Coleman v. Potomac Elec. Power Co.

• Decision Date: 21 March 2006
• Docket Number: No. Civ.A. 05-237(RCL).,Civ.A. 05-237(RCL).
• Citation: 422 F.Supp.2d 209
• Parties: Elliotte Patrick COLEMAN, Plaintiff, v. POTOMAC ELECTRIC POWER COMPANY, Defendant.
• Court: U.S. District Court — District of Columbia

422 F.Supp.2d 209

Elliotte Patrick COLEMAN, Plaintiff, v. POTOMAC ELECTRIC POWER COMPANY, Defendant.

No. Civ.A. 05-237(RCL).

United States District Court, District of Columbia.

March 21, 2006.

COPYRIGHT MATERIAL OMITTED

Elliotte Patrick Coleman, Washington, DC, Pro se.

William Patrick Flanagan, Dean Andrew Romhilt, Hogan & Hartson, McLean, VA, for Defendant.

MEMORANDUM OPINION

LAMBERTH, District Judge.

In this employment discrimination action brought pro se, plaintiff accuses his former employer, Potomac Electric Power Company ("PEPCO"), of retaliation and intentional infliction of emotional distress. He sues under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the District of Columbia Human Rights Act of 1977, D.C.Code § 2-1401.01 et seq. Defendant moves to dismiss or for summary judgment. Upon consideration of the parties' submissions and the entire record, and for the following reasons, the Court will grant defendant's motion for summary judgment.¹

This is plaintiff's third lawsuit arising from his employment at PEPCO. See Order of May 16, 2005. This action stems from alleged "willful and malicious acts of retaliatory harassment committed by Defendant from July 17, 2002 through March 11, 2004." Amended Complaint at 3. Defendant moves for dismissal on the grounds that the complaint is untimely and fails to state a claim upon which relief may be granted.

1. The Timeliness of the Complaint

Defendant, reasonably relying on the filing date of January 31, 2005, asserts that plaintiff failed to file his complaint within 90 days of his receipt of the right-to-sue notice issued to him on June 22, 2004. See 42 U.S.C. § 2000e-5(f)(1) (establishing 90-day limitations period). Plaintiff counters that he filed the complaint on September 23, 2004. The presumed receipt date is three days from the date of the notice. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). Plaintiff's complaint therefore would be timely under his asserted date. Although the electronic record bears no witness to plaintiff's assertion, an internal court document and a letter to plaintiff from the Clerk of Court fully support plaintiff's claim that the original complaint (dated September 23, 2004) was submitted with an application to proceed in forma pauperis (dated same) on September 23, 2004. The internal document reveals further that in early October 2004, the complaint was subjected to the court's screening procedures for actions submitted with in forma pauperis applications, but the Clerk's Office misplaced the papers. The Clerk's jacket contains correspondence between plaintiff and the Clerk of Court. By letter of March 22, 2005, the Clerk, in responding to plaintiffs inquiry about his submissions, stated that her office "talked to the judge in the case and the original file date of your case will have no bearing on the case—whether it is file stamped September 2004 or January 2005."²

The complaint was formally filed on January 31, 2005, when the Court granted plaintiff's motion to proceed in forma pauperis. Title VII litigants are "not responsible for the administrative delay associated with the Court's review of petitions to proceed in forma pauperis . . . . [T]he presentation of a complaint [and] a petition to proceed in forma pauperis tolls the ninety-day period of limitations . .." (citations omitted); accord Washington v. White, 231 F.Supp.2d 71, 75-76 (D.D.C.2002) (citing cases). Plaintiff timely submitted his complaint within 90 days of his presumed receipt of the right-to-sue notice. Defendant's motion based on untimeliness therefore is denied.³

2. The Merits of the Complaint

Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge ... under this subchapter." 42 U.S.C. § 2000e-3(a). "An activity is protected if it involves opposing alleged discriminatory treatment by the employer or participating in legal efforts against the alleged treatment." Globus v. Skinner, 721 F.Supp 329, 334 (D.D.C.1989) (citation omitted). To establish a prima facie case of retaliation, plaintiff must show that (1) he engaged in a statutorily protected activity; (2) the employer took an adverse personnel action; and (3) a causal connection existed between the two. Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1423 (D.C.Cir.1988); accord Cones v. Shalala, 199 F.3d 512, 521 (D.C.Cir.2000). The Court will first address whether plaintiff has shown an adverse personnel action.

Plaintiff alleges that he was subjected to "retaliatory harassment" based on numerous acts, including his termination in March 2004. Amended Complaint at 3. Harassment standing alone does not amount to a "legally cognizable adverse action by the employer." Brown v. Brody, 199 F.3d 446, 453 (D.C.Cir.1999). To hold defendant liable, plaintiff must show that defendant's actions resulted in a "diminution in pay or benefits [or] `some other materially adverse consequences affecting the terms, conditions, or privileges of her employment ... such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.'" Bailey v. Henderson, 94 F.Supp.2d 68, 72 (D.D.C.2000) (quoting Brown v. Brody, 199 F.3d at 457); see Currier v. Postmaster, 304 F.3d 87, 89 (D.C.Cir.2002) ("[T]he employee must be worse off after the personnel action than before it; otherwise, he has suffered no objectively tangible harm."). The only cognizable adverse employment action established here is plaintiff's termination on March 11, 2004.

Initially, plaintiff did not identify the statutorily protected activity in which he was supposedly engaged during the time relevant to this action. He filed EEO charges in May 2000 and July 2002, but those charges formed the basis of his second lawsuit, Coleman v. Potomac Electric Power Company, 310 F.Supp.2d 154, 162 (D.D.C.2004), aff'd 2004 WL 2348144 (D.C.Cir. Oct 19, 2004) (NO. 04-7043), rehearing en banc denied (Feb. 11, 2005) ("Coleman II"), and therefore are not before the Court. Plaintiff alleges that [o]n December 5, 2003, [he] attended a scheduled appointment within Defendant's Department of Labor Relations during which time he filed a formal complaint of harassment. Amended Complaint ¶ 11. Also, "[o]n or about February 2, 2004 he met with Michael Sullivan, Vice President of Customer Care, during which time he complained about the harassment." Id. ¶ 12. Plaintiff further alleges that weeks after the February 2004 meeting, "during which time he complained about the harassment ... he contacted Sullivan's office seeking an answer to the complaint. Rather than answer the complaint, Defendant opted to terminate his employment ... for having allegedly attended the December 5, 2003 meeting without his supervisor's approval." Id. ¶ 12.

Defendant asserts that because plaintiff fails to allege "that his treatment was because of any illegal factor, such as race or retaliation," he has not shown that he was engaged in statutorily protected activity. Defendant's Memorandum of Points and Authorities in Support of Its Motion to Dismiss, or in the Alternative, for Summary Judgment at 6. Defendant proffers the declarations of then-Human Resources Generalist Karen Gentry-May and Vice President Michael Sullivan, who aver that during their respective meetings with plaintiff, he complained about the evaluation process, his supervisors, and harassment but not about matters "protected by anti-discrimination laws." Gentry-May Decl. ¶ 5; Sullivan Decl. ¶ 4. Had plaintiff raised such issues, both declarants state that they would have documented them and Mr. Sullivan would have alerted the appropriate personnel so that the claims could be investigated. Gentry-May Decl. ¶ 6 (referring to attached notes made contemporaneously with her December 2003 meeting with plaintiff); Sullivan Decl. ¶¶ 4-5 (referring to attached notes made contemporaneously with his February 2004 meeting with plaintiff). In his opposition, plaintiff avers for the first time that during the meetings with these declarants he complained that he "was being harassed because I had participated in activity protected under Title VII." Declaration of Elliotte P. Coleman ¶ 2.⁴ The complaint allegations do not support plaintiff's version, and his subsequent statements are too conclusory to adequately rebut defendant's contrary evidence.

In responding to a summary judgment motion, the "non-movant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial." Bailey v. Henderson, 94 F.Supp.2d 68, 71 (D.D.C.2000) (citing Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In ruling on a summary judgment motion, the Court must accept the non-moving party's statements as true, except those, as presented here, that "are so conclusory as to come within an exception to that rule." Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Plaintiff has not presented any evidence to create a genuine issue of material fact on whether the meetings constituted protected activity. Defendant has demonstrated that they did not.

In his amended opposition, plaintiff claims that his lawsuit filed on June 4, 2003, Coleman II, was protected activity. Defendant does not dispute this claim but instead asserts in its amended reply that the lawsuit is too remote in time from the adverse employment action to support the causation requirement. Causation may be established by showing that "the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Mitchell v. Baldrige, ...