UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY BOUKNIGHT, :
:
Plaintiff, : Civil Action No.: 06-2118 (RMU)
:
v. : Re Document Nos.: 28, 32
:
DISTRICT OF COLUMBIA, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART THE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT; GRANTING THE DEFENDANT’S SUPPLEMENTAL
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This matter is before the court on the defendant’s motion for summary judgment and
supplemental motion for summary judgment. The plaintiff, an African-American paramedic
employed by the D.C. Fire and Emergency Medical Services (“EMS”) Department, alleges that
the defendant took unwarranted punitive actions against him and subjected him to a hostile work
environment based on his race, in violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e et seq., the District of Columbia Human Rights Act (“DCHRA”),
D.C. Code §§ 2-1401 et seq., and 42 U.S.C. § 1981 (“§ 1981”). In its motion for summary
judgment, the defendant argues that the court should grant it summary judgment on the
plaintiff’s disparate treatment claims because the plaintiff has failed to raise an inference of
discrimination, did not suffer an adverse employment action and has failed to rebut the
defendant’s legitimate, non-discriminatory justification for the challenged actions. In its
supplemental motion for summary judgment, the defendant argues that the plaintiff has failed to
raise a genuine issue of material fact concerning whether he was subjected to a hostile work
environment. For the reasons discussed below, the court grants in part and denies in part the
defendant’s motion for summary judgment and grants the defendant’s supplemental motion for
summary judgment.
II. FACTUAL & PROCEDURAL BACKGROUND
The plaintiff has been employed as a paramedic by the D.C. Fire and EMS Department
since December 1991. Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”) at 2. On the
evening of August 6, 2005, the plaintiff and his partner, paramedic Matthew Shook, were
dispatched to the Marriot Convention Center at Georgetown University in response to an
emergency call. Id.; Def.’s Mot. for Summ. J. (“Defs.’ Mot.”) at 4. Shook, who is white, was
responsible for providing patient care while the plaintiff drove the ambulance to and from the
scene. Pl.’s Opp’n at 2-3. The plaintiff transported the patient and her mother to Georgetown
University Hospital. Id. at 3.
On August 22, 2005, EMS received a letter of complaint from the mother of the patient
transported on August 6, 2005. Pl.’s Opp’n, Ex. D at 1. According to the letter, the patient’s
mother had made the emergency call on August 6 because her daughter, who suffered from Type
1 diabetes, had inadvertently given herself a potentially fatal dose of insulin. Id. at 1. The letter
stated that when the paramedics arrived, they seemed confused as to why they were called,
pointing out that the Marriot Convention Center was within walking distance of the hospital. Id.
The letter alleged that during the drive to the hospital, one of the paramedics complained that
they “had to drive all the way across town for this” and suggested that the patient should have
simply walked to the hospital. Id. The letter further alleged that the paramedics chose not to
write up an incident report, trivializing the patient’s ordeal. Id.
2
On the day the complaint was received, the plaintiff and Shook were instructed to report
to the office of their supervisor, Captain Hattie Tompkins, who is African-American. At that
time, they learned of the complaint lodged against them. Pl.’s Opp’n at 3. On August 30, 2005,
the plaintiff was again called into Captain Tompkins’s office. Id. at 4. The plaintiff was
informed that effective September 4, 2005, he and Shook would be transferred from their
assignment on the “Medic 1” unit and sent to separate units pending an investigation into the
allegations raised in the complaint.1 Id.
The plaintiff states that approximately one week later, Captain Tompkins informed him
that although he had done nothing wrong in connection with the August 6, 2005 run, he was
being transferred to avoid the appearance of racial discrimination. Id. More specifically,
Captain Tompkins allegedly stated that because she and the plaintiff are black while Shook is
white, she felt compelled to discipline the plaintiff to avoid the appearance of race-based
preferential treatment that could give rise to a discrimination complaint. Id. The plaintiff, who
maintained that he did nothing wrong in connection with the August 6, 2005 run, objected to the
transfer and requested that no action be taken against him. Id.
On October 1, 2005, Captain Tompkins recommended that the plaintiff and Shook be
suspended from work without pay for ten days based on the August 6, 2005 incident. Def.’s
Mot., Ex. E. Tompkins concluded that based on her investigation, the plaintiff and Shook
violated patient-care protocols by, inter alia, failing to take the patient’s vital signs, failing to
make a patient assessment, providing false documentation and acting in a discourteous manner to
the patient and her mother. Id. Captain Tompkins stated that “[t]he casualness, by which these
1
The plaintiff asserts that although he requested that a union representative be present during the
August 30, 2005 meeting, Captain Tompkins and another supervisor informed him that no union
representative was needed and that no disciplinary action would be taken as a result of anything
discussed on August 30, 2005. Pl.’s Opp’n at 4.
3
primary duties and responsibilities were not carried out, [was] unacceptable and inexcusable
under any standard of conduct” and compelled her to charge the plaintiff and Shook with failing
to perform their duties as paramedics. Id.
On November 15, 2005, the Fire and EMS Department issued a notice advising the
plaintiff of its intention to suspend him for at least fifteen days without pay based on the August
6, 2005 run. Pl.’s Opp’n, Ex. F. (“Advance Notice”) at 1. The Advance Notice stated that the
plaintiff violated the General Patient Care Protocols (“the Protocols”) by failing to take the
patient’s vital signs, test the patient’s blood to determine whether her blood sugar was normal,
perform a patient assessment, complete a patient care report or provide the triage nurse at the
hospital emergency room with a copy of the patient care report. Id. at 2. Failure to complete the
patient care report and provide the report to the triage nurse constituted specific violations of
General Patient Care Protocol A1.7 No. XI (“Transfer of Care and Documentation”). Def.’s
Mot. at 5. That protocol provides that “upon arrival at the medical facility[,] transfer of care will
be conducted and the run sheet must be completed. The patient care report is not considered
complete until both the patient care sheet and the data entry sheet are filled out in their entirety.”
Id.
The Advance Notice addressed the plaintiff’s assertion that he was the driver and not
directly responsible for administering patient care, noting that “[t]he fact that you were the driver
does not alleviate you from your responsibilities.” Advance Notice at 2. The Advance Notice
cited General Patient Care Protocol A1.5, which provided that “the provider with the highest
level of pre-hospital training and seniority” – in this case, the plaintiff – “will be in charge of
patient care.” Id.
4
On January 18, 2006, the Fire and EMS Department issued a Final Agency Decision.
Pl.’s Opp’n at 4-5 & Ex. E (“Final Agency Decision”) at 1-3; Def.’s Mot. at 5. The decision
ordered that the plaintiff be suspended for nine calendar days without pay for failing to follow
patient-care protocols, as set forth in the Advance Notice. Final Agency Decision at 1-3; Def.’s
Mot. at 5.
In December 2005, the plaintiff filed a complaint of racial discrimination with the District
of Columbia Office of Human Rights (“OHR”), which was cross-filed with the Equal
Employment Opportunity Commission (“EEOC”). Pl.’s Opp’n at 5. On June 13, 2006, the OHR
issued a letter of determination, finding probable cause to believe that the defendant had
discriminated against the plaintiff on the basis of his race by placing him on the nine-day
suspension, but concluding that the plaintiff’s transfer from the Medic 1 unit did not constitute a
sufficiently adverse employment action. Pl.’s Opp’n, Ex. G (“OHR Decision”) at 5-7. The OHR
further determined that the plaintiff had failed to establish that he had suffered an adverse
employment action when one of his lieutenants allegedly directed a racially derogatory remark at
him.2 Id. at 9.
The plaintiff commenced this action on December 13, 2006. See generally Compl. On
January 26, 2007, the plaintiff filed an amended complaint, alleging that he was subjected to
disparate treatment and a hostile work environment on the basis of his race in violation of Title
2
In an incident apparently unrelated to the August 6, 2005 run, the plaintiff alleges that one of his
supervisors, Lieutenant Mike Baker, charged the plaintiff with insubordination after he
questioned one of Lieutenant Baker’s orders. 2d Am. Compl. ¶¶ 27-30. Following an
investigation, the charge of insubordination was dropped. Id. ¶ 31. Subsequently, in May 2006,
Lieutenant Baker allegedly stated to the plaintiff, while the two men were in a parking lot,
“something to the effect of ‘you might think [it’s] over but I’m going to get your Black A-s out of
here.’” Id. ¶ 32. The plaintiff allegedly reported the incident to management, who refused to take
disciplinary action against the lieutenant. Id. ¶¶ 33-35.
5
VII, Section 1981 and the DCHRA.3 See generally Am. Compl. The defendant moved to
dismiss the amended complaint on March 5, 2007. See generally Am. Compl.; Def.’s Mot. to
Dismiss. The court denied the defendant’s motion without prejudice and ordered the plaintiff to
provide greater factual specificity in support of his claims. See generally Mem. Op. (Mar. 10,
2008). On March 24, 2008, the plaintiff filed a second amended complaint asserting a single
count of racial discrimination. See generally 2d Am. Compl. The defendant, interpreting the
plaintiff’s complaint as asserting a single count of disparate treatment, filed a motion for
summary judgment on that claim. See generally Def.’s Mot.
On October 20, 2009, the parties held a conference call with the court, in which
plaintiff’s counsel indicated that the plaintiff had intended for his second amended complaint to
encompass a hostile work environment claim. See Minute Order (Oct. 20, 2009). In addition,
plaintiff’s counsel indicated that the plaintiff intended to withdraw certain allegations in the
second amended complaint related to his hostile work environment claim because he had not yet
exhausted his administrative remedies with respect to those claims. See id. Accordingly, the
court directed the plaintiff to file a notice specifying which allegations in the second amended
complaint he intended to withdraw. Id. The court also ordered the defendant to file any
supplemental motion for summary judgment pertaining solely to the plaintiff’s hostile work
environment claim on or before November 13, 2009. Id.
On October 23, 2009, the plaintiff withdrew the allegations contained in paragraphs
twenty-nine through thirty-one, thirty-six through forty and forty-two through forty-six of the
second amended complaint. See Notice of Withdrawal of Allegations ¶ 4. On November 12,
3
The amended complaint also asserted intentional infliction of emotional distress, negligence and
negligent hiring and supervision. See Am. Compl. ¶¶ 43-60. The plaintiff voluntarily withdrew
these claims on March 16, 2007. See Mem. Op. (Mar. 10, 2008) at 2 n.1.
6
2009, the defendant filed a supplemental motion for summary judgment, requesting that the court
enter summary judgment against the plaintiff on his hostile work environment claim. See
generally Defs.’ Supp. Mot. for Summ. J. (“Def.’s Supp. Mot.”). Both that motion and the
defendant’s earlier motion for summary judgment are now ripe. The court now turns to the
applicable legal standards and the parties’ arguments.
III. ANALYSIS
A. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when “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 movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540
(D.C. Cir. 1995). To determine which facts are “material,” a court must look to the substantive
law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
“genuine issue” is one whose resolution could establish an element of a claim or defense and,
therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion
for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to
7
the absence of evidence proffered by the nonmoving party, a moving party may succeed on
summary judgment. Id.
The nonmoving party may defeat summary judgment through factual representations
made in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir.
1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338
(D.C. Cir. 2006). Indeed, for the court to accept anything less “would defeat the central purpose
of the summary judgment device, which is to weed out those cases insufficiently meritorious to
warrant the expense of a jury trial.” Greene, 164 F.3d at 675.
Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish
proof of discrimination, the court should view summary-judgment motions in such cases with
special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997),
overturned on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc); see also Johnson v.
Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
B. The Court Grants in Part and Denies in Part the Defendant’s Motion for Summary
Judgment on the Plaintiff’s Disparate Treatment Claims
1. Legal Standard for Disparate Treatment on the Basis of Race
Generally, to prevail on a claim of discrimination under Title VII, a plaintiff must follow
a three-part burden-shifting analysis known as the McDonnell Douglas framework. Lathram v.
Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003). The Supreme Court explained the framework as
follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence
a prima facie case of discrimination. Second, if the plaintiff succeeds in proving
the prima facie case, the burden shifts to the defendant “to articulate some
legitimate, nondiscriminatory reason for the employee’s rejection” . . . . Third,
should the defendant carry this burden, the plaintiff must then have an opportunity
8
to prove by a preponderance of the evidence that the legitimate reasons offered by
the defendant were not its true reasons, but were a pretext for discrimination . . . .
The ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (internal citations omitted)
(quoting McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)).4
To establish a prima facie case of race discrimination under Title VII, the plaintiff must
show that “(1) [he] is a member of a protected class; (2) [he] suffered an adverse employment
action; and (3) the unfavorable action gives rise to an inference of discrimination.” Brown v.
Brody, 199 F.3d 446, 452 (D.C. Cir. 1999); Stewart v. Ashcroft, 352 F.3d 422, 428 (D.C. Cir.
2003); Carroll v. England, 321 F. Supp. 2d 58, 68 (D.D.C. 2004). “The burden of establishing a
prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253. If the plaintiff
establishes a prima facie case, a presumption then arises that the employer unlawfully
discriminated against the employee. Id. at 254. To rebut this presumption, the employer must
articulate a legitimate, nondiscriminatory reason for its action. Id. The employer “need not
persuade the court that it was actually motivated by the proffered reasons.” Id. Rather, “[t]he
defendant must clearly set forth, through the introduction of admissible evidence, reasons for its
actions which, if believed by the trier of fact, would support a finding that unlawful
4
“The standards and order of proof in section 1981 cases have been held to be identical to those
governing Title VII disparate treatment cases.” Berger v. Iron Workers Reinforced Rodmen
Local 201, 843 F.2d 1395, 1413 n.7 (D.C. Cir. 1988) (citing Carter v. Duncan-Huggins, Inc., 727
F.2d 1225 (D.C. Cir. 1984)). The McDonnell Douglas framework also applies to claims under
the DCHRA. Blackman v. Visiting Nurses Ass’n, 694 A.2d 865, 868-69 & n.3 (D.C. 1997)
(noting that the D.C. Court of Appeals “looks to federal statutes and case law for guidance in
deciding cases under the [DCHRA]”); Atlantic Richfield Co. v. District of Columbia Comm’n on
Human Rights, 515 A.2d 1095, 1099 (D.C. 1986) (noting that “[i]n an employment
discrimination case where disparate treatment is alleged, this court has adopted the Supreme
Court’s approach with respect to the allocation of the burdens of proof under Title VII of the
Civil Rights Act of 1964”).
9
discrimination was not the cause of the employment action.” St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502 (1993).
If the employer successfully presents a legitimate, non-discriminatory reason for its
actions, “the McDonnell Douglas framework – with its presumptions and burdens – disappears,
and the sole remaining issue is discrimination vel non.” Lathram, 336 F.3d at 1088 (internal
citations omitted); Brady v. Office of the Sergeant at Arms, U.S. House of Representatives, 520
F.3d 490, 494 (D.C. Cir. 2008) (noting that “the prima facie case is a largely unnecessary
sideshow”). The district court need resolve only one question: “Has the employee produced
sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory
reason was not the actual reason and that the employer intentionally discriminated against the
employee on the basis of race, color, religion, sex, or national origin?” Brady, 520 F.3d at 494
(D.C. Cir. 2008). The court must consider whether the jury could infer discrimination from (1)
the plaintiff’s prima facie case, (2) any evidence the plaintiff presents to attack the employer’s
proffered explanation, and (3) any further evidence of discrimination that may be available to the
plaintiff. Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002) (quoting
Aka, 156 F.3d at 1289). The plaintiff need not present evidence in each of these categories in
order to avoid summary judgment. Aka, 156 F.3d at 1289. Rather, the court should assess the
plaintiff’s challenge to the employer’s explanation in light of the totality of the circumstances of
the case. Id. at 1291.
2. The Court Grants Summary Judgment to the Defendant on the Plaintiff’s Claim
Concerning His Transfer from the Medic 1 Unit
The defendant contends that the plaintiff’s transfer from the Medic 1 unit did not
constitute an adverse employment action because it was a purely lateral transfer that did not
affect the terms or conditions of his employment. Def.’s Mot. at 10-11. The defendant asserts
10
that the plaintiff has presented no evidence that his reassignment from Medic 1 to another unit
resulted in any diminution in pay or benefits or had any other materially adverse consequences.
Id. In addition, the defendant states that the plaintiff’s current work responsibilities are identical
to the responsibilities he had before the transfer. Id. at 11.
The plaintiff maintains that the transfer “significantly impacted [him] in the fact that the
hours substantially changed” and “caused a great amount of stress and inconvenience because
the shift change upset the family schedule.” Pl.’s Opp’n at 10-11. He also claims that “the
transfer affected overtime potential.” Id. The plaintiff, however, has offered no evidence to
substantiate these assertions.5 See id.
This Circuit has held that
a plaintiff who is made to undertake or who is denied a lateral transfer – that is,
one in which she suffers no diminution in pay or benefits – does not suffer an
actionable injury unless there are some other materially adverse consequences
affecting the terms, conditions, or privileges of her employment or her future
employment opportunities such that a reasonable trier of fact could conclude that
the plaintiff has suffered objectively tangible harm. Mere [idiosyncrasies] of
personal preference are not sufficient to state an injury.
Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). Although “[p]urely subjective injuries,
such as dissatisfaction with a reassignment, or public humiliation or loss of reputation are not
adverse actions . . . reassignment with significantly different responsibilities . . . or a significant
change in benefits generally indicates an adverse action.” Forkko v. Powell, 306 F.3d 1127,
1130-31 (D.C. Cir. 2002) (internal citations and quotation marks omitted).
Lateral reassignment that significantly alters an employee’s schedule may, under certain
circumstances, constitute an adverse employment action. See Ginger v. District of Columbia,
527 F.3d 1340, 1343-44 (D.C. Cir. 2008) (holding that the plaintiffs’ transfer from a permanent
5
As the court noted in its March 10, 2008 memorandum opinion denying the defendant’s motion to
dismiss, the plaintiff’s complaint is silent as to the nature and consequences of the plaintiff’s
transfer. See Mem. Op. (Mar. 10, 2008) at 8.
11
shift schedule to a rotating shift schedule constituted an adverse employment action). In Ginger,
the Circuit reversed the district court’s determination that the plaintiff’s transfer from a
permanent shift schedule to a rotating shift schedule was not an adverse employment action
because it did not change the employees’ responsibilities or cause a substantial change in their
benefits. Id. at 1343. The Circuit observed that the reorganization resulted in lost income,
affected the plaintiffs’ sleep schedules and made it more difficult for them to work overtime and
part-time day jobs. Id. at 1344. The Circuit concluded that because the employees “were paid
less for working a substantially more difficult schedule,” the transfer constituted an adverse
employment action. Id.
The plaintiff in this case contends that like the plaintiffs in Ginger, his transfer from the
Medic 1 unit caused him substantial inconvenience and denied him opportunities to earn
overtime. See Pl.’s Opp’n at 11. The plaintiff, however, has offered no evidence whatsoever to
substantiate these conclusory allegations of inconvenience and financial loss. See id. at 10-11.
Indeed, the plaintiff has failed to describe in any detail the nature of the transfer and how it
affected his hours, his wages, his responsibilities or any of the terms and conditions of his
employment. See id. The plaintiff’s unsupported, conclusory allegations of inconvenience and
lost income are insufficient to withstand summary judgment. See Ginger, 527 F.3d at 1346-47
(observing that “a mere unsubstantiated allegation . . . creates no ‘genuine issue of fact’ and will
not withstand summary judgment”) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993));
see also Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (noting that accepting patently
conclusory allegations as true “would defeat the central purpose of the summary judgment
device, which is to weed out those cases insufficiently meritorious to warrant the expense of a
jury trial”). Accordingly, because the plaintiff has not raised a genuine issue of material fact as
12
to whether his transfer from the Medic 1 unit was an adverse employment action, the court grants
summary judgment to the defendant on this claim.
3. The Court Denies Summary Judgment to the Defendant on the Plaintiff’s
Claims Concerning His Suspension Without Pay
The defendant asserts that the plaintiff was suspended for violating established patient-
care protocols during the August 6, 2005 run by failing to take the patient’s vital signs, test the
patient’s blood sugar, make a patient assessment, complete a patient care report or leave a copy
of a patient care report with the triage nurse in the emergency room. Def.’s Mot. at 13; see
Advance Notice at 2. The defendant maintains that the plaintiff was the senior paramedic during
the August 6, 2005 run and, as such, was independently responsible for these violations of the
patient-care protocols. Id. at 13; Advance Notice at 2. The defendant contends that the plaintiff
has failed to rebut this legitimate, non-discriminatory justification for his nine-day suspension
without pay. See Def.’s Mot. at 12-14; Def.’s Reply to Pl.’s Opp’n (“Def.’s Reply”) at 3-5. In
addition, the defendant argues that the fact that Shook received identical discipline undermines
any inference of racial discrimination. Id. at 9.
The plaintiff responds that there exists a genuine issue of material fact as to whether the
defendant’s proffered legitimate, nondiscriminatory justification was a pretext for racial
discrimination. See Pl.’s Opp’n at 9. He maintains that adherence to the patient-care protocols
violated during the August 6, 2005 run was the responsibility of Shook rather than the plaintiff,
who drove the ambulance, was not directly responsible for providing patient care and did not
interact with the patient or her mother. Id. at 3 & Ex. H. Furthermore, the plaintiff contends that
Captain Tompkins informed him that although he had done nothing wrong, he was being
transferred because he was black. Id. The plaintiff offers letters from three coworkers, including
his union shop steward, in which they claim that they overheard Captain Tompkins state that the
13
plaintiff was transferred from Medic 1 to avoid the appearance of racial discrimination. See Pl.’s
Opp’n at 9.
Based on the evidence offered by the parties, it appears that there were two bodies of
rules and procedures governing the activities of paramedics employed by the defendant: the
Protocols, cited in the Advance Notice and Final Agency Decision; and the Fire and EMS
General Order Book (“the Order Book”). See Pl.’s Opp’n at 10; see also OHR Decision at 9. As
noted in the OHR Decision, the plaintiff’s union shop steward stated that although the defendant
often cited the Protocols when formally charging an employee with misconduct, “it was the
‘Order Book’ that dictated actual day to day operational procedures” and that the chief of the
department “had clearly stated that he expected the procedures in the Order Book to be followed
by ambulance crews.” OHR Decision at 9 n.7.
Article XXIV of the Order Book delineated the responsibilities of the “Driver” and the
“Crewmember.” Pl.’s Opp’n, Ex. L. The “Driver” was responsible for maintaining the vehicle,
including checking the exterior vehicle compartments for accountable equipment, checking for
any exterior body damage, checking the electrical system including warning lights, sirens and
radios, checking vehicle fluid levels and checking equipment and Medical Supply lockers
following of the replenishment of supplies on the unit. Id. By contrast, the responsibilities of the
“Crewmember” included:
• “Mak[ing] journal entry of members assuming duty with all appropriate
equipment;”
• “Mak[ing] the journal entries of all assigned incidents;”
• “Ensur[ing] that the executed EMS 151-c Run Sheets are delivered to the
appropriate drop site;” and
• “Document[ing] the findings of the inspection in the unit journal and
associated sections of the FD Forms 54.2 AMB and 54.3.”
14
Id.
Also, as noted in the OHR Decision, Article XXIV provided that the “Crewmember” was
responsible for all aspects of patient care, including:
• “Stay[ing] with the patient from the initial on-scene contact to release at the
hospital;”
• “Obtain[ing] patient history and pertinent information from patient, family
and/or bystanders at the scene;”
• “Determin[ing] how the patient will be treated and transported;”
• “Administer[ing] medications, as needed;” and
• “Reassess[ing] the patient’s condition prior to and during transport.”
OHR Decision at 9 (quoting Article XXIV of the Order Book).
Thus, the Order Book suggests that Shook, the “Crewmember” during the August 6, 2005
run, was responsible for assessing the patient’s condition, administering patient care and filling
out the run sheets regarding the incident. See Pl.’s Opp’n, Ex. L; OHR Decision at 9. These
provisions support the plaintiff’s assertion that Shook – not the plaintiff – was responsible for the
violations that led to the plaintiff’s suspension.
The defendant, citing the Protocols, asserts that the plaintiff was independently
responsible for patient care as the senior paramedic during the run. See Def.’s Mot. at 12-14.
Yet, as previously noted, the plaintiff has offered evidence that Order Book, rather than the
Protocols, actually dictated the daily procedures and responsibilities of drivers and
crewmembers. See OHR Decision at 9 n.7. The extent to which the Protocols and the Order
Book actually governed the day-to-day operations of paramedics and informed disciplinary
decisions is a question of fact whose adjudication would be inappropriate at this stage of the
litigation. See Jones v. Bernanke, 557 F.3d 670, 681 (D.C. Cir. 2009) (noting that the court must
15
“refrain from making credibility determinations, weighing the evidence, or drawing inferences
from the evidence [as] these, after all, are jury functions, not those of a judge ruling on summary
judgment”); Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008) (observing that in
resolving a motion for summary judgment, the court “must view the evidence in the light most
favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew
making credibility determinations or weighing the evidence”).
Furthermore, the plaintiff has offered evidence that his race was a motivating factor in
Captain Tompkins’s decision to discipline him. See Pl.’s Opp’n at 9. The plaintiff’s union shop
steward states that when he spoke to Captain Tompkins about the plaintiff’s transfer, “she stated
that he was not going back to that unit because ‘she was not going to deal with that racial mess’
and that if she moved [the plaintiff] back Paramedic Shook would file a discrimination complaint
even though she agreed that [the plaintiff] had done nothing wrong.” Pl.’s Opp’n, Ex. J.
Another coworker states that she overheard Captain Tompkins state during a telephone
conversation that “she was scared that if she sent [the plaintiff] back to medic 1 Paramedic
[S]hook would file charges against her.” Pl.’s Opp’n, Ex. I. Yet another coworker states that
Captain Tompkins told her that she knew the plaintiff “didn’t do anything wrong but [she]
moved him [b]ecause [she] did not want Paramedic Shook to say [she] moved him and not [the
16
plaintiff] and then have Shook file an EEO complaint.”6 Pl.’s Opp’n, Ex. K. Although these
statements concerned the plaintiff’s transfer rather than his suspension, this evidence indicates
that Captain Tompkins believed that the plaintiff had done nothing wrong but chose to hold him
accountable for the violations that occurred on August 6, 2005 because of his race.
The defendant asserts that even if Captain Tompkins made the statements alleged, those
statements would merely evince a desire to avoid the appearance of a discriminatory preference
rather than racial animus. See Def.’s Reply at 2-3. This assertion, even if true, is of no moment,
as the plaintiff has presented evidence that Captain Tompkins recommended that the plaintiff be
disciplined expressly because of his race. See UAW v. Johnson Controls, Inc., 499 U.S. 187, 200
(1991) (stating “[w]hether an employment practice involves disparate treatment through explicit
facial discrimination does not depend on why the employer discriminates but rather on the
explicit terms of the discrimination”); Jespersen v. Harrah’s Operating Co., Inc., 392 F.3d 1076,
1079 (9th Cir. 2004) (holding that “although an employee must prove that the employer acted
intentionally” to prevail on a Title VII disparate treatment claim, “the intent need not have been
malevolent”); cf. Ricci v. DeStefano, 129 S. Ct. 2658, 2673 (2009) (observing that a city’s
decision not to certify promotional examination results because too many whites and not enough
minorities would be promoted violated the disparate treatment prohibitions of Title VII despite
6
Although the defendant contends that inconsistencies mar these witness statements, see Def.’s
Reply at 2, the court is barred from making credibility determinations or weighing the evidence at
the summary judgment stage. See Jones v. Bernanke, 557 F.3d 670, 681 (D.C. Cir. 2009);
Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008). And although the defendant
complains that the witness statements fail to comply with all the formalities of formal affidavits,
Def.’s Reply at 4 n.2, “a nonmovant is not required to produce evidence in a form that would be
admissible at trial” so long as the evidence is “capable of being converted into admissible
evidence.” Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir.
2000) (citing FED. R. CIV. P. 56(e)). The defendant offers nothing to suggest that the content of
these statements would be inadmissible at trial. See generally Defs.’ Reply; see also FED. R.
EVID. 801(d)(2) (noting that a statement is not hearsay if it is “offered against a party” and is “the
party’s own statement, in either an individual or a representative capacity”).
17
the fact that the city took the action based on concerns of potential disparate impact liability). As
the Supreme Court stated in Ricci, absent some other justification, “express, race-based
decisionmaking violates Title VII’s command that employers cannot take adverse employment
actions because of an individual’s race.” 129 S. Ct. at 2673-76 (holding that avoiding disparate-
impact liability does not justify race-based disparate treatment unless the employer has a strong
basis in evidence to conclude that it will be subject to disparate-impact liability if it fails to take
the discriminatory action) (citing 42 U.S.C. § 2000e-2(a)(1)). Thus, even if Captain Tompkins
acted from a benign motive, that fact would not diminish the defendant’s liability under Title
VII’s disparate treatment provisions.
Lastly, the defendant’s argument that Shook was treated “in an identical fashion” to the
plaintiff is contradicted by the record before the court. See Def.’s Mot. at 9; Def.’s Reply at 3-4.
The plaintiff has presented evidence that unlike Shook, he was disciplined despite having done
nothing wrong in connection with the August 6, 2005 run. See generally Pl.’s Opp’n. It goes
without saying that punishing the blameworthy and the innocent identically does not constitute
equal treatment.
In sum, the plaintiff has raised a genuine issue of fact as to whether the defendant
suspended him without pay for nine days because of his race rather than for any failure to
perform. Accordingly, the court denies the defendant’s motion for summary judgment with
respect to the plaintiff’s claim concerning his nine-day suspension without pay.
C. The Plaintiff’s Hostile Work Environment Claim
1. Legal Standard for Hostile Work Environment
Title VII prohibits an employer from discriminating against any individual with respect to
compensation, terms, conditions, or privileges of employment because of race, color, religion,
18
sex, or national origin. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Toward that end, an
employer may not create or condone a hostile or abusive work environment that is
discriminatory. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). Such an
environment exists “[w]hen the workplace is permeated with ‘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.’” Singletary v. District of Columbia,
351 F.3d 519, 526 (D.C. Cir 2003) (quoting Meritor, 477 U.S. at 65, 67). On the other hand,
“[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work
environment – an environment that a reasonable person would find hostile or abusive – is beyond
Title VII’s purview.” Harris, 510 U.S. at 21. Thus, 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. Id. at 23; Faragher v. City of Boca Raton, 524 U.S. 775, 787-88
(1998). In considering the totality of the circumstances, however, the court is mindful that
[e]veryone can be characterized by sex, race, ethnicity or (real or perceived)
disability; and many bosses are harsh, unjust and rude. It is therefore important in
hostile work environment cases to exclude from consideration personnel decisions
that lack a linkage of correlation to the claimed ground of discrimination.
Otherwise, the federal courts will become a court of personnel appeals
Bryant v. Brownlee, 265 F. Supp. 2d 52, 63 (D.D.C. 2003) (quoting Alfano v. Costello, 294 F.3d
365, 377 (2d Cir. 2002)).
2. The Court Grants Summary Judgment to the Defendant on
the Plaintiff’s Hostile Work Environment Claim
The defendant argues that it is entitled to summary judgment on the plaintiff’s hostile
work environment claim because the plaintiff’s meager and conclusory allegations are
insufficient to support a hostile work environment claim. See generally Def.’s Supp. Mot.;
19
Def.’s Reply to Pl.’s Opp’n to Def.’s Supp. Mot. (“Def.’s Supp. Reply”).7 The plaintiff
maintains that a genuine issue of material fact exists regarding whether the plaintiff suffered
from a hostile work environment. See Pl.’s Opp’n to Def.’s Supp. Mot. (“Pl.’s Supp. Opp’n”) at
9-13.8
As previously noted, on October 23, 2009, the plaintiff withdrew a substantial number of
allegations in the second amended complaint related to his hostile work environment claim. See
Notice of Withdrawal of Allegations ¶ 4. As a result, the entirety of the plaintiff’s hostile work
environment claim is premised on the following allegations: that the defendant transferred him
out of Medic 1, denied him representation during the August 30, 2005 meeting with Captain
Tompkins, suspended him without pay for nine days, threatened him with disciplinary actions
including leave restrictions, denied him access to his file and “verbally harassed” him. Pl.’s
Supp. Opp’n at 10-11; see generally 2d Am. Compl. The plaintiff also points to the incident in
which Lieutenant Baker confronted the plaintiff in the parking lot and threatened to have him
“thrown out” for insubordination. 2d Am. Compl. ¶¶ 27-35.
Most of these allegations of “hostile” treatment, such as his transfer out of Medic 1,
suspension without pay and threats of disciplinary action, simply recast the allegations
underlying the plaintiff’s disparate treatment claims. See Pl.’s Opp’n to Def.’s Supp. Mot. at
7
In its reply, the defendant argues that the plaintiff failed to exhaust his administrative remedies
with respect to his hostile work environment claim. See Def.’s Supp. Reply at 2-6. Because this
argument was raised for the first time in the defendant’s reply, the court will not consider it in
resolving this motion. See, e.g., Sloan ex rel. Juergens v. Urban Title Servs., Inc., 652 F. Supp.
2d 40, 50 n.8 (D.D.C. 2009) (declining to address arguments raised for the first time in a reply
brief).
8
The plaintiff also argues that the defendant’s supplemental summary judgment motion is
procedurally defective because the defendant failed to accompany this filing with a statement of
material facts not in dispute, as required by Local Civil Rule 56.1. See Pl.’s Opp’n to Def.’s
Supp. Mot. at 5-6. The court, however, notes that the defendant did submit a Local Civil Rule
56.1 statement in connection with his original motion for summary judgment, which addressed
the facts at issue in this supplemental motion. See Def.’s LCvR 56.1 Stmt. Accordingly, the
court declines to strike the defendant’s motion for failure to comply with Local Civil Rule 56.1.
20
10-11. Courts have disapproved of such efforts to cobble a hostile work environment claim from
disparate acts of workplace conflict. See Nurriddin v. Goldin, 382 F. Supp. 2d 79, 108 (D.D.C.
2005) (noting that the bulk of the “hostile” events on which the plaintiff relied were the very
employment actions he claimed were discriminatory and concluding that a plaintiff “cannot so
easily bootstrap discriminatory claims into a hostile work environment claim”); Lester v. Natsios,
290 F. Supp. 2d 11, 31-32 (D.D.C. 2003) (noting that “discrete acts constituting discrimination
or retaliation claims . . . are different in kind from a hostile work environment claim” and that “it
is not at all clear that mere reference to alleged disparate acts of discrimination . . . can ever be
transformed, without more, into a hostile work environment claim”); see also Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (observing that “[h]ostile work
environment claims are different in kind from discrete acts” because “[t]heir very nature involves
repeated conduct” and “[t]he ‘unlawful employment practice’ therefore cannot be said to occur
on any particular day”). The plaintiff’s allegations “indicate[] less a pervasive pattern of
harassment, and more just isolated employment incidents occurring over a long period of time.”
Nurriddin, 382 F. Supp. 2d at 108; see also Tolson, 618 F. Supp. 2d at 21 (holding that five
discrete incidents of hostile behavior did not constitute a hostile work environment because there
was no evidence in the record to tie any of these sporadic events to one another).
In addition, there is little evidence to suggest that the plaintiff’s remaining claims – such
as the denial of union representation at one meeting, denial of access to his file and unspecified
incidents of verbal harassment –were so pervasive or severe, individually or collectively, as to
rise above the level of “ordinary tribulations of the workplace” and constitute “an abusive
working environment.” Faragher, 524 U.S. at 787-88. With the possible exception of the
plaintiff’s confrontation with Lieutenant Baker, none of these incidents reflects the “extreme
21
conduct” necessary to support a legally cognizable hostile work environment claim. See Lester,
290 F. Supp. 2d at 31 (citing Faragher, 524 U.S. at 787-88). And although the incident
involving Lieutenant Baker arguably constituted extreme conduct, a single incident of hostile
behavior, standing alone, is not sufficient to create a pervasive hostile work environment. Id. at
32. Accordingly, the court grants summary judgment to the defendant on the plaintiff’s hostile
work environment claim.
IV. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part the defendant’s
motion for summary judgment and grants the defendant’s supplemental motion for summary
judgment. An Order consistent with this Memorandum Opinion is separately and
contemporaneously issued this 15th day of January, 2010.
RICARDO M. URBINA
United States District Judge
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