Patricia Brooks v. Susan Grundmann

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2013 Decided April 15, 2014

No. 12-5171

PATRICIA A. BROOKS,

APPELLANT

v.

SUSAN TSUI GRUNDMANN, CHAIRMAN, MERIT SYSTEMS

PROTECTION BOARD,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00100)

Anne King argued the cause for appellant. With her on

the briefs was Brian Wolfman.

John G. Interrante, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Before: BROWN and SRINIVASAN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge BROWN.

2

BROWN, Circuit Judge. In a classic (and perhaps ironic)

instance of quis custodiet ipsos custodes, we are presented

with a case where the Merit Systems Protection Board—the

entity charged with addressing the grievances of federal

workers challenging discriminatory employment practices,

see 5 U.S.C. § 2301(b)(2)—is itself accused of discrimination.

A Board employee claims her supervisors engendered a

hostile work environment, discriminating against her on the

basis of her race and sex. We conclude that, while the

supervisors’ actions may have been unprofessional, uncivil,

and somewhat boorish, they did not constitute an adequate

factual basis for the Title VII claims presented here.

Accordingly, we affirm the district court’s grant of summary

judgment.

I

Patricia Brooks, an African-American woman, has

worked at the Office of Information Resources Management

(IRM) of the Merit Systems Protection Board since 1998.

While we know little about her employment prior to 2005, we

know she considers that particular year as the starting point of

a series of unfortunate events.

Brooks’ chronology of woe began when her supervisor,

An-Minh (Tommy) Hwang, expressed his disappointment

with her demonstration of a new document migration project

by yelling at her in front of co-workers, insulting and

demeaning her, and flinging a heavy notebook which Brooks

thought was aimed in her direction. That incident was

followed later in the year by a performance appraisal by

Hwang and his deputy, Nick Ngo, which, while deeming her

“Fully Successful,” was highly critical of her management

abilities and urged her to take a more proactive management

approach. In turn, that disappointment was followed by a

3

dispute over a timesheet entry when Ngo accused Brooks of

fudging the number of hours worked. Although a Board

official intervened and Brooks received pay for the disputed

hours, Brooks resented what she perceived as Ngo’s selective

scrutiny. Meanwhile, her performance appraisals continued

their downward spiral. By 2006, she was only rated as

“Minimally Successful” and was given a laundry list of

needed improvements: timely filing of weekly reports,

participation in leadership meetings, and improvement of

interpersonal, teamwork, and communication skills.

Brooks filed her first internal EEO complaint in February

2007, claiming Hwang and Ngo had discriminated and

retaliated against her. Despite regaining her “Fully

Successful” rating that year, Brooks had a confrontation with

another IRM Team Leader—Bill McDermott—who became

visibly angry and insulted Brooks in front of other Team

Leaders during a meeting. When Hwang e-mailed

McDermott to discuss the latter’s conduct, McDermott replied

to express some contrition but circulated his response to all

the other Team Leaders. Brooks informally notified the

Board’s EEO Director about the incident.

On January 28, 2008, Brooks filed a complaint in district

court, alleging various violations of Title VII. A month later,

she filed a second internal EEO complaint—once again for

purported discrimination and retaliation—asserting Hwang

and Ngo fostered a hostile work environment and engaged in

disparate treatment. The two fired back during the course of

the internal EEO investigation and expressed annoyance

about Brooks’ EEO activities.

In May 2008, IRM was reorganized. Brooks remained a

Team Leader but had no supervisory responsibilities—a

marked departure from an earlier proposed plan. She filed a

4

third internal EEO complaint on August 13, 2008. Several

months later, Brooks received an “Unacceptable”

performance rating because of her alleged unwillingness to

accept responsibility for administrative mishaps and her poor

communication with IRM staff. Brooks was placed on a

“Performance Improvement Plan,” which left her susceptible

to “performance-based action, including possibly a reduction

in grade or removal from the federal service,” but she

eventually completed the Plan without incident. J.A. at 264,

266–67.

On February 11, 2009, Brooks amended her district court

complaint to allege the Board engendered a race-based,

gender-based, and retaliatory hostile work environment. The

Board filed what was effectively a motion for summary

judgment. The district court granted the motion, determining

“[n]o reasonable jury could find that [Hwang and Ngo’s]

conduct was so severe and pervasive as to alter the conditions

of Brooks’s employment.” Brooks v. Grundmann, 851 F.

Supp. 2d 1, 6 (D.D.C. 2012). Brooks appealed.

II

We review a district court’s grant of summary judgment

de novo. Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19,

23 (D.C. Cir. 2013). Summary judgment is appropriate when

“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 genuine issue of

material fact exists if the evidence, ‘viewed in a light most

favorable to the nonmoving party,’ could support a reasonable

jury’s verdict for the non-moving party.” Hampton v. Vilsack,

685 F.3d 1096, 1099 (D.C. Cir. 2012) (quoting McCready v.

Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006)).

5

Much of Brooks’ appeal is devoted to her hostile work

environment claims. To prevail, she “must first show that . . .

she was subjected to ‘discriminatory intimidation, ridicule,

and insult’ that [was] ‘sufficiently severe or pervasive to alter

the conditions of [her] employment and create an abusive

working environment.’” See Ayissi-Etoh v. Fannie Mae, 712

F.3d 572, 577 (D.C. Cir. 2013) (per curiam) (quoting Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The strength of

her various claims is determined by “the totality of the

circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it

interferes with an employee’s work performance.” See

Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008).

The deficiency in Brooks’ case is her inability to

demonstrate that the actions of her superiors were sufficiently

severe or pervasive so as to constitute a hostile work

environment. Severity and pervasiveness are complementary

factors and often go hand-in-hand, but a hostile work

environment claim could be satisfied with one or the other.

Ayissi-Etoh, 712 F.3d at 579 (Kavanaugh, J., concurring)

(“The test set forth by the Supreme Court is whether the

alleged conduct is ‘sufficiently severe or pervasive’—written

in the disjunctive—not whether the conduct is ‘sufficiently

severe and pervasive.’”). But here, we do not have enough of

either.

In discerning severity and pervasiveness, we assess the

timeline of events as a whole. See Baloch, 550 F.3d at 1201.

Each event that Brooks identifies as an example of abusive

conduct fails to add materially to the alleged aura of hostility.

For instance, selective enforcement of a time and attendance

policy does not necessarily indicate conduct giving rise to a

hostile work environment claim. See Bhatti v. Trs. of Bos.

Univ., 659 F.3d 64, 74 (1st Cir. 2011) (concluding the

6

selective enforcement of workplace rules and the failure to

extend certain informal courtesies are part of conduct that is

“far from severe [and] never physically threatening”).

Brooks’ performance reviews also do little to evince abusive

conditions—they were not uniformly negative and had some

legitimate bases. See Baloch, 550 F.3d at 1201 (noting

“legitimate reasons and constructive criticism offered in . . .

letters of counseling and reprimand” undercut allegations of a

hostile work environment). Moreover, her reviews

recommended areas of improvement—hardly the stuff of

severe or pervasive workplace hostility. See Darbha v.

Capgemini Am. Inc., 492 F. App’x 644, 647 (7th Cir. 2012).

Brooks also suggests outbursts by a coworker and her

supervisor prove she suffered a hostile work environment.

We disagree. Certainly, her superiors and colleague may

have been tactless and ill-mannered. But by her own

admission, Brooks was of like rank and position as her

colleague McDermott, and he had no supervisory authority

over her. See J.A. at 310. Therefore, the Board cannot be

deemed liable for his conduct unless Brooks “prove[s] that the

employer was at least negligent in not preventing or

correcting the [alleged] harassment.” See Ayissi-Etoh, 712

F.3d at 577. Not only does Brooks fail to assert such a

supervisory lapse, the record suggests her supervisor in fact

met with McDermott to discuss the incident and indicated to

him that his behavior was inappropriate.

That leaves the incident with Hwang. There is some

dispute over what exactly occurred, but even taking the facts

in the light most favorable to Brooks (as we must in

reviewing a grant of summary judgment), we cannot conclude

this outburst contributed much in the way of a hostile work

environment. Compare J.A. at 208 (giving Hwang’s account

of the meeting in which he admits to frustration and slamming

7

down his hand), with J.A. at 224 (recounting Brooks’ version

of events in which Hwang “yelled at [her] and violently threw

a book (thick notebook) on a table”). The incident, at its

worst, was an isolated expression of frustration. That alone

cannot rise to the level of severity indicating hostility or

abuse. See Faragher v. City of Boca Raton, 524 U.S. 775,

788 (1998) (“[I]solated incidents (unless extremely serious)

will not amount to discriminatory changes in the ‘terms and

conditions of employment.’” (emphasis added and citation

omitted)).

While Brooks heavily relies on Gowski v. Peake, 682

F.3d 1299 (11th Cir. 2012) (per curiam), to make her case as

to severity, that decision does little to help her cause. Gowski

involved supervisors of a hospital facility who engaged in

retaliatory acts that cumulatively amounted to a hostile work

environment. These actions included but were not limited to:

(1) the revocation of privileges necessary for working in

critical-care units; (2) a two-week suspension based on a

dubiously substantiated allegation of unprofessional behavior

with a nurse; (3) the rescinding of the employees’ medical

committee membership; and (4) a two-year suspension from

participating in research programs. See id. at 1305–08. To

the Eleventh Circuit, these actions evinced “a workplace filled

with intimidation and ridicule that was sufficiently severe and

pervasive to alter [the two plaintiff-doctors’] working

conditions.” Id. at 1313.

In contrast, nothing resembling that level of malevolence

is present here. Of course, the record shows the supervisors

engaged in unprofessional conduct. But unlike the plaintiffs

in Gowski, Brooks has not been shut out from her work

because her privileges have been revoked and her duties

eliminated; rather, she is continually assigned discrete tasks

and performs them with mixed degrees of success. The facts

8

underlying Brooks’ claims seem more like the “ordinary

tribulations of the workplace,” see Faragher, 524 U.S. at 788,

a series of “petty insults, vindictive behavior, and angry

recriminations” that are not actionable under Title VII, see

Bhatti, 659 F.3d at 74. Considered in the aggregate, the

episodes cited by Brooks do not sufficiently demonstrate the

sort of severity or pervasiveness needed to prove a hostile

work environment.1

III

Brooks’ discrete-acts retaliation claim fares no better.

Indeed, the district court ignored it altogether, and, contrary to

Brooks’ assertions, there was no error in the court’s omission.

While she urges us to pass upon the merits of her retaliation

claim, the inartful and inadequate state of Brooks’ pleadings

prevents us from doing so.

Unlike a hostile work environment claim, which

“involves repeated conduct . . . [that] occurs over a series of

days or perhaps years and . . . [where] a single act of

harassment may not be actionable on its own,” Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002), a

discrete-acts claim involves a single act of discrimination

“such as termination, failure to promote, denial of transfer, or

refusal to hire.” Id. at 114. “[A] plaintiff may not combine

discrete acts to form a hostile work environment claim

without meeting the required hostile work environment

standard,” Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir.

2011), but a hostile work environment claim is not rendered

invalid “merely because it contains discrete acts that the

1

We therefore need not decide whether Brooks adequately satisfied

the discrimination component of the hostile work environment

analysis.

9

plaintiff claims (correctly or incorrectly) are actionable on

their own.” Id.

Brooks points to several discrete acts—e.g., her 2006

“Minimally Successful” rating, her 2008 “Unacceptable”

rating, etc.—that ostensibly serve as the bases for her prima

facie retaliation claims. One problem: she neglected to allege

a discrete-acts retaliation claim in her complaint. See J.A. at

94–95. Tacitly acknowledging this inadequacy, Brooks

points to various references hinting at a prima facie retaliation

claim in her opposition to the defendant’s motion for

summary judgment. See Appellant’s Br. at 43–46; see also

J.A. at 298–302.

Her position is not entirely without support. In Wiley v.

Glassman, 511 F.3d 151 (D.C. Cir. 2007) (per curiam), we

were confronted with an instance in which a plaintiff first

raised a claim of retaliatory harassment in her opposition to

the defendant’s motion for summary judgment. Id. at 159.

The district court, acting on the defendant’s motion, struck the

claim. See id. We, however, determined striking the claim

was inappropriate, as “[t]he factual basis for [the] appellant’s

‘new’ claim was substantially similar to the hostile work

environment claim that [the] appellant had alleged in her

original complaint, and [the defendant] did not demonstrate

that allowing [the] appellant’s claim would cause undue

prejudice.” Id.

That could also be true here, but for two noteworthy

differences. First, the obvious: unlike Wiley, the Board never

filed a motion to strike and therefore we have no discrete

procedural decision to review. Cf. Brooks, 851 F. Supp. 2d at

5 & n.6. But that distinction merely scratches the surface of

an even greater one—the opposition to summary judgment

does not clearly lay out a prima facie retaliation claim.

10

Instead of identifying “discrete episodes” that constituted

adverse employment actions, see Baird, 662 F.3d at 1248–49,

the opposition conflated the purported discrete-acts retaliation

claim with a retaliatory hostile work environment claim—two

distinct theories of relief, see J.A. at 302 (“A reasonable jury

could find that these intensifications of the hostile work

environment were in retaliation for Ms. Brooks’

complaints.”). Both the defendant and the district court

should have had fair notice of the legal theories behind a

claim, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007), and neither the complaint nor the opposition

sufficiently conveyed the discrete-acts claim in this instance.

Therefore, we decline to conclude the district court erred by

disregarding the inchoate claim.

We are sympathetic to Brooks’ assertion that a similar,

ongoing case cast a fog of uncertainty that made her second-

guess whether she could plead a discrete-acts claim

simultaneously with her hostile work environment allegations.

But that uncertainty does not excuse her failure to present and

preserve the claim. True, the district court in Baird v.

Snowbarger, 744 F. Supp. 2d 279 (D.D.C. 2010), did seem to

suggest discrete acts could not form part of a hostile work

environment claim. See id. at 295–96. It was not until our

decision in Baird v. Gotbaum, 662 F.3d 1246 (D.C. Cir.

2011), that we were able to clear the air, noting the assertion

of a discrete-acts claim did not bar per se the incorporation of

such acts in a hostile work environment claim. See id. at

1252. Perhaps in Brooks’ view, she could only rely on one

theory or the other.

But Title VII cases often involve multiple, sometimes

mutually exclusive, theories of relief, and nothing prevents a

plaintiff from pleading in the alternative, if only for the sake

of preservation. Cf. Ponce v. Billington, 679 F.3d 840, 845

11

(D.C. Cir. 2012) (noting the alternative nature of “but-for”

and “mixed-motive” Title VII cases and discussing the

strategic implications of proceeding under one or both

theories). To be sure, litigants need not be clairvoyant; they

are not expected to augur future legal developments with

exactitude. Nor do we expect them to run into a wall of

futility by asserting an expressly barred claim—to the

contrary, our rules forbid it. See generally FED. R. CIV. P.

11(b)(2).

Here, however, there was some room to maneuver. At

the time Brooks filed her complaint, nothing in our caselaw

addressed the question of whether a plaintiff may assert both

discrete-acts and hostile work environment claims. She was

therefore free to question the wisdom of the district court

decision in Baird. See Johnson v. Dist. of Columbia, 850 F.

Supp. 2d 74, 79 (D.D.C. 2012) (“A District Court is

comprised of individual judges who reach decisions that are

not binding on any one else.”); see also Owens-Ill., Inc. v.

Aetna Cas. & Sur. Co., 597 F. Supp. 1515, 1520 (D.D.C.

1984) (“The doctrine of stare decisis compels district courts

to adhere to a decision of the Court of Appeals of their Circuit

until such time as the Court of Appeals or the Supreme Court

of the United States sees fit to overrule the decision.”).

Indeed, the Baird plaintiff successfully did so on appeal. See

Baird, 662 F.3d at 1252.

Moreover, the law of this circuit prevents us from

remanding this case to the district court so that Brooks may

have an opportunity to amend her complaint in light of

Baird’s clarification. The district court believed no discrete-

acts claim was raised. See Brooks, 851 F. Supp. 2d at 5 n.6

(“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

12

incidents described above might satisfy that element of a

prima facie case.”). Brooks could have asked the district

court for leave to amend her complaint so that she could more

clearly establish a separate theory of relief. But she failed to

do so, and her failure bars us from remanding this case to give

her an opportunity to fix her complaint. Cf. City of Harper

Woods Emps.’ Ret. Sys. v. Olver, 589 F.3d 1292, 1304 (D.C.

Cir. 2009) (“When a plaintiff fails to seek leave from the

District Court to amend its complaint, either before or after its

complaint is dismissed, it forfeits the right to seek leave to

amend on appeal.”).

IV

The decision of the district court is

Affirmed.