Brooks v. Grundmann

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PATRICIA A. BROOKS,

Plaintiff,

v. Civil Action 08-100 (RCL)

SUSAN TSUI GRUNDMANN,

Chairman, Merit Systems Protection

Board,

Defendant.

MEMORANDUM OPINION

Plaintiff Patricia Brooks alleges that her employer, the United States Merit Systems

Protection Board (“MSPB” or “the Board”), discriminated against her on the basis of her race

and gender and retaliated against her for asserting her rights under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000(e) et seq. Brooks has brought an official-capacity suit against

MSPB Chairman Susan Tsui Grundmann,1 whom the Court will refer to as though she were the

Merit Systems Protection Board itself. Before the Court is the Board’s motion for judgment on

the pleadings or, in the alternative, for summary judgment [Dkt. # 70]. Upon consideration of

the motion, the opposition thereto, and the record of this case, the Court concludes that the Board

is entitled to summary judgment.

1

The complaint named Neil A.G. McPhee, former Chairman of the MSPB, as the

defendant in this case. The current Chairman is substituted as defendant pursuant to Federal

Rule of Civil Procedure 25(d).

I. LEGAL STANDARD

The Board has moved for a judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). Such a motion is evaluated under the same standard as a Rule 12(b)(6) motion

to dismiss, see, e.g., Robinson-Reeder v. Am. Council on Educ., 532 F. Supp. 2d 6, 12 (D.D.C.

2008), and, like a 12(b)(6) motion, must be converted to a Rule 56 motion for summary

judgment if “matters outside the pleadings are presented to and not excluded by the court.” FED.

R. CIV. P. 12(d). Because such matters have been presented and will be considered, the Court

treats this motion as one for summary judgment.

A motion for summary judgment should be granted only “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 material fact is one that “might affect the outcome of the suit

under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

movant must support its factual positions by “citing to particular parts of materials in the record,

including depositions, documents, electronically stored information, affidavits or declarations,

stipulations . . . , admissions, interrogatory answers, or other materials.” FED. R. CIV. P.

56(c)(1)(A); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party meets its burden, the non-moving party must then establish that a

genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). To meet its burden, the non-moving party must show

that “the evidence is such that a reasonable jury could return a verdict” in its favor. Anderson,

477 U.S. at 248. Such evidence must consist of more than mere unsupported allegations or

denials and must set forth specific facts showing that there is a genuine dispute for trial. See

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FED. R. CIV. P. 56(c)(1), (e); Celotex, 477 U.S. at 322 n.3. If the evidence is “merely colorable”

or “not significantly probative,” summary judgment may be granted. Anderson, 477 U.S. at

249–50.

II. FACTUAL BACKGROUND

On this motion for summary judgment, the Court views the evidence in the light most

favorable to the non-moving party and draws all reasonable inferences in her favor. See

Venetian Casino Resort, LLC v. E.E.O.C., 530 F.3d 925, 929 (D.C. Cir. 2008).

For more than twelve years, Patricia Brooks has worked in the Office of Information

Resources Management of the United States Merit Systems Protection Board, an independent,

quasi-judicial agency that enforces the merit-based pay and promotion provisions of federal civil

service laws. Pl.’s Mem. in Opp. to Summ. J. (“Pl.’s Opp.”), Ex. 1 (Aff. of Patricia Brooks (May

21, 2007)) (“Brooks Aff.”), at 2. Tommy Hwang became the director of that office in 2005.

Pl.’s Opp., Ex. 13 (Dep. of An-Ming (“Tommy”) Hwang (June 16, 2009)) (“Hwang Dep.”), at

72. Nick Ngo was his deputy and Brooks’s direct supervisor. Id. at 135–36. Brooks is a black

woman. Hwang and Ngo are Asian men.

Brooks alleges that, in early 2005, Ngo told her that people in the office were questioning

whether she deserved her place on the civil service pay scale, Brooks Aff. at 11, and that, in

March and April of that year, Hwang and Ngo criticized her performance on several projects. Id.

at 8. In May of 2005, Brooks gave a presentation that was very poorly received by Hwang. Id.

at 2; Def.’s Mot. for Summ. J. (“Def.’s Mot.”), Ex. 3 (Aff. of An-Ming Hwang (May 8, 2007))

(“Hwang Aff.”), at 3. Although there is some dispute about how Hwang expressed his

displeasure, the parties agree that he slammed his hand on the table. Brooks Aff. at 2; Hwang

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Aff. at 3. According to Brooks, he yelled, belittled her, and angrily threw a notebook in her

direction. Brooks Aff. at 2. Brooks reported this incident to Neil McPhie, who was then

chairman of the Board. McPhie set up a meeting with his chief of staff, who in turn

recommended mediation. Id. After Brooks and Hwang participated in that mediation session,

Hwang sent emails asking Brooks to explain her performance on several assignments. Id. At the

meeting to conduct Brooks’s performance appraisal for 2005, Hwang and Ngo criticized her

management skills and included that criticism in a document attached to her review. Id. at 4–5.

In early 2006, Ngo suggested that Brooks “beef up” her weekly status reports. Id. at 9.

Later that year, Brooks alleges, he demanded that she provide him with more detailed reports on

her progress at work than he demanded from other employees. Id. Ngo’s mid-year review of

Brooks stated that she “has tendencies to underestimate effort, issues, and expectations that

ha[ve] resulted in missed target dates for projects.” Pl.’s Opp., Ex. 24, at 9 (Fiscal Year 2006

Mid-Year Performance Feedback and Comments (Apr. 21, 2006)). In late August 2006, Brooks

contacted Julio Matta, the director of the equal employment opportunity office for the MSPB, to

express her concern that she would be unreasonably held to an arbitrary deadline that she could

not meet on a major project. Brooks Aff. at 3. In late October, Ngo refused to sign off on

Brooks’s time sheet, and questioned whether she had worked all of the hours that she claimed on

a certain day. Id. Brooks again contacted Matta. Id. At a meeting held to discuss Brooks’s time

reporting on the day in question—and attended by Brooks, Hwang, Matta, and Ngo—Ngo

indicated that he had recently been keeping a close watch on Brooks’s attendance and her

reported hours. Id. at 3–4. Brooks was ultimately paid for the time in question. Def.’s Mot., Ex.

6 (Aff. of Nick Ngo (May 8, 2007)) (“Ngo Aff.”), at 3.

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Several days after that meeting, Ngo conducted Brooks’s fiscal-year-end performance

evaluation. According to Brooks, at the evaluation meeting Ngo said that she had difficulty

relating to her peers, though he only mentioned a single example—a disagreement between

Brooks and a co-worker in which, as Brooks recalls, Ngo had appeared to side with her. Brooks

Aff. at 5–6. Ngo also criticized her for being late on the project referenced above, even though

Brooks believed that the real deadline had not yet passed. Id. at 10–11. In the written

evaluation, Ngo recorded that Brooks “failed to provide timely weekly activity reports on

numerous instances even though management reminded her to do so numerous times” and “did

not provide acceptable reasons for the delays.” Pl.’s Opp., Ex. 24, at 10 (Performance Evaluation

of Patricia Brooks, Oct. 1, 2005–Sept. 30, 2006). He also wrote that Brooks “needs to work on

her listening skills as well as being less argumentative with colleagues.” Id. at 11. Ngo gave

Brooks an overall rating of “Minimally Successful” for fiscal year 2006. Id. Brooks believed

that this evaluation was unwarranted. Brooks Aff. at 5.

On February 20, 2007, Brooks filed a formal complaint with the Board’s equal

employment opportunity office.2 Later that year, she received an annual performance rating of

“Fully Successful.” Def. Mot., Ex. 4, at 5–6 (Performance Evaluation of Patricia Brooks, Oct. 1,

2006–Sept. 30, 2007). Not long after that performance review was conducted, Brooks and Bill

McDermott, a coworker, had a confrontation in a team meeting. After the incident, a series of

emails were exchanged. Brooks stated that McDermott “became visibly angry without

provocation and made insulting remarks to me in front of the other Team Leaders,” that he

2

After receiving the Report of Investigation and Final Agency Decision that resulted

from this administrative complaint, Brooks brought this suit. Second Am. Compl. ¶ 8.

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“erroneously stated that I did not respond to a question about” a particular software package, and

that he “yelled and became so angry that [Hwang] and Nick [Ngo] had to tell him to ‘calm

down.’” Def. Mot., Ex. 7, at 6 (Email from Patricia Brooks (Nov. 15, 2007, 12:52 p.m.)).

Hwang responded to Brooks that he “did not hear any insulting remarks being made to you or

anybody else. After Bill [McDermott] made that one loud statement, and a back and forth

discussion looked like it was about to ensue, I stated, ‘calm down’ so that we can stop the

discussion and continue with the meeting.” Id. at 5 (Email from Tommy Hwang (Nov. 15, 2007,

2:46 p.m.)). For his part, McDermott “acknowledge[d] getting visibly angry with Patricia

[Brooks] and raising my voice to her. . . . For the record from my perspective there was no

‘yelling, screaming or insulting behavior’.” Id. at 3 (Email from Bill McDermott (Nov. 15,

2007, 2:04 p.m.)).

On February 29, 2008, Brooks filed a second formal complaint with the Board’s equal

employment opportunity office.3 Later that year, Hwang undertook an office reorganization.

The original draft of the reorganization plan, which was circulated in October 2007 but not

intended to take effect until April 1, 2008, would have placed Brooks on a newly-created

“Applications Team” with three other team leaders, including McDermott and Craig Thomas.

Def.’s Mot., Ex. 2 (Aff. of An-Ming Hwang (Oct. 9, 2008)) (“Second Hwang Aff.”), at 2.

Thomas had criticized Brooks’s work to Ngo. See, e.g., Pl.’s Opp., Ex. 32, at 4 (Email from

Craig Thomas to Nick Ngo (Sept. 11, 2007, 11:00 a.m.)). McDermott and Thomas objected to

3

After receiving the Report of Investigation and Final Agency Decision that resulted

from this second administrative complaint, Brooks filed an amended complaint in this Court,

incorporating the new claims that she had raised at the administrative level. See Pl.’s Mot. for

Leave to File an Am. Compl., at 1–2; Am. Compl. ¶¶ 65–69.

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Brooks’s presence on the proposed team, and Hwang ultimately decided to remove her from it.

Second Hwang Aff. at 2. In the revised reorganization plan, there were only three leaders of the

“Applications Team”; Brooks was assigned to an individual role whose duties were identified in

the organizational chart as “Document Migration/Macros.” Pl.’s Opp., Ex. 16, at 1 (Email from

Tommy Hwang (May 1, 2008, 1:07 p.m.)). Brooks objected to her new assignment on the

grounds that it only required her to perform “basic programming duties” rather than using the

“high-level skills such as analysis, project management, and planning” that were required of an

employee at her grade. Def.’s Mot., Ex. 8 (Aff. of Patricia A. Brooks (Nov. 3, 2008)) (“Second

Brooks Aff.”), at 2. She characterized the reorganization as creating a “Team of One” that

isolated her from her coworkers. Id. at 3.

On May 1, 2008, the day that the reorganization ultimately took effect, Brooks requested

a meeting with Hwang and Ngo to discuss her new role. Second Hwang Aff. at 2. She

suggested that she be given responsibility for quality assurance and configuration management

rather than document migration and macros. Id.; Second Brooks Aff. at 3–4. Hwang replied

that he would consider her suggestions if she completed her current projects “fairly quickly.”

Second Hwang Aff. at 2. Hwang, Ngo, and Brooks met again on May 14, 2008 to discuss

Brooks’s objections to her new role and suggestions for other duties that she might undertake,

but no changes were made at that time. Id.; Second Brooks Aff. at 3–4. On August 13, 2008,

Brooks filed a third formal complaint with the Board’s equal employment opportunity office.4 In

4

After receiving the Report of Investigation and Final Agency Decision that resulted

from this third administrative complaint, Brooks filed a second amended complaint in this Court,

incorporating the new claims that she had raised at the administrative level. See Second Am.

Compl. ¶¶ 70–78.

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October, Hwang revised the organizational chart to make Brooks responsible for quality

assurance and configuration management, as she had requested in May. Def.’s Mot., Ex. 9

(Final Agency Decision in the Matter of Brooks v. U.S. Merit Sys. Protection Bd., No. 08-09

(Feb. 20, 2009)),

at 2.

At the end of that fiscal year, Ngo gave Brooks a performance appraisal of

“Unsatisfactory.” Def.’s Mot, Ex. 4, at 6–13 (Performance Evaluation, Patricia Brooks, Oct. 1,

2007–Sept. 30, 2008). The evaluation was especially critical of her teamwork and her ability to

complete projects successfully and on time. Id. Ngo placed Brooks on a Performance

Improvement Plan, which she successfully completed. Id., Ex. 10, (Mem. from Nick Ngo to

Patricia Brooks (Dec. 11, 2008)); id., Ex. 11, (Mem. from Nick Ngo to Patricia Brooks (May 7,

2009)). She remains employed with the Board. Brooks Aff. at 2.

III. ANALYSIS

“Title VII prohibits federal agencies from discriminating against their employees based

on race or sex,” McGrath v. Clinton, 2012 WL 247996, at *2 (D.C. Cir. Jan. 27, 2012), “and

from retaliating against them for asserting their rights under Title VII.” Calhoun v. Johnson, 632

F.3d 1259, 1261 (D.C. Cir. 2011).5 To prove a case of discrimination or retaliation under Title

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Although federal agencies and private employers are covered by different—and

differently-worded—provisions of Title VII, compare 42 U.S.C. § 2000e-2(a)(1) (barring

discrimination by private employers) and id. § 2000e-3(a) (barring retaliation by private

employers) with id. § 2000e-16(a) (barring discrimination by federal agencies), the D.C. Circuit

has held that “Title VII places the same restrictions on federal . . . agencies as it does on private

employers.” George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005) (quoting Singletary v.

District of Columbia, 351 F.3d 519, 523–24 (D.C. Cir. 2003)) (internal quotation marks omitted

by Singletary). Therefore, courts in this circuit freely apply precedents interpreting 42 U.S.C. §§

2000e-2(a)(1) and 2000e-3(a) to the context of federal employment. See George, 407 F.3d at

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VII, a plaintiff must demonstrate either that she has suffered an adverse employment action, see

Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (discrimination); McGrath, 2012

WL 247996, at *2 (retaliation), or that she has been subjected to a hostile work environment,

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (discrimination); Hussain v. Nicholson, 435

F.3d 359, 366 (D.C. Cir. 2006) (retaliation). Brooks claims only the latter, alleging that the

MSPB discriminated against her on the basis of race and gender and retaliated against her for

asserting her Title VII rights, all by subjecting her to a hostile work environment.6

The standards for finding a workplace illegally hostile are “sufficiently demanding to

ensure that Title VII does not become a ‘general civility code.’” Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 80 (1998)). “To prevail on a hostile work environment claim, a plaintiff must show that his

employer subjected him to discriminatory [or retaliatory] 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.” Baird v. Gotbaum, 662 F.3d 1246, 1250 (D.C. Cir. 2011)

(internal quotation marks omitted); Hussain, 435 F.3d at 366 (applying the standard to a

retaliation claim). “‘[C]onduct must be extreme to amount to a change in the terms and

411; Singletary, 351 F.3d at 523–24; Ethnic Emps. of Library of Congress v. Boorstin, 751 F.2d

1405, 1415 n.13 (D.C. Cir. 1985) (noting that 42 U.S.C. § 2000e-16 implicitly “prohibits

retaliation against federal employee invoking Title VII rights”).

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The complaint frames each of its three counts in terms of a hostile work environment,

2d Am. Compl. ¶¶ 79–81, and both plaintiff’s memorandum in opposition to the motion at issue

here and her sur-reply, leave to file which is hereby granted, reaffirm that theory of the case. See

Pl.’s Mem. in Opp., at 26–27, 38; Pl.’s Sur-reply at 1–2, 8. Because Brooks does not assert that

she has suffered a discriminatory or retaliatory adverse employment action, the Court need not

and does not consider whether any of the incidents described above might satisfy that element of

a prima facie case.

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conditions of employment.’ For example, ‘simple teasing, offhand comments, and isolated

incidents (unless extremely serious) will not amount to discriminatory changes in the terms and

conditions of employment.’” George, 407 F.3d at 416 (quoting Faragher, 524 U.S. at 788).

“To determine whether a hostile work environment exists, the court looks to the totality of the

circumstances, including the frequency of the discriminatory [or retaliatory] conduct, its severity,

its offensiveness, and whether it interferes with an employee’s work performance.” Baloch, 662

F.3d at 1201.

An employee subjected to no more than the “ordinary tribulations of the workplace” does

not have a cause of action under Title VII. Faragher, 524 U.S. at 788 (quoting B. LINDEMANN &

D. KADUE, SEXUAL HARRASSMENT IN EMPLOYMENT LAW 175 (1992)). For instance,

non-selection for a desirable position, assignment to undesirable duties, sharing a small office,

and being criticized by supervisors do not establish a hostile work environment. Veitch v.

England, 471 F.3d 124, 130–31 (D.C. Cir. 2006); cf. Singletary, 351 F.3d at 528 (remanding to

the district court for a determination on the merits of a hostile work environment claim where an

employee was “intentionally assigned . . . to work in an unheated storage room for over a year

and a half” even though more suitable offices were available). Even conduct that “reflect[s]

poorly upon the professionalism” of the defendant’s employees may not be severe and pervasive

enough to create an abusive environment. Barbour v. Browner, 181 F.3d 1342, 1348 (D.C. Cir.

1999); cf. Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (holding that an “incident of

sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an

abusive work environment for purposes of Title VII liability”).

Brooks alleges that she has been unjustly criticized, marginalized, and humiliated at work

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over a period of many years. She points to the incidents in which Hwang and McDermott raised

their voices during meetings, to her placement in a “Team of One” for four months in 2008, to

the negative performance appraisals that she periodically (and, she argues, unjustly) received,

and to smaller instances of allegedly disrespectful behavior that are not recited above.

No reasonable jury could find that this conduct was so severe and pervasive as to alter the

conditions of Brooks’s employment. With the possible exception of the meeting at which

Hwang allegedly threw a notebook in her direction, none of the conduct that Brooks describes

was physically threatening. Cf. Harris, 510 U.S. at 23. The meetings in which voices were

raised at Brooks occurred two-and-a-half years apart, suggesting that they were “isolated

incidents.” George, 407 F.3d at 416 (quoting Faragher, 524 U.S. at 788). Moreover, courts

have held that “[c]riticisms of . . . work and expressions of disapproval (even loud expressions of

disapproval)” are not sufficiently severe to constitute a hostile work environment. See Singh v.

U.S. House of Representatives, 300 F. Supp. 2d 48, 56 (D.D.C. 2004). Much of the humiliation

that Brooks experienced derived from her assignment to responsibilities that she considered to be

beneath her qualifications, from negative performance evaluations, and from a four-month

isolation on a “Team of One,” but “courts have generally rejected hostile work environment

claims that are based on work-related actions by supervisors.” Grosdidier v. Chairman, Broad.

Bd. of Governors, 774 F. Supp. 2d 76, 110–11 (D.D.C. 2011); see also Nurriddin v. Bolden, 674

F. Supp. 2d 64, 94 (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.”). And

although Brooks alleges that she and her work have been regularly disrespected, a Title VII

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“[p]laintiff must show far more than . . . criticisms[] and snubs or perceived slights to establish a

hostile work environment.” Rattigan v. Gonzales, 503 F. Supp. 2d 56, 82 (D.D.C. 2007).

A hostile work environment claim must be evaluated on the “totality of the

circumstances.” Baloch, 662 F.3d at 1201. Viewing the evidence in its totality and in the light

most favorable to Brooks and drawing all reasonable inferences in her favor, as a court must on a

motion for summary judgment, see Venetian Casino, 530 F.3d at 929, this Court concludes that

no reasonable jury could find that Brooks has been subjected to a hostile work environment

within the meaning of Title VII. Rather it is plain that she has been subjected to no more than

the “ordinary tribulations of the workplace.” Faragher, 524 U.S. at 788. The Court therefore

grants summary judgment in favor of the defendant.7

IV. CONCLUSION

This is not “a court of personnel appeals,” Nurriddin, 382 F. Supp. 2d at 107

(quoting Alfano, 294 F.3d at 377), and it does not determine whether employees have been

treated fairly, but only whether they have been discriminated or retaliated against in violation of

Title VII. Because no reasonable jury could conclude that Brooks has suffered such

7

Because the Court reaches this conclusion, it need not determine whether any

reasonable jury could find that, as Brooks attempts to show, plaintiff’s co-workers who are not

black, or women, or have not invoked their Title VII rights have been treated with more leniency

than she has and therefore conclude that the events in question were connected to a status

protected by Title VII. But see Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107 (D.D.C. 2005)

(“Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and

many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment

cases to exclude from consideration personnel decisions that lack a linkage of correlation to the

claimed ground of discrimination. Otherwise, the federal courts will become a court of

personnel appeals.”) (quoting Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002)); Ware v.

Billington, 344 F. Supp. 2d 63, 71 n.1 (D.D.C. 2004) (“[I]t is not enough to merely show

harassment, for Title VII does not prohibit all forms of workplace harassment, only those

directed at discrimination because of [a person’s protected status].”) (internal citation omitted).

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discrimination or retaliation, it is this 29th day of March 2012 hereby

ORDERED that summary judgment is GRANTED in favor of the Merit Systems

Protection Board. A separate judgment accompanies this opinion.

Royce C. Lamberth, Chief Judge

United States District Court

for the District of Columbia

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