UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHRISTOPHER B. WADE,

Plaintiff,

v. Civil Action No. 08-1187 (CKK) DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION (April 20, 2011)*

Plaintiff Christopher B. Wade, an officer in the District of Columbia Metropolitan Police

Department, brings this action alleging a hostile work environment based on sex and retaliation

by his employer in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq. Presently pending before the Court is Defendant’s [31] Motion for Summary Judgment.

Plaintiff has filed an opposition brief, and Defendant has filed a reply, and the motion is now ripe

for adjudication. For the reasons explained below, the Court shall grant Defendant’s motion with

respect to Wade’s hostile work environment claim and most of his retaliation claims and deny

the motion with respect to one of Wade’s retaliation claims.

I. BACKGROUND

Plaintiff Christopher B. Wade (“Wade”) has been employed as a patrol officer with the

Metropolitan Police Department (“MPD”) since 2002. Def.’s Stmt.1 ¶ 1. In May 2004, Wade

* The Court initially issued this Memorandum Opinion under seal on March 7, 2011. The Court now issues this public version with a few redactions and minor technical corrections. 1 The Court strictly adheres to the text of Local Civil Rule 7(h) (formerly Rule 56.1) when resolving motions for summary judgment. See Burke v. Gould,

(D.C. Cir. applied for and was assigned to the Office of Organizational Development (“OOD”) as a

technical writer in the Directive Development Unit (“DDU”) of the Policy and Program

Development Division (“PPDD”). Id. ¶ 2. During the period between October 2005 and October

2006, Wade worked under the direct supervision of Jo Hoots (“Hoots”), a civilian employee. Id.

¶ 3. From October 2005 until December 2006, Wade’s second-line supervisor in that office was

Debra Hoffmaster (“Hoffmaster”), also a civilian employee.

According to Wade, things changed dramatically when Hoots and Hoffmaster came to

PPDD. See Decl. of Christopher Wade (“Wade Decl.”) ¶ 6. At that time, Wade was one of four

men working in the PPDD. See id. The other three men were [REDACTED #1], [REDACTED

#2], and [REDACTED #3]. Id. ¶¶ 6-8. [REDACTED #1]’s working hours in the unit were from

5:30 A.M. to 2:00 P.M. Dep. of Christopher Wade (“Wade Dep.”) at 24. Hoffmaster told

everyone in the unit that they would have to work from 8:30 A.M. to 5 P.M., and [REDACTED

#1] asked to leave the unit. Id. Then, [REDACTED #1] was replaced with a woman who was

allowed to work the same hours that [REDACTED #1] had worked. Id. at 25. Wade claims that

after [REDACTED #1] left, Hoots and Hoffmaster began to pick on [REDACTED #2]. Wade

Decl. ¶ 7. Hoots submitted a memorandum up the chain of command asking for [REDACTED

#2] to be transferred, but her request was denied because she could not demonstrate any problems

2002) (finding that district courts must invoke the local rule before applying it to the case). The Court has advised the parties that it strictly adheres to Rule 7(h) and has stated that it “assumes 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.” [29] Order at 2 (Jan. 25, 2010). Thus, in most instances the Court shall cite only to one party’s Statement of Material Facts (“Stmt.”) unless a statement is contradicted by the opposing party, in which case the Court may cite a party’s Response to the Statement of Material Facts (“Resp. Stmt.”). The Court shall also cite directly to evidence in the record, where appropriate.

2 with his performance. Id. Wade claims that Hoots then began writing [REDACTED #2] up for

minor and non-existent infractions. Id. Around that time, [REDACTED #2] received notice that

he had made the list for promotion and requested a transfer until he received his promotion. Id.

[REDACTED #2] was replaced with a woman. Id. ¶ 9.

With [REDACTED #1] and [REDACTED #2] gone, the only men left in the unit were

Wade and [REDACTED #3]. According to [REDACTED #3], Hoffmaster subjected him to

supervision that was “very arbitrary, unprofessional, dictatorial and unnecessarily

micromanag[ing].” See Pl.’s Ex. 4 (MPD Office of Professional Responsibility Diversity and

EEO Compliance Unit Memorandum (Dec. 22, 2006)) (hereinafter, “MPD Investigation Report”)

at 13.2 [REDACTED #3]’s interactions with Hoffmaster caused him a lot of stress, and he was

eventually hospitalized because of a heart condition aggravated by job-related stress. See id. On

one occasion, [REDACTED #3] was told to write a report because he was late with a deadline.

Id. [REDACTED #3] also complained that Hoffmaster barraged him with demeaning emails

inquiring about his work. Id. at 13-14. [REDACTED #3] stated that he did not believe that the

females in the unit were subject to the same email traffic and monitoring as male members. Id. at

14. [REDACTED #3] also stated that he believed that [REDACTED #2] and [REDACTED #1]

were “pretty much forced out.” Id. [REDACTED #3] stated that he also had confrontations with

2 [REDACTED #3]’s statements are captured within an investigation report prepared by MPD. In its reply brief, Defendant objects to the Court’s consideration of this evidence on the grounds that it would not be admissible at trial. However, the investigation report may be admissible under the hearsay exception for public investigatory reports containing factual findings, see Fed. R. Evid. 803(8)(C), and [REDACTED #3]’s statements contained therein are likely admissible as admissions by a party-opponent because [REDACTED #3] gave the statements during the scope of his employment with MPD, see Fed. R. Evid. 801(d)(2)(D). Therefore, the Court shall consider this evidence as part of the record at summary judgment.

3 Hoots, whom he believed acted at Hoffmaster’s direction. Id. After [REDACTED #3] filed a

hostile work environment complaint, [REDACTED #3] was transferred out from under

Hoffmaster’s supervision in March 2006. Id. at 13-14.

Wade claims that after [REDACTED #3] was transferred, Hoots and Hoffmaster began

trying to force him out of the unit. In mid-May 2006, Wade requested leave to attend a training

seminar on writing skills. See Pl.’s Ex. 5, Att. 4. Hoots denied his request on the grounds that

Wade had already attended a writing course and that she wanted another employee to attend

instead. See Wade Decl. ¶ 10. According to Wade, however, he was the only one who had

requested to attend the course, and the other employee sent by Hoots was an editor who should

not have needed the training in question and had not requested to attend the course. Id. After

Hoots denied his training request, Hoots met with Wade and told him that he was “living on the

edge” because he handed in assignments on the day they were due. Id. ¶ 11. Hoots told Wade

that if he did not feel comfortable in the unit that he could always request a transfer. Id. Wade

felt that this meeting came from out of the blue and that he had not missed any deadlines. Id.

Wade felt like Hoots was trying to attack his performance so that he could be transferred out of

the unit. Id. ¶ 12.

In June 2006, Wade volunteered to assist with a youth initiative involving McGruff, the

crime-fighting mascot. Pl.’s Stmt. ¶ 5. However, Wade later learned that the volunteering would

require far more work than he had anticipated, and on July 12, 2006, he sent around an email

saying he no longer wished to be involved. Wade Decl. ¶ 13. The following week, Hoffmaster

told him that the assignment was mandatory. Id. Wade needed several days to put the

presentation together, leaving him unable to complete his other work for several days. Id. ¶ 14.

4 In addition, Wade was scheduled to be out of the office for various reasons, including jury duty

and testimony at a murder trial. See Pl.’s Ex. 5, Att. 7 at 1 (Emails between Wade and Hoots).

When Wade was unable to complete two assignments by July 27, 2006, Hoots asked Wade to

provide a written statement on a P.D. 119 form—which is typically used for taking statements

from suspects—explaining why he was unable to meet the deadline. Id. at 2 (7/27/2006 Email

from Hoots to Wade); MPD Investigation Report at 8. On August 14, 2006, Wade filled out a

P.D. 119 form explaining that he had missed the deadline because: (1) Hoots told him to focus on

the McGruff presentation and (2) he had been assaulted while working mandatory overtime on

the weekend and was placed on sick leave up until the deadline. See Pl.’s Ex. 7 at 1. Wade

submitted two additional statements on P.D. 119 forms on August 15, 2006. See id. at 2-3.

Wade’s coworkers reported that they did not know of any other employees in the unit who were

required to submit explanations for missed deadlines on P.D. 119 forms. See MPD Investigation

Report at 12-14, 22.

On August 1, 2006, Wade complained to the head of OOD, Senior Executive Director

Sampson Annan, about the harassment he had been receiving from Hoots and Hoffmaster. Wade

Dep. Tr. at 74-75. Annan told Wade there was nothing he could do about it but that Wade was

free to file an equal employment opportunity (“EEO”) complaint. Id. On August 15, 2006,

Wade met with the director of MPD’s EEO office to complain about what he perceived as

discriminatory treatment from Hoots and Hoffmaster. Id. at 76-77. Wade brought more

information about his treatment to the EEO office over time, and a formal complaint was filed on

October 20, 2006. Id. at 78; MPD Investigation Report at 1. Wade argues that Hoots and

Hoffmaster became aware of Wade’s EEO activity by around October 5, 2006. See MPD

5 Investigation Report at 19; Pl.’s Opp’n at 12; Pl.’s Ex. 17 (Emails between Hoffmaster and

Jacqueline Soares).

During August and September 2006, Wade was working on murder trials in court and

was out of the office for an extended period, and the record reflects that Hoots and Hoffmaster

were displeased with Wade’s absence. One of Wade’s coworkers overheard Hoots on the phone

trying to find out “if it was OK for Wade to be gone” for such long periods and whether she

could write him up for missing deadlines due to his duties in court. See MPD Investigation

Report at 12. Several other coworkers reported that Hoots was trying to find a way to stop Wade

from attending court. Id. at 13-14. One coworker opined that Hoots made unreasonable

demands on Wade in light of his court duties, saying it was “almost like they wanted miracles.”

Id. at 14. The OOD Chief of Staff met with Hoots and told her that she could not punish Wade

for performing his duties in court. See id. at 10-11. On September 6, 2006, Hoots sent Wade an

email complaining about his absence from the office and his missed deadlines. See Pl.’s Ex. 5,

Att. 5 (9/6/2006 Email from Hoots to Wade). In her email, Hoots stated that she thought Wade

must be “exceedingly unhappy” in the unit and asked if he wanted her to request a transfer for

him. See id. At some point during the murder trials, Wade asked Hoots for permission to

reschedule a week of redeployment that would have allowed Wade to earn overtime

compensation, but Hoots denied Wade’s request. See Wade Dep. at 90-91.

On October 5, 2006, Hoots requested that Wade be transferred out of her unit due to

missed deadlines associated with Wade’s court duties. See Pl.’s Ex. 6 (Memorandum from

Hoots to Michael J. Fitzgerald). Hoots requested that Wade be replaced with a female officer

who had previously applied for a position in the unit. Id. The record shows that Wade had asked

6 several times between August and October 2006 to be transferred to another unit within OOD

where he would not be under the supervision of Hoots and Hoffmaster. Def.’s Stmt. ¶ 10; Wade

Dep. at 105.

In early October 2006, Hoots altered two of Wade’s weekly activity reports, which record

the number of hours worked, after Wade had signed them. See MPD Investigation Report at 6;

Pl.’s Ex. 5, Att. 9 (Activity Reports). Hoots and Wade had a dispute about whether Wade had

properly filled out the reports, and Wade was concerned about Hoots’s corrections because Wade

would be liable for any errors. See Pl.’s Ex. 8 (Emails between Wade and Hoots) at 1-5.

In late October 2006, Hoots and Hoffmaster approved Wade’s fiscal year 2006

performance evaluation, giving Wade an overall rating of “Meets Expectations.” See Pl.’s Ex. 9

(Officer Performance Rating Form) at 3-4. Wade appealed this ruling, and on March 25, 2007,

an appeal panel granted Wade an increase to a rating of “Exceeds Expectations.” Id. at 1-2.

Wade contends that the rating assessed by Hoots was retaliatory. Hoots left the unit sometime in

late October.

On November 9, 2006, Wade filed a formal charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) claiming sex discrimination and retaliation.

Def.’s Stmt. ¶ 11; Def.’s Ex. 3 (11/9/2006 Charge of Discrimination). In that charge, Wade

complained that Hoots and Hoffmaster had treated him differently than female technical writers.

See Def.’s Ex. 3. Wade complained that in July 2006, Hoots had required him to perform duties

outside his job description and given him unreasonable amounts of time to complete his duties.

See id. Wade further stated that on August 1, 2006, he had complained about this discriminatory

treatment to Senior Executive Director Sampson Annan and told him that he would be filing an

7 equal employment opportunity (“EEO”) complaint. Id. Wade stated that Annan told Hoots

about Wade’s complaint and that Hoots then began to require him to provide written statements

that female technical writers were not required to provide. Id. Wade further complained that on

October 16, 2006, Hoots and Hoffmaster required that Wade report to them when he arrived at

work and when he left each day and what he was doing throughout the day, and that female

technical writers were not required to report in this manner. Id. Wade stated that he believed he

had been discriminated against because of his sex and in retaliation for filing an internal EEO

complaint. Id. Wade’s charge indicated that the discrimination began on July 1, 2006 at the

earliest, and he checked a box on the charge form indicating that the discrimination was a

“continuing action.” See id.

During the course of MPD’s investigation into Wade’s complaints of discrimination and

retaliation, Hoffmaster made inquiries regarding Wade’s use of time in the unit. See Pl.’s Ex. 17

(11/13/2006 File Memorandum). On November 30, 2006, Hoffmaster requested that Wade

provide her with a “plan of action aka timeline/taskplan” for getting orders completed by an

upcoming deadline. See Pl.’s Ex. 11 (11/30/2006 Email from Hoffmaster to Wade). Wade’s

coworkers told Wade they had not received a similar request. See Pl.’s Ex. 11 at 1-4.

On December 1, 2006, Hoffmaster told Wade that she wanted to meet with him and

Denise Pearson, who had replaced Jo Hoots as Wade’s direct supervisor, in her office later that

afternoon. Wade Dep. at 109. The request came shortly after Hoots had come back to the unit to

have a meeting with Hoffmaster. Id. Wade was unsure of whether to bring along a union

representative to the meeting because, according to Wade, the presence of a union representative

had upset Hoffmaster during a prior meeting. Id. at 110-11. Wade ultimately decided not to

8 bring a union representative because Pearson would be there as a witness. Id. at 111-12.

According to Wade, when he came to her office for the meeting, Hoffmaster remained standing

and commanded him to sit in a chair facing her desk instead of at the table where he would

usually sit during meetings in Hoffmaster’s office. Id. Hoffmaster purportedly told Wade that

the meeting was set up for Wade to deliver his task/timeline plan. Id. at 112. Wade told

Hoffmaster that he had already given her one, but she said it was not sufficient and started yelling

and pointing at him. Id. When he looked to Pearson to see if she was observing Hoffmaster’s

behavior, Hoffmaster pointed at him and told him to look at her when was speaking to him. Id.

Wade says that he told her he needed to get a union representative and started to leave, but

Hoffmaster told him to sit down and not to leave her office. Id. at 112-13. Hoffmaster claims

that Wade left her office without asking for permission or explaining that he wanted his union

representative, although Pearson claims that Wade did say he was going to get a union

representative. See MPD Investigation Report at 9, 16. Pearson reported that Hoffmaster

“screamed” at Wade three times as he was leaving her office. Id. at 16. Hoffmaster admits that

she raised her voice against Wade loud enough for someone outside her office to hear it. Id. at 9.

Wade returned to Hoffmaster’s office with a union representative as well as another

officer who worked in the OOD, Captain Ricky Mitchell. Wade Dep. at 114-15. According to

Wade, Hoffmaster acted civilly when he returned to the meeting. Id. at 114. Hoffmaster asked

Wade to confirm that he had left the meeting after she instructed him not to do so, which he did,

and then the meeting ended. Id. at 114, 117. Wade was so humiliated by the meeting that he

cried when he got back to his cubicle. Id. at 117. Wade testified that he felt intimidated by

Hoffmaster because she held a position of authority over him. Id. at 117-18.

9 Following the meeting on December 1, 2006, Hoffmaster initiated a procedure to

investigate and discipline Wade for failing to obey her order. See Pl.’s Ex. 12 (5/8/2007

Memorandum). Wade received an official reprimand on January 9, 2007, but this was later

rescinded on appeal. See id. The official reprimand stated that a copy of the reprimand would be

placed in Wade’s personnel folder and would be considered in performance evaluations and used

in deciding greater degrees of disciplinary action within a three-year period. Id. (1/9/2007

Official Reprimand). At some point after the meeting, Hoffmaster submitted a written request to

have Wade transferred out of the DDU, citing Wade’s failure to meet deadlines and his failure to

obey her order. See Pl.’s Ex. 13. On December 4, 2006, the MPD EEO office recommended that

Wade be detailed out of his position in the PPDD pending the outcome of the investigation

relating to disobeying Hoffmaster’s order. See Pl.’s Ex. 14 (12/4/2006 Memorandum to

Executive Asst. to Chief of Police from Jacqueline Johnson). On December 12, 2006, Wade was

detailed by the Assistant Chief of Police to the Sixth District Police Department. Def.’s Stmt. ¶

16. Wade became permanently assigned to the Sixth District in April 2007. Id.; Pl.’s Ex. 17.

Wade received an appointment to the police academy in June 2007. Def.’s Stmt. ¶ 20.

The MPD’s EEO office completed its investigation into Wade’s complaints and issued its

final report on December 22, 2006. See MPD Investigation Report at 1. The investigation found

insufficient evidence of a hostile work environment based on Wade’s gender but found that there

was reliable, credible evidence that Wade’s supervisors had retaliated against him for engaging in

protected EEO activity. See id. at 20.

On February 2, 2007, Wade filed a second charge of discrimination with the EEOC

amending his earlier charge. See Def.’s Ex. 4 (2/2/2007 Charge of Discrimination). Wade

10 complained that on December 1, 2006 he was “intimidated, degraded, and felt threatened” by

Hoffmaster. Id. Wade further complained about being detailed to the Sixth District on

December 12, 2006. Id. Wade also complained about that the official reprimand he received on

January 9, 2007 was in violation of MPD policy and the collective bargaining agreement. Id.

Wade further complained that Hoffmaster had instructed one of Wade’s co-workers to box up

Wade’s personal belongings, despite the fact that Wade is still assigned to the OOD office. Id.

Wade stated that he believed he had been discriminated against based on his sex and in

retaliation for both filing his internal EEO complaint and his formal charge with the EEOC. Id.

On February 12, 2007, the MPD EEO office wrote a letter to the EEOC responding to

Wade’s charges, describing briefly the nature of Wade’s allegations and the outcome of the

internal investigation. See Pl.’s Ex. 15 (2/12/2007 Letter from Jacqueline Johnson to EEOC).

II. LEGAL STANDARD

Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure

56. “The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials); or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to

11 properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .

consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When

considering a motion for summary judgment, the court may not make credibility determinations

or weigh the evidence; the evidence must be analyzed in the light most favorable to the

nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby,

Inc.,

(1986). “If material facts are at issue, or, though undisputed, are

susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,

(D.C. Cir. 2009) (citation omitted).

The mere existence of a factual dispute, by itself, is insufficient to bar summary

judgment. See Liberty Lobby, Inc.,

. “Only disputes over facts that might affect

the outcome of the suit under the governing law will properly preclude the entry of summary

judgment.”

For a dispute about a material fact to be “genuine,” there must be sufficient

admissible evidence that a reasonable trier of fact could find for the nonmoving party.

The

Court must determine “whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

. “If the evidence is merely colorable, or is not sufficiently probative, summary

judgment may be granted.”

(internal citations omitted). The adverse party must

“do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). Conclusory

assertions offered without any factual basis in the record cannot create a genuine dispute. See

Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp.,

(D.C. Cir. 2009).

12 III. DISCUSSION

In his Amended Complaint, Wade claims that Defendant discriminated against him on the

basis of his sex by creating a hostile work environment and retaliated against him for filing EEO

complaints protesting this discrimination. Specifically, Wade claims that his supervisors created

a hostile work environment by, inter alia, assigning him work beyond his job description, setting

unrealistic work priorities, lowering his performance evaluation, denying him training

opportunities afforded to his female colleagues, and treating him more harshly than his female

coworkers regarding missed deadlines. See generally Am. Compl. ¶¶ 9-10, 13-14, 21, 23-24, 34-

35. Wade also claims that his supervisors retaliated against him for reporting allegations of

discrimination to MPD’s EEO office by, inter alia, setting unrealistic work priorities, altering his

weekly activity reports, refusing to conduct his performance evaluation and then giving him a

poor evaluation, humiliating him during a meeting, and transferring him to the Sixth District.

See id. ¶¶ 14, 17-21, 24, 26-27, 31-32. Wade claims that as a result of the alleged discrimination

and retaliation, he suffered damage to his professional reputation and endured mental and

physical pain and suffering, embarassment, humiliation, and mental anguish. See id. ¶¶ 33, 36.

Defendant moves for summary judgment on Wade’s claims, raising three arguments.

First, Defendant contends that some of Wade’s claims must be dismissed for failure to exhaust

administrative remedies because they are not listed in the administrative charges that Wade filed

with the EEOC. Second, Defendant claims that Wade has failed to establish that he suffered an

adverse action as a result of the alleged retaliation or that such actions were causally connected to

the retaliation. Third, Defendant argues that Wade has failed to establish that the allegedly

discriminatory actions were severe or pervasive enough to constitute a hostile work environment.

13 The Court shall address the arguments below.

A. Exhaustion of Administrative Remedies

Defendant contends that Wade’s hostile work environment claim and several of his

discrimination claims are barred because he did not describe them in the charge of discrimination

he filed with the EEOC. “Title VII requires that a person complaining of a violation file an

administrative charge with the EEOC and allow the agency time to act on the charge.” Park v.

Howard Univ.,

(D.C. Cir. 1995). Any civil action that follows a charge of

discrimination “is limited in scope to claims that are ‘like or reasonably related to the allegations

of the charge and growing out of such allegations.’”

(quoting Cheek v. W. & S. Life Ins. Co.,

(7th Cir. 1994)); see also Na’im v. Rice,

(D.D.C. 2008). “At a minimum, the Title VII claims must arise from the administrative

investigation that can reasonably be expected to follow the charge of discrimination.” Park,

. Defendant bears the burden of proving by a preponderance of the evidence that the

plaintiff failed to exhaust administrative remedies. Nai’m v. Rice,

(citing

Brown v. Marsh,

(D.C. Cir. 1985)).

Defendant contends that Wade failed to exhaust his hostile work environment claim as

well as his retaliation claims based on: (1) the altering of his weekly reports; (2) the failure to

conduct his performance evaluation; (3) his receipt of a poor performance evaluation; and (4) the

requirement that he complete a task/timeline plan. Wade argues that all of his retaliation claims

are like or related to the claims stated in his formal charges and that the EEOC had an

opportunity to address all of his claims administratively prior to the filing of this action.

14 1. Hostile Work Environment Claim

Defendant argues that Wade’s hostile work environment claim must be dismissed

because Wade did not specifically claim the existence of a hostile work environment in his

formal charges of discrimination filed with the EEOC. Defendant relies primarily on the D.C.

Circuit’s decision in Park v. Howard University, in which the court held that the plaintiff had

failed to exhaust her hostile work environment claim because her charge of discrimination

alleged only that she was not selected for a promotion. See Park,

. The court

found that the plaintiff’s allegations “did not express or even hint at a . . . hostile work

environment claim.”

By contrast, Wade’s charges complained of multiple acts of

discriminatory and/or retaliatory conduct and alleged that the actions were continuing in nature.

This Court has previously held that a hostile work environment claim that is based on the same

conduct alleged in the EEOC charge has been exhausted. See Jones v. Billington,

(D.D.C. 1997); accord Na’im v. Rice, 557 F. Supp. 2d at 372 (quoting Robertson v. Snow,

(D.D.C. 2005)) (“A plaintiff may adequately exhaust administrative

remedies without specifically alleging a hostile work environment claim in [his] formal EEO

complaint so long as the hostile work environment claim is ‘like or reasonably related to the

allegations . . . [in the formal EEO complaint] and grows out of such allegations.’”). Because

Wade’s hostile work environment claim is based primarily on the allegations he raised in his

charges, the Court finds that he has exhausted his hostile work environment claim.

This finding is bolstered by the Supreme Court’s decision in National Railroad

Passenger Corp. v. Morgan,

(2002). In Morgan, the Supreme Court explained that

hostile work environment claims are different from discrimination or retaliation claims based on

15 discrete acts because they involve repeated conduct that occurs over a period of time and cannot

be said to occur on any particular day.

. Therefore, the Court held, a court

determining whether a hostile work environment exists may look to conduct that occurred

outside Title VII’s limitations period, which is either 180 or 300 days before the charge is filed,

see 42 U.S.C. § 2000e-5(e)(1).

. “Provided that an act contributing to the

claim occurs within the filing period, the entire time period of the hostile work environment may

be considered by a court for the purposes of determining liability.” Id. at 117. Similarly, where a

plaintiff files a charge of discrimination alleging a series of discriminatory acts that are logically

related, the plaintiff may be said to have exhausted a claim for hostile work environment based

on those acts.

2. Retaliation Claims

Defendant also contends that any retaliation claims based on discrete acts not enumerated

in Wade’s administrative charges must be dismissed for lack of exhaustion. Specifically,

Defendant seeks to dismiss any claims based on: (1) the alteration of Wade’s weekly reports; (2)

the failure to conduct Wade’s performance evaluation; (3) Wade’s receipt of a poor performance

evaluation; and (4) the requirement that Wade complete a task/timeline plan. Wade contends

that these claims have been exhausted because they are “like or reasonably related to the

allegations of the charge and growing out of such allegations.” Park,

.

Additionally, Wade contends that the record shows that the EEOC was actually informed about

these incidents during its investigation, and therefore the claims arise from “the administrative

investigation that can reasonably be expected to follow the charge of discrimination.”

As the D.C. Circuit explained in Park, “[t]he administrative charge requirement serves

16 the important purposes of giving the charged party notice of the claim and ‘narrow[ing] the

issues for prompt adjudication and decision.”

(quoting Laffey v. Nw. Airlines,

Inc.,

, 472 n.325 (D.C. Cir. 1976). “[A]llowing a complaint to encompass

allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC’s

investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as

surely as would an initial failure to file a timely EEOC charge.” Marshall v. Fed. Express Corp.,

(D.C. Cir. 1997) (quoting Schnellbaecher v. Baskin Clothing Co.,

(7th Cir. 1989). “Naturally every detail of the eventual complaint need not be presaged

in the EEOC filing, but the substance of . . . a Title VII claim[] must fall within the scope of ‘the

administrative investigation that can reasonably be expected to follow the charge of

discrimination.’”

(quoting Park,

).

In Marshall v. Federal Express Corp., the court held that an employee who complained

in her administrative charge that her employer denied her an opportunity to apply for a promotion

did not exhaust her claim for wrongful termination, explaining that “[t]he [Equal Employment

Opportunity] Commission could not reasonably be expected to investigate Marshall’s firing

based on the allegations in the charge, which spoke only of Federal Express’s failure to allow her

to apply for the Operations Agent job.”

. Similarly, in Hudson v. Children’s

National Medical Center,

(D.D.C. 2009), the court held that the plaintiff had

failed to his exhaust his administrative remedies with respect to claims for constructive discharge

and hostile work environment because the allegations in his charge focused solely on his

employer’s failure to select him for a promotion.

. The import of Park, Marshall, and

Hudson is that where the plaintiff’s administrative charge alleges only a single act of

17 discrimination, the plaintiff has failed to exhaust claims that rely on other acts not alleged in the

charge.

In other cases, however, courts have held that a plaintiff exhausted claims not specified in

the charge where it was clear that the EEOC would be aware of those claims during the course of

investigating the charge. For example, in Test v. Holder,

(D.D.C. 2009), the

court held that the plaintiff had exhausted certain retaliation claims by presenting them to the

EEOC during the course of its investigation into separate but related claims. See

. In

Lane v. Tschetter, Civil Action No. 05-1414,

(D.D.C. July 10, 2007), the

court held that an employee had exhausted a claim that her employer suspended her indefinitely

without pay by alleging in her administrative charge that the employer had terminated her on the

same date pending review by a grievance board. Id. at *5. The Court reasoned that the indefinite

suspension claim “was a foreseeable and logical consequence” of the decision to terminate, and

therefore it “would be reasonably expected to surface during an investigation of her EEO

charge.” Id. In Wiley v. Glassman,

(D.C. Cir. 2007), the D.C. Circuit held that the

district court erred by dismissing an employee’s retaliation claim on the basis that it was not

specifically listed in her formal administrative complaint.

. The court ruled that the

employee’s allegation that her employer had reduced the amount of broadcast airtime she was

responsible for producing reasonably grew out of her other allegations that her employer had

denied her career advancement and promotional opportunities.

In this case, Wade’s administrative charges filed with the EEOC identified a series of

allegedly discriminatory and retaliatory events over a time period that included the four actions

that Defendant claims were not exhausted, i.e., altering weekly activity reports, failing to conduct

18 a performance evaluation, delivering a negative performance evaluation, and requiring Wade to

complete a task/timeline plan. Wade argues that these claims were properly exhausted because

they were investigated by the MPD’s EEO office, and it is reasonable to assume that the EEOC’s

investigation would uncover the full panoply of allegations raised by Wade during MPD’s

internal investigation. The record shows that MPD sent a letter to the EEOC in response to the

charges indicating that Wade had complained about a hostile work environment and retaliation,

citing examples including the denial of training opportunities, delayed receipt of Wade’s 2006

performance evaluation, and complaints about Wade’s court obligations. The record also shows

that MPD’s investigation report explicitly addressed Wade’s complaints about his performance

evaluation, the requirement that he complete task/timeline reports, and the alterations to his

weekly activity reports. Therefore, the EEOC should have been aware of and reviewed these

claims when it investigated Wade’s charges. Accordingly, these claims “arise from the

administrative investigation that can reasonably be expected to follow the charge of

discrimination,” Park,

, and therefore the Court finds that Defendant has not met

its burden of demonstrating that the claims were not exhausted.

The Court does recognize that several courts in this district have suggested that the “like

or reasonably to” standard elicited in Park no longer applies in light of the Supreme Court’s

holding in National Passenger Rail Corp. v. Morgan that each discrete adverse employment

action individually triggers Title VII’s limitation period on filing claims. See Romero-Ostolaza

v. Ridge,

(D.D.C. 2005); Coleman-Adebayo v. Leavitt,

(D.D.C. 2004) (“Unfortunately for the plaintiff, Park no longer reflects the state

of the law.”). These courts held that Morgan requires a plaintiff to file a new administrative

19 charge to complain about retaliation that stems from the filing of the initial charge because

subsequent retaliation is a discrete employment action. But see Velikonja v. Mueller,

(D.D.C. 2004) (“[W]here the ends of administrative exhaustion have been

served by the pursuit of administrative remedies with regard to the subsequent acts, separate

initiation of administrative exhaustion for related post-complaint conduct is not required.”), aff’d

in part, rev’d in part on other grounds,

(D.C. Cir. 2006). The D.C. Circuit has not

yet addressed this issue. See Payne v. Salazar,

(D.C. Cir. 2010). However, this

case does not involve actions that occurred outside the time period described in the

administrative charges, and therefore the temporal concerns raised by Morgan do not come into

play. Therefore, the Court finds that Park is still controlling on the issue before the Court, viz.

whether Wade adequately presented his claims to the EEOC for investigation. Applying that

standard, the Court finds that all of Wade’s claims are “like or reasonably related to the

allegations of the charge and growing out of such allegations.”

.

B. Wade’s Retaliation Claims

Title VII makes it unlawful for an employer to “discriminate against any of his employees

or applicants for employment . . . because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42

U.S.C. § 2000e-3(a). Title VII claims are assessed pursuant to a burden-shifting framework

initially set out by the Supreme Court in McDonnell Douglas Corp. v. Green,

, 802-

03 (1973). As the D.C. Circuit has explained:

Under that framework, a plaintiff must first establish a prima facie case of retaliation

20 by showing (1) that he engaged in statutorily protected activity; (2) that he suffered a materially adverse action by his employer; and (3) that a causal link connects the two. If the plaintiff establishes a prima facie case, the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for its actions. If the employer does so, the burden-shifting framework disappears, and a court reviewing summary judgment looks to whether a reasonable jury could infer retaliation from all of the evidence, which includes not only the prima facie case but also the evidence the plaintiff offers to attack the employer’s proffered explanation for its action and other evidence of retaliation.

Jones v. Bernanke,

(D.C. Cir. 2009) (citations and quotations omitted). A

“materially adverse action” is an action that “could well dissuade a reasonable worker from

making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,

(2006). There is no dispute that Wade engaged in statutorily protected activity

by complaining about alleged discrimination to the MPD’s EEO office or to the EEOC.

However, Defendant contends that Wade cannot establish the other elements of a prima facie

case of retaliation.

Wade contends that there are eight alleged retaliatory actions that were materially adverse

to him: (1) denying him overtime; (2) forcing him to complete three P.D. 119 forms for a late

assignment; (3) giving him a poor performance rating; (4) altering his weekly activity reports; (5)

tracking his whereabouts by calling other departments to confirm his presence; (6) yelling and

screaming at Wade during the December 1, 2006 meeting; (7) issuing an official reprimand for

disobedience; and (8) involuntarily transferring him to the Sixth District. See Pl.’s Opp’n at 33-

34. The record shows that the first two actions occurred before Wade’s supervisors became

aware of his EEO activity; therefore, they cannot form the basis of any retaliation claim. The

Court also notes that Wade has failed to provide the Court with evidence supporting his claim

regarding the denial of overtime.

21 Wade’s next claim is that Hoots and Hoffmaster retaliated against him by giving him an

artificially low rating on his October 2006 performance evaluation. “In order for a performance

evaluation to be materially adverse, it must affect the employee’s ‘position, grade level, salary, or

promotion opportunities.’” Taylor v. Solis,

(D.C. Cir. 2009) (quoting

Baloch v. Kempthorne,

(D.C. Cir. 2008)). Although Wade has provided

evidence that his performance rating was lower than what was appropriate, he has not provided

any evidence demonstrating that a lower rating would have affected any of the terms of his

employment. Furthermore, the rating was reversed on appeal approximately five months later,

resulting in a more favorable evaluation. Accordingly, Wade has failed to establish that his poor

performance rating constitutes actionable retaliation. See

(“[Plaintiff’s] bare, conclusory

allegation that she was denied promotional and bonus opportunities [as a result of Defendant’s

retaliatory actions] does not discharge her burden to show the evaluations were ‘attached to

financial harms.”) (quoting Baloch,

).

Wade’s fourth claim is that Hoots retaliated against him by altering his weekly activity

reports. However, Wade does not argue that the alterations caused him any actual harm, and the

record shows, at best, that Wade and Hoots had a disagreement about how Wade should be

reporting his time. Disagreements with a supervisor are part of the ordinary tribulations of the

workplace. See Burlington,

(“An employee’s decision to report discriminatory

behavior cannot immunize that employee from those petty slights or minor annoyances that often

take place at work and that all employees experience.”). Similarly, Wade’s fifth claim—that his

supervisors were overly aggressive in tracking his whereabouts to ensure that he was not

avoiding his duties—involves a common aspect of the working environment, and Wade has not

22 explained how this caused him any harm. See

(“The antiretaliation provision protects an

individual not from all retaliation, but from retaliation that produces an injury or harm.”).

Therefore, no reasonable jury could conclude that the altering of weekly activity reports or the

efforts taken by Hoots and Hoffmaster to track Wade’s whereabouts constitute materially adverse

actions.

Wade’s sixth claim relates to the December 1, 2006 meeting during which Wade claims

he was demeaned by Hoffmaster and humiliated in front of his coworkers. Defendant argues that

“loss of reputation or prestige are not injuries that constitute ‘adverse actions’ for purposes of a

Title VII retaliation claim.” See Def.’s Reply at 7 (quoting Jordan v. Evans,

(D.D.C. 2004); see also Stewart v. Evans,

(D.C. Cir. 2002) (“[P]ublic

humiliation or loss of reputation does not constitute an adverse employment action under Title

VII.”). However, the authority cited by Defendant predates the Supreme Court’s decision in

Burlington Northern, which clarified that the scope of Title VII’s antiretaliation provision “is not

limited to discriminatory actions that affect the terms and conditions of employment.”

. The Supreme Court “phrase[d] the standard in general terms because the significance of

any given act of retaliation will often depend upon the particular circumstances. Context

matters.”

. Furthermore, “[c]ourts cannot examine whether any isolated action, on its

own, qualifies as ‘adverse.’ Instead, courts must consider whether ‘based upon the combined

effect of . . . alleged events, a reasonable worker could be dissuaded from engaging in protected

activity.’” Test v. Holder,

; see also Mogenhan v. Napolitano,

(D.C. Cir. 2010) (considering plaintiff’s proffered retaliatory actions both alone and

in combination to determine whether they were materially adverse). In Test, the court found that

23 the plaintiff had asserted a materially adverse action based on the employer’s scheduling

meetings at which the plaintiff could not attend, verbally assaulting him, undermining his

authority and reducing his workload, locking him out of the building, issuing him an unfavorable

performance evaluation, denying him a performance award, and refusing to discuss an individual

development plan with him.

.

Construing the record most favorably to Wade, the Court finds that the conduct of

Hoffmaster during the December 1, 2006 meeting—yelling at Wade for insubordination and

criticizing his inability to meet deadlines in front of other employees—could be construed by a

reasonable jury as a materially adverse action, especially when considered in conjunction with

the prior pattern of harassing conduct by Hoffmaster and Hoots. Cf. Mogenhan,

(finding materially adverse action where plaintiff’s supervisors branded her as a

troublemaker by publicizing her EEO complaint to other employees in the office). Although

employees must tolerate some amount of unprofessionalism from their supervisors, see Baloch,

(finding that supervisor’s “profanity-laden yelling” did not amount to adverse

action), reasonable employees might be dissuaded from complaining about discrimination if they

knew that doing so would subject them to continued harsh treatment from their supervisors and

humiliation in front of their peers. Wade has established a causal connection to his protected

activity because the allegedly retaliatory acts occurred shortly after his supervisors learned about

Wade’s EEO complaint and the MPD’s investigation. Accordingly, the Court shall deny

Defendant’s motion for summary judgment with respect to this claim.

Wade’s seventh alleged adverse action is the reprimand issued to him for disobedience,

which was later rescinded on appeal. As with a negative performance evaluation, however, a

24 reprimand is generally not actionable as retaliation unless there is some evidence that it caused

material harm to the employee. See Baloch,

. As this Court recently noted,

“mere speculation that a letter of reprimand may lead to future punishment is insufficient to

establish an adverse employment action.” Herbert v. Architect of the Capitol, Civil Action No.

07-1516,

, at *12 (D.D.C. Feb. 23, 2011) (citation omitted). The fact that the

reprimand was rescinded generally precludes a claim that the reprimand was materially adverse.

See Na’im, 626 F. Supp. 2d at 78 (holding that reprimand did not constitute materially adverse

action because it was rescinded). Therefore, the Court finds that the reprimand cannot constitute

a materially adverse action.

Wade’s final claim is that his transfer to the Sixth District was retaliatory. It is unclear

from the record whether Wade was transferred because of his own request to be transferred out

from under the supervision of Hoots and Hoffmaster, the requests submitted by Hoots and

Hoffmaster, or the request submitted by the MPD’s EEO office. However, construing the record

most favorably to Wade, the Court infers that his transfer may have been retaliatory. “Lateral

transfers—those entailing no diminution in pay and benefits—qualify as adverse employment

actions if they result in materially adverse consequences affecting the terms, conditions, or

privileges of the plaintiff’s employment.” Pardo-Kronemann v. Donovan,

(D.C. Cir. 2010) (quotation marks and citations omitted). Therefore, a jury may find that a

lateral transfer is actionable retaliation if the new position involves significantly diminished

responsibilities.

In this case, however, Wade has provided no evidence from which a jury

could conclude that his transfer to the Sixth District affected the terms, conditions, or privileges

of his employment. Wade does discuss the difference between his job as a technical writer and

25 his assignment to the Sixth District as a patrol officer in his opposition brief, but he does not

support this argument with citation to any evidence in the record. Therefore, Wade has failed to

support his claim that the transfer to the Sixth District constituted a materially adverse action.

Accordingly, the Court shall grant Defendant’s motion for summary judgment on this claim.

As explained above, the Court finds that Wade has established a prima facie case of

retaliation relating to his mistreatment during the December 1, 2006 meeting with Hoffmaster.

Defendant has not advanced a legitimate nonretaliatory reason for Hoffmaster’s actions during

this meeting, and therefore Wade’s prima facie case is sufficient evidence for a jury to make a

finding of retaliation. Accordingly, the Court shall deny Defendant’s motion for summary

judgment with respect to this claim. However, Wade has failed to establish a prima facie case of

retaliation with respect to the other actions he claims to be retaliatory because they either

occurred before his supervisors could have been aware of his protected activity or do not

constitute materially adverse actions. Therefore, the Court shall grant Defendant’s motion for

summary judgment with respect to Wade’s remaining retaliation claims.

C. Wade’s Hostile Work Environment Claim

Title VII makes it unlawful for an employer to “requir[e] people to work in a

discriminatorily hostile or abusive environment.” Harris v. Forklift Systems,

(1993). “To establish a prima facie hostile work environment claim, a plaintiff must demonstrate

(1) that he is a member of a protected class, (2) that he was subject to unwelcome harassment, (3)

that the harassment occurred because of his race or gender, (4) that he was subject to unwelcome

harassment, (4) that the harassment affected a term, condition, or privilege of employment, and

(5) that the employer knew or should have known of the harassment, and failed to act to prevent

26 it.” Hunter v. D.C. Child & Family Servs. Agency,

(D.D.C. 2010).

A hostile work environment is actionable under Title VII “[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,

(citations omitted) (quoting Meritor Savings Bank, FSB v. Vinson,

(1986)). In determining whether a work environment is hostile or abusive, courts

must look at all the circumstances, including the frequency and severity of the discriminatory

conduct, whether the conduct is physically threatening or humiliating as opposed to merely

offensive, and whether there is unreasonable interference with an employee’s work performance.

Id. at 23. In order to be actionable under the statute, a work 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). The “standards for judging hostility are sufficiently demanding to

ensure that Title VII does not become a ‘general civility code.’”

(quoting Oncale v.

Sundowner Offshore Servs., Inc.,

(1998)).

Defendant argues that Wade’s hostile work environment claim must be dismissed

because Wade has failed to establish that he suffered harassment that was sufficiently severe or

pervasive to alter the conditions of his employment. The Court agrees. “To prevail on . . . a

claim [for hostile work environment], a plaintiff must show that the employer subjected him to

‘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.’”

Baloch,

(quoting Harris,

). With the exception of the December

27 1, 2006 meeting, Wade has not alleged any incidents of intimidation, ridicule, or insult occurring

in the workplace. Rather, Wade’s hostile work environment claim is essentially an

amalgamation of disparate treatment claims. Courts have been reluctant to transform such

allegations into a cause of action for hostile work environment. See Lester v. Natsios,

(D.D.C. 2003) (“Discrete acts constituting discrimination or retaliation claims

. . . are different in kind from a hostile work environment claim that must be based on severe and

pervasive discriminatory intimidation or insult.”). Although incidents of disparate treatment can

establish a hostile work environment if connected in pervasive pattern of severe harassment, see

Faragher,

, the actions Wade complains about do not rise to this level.

Wade concedes that neither Hoots nor Hoffmaster made derogatory comments about men

or engaged in physical or sexual actions targeted toward the men in the office. See Pl.’s Opp’n at

24-25. Rather, Wade contends that his supervisors created a hostile work environment by

attempting to manufacture performance issues for male employees to force them to leave the

unit. However, courts have generally rejected hostile work environment claims that are based on

work-related actions by supervisors. See, e.g., Nurriddin v. Bolden,

(D.D.C. 2009) (“[T]he removal of important assignments, lowered performance evaluations, and

close scrutiny of assignments by management [cannot] be characterized as sufficiently

intimidating or offensive in an ordinary workplace context.”); Bell v. Gonzales,

(D.D.C. 2005) (finding that actions such as exclusion from the informal chain of

command, close monitoring of work, missed opportunities for teaching, travel, and high-profile

assignments, and reassignment to another unit did not amount to a hostile work environment

because “they cannot fairly be labeled abusive or offensive”); see also Houston v. SecTek, Inc.,

28

(D.D.C. 2010) (“Allegations of undesirable job assignment or modified

job functions and of [supervisor’s] unprofessional and offensive treatment are not sufficient to

establish that [plaintiff’s] work environment was permeated with discriminatory intimidation,

ridicule, and insult.”) (citation and quotation marks omitted). Under the circumstances, the

actions taken by Hoots and Hoffmaster were not objectively offensive.

Moreover, there is little evidence that the actions of Hoots and Hoffmaster unreasonably

interfered with Wade’s work performance. Although some additional time would have been

required to fill out the P.D. 119 forms and task/timeline plans required by Hoots and Hoffmaster,

the other actions supporting Wade’s hostile work environment claim—the denial of a training

opportunity, altering weekly activity reports, lowering his performance evaluation, and calling

other departments to determine his location—would not have significantly affected Wade’s

performance on the job. This is particularly true in light of the frequency with which Wade was

out of the office, which limited his contact with his supervisors. Although Wade was no doubt

annoyed and insulted by the actions of Hoots and Hoffmaster, they cannot fairly be characterized

as abusive or hostile, and there is no evidence that he was physically threatened by their actions.

Therefore, the Court finds that no reasonable jury could conclude that Wade’s workplace

was permeated with discriminatory conduct that was sufficiently severe to alter the terms and

conditions of Wade’s employment. Accordingly, the Court shall grant Defendant’s motion for

summary judgment with respect to Wade’s hostile work environment claim.

IV. CONCLUSION

For the reasons explained above, the Court finds that Wade has failed to establish the

existence of a hostile work environment and failed to establish a prima facie case of retaliation

29 except with respect to the alleged retaliatory actions taken by Defendant during a December 1,

2006 meeting. Accordingly, the Court shall GRANT-IN-PART and DENY-IN-PART

Defendant’s [31] Motion for Summary Judgment. An appropriate Order accompanies this

Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

30