Herbert v. Architect of Capitol

• Decision Date: 20 March 2012
• Docket Number: Civil Action No. 09–01719 (CKK).
• Parties: Cornell HERBERT, Plaintiff, v. ARCHITECT OF the CAPITOL, Defendant.
• Court: U.S. District Court — District of Columbia

839 F.Supp.2d 284

114 Fair Empl.Prac.Cas. (BNA) 1169

Cornell HERBERT, Plaintiff,

v.ARCHITECT OF the CAPITOL, Defendant.

Civil Action No. 09–01719 (CKK).

United States District Court,

District of Columbia.

March 20, 2012.

Leslie David Alderman, III, Alderman, Devorsetz & Hora PLLC, Washington, DC, for Plaintiff.

Fred Elmore Haynes, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Plaintiff Cornell Herbert (“Herbert”), an African American, brings this action against his current employer, the Architect of the Capitol (the “AOC”), claiming that he was discriminated and retaliated against in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Congressional Accountability Act of 1995 (the “CAA”). In his [33] Second Amended Complaint, Herbert asserts a total of five claims against the AOC. In Count I, Herbert claims that he was discriminated against when the AOC did not select him to serve as a full-time “point man” during a project in 2008. In Count II, Herbert claims that he was retaliated against when the AOC did not select him to serve as a full-time “point man” during a project in 2008. In Count III, Herbert claims that he has been continuously subjected to a discriminatory and retaliatory hostile work environment. In Count IV, Herbert claims that he was discriminated against when the AOC issued him a letter of reprimand in connection with a verbal altercation between him and a co-worker on May 1, 2010. In Count V, Herbert claims that he was retaliated against when the AOC issued him a letter of reprimand in connection with a verbal altercation between him and a co-worker on May 1, 2010.

Currently before the Court is the AOC's [36] Motion for Summary Judgment, which Herbert has opposed. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole,¹ the Motion shall be GRANTED–IN–PART and DENIED–IN–PART. Specifically, the Court shall ENTER judgment in the AOC's favor on Counts I, IV, and V of the Second Amended Complaint because no reasonable fact-finder could conclude that the employment actions challenged through these claims were materially adverse. The AOC's Motion for Summary Judgment shall otherwise be DENIED because the AOC has failed to establish an absence of a genuine dispute of material fact and its entitlement to judgment as a matter of law. Accordingly, only Count II, through which Herbert claims that he was retaliated against when the AOC did not select him to serve as a full-time “point man” during a project in 2008, and Count III, through which Herbert claims that he has been continuously subjected to a discriminatory and retaliatory hostile work environment, survive the Court's decision today.

I. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and [that it] ... is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record—including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence—in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass'n of Flight Attendants–CWA, AFL–CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465–66 (D.C.Cir.2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact,” the district court may “consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e).

When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in his, her, or its favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). In the end, the district court's task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251–52, 106 S.Ct. 2505. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); “[i]f the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted,” Liberty Lobby, 477 U.S. at 249–50, 106 S.Ct. 2505 (internal citations omitted).

In recognition of the difficulty in uncovering clear evidence of discriminatory or retaliatory intent, the district court should approach summary judgment in an action for employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879–80 (D.C.Cir.1997), vacated on other grounds,156 F.3d 1284(D.C.Cir.1998) ( en banc ). Even so, the plaintiff is not relieved of his burden to support his allegations with competent evidence. Brown v. Mills, 674 F.Supp.2d 182, 188 (D.D.C.2009). As in any context, if the plaintiff will bear the burden of proof on a dispositive issue at trial, then at the summary judgment stage he bears the burden of production to designate specific facts showing that there is a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009). Absent this burden, the plaintiff could effectively defeat the “central purpose” of the summary judgment device—namely, “to weed out those cases insufficiently meritorious to warrant ... trial”—simply by way of offering conclusory allegations, speculation, and argument. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999).

II. DISCUSSION

A. Counts I and II: The Materially Adverse Action Requirement and Herbert's Non–Selection as a Full–Time “Point Man” in 2008

Every two years, in the month following the congressional elections, the AOC is tasked with organizing what it refers to as the “congressional moves.” Def.'s Stmt. ¶¶ 9–10; Pl.'s Resp. Stmt. ¶¶ 9–10. In a three-week period, the AOC must move 180 to 210 members of Congress, presenting a major project for the Paint Shop in which Herbert is employed. Def.'s Stmt. ¶¶ 9–10; Pl.'s Resp. Stmt. ¶¶ 9–10. In orderto meet the time constraints imposed on its work, the Paint Shop engages 40 to 70 temporary painters and paints around the clock. Def.'s Stmt. ¶ 11; Pl.'s Resp. Stmt. ¶ 11. Temporary painters are organized into teams and an experienced painter from the Paint Shop's permanent staff is assigned to act as a “point man” for each team. Def.'s Stmt. ¶ 12; Pl.'s Resp. Stmt. ¶ 12. In Counts I and II, Herbert claims that he was discriminated and retaliated against when the AOC did not select him to serve as a full-time point man during the 2008 congressional moves. Second Am. Compl. (“Compl.”), ECF No. [33], ¶¶ 41, 45. Count I sounds in discrimination and Count II sounds in retaliation.

In order to present a viable claim for discrimination or retaliation under Title VII or the CAA,² a plaintiff must show that he suffered a materially adverse employment action. Baird v. Gotbaum, 662 F.3d 1246, 1248–49 (D.C.Cir.2011). With respect to Counts I and II, the AOC contends that Herbert cannot show that he was subjected to a materially adverse employment action. For the reasons set forth below, the Court agrees with respect to Count I, but reaches a different conclusion with respect to Count II.

Unsurprisingly, Herbert and the AOC have different opinions about what it means to serve as a point man. Whereas the AOC emphasizes that serving as a point man is a temporary assignment that neither affects a painter's salary or permanent duties, Herbert contends that serving as a point man comes with increased responsibilities and greater earning and promotion potential. See Def.'s Mem. at 6, 17; Pl.'s Opp'n at 15–16. Despite these competing visions, the nature of a point man's responsibilities is not in dispute: during the congressional move period, a point man is assigned to each team and is tasked with ensuring that the team paints the correct suites and uses proper paints and techniques. Def.'s Stmt. ¶ 13; Pl.'s Resp. Stmt. ¶¶ 13, 37; Def.'s Reply Stmt. ¶ 37. Furthermore, there is no genuine dispute that serving as a point man is a temporary assignment that neither affects a person's salary or permanent responsibilities outside of the congressional move period nor involves an official entry in the painter's official personnel records reflecting whether he or she was selected to serve as a point man. Def.'s Stmt. ¶ 20; Pl.'s Resp. Stmt. ¶ 20; Decl. of Edward Williams, Sr. (“Williams Decl.”), ECF No. [36–1],

With that much settled, the...