JAMES E. BOASBERG, District Judge.
For almost twenty years, Plaintiff Ali Nessar was employed as a correctional officer with the District of Columbia Department of Corrections. In October 2008, however, he claims that he was forced to resign as a result of discrimination based on his race, religion, and national origin. Having filed an administrative complaint and having been issued a right-to-sue letter, Plaintiff filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging disparate treatment (Count I), hostile work environment (Count II), and retaliation (Count III). The District now moves for summary judgment, challenging both the timeliness of the suit and its merits. Because the Court finds that the non-promotion claims in Count I are untimely and that Plaintiff has failed to raise a genuine issue of material fact as to any of his remaining claims, it will grant Defendant's Motion.
For the most part, the evidence in this case is undisputed. As Nessar is the nonmoving party, the Court will, in discussing the state of the record, credit his evidence and draw justifiable inferences in his favor.
Plaintiff began his lengthy career as a correctional officer in the District of Columbia when he was hired by the Department of Corrections in March of 1988. See Opp., Exh. 1 (10/25/12 Deposition of Ali Nessar (Nessar Dep. I)) at 15:7-17. Over the next ten years, Nessar passed numerous tests and was promoted to Corporal, Sergeant, and ultimately Lieutenant. See id. at 17:6-18:12. In 2001, however, he was released from his position in what the District claimed was a reduction in force. See id. at 25:11-19. Nessar was the only employee with the rank of Lieutenant who was released during the reduction, and
During both periods of employment with the District, Nessar claims that he was subjected to discrimination on the basis of his race (non-black), religion (Muslim), and national origin (Afghani). See Nessar Dep. II at 5:1-9, 6:13-17. This discrimination, he contends, grew worse following the terrorist attacks of September 11, 2001. See Nessar Dep. I at 79:11-22. From 2003 to 2008, Nessar contends he was passed over for numerous promotions that ultimately went to less-qualified employees who were black, Christian, and native-born. See Nessar Dep. II at 10:4-12:17. The specifics of what these promotions were and when they were available will be discussed in greater detail below. See Section III.A.1, infra.
In addition to being passed over for promotions, Nessar maintains that:
See id. at 8.
Two events in October 2008 punctuate the ongoing abuses Nessar experienced. First, while speaking to his superior (and friend) Captain Murray Jones, Nessar complained that the Department "give[s] their own relatives and friends in the same race and culture and color and nationality [promotions]. I don't think I don't have no future in this department." See Nessar Dep. II at 50:15-18; see also id. at 34:14-17. Several minutes later, Jones passed along this comment to Captain Nora Talley, and "both of them laughed." See id. at 51:2. Nessar understood their laughter as an acknowledgment by his superiors that he had no future there. See id. at 51:1-3. Second, later that month Nessar's supervisors threatened to fire him for refusing to sign an incident report related to an issue with an inmate. See Nessar Dep. I at 28:10-32:15; Nessar Dep. II at 25:10-27:13. According to Nessar, his supervisors concocted this dispute as part of a plan to oust him from the Department. See id. As a result of these incidents, Nessar tendered his resignation, effective October 29, 2008. See Opp., Exh. 5 (Resignation Letter).
On April 24, 2009, Nessar filed a charge of discrimination with the D.C. Office of Human Rights, which was cross-filed with the Equal Employment Opportunity Commission. See Opp., Exh. 4 (Charge of Discrimination). The Charge alleged that he had "been subjected to a disparate treatment and retaliated against on the bases of race (Asian), religion (Muslim) and national
Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).
When a motion for summary judgment is under consideration, "[t]he evidence of the nonmovant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor." Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C.Cir.2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C.Cir.1998) (en banc). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir. 2007).
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant is required to provide evidence that would permit a reasonable jury to find in its favor. Laningham v. Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the nonmovant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505.
In moving for summary judgment, the District of Columbia contends that all three of Plaintiff's counts are infirm. The Court agrees.
Plaintiff's disparate-treatment claim rests on two distinct types of discrimination: being passed over for promotions and being constructively discharged. See Compl., ¶¶ 22-26. Because the facts and defenses relevant to each are unrelated, the Court will discuss them separately.
Plaintiff contends that "[d]uring his 20 year tenure" with the District, he was discriminated against because Defendant failed to promote him, instead promoting "others with lesser qualifications and less seniority that were not members of his protected group." See id., ¶ 7. Any analysis of Plaintiff's failure-to-promote claims must be divided temporally between acts before June 9, 2008, and acts after.
Defendant first maintains that any claims stemming from promotions that occurred before June 9, 2008, are time barred because they involve discrete acts outside of the 300-day window from the date Plaintiff filed his charge of discrimination (April 24, 2009). See Mot. at 6-7 (citing 42 U.S.C. § 2000e-5(e)(1)); Reply at ECF pp. 1-4. Plaintiff concedes that such claims would be untimely under 42 U.S.C. § 2000e-5(e)(1), but contends that the timeliness issue can be cured through application of the continuing-violations doctrine. See Opp. at 8.
This doctrine, however, does not apply in a failure-to-promote case. The Supreme Court made clear in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), that courts should not treat individual incidents of alleged discrimination as part of a discriminatory pattern for exhaustion purposes: "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination ... constitutes a separate actionable `unlawful employment practice.'" Id. at 114, 122 S.Ct. 2061 (emphasis added). Unlike hostile work environments, for example, which may involve continuing violations, failure to promote does not trigger this doctrine. See Nguyen v. Mabus, 895 F.Supp.2d 158, 172-73 (D.D.C.2012) (rejecting application of continuing-violation theory in failure-to-promote context). Plaintiff's failure-to-promote claims for positions pre-dating June 9, 2008, are thus time barred.
Turning next to the later claims, the Court must first determine whether any promotions were actually available after June 9. See Yarber-Butler v. Billington, 53 Fed.Appx. 120, 120 (D.C.Cir.2002) (per curiam) (a failure-to-promote claim will fail "if there is no open position" to be had); see also 45B Am.Jur.2d Job Discrim. § 788 (2013) ("In order to prove discrimination in the making of a promotion decision, there must have been a position open."). Having scoured the record, the Court can find no evidence that the District promoted anyone from Lieutenant to Captain during this period.
In support of his contention that Defendant promoted numerous, less-qualified individuals over him, Plaintiff directs the Court to his deposition testimony. See Opp. at 10. None of the promotions he points to, however, occurred between June 9, 2008, and Plaintiff's resignation that October. See Nessar Dep. I at 64:22-65:1 (Harper promoted from Captain to Major in 2003), 48:5-49:21 (Nelson promoted to Captain in 2007); 51:20-52:18 (McDonald Haynes promoted to Captain in 2007), 54:10-55:3 (Bishop promoted to Captain in 2007), 59:7-60:10 (Gray promoted to Captain in 2007), 60:18-61:19 (Talley promoted to Captain before 2007), 65:5-15 (Watford promoted to Captain in 2007), and 73:5-10 (Kolley promoted to Captain in 2003).
Plaintiff had an opportunity through discovery to develop factual support for the allegations in his Complaint, yet he has failed to do so. With no evidence that any positions were filled in the June-October 2008 time-frame, no genuine issue of material fact remains to justify a denial of summary judgment with respect to the failure-to-promote claims.
Plaintiff also alleges a constructive-discharge claim in Count I. See Compl., ¶ 18 ("After being subjected to the consistent discrimination, hostile work environment, retaliation and disparate treatment, Plaintiff realized that after he was told he had no future there, that he had no choice but to tender his resignation on October 28, 2008, knowing that he could not be moved
"Under the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?" Pa. State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (citation omitted); see also Aliotta v. Bair, 614 F.3d 556, 566 (D.C.Cir.2010) ("The test for constructive discharge is an objective one: whether a reasonable person in the employee's position would have felt compelled to resign under the circumstances."). A finding of intentional discrimination, furthermore, is a necessary predicate for a Title VII claim based on constructive discharge. Bishopp v. Dist. of Columbia, 788 F.2d 781, 790 (D.C.Cir. 1986); see also Peters v. Dist. of Columbia, 873 F.Supp.2d 158, 199 (D.D.C.2012) (discussing necessary causal connection between employees' resignations and employer's discriminatory acts).
While the allegations in the Complaint attempt to lump together all acts of discrimination as a basis for the constructive discharge, the Court will focus its inquiry here on the two events of October 2008, as Plaintiff unequivocally testified that he resigned as a result of those incidents. See Nessar Dep. I at 37:14-18. The first involves conduct that was not so intolerable that a reasonable person would have felt compelled to resign. The second could support a constructive-discharge claim, yet it also fails as it involves no discriminatory animus.
First, as related earlier, while speaking to his friend and superior Captain Jones, Nessar complained that the Department "give[s] their own relatives and friends in the same race and culture and color and nationality [promotions]. I don't think I don't have no future in this department." See Nessar Dep. II at 50:15-18; see also id. at 34:14-17. Several minutes later, Jones mentioned this comment to Captain Talley, and "both of them laughed." See id. at 51:2. Nessar believed their laughter demonstrated he was unlikely to be promoted at the Department of Corrections. See id. at 51:1-3. A constructive-discharge claim cannot be based on evidence as flimsy as the mere laughter of superiors in a seemingly friendly conversation. See, e.g., Quarless v. Bronx Lebanon Hosp. Ctr., 75 Fed.Appx. 846, 848 (2d Cir.2003) (complaints of mistreatment by colleagues insufficient to support constructive-discharge claim); Sanchez v. Gen. Growth Mgmt. Co., No. 96-21070, 1998 WL 44520, at *2 (5th Cir. Jan. 23, 1998) (unpublished) ("considerable unpleasantness" between plaintiff and employer, including being "verbally attacked, belittled and `nick-pick[ed]'" could not support constructive-discharge claim).
The second incident occurred shortly after this and involved a dispute Nessar had with his superiors regarding his refusal to sign paperwork related to an incident with an inmate. See Nessar Dep. I at 36:14-37:18. Nessar refused to sign the forms because he felt that his superiors were "trying to find one way or the other to get rid of [him]." Nessar Dep. II at 26:12-20. Major Harper told Nessar that "if he [refused to sign] it next time," he'd be written up and be fired. See Nessar Dep. I at 37:4-13 ("Major Harper ... said next time write Lieutenant Nessar [up], I'm firing him and taking money out of [his] pocket.").
While a threatened termination may theoretically support a wrongful-discharge claim, see, e.g., Williams v. Johnson, 870 F.Supp.2d 158, 166 (D.D.C.2012),
Because Plaintiff has failed to provide any evidence to suggest that Harper's threat of termination was discriminatory — i.e., that it was based on his race, religion, or national origin — Defendant is entitled to judgment on this part of Count I as well.
In Count II, Plaintiff alleges that he was subjected to a hostile work environment in which he was "constantly harassed with reprimands based on false allegations," "constantly threatened to be terminated," and "told he had no future with Defendant... [and] would never be promoted." See Compl., ¶¶ 28-31. Defendant contends that there is no evidence that the complained-of conduct was sufficiently egregious to support his claim. See Reply at 8; see also Mot. at 11-12. The Court agrees and will grant Defendant's Motion on this count.
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, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). "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." Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).
"The Supreme Court has made it clear that `conduct must be extreme to amount to a change in the terms and conditions of employment.'" George v. Leavitt, 407 F.3d 405, 416 (D.C.Cir.2005) (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275). By adhering to these standards, the Court thereby "ensure[s] that Title VII does not become a general civility code" that involves courts in policing "the ordinary tribulations of the workplace." Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (citation and internal quotation marks omitted). Although it did not apply to the failure-to-promote claim, the continuing-violation doctrine does permit the Court to look at conduct that took place outside of the statute of limitations period for the hostile-work environment claim. See Keohane v. United States, 669 F.3d 325, 329 (D.C.Cir. 2012); see also Earle v. Dist. of Columbia, 707 F.3d 299, 306 (D.C.Cir.2012).
Plaintiff bases his hostile-work-environment count on the following purported evidence:
Id. at 20-21 (citing Nessar Dep. II at 37:20-38:15, 40:4-9).
The Court need not decide whether such cumulative evidence could ever substantiate a hostile-work-environment claim, however, because the record simply does not support Plaintiff's characterization of the facts. For instance, there is no evidence that Nessar was assigned to "difficult and dangerous work zones." See Opp. at 20 (no citation to record). Although Nessar describes in detail his frustrations with his assignment to a specific unit — and his feeling that his requests for backup at times would be ignored — the difficulties he describes are consistent with the challenges any correctional officer faces in handling inmates. See Nessar Dep. I at 41:16-46:1, 81:10-82:18; see also Nessar Dep. II at 23:13-25:5 (acknowledging that assignment to specific complained-of unit was part of normal shift change); Pl.'s Response to Def.'s Interrogatories, ¶¶ 5, 7, 8, 11.
Similarly, while he contends he was "yelled at, laughed at, and humiliated," see Opp. at 20 (citing Nessar Dep. I at 31:7-22; Nessar Dep. II at 32:7-11, 50:14-51:3), the record does not include facts that support these allegations either. See, e.g., Nessar Dep. II at 32:7-11 (describing incident of humiliation involving a comment that Plaintiff was "`looking for an easy job. He hiring detail.'"). Conclusory allegations that conditions "became so intolerable that he was forced to resign" are also insufficient to defeat summary judgment, as Plaintiff must substantiate such allegations with actual facts. See Savage v. Scales, 310 F.Supp.2d 122, 132 (D.D.C. 2004) (discussing Fed.R.Civ.P. 56(e) and its requirement that party opposing summary judgment set forth specific facts and not rely on "the bald allegations contained in its complaint") (internal citations omitted); see also Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.2008) ("[S]ummary judgment is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.") (internal quotation marks omitted).
The record here simply does not support Plaintiff's contentions that he was subjected to conduct "sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment." Harris, 510 U.S. at 21, 114 S.Ct. 367 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)) (internal quotation marks omitted). The indignities that are present in the record here come nowhere close to this standard. See, e.g., George v. Leavitt, 407 F.3d 405, 408, 416-17 (D.C.Cir.2005) (statements by three employees over a six-month period that plaintiff should "go back where she came
Plaintiff last alleges that he was retaliated against for complaining to his supervisors about discriminatory promotions practices. See Compl., ¶¶ 28-38; see also Opp. at 17-19. Defendant maintains that this count is deficient because "plaintiff cannot meet his burden in establishing that any claimed protected activity was the but-for cause of his alleged adverse action." Reply at 6. The Court believes Plaintiff cannot prevail here either, but for different reasons.
Title VII makes it illegal for an employer to discriminate against an employee because the employee "opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge ... or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To bring such a claim, Plaintiff must allege that he engaged in a statutorily protected activity, that his employer took an adverse personnel action against him, and that a causal connection exists between the two. Carney v. Am. Univ., 151 F.3d 1090, 1095 (D.C.Cir.1998).
Plaintiff here contends that he was
Opp. at 18 (citing Exh. 4 (Letter of Determination) at 6). Such an argument satisfies neither of the first two prongs of the retaliation test.
As to the first, the record seems clear that Nessar's statements were not an actual complaint, but rather a friendly, if perhaps somewhat edged, exchange with a colleague. Indeed, in Nessar's deposition, he repeatedly denied making any complaints to his superiors. See Nessar Dep. I at 32:7-8 ("I didn't talk to anybody because I couldn't bring [being discriminated against in the promotions process] up"), 32:18 (responding that he never discussed his future with his superiors).
Alford v. Def. Intelligence Agency, 908 F.Supp.2d 164, 173-174 (D.D.C.2012).
Because there is no evidence that Plaintiff either engaged in protected activity or suffered an adverse action, the Court will grant Defendant's Motion on this Count.
For the aforementioned reasons, the Court will grant Defendant's Motion for Summary Judgment. A separate Order consistent with this Opinion will be issued this day.
