Ginger v. District of Columbia

Decision Date10 June 2008
Docket NumberNo. 07-7054.,07-7054.
Citation527 F.3d 1340
PartiesJames E. GINGER, et al., Appellants v. DISTRICT OF COLUMBIA, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 03cv02512).

David H. Shapiro argued the cause for appellants. With him on the briefs were Richard L. Swick and Ellen K. Renaud.

Donna M. Murasky, Deputy Solicitor General, Office of Attorney General for the District of Columbia, argued the cause for appellees. With her on the briefs were Linda J. Singer, Attorney General at the time the brief was filed, and Todd S. Kim, Solicitor General. Edward E. Schwab, Deputy Attorney General, entered an appearance.

Before: SENTELLE, Chief Judge, GINSBURG, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

After the Metropolitan Police Department (MPD) reorganized its Canine Unit, eight police officers in the Unit sued the District of Columbia, claiming to be victims of racial discrimination and alleging several instances of retaliation for having filed a complaint. The district court granted summary judgment to the District, which we now affirm.

I. Background

The MPD reorganized the Canine Unit in 2003. Before the reorganization, the Unit was divided into four squads, each of which worked four ten-hour shifts per week. Squads 1 and 2 worked the "midnight shift," from 8:00 p.m. to 6:00 a.m., and Squads 3 and 4 worked the "day shift," from 10:00 a.m. to 8:00 p.m. Squad 2 was composed of seven white officers and one black officer; those eight officers are the appellants. The other squads were roughly evenly divided between whites and non-whites.

Several years before the reorganization, Alfred Broadbent, then an assistant chief of the MPD, recommended the Department switch to a system in which the canine squads would rotate between day and night shifts; he was concerned that officers on a permanent midnight shift tended to become alienated from the Department. Broadbent's recommendation was not implemented, but he raised it again after the Department of Justice had pressured the MPD to adopt measures aimed at monitoring the use of force by the Canine Unit. In 2002, when Cathy Lanier became the Commander of the Special Operations Division of the MPD, of which the Canine Unit is a part, Broadbent urged her to reorganize the Unit from four permanent ten-hour shifts to five rotating eight-hour shifts.

At around the same time, Joshua Ederheimer, head of the Civil Rights and Force Investigations Division of the MPD, noticed that Canine Unit Squad 2 alone was the source of fully 11 of the 17 dog bites for which the entire Unit of four squads was responsible in 2002. In a deposition he said he was concerned about this imbalance, particularly upon realizing that "all but one of the officers on that squad were Caucasian and ... all of the people that had been bitten were African American." He told Lanier he was "very concerned about the racial makeup of the squad and that some kind of action had to be taken." He noted that the media and the Department of Justice might flag this disparity as indicative of a civil rights violation. Ederheimer also informed Charles Ramsey, the Chief of Police, of his concern. Ramsey said he would "do something" and would "talk to ... Lanier."

Duane Buethe, the supervisor of the Canine Unit, recounted at his deposition that he participated in a meeting with Lanier, Ederheimer, and other high-level officials of the MPD, in which the racial composition of Squad 2 was raised: "[A]fter we started talking about it and I looked at it and realized that the whole squad, with the exception of one officer, was white ... my first thought was this is not going to look good if it ever leaks out." He testified that Lanier said "oh, my, that's not going to look good" and "something's going to have to be done."

Shortly after that meeting, Lanier wrote a memorandum to Ederheimer stating in part that

11 out of 17 bites occurred with handlers in one Squad.... The squad involved in the majority of the bites has a racial make up [sic] that is predominantly white male ... in light of the information gleaned in this analysis, changes will be made ... in order to assign members with more K-9 experience equally throughout the tours of duty. The proposed reorganization of the squads must also take into account the racial make up of those squads.

Ten days later Lanier announced the reorganization of the Canine Unit. As reorganized, there would be five squads, each of which would work five 8-hour shifts per week. One squad would work from 7:00 a.m. to 3:00 p.m., two from 3:00 p.m. to 11:00 p.m., and two from 11:00 p.m. to 7:00 a.m. The shifts would rotate every four weeks, thereby eliminating the permanent midnight shift. The eight members of Squad 2 were distributed among the five new squads.

Prophetically, Lanier noted in announcing the reorganization that "Change is never easy." According to Buethe, "Everybody [in the Unit] was upset. It was absolute turmoil." Several officers complained in their depositions about the inconvenience associated with the rotating schedule. In addition, because officers working overnight received a four percent pay differential, the members of old Squads 1 and 2 — who no longer worked permanently at night — lost pay.

All eight members of Squad 2 filed a complaint of racial discrimination with the EEOC. When the EEOC failed to take action, the officers filed suit in the district court, claiming they were victims of, inter alia, racial discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The district court entered summary judgment for the District. 477 F.Supp.2d 41 (2007). The court agreed with the officers that the reorganization had a sufficiently adverse effect to give them standing to complain about employment discrimination, id. at 50, but rejected that claim on its merits "because every officer in the Canine Unit was subjected to the reorganization." Id. at 49. The court also held the alleged instances of retaliation were either insufficiently serious to support a claim for retaliation or lacked evidentiary support. Id. at 53-54. The officers filed a timely appeal.

II. Analysis

The officers contend the district court erred in granting summary judgment to the District on their discrimination claim because a reasonable jury could conclude the MPD reorganized the Canine Unit in order to ensure the squads were racially balanced. They also renew their argument that various disciplinary actions and other incidents constituted retaliation for filing their complaints with the EEOC. We review the judgment of the district court de novo. Salazar v. WMATA, 401 F.3d 504, 507 (D.C.Cir.2005).

A. Discrimination

Title VII requires that "[a]ll personnel actions affecting employees ... of the Government of the District of Columbia ... shall be made free from any discrimination based on race." 42 U.S.C. § 2000e-16(a); see also Borgo v. Goldin, 204 F.3d 251, 255 n. 5 (D.C.Cir.2000) ("Title VII places the same restrictions on ... District of Columbia agencies as it does on private employers"). We analyze first whether the reorganization was a sufficiently adverse action to support a claim under Title VII; we then consider whether the officers have adduced sufficient evidence of racial discrimination to put their case before a jury.

1. Adverse action

An employment action does not support a claim of discrimination unless it has "materially adverse consequences affecting the terms, conditions, or privileges of [the plaintiff's] employment ... such that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002). Although "[p]urely subjective injuries, such as dissatisfaction with a reassignment ... are not adverse actions, ... reassignment with significantly different responsibilities[] or a significant change in benefits generally indicates an adverse action." Id. at 1130-31 (internal quotation marks and ellipsis omitted).

The District challenges the district court's determination that the reorganization was an adverse employment action. It contends the reorganization was not adverse because it did not change the officers' responsibilities or cause a substantial change in their benefits.

We disagree. First, as the officers point out, they lost income as a result of the reorganization; because they worked fewer hours at night, they earned less of the pay differential for night work. A nontrivial loss of pay is an "objectively tangible harm." See Russell v. Principi, 257 F.3d 815, 818-19 (D.C.Cir.2001) (performance evaluation that resulted in "loss of a bonus that is worth hundreds of dollars" an adverse employment action).

Second, the officers were considerably inconvenienced by the reorganization. They testified that switching to a rotating shift from a permanent shift severely affected their sleep schedules and made it more difficult for them to work overtime and part-time day jobs. As the officers convincingly argue, inconvenience resulting from a less favorable schedule can render an employment action "adverse" even if the employee's responsibilities and wages are left unchanged. See Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 844 (D.C.Cir.2001) (holding transfer to night shift an adverse employment action because "the change in hours interfered with [the plaintiff's] education").

In sum, after the reorganization, the officers were paid less for working a substantially more difficult schedule. Clearly, these harms are "objectively tangible," not "[p]urely subjective." Forkkio, 306 F.3d at 1130-31.

2. Causation

To evaluate a claim of racial discrimination under Title VII, we apply the analytical framework adopted by the Supreme Court in ...

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