Graham v. Ashcroft

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
GILBERT M. GRAHAM, )
)
Plaintiff, )
)
v. ) Civil Action No. 03-1951 (RWR/DAR)
)
ERIC H. HOLDER, JR., et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION

Pro se Plaintiff Gilbert Graham, a 58-year-old African-

American retired Special Agent for the Federal Bureau of

Investigation (“FBI”), filed this action under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., against the

Attorney General and other federal officers and agencies,

alleging that his former federal employer subjected him to a

hostile work environment in retaliation for his participation in

protected activities. Defendants move for summary judgment.

Because Graham neither establishes that the defendants subjected

him to a retaliatory hostile work environment nor rebuts as

pretextual the defendants’ neutral reasons for their challenged

actions, the defendants’ motion for summary judgment will be

granted and Graham’s cross-motion for summary judgment will be

denied at moot.
 -2-

BACKGROUND

Graham worked as a Special Agent for the FBI in its

Washington Field Office (“WFO”) for 25 years. Graham alleges

that the defendants subjected him to a hostile work environment

because of his participation in protected activities. (Pl.’s Am.

Compl. (“Am. Compl.”) ¶ 1.) Graham filed against the FBI an EEO

complaint in 1985 and a civil action under Title VII in 1992, and

he actively participated in a class action against the FBI that

was filed in 1993. (Id. at ¶¶ 24, 92; Pl.’s Stmt. of Mat. Facts

(“Pl.’s Stmt.”) ¶¶ 20, 25-26.) In November 2000, Graham filed an

EEO complaint about a 1999 investigation by the Intelligence

Oversight Board (“IOB”). (Pl.’s Stmt. ¶ 29.) In March 2002, the

defendants notified Graham that he would be suspended for three

days without pay as a result of the IOB investigation findings.

(Am. Compl. ¶ 66; Defs.’ Mem. in Supp. of Mot. for Summ. J.

(“Def.’s Mem.”) at 2-3.) Graham later filed a second EEO

complaint alleging discrimination based on race, age, and

retaliation, and he appealed his proposed punishment. (Am.

Compl. ¶¶ 12, 67; Pl.’s Stmt. ¶ 30.) In addition, Graham

complained to the Justice Department’s Office of the Inspector

General about what he viewed as mismanagement and abuse of

authority reflected in his workload assignment, the conduct of

the IOB investigation, and reported unauthorized use of

electronic surveillance relating to a public corruption
 -3-

investigation. (Am. Compl. ¶ 72; Pl.’s Stmt. ¶ 31.) Graham’s

proposed three-day suspension was eventually reduced to a letter

of censure. (Am. Compl. ¶ 69.)

In June 2002, Graham filed a civil action in this court

regarding the agency’s handling of the IOB investigation and

decision to censure him. See Graham v. Gonzales, Civil Action

No. 03-1951 (RWR), 2005 WL 3276180, at *4 (D.D.C. September 30,

2005). In August 2002, Graham asked to take a “reasonable”

amount of administrative leave to address matters related to his

2002 EEO complaint. (Am. Compl. ¶ 71; Defs.’ Stmt. of Mat. Facts

(“Def.’s Stmt.”) ¶ 8.) Graham’s supervisor sought guidance from

the Assistant Special Agent in Charge (“ASAC”) about whether to

approve the request and sign Graham’s time and attendance

register, because Graham’s supervisor believed that his oversight

could be a conflict of interest. (Defs.’ Stmt. ¶ 9; Defs.’ Mem.

Ex. 1 (“Fogle Decl.”) ¶¶ 5-6.) The ASAC contacted the Office of

EEO Affairs to ask how to proceed with Graham’s request to take

administrative leave. The Office of EEO Affairs informed the

ASAC that it did not authorize requests for administrative leave,

and that Graham’s request should be forwarded to the Employment

Law Unit. (Defs.’ Stmt. ¶ 12; Defs.’ Mem. Ex. 3 (“Trent Decl.”)

¶¶ 4-7.) Approximately three weeks after Graham made his request

for administrative leave, his request was approved by a different

ASAC. (See Defs.’ Mem. Ex. 4 (“Bolcar Decl.”) ¶¶ 4-6.) Graham
 -4-

alleges that his request was never acted upon, and that his

request subjected him to “unwarranted administrative scrutiny.”

(Am. Compl. ¶ 71.)

In November 2002, Graham filed another EEO complaint,

alleging mental harassment and retaliatory hostile working

environment. (Pl.’s Stmt. ¶ 33.) Shortly thereafter, Graham’s

2002 civil action was dismissed with prejudice, because the

claims he raised were not viable. See Graham v. Ashcroft, Civil

Action No. 02-1231 (ESH), 2002 WL 32511002, at *5-6 (D.D.C.

November 20, 2002).

In January 2003, the defendants transferred Graham to

another squad and assigned to him a bureau vehicle that Graham

claims had “an inoperable door locking mechanism, an inoperable

heating and air conditioning system, a dead battery, very high

mileage and delinquent parking tickets.” (Am. Compl. ¶ 71; Pl.’s

Stmt. ¶ 96.) According to Graham, in February 2003, the

defendants advised him that he could not use previously

unclassified letters in appealing the dismissal of his 2002

federal action, and threatened to prosecute him if he disclosed

any classified information. (Am. Compl. ¶ 71; Pl.’s Stmt. ¶ 98.)

In response, Graham asked the Justice Department’s Office of

Professional Responsibility (“OPR”) to investigate whether the

threats were made to impede an official proceeding. (Am. Compl.

¶ 74.) In July 2003, Graham met with OPR staff to review his
 -5-

allegations and other complaints - - a meeting which, according

to him, “quickly turned into a hostile interrogation and threats

of administrative action [that could be] taken against the

plaintiff.” (Id. ¶ 76.) In September 2003, Graham retired from

the FBI and filed this action in which he alleges that he was

subjected to a retaliatory hostile work environment when the

defendants failed to authorize his request for reasonable

administrative leave to address matters related to his EEO

complaint, subjected him to strict scrutiny in response to his

request for administrative leave, transferred him to another

squad and assigned him a mechanically deficient vehicle, advised

him that he could not use certain classified information in his

pending litigation, and threatened him with criminal prosecution

for any unauthorized disclosure of classified information. (Id.

¶¶ 27, 71; Defs.’ Stmt. ¶ 2.)1

The defendants now move for summary judgment under Federal

Rule of Civil Procedure 56, arguing that the five bases for

Graham’s assertion of a retaliatory hostile work environment

could not as a matter of law constitute a hostile work

environment:

(a) [Graham] was not afforded “reasonable leave” to
work on his EEO complaint; (b) his request for leave
was subjected to scrutiny; (c) his reputation was
tarnished when he was given a mechanically deficient

1
Graham also alleged six other claims which were dismissed
earlier. See Graham v. Gonzalez, 2005 WL 3276180, at *7.
 -6-

FBI car; (d) he was told by FBI counsel that he could
not publish a document that contained classified
information . . . ; and (e) he was threatened that he
could be prosecuted if he published the classified
document.

(Defs.’ Mem. at 7; see Am. Compl. ¶ 71.) See also Graham v.

Mukasey, 608 F. Supp. 2d 50, 51 (D.D.C. 2009). Graham filed a

cross-motion for summary judgment, but did not file an opposition

to the defendants’ motion for summary judgment.

DISCUSSION

“Summary judgment may be granted only where there is no

genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law.” Moore v. Hartman,

571 F.3d 62, 66 (D.C. Cir. 2009) (citing Fed. R. Civ. P. 56 (c)

and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)).

A genuine issue of fact exists where the evidence is “such that a

reasonable jury could return a verdict for the nonmoving party,”

after “resolving ambiguities and drawing all factual inferences

in favor of the nonmoving party.” Moore, 571 F.3d at 66 (quoting

Anderson, 477 U.S. at 255). “The nonmoving party cannot defeat

summary judgment by 'simply show[ing] that there is some

metaphysical doubt as to the material facts.’” Moore, 571 F.3d

at 66 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). “Not all alleged factual disputes

represent genuine issues of material fact which may only be

resolved by a jury. Material facts are those that might affect
 -7-

the outcome of the suit under governing law[.]” Nails v.

England, 311 F. Supp. 2d 116, 121 (D.D.C. 2004) (internal

quotations omitted).

“In deciding whether there is a genuine issue of material

fact, the court must assume the truth of all statements proffered

by the non-movant except for conclusory allegations lacking any

factual basis in the record.” Hussain v. Nicholson, 435 F.3d

359, 365 (D.C. Cir. 2006) (quoting Dist. Intown Prop. L.P. v.

Dist. of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999)). To

successfully oppose a motion for summary judgment under

Rule 56(c), a non-moving party must present sufficient admissible

evidence for a reasonable trier of fact to find for the nonmoving

party. Juergens v. Urban Title Servs., 533 F. Supp. 2d 64, 73

(D.D.C. 2008) (citing Laningham v. U.S. Navy, 813 F.2d 1236,

1242-43 (D.C. Cir. 1987)). Briefs containing mere allegations or

merely denying the movant’s pleading are not enough to prevent

summary judgment; instead, a non-movant must go beyond the

pleadings to proffer specific facts rebutting the movant’s

assertions. See Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir.

2007); Burke v. Gould, 286 F.3d 513, 517-18 (D.C. Cir. 2002).

“Although the burden on the nonmoving party is not great, it is

still required to show specific facts, as opposed to general

allegations, that present a genuine issue worthy of trial.”
 -8-

Palestine Info. Office v. Shultz, 853 F.2d 932, 944 (D.C. Cir.

1988).

To establish a successful claim of retaliation, a plaintiff

must initially show “that (1) he engaged in a statutorily

protected activity, (2) a reasonable employee would have found

the challenged action materially adverse, and (3) there existed a

causal connection between the protected activity and the

materially adverse action.” Baloch v. Norton, 517 F. Supp. 2d

345, 353-54 (D.D.C. 2007) (citing Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 58 (2006)). “Statutorily protected

activities include the filing of EEOC complaints and the

initiation of litigation to vindicate claims of employment

discrimination or retaliation.” Baloch, 517 F. Supp. 2d at 354

(citing Forkkio v. Powell, 306 F.3d 1127, 1131-32 (D.C. Cir.

2002)).

In this circuit, a hostile work environment can amount to

retaliation under Title VII. Hussain, 435 F.3d at 366. To

prevail on a claim that a hostile work environment amounts to

retaliation under Title VII, a plaintiff must show that he was

subjected to “‘discriminatory intimidation, ridicule and insult’

of such ‘sever[ity] or pervasive[ness] [as] to alter the

conditions of . . . employment and create an abusive working

environment.’” Id. at 366; Harris v. Forklift Sys., Inc., 510

U.S. 17, 21-22 (1993) (citing Meritor Sav. Bank, FSB v. Vinson,
 -9-

477 U.S. 57, 64 (1986)). 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. Faragher v.

City of Boca Raton, 524 U.S. 775, 787-88 (1998). Ultimately,

“[s]o long as the environment would reasonably be perceived, and

is perceived, as hostile or abusive,” it is actionable. Harris,

510 U.S. at 22. A hostile work environment claim is not a cause

of action for the “ordinary tribulations of the workplace.”

Franklin v. Potter, 600 F. Supp. 2d 38, 76-78 (quoting Faragher,

524 U.S. at 788). Not all things that make an employee unhappy

create a hostile work environment. Broderick, 437 F.3d at 1233.

“A mere delay [in granting an employee’s leave request] does not

constitute an adverse personnel action.” Cromwell w. Wash.

Metro. Area Transit Auth., No. 97-2257 (RMC), 2006 WL 2568009,

at * 6 (D.D.C. Sept. 5, 2006) (concluding that the plaintiff’s

claim that her employer delayed/denied her leave request did not

support a reasonable inference of discrimination) (citing Taylor

v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (concluding that

a delay in receiving employee performance evaluations did not

constitute an adverse action because it did not affect

plaintiff's grade or salary)). Even objectionable behavior that

is “motivated by discriminatory animus” might not be actionable.
 -10-

Barbour v. Browner, 181 F.3d 1342, 1347-48 (D.C. Cir. 1999).

The conduct complained of “must be extreme to amount to a change

in the terms and conditions of employment.” Franklin, 600 F.

Supp. 2d at 77 (quoting Faragher, 524 U.S. at 788).

In addition, to sustain a hostile work environment claim

based on retaliation, the plaintiff must produce evidence that

establishes a causal connection between the harassment and his

protected activity. See Na’im v. Clinton, Civil Action No. 06-

2237 (RMU), 2009 WL 174364, at * 11 (D.D.C. June 19, 2009);

Nichols v. Truscott, 424 F. Supp. 2d 124, 141 (D.D.C. 2006).

The causal connection may be established by showing that the

employer had knowledge of the employee’s protected activity, and

that the events that created a hostile environment action took

place shortly after that activity. Holmes-Martin v. Leavitt,

569 F. Supp. 2d 184, 203 (D.D.C. 2008); see also Cones v.

Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (citing Mitchell v.

Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985). In order to qualify

as related, the temporal proximity of the harassment and

protected activity must be substantially close. See Willingham

v. Gonzales, 391 F. Supp. 2d 52, 61-62 (D.D.C. 2005) (concluding

that a six-month lapse between the retaliatory action and the

protected activity is insufficient to support a finding of

causation on the basis of temporal proximity); Buggs v. Powell,

293 F. Supp. 2d 135, 148 (D.D.C. 2003) (holding that the time
 -11-

lapse must be less than three months to establish a causal

connection).

Graham alleges that the defendants prohibited him from

using reasonable administrative leave to address matters related

to his EEO complaint and used his leave request to scrutinize

his records. (Am. Compl. ¶ 93.) However, the defendants

provided declarations from Graham’s immediate supervisor and the

ASAC demonstrating no actionable misconduct in the defendants’

reaction to Graham’s request to take reasonable administrative

leave. (See Defs.’ Stmt. ¶¶ 7-13; Fogle Decl. ¶ 3; Trent Decl.

¶ 6.) While the defendants acknowledge that Graham’s time

request was not immediately authorized, Graham does not offer

any evidence to permit a reasonable inference that the

defendants’ brief inaction regarding his request constituted the

type of incident that can contribute to a hostile work

environment. Graham sent his request for administrative leave

to his immediate supervisor, who was also the subject of

Graham’s EEO complaint which he was requesting leave to address.

The supervisor involved the ASAC to avoid a possible conflict of

interest, hardly an improper choice. Although the complaint

alleged that his leave request was never authorized, another

ASAC eventually did approve Graham’s request. (See Bolcar Decl.

¶¶ 4-6.) Further, Graham requested that another agent handle

his leave request before the initial ASAC made her final
 -12-

determination of how much leave time was reasonable, meaning

that some period of delay was partially occasioned by Graham.

(See Defs.’ Stmt. ¶ 8-13.)

Graham’s evidence is insufficient to raise a reasonable

inference that the defendants’ delay in granting his time

request was pretext for retaliation or discrimination. The

defendants’ delay in responding to Graham’s leave request does

not constitute action sufficiently severe or pervasive to alter

the conditions of his employment and create an abusive working

environment. Furthermore, Graham has failed to rebut the

defendants’ non-discriminatory reason for their actions in

response to his leave request. As such, Graham’s claim that the

defendants retaliated against him by causing a hostile work

environment in response to his leave request fails. Nor does

Graham’s assertion that his time and attendance slips were more

thoroughly investigated make out a retaliatory hostile work

environment claim. Generally, an assertion that an employer

excessively reviewed an employee’s performance “‘does not

satisfy the requirement that plaintiff show a pervasive, severe

and discriminatory hostile work environment.’” Asghar v.

Paulson, 580 F. Supp. 2d 30, 39 (D.D.C. 2008) (quoting

Childs-Pierce v. Util. Workers Union of Am., 383 F. Supp. 2d 60,

79 (D.D.C. 2005)). Being subjected to “scrupulous monitoring”

does not support a claim for hostile work environment because
 -13-

“it is part of the employer’s job to ensure that employees are

safely and properly carrying out their jobs.” Runkle v.

Gonzales, 391 F. Supp. 2d 210, 226 (D.D.C. 2005) (quoting

Hussain v. Prinicipi, 344 F. Supp. 2d 86, 104-05 (D.D.C. 2004).

Similarly, the defendants produced evidence establishing a

legitimate, nondiscriminatory reason for assigning Graham the

vehicle about which he complained. A declaration from Graham’s

immediate supervisor stated that Graham was given a different

vehicle once he got scheduled to transfer to a different squad

because the supervisor needed to maintain the low mileage

vehicles for agents who remained on the squad and were

continuing to “work the target.” (Defs.’ Stmt. ¶¶ 14-17; Defs.’

Mem. Ex. 2 (“Georgacopoulos Decl.”) ¶ 2.) Georgacopoulos also

explained that the outstanding parking tickets that were issued

to the vehicle were incurred when the vehicle was assigned to

another agent who had left the squad, and the defendants decided

to pay the citations to prevent Graham’s possible loss of the

use of the vehicle during the time needed to investigate the

tickets. (Georgacopoulos Decl. ¶¶ 4-5.) The defendants also

provided a work order to show that a new battery and a new

thermostat were placed in Graham’s assigned vehicle one week

after Graham reported the problems. (Defs. Stmt. ¶ 15; Defs.’

Mem. Ex. 5.) In addition, the defendants provided work orders

to show that on three other occasions when Graham complained of
 -14-

problems with the vehicle, they were repaired on the same day.

(Defs.’ Mem. Ex. 5, at 2-4.)

Graham has failed to produce any contradictory evidence.

Instead, he merely asserts that “more suitable vehicles were

available,” citing nothing more than his complaint as evidence

for that assertion. (Pl.’s Stmt. ¶ 96.) Because Graham has

failed to offer any contradictory evidence to rebut the

defendants’ neutral reason for Graham’s vehicle assignment, this

basis will not support Graham’s claim of retaliatory hostile

work environment.

Finally, Graham alleges that the defendants threatened him

with criminal prosecution in the event of any unauthorized

disclosure or if he used classified documents in his pending

litigation. (Am. Compl. ¶ 93.) In support of their summary

judgment motion, the defendants produced a declaration from an

FBI Supervisory Special Agent establishing that Graham was

merely advised that he could not disclose classified information

in his pending litigation and was required to use redacted

versions of classified documents, which the defendants provided

for him. (Defs.’ Stmt. ¶ 21-22; Defs.’ Mem. Ex. 7 ¶¶ 5-7.)

Even crediting Graham’s allegation that he felt threatened by

the defendants’ words of caution, Graham provides no evidence

from which a reasonable jury could conclude that the defendants’

warning him about the results of publishing classified
 -15-

information created a hostile working environment. See Rattigan

v. Gonzales, 503 F. Supp. 2d 56, 63, 79 (D.D.C. 2007)

(concluding that a supervisor’s threat - - “If I catch you doing

something . . . I promise you I’ll cut your balls off” - - was

not enough to satisfy a hostile working environment standard).

Further, a defendant’s refutation of the assertion that

individual incidents constituted retaliation can, “even if only

implicitly, refute the umbrella charge that the acts

collectively constitute” retaliatory hostile work environment.

See Baloch, 517 F. Supp. 2d at 362 (citing Walker v. Johnson,

501 F. Supp. 2d 156, 162 (D.D.C. 2007)).

Further, even if Graham has shown that his working

conditions were not ideal, Graham has failed to indicate how

these incidents constituted a pervasive pattern of abuse. They

were infrequent and discrete, and for the most part, barely

severe or intimidating. Moreover, Graham has not shown that the

incidents he has cited constitute the extreme conduct that is

usually required to form the basis of a hostile work environment

claim, or that the incidents unreasonably interfered with the

conditions of his employment. See Faragher, 524 U.S. at 787-

88); Holbrook v. Reno, 196 F.3d 255, 262-63 (affirming summary

judgment because the employee failed to offer a fact-specific

showing of how alleged hostile act altered the conditions of her

work); Hussain, 435 F.3d at 366-67 (holding that although the
 -16-

plaintiff's work environment “was hardly ideal,” no reasonable

jury could conclude that the actions complained of, which

included denying him promotion, denying him medical leave,

rendering poor performance evaluations and stating threats of

termination, constituted an abusive working environment).

CONCLUSION

Because plaintiff has failed to establish any genuine

issues of material fact regarding his retaliatory hostile work

environment claim and has failed to rebut defendants’ neutral

reasons for their actions, the defendants’ motion summary

judgment will be granted and plaintiff’s cross-motion for

summary judgment will be denied as moot. A final, appealable

order accompanies this Memorandum Opinion.

SIGNED this 29th day of September, 2009.

/s/
RICHARD W. ROBERTS
United States District Judge