Ng v. Lahood

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

PETER NG, )

)

Plaintiff, )

)

v. ) Civil Action No. 11-CV-0673 (KBJ)

)

RAY LAHOOD, SECRETARY, )

U.S. DEPARTMENT OF )

TRANSPORTATION , )

)

Defendant. )

)

____________________________________ )

MEMORANDUM OPINION & ORDER

Plaintiff Peter Ng filed this action on October 21, 2011, alleging three counts:

discrimination based on race (Count I), discrimination based on national origin (Count II), and

retaliation (Count III), all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000(e) et seq. Ng’s claims stem from actions taken by his employer, the Air Traffic

Organization (“ATO”), a division of the Federal Aviation Administration (“FAA”), and, by

extension, the Department of Transportation (“DOT”). Before the Court is Defendant’s Motion

for Summary Judgment pursuant to Fed. R. Civ. P. 56, as well as Ng’s motion, pursuant to Fed

R. Civ. P. 37, to strike certain declarations included in Defendant’s summary judgment briefing.

For the reasons set forth below, Ng’s Motion to Strike is DENIED, and Defendant’s Motion for

Summary Judgment is GRANTED.

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I. BACKGROUND

Ng is an Asian-American male of Chinese national origin. (Defendant’s Statement of

Undisputed Material Facts (“D-SOF”) ¶ 1 [ECF No. 21].) Ng has worked for ATO for over

thirty years. (Plaintiff’s Statement of Disputed Material Facts (“P-SOF”) ¶ 10 [ECF No. 24].) In

2006, Ng took the position of Technical Support Manager in ATO’s Communications Services

Unit (“Communications Unit”), and remained in that position at all times relevant to this action.

As a Technical Support Manager, Ng provided technical expertise in support of the

Communications Unit’s mission to provide timely and relevant information to ATO employees

and to communicate ATO programs and objectives to employees, customers, and stakeholders.

(D-SOF ¶ 2.) Although Ng was based in Boston, he was responsible for supervising employees

in Washington, D.C. (Complaint (“Compl.”) ¶¶ 6-7; D-SOF ¶ 3.) 1

Prior to the fall of 2008, Ng’s immediate supervisor was then-Communications Unit

Vice President Sandra Sanchez. (Compl. ¶¶ 8, 9; D-SOF ¶ 6.) In August of 2008, Gerald Lavey

replaced Sanchez and became Ng’s immediate supervisor. (Compl. ¶ 9.)

Ng’s allegations of discrimination arise out of the following acts. The facts are

undisputed except where otherwise noted:

Prior to Sanchez’s departure in August 2008, she recommended that Ng receive the

highest Superior Contribution Increase rating (“SCI”) for 2008—called SCI-1. 2 (Compl. ¶ 10.)

1

The permanent duty station for a Technical Support Manager is at FAA headquarters in

Washington, D.C. (D-SOF ¶ 3.)

2

The SCI is a bonus (in the form of a higher annual pay raise) available to FAA employees who

are recommended for such increase by their supervisor based on their superior performance.

Such employees can be recommended for either SCI-1 (which includes an additional 1.8% pay

raise) or SCI-2 (which includes an additional 0.6% pay raise). The recommendation of an

2

In October of 2008, two months after Lavey succeeded Sanchez to become Ng’s supervisor and

before Sanchez’s SCI recommendation for Ng was approved, Lavey recommended that Ng

receive the second-highest rating, SCI-2. (Compl. ¶ 11.) Lavey’s supervisor, John Pipes, chose

instead to credit the prior recommendation that Sanchez had made. (Compl. ¶ 13.) As a result,

Ng received the highest possible SCI rating for 2008. (Compl. ¶¶ 10-13.)

At the time Lavey became Ng’s supervisor, Lavey had four direct reports: Ng, Kimberly

Pyle, Edward Braese, and Terry Snyder. (D-SOF ¶¶ 7, 10.) In October of 2008, Lavey

undertook to restructure the Communications Unit by trimming the organizational structure from

four groups (each headed by one of Lavey’s four direct reports) to two groups. (D-SOF ¶¶ 10-

12.) As a result of the restructuring, Ng’s Technology Information group was subsumed into a

newly formed Communications Operations group and Ng began reporting to Braese, one of his

former peers, rather than directly to Lavey. (Plaintiff’s Brief in Opposition to Summary

Judgment (“Pl. Br.”) Ex. B [ECF No. 24-2]; D-SOF ¶ 13.) Similarly, Pyle’s Congressional

Communications group was folded into a newly formed Communications Strategy group, and

Pyle began reporting to Snyder rather than directly to Lavey. (D-SOF ¶ 14.) There was no

change “on paper” to the number of people Ng supervised, nor were any changes made to Ng’s

salary and benefits. (D-SOF ¶ 13.) Nevertheless, Ng asserts that the “reality” was different, in

that he was “prohibited from” communicating with his subordinates after that point.

(Defendant’s Brief in Support of Summary Judgment (“Def. Br.”) Ex. A (Deposition of Peter

Ng) (“Ng Dep.”) [ECF No. 21-1] at 22:6-17.) Ng also alleges that, after the restructuring, he

was excluded from management meetings. (Compl. ¶¶ 18-19.)

employee’s supervisor must be approved by a second-level official, generally the employee’s

second-level supervisor. (D-SOF ¶ 5.)

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In November of 2008, Ng submitted a request to Lavey to attend a training session about

administrative investigation. (Def. Br. Ex. 13 [ECF No. 21-2].) Lavey responded to Ng that a

“decision [had been] made” that only one member of the Communications Unit staff should

attend the training session. (Id.) One of Ng’s former colleagues, Terry Snyder, a white male and

one of two Communications Unit employees who directly reported to Lavey after the

restructuring, attended the training. (Compl. ¶¶ 22-25.)

In the course of his duties, Ng created and managed the technical aspects of a pilot

communications project known as the “Vortex Project.” (P-SOF ¶ 22.) The Vortex Project was

a system designed to convey information to ATO employees. (D-SOF ¶ 24.) Ng asserts that

certain Communications Unit employees opposed the project and consistently sought to

undermine it. (P-SOF ¶ 24.) Ng claims that sometime around the end of 2008 or the beginning

of 2009, his role in supervision of this project was significantly reduced. (Compl. ¶¶ 29-30.) Ng

alleges that Braese took over many of Ng’s duties with respect to the Vortex, including

substituting Braese’s name for Ng’s as a point of contact for the Vortex Project. (Compl. ¶ 30.)

Ng also alleges that his name was removed from the project wall, and many of his other Vortex-

related tasks were delegated to Richard Roberts, a lower-ranking member of the

Communications Unit. (P-SOF ¶ 25.)

In January 2009, Ng was directed to report to ATO headquarters in Washington, D.C., for

a 60-day period, to work on the Vortex Project. (Compl. ¶ 31; D-SOF ¶ 27.) Ng contends that

he was required to travel to the District of Columbia on the day after the Presidential

Inauguration, making it difficult for him to obtain travel and living accommodations. (Compl. ¶

32.) Ng also claims that, upon arrival, Ng found that all other employees had been instructed to

work from home that day. (Compl. ¶ 33.) Additionally, Ng maintains that, when he arrived in

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Washington, “there was nothing for [him] to do,” causing him to feel “embarrassed when other

employees saw him sitting with nothing to do.” (P-SOF ¶ 31.) Ng did not spend the entirety of

the 60 days in Washington, instead leaving for at least three weeks for various non-Vortex

related events. (D-SOF ¶ 32.)

Finally, while not included in the Complaint or in his Statement of Disputed Material

Facts, Ng’s summary judgment brief includes allegations that employees in the Communications

Unit at times made disparaging comments regarding his accent. (Pl. Br. at 20-22.) Specifically,

Ng alleges that Pyle made fun of his accent at a staff meeting; that on several occasions Claudia

Bogard (another Communications Unit employee) said that she could not understand Ng; and

that Braese consistently made snide comments that Ng alleges were racially motivated. (Id.) 3

II. LEGAL PRINCIPLES

A. Standard of Review for Summary Judgment

Summary judgment is appropriate when the moving party demonstrates that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Moore

v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). To establish a genuine issue of material fact, the

nonmoving party must demonstrate—through affidavits or other competent evidence (Fed. R.

Civ. P. 56(c)(1))—that the quantum of evidence “is such that a reasonable jury could return a

verdict for the nonmoving party.” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting

Anderson, 477 U.S. at 248). While the Court views all facts in the light most favorable to the

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Sandra Sanchez, Lavey’s predecessor and Ng’s former supervisor, testified that these

comments included Braese complaining that Ng was hard to understand. (Pl. Br. Ex. A (Sanchez

Deposition) at 134:9-18.) Sanchez also testified that Braese expressed skepticism that Ng had

actually done work that was attributed to Ng. (Id. at 134:9-18.)

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nonmoving party in reaching that determination, Keyes v. District of Columbia, 372 F.3d 434,

436 (D.C. Cir. 2004), the nonmoving party must nevertheless provide more than “a scintilla of

evidence” in support of its position. Anderson, 477 U.S. at 252. Finally, “although summary

judgment must be approached with special caution in discrimination cases, a plaintiff is not

relieved of [his] obligation to support [his] allegations by affidavits or other competent evidence

showing that there is a genuine issue for trial.” Adair v. Solis, 742 F. Supp. 2d 40, 50 (D.D.C.

2010), aff'd, 473 Fed. Appx. 1 (D.C. Cir. 2012) (internal quotation marks and citations omitted).

B. Legal Standard for Employment Discrimination and Retaliation

Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to discharge

any individual, or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual's race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Title VII “establishes two

elements for an employment discrimination case: (i) the plaintiff suffered an adverse

employment action (ii) because of the employee’s race, color, religion, sex, or national origin.”

Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). An adverse

employment action is “a significant change in employment status, such as hiring, firing, failing

to promote, reassignment with significantly different responsibilities, or a decision causing

significant change in benefits.” Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C. Cir. 2011)

(internal quotation marks omitted). To prove a retaliation claim, a plaintiff must establish “(1)

that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially

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adverse action against him; and (3) that the employer took the action ‘because’ the employee

opposed the practice.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012). 4

Traditionally, courts have examined Title VII discrimination claims under the three-step

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

However, the D.C. Circuit has clarified that, “in a Title VII disparate-treatment suit where an

employee has suffered an adverse employment action and an employer has asserted a legitimate,

non-discriminatory reason for the decision, the district court need not—and should not—decide

whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady,

520 F.3d at 494. Instead, the court must simply determine 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 against the

employee on the basis of race . . .” Id.

C. Standard for Reviewing Motions to Strike Supporting Affidavits

“The decision to grant or deny a motion to strike is vested in the trial judge's sound

discretion.” Canady v. Erbe Elektromedizin GmbH, 384 F. Supp. 2d 176, 180 (D.D.C. 2005).

The moving party “bears a heavy burden as courts generally disfavor motions to strike.” (Id.) “A

court may strike all improper portions of an affidavit or declaration used to support or to oppose

a motion for summary judgment, but in resolving a motion to strike a court uses a scalpel, not a

butcher knife.” Ascom Hasler Mailing Systems, Inc. v. U.S. Postal Service, 815 F. Supp. 2d 148,

162-163 (D.D.C. 2011) (internal citations and quotations omitted).

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In order to succeed on a retaliation claim under Title VII, a plaintiff must show that retaliation

was the but-for cause of the adverse employment action at issue. University of Texas

Southwestern Medical Center v. Nassar, --- S. Ct. ----, No. 12-484, slip op. at 11-12 (June 24,

2013).

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III. NG’S MOTION TO STRIKE

In support of its motion for summary judgment, Defendant submitted three declarations

from employees in the Communications Unit: Claudia Bogard, Thomas Novak, and Edward

Braese. Ng requests that the Court strike these declarations in full because they were submitted

after the close of discovery, and because Ng alleges that the written declarations contradict prior

deposition testimony of the declarants. (See Plaintiff’s Motion to Strike (“Mtn. to Strike”) at 1

[ECF No. 25]; Plaintiff’s Reply in Support of Motion to Strike (“Pl. Reply”) at 1 [ECF No. 30].)

Defendant responds that the declarations were correctly and timely filed pursuant to Fed R. Civ.

P. 56(c)(4) and 6(c)(2), and that Ng has mischaracterized any purported “inconsistent”

testimony.

Ng has failed to carry his burden of establishing that the challenged declarations should

be stricken. There is no question that Rule 56 contemplates that a movant may submit

supporting materials, including affidavits and declarations, along with a motion for summary

judgment. The Rule sets out guidelines for such submissions, stating that they “must be made on

personal knowledge, set out facts that would be admissible in evidence, and show that the affiant

or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Ng does not

challenge the admissibility of the declarations on any of the grounds described in Rule 56(c)(4),

but argues instead that the declarations “violate the Court’s Scheduling Order” because they

were submitted after the close of discovery. (Mtn. to Strike at 2.) Ng cites no authority for this

proposition—nor can he, as the Federal Rules expressly contemplate declarations in support of

summary judgment, regardless of when in the discovery process the motion is filed. See, e.g.,

Johnson v. Shinseki, 811 F. Supp. 2d 336, 342 (D.D.C. 2011) (denying motion to strike post-

discovery declaration in opposition to summary judgment).

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Ng also argues (solely in his reply brief) that the declarations should be stricken because

they contradict prior deposition testimony of the declarants. Ng is correct that “ordinarily, a

party cannot submit a declaration after close of discovery . . . that contradicts its deposition

testimony.” Chowdhury v. Hilton Hotels Corp., No. 08-cv-2250, 2011 WL 3742721, at *1

(D.D.C. Aug. 25, 2011). However, “the [declaration] must clearly contradict prior sworn

testimony, rather than clarify confusing or ambiguous testimony.” St. Paul Mercury Ins. Co. v.

Capitol Sprinkler Inspection, Inc., 573 F. Supp. 2d 152, 160-161 (D.D.C. 2008). Here, the Court

finds that the allegedly contradictory testimony Ng identifies is not “clearly” contradictory, nor is

it contradictory at all.

Ng first argues that Bogard’s written declaration suddenly provides reasons for why

certain Communications Unit employees did not have their reporting structure changed as a

result of the October, 2008, internal reorganization, while during her deposition she testified that

she was not aware of such reasons. (Pl. Reply at 2-3.) But closer inspection reveals that Ng has

misattributed the relevant deposition testimony: it was Braese, not Bogard, who professed under

oath not to remember. (See Def. Surreply [ECF No. 33], Ex. 1 at 21:10-16.)

Next, Ng argues that Braese stated in his written declaration that none of Ng’s

supervisory responsibilities changed after the reorganization, but at his deposition, Braese

testified that he had shouldered some of Ng’s responsibilities due to the restructuring. (Pl. Reply

at 3.) However, even a cursory review of the deposition transcript shows that Braese was

making a general reference to his new role as the employee to whom Ng reported, and was not

discussing any specific reduction in Ng’s level of supervisory responsibility. (See Def. Surreply,

Ex. 1 at 45:14-19.) Consequently, there is no inconsistency at all—much less a clear

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contradiction—between Braese’s testimony and his written declaration in regard to Ng’s

supervisory responsibilities.

Finally, Ng contends that Braese’s written declaration contradicted Braese’s deposition

testimony insofar as the declaration states that certain management training, which Ng had not

completed, was “mandatory” before Ng was eligible for the additional investigation training that

Ng sought to attend. (Pl. Reply at 3.) Specifically, Ng claims that, when Braese was asked in his

deposition how he knew that management training was mandatory, Braese said something that

indicated he was unsure of whether the management training was in fact mandatory. (Id.) But

the full quote from Braese’s deposition paints a very different picture:

Q: And when you say that the management training was mandatory how do you

know that? I mean from where do we know that? . . .

A: I’d have to get back with you. I mean I’m not positive what the requirement –

I know that it’s a management requirement when you assume a management role

in the FAA you must complete certain management courses within a specific

period of time.

(Def. Surreply, Ex. 1 at 37:7-16.) Because Braese’s full deposition testimony makes it clear that

he was well aware that management training was mandatory, Ng has once again failed to identify

any actual contradiction between the declarants’ deposition testimony and the statements in their

declarations.

Therefore, for the reasons set forth above, Ng’s motion to strike is DENIED. 5

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Even if there was merit to the contentions in Ng’s motion to strike, it would not affect the

ultimate disposition of Defendant’s motion for summary judgment, infra, as the Court does not

rely on any of the purportedly “contradictory” facts raised by Ng in ruling on the motion for

summary judgment.

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IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

For the reasons that follow, the Court GRANTS Defendant’s Motion for Summary

Judgment and dismisses Ng’s discrimination case.

A. Ng Has Failed to Identify Any Adverse Employment Actions

Ng identifies five incidents as the basis for his discrimination claims. As explained

below, none qualifies as an “adverse employment action” for the purposes of Title VII.

First, Ng’s Complaint contains allegations related to Lavey’s recommendation that Ng

warranted an SCI-2, rather than SCI-1, rating for 2008. (Compl. ¶ 10-13.) But, as Ng has

acknowledged from the filing of his Complaint, Lavey’s supervisor rejected Lavey’s

recommendation and instead awarded Ng the highest SCI rating for the relevant time period.

(Compl. ¶ 13.) The fact that Ng was awarded the highest possible merit bonus cannot be

construed as adverse in any sense, and it certainly falls short of meeting the definition of an

“adverse employment action” for the purposes of Title VII. Accordingly, Ng has failed to allege

adequately that he suffered an adverse employment action with respect to his SCI claim. 6

Second, Ng argues that the reorganization of his unit, which resulted in his reporting to

someone who had previously been his peer, was effectively a demotion and thus an adverse

employment action. (Pl. Br. at 15-16.) The gravamen of Ng’s complaint with regard to the

reorganization is that it “require[d] him to report to someone subordinate to Lavey,” whereas he

6

It is also noteworthy that Ng’s response to the defendant’s summary judgment motion does not

address the SCI claim as a basis for his discrimination claims at all, despite the fact that the

Defendant argues against Ng’s SCI claim at some length (Def. Br. at 7-9). Thus, even if the SCI-

related facts that Ng alleges were sufficient to describe an adverse employment action under

Title VII, Ng has conceded any discrimination claim based on that action. See Morris v.

Jackson, 842 F. Supp. 2d 171, 176 n.2 (D.D.C. 2012) (“It is well understood in [the D.C.] Circuit

that when a plaintiff files an opposition . . . addressing only certain arguments raised by the

defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”).

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had previously reported directly to Lavey. (Pl. Br. at 15.) There is no dispute, however, that

Ng’s salary and benefits remained the same after the reorganization. (D-SOF ¶ 13.) Moreover,

Lavey’s email of October 21, 2008, which announced the reorganization—and which Ng himself

cites as evidence to support his claim—explicitly noted that Ng would “continue to manage the

same group he now has.” (Pl. Br. Exhibit B.) Prior decisions of this Court clearly establish that

an employee’s having to report to a former peer as the result of a reorganization does not

constitute an adverse employment action for Title VII purposes. See, e.g., Forkkio v. Tanoue,

131 F. Supp. 2d 36, 40 (D.D.C. 2001) (“[T]he change in plaintiff's title and reporting relationship

due to . . . reorganiz[ation] . . . does not constitute an adverse action. . . Plaintiff's own belief that

the reassignment was a ‘demotion’ and was accompanied by a loss in stature or prestige is

insufficient to render it otherwise.”); see also Childers v. Slater, 44 F. Supp. 2d 8, 21 (D.D.C.

1999) (“Courts have held that reassignment within a division, without demotion or

corresponding reduction in salary or benefits does not constitute adverse action.”). Ng has

adduced no evidence that compels a different conclusion in his case. Thus, there is no genuine

issue of disputed fact regarding whether Ng experienced an adverse employment action giving

rise to a Title VII claim as a result of the reorganization.

Third, Ng points to the denial of his request to attend investigation training as an adverse

employment action. (Pl. Br. at 23-24.) But Ng cites no precedent supporting the argument that

the denial of training opportunities to an employee constitutes an adverse employment action.

Nor does Ng address the cases Defendant cites, which indicate just the opposite. See, e.g., Casey

v. Mabus, 878 F. Supp. 2d 175, 184 (D.D.C. 2012) (“The mere denial of training opportunities,

however, does not constitute an adverse employment action.”); Brooks v. Clinton, 841 F. Supp.

2d 287, 301 (D.D.C. 2012) (denial of approval to attend a training seminar did not constitute

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adverse employment action). Ng merely states conclusorily that denial of the training “prevented

Plaintiff from learning about an aspect of his potential job duties.” (Pl. Br. at 24.) Even

assuming that Ng was qualified to attend the investigation training (which Defendant disputes,

Def. Br. at 15), Defendant’s refusal to allow Ng to attend a single training seminar does not meet

the standard articulated in Baird for an adverse employment action. 662 F.3d at 1248.

Fourth, Ng asserts that changes in his role as a manager of the Vortex Project constituted

an adverse employment action. Ng summarizes his claims relating to the Vortex Project by

alleging that he was “pulled off the project that he spearheaded and for which he was primarily

responsible.” (Pl. Br. at 25.) But the evidence that Ng has proffered in regard to Vortex does not

support this assertion. It is undisputed that Ng had responsibility only for the technical aspects

of Vortex, while others had responsibility for the content. (Ng Dep. at 134:9-21; D-SOF ¶ 24.)

This being so, Ng vastly overstates his management role and the extent to which the Vortex

project was his responsibility. Moreover, Ng’s contention that he was “pulled off” the project at

approximately “the end of 2008 [or] early 2009” (Pl. Br. at 25) is at odds with Ng’s additional

claim that he was forced to travel to Washington, D.C. in January 2009 specifically to work on

Vortex. (Pl. Br. at 27.) At most, the evidence indicates that Ng’s role with respect to Vortex

may have been reduced for a limited period of time. (See Defendant’s Reply Brief in Support of

Motion for Summary Judgment (“Def. Reply”) at 16.) However, such a limited reduction in

work responsibilities does not qualify as an adverse employment action under the Baird standard.

See, e.g., Peyus v. Lahood, 11-cv-2087, 2013 WL 358180, at *5 (D.D.C. Jan. 29, 2013) (a

temporary reduction in work responsibilities does not constitute an adverse employment action);

Rhone v. U.S. Capitol Police, 865 F. Supp. 2d 65, 71 (D.D.C. 2012) (“minor losses in job

responsibility” do not constitute adverse employment actions).

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Finally, Ng alleges that he suffered an adverse employment action by virtue of his sixty-

day assignment to work on the Vortex Project in Washington, D.C., in January 2009. (P-SOF ¶¶

28-32.) Ng argues that this assignment was an adverse employment action for three primary

reasons: first, he was required to travel to the District of Columbia on the day after the

Presidential Inauguration, which he alleges made it difficult for him to obtain travel and living

accommodations (Compl. ¶ 32); second, because upon arrival, Ng found that other employees

had been instructed to work from home (Compl. ¶ 33); and third, because there was no work for

him to do for the duration of his time in Washington. (Pl. Br. at 27-28.)

The Court is not persuaded that Ng suffered an adverse employment action as a result of

his being required to travel to his established duty station around the time of a national holiday to

work on a project that he claims was his own. First of all, it is undisputed that Ng spent only a

small portion of the 60-day period in Washington. (D-SOF ¶ 31-33.) Moreover, Ng cites no

authority for the proposition that an adverse employment action can result from an employer’s

requirement that an employee work from a particular location. Indeed, the case law points to the

opposite conclusion. See, e.g., Bright v. Copps, 828 F. Supp. 2d 130, 148 -149 (D.D.C. 2011)

(employer’s requiring employee to attend an in-person meeting was not an adverse employment

action); Beckham v. National R.R. Passenger Corp., 736 F. Supp. 2d 130, 149 (D.D.C. 2010)

(“Being denied the ability to work from home . . . is a minor annoyance, not an adverse action.”).

At most, Ng’s temporary Washington D.C. assignment was a minor inconvenience—not the

7

“significant change” required to meet the adverse action standard as articulated in Baird.

Additionally, Ng’s assertion that there was little if any work waiting for him upon his arrival

7

Moreover, Ng does not dispute that travel to Washington D.C. was a necessary part of his

position. (D-SOF ¶ 3.) To the contrary, Ng himself testified that his job required frequent trips

to Washington D.C. (Ng Dep. at 39:19-40:8.)

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amounts at most to an allegation that his workload was temporarily reduced. As noted above,

such temporary reduction is insufficient to constitute an adverse employment action. See, e.g.,

Peyus, 2013 WL 358180, at *5 (temporary reduction in work responsibilities due to suspension

was not an adverse employment action). This is particularly true where, as here, the alleged

reduction had no effect on Ng’s pay or benefits. Cf. Than v. Radio Free Asia, 496 F. Supp. 2d

38, 49 (D.D.C. 2007) (noting that a significant reduction in work hours along with reduction in

pay may constitute adverse employment action).

B. Ng Has Failed to Establish Any Relationship Between His Claims and His Race

or National Origin

For the reasons described above, this Court concludes that none of the incidents that form

the basis of Ng’s Title VII claims qualifies as an adverse employment action. However, even if

one or more of the incidents constituted an adverse employment action for Title VII purposes,

Defendant would still be entitled to summary judgment because Ng has also failed to show that

any of the alleged adverse employment actions occurred because of his race, national origin, or

as retaliation for his engaging in protected activity. Apart from maintaining that certain of Ng’s

colleagues mimicked Ng’s accent and/or commented that they had a hard time understanding

him (Pl. Br. at 20-22), Ng offers no evidence of any discriminatory motivation for any of the

alleged adverse actions. And while the accent-related incidents that Ng describes are troubling,

Ng makes no attempt to tie them in any way to the completely separate incidents that form the

basis of his claims. In sum, assuming that Ng suffered any adverse employment actions, the

record is devoid of any evidence connecting the alleged adverse employment actions that Ng

identifies to his race or national origin. This failure constitutes a second, independent basis upon

which summary judgment must be granted for Defendant. See, e.g., Nagpal v. Holder, 750 F.

Supp. 2d 20, 29 (D.D.C. 2010) (No genuine issue of material fact where plaintiff failed to show

15

any connection between comments about his national origin and adverse employment actions);

Sewell v. Chao, 532 F. Supp. 2d 126, 139 n.8 (D.D.C. 2008) (stray remarks in the workplace

unrelated to challenged employment decisions were insufficient to create a triable issue of

discrimination).

V. CONCLUSION

For the reasons set forth above, the Court hereby DENIES Ng’s motion to strike certain

declarations related to the defendant’s summary judgment motion; and GRANTS Defendant’s

motion for summary judgment.

SO ORDERED.

Date: July 5, 2013 Ketanji Brown Jackson

KETANJI BROWN JACKSON

United States District Judge

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