                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



HERMAN BREWER, and FAYETTE
REID, individually and on behalf of a class of
all persons similarly situated,

and JAMES BROOKS, individually,
                                                     Civil Action No. 08-1747 (BJR)
                       Plaintiffs,
                                                     MEMORANDUM OPINION
               v.

ERIC H. HOLDER,
United States Attorney General,

                       Defendant.



                    GRANTING IN PART AND DENYING IN PART DEFENDANT’S
                        MOTION FOR PARTIAL SUMMARY JUDGMENT

I.     INTRODUCTION

       Plaintiffs Herman Brewer and Fayette Reid, individually and on behalf of a class of

similarly situated individuals, bring suit against their employer, the United States Marshals

Service (“USMS” or “Defendant”). Plaintiffs allege that Defendant engaged in a pattern or

practice of racial discrimination against them and other African American Deputy United States

Marshals in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq

(“Title VII”). Plaintiff, James Brooks, brings individual claims of racial discrimination, hostile




                                                 1
work environment and retaliation under Title VII. 1 Defendant moves for partial summary

judgment. For the following reasons, the Court grants in part and denies in part Defendant’s

motion.

II.    BACKGROUND

       Plaintiffs allege that USMS has failed to “revise[] its policies and practices” to “end the

continuing pattern and practice of racial discrimination and remedy the effects of that

discrimination,” as “manifested by discriminatory employment practices with respect to

promotions, transfers, assignments, training, awards, and the use of investigations.” Am. Compl.

¶¶ 29, 34. Plaintiffs specifically challenge USMS’s Merit Promotion System, alleging that the

System’s features impede the promotion of African American Deputy U.S. Marshals and favors

the promotion of white Marshals over African American Marshals. Furthermore, Plaintiffs

allege that “[t]he high degree of subjectivity in the assignment and lateral transfer process has a

disparate impact on African American [Deputy U.S. Marshals],” affecting their ability “to secure

promotions or career enhancing opportunities and experiences. Id. ¶¶ 55-56.

       Plaintiffs also claim that they receive fewer career-enhancing training opportunities than

their white counterparts because of “the high degree of subjectivity in how [Deputy U.S.

Marshals] receive training.” Id.¶ 65. Similarly, Plaintiffs claim they have been discriminated

against with respect to the distribution of awards. Id. ¶ 71. Finally, Plaintiffs allege that African

American Deputy U.S. Marshals are “targeted by their white co-workers and supervisors for


1
       Plaintiffs recently moved to add Brooks as a putative class representative, but that motion
       remains pending.

                                                   2
investigation by [the Office of Internal Investigation] based on frivolous allegations or for

conduct that would not result in an investigation if committed by a white deputy.” Id. ¶ 79.

       Defendant has moved for summary judgment as to class claims that it discriminated

against African-American Deputy Marshals in distributing awards, assignments, training, and

promotions, and in conducting internal investigations. Def.’s Mot. at 1. Defendant also moves

for summary judgment as to the individual claims asserted by Brooks for disparate treatment,

hostile work environment, and retaliation. The Court first considers the parties’ arguments and

legal standards as to the class claims and will then turn to consider Brooks’ individual claims.

Further relevant facts are provided below as necessary.



III.   ANALYSIS OF CLASS CLAIMS

       A.      Applicable Legal Standards

               1. Summary Judgment

       A motion for summary judgment should be granted only “if 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. R. Civ. P. 56(a). A dispute is “genuine” if “the evidence is such that a reasonable

jury could return a verdict” for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if it could reasonably affect the outcome of the case. Id.

       Where the movant does not bear the ultimate burden at trial, it need only satisfy the initial

burden of demonstrating the absence of evidence to support the nonmovant’s case. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the movant bears the ultimate burden of

                                                 3
persuasion, the movant must show the absence of a genuine issue of material fact by

demonstrating each element of its claim or defense by sufficient, competent evidence. Id. at 331

(Brennan, J., dissenting). Once the motion has been properly supported, the burden shifts to the

nonmovant to show that “the evidence is such that a reasonable jury could return a verdict” in its

favor. Anderson, 477 U.S. at 248.

       The nonmoving party must go beyond the allegations in his pleading and provide

“specific facts showing there is a genuine issue for trial.” Celotex, 477 U.S. at 324. To satisfy

the burden of providing specific facts, the nonmoving party must tender affidavits or other

competent evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). The factual record and inferences therefrom are generally viewed in the light most

favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

However, to be entitled to preferential review, the nonmoving party must respond with

competent evidence and cannot support its arguments on the basis of conclusory, speculative, or

inadmissible statements. 2 Celotex, 477 U.S. at 322 n.3. Further, the nonmoving party’s

evidence must be more than Amere reargument of its case or a denial of an opponent’s allegation@




2
       Furthermore, the court need only consider material clearly identified by the party asserting its
       relevance. Fed. R. Civ. P. 56(c)(3); see generally Thomas v. Wichita CocaBCola Bottling Co.,
       968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992) (“[The court] will not search
       the record in an effort to determine whether there exists . . . evidence which might require
       submission of the case to a jury.”); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
       (“Judges are not like pigs, hunting for truffles buried in briefs.”).

                                                   4
or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure '

2738 at 356 (3d ed.1998).

        Finally, not every disputed factual issue is material in light of the substantive law that

governs the case. AOnly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.@ Anderson, 477 U.S. at

248-50 (noting that if the evidence is Amerely colorable@ or Anot significantly probative,@

summary judgment may be granted).

                2. Teamsters framework

        Disparate treatment claims may involve “an isolated incident of discrimination against a

single individual, or . . . allegations of a ‘pattern or practice’ of discrimination affecting an entire

class of individuals.” Aliotta v. Bair, 614 F.3d 556, 562 (D.C. Cir. 2010). Plaintiffs here allege a

pattern or practice of discrimination. In International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977), the Supreme Court set forth a specific framework for pattern or

practice cases. The D.C. Circuit succinctly described the “liability” phase of the Teamsters

framework as follows:

        In the initial, or ‘liability,’ phase of a pattern or practice lawsuit, the analysis
        focuses on whether the unlawful discrimination has been the employer’s regular
        or ‘systemwide’ pattern or practice. In order to make out a prima facie case, the
        plaintiffs must . . . establish by a preponderance of the evidence that
        discrimination was the company’s standard operating procedure—the regular
        rather than the unusual practice. In this phase, the plaintiffs need not show each
        individual member of the class was a victim of the employer’s discriminatory
        policy, since proof of the pattern or practice supports an inference that any
        particular employment decision, during the period in which the discriminatory
        policy was in force, was made in pursuit of that policy.


                                                   5
Aliotta v. Bair, 614 F.3d at 562-63.

        “Once a prima facie case is established, the burden shifts to the employer to rebut

the inference of discrimination by showing the employees’ proof is either inaccurate or

insignificant.” Id. at 563. “[T]he employer’s defense must counter the [plaintiffs’]

showing of a discriminatory pattern rather than simply point out that the employer did not

discriminate against certain individuals, for the question is whether a pattern or practice

exists, not whether specific employees were subject to discrimination.” EEOC v. Intn’l

Profit Assocs., No. 01-C-4427, 2007 U.S. Dist. LEXIS 19070, at *24 (N.D. Ill. March 16,

2007); see also Teamsters, 431 U.S. at 360 n.46 (“The employer’s defense must, of

course, be designed to meet the prima facie case of the [plaintiffs] . . . The point is that at

the liability stage of a pattern-or-practice trial the focus often will not be on individual

hiring decisions, but on a pattern of discriminatory decisionmaking.”).

        If an employer fails to rebut the inference that arises from the plaintiffs’ prima

facie case, the district court may conclude that discrimination occurred. “[A] court’s

finding of a pattern or practice justifies an award of prospective relief,” such as an

injunction or court monitoring. Teamsters, 431 U.S. at 361 (internal quotations omitted).

        If plaintiffs seek individual relief for the victims of discriminatory practice, the

litigation proceeds to the “remedial stage where each class member must show individual

harm.” Aliotta v. Bair, 614 F.3d at 563. During this stage, “a district court must usually

conduct additional proceedings . . . to determine the scope of the individual relief.”

Teamsters, 431 U.S. at 361. By this point in a pattern-or-practice case, the plaintiff

                                                   6
would have already proved that the employer followed an employment policy of unlawful

discrimination. Id. Therefore, the plaintiff need only show that he or she was “a

potential victim of the proved discrimination,” and the burden then shifts to the defendant

“to demonstrate that the individual [class member] was denied an employment

opportunity for lawful reasons” and “not based on its policy of discrimination.” Id. at

363. “Any nondiscriminatory justification offered by the company will be subject to

further evidence by the [plaintiffs] that the purported reason for the [adverse employment

action] was in fact a pretext for unlawful discrimination.” Id. at 362 n.50.

               2. Class Certification – Adequate Representation Requirement

       “[A] Title VII class action, like any other class action, may only be certified if the trial

court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been

satisfied.” Falcon, 457 U.S. at 161. Under Rule 23, “a class representative must be part of the

class and ‘possess the same interest and suffer the same injury’ as the class members.” Wal-

Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting East Tex. Freight System, Inc.

v. Rodriguez, 431 U.S. 395, 403 (1977)). The Rule 23 requirement that a class representative be

an “adequate” representative often overlaps with the Court’s inquiry into a party’s standing since

a putative class member who did not suffer the same injury as the putative class lacks standing to

bring the class claim. Arnold v. Postmaster General, 667 F. Supp. 6, 20 (D.C. Cir. 1987).

        In employment discrimination class actions, “the mere fact that a complaint alleges racial

. . . discrimination does not in itself ensure that the party who has brought the lawsuit will be an

adequate representative of those who may have been the real victims of that discrimination.”

                                                  7
Rodriguez, 431 U.S. at 405. “Sometimes the issues are plain enough from the pleadings to

determine whether the interests of the absent parties are fairly encompassed within the named

plaintiff’s claim, and sometimes it may be necessary for the court to probe behind the pleadings

before coming to rest on the certification question.” Falcon, 457 U.S. at 160.

        “A party seeking class certification must affirmatively demonstrate his compliance with

[] Rule [23],” by presenting the court with facts that he meets the Rule’s requirements. Wal-

Mart Stores, Inc. v. Dukes, 131 S.Ct. at 2552. Therefore, a preliminary inquiry into the merits of

a pattern-or-practice suit is sometimes necessary to determine whether Rule 23 requirements are

satisfied. Id. Indeed, the Advisory Committee recognized that the district court may need to

allow for “discovery in aid of the certification decision,” even though such discovery might

overlap with the “merits discovery.” See Rule 23, Notes of Advisory Committee on 2003

amendments; see also Rodriguez, 431 U.S. at 405 n.12 (stating that “the decision whether the

named plaintiffs should represent a class is appropriately made on the full record”).

        If a specific plaintiff has not suffered the injury as a result of the alleged discriminatory

practice, then he or she is “simply not eligible to represent a class of persons who did allegedly

suffer injury.” Rodriguez, 431 U.S. at 405. This is because “[o]ne whose own claim is a loser

from the start knows that he has nothing to gain from the victory of the class, and so he has little

incentive to assist or cooperate in the litigation; the case is then a pure class action lawyer’s suit.”

Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir. 1999). “The point is not that

a plaintiff is disqualified as class representative if he may fail to prove his case or if the

defendant may have a good defense. . . . But if [a plaintiff’s] claim is a clear loser at the time he

                                                   8
asks to be made class representative, then approving him as a class representative can only hurt

the class.” Id. at 1158.

               3. Defendant’s Argument Regarding the Adequacy of Brewer and Reid to
                  Serve as Class Representatives is Not Premature

       Defendant moves for partial summary judgment as to claims that it discriminated against

the putative class members through its policies regarding awards, assignments, training, and

investigations. Def.’s Mot. at 1. Additionally, Defendant moves for summary judgment as to

some of the putative class claims alleging discriminatory promotions practices. Def.’s Mot. at

29.

       In its motion, Defendant does not attempt to refute the allegation that there has been a

pattern or practice of discrimination. See generally id. Instead, Defendant argues that the

“undisputed material facts demonstrate that the individual Plaintiffs have not suffered the injuries

that they allege, and therefore cannot prevail on those claims on their own behalf nor bring them

on behalf of similarly-situated members of a putative class.” Id. In other words, Defendant

contends that for claims related to awards, training, assignments, investigations, and promotions

Brewer and Reid (the only remaining putative class representatives) are inadequate class

representatives under Rule 23. Therefore, Defendants conclude, such claims should be

dismissed.

       Plaintiffs argue that Defendant’s motion for summary judgment is premature and focuses

on the wrong legal standards. Specifically, Plaintiffs contend that once a pattern or practice of

discrimination is demonstrated, Defendant must rebut a presumption of discrimination by using

“class-wide evidence.” Plaintiffs further argue that Defendant’s approach “inappropriately
                                                 9
focuses only on the merits of each individual claim,” the wrong legal standards for a pattern or

practice case. Pls.’ Opp’n at 5. Plaintiffs insist that that Defendant’s summary judgment motion

should have solely focused “on whether there is sufficient evidence demonstrating that

[D]efendant[] had in place a pattern or practice of discrimination during the relevant limitations

period.” Id. at 4.

       The parties’ disagreement as to the appropriate legal standard to apply to Defendant’s

motion for summary judgment stems from fact that the Court must apply the Teamsters

framework to the merits of Plaintiffs’ pattern-or-practice class claims, but prior to reaching the

merits must conduct a “rigorous” class certification analysis to ensure compliance with Rule 23

requirements, Although Plaintiffs are correct that the Teamsters framework applies to the merits

of a pattern-or-practice case, the Court need not wait until the merits of the class claims are fully

ripe to address whether Brewer and Reid are adequate class representatives. Indeed, in East

Texas Motor Freight System v. Rodriguez, an opinion delivered on the same day as Teamsters,

the Supreme Court held that class claims could not go forward where the record showed that the

putative class representatives had “suffered no injury as a result of the alleged discriminatory

practices,” and therefore “were not members of the class of discriminatees they purported to

represent.” 341 U.S. at 404-405. Indeed, Rule 23’s requirement that a putative class

representative be an adequate representative would make no sense if the trial court were not

allowed to determine in advance of a consideration of the merits whether the putative class

representatives have suffered the same injury as the putative class. Accordingly, the Court will



                                                 10
first determine whether a reasonable juror could conclude that Brewer and Reid suffered the

injuries alleged by the putative class.

        In making these determinations, the Court applies the Teamsters framework. 3 Because

discovery is still ongoing with respect to the class-wide evidence and no briefing has yet

occurred with respect to the liability stage, the Court assumes, without deciding, that Defendant

had discriminatory policies in place with respect to awards, training, assignments, investigations,

and promotions from 2007 to the present (the liability period). The parties have, however,

exchanged a substantive amount of discovery with respect to the alleged injuries of the

individual class representatives. Thus, the Court is well-equipped to determine the issues that

would arise at the remedial stage of the Teamsters framework. Accordingly, the Court will

assume that a discriminatory policy was in place and, while working under such an assumption,

asks if a reasonable juror could find that Brewer and Reid were denied an employment

opportunity for unlawful reasons. Teamsters, at 363. Any nondiscriminatory justification

advanced by Defendant will be considered in light of Brewer and Reid’s evidence that such a

justification is pretextual.4 Id. at 362 n.50.




3
        Brewer and Reid have not asserted individual claims relating to awards, training, assignments,
        and investigations, but rather have alleged only class claims. Accordingly, applying the burden-
        shifting framework for individual claims, commonly referred to as the McDonnell Douglas
        framework, would be inappropriate.
4
        In addition to any evidence of pretext that Plaintiffs may put forth, the Court also considers any
        request by Plaintiffs for additional discovery and whether such discovery might uncover evidence
        of pretext.
                                                   11
       B.      Awards

       Both Brewer and Reid allege that they were denied a Quality Step Increase (“QSI”), an

award that increases pay and provides “faster than normal progression through the steps of the

General Pay Schedule.” Am. Compl. ¶ 72. Brewer claims that during assignments in Louisiana

and North Carolina, he did not receive any QSI awards “while his white counterparts received

them.” Id. ¶ 126. Similarly, Reid alleges that she did not receive QSI awards while “similarly

situated white DUSMs were given QSI awards by their supervisors.” Id. ¶ 131.

       Defendant argues that Brewer’s claims are time-barred because his claims arose prior to

2005 and because he never exhausted his administrative remedies for such claims. Defendant

concludes that because Brewer has no timely claims for denial of a QSI, his award claim must be

dismissed. Def.’s Mot. at 12-13. Similarly, Defendant contends that Reid’s award claim should

be dismissed because her lack of a QSI award can be explained by the universal moratorium that

was placed on QSIs from 2004 through 2010. Id. at 13. According to Defendant, once that

moratorium was lifted on February 27, 2011, Reid received a QSI. Id.

       While Plaintiffs assert several arguments in response, none directly address Defendant’s

arguments. Pls.’ Opp’n at 35-36. Instead, Plaintiffs bring up new allegations that Brewer and

Reid were denied awards throughout their careers other than QSI awards, namely Director’s

awards, Attorney General’s awards, and cash awards. Id. at 35. These types of award are not

mentioned as part of the class representatives’ allegations in the Amended Complaint, and to the

extent that Plaintiffs now seek to amend their complaint to add such allegations, that request is

untimely and denied. Elkins v. District of Columbia, 690 F.3d 554, 565 (D.C. Cir. 2012)

                                                12
(“Undue delay is a valid reason to reject a party’s attempt to add a new theory of liability to a

complaint.”).

       Next, Plaintiffs’ argue that Defendant’s motion is premature because Brewer and Reid

need time to conduct discovery as to their awards claims. Id. at 36. “To obtain Rule 56(d) relief,

[Plaintiffs] must submit an affidavit which states with sufficient particularity why additional

discovery is necessary.” Cannon v. District of Columbia, 717 F.3d 200, 208 (D.C. Cir. 2013).

Among other things, this affidavit “must outline the particular facts [Plaintiffs] intend[] to

discover and describe why those facts are necessary to the litigation.” Id. Plaintiffs’ attorney

submitted an affidavit indicating that discovery is required to determine the factors considered by

decision-makers when giving out awards and the rates that those awards were given to white and

African American DUSMS. Pls.’ Opp’n, Ex. E (“Henderson Decl.”) ¶ 20. Plaintiffs’ attorney

also claims that more awards data must be discovered in order “to determine how the data might

be analyzed.” Id. ¶ 21.

       It is unclear to the Court how the additional discovery that Plaintiffs seek could

undermine Defendants’ arguments for summary judgment. Plaintiffs do not dispute that

Brewer’s QSI award claims arose prior to 2005. As such, Brewer’s QSI award claims arose prior

to the liability period and are not part of this lawsuit. See generally Mem. Op. (Aug. 23, 2013)

(limiting claims in this case to those arising in 2007 to the present). As for Reid, Defendants

offer evidence that QSI awards were suspended for all employees from 2004 until 2010, and

reinstituted in 2011, at which point Reid received the QSI award. Def.’s Mot., Exs. 32 and 33.

Reid does not contest this evidence or request additional time to procure discovery that would

                                                 13
contest this evidence. Reid does not, for instance, seek the opportunity to conduct further

discovery to refute that this universal moratorium was in effect or that this was the reason she

was deprived of a QSI. Nor does Reid suggest that the universal moratorium was put in effect

for discriminatory purposes. Thus, Reid stands nothing to gain from additional evidence

showing the rates of QSI awards for African-American differed from those for white Deputy

Marshals or the factors involved in issuing those awards. Because Plaintiffs do not point to

particular facts that they intend to discover which are relevant to addressing Defendants’

arguments, the Court declines Rule 56(d) relief with respect to the awards claim.

       Finally, Plaintiffs argue that the Court should reject Defendant’s arguments because

under Teamsters, Defendant are required to provide evidence refuting Plaintiffs’ allegations that

USMS has maintained a discriminatory awards policy. Pls.’ Opp’n at 36. As discussed above,

the Court assumes without deciding that Plaintiffs would have been successful in demonstrating

a pattern-or-practice as to USMS awards policies, and therefore presumes that Defendants’ QSI

award policy was discriminatory. But even assuming that the Defendant’s had a discriminatory

policy with respect to QSI awards, Defendant has demonstrated, for the reasons discussed above,

that neither Brewer nor Reid were victims of such a discriminatory policy during the relevant

time period.

       In sum, because Brewer has not alleged that he suffered a QSI award injury during the

relevant time period, he is not an adequate representative of a class of individuals who purport to

have suffered such an injury. Reid is also an inadequate representative under Rule 23 because,

even assuming that Reid did not receive a QSI award from 2004 to 2010, a reasonable juror

                                                14
could not find that she was injured because of a discriminatory awards policy given the universal

moratorium that was in effect as to QSIs. As such, the Court dismisses without prejudice the

class claims regarding awards.

       C.      Training

       Plaintiff Reid alleges that she was denied training opportunities that were afforded to

white Deputy Marshals while she worked in job series 082, in late 2003 and early 2004, and

while she worked in job series 1811, in 2008 and 2009. Am. Compl. ¶¶ 129,130. Defendant

argues that Reid’s allegations regarding denied training opportunities actually arose prior to the

liability period of 2007 to the present. Def.’s Mot. at 18. Defendant further contends that during

the liability period, “it is undisputed that Reid attended more than nine weeks—365 hours—of

training during a two year period.” Id.

       Plaintiffs contend that Defendant neglects to address Reid’s timely training claim arising

in 2008-2009. Pls.’ Opp’n at 7. Plaintiffs argue that under the “continuing violations” doctrine,

this timely training claim allows her to raise training claims that arose prior to the liability

period. Id. In response, Defendant argues that Reid’s timely training claim is a “bare-bones

allegation,” that fails to meet the pleading requirements of Rule 8. Def.’s Reply at 11.

       As a threshold matter, Reid’s claims arising prior to the liability period have already been

dismissed. The Court has previously rejected the application of the continuing violations

doctrine to this case. See Mem. Order (Aug. 23, 2013), Dkt. #159. Therefore, Reid’s 2003-2004

training claim is not actionable.



                                                  15
        With regard to Reid’s 2008-2009 training claim, Reid merely states that she was denied

“training opportunities that were afforded to [her white counterparts],” and gives no factual

allegations that would support such a claim. The Supreme Court has explained that, even at the

pleading stage, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Stated otherwise, “[w]hile legal conclusions

can provide the framework of a complaint, they must be supported by factual allegations.” Id. at

679. However, Reid’s declaration simply states that “upon information and belief,” she “was

denied critical training opportunities which were afforded disproportionately to white DUSMs.”

Reid Decl. ¶ 6. Reid does not identify any specific training opportunity that was denied to her,

even though that information would be readily available to her through her own memory and

experience. Indeed, Reid had no trouble identifying the specific training opportunities that were

allegedly denied to her in 2003-2004 in job series 082, yet she fails to do the same for the 2008-

2009 training claim. Furthermore, Plaintiffs do not identify further discovery regarding any

specific training opportunity which was denied to Reid. See White v. Hon Co., 2013 U.S. App.

LEXIS 6948, at *5-6 (3d Cir. April 5, 2013) (“‘Fishing expeditions’ to seek out the facts needed

to bring a legally sufficient complaint are barred by the pleading clarifications in Iqbal and

Twombly.”). In sum, Reid’s 2008-2009 training claim is not supported by any factual allegations

and is therefore not actionable. 5


5
        Plaintiffs again argue that the Court should reject Defendant’s arguments because under
        Teamsters, Defendant is required to provide evidence refuting Plaintiffs’ allegations that USMS
        has maintained a discriminatory awards policy. Pls.’ Opp’n at 38. However, even assuming that
                                                  16
        Because Reid’s training claims, both those arising prior to and during the liability period,

are not viable as a matter of law, she is not an adequate representative of a class of individuals

who purport to have suffered such an injury. Moreover, Brewer, the only other class

representative, does not advance any training claims. Accordingly, the Court dismisses without

prejudice the class claims regarding denial of training opportunities. See Rodriguez, 431 U.S. at

403.

       D. Assignments

               1. Brewer’s Assignment Claims

       Brewer alleges that he “has never been given the opportunity from anyone in

headquarters to lead a mission or special task force,” the type of assignment that Plaintiffs claims

is an “important experience to have when applying for promotions within the Marshals Service.”

Am. Compl. ¶ 123. Furthermore, Brewer claims that “[i]n September 2007, he was removed as

the commanding officer of the HIDTA Fugitive Task Force in Puerto Rico and replaced by a

white Deputy United States Marshal from outside the [Puerto Rico] District.” Id. ¶ 124. Brewer

also alleges that while he was in Louisiana between 1993 and 2001, he was only assigned to the

warrant squad once, whereas “[w]hite deputies in [the Louisiana District] were routinely rotated

onto [the] warrant squad ever[y] one to two years.” Id. ¶ 125.

       Defendant argues that Brewer’s assignment claims accruing between 1993 and 2001,

during Brewer’s assignment to Louisiana, are untimely. Def.’s Mot. at 19-20. Defendant further

challenges Brewer’s claim that he was removed as the commanding officer of the Puerto Rico

       the Defendant maintained a discriminatory policy with respect to training, Reid’s claims would
       not survive because they do not meet pleading and timeliness requirements.
                                                  17
Fugitive Task force. According to Defendant, Brewer was not removed from the Task Force, but

rather his responsibilities were expanded to include both the Task Force (which falls within the

ambit of “Enforcement” duties) and Court Operations. Defendant contends that this change does

not constitute an actionable assignment claim because Brewer retained his title as Assistant Chief

Deputy and his “supervisor authority grew from five USMS employees to at least a dozen,” and,

therefore, no adverse employment action occurred. 6 Id. at 20-21.

        Plaintiffs argue that Brewer’s 1993 to 2001 claims are covered by the continuing

violations doctrine and thus actionable. Pls.’ Opp’n at 26. Plaintiffs also assert that Brewer’s

removal from the Fugitive Task Force in Puerto Rico constituted an adverse employment action

because he was “stripped of all enforcement duties, including the more desirable responsibilities

of handling warrants in the Enforcement Division,” and was “denied the opportunity for

supervisory responsibilities in the reorganization.” Id. Plaintiffs argue that such “a reassignment

to a different task with lessened responsibilities . . . is actionable.” Id.

        The Court agrees with Defendant that Brewer’s 1993 to 2001 claims are not actionable

because, as previously explained, they are untimely and the continuing violations doctrine does

not apply. However, Brewer’s other assignment claims require closer consideration. As

previously explained, for purposes of this decision, the Court assumes that the USMS had in

place a discriminatory policy regarding assignments. Working under that assumption, the Court
6
        Defendant also challenges Brewer’s claim that he “has never been given the opportunity
        from anyone in headquarters to lead a mission or special task force.” However, the Court
        need not reach this issue because, as discussed below, the Court concludes that a genuine
        dispute of fact exists as to whether Brewer’s removal from the Fugitive Task Force is an
        adverse action. Because Brewer’s Fugitive Task Force claim is viable, he remains an
        adequate representative for the broader class claims regarding assignments.
                                                 18
must inquire whether a reasonable juror could conclude that Brewer suffered an objectively

tangible harm when Brewer was removed from the Fugitive Task Force in Puerto Rico. If the

answer is in the affirmative, then summary judgment is not appropriate and Brewer may continue

to serve as an adequate class representative as to the class assignment claim.

       “Whether a particular reassignment of duties constitutes an adverse action for purposes of

Title VII is generally a jury question.” Czekalski v. Peters, 475 F.3d 360, 365 (D.C. Cir. 2007).

A reassignment constitutes an objectively tangible harm (and therefore an adverse employment

action) if the reassignment leads to “materially adverse consequences affecting the terms,

conditions, or privileges of [an employee’s] employment opportunities or [his] future

employment opportunities.” Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003). A

reassignment or denial of assignment that does not affect an employee’s pay and benefits may

still constitute an adverse employment action if the reassignment or denial negatively affects

future advancement opportunities. Id. Furthermore, a reassignment that results in “significantly

different and diminished” supervisory and programmatic responsibilities may constitute an

adverse employment action. Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007).

       The parties disagree as to whether Brewer’s removal as the commanding officer of the

HIDTA Fugitive Task Force in Puerto Rico resulted in a reassignment that broadened his

supervisory duties to include both the Court Operations and Enforcement or whether it limited

his supervisory duties to only the Court Operations. Pls.’ Opp’n at 25. As Brewer recalls it, his

instructions upon reassignment were “not to oversee the Enforcement Section of the Task

Force,” and, instead, to “handl[e] court support in Operations.” Def.’s Mot., Ex. G (“Brewer

                                                19
Decl.”) ¶ 6. Defendant, on the other hand, maintains that while Brewer “no longer served on the

day-today-management of the Task Force,” he retained an “oversight role.” Def.’s Mot. at 21

(quoting Earp Decl. ¶ 12). Because diminished supervisory duties constitutes an adverse

employment action, and because there is a genuine dispute of fact as to whether Brewer’s

supervisory duties decreased as a result of his reassignment in Puerto Rico, Brewer’s assignment

claims are viable and survive summary judgment. Accordingly, Defendant has not demonstrated

why Brewer would be an inadequate representative to raise the class claims regarding

assignments. Therefore, the Court denies Defendant’s motion for summary judgment as to the

class assignment claims.

               2. Reid’s Assignment Claims

       Reid alleges that in 2008 she was denied an assignment as lead investigator in a high-

profile security case regarding an Assistant United States Attorney, and was instead assigned as

the lead investigator to less significant cases. Am. Compl. ¶ 130. In 2009, Reid claims that she

was denied an assignment involving the Presidential Inauguration. 7 Id.

       Defendant argues that the denial of these assignments do not constitute an adverse

employment action because they were not accompanied by salary changes or work hour changes.

Def.’s Mot. at 13. Defendant contends that Reid cannot show any injury from the denial of

either assignment denial since she was promoted to a GS-12 in 2008 and a GS-13 in 2009, as

soon as she was eligible. Id.

7
       Reid also alleges that in 2003 and 2004, she was discriminated against when she was denied
       assignment to a “COOP Team.” Am. Compl. ¶ 129. However, these claims fall outside of the
       liability period (2007 to the present) and need not detain the Court further. See generally Mem.
       Order (Aug. 23, 2013).
                                                  20
       Plaintiffs responds that the denial of the AUSA investigation assignment and the

Presidential Inauguration assignment amount to the deprivation of “career-enhancing

assignments that would have afforded her valuable experience.” Pls.’ Opp’n at 27. Instead,

Plaintiffs allege that Reid was assigned to “several insignificant assignments,” which, in turn,

“retards the advancement” of her career.

       As discussed above, an assignment or denial of assignment may constitute an adverse

employment action even if it has no effect on the employee’s pay and benefits. An adverse

action exists if the assignment decision led to “significantly different and diminished”

supervisory and programmatic responsibilities that affected future employment opportunities.

Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007); Stewart v. Ashcroft, 352 F.3d 422, 427

(D.C. Cir. 2003).

       Plaintiffs allege that Reid was affected by the denial of the AUSA investigation

assignment and the Presidential Inauguration assignment, as well as by her assignment to

insignificant tasks. However, Plaintiffs fail to show or even allege how these assignments

adversely affected Reid’s ability to advance within USMS hierarchy. Plaintiffs do not allege

facts, which if proven true, would support that these employment decisions adversely affected

Reid’s current or future career track. Iqbal, 556 U.S. at 678-79. Instead, Plaintiffs appear to

concede that Reid was promoted to the next GS level as soon as possible. Moreover, Plaintiffs

do not indicate that further discovery is required to determine whether these assignment

decisions constitute adverse employment actions. Because Reid fails to allege facts that would

convert the denial of the AUSA investigation assignment and Presidential Inauguration

                                                21
assignment into adverse employment actions, the Court finds that these claims are not actionable.

For these reasons, Reid’s assignment claims are not viable and she is not an adequate

representative for the class assignment claims. Insofar as Defendant’s motion argues the

inadequacy of Reid to serve as class representative for assignment claims, its motion is granted.

However, as noted above, the class assignment claims remain viable with Brewer as a putative

class representative.

               3. Defendant’s Subcategories for Assignment Claim

       Defendant argues that Plaintiff has erroneously lumped together various claims under the

label of “assignment.” Def.’s Mot. at 22-23. Specifically, Defendant divides assignments into

four categories: “(1) duties within an employee’s official position, (2) temporary duties outside

an employee’s official position, (3) collateral duties, and (4) promotions or transfers to ‘career-

enhancing’ positions.” Id. at 23. Defendant contends that the “different sorts of assignments

involve distinct policies and practical differences,” and therefore “cannot constitute one class

claim.” Id.

       Plaintiffs argue that Defendant has “improperly analyzed the claims in isolation and fails

to address Plaintiffs’ claims and evidence of a systemic pattern of discrimination.” Pls.’ Opp’n

at 27. Plaintiffs further contend that assignments are controlled by the same USMS policy that

leaves assignments up to the discretion of managers. Id.

       A class representative’s claims must be typical of other claims asserted by the other

members of the class, meaning that both the class representative’s assignment claims and the

class member’s claims must present common questions of law or fact. Falcon, 457 U.S. at 158-

                                                 22
59. At this juncture, however, the Court will not consider Defendant’s argument that Brewer’s

assignment claims are not typical of other class members. First, the Court finds flaws in

Defendant’s suggestion that assignment claims should be divided into these specific four

subcategories. More specifically, any given assignment may fall into more than one of

Defendant’s artificial subcategories. For instance, Brewer’s claim that he was improperly

removed from the Fugitive Task Force in Puerto Rico involves both issues of his day-to-day

official duties and, by Defendant’s own admission, temporary duties outside of his position.

Def.’s Mot. at 25 (acknowledging that Brewer’s allegation “about not being given the

opportunity to lead a task force or mission could fit within [subcategory 2]”). Second, Defendant

fails to cite any examples of courts that have rejected a class claim as non-typical, where the

class claim involved the same type of adverse employment action (i.e., promotion, termination,

non-hiring, or assignments). Third, while Defendant asserts that the subcategories of

assignments are controlled by different policies and practices, it fails to support this assertion

with any evidence. For these reasons, the Court concludes that the typicality issues surrounding

assignments are best determined after Plaintiffs move for class certification. Defendant’s

arguments regarding subcategories of the class assignment claim are therefore denied without

prejudice.

       E. Investigations

       Plaintiffs assert that the USMS has discriminated against the putative class by its “use of

allegations of misconduct and investigations.” Am. Compl. ¶ 75. Reid and Brewer do not raise

any claims regarding allegations of misconduct or investigations. Instead, in their Amended

                                                 23
Complaint, Plaintiffs raised an investigation class claim through former plaintiff and putative

class representative, David Grogan. Grogan voluntarily dismissed his individual and class

claims in May 2013, two months after Defendant had filed its motion for summary judgment.

Defendant’s arguments regarding Grogan’s investigation claim are, therefore, moot.

       Perhaps preempting the voluntary dismissal by Grogan, Plaintiffs’ response makes no

mention of Grogan and instead seeks to advance class investigation claims brought on behalf of

Plaintiff Brooks. Since the commencement of this litigation, Brooks has only asserted individual

claims. See generally Compl.; Am. Compl. In July 2013, however, Plaintiffs moved to amend

their complaint to add Brooks as a class representative. That motion is pending, and needs to be

resolved before the Court can rule on whether there is adequate class representation to bring an

investigation class claim. Accordingly, the Court defers ruling as to the investigation class

claims until Plaintiffs’ motion for leave to amend has been ruled upon.

       F. Promotions

       Defendant argues that neither Brewer nor Reid can show that he or she has been injured

by four particular aspects of the promotions system, and therefore moves to dismiss Plaintiffs’

promotion claims insofar as Plaintiffs are challenging those aspects. Def.’s Mot. at 31. Plaintiffs

respond that Brooks and/or Brewer have indeed been injured by these aspects of the promotions

system. Pls.’ Opp’n at 21-24. According to Plaintiffs, “[i]t is axiomatic in this Circuit that class

claims of non-promotion include the various components of the system.” Id. at 23. Moreover,

Plaintiffs argue that Defendant’s argument is really directed as to the typicality of the class

claims and is best addressed when ruling on Plaintiffs’ upcoming motion for class certification.

                                                 24
Id. at 23. Plaintiffs insist that their claims should be allowed as long as they are challenging “a

general discriminatory promotion process that injures class members in the same manner and

fashion, but under different factual circumstances.” Id. at 24.

       As with the class assignment claims, the Court believes that Defendant’s attempts to

parse out the promotion claim is best treated after Plaintiffs have moved for class certification.

The Court agrees with Plaintiffs that this is primarily an issue of typicality, as the Court must

determine whether common issues of fact or law weave through the four aspects of the

promotion system subcategorized by Defendant. Accordingly, the Court denies without

prejudice Defendant’s arguments regarding subcategories of the class promotion claim.



IV.    ANALYSIS OF BROOKS’ INDIVIDUAL CLAIMS

       James Brooks was hired by the USMS in 1990 as a DUSM. He rose up the ranks, and in

June 2007, assumed the position of Chief Deputy Marshal at the District of Columbia Superior

Court, a position he currently holds. Am. Compl. ¶ 150. Brooks commenced suit against the

USMS in 2008, asserting individual claims of disparate treatment, hostile work environment and

retaliation. Am. Compl. ¶¶ 150-166. Discovery has been conducted as to Brooks’ individual

claims, and Defendant now moves for summary judgment. Plaintiffs recently moved to amend

their complaint to allow Brooks to be a class representative. The Court will rule on that motion

separately, but believes it is nonetheless proper to rule on Brooks’ ripe individual claims since

such a ruling can impact whether amendment would be proper. See Rodriguez, 431 U.S. at 395



                                                 25
(holding that a plaintiff whose individual claims had failed was not an adequate representative of

class claims).

       A.        Brooks’ Disparate Treatment Claims

     Brooks claims that “since assuming the Chief Deputy position he has been denied

promotions and special assignments on the basis of his race.” Am. Compl. ¶ 151. Each of these

allegedly denied positions will be discussed in turn below. 8

                 1. Recruiting Officer

       Brooks claims that in May 2007 he was denied a promotion to be the Recruiting

Officer/Program Manager for Recruiting, a GS-15 position that was located in the Headquarters

for the USMS and that “would have provided a career-enhancing opportunity [for him] to

advance to the Senior Executive level.” Am. Compl. ¶ 153. Brooks alleges that “[u]pon

information and belief,” he was not selected because of his race and, instead, “a white male

employee with minimal supervisory experience was selected for the position.” Id.

       Defendant argues that Brooks has not asserted an adverse employment action because on

the same day that he was denied the Recruiting Officer position, he was promoted to be the Chief

DUSM of D.C. Superior Court, also a GS-15 position. Def.’s Mot. at 24. Defendant claims that

“the Recruiting Officer position does not involve greater responsibility than the [Chief DUSM].”

According to Defendant, the Recruiting Officer position supervises only “a handful of


8
       Defendant does not move for summary judgment as to Brooks’ claim that he was denied an opportunity to
       become an interim Marshal for D.C. Superior Court on May 26, 2010, or that, on July 1, 2010, he “was
       denied promotional opportunities with respect to MPA#10-076 (Criminal Investigator, IOD-Office of the
       AD, ARC) and MPA #10-077 (Supervisory Criminal Investigator, IOD-Office of the AD, ARC).” Am.
       Compl. ¶ 158. Accordingly, the Court does not address these claims.
                                                    26
employees, whereas, as the Chief DUSM in the D.C. Superior Court, Brooks is in charge of more

than a hundred employees.” Id. Defendant contends that Plaintiffs “have identified no evidence

that [the Recruiting Officer] position was meaningfully superior to [the Chief DUSM position].”

Id.

       A plaintiff claiming discrimination must show that he suffered an adverse employment

action. “[N]ot everything that makes an employee unhappy is an actionable adverse action.”

Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013). For instance, “public humiliation or

loss of reputation . . . have [been] consistently classified as falling below the requirements for an

adverse employment action.” Baird v. Gotbaum, 662 F.3d 1246, 1249 (D.C. Cir. 2011). To

qualify as materially adverse, the employer’s action must “be 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.” Id. at 1248-49

(internal quotation and citation omitted). “An employee must experience materially adverse

consequences affecting the terms, conditions, or privileges of employment or future employment

opportunities such that a reasonable trier of fact could find objectively tangible harm.” Id.

       Brooks states in his deposition and affidavit that the Recruiting Officer position, unlike

the Chief DUSM position, would have provided him with advancement to the Senior Executive

level. More specifically, Brooks claims that the experience he would have gained in the

Recruiting Officer position was “very valuable in applying for future promotions and in

completing the Executive Core Qualifications required for Senior Executive Service positions.”

Brooks further notes that the person who was ultimately selected as the Recruiting Officer later

                                                 27
became the U.S. Marshal for D.C. Superior Court and directly supervises Brooks. Brooks Decl.

¶ 4. Such evidence could lead a reasonable juror to conclude that Brooks experienced

“materially adverse consequences” from being promoted to Chief DUSM instead of Recruiting

Officer because the difference in the two positions affected “future employment opportunities.”

Although Defendant disagrees with Brooks, and insists that the supervisory responsibilities of

the Chief DUSM position were greater than those of the Recruiting Officer position, such a

disagreement is not one that this Court can resolve at the summary judgment stage. Celotex, 477

U.S. at 324. In sum, because Brooks’ sworn statements, when viewed in his favor, are sufficient

evidence to show that “there is a genuine issue for trial,” the Court denies Defendant’s motion

for summary judgment as to Brooks’ Recruiting Officer claim.

               2. Chief of Staff

       Brooks further alleges that in July 2008, he was denied a lateral transfer to the position of

Chief of Staff, in favor of a lesser qualified white employee, Sean Fahey. Am. Compl. ¶ 154.

According to Brooks, Fahey was a GS-14 and his only supervisory experience was supervising

less than ten people for under a year. In contrast, Brooks alleges he was a GS-15 who had “more

than [five] years [of] experience managing USMS employees.” Id.

       Defendant submitted declarations from Molly Lowry, the Chief of the Office of Merit

Promotion at the USMS, and John Clark, the then-USMS John Clark, Def.’s Mot., Ex. 14 (“Decl.

Lowry”); id., Ex. 4, (“Decl. Clark”), to show that USMS “hand-picked” Fahey to be his Chief of

Staff based on his “strong writing and crisis management skills.” Def.’s Mot. at 35. Defendant

argues that Brooks has not provided any evidence to suggest that this reason was pretext for

                                                28
discrimination. Id. Moreover, Defendant argues that “Brooks presents no evidence that he was

more qualified for the position than [Fahey].” Id. According to Defendant, supervisory skills

were not part of the job description, and, instead, the Chief of Staff would be required to give

“advice and assistance to the USMS Director and analyze and assess policy issues.” Id. Finally,

Defendant argues that Brooks has not shown that the Chief of Staff position was “sufficiently

superior” to his position as Chief DUSMS, so as to constitute an adverse action. Id.

       In response, Brooks argues that Defendant’s “purported reason” for his non-selection, i.e.

that Fahey was selected for his strong writing and crisis management skills, refers to

qualifications that were never part of the actual job posting. Pls.’ Opp’n at 16. Brooks contends

that Defendant “minimizes the importance of the qualifications listed in the vacancy, and

emphasizes the Director’s prerogative to choose whomever he wished.” Id. at 16 n.9. Brooks

argues that further discovery is required so that he may have the opportunity to depose the then-

USMS Director, John Clark. Id. Finally, Brooks argues that there is a genuine dispute as to

whether the denial of the Chief of Staff position constitutes an adverse employment action.

Specifically, Brooks points to the “evidence of the positive effect that a selection to Headquarters

can have on the trajectory of one’s career at the Marshals Service.” Id. at 16.

       As an initial matter, the Court is persuaded that a reasonable juror may conclude that the

denial of the Chief of Staff position was an adverse employment action. As with the Recruiting

Officer position, Brooks points to his own statements to support the notion that a Chief of Staff

position enhances the likelihood that one will be chosen for a Senior Executive level position. A

reasonable juror may credit such statements and conclude that Brooks experienced “materially

                                                29
adverse consequences” when he was denied a lateral transfer as a Chief of Staff because a

transfer to that position could affect “future employment opportunities.”

       The Court is less inclined to agree with Brooks’ argument that Clark’s deviation from the

strict language of the job description is evidence from which a reasonable juror could infer

pretext. “[T]he fact that an employer based its ultimate hiring decision on one or more specific

factors encompassed within a broader and more general job description does not itself raise an

inference of discrimination sufficient to overcome summary judgment.” Jackson v. Gonzales,

496 F.3d 703, 709 (D.C. Cir. 2007) (“[W]e are aware of no previous case from this or any other

circuit suggesting that an employee gets past summary judgment simply by showing that a factor

in the hiring decision was not expressly listed in the job description when the factor was

encompassed by the job description.). “[J]ob descriptions are often phrased in general terms, and

employers then make the ultimate hiring decision in light of more specific factors -- such as their

strategic priorities and goals at the time, the strengths and weaknesses of the applicant pool, and

the overall skills of and gaps in their existing workforce, among many other factors.” Id. at 708.

In sum, the Court does not believe that Brooks has shown sufficient evidence of pretext.

       However, given Brooks’ request to depose Defendant Clark, the Court finds that any

ruling on this issue would be premature. Defendant relies on Clark’s declaration to propound a

legitimate, nondiscriminatory reason for denying Brooks the Chief of Staff position, i.e. that he

did not have the same strong writing and crisis management skills as Fahey. Def.’s Mot. at 35

(citing Clark Decl. ¶ 12). Brooks should be given an opportunity to depose Clark before he is

forced to argue that Clark’s stated-reason is pretext for discrimination. Accordingly, the Court

                                                30
denies without prejudice Defendant’s motion insofar as it seeks summary judgment as to Brooks’

Chief of Staff claim.

               3. Acting U.S. Marshal for D.C. Superior Court

       Brooks alleges that in August 2008, he was denied a promotion as Acting U.S. Marshal

for the D.C. Superior Court, upon the resignation of the U.S. Marshal for D.C. Superior Court.

Am. Compl. ¶ 156. Brooks claims that it was USMS practice, upon the departure of the U.S.

Marshal in a given district, to appoint the Chief Deputy U.S. Marshal of that same district. Id.

Despite this alleged USMS practice, however, the Chief Deputy for Minnesota was appointed as

Acting U.S. Marshal for D.C. Superior Court.

       Among other things, Defendant argues that, as a matter of law, “not being placed in an

acting role is not an adverse employment action.” Def.’s Mot. at 36. Plaintiff retorts that the

Acting U.S. Marshal position would have “provided him with valuable experience for future

promotions into Senior Executive Service [] positions.” Pls.’ Opp’n at 17. Because Defendant is

correct, the Court must grant Defendant’s motion as to Brooks’ Acting U.S. Marshal claim.

       The D.C. Circuit has explained that “denial of a temporary designation is not one of the

terms, conditions, or privileges of employment contemplated by Title VII.” Stewart v. Evans,

275 F.3d 1126, 1135 (D.C. Cir. 2002) (citing Taylor v. FDIC, 132 F.3d 753, 764 (D.C. Cir.

1997)). “Therefore, ‘denial of an acting position - without showing some further harm - does not

by itself qualify as an adverse employment action.’” Bruder v. Chu, 2013 U.S. Dist. LEXIS

99948, 15-16 (D.D.C. 2013) (quoting Glenn v. Williams, 2006 U.S. Dist. LEXIS 8687 (D.D.C.

Feb. 21, 2006)). Because the Acting U.S. Marshal position is a temporary designation and

                                                31
because Circuit precedent precludes such a claim under Title VII, the Court grants Defendant’s

motion for summary judgment as to Brooks’ claim that he was denied the Acting U.S. Marshal

position.

                 4. Senior Executive Service

            Brooks alleges that in August 2008, he was denied a promotion as Assistant Director,

Senior Executive Service. Brooks claims that he “was equally or more qualified for the [Senior

Executive Service] position” than the four white employees who were ultimately selected. Am.

Compl. ¶ 155.

       Defendant argues that Brooks was not qualified to hold a Senior Executive Service post

at the time that he applied in 2008. Def.’s Mot. at 38. Defendant notes that a Senior Executive

must “possess certain executive qualifications,” and a candidate “may not be appointed until a

Qualifications Review Board convened by the Office of Personnel Management certifies that the

candidate meets the requisite qualifications.” Id. Brooks does not dispute that he did not have

the “executive core qualifications,” but argues that the only reason he could not meet these

requirements was because Defendant had deprived him of the opportunity to gain the requisite

experience in the first place, opting to give such opportunities to white employees instead. Pls.’

Opp’n at 19.

       A plaintiff pursuing a Title VII claim must establish, by a preponderance of the evidence

that he “was qualified for a job for which the employer was seeking applicants.” Teneyck v.

Omni Shoreham Hotel, 365 F.3d 1139, 1149-50 (D.C. Cir. 2004). However, the plaintiff need

only show that he was “substantively” qualified and does not need to satisfy “technical”

                                                 32
qualifications imposed by the employer. In Cones v. Shalala, 199 F.3d 512, 517-518 (D.C. Cir.

2000), the employer had refused to consider the plaintiff for a promotion despite his “substantive

qualifications,” because he was not a GS-15 and therefore not “technically qualified” for the

position. The D.C. Circuit rejected the employer’s argument that the plaintiff was not

“technically qualified,” explaining that such a “theory of ‘qualification’ would open a potential

loophole in Title VII” because “[a]gencies seeking to prevent minority employees from

advancing to higher level positions” could simply bar minority employees from attaining the

technical prerequisites. Id. Thus, it is sufficient for a plaintiff seeking to make out a Title VII

prima facie case to “establish that he was substantively qualified and that [the employer] selected

a white person.” Id.; see also Lathram v. Snow, 336 F.3d 1085, 1090 (D.C. Cir. 2003) (noting

that the Cones opinion “casts an additional shadow on [the employer’s] argument that [the

plaintiff] could not make out a prima facie case, even though she was substantively qualified,

because her lack of time as a GS-14 rendered her technically unqualified for the GS-15

position”).

       Defendant does not argue that Brooks lacked the substantive qualifications for the Senior

Executive Service position. Instead, Defendant argues that Brooks did not meet the “executive

core qualifications” necessary for the job. Def.’s Mot. at 38. However, Defendant does not

elaborate as to what these “executive core qualifications” are or how they relate to the

substantive qualifications that are necessary for the job. Without more information, the Court

cannot determine whether the “executive core qualifications” were mere technical hurdles or

whether they are part and parcel of the substantive job qualifications. Because, at this juncture,

                                                 33
the Court cannot determine whether Brooks was substantively qualified to do the job (as he

claims he was), the Court rejects Defendant’s argument that Brooks “cannot make out a prima

facie case as to [the Senior Executive Service] claim.” As such, Defendant’s motion for

summary judgment as to this claim is denied without prejudice.

               5. Chief of Sex Offender Investigations Branch

       Next, Brooks alleges that Defendant denied him the opportunity to apply for the newly

created position of Chief for the Sex Offender Investigations Branch. More specifically, Brooks

claims that Defendant failed to properly advertise through the Merit Promotions System and,

instead, appointed a white employee, David Harlow. Am. Compl. ¶ 157.

       Defendant argues, among other things, that Brooks has not alleged an adverse

employment action because the Chief of Sex Offender Investigations Branch position would

have just been a lateral transfer for Brooks and the “denial of a lateral transfer, without more, is

not an adverse employment action.” Def.’s Mot. at 39. Brooks replies by asserting that a lateral

transfer can constitute an adverse employment action if it results in a significant change in

responsibilities and/or benefits. Pl.’s Opp’n at 20.

       Brooks is correct that a lateral transfer may constitute an adverse employment action if it

significantly affects the employee’s responsibilities and/or benefits. Czekalski v. Peters, 475 F.3d

at 364. However, Brooks does not allege, much less demonstrate, how the position of Chief of

Sex Offender Investigations Branch would have significantly affected his responsibilities or

benefits. Instead he merely states the law. Accordingly, Brooks has not met his burden to show



                                                 34
by a preponderance of the evidence that he incurred an adverse employment action. As such, the

Court must grant Defendant’s motion for summary judgment as to this claim.

               6. Structured Interview Panel Placement

       Brooks alleges that he was “discriminatorily denied appointment to the Merit Promotion

Structured Interview Panel, a position in which he would conduct interviews of applicants for GS

14 and GS 15 positions.” Am. Compl. ¶ 159. Defendant argues that, as a matter of law, Brooks’

non-selection to the Structured Interview Panel is not an adverse employment action. Def.’s

Mot. at 39. Brooks does not respond to this argument. Accordingly, the Court deems it

conceded and grants Defendant’s motion with respect to this claim.

       B. Brooks’ Hostile Work Environment Claim

       Brooks alleges that, in May 2007, three white employees – Assistant Chiefs Gregory

Petchel and Stirling Murray and former Supervisor Robert Brandt – “initiated a campaign to

portray Mr. Brooks as an ineffective leader” for discriminatory motives. Am. Compl. ¶ 160. In

June 2007, Murray, Petchel, and Brandt allegedly created and disseminated a pamphlet stating

that Brooks’ “diminutive presence was felt everywhere,” portraying him as a coarse and

ineffective leader, and describing him as a “short, bald man.” Id. Brooks alleges that despite his

complaints regarding the actions of Murray, Petchel, and Brandt and his claims that they acted

with discriminatory motives, Internal Affairs declined to investigate the alleged creation and

dissemination of the pamphlet. Am. Compl. ¶ 162.

       Brooks further claims that Petchel, Murray, and Brandt “began a campaign to suggest

that Mr. Brooks had harassed a female employee, Sno Rush, in order to portray him as guilty of

                                                35
misconduct and generate an Internal Affairs investigation against him.” Id. ¶ 161. USMS’

Internal Affairs investigated Brooks for the alleged sexual harassment of Sno Rush.

Additionally, Brooks was investigated for allegations that he had made racist comments against

whites at a conference. Id. ¶ 164. Brooks believes that “these investigations were prompted by

false allegations” by Murray, Petchel, and Brandt. Id.

       Brooks argues that he was the victim of a hostile work environment because racist

hostility was “overlooked by [his] superiors and the division responsible for investigating

complaints, while anti-harassment policies were disingenuously enforced against [Brooks] and to

protect and insulate white DUSMS.” Pls.’ Opp’n at 42. Defendant argues inter alia that Brooks

has not shown any evidence that the Office of Internal Investigations was motivated by Brooks’

race in pursuing investigations or deciding not to pursue an investigation. Def.’s Mot. at 40.

       “To prevail on [a hostile work environment] claim, a plaintiff must show that his

employer subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.’” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (emphasis added). “To determine whether a

hostile work environment exists, the court looks to the totality of the circumstances, including

the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it

interferes with an employee’s work performance.” Id. Additionally, “[c]ourts in this District

have routinely held that ‘hostile behavior, no matter how unjustified or egregious, cannot support

a claim of hostile work environment unless there exists some linkage between the hostile

                                                 36
behavior and the plaintiff’s membership in a protected class.’” Nguyen v. Mabus, 895 F. Supp.

2d 158, 188-189 (D.D.C. 2012) (quoting Na’im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C.

2009)).

          Brooks’ hostile work environment claims is premised on Internal Affairs’ (1) allegedly

faulty investigation into claims that Brooks made racist remarks at a conference, (2) decision to

investigate allegations that Brooks had sexually harassed Rush, and (3) the failure to investigate

Brooks’ claim regarding the negative pamphlet about him. Brooks asserts, without any

evidentiary support, that the motives underlying such actions were discriminatory. However,

Brooks’ unsupported accusation that Internal Affairs acted with discriminatory motive in

pursuing some investigations and not others is not enough to defeat summary judgment. Mentzer

v. Lanier, 408 Fed. Appx. 379, 381 (D.C. Cir. 2010) (holding that hostile work environment

claim failed in part “because [the Appellants’] allegations are conclusory”). Because Brooks

simply does not provide any evidence from which a reasonable juror could infer that the

decisions to investigate or not investigate where prompted by his race, the Court grants

Defendant’s motion for summary judgment as to Brooks’ hostile work environment claim.

Penchion v. Fed. Express Corp., 2012 U.S. App. LEXIS 19821 (D.C. Cir. 2012) (affirming

summary judgment because inter alia “appellant failed to establish that the alleged behavior was

motivated by race”); Beshir v. Jewell, 2013 U.S. Dist. LEXIS 116202, 37-38 (D.D.C. 2013)

(“What is more, [plaintiff] has failed to link any of the allegedly hostile workplace experiences to

her race or sex and, therefore, has failed to demonstrate the kind of ‘discriminatory intimidation,

ridicule, and insult’ that is necessary to sustain her claim.); Lin v. Salazar, 891 F. Supp. 2d 49, 60

                                                 37
(D.D.C. 2012) (“For a Title VII hostile work environment claim to succeed, the objectively

offensive conduct must be connected to [discrimination based on a protected status].”).

       C. Brooks’ Retaliation Claim

         Brooks alleges that he has been denied promotions and assignments and subjected to

harassment and investigations in retaliation for his efforts to “create a more equal and fair

workplace for racial minorities.” Am. Compl. ¶ 166. Specifically, Brooks notes that as Chief of

the D.C. Superior Court, he “instituted a shift away from the discretionary policies governing

assignments, training, and awards that had resulted in a pattern of discrimination against African

American deputies; specifically, he created (1) a system to ensure that assignments were

available to all deputies on a rotating – rather than discretionary – basis; and (2) a training roster

to equalize the availability of training to deputies.” Id.

       Defendant argues that Brooks’ retaliation claim fails because he did not engage in

protected activity and instead “[s]imply follow[ed] the law and USMS policy on not

discriminating.” Def.’s Mot. at 43. Further, Defendant contends that there is no support that

Defendant retaliated against Brooks for his efforts to improve conditions for racial minorities,

but rather Brooks’ supervisors supported such efforts. Id.

       “To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made

unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3)

that the employer took the action ‘because’ the employee opposed the practice.” McGrath v.

Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012).



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       The parties contest whether Brooks “opposed a practice made unlawful by Title VII.”

Defendant argues that the use of discretion by supervisors, i.e. the policy that Brooks “opposed,”

is not necessarily a violation of Title VII. Def.’s Reply at 24. While this is may be true, it is also

the case that “giving discretion to lower-level supervisors can be the basis of Title VII liability

under a disparate-impact theory since an employer’s undisciplined system of subjective

decisionmaking can have precisely the same effects as a system pervaded by impermissible

intentional discrimination.” Wal-mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2554 (2011)

(internal quotations and citations omitted). Plaintiffs have not yet had an opportunity to fully

present their case regarding the alleged disparate-impact that the discretion of lower-level

supervisors created in the training and assignment opportunities for African-American Deputy

Marshals. Accordingly, it is too early to determine whether Brooks “opposed a practice made

unlawful by Title VII” when he insisted on giving out assignments and training in a more

standardized format.

       However, even assuming that Brooks opposed the discriminatory practice of USMS in

providing training and assignments, his retaliation claim must still fail. Brooks has provided no

evidence to support that USMS acted adversely against him because of his opposition to the

discriminatory practices in providing training and assignment practices. See McGrath v. Clinton,

666 F.3d at 1380 (explaining that one of the prima facie elements for a retaliation claim is that

the employer took the action “because the employee opposed the [discriminatory] practice”).

Brooks claims he was subjected to an internal investigation and denied promotions and special

assignments, but provides no evidence from which a reasonable juror could infer that USMS

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took these actions because of the changes that Brooks had implemented in providing training and

assignments to his subordinates. Accordingly, the Court grants Defendant’s motion for summary

judgment with respect to Brooks’ retaliation claim.

V. CONCLUSION

       For the foregoing reasons, the Defendant’s motion for partial summary judgment is

DENIED in part and GRANTED in part.

       SO ORDERED.

September 27, 2013




                                                                BARBARA J. ROTHSTEIN
                                                        UNITED STATES DISTRICT JUDGE




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