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Durant v. District of Columbia Government

United States Court of Appeals, District of Columbia Circuit

November 17, 2017

Earnest Durant, Appellant
v.
District of Columbia Government, Appellee

          Argued September 8, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00025)

          Anthony F. Shelley, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the briefs were Michael J. Satin and Amelia D. Hairston-Porter.

          Holly M. Johnson, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With her on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

          Before: Garland, Chief Judge, Wilkins, Circuit Judge, and Edwards, Senior Circuit Judge.

          OPINION

          Edwards, Senior Circuit Judge

         Appellant Earnest Durant, Jr. filed a complaint in the District Court against his former employer, the District of Columbia Department of Corrections, claiming violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17 (2012). Durant alleged that the Department of Corrections ("Department") retaliated against him for engaging in activities that were protected under Title VII and subjected him to a hostile work environment.

         After the close of discovery, the District of Columbia ("District") filed a motion for summary judgment, contending, inter alia, that Durant's retaliation claims concerning employment actions taken prior to October 2007 were barred because there was nothing in the record to indicate that Durant had filed a timely charge with the Equal Employment Opportunity Commission ("EEOC") or with the D.C. Office of Human Rights, as required by Title VII. See id. § 2000e-5(e)(1). The District also moved for summary judgment on Durant's retaliation claims based on employment actions taken after October 2007 and on his hostile work environment claims. The District Court granted summary judgment in favor of the District in full. See Durant v. Dist. of Columbia, 932 F.Supp.2d 53 (D.D.C. 2013). Durant, acting pro se, filed a timely notice of appeal. This court appointed Miller & Chevalier as amicus curiae to present arguments in support of Durant.

         We affirm the judgment of the District Court regarding Durant's retaliation claims relating to actions taken prior to October 2007. The District Court correctly found not only that Durant never responded to this portion of the District's motion for summary judgment but also that there was no evidence in the record that Durant filed any charge of discrimination that would have rendered the claims timely. "[T]he burden on a defendant moving for summary judgment may be discharged without factual disproof of the plaintiff's case; the defendant need only identify the ways in which the plaintiff has failed to come forward with sufficient evidence to support a reasonable jury to find in [his] favor on one or more essential elements of [his] claim." Grimes v. Dist. of Columbia, 794 F.3d 83, 93 (D.C. Cir. 2015). Because Durant failed to "present affirmative evidence" sufficient to show that a reasonable jury could return a verdict in his favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986), summary judgment for the District regarding the actions taken prior to October 2007 was proper.

         We also affirm the District Court's grant of summary judgment for the District on Durant's remaining retaliation claims arising out of events occurring after October 2007. A reasonable jury could not infer from the proffered evidence that the challenged employment actions might have "dissuade[d] a reasonable worker from making or supporting a charge of discrimination, " Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006), or that the Department's legitimate, nonretaliatory reason for Durant's termination was a pretext for retaliation, see Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). We further affirm the District Court's grant of summary judgment for the District on Durant's hostile work environment claims because there are no genuine disputes between the parties over the material facts that negate Durant's claims. Finally, we deny Durant's request to remand the case to the District Court to reopen discovery so that he can supplement the record with additional documents. Durant had ample opportunity during the trial court proceedings to obtain and present discovery in support of his claims, and he fails to explain how introduction of additional discovery would create a genuine dispute of material fact sufficient to overcome summary judgment.

         I. Background

         A. Factual Background

         Earnest Durant, Jr. began his career with the Department in July 1983 and was subsequently terminated on July 2, 2010. During his tenure at the Department, Durant was promoted to the position of Criminal Investigator, DS-1811-11, with the Department's Warrant Squad, whose headquarters were located at 300 Indiana Avenue NW. The Warrant Squad was responsible for obtaining warrants for, locating, and apprehending individuals who had escaped, been erroneously released, or absconded from the Department's custody.

         In the mid-1990s, Durant participated in a federal class action sexual harassment lawsuit against the Department. See Neal v. Dir., Dist. of Columbia Dep't of Corr., Civ. A. No. 93-2420, 1995 WL 517248 (D.D.C. Aug. 9, 1995). The case was tried before a jury, which ultimately found in favor of the plaintiffs after determining that the defendants had engaged in a pattern and practice of sexual harassment and retaliation in violation of Title VII and 42 U.S.C. § 1983. See id. at *9. For purposes of this appeal, the salient employment actions began several years later, in mid-2007.

         On June 14, 2007, Durant was placed on a two-month administrative leave pending the Department's investigation of allegations that Durant had used a Department Xerox copy machine for impermissible purposes and had permitted an unauthorized individual to enter the Warrant Squad's offices. Upon Durant's return to the Warrant Squad in August 2007, he was reassigned to work in a different building, the Office of Community Corrections located at 1923 Vermont Avenue NW, separate from the Warrant Squad's headquarters. He was transferred back to the Warrant Squad's offices at 300 Indiana Avenue N.W. in June 2009.

         On April 8, 2008, Durant's supervisor, Wanda Patten, issued Durant a "Letter of Admonition" for "specific deficiencies regarding [his] conduct and to warn [him] that future violations w[ould] result in corrective or adverse action." Appendix of Amicus Curiae ("A.A.") 493. According to the letter, on March 29, 2008 at approximately 9:45 p.m., a halfway house resident "escaped out of the front door of the facility." Id. Patten attempted to reach Durant on his Department-issued cell phone and left a message "informing [him] of the escape . . . and advising [him] to immediately respond." A.A. 494. Durant responded approximately nine hours later. Id. The Letter of Admonition advised Durant that because he was "the only investigator assigned to the Warrant Squad" at the time, he "should [have had] a heightened state of awareness concerning [his] response to all Warrant Squad incident notifications." Id.

         A few months later, on August 12, 2008, Durant filed a formal charge with the EEOC. A.A. 110. The EEOC assigned a charge number to the case, No. 570200800315. Id. The charge alleged that from June 1999 to August 2008, Durant was adversely treated by his employer in retaliation for his "protected activity (i.e., [having been] a class member in [Neal]), " which included being "stripped of [his] weapon on more than one occasion, " "placed on limited duties, " and "reassigned to another facility with little or no support." Id.

         On October 6, 2009, the U.S. Department of Justice issued a written notice to Durant regarding "EEOC Charge Against District of Columbia Department of Corrections No. 570200800315." A.A. 496. The notice stated that, because "more than 180 days have elapsed since . . . the [EEOC] assumed jurisdiction over the charge and no suit based thereon has been filed by [the Department of Justice], " Durant had the right to pursue a civil action under Title VII against the Department within 90 days of receipt of the notice. Id. Durant then commenced the instant action on January 6, 2010.

         Durant alleged additional claims of retaliation in a sworn EEOC charge dated March 6, 2010, including the previously described workplace grievances as well as the Department's suspension of his arrest authority, ongoing isolation, ...


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