Sledge v. District of Columbia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

DAVID H. SLEDGE, )

)

Plaintiff, )

)

v. ) Civil Action No. 11-cv-1888 (KBJ)

)

DISTRICT OF COLUMBIA, )

)

Defendant. )

)

MEMORANDUM OPINION

Plaintiff David H. Sledge (“Plaintiff” or “Sledge”) is an African-American police

officer in the District of Columbia’s Metropolitan Police Department (“MPD”) who has

high blood pressure and hypertension. Sledge brought the instant action against the

District of Columbia (“Defendant” or “the District”), alleging that MPD officials

subjected him to race discrimination, retaliation, and a hostile work environment in

violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and that the

District is also liable under Section 1983 for violating his Fifth Amendment right to

equal protection. (See Compl., ECF No. 1, ¶¶ 64-121.) The gravamen of Sledge’s

complaint is that his supervisor, Assistant Chief of Police Diane Groomes, has long

discriminated and retaliated against him on the basis of his race and medical

condition—primarily by singling him out for heightened scrutiny and harsher discipline.

(Id. ¶¶ 45-48, 66-81.) In addition, Sledge faults the District for failing to act on his

prior complaints regarding Groomes’s alleged acts of discrimination. (Id. ¶¶ 53-54.)

Before this Court at present is Defendant’s motion for summary judgment.

(Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 24.) Defendant maintains that

Sledge has failed to show that the District’s legitimate, non-discriminatory reason for

disciplining Sledge is pretext for discrimination or retaliation, and that there is no

record evidence to demonstrate either the causation necessary to sustain Sledge’s

retaliation claim or that Sledge was subjected to a hostile work environment.

Additionally, Defendant argues that Sledge has failed to demonstrate a basis for

municipal liability with respect to his Section 1983 claim. This Court agrees that the

District is entitled to summary judgment on all of Sledge’s claims; accordingly,

Defendant’s motion for summary judgment will be GRANTED. A separate order

consistent with this opinion will follow.

I. BACKGROUND

This case primarily arises out of a series of events in February of 2009 involving

Sledge and Groomes, which are recounted below and are undisputed unless otherwise

noted. 1 As mentioned, Sledge is an African-American police officer who has worked as

an officer of the MPD since 1985 and has held the rank of captain since 2007. (See

Compl. ¶ 11; see also Dep. of David Sledge (“Def.’s Sledge Dep.”), ECF No. 25-1, at

5-6.) 2 Sledge’s medical condition—hypertension and high blood pressure—has

1

Many of the facts have been culled from exhibits to the parties’ memoranda that were filed in this

Court under seal. (See May 2008 Request for Administrative Leave to Attend Outside Training, ECF

No. 26-1; Request for Administrative Leave, ECF No. 26-2; Notice of Proposed Adverse Action, ECF

No. 26-3; Final Notice of Adverse Action, ECF No. 26-4; Letter of Chief of Police Cathy Lanier dated

July 29, 2009, ECF No. 26-5; Investigation with Recommendations Regarding Neglect of Duty by

Captain David Sledge, ECF No. 26-6; Letter of Chief of Police Cathy Lanier dated Apr. 26, 2010, ECF

No. 26-7; Sledge Performance Evaluation, ECF No. 26-8; June 2008 Request for Administrative Leave

to Attend Outside Training, ECF No. 26-10; Order of Dismissal Regarding Appeal of Non-

Performance-of-Duty, ECF No. 26-11; Mem. Regarding Sledge’s Demotion Appeal, ECF No. 33-1;

Decision on Sledge’s Demotion Appeal, ECF No. 33-2.) In their unsealed briefs on the instant motion,

the parties have referenced and quoted from portions of these exhibits, and this Court has done the

same in this opinion. However, the documents themselves will remain sealed in their entirety on the

docket until further notice.

2

Page numbers throughout refer to the numbers that the Court’s electronic filing system assigns. In

addition, the Court notes that both parties have submitted excerpts of Sledge’s deposition. Defendant’s

2

interfered with his ability to work at times, requiring him to take sick leave. (See

Def.’s Sledge Dep. at 4.)

In April of 2008, Sledge’s immediate supervisor, Commander Joel Maupin

(“Maupin”), and his second-level supervisor, Groomes, appointed Sledge to serve as

“administrative captain.” (Id. at 2; Def. District of Columbia’s Stmt. of Material Facts

as to which there is No Genuine Issue (“Def.’s Facts”), ECF No. 24, at 3-6, ¶ 3). In this

capacity, Sledge was responsible for assigning officers to criminal investigations;

monitoring the assignees’ timeliness, progress, and completion of tasks; and reviewing

administrative correspondence. (Role of Admin. Cpt., ECF No. 25-2, at 1; Pl.’s Sledge

Dep., ECF No. 31-3, at 18.) At the time of the appointment, Sledge and Maupin worked

at MPD’s Seventh District headquarters in the Southeast quadrant of the District of

Columbia, while Groomes was stationed in Northwest D.C. (Def.’s Facts ¶ 3.)

By all accounts, the administrative captain position involved a significant

amount of extra work for Sledge. (See Pl.’s Sledge Dep. at 12-15.) In June of 2008,

two months into his service as administrative captain, Sledge requested leave to attend a

week-long training program, but Maupin denied the request on the ground that Sledge

was too far behind on work-related tasks. (See Request for Training, ECF No. 26-1, at

1-2; Pl.’s Sledge Dep. at 25; see also Denial Letter, ECF No. 26-2, at 1.) According to

the complaint, in the fall of that same year, Sledge “began to complain to management

regarding the discrimination he believed he was being subjected to.” (Compl. ¶ 21.)

excerpts are referred to throughout as “Def.’s Sledge Dep.,” while the excerpts that Sledge submitted

are referred to as “Pl.’s Sledge Dep.”

3

Sledge’s Neglect Of Duty Charge

While serving as administrative captain, Sledge briefly took on an additional

role: Maupin assigned Sledge to serve as Acting Commander of the Seventh District

for one week—from Wednesday, January 28, 2009, until Wednesday, February 4,

2009—while Maupin was out on leave. (Groomes Inv. Report, ECF No. 26-6, at 1.)

Over the weekend during this assigned period, there were two shooting homicides and a

stabbing incident in the Seventh District. (Id. at 1.) The precinct called Sledge at home

and sent him emails directing him to return to work immediately in order to oversee the

investigations. (Id. at 1-2.) Sledge did not respond to the calls or the emails, nor did he

oversee the homicide and stabbing investigations, and he did not return to work until

Monday, February 2nd. (Id.) In addition, according to Groomes, Sledge was unable to

apprise his supervisors sufficiently at a briefing session upon his return. (Id. at 2

(providing examples of specific questions that Sledge was unable to answer).) For his

part, Sledge has admitted that he was absent over the weekend, but also has insisted that

the captain who was on duty at the time should have been held responsible. (See Pl.’s

Sledge Dep. at 75-76.) In addition, Sledge disputes Groomes’s characterization of his

briefing performance: Sledge maintains that he answered every question he was asked

during the session, despite the fact that Groomes “scream[ed] and holler[ed] at [him],

and just humiliated [him] in front of everybody” present. (Pl.’s Sledge Dep. at 79.)

At the end of the briefing session, Groomes assigned Sledge several tasks,

including writing a report that was due the following day. (See Groomes Inv. Report at

2.) Shortly after the meeting, Groomes followed up with e-mails requesting the report

even sooner—by later that same afternoon. (See Pl.’s Sledge Dep. at 79-80; Groomes

4

Inv. Report at 2.) It is undisputed that Sledge did not complete the report or the other

assigned tasks. Instead, he left the office after he began to feel ill, and went to the

police officer’s clinic, which placed him on sick leave due to hypertension-related

symptoms. (Pl.’s Sledge Dep. 80-83; Groomes Inv. Report at 4-5.) Sledge did not tell

Groomes that he was leaving the office, but he did speak with Maupin, who was out of

town at the time. (See Groomes Inv. Report at 2-3.) In their brief phone call, Sledge

told Maupin that he was leaving the office due to illness and asked Maupin to send in a

replacement; Maupin denied the request. (See id.; see also Pl.’s Sledge Dep. at 82-83.)

The parties dispute whether Sledge told Maupin that he had pressing assignments due to

Groomes. (Compare Groomes Inv. Report. at 2-3 (noting that Sledge never told Maupin

about the outstanding reports), with Pl.’s Sledge Dep. at 82-84 (contending that he told

Maupin about the reports).) In any event, Sledge asked a lower-ranking officer to

complete the tasks for him, and it is undisputed that the officer did not finish the work.

Sledge did not return to the office until February 17, 2009; from Groomes’s

perspective, Sledge’s sudden absence for fifteen days resulted in the failure to address

“numerous issues and requested items[.]” (Groomes Inv. Report at 3.)

In the wake of Sledge’s weekend absence, unexpected and generally

unannounced departure from work during the following week, and incomplete

assignments, Groomes initiated an administrative investigation into Sledge’s conduct.

(See id.; see also EEOC Intake Questionnaire, ECF No. 25-5, at 6.) This investigation

commenced on February 3, 2009, and concluded on February 21, 2009, and involved

collecting statements from officers with knowledge of the pertinent events, such as

Sledge, Maupin, and the lower-ranking officer Sledge asked to fill in for him.

5

(Groomes Inv. Report at 4-9; EEOC Intake Questionnaire at 6.) Upon completing her

investigation, Groomes issued a report recommending that Sledge be disciplined for

neglect of duty. (See Groomes Inv. Report at 14 (recommending that Sledge “be cited

for adverse action” but not suggesting a particular course of action).) The bases for the

suggested disciplinary action were: (1) Sledge’s failure to report to duty on Sunday,

February 1st; (2) Sledge’s failure to respond sufficiently to the homicide incidents and

to prepare for the briefing session; (3) Sledge’s failure to complete priority assignments

or to ensure that they were otherwise completed; and (4) Sledge’s failure to notify

Groomes that he was leaving the office due to illness. (Id. at 13-14.)

Groomes’s neglect-of-duty report made its way through MPD’s administrative

channels. On March 2, 2009, the chief of MPD’s Internal Affairs Division concurred

with Groomes’s report and recommendation. (See EEOC Intake Questionnaire at 6.)

An MPD Disciplinary Review Officer then reviewed Groomes’s investigative report,

concurred with the findings, and recommended that Sledge be demoted to the rank of

lieutenant. (Id.) The MPD served Sledge with a Notice of Proposed Adverse Action for

Demotion on April 13, 2009. (See ECF No. 26-3, at 1-2.) Days later, Sledge filed a

formal response in which he denied the charge and contended inter alia that the

responsibility for the failure to complete the assignments should not lie with him. (See

Final Notice of Adverse Action, ECF No. 26-4, at 1-2 (referencing Sledge’s response);

see also EEOC Intake Questionnaire at 7 (same).) Upon review, the MPD disagreed

with Sledge and concurred with the earlier finding that he was remiss in his duties and

that the neglect-of-duty charge was warranted. (Final Notice of Adverse Action at 2,

6

4.) Sledge received a Final Notice of Adverse Action informing him of his demotion on

June 24, 2009. (Id. at 1.)

Pursuant to MPD regulations, Sledge then appealed the decision to the Chief of

the MPD, Cathy Lanier. (See Letter of Chief of Police Cathy Lanier dated July 29,

2009, ECF No. 26-5, at 1.) While that appeal was pending, Sledge received his first

ever negative performance evaluation. (See EEOC Intake Questionnaire at 2.) By letter

of July 29, 2009, Chief Lanier upheld the neglect-of-duty finding but reduced the

punishment: instead of demotion, the Chief imposed a twenty-day suspension without

pay, ten days of which would be held in abeyance for one year. (Id. at 9.) According to

Sledge, this punishment prevented him from being eligible for a promotion for the next

three years. (See Pl.’s Sledge Dep. at 58 (explaining that an officer cannot be appointed

to a higher-ranking position within three years of any disciplinary actions).)

EEO Complaints

Groomes’s neglect-of-duty investigation was still in its early stages when Sledge,

who was out on sick leave, met with Assistant Chief of Police Alfred Durham to

complain that Groomes had been discriminating against him. The meeting took place

on February 12, 2009, and Sledge maintained that Groomes had created a hostile work

environment for him because of his hypertension and use of sick leave. (See EEOC

Intake Questionnaire at 5.) Later that same day, Sledge met with MPD’s EEO

administrator Nicole Webster and made the same report. (Id.) In reflecting on these

two meetings later, Sledge could not specifically recall mentioning race discrimination

to either Durham or Webster. (See Pl.’s Sledge Dep. at 22 (Plaintiff “cannot recall”

whether he mentioned race discrimination to Webster on February 12, 2009); id. at 29

7

(Sledge asserts that he spoke to Durham about Groomes on February 12, 2009, without

any reference to having discussed race discrimination); id. at 30 (with respect to

Durham, “I believe I told him that [Groomes] was singling me out”); EEOC Intake

Questionnaire at 5 (Sledge describes his February 12, 2009, reports to Webster and

Durham as complaining of disability discrimination); but see Pl.’s Sledge Dep. at 30

(with respect to the meeting with Durham, Sledge “believe[d]” he mentioned “the racial

issue also”).)

These February 2009 complaints to Durham and Webster were not Sledge’s first

time reporting Groomes’s alleged mistreatment of him. According to Sledge, he first

complained to Maupin about Groomes in November of 2008, and at that time, Sledge

purportedly told Maupin that Groomes had been “discriminating against [him] racially.”

(Pl.’s Sledge Dep. at 22, 26-28.) Sledge maintains that he also complained to Chief

Lanier about Groomes over the next year (EEOC Intake Questionnaire at 5); however,

there is nothing in the record that establishes Sledge ever mentioned race discrimination

in his complaint to Chief Lanier.

On March 3, 2009, Sledge formally filed his first EEO complaint, alleging that

he had “been discriminated against based on [his] disability, in violation of the [ADA.]”

(Mar. 3, 2009, Charge of Discrimination (“March Charge of Discrimination”), ECF No.

25-3, at 1.) 3 Specifically, Sledge contended that Groomes’s neglect-of-duty

investigation constituted discrimination based on his disability and use of sick leave,

and was initiated in retaliation for his having reported her to Durham on February 12,

2009. (See id. at 1.) Sledge also noted that he had requested to be transferred and

3

The written charge of discrimination that was served on the MPD is dated March 17, 2009, but the

parties agree that Sledge went to the EEOC office to file the charge on March 3, 2009. (See March

Charge of Discrimination at 1.)

8

removed from Groomes’s supervision on several occasions, but his request had not been

granted. (Id.)

On November 9, 2009, Sledge returned to the EEOC and completed an “Intake

Questionnaire.” (See EEOC Intake Questionnaire at 1.) The Intake Questionnaire is a

standard form that includes questions regarding the nature and circumstances of the

alleged discrimination; Sledge completed the form by hand. Apparently seeking to

amend his March charge of disability discrimination, at the top of the questionnaire

Sledge wrote “AMENDMENT” and the administrative case number of his March

charge. In response to a question asking for a description of the alleged discriminatory

actions, Sledge wrote that Groomes and Maupin were engaged in “ongoing”

discriminatory acts against him (id. at 2); specifically, the “proposal for demotion,”

“[i]nitiating unwarranted discipline action and heightened scrutiny of work,” and

“preparing and submitting [a] negative performance report[.]” (Id.) Sledge also stated

that he had sent a memo to Chief Lanier “requesting to be removed from the

environment and from under the supervisory control” of Groomes and Maupin, but that

his request had been denied. (Id. at 3.)

Sledge attached to the Intake form a letter he had written (also dated November

9, 2009) that was titled “Retaliation and Harassment Complaint.” (See id. at 5.) This

narrative largely related to Sledge’s retaliation allegations insofar as it recounted

Sledge’s complaints about Groomes to various authorities and MPD’s alleged

response—actions that Sledge characterized as “unlawful discrimination, a hostile

workplace[,] and retaliation[,]” and attributed to a number of MPD officials, including

Durham, Groomes, Maupin, and the officials involved in the neglect of duty

9

investigation and determination. (Id. at 10.) For example, Sledge specifically

contended that Groomes’s investigation and the resulting Notice of Proposed Adverse

Action recommending his demotion were retaliation for his filing the March charge of

discrimination. (Id. at 7.) In support of this retaliation contention, Sledge also noted

that Groomes had not initiated investigations into other officers who had failed to

complete assignments, nor had she recommended any discipline for such officers, and

he apparently attached a list of instances of overdue correspondence by other captains

that were purportedly similar to the assignments he had failed to complete. (See id. at

9.) 4 In addition, Sledge described his repeated requests that officials conduct

investigations into Groomes and Maupin and that Sledge be removed from their

supervision, and he contended that MPD’s denial of these myriad requests had created a

hostile work environment. (See id. at 7-8.)

Notably, at points during the narrative description that was attached to the Intake

Questionnaire, Sledge reiterated his belief that Groomes “was unlawfully discriminating

against me because of my chronic hypertension and disability sick leave usage

regarding my medical condition.” (Id. at 5; see also, e.g., id. at 6 (asserting that

Groomes’s “administrative investigation” was “a pretext . . . to further mask her

unlawful discriminatory conduct towards me regarding my chronic medical condition

and disability sick leave usage.”).) On the Intake form itself, Sledge checked three

boxes in response to a request for an assertion of “the reason (basis) for your claim of

employment discrimination”: “race[,]” “disability[,]” and “retaliation[.]” (Id. at 2.)

4

The record in this matter does not include this attachment; however, the narrative that Sledge attached

to the Intake form references it. (See EEOC Intake Questionnaire at 9.) Without access to that attached

document, the Court is unable to determine whether Sledge noted the race of any other officers he

purportedly listed, nor is it clear whether the listing contained any specific information about the nature

of the purported infractions.

10

Sledge elaborated on the “disability” basis in a separate section of the form (id. at 3),

but other than a checkmark in the “race” box as a described, the EEOC Intake

Questionnaire form and its attachments make no mention of discrimination on the basis

of race.

On November 18, 2009, just ten days after Sledge completed the Intake

Questionnaire, the MPD transferred Sledge to a different district. (See Email Regarding

Transfer, ECF No. 25-6, at 1.) According to Sledge, although he retained his rank as

captain, he lost seniority and had to work undesirable midnight shifts as a result of the

transfer. (See Pl.’s Sledge Dep. at 52-54.)

On December 1, 2009, Sledge returned to the EEOC to file another charge of

discrimination, this time specifically alleging that his treatment by the MPD—including

the discipline and related suspension Groomes had initiated, the poor work performance

evaluation of July 25, 2009, and his transfer to a different district—constituted

disability discrimination and retaliation in violation of the ADA. (Dec. 1, 2009, Charge

of Discrimination (“Dec. Charge of Discrimination”), ECF No. 25-7, at 1.) The EEOC

issued a second “Notice of Charge of Discrimination” on December 2, 2009, informing

the MPD of Sledge’s new complaint. (See Notice of Charge of Discrimination, ECF

No. 25-8, at 1.) According to Defendant, the EEOC mailed a copy of Sledge’s

November Intake Questionnaire along with that December notice. (Def.’s Mot. at 10.)

On January 21, 2010, Sledge met with MPD’s Internal Affairs Department and

informed staff in that office that he intended to file another EEO action in this matter.

(See Pl.’s Answers to the District’s Interrogs. (“Pl.’s Interrog. Resps.”), ECF No. 31-4,

at 30.) Four days later, an officer in the Medical Claims review division dismissed

11

Sledge’s appeal of a disability claim that he had filed a year earlier. (See Order of

Dismissal Regarding Appeal of Non-Performance-of-Duty, ECF No. 26-11, at 1.) As

rationale for dismissal of the appeal, the Medical Claims review division stated that it

had construed Sledge’s failure to report for scheduling hearings as a withdrawal of the

appeal. (See id. at 2.) Later that same month, Maupin completed a performance review

of Sledge (see Sledge Performance Evaluation, ECF No. 26-8), which Sledge contends

was a negative performance review. Specifically, Maupin rated Sledge as a “valued

performer,” id., while he had previously received a higher overall rating of “highly

effective performer[.]” (See Def.’s Mot. at 25.)

The Instant Litigation

The EEOC issued Sledge a right-to-sue letter on July 26, 2011 (Compl. ¶ 8), and

Sledge filed the instant complaint in federal court on October 25, 2011. In Count I,

Sledge alleges that he was subjected to discrimination and a hostile work environment

due to his race in violation of Title VII of the Civil Rights Act. (Id. ¶¶ 64-81.) In

Count II, Sledge alleges that he was subject to materially adverse actions (i.e.,

retaliation) and a hostile work environment in response to his earlier protected EEO

activity, also in violation of Title VII. (Id. ¶¶ 82-99.) 5 In addition, in Count IV, Sledge

alleges a Section 1983 claim, stating that the District “denied Plaintiff equal protection

of the laws under the Fifth Amendment” as a result of the alleged discriminatory

conduct of the MPD officers, and that the city is “directly liable for the discriminatory

acts or omissions of its agents, servants and employees while acting within the course

5

The jurisdictional statement in the complaint also lists the D.C. Human Rights Act (“DCHRA”), D.C.

Code §§ 2-1401.01 et seq., as the statutory basis for Sledge’s claims, but the counts themselves do not

reference the DCHRA at all. (Compare Compl. ¶ 3, with id. ¶¶ 64-99.)

12

and scope of their employment, under the theory of Respondeat Superior.” (Id. ¶¶ 118,

119 (emphasis in original).) 6

The District filed the instant motion for summary judgment at the close of

discovery on December 13, 2013. (See Def.’s Mot. at 34.)

II. LEGAL STANDARD

The Court must grant a motion for summary judgment if the moving party

demonstrates that there is no genuine dispute 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). “A fact

is material if it ‘might affect the outcome of the suit under the governing law,’ and a

dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury

could return a verdict for the non[-]moving party.’” Steele v. Schafer, 535 F.3d 689,

692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)).

Initially, the moving party has the burden of demonstrating the absence of a

genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). Once the moving party has met this burden, the non-moving party must

designate “specific facts showing that there is a genuine issue for trial.” Id. at 324.

While the Court must view the evidence in the light most favorable to the non-moving

party and draw all reasonable inferences in that party’s favor, see, e.g., Grosdidier v.

Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23-24 (D.C. Cir. 2013), the non-

moving party must show more than “[t]he mere existence of a scintilla of evidence in

6

Plaintiff’s original complaint also included a race discrimination claim under Section 1981 of Title 42

of the U.S. Code (Count III), but the Court dismissed this claim previously because a plaintiff cannot

assert a private right of action against a state actor under Section 1981. See Sledge v. District of

Columbia, 869 F, Supp. 2d 140, 144-45 (D.D.C. 2012).

13

support of” his or her position; instead, “there must be evidence on which the jury could

reasonably find” for the non-moving party. Anderson, 477 U.S. at 252. Moreover, the

non-moving party “may not rest upon mere allegation or denials of his pleading but

must present affirmative evidence showing a genuine issue for trial.” Laningham v.

U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (internal quotation marks and citation

omitted).

It is well established that “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge at summary judgment.” Barnett v. PA Consulting Grp., Inc., 715 F.3d

354, 358 (D.C. Cir. 2013) (citation omitted). Indeed, a court’s role in deciding a

summary judgment motion is not to “determine the truth of the matter, but instead [to]

decide only whether there is a genuine issue for trial.” Id. (citation omitted).

Moreover, “the potential difficulty for a plaintiff in an employment discrimination or

retaliation action to uncover clear proof of discriminatory or retaliatory intent” warrants

caution, Nurriddin v. Bolden, No. 04-2052, 2014 WL 1648517, at *5 (D.D.C. Apr. 25,

2014) (citation omitted); therefore, in determining whether there are genuine issues of

material fact for trial, the Court reviews a defendant’s motion for summary judgment

with a slightly “heightened standard[.]” Walker v. England, 590 F. Supp. 2d 113, 133

(D.D.C. 2008) (citation omitted). Nevertheless, despite the fact that “summary

judgment must be approached with specific caution in discrimination cases, a plaintiff

is not relieved of his obligation to support his allegations” with competent evidence

showing a genuine issue for trial. Id. at 132-33 (quoting Morgan v. Fed. Home Loan.

Mortg. Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001)); see also Marshall v. James, 276

14

F. Supp. 2d 41, 47 (D.D.C. 2003) (noting that, even though courts must proceed with

caution, summary judgment is still used in discrimination cases).

III. ANALYSIS

A. Sledge’s Title VII Race Discrimination Claim (Count I)

Sledge first contends that the MPD subjected him to discrimination due to his

race. (Compl. ¶¶ 64-81.) Because there is no genuine issue of fact regarding whether

the District’s non-discriminatory rationale for the challenged actions was mere pretext

for discrimination (Sledge has not offered sufficient evidence to support the conclusion

that that it is), this Court finds that Sledge’s race discrimination claim cannot survive

the District’s motion for summary judgment.

1. Framework For Establishing Race Discrimination

Title VII prohibits federal agencies from discriminating against their employees

based on certain protected characteristics, including race. See McGrath v. Clinton, 666

F.3d 1377, 1379 (D.C. Cir. 2012) (citing 42 U.S.C. § 2000e-16(a)). It is well settled

that, for Title VII purposes, “[t]here are ‘two elements for an employment

discrimination case: (i) the plaintiff suffered an adverse employment action (ii)

because of the employee’s race, religion, sex, or national origin.’” Perry v. Shinseki,

783 F. Supp. 2d 125, 133 (D.D.C. 2011) (quoting Brady v. Office of Sergeant at Arms,

520 F.3d 490, 493 (D.C. Cir. 2008)).

As a general matter, plaintiffs may establish that they have suffered adverse

employment consequences based on a protected characteristic in two ways. First, a

plaintiff might opt to employ the “pretext” framework (otherwise known as the “single

motive” approach), and thereby demonstrate that the employer’s proffered reason for

15

the employment action was a pretext for discrimination. Id. (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973)). Alternatively, a plaintiff might choose to

employ a “mixed motive” framework that allows a plaintiff to show that a protected

criterion, such as race, was a “motivating” or “substantial” factor in the challenged

employment action. See Perry v. Shinseki, 783 F. Supp. 2d 125, 133 (D.D.C. 2011)

(citations omitted); see also Ginger v. District of Columbia, 527 F.3d 1340, 1345 (D.C.

Cir. 2008)(“In a mixed motive case, but not in a single motive case, it is a partial

affirmative defense that the employer would have taken the same action even ‘in the

absence of the impermissible motivating factor’; [and] in such a case the plaintiff is

entitled only to a declaratory judgment, limited injunctive relief, and attorney’s fees.”

(citations omitted)). So long as evidence supports both the “pretext” and “mixed

motive” theories, the plaintiff need not elect a single theory of discrimination, and

instead may argue that both apply. See Ponce v. Billington, 679 F.3d 840, 845 (D.C.

Cir. 2012) (“Even though we have described but-for and mixed-motive cases as

‘alternative ways of establishing liability, a plaintiff may proceed under both theories

simultaneously.” (citations omitted)); see also Nuskey v. Hochberg, 730 F. Supp. 2d 1,

3 (D.D.C. 2010). However, the D.C. Circuit has cautioned that “at some point [the

plaintiff] must place the employer and court on notice as to the theory or theories under

which he intends to proceed.” Ponce, 679 F.3d at 845 (citing Ginger, 527 F.3d at

1345).

Nowhere in the instant complaint or in his briefs does Sledge make the argument

that his race was one of several “motivating” or contributing factors for Groomes’s

treatment of him, including her decision to investigate him and request that he be

16

disciplined. To the contrary, Sledge repeatedly argues that MPD’s stated rationale for

taking adverse action against him (i.e., his own job-performance failures) was entirely

false and, accordingly, was pretext for discrimination. (See Compl. ¶¶ 62, 70; Pl.’s

Opp’n to the District’s Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 31, at 29.) Under

D.C. Circuit precedent, a plaintiff is required to make the specific argument that race

was a “motivating factor” if he desires for the court to consider a mixed-motive theory

when ruling on a summary judgment motion, see Ponce, 679 F.3d at 845 (discussing

Ginger, 527 F.3d at 1345); and indeed, even when the plaintiff “might have had a

compelling case had [he] argued race was one of multiple motivating factors[,]”Ginger,

527 F.3d at 1345, a court need not consider any mixed motive argument if the plaintiff

has not made one, see, e.g., Ponce, 679 F.3d at 845. Here, because Sledge has opted to

proceed solely down the single motive (pretext) path, this Court has evaluated the

instant summary judgment motion only with an eye toward whether Sledge has

proffered sufficient evidence to demonstrate that the District’s proffered reason for its

disciplinary action was pretextual. See Ponce, 679 F.3d at 845; Ginger, 527 F.3d at

1345.

Courts traditionally analyze pretext arguments in Title VII employment

discrimination cases under the familiar three-step burden-shifting framework set forth

in McDonnell Douglas Corp. v. Green. See 411 U.S. at 802-03. 7 However, the D.C.

Circuit has clarified that the court’s analysis of the first step of this framework—i.e.,

7

Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of

discrimination. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (citation omitted). If the

plaintiff establishes a prima facie case, the burden shifts to the employer to assert a legitimate, non-

discriminatory reasons for its actions. Id. (citation omitted). If the employer produces such a reason,

then the court looks to whether a reasonable jury could infer discrimination based on all of the

evidence, including the prima facie case, the employer’s rationale, and any other evidence. Id. (citation

omitted).

17

whether or not the plaintiff has established a prima facie case—is “almost always

irrelevant” and “a largely unnecessary sideshow.” Brady, 520 F.3d at 492, 494. Thus,

where, as here, the defendant employer has asserted a legitimate, non-discriminatory

reason for an employment decision, there is “one central question” that the district court

must resolve: whether the employee 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 [an

improper] basis[.]” Id. at 494. In other words, the ultimate factual issue is “whether

the employee produced sufficient evidence for a reasonable jury to find the employer’s

justifications for the challenged action are merely pretext for underlying, unlawful

discrimination.” Byrd v. District of Columbia, 807 F. Supp. 2d 37, 72 (D.D.C. 2011)

(citing Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009)). In making this

determination, the court considers “all of the evidence, taken together[.]” Jones, 557

F.3d at 678. The evidence may include testimony from the decision-maker involved

and other employees, comparative evidence suggesting that the employer treated other

employees of a difference race more favorably in the same factual circumstances, or any

other evidence suggesting the employer is “making up or lying about the underlying

facts that formed the predicate for the employment decision.” Brady, 520 F.3d at 495.

2. Sledge Has Failed To Offer Sufficient Evidence To Support An

Inference That The District’s Proffered Reason For The

Disciplinary Action Was Pretextual

Sledge alleges that the administrative investigation, severe discipline, and poor

work performance evaluation that he received were all the result of race discrimination.

(See Pl.’s Opp’n at 28-29.) The District has asserted a legitimate, non-discriminatory

18

reason for these adverse employment actions; namely, that Sledge failed to meet the

requirements of his job when (a) he did not come to work to oversee three important

investigations, (b) he did not know enough about the investigations to brief his

supervisors adequately, and (c) he left the office without taking precautions to ensure

that the priority tasks that had been assigned to him would be completed in his absence.

(See Def.’s Mot. at 12-14.) Under Brady and its progeny, the question for this Court is

whether Sledge has produced evidence that is sufficient for a reasonable jury to find

that the MPD’s stated reason was not the actual reason for the actions taken, and that,

instead, the MPD intentionally discriminated against Sledge based on his race. See

Brady, 520 F.3d at 495.

The District has submitted pages of evidence describing Sledge’s purportedly

deficient conduct—chief among this evidence is Groomes’s investigative report

detailing the incidents of February 2009. (See Groomes Inv. Report at 1-3.) Notably,

this report was based both on Groomes’s own participation in the incident (in particular,

her role as Sledge’s commanding officer) and also on statements from Sledge and four

other involved officers. (See id. at 4.) For his part, Sledge does not deny that he failed

to report for work on the day of the homicides, that he deferred to another officer

during the briefing session, and that one of the priority reports he was responsible for

was never completed. Instead, Sledge’s primary argument for discrediting the District’s

asserted non-discriminatory reason for its actions is that he was disciplined more

severely than any White officers had been for allegedly analogous misconduct. (See

Pl.’s Opp’n at 31.)

19

This Court concludes that Sledge has failed to offer evidence that is sufficient to

demonstrate that the legitimate and non-discriminatory reasons that the MPD has

provided for its treatment of Sledge were pretext for race discrimination. As an initial

matter, Sledge does not contend—and the evidence in no way reflects—that Groomes or

anyone else at the MPD made racially-tinged comments or undertook actions that, in

and of themselves, suggested race bias, either explicitly or implicitly. Instead, Sledge

asserts that other (White) officers who were facing neglect of duty charges received

more favorable treatment than he did. To support this contention, Sledge points to three

pieces of evidence: first, the deposition testimony of MPD officer Michael Eldridge,

who stated that he could not recall any other officer he disciplined for failing to submit

a homicide report (see Dep. of Michael Eldridge (“Eldridge Dep.”), ECF No. 31-2, at

13); second, his own testimony identifying two White officers who “had late reports

and were not disciplined” (Pl.’s Sledge Dep. at 48-49); and third, a list of the 68

Neglect of Duty charges that the MPD issued to high-ranking officers from 2007 to

2012, which shows that a majority of charged officers were African American, and none

of the charged White officers were subject to demotion as punishment (see Lieutenants

& Above Discipline From 2007 to Present (“Charge Statistics”), ECF No. 31-5, at 1-

16). But as explained below, none of these evidentiary bases establishes that these

other officers are meaningful comparators.

It is well established that, to be successful in the use of comparator evidence,

“the plaintiff must point to a similarly situated employee outside of a protected class

who committed comparable offenses but who was punished less severely by the same

deciding official.” White v. Tapella, 876 F. Supp. 2d 58, 70 (D.D.C. 2012) (emphasis

20

added) (citing Cabrera v. United States, 333 F. App’x 559, 564-65 (Fed. Cir. 2009));

see also id. (noting that an employee must “hold the same position as the plaintiff” to

be similarly situated). Sledge has not demonstrated that the comparator evidence he

proffers in this case meets that requirement. For example, it is not at all clear that the

other officers’ offenses that were mentioned in the deposition testimony are similar to

Sledge’s: even though the White officers may have failed to submit assigned reports

(see Eldridge Dep. at 13; Pl.’s Sledge Dep. at 48-49), Sledge was disciplined for much

more than a single failure to submit a required assignment (see Eldridge Dep. at 14;

Notice of Proposed Adverse Action at 1-2 (Sledge’s neglect of duty charge was based

on four separate incidences of misconduct)). Likewise, the proffered testimony is

devoid of any statements regarding what ranks the other officers held, and the record

does not establish that the deciding official in the comparison cases was the same as in

Sledge’s case—a crucial variable if any legitimate inference regarding intentional

discrimination is to be drawn. See Davis v. Ashcroft, 355 F. Supp. 2d 330, 344 (D.D.C.

2005); see also Phillips v. Holladay Prop. Servs., Inc., 937 F. Supp. 2d 32, 35 (D.D.C.

1996) (noting that the decision-maker or supervisor must be the same for the employees

to be similarly situated), aff’d, 1997 WL 411695 (D.C. Cir. June 19, 1997). Sledge’s

chart listing all Neglect of Duty charges fares no better. Only 22 of the 68 charges on

the list involved captains; none of the Neglect of Duty violations appear to have

involved a laundry list of “specifications”—i.e., incidents—that are similar to Sledge’s;

and there is no information about the deciding official. (See Charge Statistics at 1-16.)

Thus, the list of other Neglect of Duty charges also fails to establish that the cases

21

involving White officers involved competent comparator evidence. See White, 876 F.

Supp. 2d at 70.

The fact that an inference of race discrimination cannot reasonably be drawn

from Sledge’s comparator evidence is fatal to his Title VII race discrimination claim,

because Sledge has not based his pretext assertion on anything else. Consequently,

Defendant is entitled to summary judgment on Sledge’s intentional race discrimination

claim as a matter of law.

B. Retaliation Claim (Count II)

Sledge has also alleged a stand-alone retaliation claim in which he points to

many of the same instances of alleged race discrimination and maintains that, as

reprisal for his complaints regarding Groomes’s alleged discrimination, he suffered a

host of adversities, including

being unjustly disciplined, denial of [a] job-related stress claim, demotion

proposed, being unfairly targeted, having his work scrutinized,

involuntarily transferred (twice), involuntarily assigned to an undesirable

midnight shift, increase of workload despite being on light duty status,

having his ideas pertaining to increase in DCMPD work productivity

disregarded and denial of extra manpower.

(Compl. ¶ 88.) For the reasons that follow, the District is also entitled to summary

judgment on Sledge’s retaliation claim.

1. Framework For Proving Retaliation

To prove a prima facie case of retaliation, a plaintiff must show (1) that he

engaged in a statutorily protected activity; (2) that he suffered a materially adverse

action by his employer; and (3) that a causal link connects the two. Hamilton v.

Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (citation omitted). With respect to

whether the employer’s action is “materially adverse” for the purposes of a retaliation

22

claim, courts consider whether the action “well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Lancaster v. Vance-Cooks, 967 F. Supp. 2d

375, 386 (D.D.C. 2013). Courts have found that disciplinary investigations and

suspensions without pay may be sufficiently adverse to support a retaliation claim. See,

e.g., Baloch v. Kempthorne, 550 F.3d 1191, 1199-1200 (D.C. Cir. 2008); Rattigan v.

Holder, 604 F. Supp. 2d 33, 52 (D.D.C. 2009). However, to establish the requisite

causal nexus between the protected activity and the employer’s materially adverse

action, a plaintiff must demonstrate by direct or circumstantial evidence that the

employer had actual knowledge of the protected activity and took adverse action against

him because of it. See Jones, 557 F.3d at 670; see also Cones v. Shalala, 199 F.3d 512,

521 (D.C. Cir. 2000); Lowe v. District of Columbia, 669 F. Supp. 2d 18, 29-30 (D.D.C.

2009).

Retaliation claims brought under Title VII are subject to the same burden-

shifting framework at the summary judgment stage as single-motive discrimination

claims. See Jones, 557 F.3d at 678; see also Rattigan v. Holder, 982 F. Supp. 2d 69, 82

(D.D.C. 2013) (“[A] Title VII retaliation claim cannot rely on a mixed motive theory.”).

As explained earlier, although the McDonnell-Douglas framework applies, the D.C.

Circuit has directed district courts to fast forward to the ultimate question of whether all

of the evidence, taken together, supports an inference of retaliation when the employer

has proffered a legitimate, non-discriminatory reason for the adverse action at issue.

See Jones, 557 F.3d at 678 (citing Wiley v. Glassman, 511 F.3d 151, 155-56 (D.C. Cir.

2007)); see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en

23

banc)). Accordingly, “the court reviews each of the three relevant categories of

evidence—prima facie, pretext, and any other—to determine whether they ‘either

separately or in combination’ provide sufficient evidence for a reasonable jury to infer

retaliation.” Jones, 557 F.3d at 678 (citing Waterhouse v. District of Columbia, 298

F.3d 989, 996 (D.C. Cir. 2002)).

2. No Reasonable Jury Could Find That Sledge Was Subject To

Retaliation In Violation Of Title VII

As explained, to successfully demonstrate retaliation, Sledge must show that he

engaged in protected activity and that the MPD subjected him to adverse action because

of that activity. Hamilton, 666 F.3d at 1357. It is important to note for present

purposes that not all of the myriad complaints about Groomes that Sledge allegedly

made to various officials throughout the relevant time period qualify as “protected

activity” giving rise to an actionable Title VII retaliation claim. This is because, in

order to have engaged in a “protected activity” for the purpose of Title VII, a plaintiff

must have expressed opposition to “‘a practice made an unlawful employment practice’

by the statute.” McGrath, 666 F.3d at 1380 (quoting 42 U.S.C. § 2000e-3(a)). Title VII

does not prohibit disability discrimination at all—that, of course, is the provenance of

the ADA—consequently, complaints of discrimination “based only on [a plaintiff’s]

purported disability, which is not a characteristic enumerated in Title VII[,]” cannot

serve as the statutorily protected activity that underlies a Title VII retaliation claim.

Branscomb v. Sec’y of Navy, 461 F. App’x 901, 906 (11th Cir. 2012); see also

Omogbehin v. Cino, 485 F. App’x 606, 611 (3d Cir. 2012) (“A Title VII retaliation

claim must [ ] be based upon discrimination made unlawful by Title VII . . . [, which]

does not address discrimination based upon disabilities.” (citations omitted)). Thus,

24

any reports and complaints that Sledge made about Groomes’s alleged discrimination

and retaliation on the basis of his medical condition (without reference to race

discrimination) cannot give rise to a retaliation claim under Title VII. McGrath, 666

F.3d at 1382.

Unfortunately for Sledge, the record evidence establishes clearly that the vast

majority of his complaints about Groomes were allegations that Groomes singled him

out as a result of his hypertension, high blood pressure, and use of sick leave—and

therefore, related to disability discrimination only. (See Pl.’s Sledge Dep. at 4, 22, 30,

33, 60.) In fact, with respect to the evidence submitted in conjunction with the parties’

summary judgment briefs, there are only two times in which race discrimination is even

mentioned: first, Sledge alleges that he complained orally to Maupin in December of

2008 that he felt Groomes was discriminating against him because of his race (see id. at

26-28), and second, Sledge’s EEOC Intake Questionnaire—titled “Amendment” and

filed on November 9, 2009, subsequent to Sledge’s March 2009 formal charge of

disability discrimination—included “race” as one of the checked bases for Sledge’s

previously initiated discrimination and retaliation proceedings. Given the

overwhelming evidence that Sledge’s primary complaint and concern was about the

discrimination that he believed Groomes was subjecting him to on the basis of his

disability, Sledge has only the thinnest of reeds upon which to base his claim that he

was retaliated against because of his engagement in a “protected activity” for the

purpose of Title VII. See McGrath, 666 F.3d at 1382; Branscomb, 461 F. App’x at 906;

Omogbehin, 485 F. App’x at 611.

25

Because Sledge’s Title VII retaliation claim is properly based on only the two

complaints of race discrimination that are supported by the record, this Court’s analysis

of the viability of Sledge’s claim must relate solely to those two complaints. This

narrows sufficiently Sledge’s contentions regarding the adverse actions he suffered,

given that (a) only certain MPD acts followed the race discrimination complaints

temporally, (b) not all of these MPD acts qualify as “adverse actions,” and (c) the MPD

has provided legitimate, non-retaliatory reasons for its employment-related actions and

determinations.

Turning first to the MPD acts that allegedly were undertaken in retaliation for

Sledge’s two complaints of race discrimination, Groomes’s administrative investigation

meets the temporal test insofar as that investigation commenced in February of 2009, a

few months after Sledge’s alleged oral complaint of race discrimination to Maupin in

December of 2008. With respect to Sledge’s “Amendment” to the EEOC Questionnaire

in November 9, 2009, Sledge points to the fact that he was subsequently transferred to a

different district—which purportedly resulted in his loss of seniority and his having to

work the undesirable midnight shift—and maintains that this MPD action should also be

viewed as an adverse action taken in retaliation for his written charges. (Pl.’s Sledge

Dep. at 23.) But this Court concludes, based on the record presented, that Sledge’s late-

November transfer is not sufficiently adverse to give rise to any viable retaliation claim

stemming from that EEOC complaint.

It is well settled that a lateral transfer—i.e., a reassignment in which an

employee retains his rank and substantive responsibilities—is usually not an adverse

employment action for Title VII purposes. See Stewart v. Ashcroft, 352 F.3d 422, 426

26

(D.C. Cir. 2003); cf. Zelaya v. UNICCO Serv. Co., 733 F. Supp. 2d 121, 132 (D.D.C.

2010) (citation omitted) (noting that a lateral reassignment with a significant loss of

benefits is materially adverse). Generally speaking, the determination of whether or not

a reassignment is a materially adverse action depends on “compar[ing] the position the

plaintiff held before the transfer to the one he holds afterwards.” Pardo-Kronemann v.

Donovan, 601 F.3d 599, 607 (D.C. Cir. 2010). If a reassignment results in

“significantly diminished responsibilities[,]” it qualifies as an adverse action for

retaliation purposes, Zelaya, 733 F. Supp. 2d at 132 (citations omitted), and so, too,

does a reassignment in which the employee loses seniority, but only if the employee is

more likely to lose his job or other tangible benefits of employment as a result of that

loss of seniority. See, e.g., id. (transfer with loss of seniority was an adverse action

where seniority was the sole factor in determining layoff order). By contrast, courts in

this district have found that a loss of seniority that merely results in “subjective

dissatisfaction with working conditions,” rather than a substantial change in

responsibility or benefits, does not qualify as a materially adverse action, given that

such a transfer does not pose a “risk[ ] [to] employment itself[.]” Zelaya, 733 F. Supp.

2d at 132; see, e.g., Sims v. District of Columbia, No. 12-625, 2014 WL 487062, at *7

(D.D.C. Feb. 6, 2014) (“[Being] required to temporarily work midnight shifts

demonstrate[s] only ‘less favorable assignments,’ which, as the D.C. Circuit has

explained, do not rise to the level of materially adverse actions for the purposes of

sustaining a retaliation claim.” (citing Jones v. District of Columbia Dep’t of Corr., 429

F.3d 276, 281 (D.C. Cir. 2005))). Because Sledge has failed to establish that the

November 2009 transfer posed a substantial risk to his employment or other benefits,

27

and because he has not alleged any other adversities that occurred after his

“Amendment” to the EEOC form, his Title VII retaliation claim in this case rests solely

on the alleged causal relationship between the race-discrimination complaint Sledge

allegedly made to Maupin in December of 2008 and Groomes’s subsequent

administrative investigation and the discipline that followed.

As explained, supra, the District has asserted a legitimate, non-discriminatory

reason for Sledge’s having been investigated and disciplined in February and March of

2009; namely, that Sledge failed to meet the requirements of his job when he did not

come to work to oversee three important investigations; did not know enough about the

investigations to brief his supervisors adequately; and left the office without taking

precautions to ensure that the priority tasks that had been assigned to him would be

completed in his absence. (See Def.’s Mot. at 14-15.) Sledge does not deny these job-

related deficiencies, and just as with Sledge’s claim of race discrimination, he has

offered no direct evidence of Groomes’s motivation or that of any other MPD official

“that would discredit [the MPD’s proffered] reasons and show that the actions were

retaliatory.” Baloch, 550 F.3d at 1200 (citations omitted). Instead, Sledge bases his

pretext contention on the timing of the disciplinary actions Groomes initiated, on

certain comments Groomes allegedly made related to his demotion, and on such

circumstantial evidence as the fact that other officers had not been disciplined as

severely for a neglect of duty charge.

Simply stated, Sledge first contends that a jury could draw an inference of

retaliation based solely on the timing of his report of race discrimination to Maupin and

Groomes’s subsequent actions. (See Pl.’s Opp’n at 24-25 (“Sledge complained about

28

[Groomes’s] disparate treatment in December 2008 . . . [and a]lmost immediately after

making [that] complaint[ ], . . . Sledge was investigated for alleged neglect of

duty[.]”).) When evaluating retaliation claims, “district courts in this circuit generally

follow an informal ‘three-month rule’ for cases in which a plaintiff attempts to establish

a prima facie case of retaliation based on temporal proximity alone.” Hamilton, 666

F.3d at 1349. But a plaintiff in Sledge’s circumstance (where the defendant has offered

a legitimate non-discriminatory reason for its actions) has to do more than establish a

prima facie case, and temporal proximity “[does] not, without more, provide sufficient

evidence to show pretext.” Drewrey v. Clinton, 763 F. Supp. 2d 54, 64 (D.D.C. 2011)

(citing Porter v. Fulham, 601 F. Supp. 2d 205, 229 (D.D.C. 2009), aff’d in part, rev’d

in part on other grounds sub nom. Porter v. Shah, 606 F.3d 809 (D.C. Cir. 2010)).

Sledge also attempts to satisfy the pretext requirement by pointing to two

comments that Groomes allegedly made that Sledge argues reflect retaliatory animus.

(See Pl.’s Opp’n at 26.) In June of 2009, Groomes purportedly told another officer that

“if she ha[d] her way” she would make sure that Sledge was demoted. (Pl.’s Interrog.

Resps. at 15.) Nine months later, in March of 2010, Groomes apparently also sent

Maupin an email stating: “I heard [Sledge is] blaming you for the late correspondence.

Get [internal investigation] numbers on him.” (Pl.’s Sledge Dep. at 92-93.) There is

nothing about the first comment that even hints at a retaliatory motive, much less

provides any basis to infer that the real reason Groomes sought to demote Sledge was

because he had complained to Maupin about Groomes’s alleged race discrimination. As

for the second statement, Sledge has not established that a comment Groomes made

about Sledge more than a year after the allegedly retaliatory investigation is anything

29

other than a reflection of their clearly strained relationship, and he certainly has not

demonstrated that the statement is any way related to Groomes’s actions the previous

year in a manner that would give rise to any reasonable inference that the investigation

and discipline were not the result of Sledge’s poor performance but instead were

reprisal for Sledge’s having engaged in protected activity.

Finally, Sledge contends that the fact that other officers were not disciplined as

severely as he was is circumstantial evidence that the District’s rationale is mere

pretext. (See Pl.’s Opp’n at 24-25.) The use of such comparator cases to establish

retaliation is subject to the same restrictions as explained above in the discrimination

context; that is, the plaintiff must identify a “similarly situated employee outside of a

protected class who committed comparable offenses but who was punished less severely

by the same deciding official.” White, 876 F. Supp. 2d at 70 (citation omitted); see,

e.g., Battle v. Truland Systs. Corp., No. 12-106, 2014 WL 1045897, at *9 (D.D.C. Mar.

19, 2014) (rejecting plaintiff’s comparator evidence on his retaliation claim because

there was insufficient information about whether the proposed comparator held the

same position as the plaintiff); Burton v. Batista, 339 F. Supp. 2d 97, 115 (D.D.C.

2004) (rejecting the plaintiff’s comparator evidence on his retaliation claim because of

evidence that the two were not “similarly situated”). Here, Sledge’s proposed

comparator evidence suffers from the same deficiencies addressed above, insofar as he

has failed to establish that other officers are “similarly situated” to him, see, supra,

Section III.A.2, and it fails for the same reason.

In sum, no reasonable jury could draw an inference of retaliation based on the

timing of the disciplinary actions that Groomes initiated, Groomes’s comments about

30

Sledge, or the circumstantial evidence regarding other officers’ discipline, and Sledge

has not asserted any other reasons to rebut Defendant’s legitimate, non-discriminatory

rationale for taking the adverse actions at issue here. Consequently, Defendant is

entitled to summary judgment on Sledge’s retaliation claim as a matter of law.

C. Hostile Work Environment Claims (Counts I And II)

In conjunction with his race discrimination and retaliation claims, Sledge also

contends that the MPD’s actions with respect to him—including Groomes’s

investigation and the failure of other captains and commanders to respond to his

repeated complaints about her—created a hostile work environment. (Compl. ¶¶ 64-99;

see also Intake Questionnaire at 5.) 8 For the reasons that follow, Sledge has not

produced sufficient evidence for a reasonable jury to find in his favor on his hostile

work environment allegations.

1. Framework For Establishing A Hostile Work Environment Claim

Title VII not only prohibits discriminatory employment decisions that have

tangible consequences, it “also prohibits an employer from subjecting its employees to

discriminatory hostile or abusive work environments.” Byrd, 807 F. Supp. 2d at 64

(citation omitted). To establish a hostile work environment claim against his employer,

a plaintiff must demonstrate that (1) he is a member of a protected class; (2) he was

subject to unwelcome harassment; (3) the harassment was on the basis of membership

in a protected class; (4) the harassment unreasonably interfered with the plaintiff’s

work performance and created an intimidating, hostile, or offensive working

8

Sledge has alleged a “hostile work environment” claim in two different counts of his complaint,

maintaining that he was subjected to such an environment as a result of race discrimination (Count I)

and retaliation (Count II). Because a defendant’s alleged motivation is not a pertinent element of a

hostile work environment claim, this Court sees no reason to evaluate Sledge’s hostile work

environment allegation separately for each count.

31

environment; and (5) the employer knew or should have known of the harassment and

failed to prevent it. See id.; Hunter v. D.C. Child & Family Servs. Agency, 710 F. Supp.

2d 152, 157-58 (D.D.C. 2010). Significantly, ongoing acts of harassment only create a

hostile work environment for Title VII purposes “[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 v. Forklift Systs., Inc., 510 U.S. 17, 21 (1993)

(internal quotation marks and citation omitted). In determining whether the alleged

harassment qualifies as severe or pervasive, courts consider the frequency and severity

of the conduct; whether it is physically threatening or humiliating as opposed to merely

offensive; and whether it unreasonably interferes with the employee’s work

performance. Id. at 23; see also Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir.

2014) (citation omitted). Moreover, to be actionable, the conduct complained of must

be both objectively and subjectively hostile or abusive. Faragher v. City of Boca

Raton, 524 U.S. 775, 787 (1998).

Even when a plaintiff identifies workplace conduct that rises to the level of

actionable harassment, it is clear that, in order to form part of the “same actionable

hostile work environment claim[,]” incidents of harassment must be sufficiently related

insofar as they “involve[ ] the same type of employment actions, occur[ ] relatively

frequently, and [are] perpetrated by the same managers.” Baird v. Gotbaum, 662 F.3d

1246, 1251 (D.C. Cir. 2011) (alterations in original) (internal quotation marks and

citations omitted). In other words, the acts giving rise to a hostile work environment

claim must be “part of the same unlawful employment practice, as opposed to being an

32

array of unrelated discriminatory or retaliatory acts.” Id. at 1252 (internal quotation

marks and citations omitted). Additionally, “[c]ourts in this jurisdiction have routinely

held that hostile behavior, no matter how unjustified or egregious, cannot support a

claim of hostile work environment unless there exists some linkage between the hostile

behavior and the plaintiff’s membership in a protected class.” Na’im v. Clinton, 626 F.

Supp. 2d 63, 73 (D.D.C. 2009) (collecting cases); see, e.g., Baloch, 550 F.3d at 1201

(affirming summary judgment for defendant on a hostile work environment claim

because almost none of the employer’s comments expressly focused on his race,

religion, age, or disability); Kline v. Springer, 602 F. Supp. 2d 234, 243 (D.D.C. 2009)

(granting summary judgment for defendant on a hostile work environment claim

because none of the comments had any direct connection to the plaintiff’s race or sex);

see also Chaple v. Johnson, 453 F. Supp. 2d 63, 74 (D.D.C. 2006) (noting that “[i]t

must be clear that the hostile work environment was the result of discrimination based

on a protected status” (citation omitted)). In other words, “many bosses are harsh,

unjust, and rude[,]” and “[i]t 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 [or retaliation; o]therwise, the federal courts will

become a court of personnel appeals.” Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107

(D.D.C. 2005) (internal quotation marks and citations omitted).

2. The Record Evidence Does Not Establish That Sledge Was

Subjected To A Hostile Work Environment

Sledge contends that his workplace became a hostile work environment for Title

VII purposes beginning in the spring of 2008 due to certain specific events: (1)

Groomes increased Sledge’s workload in March of 2008; (2) Maupin denied Sledge’s

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request to attend a week-long training session in June of 2008; (3) Groomes instructed

another officer to investigate Sledge in November of 2008 for failing to respond to a

citizen’s email; (5) Groomes “screamed, hollered[,] and humiliated” Sledge at two

group meetings in January and February of 2009; and (6) Durham failed to take action

in response to Sledge’s complaints about Groomes throughout this time period. (See

Pl.’s Interrog. Resps. at 18-20.) More generally, Sledge maintains that a hostile work

environment arose as a result of the MPD’s “practice of imposing unjust discipline

[and] initiating unwarranted Internal Affairs investigations” (Pl.’s Opp’n at 33), and

that “Groomes took every opportunity, no matter how slight, to create a hostile work

environment for” him. (Pl.’s Opp’n at 32-33.) Given the applicable legal standards,

however, this Court concludes that there is no genuine issue of material fact regarding

whether Sledge was subjected to a hostile work environment in violation of Title VII—

for the reasons explained below, the record evidence demonstrates clearly that he was

not.

First of all, not all of the incidents that Sledge points to can support a hostile

work environment claim, nor are they all sufficiently related to one another to sustain a

single hostile work environment charge. One outlier is instantly obvious: Durham’s

reported failure to investigate Sledge’s complaints is an entirely different type of action

than the extra scrutiny and harsher discipline that form the basis of Sledge’s other

hostile work environment allegations. Consequently, Durham’s alleged inaction is not

properly considered part of the hostile work environment that Groomes, and to some

extent Maupin, allegedly created. See Baird, 662 F.3d at 1251.

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The remaining incidents of purportedly abusive conduct generally involved the

same decision-makers (Sledge’s direct supervisors) and arguably more similar

employment actions (i.e., singling Sledge out); nevertheless, the Court concludes that

these types of actions are simply not the stuff of which valid Title VII hostile work

environment claims are made, for several reasons. First, Sledge has presented no

evidence whatsoever that suggests any link between Groomes’s allegedly hostile

conduct and Sledge’s race. For example, there is no allegation or evidence that

Groomes’s act of yelling at Sledge after Sledge failed to report for duty reflected a

racial animus; indeed, Sledge has not recounted the contents of any of Groomes’s

statements at all. And this lack of any factual basis upon which to conclude that race

played a role in Groomes’s alleged mistreatment of Sledge is even more pronounced

considering that the MPD has offered a legitimate, non-discriminatory rationale for

Groomes’s harsh tone, administrative investigation, and recommended discipline.

Second, and perhaps even more significant, the environment that Sledge

allegedly faced during the relevant timeframe was not sufficiently “severe or pervasive”

to qualify as a hostile work environment. For example, Sledge claims that Groomes

“humiliated” him during two group meetings in January and February of 2009 (see Pl.’s

Interrog. Resps. at 18), but there is no evidence that alleged humiliation continued

beyond those two meetings, nor has Sledge established with evidentiary support that

Groomes’s alleged “screaming” was objectively humiliating. As noted above, Sledge

has not even provided allegations or evidence regarding the language Groomes

allegedly used, much less established that a reasonable jury could find the sort of

“extreme” conduct required. See Akosile v. Armed Forces Retirement Home, 938 F.

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Supp. 2d 76, 87 (D.D.C. 2013) (“Negative interactions with supervisors, even when a

supervisor yells and uses profanity, generally do not meet [the hostile work

environment] standard.” (citing Baloch, 550 F.3d at 1201)).

Moreover, Sledge does little to offer evidentiary support for his contention that

he faced a hostile work environment due to the additional unwarranted scrutiny. As

explained, a work environment is sufficiently hostile only if the harassing treatment

objectively “alter[s] the conditions” of a plaintiff’s employment. See Harris, 510 U.S.

at 21 (citation omitted). Consequently, courts in this district have declined to find a

hostile work environment where employees faced circumstances that were even more

taxing than those Sledge faced here. See, e.g., Williams v. Spencer, 883 F. Supp. 2d

165, 180-81 (D.D.C. 2012) (finding no hostile work environment where a supervisor

persistently ignored and humiliated an employee during staff meetings, gave the

employee an unwarranted negative performance review, placed burdensome

requirements on the employee, did not give the employee an opportunity to improve her

performance, and then, unfairly disciplined the employee by charging her as absent-

without-leave while she attended a doctor’s appointment); see also, e.g., Baloch, 550

F.3d at 1201 (affirming finding of no hostile work environment where the plaintiff’s

supervisor repeatedly criticized him and gave him a negative review, imposed leave

restrictions, engaged in verbal altercations with the plaintiff using profanity, and

threatened to have the plaintiff arrested); Hussain v. Nicholson, 435 F.3d 359, 366-67

(D.C. Cir. 2006) (affirming summary judgment for defendant on hostile work

environment claim because no reasonable jury could find a hostile work environment

based on a denial of promotion, denial of medical leave, poor performance evaluations,

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and threats of termination). Furthermore, where, as here, the employer has provided

legitimate reasons for the discipline, there is even less of a factual basis upon which to

conclude that the established “hostile work environment” standards are satisfied. See

Harris, 510 U.S. at 21.

In short, the “ordinary tribulations of the workplace” reflecting an employee’s

difficult relationship with a supervisor are not actionable under Title VII, Faragher,

524 U.S. at 788 (citation omitted), and in this case Sledge has demonstrated nothing

more. Therefore, the District is entitled to summary judgment on Plaintiff’s hostile

work environment claims.

D. Section 1983 Claim (Count IV)

Lastly, Sledge contends that the District is liable under Section 1983 of Title 42

of the United States Code for violations of his Fifth Amendment right to equal

protection and his rights under Title VII based on the MPD officers’ alleged race

discrimination and unlawful retaliation. (Compl. ¶¶ 111-121.) Sledge’s Section 1983

claim is against the District, rather than against any particular MPD officer; hence, it is

a municipal liability claim. See Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658, 695

(1978); Best v. District of Columbia, 743 F. Supp. 44, 46 (1990) (citation omitted).

Defendant is entitled to summary judgment on this claim because, even if the evidence

in this matter supported an inference that MPD officers discriminated against Sledge on

the basis of his race or retaliated him in violation of Title VII (it does not), Sledge has

not demonstrated any basis for municipal liability.

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1. Legal Framework For A Section 1983 Claim Brought Against A

Municipality

A prima facie case under Section 1983 requires a showing that a person acting

under the color of state law caused a deprivation of a constitutional right or federal law.

Monell, 436 U.S. at 690-91. Under Monell v. Department of Social Services of the City

of New York, 436 U.S. 683 (1978), a municipality may be liable for such deprivations

only if, first, the plaintiff establishes an underlying violation of the Constitution or

other federal law; and second, the plaintiff demonstrates that a basis for municipal

liability exists. See Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir.

2008) (citation omitted); Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir.

2003) (citation omitted).

With respect to the second prong of this Monell municipal liability test, the

Supreme Court has made clear that respondeat superior (or vicarious liability) is not

enough. City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell, 436 U.S. at

694-95). Instead, a city can be held liable under Section 1983—either directly or in its

role as a supervisor of the employees who undertake unconstitutional actions—only

when its own “policy or custom[ ] . . . inflicts the injury[.]” Monell, 436 U.S. at 694.

“There are four basic categories of municipal action [a p]laintiff may rely on to

establish municipal liability: (1) express municipal policy; (2) adoption by municipal

policymakers; (3) custom or usage; and (4) deliberate indifference.” Hunter v. District

of Columbia, 824 F. Supp. 2d 125, 133 (D.D.C. 2011) (citing Monell, 436 U.S. at 690-

94). In addition, to establish municipal liability, the court “must determine whether the

plaintiff has alleged an affirmative link, such that a municipal policy was the moving

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force behind the constitutional violation[.]” Baker, 326 F.3d at 1306 (internal quotation

marks and citations omitted).

2. Sledge Has Failed To Establish A Basis For Municipal Liability

In this case, Sledge’s Section 1983 claim fails because he likely cannot satisfy

either prong of Monell’s test for municipal liability under Section 1983, and he

certainly fails to satisfy the second. With respect to the first prong, as described in

detail above, no reasonable jury could conclude that Sledge was discriminated against

on the basis of his race, or that his supervisor retaliated against him or subjected him to

a hostile work environment due to race in violation of his rights under Title VII. See

Sections III.A.2, III.B.2, III.C.2, supra. It is also highly unlikely that, having failed to

establish an actionable Title VII discrimination or retaliation claim, Sledge would be

able to show that the MPD intentionally treated him differently from others similarly

situated without a rational basis, as required to sustain a Fifth Amendment equal

protection claim. See Jo v. District of Columbia, 582 F. Supp. 2d 51, 60 (D.D.C. 2008)

(“Courts in this district have often applied Title VII case law to review claims of

discrimination [in violation of the Fifth Amendment] under [Section] 1983 to determine

whether a plaintiff has established a predicate constitutional violation.” (collecting

cases)).

But even if Sledge could establish the predicate violation and thus could

successfully mount the first Monell hurdle, he has fallen far short of having adduced

sufficient evidence to establish a basis for the District’s liability. The record reflects

that the allegedly discriminating actors in this case are individual officers who were

generally acting on their own accord under color of state law. In the complaint, Sledge

specifically alleged municipal liability based on respondeat superior liability for the

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officers’ conduct (see Compl. ¶ 119 (“Defendant is directly liable for the discriminatory

acts or omissions of its agents, servants and employees while acting within the course

and scope of their employment, under the theory of Respondeat Superior.”)), but as

noted above, it is well settled that municipal liability does not lie on this basis.

None of the other routes to municipal liability are available here, either. There is

no evidence that the officers mistreated Sledge pursuant to some sort of municipal

policy, whether express or implied through custom. See Hunter, 824 F. Supp. 2d at

133. Nor is there evidentiary support for Sledge’s newly-minted claims of deliberate

indifference. (See Pl.’s Opp’n at 36 (contending that “the evidence establishes a

deliberate indifference standard” of liability because “Sledge complained of

misconduct” and Defendant “refused to investigate any of his complaints”).) Deliberate

indifference liability occurs when a municipality knew or should have known of a risk

that the complained-of violation would occur, but did nothing to prevent that violation.

Baker, 326 F.3d at 1306-07. This theory mandates a “stringent standard of fault,

requiring proof that a municipal actor disregarded a known or obvious consequence of

his action.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (quoting Bd. of

Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)). The alleged

unconstitutional conduct must be “pervasive enough to be ‘so common and settled’ as

‘to be considered a custom or policy.’” Jones v. District of Columbia, 879 F. Supp. 2d

69, 86 (D.D.C. 2012) (citing Carter v. District of Columbia, 795 F.2d 116, 125 (D.C.

Cir. 1986)); see also Poindexter v. D.C. Dep’t of Corrections, 891 F. Supp. 2d 117, 121

(D.D.C. 2012) (a plaintiff may prove deliberate indifference by, among other things,

demonstrating that the “municipality adopt[ed] a policy of inaction when faced with

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actual or constructive knowledge that its agents will likely violate constitutional

rights,” and by showing that the policy was the driving force behind the challenged

conduct). Moreover, “[p]roof of a single incident of unconstitutional activity is not

sufficient to impose liability under Monell,” City of Okla. City v. Tuttle, 471 U.S. 808,

823-34 (1985), and “[s]imply citing to [plaintiff’s] own experiences” does not

demonstrate that a plaintiff was “the victim of a policy or custom that caused them to

suffer injury.” Jones, 879 F. Supp. 2d at 87; Sanders v. District of Columbia, 522 F.

Supp. 2d 83, 88 (D.D.C. 2007) (dismissing plaintiff’s First Amendment retaliation

claims under Section 1983 where the plaintiff did not “point[ ] to any other employee

who suffered similar retaliation”).

DuBerry v. District of Columbia, 582 F. Supp. 2d 27 (D.D.C. 2008), is

instructive on this point. The court in that case granted summary judgment to defendant

on plaintiff’s claim that the District of Columbia violated his Fifth Amendment rights

by engaging in race discrimination when his employer, the D.C. Department of

Corrections (“DOC”), fired him then refused to rehire him. Id. at 39. The plaintiff

argued that because DOC officials were aware of and approved those allegedly

discriminatory employment decisions, the District could be held liable. Id. The court

disagreed, noting that plaintiff had failed to establish a basis for municipal liability

because he had “not produced any evidence that [DOC’s] alleged discriminatory

employment practices impacted a single employee . . . other than himself[,]” and thus

the conduct alleged did not reflect a policy or custom. Id.

So it is here. In support of his argument for deliberate indifference liability,

Sledge cites only his own reports of discriminatory and retaliatory misconduct, and the

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MPD’s failure to investigate those reports. (See Pl.’s Opp’n at 36 (record citations

omitted).) Like DuBerry, Sledge has not produced any evidence that the MPD had

developed a practice of ignoring allegations related to discriminatory treatment by its

employees, and indeed, Sledge has not identified any other similar reports that the

District allegedly ignored. At bottom, there is no evidence that the MPD has a custom,

practice, or policy of deliberately ignoring complaints alleging discrimination or

retaliation on the basis of race. Accordingly, Sledge has failed to establish that

Defendant is liable for the allegedly discriminatory and retaliatory acts of its officers.

Undaunted, Sledge contends in the alternative that he need not establish a basis

for municipal liability at all because courts in this circuit do not require a plaintiff to do

so when they allege a Section 1983 claim based on a Title VII violation. (See id. at 35.)

This argument is mistaken. While Sledge is correct that courts apply Title VII case law

to address Monell’s first prong—i.e., whether there has been employment

discrimination in violation of the Constitution or a federal law—it is clear beyond cavil

that a successful plaintiff is still required to satisfy Monell’s second prong. See, e.g.,

Olatunji v. District of Columbia, 958 F. Supp. 2d 27, 34-35 (D.D.C. 2013) (requiring

the plaintiff to establish a basis for municipal liability on a Section 1983 employment

discrimination claim); Motley-Ivey v. District of Columbia, 923 F. Supp. 2d 222, 238-39

(D.D.C. 2013) (same); DuBerry, 582 F. Supp. 2d at 39 (same); Turner, 383 F. Supp. 2d

at 166 (same). Sledge has failed to meet this requirement. Therefore, the District is

also entitled to summary judgment on Sledge’s Section 1983 municipal liability claim.

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IV. CONCLUSION

For the foregoing reasons, the Court concludes that Defendant’s motion for

summary judgment must be GRANTED. Accordingly, as set forth in the accompanying

order, judgment will be entered in favor of Defendant on all claims.

DATE: August 6, 2014 Ketanji Brown Jackson

KETANJI BROWN JACKSON

United States District Judge

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