Ginger v. District of Columbia

477 F. Supp. 2d 41 (2007) United States District Court for the District of Columbia 2007-03-05

civil; reverse race discrimination, retaliation and hostile-environment claims by eight police canine officers over a unit-wide reorganization; defendants' renewed motion for summary judgment granted (result: claimant-lost)

Facts

1 Covered entity: employer, employment agency, or labor organization satisfied conceded
Plaintiffs are eight District of Columbia Metropolitan Police Department officers employed in the Canine Unit of the Special Operations Division.
2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin not no-evidence
Plaintiffs James E. Ginger, Paul E. Hustlar, Michael J. Lewis, Bernard D. Richardson, Mark W. Wood, Robert M. Wigton, and Roy Potter are white.
2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin not no-evidence
Plaintiffs allege that the reorganization occurred because of a perception that Squad 2 was “too white” and because of a concern about how the media would react to a mostly white squad whose victims were mostly black.
2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin not no-evidence
The analysis also revealed that Squad 2, which was involved in the majority of the bites, had a racial makeup that is predominantly white male — 6 out of 7 officers and the sergeant are white males.
2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin not no-evidence
In reverse discrimination cases, a plaintiff must do more than simply show that he is white in order to make out the first prong of a prima facie case of discrimination.
2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin not no-evidence
To demonstrate background circumstances, a plaintiff must provide evidence from one of the following categories: (1) evidence indicating that the employer “ ‘has some reason or inclination to discriminate invidiously against whites’ ”; or (2) evidence indicating that “ ‘there is something “fishy” about the facts of the case at hand that raises an inference of discrimination.’ ”
2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin not no-evidence
The fact that concern about race relations plays into decision making at a macro level when developing policies on how to reorganize a police unit is not sufficient to support the suspicion that the Metropolitan Police Department is the unusual employer that discriminates against the majority.
4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied triable
An employee suffers an adverse employment action if he experiences “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.”
4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied triable
Prior to the reorganization, all plaintiffs worked the midnight shift on a permanent basis and received the night differential (4% of the officer’s base pay).
4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied triable
In addition, plaintiffs argue that they lost overtime opportunities when they were forced to work rotating shifts because they could not routinely testify in court during the day.
4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied triable
Moreover, plaintiffs were precluded from maintaining other part-time work and incurred additional expenses for childcare that they did not incur prior to the reorganization.
4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied triable
Similar to Freedman, it is hard to say that a change from a permanent midnight shift to a rotating shift where one’s schedule changes every month is not a change in the conditions or privileges of employment sufficient to constitute an adverse employment action.
5 Discriminatory causation ("because of" protected trait) not no-evidence
On March 6, 2003, Cathy Lanier, Commander of the Special Operations Division, issued a memorandum announcing that the MPD was going to reorganize the Canine Unit so that all canine officers would work five eight-hour shifts per week instead of four ten-hour shifts and would rotate through different shifts instead of being assigned to a permanent day or night shift.
5 Discriminatory causation ("because of" protected trait) not no-evidence
In this case, all officers in the Canine Unit were equally affected by the reorganization in that all officers were required to work rotating shifts regardless of race.
5 Discriminatory causation ("because of" protected trait) not no-evidence
an employee alleging discrimination based on changed conditions or terms of employment must make some sort of showing that the change affected him in some way different from other employees.
5 Discriminatory causation ("because of" protected trait) not no-evidence
If every single employee in a racially diverse Canine Unit faces the same change in the terms and conditions of his employment after a reorganization, there are no “distinctions or differences in treatment.”
5 Discriminatory causation ("because of" protected trait) not no-evidence
They point to evidence that higher level police officials were concerned about the racial make up of the squads when they decided to undertake the reorganization and that those officials took race into account when realigning the squads.
5 Discriminatory causation ("because of" protected trait) not no-evidence
Given that some sort of different treatment is at the heart of a discrimination claim, plaintiffs’ arguments fail.
9 Severe or pervasive hostile or abusive working environment not no-evidence
A workplace is hostile for purposes of Title VII only when “the workplace is permeated with 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.”
9 Severe or pervasive hostile or abusive working environment not no-evidence
(1) a drawing placed on Squad 2’s locker that depicts members of the squad as KKK members and has written on the bottom “The Good 01’ Day’s”; (2) the words “KKK,” “Whitey Rules,” or “The Good 01 Boy Squad” written on the chalkboard; (3) receiving Nazi salutes from coworkers; (4) silent treatment by other officers;
9 Severe or pervasive hostile or abusive working environment not no-evidence
Whether considered in isolation or taken together, these incidents do not provide sufficiently severe or pervasive conduct to support a hostile work environment claim.
9 Severe or pervasive hostile or abusive working environment not no-evidence
Plaintiffs do not allege that any of these incidents were physically threatening, nor do they provide any information about the frequency with which these incidents occurred.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
In order to make out a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a statutorily protected activity; (2) the employer took an adverse action against him; and (3) there is a causal connection between the two.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
There is no dispute that plaintiffs engaged in a statutorily protected activity when they filed a complaint with the EEOC on April 21, 2003.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
None of these allegations are sufficient for plaintiffs’ retaliation claim to survive summary judgment.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
Plaintiffs cannot show a causal connection between the shift changes that the entire unit faced and the filing of their EEOC complaint.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
Plaintiffs do not dispute that the decision to rotate shifts was announced on March 6, 2003, a month and a half before they filed their EEOC complaint.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
This investigation did not occur until over a year and a half after the plaintiffs filed their EEOC complaint and a year after the first complaint was filed in this Court.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
The mere initiation of an investigation into a plaintiffs conduct is not an adverse employment action when it has no effect on the plaintiffs employment.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
Moreover, plaintiffs do not dispute that none of the investigations into their conduct that occurred after the reorganization have resulted in discipline or suspension.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
First, the allegation would only result in disciplinary action if Officer LaGrand were to receive two additional allegations at some point in the future.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
Officer Wood was never even required to attend the class.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
Even assuming that requiring employees to take days off in the middle of the week when they previously had at least one weekend day off could be considered an adverse employment action sufficient to make out a prima facie case of retaliation, plaintiffs have failed to provide evidence that the Department’s legitimate, non-discriminatory reasons for assigning weekdays off were pretextual.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
The plaintiffs do not dispute that, following the reorganization, the Canine Unit suffered shortages of officers on the weekends.
11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
Plaintiffs provide no evidence that they were forced to have days off in the middle of the week when other officers were not.