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.
3
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
4
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
5
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.
14
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.
16
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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