                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 DONALD KING,                                   )
                                                )
                      Plaintiff,                )
                                                )
               v.                               )
                                                 )   Civil Case No. 08-1562 (RJL)
 CHARLES F. BOLDEN, JR.,                         )
 ADMINISTRATOR, NATIONAL                         )
 AERONAUTICS AND SPACE                           )
 ADMINISTRATION,                                 )
                                                 )
                      Defendant.

                              MEMO~DUM
                                           t-2--  OPINION
                                   (June    , 2010)[# 11]

       Donald King ("King" or "plaintiff') brings this action against Charles F. Bolden,

Jr. (the "defendant") alleging violation of Title VII of the Civil Rights Act of 1964 ("Title

VII"), 42 U.S.C. § 2000e, by his employer, the National Aeronautics and Space

Administration ("NASA"), for sex discrimination, retaliation, and a hostile work

environment. Before the Court is the defendant's Motion for Summary Judgment. Upon

consideration of the parties' pleadings, relevant law, and the entire record herein, the

defendant's motion is GRANTED.

       At the outset, the Court notes that this case is related to Johnson v. Bolden,      F.

Supp. 2d_, No. 08-1316,2010 WL 1233377 (D.D.C. Mar. 31,2010). In Johnson, the

plaintiff, an African-American male employed by NASA as a GS-13 Equal Opportunity

("EO") Specialist, complained of sex discrimination, retaliation, and a hostile work
environment in violation of Title VII. Id. at * 1. This Court granted summary judgment in

favor of NASA on all counts. Id. at *6.

         Similarly, plaintiff here is an African-American male employed by NASA as an

Equal Opportunity Manager. The complaint filed in his case is identical to the one filed

in Johnson with a few exceptions: it claims that (1) in 2002, King was promoted from his

position as a OS-I3 EO Specialist to a OS-I4 Equal Employment Manager, CompI.                   ~   8;

(2) in 2003, he was promoted again to a OS-I5 Equal Employment Manager, id.              ~   9, for

which his primary duties were to be a team leader in the processing, adjudication, and

disposition of individual and class action complaints of employment discrimination filed

against NASA, id.    ~   10; (3) many of his job-related responsibilities and duties were

assigned to a white female employee with less experience who was, at the time, a

temporary GS-I4 employee, id.       ~~   22-23; (4) his 2004 performance appraisal was

completed by a OS-14 employee, while King was a OS-I5 employee, id.            ~   36; (5) in

2006, he was placed in the position of Acting Director for Complaints Processing, id.

~   57; (6) in February 2008, he applied but was not selected for the position of Director of

the EEO Complaints Division, id.      ~~   58-59; and (7) he sought counseling when he was

denied the promotion but no counselor was appointed for him, id.       ~   61. Unfortunately for

King, none of these factual allegations supports a different finding in this case than that in

Johnson.

         The fact that King was promoted to the OS-IS level certainly does not support any



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finding of Title VII violations. Nor do his complaints about the delegation of his

assignments and responsibilities, or who completed his performance appraisals, identifY

adverse actions upon which his sex discrimination claim can rely. See Forkkio v. Powell,

306 F.3d 1127, 1130-31 (D.C. Cir. 2002). Thus, like Johnson, several of King's

complaints simply fail to constitute adverse actions. See Johnson, No. 08-1316, 2010 WL

1233377, *3 (finding lack of opportunity to provide training, exclusion from meetings,

and exclusion from high profile assignments not to be adverse actions). As to his

complaints about not being selected Director of the EEO Complaints Division, the

amount of King's bonuses, and the performance evaluations he takes issue with, NASA

has asserted a legitimate, non-discriminatory explanation: a concern among management

officials that King's case processing was lagging, which in tum affected his promotional

opportunities, the amount of bonus he received, and the nature of his performance

appraisals. See Def.'s Mot. for Summ. 1. ("'Def.'s Mot.") Ex. E, Hayden-Watkins Dep.

III :22-113 :5, 126: 1-128:2, July 12, 2006; see also Def.'s Mot. Ex. G (showing King had

complaints pending for 1,036, 973, and 873 days). King, who relies on many of the same

arguments Johnson used, has offered no evidence that NASA's reasons are a pretext for

discrimination. As a result, King's sex discrimination claim must fail. See Brady v.

Office o/Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see also Johnson, No.

08-1316,2010 WL 1233377, at *4 ("Johnson has offered no evidence in response to

indicate that NASA's reasons are a pretext for discrimination.").



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       King's retaliation claim fairs no better. In his complaint, he claims that he was not

chosen as Director of the Complaints Management Division in 2008 as retaliation for

engaging in protected EEO activity in 2004 and 2005. See CompI. ~~ 39-40,43-45.

Remarkably, King also asserts in his opposition to defendant's motion, for the very first

time in this litigation, that he has direct evidence of retaliation: he claims that Brenda

Manuel, the administrator in charge of the vacancy announcement, told him "that if he

was truly interested in being considered for the permanent position of Director,

Complaints Management Division, he should think about withdrawing his EEO complaint

against NASA." Pl.'s Opp'n 18 (citing Pl.'s Opp'n Ex. 1, King Decl.,      ~~   77-78). The

sole support for this remarkable allegation, however, is a declaration filed by the plaintiff

that directly contradicts his previous sworn testimony. See Def.'s Reply Ex. 3, King Dep.

124: 15-125: 10 (Q: ·'Okay. So do you think that Brenda Manuel retaliated against you?"

A: "1 don't know. I don't know."). It is well established that the sham affidavit rule

"precludes a party from creating an issue of material fact by contradicting prior sworn

testimony unless the shifting party can offer persuasive reasons for believing the

supposed correction is more accurate than the prior testimony." Galvin v. Eli Lilly & Co.,

488 F.3d 1026, 1030 (D.C. Cir. 2007) (internal quotation marks omitted). Unfortunately

for King, he has not done so. Accordingly, the Court will not consider the substance of

this declaration in deciding the current motion. Absent the assertions in his declaration,

King has thus provided no evidence of a causal connection between his EEO activity and



                                              4
his non-selection for the Director position two and a half years later. As such, his

retaliation claim must also fail. See Baloch v. Kempthorne, 550 F.3d 1191,1198 (D.C.

Cir. 2008); see also Johnson, No. 08-1316, 2010 WL 1233377, at *5 (finding no causal

connection for events two and half months apart).

       Finally, King's claim of a hostile work environment is also insufficient. Nothing

in King's allegations demonstrates that he was subjected to a worse work environment

than Johnson. As in Johnson's case, King's complaints simply fail to rise to the level of

severity necessary to constitute a legitimate hostile work environment claim. See

Johnson, No. 08-1316, 2010 WL 1233377, at *5; see also Faragher v. City o/Boca

Raton, 524 U.S. 775, 788 (1998) ("These standards for judging hostility are sufficiently

demanding to ensure that Title VII does not become a general civility code.") (internal

quotation marks omitted). Thus for these reasons, the Court GRANTS the defendant's

Motion for Summary Judgment and DISMISSES the action in its entirety. An order

consistent with the Court's ruling accompanies this Memorandum Opinion.




                                                 United States District Judge




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