                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

___________________________________
JAMES K. BRYANT                     )
                                    )
          Plaintiff,                )
                                    )
     v.                             )       Civil Action No. 09-1063
                                    )
PEPCO                               )
                                    )
          Defendant.                )
                                    )
___________________________________)


                         MEMORANDUM OPINION

     Plaintiff James K. Bryant, an African American man, brings

suit against his former employer Defendant, Potomac Electric Power

Company (“Pepco”), under Title VII of the Civil Rights Act, 42

U.S.C. § 1981. This matter is presently before the Court on

Defendant’s Motion for Summary Judgment pursuant(“Def. Mot.”)[Dkt.

No. 46]. Upon consideration of the Motion, Opposition, and Reply,

and the entire record herein, Defendant’s Motion for Summary

Judgment is granted in its entirety.

I. BACKGROUND1

     From   April 1974   until   his   retirement   on   March   1, 2008,

Plaintiff was employed by Defendant, most recently as a “Lead Cable

Splicer Mechanic.” Statement of Material Facts as to Which There is



1
  The facts set forth herein are drawn from the parties’ statements
of material facts submitted pursuant to Local Rule 7(h), the
briefs, and the evidence in the record.
No Genuine Factual Dispute ¶ 1 (“Def. Stmt. of Facts”)[Dkt. No. 46-

2].   For   a    time   prior   to   2005,    Plaintiff    assumed   temporary

supervisory duties in Pepco’s Underground High Voltage (“UGHV”)

Department, which lacked a supervisor. Def. Mot. 2. As a result of

performing these duties, Plaintiff received a daily upgrade to Pay

Grade 20. Def. Stmt. of Facts ¶ 12. Plaintiff understood that the

pay upgrade would end once a permanent supervisor was hired. Id. ¶

4.2

      In 2005, Defendant decided to hire a permanent supervisor for

the UGHV Department. Id. ¶ 13. Plaintiff’s supervisor, Carol

Murphy, Manager - Shops & Test, encouraged Plaintiff to apply for

the position, but he declined to do so. Id. ¶ 14. In November 2005,

Defendant       hired   a   permanent   Supervisor,   an    African-American

employee named Sean Parran, for the UGHV Department. Id. ¶ 13.

However, Plaintiff, who was still working in the UGHV Department,

continued to request a daily Pay Grade 20 increase. Id. ¶ 15. On

December 18, 2006, Murphy informed Plaintiff that he must stop

putting in for the Pay Grade 20 increase. Id. ¶ 19.

      On April 18, 2006 and August 9, 2006, Plaintiff took part in

informal meetings between African-American employees working as

Underground Lines and Underground High Voltage Leads (“African-


2
 Plaintiff did not respond to or otherwise include this statement
in his statement of genuine issues of material fact in dispute. See
Plaintiff’s Statement of Genuine Issues of Material Facts in
Dispute [Dkt. No. 48-2]. The Court assumes that, by not disputing
this fact, Plaintiff is conceding its accuracy.

                                        -2-
American Leads”) and white Pepco management officials Reginald

McCauley and Ronald Marth. James Bryant Affidavit ¶ 5 (“Bryant

Affidavit”), Ex. 1 to Pl. Opp’n [Dkt. No. 47-1]. Plaintiff claims,

and Defendant denies, that the meetings were held to discuss

discriminatory treatment experienced by the African-American Leads.

Pl. Opp’n 4; Def. Reply 2-3.

     Plaintiff filed his initial Complaint on June 4, 2009, which

he amended on July 15, 2009 and September 22, 2009. In his Second

Amended   Complaint,   Plaintiff    raised     five    counts   of   alleged

violation of Section 1981 [Dkt. No. 14] . On August 9, 2010, this

Court granted Defendant’s Motion to Dismiss as to Counts 3-5 and

denied it as to Counts 1-2 [Dkt. No. 25].

     On April 12, 2011, Defendant filed a Motion for Summary

Judgment.   On May   12, 2011,     Plaintiff   filed    an   Opposition to

Defendant’s Motion for Summary Judgment (“Pl. Opp’n”) [Dkt. No.

47]. On June 1, 2011, Defendant filed a Reply in Support of Its

Motion for Summary Judgment (“Def. Reply”) [Dkt. No. 49].

II. Standard of Review

     Summary judgment may be granted “only if” the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. See FED .

R. CIV. P. 56(c), as amended; Arrington v. United States, 473 F.3d

329, 333 (D.C. Cir. 2006). In other words, the moving party must


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satisfy two requirements: first, that there is no “genuine” factual

dispute and, second, if there is, that it is “material” to the

case. “A dispute over a material fact is ‘genuine’ if ‘the evidence

is such that a reasonable jury could return a verdict for the

non-moving party.’” Arrington, 473 F.3d at 333 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986)). A

fact is “material” if it might affect the outcome of the case under

the substantive governing law. Liberty Lobby, 477 U.S. at 248.

     In Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769 (2007),

the Supreme Court said,

          [a]s we have emphasized, “[w]hen the moving
          party has carried its burden under Rule 56(c),
          its opponent must do more than simply show
          that there is some metaphysical doubt as to
          the material facts. . . . Where the record
          taken as a whole could not lead a rational
          trier of fact to find for the nonmoving party,
          there is no ‘genuine issue for trial.’”
          Matsushita Elec. Industrial Co. v. Zenith
          Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct.
          1348, 89 L.Ed.2d 538 . . . (1986) (footnote
          omitted). “‘[T]he mere existence of some
          alleged factual dispute between the parties
          will   not  defeat   an   otherwise   properly
          supported motion for summary judgment; the
          requirement is that there be no genuine issue
          of material fact.’”

(quoting Liberty Lobby, 477 U.S. at 247-48) (emphasis in original).

     However, the Supreme Court has also consistently emphasized

that “at the summary judgment stage, the judge’s function is

not . . . to weigh the evidence and determine the truth of the

matter, but to determine whether there is a genuine issue for


                                -4-
trial.” Liberty Lobby, 477 U.S. at 249. In both Liberty Lobby and

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120

S. Ct. 2097 (2000), the Supreme Court cautioned 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” deciding a motion for summary judgment. Liberty Lobby,

477 U.S. at 255.

     In assessing a motion for summary judgment and reviewing the

evidence the parties claim they will present, “[t]he non-moving

party’s evidence ‘is to be believed, and all justifiable inferences

are to be drawn in [that party’s] favor.’” Hunt v. Cromartie, 526

U.S. 541, 552, 119 S. Ct. 1545 (1999) (quoting Liberty Lobby, 477

U.S. at 255). The non-movant must, however, “do more than present

conclusory allegations . . . [rather] concrete particulars must be

presented . . . .” Kalekiristos v. CTS Hotel Mgmt. Corp., 958 F.

Supp. 641, 645 (D.D.C. 1997) (internal quotations and citation

omitted). “To survive a motion for summary judgment, the party

bearing the burden of proof at trial . . . must provide evidence

showing that there is a triable issue as to an element essential to

that party’s claim.” Arrington, 473 F.3d at 335. See Celotex Corp.

v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548 (1986).“[I]f the

evidence presented on a dispositive issue is subject to conflicting

interpretations, or reasonable persons might differ as to its

significance, summary judgment is improper.” United States v.


                                -5-
Philip Morris USA, 316 F. Supp. 2d 13, 16 (D.D.C. 2004) (quoting

Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C. Cir. 1986)).

III. Analysis

      Defendant has moved for summary judgment on the remaining

Counts     in    Plaintiff’s      Second      Amended     Complaint:   Count    1,

discrimination based upon race, and Count 2, retaliation based upon

race. Plaintiff does not oppose Defendant’s motion for summary

judgment    on    Count   1.   Pl.   Opp’n     1   n.1.   Summary   judgment   is,

therefore, granted on this Count. Lytes v. DC Water and Sewer

Auth., 572 F.3d 936, 943 (D.C. Cir. 2009). The Court will now turn

to Defendant’s motion for summary judgment on Count 2.

      A. Count 2 - Retaliation Based Upon Race

      Plaintiff claims he was retaliated against on December 18,

2006 when Carol Murphy notified him he could no longer request a

Pay   Grade      20   increase,   removed      his   supervisory    duties,    and

subsequently reassigned his other duties and responsibilities to a

white Pepco employee. Pl. Opp’n 1-2. Plaintiff argues that Murphy

took these actions in response to his participation in the April

and August 2006 meetings between African-American Leads and Pepco

management. Id. Plaintiff claims that Murphy learned of these

meetings because her manager, Reginald McCauley, was a participant

in them. Id. at 5.

      In response, Defendant argues that Plaintiff has provided no

details about the April and August 2006 meetings, and offered no


                                        -6-
evidence that Murphy was even aware that Plaintiff participated in

these meetings and/or retaliated against him for these activities.

Def. Mot. 23.

      To establish a prima facie case of retaliation under Section

1981, plaintiff must show that “(1) she engaged in a statutorily

protected activity; (2) she suffered a materially adverse action by

her employer; and (3) a causal connection existed between the two.”

Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007). “The causal

connection component of the prima facie case may be established by

showing that the employer had knowledge of the employee’s protected

activity, and that the adverse personnel action took place shortly

after that activity.” Mitchell v. Baldrige, 759. F.2d 80, 86 (D.C.

Cir. 1985). Action which occurs more than three or four months

after the protected activity is not likely to qualify for such a

causal inference. See Clark County School Dist. v. Breeden, 532

U.S. 268, 273-74, 121 S. Ct. 1508 (2001)(per curiam)(citing with

approval circuit cases finding three and fourth months to be too

temporally remote to establish causation).      In this case, at least

four months elapsed between the alleged protected activity and the

adverse personnel actions.

      Plaintiff has failed to provide any evidence whatsoever that

Pepco retaliated against him because he engaged in protected

activity. Even assuming that Plaintiff could prove that the April

and   August    2006   meetings   constituted   protected   activities,


                                   -7-
Plaintiff has provided no evidence showing that McCauley informed

Murphy about these meetings,3 that Murphy was otherwise aware of

Plaintiff’s     involvement   in    these   discussions,   or   that   Murphy

retaliated against Plaintiff because of his participation in these

activities.4

     By contrast, Defendant has provided unchallenged evidence that

Murphy was not, in fact, aware of the April and August 2006

meetings   or    Plaintiff’s       involvement   in   those     discussions.

Declaration of Carol Murphy ¶ 12, Ex. B to Def. Mot. [Dkt. No. 46-

5].5 Therefore, Plaintiff has failed to rebut Defendant’s affidavit

from Carol Murphy, stating under oath that she had no knowledge

about what was discussed at the meetings or that the meetings even

took place. Thus, “the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party,” i.e.

Plaintiff. Matsushita Elec. Industrial Co., 475 U.S. at 587. In

short, no “reasonable jury could conclude from all of the evidence

that the adverse employment decision was made for a discriminatory

3
  In 2005, Murphy asked Plaintiff to apply for the permanent
supervisor position and he chose not to.
4
 In support of his Opposition to Summary Judgment, Plaintiff has
provided two affidavits, one from himself and the other from a co-
worker, Randy Daniels. Both affidavits contain very little
information regarding the April and August 2006 meetings and
contain no evidence as to whether Murphy was aware of Plaintiff’s
participation in these meetings. See Bryant Affidavit; Randy
Daniels, Ex. 2 to Def. Mot. [Dkt. No. 47-2].
5
 Plaintiff asks us to assume that Murphy must have learned of the
meetings because her supervisor McCauley attended them.        No
evidence in the record supports such pure speculation.

                                      -8-
[or retaliatory] reason.” Holcomb v. Powell, 433 F.3d 889, 896-97

(D.C. Cir. 1996).

     For the foregoing reasons, the Court grants Defendant’s Motion

for Summary Judgment on Count 2.

IV. Conclusion

     For all the reasons stated herein, Defendant’s Motion for

Summary   Judgment   is   granted   in    its   entirety.   An   Order   will

accompany this Memorandum Opinion.




                                           /s/
November 1, 2011                          Gladys Kessler
                                          United States District Judge




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