ROSEMARY M. COLLYER, District Judge.
Pamela Montgomery Beckham sues the National Railroad Passenger Corporation ("Amtrak") for alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. Ms. Beckham complains that she was discriminated against when Amtrak denied her tuition reimbursement for a master's degree program, web design software training, and her requests to work from home. Furthermore, Ms. Beckham complains that such actions were taken in reprisal for her participation in a Title VII class action against Amtrak. Having reviewed the parties' briefs, exhibits, and the entire record, the Court finds that none of these decisions rises to the level of a legally cognizable adverse action to support the allegations of disparate treatment discrimination. The allegation that Amtrak retaliated against Ms. Beckham also fails for lack of evidentiary support. Summary judgment will be granted to Amtrak.
Ms. Beckham is an African-American woman who has been employed by Amtrak since 1989. She was initially hired as a Train Attendant and has been promoted to a number of different positions over the years.
In 1998, Ms. Beckham joined a class-action lawsuit against Amtrak that charged the railroad with race discrimination; at the time, her name was Pamela Montgomery. See McLaurin v. Nat'l R.R. Passenger Corp., 311 F.Supp.2d 61 (D.D.C. 2004). The suit was resolved in November of 1999, through a consent decree which continued in force until 2004. Ms. Beckham received monetary relief from the decree
In December 2002, Mr. Nogar returned to the East Coast as the Senior Director for Amtrak's Department of Service Delivery Standards ("Service Delivery") in Wilmington. As a Senior Analyst in Service Delivery, Ms. Beckham worked directly for Mr. Nogar, starting in approximately 2002 and continuing until January 2005, when Monika Sloane joined Service Delivery as Director of Service Standards and Operations. Ms. Sloane supervised Ms. Beckham until late 2006, after which Ms. Beckham's position was moved to the District of Columbia. Ms. Beckham did not discuss the McLaurin class action with either Mr. Nogar or Ms. Sloane.
Ms. Beckham contends that Mr. Nogar knew of her involvement in the McLaurin class action as he had been Tom Chawluk's immediate supervisor. Pl.'s Mem. in Opp'n. ("Opp'n."), Ex. 1 ("Beckham Decl.") ¶ 3. Mr. Nogar's name does not appear in the McLaurin complaint. Mr. Nogar supervised a contract commuter operation for Amtrak in California from September 1999 through December 2002 and testified in deposition that he "didn't know anything about that class action suit until after I came back and assumed my job as senior director of service delivery in Wilmington." Def.'s Mem. in Support of Mot. for Summ. J. ("Def.'s Mem."), Ex. 3 ("Nogar Dep.") at 64-65. Mr. Nogar learned at some point that Ms. Beckham had been a plaintiff in McLaurin. Id. at 64. Mr. Nogar "didn't think [the suit] impacted me one iota because—certainly with respect to Ms. Beckham, because the class action suit would have occurred when she was employed as a service manager for Northeast Direct product line. I actually recruited Ms. Beckham. I gave her her first management job. And I also provided her with a lot of training in those days, and so I had no reason to believe that if she was part of that suit that it would have anything to do with me." Id. at 65-66.
The functions of Service Delivery are to create, publish, and update the Service Standards Manual for onboard and train service employees; publish service standards for station employees; administer the uniform contract nationwide; perform quality assurance work; and assist in the implementation of special service initiatives by doing train riding, as needed. As a Senior Analyst in Service Delivery, Ms. Beckham's chief duty was technical writing
Ms. Sloane has a graphics design background and was hired in part to develop a web-based site for Service Delivery employees, thus keeping work in-house and eliminating the costs of contracting with outside firms for design and management of an Internet site. Russell Fox joined Service Delivery in 2004 after a lateral move from a separate Amtrak department. He was Ms. Beckham's counterpart as a Senior Analyst and shared responsibility for technical writing and updating the Service Standards Manual. Mr. Fox came to Service Delivery with a background in web design. Mr. Nogar had a goal of developing an external website for Service Delivery employees, accessible from outside the Amtrak intranet. According to Mr. Nogar, Mr. Fox and Ms. Sloane were also tasked with designing and maintaining the external Amtrak website based on their previous work experience. Thus, Mr. Fox was responsible for the development and maintenance of the external website and Ms. Beckham was responsible for maintaining the intranet, or internal, site for Service Delivery employees. Their core responsibility, however, remained the Service Standards Manual. Both Ms. Beckham and Mr. Fox reported to Ms. Sloane.
Amtrak has an Educational Assistance Program whereby it approves tuition reimbursement to Amtrak employees for courses that are likely to assist the Amtrak employee in improving her skills relevant to the performance of her job duties. When Mr. Nogar became Ms. Beckham's direct supervisor in 2002, Ms. Beckham was pursuing a bachelor of arts degree from Cabrini College pursuant to the Educational Assistance Program. She took courses at Cabrini and received tuition reimbursement through 2004, when she earned her bachelor of arts degree.
In 2004, Amtrak reimbursed Ms. Beckham for the last part of her undergraduate degree, and Mr. Nogar separately authorized her attendance at an Effective Business Writing Course, Editing and Proofreading/Grammar Course and Technical Writing Course at The Business Development & Training Center in Malvern, Pennsylvania. Both parties agree that her courses at Cabrini and BDTC helped Ms. Beckham with her technical writing responsibilities. Ms. Beckham later applied for reimbursement for an Adobe Photoshop course she took at Villa Julie College, after she had completed the course. Mr. Nogar approved the tuition reimbursement but advised Ms. Beckham that she needed to submit such requests for approval in advance of a course so that Amtrak could assess whether the course would benefit her and Amtrak.
In July 2004, shortly after earning her bachelor's degree, Ms. Beckham asked Amtrak to approve tuition reimbursement
Ms. Beckham's request for tuition reimbursement for a master's degree was the first and only time Mr. Nogar had been involved in making a tuition reimbursement decision. Mr. Nogar never had another employee request reimbursement. Thus, he had never approved or denied tuition reimbursement for another Amtrak employee during his time with the railroad. It was also the first time that Amtrak denied one of Ms. Beckham's requests for tuition reimbursement. Amtrak typically receives tuition reimbursement requests from Amtrak employees nationwide for bachelor's degree courses, and Amtrak approves some requests and denies others. Amtrak does not receive tuition reimbursement requests as often for master's degree courses. In fact, for at least the last ten years, Amtrak has not approved a request for a master's degree reimbursement for a Service Delivery employee. Def.'s Mem., Ex. 7 (Stagger Aff.) ¶ 16.
Amtrak utilized Dreamweaver, a web-site design program, to develop the external employee Internet site. Amtrak does not utilize Dreamweaver to maintain the intranet site. Mr. Nogar approved a training course on Dreamweaver I for himself, Ms. Beckham, Mr. Fox, and Ms. Sloane. In March 2005, however, he authorized Mr. Fox and Ms. Sloane to take the Dreamweaver II course but did not attend himself or authorize Ms. Beckham to attend. Ms. Beckham contends that this training was appropriate and necessary for her job and that she was denied training because of her race and/or in retaliation for her prior class action involvement. Mr. Nogar testified that he did not authorize Dreamweaver II training for Ms. Beckham because graphic arts were not part of her job, she had no background or experience in graphic arts, and because the intranet site—where her information was stored—was not based on Dreamweaver.
At least at the relevant time, Amtrak had no official telecommuting policy to allow employees to work from home or outside the office. A supporter of telecommuting, Mr. Nogar asked his superior if telecommuting would be permissible. His suggestion was rejected because Mr. Nogar's
Ms. Sloane asked Mr. Fox to work from home on occasion when there was an ongoing intensive project so he could avoid the distractions of the office and work more efficiently. Mr. Fox did not ask to work from home; Ms. Sloane initiated his taking work home and had it approved by one of her superiors. Ms. Beckham contends that Mr. Fox admitted to her that he was allowed to work from home because of personal reasons, e.g., to meet a contractor, but Mr. Fox and Ms. Sloane both testified that he used vacation leave when he remained at home for personal reasons. See Beckham Dep. at 62-64; Sloane Dep. at 66-67; Def.'s Mem., Ex. 5 (Deposition of Russell Fox) at 36-37. This dispute is not material to resolution of the motion for summary judgment.
Ms. Beckham argues she was denied her requests to work from home which she attributes to race discrimination or retaliation. Ms. Beckham testified that she was denied the ability to work from home "each and every time" she requested it, which she recalls had been "about three times." Beckham Dep. at 59. However, she could only specifically recall one of the times, which occurred in "either 2005 or 2006," when she was denied the request to work from home on a day that an electrical company was scheduled to come to her house to evaluate fire damage. Id. at 59-61. Ms. Sloane denied the request. Id. at 61. Ms. Sloane, on the other hand, testified that on several occasions, Ms. Beckham called Ms. Sloane to inform her that she would be working at home and Ms. Sloane gave Ms. Beckham credit for those days and did not deduct the days working from home from her accrued vacation or sick leave. Sloane Dep. at 74-76. Ms. Beckham does not dispute these facts.
Ms. Beckham also requested and was allowed to change her work location on occasion.
In January 2006, Ms. Beckham filed a formal charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging disparate treatment based on race and/or retaliation for her previous involvement in protected activities, i.e., her participation in the
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion. . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Id.; Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. at 325, 106 S.Ct. 2548. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675-76. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
In this case, there are two distinct claims against Amtrak—race discrimination based on disparate treatment and retaliation due to prior protected activity. Each claim must be analyzed separately.
Title VII prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin in hiring decisions, in compensation, terms, and conditions of employment, and in classifying employees in a way that would adversely affect their status as employees. See 42 U.S.C. § 2000e-16. Thus, a disparate treatment claim is established when an employer treats a member of a protected group less favorably than similarly situated others due to an impermissible motive. The case at hand is a disparate treatment suit. Compl. ¶ 16.
There are two distinct manners in which to establish liability in a disparate treatment claim.
Nuskey v. Hochberg, Civ. No. 06-cv-1573, 730 F.Supp.2d 1, 3, 2010 WL 3153966 (D.D.C. July 26, 2010).
In a disparate treatment suit, the D.C. Circuit has observed that it is usually not necessary to determine, at summary judgment, whether an employee presented a prima facie case of discrimination per McDonnell Douglas. In fact, once the defendant has "asserted a legitimate, nondiscriminatory reason for the decision, the district court need not—and should not— decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas." Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008). At this point the McDonnell Douglas framework melts away and the district court must only resolve whether the plaintiff has "produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin." Brady, 520 F.3d at 494; see also Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d 13, 17 (D.C.Cir.2009) (noting that once defendant offers a non-discriminatory reason for employment action, "to survive summary judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory [or retaliatory] reason.") (quoting Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003)).
Title VII's anti-retaliation provision, on the other hand, makes it unlawful for an employer to "discriminate against any of his employees . . . because [s]he has opposed any practice" made unlawful by Title VII or "has made a charge, testified, assisted, or participated in" a Title VII investigation or proceeding. 42 U.S.C. § 2000e-3(a); see Steele v. Schafer, 535 F.3d 689, 695 (D.C.Cir.2008). To establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in Title VII protected activity; (2) she suffered from a materially adverse action; and (3) a causal connection exists between the protected activity and the employer's action. Holcomb v. Powell, 433 F.3d 889, 901-02 (D.C.Cir.2006) (citations omitted); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
Retaliatory acts are not limited to harms or acts "that are related to employment or occur at the workplace." Burlington N., 548 U.S. at 57, 126 S.Ct. 2405. However, the "antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Id. at 67, 126 S.Ct. 2405. A plaintiff must show that the employer's actions "would have been materially adverse to a reasonable employee." Id. at 57, 126 S.Ct. 2405. Furthermore, an employer's actions must be harmful to the point that they might dissuade a reasonable worker from making or supporting a
However, the legal analysis applicable to claims of retaliation under Title VII—specifically mixed-motive retaliation claims— is now a subject of debate among the circuit courts. Compare Smith v. Xerox, 602 F.3d 320 (5th Cir.2010) (allowing for mixed-motive retaliation claims), with Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962-63 (7th Cir.2010) (noting with approval McNutt v. Board of Trustees, 141 F.3d 706, 709 (7th Cir.1998), which prohibited mixed-motive retaliation claims). There is also an ongoing debate among the members of this Bench. Compare Nuskey, 06-cv-1573, 730 F.Supp.2d at 4-6; with Beckford v. Geithner, 661 F.Supp.2d 17, 25 n. 3 (D.D.C.2009). The question is whether Gross v. FBL Financial Servs. Inc., ___ U.S. ___, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), a case involving a claim of discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., affects the analysis of Title VII's retaliation provision.
A little background will put the current debate into focus. The Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), "addressed the proper allocation of the burden of persuasion" in Title VII cases "when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a `mixed-motives' case." Gross, 129 S.Ct. at 2347. Price Waterhouse first recognized mixed-motive cases and then established two important principles: (1) Title VII forbids discrimination "because of" gender, race, religion, etc., which means, when there are mixed motives, that an employee must prove by a preponderance of the evidence that discrimination was a substantial or motivating factor in the employer's decision, even though lawful motives also existed;
In response, Congress amended Title VII to "explicitly authoriz[e] discrimination claims in which an improper consideration was `a motivating factor' for an adverse employment decision." Gross, 129 S.Ct. at 2349; see 42 U.S.C. § 2000e-2(m) ("an unlawful employment practice is established when the complaining party demonstrates
When Mr. Gross sued FBL Financial Services, he alleged that age discrimination was a motivating factor in his job change/demotion; the district court gave jury instructions that were consistent with the plurality opinion in Price Waterhouse. See Gross, 129 S.Ct. at 2347 (noting that the jury was instructed to return a verdict for Mr. Gross "if he proved, by a preponderance of the evidence, that FBL `demoted [him] to claims projec[t] coordinator' and that his `age was a motivating factor' in FBL's decision to demote him."). The jury returned a verdict in Mr. Gross's favor. Id. The Eighth Circuit Court of Appeals reversed, finding that the jury instructions were infirm. Id. That Circuit followed the opinion of Justice O'Connor in Price Waterhouse, in which she had stated that "in order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision." Price Waterhouse, 490 U.S. at 276, 109 S.Ct. 1775 (O'Connor, J., concurring) (emphasis added). The Supreme Court vacated the Eighth Circuit's decision and remanded. Gross, 129 S.Ct. at 2352.
In a 5-4 opinion authored by Justice Thomas, the High Court could not "ignore Congress' decision to amend Title VII's relevant provisions but not make similar changes to the ADEA." Id. at 2349. Because of these new "textual differences between Title VII and the ADEA," the Court found itself prevented "from applying Price Waterhouse and Desert Palace [Inc., v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)] to federal age discrimination claims." Id. at 2349 n. 2. "The ADEA provides, in relevant part, that `[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.'" Id. at 2350 (quoting 29 U.S.C. § 623(a)(1)) (emphasis in original). "[T]he ordinary meaning of the ADEA's requirement that an employer took adverse action `because of' age is that age was the `reason' that the employer decided to act." Id. Thus, the Supreme Court concluded that to "establish a disparate-treatment claim under the plain language of the ADEA . . . a plaintiff must prove that age was the `but-for' cause of the employer's adverse decision." Id. In the end, "the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the `but-for' cause of the challenged employer decision." Id. at 2351.
Given the similarity between the language in the ADEA ("because of") and the retaliation provision of Title VII ("because"), "the Gross reasoning could be applied
Judge Jolly filed a dissent in Smith v. Xerox Corp. He applied Gross to conclude that "the mixed-motive analysis is no longer applicable outside of Title VII discrimination, and consequently does not apply to this retaliation case" under Title VII. Id. at 336 (Jolly, J., dissenting). Judge Jolly wrote:
Id. at 337-38 (Jolly, J., dissenting) (emphasis in original) (citations omitted). Judge Jolly invoked the reasoning of the Seventh Circuit which has "twice explained, after Gross, [that] `unless a statute . . . provides otherwise, demonstrating but-for causation is part of the plaintiff's burden in all suits under federal law.'" Id. at 337 (emphasis in original) (quoting Serwatka, 591 F.3d at 961) (ADA);
Congress approved the "motivating factor" analysis from Price Waterhouse when
This Court concludes that § 2000e-2(m) means just what it says: when an impermissible motive animates "any employment practice," even though permissible motives were also involved, "an unlawful employment practice is established." 42 U.S.C. § 2000e-2(m) (emphasis added). There can, therefore, be mixed-motive retaliation cases despite the "because" language in the statute.
This stands in contrast to the situation in which an employee alleges disparate treatment based on a single motive. As indicated above, an employer can defend by advancing a legitimate, non-discriminatory reason and the employee bears the ultimate burden of proving pretext. In such a case, the employee/plaintiff does not need to prove motive. The Gross analysis fits such a single-motive case: an employee must prove that "but-for" his or her protected status, the employer would not have taken the adverse action. This is commonly accomplished by demonstrating that the so-called legitimate, non-discriminatory reason given by the employer is pretextual, leading to an inference of illegal discrimination. This single-motive analysis and its "but-for" burden of persuasion can apply to both disparate treatment and retaliation cases, even though the scope of actions that may be retaliatory is broader.
The fact that Price Waterhouse has not been overruled is not determinative, because, as amended, Title VII does not present an either/or choice. Congress has decreed that a mixed motive infects any employment practice barred by Title VII just as straight-up discrimination does. The differences lie in the nature of the proofs and in the remedies.
Ms. Beckham alleges that "because of her race" and "because of her opposition to actions made unlawful by Title VII," Amtrak discriminated against her in the ways discussed above. See Compl., Counts I, II. These allegations and the evidence presented by the parties on summary judgment demonstrate that this is a "single motive" Title VII case. Therefore, to avoid summary judgment in Amtrak's favor, Ms. Beckham must present facts from which a reasonable jury could conclude that "but-for" her race, Amtrak would not have acted in the way she claims.
In order to constitute an adverse action that is subject to redress under Title VII, an employee must experience, due to her protected status, a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). "[M]ere idiosyncracies of personal preference are not sufficient to state an injury. Purely subjective injuries, such as dissatisfaction with a reassignment, or public humiliation or loss of reputation, are not adverse actions." Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C.Cir.2002) (internal citations omitted). Therefore, "[a]n employment action does not support a claim of discrimination unless it has `materially adverse consequences affecting the terms, conditions, or privileges of [a plaintiff's] employment . . . such that a reasonable trier of fact could find objectively tangible harm." Ginger, 527 F.3d at 1343 (omission in original) (quoting Forkkio, 306 F.3d at 1131).
Despite the admonition in Brady v. Office of the Sergeant at Arms that district courts should not pause to examine whether a plaintiff established a prima facie case when an employer offers a legitimate, non-discriminatory reason for its actions, Amtrak protests strongly that none of the alleged "adverse actions" identified by Ms. Beckham was sufficiently serious to support a discrimination claim or to have had any harmful impact upon her at all. Therefore, the Court will analyze whether Ms. Beckham's claims involve an adverse employment action. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir. 2008) (proceeding directly to the Brady analysis may be premature and courts should first assess whether there is evidence of an adverse action where that fact is contested).
Ms. Beckham contends she suffered three adverse actions: denial of tuition reimbursement for her master's degree courses; denial of Dreamweaver II training; and denial of the ability to telecommute, while other White employees were allowed such opportunities. The record does not support these allegations. There is no evidence to support the entirely subjective argument that Amtrak's decisions to deny tuition reimbursement, deny Dreamweaver II training, or deny requests to work from home imposed such materially adverse consequences that one or more of such decisions affected the terms, conditions or privileges of her employment. See Ginger, 527 F.3d at 1343 (noting that an employment action does not support a claim of discrimination unless it has materially adverse consequences affecting the terms, conditions, or privileges of employment).
Ms. Beckham argues that she worked as Program Manager over the Amtrak Transportation Department Review System, a large IT program, and that one of the requirements of her position under the "Essential Functions" of the job description was that she "have the capability of functioning as a website administrator." Opp'n., Ex. 2 (Position Description). Further, she contends that the ability to function competently as a website administrator and have proficiencies in HTML, FrontPage and other software programs was a requirement of the position. See Opp'n. at 8, id. Thus, Ms. Beckham felt that the master's degree program was connected to her duties.
It is undisputed that Amtrak paid tuition reimbursement for Ms. Beckham's Bachelor of Arts degree while Mr. Nogar
Ms. Beckham also contends that denial of Dreamweaver II training was an adverse employment action. Amtrak argues that none of Ms. Beckham's duties required knowledge of Dreamweaver II, which is applicable to the functions of an external website, as Ms. Beckham's primary function was technical writing and her auxiliary function was maintaining the intranet. Def.'s Mem. at 21-22; Nogar Dep. at 95-96. The Court recognizes that Ms. Beckham and Amtrak disagree as to the relevance of Dreamweaver II to Ms. Beckham's duties. But "denial of training opportunities is only actionable if there is a resultant `material change . . . in employment conditions, status, or benefits.'" Dorns v. Geithner, 692 F.Supp.2d 119, 133 (D.D.C.2010) (quoting Lester v. Natsios, 290 F.Supp.2d 11, 29 (D.D.C.2003)). Therefore the "denial of training may rise to the level of an adverse employment action," Freedman v. MCI Telecomm. Corp., 255 F.3d 840, 845 (D.C.Cir.2001), but the denial must "result[] in a tangible harm." Everson v. Medlantic Healthcare Group, 414 F.Supp.2d 77, 84 (D.D.C.2006). The alleged harm on which Ms. Beckham focuses is the supposed different treatment of two similarly situated co-workers: Ms. Beckham and Mr. Fox. But Ms. Beckham and Mr. Fox were not similarly situated because he was developing a new Internet site and she was overseeing the content on an existing intranet. In addition, Ms. Beckham fails to show any legally cognizable adversity that she suffered stemming from denial of access to one particular training course. It is clear that Ms. Beckham is unhappy that she did not attend Dreamweaver II, but there is an absence of evidence from which a reasonable jury could find tangible harm.
Ms. Beckham contends that Amtrak denied her the ability to telecommute approximately three times while others who were White were given this benefit. See Beckham Dep. at 59 ("Q. How often did you request [to work from home]? A. About three times."). Ms. Beckham averred that she "was never allowed to telecommute but believes Russell Fox was." Pl.'s Disputed Facts ¶ 6; Beckham Dep. at 63-64. Ms. Beckham further testified in deposition that Mr. Fox admitted to her that he was allowed to work from home because of personal business. Beckham Dep. at 64. However, Ms. Beckham did not contest Amtrak's arguments concerning her work-at-home record in her opposition brief and the Court considers the matter conceded. See LcvR 7(h) (facts
Ms. Beckham also contends that Amtrak retaliated against her for engaging in protected activity due to her involvement as a named plaintiff in the 1998 McLaurin class action. It is undisputed that her involvement in a class action constituted protected activity. See Def.'s Mem. at 23 n. 8. Measured from when the last order dismissing McLaurin was entered on November 26, 2004, Amtrak's challenged actions in July 2004 and the Spring of 2005 might be close enough in time to support an inference of discrimination. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (finding that a plaintiff may rely on temporal proximity to prove causation, but such proximity must be "very close").
Ms. Beckman relies on the same three denials of tuition reimbursement, Dreamweaver II training, and telecommuting to allege retaliation based on her protected conduct. The legal questions are (1) whether Ms. Beckham has presented evidence from which a jury could conclude that her prior protected activity was the "but-for" reason for these Amtrak decisions, i.e., were she not a McLaurin class member, Amtrak would have approved these requests, see Gross, 129 S.Ct. at 2353; and (2) whether Ms. Beckham has presented evidence from which a jury could conclude that a reasonable employee would have found the denials of her requests materially adverse so as to dissuade such employee from future protected activity. See Burlington N., 548 U.S. at 68, 126 S.Ct. 2405.
Ms. Beckham offers no facts to support her contention that the denial of tuition reimbursement and Dreamweaver II training was "because of" her participation in a class action that settled in 1999 with a consent decree that continued in effect until 2004. Instead, she accuses Amtrak and Mr. Nogar of "mendacity" based on the 2005 Position Description for a job that Ms. Beckham, by affidavit, says was hers at some unspecified time but which her EEOC Charge, her Complaint, and her deposition testimony demonstrate was not her job at the relevant time. See Compl. ¶¶ 4, 6; Beckham Dep. at 14; Def.'s Mot. to Dismiss [Dkt. #5], Ex. 1 (EEOC
Amtrak has also proffered a legitimate non-discriminatory reason for its denial of Dreamweaver II training: Ms. Beckham's work duties did not include the Internet website and the intranet, for which she was responsible, was not based on Dreamweaver. Except for her accusation of "mendacity" connected to the irrelevant Position Description, Ms. Beckham offers nothing to support her burden of persuasion that her involvement in McLaurin was the "but-for" reason that Amtrak denied her a second Dreamweaver training course. Notably, Ms. Beckham makes no argument that the Dreamweaver II training was relevant to her position as a Senior Analyst, the job she actually held at the relevant time. Summary judgment is properly granted against a party who "after adequate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Ms. Beckham relies solely on allegations of mendacity and conclusory statements, which are insufficient to withstand summary judgment. Greene, 164 F.3d at 675. The Court recognizes there could well be fact patterns in which the denial of tuition reimbursement and/or specialized computer training would be materially adverse and could dissuade an employee from further protected conduct. But no such fact pattern is shown here.
Ms. Beckham further, and lastly, offers no basis to conclude that her membership in the McLaurin class played any part in Amtrak's request to Mr. Fox that he work at home occasionally on a project requiring a quiet work environment or its denial of her request to work from home on one to three occasions, much less that "but-for" her participation in the lawsuit, Mr. Fox would have been required to work in a noisy area with interruptions and/or that she would have been able to stay at home. Certainly, the occasional denial of a request to work from home, when other requests from the same employee have been granted, does not constitute a materially adverse action. As Ms. Beckman makes no rejoinder to Amtrak's arguments on these points, they are conceded. See LCvR 7(h); FDIC v. Bender, 127 F.3d 58. For these reasons, Ms. Beckham's claims of retaliation fail.
The Court will grant Amtrak's motion for summary judgment [Dkt. # 35]. The direct discrimination claim fails for lack of a true adverse action. The retaliation claim fails for lack of evidence. A memorializing Order accompanies this Memorandum Opinion.
Id., at 339-40 (Jolly, J. dissenting) (emphasis in original).
42 U.S.C. § 2000e-3(a) (emphasis added).
Beckham Dep. at 53.
