Toomer v. Panetta

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
MIRLIN S. TOOMER, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-2216 (EGS)
)
JIM MATTIS,1 in his official )
capacity as Secretary of )
Defense, )
)
Defendant. )
________________________________)

MEMORANDUM OPINION

This case is before the Court on plaintiff Mirlin Toomer’s

objections to Magistrate Judge G. Michael Harvey’s Report and

Recommendation (“R & R”), issued on March 24, 2016. Magistrate

Judge Harvey recommends that the Court grant defendant’s motion

for summary judgment and deny Ms. Toomer’s motion for partial

summary judgment, her motion for spoliation sanctions, and her

motion for a hearing on spoliation of evidence. Upon

consideration of the R & R, Ms. Toomer’s objections, defendant’s

response to those objections, the above-referenced motions, the

responses and replies thereto, the relevant law, and the entire

record, this Court ADOPTS Magistrate Judge Harvey’s R & R,

GRANTS defendant’s motion for summary judgment, and DENIES Ms.

1 Jim Mattis has been substituted as the named defendant pursuant
to Federal Rule of Civil Procedure 25(d).
1
Toomer’s motion for partial summary judgment, her motion for

spoliation sanctions, and her motion for a hearing on spoliation

of evidence.2

I. Background

A. Federal Rule of Civil Procedure 56(e) and Local Civil
Rule 7(h)

When a party moves for summary judgment, it must accompany

its motion with a statement of material facts as to which it

contends there is no genuine issue. LCvR 7(h)(1). That statement

must reference the specific parts of the record relied on to

support the assertions of fact in the statement. Id. In turn,

the non-movant’s opposition brief must be accompanied by a

concise statement of genuine issues setting forth all material

facts as to which it is contended there exists a genuine issue.

Id. That statement of genuine issues also must include specific

references to the evidentiary record. Id. But if it “fails to

properly address another party’s assertion of fact . . . the

court may . . . consider th[at] fact undisputed for purposes of

the motion.” Fed. R. Civ. P. 56(e)(2). That is, a court “may

assume that facts identified by the moving party in its

statement of material facts are admitted, unless such a fact is

2 The Court also DENIES as moot Ms. Toomer’s motion for a status
hearing. See Mot. for Status Hr’g, ECF No. 103.
2
controverted in the statement of genuine issues filed in

opposition to the motion.” LCvR 7(h)(1).

Magistrate Judge Harvey determined that Ms. Toomer’s

statement of genuine issues filed in response to the statement

of material facts that accompanied defendant’s motion for

summary judgment was “replete with legal argument, argument

regarding the inferences to be drawn from the facts, and

assertions of other facts which [Ms. Toomer] apparently believes

ought to be considered in connection with the asserted fact.” R

& R, ECF No. 96 at 7 (citing Pl.’s Statement of Material Facts

in Dispute (“Pl.’s Resp. SMF”), ECF No. 73 ¶¶ 7-8, 14, 16, 28,

31-33, 36, 39, 41, 43, 46, 48, 51, 55-56, 59-60, 62).

Accordingly, Magistrate Judge Harvey concluded that many of the

assertions of fact in defendant’s statement of material facts

were not adequately controverted and, as a result, were

undisputed. Id. at 4, 7. Thus, for purposes of his summary

judgment analysis, he drew “from facts submitted by defendant

which went undisputed or were inadequately disputed by [Ms.

Toomer], the undisputed facts submitted by [Ms. Toomer] in

connection with her motions, as well as the factual record

submitted to the Court.” Id. at 7. Where facts were properly

disputed, he addressed those disputes as they arose in his

analysis. Id. at 4.

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 Ms. Toomer objects to Magistrate Judge Harvey’s

characterization of the statement of genuine issues that she

filed in response to defendant’s statement of material facts.

Obj. to Magistrate’s R & R (“Pl.’s Objs.”), ECF No. 99 at 5-10.

This Court overrules that objection. The relevant rules make

clear that, for purposes of summary judgment analysis, a court

may deem undisputed assertions of fact in a movant’s statement

of material facts that are not properly “controverted.” LCvR

7(h)(1); see also Fed. R. Civ. P. 56(e)(2). An assertion of fact

properly presented in a movant’s statement of material facts is

not “controverted” when a non-movant supplies additional facts

and “factual context,” see Pl.’s Objs., ECF No. 99 at 5, that do

not actually dispute the movant’s asserted fact. See Gibson v.

Office of the Architect of the Capitol, No. 00-2424, 2002 WL

32713321, at *1 n.1 (D.D.C. Nov. 19, 2002) (“Plaintiff’s

Statement is almost completely unhelpful to the Court as its

provisions rarely address the facts outlined in Defendant’s

Statement, instead describing in lengthy detail the ‘contextual

and structural background’ surrounding Defendant’s stated

facts.”); Learnard v. Inhabitants of the Town of Van Buren, 182

F. Supp. 2d 115, 119-20 (D. Me. 2002) (disregarding a

plaintiff’s responsive factual statements in part because many

of those statements “do not actually controvert the Defendants’

facts that they purport to address”); cf. Graves v. District of

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Columbia, 777 F. Supp. 2d 109, 111-12 (D.D.C. 2011) (“Where the

opposing party has additional facts that are not directly

relevant to its response, it must identify such facts in

consecutively numbered paragraphs at the end of its responsive

statement of facts.”). This Court’s review of defendant’s

statement of material facts and Ms. Toomer’s statement filed in

response reveals a consistent pattern of Ms. Toomer failing to

controvert defendant’s asserted facts and, instead, providing

additional, non-responsive facts. Compare Def.’s Statement of

Material Facts Not in Dispute (“Def.’s SMF”), ECF No. 68 ¶¶ 7-8,

14, 17, 19, 31-33, 36, 39, 43, 46-49, 51, 55-56, 60, 62, with

Pl.’s Resp. SMF, ECF No. 73 ¶¶ 7-8, 14, 17, 19, 31-33, 36, 39,

43, 46-49, 51, 55-56, 60, 62. Accordingly, Magistrate Judge

Harvey did not err in his determination of disputed and

undisputed facts for purposes of the summary judgment analysis.

He properly deemed undisputed those facts which the parties

explicitly stated were not in dispute and those facts which the

parties failed to adequately controvert, and he appropriately

filled in factual gaps by scrutinizing the record submitted to

the Court. See R & R, ECF No. 96 at 7.

B. Relevant Facts

Having found no error in Magistrate Judge Harvey’s

determination of the undisputed facts for purposes of summary

judgment analysis and overruling Ms. Toomer’s objection

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otherwise, this Court fully adopts Magistrate Judge Harvey’s

thorough recitation of the facts in his R & R and incorporates

that recitation by reference here. See id. at 7-21.

II. Standards of Review

A. Review of Objections to Magistrate Judge’s Report and
Recommendation

“[A] district court may review only those issues that the

parties have raised in their objections to the Magistrate

Judge’s report . . . .” Taylor v. District of Columbia, 205 F.

Supp. 3d 75, 79 (D.D.C. 2016) (internal quotation marks

omitted). When specific written objections have been filed with

respect to a report and recommendation concerning a dispositive

motion, the district court’s review of the portions of the

report and recommendation implicated by those objections is de

novo. Fed. R. Civ. P. 72(b)(2), (3). But “[w]hen a party objects

. . . to a magistrate judge’s determination with respect to a

non-dispositive matter, the Court must modify or set aside all

or part of the magistrate judge’s order if it is ‘clearly

erroneous’ or ‘contrary to law.’” Intex Recreation Corp. v. Team

Worldwide Corp., 42 F. Supp. 3d 80, 86 (D.D.C. 2013) (quoting

Fed. R. Civ. P. 72(a)).

B. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted “if the movant shows that there is no

6
genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.

2002). The moving party must identify “those portions of the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986) (internal quotation marks omitted). To defeat summary

judgment, the nonmoving party must demonstrate that there is a

genuine issue of material fact. Id. at 324. A material fact is

one that is capable of affecting the outcome of the litigation.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

genuine dispute is one where “the evidence is such that a

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

Id. Further, in the summary judgment analysis “[t]he evidence of

the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Id. at 255.

III. Analysis

In her complaint, Ms. Toomer asserts four distinct claims:

(1) racially hostile work environment; (2) retaliation; (3)

racial discrimination; and (4) age discrimination. Compl., ECF

No. 1 ¶¶ 48-76. Defendant filed a motion for summary judgment as

to all of those claims, Def.’s Mot. for Summ. J. (“Def.’s

7
Mot.”), ECF No. 68, and Ms. Toomer filed a motion for partial

summary judgment as to the racially hostile work environment

claim. Pl.’s Mot. for Partial Summ. J. and for Spoliation

Sanctions (“Pl.’s Mot.”), ECF No. 70. Ms. Toomer also moved for

spoliation sanctions, id., and later filed a motion for a

hearing on the earlier-filed motion for spoliation sanctions.

Pl.’s Mot. for Expedited Hr’g on Spoliation of Evid. (“Pl.’s

Mot. for Hr’g”), ECF No. 92. Magistrate Judge Harvey’s R & R

recommends that this Court grant defendant’s motion for summary

judgment and deny Ms. Toomer’s motion for partial summary

judgment, her motion for spoliation sanctions, and her motion

for a hearing.

In addition to her objection addressed above concerning the

R & R’s disentanglement of disputed from undisputed facts, Ms.

Toomer has only objected to Magistrate Judge Harvey’s R & R as

it concerns her racially hostile work environment claim, Pl.’s

Objs., ECF No. 99 at 10-20, 34-35, her retaliation claim, id. at

20-34, and her motion for spoliation sanctions. Id. at 36-41.

The Court limits the analysis that follows to those objections,

see Taylor, 205 F. Supp. 3d at 79 (“[T]he district court may

review only those issues that the parties have raised in their

objections to the Magistrate Judge’s report . . . .”) (internal

quotation marks omitted), and, for the reasons articulated

below, overrules them.

8
 A. Ms. Toomer’s Objections Concerning Her Racially
Hostile Work Environment Claim

To prevail on a hostile work environment claim “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.’” Baloch v.

Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The relevant

analysis has both a subjective and an objective component: The

victim must subjectively perceive the environment to be abusive,

and the complained about conduct must be so severe or pervasive

that it objectively creates a hostile or abusive work

environment. Harris, 510 U.S. at 21-22. “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.”

Baloch, 550 F.3d at 1201 (citing Faragher v. City of Boca Raton,

524 U.S. 775, 787-88 (1998)).

Magistrate Judge Harvey concluded that none of Ms. Toomer’s

proffered facts, taken alone or in combination, suffices to make

out a claim of a racially hostile work environment. R & R, ECF

No. 96 at 29. Thus, Magistrate Judge Harvey concluded that the

9
display of the action figure, supervisor Diane Stiger’s comments

to Ms. Toomer regarding the action figure, and certain

disciplinary actions taken against Ms. Toomer do not sustain a

claim of a racially hostile work environment. Id. Accordingly,

Magistrate Judge Harvey recommends that this Court grant summary

judgment to defendant as to Ms. Toomer’s racially hostile work

environment claim and deny Ms. Toomer’s motion for partial

summary judgment as to that claim.

Ms. Toomer specifically objects to Magistrate Judge

Harvey’s hostile work environment analysis as it concerns the

display of the action figure. She argues that however one might

characterize the action figure at issue in this case——e.g., as a

monkey, ape, monkey-ape, Bigfoot, etc.——that that action figure

was a “black object with its hands held in the air” wrapped in

and hanging by a rope that she saw “every time that she left

[her cubicle] to use the bathroom or walked into her cubicle”

sustains a hostile work environment claim. Pl.’s Objs., ECF No.

99 at 11-14. She contends that the photographic evidence in the

record, which she confirmed shows how the action figure appeared

to her from June 8 through June 23, 2010, see Dec. 2, 2013 Dep.

of Mirlin Toomer (“Dec. 2, 2013 Toomer Dep.”), ECF No. 68-1 at

192:4-7, standing alone “raises a specter on its face of a

hostile workplace environment.” Pl.’s Objs., ECF No. 99 at 14.

She asserts that Magistrate Judge Harvey erred in his assessment

10
that the action figure display was not threatening, “especially

not in the way that an obvious noose-tied rope would be,” R & R,

ECF No. 96 at 39-40, because such an assessment suggests some

“threshold standard” for determining “an African-American’s

perception” of when a lynching has been depicted. Pl.’s Objs.,

ECF No. 99 at 4, 12, 14. She further contends that Magistrate

Judge Harvey engaged in semantic gymnastics to conclude that

there was merely a racially benign “doll” wrapped in “cord”

rather than a racially invidious “monkey-ape” wrapped in “rope,”

id. at 3-4, 13-14, 18, and she contends that Magistrate Judge

Harvey erroneously concluded that it is undisputed that the

action figure at issue is supposed to represent the mythical

creature Bigfoot rather than a monkey or an ape. Id. at 2, 4.

And, finally, Ms. Toomer contends that Magistrate Judge Harvey

erred in his conclusion that there was a benign explanation for

the presence of the action figure display in the workplace. Id.

at 18-20.

Ms. Toomer also specifically objects to Magistrate Judge

Harvey’s hostile work environment analysis as it concerns Ms.

Stiger’s alleged comments to Ms. Toomer in response to the

latter’s complaints to the former about the action figure

display. Ms. Toomer contends that Ms. Stiger’s alleged

comments——especially her question to Ms. Toomer, “[D]o you think

of yourself as a monkey?,” Dec. 2, 2013 Toomer Dep., ECF No. 68-

11
1 at 147:17-25——sustains a hostile work environment claim. See

Pl.’s Objs., ECF No. 99 at 15-16. She argues that Magistrate

Judge Harvey erred in categorizing Ms. Stiger’s comments as a

non-actionable “stray remark” because those comments were

“connected to an ongoing racially offensive event,”——i.e., the

action figure display. Id. Ms. Toomer contends that Ms. Stiger’s

comments were not merely insensitive, unresponsive, or

indifferent, as Magistrate Judge Harvey characterized them, but

rather were “a callous validation of an extremely offensive

workplace action.” Id. at 17.

The Court agrees with Magistrate Judge Harvey’s analysis of

Ms. Toomer’s hostile work environment claim and therefore

overrules Ms. Toomer’s objections to the contrary.

1. The Action Figure Display

It is undisputed that the action figure at issue in this

case “was brown in color, made of hard plastic, had reticulating

arms and legs, had fur engraved in the plastic and was

approximately six to eight inches in length.” Def.’s SMF, ECF

No. 68 ¶ 21; Pl.’s Resp. SMF, ECF No. 73 at page 30. There is

also no dispute that the photographs of the action figure

display in the record accurately depict the action figure

display as it appeared to Ms. Toomer from June 8 through June

23, 2010. Def.’s SMF, ECF No. 68 ¶ 29; Pl.’s Resp. SMF, ECF No.

73 at page 30; see also Compl., Attach. of Photograph, ECF No. 1

12
at 19; Photographs, ECF No. 68-13 at 11-14. Properly viewing the

facts in the light depicted by the photographs, see Pl.’s Resp.

SMF, ECF No. 73 ¶ 30 (“The [p]hoto of the item speaks for

itself.”); cf. Armbruster v. Frost, 962 F. Supp. 2d 105, 110

(D.D.C. 2013) (explaining that where a court has the benefit of

video evidence, it should view the facts in the light depicted

by the videotape when deciding summary judgment motions), it is

undisputed that there was a monkey-like, ape-like, or Bigfoot-

like action figure tightly wrapped——as if mummified——by a thin

white cord or rope from the action figure’s ankles to its chest,

with additional strands wrapped around the action figure’s neck

and arms. See Compl., Attach. of Photograph, ECF No. 1 at 19;

Photographs, ECF No. 68-13 at 11-14. The action figure is

hanging in the air, with the thin white cord or rope extending

upwards from the action figure’s chest. See Compl., Attach. of

Photograph, ECF No. 1 at 19; Photographs, ECF No. 68-13 at 11-

14. Magistrate Judge Harvey got it exactly right when he

concluded that the action figure was wrapped in cord or rope “in

a manner that is not fairly described as a ‘noose.’” R & R, ECF

No. 96 at 39.

Thus this case is readily distinguished from those where an

actual noose or noose-like object was part of the totality of

circumstances that gave rise to a viable racially hostile work

environment claim. See, e.g., Tademy v. Union Pac. Corp., 614

13
F.3d 1132, 1137 & n.1, 1141, 1156 (10th Cir. 2008) (holding that

a jury could believe that a life-size noose prominently

suspended from a large industrial wall clock was meant to evoke

a hangman’s noose); Burkes v. Holder, 953 F. Supp. 2d 167, 178-

79 (D.D.C. 2013) (Sullivan, J.) (holding that a plaintiff stated

a claim of hostile work environment where the Court accepted as

true the allegation that a monkey doll was hung by its neck in a

noose-like fashion in a public work area of an office); Williams

v. New York City Hous. Auth., 154 F. Supp. 2d 820, 822-26

(S.D.N.Y. 2001) (holding that a noose displayed prominently in a

supervisor’s office gave rise to an actionable hostile work

environment claim); Gooden v. Timpte, Inc., No. 99-795, 2000 WL

34507333, at *10-11 (D. Colo. June 29, 2000) (holding that a

reasonable jury could conclude that there was a racially hostile

work environment when plaintiff was subjected to several

statements involving racial epithets and a nude black doll was

hung from a noose in his locker). This Court has said in the

past——and reaffirms here——that “the noose is among the most

repugnant of all racist symbols.” Burkes, 953 F. Supp. 2d at 179

(internal quotation marks omitted). But it is undisputed that

that racist symbol was not part of the action figure display

that lies at the heart of Ms. Toomer’s racially hostile work

environment claim.

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 Ms. Toomer’s argument otherwise is that there is no

“standard” that permits a court to determine “as a matter of

law” when an African-American perceives a noose. Pl.’s Objs.,

ECF No. 99 at 14. Thus, she contends that whether or not the

white cord in this case could fairly be described as a noose,

she was confronted by “a horrific and frightening image,” and

thus she was subjected to a hostile work environment. Id. But

that line of reasoning ignores the objective component of the

hostile work environment analysis. See Harris, 510 U.S. at 21

(holding that a viable hostile work environment claim requires

“an environment that a reasonable person would find hostile or

abusive”) (emphasis added). A reasonable observer of the images

that Ms. Toomer has confirmed show the action figure displayed

as she observed it in her workplace would not describe that

action figure as being hung in a noose.

Although there is no noose at issue here, the action figure

is an ape- or monkey-like creature. This Court has said in the

past that it is reasonable to conclude “that the use of monkey

imagery is intended as a racial insult where no benign

explanation for the imagery appears.” Burkes, 953 F. Supp. 2d at

179 (internal quotation marks omitted). Here, however, there is

an undisputed benign explanation for the presence of the ape- or

monkey-like action figure in the workplace: Michael Shane

Protka, a white male who worked in Ms. Stiger’s branch, was

15
jokingly referred to by a colleague as “Bigfoot” due to his

large size and full beard, and he received the action figure

through a holiday gift exchange that took place in the office.

Def.’s SMF, ECF No. 68 ¶¶ 20-25; Pl.’s Resp. SMF, ECF No. 73 at

page 30. When Mr. Protka moved on from Ms. Stiger’s branch, the

action figure was left behind, and it became a source of office

hijinks——for instance, it was placed in a toy Rock ‘em Sock ‘em

Robots ring. Def.’s SMF, ECF No. 68 ¶ 26; Pl.’s Resp. SMF, ECF

No. 73 at page 30. There is thus a benign explanation for the

ape- or monkey-like action figure’s presence in the office.

Accordingly, that action figure’s presence in the office did not

contribute to a racially hostile work environment.

Ms. Toomer’s argument to the contrary does not dispute the

benign explanation for the presence of the action figure in the

workplace. Instead, it focuses on the absence of a benign

explanation for that action figure being wrapped in cord or

rope. See Pl.’s Objs., ECF No. 99 at 18-20. But the action

figure being wrapped in cord or rope in a manner that, as

explained above, a reasonable observer would not describe as a

noose, is consistent with the office hijinks of which the action

figure was a part. Its mummified display appears no more nor no

less invidious than its prior display in a boxing ring for toy

robots.

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 Accordingly, Magistrate Judge Harvey correctly concluded

that the action figure display, standing alone, cannot sustain a

hostile work environment claim. That correct conclusion does not

rest on semantic designations——e.g., whether the action figure

was a “doll” or an “ape” or a “monkey” and whether it was

wrapped in “cord” or “rope”——but rather rests on an assessment

of the undisputed record evidence, particularly the photographic

evidence. And, contrary to Ms. Toomer’s suggestions, see Pl.’s

Objs., ECF No. 99 at 2, 4, 10, it is not material whether or not

the action figure was originally purchased in packaging bearing

the designation “Bigfoot.” Even if the action figure came in

packaging emblazoned with the designation “Monkey,” there is no

dispute that the action figure was intended as a humorous gift

for a white employee who was jokingly referred to as “Bigfoot.”

Def.’s SMF, ECF No. 68 ¶¶ 20-25; Pl.’s Resp. SMF, ECF No. 73 at

page 30. Thus the action figure display, standing alone, does

not sustain a racially hostile work environment claim.

2. Ms. Stiger’s Comments

Magistrate Judge Harvey also correctly concluded that Ms.

Stiger’s comments to Ms. Toomer in response to the latter’s

complaints about the action figure display also are not

sufficient to sustain a viable racially hostile work environment

claim. Ms. Toomer alleges that on June 8, 2010 she went to Ms.

Stiger to complain about the action figure display that she

17
found offensive. Dec. 2, 2013 Toomer Dep., ECF No. 68-1 at

128:20-22. Ms. Stiger purportedly responded by laughing and by

telling Ms. Toomer that she did not find the action figure

display offensive and that the action figure was an ape, not a

monkey. Id. at 146:4-147:14. Ms. Stiger also allegedly asked Ms.

Toomer, “[D]o you think of yourself as a monkey?” Id. at 147:19-

23. Assuming Ms. Stiger responded to Ms. Toomer’s complaint in

the manner that Ms. Toomer alleges——Ms. Stiger denies having

made the comments, Dep. of Diane Stiger (“Stiger Dep.”), ECF No.

68-3 at 133:7-16——as a matter of law there still was no hostile

work environment.

To prevail on her racially hostile work environment claim,

Ms. Toomer must show that she was subject to discriminatory

intimidation, ridicule, and insult that was “sufficiently severe

or pervasive to alter the conditions of [her] employment and

create an abusive working environment.” See Harris, 510 U.S. at

21. A reasonable jury could certainly conclude that asking an

African-American person, “Do you think of yourself as a monkey?”

when that person is complaining about an ape- or monkey-like

action figure displayed in the workplace is insensitive and

offensive. Even so, that offensive question is not sufficiently

severe to constitute a racially hostile work environment. In

Ayissi-Etoh, the D.C. Circuit suggested, without holding, that

“the use of an unambiguously racial epithet such as ‘nigger’ by

18
a supervisor” could alone be sufficient to establish a hostile

work environment. Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577

(D.C. Cir. 2013) (emphasis added) (some internal quotation marks

omitted); see also id. at 580 (Kavanaugh, J., concurring)

(“[B]eing called the n-word by a supervisor——as Ayissi-Etoh

alleges happened to him——suffices by itself to establish a

racially hostile work environment.”). But the severity of a

supervisor’s use of “probably the most offensive word in

English,” id. (Kavanaugh, J., concurring) (internal quotation

marks omitted), is far greater than a somewhat bizarre and

ambiguous, albeit offensive, question allegedly posed by a

supervisor in response to a complaint about an unambiguously

non-racial workplace display. Rather, Ms. Stiger’s offensive

question is more akin to the sort of derogatory remarks that

courts in this Circuit have deemed non-actionable in the past.

See, e.g., Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 848

(D.C. Cir. 2001) (holding that there was no hostile work

environment where a supervisor, after negotiating with another

supervisor for a printer, told a Jewish employee, “Soon I’m

going to be the only one at this terminal wearing a Yarmulka”);

Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1513

(D.C. Cir. 1995) (holding that a supervisor’s use of the term

“bitch” in a written evaluation, when viewed in context, was

“possibly inappropriately phrased” but “not . . . conclusive of

19
sex discrimination”); Caldwell v. ServiceMaster Corp., 966 F.

Supp. 33, 51 (D.D.C. 1997) (holding that a supervisor’s remarks

to an African-American employee——calling her “girl,” “gal,”

“rascal,” and “you people”——were “race-related” but lacking the

“racial animus that is so severe and pervasive as to create a

hostile environment”). Thus Ms. Stiger’s comments were not

sufficiently severe to sustain a hostile work environment claim.

As concerns pervasiveness, see Ayissi-Etoh, 712 F.3d at 579

(Kavanaugh, J., concurring) (“The test set forth by the Supreme

Court is whether the alleged conduct is ‘sufficiently severe or

pervasive’——written in the disjunctive . . . .”), Ms. Toomer has

not pointed to a sufficiently pervasive pattern of racially

hostile conduct. Ms. Stiger’s “singular stray comment does not a

hostile environment make.” See Freedman, 255 F.3d at 848. Ms.

Toomer contends that Ms. Stiger’s comment was not a mere stray

remark because it was “connected to [the] ongoing racially

offensive event” of the action figure display and Ms. Toomer’s

complaints about that display. Pl.’s Objs., ECF No. 99 at 15-17.

But, as explained above, a reasonable observer would not view

the action figure display as a “racially offensive event,” so

Ms. Stiger’s comment——“Do you think of yourself as a monkey?”——

was not “part of a pervasive pattern of hostility and ridicule”

that is necessary to sustain a hostile work environment claim on

pervasiveness grounds. See Dickerson v. SecTek, Inc., 238 F.

20
Supp. 2d 66, 83-85 (D.D.C. 2002) (emphasis added) (holding that

female security guards had asserted viable hostile work

environment claims when their male supervisor regularly

threatened them, yelled at them, called them “chick,” used the

word “bitch” in their presence, discussed trips to strip clubs

with male co-workers in the workplace, and stated that “[w]omen

don’t belong in security”). Ms. Toomer also suggests that Ms.

Stiger’s failure to remove the action figure after Ms. Toomer

allegedly voiced her complaints about it contributed to the

pervasiveness of the hostile work environment. See Pl.’s Objs.,

ECF No. 99 at 16-17. But Ms. Stiger cannot be said to have

contributed to a racially hostile work environment by not

removing a display that, as explained above, was devoid of a

racially invidious connotation.

The Court thus overrules Ms. Toomer’s specific objections

to Magistrate Judge Harvey’s analysis of her racially hostile

work environment claim. Accordingly, defendant’s motion for

summary judgment as to that claim is GRANTED, and Ms. Toomer’s

motion for partial summary judgment as to that claim is DENIED.

B. Ms. Toomer’s Objections Concerning Her Retaliation
Claim

“Both Title VII and the ADEA prohibit the federal

government from retaliating against employees who complain of

employment discrimination.” Jones v. Bernanke, 557 F.3d 670, 677

21
(D.C. Cir. 2009). A retaliation claim is subject to the familiar

burden-shifting framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See Walker v. Johnson, 798 F.3d 1085, 1091

(D.C. Cir. 2015). “Under that framework, a plaintiff must first

establish a prima facie case of retaliation by showing (1) that

he engaged in statutorily protected activity; (2) that he

suffered a materially adverse action by his employer; and (3)

that a causal link connects the two.” Jones, 557 F.3d at 677.

If a plaintiff establishes a prima facie case, the burden

shifts to the employer to articulate a legitimate, non-

retaliatory reason for its actions. Id. “If the employer does

so, the burden-shifting framework disappears, and a court

reviewing summary judgment looks to whether a reasonable jury

could infer . . . retaliation from all the evidence . . . .” Id.

(internal quotation marks omitted). Thus the central question

reduces to whether the plaintiff has produced sufficient

evidence for a reasonable jury to find that the employer’s

asserted non-retaliatory reason was not the actual reason for

its adverse action and that the employer intentionally

retaliated against the plaintiff. Walker, 798 F.3d at 1092. To

support an inference that the employer’s stated reasons were

pretextual and that its real reasons were prohibited

retaliation, a plaintiff can cite “the employer’s better

treatment of similarly situated employees outside the

22
plaintiff’s protected group, its inconsistent or dishonest

explanations, its deviation from established procedures or

criteria, or the employer’s pattern of poor treatment of other

employees in the same protected group as the plaintiff, or other

relevant evidence that a jury could reasonably conclude evinces

an illicit motive.” Id.

Even after the employer articulates a legitimate, non-

retaliatory reason for its action and, consequently, the

plaintiff’s prima facie case “drops out of the picture,” Brady

v. Office of the Sergeant at Arms, 520 F.3d 490, 493-94 (D.C.

Cir. 2008) (internal quotation marks omitted), a court “still

first must determine whether [a] plaintiff has suffered an

adverse employment action.” Adesalu v. Copps, 606 F. Supp. 2d

97, 103 (D.D.C. 2009); see also Taylor v. Solis, 571 F.3d 1313,

1320 n.* (D.C. Cir. 2009) (“The court can resolve [the question

of retaliation vel non] in favor of the employer based either

upon the employee’s failure to rebut its explanation or upon the

employee’s failure to prove an element of her case——here that

her employer took a materially adverse action against her.”).

“‘Adverse actions’ in the retaliation context encompass a

broader sweep of actions than those in a pure discrimination

claim.” Baloch, 550 F.3d at 1198 n.4. Such actions are those

that “might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington N. & Santa Fe

23
Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation

marks omitted).

The D.C. Circuit has also recognized “a special type of

retaliation claim based on a ‘hostile work environment.’” Baird

v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015). A retaliatory

hostile work environment claim “consists of several individual

acts that may not be actionable on their own but become

actionable due to their cumulative effect.” Id. (internal

quotation marks and alteration omitted). The relevant acts must

be “adequately linked such that they form a coherent hostile

environment claim.” Id. (internal quotation marks omitted). “In

addition, the acts must be of such severity or pervasiveness as

to alter the conditions of . . . employment and create an

abusive working environment.” Id. at 169 (internal quotation

marks omitted). As in the racially hostile work environment

context, severity and pervasiveness are assessed by looking to

the totality of the circumstances. Id.

Magistrate Judge Harvey concluded that Ms. Toomer was

unable to prevail on her retaliation claim because, whether

considered as discrete retaliatory actions or collectively, each

allegedly retaliatory incident about which she complains “either

does not rise to the level of a materially adverse action or is

justified by legitimate, non-discriminatory reasons which [Ms.

Toomer] has not shown to be pretext for retaliation.” R & R, ECF

24
No. 96 at 46. Accordingly, Magistrate Judge Harvey recommends

that this Court grant summary judgment to defendant as to Ms.

Toomer’s retaliation claim.

Ms. Toomer objects to various aspects of Magistrate Judge

Harvey’s analysis of her retaliation claim. She contends that in

his analysis of her retaliation claim Magistrate Judge Harvey

should have considered her allegations that Mark Dial, the

deputy director of her office, verbally assaulted her on

September 9, 2010 and that Tom Guercio, a human resources

representative, physically assaulted her on September 22, 2010.

Pl.’s Objs., ECF No. 99 at 21. She also contends that Magistrate

Judge Harvey erred in his analysis of five other retaliatory

incidents that he did address, arguing that he erroneously

concluded that certain actions were not materially adverse

actions and that she failed to rebut as pretext defendant’s

proffered non-retaliatory reasons for certain actions. Id. at

22-34. And she contends that Magistrate Judge Harvey did not

adequately address her retaliatory hostile work environment

theory, as she asserts that his analysis considered the alleged

retaliatory incidents in isolation instead of assessing them as

part of an “ongoing and continuous” pattern of retaliation. Id.

at 21-22.

Ms. Toomer’s objections are without merit and, accordingly,

are overruled.

25
 1. Mr. Dial’s Verbal Assault and Mr. Guercio’s
Physical Assault

As concerns her first specific objection, the Court

overrules that objection because even if Magistrate Judge Harvey

erred when he failed to consider Mr. Dial’s alleged verbal

assault and Mr. Guercio’s alleged physical assault in the

context of Ms. Toomer’s retaliation claim, see R & R, ECF No. 96

at 45 n.14, neither of those incidents is sufficient to sustain

a retaliation claim. On the morning of September 9, 2010 when

Ms. Toomer was inadvertently emailed Privacy Act-protected

materials, Mr. Dial ordered Ms. Toomer to report to his office.

Dec. 12, 2013 Dep. of Mirlin Toomer (“Dec. 12, 2013 Toomer

Dep.”), ECF No. 68-2 at 42:4-16; Def.’s SMF, ECF No. 68 ¶¶ 43-

49; Pl.’s Resp. SMF, ECF No. 73 ¶¶ 43, 46-49 and at page 30.

When she did so, he allegedly yelled at her to shut the door and

sit down, threatened to terminate her employment, and pounded

his fists on a table. Dec. 12, 2013 Toomer Dep., ECF No. 68-2 at

42:17-45:22; Pl.’s Corrected Opp. to Def.’s Mot. for Summ. J.

(“Pl.’s Opp.”), ECF No. 73 at 5. This conduct standing alone

cannot sustain a retaliation claim because “merely being yelled

at by your supervisor does not rise to the level of an adverse

employment action.” Moore v. Ashcroft, 401 F. Supp. 2d 1, 26

(D.D.C. 2005) (internal quotation marks omitted); see also

Baloch, 550 F.3d at 1199 (“[S]poradic verbal altercations or

26
disagreements do not qualify as adverse actions for purposes of

retaliation claims.”).

Even if Mr. Dial’s yelling and table pounding did

constitute a materially adverse employment action, Ms. Toomer’s

retaliation claim based on that conduct still fails because she

has not rebutted as pretext his non-retaliatory reason for

engaging in such conduct: Her undisputed refusal to delete her

electronic copies and destroy or return her paper copies of the

Privacy Act-protected materials inadvertently emailed to her

despite being ordered by Mr. Dial and others to do so. See Sept.

9, 2010 Email from Mirlin Toomer to Mark Dial, ECF No. 68-12 at

6 (email from Ms. Toomer stating that she told Mr. Dial that she

“could not” delete the Privacy Act-protected materials despite

being ordered to do so); Def.’s SMF, ECF No. 68 ¶ 46; Pl.’s

Resp. SMF, ECF No. 73 ¶ 46. For the same reason, Mr. Guercio’s

alleged physical assault against Ms. Toomer on September 22,

2010, see Dec. 12, 2013 Toomer Dep., ECF No. 68-2 at 80:1-9,

does not sustain a viable retaliation claim: Ms. Toomer has not

produced evidence sufficient to permit a reasonable jury to

conclude that Mr. Guercio grabbed her arm for any reason other

than because she refused to participate in a meeting with him

and Mr. Dial concerning the Privacy Act breach. See Decl. of

Mark Dial, ECF No. 68-12 ¶ 17.

27
 2. Ms. Stiger’s Alleged Threat

Ms. Toomer contends that Magistrate Judge Harvey erred

when he concluded that her self-serving allegations regarding an

alleged threat rendered by Ms. Stiger in response to her

complaints about harassment by a co-worker do not raise a

triable issue of fact. See Pl.’s Objs., ECF No. 99 at 22-23. Ms.

Toomer alleges that she was harassed by a co-worker and when she

complained to Ms. Stiger about the harassment, Ms. Stiger said,

“If anything happens to [Ms. Toomer’s co-worker], I’m going to

make sure it happens to you.” Dec. 2, 2013 Toomer Dep., ECF No.

73-5 at 74:1-20. Ms. Toomer contends that she eventually

withdrew her complaint about her co-worker’s harassment because

of this threat and because Ms. Stiger ordered her to attend a

“Respect in the Workplace” training session. Pl.’s Objs., ECF

No. 99 at 23.

The Court agrees with Magistrate Judge Harvey that Ms.

Toomer offers no evidence of Ms. Stiger’s threat other than her

own self-serving assertions and that such unsupported, self-

serving assertions do not give rise to a triable issue of fact.

See, e.g., Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997)

(when scrutinizing motions for summary judgment courts “examine

the facts in the record and reasonable inferences in the light

most favorable to the nonmoving party, but do not accept bare

conclusory allegations as fact”) (internal citations omitted);

28
Ward v. District of Columbia, 950 F. Supp. 2d 9, 17 (D.D.C.

2013) (“[S]elf-serving assertions are not sufficient to create

an issue of material fact.”); Musgrove v. Gov’t of the District

of Columbia, 775 F. Supp. 2d 158, 170 (D.D.C. 2011) (holding

that self-serving deposition testimony, standing alone, is

insufficient to survive a motion for summary judgment). Even if

unsupported, self-serving assertions were sufficient to surmount

summary judgment, Ms. Toomer’s own deposition testimony

contradicts her assertions elsewhere that she withdrew her

complaint concerning her co-worker’s harassment because Ms.

Stiger threatened her. See Dec. 2, 2013 Toomer Dep., ECF No. 68-

1 at 80:1-82:4 (Ms. Toomer explaining that “what made [her]

withdraw the complaint” was a conversation with another

supervisor regarding her co-worker’s youth and immaturity and

the need for Ms. Toomer to give that co-worker a second chance).

Such contradictory testimony belies the conclusion that there is

a triable issue of fact here. See Pina v. Children’s Place, 740

F.3d 785, 799 (1st Cir. 2014) (holding that summary judgment was

appropriate where plaintiff’s admissions in her deposition

undermined her claims); Washington, Marlboro & Annapolis Motor

Lines v. Maske, 190 F.2d 621, 621-22 (D.C. Cir. 1951) (reversing

a judgment in a plaintiff’s favor because it was supported only

by her self-serving testimony which was undermined by proof of

29
her earlier statement that the opposite of that testimony was

true).

3. Reprimand Due to a Disruptive Phone Call

Ms. Toomer contends that Magistrate Judge Harvey erred when

he concluded that she does not have a viable retaliation claim

based on her being reprimanded for having made a disruptive

phone call to the Equal Employment Opportunity (“EEO”) office

while she was in the workplace. Pl.’s Objs., ECF No. 99 at 23-

25. But Magistrate Judge Harvey’s conclusion as to this claim

rested on two independent grounds——(1) that Ms. Toomer’s receipt

of a letter of reprimand issued in part due to her disruptive

phone call was “not a materially adverse employment action under

the standard applicable to retaliation claims” and (2) that Ms.

Toomer fails to rebut defendant’s non-retaliatory reasons for

reprimanding her as pretext, R & R, ECF No. 96 at 48——and Ms.

Toomer’s objections to the R & R fail to address the first of

those two grounds. See Pl.’s Objs., ECF No. 99 at 23-25, 27-28.

Having failed to object to Magistrate Judge Harvey’s conclusion

that being issued a letter of reprimand was not a materially

adverse employment action, Ms. Toomer has waived review of that

conclusion in this Court. See Taylor, 205 F. Supp. 3d at 79

(“[T]he district court may review only those issues that the

parties have raised in their objections to the Magistrate

Judge’s report . . . .”) (internal quotation marks omitted).

30
Even if Ms. Toomer had properly lodged a specific objection,

such an objection would be overruled. See, e.g., Baloch, 550

F.3d at 1199 (holding that issuing a letter of counseling and a

letter of reprimand was not a materially adverse employment

action for purposes of a retaliation claim because the letter

“contained no abusive language” and, instead, contained “job-

related constructive criticism, which can prompt an employee to

improve her performance”) (internal quotation marks omitted);

Hyson v. Architect of the Capitol, 802 F. Supp. 2d 84, 102

(D.D.C. 2011) (“A letter of counseling, written reprimand, or

unsatisfactory performance review, if not abusive in tone or

language or a predicate for a more tangible form of adverse

action, will rarely constitute materially adverse action under

Title VII.”).

Additionally, the specific objection that Ms. Toomer has

properly presented to this Court——objecting to Magistrate Judge

Harvey’s conclusion that she failed to produce sufficient

evidence to rebut as pretext defendant’s stated non-retaliatory

reason for reprimanding her——is without merit. Ms. Toomer

contends that Magistrate Judge Harvey erred because Ms. Stiger,

who issued the letter of reprimand, testified that she had only

been informed of the allegedly loud and disruptive phone call by

Ms. Toomer’s co-workers and, according to Ms. Toomer, that

testimony is inadmissible hearsay. Pl.’s Objs., ECF No. 99 at

31
23-25. But that testimony is not inadmissible hearsay because

the statements of Ms. Toomer’s co-workers are not being offered

for their truth; rather, they are only being offered to show the

effect they had on Ms. Stiger’s decision-making as a supervisor.

See Moore v. Hartman, 102 F. Supp. 3d 35, 147 (D.D.C. 2015)

(“[O]ut-of-court statements may be admissible when offered not

for the truth of the matter asserted but to show the effect on

the state of mind of the listener.”). Whether or not Ms. Toomer

made a loud and disruptive phone call to the EEO office from her

workspace, Ms. Stiger honestly and reasonably believed that such

a disruptive phone call was made, and Ms. Toomer has “not

produce[d] evidence sufficient to show that [Ms. Stiger’s]

conclusion was dishonest or unreasonable.” Brady, 520 F.3d at

496. Additionally, Ms. Toomer has not produced sufficient

evidence to rebut Ms. Stiger’s contention that it was the loud

and disruptive nature of the call——not the fact that the call

was made to the EEO office——that undergirded her decision to

reprimand Ms. Toomer. See Stiger Dep., ECF No. 68-3 at 156:16-18

(“It wasn’t the fact that she was calling EEO. It was the fact

that she was making a disruptive phone call in the workplace.”).

Accordingly, Ms. Toomer does not have a viable retaliation claim

based on being reprimanded for having made a disruptive phone

call to the EEO office.

32
 4. “Respect in the Workplace” Session and Suspension

Ms. Toomer contends that Magistrate Judge Harvey erred when

he concluded that she failed to rebut as pretext defendant’s

non-retaliatory reasons for ordering her to attend a “Respect in

the Workplace” training session and suspending her from work for

one day for failing to attend that session. Pl.’s Objs., ECF No.

99 at 25-27. This objection is also without merit. Ms. Stiger

ordered Ms. Toomer to attend the same “Respect in the Workplace”

training session as the co-worker who allegedly harassed her

because Ms. Stiger’s assessment was that, while Ms. Toomer’s co-

worker had engaged in some inappropriate and unacceptable

workplace conduct, Ms. Toomer was “feeding the repartee” with

that co-worker. Stiger Dep., ECF No. 68-3 at 93:20-94:15. Ms.

Toomer contends that Ms. Stiger’s stated rationale for her

action is pretextual, as it is consistent with her alleged

threat to punish Ms. Toomer in the same manner that she would

punish the harassing co-worker. Pl.’s Objs., ECF No. 99 at 26.

But undisputed record evidence confirms that Ms. Toomer did

engage in the sort of repartee with her co-worker that would

likely lead to further words and conduct inappropriate for the

workplace. See Email from Mirlin Toomer to Matthew Esteves, ECF

No. 68-11 at 6 (Ms. Toomer referring to her co-worker as

“Pumpkin” and telling him, “If you continue to ignore me then I

am going to come over there an[d] smooch you until you

33
acknowledge me!”). Accordingly, Ms. Toomer has not produced

sufficient evidence for a reasonable jury to find that

defendant’s stated reason for ordering Ms. Toomer to attend the

“Respect in the Workplace” training session and for subsequently

suspending her for one day due to her failure to attend that

session was not its actual reason.

5. Negative Performance Review and Letter of
Reprimand

Ms. Toomer appears to object to Magistrate Judge Harvey’s

conclusion that she cannot prevail on a retaliation claim based

on Ms. Stiger issuing to her a negative performance review and

the letter of reprimand referred to above. Pl.’s Objs., ECF No.

99 at 27-28. This apparent objection fails at the outset because

it is devoid of any specificity and, consequently, waived. See

id. (calling Magistrate Judge Harvey’s conclusion concerning the

negative performance review and the letter of reprimand

“astounding” but then merely restating various of Ms. Toomer’s

retaliation-related grievances and baldly asserting that the

retaliation continued after Ms. Toomer was transferred out of

Ms. Stiger’s branch); Taylor, 205 F. Supp. 3d at 79 (“[T]he

district court may review only those issues that the parties

have raised in their objections to the Magistrate Judge’s report

. . . .”) (internal quotation marks omitted).

34
 Even assuming that Ms. Toomer has adequately articulated a

specific objection to Magistrate Judge Harvey’s analysis as

concerns these allegedly retaliatory incidents, this Court again

finds no error in the Magistrate Judge’s analysis. As explained

above, issuance of the letter of reprimand was not a materially

adverse employment action. Similarly, issuance of the negative

performance review to Ms. Toomer also was not a materially

adverse action because Ms. Toomer has nowhere linked that

negative review to financial harms or other negative tangible

job consequences nor has she alleged that it contained abusive

language. See, e.g., Baloch, 550 F.3d at 1199 (“[P]erformance

reviews typically constitute adverse actions only when attached

to financial harms.”); Durant v. District of Columbia, 932 F.

Supp. 2d 53, 69 (D.D.C. 2013) (“In this circuit, evaluations and

written warnings do not constitute materially adverse actions

unless they have tangible job consequences.”) (internal

quotation marks omitted); Hyson, 802 F. Supp. 2d at 102 (“A

letter of counseling, written reprimand, or unsatisfactory

performance review, if not abusive in tone or language or a

predicate for a more tangible form of adverse action, will

rarely constitute materially adverse action under Title VII.”).

And, additionally, Ms. Toomer has again failed to rebut

defendant’s legitimate, non-retaliatory reasons for its actions

as pretext. The letter of reprimand was grounded in part, as

35
explained above, in Ms. Stiger’s reasonable belief that Ms.

Toomer had had a disruptive workplace phone call and in part in

Ms. Stiger’s reasonable belief that Ms. Toomer had failed to

comply with the agency’s sick-leave policy. See June 17, 2010

Letter of Reprimand, ECF No. 68-13 at 7-8. Ms. Toomer does refer

to a co-worker who, based on overheard workplace conversations

and a later conversation between Ms. Toomer and the co-worker,

allegedly was not reprimanded or otherwise punished for

violating the sick-leave policy. Dec. 2, 2013 Toomer Dep., ECF

No. 68-1 at 168:2-170:13. But that co-worker was an “astute

employee” who regularly complied with the workplace rules,

Stiger Dep., ECF No. 68-3 at 163:18-164:16, whereas Ms. Toomer

was cited in her letter of reprimand for two infractions

occurring in quick succession and was reminded in that letter

that she had been “counseled several times on the established

leave procedure.” See June 17, 2010 Letter of Reprimand, ECF No.

68-13 at 7-8. Accordingly, because Ms. Toomer has not identified

a similarly-situated comparator, an inference of falsity as to

defendant’s proffered reason for issuing its letter of reprimand

to her is unwarranted. See Dudley v. WMATA, 924 F. Supp. 2d 141,

162 (D.D.C. 2013) (“When relying on a comparator to overcome the

employer’s proffered legitimate explanation, there must be a

very close relationship between the compared employees.”). And

as concerns the negative performance review, that review was

36
already in the works before Ms. Toomer engaged in any protected

activity. See Email from Diane Stiger to Selina Pendleton, ECF

No. 76-2 at 7. Accordingly, no reasonable jury could conclude

that Ms. Stiger eventually issued it because Ms. Toomer engaged

in protected activity. See Clark Cty. Sch. Dist. v. Breeden, 532

U.S. 268, 272 (2001) (“[P]roceeding along lines previously

contemplated, though not yet definitively determined, is no

evidence whatever of causality.”).

6. Termination

Ms. Toomer objects to Magistrate Judge Harvey’s conclusion

that she has failed to rebut defendant’s proffered legitimate,

non-retaliatory reason for terminating her employment. Pl.’s

Objs., ECF No. 99 at 28-34. Once again, the Court agrees with

Magistrate Judge Harvey’s conclusion and overrules this

objection.

David White, the deciding official for Ms. Toomer’s

termination decision, has explained that he terminated Ms.

Toomer not because she engaged in protected activity but rather

because she repeatedly refused to delete Privacy Act-protected

materials that had been inadvertently emailed to her and refused

to destroy or return the hard copies of those materials that she

had printed. Dep. of David White (“White Dep.”), ECF No. 81-1 at

79:17-80:6, 93:9-12, 98:11-15. Ms. Toomer contends that this

non-retaliatory reason is pretext because the evidentiary record

37
does not make clear “that she was non-cooperative or

insubordinate in the return” of the Privacy Act-protected

materials. Pl.’s Objs., ECF No. 99 at 30. Ms. Toomer points to a

series of events between September 14 and September 20, 2010

intended to support that contention. Id. at 29-30. Her ultimate

aim seems to be to demonstrate pretext by showing that defendant

is lying about the insubordination proffered as its reason for

her termination. See Walker, 798 F.3d at 1093 (“[I]f the only

reason an employer offers for firing an employee is a lie, the

inference that the real reason was a forbidden one . . . may

rationally be drawn.”) (internal quotation marks and some

alterations omitted). Ms. Toomer falls well short of

demonstrating any lie. It is undisputed that Ms. Toomer was

ordered to delete electronic copies and destroy paper copies of

the Privacy Act-protected materials almost immediately after

they were inadvertently sent to her, but she refused to do so.

See Sept. 9, 2010 Email from Mirlin Toomer to Mark Dial, ECF No.

68-12 at 6 (email from Ms. Toomer stating that she told Mr. Dial

that she “could not” delete the Privacy Act-protected materials

despite being ordered to do so); Def.’s SMF, ECF No. 68 ¶¶ 45-

46; Pl.’s Resp. SMF, ECF No. 73 ¶ 46. When Ms. Toomer eventually

mailed documents to the agency on September 20, the agency’s

analysis of those documents indicated that the paper and ink

were different from that used when Ms. Toomer originally printed

38
the documents, strongly suggesting that Ms. Toomer remained non-

compliant after more than a week of being repeatedly told to

delete electronic copies of and return or destroy hard copies of

the Privacy Act-protected materials. Email from Charlotte Owen

to Mark Dial, ECF No. 68-12 at 14; Def.’s SMF, ECF No. 68 ¶ 60;

Pl.’s Resp. SMF, ECF No. 73 ¶ 60. Ms. Toomer has thus not

“demonstrate[d] that [her] employer is making up or lying about

the underlying facts” of her insubordination. See Brady, 520

F.3d at 495.3

Ms. Toomer also argues that defendant’s stated reason for

firing her was pretextual because Mr. Dial and Mr. Guercio

participated in the termination process. Pl.’s Objs., ECF No. 99

at 30-34. She contends that although Mr. White made the final

decision to terminate her, Mr. Dial and Mr. Guercio were

“integral parts of the decision making process” and thus

influenced Mr. White’s decision. Id. at 32. Ms. Toomer contends

that that alleged influence is sufficient to demonstrate pretext

because Mr. Dial and Mr. Guercio harbored retaliatory animus

3 For this same reason, Ms. Toomer’s allegations that Mr. White
did not consider her “past disciplinary record, past work
record, potential for rehabilitation, mitigating circumstances
and availability of alternative sanctions” when deciding to
terminate her employment are unavailing. See Pl.’s Objs., ECF
No. 99 at 33-34. Even assuming Mr. White failed to consider
these factors in his decision, that still would not be enough to
rebut his proffered legitimate reason for her termination——her
insubordination concerning the Privacy Act-protected materials——
as pretext.
39
against her. See id. at 30-31. That retaliatory animus allegedly

stemmed from Ms. Toomer having filed an EEO complaint

implicating Mr. Dial on September 13, 2010 and from a pending

criminal investigation as to Mr. Guercio based on his

altercation with Ms. Toomer in Mr. Dial’s office on September

22, 2010. See id. Ms. Toomer thus advances a “cat’s-paw theory”

where “a formal decision maker may be an unwitting conduit of

another actor’s illicit motives.” Walker, 798 F.3d at 1095

(citing Griffin v. Wash. Convention Ctr., 142 F.3d 1308, 1311-12

(D.C. Cir. 1998)). She can prevail on such a theory only “‘if

[1] a supervisor performs an act motivated by [retaliatory]

animus, [2] that is intended by the supervisor to cause an

adverse employment action, and . . . [3] that act is a proximate

cause of the ultimate employment action.’” Burley v. Nat’l

Passenger Rail Corp., 801 F.3d 290, 297 (D.C. Cir. 2015)

(quoting Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011)).

It is undisputed that Mr. Dial and Mr. Guercio participated

in the termination process in some capacity. See, e.g., White

Dep., ECF No. 81-1 at 66:12-20. Even assuming that they were

“integral” to that process, see Pl.’s Objs., ECF No. 99 at 32-

33, Ms. Toomer fails to satisfy the first step in the cat’s-paw

analysis: demonstrating that they were motivated by retaliatory

animus. Ms. Toomer has pointed out that she filed an EEO

complaint on September 13, 2010 that referred to the threats Mr.

40
Dial allegedly made against her on September 9, 2010 after she

refused to delete the Privacy Act-protected materials, and she

has pointed out that Mr. Guercio was subject to police

investigation based on her allegation that he assaulted her

during the course of a September 22, 2010 meeting related to the

Privacy Act breach. See Pl.’s Objs., ECF No. 99 at 30. Even so,

Ms. Toomer has not produced any evidence that would permit a

reasonable jury to find that Mr. Dial and Mr. Guercio wanted to

terminate her employment because of those incidents. In the

absence of sufficient evidence to suggest that they harbored

retaliatory animus, the Court has no need to proceed to the

second and third steps of the cat’s-paw analysis. See Burley,

801 F.3d at 297.

7. Retaliatory Hostile Work Environment

Finally, the Court overrules Ms. Toomer’s objection that

Magistrate Judge Harvey erroneously rejected her retaliatory

hostile work environment claim. See Pl.’s Objs., ECF No. 99 at

21-22. It certainly can be the case that “several individual

acts that may not be actionable on [their] own . . . become

actionable due to their cumulative effect.” Baird, 792 F.3d at

168 (internal quotation marks omitted). That being said, it can

also be the case that even when a plaintiff “accumulate[s] a

long list of slights” a court might not be able to “discern a

collective retaliation claim greater than the sum of its parts.”

41
Lurensky v. Wellinghoff, 167 F. Supp. 3d 1, 21 (D.D.C. 2016)

(internal quotation marks omitted). This case falls into the

latter of those two categories. As explained above, each of the

allegedly retaliatory incidents about which Ms. Toomer complains

either does not constitute a materially adverse employment

action or is readily justified by a non-retaliatory explanation

that Ms. Toomer fails to rebut as pretext. The Court does not

see how bundling these various alleged grievances together

crosses the threshold for a retaliatory hostile work environment

claim, particularly given that Ms. Toomer’s complaints involve

“different people doing different things in different contexts,”

see Baird, 792 F.3d at 171, and, additionally, in view of the

requirement that the complained of acts “must be of such

severity or pervasiveness as to alter the conditions of . . .

employment and create an abusive working environment.” Id. at

169 (internal quotation marks omitted). Accordingly, Magistrate

Judge Harvey correctly concluded that Ms. Toomer does not have a

viable retaliatory hostile work environment claim.

In sum, the Court overrules Ms. Toomer’s specific

objections to Magistrate Judge Harvey’s analysis of her

retaliation claim. Accordingly, summary judgment for defendant

as to that claim is GRANTED.

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 C. Ms. Toomer’s Objections Concerning Her Motion for
Spoliation Sanctions and Her Motion for a Hearing

Ms. Toomer also objects to Magistrate Judge Harvey’s

recommendation that this Court deny her motion for spoliation

sanctions against the defendant and deny her motion for a

hearing on her motion for spoliation sanctions. See Pl.’s Objs.,

ECF No. 99 at 36-41. This objection is meritless and thus

overruled.

First, the primary piece of evidence that is the subject of

Ms. Toomer’s motion for spoliation sanctions——the action

figure——was found by defendant during the course of this

litigation. See Notice, ECF No. 90. Because that evidence has

been located and presented to Ms. Toomer for inspection,

spoliation sanctions are unwarranted. See McGuire v. Acufex

Microsurgical, Inc., 175 F.R.D. 149, 156-57 (D. Mass. 1997)

(holding that there was no prejudice to a plaintiff and thus no

basis for sanctions when evidence believed to be lost was found

and promptly turned over to the plaintiff). And because it is

clear that the recently recovered action figure is the same

action figure as that depicted in the photographs showing the

action figure as it was displayed to Ms. Toomer between June 8

and June 23, 2010, compare Photographs, ECF No. 68-13 at 11-14,

with Photograph, ECF No. 91-1 at 3, there is no need to conduct

an evidentiary hearing to “verify” the “identity” of the

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recently recovered action figure. See Pl.’s Objs., ECF No. 99 at

41.

Second, it is undisputed that photographic evidence in the

record shows how the action figure was displayed to Ms. Toomer

between June 8 and June 23, 2010. Def.’s SMF, ECF No. 68 ¶ 29;

Pl.’s Resp. SMF, ECF No. 73 at page 30. As explained above, see

supra Part III.A, it is that undisputed photographic evidence

that entitles defendant to summary judgment as to Ms. Toomer’s

racially hostile work environment claim and, accordingly,

spoliation sanctions are unwarranted. See Grosdidier v. Broad.

Bd. Of Governors, Chairman, 709 F.3d 19, 28-29 (D.C. Cir. 2013)

(holding that even if the plaintiff were given a favorable

inference because of spoliation, “other evidence” in the record

prevented the plaintiff from surmounting summary judgment).

Accordingly, Ms. Toomer’s motion for spoliation sanctions and

her motion for a hearing on spoliation of evidence are DENIED.

IV. Conclusion

For the foregoing reasons, Ms. Toomer’s objections to

Magistrate Judge Harvey’s R & R are overruled, and Magistrate

Judge Harvey’s R & R is ADOPTED in its entirety. Accordingly,

the Court GRANTS defendant’s motion for summary judgment and

DENIES Ms. Toomer’s motion for partial summary judgment, her

motion for spoliation sanctions, and her motion for a hearing on

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spoliation of evidence. A separate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
July 19, 2017

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