UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VALERIE KLINE, : : Plaintiff, : : v. : Civil Action No. 07-0451 (JR) : LINDA M. SPRINGER, Director, : U.S. Office of Personnel : Management, : : Defendant. :

MEMORANDUM

Pro se plaintiff Valerie Kline, a white female, sues

the Director of the United States Office of Personnel Management,

alleging race and sex discrimination and retaliation in her

employment as an analyst in the Publications Management Group at

OPM. On March 13, 2009, I granted the government’s motion for

summary judgment.1 This memorandum explains that ruling, which

was entered, to put it most succinctly, because most of the

plaintiff’s complaints are not materially adverse employment

actions, and because, as to the rest, no reasonable juror could

find that any of them were discriminatory or retaliatory.

Analysis

Summary judgment “should be rendered if the pleadings,

the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material

1 On March 17, 2009, the plaintiff moved for reconsideration. That motion has been reviewed and will be denied. fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact

exists if the evidence “is such that a reasonable jury could

return a verdict for the nonmoving party,” Anderson v. Liberty

Lobby, Inc.,

(1986), but the party opposing a

motion for summary judgment must “go beyond the pleadings and by

her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.” Celotex Corp.

v. Catrett,

(1986) (internal citations

omitted). “[A] mere unsubstantiated allegation . . . creates no

genuine issue of fact and will not withstand summary judgment.”

Ginger v. District of Columbia,

(D.C. Cir. 2008)

(quoting, Harding v. Gray,

(D.C. Cir. 1993).

A. Legal Standards

“Under Title VII, the ADEA, and the Rehabilitation Act,

the two essential elements of a discrimination claim are that

(I) the plaintiff suffered an adverse employment action

(ii) because of the plaintiff’s race, color, religion, sex,

national origin, age, or disability.” Baloch v. Kempthorne,

(D.C. 2008). “[T]ypical adverse actions in

employment discrimination cases” are being “fired or denied a job

or promotion . . . [or] suffer[ing a] reduction[] in salary or

benefits,” Baloch,

, although other acts may

- 2 - qualify, such as “withdrawing an employee’s supervisory duties,”

Stewart v. Ashcroft,

(D.C. Cir. 2003), or

“reassignment with significantly different responsibilities,”

Forkkio v. Powell,

(D.C. Cir. 2002).

“To prove retaliation, the plaintiff generally must

establish that he or she suffered (I) a materially adverse action

(ii) because he or she had brought or threatened to bring a

discrimination claim.” Baloch,

. “Adverse

actions in the retaliation context encompass a broader sweep of

actions than those in a pure discrimination claim . . . [and] are

not limited to discriminatory actions that affect the terms and

conditions of employment and may extend to harms that are not

workplace-related or employment-related so long as a reasonable

employee would have found the challenged action materially

adverse,”

at 1198 fn. 4 (internal citation omitted), “which

in this context means it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination,”

Burlington Northern and Santa Fe Ry. Co. v. White,

(2006). Close temporal proximity to a plaintiff’s EEOC

activity can sometimes support an inference of retaliation, but

only when “the employer knew that the plaintiff engaged in

protected activity.” Moses v. Howard University Hosp.,

(D.D.C. 2007) (citing Holcomb v. Powell,

(D.C. Cir. 2006)).

- 3 - Because “there is nothing inherently suspicious about

an employer's decision to promote a minority applicant instead of

a white applicant . . . or to fire a white employee . . . a

majority-group plaintiff alleging Title VII discrimination . . .

must show additional background circumstances that support the

suspicion that the defendant is that unusual employer who

discriminates against the majority.” Mastro v. Potomac Elec.

Power Co.,

(D.C. Cir. 2006) (internal citations

and quotations omitted). “Two general categories of evidence

constitute background circumstances . . . evidence indicating

[that] the particular employer has some reason or inclination to

discriminate invidiously against whites . . . [and] evidence

indicating that there is something fishy about the facts of the

case at hand that raises an inference of discrimination.”

Mastro,

(internal citation omitted). A panel of

the Court of Appeals found “evidence [such] as political pressure

to promote a particular minority because of his race, pressure to

promote minorities in general, and proposed affirmative action

plans” sufficient to satisfy the first category.

(internal

citation omitted). “[E]vidence that a plaintiff was given little

or no consideration for a promotion and that the supervisor never

fully reviewed the qualifications of the minority promotee . . .

[or] that a minority applicant was promoted over four objectively

better-qualified white applicants in an unprecedented fashion”

- 4 - has been found sufficient to satisfy the second.

(internal citations omitted).

Because the defendant in this case has “asserted a

legitimate, non-discriminatory reason for” all of the allegedly

adverse acts, the required analysis proceeds directly to the

question of whether the contested acts were material, and whether

the plaintiff has “produced sufficient evidence for a reasonable

jury to find that the employer's asserted non-discriminatory

reason was not the actual reason and that the employer

intentionally discriminated [or retaliated] against the”

plaintiff. Brady v. Office of the Sergeant at Arms,

(D.C. Cir. 2008).

B. The Plaintiff’s Evidence Regarding “Background Circumstances”

The plaintiff first attempts to prove background

circumstances of reverse discrimination by asserting that, at

times relevant to the complaint, only three percent of employees

at PMG (one of 32) were white women, as compared to comprising 17

percent of the population in the Washington Capital area, and

27.5 percent of the federal workforce. Compl. ¶ 2. She cites

nothing but her complaint to support these figures, Pl. SMF at 3,

but even if the numbers were properly supported with record

evidence they would not be enough. Without additional context,

such as correctly defined pools, no reasonable juror could infer

- 5 - a background of reverse discrimination at PMG from the bare

numbers.2

C. The Discrimination Claims

The plaintiff has filed a number of EEO complaints.

This case involves three of them. The first was filed on

December 28, 2005, and complained of an October 19, 2005, “fully

successful” performance evaluation, the denial of a request to

“telework” (work remotely from home), and a December 8, 2005

2 See, McReynolds v. Sodexho Marriott Services, Inc.,

(D.D.C. 2004) (discussing the use of statistics in disparate treatment cases and citing to various D.C. Circuit cases); Whitener v. England,

(D.D.C. 2006) (“It is well-settled that merely noting the composition of a workforce, without more, cannot sustain a discrimination action.”) (citing, Wards Cove Packing Co., Inc. v. Atonio,

(1989) and Koger v. Reno,

(D.C. Cir. 1996)); Horvath v. Thompson,

(D.D.C. 2004) (“[E]vidence that merely indicates an underrepresentation . . . in the workforce does not itself establish pretext” and “absent a showing of their significance, [such] numbers are simply irrelevant.”); cf., Thomas v. Chao,

(D.C. Cir. 2003) (“The District Court was correct to exclude from evidence the list of employees identified by race and sex, and witness' observations about the race and sex of employees, in the absence of an expert who could testify that the alleged underrepresentation was statistically significant.”). In any event, PMG’s hiring practices are not at issue in this case. See, 45C Am. Jur. 2d Job Discrimination § 2410 (“statistics must pertain to the decision being challenged, and must be sufficient to raise the inference of disparate treatment discrimination with regard to the plaintiff's situation.”) (citing, Davis v. Califano,

(D.C. Cir. 1979). Even if the numbers were relevant, “[i]n individual disparate treatment cases . . . statistical evidence is less significant [than in pattern of practice cases] because the ultimate issue is whether the particular plaintiff was the victim of an illegitimately motivated employment decision.” Krodel v. Young,

(D.C. Cir. 1984).

- 6 - email sent to the plaintiff (and some of her colleagues) by her

supervisor, Davis. The second was filed on February 21, 2006,

and complained of the denial of a private office space, the

removal of the plaintiff’s “administrative rights” to a software

program, and coverage of the telephones. The third was filed on

March 21, 2006, and complained of a February 2, 2006 letter of

reprimand about over-reported time, and of disputes over her

lunch hour and her sick leave.

The plaintiff presents no direct proof of

discrimination. As support for her discrimination claim, she

asserts disparate treatment. For her retaliation claim she

asserts temporal proximity and permissible inference.

1. Denial of telework (race discrimination)3

After repeated denials of her requests, Pl. Aff. ¶¶ 6-

34; Opp. ex. 5, the plaintiff was given a trial period of

telework in the spring of 2005. The trial was terminated when it

was determined that she needed to be onsite to better complete

her day-to-day assignments and, among other things, to be

available to customers and because of a lack of coverage in her

absence. Opp. ex. 20. In October 2005 another request was

denied, this one made by her union representative after the

plaintiff’s mother became ill. Opp. at 2-3. She argues that an

3 Unless indicated, all of the other claims are for both race and sex discrimination, and for retaliation.

- 7 - inference of discrimination can be drawn from the fact that

Carter, a black female whose husband suffered several strokes,

was allowed to telework, as was another minority woman. Opp. 26-

30.

Carter, however, was not similarly situated. She was

an employment grade higher than the plaintiff and had different

responsibilities, including review of the plaintiff’s work. MSJ

at 27-28; Reply at 5-6, 9-10. Plaintiff’s other comparator was

not a PMG employee, but a temporary detailee who had been allowed

to telework before her assignment to PMG. Reply at 6, 9-10. The

plaintiff cannot “demonstrate that all of the relevant aspects of

her employment situation were nearly identical to” those

employees. Holbrook v. Reno,

(D.C. Cir. 1999)

(internal quotation omitted). Nor does she respond to the

government’s showing that other minority women were refused

telework for the same reasons as in the plaintiff’s case, Reply

at 10, or offer evidence of pretext on this point.

2. Performance evaluation

Plaintiff complains that a “fully successful” annual

performance appraisal was both discriminatory and retaliatory.

“[P]erformance reviews typically constitute adverse actions only

when attached to financial harms.” Baloch,

.

Here, there is evidence that PMG’s appraisals are related to

monetary rewards. See, Weber v. Battista,

(D.C.

- 8 - Cir. 2007). The defendant’s affiant testified that “to be

considered for a Sustained Superior Performance award, the

employee must have been rated at ‘Exceeds Fully Successful’ or

‘Outstanding’ on all important job elements,” Smith Aff. ¶ 5,

and that “no employee may receive a career ladder promotion who

has a rating below ‘Fully Successful’ on a critical element,” id.

¶ 7. There is also some anecdotal evidence of such a relation.

See, SurReply at 9; Reply at 11.

But the defendant argues that the plaintiff deserved

her evaluation, and points to an affidavit by Davis -- who gave

her the rating -- detailing his reasoning; an affidavit by

Benedi -- the director of the group -- concurring; and

significant undisputed evidence in the record supportive of the

proposition that the plaintiff had been warned about her

performance long before the issuance of the evaluation, and that

the rating and its criticisms, which were not insulting or

disparaging, were not inspired by retaliatory or discriminatory

animus. See generally, MSJ; Reply at 10-13; Dkt. #23 attchs. 1-

2. No reasonable juror could find these reasons pretextual.

The plaintiff’s assertions about her own performance

are self-serving and unsupported, and they will not give rise to

an inference of impermissible motive. Plaintiff seeks to compare

herself with Carter, and with a white man named Coco, both of

whom received “Outstanding” evaluations. Opp. ex. 35. As

- 9 - discussed above, however, Carter is not a similarly situated

comparator, and neither is Coco, whom the plaintiff assisted, and

who was a grade higher than the plaintiff and had different

responsibilities, including procurement and purchasing work.

Reply at 6. Moreover, whether Carter and Coco are valid

comparators or not, the plaintiff failed to show that her

performance was similar to theirs, merely asserting, mostly

without support, that Carter made a few mistakes too over the

course of a year, and noting that Coco once failed to respond to

an email she sent. Pl. Aff. ¶¶ 81, 131, 132.

Nor is there evidence from which a juror could find

that the plaintiff’s “fully successful” performance review was

retaliatory. The plaintiff has neither adduced evidence nor

pointed to anything in the record indicating that Davis knew

about her EEO activity when he gave her the appraisal. Indeed,

there is significant evidence in the record that the plaintiff

knew about her performance appraisal long before she commenced

her EEO activity. See, Opp. attch. 1; Opp. ex. 37. The

plaintiff was at some pains to make sure that the EEOC correctly

recorded the date of discrimination regarding her performance

appraisal as October 19, 2005 instead of November 28, 2005. Dkt.

#23 attch. 1 pgs. 8-9. Then, in her answer to interrogatories by

the EEOC, the plaintiff placed the issuance of her performance

ratings at November 7, 2005. Dkt. #23 attch. 1 pg. 41. A copy

- 10 - of the appraisal was provided to the plaintiff on November 22,

2005. Opp. ex. 37. The latest date on which Davis signed the

document was November 28, 2005. Opp ex. 28. And the plaintiff’s

EEO action was not initiated until her November 30, 2005

interview.4 Opp. at 6; Dkt. #23 attch. 2 pg. 73-74. Moreover,

the plaintiff’s appraisal for the previous year was “fully

successful.” Dkt. #23 attch. 1 pg. 10. So was her mid-year

review. Dkt. # 23 attch. 2 pg. 92.

3. Offensive email

The plaintiff complains about an email that Davis sent

on or about December 12, 2005. The email concerned a visit paid

to the plaintiff by a co-worker during which some changes were

made to the Federal Register Management System.5 Opp. ex. 37.

This was not an material adverse act under any standard. The

email was work-related, contained no disparaging or antagonistic

4 The plaintiff produced a document stating that she had called an EEOC counselor on November 17, 2005 to complain about the telework denial. Dkt. #56. But given the EEOC’s emphasis on anonymity, see,

; EEOC Management Directive-110, and the fact that the plaintiff’s EEO interview was November 30, 2005, the hypothetical possibility Davis could have known about the call (unaccompanied by even a theory of how he might have known) is insufficient for a reasonable juror to infer that he did. 5 The email stated: “Arlene: Good afternoon!!! I happened to notice that you were in our office twice today for a good amount of time. I then discovered that there are changes being made to [Federal Register Management System]. What changes? The FRMS is the responsibility of PMG and as such no changes, other then technical should be made without explicit authorization from Claudio or me. Please let me know what the current issue is and how it will affect this office.”

- 11 - language, see Baloch,

, and the plaintiff

has done nothing to undermine the accuracy of its factual

assertions.

4. Removal of administrative rights

Around December 22, 2005, the plaintiff’s

“administrative rights” to the FRMS system were removed. Opp. at

6. “Administrative rights” apparently give an individual the

ability to allow members of other offices access to the FRMS

system, and to make major changes to the system. Dkt. 23 attch.

1 pg. 11, 25; Reply at 15-16. The plaintiff points to no

evidence that such administrative rights were part of her job,

offers no explanation about how she actually used them, and does

not explain how, if at all, the rescission affected her. Neither

the generalized phrases in her job description that she cites

(that her position involves “state of the art publishing

systems”), nor her ipse dixit assertions that the rights were

important to her, make out a genuine issue of material fact.

Opp. at 35-36; Compare, Czekalski v. Peters,

(D.C.

Cir. 2007) (adverse act where employee overseeing 260 federal

employees, 700 contractors, 50 programs, and a $400 million

budget was reduced to overseeing fewer than 10 employees and one

program with a minimal budget.); Burlington,

(“We

speak of material adversity because we believe it is important to

separate significant from trivial harms.”) (quotations omitted).

- 12 - 5. Staff help

The plaintiff alleges that she was trying to meet a

deadline and was refused help answering the phones. SurReply. at

17-18. The allegation is taken as true, but this was not a

material adverse action. At most it was a petty slight. “Title

VII . . . does not set forth a general civility code for the

American workplace.” Burlington,

(internal

quotation omitted).

6. Office space

On December 21, 2005 plaintiff’s request for an office

was denied. The office had been assigned to a minority male

graphics designer for over a year. Opp. at 37; Pl. Aff. at

¶¶ 200-201. The plaintiff has neither produced nor cited to

evidence that she was in any way entitled to this space or that

the reason given for the denial of the request was pretextual.

It is undisputed that the space was “on loan” from another

department and already assigned. Opp. ex. 100; MSJ. attch 1.

pgs. 24-25. Indeed, the plaintiff concedes that at least two

other employees had priority over her claim to the space, and

they did not receive it either. Pl. SurReply at 11-12. Similar

requests by the plaintiff had been rejected long before she

engaged in any EEO activity. Pl. aff. ¶¶ 199, 200.

- 13 - 7. Lunch break

Around January 31, 2005, the plaintiff went to an

appointment in the morning. Upon her return, she requested of

Davis that the time be considered her lunch break. Pl. aff.

¶ 213. After checking with human resources, and being told that

the plaintiff could not do this, Davis advised the plaintiff that

she would have to take leave or make up the time she missed at

the end of the day. Pl. aff. ¶¶ 213, 214. This single incident

does not have the “requisite level of regularity or severity to

constitute material adversity for purposes of . . . retaliation”

or any other Title VII claim. Balloch,

.

8. Audit of time records and reprimand for over-reported time

The plaintiff complains that, around January 2006,

after he noticed the plaintiff come in late one day, Davis

reviewed her time records for the dates that on which Davis

himself had been on sick leave, recovering from surgery. Opp.

ex. 104; SurReply. at 15-16. The review itself, of course, was

not an adverse action. Nor was a letter of reprimand that Davis

sent about five hours and five minutes of over-reported time.

Opp. ex. 109. The letter did not affect the terms of the

plaintiff’s employment, it “contained no abusive language,” and

its content was based on records provided by human resources.

See, Baloch v. Kempthorne,

(letters of reprimand

not materially adverse acts in context of retaliation when they

- 14 - “contained no abusive language, but rather job-related

constructive criticism, which can prompt an employee to improve

her performance.”) (internal quotation omitted); Opp. exs. 104,

109. The reasons for the review and the issuance of the

reprimand are facially valid. Opp. exs. 103, 104, 109.

9. Leave tampering (retaliation)

The plaintiff theorizes that Davis, or someone at his

direction, tampered with her sick leave records sometime around

November 25, 2005, with the result that she was later denied sick

leave on January 10 and 21, 2006. Opp. at 23-24; SurReply at 17;

PL. SMF ¶ 43. Davis denies any tempering. MSJ ex. 3 pg. 26.

The plaintiff has provided no evidence that Davis was responsible

for any changes or for delay in correcting any errors. See

generally, Pl. SOMF; Opp.; SurReply. Nor were the changes

materially adverse, as the only consequence was that the

plaintiff had to use annual leave instead of sick leave on, at

most, two occasions.6

B. Hostile work environment

To prevail on a discrimination and/or retaliation

hostile work environment claim a plaintiff must show that her

employer subjected her to “discriminatory intimidation, ridicule,

6 At 3:50 P.M. on January 9th, the plaintiff called to tell Davis that she had a doctor’s appointment the next day. Opp. ex. 124. She did not provide him with a full accounting of her time records before January 11th.

January 21, 2006 was a Saturday.

- 15 - and insult” that is “sufficiently severe or pervasive to alter

the conditions of the victim’s employment and create an abusive

working environment.” Baloch,

; Hussain v.

Nicholson,

(D.C. Cir. 2006). “To determine

whether a hostile work environment exists, the court looks to the

totality of the circumstances, including the frequency of the

discriminatory conduct, its severity, its offensiveness, and

whether it interferes with an employee’s work performance.”

“[T]o be actionable . . . a sexually objectionable environment

must be both objectively and subjectively offensive, one that a

reasonable person would find hostile or abusive, and one that the

victim in fact did perceive to be so.” Faragher v. City of Boca

Raton,

(1998).

None “of the comments or actions directed at [the

plaintiff] expressly focused on [her] race.” Baloch,

. She has provided no evidence from which a reasonable juror

could reach an inference of any reverse racial discrimination.

Similarly, few of her contentions have any direct

connection to her sex. Those that do are based on

unsubstantiated allegations and assumptions which she makes no

effort to connect with any alleged harassment. For example, the

plaintiff speculates that several years before she filed suit,

Davis was “flirty” with her, felt spurned, and retaliated against

her when she ignored him. Pl. aff. ¶ 138. She provides no

- 16 - examples of this “flirty” behavior, nothing to substantiate the

allegation, and no connection between the supposed rejection and

anything that happened after. She asserts that Davis looked at

her breasts when giving her the performance evaluation, and that

she inferred from this that a quid pro quo was being offered, but

she fails to provide the slightest explanation for why she made

this assumption, let alone any direct or other circumstantial

evidence to corroborate its validity.

Her other hostile environment claims and arguments are

unsupported by record evidence, are completely unconnected to

impermissible motive, are not objectively offensive, or are

simply employee grievances completely untied to discriminatory

animus. “[T]he totality of circumstances presented in this

record does not rise to the level necessary to support a hostile

work environment claim.” Baloch,

.

JAMES ROBERTSON United States District Judge

- 17 -