Manuel v. Potter

685 F.Supp.2d 46

H. Alexander MANUEL, Plaintiff,

v.John E. POTTER, Postmaster General, U.S. Postal Service, Defendant.

Civil Action No. 07-2127(RBW).

United States District Court, District of Columbia.

Decided: Feb. 17, 2010.

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David H. Shapiro, Ellen K. Renaud Swick & Shapiro, P.C., Washington, DC for Plaintiff.

Christopher Blake Harwood, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

Plaintiff H. Alexander ("Alex") Manuel brings this action against the Postmaster General of the United States Postal Service ("Postal Service") in his official capacity, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C §§ 2000e-2000e-17 (2006) ("Title VII") Complaint ("Compl") ¶¶1, 9-12, on the basis that the Postal Service, an agency of the United States government and his employer, engaged in discriminatory employment practices against him based on his race (African-American), id. ¶¶ 9-10, and national origin (Japanese), id., retaliated against him after he engaged in statutorily protected activity, id. ¶¶ 11-12, and constructively discharged him from his position, id. ¶ 9. This matter is currently before the Court on the defendant's Motion For Summary Judgment ("Def.'s Mot") which the plaintiff opposes, Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("PL's Opp'n"). After carefully considering the parties' pleadings, the defendant's motion and the plaintiff's opposition, and all memoranda of law and exhibits submitted with these filings, ¹the Court concludes the defendant is entitled to summary judgment on all of the plaintiff's claims.

I. BACKGROUND

Viewing the evidence in the light most favorable to the plaintiff, the facts are as follows.

The plaintiff is a former employee of the Employment and Labor Law Section (the "ELL Section"), Law Department, of the Postal Service. PL's Opp'n, Exhibit ("Ex.") 16 (Declaration of H. Alexander Manuel) ("Manuel DecL") ¶ 6. The plaintiff an African-American male of Japanese ancestry, Compl. ¶ 4, was an attorney with the Postal Service for five years, beginning in 2002 and ending with his resignation in March of 2007. PL's Opp'n, Ex. 16 (Manuel Decl.) ¶¶1, 5. The plaintiff initially accepted a contract position with the Postal Service's Capital Metro field office in Washington, D.C., before being offered a career position at the ELL Section at the Postal Service's Headquarters. Id. ¶¶ 5-6. The ELL Section is headed by a Managing Counsel, who oversees its three units, each managed by a Chief Counsel. Def.'s Mem., Ex. E (ELL Section General Information). During the time period covered in this complaint, the plaintiff's first-line supervisor was Stephan Boardman, Chief Counsel of the Labor Relations unit, and his second-line supervisor was Eric Scharf, Managing Counsel of the ELL Section. Def.'s Stmt. ¶¶ 2-3.² As a member of the ELL Section, the plaintiff worked in the labor relations unit, representing the USPS in negotiations, arbitrations, and federal court litigation. PL's Opp'n, Ex. 1 (Deposition of Stephan Boardman) ("Boardman Dep.") at 80. Before com- mencing his employment at the Postal Service, the plaintiff worked as an attorney for over twenty years, practicing in both the public and private sectors. PL's Opp'n, Ex. 16 (Manuel Decl.) ¶¶2-3, 5.

The incident precipitating the plaintiff's engagement in protected activity occurred in approximately early December, 2004.³At that time, the plaintiff was preparing for an arbitration hearing with labor relations Technical Assistant Marty Welles. PL's Opp'n, Ex. 4 (Deposition of Herman A. Manuel) ("Manuel Dep.") at 6-7. The plaintiff and the other Postal Service attorneys assigned to work on the arbitration instructed Mr. Welles to deliver documents to a witness residing in Prince George's County, Maryland. Def.'s Mem. (Deposition of Courtney Wheeler) at 28. Welles refused to make the delivery, and when pressed for an explanation, purportedly stated, "I'm not going to go into that neighborhood with those people." PL's Opp'n, Ex. 4 (Manuel Dep.) at 7.⁴ Further, Mr. Welles commented that it would be more appropriate for the plaintiff to go to the neighborhood to make the delivery. Id. Feeling unpleasant about the remark and that it was "understood by everyone" to be inappropriate, id. at 11, he reported the incident to Mr. Boardman the following morning, Def.'s Stmt. ¶ 6. According to the plaintiff, he also told Mr. Boardman at that time about a prior incident in which Mr. Welles allegedly displayed "Black Sambo" cartoon images at a Postal Service slideshow presentation at an earlier year's conference.⁵ Pl's Opp'n, Ex. 4 (Manuel Dep.) at 18-20. After reporting the incident, the plaintiff attended two meetings with Messrs. Boardman, Scharf, and Kevin Rachel, Mr. Welles' supervisor. Def.'s Stmt. ¶ 7. During the second meeting, the three supervisors "stated that Mr. Welles' statement was 'improper' and 'regrettable, ' and asked [the][p]laintiff how he wanted to proceed." Id. ¶ 8. The plaintiff responded "that it was not [his] purpose to bring a claim against anyone, or anything along those lines, '" but only to ensure "that Mr. Welles 'did his job... and that [a similar incident did not] happen again, '" id. (citations omitted). Thereafter, Mr. Welles was called into the meeting to apologize to the plaintiff, which he did, Def.'s Stmt. ¶ 9, the two shook hands, and the plaintiff "told [Mr. Welles that he] accepted his apology" and indicated that he did not intend to pursue further action against Welles or the Postal Service, Pl's Opp'n, Ex. 4 (Manuel Dep.) at 27-28. The plaintiff believed that his supervisors "initially" handled the matter well and thanked them, id. at 30, however, no written record was made to document the incident or the oral reprimand Mr. Welles received. PL's Opp'n, Ex. 1 (Boardman Dep.) at 161.

After reporting the incident (the "Welles incident"), according to the plaintiff, he suffered detrimental career consequences. Compl. ¶ 7. To begin with, the plaintiff claims that after the Welles incident, he never again received a bonus while other attorneys in his department did, PL's Opp'n, Ex. 4 (Manuel Dep.) at 125, receiving his last cash award on February 4, 2005, for his work on the Stone litigation. Def.'s Stmt. ¶ 50.

In addition, the plaintiff claims that he received fewer training opportunities than his colleagues. PL's Opp'n, Ex. 4 (Manuel Dep.) at 110. Specifically, during the 2005-2006 rating period, the plaintiff received only 33.25 hours of training, while four other attorneys under Mr. Boardman's supervision received 35.25, 56.75, 55.25, and 62.25 hours of training respectively.⁶ Def.'s Stmt. ¶¶ 20, 23. The plaintiff stated that his "colleagues attended seminars and legal events that [he] was never presented as an opportunity," PL's Opp'n, Ex. 4 (Manuel Dep.) at 110, but concedes that he was offered the opportunity to attend the National Academy of Arbitrators 2006 Annual Meeting, a "valuable" training event, but declined the invitation because of scheduling conflicts, id. at 122-23.

Further, the plaintiff contends that after reporting the Welles incident, his supervisors expressed concern about the quality of his "writing." PL's Opp'n, Ex. 16 (Manuel Decl.) ¶ 16. For example, in November 2005 the plaintiff was assigned to conduct the arbitration hearing and draft the post-hearing brief in the "Sunday premium" remedy case. Def.'s Stmt. ¶ 37. On November 14, 2005 Mr. Boardman reviewed the plaintiffs briefing sheet and assessed it as "below par." Pl's Opp'n, Ex. 8 (Boardman Email Nov. 15, 2005) at 1. According to the plaintiff, Mr. Boardman's review focused on style, formatting, and subjective criteria. PL's Opp'n, Ex. 4 (Manuel Dep.) at 155-56. After the plaintiff submitted his first draft of the legal brief Mr. Boardman reviewed it critically, noting perceived deficiencies in "substance], style, and appearance," and concluding that "I recommend you buy a good book on writing/composition and take a writing course." PL's Opp'n, Ex. 8 (Boardman Email Feb. 24, 2006) at 1, 3. Mr. Boardman ultimately made "substantial" revisions to the brief before filing it with the arbitrator. Def.'s Stmt. ¶ 62.

In a similar vein, the plaintiff asserts that although he disagreed with Mr. Boardman's criticism of his writing, he agreed to take "an on-line American Law Institute course on writing" at his own expense. PL's Opp'n, Ex. 16 (Manuel Decl.) ¶¶ 15-16. Mr. Boardman believed that the two-hour online course was insufficient and maintains that the Postal Service would have paid for an upper level writing course if the plaintiff had sought the necessary approval. See Def.'s Mem. (Affidavit of Stephan Boardman) ¶ 25; id., Ex. O (Scharf Email Jan. 8, 2007) (approving payment for a District of Columbia Bar advanced writing course).

The plaintiff also contends that after reporting the Welles incident, he was not promoted "to the Career Executive Service." Compl. ¶ 7. Specifically, in October 2005, the plaintiff submitted an application for placement on the Postal Service's Succession Planning List, the process by which employees are considered for Postal Career Executive Service positions. Def.'s Stmt. ¶ 14. As Managing Counsel, Mr Scharf was charged with submitting a written evaluation of the plaintiff indicating whether he supported the plaintiffs candidacy for several management positions. Def.'s Stmt. ¶ 15; Def.'s Mem., Ex. J (Manuel's Postal Career Executive Service Application) at 3. Although the plaintiff claims that Messrs. Scharf and Boardman initially gave him a "positive" evaluation and Mr. Boardman communicated to him that that he would support his application for a promotion, Pl's Opp'n, Ex. 16 (Manuel Decl.) ¶ 7, Mr. Scharf did not make the recommendation. Def.'s Mem., Ex. J (Manuel's Postal Career Executive...