UNITED STATESDISTRICT COURT FORTHE DISTRICT OF COLUMBIA NICHOLAS GELETA, ) ) Plaintiff, ) ) v. ) Civil Case No. 06-1822 (RJL) ) ADRIAN M. FENTY, ) ) De&ndant ) 

### MEMORANDre-OPINION

(February

# l-1. 2010) [# 25] Plaintiff, Nicholas Geleta ("Geleta"), brings this action against Adrian Fenty (the "defendant") alleging violation ofTitle VII ofthe Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e 

### etseq., by his employer, the D.C. Department ofMental Health ("DMH"), for retaliation against him for participating in certainprotected EEO activity. Before the Court is the defendant's Motion for Summary Judgment. Upon consideration ofthe parties' pleadings, relevant law, and the entire record herein, the defendant's motion is GRANTED. BACKGROUND Plaintiffwas a Health Systems Administrator for the DMH Office ofPolicy and Planning. DefsMot. For Summ. J. ("Def.'s Mot.") Ex. A 

### ,-r 3. In that capacity, Geleta served as the ProjectDirector for D.C. Children InspiredNow Gain Strength ("DCCINGS"), a mental healthprogram for youth and families funded by a grant from the U.S. Department ofHealth and Human Services ("HHS"), from approximately 2002through March 2005. Id.**~~** 3-4. Duringthat time, his salary was $77,965 (grade 13, step 8). Def.'sMot. Ex. M. Inthe fall of2004, Geleta's immediate supervisor was Velva R. Taylor-Spriggs, an African-American, who was the Director ofthe Child and Youth Services Division within the DMH Office ofPolicy and Planning. Compi.**~** 8; PI.'s Opp'nto Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") Ex. 11 at 1,21. In November 2004, Geletaprovided a written statement in support ofa discrimination complaint filed by Taylor-Spriggs. Compi.**~** 9; PI.'s Opp'nEx. 11 at 4. Beginning in March 2005, Geleta was reassigned to a succession ofpositions that he alleges were, unlike his position as ProjectDirector ofDCCINGS, "non-supervisory." He claims that his reassignmentwas retaliation for his statement in support ofTaylorSpriggs' EEO complaint. Compi.**~** 10; Pl.'s Opp'n 11-15. The defendant counters that Geleta's reassignments were the result ofDMH's decision to realign DCCINGS following an HHS site visit in October 2004. See Def.'s Mot. 10-14. Initially, Geletawas temporarily reassigned to the OakHill Youth Detention Center for approximately thirty days, during which time he maintained his title ofHealth System Administrator. Def.'s Mot. Exs. A**~~** 11-12, J at 2. In March 2005, Geleta was detailed for thirty days to the DMH Office ofAccountability, where he reported to DeputyDirector Susan Curran. Def.'s Mot. Ex. D. Atthat time, it was agreed that Geleta'sposition as Health Systems Administrator for the Office ofProgram and Policy would be formally transferred to the DMH Office ofAccountability. See Def.'s Mot. Ex.

2A**~** 12, E. Geleta's detail was extended for another 120 days so that Curran could complete ajob description for whatbecame his permanentposition: Residential Treatment Center Certification and Monitoring Projects Manager for the DMH Office of Accountability. Def.'s Mot. Exs. F, G. As ofApril 27, 2005, Geleta's salary had increased to $84,658 (grade 14, step 5). Def.'s Mot. Ex. N. On September 1,2005, Geletatimely filed a charge ofdiscrimination based on retaliation with the EEOC. CompI.**~** 2. Notwithstandinghis EEOC charge, Geleta's position was officially transferred to the Office ofAccountability in February 2006, and he applied for and accepted the permanentposition. Def.'s Mot. Ex. A**~** 14. Inhis transition to the Office ofAccountability, the plaintiffdid not sustain a step down within the agency's organizational hierarchy and continuedto report to an agency director. See Def.'s Mot. Exs. G, I, & K. In March 2006, DMH increasedGeleta's salary to $87,148 (grade 14, step 6). Def.'s Mot. Ex. O. On July 24,2006, he received a Right to Sue Letter from the EEOC concerning his charge ofdiscrimination, and this civil action followed. CompI.**~** 2. In September 2007, DMH advised Geleta that his position was being converted to the Management Supervisory Service ("MSS") and that ifhe accepted this appointment, he would become an at-will employee and wouldreceive an increase in pay to bring his salary in line with other DistrictMSS employees. Def.'s Mot. Ex. H. Theplaintiff accepted the appointment to the MSS on October 1,2007. Id. As ofOctober 14,2007,

3Geleta continued to serve as Residential Treatment Center Certification and Monitoring Projects Manager, and his annual salary was $95,781.76. Def.'s Mot. Ex. P. ANALYSIS Defendantmoves for summaryjudgmentpursuantto Fed. R. Civ. P. 56. Summary judgment shall be granted when the record demonstrates "thatthere is no genuine issue as to any material fact and that the movant is entitled tojudgment as a matter oflaw." Fed. R. Civ. P. 56(c); 

### see also Celotex Corp. v. 

### Catrett, 477 U.S. 317, 322 (1986) (citing same). In deciding whether there is a disputed issue ofmaterial fact, the Court must draw alljustifiable inferences in favor ofthe non-moving party. 

### SeeAnderson v. 

### Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A party opposing a motion for summaryjudgment "may not rest upon the mere allegations or denials ofhis pleading, but

... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248 (citing Fed. R. Civ. P. 56(e)). Title VII makes it unlawful "for an employer to discriminate against any ofhis employees

...because [an employee] has opposed any practice made an unlawful employmentpractice by [Title VII], orbecause he has made a charge, testified, assisted,

orparticipated in any manner in an investigation, proceeding, orhearing under [Title VII]." 42 U.S.C. 

### § 2000e-3(a). Ifthe employer offers a legitimate, nondiscriminatory

reason for its action, as the defendant has here, a court shouldproceed to the question of retaliation 

### velnon. Brady v. 

### Office o/SergeantatArms, 520 F.3d 490,494 (D.C. Cir.

42008); see also Jones v. Bernanke, 557 F.3d 670,678 (D.C. Cir. 2009) (applyingBradyto Title VII retaliation claims). "Atthat stage, the only question is whether the employee's evidence creates a material dispute onthe ultimate issue ofretaliation." Jones, 557 F.3d at 678. Notably, the anti-retaliationprovision ofTitle VII does notprotect an individual from any and "all retaliation, but from retaliation that produces an injury or harm." BurlingtonN. & SantaFe Ry. Co. v. White, 548 U.S. 53,67 (2006). Thus, for a harm to rise to the level ofactionable retaliation, "aplaintiffmust showthat a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge ofdiscrimination." Id. at 68 (internal quotations omitted). Plaintiffclaims that after he attested to an incident ofdiscrimination against Taylor-Spriggs, the defendant retaliated against him by reassigning him away from DCCINGS. However, upon a close examination ofthe record, the Court concludes that

nojurorcould find that Geleta's reassignments would have constituted a materially adverse action in the mind ofa reasonable employee. As an initial matter, as described above, it is undisputed that Geleta's salary, employee grade, and rank only increased following his participation in the EEO process. Indeed, his salary rose several times, starting from $77,965 priorto his detail to Oak Hill and eventuallyreaching $95,781.76, when he becamepart ofthe MSS. See Def.'s Mot. Exs. M-P. Given that Geleta does not allege thathis reassignments affected his payorbenefits, his "claim ofan adverse

5employment action must therefore rest on a significant change in hisjobresponsibilities." Forkkio v. Powell, 306 F.3d 1127, 1131-32 (D.C. Cir. 2002). To that end, Geleta argues that there is a genuine issue regarding whetherhe maintained supervisory duties following his removal as ProjectDirector ofDCCINGS. He asserts that, unlike the defendant's characterization ofhis reassignments, he in fact lost all supervisory duties, which he alleges constitutes an adverse action. Although documentary evidence indicates that Geleta did supervise approximately twenty employees in his position as DCCINGS Project Director, see Def.'s Mot. Ex. K at DC 0048, the only evidence he points to for any subsequent loss ofsupervisory duties are declarations by himselfand Curran and what he terms a "reclassification" ofhis position from "supervisory" to "managerial" onposition description forms. See Pl.'s Opp'n 11- 12; Pl.'s Opp'nExs. 1-3; Def.'s Mot. Exs. G, K. Neitherthe declarations submitted nor the plaintiffs cited "reclassification" evidence supports a finding ofa materially adverse action because they do not indicate that he lost all supervisory duties. First, the Geleta and Curran declarations assert, without any documentary support, that Geleta did not supervise any employees when he was at OakHill orthe Office of Accountability. See Pl.'s Opp'nEx. 1at 92-93, Ex. 2**~** 4, Ex. 3**~** 8. Putting aside the fact that Geleta's detail to OakHill was merely a temporary position for thirty days, the declarations fail to account for the fact that thejob descriptions for his position as Residential Treatment Center Certification and Monitoring Projects Manager at the

6Office ofAccountability do provide for supervisory duties, both before and afterthat positionbecame part ofthe MSS. See Def.'s Mot. Ex. G at DC 0101 ("Supervises and directs aprimary investigator for each investigation assigned."); Def.'s Mot. Ex. I at DC 0052-0053 ("Provides leadership and supervision to all staff

....May also supervise ad hoc project staffas necessary.... Supervises and directs aprimary investigator for each investigation assigned."). "Thus, '[a]lthough, as a rule, statements made by the party opposing a motion for summaryjudgmentmustbe accepted as true for the purpose of ruling onthat motion, some statements are so conclusory as to come within an exception to that rule.'" Ass 'n of FlightAttendants-CWA v. 

# us. Dep 't ofTransp., 564 F.3d 462, 465 (D.C. Cir. 2009) (quoting Greene v. Dalton, 164 F.3d 671,675 (D.C. Cir. 1999)). Geleta's and Curran's statements fall into this exception and, therefore, do notprovide evidence that Geleta lost all supervisory duties in his reassignments. Second, Geleta's "reclassification" argument relies solely onthe fact that the officialposition description form for ProjectDirector for DCCINGS lists the position as "supervisory," whereas the position description for Residential Treatment Center Certification and Monitoring Projects Manager for the Office ofAccountability lists the

as "managerial." Compare Def.'s Mot. Ex. K at box 10 with Def.'s Mot. Ex. G at box 11. However, regardless ofwhatbox was checked on these forms, the narrativejob descriptions clearly indicate that Geleta's reassignments did not leave him "with 'significantly different'-anddiminished-supervisory and programmatic

7responsibilities." Czekalski v. Peters, 475 F.3d 360,364 (D.C. Cir. 2007). Instead, the description ofhis "major duties" as Residential Treatment Center Certification and Monitoring Projects Manager indicates significantmanagerial and leadership responsibilities, including oversight and supervision ofstaff. See Def.'s Mot. Exs. G, I. In fact, despite the plaintiffs attempt to analogize to Czekalski, Geleta's situation is entirely distinguishable. In Czekalski, the plaintiffproduced evidence that she went from overseeing 260 employees, 700 contractors, fifty programs, and a $400 million budgetto overseeing fewer than ten employees and one program with a minimal budget. 475 F.3d at 364-65. In sharp contrast, Geletahas producedjustthe conclusory statements found in his own and Curran's declarations that he went from supervising twenty employees to none. Furthermore, unlike the situation in Czekalski, Geleta did not suffer a step down within the DMH's organizational hierarchy when reassigned to the Office of Accountability, norwas he reduced to reporting to a former peer. See id. at 365. For similarreasons, Geleta's reassignments are dissimilarto the plaintiffs' in Holcomb v. Powell, 433 F.3d 889 (D.C. Cir. 2006), and Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir. 2003), the othertwo cases he relies on in his opposition to the defendant's motion. InHolcomb, the plaintiffs duties after herreassignment were six levels below her current employee grade and, remarkably, belowthe level at which she started her government employment ten years earlier. See 433 F.3d at 902-03. The Holcomb plaintiffwas also allowed to remain in this "professional purgatory" for over two years.

8Id. at 903. Geleta, by contrast, enjoyed a continuous increase in grade and step after his reassignment. See Def.'s Mot. Exs. M, N, & O. Moreover, in Stewart, the adverse action alleged was the denial ofthe plaintiff's application for his supervisor's position. See 352 F.3d at 427. To say the least, no such situation occurred here. The Supreme Courthas statedthat "[w]hether aparticularreassignment is materially adverse depends upon the circumstances ofthe particularcase, and should be judged from the perspective ofa reasonable person in the plaintiff'sposition, considering all the circumstances." BurlingtonN, 548 U.S. at 71 (internal quotations omitted). When viewed in light ofall ofthe circumstances, nojurorcould conclude that a reasonable employee would find that Geleta suffered a materially adverse action when he

was reassigned away from his position with DCCINGS. Instead, the undisputed evidence shows that he retained his title at Oak Hill; received successive pay increases; was promotedto higher grades and steps; and later earned a permanentposition with the Office ofAccountability that entailed significant managerial and supervisory duties. Thus, there being no evidence ofa materially adverse action, Geletahas failed to establish any genuine issue offact thathis employerretaliated against him in violation ofTitle VII. See id.; Forkkio, 306 F.3d at 1131-32.

9CONCLUSION For all ofthe foregoing reasons, the Court GRANTS the defendant's Motion for Summary Judgment and DISMISSES the action in its entirety. An order consistent with this decision accompanies this Memorandum Opinion. 

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# ~ United States DistrictJudge

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