Earnest Durant v. District of Columbia Government

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2017 Decided November 17, 2017

No. 13-7060

EARNEST DURANT,

APPELLANT

v.

DISTRICT OF COLUMBIA GOVERNMENT,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-00025)

Anthony F. Shelley, appointed by the court, argued the

cause as amicus curiae in support of appellant. With him on the

briefs were Michael J. Satin and Amelia D. Hairston-Porter.

Holly M. Johnson, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellee. With her on the brief were Karl A. Racine,

Attorney General, Todd S. Kim, Solicitor General, and Loren

L. AliKhan, Deputy Solicitor General.

Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,

and EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Appellant Earnest Durant,

Jr. filed a complaint in the District Court against his former

employer, the District of Columbia Department of Corrections,

claiming violations of Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. §§ 2000e–2000e-17 (2012). Durant

alleged that the Department of Corrections (“Department”)

retaliated against him for engaging in activities that were

protected under Title VII and subjected him to a hostile work

environment.

After the close of discovery, the District of Columbia

(“District”) filed a motion for summary judgment, contending,

inter alia, that Durant’s retaliation claims concerning

employment actions taken prior to October 2007 were barred

because there was nothing in the record to indicate that Durant

had filed a timely charge with the Equal Employment

Opportunity Commission (“EEOC”) or with the D.C. Office of

Human Rights, as required by Title VII. See id. § 2000e-

5(e)(1). The District also moved for summary judgment on

Durant’s retaliation claims based on employment actions taken

after October 2007 and on his hostile work environment claims.

The District Court granted summary judgment in favor of the

District in full. See Durant v. Dist. of Columbia, 932 F. Supp.

2d 53 (D.D.C. 2013). Durant, acting pro se, filed a timely

notice of appeal. This court appointed Miller & Chevalier as

amicus curiae to present arguments in support of Durant.

We affirm the judgment of the District Court regarding

Durant’s retaliation claims relating to actions taken prior to

October 2007. The District Court correctly found not only that

Durant never responded to this portion of the District’s motion

for summary judgment but also that there was no evidence in

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the record that Durant filed any charge of discrimination that

would have rendered the claims timely. “[T]he burden on a

defendant moving for summary judgment may be discharged

without factual disproof of the plaintiff’s case; the defendant

need only identify the ways in which the plaintiff has failed to

come forward with sufficient evidence to support a reasonable

jury to find in [his] favor on one or more essential elements of

[his] claim.” Grimes v. Dist. of Columbia, 794 F.3d 83, 93

(D.C. Cir. 2015). Because Durant failed to “present affirmative

evidence” sufficient to show that a reasonable jury could return

a verdict in his favor, Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 257 (1986), summary judgment for the District regarding

the actions taken prior to October 2007 was proper.

We also affirm the District Court’s grant of summary

judgment for the District on Durant’s remaining retaliation

claims arising out of events occurring after October 2007. A

reasonable jury could not infer from the proffered evidence that

the challenged employment actions might have “dissuade[d] a

reasonable worker from making or supporting a charge of

discrimination,” Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 57 (2006), or that the Department’s legitimate,

nonretaliatory reason for Durant’s termination was a pretext for

retaliation, see Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 253 (1981). We further affirm the District Court’s grant of

summary judgment for the District on Durant’s hostile work

environment claims because there are no genuine disputes

between the parties over the material facts that negate Durant’s

claims. Finally, we deny Durant’s request to remand the case

to the District Court to reopen discovery so that he can

supplement the record with additional documents. Durant had

ample opportunity during the trial court proceedings to obtain

and present discovery in support of his claims, and he fails to

explain how introduction of additional discovery would create

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a genuine dispute of material fact sufficient to overcome

summary judgment.

I. BACKGROUND

A. Factual Background

Earnest Durant, Jr. began his career with the Department

in July 1983 and was subsequently terminated on July 2, 2010.

During his tenure at the Department, Durant was promoted to

the position of Criminal Investigator, DS-1811-11, with the

Department’s Warrant Squad, whose headquarters were

located at 300 Indiana Avenue NW. The Warrant Squad was

responsible for obtaining warrants for, locating, and

apprehending individuals who had escaped, been erroneously

released, or absconded from the Department’s custody.

In the mid-1990s, Durant participated in a federal class

action sexual harassment lawsuit against the Department. See

Neal v. Dir., Dist. of Columbia Dep’t of Corr., Civ. A. No. 93-

2420, 1995 WL 517248 (D.D.C. Aug. 9, 1995). The case was

tried before a jury, which ultimately found in favor of the

plaintiffs after determining that the defendants had engaged in

a pattern and practice of sexual harassment and retaliation in

violation of Title VII and 42 U.S.C. § 1983. See id. at *9. For

purposes of this appeal, the salient employment actions began

several years later, in mid-2007.

On June 14, 2007, Durant was placed on a two-month

administrative leave pending the Department’s investigation of

allegations that Durant had used a Department Xerox copy

machine for impermissible purposes and had permitted an

unauthorized individual to enter the Warrant Squad’s offices.

Upon Durant’s return to the Warrant Squad in August 2007, he

was reassigned to work in a different building, the Office of

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Community Corrections located at 1923 Vermont Avenue NW,

separate from the Warrant Squad’s headquarters. He was

transferred back to the Warrant Squad’s offices at 300 Indiana

Avenue NW in June 2009.

On April 8, 2008, Durant’s supervisor, Wanda Patten,

issued Durant a “Letter of Admonition” for “specific

deficiencies regarding [his] conduct and to warn [him] that

future violations w[ould] result in corrective or adverse

action.” Appendix of Amicus Curiae (“A.A.”) 493. According

to the letter, on March 29, 2008 at approximately 9:45 p.m., a

halfway house resident “escaped out of the front door of the

facility.” Id. Patten attempted to reach Durant on his

Department-issued cell phone and left a message “informing

[him] of the escape . . . and advising [him] to immediately

respond.” A.A. 494. Durant responded approximately nine

hours later. Id. The Letter of Admonition advised Durant that

because he was “the only investigator assigned to the Warrant

Squad” at the time, he “should [have had] a heightened state of

awareness concerning [his] response to all Warrant Squad

incident notifications.” Id.

A few months later, on August 12, 2008, Durant filed a

formal charge with the EEOC. A.A. 110. The EEOC assigned

a charge number to the case, No. 570200800315. Id. The

charge alleged that from June 1999 to August 2008, Durant was

adversely treated by his employer in retaliation for his

“protected activity (i.e., [having been] a class member in

[Neal]),” which included being “stripped of [his] weapon on

more than one occasion,” “placed on limited duties,” and

“reassigned to another facility with little or no support.” Id.

On October 6, 2009, the U.S. Department of Justice issued

a written notice to Durant regarding “EEOC Charge Against

District of Columbia Department of Corrections No.

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570200800315.” A.A. 496. The notice stated that, because

“more than 180 days have elapsed since . . . the [EEOC]

assumed jurisdiction over the charge and no suit based thereon

has been filed by [the Department of Justice],” Durant had the

right to pursue a civil action under Title VII against the

Department within 90 days of receipt of the notice. Id. Durant

then commenced the instant action on January 6, 2010.

Durant alleged additional claims of retaliation in a sworn

EEOC charge dated March 6, 2010, including the previously

described workplace grievances as well as the Department’s

suspension of his arrest authority, ongoing isolation, denial of

promotions, and lack of access to a government vehicle. A.A.

347–50.

According to Durant, on May 25, 2010, the Department

informed him that his position on the Warrant Squad was being

eliminated and that he would be terminated on July 2, 2010.

See Pl.’s Statement of Points and Authorities in Supp. of Opp’n

to Def.’s Mot. Summ. J., Ex. J at 4. Durant’s position – as well

as the entire Warrant Squad – was eliminated pursuant to a

District-wide Reduction in Force (“RIF”) due to budgetary

constraints. See A.A. 516–17. In total, the Department

eliminated thirteen positions due to the RIF. A.A. 516. In

August of that same year, Durant appealed the Department’s

RIF with the District of Columbia Office of Employee Appeals.

See id.

Over the next several months, Durant continued to

correspond with the EEOC. In a letter dated November 15,

2010, Durant described allegations of retaliation,

discrimination, and hostile work environment in violation of

Title VII. See A.A. 501–15. The letter alleged that the

Department retaliated against him by failing to notify him of

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job vacancies and giving preferential hiring treatment to other,

less qualified Department employees.

On December 9, 2010, the EEOC provided a written

acknowledgment of Durant’s “correspondence dated

November 15, 2010,” which “raise[d] several incidents in 2010

you believe are retaliatory actions by the [Department] because

you filed the previous EEOC Charge.” A.A. 497. The EEOC

informed Durant that it was “in the process of drafting a new

EEOC Charge to address the most recent incidents of harm to

you.” Id. The letter also referred to an EEOC charge Durant

filed “on or about August 12, 2009,” and noted that the

agency’s investigation of that charge was closed on September

21, 2009. Id.

B. Procedural Background

Durant filed his lawsuit pro se on January 6, 2010. He

subsequently retained counsel who began representing him on

January 17, 2011. Durant, 932 F. Supp. 2d at 62 n.8. In his

original complaint, Durant sued several District of Columbia

officials and various federal defendants, in addition to the

District of Columbia. Id. at 61. For reasons not pertinent to this

appeal, the trial court dismissed the claims against all of the

defendants except the District. A.A. 179. In addition to the

claims discussed below, Durant initially raised age and race

discrimination claims, but he voluntarily withdrew those

claims during the pendency of the litigation. Durant, 932 F.

Supp. 2d at 62.

After receiving several extensions to amend his complaint,

Durant filed a revised amended complaint on May 11, 2012,

alleging, inter alia, that the District retaliated against him for

his involvement in protected activities, including “prior

participation in . . . EEO litigation, unfair labor complaints, and

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prior and current union activity,” and created a hostile work

environment by “failing to provide him with due process or

adequate responses in other proceedings, by terminating him

through a fraudulent Reduction in Force, and by failing to place

him in a new position in violation of Federal and District

Priority Re-Employment Programs and Veteran’s Preference

Rights.” Revised Am. Compl. 23.

Discovery closed on May 11, 2012 and the District filed a

motion for summary judgment on July 13, 2012. With the

assistance of counsel, Durant filed a memorandum in

opposition to the District’s motion for summary judgment on

August 10, 2012. The District Court issued a Memorandum

Opinion granting summary judgment in full. Durant, again

acting pro se, filed a timely notice of appeal with this court.

In the proceedings before the District Court, the District

challenged the court’s subject-matter jurisdiction, alleging that

the Collective Bargaining Agreement between the Department

and its union and the D.C. Government Comprehensive Merit

Personnel Act, D.C. CODE §§ 1-601.01–1-607.08 (2001),

governed resolution of Durant’s claims. See Durant, 932 F.

Supp. 2d at 65–67. The District Court rejected these challenges

to its subject-matter jurisdiction. Id. at 67. In their briefing to

this court and during oral argument, the parties acknowledged

that subject-matter jurisdiction is no longer in dispute. See Oral

Arg. Recording at 1:48–2:08. We agree that the District Court

properly exercised jurisdiction over this case. See 42 U.S.C. §

2000e-5(f)(3) (granting to the district courts jurisdiction over

“actions brought under” Title VII). Because we have

jurisdiction to review the lower court’s decision, we will

proceed to the merits. See 28 U.S.C. § 1291 (2012).

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II. ANALYSIS

A. Standard of Review

We review the District Court’s grant of summary judgment

de novo. Gaujacq v. EDF, Inc., 601 F.3d 565, 575 (D.C. Cir.

2010). This court considers a motion for summary judgment

anew, with no deference to the District Court’s analysis. Ctr.

for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir.

2003). And, when appropriate, “we may affirm on any ground

properly raised.” EEOC v. Aramark Corp., 208 F.3d 266, 268

(D.C. Cir. 2000). Summary judgment may be granted only

when “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). When assessing a motion for summary judgment,

we view the evidence in the light most favorable to the

nonmovant and draw all reasonable inferences in his favor.

Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016).

Summary judgment is warranted where the party bearing the

burden of proof at trial fails to show a triable issue as to an

essential element of that party’s claim. Arrington v. United

States, 473 F.3d 329, 335 (D.C. Cir. 2006).

B. The Claims on Appeal

On appeal, amicus curiae, on behalf of Durant, contends

that the District Court improperly granted summary judgment

on Durant’s claims concerning employment actions taken prior

to October 2007 solely on the ground that Durant had not

responded to, and therefore conceded, the District’s argument

that such claims were time-barred. Amicus curiae also alleges

that the District Court erred in awarding summary judgment on

Durant’s remaining retaliation claims involving employment

actions taken after October 2007, because genuine disputes of

material fact existed as to whether the actions were materially

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adverse and, with respect to Durant’s termination, whether the

Department met its burden of providing a legitimate,

nonretaliatory reason for its decision. Amicus curiae also

contends that, with respect to all of Durant’s retaliation claims,

the District Court improperly placed the burden on Durant to

provide sufficient evidence to avoid summary judgment, rather

than hold the District to its obligations as the movant to show

the absence of a genuine dispute of material fact. In addition,

amicus curiae claims that the District Court erred in granting

summary judgment on Durant’s hostile work environment

claim. Lastly, Durant requests that this court remand the case

to the District Court so that he can supplement the record with

documents his trial counsel allegedly failed to enter into the

record.

C. The Retaliation Claims

Title VII makes it unlawful “for an employer to

discriminate against [an employee] . . . because he has opposed

any practice made an unlawful employment practice by this

subchapter, or because he has made a charge, testified, assisted,

or participated in any manner in an investigation, proceeding,

or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). A

separate provision of the statute extends Title VII protections

to employees of agencies in the District of Columbia. See id. §

2000e-16(a); Bundy v. Jackson, 641 F.2d 934, 942 (D.C. Cir.

1981).

An individual alleging discrimination on the basis of

retaliation must file a charge of discrimination with the EEOC

“within [180] days after the alleged unlawful employment

practice occurred,” or within 300 days if the complainant

“initially instituted proceedings with a State or local agency,”

such as the D.C. Office of Human Rights. 42 U.S.C. § 2000e-

5(e)(1); see Bethel v. Jefferson, 589 F.2d 631, 635 (D.C. Cir.

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1978) (stating that the D.C. Office of Human Rights is “the

agency designated to entertain complaints of discrimination

emanating from employment with the District of Columbia

Government”). Charges must “be in writing under oath or

affirmation and shall contain such information and be in such

form as the [EEOC] requires.” 42 U.S.C. § 2000e-5(b). The

charge serves the purpose of notifying the agency and the

charged party of the complained of conduct, after which the

agency is given time to consider the matter and notify the

complainant of its decision whether to bring a civil action. Park

v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995).

1. Employment Actions Taken Prior to October 2007

We begin with Durant’s contention that the District Court

erred in dismissing his claims that the Department unlawfully

retaliated against him by: (1) placing him on administrative

leave on June 14, 2007 after he permitted an unauthorized

individual to enter the Warrant Squad’s offices and made an

impermissible use of the Department’s copy machine, and (2)

transferring him to a separate building away from the Warrant

Squad’s headquarters upon his return from administrative leave

in August 2007. The District Court dismissed these claims and

other actions taken against Durant prior to October 2007

because he failed to file any formal charges within the required

180- or 300-day statutory time limits. See Durant, 932 F. Supp.

2d at 64 & n.14.

Amicus curiae challenges this holding on several grounds.

First, amicus curiae contends that the District Court violated

Rule 56 by granting summary judgment solely on the ground

that Durant failed to respond to the District’s exhaustion

argument. In support of this argument, amicus curiae cites this

court’s decision in Winston & Strawn, LLP v. McLean, 843

F.3d 503 (D.C. Cir. 2016), in which we held that “a motion for

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summary judgment cannot be deemed ‘conceded’ for want of

opposition,” id. at 508. We made it clear that a District Court

“must determine for itself that there is no genuine dispute as to

any material fact and that the movant is entitled to judgment as

a matter of law, and then ‘should state on the record the reasons

for granting or denying the motion.’” Id. at 509 (quoting Fed.

R. Civ. P. 56(a)). The decision in Winston & Strawn is

inapposite here.

In Winston & Strawn, the District Court failed to consider

the merits of the matter in dispute and deemed the matter

“conceded” on the sole basis that the non-moving party failed

to meet the court’s deadline for responding to the motion for

summary judgment. See id. at 505–06 (stating that the District

Court’s order granting summary judgment “did not analyze any

of the substance of [the] motion for summary judgment, nor did

it purport to apply the standards of Rule 56,” but rather

“focused solely on [the nonmovant’s] failure to file a timely

response as the basis for summary judgment against him”). In

contrast, the trial judge in this case adhered to Rule 56 by

reviewing the entire record, assessing the merits of the

District’s argument, and stating its reasons for finding that

there was no evidence to defeat the District’s motion for

summary judgment on timeliness grounds. See Durant, 932 F.

Supp. 2d at 64 & n.14.

Second, in its reply brief, amicus curiae claims that even if

the District Court properly considered the merits of the

District’s timeliness argument, the court failed to recognize

that the District had the burden of proving the affirmative

defense of untimely exhaustion of administrative remedies. See

Amicus Reply Br. 6–8. This argument comes too late. During

the summary judgment proceedings before the District Court,

when Durant was represented by counsel, he never raised an

argument that the District’s position was infirm as a matter of

13

law because the District carried the burden of proving that

Durant had failed to file any timely charges. See Kingman Park

Civic Ass’n v. Williams, 348 F.3d 1033, 1039 (D.C. Cir. 2003)

(“It is the general rule . . . that a federal appellate court does not

consider an issue not passed upon below.” (quoting Singleton

v. Wulff, 428 U.S. 106, 120 (1976))). Moreover, we do not

ordinarily consider an argument on appeal that is raised for the

first time in a reply brief. Forman v. Korean Air Lines Co., 84

F.3d 446, 448 (D.C. Cir. 1996); see McBride v. Merrell Dow

and Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986)

(“Considering an argument advanced for the first time in a

reply brief . . . is not only unfair . . . , but also entails the risk of

an improvident or ill-advised opinion on the legal issues

tendered.” (citation omitted)).

Finally, amicus curiae argues that the District Court

committed an error of law by imposing on Durant the burden

of presenting evidence in support of his retaliation claims

rather than holding the District to its obligation, as the movant,

to show its entitlement to summary judgment. According to

amicus curiae, a party moving for summary judgment bears the

burden to “show initially the absence of a genuine issue

concerning any material fact,” Amicus Br. 26 (quoting Adickes

v. S.H. Kress & Co., 398 U.S. 144, 159 (1970)), and “it makes

no difference if the non-moving party fails to offer opposing

evidence, or even to respond at all,” id. at 25–26. This argument

misstates the law and is contrary to the principles governing

summary judgment. It is true that “a party seeking summary

judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying

those portions of [the record] which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). However, the Supreme

Court in Celotex clearly said:

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[W]e do not think the Adickes language . . .

should be construed to mean that the burden is on

the party moving for summary judgment to

produce evidence showing the absence of a

genuine issue of material fact, even with respect

to an issue on which the nonmoving party bears

the burden of proof. Instead, as we have

explained, the burden on the moving party may

be discharged by ‘showing’—that is, pointing out

to the district court—that there is an absence of

evidence to support the nonmoving party’s case.

Id. at 325; see also Grimes, 794 F.3d at 93 (explaining that “the

burden on a defendant moving for summary judgment may be

discharged without factual disproof of the plaintiff’s case; the

defendant need only identify the ways in which the plaintiff has

failed to come forward with sufficient evidence to support a

reasonable jury to find in [his] favor on one or more essential

elements of [his] claim”). Summary judgment is warranted if

the plaintiff has failed to “present affirmative evidence . . . to

defeat a properly supported motion for summary judgment.”

Liberty Lobby, 477 U.S. at 257.

The record is clear that Durant did not present any evidence

that he filed a formal charge with the EEOC or D.C. Office of

Human Rights within the required 180- or 300-day time

periods. See 42 U.S.C. § 2000e-5(e)(1). The earliest charge

filed by Durant was date stamped on August 12, 2008, and was

deemed filed with the D.C. Office of Human Rights and the

EEOC as of that date, which was more than 300 days after the

alleged retaliatory conduct that occurred before October 2007.

See A.A. 110. Durant does not seriously contend otherwise on

appeal, as the late 2007 unsworn correspondence he had with

the Department’s EEO coordinator and mentioned in the briefs

was insufficient to constitute a charge. See Fed. Exp. Corp. v.

15

Holowecki, 552 U.S. 389, 402 (2008). Accordingly, we hold

that because Durant provided no evidence that he timely filed

a formal charge with the EEOC or the D.C. Office of Human

Rights regarding his retaliation claims based on pre-October

2007 events, summary judgment in favor of the District on

these claims was proper.

2. Employment Actions Taken After October 2007

Durant’s next set of claims pertain to allegedly retaliatory

actions taken by the Department against him after October

2007. These actions include: (1) receiving a Letter of

Admonition on April 8, 2008 from his supervisor, Patten,

alleging that he failed to respond in a timely manner to a phone

call regarding an emergency work situation; (2) denial of his

request to use a government vehicle in or around May 2009;

(3) ongoing isolation after being transferred back to the

Warrant Squad’s headquarters in June 2009; (4) Patten’s order

in February 2010 to cease making arrests until he could

demonstrate his authority to do so; (5) denials of requests for

promotion and lack of access to job vacancy announcements or

preferential hiring in 2010; (6) the Department’s decision to

escort him from the building and place him on administrative

leave while his termination was pending in May 2010; and (7)

his termination due to the RIF, which was effective July 2,

2010.

Retaliation claims under Title VII are governed by the

familiar burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie

case of retaliation, a plaintiff must show that “(1) [he] engaged

in activity protected by Title VII; (2) the employer took an

adverse employment action against [him]; and (3) the adverse

action was causally related to the exercise of [his] rights.”

Holcomb v. Powell, 433 F.3d 889, 901–02 (D.C. Cir. 2006). If

16

a prima facie case is shown, the burden shifts to the employer

to provide a legitimate, nonretaliatory reason for its action. Id.

at 901. If the employer provides a legitimate, nonretaliatory

reason for its conduct, “the burden-shifting framework

disappears” and the question becomes “‘whether a reasonable

jury could infer . . . retaliation from all the evidence,’ which

includes not only the prima facie case but also the evidence the

plaintiff offers to ‘attack the employer’s proffered explanation

for its action’ and other evidence of retaliation.” Jones v.

Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (quoting Carter

v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir.

2004)). In rebutting the proffered explanation, the plaintiff may

show “that the legitimate reasons offered by the defendant were

not its true reasons, but were a pretext for [retaliation].”

Burdine, 450 U.S. at 253.

Amicus curiae first contends that the District Court’s order

granting summary judgment to the District should be reversed

because the court misapplied the evidentiary burdens set forth

in McDonnell Douglas. In particular, amicus curiae argues that

the court wrongly assessed whether Durant provided sufficient

evidence that he suffered adverse actions rather than whether

the District submitted evidence to prove that its actions were

not materially adverse. Amicus Br. 33. This misstates the

applicable legal framework for assessing Durant’s claims.

McDonnell Douglas places the initial burden on the plaintiff to

establish a prima facie case of retaliation, the second element

of which includes showing “that he suffered a materially

adverse action by his employer.” Jones, 557 F.3d at 677. At the

prima facie stage, the defendant is under no obligation to

present evidence proving that the challenged employment

actions were not materially adverse. Only if the plaintiff makes

an initial prima facie showing does the burden then shift to the

defendant to articulate a legitimate, nonretaliatory reason for

its action. See id. The District Court properly concluded that

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Durant failed to make out a prima facie case because he had

not submitted sufficient evidence – beyond his own conclusory

assertions in his pleadings and summary judgment briefing – to

show that many of the challenged actions actually occurred, let

alone that they were materially adverse. See Harding v. Gray,

9 F.3d 150, 154 (D.C. Cir. 1993) (“[A] mere unsubstantiated

allegation . . . creates no genuine issue of fact and will not

withstand summary judgment.” (internal quotation marks

omitted)). For that reason, we will consider only the claims for

which Durant pointed to evidentiary support: the Letter of

Admonition, the lack of access to a government vehicle,

suspension of his arrest authority, and his termination.

The parties do not dispute that Durant satisfied the first

element of a prima facie case of retaliation by participating in

the Neal sexual harassment lawsuit, filing EEOC charges, and

commencing the instant action. See Amicus Br. 18–19;

Appellee’s Br. 17, 33, 54. The gravamen of the parties’ dispute

is whether Durant satisfied the second element – that is,

whether the actions taken by the Department were materially

adverse to Durant. See Amicus Br. 34–38; Appellee’s Br. 27–

49. The Supreme Court has clarified that, in the context of

retaliation claims, materially adverse actions are “not limited

to discriminatory actions that affect the terms and conditions of

employment,” Burlington N., 548 U.S. at 64, but also include

actions that might have “dissuade[d] a reasonable worker from

making or supporting a charge of discrimination,” id. at 57.

Applying the Burlington Northern standard, we affirm the

District Court’s holding that only one of the challenged actions

for which Durant provided supporting evidence – his

termination in 2010 – rose to the level of a materially adverse

action. We will consider the retaliation claims in turn, starting

with the admonition letter.

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We reject Durant’s contention that a reasonable jury could

find that his supervisor’s issuance of a Letter of Admonition on

April 8, 2008 constituted a materially adverse action. The letter

merely informed Durant of “specific deficiencies regarding

[his] conduct” in neglecting to respond in a timely manner to a

phone call regarding an escapee and “warn[ed] [him] that

future violations w[ould] result in corrective or adverse

action.” A.A. 493. A reprimand letter setting forth allegations

of deficient work performance is not a materially adverse

action absent a showing that the letter would have dissuaded a

reasonable employee from engaging in protected activity. See,

e.g., Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir.

2008) (finding that a letter of reprimand containing “job-related

constructive criticism” but no “abusive language” was not

materially adverse); Whittaker v. N. Illinois Univ., 424 F.3d

640, 648 (7th Cir. 2005) (holding that an employee’s negative

evaluation and written warnings from her employer were

“putatively disciplinary matters” that did not rise to the level of

materially adverse actions).

Next, Durant’s assertion that a reasonable trier of fact could

find that the Department’s refusal to assign him a government

vehicle constitutes a materially adverse action also lacks merit.

Durant’s only evidence in support of this claim is a

memorandum he wrote to Patten requesting that he be assigned

a vehicle to perform his Warrant Squad obligations. A.A. 538–

39. As the District Court correctly determined, Durant did not

provide any evidence, beyond his own conclusory allegations,

that his inability to access a vehicle “produce[d] an injury or

harm,” Burlington N., 548 U.S. at 67, such as instances in

which he could not complete a particular assignment, Durant,

932 F. Supp. 2d at 69.

We also reject Durant’s claim that the Department’s

decision to suspend his arrest authority was a materially

19

adverse action. Durant contends that, on February 5, 2010,

Patten ordered him to cease making arrests until he provided

proof of his authority to do so. See A.A. 498–500. Assuming

Durant’s arrest powers were actually suspended, we find no

merit in his claim that his supervisor’s request for

documentation regarding his authority to perform arrests was

materially adverse. In Baloch, we held that an employer’s

requirement that an employee provide doctors’ certificates

when requesting sick leave was not materially adverse absent

“evidence of any instances when the procedures led him to

forgo leave.” 550 F.3d at 1198. Durant has likewise failed to

offer evidence that he was unable to perform his workplace

obligations due to Patten’s demand for proof of his arrest

authority.

Finally, we consider Durant’s claim that he was terminated

in 2010 in retaliation for engaging in protected activities. We

agree with the District Court that Durant’s termination is the

only action that rises to the level of a materially adverse action.

See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)

(stating that adverse employment actions under Title VII

include termination of employment). After reviewing the

record, the District Court determined that the Department

proffered a legitimate, nonretaliatory reason for its termination

of Durant – namely, a District-wide RIF due to budgetary

constraints. See Durant, 932 F. Supp. 2d at 72. This rationale,

the District Court noted, was set forth in “the [Department’s]

response to [Durant’s] appeal of the RIF before the [District’s]

Office of Employee Appeals,” which Durant submitted as

evidence in his case. Id. According to this document – which is

a sworn statement of a Department representative – “the

Department reviewed its programs and determined which

functions would have the least negative impact on the

Department’s ability to perform its mandated functions” and

determined that thirteen positions would be eliminated. A.A.

20

516. Amicus curiae contends that it was improper for the

District Court to have identified this reason on its own in the

evidentiary record, because it was the District’s burden to

assert the Department’s reasons for termination through

admissible evidence. Amicus Br. 40. We disagree.

A sworn statement by a Department official explaining the

Department’s reasons for eliminating Durant’s position

satisfied the Department’s burden of “explaining clearly the

[nonretaliatory] reasons for its actions.” Burdine, 450 U.S. at

260; see Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 548

F.3d 137, 144 (D.C. Cir. 2008) (holding that sworn depositions

and documentary evidence sufficed to meet the employer’s

burden to produce a legitimate, nondiscriminatory reason for

its conduct). Moreover, the District Court’s reliance on this

documentary evidence was not improper, as it is well-

established that when considering a motion for summary

judgment a District Court may “consider other materials in the

record,” Fed. R. Civ. P. 56(c)(3), beyond those “called to its

attention by the parties,” Fed. R. Civ. P. 56 Advisory

Committee’s Note to 2010 Amendment; see Brady v. Office of

Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008) (“When

determining whether summary judgment or judgment as a

matter of law is warranted for the employer, the court considers

all relevant evidence presented by the plaintiff and

defendant.”).

Because the Department offered a legitimate,

nonretaliatory explanation for Durant’s termination, we

“proceed[] to the ultimate issue of retaliation vel non instead of

evaluating whether [Durant] made out a prima facie case.”

Jones, 557 F.3d at 678. On this point, the only question we

must resolve is whether Durant has proffered evidence that “the

legitimate reasons offered by the defendant were not its true

reasons, but were a pretext” for retaliation. Burdine, 450 U.S.

21

at 253. After careful review of the record, we conclude that the

District Court properly determined that summary judgment

was warranted because there is no genuine dispute as to

whether the Department’s reason for Durant’s termination was

pretextual. At numerous points in this litigation – including in

his own deposition and response to the District’s Statement of

Undisputed Facts – Durant conceded that he was separated as

a result of the RIF. See A.A. 303–04. Compare A.A. 258

(asserting that Durant’s separation from employment was due

to a RIF), with A.A. 427 (admitting the factual assertion that

Durant’s termination was due to a RIF). Given Durant’s

concession, a reasonable jury could not find that the stated

reason for his termination was not the “actual reason,” Brady,

520 F.3d at 495, or that a retaliatory reason “more likely

motivated” the Department, Jones, 557 F.3d at 678 (quoting

Burdine, 450 U.S. at 256).

Moreover, the only evidence Durant provided to support an

inference of retaliation was the temporal proximity between his

having filed the present action (on January 6, 2010) and his

termination (for which he received notification on May 25,

2010). See Pl.’s Statement of Points and Authorities in Supp.

of Opp’n to Def.’s Mot. Summ. J. at 33–34. Where, as here, an

employer has provided a legitimate, nonretaliatory reason for

its employment action, “positive evidence beyond mere

proximity is required to defeat the presumption that the

proffered explanation[] [is] genuine.” Talavera v. Shah, 638

F.3d 303, 313 (D.C. Cir. 2011) (quoting Woodruff v. Peters,

482 F.3d 521, 530 (D.C. Cir. 2007)). Durant provided no such

positive evidence. Accordingly, summary judgment on

Durant’s claim of retaliatory termination was proper.

22

D. The Hostile Work Environment Claim

We find no merit in Durant’s hostile work environment

claim. Title VII prohibits employers from “requiring people to

work in a discriminatorily hostile or abusive environment.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A plaintiff

pleading a hostile work environment claim must show that he

was exposed to “‘discriminatory intimidation, ridicule, and

insult’ that is ‘sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive

working environment.’” Id. (citation omitted) (quoting Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). To

assess a claim of hostile work environment, the court considers

“the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Id. at 23.

In the proceedings before the District Court, Durant

provided no evidence that he was subjected to “severe or

pervasive” conduct by the Department. He failed to

substantiate his contentions with evidence that, for example, he

was “routinely subjected to isolation away from his

colleagues,” “continually subjected to threats to his

employment [or] admonishments,” and “denied equal pay and

equal access to resources.” Pl.’s Statement of Points and

Authorities in Supp. of Opp’n to Def.’s Mot. Summ. J. at 38.

And for several other challenged actions for which Durant

offered evidentiary support – including the 2007 administrative

leave and 2008 reprimand letter – the evidence suggests that

such actions were taken not to “intimidat[e], ridicule, [or]

insult” him, Harris, 510 U.S. at 21, but rather to address his

deficient work performance. Accordingly, summary judgment

on this claim was proper.

23

E. Request to Remand the Case to Supplement the Record

Finally, Durant requests that we remand the case to the

District Court to permit him to submit new documents into the

record. He alleges that his attorney – who represented him prior

to and throughout the summary judgment proceedings, see

Durant, 932 F. Supp. 2d at 62 n.8 – omitted to enter into the

record “critical sworn depositions and affidavits, entire

documents, [and] exhibits . . . in his possession,” including

depositions of “two individuals” who had “direct knowledge”

of this case and previously represented Durant before the

Department in “similar instances of allegations of retaliations”

and were “co-complainants in other retaliatory complaints.”

Appellant’s Br. 3–4. He asks that the case be remanded so that

discovery can be “re-opened to allow re-introduction of th[e]se

documents.” Id. at 4. We deny this request.

The District Court provided Durant ample time to obtain

discovery and present evidence in support of his claims. The

court permitted Durant to amend his complaint twice and

extended the discovery deadline four times. See Durant, 932 F.

Supp. 2d at 62–63. The trial court also allowed Durant to file

an expert report pursuant to Rule 26(a)(2)(B) “nearly five

months after the close of discovery and over a year after the

deadline for plaintiff to file expert reports.” Id. at 63. There is

no indication in the record that Durant filed a motion with the

District Court requesting time for additional discovery under

Federal Rule of Civil Procedure 56(d).

Similarly, on appeal, Durant did not move to supplement

the appellate record pursuant to Federal Rule of Appellate

Procedure 10(e)(2)(C) or describe in his briefings the contents

of the documents he alleges were in his attorney’s possession

but not entered into the record. Nor has he explained how the

documents would have shown a genuine issue of material fact

24

sufficient to overcome summary judgment on any of his claims.

Because Durant had a full opportunity to depose witnesses and

obtain documents by discovery and has failed to explain to this

court why additional discovery would be helpful, we deny his

request to remand the case for supplementation of the record.

See Grenier v. Med. Eng’g Corp., 243 F.3d 200, 208 (5th Cir.

2001) (holding that because “[plaintiff] had ample opportunity

to present evidence supporting her claims, but she failed to do

so,” there was “no reason to remand the case to reopen

discovery”).

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the

District Court with respect to Durant’s retaliation and hostile

work environment claims and deny Durant’s request to remand

the case to the District Court to reopen discovery.

So ordered.