BECKHAM v. NATIONAL RAILROAD PASSENGER CORPORATION

mmary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). B. Discrimination Claims

In this case, there are two distinct claims against Amtrak — race discrimination based on disparate treatment and retaliation due to prior protected activity. Each claim must be analyzed separately.

1. Disparate Treatment

Title VII prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin in hiring decisions, in compensation, terms, and conditions of employment, and in classifying employees in a way that would adversely affect their status as employees. See 42 U.S.C. § 2000e-16. Thus, a disparate treatment claim is established when an employer treats a member of a protected group less favorably than similarly situated others due to an impermissible motive. The case at hand is a disparate treatment suit. Compl. ¶ 16.

There are two distinct manners in which to establish liability in a disparate treatment claim.

The employee's theory may be that the sole reason for the adverse action was discrimination and that the employer's proffered legitimate reason for the adverse action was pretextual. Or she may pursue a mixed motive claim, in which she maintains that discrimination was one of a number of factors that motivated the adverse action. In a single motive case, the plaintiff has the burden of proving by a preponderance of the evidence that the reason offered by the defendant is not the true reason for the adverse action and that the real motivation was intentional discrimination. In other words, in a gender discrimination case, for example, the claim is that "but for" discrimination based on the employee's gender, the employer would not have taken the adverse action against her. By contrast, in a mixed motive case, the theory is that there may be a mixture of legitimate and illegitimate motives for an employer's action. Thus, the employee must prove by a preponderance of the evidence that she was terminated and that her sex . . . was "a motivating factor" for the adverse action. . . . When an employee proceeds on such a mixed motive theory, once the jury has found by a preponderance of the evidence that discrimination was "a motivating factor," then the burden shifts to the defendant to prove to the jury, also by a preponderance, that the defendant would have made the same decision even if discrimination had not been a factor.

Nuskey v. Hochberg, Civ. No. 06-cv-1573, slip op. at 2 (D.D.C. July 26, 2010).

See also Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010).

What is a pretext case? It is a circumstantial case in which the plaintiff prevails by showing that the reason or reasons given for the employer's adverse action were spurious, which requires no specific showing of illegal animus toward the employee, but only a showing that the employer's reasons are false or otherwise unsupportable. Because the employer is in the best position to explain the termination, the jury is entitled to infer discrimination once the employer's explanation is proven false. What is a mixed-motive case? It is a case in which, although reasons for discharge are valid, i.e., not pretextual, the plaintiff prevails by showing that, notwithstanding the validity of the employer's stated motives for its actions, still a factor — in combination with the valid factors — for the discharge was the motive to illegally discriminate. Given that the alleged pretextual motives are valid, this theory requires a showing of a specific illegal animus toward the employee that factored into the discharge, i.e., not "direct evidence," but evidence establishing specifically an illicit motive.

Id., at 339-40 (Jolly, J. dissenting) (emphasis in original).

In most cases, a plaintiff must first establish a prima facie case of racial discrimination by showing that "(1) [she] is a member of a protected class; (2) [she] suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Royall v. Nat'l Ass'n of Letter Carriers, 548 F.3d 137, 144 (D.C. Cir. 2008) (noting that the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies in employment discrimination cases). After a plaintiff puts forth a prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for the employer's action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).

In a disparate treatment suit, the D.C. Circuit has observed that it is usually not necessary to determine, at summary judgment, whether an employee presented a prima facie case of discrimination per McDonnell Douglas. In fact, once the defendant has "asserted a legitimate, non-discriminatory reason for the decision, the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas." Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). At this point the McDonnell Douglas framework melts away and the district court must only resolve whether the plaintiff has "produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin." Brady, 520 F.3d at 494; see also Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d 13, 17 (D.C. Cir. 2009) (noting that once defendant offers a non-discriminatory reason for employment action, "to survive summary judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory [or retaliatory] reason.") (quoting Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003)).

2. Retaliation

Title VII's anti-retaliation provision, on the other hand, makes it unlawful for an employer to "discriminate against any of his employees . . . because [s]he has opposed any practice" made unlawful by Title VII or "has made a charge, testified, assisted, or participated in" a Title VII investigation or proceeding. 42 U.S.C. § 2000e-3(a); see Steele v. Schafer, 535 F.3d 689, 695 (D.C. Cir. 2008). To establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in Title VII protected activity; (2) she suffered from a materially adverse action; and (3) a causal connection exists between the protected activity and the employer's action. Holcomb v. Powell, 433 F.3d 889, 901-02 (D.C. Cir. 2006) (citations omitted); see also Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69 (2006).

Retaliatory acts are not limited to harms or acts "that are related to employment or occur at the workplace." Burlington N., 548 U.S. at 57. However, the "antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Id. at 67. A plaintiff must show that the employer's actions "would have been materially adverse to a reasonable employee." Id. at 57. Furthermore, an employer's actions must be harmful to the point that they might dissuade a reasonable worker from making or supporting a charge of

discrimination. Id. at 68. The Supreme Court has emphasized that the employer's action must be "materially" adverse because the statute protects an employee from significant harms and does not protect an employee from "those petty slights or minor annoyances that often take place at work and that all employees experience." Id. Thus, an objective "reasonable person" standard applies in order to avoid judicial determination of a plaintiff's subjective feelings. Id. at 68-69.

However, the legal analysis applicable to claims of retaliation under Title VII — specifically mixed-motive retaliation claims — is now a subject of debate among the circuit courts. Compare Smith v. Xerox, 602 F.3d 320 (5th Cir. 2010) (allowing for mixed-motive retaliation claims), with Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962-63 (7th Cir. 2010) (noting with approval McNutt v. Board of Trustees, 141 F.3d 706, 709 (7th Cir. 1998), which prohibited mixed-motive retaliation claims). There is also an ongoing debate among the members of this Bench. Compare Nuskey, 06-cv-1573, slip op. at 5-6; with Beckford v. Geithner, 661 F. Supp. 2d 17, 25 n. 3 (D.D.C. 2009). The question is whether Gross v. FBL Financial Servs. Inc., 129 S.ct. 2343 (2009), a case involving a claim of discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., affects the analysis of Title VII's retaliation provision.

A little background will put the current debate into focus. The Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), "addressed the proper allocation of the burden of persuasion" in Title VII cases "when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations — i.e., a `mixed-motives' case." Gross, 129 S.ct. at 2347. Price Waterhouse first recognized mixed-motive cases and then established two important principles: (1) Title VII forbids discrimination "because of" gender, race, religion, etc., which means, when there are mixed motives, that an employee must prove by a preponderance of the evidence that discrimination was a substantial or motivating factor in the employer's decision, even though lawful motives also existed; but (2) it is a complete defense if the employer thereafter persuades the jury by a preponderance of the evidence that it would have taken the same action without regard to discriminatory animus. See Price Waterhouse, 490 U.S. at 252-53, 258. Congress approved the first of these points, but not the second.

A case involving a mixed motive arises when an employer has both a legitimate reason (such as poor work performance) and an illegitimate reason (discriminatory animus) for an adverse action. See Gross, 129 S.ct. at 2347. It is not when an employer has two illegitimate reasons. See Cross v. Small, Civ. Act. 04-1253, Mem. Op. [Dkt. # 123] (Mar. 11, 2010) at 1-2; but see Gross, 129 S.ct. at 2355 (noting that Hazen Paper Co. v. Biggins, 507 U.S. 604, 613 (1993), "indicated the `possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee's age and by his pension status,' — a classic mixed-motives scenario." (Stevens, J., dissenting)).

In response, Congress amended Title VII to "explicitly authoriz[e] discrimination claims in which an improper consideration was `a motivating factor' for an adverse employment decision." Gross, 129 S.ct. at 2349; see 42 U.S.C. § 2000e-2(m) ("an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice"). To address the second point, Congress added 42 U.S.C. § 2000e-5(g)(2)(B), providing that, in a case under 42 U.S.C. § 2000e-2(m) (a mixed-motive case), if the employer proves by a preponderance of the evidence that it would have taken the same action without regard to an impermissible motivating factor, the plaintiff is entitled only to declaratory relief, limited injunctive relief, and attorneys' fees and costs, but not to damages or reinstatement. See 42 U.S.C. § 2000e-5(g)(2)(B); see also Ginger v. District of Columbia, 527 F.3d 1340, 1345

(D.C. Cir. 2008); Fogg v. Gonzalez, 492 F.3d 447, 451 (D.C. Cir. 2007).

When Mr. Gross sued FBL Financial Services, he alleged that age discrimination was a motivating factor in his job change/demotion; the district court gave jury instructions that were consistent with the plurality opinion in Price Waterhouse. See Gross, 129 S.ct. at 2347 (noting that the jury was instructed to return a verdict for Mr. Gross "if he proved, by a preponderance of the evidence, that FBL `demoted [him] to claims projec[t] coordinator' and that his `age was a motivating factor' in FBL's decision to demote him."). The jury returned a verdict in Mr. Gross's favor. Id. The Eighth Circuit Court of Appeals reversed, finding that the jury instructions were infirm. Id. That Circuit followed the opinion of Justice O'Connor in Price Waterhouse, in which she had stated that "in order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision." Price Waterhouse, 490 U.S. at 276 (O'Connor, J., concurring) (emphasis added). The Supreme Court vacated the Eighth Circuit's decision and remanded. Gross, 129 S.ct. at 2352.

In a 5-4 opinion authored by Justice Thomas, the High Court could not "ignore Congress' decision to amend Title VII's relevant provisions but not make similar changes to the ADEA." Id. at 2349. Because of these new "textual differences between Title VII and the ADEA," the Court found itself prevented "from applying Price Waterhouse and Desert Place [Inc., v. Costa, 539 U.S. 90 (2003)] to federal age discrimination claims." Id. at 2349 n. 2. "The ADEA provides, in relevant part, that `[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.'" Id. at 2350 (quoting 29 U.S.C. § 623(a)(1)) (emphasis in original). "[T]he ordinary meaning of the ADEA's requirement that an employer took adverse action `because of' age is that age was the `reason' that the employer decided to act." Id. Thus, the Supreme Court concluded that to "establish a disparate-treatment claim under the plain language of the ADEA . . . a plaintiff must prove that age was the `but-for' cause of the employer's adverse decision." Id. In the end, "the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the `but-for' cause of the challenged employer decision." Id. at 2351.

Given the similarity between the language in the ADEA ("because of") and the retaliation provision of Title VII ("because"), "the Gross reasoning could be applied in a similar manner" to cases alleging retaliation under Title VII. Smith, 602 F.3d at 328. Nonetheless, the Fifth Circuit in Smith v. Xerox declined to apply the Gross reasoning because the Supreme Court has not reversed Price Waterhouse. Id. at 330 ("It is not our place, as an inferior court, to renounce Price Waterhouse as no longer relevant to mixed-motive retaliation cases, as that prerogative remains always with the Supreme Court."); but see id. at 338 n. 4 ( "Price Waterhouse addresses Title VII's

The retaliation provision in Title VII still reads:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this [subchapter], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this [subchapter].

42 U.S.C. § 2000e-3(a) (emphasis added).

discrimination provision, not Title VII's retaliation provision.") (Jolly, J., dissenting) (emphasis in original).

Judge Jolly filed a dissent in Smith v. Xerox Corp. He applied Gross to conclude that "the mixed-motive analysis is no longer applicable outside of Title VII discrimination, and consequently does not apply to this retaliation case" under Title VII. Id. at 336 (Jolly, J., dissenting). Judge Jolly wrote:

A careful and fair consideration of the principles underlying the decision in Gross would require the majority to grapple with two realities that mirror the very basis for the decision in Gross: (1) Title VII's retaliation section, at issue here, lacks the provision of Title VII's discrimination section that allows mixed-motive cases, and (2) Congress neglected, in 1991, to provide for motivating factor causation in Title VII retaliation even though it amended Title VII in other ways. . . .

The Supreme Court explained that the "careful[ly] tailor[ed]" amendments made to Title VII in 1991 should be read as limiting the mixed-motive analysis to the statutory provision under which it was codified — Title VII discrimination only, which excludes retaliation, the claim here. As the Supreme Court admonished, to read the 1991 amendments as generally blessing the Price Waterhouse analysis would "ignore Congress' decision" to provide motivating factor causation in only specific types of cases, not in all cases.

Id. at 337-38 (Jolly, J., dissenting) (emphasis in original) (citations omitted). Judge Jolly invoked the reasoning of the Seventh Circuit which has "twice explained, after Gross, [that] `unless a statute . . . provides otherwise, demonstrating but-for causation is part of the plaintiff's burden in all suits under federal law.'" Id. at 337 (emphasis in original) (quoting Serwatka, 591 F.3d at 961) (ADA); see also Fairley v. Andrews, 578 F.3d 518, 52-56 (7th Cir. 2009) ( 42 U.S.C. § 1983).

Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101- 12213 (2000).

Congress approved the "motivating factor" analysis from Price Waterhouse when it amended Title VII in 1991 to adopt that standard explicitly for mixed-motive cases. See 42 U.S.C. § 2000e-2(m). Now the Supreme Court has held that the failure to extend that language to the ADEA returns the reading of the ADEA to its "ordinary meaning" whereby "because of" means "age was the `reason' that the employer decided to act." Gross, 129 S.ct. at 2350 (citation omitted). The question is whether to extend the Gross analysis to Title VII's retaliation provision. The answer is both yes and no, depending on a plaintiff's allegations and the evidence.

This Court concludes that § 2000e-2(m) means just what it says: when an impermissible motive animates "any employment practice," even though permissible motives were also involved, "an unlawful employment practice is established." 42 U.S.C. § 2000e-2(m) (emphasis added). There can, therefore, be mixed-motive retaliation cases despite the "because" language in the statute. In a mixed-motive case, a successful employee must prove an illegal motive behind the employer's action; if the employer then proves that it would have taken the same action without regard to the illegal motive, the employee's recovery is limited to declaratory judgment, an injunction against further violations, and attorneys' fees. See 42 U.S.C. § 2000e-5(2)(B).

Several circuit courts have come to the conclusion that 42 U.S.C. § 2000e-2(m) does not apply to retaliation claims. See, e.g., Woodson v. Scott Paper Co., 109 F.3d 913, 933-35 (3d Cir. 1996); Tanca v. Nordberg, 98 F.3d 680, 682-85 (1st Cir. 1996); Marbly v. Rubin, Civ. No. 98-1846, 1999 U.S. App. LEXIS 19736, *6 n. 2 (6th Cir. 1999) (noting that other circuit courts have declined to extend 42 U.S.C. § 2000e-2(m) to retaliation cases). The D.C. Circuit, however, has not addressed the question. See Borgo v. Golden, 204 F.3d 251, 255 n. 6 (D.C. Cir. 2000).

This stands in contrast to the situation in which an employee alleges disparate treatment based on a single motive. As indicated above, an employer can defend by advancing a legitimate, non-discriminatory reason and the employee bears the ultimate burden of proving pretext. In such a case, the employee/plaintiff does not need to prove motive. The Gross analysis fits such a single-motive case: an employee must prove that "but-for" his or her protected status, the employer would not have taken the adverse action. This is commonly accomplished by demonstrating that the so-called legitimate, non-discriminatory reason given by the employer is pretextual, leading to an inference of illegal discrimination. This single-motive analysis and its "but-for" burden of persuasion can apply to both disparate treatment and retaliation cases, even though the scope of actions that may be retaliatory is broader.

The fact that Price Waterhouse has not been overruled is not determinative, because, as amended, Title VII does not present an either/or choice. Congress has decreed that a mixed motive infects any employment practice barred by Title VII just as straight-up discrimination does. The differences lie in the nature of the proofs and in the remedies.

Ms. Beckham alleges that "because of her race" and "because of her opposition to actions made unlawful by Title VII," Amtrak discriminated against her in the ways discussed above. See Compl., Counts I, II. These allegations and the evidence presented by the parties on summary judgment demonstrate that this is a "single motive" Title VII case. Therefore, to avoid summary judgment in Amtrak's favor, Ms. Beckham must present facts from which a reasonable jury could conclude that "but-for" her race, Amtrak would not have acted in the way she claims.

III. ANALYSIS

A. Alleged Race-Based Discrimination

In order to constitute an adverse action that is subject to redress under Title VII, an employee must experience, due to her protected status, 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." Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998)). "[M]ere idiosyncracies of personal preference are not sufficient to state an injury. Purely subjective injuries, such as dissatisfaction with a reassignment, or public humiliation or loss of reputation, are not adverse actions." Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002) (internal citations omitted). Therefore, "[a]n employment action does not support a claim of discrimination unless it has `materially adverse consequences affecting the terms, conditions, or privileges of [a plaintiff's] employment . . . such that a reasonable trier of fact could find objectively tangible harm." Ginger, 527 F.3d at 1343 (omission in original) (quoting Forkkio, 306 F.3d at 1131).

Despite the admonition in Brady v. Office of the Sergeant at Arms that district courts should not pause to examine whether a plaintiff established a prima facie case when an employer offers a legitimate, non-discriminatory reason for its actions, Amtrak protests strongly that none of the alleged "adverse actions" identified by Ms. Beckham was sufficiently serious to support a discrimination claim or to have had any harmful impact upon her at all. Therefore, the Court will analyze whether Ms. Beckham's claims involve an adverse employment action. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (proceeding directly to the Brady analysis may be premature and courts should first assess whether there is evidence of an adverse action where that fact is contested).

Ms. Beckham contends she suffered three adverse actions: denial of tuition reimbursement for her master's degree courses; denial of Dreamweaver II training; and denial of the ability to telecommute, while other White employees were allowed such opportunities. The record does not support these allegations. There is no evidence to support the entirely subjective argument that Amtrak's decisions to deny tuition reimbursement, deny Dreamweaver II training, or deny requests to work from home imposed such materially adverse consequences that one or more of such decisions affected the terms, conditions or privileges of her employment. See Ginger, 527 F.3d at 1343 (noting that an employment action does not support a claim of discrimination unless it has materially adverse consequences affecting the terms, conditions, or privileges of employment).

Ms. Beckham argues that she worked as Program Manager over the Amtrak Transportation Department Review System, a large IT program, and that one of the requirements of her position under the "Essential Functions" of the job description was that she "have the capability of functioning as a website administrator." Opp'n., Ex. 2 (Position Description). Further, she contends that the ability to function competently as a website administrator and have proficiencies in HTML, FrontPage and other software programs was a requirement of the position. See Opp'n. at 8, id. Thus, Ms. Beckham felt that the master's degree program was connected to her duties.

Amtrak contends that the Position Description that Ms. Beckham attaches to her opposition brief is inapplicable to any issue in this case because it is a Position Description for a Program Manager, which was not Ms. Beckham's job at the relevant time in 2004. Amtrak notes that the Position Description submitted by Ms. Beckham is dated May 2005, some nine months after her request for tuition reimbursement as a Senior Analyst. Amtrak also notes that all Internet functions for the Service Standards Manual were new functions in the job, added by Mr. Nogar in late 2004 just before hiring Ms. Sloane and Mr. Fox, but not performed by Ms. Beckham, who oversaw the intranet. See Def.'s Mem. at 5 n. 2. In fact, Ms. Beckham testified that she was a Senior Analyst from 2002 through 2007. See Beckham Dep. at 13-14; see also Compl. ¶ 4 ("[Ms. Beckham's] current job title [as of January 29, 2008, when the Complaint was filed] is Senior Analyst. . . ."); id. ¶ 6 ("Currently, Ms. Beckham is a Senior analyst in the office of Service Standards."); Def.'s Mot. to Dismiss [Dkt. # 5], Ex. 1 (EEOC Charge dated January 26, 2006) ("I am employed with Respondent as a Senior Analyst."). When Ms. Beckham applied for tuition reimbursement for a master's degree in "Business and Technology Management" on July 20, 2004, Def.'s Mem., Ex. 8 (Educational Assistance Application), she was a Senior Analyst and not a Program Manager. The Court concludes that the submitted Position Description is not relevant to Amtrak's denial of tuition reimbursement for a master's degree program.

"Q. And in approximately what year was this that you assumed the senior analyst job? A. It may have been 2002. . . . Q. Okay. How long did you hold or have you held the senior analyst position? A. Until 2007, I believe. 2007.").

Ms. Beckham does not know when her title changed but it was clearly after Amtrak denied her request for reimbursement for master's degree studies:

Q. You as an employee of Amtrak, did you have the same title after the Villa Julie course work reimbursement was denied?

A. No, I did not have the same title.

. . .

Q. And when did that title change occur?

A. I have no idea.

Q. Okay. So you don't know if it was around the time of this denial?

A. I know that it was changed.

Q. At some point subsequent?

A. That is correct.

Beckham Dep. at 53.

Ms. Beckham's Declaration and arguments contend that her relevant job title was not "Senior Analyst" but rather "Program Manager, Service Standards and Operations" where she managed the Transportation Department Review System and worked closely with Amtrak's IT department. See Opp'n. at 8; Beckham Decl. ¶ 6-7. Virtually every circuit, including the D.C. Circuit, has recognized the principle that a party cannot create a material fact in dispute by submitting an affidavit that conflicts with earlier sworn testimony in order to preclude summary judgment. See Pyramid Sec., Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991) (collecting cases); Galvin v. Eli Lilly Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (this principle is called the "sham affidavit rule"; a party may create an issue of material fact with contradicting testimony only if she can offer persuasive reasons for believing the supposed correction is more accurate than the prior testimony). Ms. Beckham does not offer a persuasive reason or clarification for the inconsistency in her testimony with regards to her job title. Thus, the Court may properly grant the motion despite the conflict. See id. Furthermore, while Ms. Beckham's job position may have been "Program Manager," as she states, at the time she executed her Declaration on June 7, 2008, see Beckham Decl., the critical issue is her job position at the time she applied for tuition reimbursement on July 20, 2004; as to this fact, the Court finds no dispute.

It is undisputed that Amtrak paid tuition reimbursement for Ms. Beckham's Bachelor of Arts degree while Mr. Nogar was her supervisor. Amtrak also paid tuition reimbursement for other courses including at least two writing courses and an Adobe Photoshop course, which Ms. Beckham enrolled in without pre-approval. Ms. Beckham testified that Amtrak's decision not to approve reimbursement for master's level courses at Villa Julie had no deleterious impact on her working conditions in Service Delivery, her compensation as a technical writer, or any other benefits of employment in the department. See Beckham Dep. at 53-54. "[N]ot everything that makes an employee unhappy is an actionable adverse action. Minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would otherwise form the basis of a discrimination suit." Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) (internal quotation marks omitted). There is nothing in the record to suggest that Amtrak's denial of Ms. Beckham's request for tuition reimbursement adversely impacted any terms or conditions of her employment

or that she was treated differently from any other Service Delivery employee. In fact, no Service Delivery employee had been approved for reimbursement for an advanced degree in at least eleven years.

Ms. Beckham also contends that denial of Dreamweaver II training was an adverse employment action. Amtrak argues that none of Ms. Beckham's duties required knowledge of Dreamweaver II, which is applicable to the functions of an external website, as Ms. Beckham's primary function was technical writing and her auxiliary function was maintaining the intranet. Def.'s Mem. at 21-22; Nogar Dep. at 95-96. The Court recognizes that Ms. Beckham and Amtrak disagree as to the relevance of Dreamweaver II to Ms. Beckham's duties. But "denial of training opportunities is only actionable if there is a resultant `material change . . . in employment conditions, status, or benefits.'" Dorns v. Geithner, 692 F. Supp. 2d 119, 133 (D.D.C. 2010) (quoting Lester v. Natsios, 290 F. Supp. 2d 11, 29 (D.D.C. 2003)). Therefore the "denial of training may rise to the level of an adverse employment action," Freedman v. MCI Telecomm. Corp., 255 F.3d 840, 845 (D.C. Cir. 2001), but the denial must "result[] in a tangible harm." Everson v. Medlantic Healthcare Group, 414 F. Supp. 2d 77, 84 (D.D.C. 2006). The alleged harm on which Ms. Beckham focuses is the supposed different treatment of two similarly situated co-workers: Ms. Beckham and Mr. Fox. But Ms. Beckham and Mr. Fox were not similarly situated because he was developing a new Internet site and she was overseeing the content on an existing intranet. In addition, Ms. Beckham fails to show any legally cognizable adversity that she suffered stemming from denial of access to one particular training course. It is clear that Ms. Beckham is unhappy that she did not attend Dreamweaver II, but there is an absence of evidence from which a reasonable jury could find tangible harm.

Ms. Beckham contends that Amtrak denied her the ability to telecommute approximately three times while others who were White were given this benefit. See Beckham Dep. at 59 ("Q. How often did you request [to work from home]? A. About three times."). Ms. Beckham averred that she "was never allowed to telecommute but believes Russell Fox was." Pl.'s Disputed Facts ¶ 6; Beckham Dep. at 63-64. Ms. Beckham further testified in deposition that Mr. Fox admitted to her that he was allowed to work from home because of personal business. Beckham Dep. at 64. However, Ms. Beckham did not contest Amtrak's arguments concerning her work-at-home record in her opposition brief and the Court considers the matter conceded. See LcvR 7(h) (facts set forth in motion for summary judgment are admitted if not controverted in response); see also FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997) ("It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded."). Furthermore, Ms. Beckham admits that Amtrak approved her requests for a different work schedule or location in the past. See Beckham Dep. at 65; see also Sloane Dep. at 74. Being denied the ability to work from home on, at most, three occasions is a minor annoyance, not an adverse action. Ms. Beckham suffered no cognizable injury or harm from Amtrak's challenged employment actions and her claim of discrimination based on disparate treatment fails.

B. Alleged Retaliation

Ms. Beckham also contends that Amtrak retaliated against her for engaging in protected activity due to her involvement as a named plaintiff in the 1998 McLaurin class action. It is undisputed that her involvement in a class action constituted protected activity. See Def.'s Mem. at 23 n. 8. Measured from when the last order dismissing McLaurin was entered on November 26, 2004, Amtrak's challenged actions in July 2004 and the Spring of 2005 might be close enough in time to support an inference of discrimination. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (finding that a plaintiff may rely on temporal proximity to prove causation, but such proximity must be "very close"). The Court makes no findings of fact or legal conclusions on this point, however, because Ms. Beckham fails to argue it and no details about the suit or its resolution are provided in the record.

Time lags of more than three months can be too long to show retaliatory causation. Breeden, 532 U.S. at 273-74 (20-month lag too long to demonstrate causation, citing with approval O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (3-month lag too long)); Sullivan-Obst v. Powell, 300 F. Supp. 2d 85, 94 (D.D.C. 2004) (same).

Ms. Beckman relies on the same three denials of tuition reimbursement, Dreamweaver II training, and telecommuting to allege retaliation based on her protected conduct. The legal questions are (1) whether Ms. Beckham has presented evidence from which a jury could conclude that her prior protected activity was the "but-for" reason for these Amtrak decisions, i.e., were she not a McLaurin class member, Amtrak would have approved these requests, see Gross, 129 S.ct. at 2353; and (2) whether Ms. Beckham has presented evidence from which a jury could conclude that a reasonable employee would have found the denials of her requests materially adverse so as to dissuade such employee from future protected activity. See Burlington N., 548 U.S. at 68.

Ms. Beckham offers no facts to support her contention that the denial of tuition reimbursement and Dreamweaver II training was "because of" her participation in a class action that settled in 1999 with a consent decree that continued in effect until 2004. Instead, she accuses Amtrak and Mr. Nogar of "mendacity" based on the 2005 Position Description for a job that Ms. Beckham, by affidavit, says was hers at some unspecified time but which her EEOC Charge, her Complaint, and her deposition testimony demonstrate was not her job at the relevant time. See Compl. ¶¶ 4, 6; Beckham Dep. at 14; Def.'s Mot. to Dismiss [Dkt. # 5], Ex. 1

(EEOC Charge dated January 26, 2006). Even were the proffered Position Description applicable to Ms. Beckham in 2005, in contradiction to the 2006 EEOC Charge and the 2008 Complaint, it was not her position when she requested tuition reimbursement in July 2004. See supra n. 16. Amtrak's Educational Assistance Program required advanced degrees to be related to an employee's current job. The perceived relevance of the master's degree course work to Ms. Beckham's management of the Transportation Department's Review System, in or after 2007, does not make that connection. Thus, Ms. Beckham fails to show any evidence from which a jury might find that "but-for" her participation in McLaurin, Amtrak would have paid for her master's degree courses.

Amtrak has also proffered a legitimate non-discriminatory reason for its denial of Dreamweaver II training: Ms. Beckham's work duties did not include the Internet website and the intranet, for which she was responsible, was not based on Dreamweaver. Except for her accusation of "mendacity" connected to the irrelevant Position Description, Ms. Beckham offers nothing to support her burden of persuasion that her involvement in McLaurin was the "but-for" reason that Amtrak denied her a second Dreamweaver training course. Notably, Ms. Beckham makes no argument that the Dreamweaver II training was relevant to her position as a Senior Analyst, the job she actually held at the relevant time. Summary judgment is properly granted against a party who "after adequate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. Ms. Beckham relies solely on allegations of mendacity and conclusory statements, which are insufficient to withstand summary judgment. Greene, 164 F.3d at 675. The Court recognizes there could well be fact patterns in which the denial of tuition reimbursement and/or specialized computer training would be materially adverse and could dissuade an employee from further protected conduct. But no such fact pattern is shown here.

Ms. Beckham further, and lastly, offers no basis to conclude that her membership in the McLaurin class played any part in Amtrak's request to Mr. Fox that he work at home occasionally on a project requiring a quiet work environment or its denial of her request to work from home on one to three occasions, much less that "but-for" her participation in the lawsuit, Mr. Fox would have been required to work in a noisy area with interruptions and/or that she would have been able to stay at home. Certainly, the occasional denial of a request to work from home, when other requests from the same employee have been granted, does not constitute a materially adverse action. As Ms. Beckman makes no rejoinder to Amtrak's arguments on these points, they are conceded. See LCvR 7(h); FDIC v. Bender, 127 F.3d 58. For these reasons, Ms. Beckham's claims of retaliation fail.

IV. CONCLUSION

The Court will grant Amtrak's motion for summary judgment [Dkt. # 35]. The direct discrimination claim fails for lack of a true adverse action. The retaliation claim fails for lack of evidence. A memorializing Order accompanies this Memorandum Opinion.