                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

GEORGE W. BURNS, III,                                  :
                                                       :
                Plaintiff,                             :     Civil Action No.:        10-1686 (RC)
                                                       :
                v.                                     :     Re Document No.:         15
                                                       :
WASHINGTON METROPOLITAN AREA                           :
TRANSIT AUTHORITY,                                     :
                                                       :
                Defendant.                             :

                                     MEMORANDUM OPINION

                GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

                                          I. INTRODUCTION

        The plaintiff is an African-American former employee of the Washington Metropolitan

Area Transit Authority (“WMATA”). He alleges that the defendant retaliated against him, in

violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.,

after he filed complaints claiming that WMATA’s selection process for promotions and other

opportunities was biased against African-American males. 1 The defendant has moved for

summary judgment under Federal Rule of Civil Procedure 56. For the reasons discussed below,

the court grants the defendant’s motion.



            II. FACTUAL ALLEGATIONS & PROCEDURAL BACKGROUND

        The plaintiff was hired as a Transit Police officer by WMATA’s Metro Transit Police

Department (“MTPD”) in 1986. Def.’s Stmt. of Material Facts (“Def.’s Stmt.”) ¶ 1. He was

promoted to the position of lieutenant in June of 2004. Id. ¶ 2. In May of 2008, the plaintiff


1
        The plaintiff’s amended complaint also alleges that the defendant engaged in race-based
discrimination against the plaintiff, but the plaintiff has voluntarily dismissed this claim. See [Dckt #18].

                                                      1
participated in the process to be promoted to captain. Id. ¶ 3. He was placed third on the

eligibility list for promotion to captain, and was not promoted. Pl.’s Stmt. of Material Facts

(“Pl.’s Stmt.”) ¶ 10; Def.’s Stmt., Ex. 6; Am. Compl. ¶ 17.

        The plaintiff claims that on May 13, 2008, and again on June 9, 2008, he filed complaints

with the WMATA Office of Civil Rights (“OCR”), alleging that the defendant’s “selection

process for promotional and educational opportunities” was biased against African-American

males. 2 Am. Compl. ¶ 12. In January of 2009, Sergeant Monica Hockaday, a female officer

who the plaintiff supervised, filed a complaint of sexual harassment against the plaintiff with the

WMATA OCR. Def.’s Stmt. ¶ 14. The WMATA OCR subsequently conducted an

investigation, id. ¶ 15, and on April 24, 2009, sent the plaintiff a letter stating that there was

“evidence that [he had] made inappropriate and suggestive comments to some of [his] female

employees [that did] not rise to the level of a violation of WMATA’s Sexual Harassment

policy.” Def.’s Stmt., Ex. 17 at 1. The letter further stated that the WMATA OCR had made a

“no probable cause finding of discrimination.” Id. at 3. But the WMATA OCR also

recommended to Chief Taborn that because the plaintiff had made inappropriate and suggestive

comments to MTPD employees, he should be issued a letter of warning. Def.’s Stmt., Ex. 18.

        As a result, on May 4, 2009, Chief Michael Taborn sent the plaintiff a “Notice of

Discipline,” which indicated that his “actions [had been] inappropriate” and “inconsistent with

the expected standards of a Metro Transit Police supervisor.” Def.’s Stmt., Ex. 4. The notice

also stated that the plaintiff’s “conduct ha[d] brought discredit” to the MTPD, and that he did not


2
         The plaintiff does not provide any documentation verifying that he made these complaints,
however. His claim is based solely on alleged retaliation that he suffered largely for filing such
complaints. Yet without substantiating that he engaged in protected activities by complaining about
discrimination, there can be no actionable retaliation claims. Nonetheless, because the parties have not
raised or briefed this issue, for purposes of resolving this motion, the Court will assume without deciding
that the plaintiff engaged in protected activity.

                                                     2
“enjoy [Chief Taborn’s] confidence to be a senior leader of [the] organization.” Id. The plaintiff

was thereafter removed from the current eligibility list for the rank of captain, id., but was

informed that this would not impact his eligibility to be on the 2010 list. Def.’s Stmt., Ex. 8 at 1.

        The plaintiff claims that on June 17, 2009, he filed a complaint against Chief Taborn with

the WMATA OCR, alleging retaliation. Am. Compl. ¶ 31. 3 In August of 2009, then-Captain

Ronald Pavlik, the plaintiff’s direct supervisor, evaluated the plaintiff for the year ending June

30, 2009, giving him an overall rating of “competent” on his performance evaluation. Def.’s

Stmt. ¶ 18; id., Ex. 15 ¶ 14. Captain Pavlik’s superior officer, Deputy Chief Jeri Lee, reviewed

the evaluation and asked Captain Pavlik to change the plaintiff’s performance ratings in two to

three sub-categories. 4 Def.’s Stmt., Ex. 15 ¶ 16.; Am. Compl. ¶ 38. These ratings were changed

downward to “needs improvement.” Def.’s Stmt., Ex. 15 ¶ 16. After these changes were made,

the plaintiff’s overall rating for his performance evaluation was still that of “competent.” Def.’s

Stmt. ¶ 18.

        All candidates for promotion to captain participate in a competitive process. Def.’s Stmt.

¶ 4. They are evaluated based on a final grade, which is the combination of scores from a written

exam, an oral interview, and an overall assessment. Def.’s Stmt., Ex. 15 ¶ 2; Pavlik

Supplemental Affidavit (“Pavlik Suppl. Aff.”) [Dckt. #22-1] ¶ 2. These factors constitute 100%

of the final grade. Pavlik Suppl. Aff. ¶ 2.

        In addition, the candidate’s combined prior two years of performance evaluations can

contribute toward increasing that final grade. Id. During a performance evaluation, the

3
         As with his other complaints allegedly made to the OCR, the plaintiff has not provided any
documentation to substantiate that this complaint was filed. Yet, as noted earlier, for purposes of
resolving this motion, the Court will assume without deciding that plaintiff engaged in this form of
protected activity.
4
         The parties differ as to whether the ratings where changed in two, as opposed to three, sub-
categories. As indicated below, however, the difference is inconsequential in determining if the plaintiff
has raised a genuine dispute of fact as to whether he suffered a material adverse action.

                                                     3
candidate is evaluated in thirteen sub-categories. Def.’s Stmt. ¶¶ 4, 16. In each sub-category,

the candidate is rated as “outstanding,” “exceeds expectations,” “meets expectations,”

“competent,” or “needs improvement.” Id. Each rating is assigned a score, where “outstanding”

receives a 4, “exceeds expectations” receives a 3, “meets expectations” or “competent” receive a

2, and a rating of “needs improvement” receives no value. Id. These numbers are totaled for

each individual evaluation. Pavlik Suppl. Aff. ¶ 2. The resulting two scores are then converted

into respective percentages, added together, and multiplied by 10%. Id. This number then

counts toward the final grade as “extra credit” points, to be applied toward the final grade – the

two evaluations can provide a combined total of extra credit points that range from 0 to 10. Id.

As a result, because the maximum potential final grade before adding these points is 100, adding

these extra credit points to a perfect score can yield a maximum potential final grade ranging

from 100 to 110 points. Id.

       The plaintiff retired on March 1, 2010, and did not participate in the promotion process

held in May of 2010. Def.’s Stmt., ¶¶ 21-22. In October of 2010, the defendant brought suit

against the defendant alleging retaliation, in violation of Title VII. The plaintiff claims that the

defendant altered his performance evaluation in retaliation for his filing complaints of racial

discrimination, a protected activity. The defendant has filed a motion for summary judgment.

The court now turns to the parties’ arguments and the applicable legal standards.



                                          III. ANALYSIS

              A. Legal Standard for a Rule 56 Motion for Summary Judgment

       Summary judgment may be granted when "the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.



                                                  4
R. Civ. P. 56(a). A fact is "material" if it is capable of affecting the substantive outcome of the

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" if

sufficient evidence exists such that a reasonable jury could return a verdict for the non-moving

party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

       The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses and determining whether there is a genuine need for

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party bears the initial

responsibility of identifying those portions of the record which demonstrate the absence of any

genuine issue of material fact. Id. at 323; Fed. R. Civ. P. 56(c)(1)(A) (noting that the movant

may cite to "depositions, documents, electronically stored information, affidavits or declarations,

. . . admissions, interrogatory answers, or other materials"). In response, the non-moving party

must similarly designate specific facts in the record that reveal a genuine issue that is suitable for

trial. Celotex, 477 U.S. at 324. On a motion for summary judgment, the court must "eschew

making credibility determinations or weighing the evidence," Czekalski v. Peters, 475 F.3d 360,

363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most

favorable to the non-moving party, Anderson, 477 U.S. at 255. Nevertheless, conclusory

assertions offered without any evidentiary support do not establish a genuine issue for trial.

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

                  B. Legal Standard for a Retaliation Claim Under Title VII

       Generally, to prevail on a claim of retaliation under Title VII, a plaintiff must follow a

three-part burden-shifting analysis known as the McDonnell Douglas framework. Taylor v.

Solis, 571 F.3d 1313, 1320 n.* (D.C. Cir. 2009) (observing that “[r]etaliation claims based upon

circumstantial evidence are governed by the three-step test of McDonnell Douglas Corp. v.



                                                  5
Green”); Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003)

(applying the McDonnell Douglas framework to a Title VII retaliation claim). The Supreme

Court explained the framework as follows:

       First, the plaintiff has the burden of proving by the preponderance of the evidence
       a prima facie case of [retaliation]. Second, if the plaintiff succeeds in proving the
       prima facie case, the burden shifts to the defendant “to articulate some legitimate,
       [non-retaliatory] reason for the employee’s rejection” . . . . Third, should the
       defendant carry this burden, the plaintiff must then have an opportunity to prove
       by a preponderance of the evidence that the legitimate reasons offered by the
       defendant were not its true reasons, but were a pretext for [retaliation] . . . . The
       ultimate burden of persuading the trier of fact that the defendant intentionally
       [retaliated] against the plaintiff remains at all times with the plaintiff.

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (internal citations omitted)

(quoting McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)).

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

a statutorily protected activity, (2) a reasonable employee would have found the challenged

action materially adverse, and (3) there existed a causal connection between the protected

activity and the materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 67-69 (2006); Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). In the retaliation

context, the term “adverse action” “encompass[es] a broader sweep of actions than those in a

pure discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008).

Thus, “[r]etaliation claims are ‘not limited to discriminatory actions that affect the terms and

conditions of employment’ and may extend to harms that are not workplace-related or

employment-related so long as ‘a reasonable employee would have found the challenged action

materially adverse.’” Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 68

(2006)). The plaintiff’s burden is not great: he “need only establish facts adequate to permit an

inference of retaliatory motive.” Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001).



                                                 6
       If the employer successfully presents a legitimate, non-retaliatory reason for its actions,

“the presumption raised by the prima facie is rebutted and drops from the case.” St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal citation omitted); Brady v. Office of the

Sergeant at Arms, U.S. House of Representatives, 520 F.3d 490, 494 (D.C. Cir. 2008) (noting

that “the prima facie case is a largely unnecessary sideshow”). Upon such a showing by the

defendant, the district court need resolve only one question: “Has the employee produced

sufficient evidence for a reasonable jury to find that the employer’s asserted [non-retaliatory]

reason was not the actual reason and that the employer intentionally [retaliated] against the

employee [because he had engaged in protected activity]?” Brady, 520 F.3d at 494.

       The court must consider whether the jury could “infer discrimination [or retaliation] from

the plaintiff’s prima facie case and any other evidence the plaintiff offers to show that the actions

were discriminatory [or retaliatory] or that the non-discriminatory [or non-retaliatory]

justification was pretextual.” Smith v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005)

(quoting Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005)). The court should assess the

plaintiff’s challenge to the employer’s explanation in light of the totality of the circumstances of

the case. Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en banc).

     C. The Defendant’s Alteration of the Performance Evaluation is Not a Materially
                                     Adverse Action

       The plaintiff claims that his performance evaluation was downgraded in retaliation for

filing complaints with the WMATA OCR alleging discrimination and retaliation. Am. Compl.

¶¶ 12, 31. As mentioned previously, establishing a prima facie case of retaliation requires

showing that the plaintiff suffered a materially adverse action. Burlington N. & Santa Fe Ry.

Co., 548 U.S. at 67-69 (2006). In the retaliation context, an employment action is considered




                                                  7
materially adverse if it is “likely to dissuade[] a reasonable worker from making or supporting a

charge of discrimination.” Id. at 68, 70 (internal quotation marks and citation omitted).

       The plaintiff indicates that the changing of three sub-categories of his performance

evaluation was materially adverse because it prevented him from being promoted to captain.

Am. Compl. ¶ 56. He does not offer sufficient evidence, however, to suggest that he suffered a

materially adverse action. “Courts have consistently held that where there is no change in

benefits, or the performance rating was not tied to an employee's bonus, a negative or decreased

performance rating is not an adverse action.” Dorns v. Geithner, 692 F. Supp. 2d 119, 133

(D.D.C. 2010) (citing Weber v. Battista, 494 F.3d 179, 186 (D.C.Cir.2007)). Indeed, this Circuit

has stated that poor “performance reviews typically constitute adverse actions only when [they

are] attached to financial harms.” See Baloch, 550 F.3d at 1199; Taylor v. Small, 350 F.3d

1286, 1293 (D.C. Cir. 2003) (“poor performance evaluations are [not] necessarily adverse

actions and they should not be considered such if they did not affect[ ] the [employee's] grade or

salary”) (internal quotation marks and citations omitted).

       In this case, the plaintiff does not allege anything indicating that the reduced sub-

categories of his performance evaluation affected his salary, or that his review was tied to a

bonus, paid leave, or other monetary benefit that he would otherwise receive or was currently

enjoying. Further, the revised performance evaluation was only marginally different from his

initial evaluation, as a mere two to three sub-categories out of thirteen were downgraded, but the

overall evaluation of “competent” remained the same. Def.’s Stmt., Ex. 15 ¶ 16. The defendant

maintains that if the evaluation had not been changed, the plaintiff would have received five

extra credit points (out of a maximum of ten) for the prior two years of performance evaluations,

which would count toward his final grade for promotion eligibility. Pavlik Suppl. Aff. ¶ 2. This



                                                 8
would mean that if the plaintiff had received a perfect final grade of 100 before adding these five

extra credit points, adding them would have yielded a final grade of 105 points. The ultimate

difference would thus have been a mere five extra credit points counting toward the final grade

for promotion eligibility, out of a potential maximum score of 105 points. Id. “[T]angible

employment action” requires a “significant change in employment status.” Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 761 (1998). “Minor” employment actions that an employee “d[oes]

not like” cannot serve as the basis of a Title VII suit. Russell, 257 F.3d at 818 (internal citations

omitted). With a minor adjustment of, at most, three sub-categories in his overall review, the

plaintiff does not offer enough evidence to show that the alteration caused a significant change in

his employment status.

       Finally, the alleged impact on the plaintiff’s opportunity for a future promotion is too

speculative to be materially adverse. As this Circuit has noted, the effect of a poor performance

evaluation is “ordinarily too speculative to be actionable.” Douglas v. Donovan, 559 F.3d 549,

553 (D.C. Cir. 2009). “[A] single poor evaluation may drastically limit an employee’s chances

for advancement, or it may be outweighed” by other factors — such as the other elements that

constitute the final grade for promotion eligibility — and thus may “be of no real consequence.”

Russell, 257 F.3d at 818. The plaintiff has not demonstrated that five points would have made a

difference in his chances for promotion. Because he did not compete in the promotion eligibility

process, he did not have a final grade from which to ascertain whether five extra points from his

evaluation would have impacted his chances for a promotion. Further, even if he did have a final

grade, it would still be speculative whether he would have been promoted. This is because

among the top three spots on the promotion eligibility list, the hiring official has the discretion to

promote candidates in sequential order or to choose the person that he believes is most qualified,



                                                  9
regardless of their ranking. Pavlik Suppl. Aff. ¶ 11. Thus, the plaintiff does not demonstrate that

five extra points would have landed him on the promotion eligibility list, and that even if they

had, that he would have been chosen.

         In addition, although the plaintiff may believe that he was denied “potentially fruitful

opportunities,” he cannot point to any “concrete changes in the terms, conditions, privileges” of

his current employment at the time of the alteration. Edwards v. EPA, 456 F. Supp. 2d 72, 85–

86 (D.D.C. 2006). His inability to offer evidence of a “discernible, as opposed to speculative”

impact on his current employment renders the effects of the alteration too speculative to be

actionable. Id. Accordingly, the plaintiff does not offer sufficient evidence for a reasonable jury

to conclude that he suffered a materially adverse action, and thus does not make out a retaliation

claim.

  D. The Plaintiff Fails to Demonstrate that the Defendant’s Legitimate, Non-Retaliatory
                             Reason for its Actions is Pretextual

         Even if the downgraded evaluation was a materially adverse action, the defendant has

asserted a legitimate, non-retaliatory reason for it, stating that because the WMATA OCR found

that the plaintiff had engaged in inappropriate and suggestive conduct toward a female

subordinate, his actions were inconsistent with the standards of an MTPD officer and brought the

MTPD discredit. Def.’s Mot. at 5; Def.’s Stmt., Ex. 4. Because the defendant has successfully

articulated a legitimate, non-retaliatory reason for its adverse treatment of the plaintiff, the

presumption raised by the prima facie case is rebutted and drops from the case. St. Mary’s

Honor Ctr., 509 U.S. at 507; Brady, 520 F.3d at 494 (noting that “the prima facie case is a

largely unnecessary sideshow”). Thus, the Court turns to the only relevant question: has the

plaintiff produced sufficient evidence for a reasonable jury to conclude that this reason for the

altered evaluation was not the actual reason, and instead, that retaliation was. On the record


                                                  10
presented, the Court finds that a reasonable jury could not find in the plaintiff’s favor. See

Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008); Brady, 520 F.3d at 494.

        The plaintiff challenges the defendant’s non-retaliatory basis for his termination as

pretextual. Pl.’s Statement of Material Facts ¶ 7. Each of the arguments that he puts forward

fail, however. The plaintiff contends that he did not sexually harass his subordinate, and that the

defendant thus had no reason to downgrade his evaluation other than retaliation. Id. Yet even as

the OCR report may not have found that he sexually harassed others, it did conclude that he

engaged in inappropriate conduct, which the plaintiff does not address. More saliently, however,

the essential question is not whether the plaintiff actually engaged in any wrongdoing, but

whether Chief Taborn or Deputy Chief Lee honestly and reasonably believed the results of the

WMATA OCR’s investigation. Brady, 520 F.3d at 496 (“The question is not whether the

underlying sexual harassment occurred; rather, the issue is whether the employer honestly and

reasonably believed that the underlying sexual harassment incident occurred.”);13 Musick v.

Salazar, 839 F. Supp. 2d 86, 97-98 (D.D.C. 2012) (same); Asewole v. PSI Services, 798 F. Supp.

2d 57, 63 n.4 (D.D.C. 2011) (same); Dunning v. Quander, 468 F. Supp. 2d 23, 32 n.10 (D.D.C.




13
          In Brady, the Circuit specifically rejected what the plaintiff attempts to do here: create a dispute
of fact by merely denying that the underlying misconduct occurred. Brady, 520 F.3d at 496 (“Allowing
Brady to end-run summary judgment in these circumstances would create significant practical problems.
Employers obviously have to resolve factual disagreements all the time in order to make employment
decisions regarding hiring, promotion, discipline, demotion, firing, and the like. In many situations,
employers must decide disputes based on credibility assessments, circumstantial evidence, and
incomplete information. But Brady's argument would mean that every employee who is disciplined,
demoted, or fired for alleged misconduct could sue for employment discrimination based on race, color,
religion, sex, or national origin and-merely by denying the underlying allegation of misconduct-
automatically obtain a jury trial. Brady cites no support for that proposition, which would wreak havoc on
district courts' orderly resolution of employment discrimination cases and improperly put employers in a
damned-if-you-do, damned-if-you-don't posture when addressing disciplinary issues in the workplace.”).




                                                      11
2006) (declining to review de novo results of an investigation because the court is not to act as a

super-personnel department).

       The plaintiff here has presented no evidence to suggest that Chief Taborn or Deputy

Chief Lee did not honestly believe the WMATA OCR’s conclusion. Though the OCR report

noted that “[t]here [was] insufficient evidence to show [that] the Complainant [was] subjected to

repeated instances of hostile environmental sexual harassment . . .,” it did not completely absolve

the plaintiff of wrongdoing, as it stated that “there [wa]s evidence that [the plaintiff had] made

inappropriate and suggestive comments to some of [his] female employees.” OCR Report,

[Dckt. #15-17] at1- 2. The report further stated that the plaintiff engaged in “inappropriate”

contact with subordinates when seeking witnesses on his behalf, which reflected “poor

judgment” on his part. Id. at 1. Thus, while the report did not make a finding of conduct that

rose to the level of violating WMATA’s sexual harassment policy, it did find that the plaintiff

had engaged in inappropriate behavior, and gave him a warning that if he displayed similar

behavior in the future, it would “result in a probable cause finding of discrimination and subject[

him] to appropriate disciplinary action.” Id. at 3. The WMATA OCR further recommended that

Chief Taborn issue the plaintiff a letter of warning. Def.’s Stmt., Ex. 18. Issuing a performance

appraisal that reflected these findings was an eminently reasonable response.

       Accordingly, because the plaintiff’s behavior was egregious enough to warrant a finding

of discrimination and discipline if it was repeated, it is reasonable that Chief Taborn and other

supervisors felt that his actions were “inconsistent with the expected standards of an [MTPD]

police supervisor,” and that his evaluation should have reflected that and been downgraded.

Def.’s Stmt., Ex. 15-4. In addition, the defendant submitted deposition testimony from Deputy

Chief Pavlik that the plaintiff’s evaluation had been changed because the OCR found that he had



                                                 12
engaged in inappropriate conduct. Def.’s Stmt., Ex. 15-15, ¶ 16; see Brady, 520 F.3d at 495

(determining that an employer producing deposition testimony from its decision-maker that its

plaintiff was demoted because he had engaged in wrongdoing demonstrated that the employer

honestly and reasonably believed that the underlying misconduct had occurred). Further, the

OCR report indicated that the accusations against the plaintiff were thoroughly and

independently investigated, as it discussed whether Sergeant Hockaday had taken the appropriate

steps to make the plaintiff aware that his behavior was offensive, and also provided information

from a wide range of individuals that it had interviewed. Def.’s Stmt., Ex. 15-17 at 1-2; see

Brady, 520 F.3d at 495 (finding that indications that the accusations had been thoroughly and

independently investigated contributed to showing that the employer honestly and reasonably

believed that the underlying misconduct had occurred).

       The OCR report also stated that several other females from within and outside of the

MTPD corroborated that they had heard the plaintiff make comments that they considered

“subtle flirts of personal interest.” Def.’s Stmt., Ex. 15-17 at 2; see Brady, 520 F.3d at 495

(stating that providing evidence of others having witnessed and complained about the

misconduct served as supporting evidence in demonstrating that the employer honestly and

reasonably believed that the wrongdoing had occurred). The Court thus concludes that it was

reasonable for the MTPD to rely on the investigation’s conclusions, particularly because the

plaintiff produces no evidence to indicate that the defendant’s conclusions were dishonest or

unreasonable. See Brady, 520 F.3d at 496.

       The plaintiff also contends that the temporal proximity between his filing a complaint

against Chief Taborn in June of 2009, and the defendant changing his performance evaluation in

August, indicate that the evaluation was altered as a form of retaliation for his complaint. Pl.’s



                                                 13
Mot. at 9. Although “temporal proximity can . . . support an inference of [such] causation,” the

defendant’s legitimate non-retaliatory justification for changing the plaintiff’s evaluation here

has not been rebutted. Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007). Thus, as this

Circuit has held, if the plaintiff’s “only evidence linking his protected activities to the adverse

employment action[] is the proximity in time between [them,” the Court cannot make a finding

that the defendant’s justification is pretextual, as “positive evidence beyond mere proximity is

required to defeat the presumption that the proffered explanation[ is] genuine.” Id. at 530.

Indeed, the plaintiff “[l]acking a smoking gun from the [MTPD] that would establish causation”

between the protected activity and the adverse action, and thereby seeking that the Court “infer a

causal link” based on temporal proximity alone, will not be entertained. Id.; see also Talavera v.

Shah, 638 F.3d 303, 313 (D.C. Cir. 2011).

        Accordingly, the plaintiff fails to demonstrate that the legitimate, non-retaliatory reason

for the downgrading of his performance evaluation was pretextual. Because the plaintiff has

failed to produce sufficient evidence for a reasonable jury to find that the MTPD’s proffered

reason to downgrade his evaluation was not the actual reason, and that the MTPD actually

retaliated against him, his claims are dismissed. See Ginger v. District of Columbia, 527 F.3d

1340, 1347 (D.C. Cir. 2008); Brady, 520 F.3d at 495 (“if an employer’s stated belief about the

underlying facts is reasonable in light of the evidence, there ordinarily is no basis to permit a jury

to conclude that the employer is lying about the underlying facts”). 5


5
         In addition to articulating the plaintiff’s race-based retaliation claim, the amended complaint
alleges that the plaintiff was retaliated against for filing complaints alleging that the defendant’s selection
process for promotional and educational opportunities was “biased against . . . persons over 40 years of
age.” Am. Compl. ¶ 12. There is no basis for alleging an age-based retaliation claim within the ambit of
Title VII, however. See 42 U.S.C. §§ 2000e et seq. Further, the plaintiff does not plead any facts
indicating that he was retaliated against for making an age-based discrimination complaint. Thus, he does
not make out a viable age-based retaliation claim under any statute that protects against such
discrimination.

                                                      14
                                     IV. CONCLUSION

       For the foregoing reasons, the court grants the defendant’s motion for summary

judgment. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 24th day of January, 2013.



                                                           RUDOLPH CONTRERAS
                                                           United States District Judge




                                              15
