UNITED STATESDISTRICT COURT FORTHE DISTRICT OF COLUMBIA DONALD S. JOHNSON, Plaintiff,


### v. CHARLES F. BOLDEN,JR., ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Defendant. ) ) ) ) ) ) Civil Case No. 08-1316 (RJL) ) ) ) ) ) )

### ~t­ MEMORANDUM OPINION (March3!, 2010) [# 13] Plaintiff, Donald S. Johnson ("Johnson"), brings this action against Charles F. Bolden, Jr. (the "defendant") alleging violation ofTitle VII ofthe Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, by his employer, theNational Aeronautics and Space Administration ("NASA"), for sex discrimination, retaliation, and a hostile work environment. 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 Plaintiffis an African-American male who has been employed by NASA as a GS13 Equal Opportunity ("EO") Specialist in the Complaints Division ofthe Office of Diversity and Equal Opportunity ("ODEO") at NASA Headquarters in Washington D.C.since 1999. 1 Compl.,-r,-r 6-8; Def.'s Mot. for Summ. J. ("Def.'s Mot.") Ex. A, Johnson Dep. 7: 10-20, July 8, 2009. In that capacity, Johnson's primary duties consist of processing, adjudication, and disposition ofindividual and class action complaints of employment discrimination filed againstNASA. Compl.,-r 9; Johnson Dep. 7:21-8:18. Overthe years that Johnson has worked at NASA, his average caseloadhas remained constant, with approximately thirty complaints ofdiscrimination at various stages of processing assigned to him at a given time. Johnson Dep. 129:9-130:3. In January 2003, Dr. Dorothy Hayden-WatkinsjoinedNASA as an Assistant Administrator for ODEO and served as Johnson's third-level supervisor at all times relevant to the complaint. Compl.,-r,-r 10-11; Johnson Dep. 12:20-13:l. When HaydenWatkins became head ofODEO, she addressed those areas ofODEO's workthat needed to show improvement. They includedprogrammatic shortfalls and slow or inefficient processing ofcomplaints. See Def.'s Mot. Exs. C-E. To that end, she formed an internal working group called Top ManagementReview Committee for Discrimination Complaints ("TMRC") to review the status ofpending EO complaints, including the pace ofprocessing. See Def.'s Mot. Ex. F, Hayden-Watkins Dep. 39:10-15, July 12,2006; see also id. Ex. I (firstpage ofagenda for a TMRC meeting). Hayden-Watkins also began the practice ofoutsourcing the majority ofNASA training to contractors. Johnson Dep.

Priorto 2003, ODEO was named the Office ofEqual Opportunity Programs. Compl. ,-r 11 n.1. 2120: 14-121 :3, 125: 18-126:9. As a result, Johnson no longerhadthe opportunityto conducttraining sessions himself, although he continuedto contribute to the development oftraining materials. Id. 125:18-126:9; Compl.**~** 20. This was the only change in plaintiffsresponsibilities afterthe arrival ofHayden-Watkins. Johnson Dep. 8: 19-9:25. As it turned out, Johnson and Hayden-Watkins had no direct communication on a daily basis. Johnson Dep. 12:20-23. Based on their limited interactions, however, Johnson believed that Hayden-Watkins was unfairly critical ofhim and othermale employees. See id. 42:16-48:24; Compl.**~~** 18-19. He also believed she excludedthem from meetings, although he did not identify any meetings in particularthat he was not allowed to attend. Compl.**~** 42; Johnson Dep. 44:6-18. When his cases were discussed at TMRC meetings, Johnson felt like he was placed in a "hot seat" andthat Hayden-Watkins would comment negatively onhis processing ofcases, although his primary complaint

was the tone in which she purportedly addressed him. See Johnson Dep. 42:16-48:24. On one occasion, Hayden-Watkins made a comment during a senior team management meeting, which she characterized as "flippant," to the effect ofmen not being able to "multi-task"the way women can. Def.'s Mot. Ex. G, Hayden-Watkins Dep. 72:15-74:16, July 12,2006. Johnson conceded, however, that Hayden-Watkins never made any derogatory oroffensive comments regarding his sex orrace. Johnson Dep. 73:16-19. Plaintiffs other complaints center onthe amount ofawards and bonuses he received, particularly in 2004 and 2005; whathe perceives as improper and negative comments in

3his performance appraisals rendered in 2004 and 2005; and his unsuccessful bid for a promotion to the GS-14 level. Compi.**~~** 26-29,32-38,55-65; Johnson Dep. 101:9-19. According to Johnson, he and a group ofODEO employees met with James Jennings, NASA'sAssistant Administrator, at least once each in 2004 and 2005, to complain about whatthey perceived as a hostile work environment created by HaydenWatkins. CompI.**~~** 39-41; Johnson Dep. 86:17-90:2. In particular, they informed Jennings that they believed Hayden-Watkins was motivated by a bias against men, especially black men. CompI.**~** 40; Johnson Dep. 88:13-18. OnJune 30, 2005, plaintiff initiated informal contact with an EEO counselor, alleging that "hewas discriminated against because ofhis gender, race, age, and reprisal when, he was given a Performance Appraisal in June 2005, that diminished hisjobperformance." Def.'s Mot. Ex. O. Johnson filed a formal complaint ofdiscrimination againstNASA on December 15,2005. Def. Mot. Ex. P. This suit followed on July 20,2008. ANALYSIS Defendantmoves for summaryjudgmentpursuantto Fed. R. Civ. P. 56. Summary judgment shall be granted whenthe 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 whetherthere is a disputed issue ofmaterial fact, the Courtmust draw alljustifiable inferences in favor ofthe non-moving party. SeeAnderson v. Liberty

4Lobby, Inc., 477 U.S. 242, 255 (1986). A party opposing a motion for summaryjudgment "maynot 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 ofthe Civil Rights Actprohibits the federal government from discriminating in employment on the grounds ofsex. 42 U.S.C. 

### § 2000e-16(a). This statute establishes two elements for an employment discrimination claim: "(i)the plaintiffsuffered an adverse employment action (ii) because ofthe employee's race, color, religion, sex, or national origin." Brady v. Office o/SergeantatArms, 520 F.3d 490,493 (D.C. Cir. 2008). Until recently, when aplaintiffhad notprovided direct evidence ofdiscrimination, the complexburden-shifting framework set forth in McDonnellDouglas Corp. 

### v. Green, 411 U.S. 792, 802-04 (1973), governed the Court's analysis. Our Circuithas now simplified this procedural structure. See Brady, 520 F.3d at 493-94. Pursuant to Brady, ifthe employee has suffered an adverse action and ifthe employerhas asserted a legitimate, nondiscriminatory reason for the action, then the Court shouldproceedto the question ofdiscrimination velnon. Id. at 494. In that case, the Court "mustresolve one central question: Has the employee produced sufficient evidence for a reasonablejuryto find that the employer's asserted non-discriminatory

reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis ofrace, color, religion, sex, or national origin?" Id. Johnson

5identifies a litany ofactions that he claims are adverse and stem from discrimination: exclusion from highprofile work assignments; denial ofbonuses and awards, particularly in 2004 and 2005; exclusion from meetings; denial ofthe opportunity to perform training; improper and unsubstantiated negative comments in performance appraisals from 2004 and 2005; and denial ofpromotion to the GS-14 level. PI.'s Opp'nto Def.'s Mot. for Summ. J. ("PI.'s Opp'n") 2. As an initial matter, several ofthe actions plaintiffchallenges are not adverse, and thus any claims ofdiscrimination stemming from them must fail as a matter oflaw. See Brady, 520 F.3d at 493. Our Circuithas made clearthat the harm must be '''objectively tangible'" rather than '''purely subjective injuries.'" Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (quoting Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002)). "Atangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Brown v. Brody, 199 F.3d 446, 456 (D.C. Cir. 1999). In other words, "noteverything that makes an employee unhappy is an actionable adverse action." Russellv. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) (quoting Smartv. BallState Univ., 89 F.3d 437,441 (7th Cir. 1996)). Here, plaintiffs complaints about lack ofopportunity to providetraining, exclusion from certain meetings (which he fails to identify), and exclusion from high profile assignments do not constitute adverse actions because none ofthese actions

6amount to more than general dissatisfaction with hisjob. See Forkkio, 306 F.3d at 1130- 31; see also Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002) ("Mere inconveniences and alteration of jobresponsibilities will not rise to the level ofadverse action.") (internal quotation marks omitted). 

### In contrast, the plaintiffhas identified adverse employment actions in his lack of promotionto the GS-14 level and the 2004 and 2005 bonus decisions. See Stewart v. Ashcroft, 352 F.3d 422,427 (D.C. Cir. 2003); Russell, 257 F.3d at 819. Similarly, to the extentthat his performance rating for the 2003-2004 performanceyear or the comments in the narrative portion ofthe appraisals from 2004 and 2005, whichhe perceives as unfairly negative, affected the amount ofbonus that he received in 2004 and 2005, those performance appraisals may constitute adverse actions. See Russell, 257 F.3d at 818-19;

see also Brown, 199 F.3d at 458 (suggesting that ifa performance evaluation affected an employee's grade or salary, it may be considered an adverse action). With respect to his lack ofpromotion, however, Johnson has failed to identify a single GS-14 promotionthat he soughtpriorto 2008, nor did he raise the issue ofpromotion at the administrative level during the relevantperiod ofhis Complaint. See Def.'s Reply Ex. B, Johnson Dep. 80:6- 83: 12, July 8, 2009. Thus, plaintiffhas failed to exhausthis claim regarding the GS-14 promotion and cannotprevail on his claim ofdiscrimination regarding this action. See 29 C.F.R. § 1614.105(a)(1) (2009). Furthermore, with respect to the 2004 and 2005 bonus decisions and performance

7appraisals, NASA has asserted a legitimate, non-discriminatory explanation: aprevailing view among management officials that deficiencies in plaintiffsperformance were affecting the quality ofhis workproduct and, as a result, the amount ofbonus that he wouldreceive. Hayden-Watkins identified the MB. case, in whichNASA lost its chance to appeal a finding ofdiscrimination because ofJohnson's administrative mishandling of the hearing file, as an example ofJohnson's unsatisfactory performance. See HaydenWatkins's Dep. 49: 11-51 :2; see also id. Exs. J-K. She further testified that she did not have enough day-to-day contactwith Johnson to recommend him for an award and that she would have relied upon a work group recommendation to determine his bonus amount. Hayden-Watkins's Dep. 12:21-13:13, 14:5-15:13. Johnson has offered no evidence in response to indicate thatNASA'sreasons are a pretext for discrimination. His appraisals includedpositive language in addition tojobrelated constructive criticism, as wouldbe expected in performance evaluations. See, e.g., Def.'s Mot. Ex. M ("Although Mr. Johnson has exhibited a thorough working knowledge and understanding ofthe federal employment laws, it is recommended that he

assume more personal accountability for his assignments and be solely accountable for his workproducts. Additionally, Mr. Johnson needs to develop a heightened sense of urgency for completion ofhis assignments."). The record also reflects that other male EO Specialists in other ODEO divisions received large bonuses, see PI.'s Opp'nEx. 9, and that the other male employee in Johnson's ODEO division was promotedto OS-I5 during

8Hayden-Watkins's tenure with her approval, see Def.'s Reply Ex. A, King Dep. 13:1-15, Sept. 23, 2009. Itis clearthat Johnson was subjectedto the defendant's standard evaluationprocess and that his bonus and award amounts were determined according to thatprocess. Itis not thejob ofthe Federal Courts to reevaluate these determinations absent any evidence ofdiscrimination. See Holcomb, 433 F.3d at 897 ("We have consistently declined to serve as a super-personnel department

....") (internal quotation marks omitted). Johnson has failed to produce sufficient evidence for a reasonablejuryto find thatNASA'strue motivation was discrimination and, as a result, his discrimination claim must fail. See Brady, 520 F.3d at 494. Title VII also 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). As in discrimination cases, ifthe employer offers a legitimate, nondiscriminatory reason for its action, a court shouldproceed to the question ofretaliation velnon. Jones v. Bernanke, 557 F.3d 670,678 (D.C. Cir. 2009). "Toprove retaliation, the plaintiffgenerally must establish that he or she suffered (i) a materially adverse action (ii) because he or she hadbrought orthreatened to bring a discrimination claim." Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008). Here, Johnson asserts that he suffered materially adverse actions in the form ofhis performance

9appraisal for the year ending in July 2004 and the amount ofbonus he received in 2004, which was made effective August 17,2004. See Pl.'s Opp'n20-23; Pl.'s Opp'nEx. 9. He predicates his retaliation claim on two activities: (1) his recommendation ofa finding ofdiscrimination in the S.J. case, a recommendation thatwas ultimately adopted by Hayden-Watkins, see Johnson Dep. 105:6-19, 108:1-10, and (2) contact with Jennings in June 2004 to complain about perceived harassmentby Hayden-Watkins, see id. 105:20- 106: 11. Neither is sufficient! Plaintiffsretaliation claim fails for several reasons. First, there is no evidence in the record that Johnson's recommendation, which he made in his role as an EO Specialist, constituted opposition ofan unlawful employmentpractice, and thus protected activity, especially given that his supervisors concurred in the recommended finding. See id. 26: 10-33:2, 106: 16-24. Plaintiffessentially concedes this point in his opposition. See PI.'s Opp'n 19-20 ("Defendantmay be correct in this assertion."). Second, plaintiff cannot establish any causal connection between his meeting with Jennings in June 2004 and the challenged actions taken by Hayden-Watkins. Plaintiffadmits thathe has no evidence, aside from his own speculation, that Hayden-Watkins had any knowledge of those meetings or thatplaintiffsuffered any adverse action as a result. See PI.'s Opp'n20 ("It is not known what, ifanything[,] Jennings did about Plaintiffand Mr. King's complaints to him, butthere was no reliefin sight for the harassment."); Johnson Dep. 105:20-106:7. In addition, the mere proximity oftwo and a halfmonths between

10plaintiffs June 2004 meeting with Jennings and the alleged adverse actions is insufficient to demonstrate causality. See Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009). Absent any evidence ofa causal connection, there is no genuine issue ofmaterial fact regarding the alleged retaliation, and Johnson's retaliation claim must fail. See Baloch, 550 F.3d at 1198. Finally, in determining whether a work environment is a hostile work environment, courts consider: "the frequency ofthe discriminatory conduct; its severity; whether it is physicallythreatening orhumiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's workperformance." Faragher v. City of BocaRaton, 524 U.S. 775, 787-88 (1998) (internal quotation marks omitted). The Supreme Courthas emphasizedthat the "standards forjudginghostility are sufficiently demanding to ensure that Title VII does not become a general civility code." Id. at 788 (internal quotation marks omitted). "Whenthe workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alterthe conditions ofthe victim's employment and create an abusive working environment, Title VII is violated." Harris v. ForkliftSys., Inc., 510 U.S. 17,21 (1993) (internal quotation marks and citations omitted). In this case, the distinct, disparate acts alleged by plaintiff, even when considered cumulatively, are not sufficiently "extremeto amount to a change in the terms and conditions ofemployment." Faragher, 524 U.S. at 788.

11First, Johnson acknowledges that his interactions with Hayden-Watkins were limited. See Johnson Dep. 42:16-20, 44:6-18. Second, nearly all ofplaintiff's allegations ofa hostile work environment, even iftaken as true, amountto nothing morethan plaintiff's objections to the management style ofHayden-Watkins and Barbara L. Spotts, who was also part ofhis chain ofcommand. See id. 45: 15-46:11 (admitting HaydenWatkins used no pejoratives or denigrating terms but characterizingher tone as "negative," "harsh," "unkind," and "dismissive"); Pl.'s Opp'n at 23-24 (complainingthat he and the othermale employee in his division were doing "most ofthe importantwork" but "getting no credit"). Even taking into account comments such as men not being able to multi-task or, as Johnson wildly claimed, an implied racial slurthat he read into one commentby Spotts, see Johnson Dep. 73:20-74:23, his complaints simply fail to rise to the level ofseverity necessary to constitute a legitimate hostile work environment claim. See Freedman v. MCI Telecomms. Corp., 255 F.3d 840,848 (D.C. Cir. 2001) (finding a supervisor's "nasty" attitude and "a singular stray comment" insufficientto establish a hostile environment). In short, no reasonablejurorwould find plaintiff's situation hostile

or abusive. Accordingly, his hostile environment claim must also fail. See Faragher, 524 U.S. at 788. CONCLUSION In sum, this is a classic example ofa Title VII case thathas no business in the Federal Courts. How ironic that it is beingpursued by an EO Specialist who probably

12shouldknow better. Hopefully in the future, Congress, the Executive, and the Courts will figure out a way to resolve these cases before they are added to our already crowded docket. In the meantime, 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 the Court's ruling accompanies this Memorandum Opinion. I

# ~ United States District Judge

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