                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


                            )
PAMELA MONTGOMERY           )
BECKHAM,                    )
                            )
          Plaintiff,        )
                            )
     v.                     )                           Civil Action No. 08-172 (RMC)
                            )
NATIONAL RAILROAD PASSENGER )
CORPORATION,                )
                            )
          Defendant.        )
                            )


                                   MEMORANDUM OPINION

                Pamela Montgomery Beckham sues the National Railroad Passenger Corporation

(“Amtrak”) for alleged race discrimination and retaliation in violation of Title VII of the Civil Rights

Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. Ms. Beckham complains that she

was discriminated against when Amtrak denied her tuition reimbursement for a master’s degree

program, web design software training, and her requests to work from home. Furthermore, Ms.

Beckham complains that such actions were taken in reprisal for her participation in a Title VII class

action against Amtrak. Having reviewed the parties’ briefs, exhibits, and the entire record, the Court

finds that none of these decisions rises to the level of a legally cognizable adverse action to support

the allegations of disparate treatment discrimination. The allegation that Amtrak retaliated against

Ms. Beckham also fails for lack of evidentiary support. Summary judgment will be granted to

Amtrak.
                                           I. FACTS

               Ms. Beckham is an African-American woman who has been employed by Amtrak

since 1989. She was initially hired as a Train Attendant and has been promoted to a number of

different positions over the years.1 In 1995, Ms. Beckham became a Service Manager, where David

Nogar was in her supervisory chain, although not as her direct supervisor. In September 1999, Mr.

Nogar transferred to a new position with Amtrak in California. When this suit was filed in 2008,

Ms. Beckham was working as a Senior Analyst in Amtrak’s Transportation Department in

Washington, D.C.2

               In 1998, Ms. Beckham joined a class-action lawsuit against Amtrak that charged the

railroad with race discrimination; at the time, her name was Pamela Montgomery. See McLaurin

v. Nat’l R.R. Passenger Corp., 311 F. Supp. 2d 61 (D.D.C. 2004). The suit was resolved in

November of 1999, through a consent decree which continued in force until 2004. Ms. Beckham

received monetary relief from the decree to compensate for a salary disparity that existed between

African American and Caucasian employees. The decree named Thom Chawluk as a manager who

allegedly discriminated against the protected class members. Mr. Nogar was Thom Chawluk’s

immediate supervisor at some point during the McLaurin class action.

               In December 2002, Mr. Nogar returned to the East Coast as the Senior Director for



       1
        Ms. Beckham has worked as a Sleeping Car Attendant, Service Attendant, Lead Service
Attendant, Food Specialist, Assistant Conductor and Conductor until 1995, when she became a
Service Manager.
       2
       The Senior Analyst position was located in the Service Delivery Department in Wilmington,
Delware, until 2007. The position was then transferred to Amtrak’s Transportation Department in
Washington, D.C., where Ms. Beckham remained until at least the time of filing the instant
complaint.

                                               -2-
Amtrak’s Department of Service Delivery Standards (“Service Delivery”) in Wilmington. As a

Senior Analyst in Service Delivery, Ms. Beckham worked directly for Mr. Nogar, starting in

approximately 2002 and continuing until January 2005, when Monika Sloane joined Service

Delivery as Director of Service Standards and Operations. Ms. Sloane supervised Ms. Beckham

until late 2006, after which Ms. Beckham’s position was moved to the District of Columbia. Ms.

Beckham did not discuss the McLaurin class action with either Mr. Nogar or Ms. Sloane.

               Ms. Beckham contends that Mr. Nogar knew of her involvement in the McLaurin

class action as he had been Tom Chawluk’s immediate supervisor. Pl.’s Mem. in Opp’n. (“Opp’n.”),

Ex. 1 (“Beckham Decl.”) ¶ 3. Mr. Nogar’s name does not appear in the McLaurin complaint. Mr.

Nogar supervised a contract commuter operation for Amtrak in California from September 1999

through December 2002 and testified in deposition that he “didn’t know anything about that class

action suit until after I came back and assumed my job as senior director of service delivery in

Wilmington.” Def.’s Mem. in Support of Mot. for Summ. J. (“Def.’s Mem.”), Ex. 3 (“Nogar Dep.”)

at 64–65. Mr. Nogar learned at some point that Ms. Beckham had been a plaintiff in McLaurin. Id.

at 64. Mr. Nogar “didn’t think [the suit] impacted me one iota because — certainly with respect to

Ms. Beckham, because the class action suit would have occurred when she was employed as a

service manager for Northeast Direct product line. I actually recruited Ms. Beckham. I gave her her

first management job. And I also provided her with a lot of training in those days, and so I had no

reason to believe that if she was part of that suit that it would have anything to do with me.” Id. at

65–66.

               The functions of Service Delivery are to create, publish, and update the Service

Standards Manual for onboard and train service employees; publish service standards for station


                                                 -3-
employees; administer the uniform contract nationwide; perform quality assurance work; and assist

in the implementation of special service initiatives by doing train riding, as needed. As a Senior

Analyst in Service Delivery, Ms. Beckham’s chief duty was technical writing3 for Service Delivery’s

primary objective: the Service Standards Manual. Her responsibilities included technical writing

for the service standards, the operations standards updates, and the operations service advisories.

Additionally, Ms. Beckham was responsible for information relating to the Service Standards

Manual that would be uploaded to Amtrak’s intranet, an internal website for employees. Amtrak’s

Information Technology department would upload new or additional material to the intranet at Ms.

Beckham’s direction. Ms. Beckham vaguely contends, however, that at an unspecified time period

her responsibilities included Internet responsibilities. See Opp’n., Ex. 1 (Plaintiff’s Statement of

Genuine Issues) (“Pl.’s Disputed Facts”) ¶ 1 (“Ms. Beckham’s responsibilities did include

responsibilities for the internet.”).4

                Ms. Sloane has a graphics design background and was hired in part to develop a web-

based site for Service Delivery employees, thus keeping work in-house and eliminating the costs of

contracting with outside firms for design and management of an Internet site. Russell Fox joined


        3
         The duties of a “technical writer” were “to write the service standards, the operations
standards updates, and the operation service advisories that were published.” Nogar Dep. at 95.
Also included was the duty to make revisions, as needed, to the service standards manual. Id. at 96.
        4
        To support the proposition that her responsibilities included the Internet, Ms. Beckham cites
an Amtrak Position Description for Program Manager. See Opp’n., Ex. 2 (Position Description).
Ms. Beckham also states that she was assigned to “manage one of the largest technology programs
in Amtrak’s department of transportation, the Transportation Department Review System (TDRS),”
which brought her into constant contact with Amtrak’s Information Technology (“IT”) department.
Beckham Decl. ¶ 7. Ms. Beckham does not say that the TDRS system operated on the Internet. Ms.
Beckham testified that she wanted to take the master’s degree courses in 2004 because at the time
she was “maintaining Amtrak’s Internet site.” Def.’s Mem., Ex. 1 (Dep. of Pamela Beckham)
(“Beckham Dep.”) at 33.

                                                -4-
Service Delivery in 2004 after a lateral move from a separate Amtrak department. He was Ms.

Beckham’s counterpart as a Senior Analyst and shared responsibility for technical writing and

updating the Service Standards Manual. Mr. Fox came to Service Delivery with a background in

web design. Mr. Nogar had a goal of developing an external website for Service Delivery

employees, accessible from outside the Amtrak intranet. According to Mr. Nogar, Mr. Fox and Ms.

Sloane were also tasked with designing and maintaining the external Amtrak website based on their

previous work experience. Thus, Mr. Fox was responsible for the development and maintenance of

the external website and Ms. Beckham was responsible for maintaining the intranet, or internal, site

for Service Delivery employees. Their core responsibility, however, remained the Service Standards

Manual. Both Ms. Beckham and Mr. Fox reported to Ms. Sloane.

               A. Tuition Reimbursement

               Amtrak has an Educational Assistance Program whereby it approves tuition

reimbursement to Amtrak employees for courses that are likely to assist the Amtrak employee in

improving her skills relevant to the performance of her job duties. When Mr. Nogar became Ms.

Beckham’s direct supervisor in 2002, Ms. Beckham was pursuing a bachelor of arts degree from

Cabrini College pursuant to the Educational Assistance Program. She took courses at Cabrini and

received tuition reimbursement through 2004, when she earned her bachelor of arts degree.

               In 2004, Amtrak reimbursed Ms. Beckham for the last part of her undergraduate

degree, and Mr. Nogar separately authorized her attendance at an Effective Business Writing Course,

Editing and Proofreading/Grammar Course and Technical Writing Course at The Business

Development & Training Center in Malvern, Pennsylvania. Both parties agree that her courses at

Cabrini and BDTC helped Ms. Beckham with her technical writing responsibilities. Ms. Beckham


                                                -5-
later applied for reimbursement for an Adobe Photoshop course she took at Villa Julie College, after

she had completed the course. Mr. Nogar approved the tuition reimbursement but advised Ms.

Beckham that she needed to submit such requests for approval in advance of a course so that Amtrak

could assess whether the course would benefit her and Amtrak.

               In July 2004, shortly after earning her bachelor’s degree, Ms. Beckham asked Amtrak

to approve tuition reimbursement for master’s degree courses in Business and Technology

Management at Villa Julie College. Ms. Beckham submitted her request to Barbara Hancock in

Amtrak’s Office of Career Development. Ms. Hancock sought Mr. Nogar’s assessment of Ms.

Beckham’s application, i.e., whether the courses were relevant to Ms. Beckham’s job, as is required

under the Program for graduate-level courses.5 After discussing the course materials and Ms.

Beckham’s stated reasons for seeking the specified master’s degree, Mr. Nogar responded that he

did not believe the proposed courses were sufficiently related to Ms. Beckham’s job functions. Ms.

Hancock then decided to deny Ms. Beckham’s tuition reimbursement request. Ms. Hancock

informed Ms. Beckham that Mr. Nogar did not believe the master’s degree courses from Villa Julie

College were necessary for her job.

               Ms. Beckham’s request for tuition reimbursement for a master’s degree was the first

and only time Mr. Nogar had been involved in making a tuition reimbursement decision. Mr. Nogar

never had another employee request reimbursement. Thus, he had never approved or denied tuition



       5
        Under the Educational Assistance Program, coursework towards an undergraduate degree
must be “[d]irectly related to the employee’s present position or [r]elated to career advancement
within Amtrak; e.g., as provided through the Career Counseling Program or other formal counseling
programs.” Def.’s Mem., Ex. 6 (“Educational Assistance Program Policy”) at 3.3. “[R]equests for
advanced degree programs . . . must be directly related to the employee’s present position and
approved by the Director of Career Counseling Services.” Id.

                                                -6-
reimbursement for another Amtrak employee during his time with the railroad. It was also the first

time that Amtrak denied one of Ms. Beckham’s requests for tuition reimbursement. Amtrak

typically receives tuition reimbursement requests from Amtrak employees nationwide for bachelor’s

degree courses, and Amtrak approves some requests and denies others. Amtrak does not receive

tuition reimbursement requests as often for master’s degree courses. In fact, for at least the last ten

years, Amtrak has not approved a request for a master’s degree reimbursement for a Service Delivery

employee. Def.’s Mem., Ex. 7 (Stagger Aff.) ¶ 16.

               B. Dreamweaver

               Amtrak utilized Dreamweaver, a web-site design program, to develop the external

employee Internet site. Amtrak does not utilize Dreamweaver to maintain the intranet site. Mr.

Nogar approved a training course on Dreamweaver I for himself, Ms. Beckham, Mr. Fox, and Ms.

Sloane. In March 2005, however, he authorized Mr. Fox and Ms. Sloane to take the Dreamweaver

II course but did not attend himself or authorize Ms. Beckham to attend. Ms. Beckham contends that

this training was appropriate and necessary for her job and that she was denied training because of

her race and/or in retaliation for her prior class action involvement. Mr. Nogar testified that he did

not authorize Dreamweaver II training for Ms. Beckham because graphic arts were not part of her

job, she had no background or experience in graphic arts, and because the intranet site — where her

information was stored — was not based on Dreamweaver.

               C. Telecommuting

               At least at the relevant time, Amtrak had no official telecommuting policy to allow

employees to work from home or outside the office. A supporter of telecommuting, Mr. Nogar asked

his superior if telecommuting would be permissible. His suggestion was rejected because Mr.


                                                 -7-
Nogar’s superior believed that Amtrak’s upper management would not approve a telecommuting

recommendation. Thus, as a matter of company policy, telecommuting was not authorized.

However, in practice, Service Delivery did permit employees to work from home on a limited basis.

As Senior Director, Mr. Nogar himself did not handle telecommuting requests, but expected one of

his two subordinate directors to do so. Ms. Sloane understood that there was no official policy to

allow for telecommuting and that employees were not supposed to telecommute merely “at their

convenience.” Def.’s Mem., Ex. 4 (Dep. of Monika Sloane) (“Sloane Dep.”) at 60–62. Thus,

telecommuting was available only on a limited basis within the discretion of an employee’s

supervisor.

               Ms. Sloane asked Mr. Fox to work from home on occasion when there was an

ongoing intensive project so he could avoid the distractions of the office and work more efficiently.

Mr. Fox did not ask to work from home; Ms. Sloane initiated his taking work home and had it

approved by one of her superiors. Ms. Beckham contends that Mr. Fox admitted to her that he was

allowed to work from home because of personal reasons, e.g., to meet a contractor, but Mr. Fox and

Ms. Sloane both testified that he used vacation leave when he remained at home for personal

reasons. See Beckham Dep. at 62–64; Sloane Dep. at 66–67; Def.’s Mem., Ex. 5 (Deposition of

Russell Fox) at 36–37. This dispute is not material to resolution of the motion for summary

judgment.

               Ms. Beckham argues she was denied her requests to work from home which she

attributes to race discrimination or retaliation. Ms. Beckham testified that she was denied the ability

to work from home “each and every time” she requested it, which she recalls had been “about three

times.” Beckham Dep. at 59. However, she could only specifically recall one of the times, which


                                                 -8-
occurred in “either 2005 or 2006,” when she was denied the request to work from home on a day that

an electrical company was scheduled to come to her house to evaluate fire damage. Id. at 59–61.

Ms. Sloane denied the request. Id. at 61. Ms. Sloane, on the other hand, testified that on several

occasions, Ms. Beckham called Ms. Sloane to inform her that she would be working at home and

Ms. Sloane gave Ms. Beckham credit for those days and did not deduct the days working from home

from her accrued vacation or sick leave. Sloane Dep. at 74–76. Ms. Beckham does not dispute these

facts.

                Ms. Beckham also requested and was allowed to change her work location on

occasion.6 However, at some point in 2005, Ms. Beckham asked to adjust her work schedule,

prompting an October 3, 2005 memo from Mr. Nogar concerning, in part, Ms. Beckham’s request

to leave the office early on a regular basis. See Def.’s Mem., Ex. 11 (Oct. 3, 2005 Memo). Mr.

Nogar had previously written a similar memo to Ms. Beckham, concerning Ms. Beckham’s unilateral

changes to her work assignments and her need to receive pre-approval for any work done at a remote

office. See Def.’s Mem., Ex. 12 (Mar. 22, 2004 Memo).

                In January 2006, Ms. Beckham filed a formal charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) alleging disparate treatment based on race and/or

retaliation for her previous involvement in protected activities, i.e., her participation in the McLaurin

lawsuit. Compl. ¶ 16. The EEOC investigated the charge and determined that reasonable cause

existed to believe that Amtrak violated Title VII by discriminating and retaliating against Ms.

Beckham. Id. ¶ 17. The EEOC attempted to resolve the dispute through mediation but Amtrak


         6
        Ms. Beckham recalls that she was allowed to work away from the Wilmington office on two
occasions, both in approximately 2004, while Mr. Nogar was her direct supervisor. Beckham Dep.
at 65–66.

                                                  -9-
refused to participate. Id. ¶ 18. On October 29, 2007, the EEOC issued Ms. Beckham a Right to Sue

letter. Id. ¶ 19. On January 29, 2008, Ms. Beckham filed this lawsuit alleging discrimination on

the basis of race in violation of Section 703 of Title VII, 42 U.S.C. § 2000e-2, and retaliation for

opposing unlawful discrimination in violation of Section 704 of Title VII, 42 U.S.C. § 2000e-3.7

                                    II. LEGAL STANDARDS

               A. Summary Judgment

               Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be

granted when “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 movant is entitled to a judgment as

a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538,

1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party who “after

adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Celotex Corp., 477 U.S. at 322. To determine which facts are “material,” a court

must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248. A “genuine

issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect

the outcome of the action. Id.; Celotex, 477 U.S. at 322.

               In ruling on a motion for summary judgment, the court must draw all justifiable



       7
        On July 21, 2009, the Court found that the Charge Questionnaire was too vague and
circumscribed to constitute a complaint of a racially discriminatory failure to promote, and dismissed
Ms. Beckham’s failure-to-promote claim, which was otherwise untimely. See Mem. Op. [Dkt. # 26]
& Order [Dkt. # 27].

                                                 -10-
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion for

summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to the

absence of evidence proffered by the nonmoving party, a moving party may succeed on summary

judgment. Id. at 325. In addition, the nonmoving party may not rely solely on allegations or

conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the

nonmoving party must present specific facts that would enable a reasonable jury to find in its favor.

Id. at 675–76. If the evidence “is merely colorable, or is not significantly probative, summary

judgment may be granted.” Anderson, 477 U.S. at 249–50 (internal citations omitted).

                B. Discrimination Claims

                In this case, there are two distinct claims against Amtrak — race discrimination based

on disparate treatment and retaliation due to prior protected activity. Each claim must be analyzed

separately.

                1. Disparate Treatment

                Title VII prohibits an employer from discriminating on the basis of race, color,

religion, sex, or national origin in hiring decisions, in compensation, terms, and conditions of

employment, and in classifying employees in a way that would adversely affect their status as

employees. See 42 U.S.C. § 2000e-16. Thus, a disparate treatment claim is established when an

employer treats a member of a protected group less favorably than similarly situated others due to


                                                 -11-
an impermissible motive. The case at hand is a disparate treatment suit. Compl. ¶ 16.

                   There are two distinct manners in which to establish liability in a disparate treatment

claim.

                   The employee’s theory may be that the sole reason for the adverse
                   action was discrimination and that the employer’s proffered
                   legitimate reason for the adverse action was pretextual. Or she may
                   pursue a mixed motive claim, in which she maintains that
                   discrimination was one of a number of factors that motivated the
                   adverse action. In a single motive case, the plaintiff has the burden
                   of proving by a preponderance of the evidence that the reason offered
                   by the defendant is not the true reason for the adverse action and that
                   the real motivation was intentional discrimination. In other words, in
                   a gender discrimination case, for example, the claim is that “but for”
                   discrimination based on the employee’s gender, the employer would
                   not have taken the adverse action against her. By contrast, in a mixed
                   motive case, the theory is that there may be a mixture of legitimate
                   and illegitimate motives for an employer’s action. Thus, the
                   employee must prove by a preponderance of the evidence that she
                   was terminated and that her sex . . . was “a motivating factor” for the
                   adverse action. . . . When an employee proceeds on such a mixed
                   motive theory, once the jury has found by a preponderance of the
                   evidence that discrimination was “a motivating factor,” then the
                   burden shifts to the defendant to prove to the jury, also by a
                   preponderance, that the defendant would have made the same
                   decision even if discrimination had not been a factor.

Nuskey v. Hochberg, Civ. No. 06-cv-1573, slip op. at 2 (D.D.C. July 26, 2010).8


         8
             See also Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010).

                   What is a pretext case? It is a circumstantial case in which the
                   plaintiff prevails by showing that the reason or reasons given for the
                   employer’s adverse action were spurious, which requires no specific
                   showing of illegal animus toward the employee, but only a showing
                   that the employer’s reasons are false or otherwise unsupportable.
                   Because the employer is in the best position to explain the
                   termination, the jury is entitled to infer discrimination once the
                   employer’s explanation is proven false. What is a mixed-motive
                   case? It is a case in which, although reasons for discharge are valid,
                   i.e., not pretextual, the plaintiff prevails by showing that,

                                                    -12-
               In most cases, a plaintiff must first establish a prima facie case of racial

discrimination by showing that “(1) [she] is a member of a protected class; (2) [she] suffered an

adverse employment action; and (3) the unfavorable action gives rise to an inference of

discrimination.” Royall v. Nat'l Ass'n of Letter Carriers, 548 F.3d 137, 144 (D.C. Cir. 2008) (noting

that the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), applies in employment discrimination cases). After a plaintiff puts forth a prima facie case,

the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for the

employer’s action. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).

               In a disparate treatment suit, the D.C. Circuit has observed that it is usually not

necessary to determine, at summary judgment, whether an employee presented a prima facie case

of discrimination per McDonnell Douglas. In fact, once the defendant has “asserted a legitimate,

non-discriminatory reason for the decision, the district court need not -- and should not -- decide

whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v.

Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). At this point the McDonnell

Douglas framework melts away and the district court must only resolve whether the plaintiff 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


               notwithstanding the validity of the employer’s stated motives for its
               actions, still a factor — in combination with the valid factors — for
               the discharge was the motive to illegally discriminate. Given that the
               alleged pretextual motives are valid, this theory requires a showing of
               a specific illegal animus toward the employee that factored into the
               discharge, i.e., not “direct evidence,” but evidence establishing
               specifically an illicit motive.

Id., at 339–40 (Jolly, J. dissenting) (emphasis in original).

                                                 -13-
against the employee on the basis of race, color, religion, sex, or national origin.” Brady, 520 F.3d

at 494; see also Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d 13, 17 (D.C. Cir. 2009) (noting

that once defendant offers a non-discriminatory reason for employment action, “to survive summary

judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that

the adverse employment decision was made for a discriminatory [or retaliatory] reason.”) (quoting

Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003)).

               2. Retaliation

               Title VII’s anti-retaliation provision, on the other hand, makes it unlawful for an

employer to “discriminate against any of his employees . . . because [s]he has opposed any practice”

made unlawful by Title VII or “has made a charge, testified, assisted, or participated in” a Title VII

investigation or proceeding. 42 U.S.C. § 2000e-3(a); see Steele v. Schafer, 535 F.3d 689, 695 (D.C.

Cir. 2008). To establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged

in Title VII protected activity; (2) she suffered from a materially adverse action; and (3) a causal

connection exists between the protected activity and the employer’s action. Holcomb v. Powell, 433

F.3d 889, 901–02 (D.C. Cir. 2006) (citations omitted); see also Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 67–69 (2006).

               Retaliatory acts are not limited to harms or acts “that are related to employment or

occur at the workplace.” Burlington N., 548 U.S. at 57. However, the “antiretaliation provision

protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”

Id. at 67. A plaintiff must show that the employer’s actions “would have been materially adverse

to a reasonable employee.” Id. at 57. Furthermore, an employer’s actions must be harmful to the

point that they might dissuade a reasonable worker from making or supporting a charge of


                                                 -14-
discrimination. Id. at 68. The Supreme Court has emphasized that the employer’s action must be

“materially” adverse because the statute protects an employee from significant harms and does not

protect an employee from “those petty slights or minor annoyances that often take place at work and

that all employees experience.” Id. Thus, an objective “reasonable person” standard applies in order

to avoid judicial determination of a plaintiff’s subjective feelings. Id. at 68–69.

               However, the legal analysis applicable to claims of retaliation under Title VII —

specifically mixed-motive retaliation claims — is now a subject of debate among the circuit courts.

Compare Smith v. Xerox, 602 F.3d 320 (5th Cir. 2010) (allowing for mixed-motive retaliation

claims), with Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962–63 (7th Cir. 2010) (noting

with approval McNutt v. Board of Trustees, 141 F.3d 706, 709 (7th Cir. 1998), which prohibited

mixed-motive retaliation claims). There is also an ongoing debate among the members of this

Bench. Compare Nuskey, 06-cv-1573, slip op. at 5–6; with Beckford v. Geithner, 661 F. Supp. 2d

17, 25 n.3 (D.D.C. 2009). The question is whether Gross v. FBL Financial Servs. Inc., 129 S. Ct.

2343 (2009), a case involving a claim of discrimination in violation of the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., affects the analysis of Title VII’s

retaliation provision.

               A little background will put the current debate into focus. The Supreme Court in

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), “addressed the proper allocation of the burden

of persuasion” in Title VII cases “when an employee alleges that he suffered an adverse employment

action because of both permissible and impermissible considerations — i.e., a ‘mixed-motives’

case.” Gross, 129 S. Ct. at 2347. Price Waterhouse first recognized mixed-motive cases and then

established two important principles: (1) Title VII forbids discrimination “because of” gender, race,


                                                -15-
religion, etc., which means, when there are mixed motives, that an employee must prove by a

preponderance of the evidence that discrimination was a substantial or motivating factor in the

employer’s decision, even though lawful motives also existed;9 but (2) it is a complete defense if the

employer thereafter persuades the jury by a preponderance of the evidence that it would have taken

the same action without regard to discriminatory animus. See Price Waterhouse, 490 U.S. at

252–53, 258. Congress approved the first of these points, but not the second.

               In response, Congress amended Title VII to “explicitly authoriz[e] discrimination

claims in which an improper consideration was ‘a motivating factor’ for an adverse employment

decision.” Gross, 129 S. Ct. at 2349; see 42 U.S.C. § 2000e-2(m) (“an unlawful employment

practice is established when the complaining party demonstrates that race, color, religion, sex, or

national origin was a motivating factor for any employment practice, even though other factors also

motivated the practice”). To address the second point, Congress added 42 U.S.C. § 2000e-

5(g)(2)(B), providing that, in a case under 42 U.S.C. § 2000e-2(m) (a mixed-motive case), if the

employer proves by a preponderance of the evidence that it would have taken the same action

without regard to an impermissible motivating factor, the plaintiff is entitled only to declaratory

relief, limited injunctive relief, and attorneys’ fees and costs, but not to damages or reinstatement.

See 42 U.S.C. § 2000e-5(g)(2)(B); see also Ginger v. District of Columbia, 527 F.3d 1340, 1345



       9
         A case involving a mixed motive arises when an employer has both a legitimate reason
(such as poor work performance) and an illegitimate reason (discriminatory animus) for an adverse
action. See Gross, 129 S. Ct. at 2347. It is not when an employer has two illegitimate reasons. See
Cross v. Small, Civ. Act. 04-1253, Mem. Op. [Dkt. # 123] (Mar. 11, 2010) at 1–2; but see Gross,
129 S. Ct. at 2355 (noting that Hazen Paper Co. v. Biggins, 507 U.S. 604, 613 (1993), “indicated
the ‘possibility of dual liability under ERISA and the ADEA where the decision to fire the employee
was motivated both by the employee’s age and by his pension status,’— a classic mixed-motives
scenario.” (Stevens, J., dissenting)).

                                                 -16-
(D.C. Cir. 2008); Fogg v. Gonzalez, 492 F.3d 447, 451 (D.C. Cir. 2007).

                When Mr. Gross sued FBL Financial Services, he alleged that age discrimination was

a motivating factor in his job change/demotion; the district court gave jury instructions that were

consistent with the plurality opinion in Price Waterhouse. See Gross, 129 S. Ct. at 2347 (noting that

the jury was instructed to return a verdict for Mr. Gross “if he proved, by a preponderance of the

evidence, that FBL ‘demoted [him] to claims projec[t] coordinator’ and that his ‘age was a

motivating factor’ in FBL’s decision to demote him.”). The jury returned a verdict in Mr. Gross’s

favor. Id. The Eighth Circuit Court of Appeals reversed, finding that the jury instructions were

infirm. Id. That Circuit followed the opinion of Justice O’Connor in Price Waterhouse, in which

she had stated that “in order to justify shifting the burden on the issue of causation to the defendant,

a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a

substantial factor in the [employment] decision.” Price Waterhouse, 490 U.S. at 276 (O’Connor,

J., concurring) (emphasis added). The Supreme Court vacated the Eighth Circuit’s decision and

remanded. Gross, 129 S. Ct. at 2352.

                In a 5-4 opinion authored by Justice Thomas, the High Court could not “ignore

Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the

ADEA.” Id. at 2349. Because of these new “textual differences between Title VII and the ADEA,”

the Court found itself prevented “from applying Price Waterhouse and Desert Place [Inc., v. Costa,

539 U.S. 90 (2003)] to federal age discrimination claims.” Id. at 2349 n.2. “The ADEA provides,

in relevant part, that ‘[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge

any individual or otherwise discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s age.’” Id. at 2350


                                                    -17-
(quoting 29 U.S.C. § 623(a)(1)) (emphasis in original). “[T]he ordinary meaning of the ADEA’s

requirement that an employer took adverse action ‘because of’ age is that age was the ‘reason’ that

the employer decided to act.” Id. Thus, the Supreme Court concluded that to “establish a disparate-

treatment claim under the plain language of the ADEA . . . a plaintiff must prove that age was the

‘but-for’ cause of the employer’s adverse decision.” Id. In the end, “the burden of persuasion

necessary to establish employer liability is the same in alleged mixed-motives cases as in any other

ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which

may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer

decision.” Id. at 2351.

                  Given the similarity between the language in the ADEA (“because of”) and the

retaliation provision of Title VII (“because”), “the Gross reasoning could be applied in a similar

manner” to cases alleging retaliation under Title VII. Smith, 602 F.3d at 328.10 Nonetheless, the

Fifth Circuit in Smith v. Xerox declined to apply the Gross reasoning because the Supreme Court has

not reversed Price Waterhouse. Id. at 330 (“It is not our place, as an inferior court, to renounce Price

Waterhouse as no longer relevant to mixed-motive retaliation cases, as that prerogative remains

always with the Supreme Court.”); but see id. at 338 n.4 (“Price Waterhouse addresses Title VII’s



       10
            The retaliation provision in Title VII still reads:

            It shall be an unlawful employment practice for an employer to discriminate
            against any of his employees or applicants for employment . . . 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) (emphasis added).

                                                   -18-
discrimination provision, not Title VII’s retaliation provision.”) (Jolly, J., dissenting) (emphasis in

original).

                 Judge Jolly filed a dissent in Smith v. Xerox Corp. He applied Gross to conclude that

“the mixed-motive analysis is no longer applicable outside of Title VII discrimination, and

consequently does not apply to this retaliation case” under Title VII. Id. at 336 (Jolly, J., dissenting).

Judge Jolly wrote:

             A careful and fair consideration of the principles underlying the decision in
             Gross would require the majority to grapple with two realities that mirror
             the very basis for the decision in Gross: (1) Title VII’s retaliation section,
             at issue here, lacks the provision of Title VII’s discrimination section that
             allows mixed-motive cases, and (2) Congress neglected, in 1991, to provide
             for motivating factor causation in Title VII retaliation even though it
             amended Title VII in other ways. . . .

             The Supreme Court explained that the “careful[ly] tailor[ed]” amendments
             made to Title VII in 1991 should be read as limiting the mixed-motive
             analysis to the statutory provision under which it was codified — Title VII
             discrimination only, which excludes retaliation, the claim here. As the
             Supreme Court admonished, to read the 1991 amendments as generally
             blessing the Price Waterhouse analysis would “ignore Congress’ decision”
             to provide motivating factor causation in only specific types of cases, not
             in all cases.11

Id. at 337–38 (Jolly, J., dissenting) (emphasis in original) (citations omitted). Judge Jolly invoked

the reasoning of the Seventh Circuit which has “twice explained, after Gross, [that] ‘unless a statute

. . . provides otherwise, demonstrating but-for causation is part of the plaintiff’s burden in all suits



        11
          The Gross Court reasoned that Congress intended to limit Price Waterhouse to mixed-
motive claims under Title VII since Congress specifically codified motivating factor liability in 42
U.S.C. § 2000e-2(m). The Court found that if Congress wanted the mixed-motive analysis to apply
outside of Title VII, it would only have added the provision eliminating an employer’s complete
defense to these claims, 42 U.S.C. § 2000e-5(g)(2)(B). Because of the absence of a parallel
provision to § 2000e-2(m) in the ADEA, the Court concluded that the mixed-motive analysis of
Price Waterhouse did not apply. Gross, 129 S. Ct. at 2351 n.5.

                                                   -19-
under federal law.’” Id. at 337 (emphasis in original) (quoting Serwatka, 591 F.3d at 961) (ADA);12

see also Fairley v. Andrews, 578 F.3d 518, 52–56 (7th Cir. 2009) (42 U.S.C. § 1983).

                 Congress approved the “motivating factor” analysis from Price Waterhouse when it

amended Title VII in 1991 to adopt that standard explicitly for mixed-motive cases. See 42 U.S.C.

§2000e-2(m). Now the Supreme Court has held that the failure to extend that language to the ADEA

returns the reading of the ADEA to its “ordinary meaning” whereby “because of” means “age was

the ‘reason’ that the employer decided to act.” Gross, 129 S. Ct. at 2350 (citation omitted). The

question is whether to extend the Gross analysis to Title VII’s retaliation provision. The answer is

both yes and no, depending on a plaintiff’s allegations and the evidence.

                 This Court concludes that § 2000e-2(m) means just what it says: when an

impermissible motive animates “any employment practice,” even though permissible motives were

also involved, “an unlawful employment practice is established.” 42 U.S.C. § 2000e-2(m) (emphasis

added). There can, therefore, be mixed-motive retaliation cases despite the “because” language in

the statute.13 In a mixed-motive case, a successful employee must prove an illegal motive behind

the employer’s action; if the employer then proves that it would have taken the same action without

regard to the illegal motive, the employee’s recovery is limited to declaratory judgment, an

injunction against further violations, and attorneys’ fees. See 42 U.S.C. § 2000e-5(2)(B).


       12
            Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12213 (2000).
       13
          Several circuit courts have come to the conclusion that 42 U.S.C. § 2000e-2(m) does not
apply to retaliation claims. See, e.g., Woodson v. Scott Paper Co., 109 F.3d 913, 933–35 (3d Cir.
1996); Tanca v. Nordberg, 98 F.3d 680, 682–85 (1st Cir. 1996); Marbly v. Rubin, Civ. No. 98-1846,
1999 U.S. App. LEXIS 19736, *6 n.2 (6th Cir. 1999) (noting that other circuit courts have declined
to extend 42 U.S.C. § 2000e-2(m) to retaliation cases). The D.C. Circuit, however, has not
addressed the question. See Borgo v. Golden, 204 F.3d 251, 255 n.6 (D.C. Cir. 2000).


                                               -20-
                This stands in contrast to the situation in which an employee alleges disparate

treatment based on a single motive. As indicated above, an employer can defend by advancing a

legitimate, non-discriminatory reason and the employee bears the ultimate burden of proving pretext.

In such a case, the employee/plaintiff does not need to prove motive. The Gross analysis fits such

a single-motive case: an employee must prove that “but-for” his or her protected status, the

employer would not have taken the adverse action.             This is commonly accomplished by

demonstrating that the so-called legitimate, non-discriminatory reason given by the employer is

pretextual, leading to an inference of illegal discrimination. This single-motive analysis and its “but-

for” burden of persuasion can apply to both disparate treatment and retaliation cases, even though

the scope of actions that may be retaliatory is broader.

                The fact that Price Waterhouse has not been overruled is not determinative, because,

as amended, Title VII does not present an either/or choice. Congress has decreed that a mixed

motive infects any employment practice barred by Title VII just as straight-up discrimination does.

The differences lie in the nature of the proofs and in the remedies.

                Ms. Beckham alleges that “because of her race” and “because of her opposition to

actions made unlawful by Title VII,” Amtrak discriminated against her in the ways discussed above.

See Compl., Counts I, II. These allegations and the evidence presented by the parties on summary

judgment demonstrate that this is a “single motive” Title VII case. Therefore, to avoid summary

judgment in Amtrak’s favor, Ms. Beckham must present facts from which a reasonable jury could

conclude that “but-for” her race, Amtrak would not have acted in the way she claims.




                                                 -21-
                                          III. ANALYSIS

               A. Alleged Race-Based Discrimination

               In order to constitute an adverse action that is subject to redress under Title VII, an

employee must experience, due to her protected status, a “significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,

or a decision causing significant change in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.

Cir. 2003) (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998)). “[M]ere idiosyncracies

of personal preference are not sufficient to state an injury. Purely subjective injuries, such as

dissatisfaction with a reassignment, or public humiliation or loss of reputation, are not adverse

actions.” Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C. Cir. 2002) (internal citations omitted).

Therefore, “[a]n employment action does not support a claim of discrimination unless it has

‘materially adverse consequences affecting the terms, conditions, or privileges of [a plaintiff’s]

employment . . . such that a reasonable trier of fact could find objectively tangible harm.” Ginger,

527 F.3d at 1343 (omission in original) (quoting Forkkio, 306 F.3d at 1131).

               Despite the admonition in Brady v. Office of the Sergeant at Arms that district courts

should not pause to examine whether a plaintiff established a prima facie case when an employer

offers a legitimate, non-discriminatory reason for its actions, Amtrak protests strongly that none of

the alleged “adverse actions” identified by Ms. Beckham was sufficiently serious to support a

discrimination claim or to have had any harmful impact upon her at all. Therefore, the Court will

analyze whether Ms. Beckham’s claims involve an adverse employment action. See Baloch v.

Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (proceeding directly to the Brady analysis may

be premature and courts should first assess whether there is evidence of an adverse action where that


                                                 -22-
fact is contested).

                Ms. Beckham contends she suffered three adverse actions: denial of tuition

reimbursement for her master’s degree courses; denial of Dreamweaver II training; and denial of the

ability to telecommute, while other White employees were allowed such opportunities. The record

does not support these allegations. There is no evidence to support the entirely subjective argument

that Amtrak’s decisions to deny tuition reimbursement, deny Dreamweaver II training, or deny

requests to work from home imposed such materially adverse consequences that one or more of such

decisions affected the terms, conditions or privileges of her employment. See Ginger, 527 F.3d at

1343 (noting that an employment action does not support a claim of discrimination unless it has

materially adverse consequences affecting the terms, conditions, or privileges of employment).

                Ms. Beckham argues that she worked as Program Manager over the Amtrak

Transportation Department Review System, a large IT program, and that one of the requirements of

her position under the “Essential Functions” of the job description was that she “have the capability

of functioning as a website administrator.” Opp’n., Ex. 2 (Position Description). Further, she

contends that the ability to function competently as a website administrator and have proficiencies

in HTML, FrontPage and other software programs was a requirement of the position. See Opp’n.

at 8, id. Thus, Ms. Beckham felt that the master’s degree program was connected to her duties.

                Amtrak contends that the Position Description that Ms. Beckham attaches to her

opposition brief is inapplicable to any issue in this case because it is a Position Description for a

Program Manager, which was not Ms. Beckham’s job at the relevant time in 2004. Amtrak notes

that the Position Description submitted by Ms. Beckham is dated May 2005, some nine months after

her request for tuition reimbursement as a Senior Analyst. Amtrak also notes that all Internet


                                                -23-
functions for the Service Standards Manual were new functions in the job, added by Mr. Nogar in

late 2004 just before hiring Ms. Sloane and Mr. Fox, but not performed by Ms. Beckham, who

oversaw the intranet. See Def.’s Mem. at 5 n.2. In fact, Ms. Beckham testified that she was a Senior

Analyst from 2002 through 2007. See Beckham Dep. at 13–14;14 see also Compl. ¶ 4 (“[Ms.

Beckham’s] current job title [as of January 29, 2008, when the Complaint was filed] is Senior

Analyst . . . .”); id. ¶ 6 (“Currently, Ms. Beckham is a Senior analyst in the office of Service

Standards.”); Def.’s Mot. to Dismiss [Dkt. # 5], Ex. 1 (EEOC Charge dated January 26, 2006) (“I

am employed with Respondent as a Senior Analyst.”). When Ms. Beckham applied for tuition

reimbursement for a master’s degree in “Business and Technology Management” on July 20, 2004,

Def.’s Mem., Ex. 8 (Educational Assistance Application), she was a Senior Analyst and not a

Program Manager.15 The Court concludes that the submitted Position Description is not relevant to




       14
         “Q. And in approximately what year was this that you assumed the senior analyst job? A.
It may have been 2002. . . . Q. Okay. How long did you hold or have you held the senior analyst
position? A. Until 2007, I believe. 2007.”).
       15
         Ms. Beckham does not know when her title changed but it was clearly after Amtrak denied
her request for reimbursement for master’s degree studies:

            Q. You as an employee of Amtrak, did you have the same title after the
            Villa Julie course work reimbursement was denied?
            A. No, I did not have the same title.
            ...
            Q. And when did that title change occur?
            A. I have no idea.
            Q. Okay. So you don’t know if it was around the time of this denial?
            A. I know that it was changed.
            Q. At some point subsequent?
            A. That is correct.

Beckham Dep. at 53.

                                               -24-
Amtrak’s denial of tuition reimbursement for a master’s degree program.16

               It is undisputed that Amtrak paid tuition reimbursement for Ms. Beckham’s Bachelor

of Arts degree while Mr. Nogar was her supervisor. Amtrak also paid tuition reimbursement for

other courses including at least two writing courses and an Adobe Photoshop course, which Ms.

Beckham enrolled in without pre-approval. Ms. Beckham testified that Amtrak’s decision not to

approve reimbursement for master’s level courses at Villa Julie had no deleterious impact on her

working conditions in Service Delivery, her compensation as a technical writer, or any other benefits

of employment in the department. See Beckham Dep. at 53–54. “[N]ot everything that makes an

employee unhappy is an actionable adverse action. Minor and even trivial employment actions that

an irritable, chip-on-the-shoulder employee did not like would otherwise form the basis of a

discrimination suit.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) (internal quotation

marks omitted). There is nothing in the record to suggest that Amtrak’s denial of Ms. Beckham’s

request for tuition reimbursement adversely impacted any terms or conditions of her employment



       16
           Ms. Beckham’s Declaration and arguments contend that her relevant job title was not
“Senior Analyst” but rather “Program Manager, Service Standards and Operations” where she
managed the Transportation Department Review System and worked closely with Amtrak’s IT
department. See Opp’n. at 8; Beckham Decl. ¶ 6–7. Virtually every circuit, including the D.C.
Circuit, has recognized the principle that a party cannot create a material fact in dispute by
submitting an affidavit that conflicts with earlier sworn testimony in order to preclude summary
judgment. See Pyramid Sec., Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991)
(collecting cases); Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (this principle
is called the “sham affidavit rule”; a party may create an issue of material fact with contradicting
testimony only if she can offer persuasive reasons for believing the supposed correction is more
accurate than the prior testimony). Ms. Beckham does not offer a persuasive reason or clarification
for the inconsistency in her testimony with regards to her job title. Thus, the Court may properly
grant the motion despite the conflict. See id. Furthermore, while Ms. Beckham’s job position may
have been “Program Manager,” as she states, at the time she executed her Declaration on June 7,
2008, see Beckham Decl., the critical issue is her job position at the time she applied for tuition
reimbursement on July 20, 2004; as to this fact, the Court finds no dispute.

                                                -25-
or that she was treated differently from any other Service Delivery employee. In fact, no Service

Delivery employee had been approved for reimbursement for an advanced degree in at least eleven

years.

                 Ms. Beckham also contends that denial of Dreamweaver II training was an adverse

employment action. Amtrak argues that none of Ms. Beckham’s duties required knowledge of

Dreamweaver II, which is applicable to the functions of an external website, as Ms. Beckham’s

primary function was technical writing and her auxiliary function was maintaining the intranet.

Def.’s Mem. at 21–22; Nogar Dep. at 95–96. The Court recognizes that Ms. Beckham and Amtrak

disagree as to the relevance of Dreamweaver II to Ms. Beckham’s duties. But “denial of training

opportunities is only actionable if there is a resultant ‘material change . . . in employment conditions,

status, or benefits.’” Dorns v. Geithner, 692 F. Supp. 2d 119, 133 (D.D.C. 2010) (quoting Lester

v. Natsios, 290 F. Supp. 2d 11, 29 (D.D.C. 2003)). Therefore the “denial of training may rise to the

level of an adverse employment action,” Freedman v. MCI Telecomm. Corp., 255 F.3d 840, 845

(D.C. Cir. 2001), but the denial must “result[] in a tangible harm.” Everson v. Medlantic Healthcare

Group, 414 F. Supp. 2d 77, 84 (D.D.C. 2006). The alleged harm on which Ms. Beckham focuses

is the supposed different treatment of two similarly situated co-workers: Ms. Beckham and Mr. Fox.

But Ms. Beckham and Mr. Fox were not similarly situated because he was developing a new Internet

site and she was overseeing the content on an existing intranet. In addition, Ms. Beckham fails to

show any legally cognizable adversity that she suffered stemming from denial of access to one

particular training course. It is clear that Ms. Beckham is unhappy that she did not attend

Dreamweaver II, but there is an absence of evidence from which a reasonable jury could find

tangible harm.


                                                  -26-
                Ms. Beckham contends that Amtrak denied her the ability to telecommute

approximately three times while others who were White were given this benefit. See Beckham Dep.

at 59 (“Q. How often did you request [to work from home]? A. About three times.”). Ms.

Beckham averred that she “was never allowed to telecommute but believes Russell Fox was.” Pl.’s

Disputed Facts ¶ 6; Beckham Dep. at 63–64. Ms. Beckham further testified in deposition that Mr.

Fox admitted to her that he was allowed to work from home because of personal business. Beckham

Dep. at 64. However, Ms. Beckham did not contest Amtrak’s arguments concerning her work-at-

home record in her opposition brief and the Court considers the matter conceded. See LcvR 7(h)

(facts set forth in motion for summary judgment are admitted if not controverted in response); see

also FDIC v. Bender, 127 F.3d 58, 67–68 (D.C. Cir. 1997) (“It is well understood in this Circuit that

when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised

by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”).

Furthermore, Ms. Beckham admits that Amtrak approved her requests for a different work schedule

or location in the past. See Beckham Dep. at 65; see also Sloane Dep. at 74. Being denied the

ability to work from home on, at most, three occasions is a minor annoyance, not an adverse action.

Ms. Beckham suffered no cognizable injury or harm from Amtrak’s challenged employment actions

and her claim of discrimination based on disparate treatment fails.

                B. Alleged Retaliation

                Ms. Beckham also contends that Amtrak retaliated against her for engaging in

protected activity due to her involvement as a named plaintiff in the 1998 McLaurin class action.

It is undisputed that her involvement in a class action constituted protected activity. See Def.’s

Mem. at 23 n.8. Measured from when the last order dismissing McLaurin was entered on November


                                                 -27-
26, 2004, Amtrak’s challenged actions in July 2004 and the Spring of 2005 might be close enough

in time to support an inference of discrimination. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.

268, 273 (2001) (finding that a plaintiff may rely on temporal proximity to prove causation, but such

proximity must be “very close”).17 The Court makes no findings of fact or legal conclusions on this

point, however, because Ms. Beckham fails to argue it and no details about the suit or its resolution

are provided in the record.

               Ms. Beckman relies on the same three denials of tuition reimbursement,

Dreamweaver II training, and telecommuting to allege retaliation based on her protected conduct.

The legal questions are (1) whether Ms. Beckham has presented evidence from which a jury could

conclude that her prior protected activity was the “but-for” reason for these Amtrak decisions, i.e.,

were she not a McLaurin class member, Amtrak would have approved these requests, see Gross, 129

S. Ct. at 2353; and (2) whether Ms. Beckham has presented evidence from which a jury could

conclude that a reasonable employee would have found the denials of her requests materially adverse

so as to dissuade such employee from future protected activity. See Burlington N., 548 U.S. at 68.

               Ms. Beckham offers no facts to support her contention that the denial of tuition

reimbursement and Dreamweaver II training was “because of” her participation in a class action that

settled in 1999 with a consent decree that continued in effect until 2004. Instead, she accuses

Amtrak and Mr. Nogar of “mendacity” based on the 2005 Position Description for a job that Ms.

Beckham, by affidavit, says was hers at some unspecified time but which her EEOC Charge, her



       17
         Time lags of more than three months can be too long to show retaliatory causation.
Breeden, 532 U.S. at 273–74 (20-month lag too long to demonstrate causation, citing with approval
O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (3-month lag too long));
Sullivan-Obst v. Powell, 300 F. Supp. 2d 85, 94 (D.D.C. 2004) (same).

                                                -28-
Complaint, and her deposition testimony demonstrate was not her job at the relevant time. See

Compl. ¶¶ 4, 6; Beckham Dep. at 14; Def.’s Mot. to Dismiss [Dkt. # 5], Ex. 1 (EEOC Charge dated

January 26, 2006). Even were the proffered Position Description applicable to Ms. Beckham in

2005, in contradiction to the 2006 EEOC Charge and the 2008 Complaint, it was not her position

when she requested tuition reimbursement in July 2004. See supra n.16. Amtrak’s Educational

Assistance Program required advanced degrees to be related to an employee’s current job. The

perceived relevance of the master’s degree course work to Ms. Beckham’s management of the

Transportation Department’s Review System, in or after 2007, does not make that connection. Thus,

Ms. Beckham fails to show any evidence from which a jury might find that “but-for” her

participation in McLaurin, Amtrak would have paid for her master’s degree courses.

               Amtrak has also proffered a legitimate non-discriminatory reason for its denial of

Dreamweaver II training: Ms. Beckham’s work duties did not include the Internet website and the

intranet, for which she was responsible, was not based on Dreamweaver. Except for her accusation

of “mendacity” connected to the irrelevant Position Description, Ms. Beckham offers nothing to

support her burden of persuasion that her involvement in McLaurin was the “but-for” reason that

Amtrak denied her a second Dreamweaver training course. Notably, Ms. Beckham makes no

argument that the Dreamweaver II training was relevant to her position as a Senior Analyst, the job

she actually held at the relevant time. Summary judgment is properly granted against a party who

“after adequate time for discovery . . . fails to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that party will bear the burden of proof at

trial.” Celotex Corp., 477 U.S. at 322. Ms. Beckham relies solely on allegations of mendacity and

conclusory statements, which are insufficient to withstand summary judgment. Greene, 164 F.3d


                                                -29-
at 675. The Court recognizes there could well be fact patterns in which the denial of tuition

reimbursement and/or specialized computer training would be materially adverse and could dissuade

an employee from further protected conduct. But no such fact pattern is shown here.

                 Ms. Beckham further, and lastly, offers no basis to conclude that her membership in

the McLaurin class played any part in Amtrak’s request to Mr. Fox that he work at home

occasionally on a project requiring a quiet work environment or its denial of her request to work

from home on one to three occasions, much less that “but-for” her participation in the lawsuit, Mr.

Fox would have been required to work in a noisy area with interruptions and/or that she would have

been able to stay at home. Certainly, the occasional denial of a request to work from home, when

other requests from the same employee have been granted, does not constitute a materially adverse

action. As Ms. Beckman makes no rejoinder to Amtrak’s arguments on these points, they are

conceded. See LCvR 7(h); FDIC v. Bender, 127 F.3d 58. For these reasons, Ms. Beckham’s claims

of retaliation fail.

                                        IV. CONCLUSION

                 The Court will grant Amtrak’s motion for summary judgment [Dkt. # 35]. The

direct discrimination claim fails for lack of a true adverse action. The retaliation claim fails for

lack of evidence. A memorializing Order accompanies this Memorandum Opinion.


Date: September 9, 2010                                               /s/
                                                        ROSEMARY M. COLLYER
                                                        United States District Judge




                                                 -30-
