Perkins v. Vance-Cooks

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
GLEN PERKINS, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-85 (GK)
)
DAVITA VANCE-COOKS, ACTING )
PUBLIC PRINTER, U.S. )
GOVERNMENT PRINTING OFFICE, )
)
Defendant. )
______________________________)

MEMORANDUM OPINION

Plaintiff Glen Perkins, an employee of the United States

Government Printing Office, brings this suit against Defendant

Davita Vance-Cooks1 in her official capacity as Acting Public

Printer. The Complaint alleges that Defendant engaged in unlawful

retaliation against Perkins in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. This

matter is now before the Court on Defendant’s Motion to Dismiss or,

in the Alternative, Motion for Summary Judgment (“Def.’s Mot.”)

[Dkt. Nos. 13, 14] pursuant to Federal Rules of Civil Procedure

12(b)(1), 12(b)(6), and 56. Upon consideration of the Motion,

Opposition, Reply, and the entire record herein, and for the

reasons set forth below, the Motion to Dismiss or, in the

Alternative, Motion for Summary Judgment is granted.

1
Pursuant to Fed. R. Civ. P. 25(d), Acting Public Printer
Davita Vance-Cooks is automatically substituted as Defendant for
former Public Printer William Boarman.
I. Background2

Plaintiff Glen Perkins, an African-American male, has worked

for the United States Government Printing Office (“GPO”) since

2002. He has held several positions during this period, beginning

as a Mail Clerk in the Office of Congressional Publishing Services

(“CPS”), and eventually being promoted to Receiving Clerk at GPO.

Perkins claims that his superiors at GPO have taken actions against

him in retaliation for his prior Equal Employment Opportunity

(“EEO”) complaint, which was settled out of court in 2009.

A. The 2009 Settlement Agreement

According to Perkins, his trouble at GPO began in or around

2008, when his immediate supervisor retired and was replaced by

someone from outside the office. Perkins Decl. ¶¶ 4-6 [Dkt. No. 20-

3]. After the new supervisor was selected, Perkins refused to join

two of his coworkers in an effort to undermine the supervisor’s

authority. Id. ¶ 7. Thereafter, the two coworkers began harassing

and physically threatening Perkins. Id. ¶ 9. One of the coworkers,

Lyndon Ross, referred to Perkins using racial and sexual epithets.

Id. ¶ 8. Perkins eventually reported this conduct to the police,

2
Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties’ Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).

2
and the coworkers were arrested and “ultimately convicted of

felonious threats.”3 Id. ¶ 12.

Subsequently, Perkins filed a complaint with GPO’s EEO Office.

On April 24, 2009, he entered into an out-of-court settlement with

GPO. Def.’s Mot. Ex. 7 (“2009 Settlement Agreement”) ¶ 5 [Dkt. No.

13-1]. Perkins received a promotion, a lump sum payment of $20,000,

a payment representing the difference in pay (the “night time pay

differential”) between his previous position and the new position

he was required to take to separate him from the two coworkers, and

$6,000 for attorney’s fees and costs. Id. ¶¶ 1-4. Perkins claims,

though Defendant denies, that he was never paid the night time pay

differential. See Pl.’s Statement of Undisputed Material Facts ¶ 10

[Dkt. No. 20-1]; Def.’s Reply 6-7 [Dkt. No. 23].

B. The Current Civil Action

As a result of the settlement agreement, Perkins was promoted

to “Receiving Clerk” on April 26, 2009. Since that time, his

supervisors have included Randy Wilson, an African-American male,

Sheron Minter, an African-American female, Gregory Estep, a male

whose ethnicity has not been identified, and Lyle Green, a

Caucasian male. His duties primarily consist of receiving and

delivering GPO products to United States House of Representatives

and Senate offices on Capitol Hill.

3
According to Defendant, Ross was found guilty of a
misdemeanor, “Attempted Threats to Do Bodily Harm.” Def.’s
Statement of Undisputed Material Facts 6 n.2.

3
 Perkins now claims that his superiors at GPO have engaged in

retaliatory conduct. He points to a number of incidents which he

claims were retaliatory or, taken together, amount to a hostile

work environment. Because the parties disagree as to many of the

details of these incidents, the events will be only briefly

described below.

1. May 7, 2009, Annual Budget Distribution

On May 7, 2009, Perkins, along with Minter and Wilson,

delivered President Barack Obama’s first budget to the House of

Representatives Budget Committee. Perkins was operating an electric

jack. Although the manner and tone Perkins used is in dispute, it

is clear that, in one way or another, he asked Minter and Wilson to

move out of the way of the jack because he feared it was going to

injure them. Later that day and during a subsequent meeting, Wilson

chastised Perkins for the way he spoke to him and Minter. According

to Perkins, he was never given a chance to explain his behavior.

2. May 18, 2009, Orientation

On May 18, 2009, Perkins’ supervisors held an orientation

meeting for him. According to Perkins, not every employee who comes

to CPS on Capitol Hill is required to attend such a meeting and the

purpose of the meeting was to harass him. Defendant vigorously

denied this allegation and states that attendance at an orientation

meeting is a common practice.

4
 3. Assignment to Work Location Without Assistance

After Perkins’ training was completed, he was assigned to the

Cannon House Office Building. According to Perkins, he was the only

clerk assigned to that work location, even though prior to his

tenure and after he left, two clerks were assigned to do that work.

4. June 3, 2009, Incident with Lyndon Ross

According to Perkins, on June 3, 2009, he was standing between

the Longworth and Cannon House Office Buildings when Lyndon Ross

drove by, stuck out his tongue, and pointed at him in a manner that

resembled the pointing of a gun. Perkins reported the incident to

GPO’s human resources office the next day. He claims that “his

supervisors allowed Ross to appear on Capital [sic] Hill to

intimidate [him] in the hope [that he] would leave his job.” Pl.’s

Statement of Undisputed Material Facts ¶ 33.

GPO investigated the incident and determined that Ross had a

legitimate reason to be on Capitol Hill, that Ross had no access to

information about Perkins’ whereabouts, and that the evidence did

not support Perkins’ allegations. Perkins denies that GPO conducted

a fair investigation.

5. Humiliation During Receiving Clerks Meeting

At some time during his tenure as a receiving clerk, Perkins

attended a receiving clerks meeting led by Estep. According to

Perkins, Estep stated that “some people were going outside of GPO

5
for problems that are GPO problems.” Perkins felt that this comment

was directed at him.

6. July 7, 2009, Incident Regarding Delivery Receipt

On July 7, 2009, Perkins made a delivery but failed to obtain

a receipt. Perkins claims that although he failed to get a receipt

at the time of delivery, he did get one before the end of the day.

Wilson later contacted Perkins to remind him that it was GPO’s

policy not to deliver any work without a receipt. According to

Defendant, Perkins responded in a loud and rude manner. On July 9,

2009, Wilson and Estep met with Perkins and told him that was not

being reprimanded, but that he should display professional behavior

toward his superiors.

7. October 16, 2009, Incident with Marsha Douglas

On October 16, 2009, Perkins made a delivery to Marsha

Douglas, Chief Administrator for the House of Representatives

Budget Committee. Although the specifics of their interaction are

in dispute, it is clear that, later that day, Douglas called Andrew

Sherman, Director of GPO’s Office of Congressional Relations, to

complain about Perkins’ rude behavior. Perkins was subsequently

transferred to other Congressional offices so that he would not

have further conduct with Douglas and, on November 12, 2009, was

given a Letter of Warning (“LOW”) for his conduct. Perkins filed a

grievance with his union over the LOW, but the union did not invoke

6
arbitration within 30 days and the grievance was closed for failure

to proceed.

8. March 11, 2010, “Sleeping” Incident

On March 11, 2010, Estep, who was new to GPO at the time, went

to Capitol Hill to visit with GPO employees. According to Estep, he

saw Perkins sleeping on a chair. Perkins denies that he was asleep.

According to Perkins’ version of events, Estep knocked on the door

to the office, because it was locked, then entered and spent most

of the meeting speaking to Orlando Sellers, who shared the office.

Pl.’s Opp’n 14. On March 24, 2010, Perkins and his Union

Representative met with Estep and Wilson to discuss what happened.

Estep and Wilson told Perkins that he would not be disciplined for

his conduct, though Perkins claims that their statement was untrue,

as his reputation suffered as a result of the accusation.

9. Overtime Incident

On February 23, 2011, Perkins was asked to work overtime to

complete a project. The next day, Perkins informed Wilson that he

was owed an hour of overtime. According to Perkins, Wilson first

objected to paying the overtime and then stated that he would call

Perkins back. According to Defendant, Wilson then told Perkins that

he would receive the overtime, even though he was told that Perkins

had been able to finish the job without using overtime. Perkins

denies that Wilson told him he would receive any overtime pay.

7
 Approximately a day later, Perkins called Wilson back and

accused him of lying and disrespecting him. According to Wilson,

Perkins was “loud” and “nasty,” though Perkins denies that

characterization.

On March 2, 2011, Minter met with Perkins to discuss the

incident. At the meeting, Perkins told her that he felt he needed

to tell Wilson that he did not trust him. On June 23, 2011, a

proposal for suspension was issued. On August 5, 2011, Perkins was

issued a letter of suspension. He served his suspension from August

31, 2011, to September 2, 2011.

On January 13, 2011, prior to the overtime incident, Perkins

filed his Complaint [Dkt. No. 1]. Perkins alleged one count of

“Adverse Employment Actions Taken Against [Him] on the Basis of

Retaliation.” Compl. 7. On February 22, 2012, Defendant filed her

Motion to Dismiss or, in the Alternative, Motion for Summary

Judgment. On May 30, 2012, Perkins filed his Opposition [Dkt. No.

20]. On July 27, 2012, Defendant filed her Reply.

II. Standard of Review

Under Rule 12(b)(1), Plaintiff bears the burden of proving by

a preponderance of the evidence that the Court has subject matter

jurisdiction. See Shuler v. U.S., 531 F.3d 930, 932 (D.C. Cir.

2008). In reviewing a motion to dismiss for lack of subject matter

jurisdiction, the Court must accept as true all of the factual

allegations set forth in the Complaint; however, such allegations

8
“will bear closer scrutiny in resolving a 12(b)(1) motion than in

resolving a 12(b)(6) motion for failure to state a claim.” Wilbur

v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003) (citations and

quotations omitted). The Court may consider matters outside the

pleadings. See Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192,

197 (D.C. Cir. 1992). The Court may also rest its decision on its

own resolution of disputed facts. Id.

Under Rule 56, summary judgment may be granted “only if” the

pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter

of law. See Fed. R. Civ. P. 56(c), as amended December 1, 2007;

Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006). “A

dispute over a material fact is ‘genuine’ if ‘the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)). A fact is “material” if it might affect the

outcome of the case under the substantive governing law. Liberty

Lobby, 477 U.S. at 248.

In deciding a motion for summary judgment, “the court must

draw all reasonable inferences in favor of the nonmoving party, and

it may not make credibility determinations or weigh the evidence.”

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150

(2000). Ultimately, the court must determine “whether the evidence

9
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. Summary judgment

is appropriate if the non-movant fails to offer “evidence on which

the jury could reasonably find for the [non-movant].” Id. at 252.

III. Motion to Dismiss Under Rule 12(b)(1)

Defendant argues that Perkins’ claim relating to the night

time pay differential is not a retaliation claim, but is actually

a breach of contract claim over which this Court does not have

jurisdiction. Def.’s Mot. 9-10. According to Defendant, Perkins is

really arguing that GPO violated the 2009 Settlement Agreement,

which is a government contract over which only the Court of Federal

Claims has jurisdiction. Id.

Defendant is correct that the Tucker Act “vests exclusive

jurisdiction in the United States Court of Federal Claims over

contract disputes when the United States is a defendant and the

amount in controversy exceeds $10,000.” Dews-Miller v. Clinton, 707

F. Supp. 2d 28, 46 (D.D.C. 2010) (citing 28 U.S.C. §§ 1346(a)(2),

1491). Further, “[t]he D.C. Circuit and the Federal Circuit

recognize that breaches of settlement agreements based on Title VII

are ‘straightforward contract claims within the purview of the

Tucker Act and the jurisdiction of the Court of Federal Claims.’”

Allen v. Napolitano, 774 F. Supp. 2d 186, 196 (D.D.C. 2011)

10
(quoting Greenhill v. Spellings, 482 F.3d 569, 574 (D.C. Cir.

2007)).

Therefore, when “‘the primary thrust of [a] complaint is

breach of contract . . . , the Claims Court would retain

jurisdiction over the suit.’” Rochon v. Gonzales, 438 F.3d 1211,

1215 (D.C. Cir. 2006) (quoting Wood v. United States, 961 F.2d 195,

198 (Fed. Cir. 1992)). “Federal courts, however, can exercise

jurisdiction over Title VII claims relating to a settlement

agreement if the essence of the claims requires interpreting Title

VII, not a contract.” Allen, 774 F. Supp. 2d at 196 (citing

Greenhill, 482 F.3d at 575).

As an initial matter, Perkins fails to address this issue in

his Opposition. For this reason alone, his claim for night time pay

differential must be dismissed. Hopkins v. Women’s Div., Gen. Bd.

of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is

well understood in this Circuit that when a plaintiff files an

opposition to a dispositive motion and addresses only certain

arguments raised by the defendant, a court may treat those

arguments that the plaintiff failed to address as conceded.”

(citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997))).

Moreover, it is equally clear that “the primary thrust” of

Perkins’ claim for night time pay differential is contractual in

nature, and therefore must be dismissed. Rochon, 438 F.3d at 1215

(internal quotation omitted). Perkins’ allegation is

11
straightforward: “[a]ll of the money due to Mr. Perkins has not yet

been paid to him.” Compl. ¶ 18. “Failure to carry out obligations

under a settlement agreement, however, is the hallmark of a breach

of contract claim, not a retaliation claim.” Allen, 774 F. Supp. 2d

at 196. Indeed, just as in Allen, Perkins “complains that defendant

retaliated against [him] by failing to comply with a term of [his]

settlement agreement -- a breach of the contract.” Id. Therefore,

Perkins’ claim for night time pay differential must be dismissed

for lack of subject matter jurisdiction.

IV. Motion for Summary Judgment Under Rule 56

As for his remaining claims, Perkins intertwines theories of

retaliation and hostile work environment.4 See, generally, Pl.’s

Opp’n. In response, Defendant contends that his “claims are neither

independently actionable as acts of retaliation . . . nor

cumulatively rise to the level of severity and pervasive conduct

necessary to support a hostile work environment claim.” Def.’s Mot.

2-3. Therefore, each theory will be addressed in turn.

4
Perkins’ Opposition also contains a single paragraph with
the heading “Actions Taken Against Plaintiff to Create a Hostile
Environment Were Motivated by Racial Animus.” Pl.’s Opp’n 29
(emphasis added). In this paragraph, Perkins states: “Plaintiff
first provides evidence regarding the racial animus motivating the
hostile environment created in his workplace.” Id. With the
exception of this solitary sentence, which contains no record
citation, Perkins makes no further claim of racial discrimination.
Because he has not put forth any evidence whatsoever regarding
racial animus, the Court will treat his claims as relying only on
retaliation.

12
 A. Retaliation

“Title VII prohibits the federal government from

discriminating in employment on grounds of race or sex . . . and

from retaliating against employees for engaging in activity

protected by Title VII.” Montgomery v. Chao, 546 F.3d 703, 706

(D.C. Cir. 2008). “To prove unlawful retaliation, a plaintiff must

show: (1) that he opposed a practice made unlawful by Title VII;

(2) that the employer took a materially adverse action against him;

and (3) that the employer took the action ‘because’ the employee

opposed the practice.” McGrath v. Clinton, 666 F.3d 1377, 1380

(D.C. Cir. 2012).

In this case, the parties do not dispute that Perkins opposed

a practice made unlawful by Title VII in the events leading up to

the 2009 Settlement Agreement. Therefore, to prove retaliation, he

must first show that the given act was a materially adverse

employment action. In the discrimination context, “[a]n adverse

employment action is a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing

significant change in benefits.” Douglas v. Donovan, 559 F.3d 549,

552 (D.C. Cir. 2009). “An employee must ‘experience[ ] materially

adverse consequences affecting the terms, conditions, or privileges

of employment or future employment opportunities such that a

reasonable trier of fact could find objectively tangible harm.’”

13
Id. (quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir.

2002)). In the retaliation context, however, “actions giving rise

to claims are ‘not limited to discriminatory actions that affect

the terms and conditions of employment,’ . . . but reach any harm

that ‘well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.’” Baird v. Gotbaum, 662 F.3d

1246, 1249 (D.C. Cir. 2011) (quoting Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 64, 68 (2006)).

Second, Perkins must show that Defendant “took the action

‘because’ [he] opposed the practice.” McGrath, 666 F.3d at 1380.

“In the absence of direct evidence of retaliation,” the McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), burden-shifting

framework applies. McGrath, 666 F.3d at 1383. However, where a

defendant has offered a legitimate, non-discriminatory purpose for

its adverse actions, consideration of the plaintiff’s prima facie

case is unnecessary:

[W]here a defendant ‘has asserted a
legitimate, non-discriminatory reason for [its
action], the district court need not--and
should not--decide whether the plaintiff
actually made out a prima facie case . . . .’
Brady v. Office of the Sergeant at Arms, 520
F.3d 490, 494 (D.C. Cir. 2008). Rather, at
that point, ‘the burden-shifting framework
disappears, and a court reviewing summary
judgment looks to whether a reasonable jury
could infer . . . retaliation from all the
evidence.’ Jones [v. Bernanke, 557 F.3d 670,
677 (D.C. Cir. 2009)] (quoting Carter v.
George Wash. Univ., 387 F.3d 872, 878 (D.C.
Cir. 2004)).

14
Beckford v. Geithner, 661 F. Supp. 2d 17, 22-23 (D.D.C. 2009).

1. Adverse Employment Action

As explained above, Perkins has offered nine discrete examples

of supposedly retaliatory conduct.5 For eight of these incidents,

Perkins has failed to demonstrate any materially adverse employment

action. As to (1) the May 7, 2009, Annual Budget distribution; (2)

the May 18, 2009, orientation; (3) his assignment to work at the

Cannon Building by himself; (4) the supposed humiliation during the

receiving clerks meeting; (5) the July 7, 2009, incident regarding

failure to obtain a receipt; and (6) the March 11, 2010, “sleeping”

incident, Perkins was not subject to any “significant change in

employment status,” Douglas, 559 F.3d at 552, nor any action that

“might have dissuaded a reasonable worker from making or supporting

a charge of discrimination.” Baird, 662 F.3d at 1249. None of these

events involved anything more than, at most, verbal reprimands or

criticism. Even as Perkins describes the incidents, each of the

“discrete episodes seems (at worst) akin to the sort of ‘public

5
In his Opposition, Perkins also raises, for the first
time, a claim that he was unfairly denied an annual award that
similarly situated co-workers received. Pl.’s Opp’n 13-14. It is
settled law in this circuit that a plaintiff may not raise new
allegations in this manner. See, e.g., Middlebrooks v. Godwin
Corp., 722 F. Supp. 2d 82, 87 n.4 (D.D.C. 2010) (“[P]laintiff
failed to include these allegations in her complaint, and plaintiff
may not amend her complaint by the briefs in opposition to a motion
to dismiss.”); Coll. Sports Council v. GAO, 421 F. Supp. 2d 59, 71
n.16 (D.D.C. 2006) (““[T]he Court does not, and cannot, consider
claims first raised in the plaintiff’s opposition.”). Therefore,
the Court will not consider this claim.

15
humiliation or loss of reputation’ that [our Court of Appeals]

ha[s] consistently classified as falling below the requirements for

an adverse employment action.” Id.

Similarly, Perkins suffered no adverse employment action from

the June 3, 2009, incident involving Lyndon Ross. Perkins’ claim

that “[b]y misinforming Plaintiff that Ross was free to visit

Capital [sic] Hill and by not informing Plaintiff about Mr. Vines’

order to Ross to avoid Perkins, GPO managers intentionally allowed

him to remain anxious about Mr. Ross,” falls well short of the

standard. Pl.’s Opp’n 6. While it is true that “a claim of

discriminatory or retaliatory failure to remediate may be

sufficient if the uncorrected action would (if it were

discriminatory or retaliatory) be of enough significance to qualify

as an adverse action (under the relevant standard),” Perkins has

not made the necessary showing here. Baird, 662 F.3d at 1249.

Perkins himself concedes that GPO made an investigation of the

event and that Ross was ordered to stay away from him. See Pl.’s

Opp’n 5. Nevertheless, he argues that Defendant purposely allowed

him to remain anxious by failing to tell him that Ross was ordered

to stay away. Id. 5-6. Simply put, a failure to anticipate and cure

his anxiety is not a materially adverse employment action. See

Douglas, 559 F.3d at 552; Baird, 662 F.3d at 1249.

Finally, Perkins has failed to show that the letter of warning

he received after the October 16, 2009, incident with Marsha

16
Douglas constitutes an adverse employment action. Letters

“contain[ing] no abusive language, but rather job-related

constructive criticism, which ‘can prompt an employee to improve

her performance’” do not suffice to demonstrate a materially

adverse employment action. Baloch v. Kempthorne, 550 F.3d 1191,

1199 (D.C. Cir. 2008). Indeed, as in Baloch, Perkins has pointed to

no financial harm or other tangible form of adverse action

resulting from the letter. Id.; see also Saunders v. Mills, 842 F.

Supp. 2d 284, 294 (D.D.C. 2012). Therefore, Perkins has failed to

carry his burden of demonstrating a materially adverse employment

action for any of these eight events.

2. Inference of Retaliation

The sole remaining event relied upon by Perkins is his

suspension based on his argument with Wilson relating to overtime.

Defendant does not dispute that he suffered an adverse employment

action, but does put forth the legitimate, non-discriminatory

reason that Perkins was “suspended . . . for discourteous behavior

towards his supervisor.” Def.’s Reply 17.

The only question left to answer is “whether a reasonable jury

could infer that the proffered legitimate reason was false and that

defendant’s actions were intended as retaliation.” Meadows v.

Mukasey, 555 F. Supp. 2d 205, 210 (D.D.C. 2008); see Weber v.

Battista, 494 F.3d 179, 186 (D.C. Cir. 2007) (explaining that a

plaintiff must prove both conditions to prevail). The court should

17
consider the totality of the circumstances of the case, relying on

“‘(1) the plaintiff’s prima facie case; (2) any evidence the

plaintiff presents to attack the employer’s proffered explanation

for its actions; and (3) any further evidence of [retaliation] that

may be available to the plaintiff.’” Hampton v. Vilsack,

___F.3d___, No. 11-5194, 2012 WL 2866329, at *3 (D.C. Cir. July 13,

2012) (quoting Waterhouse v. District of Columbia, 298 F.3d 989,

992-93 (D.C. Cir. 2002)); Meadows, 555 F. Supp. 2d at 210. “[I]f

[the plaintiff] is unable to adduce evidence that could allow a

reasonable trier of fact to conclude that [defendant’s] proffered

reason was a pretext for [retaliation], summary judgment must be

entered against [him or her].” Paquin v. Fed. Nat’l Mortgage Ass’n,

119 F.3d 23, 27-28 (D.C. Cir. 1997).

“The strength of the plaintiff’s prima facie case, especially

the existence of a causal connection, can be a significant factor

in his attempt to rebut the defendant’s legitimate non-retaliatory

reason for the adverse action.” Holmes-Martin v. Sebelius, 693 F.

Supp. 2d 141, 152 (D.D.C. 2010). Perkins’ prima facie case of a

causal connection between his prior EEO activity and the agency’s

adverse actions is weak. Perkins recites no facts that would

suggest that, even if Defendant’s proffered reasons are false, the

actual motivation for the adverse actions was retaliation for his

prior EEO activity.

18
 Rather, Perkins concedes that he “did express his mistrust of

Mr. Wilson.” Pl.’s Statement of Undisputed Material Facts ¶ 83.

Although Perkins does deny Defendant’s claim that he got “loud” and

“nasty,” he does not dispute Defendant’s assertion that he called

Wilson specifically to criticize him and tell him that he did not

trust him. Given these concessions, no “reasonable jury could infer

that the proffered legitimate reason was false and that defendant’s

actions were intended as retaliation.” Meadows, 555 F. Supp. 2d at

210 (emphasis added).

In sum, Perkins has failed to put forth sufficient evidence to

show that Defendant engaged in any retaliatory act.

B. Hostile Work Environment

Alternatively, Perkins argues that all of the incidents cited,

taken as a whole, demonstrate a hostile work environment. According

to him, “[i]t is critical to view the entire gamut of events which

Plaintiff offers as evidence of a hostile environment.” Pl.’s Opp’n

24.

As with any claim of retaliatory hostile work environment, to

prevail, “‘a plaintiff must show that his employer subjected him to

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.’”

Baird, 662 F.3d at 1250 (quoting Baloch, 550 F.3d at 1201); see

also Hussain v. Nicholson, 435 F.3d 359, 266 (D.C. Cir. 2006) (“a

19
hostile work environment can amount to retaliation under Title

VII”). “To determine whether a hostile work environment exists, the

court looks to 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.” Graham v. Holder, 657 F. Supp. 2d 210, 216 (D.D.C.

2009) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88

(1998)). “These standards ensure that Title VII does not become a

‘general civility code,’ and are intended to filter out complaints

attacking ‘the ordinary tribulations of the workplace, such as the

sporadic use of abusive language, gender-related jokes, and

occasional teasing.’” Bryant v. Leavitt, 475 F. Supp. 2d 15, 28

(D.D.C. 2008) (quoting Faragher, 524 U.S. at 787).

The conduct described by Perkins does not, as a matter of law,

begin to approach the standard for a hostile work environment.

Nothing that Perkins has alleged amounts to intimidation, ridicule,

or insult. Baird, 662 F.3d at 1250. Rather, construing the facts in

the light most favorable to Perkins, each incident resulted, at

worst, in either a verbal or written instruction as to how to

better conduct himself in the workplace. See, e.g., Singh v. U.S.

House of Representatives, 300 F. Supp. 2d 48, 56 (D.D.C. 2004)

(“Criticisms of a subordinate's work and expressions of disapproval

(even loud expressions of disapproval) are the kinds of normal

strains that can occur in any office setting”). Perkins may well

20
have had to endure criticism, but he has not articulated anything

that approaches the severe or offensive. Graham, 657 F. Supp. 2d at

216; see also Houston v. SecTek, Inc., 680 F. Supp. 2d 215, 225

(D.D.C. 2010) (finding that comments made with “a belittling tone”

and “sarcastic remarks” “failed to satisfy the required elements of

[a] racially hostile work environment claim[].”).

In short, Perkins has failed to produce any evidence of

conduct so severe or persuasive as “to alter the conditions of

[his] employment and create an abusive working environment.” Baird,

662 F.3d at 1250 (internal quotation omitted). No jury could

reasonably conclude that Perkins has proven, by a preponderance of

the evidence, that he was subjected by Defendant to a hostile work

environment. Therefore, he has failed to make the necessary showing

required to prevail on a hostile work environment claim.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss

or, in the Alternative, Motion for Summary Judgment is granted. An

Order will accompany this Memorandum Opinion.

/s/
August 22, 2012 Gladys Kessler
United States District Judge

Copies to: attorneys on record via ECF.

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