ROYCE C. LAMBERTH, Chief Judge.
Plaintiff Patricia Brooks alleges that her employer, the United States Merit Systems Protection Board ("MSPB" or "the Board"), discriminated against her on the basis of her race and gender and retaliated against her for asserting her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Brooks has brought an official-capacity suit against MSPB Chairman Susan Tsui Grundmann,
The Board has moved for a judgment on the pleadings pursuant to Federal Rule of
A motion for summary judgment should be granted only "if the movant shows that there is no 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). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant must support its factual positions by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If the moving party meets its burden, the non-moving party must then establish that a genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To meet its burden, the non-moving party must show that "the evidence is such that a reasonable jury could return a verdict" in its favor. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine dispute for trial. See FED.R.CIV.P. 56(c)(1), (e); Celotex, 477 U.S. at 322 n. 3, 106 S.Ct. 2548. If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.
On this motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in her favor. See Venetian Casino Resort, LLC v. E.E.O.C., 530 F.3d 925, 929 (D.C.Cir. 2008).
For more than twelve years, Patricia Brooks has worked in the Office of Information Resources Management of the United States Merit Systems Protection Board, an independent, quasi-judicial agency that enforces the merit-based pay and promotion provisions of federal civil service laws. Pl.'s Mem. in Opp. to Summ. J. ("Pl.'s Opp."), Ex. 1 (Aff. of Patricia Brooks (May 21, 2007)) ("Brooks Aff."), at 2. Tommy Hwang became the director of that office in 2005. Pl.'s Opp., Ex. 13 (Dep. of An-Ming ("Tommy") Hwang (June 16, 2009)) ("Hwang Dep."), at 72. Nick Ngo was his deputy and Brooks's direct supervisor. Id. at 135-36. Brooks is a black woman. Hwang and Ngo are Asian men.
Brooks alleges that, in early 2005, Ngo told her that people in the office were questioning whether she deserved her place on the civil service pay scale, Brooks Aff. at 11, and that, in March and April of that year, Hwang and Ngo criticized her performance on several projects. Id. at 8. In May of 2005, Brooks gave a presentation that was very poorly received by Hwang. Id. at 2; Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. 3 (Aff. of An-Ming Hwang (May 8, 2007)) ("Hwang Aff."), at 3. Although there is some dispute about
In early 2006, Ngo suggested that Brooks "beef up" her weekly status reports. Id. at 9. Later that year, Brooks alleges, he demanded that she provide him with more detailed reports on her progress at work than he demanded from other employees. Id. Ngo's mid-year review of Brooks stated that she "has tendencies to underestimate effort, issues, and expectations that ha[ve] resulted in missed target dates for projects." Pl.'s Opp., Ex. 24, at 9 (Fiscal Year 2006 Mid-Year Performance Feedback and Comments (Apr. 21, 2006)). In late August 2006, Brooks contacted Julio Matta, the director of the equal employment opportunity office for the MSPB, to express her concern that she would be unreasonably held to an arbitrary deadline that she could not meet on a major project. Brooks Aff. at 3. In late October, Ngo refused to sign off on Brooks's time sheet, and questioned whether she had worked all of the hours that she claimed on a certain day. Id. Brooks again contacted Matta. Id. At a meeting held to discuss Brooks's time reporting on the day in question — and attended by Brooks, Hwang, Matta, and Ngo — Ngo indicated that he had recently been keeping a close watch on Brooks's attendance and her reported hours. Id. at 3-4. Brooks was ultimately paid for the time in question. Def.'s Mot., Ex. 6 (Aff. of Nick Ngo (May 8, 2007)) ("Ngo Aff."), at 3.
Several days after that meeting, Ngo conducted Brooks's fiscal-year-end performance evaluation. According to Brooks, at the evaluation meeting Ngo said that she had difficulty relating to her peers, though he only mentioned a single example — a disagreement between Brooks and a co-worker in which, as Brooks recalls, Ngo had appeared to side with her. Brooks Aff. at 5-6. Ngo also criticized her for being late on the project referenced above, even though Brooks believed that the real deadline had not yet passed. Id. at 10-11. In the written evaluation, Ngo recorded that Brooks "failed to provide timely weekly activity reports on numerous instances even though management reminded her to do so numerous times" and "did not provide acceptable reasons for the delays." Pl.'s Opp., Ex. 24, at 10 (Performance Evaluation of Patricia Brooks, Oct. 1, 2005-Sept. 30, 2006). He also wrote that Brooks "needs to work on her listening skills as well as being less argumentative with colleagues." Id. at 11. Ngo gave Brooks an overall rating of "Minimally Successful" for fiscal year 2006. Id. Brooks believed that this evaluation was unwarranted. Brooks Aff. at 5.
On February 20, 2007, Brooks filed a formal complaint with the Board's equal employment opportunity office.
On February 29, 2008, Brooks filed a second formal complaint with the Board's equal employment opportunity office.
On May 1, 2008, the day that the reorganization ultimately took effect, Brooks requested a meeting with Hwang and Ngo to discuss her new role. Second Hwang Aff. at 2. She suggested that she be given responsibility for quality assurance and configuration management rather than document migration and macros. Id.; Second Brooks Aff. at 3-4. Hwang replied that he would consider her suggestions if she completed her current projects "fairly quickly." Second Hwang Aff. at 2. Hwang, Ngo, and Brooks met again on May 14, 2008 to discuss Brooks's objections to her new role and suggestions for other duties
At the end of that fiscal year, Ngo gave Brooks a performance appraisal of "Unsatisfactory." Def.'s Mot, Ex. 4, at 6-13 (Performance Evaluation, Patricia Brooks, Oct. 1, 2007-Sept. 30, 2008). The evaluation was especially critical of her teamwork and her ability to complete projects successfully and on time. Id. Ngo placed Brooks on a Performance Improvement Plan, which she successfully completed. Id., Ex. 10, (Mem. from Nick Ngo to Patricia Brooks (Dec. 11, 2008)); id., Ex. 11, (Mem. from Nick Ngo to Patricia Brooks (May 7, 2009)). She remains employed with the Board. Brooks Aff. at 2.
"Title VII prohibits federal agencies from discriminating against their employees based on race or sex," McGrath v. Clinton, 666 F.3d 1377, 1379 (D.C.Cir. 2012), "and from retaliating against them for asserting their rights under Title VII." Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C.Cir.2011).
An employee subjected to no more than the "ordinary tribulations of the workplace" does not have a cause of action under Title VII. Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (quoting B. LINDEMANN & D. KADUE, SEXUAL HARASSMENT IN EMPLOYMENT LAW 175 (1992)). For instance, non-selection for a desirable position, assignment to undesirable duties, sharing a small office, and being criticized by supervisors do not establish a hostile work environment. Veitch v. England, 471 F.3d 124, 130-31 (D.C.Cir.2006); cf. Singletary, 351 F.3d at 528 (remanding to the district court for a determination on the merits of a hostile work environment claim where an employee was "intentionally assigned ... to work in an unheated storage room for over a year and a half" even though more suitable offices were available). Even conduct that "reflect[s] poorly upon the professionalism" of the defendant's employees may not be severe and pervasive enough to create an abusive environment. Barbour v. Browner, 181 F.3d 1342, 1348 (D.C.Cir. 1999); cf. Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.1995) (holding that an "incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for purposes of Title VII liability").
Brooks alleges that she has been unjustly criticized, marginalized, and humiliated at work over a period of many years. She points to the incidents in which Hwang and McDermott raised their voices during meetings, to her placement in a "Team of One" for four months in 2008, to the negative performance appraisals that she periodically (and, she argues, unjustly) received, and to smaller instances of allegedly disrespectful behavior that are not recited above.
No reasonable jury could find that this conduct was so severe and pervasive as to alter the conditions of Brooks's employment. With the possible exception of the meeting at which Hwang allegedly threw a notebook in her direction, none of the conduct that Brooks describes was physically
A hostile work environment claim must be evaluated on the "totality of the circumstances." Baloch, 550 F.3d at 1201. Viewing the evidence in its totality and in the light most favorable to Brooks and drawing all reasonable inferences in her favor, as a court must on a motion for summary judgment, see Venetian Casino, 530 F.3d at 929, this Court concludes that no reasonable jury could find that Brooks has been subjected to a hostile work environment within the meaning of Title VII. Rather it is plain that she has been subjected to no more than the "ordinary tribulations of the workplace." Faragher, 524 U.S. at 788, 118 S.Ct. 2275. The Court therefore grants summary judgment in favor of the defendant.
This is not "a court of personnel appeals," Nurriddin, 382 F.Supp.2d at 107 (quoting Alfano, 294 F.3d at 377), and it does not determine whether employees have been treated fairly, but only whether they have been discriminated or retaliated against in violation of Title VII. Because no reasonable jury could conclude that Brooks has suffered such discrimination or