Opinion
Civil No. 03-1259 (SBC).
April 26, 2005
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Ricardo Vargas ("Vargas") sues Mel Martinez, former Secretary of the United States Department of Housing and Urban Development ("HUD"), for discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. Vargas, a black Hispanic photographer for HUD, claims he was discriminated against based on his race when HUD assigned him diminutive work inconsistent with his position description and grade level and denied him the opportunity to photograph President George W. Bush during a presidential visit to HUD in 2002. HUD contends Vargas has not asserted an adverse employment action under Title VII and moves for summary judgment pursuant to Fed.R.Civ.P. 56.
BACKGROUND
The following facts are undisputed. At all relevant times, Vargas served as a GS-1060-13 photographer in HUD's publications branch. The publications branch employs three photographers including Vargas, Edward Bradham and Ronald Bennett. The three photographers are supervised by John Nemeth. Bradham, black, is a GS-1060-13 employee and has similar duties to Vargas. Bennett, white, is a GS-1001-14 employee and holds the title of "Photographic Manager (Team Leader)," principally serving as "Photographer for the Secretary." Vargas and Bradham are Bennett's backup photographers. See Compl. at ¶ 11.
Vargas' official position description includes the following:
— The incumbant may serve as Photographer for HUD's Secretary.
— The incumbant is responsible for all Departmental official portrait photographs.
— The incumbant is responsible for the production quality of all HUD photographs . . . As such the incumbant monitors photographic vendor services.
— Performs other related duties as may be required.
— He/she must . . . [be] well versed in portrait positioning . . . to provide . . . various other requesters with high quality portraits of HUD officials.
— The incumbant photographs members of the highest offices of the government (White House, Senate, House of Representatives, Cabinet level agencies, foreign dignitarics, etc.).
HUD Ex. C at 1-3. Vargas' regular work assignments also include passport photography and basic portraits, and using his government issued credit card to procure development of film, reprints, enlargements, and other photographic services as directed by Nemeth. See e.g., HUD Ex. D at 2-3, Ex. E at 20; see also Vargas Facts at 8, ¶ 3 ("[I] [have] never objected or refused to do [my] regular workday photographic duties, meaning photography of any type, such as portraits, passports, events, etc. . . . signing a document does not constitute a photographic assignment") (emphasis added).
On June 18, 2002, President George W. Bush made an official visit to HUD. HUD decided to select John Ficara (white), a non-HUD free-lance photographer, to photograph the event. The multimedia division did not receive a request from HUD to photograph the presidential visit. Vargas did not experience any diminution in salary, grade or benefits pertaining to his federal employment. See Vargas Dep. at 85-86.
DISCUSSION
I. Legal StandardSummary judgment is appropriate when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party meets its burden, the non-movant must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the opposing party; however, the non-movant must establish more than the existence of a mere scintilla of evidence in support of its position. Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 252; Celotex, 477 U.S. at 325. The non-movant may not rely solely on allegations or conclusory statements, and if the non-movant's evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50; Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
No direct evidence of discrimination is alleged and the court applies the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie case of race discrimination under Title VII, Vargas must show that: (1) he belongs to a protected class; (2) he suffered an adverse employment action; and (3) the adverse action gives rise to an inference of discrimination. See Stella v. Mineta, 284 F.3d 135, 144-45 (D.C. Cir. 2002). One method by which Vargas may establish an inference of discrimination is demonstration that similarly situated employees outside the protected class were treated more favorably. Id. at 144-46. If Vargas establishes his prima facie case, HUD must articulate a non-discriminatory reason for its adverse action. See McDonnell Douglas, 411 U.S. at 802. Vargas must then demonstrate HUD's asserted reason is a pretext for unlawful discrimination. Id. at 804. Vargas retains the ultimate burden of showing race discrimination. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998). For his disparate treatment claim to succeed, Vargas must provide proof of an adverse personnel action that was motivated by discriminatory animus. See Brown v. Brody, 199 F.3d 446, 453 (D.C. Cir. 1999).
On March 11, 2005, this case was reassigned by the Chief Justice of the United States to the Honorable Suzanne B. Conlon, District Judge for the Northern District of Illinois. See Dkt. No. 17.
II. Work Assignments
HUD contends summary judgment on Vargas' work assignment discrimination claim must be granted because: (1) he has not demonstrated he suffered an adverse employment action; (2) he has not identified a similarly situated employee who was treated more favorably; and (3) he does not present a genuine issue of fact to suggest HUD's proffered legitimate, non-discriminatory reasons for its actions are pretextual. HUD's motion must be granted.
Vargas does not contend he experienced a reduction in salary, benefits or grade, that he was fired, reassigned, transferred or was denied promotion, or that HUD no longer assigns him to take photographs. Rather, Vargas complains about "the objective caliber, quality, and quantity of the assignments, relative to the nature of the profession and the level of the employee." Vargas Resp. at 3. In particular, he complains passport photography and basic portraits work assignments are not in accordance with his position and he challenges the appropriateness of characterizing the signing of a credit card purchasing document as a photographic assignment. Id. at 4. Vargas does not genuinely dispute that these tasks are part of his regular workday photographic duties. Rather, he argues the overabundance of clerical and administrative functions are not appropriate for his occupation and grade level. Relying on Ohal v. Board of Trustees of Univ. Of Dist. Of Columbia, No. 03-7098, 2004 WL 1238331, *2 (D.C. Cir. June 4, 2004), Vargas asserts his administrative tasks, particularly signing credit card documents, represents a significant diminishment in material responsibilities. Vargas contends he will not be able to present signed credit card documents as portfolio pieces representing his HUD work in future job interviews. Vargas Resp. at 4. Vargas' arguments are rejected.
First, Vargas admits the challenged tasks fall within his regular job duties. See Vargas Facts at 8. His job description provides he is responsible for all official department portrait photographs and that he may be required to perform other related duties. Further, HUD provides each photographer with a credit card to facilitate completion of primary duties. "[Vargas's] primary duties are to cover events as requested and to do the administrative work of procuring services needed to accomplish his task. One of the mechanisms [Vargas] has been provided to achieve these goals is a credit card." See Ciancio Aff. at 2. Accordingly, there is nothing suspicious or unusual about the requirement that Vargas, and the other photographers, review and sign credit card statements.
Second, viewing the facts in his favor, Vargas' complaints reflect job dissatisfaction rather than discriminatory adverse employment actions. An adverse employment action is 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. See Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003). "Mere idiosyncracies of personal preference are not sufficient to state an injury." Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). The Ohal decision Vargas relies on for his diminutive duties argument is inapposite. Ohal is an unpublished slip opinion where the court found that a significant and material reduction in a supervisor's duties may constitute an adverse action for a retaliation claim. Vargas' complaints do not constitute adverse action. The undesirable duties are not accompanied by any tangible change in duties constituting a material employment disadvantage. See e.g., Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002); Brown, 199 F.3d at 457.
Finally, even if the duties constituted adverse action, Vargas offers no evidence that the duties were assigned to him because of his race, or that similarly situated employees were treated more favorably. Vargas alleges that Bennett exclusively photographs the Secretary and does not do general photography such as portraits, passports, or other HUD events. See Compl. at ¶ 20. Even if true, which Bennett disputes, Bennett is not similarly situated because he is at a higher grade level than Vargas and, as "Photographer for the Secretary," he has different job responsibilities. See Ex. A; see also HUD Mem. Ex. G at 2. Vargas is one of Bennett's back-up photographers. Bennett and Vargas are not similarly situated. See e.g., Barbour v. Browner, 181 F.3d 1342, 1345 (D.C. Cir. 1999) (relevant aspects of employment situation must be nearly identical). Nor does Vargas present any evidence that HUD's actions were motivated by race. The evidence shows that all HUD photographers — black, white and Hispanic — are generally subject to similar duties. All evidence reflects that the complained of tasks were part of Vargas' regular job duties. His allegations of race discrimination are unsupported. There are no genuine issues of fact. Summary judgment on Count I must be granted.
III. Photographing the President
Vargas asserts he was discriminated against based on race when he did not photograph President Bush in June 2002. He contends he was denied the opportunity to improve his portfolio with photographs of the current president and that white employees, specifically John Ficara, were treated differently. Vargas' speculative injury cannot form the basis of an adverse employment action — he has produced no evidence that he applied for and was denied a job because his portfolio lacked a photograph of the current president. In any event, "[m]inor changes in work-related . . . opportunities do not constitute an actionable injury unless they are accompanied by some other adverse change in the terms, conditions or privileges of employment." Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002). The denial of an opportunity is not an adverse action under Title VII where there is no change in job position, grade, pay or benefits. Id.; see also Raymond v. U.S. Capitol Police Bd., 157 F.Supp.2d 50, 56-57 (D.D.C. 2001) (failure to receive a courtesy is not adverse action . . . some type of tangible harm must form the basis for an adverse employment action). The denial of a temporary assignment — the opportunity to photograph the president on one particular visit — cannot constitute an adverse employment action. Id.
Further, Vargas provides no evidence that he was entitled to photograph the president. According to Carmelo Ciancio, director of the multimedia division, HUD is not required to use the division's various media services. See Ciancio Aff. at ¶ 4. "A program office's choice to use our services is purely discretionary . . . and other program offices have the discretion to use the Multimedia Division services, or they may contract out for similar services based upon their needs and budget." Id. Vargas argues HUD did not produce a document in discovery confirming use of the division's services is discretionary, and contends he was entitled to photograph the President because "it made logical sense that the in-house photo staff would do in-house photo events." Vargas Dep. at 46. However, even if HUD violated its own rules by hiring an outside photographer, that fact alone does not support an inference of discrimination. See e.g., Mungin v. Katten, Muchen Zavis, 116 F.3d 1549, 1556 (D.C. Cir. 1997) ("employer's failure `to follow its own regulations and procedures, alone, may not be sufficient to support' the conclusion that its explanation for the challenged employment action is pretextual") (internal quotation omitted).
The critical point is that none of the three HUD photographers photographed the event. While Vargas' job description provides he may photograph members of the highest offices of the government, the same holds true for Bennett and Bradham. Vargas has not demonstrated that he would have been selected for the event over Bennett or Bradham even if the division's services had been requested. Nor has Vargas provided any evidence to suggest that the decision not to use any of the HUD photographers — white, black or Hispanic — was related to race.
Federal employment practices and private employment practices are regulated under different provisions of Title VII. However, Title VII places the same restrictions on federal and private employers. See Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). The D.C. Circuit applies the McDonnell Douglas test to federal employers. Id.
Finally, it is undisputed that Ficara was a free-lance photographer. Accordingly, he was not a HUD employee. Ficaro and Vargas were not similarly situated employees. In any event, Vargas' assertions that Ficara was hired only because of his color are completely unsupported. See e.g., Vargas Ex. F (Defendant's Responses to Plaintiff's Interrogatories at ¶ 4: "The decision to hire John Ficara was categorically NOT made on the basis of Mr. Ficara's race . . . the decision to assign Mr. Ficara to photograph the President's visit . . . was made for purely professional reasons based on Mr. Ficara's reputation, skill, and experience as a former White House press photographer for Newsweek magazine. Pursuant to the broad and total discretion of the Office of the Secretary, HUD, to utilize either in-house photographers from the Multi-Media Division, or contract photographers for specific events, defendant chose the latter on this occasion"]. There are no genuine issues of fact. Summary judgment on Count II must be granted.
CONCLUSION
For the foregoing reasons, HUD's summary judgment motion is granted.