Ginger v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18, 2008 Decided June 10, 2008

No. 07-7054

JAMES E. GINGER, ET AL.,
APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 03cv02512)

David H. Shapiro argued the cause for appellants. With
him on the briefs were Richard L. Swick and Ellen K. Renaud.

Donna M. Murasky, Deputy Solicitor General, Office of
Attorney General for the District of Columbia, argued the cause
for appellees. With her on the briefs were Linda J. Singer,
Attorney General at the time the brief was filed, and Todd S.
Kim, Solicitor General. Edward E. Schwab, Deputy Attorney
General, entered an appearance.

Before: SENTELLE, Chief Judge, GINSBURG, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
 2

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: After the Metropolitan Police
Department (MPD) reorganized its Canine Unit, eight police
officers in the Unit sued the District of Columbia, claiming to be
victims of racial discrimination and alleging several instances of
retaliation for having filed a complaint. The district court
granted summary judgment to the District, which we now
affirm.

I. Background

The MPD reorganized the Canine Unit in 2003. Before the
reorganization, the Unit was divided into four squads, each of
which worked four ten-hour shifts per week. Squads 1 and 2
worked the “midnight shift,” from 8:00 p.m. to 6:00 a.m., and
Squads 3 and 4 worked the “day shift,” from 10:00 a.m. to 8:00
p.m. Squad 2 was composed of seven white officers and one
black officer; those eight officers are the appellants. The other
squads were roughly evenly divided between whites and non-
whites.

Several years before the reorganization, Alfred Broadbent,
then an assistant chief of the MPD, recommended the
Department switch to a system in which the canine squads
would rotate between day and night shifts; he was concerned
that officers on a permanent midnight shift tended to become
alienated from the Department. Broadbent’s recommendation
was not implemented, but he raised it again after the Department
of Justice had pressured the MPD to adopt measures aimed at
monitoring the use of force by the Canine Unit. In 2002, when
Cathy Lanier became the Commander of the Special Operations
Division of the MPD, of which the Canine Unit is a part,
Broadbent urged her to reorganize the Unit from four permanent
ten-hour shifts to five rotating eight-hour shifts.
 3

At around the same time, Joshua Ederheimer, head of the
Civil Rights and Force Investigations Division of the MPD,
noticed that Canine Unit Squad 2 alone was the source of fully
11 of the 17 dog bites for which the entire Unit of four squads
was responsible in 2002. In a deposition he said he was
concerned about this imbalance, particularly upon realizing that
“all but one of the officers on that squad were Caucasian and ...
all of the people that had been bitten were African American.”
He told Lanier he was “very concerned about the racial makeup
of the squad and that some kind of action had to be taken.” He
noted that the media and the Department of Justice might flag
this disparity as indicative of a civil rights violation.
Ederheimer also informed Charles Ramsey, the Chief of Police,
of his concern. Ramsey said he would “do something” and
would “talk to ... Lanier.”

Duane Buethe, the supervisor of the Canine Unit, recounted
at his deposition that he participated in a meeting with Lanier,
Ederheimer, and other high-level officials of the MPD, in which
the racial composition of Squad 2 was raised: “[A]fter we started
talking about it and I looked at it and realized that the whole
squad, with the exception of one officer, was white ... my first
thought was this is not going to look good if it ever leaks out.”
He testified that Lanier said “oh, my, that’s not going to look
good” and “something’s going to have to be done.”

Shortly after that meeting, Lanier wrote a memorandum to
Ederheimer stating in part that

11 out of 17 bites occurred with handlers in one Squad ....
The squad involved in the majority of the bites has a racial
make up [sic] that is predominantly white male ... in light of
the information gleaned in this analysis, changes will be
made ... in order to assign members with more K-9
experience equally throughout the tours of duty. The
proposed reorganization of the squads must also take into
 4

account the racial make up of those squads.

Ten days later Lanier announced the reorganization of the
Canine Unit. As reorganized, there would be five squads, each
of which would work five 8-hour shifts per week. One squad
would work from 7:00 a.m. to 3:00 p.m., two from 3:00 p.m. to
11:00 p.m., and two from 11:00 p.m. to 7:00 a.m. The shifts
would rotate every four weeks, thereby eliminating the
permanent midnight shift. The eight members of Squad 2 were
distributed among the five new squads.

Prophetically, Lanier noted in announcing the
reorganization that “Change is never easy.” According to
Buethe, “Everybody [in the Unit] was upset. It was absolute
turmoil.” Several officers complained in their depositions about
the inconvenience associated with the rotating schedule. In
addition, because officers working overnight received a four
percent pay differential, the members of old Squads 1 and 2 --
who no longer worked permanently at night -- lost pay.

All eight members of Squad 2 filed a complaint of racial
discrimination with the EEOC. When the EEOC failed to take
action, the officers filed suit in the district court, claiming they
were victims of, inter alia, racial discrimination and retaliation,
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.

The district court entered summary judgment for the
District. 477 F. Supp. 2d 41 (2007). The court agreed with the
officers that the reorganization had a sufficiently adverse effect
to give them standing to complain about employment
discrimination, id. at 50, but rejected that claim on its merits
“because every officer in the Canine Unit was subjected to the
reorganization.” Id. at 49. The court also held the alleged
instances of retaliation were either insufficiently serious to
support a claim for retaliation or lacked evidentiary support. Id.
 5

at 53-54. The officers filed a timely appeal.

II. Analysis

The officers contend the district court erred in granting
summary judgment to the District on their discrimination claim
because a reasonable jury could conclude the MPD reorganized
the Canine Unit in order to ensure the squads were racially
balanced. They also renew their argument that various
disciplinary actions and other incidents constituted retaliation
for filing their complaints with the EEOC. We review the
judgment of the district court de novo. Salazar v. WMATA, 401
F.3d 504, 507 (D.C. Cir. 2005).

A. Discrimination

Title VII requires that “[a]ll personnel actions affecting
employees ... of the Government of the District of Columbia ...
shall be made free from any discrimination based on race.” 42
U.S.C. § 2000e-16(a); see also Borgo v. Goldin, 204 F.3d 251,
255 n.5 (D.C. Cir. 2000) (“Title VII places the same restrictions
on ... District of Columbia agencies as it does on private
employers”). We analyze first whether the reorganization was
a sufficiently adverse action to support a claim under Title VII;
we then consider whether the officers have adduced sufficient
evidence of racial discrimination to put their case before a jury.

1. Adverse action

An employment action does not support a claim of
discrimination unless it has “materially adverse consequences
affecting the terms, conditions, or privileges of [the plaintiff’s]
employment ... such that a reasonable trier of fact could find
objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,
1131 (D.C. Cir. 2002). Although “[p]urely subjective injuries,
such as dissatisfaction with a reassignment ... are not adverse
 6

actions, ... reassignment with significantly different
responsibilities[] or a significant change in benefits generally
indicates an adverse action.” Id. at 1130-31 (internal quotation
marks and ellipsis omitted).

The District challenges the district court’s determination
that the reorganization was an adverse employment action. It
contends the reorganization was not adverse because it did not
change the officers’ responsibilities or cause a substantial
change in their benefits.

We disagree. First, as the officers point out, they lost
income as a result of the reorganization; because they worked
fewer hours at night, they earned less of the pay differential for
night work. A nontrivial loss of pay is an “objectively tangible
harm.” See Russell v. Principi, 257 F.3d 815, 818-19 (D.C. Cir.
2001) (performance evaluation that resulted in “loss of a bonus
that is worth hundreds of dollars” an adverse employment
action).

Second, the officers were considerably inconvenienced by
the reorganization. They testified that switching to a rotating
shift from a permanent shift severely affected their sleep
schedules and made it more difficult for them to work overtime
and part-time day jobs. As the officers convincingly argue,
inconvenience resulting from a less favorable schedule can
render an employment action “adverse” even if the employee’s
responsibilities and wages are left unchanged. See Freedman v.
MCI Telecomms. Corp., 255 F.3d 840, 844 (D.C. Cir. 2001)
(holding transfer to night shift an adverse employment action
because “the change in hours interfered with [the plaintiff’s]
education”).

In sum, after the reorganization, the officers were paid less
for working a substantially more difficult schedule. Clearly,
 7

these harms are “objectively tangible,” not “[p]urely subjective.”
Forkkio, 306 F.3d at 1130-31.

2. Causation

To evaluate a claim of racial discrimination under Title VII,
we apply the analytical framework adopted by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 793
(1973), as restated and refined in Texas Department of
Community Affairs v. Burdine:

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
[adverse action].” Third, should the defendant carry this
burden, the plaintiff must then have an opportunity 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.

450 U.S. 248, 252-53 (1981) (quoting McDonnell Douglas, 411
U.S. at 802-04). In this case, because the District has advanced
several legitimate reasons for the reorganization, our concern is
not with whether the officers have made out a prima facie case.
Rather, the “central question” is whether the officers “produced
sufficient evidence for a reasonable jury to find ... the employer
intentionally discriminated against [them] on the basis of race.”
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008).

The district court entered summary judgment for the
District on two grounds, neither of which withstands scrutiny.
The first was that, because “every officer in the Canine Unit was
subjected to the reorganization,” no officer could claim
 8

employment discrimination. 477 F. Supp. 2d at 49. In order to
prove discrimination, however, a plaintiff need not demonstrate
that “a similarly situated person outside [his] protected class
[was] treated disparately.” Czekalski v. Peters, 475 F.3d 360,
365-66 (D.C. Cir. 2007); accord Mastro v. Potomac Elec. Power
Co., 447 F.3d 843, 851 (D.C. Cir. 2006) (“[W]e have expressly
rejected as immaterial a requirement that the plaintiff be [treated
differently from] an individual outside [his] protected class”);
George v. Leavitt, 407 F.3d 405, 412-13 (D.C. Cir. 2005)
(district court erred in holding plaintiff must show he “was
treated differently than similarly situated employees”); Stella v.
Mineta, 284 F.3d 135, 146 (D.C. Cir. 2002) (same).

The district court also opined, “The fact that concern about
race relations plays into decision making at a macro level when
developing policies on how to reorganize a police unit” does not
render the reorganization discriminatory. 477 F. Supp. 2d at 49.
We disagree: “[C]oncern about race relations,” however
important and legitimate a matter of policy it may be, does not,
under Title VII, make it permissible for an employer to subject
an employee to an adverse employment action because of his
race. See Taxman v. Bd. of Educ. of Twp. of Piscataway, 91
F.3d 1547, 1563 (3d Cir. 1996) (en banc) (holding a “non-
remedial affirmative action plan cannot form the basis for
deviating from the antidiscrimination mandate of Title VII”).

Nevertheless, we affirm the grant of summary judgment for
the District. Although race may have played a role in the
reorganization, we agree with the District that a reasonable jury
could not conclude, as the officers contend, that the
justifications for the reorganization proffered by the District
were but pretexts for racial discrimination.

There are two ways of establishing liability in a Title VII
case. A plaintiff may pursue a “single-motive case,” in which
he argues race (or another prohibited criterion) was the sole
 9

reason for an adverse employment action and the employer’s
seemingly legitimate justifications are in fact pretextual. See 42
U.S.C. § 2000e-2(a)(1). Alternatively, he may bring a “mixed-
motive case,” in which he does not contest the bona fides of the
employer’s justifications but rather argues race was also a factor
motivating the adverse action. See 42 U.S.C. § 2000e-2(m);
Fogg v. Gonzales, 492 F.3d 447, 453 (D.C. Cir. 2007)
(recognizing single-motive and mixed-motive theories as
“alternative ways of establishing liability”). In a mixed-motive
case, but not in a single-motive case, it is a partial affirmative
defense that the employer would have taken the same action
even “in the absence of the impermissible motivating factor”; in
such a case the plaintiff is entitled only to a declaratory
judgment, limited injunctive relief, and attorney’s fees. 42
U.S.C. § 2000e-5(g)(2)(B); Fogg, 492 F.3d at 451, 453.

In this case the officers proffered evidence indicating race
was a motivating factor behind the reorganization. As we have
seen, both Ederheimer and Buethe testified that they participated
in meetings with Lanier in which they each expressed the
concern that an almost all-white squad was responsible for a
disproportionate number of the dog bites caused by the entire
Canine Unit, and shortly before the reorganization, Lanier wrote
a memorandum to the same effect.

The officers might have had a compelling case had they
argued race was one of multiple motivating factors behind the
reorganization, but they did not. Rather, they brought a single-
motive case: According to the officers, race was the sole reason
for the reorganization, and the MPD’s nondiscriminatory
justifications were mere pretexts. That simply cannot be correct.

There were two aspects to the reorganization: The MPD
changed the composition of the squads, and it replaced the
permanent shifts with rotating shifts. The first aspect can be
explained as racially motivated, i.e., to break up the nearly all-
 10

white squad, but the second -- which was the aspect that
adversely affected the officers and gave rise to this action --
cannot. If the sole motivation for the reorganization had been to
ensure the squads were racially more balanced, then the MPD
could simply have switched some white members of Squad 2
with non-white members of other squads. It took the more
consequential steps, however, of changing the hours a shift
would work and of rotating the squads through the various shifts
-- steps entirely unrelated to the racial composition of the
squads. The officers, however, adduced no evidence whatsoever
of a causal link between race and those aspects of the
reorganization.

In contrast, the District presented three legitimate
justifications for changing the officers’ schedules. Lanier
testified that rotating the units would decrease the likelihood a
single squad would be responsible for a majority of the dog
bites, which occur disproportionately at night. She also said she
wanted to add a new sergeant to the Canine Unit, which by itself
necessitated some reorganization. Finally, Broadbent testified
that he believed the permanent midnight shift was undesirable
because the officers tended to become alienated from the
department.

The officers contend those justifications were intended to
cover up the MPD’s true motivation, but their theory is not
supported by the record. Recall that in her memorandum, Lanier
flatly stated that “[t]he squad involved in the majority of the
bites ... is predominantly white male” and that “[t]he proposed
reorganization ... must ... take into account the racial make up of
those squads.” To conclude race was her sole motive for
reorganizing the unit, therefore, one would have to believe
Lanier would make a significant change in every officer’s work
schedule in order to cover up a motivation that could not be
covered up; she had not only discussed her concern about race
openly with other senior officials in the MPD but even
 11

committed it to writing in an official document. Recall, too, that
Broadbent had proposed switching to a system of rotating shifts
years before the racial composition of Squad 2 became a
concern, which further weakens the officers’ theory that the
MPD’s justification were a pretext for racial discrimination. In
sum, the officers never contended this was a mixed-motive case,
and no reasonable jury could conclude the District’s
justifications were pretextual, leaving race as the sole motivation
for reorganizing the Unit; therefore, the district court properly
entered summary judgment for the District.

B. Retaliation

Title VII makes it unlawful for an employer to retaliate
against an employee for filing a charge of discrimination. See
42 U.S.C. § 2000e-3(a); Borgo, 204 F.3d at 255 n.5. An act of
retaliation gives rise to a separate cause of action under Title VII
if it is of sufficient significance that it “might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe R.R. v. White, 548
U.S. 53, 68 (2006) (internal quotation marks omitted); Rochon
v. Gonzales, 438 F.3d 1211, 1217-18 (D.C. Cir. 2006) (internal
quotation marks omitted).

The officers refer to numerous incidents they claim
constitute unlawful retaliation, ranging from unjustified
reprimands to unwarranted drug testing. Only one of the
incidents, however, has any documentary support: One month
after the officers filed their discrimination charges with the
EEOC, Lanier issued a memorandum announcing that because
“there have been several Instances [sic] when the Special
Operations Division has had little to no officers working on
Saturdays and Sundays,” she would require “two squads from
every Branch that have middle of the week days off” to work
weekends. The memorandum then stated that “[t]hese squads
will be formed strictly by seniority.”
 12

Two of the adversely affected officers contend this policy
constituted retaliation. They do not dispute, however, that the
Department had too few police officers working weekends or
that the policy was implemented strictly upon the basis of
seniority; nor do they give any reason to believe that Lanier’s
justification for the policy might have been pretextual. In sum,
they assert the policy was retaliatory, but they proffered no
evidence upon the basis of which a reasonable jury could agree.
See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999)
(“Because [the plaintiff’s] claim of retaliation rests entirely upon
a conclusory representation, the district court was right to
dismiss it”).

The officers’ other claims of retaliation relate to supposedly
undeserved disciplinary actions and other instances of
harassment, but all their allegations are vague and even those
that should have left a paper trail are unsupported by any
documentary evidence. “[A] mere unsubstantiated allegation ...
creates no genuine issue of fact and will not withstand summary
judgment.” Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)
(internal quotation marks omitted).

III. Conclusion

The officers presented no evidence to impugn the MPD’s
nondiscriminatory justifications for moving the Canine Unit
from permanent to rotating shifts. Their allegations of
retaliation are conclusory, vague, and for the most part
unsubstantiated. The judgment of the district court is therefore

Affirmed.