# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 2 3-7085 September Term, 2023
F ILED O N : M AY 17, 2024

M ONICA H OCKADAY , A PPELL ANT

v.

W ASHINGTON M ETROPOLITAN A REA T RANSIT A UTHORITY , A PPELLEE

Appeal from the United States District Court for the District of Columbia (No. 1:21-cv-03265)

Before: H ENDERSON , K ATSAS , and C HILDS , Circuit Judges

.
JUDGMENT

This appeal was considered on the briefs and the district

- court record. The Court has fully considered the issues and determined that a published opinion is unwarranted. See Fed. R. App. P. 36; D.C. Cir. R. 36(d). It is

ORDERED that the judgment of the district court be AFFIRMED

.
I

Monica H o ckaday worked for the Washington Metropolitan Area Transit Authority as a police officer in the Metro Transit Police Department (MTPD) from 2002 until she retired in 2022. She was repeatedly promoted and eventually became a l ieutenant

. Hockaday claims to have been subjected to a hostile environment because of her race, sex, and protected activity. Answering contention interrogatories, she asserted that eight alleged acts constitut ed the hostile environment:

First , in 2008, supervisor George Burns allowed unnamed male employees to make sexist remarks. The emp loyees said that the MTPD did not “need any more women sergeants,” and one of them joked that, if Hockaday had not returned from sick leave, he would have give n her a “ lap2 dance.” D.A. 197. The summary

- judgment record contains no further evidence about these alleged comments or Burns’ s alleged acquiescence in them.

Second , in 2009, supervisor Robert Kirkpatrick gave Hockaday a “ poor ” evaluation. D.A. 196. The rec ord contains neither the evaluation nor any furth er evidence about it.

Third , in 2010, future

- Chief Ronald Pavlik told supervisor Brad Hanna to give Hockaday a “hard time” and make her life “ difficult
, ” though Hanna refused. D.A. 195. The record contains no further evidence of these alleged comments or any adverse actions ensuing from them.

Fourth , in 201 3
, Hockaday was reprimanded for unprofessional conduct at work. The record contains an MTPD report detailing what happened: A subo rdinate claimed that Hockaday herself had created a hostile environment, and supervisor Erhart Olson, investigating th is claim, concluded that Hockaday’s “loss of composure by yelling, flailing of arms, and slamming of books and other objects [was] not acceptable behavior by an MTPD lieutenant.” D.A. 110

. Fi

f

th , in January 2018
, Pavlik suspended Hockaday for 24 hours for unprofessional conduct after a Montgomery County police officer stopped her car

. The record contains a report by senior WMATA em ployee

- relations offic er Luis McSween, who reviewed a video of the traffic stop and concluded that the suspension had been “fairly carried out .” D.A. 116.

Sixth , in August 2018, Hockaday was reprimanded after supervisor Peter Sepulveda

conc l uded that she had accessed another agency’s computer system without proper training. The record contains no other evidence of this incident, though it does contain MTPD reports of other reprimands that Hockaday received in 2018 or 2019 for failing to ensure that subordinates kept adequate records, for losing her police credentials, and for crashing her vehicle into a parked car.

Seventh , Hockaday complains that a colleague, Lieutenant Jeffrey Miller, was not disciplined for his conduct in responding to a kidnapping in 2019. The record contains no other evidence of this incident. Eighth , in May 2020, Hock a day again was suspended for 24 hours , this time for mishandling evidence during an investigation

. The suspension was based on a report prepared by Lieutenant Beau Perrizo. Hockaday complained to WMATA’s employee

- relations department. Sharon Andrews, a senior offic ial there, conducted a “comprehensive review” of Hockaday’s

concerns and found that they “co uld not be corroborated

. ” D.A. 162

. To further challenge this suspension, Hockaday filed a formal EEO complaint with WMATA. In this case, she complains about four later actions that she says contributed to the hostile environment and were undertaken in retaliation for her filing th e complaint :
Ninth , in June 2020, WMATA denied Hockaday permission to take on 15 to 18 hours per week of outside employment . The denial rested on an assessment of Hockaday’s work performance by supervisor Stephen Boehm, who noted a pattern of Hockaday scheduling sick leave to align with her vacation days as well as a recent s uspension imposed by WMATA’s Office of Professional Responsibilities and Inspections.3 Tenth , in August 2020
, Hockaday received a “Solid Performer” performance evaluation for the 2019

– 20 rating period

. D.A. 170

– 73

. Eleventh , Hockaday complains about a September 2020 meeting to discuss her 2021 performance objectives. Hockaday claimed to feel “ uncomfortable and bullied” when Boehm, a higher

- level supervisor, showed up in addition to her immediate supervisor. D.A. 185

– 86. After Hockaday refused to go forward with the meeting, Boehm suspended her. One day later, the suspension was revoked, and Hockaday lost no pay from it

. Twelfth , Hockaday was placed on paid administrative leave pending resolution of an investigation

. About two weeks later, she returned to her duties. The district court granted summary judgment to WMATA

. On the hostile

- environment claim, the court noted that Hockaday’s summary

- judgment opposition cited only the complaint and no record evidence. The court then reasoned that Hockaday’s “ total failure to support her allegations with record evidence (or any real argument) ” doomed her claim. D.A. 406. Alternatively, the district court reviewed the summary

- judgment evidence and held that there were no genuine disputes of material fact. The court described Hockaday’s claim as “a disconnected list of grievances spanning nearly 15 years

. ” D.A. 406. It th en concluded that these various alleg ations
, involving “at least five supervisors and various unnamed colleagues, ” as well

as “types of slights” that “run the gamut” of workplace interactions, were not “adequately linked” into a “coherent hostile environme nt claim.” Id. at 410 ( cleaned up) . Instead, the court explained
, Hockaday had identified at most an “array of unrelated discriminatory or retaliatory acts.” Id. ( cleaned up ). Furthermore, the court held that the various alleged incidents, considered individually or together, were neither severe nor pervasive enough to constitute a hostile work environment. See id. at 406

– 10. Finally, the court observed that the re were “legitimate reasons” for most of the alleged actions. Id. at 408 (cleaned up)

. On the retaliation claim, the district court co ncluded that none of the disputed actions was materially adverse to Hockaday

. The court reasoned that denying Hockaday the oppor tunity to take a second job was not actionable

. Moreover, t here was no evidence that the 2020 performance evaluation caused Hockaday to lose pay or benefits

. Nor did h er placement on paid administrative leave pending an investigation

. Nor did her 2020 suspension , which was “rescinded the next day” and for which she “lost no pay.” D.A. 413

. II

A

On the hostile

- environment claim, the district court gave four considerations supporting summary judgment: Hockaday cited no record evidence in opposing the motion for summary judgment, the disputed actions were in sufficiently linked, the actions were insufficiently severe or pervasive , and there was little or no evidence of bias

. The first two considerations provide ample basis for affirmance.4 The district court permissibly granted summary judgment because Hockaday, in opposing summary judgment, cited no record material besides allegations in her complaint. D.A. 405

– 06. WMATA’s motion explained how Hockaday had “ failed to come forward with sufficient evidence to support a reasonable jury to find in her favor on one or more essential elements of her claim.” Grimes v. District of Columbia , 794 F.3d 83, 93 (D.C Cir. 2015). At that point, Hockaday had the burden to “present affirmative evidence ” in the record. Durant v. District of Columbia , 875 F.3d 685, 696 (D.C. Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 257 (1986)) ;

see Fed. R. Civ. P. 56(c) (1)(A) . For purposes of this rule, it is “well established” that a plaintiff

“ cannot rely on the allegations of her own complaint ,” but rather “ must substantiate them with evidence.” Grimes , 794 F.3d at 94. Moreover, a district court “need consider only the cited materials.” Fed. R. Civ. P. 56(c)(3). And if a party “ fails to properly support an assertion of fact,” the court may “consider the fact undisputed for purposes of the motion.” Id. 56( e )( 2). Hocka day says nothing about these points, which are adequate to support the summary judgment. In any event, the district court also correctly held that the constituent elements of the alleged hostile environment were not “adequately connected to each other.” Baird v. Gotbaum
, 662 F.3d 1246, 1252 (D.C. Cir. 2011). The “ acts giving rise to a hostile work environment claim
must ... [ be ] ‘part of the same unlawful employment practice.’” Id. (quoting Nat’l R.R. Passenger Corp . v. Morgan , 536 U.S. 101, 122 (2002)). This determination turns on whether the acts “involve d the same type of employment actions, occur red relatively frequently, and were perpetrated by the same managers.” Menoken v. Dhillon , 975 F.3d 1, 6 (D.C. Cir. 2 020) (cleaned up); see also Baird v. Gotbaum , 792 F.3d 166, 168

– 69 (D.C. Cir. 2015) . As the district court explained, the acts alleged here “run the gamut” of employment practices, including sexist remarks by coworkers , reprimands, one

- day suspensions, paid administrative leave, denial of outside employment, and more. D.A. 410. The incidents happened about once a year for nearly a decade and a half . And they involved many different supervisors and colleagues. The district court thus correctly held that the disputed incidents were at worst an “ array of unrelated discriminatory or retaliatory acts,” which might have been actionable individually but not as a hostile environment. Id. (quoting Baird , 662 F.3d at 12 52).

B The district court also properly granted summary judgment to WMATA on Hockaday’s retaliation claim. Such a claim must rest on acts that “ well might have dissuade d a reasonable worker from making or s upporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v. White , 548 U.S. 53, 68 (2006) (cleaned up)

. “Typically, a materially adverse action ... involves a significant change in employment stat u s, such as hiring
, firing, failing to promote, r eassignment with significantly different responsibilities, or a decision causing significant change in benefits

. ” Bridgeforth v. Jewell , 721 F.3d 661, 663 (D.C. Cir. 2013) (cleaned up). The district court explained why none of the four allegedly retaliat ory actions met this standard.

O n appeal, Hockaday focuses entirely on t he 2020 evaluation meeting and resulting suspension

. T o the extent she felt uncomfortable from having to confront two supervisors at once, D.A. 185

– 86, that was one of the “ petty slights or minor annoyances ” that cannot support a retaliation claim. See Burlington N. , 548 U.S. at 68. Moreover, the resulting suspension was5 r escinded after one day, and Hockaday lost no pay or other benefits as a result. Hockaday objects that the suspension, even though rescinded, made her ineligible for promotions for one year. She cites General Order 241, a policy directive governing MTPD promotions and implemented in 2011. D.A. 34 4 . Hockaday did not raise th is argument before the district court, so it is forfeited. Zevallos v. Obama , 793 F.3d 106, 118 (D.C. Cir. 2015). In any event, the policy does not speak directly to rescinded suspensions, D.A. 348, and it was discontinued in 2014 or 2015, see id. at 356–57, 363. Hockaday offers no evidence suggesting that her 2020 suspension, rescinded after one day, made her ineligible for promotions under a policy that itself was rescinded some five or six years earlier.

III For these reasons, we affirm the district court’s judgment. The Clerk is directed to withhold issuance of the mandate until seven days after resolution of any timely petition for rehearing or rehearing en banc

. See Fed. R. App. P. 41(b); D.C. Cir. R. 41(a)(1).

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy Deputy Clerk