Opinion
Civil Action No. 01-251 (CKK).
March 15, 2005
MEMORANDUM OPINION
Plaintiff Alan Bolden has brought the instant suit against Defendant Office of the Architect of the Capitol ("AOC"), alleging that Defendant engaged in unlawful employment practices in violation of the Congressional Accountability Act of 1995, 2 U.S.C. § 1301, et seq. Count I of Plaintiff's Complaint alleges that Defendant retaliated against Plaintiff by refusing to promote him after he filed an earlier employment discrimination action. Count II alleges that Defendant subjected Plaintiff to a hostile work environment based on the same failure to promote Plaintiff.
Defendant has filed a Motion for Summary Judgment on Plaintiff's claims, which has been fully briefed. After a careful examination of the parties' filings and the relevant law, the Court finds that Defendant's Motion for Summary Judgment shall be denied with respect to Count I and granted with respect to Count II. I. FACTUAL BACKGROUND
The following facts are undisputed, unless otherwise noted.
At the outset, the Court observes that the District Court for the District of Columbia has supplemented Federal Rule of Civil Procedure 56 with Local Civil Rule 7(h), which is identical to Local Civil Rule 56.1. This local rule requires that each party submitting a motion for summary judgment attach a statement of material facts to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement. The party opposing such a motion must, in turn, submit a statement of genuine issues enumerating all material facts which the party contends are at issue and thus require litigation. See LCvR 7(h). Where the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. LCvR 7(h). As this Circuit has emphasized, the burden rests "on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 406 (6th Cir. 1992)). Because of the significance of this task and the potential hardship placed on the court if parties are derelict in their duty, courts require strict compliance with Local Civil Rules 7(h) and 56.1. See id. at 150 (citations omitted).
The Rule provides, in relevant part:
Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement. . . . In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.
(LCvR 7(h)) (emphasis added).
The factual underpinnings to this suit are straightforward. Beginning in October 1997, Plaintiff was employed by the Office of the Architect of the Capitol in the Network Systems Branch as a GS-0334-11/12 computer specialist. Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 1-2; Def.'s Stmt. of Mat. Facts ("Def.'s Stmt.") ¶ 2. As a GS-11 computer specialist, Plaintiff's position description for the relevant period explains that his "duties and responsibilities . . . are essentially the same as those found in the position description for the [GS-12 computer specialist]. . . . However, this position operates under closer guidance and review." Def.'s Mot. Ex. 5 (Position Description) at 2.
The GS-11/12 designation means that Plaintiff could be promoted from the GS-11 level to the GS-12 level without competition if he meets certain performance standards.
Also around October 1997, Plaintiff filed a Request for Formal Advice with the AOC's Office of Equal Employment Opportunity, alleging that his employer's failure to promote him to the GS-12 level was a discriminatory action. See Def.'s Stmt. ¶ 2; Def.'s Mot. Ex. 1 (Complaint in Civil Action 98-3140) ¶ 53. In December 1998, Plaintiff filed suit in this District Court. See Def.'s Ex. 1. The Court ultimately granted summary judgment in favor of Defendant, and the United States Court of Appeals for the District of Columbia Circuit affirmed the Court's decision. See Bolden v. Office of the Architect of the Capitol, No. 01-5444, 2002 WL 1364275 (D.C. Cir. 2002).
In August and September 1998, Plaintiff received two evaluations indicating that his supervisors did not think he should be promoted to a GS-12 position. Def.'s Stmt. ¶ 15. In the August 19, 1998, memorandum, Michael Jackson, Plaintiff's first line supervisor at the time, detailed Plaintiff's performance in his various areas of responsibility, and indicated Jackson's expectations in terms of Plaintiff's performance, skills and knowledge in order for Plaintiff to qualify for a promotion to GS-12. See Def.'s Mot. Ex. 12 (August 19, 1998, Memorandum). Jackson indicated that Plaintiff had been unwilling to perform a cable installation task, and that Jackson "expect[ed] a [GS-12] Computer Specialist to be highly involved in all tasks related to networking and to be willing to do any type of work that is required." Id. at 2. Jackson also noted that with respect to Plaintiff's performance at the Helpdesk, "[s]everal deficiencies remain," and that Plaintiff needed to be reminded to execute certain tasks. Id. In the September 15, 1998, memorandum, Jackson expressly noted that Plaintiff's performance was not sufficient to qualify him for a promotion to GS-12. Jackson wrote that "[i]t is my understanding that Alan requires greater skill and knowledge to be eligible for a grade increase to the GS/12 level." Def.'s Mot. Ex. 13 (September 15, 1998, Memorandum) at 1.
In December 1999, during the pendency of Plaintiff's first employment action before this Court, Jackson recommended to Stan Kirk, Jackson's direct supervisor and Plaintiff's second line supervisor, that Plaintiff be considered for a promotion to GS-12. Def.'s Stmt. ¶ 4; Pl.'s Stmt. ¶ 1. Jackson's recommendation was based at least in part on the fact that Plaintiff had been able to restore the "Spectrum" computer server after the server crashed in December 1999, and that this indicated Plaintiff was able to perform GS-12 level work. See Def.'s Mot. Ex. 8 (Jackson Decl.) ¶¶ 9-10, 12. Kirk advised Jackson to speak with Edgard Martinez, an attorney representing Defendant, "who indicated that he felt it would be necessary to advise the U.S. Attorney of this possibility to avoid blind-siding the attorney who was representing the agency in a prior civil action filed by Alan Bolden." Id. ¶ 13; see also Def.'s Mot. Ex. 9 (Kirk Decl.) ("I suggested to Michael Jackson that he should contact Mr. Martinez. . . . I knew that Alan had an action in process and I did not believe it was appropriate to have any actions taken without conferring, though the fact that there was litigation had no bearing on whether or not to promote Alan Bolden.").
In response to an email inquiry by Martinez about an affidavit for Plaintiff's first suit, Jackson wrote:
Over the last three months I have council [sic] and reviewed Alan's timeliness of executing task [sic] and he has improved greatly. I believe he warrants the advancement to a 12. I have talked this over with Stan [Kirk] and he has asked that I get your thoughts on this matter.
I don't know how this might effect our work. I think that it would not make a difference because his complaint is form [sic] 97 and 98. I will have the affidavit by the 10 [sic]. Is that OK?
Def.'s Mot. Ex. 10 (Martinez-Jackson Email, Dec. 1, 1999). Martinez responded:
I suggest we wait until you have completed the affidavit to discuss these matters.
To the extent that he NOW may be meeting the requirements for a GS-12, this may be a necessary move to consider after consultations.
Again, I need the full documentation and statement fully describing his work and quals for 1997, 1998, and 1999 to date.Id.
Jackson later sent an email to Kirk stating that "[i]n December 1999, I requested that Alan be promoted to a GS-12 based on his performance. . . . Alan was working on Spectrum for about three hours a day. I considered this to be GS-12 level work." Pl.'s Opp. Ex. 3 (Jackson-Kirk Email). His email went on to say that "Alan worked very hard to come up to speed and be productive when he crossed over to the network and systems branch, NSB. I hope you take this into account when considering Alan for advancement." Id.
The record indicates that Martinez communicated with Plaintiff's supervisors about Plaintiff's possible promotion. See Def.'s Mot. Ex. 8 (Jackson Decl.) ¶ 14 ("Mr. Martinez also indicated that there should be supporting documentation so that Alan Bolden was not promoted because of the lawsuit if he did not deserve to be promoted."). Martinez states that he was consulted about, and provided an opinion on the advantages of promoting Plaintiff in 1999. See Def.'s Mot. Ex. 14 (Martinez Dep.) at 208:15-208:17. When asked about the advice he offered to Plaintiff's supervisors, Martinez responded that "I did not provide advice to them regarding the actual promotion or not." Id. at 243:6-243:8. However, he then explained that "[p]art of the defending position in every case is that Mr. Bolden has to establish a prima facie case showing that he had the qualification," and that "in order to be able to provide the legal advice that's necessary and the advantages or disadvantages . . . of promoting him, whether he was or wasn't qualified, is something that required consultation." Id. at 243:10-243:20. When counsel noted that Plaintiff's denial of a promotion in 1999 was not part of the original litigation, Martinez replied "[w]ell, to me it was litigation." Id. at 276:21.
Furthermore, Martinez suggested that the length of time Plaintiff had been performing at the GS-12 level be considered when evaluating Plaintiff's proposed promotion. See Def.'s Mot. Ex. 9 (Kirk Decl.) ¶ 6 (stating that Martinez "asked [Kirk] how long I thought a person should be performing at the GS-12 level before being promoted to that level. I did not know but concluded that a period of higher performance should be expected."). Jackson subsequently set to the task of documenting Plaintiff's performance, and explains that he determined that Plaintiff had not sustained performance at the GS-12 level for a period of time other than the sole task of working on the "Spectrum" server. Def.'s Stmt. ¶¶ 12-13. Consequently, Jackson determined that there was insufficient justification to promote Plaintiff to a GS-12. Id. ¶ 12. Jackson proceeded to reexamine Plaintiff's performance in January and February 2000, and again determined that Plaintiff had not "sustained his performance for a sufficient period of time to merit being promoted to a GS-12." Def.'s Mot. Ex. 8 (Jackson Decl.) ¶ 15.
II. LEGAL STANDARD
Summary judgment is appropriate only if the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994); Fed.R.Civ.P. 56(c). At this stage of the litigation, the Court is obligated to "[v]iew the evidence `as favorably to [Plaintiff] as reason will permit.'" Aka, 156 F.3d at 1295 (quoting Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990)). Yet a moving party who does not bear the burden of proof at trial on a dispositive issue possesses no duty to "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (emphasis in original). Rather, the moving party discharges its burden to support its motion by "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.'" Id. (quoting Fed.R.Civ.P. 56(c)).
Thus, where, as here, "the nonmoving party shoulders the burden of proof at trial, the movant's burden is met by a sufficient `showing . . . that there is an absence of evidence to support the nonmoving party's case.'" Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C. Cir. 1988) (quoting Celotex, 477 U.S. at 325). Once the moving party tenders this showing, the nonmoving party must then "designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (internal quotations omitted). To do so, the nonmoving party must "go beyond the pleadings," marshaling evidence culled from its own affidavits, or by the depositions, answers to interrogatories, and admissions on file. Id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (holding that the adverse party must do more than simply "show that there is some metaphysical doubt as to the material facts").
III. DISCUSSION
Similar to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 ("Title VII"), the Congressional Accountability Act, which governs certain offices within the legislative branch, states that
It shall be unlawful for an employing office to intimidate, take reprisal against, or otherwise discriminate against any covered employee because the covered employee has opposed any practice made unlawful by this chapter, or because the covered employee has initiated proceedings, made a charge, or testified, assisted, or participated in any manner in a hearing or other proceeding under this chapter.2 U.S.C. § 1317(a). The term "covered employee" includes employees of the Office of the Architect of the Capitol. See 2 U.S.C. § 1301(3)(F).
A. Count I: Retaliation
Plaintiff's claim of retaliation is analyzed under the three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985). Under McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. See McDonnell Douglas, 411 U.S. at 802. In order to establish a prima facie case of retaliation, Plaintiff must demonstrate: (1) that he engaged in a statutorily protected activity; (2) that his employer took an adverse personnel action; and (3) that a causal connection existed between the two. See Mitchell, 759 F.2d at 86; Trawick v. Hantman, 151 F. Supp. 2d 54, 62 (D.D.C. 2001). "The causal connection component of the prima facie case may be established by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Mitchell, 759 F.2d at 86.
If Plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate "some legitimate, nondiscriminatory reason" for its adverse employment actions. McDonnell Douglas, 411 U.S. at 802. If the defendant is successful, the plaintiff has the burden of persuasion to show that defendant's proffered reason was not the true reason for the employment decision. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext may be established "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 256; see also Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000). "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Reeves, 530 U.S. at 147 (citing St. Mary's Honor Ctr., 590 U.S. at 517 ("[P]roving the employer's reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination."); see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998) (en banc) ("[A] plaintiff's discrediting of an employer's stated reason for its employment decision is entitled to considerable weight.").
Notably, the Supreme Court has taken care to instruct trial courts that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves, 530 U.S. at 148. "[T]he trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual." Id. at 143 (quoting Burdine, 450 U.S. at 255 n. 10). The Court of Appeals has distilled this analysis, noting that the jury can infer discrimination from the combination of:
(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements of attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong record in equal opportunity employment).Aka, 156 F.3d at 1289. However, evidence in each of the three categories is not required. Id.
"At this stage, if [plaintiff] is unable to adduce evidence that could allow a reasonable trier of fact to conclude that [defendant's] proffered reason was a pretext for discrimination, summary judgment must be entered against [plaintiff]." Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 27-28 (D.C. Cir. 1997). "[T]he court must consider all the evidence in its full context in deciding whether the plaintiff has met his burden of showing that a reasonable jury could conclude that he has suffered discrimination." Aka, 156 F.3d at 1290.
Defendant does not dispute that Plaintiff was engaging in a protected activity when he pursued his first employment discrimination action, or that Plaintiff's denial of a promotion in 1999 constituted an adverse employment action. Defendant also does not dispute that Plaintiff can meet the forgiving legal standard for showing a causal connection between these two, because there is no dispute that Plaintiff's supervisors knew about his pending discrimination action at the time that Plaintiff was denied a promotion in 1999.
Defendant's states that Plaintiff did not receive a promotion in 1999 to the GS-12 position because he had not performed at the GS-12 level for a sufficient amount of time, and that this constitutes a legitimate reason for denying Plaintiff a promotion. See Def.'s Mot. at 9-12. Defendant argues that Plaintiff has failed to rebut this explanation with any evidence that Defendant's proffered reason was pretextual. Id. Defendant claims that, although Plaintiff's supervisor initially thought Plaintiff's work on the "Spectrum" computer server qualified him for a promotion, upon further reflection it became clear that Plaintiff had not demonstrated sustained performance at the GS-12 level. See Def.'s Mot. Ex. 8 (Jackson Decl.) ¶¶ 9-10, 12; Def.'s Stmt. ¶¶ 12-13. Defendants characterize the email exchange between Jackson and Martinez as indicating that Plaintiff should receive a promotion if a promotion is appropriate, and argue that the email "does not state or in any way suggest that the AOC would not promote plaintiff because of his pending lawsuit." Def.'s Mot. at 10.
The Court finds, however, that the email and the testimony of Martinez, Jackson and Kirk serve as evidence that Defendant's proffered reason for not promoting Plaintiff was arguably pretextual. Plaintiff relies on the email, as well as other testimony that Plaintiff's supervisors consulted with Defendant's attorney, Martinez about promoting Plaintiff, which was not a subject of Plaintiff's complaint pending at that time. See Pl.'s Opp. at 14-18.
The Court does not find that it is per se unreasonable for Plaintiff's supervisors to notify AOC's attorney when considering a personnel action for an individual with a pending employment discrimination claim. Indeed, notifying the attorney of information that might be relevant to the pending suit would "avoid blind-siding the attorney who was representing the agency in a prior civil action filed by Alan Bolden." Def.'s Mot. Ex. 8 (Jackson Decl.) ¶ 13. The Court finds, however, that the testimonial evidence and the email between Martinez and Jackson does not indicate such straightforward notice, and is more equivocal. Rather, the evidence indicates that Martinez was impacting, and possibly even directing, the promotional decision.
Jackson's notification to Martinez contradicts Defendant's suggestion that Plaintiff's promotion was based on his success over a very short period of time with the "Spectrum" computer server, and raises a question about whether Plaintiff's promotional opportunities were in fact influenced by Plaintiff's earlier lawsuit. Rather than suggesting that Plaintiff had succeeded at one task, Jackson instead indicates that Plaintiff's potential promotion would be based on more generalized improvement. Jackson wrote that "[o]ver the last three months I have council [sic] and reviewed Alan's timeliness of executing task [sic] and he has improved greatly." Def.'s Mot. Ex. 10 (Martinez-Jackson Email, Dec. 1, 1999). Martinez's response that "I suggest we wait until you have completed the affidavit to discuss these matters," appears to tie the issue of Plaintiff's pending employment discrimination suit together with the issue of Plaintiff's potential promotion. Id. Furthermore, Martinez indicates that promoting Plaintiff if he was meeting the requirements of a GS-12 "may be a necessary move to consider after consultations." Id. (emphasis added). The suggestion that Plaintiff's supervisor should continue to consult with Martinez about Plaintiff's promotion, when Martinez's only connection to Plaintiff is through his original lawsuit, implies that Plaintiff's original lawsuit might factor into a jointly-made decision about the promotion in 1999. Finally, Martinez requests Plaintiff's work description and qualifications for "1997, 1998, and 1999 to date," even though Plaintiff's original suit would have only dealt with Plaintiff's performance through 1997 and 1998. Id. Martinez's request for materials that were not relevant to the original suit, but that would have been relevant to Plaintiff's proposed promotion further suggests that Martinez's involvement with Plaintiff's original suit may have been a factor in the denial of Plaintiff's promotion.
The Court finds additional support for this possibility in Martinez's deposition testimony. It is clear from Martinez's testimony that he gave Plaintiff's supervisors advice and a recommendation regarding Plaintiff's promotion, which may or may not have factored into their ultimate decision not to promote Plaintiff in 1999-2000. When asked whether he offered his opinion "regarding the advantages of promoting Mr. Bolden," Martinez responded that "[f]rom a legal side, yes, that question was asked," and that "[a]s a lawyer, I explained my legal opinion as to whatever those matters were." Def.'s Mot. Ex. 14 (Martinez Dep.) at 199:20-201:5. When asked to whom he provided his opinion, Martinez indicated "Stan Kirk, Michael Jackson, Hector Suarez, and probably Kevin Mulshine when he was my boss." Id. at 208:15-208:17. This list includes Plaintiff's supervisors.
It appears that Martinez suggested what factors might be relevant to a promotional decision. Indeed, Kirk and Jackson appear to have been ready to promote Plaintiff, and only after Martinez inquired as to how long Plaintiff should have sustained his performance at a higher level did they consider, and ultimately rely on this factor in denying Plaintiff's promotion. Kirk states in his declaration that he had been "inclined" to promote Plaintiff to a GS-12, but then suggested that Jackson should notify Martinez. See Def.'s Mot. Ex. 9 (Kirk Decl.) ¶¶ 3-5. Similarly, in the course of his deposition, Jackson read from an email he had sent to Kirk in which he had written that "[i]n December 1999, I requested that Alan be promoted to a GS-12 based on his performance. . . . Alan was working on Spectrum for about three hours a day. I considered this to be GS-12 level work." Def.'s Mot. Ex. 11 (Jackson Dep.) at 54:4-54:8; see also Pl.'s Opp. Ex. 3 (Jackson-Kirk Email). His email went on to say that "Alan worked very hard to come up to speed and be productive when he crossed over to the network and systems branch, NSB. I hope you take this into account when considering Alan for advancement." Id. at 54:11-54:15.
Jackson sent this email on March 27, 2000, after he had left his employment with AOC. See Def.'s Mot. Ex. 11 (Jackson Dep.) at 54:18-54:20. The Court remarks on this email not because it was contemporaneous with the 1999 employment decision, but rather because it reflects Jackson's recollection of why he had recommended Plaintiff for a promotion in 1999.
Subsequently, Kirk indicates that Martinez "asked me how long I thought a person should be performing at the GS-12 level before being promoted to that level. I did not know but concluded that a period of higher performance should be expected." Def.'s Mot. Ex. 9 (Kirk Decl.) ¶ 6. In the end, Kirk indicates that "[t]he decisions regarding Alan Bolden have been based on the fact that he has not demonstrated the level of performance for an appropriate period of time for promotion to a GS-12 level." Id. ¶ 7. Jackson made a similar statement. See also Def.'s Mot. Ex. 8 (Jackson Decl. ¶ 16) ("Upon reconsideration of the limited time he had performed the Spectrum server crash tasks at the GS-12 level, I decided that it was reasonable to require Alan Bolden to sustain a GS-12 level of performance for a period of time."). Furthermore, it was Kirk, to whom Martinez suggested that the length of time Plaintiff had sustained a GS-12 performance could be relevant in promotional decision, who most influenced Jackson's ultimate decision that Plaintiff had not sustained his GS-12 performance long enough. See Def.'s Mot. Ex. 11 (Jackson Dep.) at 78:10-78:20 (Q: "Who do you believe influenced your decision [to defer promoting Plaintiff]?" A: "I'd say Stan influenced me more than anybody.").
Finally, the record indicates that Martinez viewed the proposed promotion as integral to Plaintiff's earlier pending litigation. See Def.'s Mot. Ex. 8 (Jackson Decl.) ¶ 14 ("Mr. Martinez also indicated that there should be supporting documentation so that Alan Bolden was not promoted because of the lawsuit if he did not deserve to be promoted."). When asked about the advice he offered to Plaintiff's supervisors, see Def.'s Mot. Ex. 14 (Martinez Dep.) at 242:3-242:5 ("So is it your testimony that there was two-way communication on the effect that promoting Alan Bolden [in 1999] would have on the pending litigation?"), Martinez stated that "I did not provide advice to them regarding the actual promotion or not." Id. at 243:6-243:8. However, he went on to state that "[p]art of the defending position in every case is that Mr. Bolden has to establish a prima facie case showing that he had the qualification," and that "in order to be able to provide the legal advice that's necessary and the advantages or disadvantages . . . of promoting him, whether he was or wasn't qualified, is something that required consultation." Id. at 243:10-243:20. When reminded that Plaintiff's denial of a promotion in 1999 was not part of the original litigation, Martinez replied "[w]ell, to me it was litigation." Id. at 276:21. Although Martinez's comments implicate the earlier litigation, it appears that Martinez felt that he, as an attorney concerned with the prior litigation, should be included in the "consultations" regarding the "advantages or disadvantages" of promoting Plaintiff in 1999.
In light of the email communication between Martinez and Jackson, and the information provided by Martinez, Jackson and Kirk about Martinez's role in the promotional decision in 1999, and Plaintiff's subsequent denial of a promotion, the Court finds that the record with respect to whether Defendant's proffered reason for its employment decision in 1999 was pretextual is equivocal. Given the nature of the evidence, the Court finds that Plaintiff has satisfied his burden under McDonnell Douglas. See McDonnell Douglas, 411 U.S. at 804; Freedman, 255 F.3d at 845. As a practical matter, the record is not sufficiently clear to permit the Court to find that summary judgment is appropriate on Claim I.
B. Count II: Hostile Work Environment
In contrast to Claim I, the Court finds that Defendant is plainly entitled to summary judgment on Claim II, Plaintiff's hostile work environment claim. As a practical matter, Plaintiff bases his allegation of a hostile work environment solely on the fact that he was denied a promotion to the GS-12 level, not on any ongoing hostile behavior by others in his place of employment. Whether or not Plaintiff was entitled to a promotion, its denial under these circumstances is plainly not the appropriate basis for a hostile work environment claim.
In his opposition to Defendant's Motion for Summary Judgment, Plaintiff states the essence of his hostile work environment claim:
[P]laintiff's former first-line supervisor and second-line supervisor acted in concert, at the direction and with the active participation of the Agency's employment counsel, to deprive plaintiff of a promotion he had earned in accordance with goals those supervisors had themselves established — and that plaintiff's third-line supervisor was aware of the concerted harassment, but did nothing to stop it.
Pl.'s Opp. at 20.
Under Title VII, a "hostile work environment" occurs "[w]hen the workplace is permeated with 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 . . ." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotation omitted). Indeed, "[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment" is beyond the statutory protection. Id. Similarly, "if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment," and no violation has occurred. Id. at 21-22. The protections of Title VII are extended to employees of the AOC by the Congressional Accountability Act. 2 U.S.C. § 1317(a).
In National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), the Supreme Court explained that "[h]ostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. . . . Such claims are based on the cumulative effect of individual acts." Nat'l R.R. Passenger Corp., 536 U.S. at 115. Plaintiff has based his hostile work environment claim on one act by his employer, the denial of a promotion, which falls quite clearly outside the Supreme Court's boundaries for such a claim.
Although this alone is sufficient to merit summary judgment on Plaintiff's hostile work environment claim, the Court notes that Plaintiff has explicitly denied that his supervisors have behaved towards him in a hostile or abusive way. At his deposition, Plaintiff was asked if he had been subjected to harassment by Jackson, and he replied that he had not. Def.'s Mot. Ex. 4 (Bolden Dep.) at 75:9-75:11, 76:5-76:8. When asked whether there were "any specific acts which you believe constitute harassment from Mr. Kirk," Plaintiff stated that "other than simply the fact that he stated that he would promote me, on Mr. Jackson's recommendation and didn't do so." Id. at 75:18-75:22. Plaintiff's responses were similar with respect to Mr. Martinez and several other coworkers. See id. at 81:21-83:10.
In light of the fact that Plaintiff's hostile work environment is based on one discrete act, and the fact that he has explicitly stated that he has not felt harassed or abused by others at his place of employment, the Court finds that Defendant is entitled to summary judgment on Count II of Plaintiff's Complaint.
IV. CONCLUSION
After a careful examination of the parties' filings and the relevant law, the Court finds that the record is not sufficiently clear to merit granting Defendant's Motion for Summary Judgment with respect to Plaintiff's retaliation claim. However, the Court finds that Defendant is entitled to summary judgment on Plaintiff's hostile work environment claim.
An appropriate Order accompanies this Memorandum Opinion.