Brooks v. Grundmann

• Decision Date: 15 April 2014
• Docket Number: No. 12–5171.,12–5171.
• Citation: 748 F.3d 1273
• Parties: Patricia A. BROOKS, Appellant v. Susan Tsui GRUNDMANN, Chairman, Merit Systems Protection Board, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

748 F.3d 1273

Patricia A. BROOKS, Appellant

v.Susan Tsui GRUNDMANN, Chairman, Merit Systems Protection Board, Appellee.

No. 12–5171.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 6, 2013.

Decided April 15, 2014.

Appeal from the United States District Court for the District of Columbia, (No. 1:08–cv–00100).

Anne King argued the cause for appellant. With her on the briefs was Brian Wolfman.

John G. Interrante, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant S. Attorney.

Before: BROWN and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge BROWN.

BROWN, Circuit Judge.

In a classic (and perhaps ironic) instance of quis custodiet ipsos custodes, we are presented with a case where the Merit Systems Protection Board—the entity charged with addressing the grievances of federal workers challenging discriminatory employment practices, see5 U.S.C. § 2301(b)(2)—is itself accused of discrimination. A Board employee claims her supervisors engendered a hostile work environment, discriminating against her on the basis of her race and sex. We conclude that, while the supervisors' actions may have been unprofessional, uncivil, and somewhat boorish, they did not constitute an adequate factual basis for the Title VII claims presented here. Accordingly, we affirm the district court's grant of summary judgment.

I

Patricia Brooks, an African–American woman, has worked at the Office of Information Resources Management (IRM) of the Merit Systems Protection Board since 1998. While we know little about her employment prior to 2005, we know she considers that particular year as the starting point of a series of unfortunate events.

Brooks' chronology of woe began when her supervisor, An–Minh (Tommy) Hwang, expressed his disappointment with her demonstration of a new document migration project by yelling at her in front of co-workers, insulting and demeaning her, and flinging a heavy notebook which Brooks thought was aimed in her direction. That incident was followed later in the year by a performance appraisal by Hwang and his deputy, Nick Ngo, which, while deeming her “Fully Successful,” was highly critical of her management abilities and urged her to take a more proactive management approach. In turn, that disappointment was followed by a dispute over a timesheet entry when Ngo accused Brooks of fudging the number of hours worked. Although a Board official intervened and Brooks received pay for the disputed hours, Brooks resented what she perceived as Ngo's selective scrutiny. Meanwhile, her performance appraisals continued their downward spiral. By 2006, she was only rated as “Minimally Successful” and was given a laundry list of needed improvements: timely filing of weekly reports, participation in leadership meetings, and improvement of interpersonal, teamwork, and communication skills.

Brooks filed her first internal EEO complaint in February 2007, claiming Hwang and Ngo had discriminated and retaliated against her. Despite regaining her “Fully Successful” rating that year, Brooks had a confrontation with another IRM Team Leader—Bill McDermott—who became visibly angry and insulted Brooks in front of other Team Leaders during a meeting. When Hwang e-mailed McDermott to discuss the latter's conduct, McDermott replied to express some contrition but circulated his response to all the other Team Leaders. Brooks informally notified the Board's EEO Director about the incident.

On January 28, 2008, Brooks filed a complaint in district court, alleging various violations of Title VII. A month later, she filed a second internal EEO complaint—once again for purported discrimination and retaliation—asserting Hwang and Ngo fostered a hostile work environment and engaged in disparate treatment. The two fired back during the course of the internal EEO investigation and expressed annoyance about Brooks' EEO activities.

In May 2008, IRM was reorganized. Brooks remained a Team Leader but had no supervisory responsibilities—a marked departure from an earlier proposed plan. She filed a third internal EEO complaint on August 13, 2008. Several months later, Brooks received an “Unacceptable” performance rating because of her alleged unwillingness to accept responsibility for administrative mishaps and her poor communication with IRM staff. Brooks was placed on a “Performance Improvement Plan,” which left her susceptible to “performance-basedaction, including possibly a reduction in grade or removal from the federal service,” but she eventually completed the Plan without incident. J.A. at 264, 266–67.

On February 11, 2009, Brooks amended her district court complaint to allege the Board engendered a race-based, gender-based, and retaliatory hostile work environment. The Board filed what was effectively a motion for summary judgment. The district court granted the motion, determining “[n]o reasonable jury could find that [Hwang and Ngo's] conduct was so severe and pervasive as to alter the conditions of Brooks's employment.” Brooks v. Grundmann, 851 F.Supp.2d 1, 6 (D.D.C.2012). Brooks appealed.

II

We review a district court's grant of summary judgment de novo. Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19, 23 (D.C.Cir.2013). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine issue of material fact exists if the evidence, ‘viewed in a light most favorable to the nonmoving party,’ could support a reasonable jury's verdict for the non-moving party.” Hampton v. Vilsack, 685 F.3d 1096, 1099 (D.C.Cir.2012) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006)).

Much of Brooks' appeal is devoted to her hostile work environment claims. To prevail, she “must first show that ... she was subjected to ‘discriminatory intimidation, ridicule, and insult’ that [was] ‘sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.’ ” See Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C.Cir.2013) (per curiam) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). The strength of her various claims is determined by “the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee's work performance.” See Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C.Cir.2008).

The deficiency in Brooks' case is her inability to demonstrate that the actions of her superiors were sufficiently severe or pervasive so as to constitute a hostile work environment. Severity and pervasiveness are complementary factors and often go hand-in-hand, but a hostile work environment claim could be satisfied with one or the other. Ayissi–Etoh, 712 F.3d at 579 (Kavanaugh, J., concurring) (“The test set forth by the Supreme Court is whether the alleged conduct is ‘sufficiently severe or pervasive’—written in the disjunctive—not whether the conduct is ‘sufficiently severe and pervasive.’ ”). But here, we do not have enough of either.

In discerning severity and pervasiveness, we assess the timeline of events as a whole. See Baloch, 550 F.3d at 1201. Each event that Brooks identifies as an example of abusive conduct fails to add materially to the alleged aura of hostility. For instance, selective enforcement of a time and attendance policy does not necessarily indicate conduct giving rise to a hostile work environment claim. See Bhatti v. Trs. of Bos. Univ., 659 F.3d 64, 74 (1st Cir.2011) (concluding the selective enforcement of workplace rules and the failure to extend certain informal courtesies are part of conduct that is “far from severe [and] never physically threatening”). Brooks' performance reviews also do little to evince abusive conditions—they were not uniformly negative and had some legitimate bases. See Baloch, 550 F.3d at 1201 (noting “legitimate reasons and constructive criticism offered in ... letters of counseling and reprimand” undercut allegations of a hostile work environment). Moreover, her reviews recommended areas of improvement—hardly the stuff of severe or pervasive workplace hostility. See Darbha v. Capgemini Am. Inc., 492 Fed.Appx. 644, 647 (7th Cir.2012).

Brooks also suggests outbursts by a coworker and her supervisor prove she suffered a hostile work environment. We disagree. Certainly, her superiors and colleague may have been tactless and ill-mannered. But by her own admission, Brooks was of like rank and position as her colleague McDermott, and he had no supervisory authority over her. See J.A. at 310. Therefore, the Board cannot be deemed liable for his conduct unless Brooks “prove[s] that the employer was at least negligent in not preventing or correcting the [alleged] harassment.” See Ayissi–Etoh, 712 F.3d at 577. Not only does Brooks fail to assert such a supervisory lapse, the record suggests her supervisor in fact met with McDermott to discuss the incident and indicated to him that his behavior was inappropriate.

That leaves the incident with Hwang. There is some dispute over what exactly occurred, but even taking the facts in the light most favorable to Brooks (as we must in reviewing a grant of summary judgment), we cannot conclude this outburst contributed much in the way of a hostile work environment. Compare J.A. at 208 (giving Hwang's account of the meeting in which he admits to frustration and slamming down his hand), with J.A. at 224 (recounting Brooks' version of events in which Hwang “yelled at [her] and violently threw a book (thick notebook) on a table”). The incident, at its worst, was an isolated expression of frustration. That alone cannot rise to the level of severity indicating hostility or abuse. See ...