47 (D.D.C. 2003) (noting that, even though courts must proceed with
caution, summary judgment is still used in discrimination cases).
III. ANALYSIS
A. Sledge’s Title VII Race Discrimination Claim (Count I)
Sledge first contends that the MPD subjected him to discrimination due to his
race. (Compl. ¶¶ 64-81.) Because there is no genuine issue of fact regarding whether
the District’s non-discriminatory rationale for the challenged actions was mere pretext
for discrimination (Sledge has not offered sufficient evidence to support the conclusion
that that it is), this Court finds that Sledge’s race discrimination claim cannot survive
the District’s motion for summary judgment.
1. Framework For Establishing Race Discrimination
Title VII prohibits federal agencies from discriminating against their employees
based on certain protected characteristics, including race. See McGrath v. Clinton, 666
F.3d 1377, 1379 (D.C. Cir. 2012) (citing 42 U.S.C. § 2000e-16(a)). It is well settled
that, for Title VII purposes, “[t]here are ‘two elements for an employment
discrimination case: (i) the plaintiff suffered an adverse employment action (ii)
because of the employee’s race, religion, sex, or national origin.’” Perry v. Shinseki,
783 F. Supp. 2d 125, 133 (D.D.C. 2011) (quoting Brady v. Office of Sergeant at Arms,
520 F.3d 490, 493 (D.C. Cir. 2008)).
As a general matter, plaintiffs may establish that they have suffered adverse
employment consequences based on a protected characteristic in two ways. First, a
plaintiff might opt to employ the “pretext” framework (otherwise known as the “single
motive” approach), and thereby demonstrate that the employer’s proffered reason for
15
the employment action was a pretext for discrimination. Id. (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)). Alternatively, a plaintiff might choose to
employ a “mixed motive” framework that allows a plaintiff to show that a protected
criterion, such as race, was a “motivating” or “substantial” factor in the challenged
employment action. See Perry v. Shinseki, 783 F. Supp. 2d 125, 133 (D.D.C. 2011)
(citations omitted); see also Ginger v. District of Columbia, 527 F.3d 1340, 1345 (D.C.
Cir. 2008)(“In a mixed motive case, but not in a single motive case, it is a partial
affirmative defense that the employer would have taken the same action even ‘in the
absence of the impermissible motivating factor’; [and] in such a case the plaintiff is
entitled only to a declaratory judgment, limited injunctive relief, and attorney’s fees.”
(citations omitted)). So long as evidence supports both the “pretext” and “mixed
motive” theories, the plaintiff need not elect a single theory of discrimination, and
instead may argue that both apply. See Ponce v. Billington, 679 F.3d 840, 845 (D.C.
Cir. 2012) (“Even though we have described but-for and mixed-motive cases as
‘alternative ways of establishing liability, a plaintiff may proceed under both theories
simultaneously.” (citations omitted)); see also Nuskey v. Hochberg, 730 F. Supp. 2d 1,
3 (D.D.C. 2010). However, the D.C. Circuit has cautioned that “at some point [the
plaintiff] must place the employer and court on notice as to the theory or theories under
which he intends to proceed.” Ponce, 679 F.3d at 845 (citing Ginger, 527 F.3d at
1345).
Nowhere in the instant complaint or in his briefs does Sledge make the argument
that his race was one of several “motivating” or contributing factors for Groomes’s
treatment of him, including her decision to investigate him and request that he be
16
disciplined. To the contrary, Sledge repeatedly argues that MPD’s stated rationale for
taking adverse action against him (i.e., his own job-performance failures) was entirely
false and, accordingly, was pretext for discrimination. (See Compl. ¶¶ 62, 70; Pl.’s
Opp’n to the District’s Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 31, at 29.) Under
D.C. Circuit precedent, a plaintiff is required to make the specific argument that race
was a “motivating factor” if he desires for the court to consider a mixed-motive theory
when ruling on a summary judgment motion, see Ponce, 679 F.3d at 845 (discussing
Ginger, 527 F.3d at 1345); and indeed, even when the plaintiff “might have had a
compelling case had [he] argued race was one of multiple motivating factors[,]”Ginger,
527 F.3d at 1345, a court need not consider any mixed motive argument if the plaintiff
has not made one, see, e.g., Ponce, 679 F.3d at 845. Here, because Sledge has opted to
proceed solely down the single motive (pretext) path, this Court has evaluated the
instant summary judgment motion only with an eye toward whether Sledge has
proffered sufficient evidence to demonstrate that the District’s proffered reason for its
disciplinary action was pretextual. See Ponce, 679 F.3d at 845; Ginger, 527 F.3d at
1345.
Courts traditionally analyze pretext arguments in Title VII employment
discrimination cases under the familiar three-step burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green. See 411 U.S. at 802-03. 7 However, the D.C.
Circuit has clarified that the court’s analysis of the first step of this framework—i.e.,
7
Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of
discrimination. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (citation omitted). If the
plaintiff establishes a prima facie case, the burden shifts to the employer to assert a legitimate, non-
discriminatory reasons for its actions. Id. (citation omitted). If the employer produces such a reason,
then the court looks to whether a reasonable jury could infer discrimination based on all of the
evidence, including the prima facie case, the employer’s rationale, and any other evidence. Id. (citation
omitted).
17
whether or not the plaintiff has established a prima facie case—is “almost always
irrelevant” and “a largely unnecessary sideshow.” Brady, 520 F.3d at 492, 494. Thus,
where, as here, the defendant employer has asserted a legitimate, non-discriminatory
reason for an employment decision, there is “one central question” that the district court
must resolve: whether the employee has produced “sufficient evidence for a reasonable
jury to find that the employer’s asserted non-discriminatory reason was not the actual
reason and that the employer intentionally discriminated against the employee on [an
improper] basis[.]” Id. at 494. In other words, the ultimate factual issue is “whether
the employee produced sufficient evidence for a reasonable jury to find the employer’s
justifications for the challenged action are merely pretext for underlying, unlawful
discrimination.” Byrd v. District of Columbia, 807 F. Supp. 2d 37, 72 (D.D.C. 2011)
(citing Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009)). In making this
determination, the court considers “all of the evidence, taken together[.]” Jones, 557
F.3d at 678. The evidence may include testimony from the decision-maker involved
and other employees, comparative evidence suggesting that the employer treated other
employees of a difference race more favorably in the same factual circumstances, or any
other evidence suggesting the employer is “making up or lying about the underlying
facts that formed the predicate for the employment decision.” Brady, 520 F.3d at 495.
2. Sledge Has Failed To Offer Sufficient Evidence To Support An
Inference That The District’s Proffered Reason For The
Disciplinary Action Was Pretextual
Sledge alleges that the administrative investigation, severe discipline, and poor
work performance evaluation that he received were all the result of race discrimination.
(See Pl.’s Opp’n at 28-29.) The District has asserted a legitimate, non-discriminatory
18
reason for these adverse employment actions; namely, that Sledge failed to meet the
requirements of his job when (a) he did not come to work to oversee three important
investigations, (b) he did not know enough about the investigations to brief his
supervisors adequately, and (c) he left the office without taking precautions to ensure
that the priority tasks that had been assigned to him would be completed in his absence.
(See Def.’s Mot. at 12-14.) Under Brady and its progeny, the question for this Court is
whether Sledge has produced evidence that is sufficient for a reasonable jury to find
that the MPD’s stated reason was not the actual reason for the actions taken, and that,
instead, the MPD intentionally discriminated against Sledge based on his race. See
Brady, 520 F.3d at 495.
The District has submitted pages of evidence describing Sledge’s purportedly
deficient conduct—chief among this evidence is Groomes’s investigative report
detailing the incidents of February 2009. (See Groomes Inv. Report at 1-3.) Notably,
this report was based both on Groomes’s own participation in the incident (in particular,
her role as Sledge’s commanding officer) and also on statements from Sledge and four
other involved officers. (See id. at 4.) For his part, Sledge does not deny that he failed
to report for work on the day of the homicides, that he deferred to another officer
during the briefing session, and that one of the priority reports he was responsible for
was never completed. Instead, Sledge’s primary argument for discrediting the District’s
asserted non-discriminatory reason for its actions is that he was disciplined more
severely than any White officers had been for allegedly analogous misconduct. (See
Pl.’s Opp’n at 31.)
19
This Court concludes that Sledge has failed to offer evidence that is sufficient to
demonstrate that the legitimate and non-discriminatory reasons that the MPD has
provided for its treatment of Sledge were pretext for race discrimination. As an initial
matter, Sledge does not contend—and the evidence in no way reflects—that Groomes or
anyone else at the MPD made racially-tinged comments or undertook actions that, in
and of themselves, suggested race bias, either explicitly or implicitly. Instead, Sledge
asserts that other (White) officers who were facing neglect of duty charges received
more favorable treatment than he did. To support this contention, Sledge points to three
pieces of evidence: first, the deposition testimony of MPD officer Michael Eldridge,
who stated that he could not recall any other officer he disciplined for failing to submit
a homicide report (see Dep. of Michael Eldridge (“Eldridge Dep.”), ECF No. 31-2, at
13); second, his own testimony identifying two White officers who “had late reports
and were not disciplined” (Pl.’s Sledge Dep. at 48-49); and third, a list of the 68
Neglect of Duty charges that the MPD issued to high-ranking officers from 2007 to
2012, which shows that a majority of charged officers were African American, and none
of the charged White officers were subject to demotion as punishment (see Lieutenants
& Above Discipline From 2007 to Present (“Charge Statistics”), ECF No. 31-5, at 1-
16). But as explained below, none of these evidentiary bases establishes that these
other officers are meaningful comparators.
It is well established that, to be successful in the use of comparator evidence,
“the plaintiff must point to a similarly situated employee outside of a protected class
who committed comparable offenses but who was punished less severely by the same
deciding official.” White v. Tapella, 876 F. Supp. 2d 58, 70 (D.D.C. 2012) (emphasis
20
added) (citing Cabrera v. United States, 333 F. App’x 559, 564-65 (Fed. Cir. 2009));
see also id. (noting that an employee must “hold the same position as the plaintiff” to
be similarly situated). Sledge has not demonstrated that the comparator evidence he
proffers in this case meets that requirement. For example, it is not at all clear that the
other officers’ offenses that were mentioned in the deposition testimony are similar to
Sledge’s: even though the White officers may have failed to submit assigned reports
(see Eldridge Dep. at 13; Pl.’s Sledge Dep. at 48-49), Sledge was disciplined for much
more than a single failure to submit a required assignment (see Eldridge Dep. at 14;
Notice of Proposed Adverse Action at 1-2 (Sledge’s neglect of duty charge was based
on four separate incidences of misconduct)). Likewise, the proffered testimony is
devoid of any statements regarding what ranks the other officers held, and the record
does not establish that the deciding official in the comparison cases was the same as in
Sledge’s case—a crucial variable if any legitimate inference regarding intentional
discrimination is to be drawn. See Davis v. Ashcroft, 355 F. Supp. 2d 330, 344 (D.D.C.
2005); see also Phillips v. Holladay Prop. Servs., Inc., 937 F. Supp. 2d 32, 35 (D.D.C.
1996) (noting that the decision-maker or supervisor must be the same for the employees
to be similarly situated), aff’d, 1997 WL 411695 (D.C. Cir. June 19, 1997). Sledge’s
chart listing all Neglect of Duty charges fares no better. Only 22 of the 68 charges on
the list involved captains; none of the Neglect of Duty violations appear to have
involved a laundry list of “specifications”—i.e., incidents—that are similar to Sledge’s;
and there is no information about the deciding official. (See Charge Statistics at 1-16.)
Thus, the list of other Neglect of Duty charges also fails to establish that the cases
21
involving White officers involved competent comparator evidence. See White, 876 F.
Supp. 2d at 70.
The fact that an inference of race discrimination cannot reasonably be drawn
from Sledge’s comparator evidence is fatal to his Title VII race discrimination claim,
because Sledge has not based his pretext assertion on anything else. Consequently,
Defendant is entitled to summary judgment on Sledge’s intentional race discrimination
claim as a matter of law.
B. Retaliation Claim (Count II)
Sledge has also alleged a stand-alone retaliation claim in which he points to
many of the same instances of alleged race discrimination and maintains that, as
reprisal for his complaints regarding Groomes’s alleged discrimination, he suffered a
host of adversities, including
being unjustly disciplined, denial of [a] job-related stress claim, demotion
proposed, being unfairly targeted, having his work scrutinized,
involuntarily transferred (twice), involuntarily assigned to an undesirable
midnight shift, increase of workload despite being on light duty status,
having his ideas pertaining to increase in DCMPD work productivity
disregarded and denial of extra manpower.
(Compl. ¶ 88.) For the reasons that follow, the District is also entitled to summary
judgment on Sledge’s retaliation claim.
1. Framework For Proving Retaliation
To prove a prima facie case of retaliation, a plaintiff must show (1) that he
engaged in a statutorily protected activity; (2) that he suffered a materially adverse
action by his employer; and (3) that a causal link connects the two. Hamilton v.
Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (citation omitted). With respect to
whether the employer’s action is “materially adverse” for the purposes of a retaliation
22
claim, courts consider whether the action “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Lancaster v. Vance-Cooks, 967 F. Supp. 2d
375, 386 (D.D.C. 2013). Courts have found that disciplinary investigations and
suspensions without pay may be sufficiently adverse to support a retaliation claim. See,
e.g., Baloch v. Kempthorne, 550 F.3d 1191, 1199-1200 (D.C. Cir. 2008); Rattigan v.
Holder, 604 F. Supp. 2d 33, 52 (D.D.C. 2009). However, to establish the requisite
causal nexus between the protected activity and the employer’s materially adverse
action, a plaintiff must demonstrate by direct or circumstantial evidence that the
employer had actual knowledge of the protected activity and took adverse action against
him because of it. See Jones, 557 F.3d at 670; see also Cones v. Shalala, 199 F.3d 512,
521 (D.C. Cir. 2000); Lowe v. District of Columbia, 669 F. Supp. 2d 18, 29-30 (D.D.C.
2009).
Retaliation claims brought under Title VII are subject to the same burden-
shifting framework at the summary judgment stage as single-motive discrimination
claims. See Jones, 557 F.3d at 678; see also Rattigan v. Holder, 982 F. Supp. 2d 69, 82
(D.D.C. 2013) (“[A] Title VII retaliation claim cannot rely on a mixed motive theory.”).
As explained earlier, although the McDonnell-Douglas framework applies, the D.C.
Circuit has directed district courts to fast forward to the ultimate question of whether all
of the evidence, taken together, supports an inference of retaliation when the employer
has proffered a legitimate, non-discriminatory reason for the adverse action at issue.
See Jones, 557 F.3d at 678 (citing Wiley v. Glassman, 511 F.3d 151, 155-56 (D.C. Cir.
2007)); see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en
23
banc)). Accordingly, “the court reviews each of the three relevant categories of
evidence—prima facie, pretext, and any other—to determine whether they ‘either
separately or in combination’ provide sufficient evidence for a reasonable jury to infer
retaliation.” Jones, 557 F.3d at 678 (citing Waterhouse v. District of Columbia, 298
F.3d 989, 996 (D.C. Cir. 2002)).
2. No Reasonable Jury Could Find That Sledge Was Subject To
Retaliation In Violation Of Title VII
As explained, to successfully demonstrate retaliation, Sledge must show that he
engaged in protected activity and that the MPD subjected him to adverse action because
of that activity. Hamilton, 666 F.3d at 1357. It is important to note for present
purposes that not all of the myriad complaints about Groomes that Sledge allegedly
made to various officials throughout the relevant time period qualify as “protected
activity” giving rise to an actionable Title VII retaliation claim. This is because, in
order to have engaged in a “protected activity” for the purpose of Title VII, a plaintiff
must have expressed opposition to “‘a practice made an unlawful employment practice’
by the statute.” McGrath, 666 F.3d at 1380 (quoting 42 U.S.C. § 2000e-3(a)). Title VII
does not prohibit disability discrimination at all—that, of course, is the provenance of
the ADA—consequently, complaints of discrimination “based only on [a plaintiff’s]
purported disability, which is not a characteristic enumerated in Title VII[,]” cannot
serve as the statutorily protected activity that underlies a Title VII retaliation claim.
Branscomb v. Sec’y of Navy, 461 F. App’x 901, 906 (11th Cir. 2012); see also
Omogbehin v. Cino, 485 F. App’x 606, 611 (3d Cir. 2012) (“A Title VII retaliation
claim must [ ] be based upon discrimination made unlawful by Title VII . . . [, which]
does not address discrimination based upon disabilities.” (citations omitted)). Thus,
24
any reports and complaints that Sledge made about Groomes’s alleged discrimination
and retaliation on the basis of his medical condition (without reference to race
discrimination) cannot give rise to a retaliation claim under Title VII. McGrath, 666
F.3d at 1382.
Unfortunately for Sledge, the record evidence establishes clearly that the vast
majority of his complaints about Groomes were allegations that Groomes singled him
out as a result of his hypertension, high blood pressure, and use of sick leave—and
therefore, related to disability discrimination only. (See Pl.’s Sledge Dep. at 4, 22, 30,
33, 60.) In fact, with respect to the evidence submitted in conjunction with the parties’
summary judgment briefs, there are only two times in which race discrimination is even
mentioned: first, Sledge alleges that he complained orally to Maupin in December of
2008 that he felt Groomes was discriminating against him because of his race (see id. at
26-28), and second, Sledge’s EEOC Intake Questionnaire—titled “Amendment” and
filed on November 9, 2009, subsequent to Sledge’s March 2009 formal charge of
disability discrimination—included “race” as one of the checked bases for Sledge’s
previously initiated discrimination and retaliation proceedings. Given the
overwhelming evidence that Sledge’s primary complaint and concern was about the
discrimination that he believed Groomes was subjecting him to on the basis of his
disability, Sledge has only the thinnest of reeds upon which to base his claim that he
was retaliated against because of his engagement in a “protected activity” for the
purpose of Title VII. See McGrath, 666 F.3d at 1382; Branscomb, 461 F. App’x at 906;
Omogbehin, 485 F. App’x at 611.
25
Because Sledge’s Title VII retaliation claim is properly based on only the two
complaints of race discrimination that are supported by the record, this Court’s analysis
of the viability of Sledge’s claim must relate solely to those two complaints. This
narrows sufficiently Sledge’s contentions regarding the adverse actions he suffered,
given that (a) only certain MPD acts followed the race discrimination complaints
temporally, (b) not all of these MPD acts qualify as “adverse actions,” and (c) the MPD
has provided legitimate, non-retaliatory reasons for its employment-related actions and
determinations.
Turning first to the MPD acts that allegedly were undertaken in retaliation for
Sledge’s two complaints of race discrimination, Groomes’s administrative investigation
meets the temporal test insofar as that investigation commenced in February of 2009, a
few months after Sledge’s alleged oral complaint of race discrimination to Maupin in
December of 2008. With respect to Sledge’s “Amendment” to the EEOC Questionnaire
in November 9, 2009, Sledge points to the fact that he was subsequently transferred to a
different district—which purportedly resulted in his loss of seniority and his having to
work the undesirable midnight shift—and maintains that this MPD action should also be
viewed as an adverse action taken in retaliation for his written charges. (Pl.’s Sledge
Dep. at 23.) But this Court concludes, based on the record presented, that Sledge’s late-
November transfer is not sufficiently adverse to give rise to any viable retaliation claim
stemming from that EEOC complaint.
It is well settled that a lateral transfer—i.e., a reassignment in which an
employee retains his rank and substantive responsibilities—is usually not an adverse
employment action for Title VII purposes. See Stewart v. Ashcroft, 352 F.3d 422, 426
26
(D.C. Cir. 2003); cf. Zelaya v. UNICCO Serv. Co., 733 F. Supp. 2d 121, 132 (D.D.C.
2010) (citation omitted) (noting that a lateral reassignment with a significant loss of
benefits is materially adverse). Generally speaking, the determination of whether or not
a reassignment is a materially adverse action depends on “compar[ing] the position the
plaintiff held before the transfer to the one he holds afterwards.” Pardo-Kronemann v.
Donovan, 601 F.3d 599, 607 (D.C. Cir. 2010). If a reassignment results in
“significantly diminished responsibilities[,]” it qualifies as an adverse action for
retaliation purposes, Zelaya, 733 F. Supp. 2d at 132 (citations omitted), and so, too,
does a reassignment in which the employee loses seniority, but only if the employee is
more likely to lose his job or other tangible benefits of employment as a result of that
loss of seniority. See, e.g., id. (transfer with loss of seniority was an adverse action
where seniority was the sole factor in determining layoff order). By contrast, courts in
this district have found that a loss of seniority that merely results in “subjective
dissatisfaction with working conditions,” rather than a substantial change in
responsibility or benefits, does not qualify as a materially adverse action, given that
such a transfer does not pose a “risk[ ] [to] employment itself[.]” Zelaya, 733 F. Supp.
2d at 132; see, e.g., Sims v. District of Columbia, No. 12-625, 2014 WL 487062, at *7
(D.D.C. Feb. 6, 2014) (“[Being] required to temporarily work midnight shifts
demonstrate[s] only ‘less favorable assignments,’ which, as the D.C. Circuit has
explained, do not rise to the level of materially adverse actions for the purposes of
sustaining a retaliation claim.” (citing Jones v. District of Columbia Dep’t of Corr., 429
F.3d 276, 281 (D.C. Cir. 2005))). Because Sledge has failed to establish that the
November 2009 transfer posed a substantial risk to his employment or other benefits,
27
and because he has not alleged any other adversities that occurred after his
“Amendment” to the EEOC form, his Title VII retaliation claim in this case rests solely
on the alleged causal relationship between the race-discrimination complaint Sledge
allegedly made to Maupin in December of 2008 and Groomes’s subsequent
administrative investigation and the discipline that followed.
As explained, supra, the District has asserted a legitimate, non-discriminatory
reason for Sledge’s having been investigated and disciplined in February and March of
2009; namely, that Sledge failed to meet the requirements of his job when he did not
come to work to oversee three important investigations; did not know enough about the
investigations to brief his supervisors adequately; and left the office without taking
precautions to ensure that the priority tasks that had been assigned to him would be
completed in his absence. (See Def.’s Mot. at 14-15.) Sledge does not deny these job-
related deficiencies, and just as with Sledge’s claim of race discrimination, he has
offered no direct evidence of Groomes’s motivation or that of any other MPD official
“that would discredit [the MPD’s proffered] reasons and show that the actions were
retaliatory.” Baloch, 550 F.3d at 1200 (citations omitted). Instead, Sledge bases his
pretext contention on the timing of the disciplinary actions Groomes initiated, on
certain comments Groomes allegedly made related to his demotion, and on such
circumstantial evidence as the fact that other officers had not been disciplined as
severely for a neglect of duty charge.
Simply stated, Sledge first contends that a jury could draw an inference of
retaliation based solely on the timing of his report of race discrimination to Maupin and
Groomes’s subsequent actions. (See Pl.’s Opp’n at 24-25 (“Sledge complained about
28
[Groomes’s] disparate treatment in December 2008 . . . [and a]lmost immediately after
making [that] complaint[ ], . . . Sledge was investigated for alleged neglect of
duty[.]”).) When evaluating retaliation claims, “district courts in this circuit generally
follow an informal ‘three-month rule’ for cases in which a plaintiff attempts to establish
a prima facie case of retaliation based on temporal proximity alone.” Hamilton, 666
F.3d at 1349. But a plaintiff in Sledge’s circumstance (where the defendant has offered
a legitimate non-discriminatory reason for its actions) has to do more than establish a
prima facie case, and temporal proximity “[does] not, without more, provide sufficient
evidence to show pretext.” Drewrey v. Clinton, 763 F. Supp. 2d 54, 64 (D.D.C. 2011)
(citing Porter v. Fulham, 601 F. Supp. 2d 205, 229 (D.D.C. 2009), aff’d in part, rev’d
in part on other grounds sub nom. Porter v. Shah, 606 F.3d 809 (D.C. Cir. 2010)).
Sledge also attempts to satisfy the pretext requirement by pointing to two
comments that Groomes allegedly made that Sledge argues reflect retaliatory animus.
(See Pl.’s Opp’n at 26.) In June of 2009, Groomes purportedly told another officer that
“if she ha[d] her way” she would make sure that Sledge was demoted. (Pl.’s Interrog.
Resps. at 15.) Nine months later, in March of 2010, Groomes apparently also sent
Maupin an email stating: “I heard [Sledge is] blaming you for the late correspondence.
Get [internal investigation] numbers on him.” (Pl.’s Sledge Dep. at 92-93.) There is
nothing about the first comment that even hints at a retaliatory motive, much less
provides any basis to infer that the real reason Groomes sought to demote Sledge was
because he had complained to Maupin about Groomes’s alleged race discrimination. As
for the second statement, Sledge has not established that a comment Groomes made
about Sledge more than a year after the allegedly retaliatory investigation is anything
29
other than a reflection of their clearly strained relationship, and he certainly has not
demonstrated that the statement is any way related to Groomes’s actions the previous
year in a manner that would give rise to any reasonable inference that the investigation
and discipline were not the result of Sledge’s poor performance but instead were
reprisal for Sledge’s having engaged in protected activity.
Finally, Sledge contends that the fact that other officers were not disciplined as
severely as he was is circumstantial evidence that the District’s rationale is mere
pretext. (See Pl.’s Opp’n at 24-25.) The use of such comparator cases to establish
retaliation is subject to the same restrictions as explained above in the discrimination
context; that is, the plaintiff must identify a “similarly situated employee outside of a
protected class who committed comparable offenses but who was punished less severely
by the same deciding official.” White, 876 F. Supp. 2d at 70 (citation omitted); see,
e.g., Battle v. Truland Systs. Corp., No. 12-106, 2014 WL 1045897, at *9 (D.D.C. Mar.
19, 2014) (rejecting plaintiff’s comparator evidence on his retaliation claim because
there was insufficient information about whether the proposed comparator held the
same position as the plaintiff); Burton v. Batista, 339 F. Supp. 2d 97, 115 (D.D.C.
2004) (rejecting the plaintiff’s comparator evidence on his retaliation claim because of
evidence that the two were not “similarly situated”). Here, Sledge’s proposed
comparator evidence suffers from the same deficiencies addressed above, insofar as he
has failed to establish that other officers are “similarly situated” to him, see, supra,
Section III.A.2, and it fails for the same reason.
In sum, no reasonable jury could draw an inference of retaliation based on the
timing of the disciplinary actions that Groomes initiated, Groomes’s comments about
30
Sledge, or the circumstantial evidence regarding other officers’ discipline, and Sledge
has not asserted any other reasons to rebut Defendant’s legitimate, non-discriminatory
rationale for taking the adverse actions at issue here. Consequently, Defendant is
entitled to summary judgment on Sledge’s retaliation claim as a matter of law.
C. Hostile Work Environment Claims (Counts I And II)
In conjunction with his race discrimination and retaliation claims, Sledge also
contends that the MPD’s actions with respect to him—including Groomes’s
investigation and the failure of other captains and commanders to respond to his
repeated complaints about her—created a hostile work environment. (Compl. ¶¶ 64-99;
see also Intake Questionnaire at 5.) 8 For the reasons that follow, Sledge has not
produced sufficient evidence for a reasonable jury to find in his favor on his hostile
work environment allegations.
1. Framework For Establishing A Hostile Work Environment Claim
Title VII not only prohibits discriminatory employment decisions that have
tangible consequences, it “also prohibits an employer from subjecting its employees to
discriminatory hostile or abusive work environments.” Byrd, 807 F. Supp. 2d at 64(citation omitted). To establish a hostile work environment claim against his employer,
a plaintiff must demonstrate that (1) he is a member of a protected class; (2) he was
subject to unwelcome harassment; (3) the harassment was on the basis of membership
in a protected class; (4) the harassment unreasonably interfered with the plaintiff’s
work performance and created an intimidating, hostile, or offensive working
8
Sledge has alleged a “hostile work environment” claim in two different counts of his complaint,
maintaining that he was subjected to such an environment as a result of race discrimination (Count I)
and retaliation (Count II). Because a defendant’s alleged motivation is not a pertinent element of a
hostile work environment claim, this Court sees no reason to evaluate Sledge’s hostile work
environment allegation separately for each count.
31
environment; and (5) the employer knew or should have known of the harassment and
failed to prevent it. See id.; Hunter v. D.C. Child & Family Servs. Agency, 710 F. Supp.
2d 152, 157-58 (D.D.C. 2010). Significantly, ongoing acts of harassment only create a
hostile work environment for Title VII purposes “[w]hen the workplace is permeated
with 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[.]” Harris v. Forklift Systs., Inc., 510 U.S. 17, 21 (1993)
(internal quotation marks and citation omitted). In determining whether the alleged
harassment qualifies as severe or pervasive, courts consider the frequency and severity
of the conduct; whether it is physically threatening or humiliating as opposed to merely
offensive; and whether it unreasonably interferes with the employee’s work
performance. Id. at 23; see also Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir.
2014) (citation omitted). Moreover, to be actionable, the conduct complained of must
be both objectively and subjectively hostile or abusive. Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998).
Even when a plaintiff identifies workplace conduct that rises to the level of
actionable harassment, it is clear that, in order to form part of the “same actionable
hostile work environment claim[,]” incidents of harassment must be sufficiently related
insofar as they “involve[ ] the same type of employment actions, occur[ ] relatively
frequently, and [are] perpetrated by the same managers.” Baird v. Gotbaum, 662 F.3d
1246, 1251 (D.C. Cir. 2011) (alterations in original) (internal quotation marks and
citations omitted). In other words, the acts giving rise to a hostile work environment
claim must be “part of the same unlawful employment practice, as opposed to being an
32
array of unrelated discriminatory or retaliatory acts.” Id. at 1252 (internal quotation
marks and citations omitted). Additionally, “[c]ourts in this jurisdiction have routinely
held that hostile behavior, no matter how unjustified or egregious, cannot support a
claim of hostile work environment unless there exists some linkage between the hostile
behavior and the plaintiff’s membership in a protected class.” Na’im v. Clinton, 626 F.
Supp. 2d 63, 73 (D.D.C. 2009) (collecting cases); see, e.g., Baloch, 550 F.3d at 1201(affirming summary judgment for defendant on a hostile work environment claim
because almost none of the employer’s comments expressly focused on his race,
religion, age, or disability); Kline v. Springer, 602 F. Supp. 2d 234, 243 (D.D.C. 2009)
(granting summary judgment for defendant on a hostile work environment claim
because none of the comments had any direct connection to the plaintiff’s race or sex);
see also Chaple v. Johnson, 453 F. Supp. 2d 63, 74 (D.D.C. 2006) (noting that “[i]t
must be clear that the hostile work environment was the result of discrimination based
on a protected status” (citation omitted)). In other words, “many bosses are harsh,
unjust, and rude[,]” and “[i]t is therefore important in hostile work environment cases to
exclude from consideration personnel decisions that lack a linkage of correlation to the
claimed ground of discrimination [or retaliation; o]therwise, the federal courts will
become a court of personnel appeals.” Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107
(D.D.C. 2005) (internal quotation marks and citations omitted).
2. The Record Evidence Does Not Establish That Sledge Was
Subjected To A Hostile Work Environment
Sledge contends that his workplace became a hostile work environment for Title
VII purposes beginning in the spring of 2008 due to certain specific events: (1)
Groomes increased Sledge’s workload in March of 2008; (2) Maupin denied Sledge’s
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request to attend a week-long training session in June of 2008; (3) Groomes instructed
another officer to investigate Sledge in November of 2008 for failing to respond to a
citizen’s email; (5) Groomes “screamed, hollered[,] and humiliated” Sledge at two
group meetings in January and February of 2009; and (6) Durham failed to take action
in response to Sledge’s complaints about Groomes throughout this time period. (See
Pl.’s Interrog. Resps. at 18-20.) More generally, Sledge maintains that a hostile work
environment arose as a result of the MPD’s “practice of imposing unjust discipline
[and] initiating unwarranted Internal Affairs investigations” (Pl.’s Opp’n at 33), and
that “Groomes took every opportunity, no matter how slight, to create a hostile work
environment for” him. (Pl.’s Opp’n at 32-33.) Given the applicable legal standards,
however, this Court concludes that there is no genuine issue of material fact regarding
whether Sledge was subjected to a hostile work environment in violation of Title VII—
for the reasons explained below, the record evidence demonstrates clearly that he was
not.
First of all, not all of the incidents that Sledge points to can support a hostile
work environment claim, nor are they all sufficiently related to one another to sustain a
single hostile work environment charge. One outlier is instantly obvious: Durham’s
reported failure to investigate Sledge’s complaints is an entirely different type of action
than the extra scrutiny and harsher discipline that form the basis of Sledge’s other
hostile work environment allegations. Consequently, Durham’s alleged inaction is not
properly considered part of the hostile work environment that Groomes, and to some
extent Maupin, allegedly created. See Baird, 662 F.3d at 1251.
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The remaining incidents of purportedly abusive conduct generally involved the
same decision-makers (Sledge’s direct supervisors) and arguably more similar
employment actions (i.e., singling Sledge out); nevertheless, the Court concludes that
these types of actions are simply not the stuff of which valid Title VII hostile work
environment claims are made, for several reasons. First, Sledge has presented no
evidence whatsoever that suggests any link between Groomes’s allegedly hostile
conduct and Sledge’s race. For example, there is no allegation or evidence that
Groomes’s act of yelling at Sledge after Sledge failed to report for duty reflected a
racial animus; indeed, Sledge has not recounted the contents of any of Groomes’s
statements at all. And this lack of any factual basis upon which to conclude that race
played a role in Groomes’s alleged mistreatment of Sledge is even more pronounced
considering that the MPD has offered a legitimate, non-discriminatory rationale for
Groomes’s harsh tone, administrative investigation, and recommended discipline.
Second, and perhaps even more significant, the environment that Sledge
allegedly faced during the relevant timeframe was not sufficiently “severe or pervasive”
to qualify as a hostile work environment. For example, Sledge claims that Groomes
“humiliated” him during two group meetings in January and February of 2009 (see Pl.’s
Interrog. Resps. at 18), but there is no evidence that alleged humiliation continued
beyond those two meetings, nor has Sledge established with evidentiary support that
Groomes’s alleged “screaming” was objectively humiliating. As noted above, Sledge
has not even provided allegations or evidence regarding the language Groomes
allegedly used, much less established that a reasonable jury could find the sort of
“extreme” conduct required. See Akosile v. Armed Forces Retirement Home, 938 F.
35Supp. 2d 76, 87 (D.D.C. 2013) (“Negative interactions with supervisors, even when a
supervisor yells and uses profanity, generally do not meet [the hostile work
environment] standard.” (citing Baloch, 550 F.3d at 1201)).
Moreover, Sledge does little to offer evidentiary support for his contention that
he faced a hostile work environment due to the additional unwarranted scrutiny. As
explained, a work environment is sufficiently hostile only if the harassing treatment
objectively “alter[s] the conditions” of a plaintiff’s employment. See Harris, 510 U.S.
at 21 (citation omitted). Consequently, courts in this district have declined to find a
hostile work environment where employees faced circumstances that were even more
taxing than those Sledge faced here. See, e.g., Williams v. Spencer, 883 F. Supp. 2d
165, 180-81 (D.D.C. 2012) (finding no hostile work environment where a supervisor
persistently ignored and humiliated an employee during staff meetings, gave the
employee an unwarranted negative performance review, placed burdensome
requirements on the employee, did not give the employee an opportunity to improve her
performance, and then, unfairly disciplined the employee by charging her as absent-
without-leave while she attended a doctor’s appointment); see also, e.g., Baloch, 550
F.3d at 1201 (affirming finding of no hostile work environment where the plaintiff’s
supervisor repeatedly criticized him and gave him a negative review, imposed leave
restrictions, engaged in verbal altercations with the plaintiff using profanity, and
threatened to have the plaintiff arrested); Hussain v. Nicholson, 435 F.3d 359, 366-67
(D.C. Cir. 2006) (affirming summary judgment for defendant on hostile work
environment claim because no reasonable jury could find a hostile work environment
based on a denial of promotion, denial of medical leave, poor performance evaluations,
36
and threats of termination). Furthermore, where, as here, the employer has provided
legitimate reasons for the discipline, there is even less of a factual basis upon which to
conclude that the established “hostile work environment” standards are satisfied. See
Harris, 510 U.S. at 21.
In short, the “ordinary tribulations of the workplace” reflecting an employee’s
difficult relationship with a supervisor are not actionable under Title VII, Faragher,
524 U.S. at 788 (citation omitted), and in this case Sledge has demonstrated nothing
more. Therefore, the District is entitled to summary judgment on Plaintiff’s hostile
work environment claims.
D. Section 1983 Claim (Count IV)
Lastly, Sledge contends that the District is liable under Section 1983 of Title 42
of the United States Code for violations of his Fifth Amendment right to equal
protection and his rights under Title VII based on the MPD officers’ alleged race
discrimination and unlawful retaliation. (Compl. ¶¶ 111-121.) Sledge’s Section 1983
claim is against the District, rather than against any particular MPD officer; hence, it is
a municipal liability claim. See Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658, 695
(1978); Best v. District of Columbia, 743 F. Supp. 44, 46 (1990) (citation omitted).
Defendant is entitled to summary judgment on this claim because, even if the evidence
in this matter supported an inference that MPD officers discriminated against Sledge on
the basis of his race or retaliated him in violation of Title VII (it does not), Sledge has
not demonstrated any basis for municipal liability.
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1. Legal Framework For A Section 1983 Claim Brought Against A
Municipality
A prima facie case under Section 1983 requires a showing that a person acting
under the color of state law caused a deprivation of a constitutional right or federal law.
Monell, 436 U.S. at 690-91. Under Monell v. Department of Social Services of the City
of New York, 436 U.S. 683 (1978), a municipality may be liable for such deprivations
only if, first, the plaintiff establishes an underlying violation of the Constitution or
other federal law; and second, the plaintiff demonstrates that a basis for municipal
liability exists. See Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir.
2008) (citation omitted); Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir.
2003) (citation omitted).
With respect to the second prong of this Monell municipal liability test, the
Supreme Court has made clear that respondeat superior (or vicarious liability) is not
enough. City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell, 436 U.S. at
694-95). Instead, a city can be held liable under Section 1983—either directly or in its
role as a supervisor of the employees who undertake unconstitutional actions—only
when its own “policy or custom[ ] . . . inflicts the injury[.]” Monell, 436 U.S. at 694.
“There are four basic categories of municipal action [a p]laintiff may rely on to
establish municipal liability: (1) express municipal policy; (2) adoption by municipal
policymakers; (3) custom or usage; and (4) deliberate indifference.” Hunter v. District
of Columbia, 824 F. Supp. 2d 125, 133 (D.D.C. 2011) (citing Monell, 436 U.S. at 690-
94). In addition, to establish municipal liability, the court “must determine whether the
plaintiff has alleged an affirmative link, such that a municipal policy was the moving
38
force behind the constitutional violation[.]” Baker, 326 F.3d at 1306 (internal quotation
marks and citations omitted).
2. Sledge Has Failed To Establish A Basis For Municipal Liability
In this case, Sledge’s Section 1983 claim fails because he likely cannot satisfy
either prong of Monell’s test for municipal liability under Section 1983, and he
certainly fails to satisfy the second. With respect to the first prong, as described in
detail above, no reasonable jury could conclude that Sledge was discriminated against
on the basis of his race, or that his supervisor retaliated against him or subjected him to
a hostile work environment due to race in violation of his rights under Title VII. See
Sections III.A.2, III.B.2, III.C.2, supra. It is also highly unlikely that, having failed to
establish an actionable Title VII discrimination or retaliation claim, Sledge would be
able to show that the MPD intentionally treated him differently from others similarly
situated without a rational basis, as required to sustain a Fifth Amendment equal
protection claim. See Jo v. District of Columbia, 582 F. Supp. 2d 51, 60 (D.D.C. 2008)
(“Courts in this district have often applied Title VII case law to review claims of
discrimination [in violation of the Fifth Amendment] under [Section] 1983 to determine
whether a plaintiff has established a predicate constitutional violation.” (collecting
cases)).
But even if Sledge could establish the predicate violation and thus could
successfully mount the first Monell hurdle, he has fallen far short of having adduced
sufficient evidence to establish a basis for the District’s liability. The record reflects
that the allegedly discriminating actors in this case are individual officers who were
generally acting on their own accord under color of state law. In the complaint, Sledge
specifically alleged municipal liability based on respondeat superior liability for the
39
officers’ conduct (see Compl. ¶ 119 (“Defendant is directly liable for the discriminatory
acts or omissions of its agents, servants and employees while acting within the course
and scope of their employment, under the theory of Respondeat Superior.”)), but as
noted above, it is well settled that municipal liability does not lie on this basis.
None of the other routes to municipal liability are available here, either. There is
no evidence that the officers mistreated Sledge pursuant to some sort of municipal
policy, whether express or implied through custom. See Hunter, 824 F. Supp. 2d at
133. Nor is there evidentiary support for Sledge’s newly-minted claims of deliberate
indifference. (See Pl.’s Opp’n at 36 (contending that “the evidence establishes a
deliberate indifference standard” of liability because “Sledge complained of
misconduct” and Defendant “refused to investigate any of his complaints”).) Deliberate
indifference liability occurs when a municipality knew or should have known of a risk
that the complained-of violation would occur, but did nothing to prevent that violation.
Baker, 326 F.3d at 1306-07. This theory mandates a “stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious consequence of
his action.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (quoting Bd. of
Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)). The alleged
unconstitutional conduct must be “pervasive enough to be ‘so common and settled’ as
‘to be considered a custom or policy.’” Jones v. District of Columbia, 879 F. Supp. 2d
69, 86 (D.D.C. 2012) (citing Carter v. District of Columbia, 795 F.2d 116, 125 (D.C.
Cir. 1986)); see also Poindexter v. D.C. Dep’t of Corrections, 891 F. Supp. 2d 117, 121
(D.D.C. 2012) (a plaintiff may prove deliberate indifference by, among other things,
demonstrating that the “municipality adopt[ed] a policy of inaction when faced with
40
actual or constructive knowledge that its agents will likely violate constitutional
rights,” and by showing that the policy was the driving force behind the challenged
conduct). Moreover, “[p]roof of a single incident of unconstitutional activity is not
sufficient to impose liability under Monell,” City of Okla. City v. Tuttle, 471 U.S. 808,
823-34 (1985), and “[s]imply citing to [plaintiff’s] own experiences” does not
demonstrate that a plaintiff was “the victim of a policy or custom that caused them to
suffer injury.” Jones, 879 F. Supp. 2d at 87; Sanders v. District of Columbia, 522 F.
Supp. 2d 83, 88 (D.D.C. 2007) (dismissing plaintiff’s First Amendment retaliation
claims under Section 1983 where the plaintiff did not “point[ ] to any other employee
who suffered similar retaliation”).
DuBerry v. District of Columbia, 582 F. Supp. 2d 27 (D.D.C. 2008), is
instructive on this point. The court in that case granted summary judgment to defendant
on plaintiff’s claim that the District of Columbia violated his Fifth Amendment rights
by engaging in race discrimination when his employer, the D.C. Department of
Corrections (“DOC”), fired him then refused to rehire him. Id. at 39. The plaintiff
argued that because DOC officials were aware of and approved those allegedly
discriminatory employment decisions, the District could be held liable. Id. The court
disagreed, noting that plaintiff had failed to establish a basis for municipal liability
because he had “not produced any evidence that [DOC’s] alleged discriminatory
employment practices impacted a single employee . . . other than himself[,]” and thus
the conduct alleged did not reflect a policy or custom. Id.So it is here. In support of his argument for deliberate indifference liability,
Sledge cites only his own reports of discriminatory and retaliatory misconduct, and the
41
MPD’s failure to investigate those reports. (See Pl.’s Opp’n at 36 (record citations
omitted).) Like DuBerry, Sledge has not produced any evidence that the MPD had
developed a practice of ignoring allegations related to discriminatory treatment by its
employees, and indeed, Sledge has not identified any other similar reports that the
District allegedly ignored. At bottom, there is no evidence that the MPD has a custom,
practice, or policy of deliberately ignoring complaints alleging discrimination or
retaliation on the basis of race. Accordingly, Sledge has failed to establish that
Defendant is liable for the allegedly discriminatory and retaliatory acts of its officers.
Undaunted, Sledge contends in the alternative that he need not establish a basis
for municipal liability at all because courts in this circuit do not require a plaintiff to do
so when they allege a Section 1983 claim based on a Title VII violation. (See id. at 35.)
This argument is mistaken. While Sledge is correct that courts apply Title VII case law
to address Monell’s first prong—i.e., whether there has been employment
discrimination in violation of the Constitution or a federal law—it is clear beyond cavil
that a successful plaintiff is still required to satisfy Monell’s second prong. See, e.g.,
Olatunji v. District of Columbia, 958 F. Supp. 2d 27, 34-35 (D.D.C. 2013) (requiring
the plaintiff to establish a basis for municipal liability on a Section 1983 employment
discrimination claim); Motley-Ivey v. District of Columbia, 923 F. Supp. 2d 222, 238-39
(D.D.C. 2013) (same); DuBerry, 582 F. Supp. 2d at 39 (same); Turner, 383 F. Supp. 2d
at 166 (same). Sledge has failed to meet this requirement. Therefore, the District is
also entitled to summary judgment on Sledge’s Section 1983 municipal liability claim.
42
IV. CONCLUSION
For the foregoing reasons, the Court concludes that Defendant’s motion for
summary judgment must be GRANTED. Accordingly, as set forth in the accompanying
order, judgment will be entered in favor of Defendant on all claims.
DATE: August 6, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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