UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
JAMES K. BRYANT )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1063
)
PEPCO )
)
Defendant. )
)
___________________________________)
MEMORANDUM OPINION
Plaintiff James K. Bryant, an African American man, brings
suit against his former employer Defendant, Potomac Electric Power
Company (“Pepco”), under Title VII of the Civil Rights Act, 42
U.S.C. § 1981. This matter is presently before the Court on
Defendant’s Motion for Summary Judgment pursuant(“Def. Mot.”)[Dkt.
No. 46]. Upon consideration of the Motion, Opposition, and Reply,
and the entire record herein, Defendant’s Motion for Summary
Judgment is granted in its entirety.
I. BACKGROUND1
From April 1974 until his retirement on March 1, 2008,
Plaintiff was employed by Defendant, most recently as a “Lead Cable
Splicer Mechanic.” Statement of Material Facts as to Which There is
1
The facts set forth herein are drawn from the parties’ statements
of material facts submitted pursuant to Local Rule 7(h), the
briefs, and the evidence in the record.
No Genuine Factual Dispute ¶ 1 (“Def. Stmt. of Facts”)[Dkt. No. 46-
2]. For a time prior to 2005, Plaintiff assumed temporary
supervisory duties in Pepco’s Underground High Voltage (“UGHV”)
Department, which lacked a supervisor. Def. Mot. 2. As a result of
performing these duties, Plaintiff received a daily upgrade to Pay
Grade 20. Def. Stmt. of Facts ¶ 12. Plaintiff understood that the
pay upgrade would end once a permanent supervisor was hired. Id. ¶
4.2
In 2005, Defendant decided to hire a permanent supervisor for
the UGHV Department. Id. ¶ 13. Plaintiff’s supervisor, Carol
Murphy, Manager - Shops & Test, encouraged Plaintiff to apply for
the position, but he declined to do so. Id. ¶ 14. In November 2005,
Defendant hired a permanent Supervisor, an African-American
employee named Sean Parran, for the UGHV Department. Id. ¶ 13.
However, Plaintiff, who was still working in the UGHV Department,
continued to request a daily Pay Grade 20 increase. Id. ¶ 15. On
December 18, 2006, Murphy informed Plaintiff that he must stop
putting in for the Pay Grade 20 increase. Id. ¶ 19.
On April 18, 2006 and August 9, 2006, Plaintiff took part in
informal meetings between African-American employees working as
Underground Lines and Underground High Voltage Leads (“African-
2
Plaintiff did not respond to or otherwise include this statement
in his statement of genuine issues of material fact in dispute. See
Plaintiff’s Statement of Genuine Issues of Material Facts in
Dispute [Dkt. No. 48-2]. The Court assumes that, by not disputing
this fact, Plaintiff is conceding its accuracy.
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American Leads”) and white Pepco management officials Reginald
McCauley and Ronald Marth. James Bryant Affidavit ¶ 5 (“Bryant
Affidavit”), Ex. 1 to Pl. Opp’n [Dkt. No. 47-1]. Plaintiff claims,
and Defendant denies, that the meetings were held to discuss
discriminatory treatment experienced by the African-American Leads.
Pl. Opp’n 4; Def. Reply 2-3.
Plaintiff filed his initial Complaint on June 4, 2009, which
he amended on July 15, 2009 and September 22, 2009. In his Second
Amended Complaint, Plaintiff raised five counts of alleged
violation of Section 1981 [Dkt. No. 14] . On August 9, 2010, this
Court granted Defendant’s Motion to Dismiss as to Counts 3-5 and
denied it as to Counts 1-2 [Dkt. No. 25].
On April 12, 2011, Defendant filed a Motion for Summary
Judgment. On May 12, 2011, Plaintiff filed an Opposition to
Defendant’s Motion for Summary Judgment (“Pl. Opp’n”) [Dkt. No.
47]. On June 1, 2011, Defendant filed a Reply in Support of Its
Motion for Summary Judgment (“Def. Reply”) [Dkt. No. 49].
II. Standard of Review
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; Arrington v. United States, 473 F.3d
329, 333 (D.C. Cir. 2006). In other words, the moving party must
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satisfy two requirements: first, that there is no “genuine” factual
dispute and, second, if there is, that it is “material” to the
case. “A dispute over a material fact is ‘genuine’ if ‘the evidence
is such that a reasonable jury could return a verdict for the
non-moving party.’” Arrington, 473 F.3d at 333 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (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 Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769 (2007),
the Supreme Court said,
[a]s we have emphasized, “[w]hen the moving
party has carried its burden under Rule 56(c),
its opponent must do more than simply show
that there is some metaphysical doubt as to
the material facts. . . . Where the record
taken as a whole could not lead a rational
trier of fact to find for the nonmoving party,
there is no ‘genuine issue for trial.’”
Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct.
1348, 89 L.Ed.2d 538 . . . (1986) (footnote
omitted). “‘[T]he mere existence of some
alleged factual dispute between the parties
will not defeat an otherwise properly
supported motion for summary judgment; the
requirement is that there be no genuine issue
of material fact.’”
(quoting Liberty Lobby, 477 U.S. at 247-48) (emphasis in original).
However, the Supreme Court has also consistently emphasized
that “at the summary judgment stage, the judge’s function is
not . . . to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for
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trial.” Liberty Lobby, 477 U.S. at 249. In both Liberty Lobby and
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120
S. Ct. 2097 (2000), the Supreme Court cautioned that “[c]redibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts, are jury functions, not those
of a judge” deciding a motion for summary judgment. Liberty Lobby,
477 U.S. at 255.
In assessing a motion for summary judgment and reviewing the
evidence the parties claim they will present, “[t]he non-moving
party’s evidence ‘is to be believed, and all justifiable inferences
are to be drawn in [that party’s] favor.’” Hunt v. Cromartie, 526
U.S. 541, 552, 119 S. Ct. 1545 (1999) (quoting Liberty Lobby, 477
U.S. at 255). The non-movant must, however, “do more than present
conclusory allegations . . . [rather] concrete particulars must be
presented . . . .” Kalekiristos v. CTS Hotel Mgmt. Corp., 958 F.
Supp. 641, 645 (D.D.C. 1997) (internal quotations and citation
omitted). “To survive a motion for summary judgment, the party
bearing the burden of proof at trial . . . must provide evidence
showing that there is a triable issue as to an element essential to
that party’s claim.” Arrington, 473 F.3d at 335. See Celotex Corp.
v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548 (1986).“[I]f the
evidence presented on a dispositive issue is subject to conflicting
interpretations, or reasonable persons might differ as to its
significance, summary judgment is improper.” United States v.
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Philip Morris USA, 316 F. Supp. 2d 13, 16 (D.D.C. 2004) (quoting
Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C. Cir. 1986)).
III. Analysis
Defendant has moved for summary judgment on the remaining
Counts in Plaintiff’s Second Amended Complaint: Count 1,
discrimination based upon race, and Count 2, retaliation based upon
race. Plaintiff does not oppose Defendant’s motion for summary
judgment on Count 1. Pl. Opp’n 1 n.1. Summary judgment is,
therefore, granted on this Count. Lytes v. DC Water and Sewer
Auth., 572 F.3d 936, 943 (D.C. Cir. 2009). The Court will now turn
to Defendant’s motion for summary judgment on Count 2.
A. Count 2 - Retaliation Based Upon Race
Plaintiff claims he was retaliated against on December 18,
2006 when Carol Murphy notified him he could no longer request a
Pay Grade 20 increase, removed his supervisory duties, and
subsequently reassigned his other duties and responsibilities to a
white Pepco employee. Pl. Opp’n 1-2. Plaintiff argues that Murphy
took these actions in response to his participation in the April
and August 2006 meetings between African-American Leads and Pepco
management. Id. Plaintiff claims that Murphy learned of these
meetings because her manager, Reginald McCauley, was a participant
in them. Id. at 5.
In response, Defendant argues that Plaintiff has provided no
details about the April and August 2006 meetings, and offered no
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evidence that Murphy was even aware that Plaintiff participated in
these meetings and/or retaliated against him for these activities.
Def. Mot. 23.
To establish a prima facie case of retaliation under Section
1981, plaintiff must show that “(1) she engaged in a statutorily
protected activity; (2) she suffered a materially adverse action by
her employer; and (3) a causal connection existed between the two.”
Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007). “The causal
connection component of the prima facie case 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, 759. F.2d 80, 86 (D.C.
Cir. 1985). Action which occurs more than three or four months
after the protected activity is not likely to qualify for such a
causal inference. See Clark County School Dist. v. Breeden, 532
U.S. 268, 273-74, 121 S. Ct. 1508 (2001)(per curiam)(citing with
approval circuit cases finding three and fourth months to be too
temporally remote to establish causation). In this case, at least
four months elapsed between the alleged protected activity and the
adverse personnel actions.
Plaintiff has failed to provide any evidence whatsoever that
Pepco retaliated against him because he engaged in protected
activity. Even assuming that Plaintiff could prove that the April
and August 2006 meetings constituted protected activities,
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Plaintiff has provided no evidence showing that McCauley informed
Murphy about these meetings,3 that Murphy was otherwise aware of
Plaintiff’s involvement in these discussions, or that Murphy
retaliated against Plaintiff because of his participation in these
activities.4
By contrast, Defendant has provided unchallenged evidence that
Murphy was not, in fact, aware of the April and August 2006
meetings or Plaintiff’s involvement in those discussions.
Declaration of Carol Murphy ¶ 12, Ex. B to Def. Mot. [Dkt. No. 46-
5].5 Therefore, Plaintiff has failed to rebut Defendant’s affidavit
from Carol Murphy, stating under oath that she had no knowledge
about what was discussed at the meetings or that the meetings even
took place. Thus, “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,” i.e.
Plaintiff. Matsushita Elec. Industrial Co., 475 U.S. at 587. In
short, no “reasonable jury could conclude from all of the evidence
that the adverse employment decision was made for a discriminatory
3
In 2005, Murphy asked Plaintiff to apply for the permanent
supervisor position and he chose not to.
4
In support of his Opposition to Summary Judgment, Plaintiff has
provided two affidavits, one from himself and the other from a co-
worker, Randy Daniels. Both affidavits contain very little
information regarding the April and August 2006 meetings and
contain no evidence as to whether Murphy was aware of Plaintiff’s
participation in these meetings. See Bryant Affidavit; Randy
Daniels, Ex. 2 to Def. Mot. [Dkt. No. 47-2].
5
Plaintiff asks us to assume that Murphy must have learned of the
meetings because her supervisor McCauley attended them. No
evidence in the record supports such pure speculation.
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[or retaliatory] reason.” Holcomb v. Powell, 433 F.3d 889, 896-97
(D.C. Cir. 1996).
For the foregoing reasons, the Court grants Defendant’s Motion
for Summary Judgment on Count 2.
IV. Conclusion
For all the reasons stated herein, Defendant’s Motion for
Summary Judgment is granted in its entirety. An Order will
accompany this Memorandum Opinion.
/s/
November 1, 2011 Gladys Kessler
United States District Judge
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