Full opinion text
OPINION DAVIS, District Judge. OPINION SUMMARY: None of plaintiffs’ claims survive summary judgment. Despite the sheer multitude of allegations, plaintiffs are unable to produce a scintilla of direct evidence of intentional racial discrimination or retaliation. Thus, all of plaintiffs’ intentional racial discrimination and retaliation claims must satisfy the well-known burden-shifting proof paradigm common to federal employment discrimination jurisprudence. With few exceptions, plaintiffs are unable to establish a prima facie case of intentional racial discrimination or retaliation. At virtually every turn, the record shows that any inference of intentional racial discrimination or retaliation is fatally undercut by facts demonstrating either or both that (1) non-African American officers and officers who have not filed discrimination charges are subjected to the same alleged “employment injuries” as are plaintiffs, and (2) other African American officers enjoy the full range of benefits and privileges of employment as do non-African Americans. Moreover, even in those few instances in which a prima facie case is otherwise established, plaintiffs either (1) suffered no cognizable “employment injury” under Fourth Circuit case law, (2) failed to rebut defendants’ showing of legitimate, non-discriminatory reasons for the disputed acts, or (3) failed to support with admissible evidence, non-conclusory factual allegations sufficient to sustain their burden to show that race (or retaliation) was the true motivation for any of defendants’ acts. Consequently, notwithstanding plaintiffs’ sincerely held subjective beliefs that defendants targeted them for disparate treatment, a dispassionate and objective analysis of the summary judgment record, consonant with controlling legal principles, refutes their beliefs as a matter of law. Plaintiffs’ hostile work environment claims fare no better than their intentional racial discrimination and retaliation claims. With but one exception, the acts and omissions plaintiffs point to as constituting abusive and harassing conduct tending to create a racially hostile work environment have no racial nexus whatsoever. As a matter of law, moreover, the facially neutral acts plaintiffs find subjectively unwelcome and hurtful are (1) the normal incidents of supervision (and supervision — even aggressive and unfriendly supervision — does not equate to harassment), or (2) viewed objectively, as they must be, acts which are episodic and sporadic in character so as not to support a rational inference that a reasonable member of plaintiffs’ protected class would find his or her workplace environment so abusive as to alter the terms and conditions of employment or interfere with one’s ability to perform the duties of a police officer. Accordingly, defendants are entitled to summary judgment on all claims. Contents I. INTRODUCTION.975 II. UNDISPUTED FACTS ESTABLISHED IN THE SUMMARY JUDGMENT RECORD.976 III. SUMMARY JUDGMENT STANDARDS.983 IV. LEGAL STANDARDS APPLICABLE TO PLAINTIFFS’ CLAIMS.984 A. TITLE VII AND 42 U.S.C. § 1981 .984 1. Preliminary Observations.984 a. No Cognizable Pattern and Practice Claims Are Before the Court.986 b. Plaintiffs’ Statistical Evidence Lacks Probative Value and is Inadmissible.986 c. Many of the Plaintiffs’ Allegations Do Not Constitute Material Adverse Employment Actions and Are Therefore Not Cognizable 987 d. Defendants’ Violations of Department Regulations Are Neither Independently Cognizable Nor Substantially Probative.989 2. Disparate Treatment/Discrete Act.990 a. Disparate Discipline.991 b. Disparate Investigations for the Purpose of Imposing Discipline.992 3. Disparate Treatment/Hostile Environment.993 4. Retaliation.994 5. Retaliatory Harassment.994 B. HARRIS’S CONSTITUTIONAL CLAIMS.994 1. First Amendment Claims.994 2. Equal Protection Claims.995 V. APPLICATION OF LAW TO THE UNDISPUTED FACTS.995 A. DISPARATE TREATMENT CLAIMS.995 1. Discipline and Disciplinary Investigations.990 a. Settle.996 b. Harris.996 c. Settle and Harris.998 2. Training Opportunities.999 3. Scheduling Days Off.1001 B. HOSTILE ENVIRONMENT CLAIMS.1003 1. The “noose”.1004 2. AVL Monitoring.1005 3. Damage to Harris’s “Post Car”.1005 4. Threatened Removal of Settle from his “Post Car”.1005 C. RETALIATION CLAIMS .'.1006 1. Traditional Retaliation .1006 a. Transfers From Western Traffic.1006 b. Removal of Harris from His “Post Car”.1008 c. Intensity of Disciplinary Investigations.1009 2. Retaliatory Harassment.1009 VI. CONCLUSION.1010 I. INTRODUCTION Plaintiffs Calvin Westley Settle (“Settle”) and Keith Harris (“Harris”) are African American officers in the Baltimore County Police Department (“the Department”). They have filed separate actions against Baltimore County and several present and former supervisory officers alleging discrimination based on race and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Harris also alleged a conspiracy claim under 42 U.S.C. § 1985 and constitutional claims under 42 U.S.C. § 1983 for deprivation of his rights to freedom of speech and association and equal protection under the First and Fourteenth Amendments to the United States Constitution. By order dated August 29,1997,1 consolidated these cases for the purposes of discovery, with a view to a likely joint trial. The close interrelationship of the plaintiffs’ claims and their factual bases make it sensible to adjudicate the pending motions for summary judgment in one opinion, and I do so here. Defendants have filed motions for summary judgment as to all claims on a multitude of grounds. The parties’ exhaustively-briefed submissions have been carefully considered, and no hearing is necessary. Local Rule 105.6 (D.Md.1997). After setting forth the undisputed facts established by the parties’ submissions (section II), I shall proceed to explicate the legal framework and doctrinal backdrop from which the plaintiffs’ myriad claims arise (section IV). Specifically, I shall analyze separately the legal principles underlying the plaintiffs’ Title VII (and § 1981) claims, to wit: (1) disparate treatment/discrete act; (2) disparate treatment/hostile environment; and, (3) retaliation. Thereafter, the legal framework of Harris’s constitutional claims is briefly considered; those claims are not further discussed because they are manifestly without merit or simply redundant of the statutory claims. Finally, in section V, I shall apply the law to the undisputed facts as to the above three categories of claims. For the specific reasons stated in section V, I shall grant defendants’ motion for summary judgment. II. UNDISPUTED FACTS ESTABLISHED IN THE SUMMARY JUDGMENT RECORD The facts are many. I will, of course, present the plaintiffs’ versions of the facts wherever the parties’ evidence conflicts, at least to the degree that plaintiffs’ allegations have support in affidavits, depositions or other admissible documentary evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The summary judgment record includes many unsworn statements taken from, inter alia, rank and file police officers who worked in the same unit as the plaintiffs (among other witnesses). These statements were generated during various internal investigations conducted by the Department (including investigations of discrimination complaints made by plaintiffs) and the parties have asked the court to consider them in connection with the pending summary judgment proceedings, notwithstanding the failure of these statements to conform to Rule 56 standards. While I shall accede to the parties’ requests in these regards, I pause for a moment to register my displeasure at being asked to do so. Rule 56 serves a salutary purpose: within the framework of the procedural and evidentiary rules relevant to a trial before a jury, it allows the court to perform its screening function appropriately. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987)(“Recent cases of the Supreme Court have made increasingly clear, however, the affirmative obligation of the trial judge to prevent ‘factually unsupported claims and defenses’ from proceeding to trial.”)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, supra; Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Apparently, the parties here have not wished to assume the full cost and expense of conducting proper discovery as contemplated by Fed.R.Civ.P. 26, et seq. Regrettably, this inability and/or refusal to frame the factual issues appropriately can only ultimately harm the plaintiffs as the parties bearing the burden of projecting admissible evidence sufficient, if believed, to establish their claims by a preponderance of the evidence. Inexplicably, with only one or two exceptions, plaintiffs have not taken discovery from any non-party witnesses. Rather, much of their ostensible “proof’of the existence of the alleged broad-based, deeply-ingrained racially discriminatory and racially hostile practices on the part of their supervisors consists of their own prior statements and allegations that such discrimination existed. Thus, in the absence of any direct evidence that their supervisors are bigots, the chain of inferences on which the plaintiffs rest their claims is extraordinarily tenuous, indeed, as will be made clear. While I understand and am sympathetic to the reality that, even under the best circumstances, direct proof of discriminatory intent is exceptionally difficult to obtain, this difficulty does not relieve plaintiffs of the burdens of production imposed by Rule 56 and the well-established legal regime for analyzing employment discrimination claims for purposes of summary judgment. With these observations in mind, I proceed to give an account of the facts in the light most favorable to the plaintiffs as such facts are properly supported by the record. 5*; ‡ Hí Settle and Harris have been employed by the Department since September 1985 and October 1981, respectively, and they continue to be so employed. During various times relevant to this case (though not presently), defendant Michael Darrell Gambrill (“Chief Gambrill”) was the Chief of the Department, Settle and Harris worked in the Western Traffic Division (‘Western Traffic”) under the direct supervision of defendant Sergeant Ronald Earp (“Sgt.Earp”) and Lieutenant Paul Franzoni (“Lt.Franzoni”), who at most times relevant to this case was a sergeant. Sgt. Earp and Lt. Franzoni, as plaintiffs’ first level supervisors, are alleged to be the principal discriminating actors in respect to the plaintiffs’ allegations. During periods relevant to the issues presented, defendant Lieutenant Minda Foxwell (“Lt.Foxwell”) held supervisory positions in the chain of command. Defendant Captain Howard Hall (“Capt.Hall”) also held a supervisory position within the relevant chain of command at the Department during the times relevant to this ease. During 1993 and 1994, defendant Major Mary K. Ward (“Maj.Ward”), then a captain, was in charge of the Department’s Internal Affairs Office (“IA”). As such, she exercised general supervisory responsibility over investigations of wrongdoing by sworn officers, whether the underlying complaints were made by persons outside or inside the Department, and including complaints of unlawful employment practices. It is appropriate to note at the outset that there were several African American officers other than the plaintiffs in Western Traffic throughout the relevant period. One or two of those officers have expressed strong dissatisfaction with the manner in which certain decisions were made and/or implemented, and indeed, at least one of them has also instituted employment discrimination claims in this court. Nevertheless, the defendants have submitted overwhelming evidence that the majority of African American officers in Western Traffic were of the view that it was a workplace reasonably free of race-based animus or disparate treatment based on race. Officers Victor Williams, Robert Speed and Charles Dunning were similarly situated non-supervisory African American officers who have attested to the lack of any racial animus on the part of supervisors in Western Traffic during the relevant period. Cpl. Randy Brashears is an African American supervisor who not only attests to the lack of any racially-identifiable disparate treatment, but who also expressed criticisms of Settle for his below average enforcement activity (discussed infra), which criticisms are largely identical to criticisms leveled at Settle by white supervisors. Brashears also sustained the imposition of discipline on Harris. Moreover, the Department’s Fair Practices Liaison, Det. Brian Matthews, who from time-to-time was involved in the handling of the plaintiffs’ many allegations of racially disparate treatment, is an African American. Det. Matthews specifically concurred in the command decision, described infra, to transfer plaintiffs from Western Traffic to other assignments in 1996. Finally, Col. Johnny Whitehead, an African American of high rank, was also consulted and involved in the command decision-making regarding the plaintiffs. Thus, although there is an insulting hint in Settle’s deposition that other African American officers may have been enlisted to aid in the alleged scheme hatched by whites to destroy his career, see Settle Dep. at 64 (suggesting that Brashears rated Settle in accordance with instructions from someone else, presumably a non-African American supervisor), a fact finder would not be presented in this case with a scenario in which African American employees are isolated from sources of support in a work environment dominated by persons outside the same protected class. In any event, the record reveals that the workplace environment within Western Traffic was for several years overrun with a debilitating racial tension. The papers before the court seem to trace the commencement of this regrettable saga to a 1989 IA investigation of Harris, of which he learned only in May 1990. Starting in January 1989, IA conducted an investigation of Harris based upon suspected misconduct by Harris arising from his alleged association (apparently starting in 1987) with another black officer and other persons who were involved in drug trafficking activity. Internal Affairs determined that the suspicions of Harris were unsubstantiated, but the fact of the investigation is noted in Harris’s personnel file. On or about August 13,1990, Harris filed a charge with the EEOC alleging a hostile environmenf/race discrimination claim in connection with the 1989 IA investigation. By letter dated April 8, 1991, the EEOC determined, after a review of the merits, that “[t]he evidence shows [Harris] was not harassed.” Baltimore County received its copy of the EEOC determination on April 10, 1991; Harris denies, however, that he received a copy of the letter or the necessary right-to-sue notice in relation to this original charge. By letter dated May 28, 1996, Harris requested and ultimately received another right-to-sue notice based on the 1990 charge. The second right-to-sue notice was issued on September 16, 1996, shortly after Harris instituted this action, and he filed an amended complaint to include the 1990 allegations as grounds for relief in this case. As elaborated upon herein, the original Harris IA investigation, inter alia, provides a remote backdrop to the myriad claims asserted in this case. Several seemingly unrelated events, the truth and accuracy of which Settle and Harris seem to have come to believe or accept by early 1993, provide more immediate background to the filing of the first EEOC charge by Settle on March 2, 1993. First, in or about May 1992, Sgt. Earp, who was responsible for making the officers’ schedules, altered Settle’s permanent days off from Sunday and Monday to Wednesday and Thursday. Settle objected to this change. At the same time, according to Settle, Earp allowed a less-senior white officer, Officer Gregory, to retain Sunday and Monday as his days off. Second, later that year, in December 1992, Settle observed Sgt. Earp in possession of a device which Settle regarded as a “noose” and which is described infra. Settle was offended by this observation (it brought to mind America’s legacy of racial lynchings), and he regarded Sgt. Earp’s possession of this item as an act of racial harassment tending to create a hostile work environment in Western Traffic for African Americans. Third, during 1993, as Settle and Harris learned later, Sgt. Earp attempted to monitor the on-duty movements and locations of Settle, Harris and other African American officers using the Department’s Automatic Vehicle Locator (“AVL”). The AVL is a computer system which allows a police radio dispatcher to view a system map to locate an officer’s vehicle. It is activated by a dispatcher upon request, and it is generally used to locate a vehicle, inter alia, only when the safety of an officer is in question. Use of the AVL is not apparent to the officer whose location is being monitored. Plaintiffs assert that this action by Sgt. Earp constituted evidence of racial animus because, allegedly, Sgt. Earp did not monitor the locations and movements of white officers. Finally, during the time leading up to the filing of Settle’s first EEOC charge, Settle and Harris came to believe that Sgt. Earp habitually deprived them of training opportunities by purposefully failing to notify them of such opportunities in the manner and with the consistency with which he notified white officers of such opportunities. On March 2, 1993, after a dispute apparently involving an alleged act of insubordination, Settle filed his first charge with the EEOC. He alleged discrimination on the basis of race, in that “Black officers are treated like suspects while White officers are treated more favorably.” Several weeks later, on March 25, 1993, a high-ranking officer in the chain of command for Western Traffic, Major William Kelly (“Maj.Kelly”) called a meeting of Settle, Harris and other black officers in an effort to address the concerns of Settle, Harris and those sharing their views that the environment in Western Traffic was infected with racially discriminatory attitudes which had given rise to disparate treatment and acts of harassment. Lt. Foxwell and Maj. Ward attended the meeting, which apparently focused on the alleged racially discriminatory behavior by Sgt. Earp. The effort to resolve the issues presented failed miserably, however, and the next day, Settle and Harris (joined by one or two others) filed a formal complaint with IA, assigned number 93-A-107 (“IA 93-A-107”), alleging race discrimination by Sgt. Earp based on the circumstances described above. The investigation of IA 93-A-107 was conducted by Detective Yvonne Callahan (“Callahan”), an African American, under the immediate supervision of Sgt. Adrian Hughes. The record provides overwhelming evidence that the investigation was wide-ranging, thorough and professionally conducted. Callahan did not conclude her investigation (including reviews up the chain of command) until December 1994. During her investigation, she (and/or Sgt. Hughes) interviewed every officer at Western Traffic. Additionally, she interviewed Settle and Harris in connection with their allegations on several occasions, at their request, so that they could supplement the information already supplied to IA by them. In the course of the investigation, moreover, Settle and Harris filed in excess of a half dozen formal written supplements to the original complaint. Many of the witness interviews were tape-recorded, as were some of those conducted of Settle and/or Harris. Ultimately, Callahan determined that the plaintiffs’ allegations of disparate treatment and harassment were unfounded. In the meantime, the animosity and opprobrium between Settle and Harris, on one side, and their supervisors and co-workers on the other side, grew in scale and intensity, such that ultimately the bad feelings permeated the workplace. Friction points between the complainants and their supervisors and co-workers ran the gamut of interpersonal difficulties ranging from the seemingly trivial to the profoundly serious. Sometime after the March 1993 meeting, Harris requested as his permanent days off Thursday and Friday. Sgt. Earp denied the request. Not long thereafter, however, Sgt. Earp granted two white officers, Officer Isaac and Officer Leichling, Thursday and Friday as permanent days off. (Much later, in September 1994, Sgt. Earp granted Harris Thursday and Friday as permanent days off.). As discussed below, plaintiffs have relied on the circumstances surrounding the scheduling of days off as one of the key elements of their claims. On April 8,1993, approximately two weeks after the meeting was held to address racial discrimination issues, Harris’s “post car” was damaged. Assignment to a “post car” is emblematic of a job “perk” whereby, although officers do not take their assigned vehicles home at the end of their shift, they are allowed to use the same vehicle and patrol the same area on a regular basis. The damage to Harris’s “post car” consisted of the radar wires being cut and a “cut mark” appearing on one of the tires. The Department never determined who damaged Harris’s “post car.” Harris viewed the incident as evidence of racial animus aimed at him. Indeed, assuming the damage to the vehicle was purposefully inflicted in April 1993, the scant evidence of record on this issue does appear to support Harris’s belief that the vandalism was aimed at him. On the other hand, there is no evidence as to the identity of the perpetrator, and there is no evidence that, assuming Harris was targeted, he was targeted because he is African American, or that he was targeted because he complained of alleged racial discrimination. A major element of the plaintiffs’ claims relate to allegations of disparate discipline. These claims are asserted in two analytical dimensions. First, each plaintiff claims that, assuming he committed infractions similar in gravity as did white officers, white officers received more favorable (or less harsh) disciplinary treatment than he received. Second, each plaintiff claims that allegations against him of misconduct were treated more formally, and were investigated more thoroughly, than allegations against white officers and, also, plaintiffs contend, more thoroughly than the plaintiffs’ own allegations of discriminatory and retaliatory treatment. Thus, the internal affairs machinery of the Department, under Major Ward’s leadership, is implicated directly and indirectly in plaintiffs’ hypothesis of a wide-ranging scheme to treat them discriminatorily on the basis of race and to inflict “employment injuries” upon them in retaliation for resisting the discrimination treatment. The record discloses that during 1993, in connection with their claims of disparate discipline, Settle and Harris, respectively, were investigated by IA regarding separate incidents of alleged or perceived neglect of duty. Each of these instances will now be set forth in some detail. In respect to one incident, Settle and a white officer, Timothy McLaughlin (“McLaughlin”), were charged in the same complaint, IA 93-308, with failure to perform their duties properly by not fully investigating the circumstances surrounding a suspected drunken driving offender. The incident began when a motorist was rear-ended by a driver who (though not smelling of alcohol) staggered and otherwise appeared to be, and acted as if he were, intoxicated. The driver left the scene before police arrived. McLaughlin was the responding officer; by the time he arrived at the scene of the first accident, the fleeing driver had become involved in a second, similar accident a short distance away, as to which Settle was the responding officer. McLaughlin took the “victim” motorist from the first accident scene to the scene of the second accident in an effort to identify the driver. The “victim” motorist identified the driver in the second accident as the driver in the first accident. McLaughlin then drove the “victim” motorist back to his vehicle and completed a report (he issued five citations), but he did not perform field sobriety tests on the fleeing driver, apparently taking the view that the immediate investigation of the driver’s condition was Settle’s responsibility, as Settle was in charge of the investigation of the second accident. Settle investigated the second accident and, like McLaughlin, failed to perform field sobriety tests on the driver. Settle apparently relied on the second hand account of a paramedic who was on the scene. According to the paramedic, the at-fault driver had taken certain medications, including Zanax and Plaeidil, which probably accounted for his seeming inebriated state. The wife of the “victim” motorist filed a complaint against Settle and McLaughlin and insisted that the complaint be handled formally. Thus, a disciplinary trial board heard the complaint. The trial board found that “both officers failed to conduct a thorough investigation at the scene.” The trial board recommended forfeiture of two days leave for each officer. Ultimately, however, McLaughlin received a lesser punishment, “formal counseling by supervisors,” than Set-tie (the more experienced officer and the only one specifically assigned to traffic duties), who received one day loss of leave. Settle appealed the sanction to the circuit court, which overturned the loss of leave. The Department appealed the reversal of the sanction to the Maryland Court of Special Appeals, which reinstated the one day loss-of-leave penalty. Settle contends the difference in sanctions meted out to him and McLaughlin is explained by racial discrimination. It must be noted that Settle’s attorney actually called Sgt. Earp as a “character witness” for Settle (presumably with Settle’s approval). Earp described Settle as a good officer who had had “some problems” in the past. Thus, even though a complaint filed by Settle of racial discrimination was pending against Sgt. Earp, the latter nevertheless “went to bat” for his subordinate in the disciplinary proceedings and Settle was willing to accept from Sgt. Earp such help as the latter could offer. Harris was also investigated for an- incident occurring in 1993, after he and Settle had instituted their internal charge of discrimination. In August 1993, then Cpl. Franzoni filed a report which led to the institution of formal charges against Harris for failure to perform duties in connection with an incident at the Liberty Court shopping center. The charge was formally lodged by Lt. Foxwell but was based on Franzoni’s information. It alleged that Harris had failed to assist a private security guard (who was African American) to apprehend an alleged shoplifter. In or about December 1993, the formal disciplinary process commenced and, at one point, it was recommended that Harris should receive five days loss of leave. At some point in the proceedings, Cpl. Brashears, an African American, reviewed the circumstances and sustained the charge against Harris. Harris was ultimately acquitted of this charge after a prolonged adjudicatory process involving numerous delays, some of which were due to the on-going discrimination complaints. Harris vigorously contends that even assuming a formal disciplinary process was appropriate for this incident of alleged neglect of duty (which he does not concede), the failure of the Department to institute formal disciplinary proceedings against white officers whom he contends were reasonably suspected of equally or more serious infractions exposes the discriminatory motive behind the disciplinary proceedings instituted against him. As proof of the discriminatory motive animating the disciplinary proceedings against him, Harris undertakes to contrast his treatment in connection with the Liberty Court incident, inter alia, with that accorded a white officer he argues was similarly situated. As detailed infra, according to Harris’s account, in August 1993, Franzoni instructed Officer Lally to leave the scene of a personal injury motor vehicle accident without giving complete assistance to the injured and putting at risk the “chain of custody” of some unspecified evidence. Harris views the failure of the Department to discipline Officer Lally and/or Franzoni for this incident as evidence of discrimination. For the reasons discussed below, I conclude as a matter of law that the Lally incident is not comparable to the Liberty Court incident. In any event, in March 1994, Harris filed a racial discrimination charge with the EEOC based on the disciplinary proceedings against him arising from the report by Franzoni in connection with the Liberty Court incident. He also alluded in that charge to the March 1993 meeting and the ongoing IA investigation arising therefrom. Also in March 1994, Harris filed an official Departmental communication (a “12L”) with then Capt. Ward of IA regarding alleged disparate treatment by Franzoni. Harris contends that Ward’s unfavorable finding as to this complaint is probative of discrimination and retaliation by Franzoni, Ward and Baltimore County. In April 1994, Franzoni issued a negative “performance observation” of Harris and removed him from his post car. The observation stated that Harris had recently made inappropriate comments over the radio regarding responding to calls outside of his post. The observation also noted that Harris had a history of similar acts. The documentary record before the court confirms this assertion. As early as 1991, Harris had a habit of making inquiry over the police radio as to the availability of, or the whereabouts of, the regularly assigned patrol or traffic officer when he, Harris, was directed to respond to a need for police assistance at a location that was not in his assigned area. The record discloses that Harris’s supervisors were annoyed by this habit and cited it against Harris in his performance evaluations. In September 1994, Settle filed a second charge with the EEOC, which he amended (by counsel) in June 1996. The charge alleged, inter alia, that the Department had not taken meaningful steps to redress the continuing harassment Settle believed he was experiencing, or to address in a meaningful way Settle’s complaints of harassment, most if not all of which were directed at acts and omissions by Franzoni. (The 1996 amendment to the charge expanded the bases for the charge to include additional acts of retaliation and race discrimination.). In December 1994, at the conclusion of the IA investigation under the direction of Det. Callahan, Capt. Hall, Maj. Ward and Maj. Kelly met with Settle and Harris regarding their internal complaints of discrimination, i.e., IA 93-A-107. Maj. Ward indicated that it had been determined that the allegations lacked merit. Settle and Harris allegedly became quite hostile during the meeting. Each was offered an opportunity for reassignment and each declined the opportunity. During the meeting mentioned above, Capt. Hall reiterated earlier warnings that Settle would lose his “post car” if he continued to write a below-average number of speeding enforcement citations. This issue forms a key ingredient to Settle’s claims. It appears from the record that Settle has long insisted that a sort of “kinder and gentler” approach to traffic enforcement was desirable. Thus, while Settle generally made an appropriate number of traffic stops, he issued a far greater percentage of warnings (rather than violations, and specifically speeding violations) than his supervisors deemed acceptable. Settle seemingly contends, alternatively, that warnings did and should count the same as violation citations, and/or that the defendants simply used the alleged disparity as a pretext to take racially discriminatory actions against him. As the defendants have pointed out, on deposition Settle simply refused to acknowledge that he (and every officer) had a responsibility to conform to his supervisors’ repeated demands that he measure up to even informally imposed quotas for speeding enforcement citations. In connection with this issue, in January 1995, Sgt. Earp issued a “rating,” which stated that Settle wrote too few speeding citations. In that written performance evaluation, Sgt. Earp reiterated the earlier statements made by Capt. Hall that Settle could be removed from his post car for these alleged citation-writing deficiencies. Settle contends that as of the date of the “rating,” Sgt; Earp had been his supervisor for such a brief period that he was not qualified to issue such an evaluation, and that his decision to do so is evidence of racial animus. Settle, unlike Harris, never lost his “post car,” but he complains, nevertheless, that the threats his supervisors made that he might lose his “post car” constitute cognizable Title VII violations. As might be gathered from the above recitation of facts (set forth in the light most favorable to the plaintiffs), the two years (spring 1993 to spring 1995) following the filing of Settle’s first EEOC charge (which was followed immediately by the filing of the internal charges and the Callahan investigation) were marked by an incessant deterioration in the relationship between the plaintiffs and their supervisors in the relevant chain of command. The picture sketched by the parties’ submissions is of a workplace in which there existed palpable distrust and contempt on many sides. Multiple discrimination charges were floating around the unit and formal disciplinary actions were pending throughout the relevant period, including formal adversary proceedings, at least one of which was within the state judicial system. The plaintiffs’ work situation and the atmosphere at Western Traffic deteriorated further as a result of an incident in May 1995. Two patrol officers from another precinct filed a complaint against Settle and Harris for neglect of duty. Specifically, the officers alleged that they had responded to a broadcast of a bank robbery in progress, but that Western Traffic cars number 167 and 169, which were observed idling in a parking lot of a nearby hotel, inexplicably failed to respond to the robbery alert. Settle and Harris, respectively, were in cars 167 and 169. It is not entirely clear why or how the complaining officers could be certain that Settle and Harris had received and heard the robbery dispatch. Nevertheless, the record shows that Settle and Harris did indeed hear the robbery alert, but that they apparently took the view that as traffic officers, they were not required to respond to such a routine non-traffic-related call. In any event, the officers submitted their complaint through proper channels and it fell to Lt. Foxwell to decide how it should be handled. Lt. Foxwell asserts by way of her affidavit that “due to the serious nature of this allegation, I was ... obligated to refer the matter to Internal Affairs.” Thus, the plaintiffs became yet again the subjects of a formal disciplinary investigation by the Department. Ultimately, they were found not guilty of all charges in connection with this incident, but they regard Lt. Foxwell’s decision to forward the complaint for formal handling by IA as evidence of race discrimination and retaliation. By spring 1996, the circumstances in Western Traffic had deteriorated to the point where African American officers other than Settle and Harris were seeking or were stating an intention to seek a transfer from the unit because of the turmoil prevalent in the unit. Without question, several of them attributed the discord to unwarranted actions and complaints being prosecuted by Settle and Harris. Finally, one supervisory African American, Sgt. Richard Howard, reported to Lt. Foxwell that Settle had threatened to “take down” all of the supervisors at Western Traffic. This proved to be the last straw. On April 2, 1996, Capt. Hall effected an involuntary transfer of Settle and Harris. They were permitted to retrieve their personal belongings; however, they were immediately escorted out of the building under the watchful eye of another officer. On the same day, the building entry code was changed to one not known by Settle or Harris. The new code, Settle and Harris later learned, was “10-24,” which was the Department’s radio code meaning “assignment completed.” The plaintiffs rely on the circumstances surrounding their reassignment and the selection of the new entry code as additional evidence of racial animus and retaliatory motive. III. SUMMARY JUDGMENT STANDARDS Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Anderson, 477 U.S. at 247, 106 S.Ct. 2505 (1986). In considering a motion for summary judgment, the facts, as well as the inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmovant. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A party moving for summary judgment is entitled to a grant of summary judgment only if no issues of material fact remain for the trier of fact to determine at trial. Id. at 587, 106 S.Ct. 1348. A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “Summary judgment is not appropriate when there is an issue of fact for a jury to determine at trial, which is the case when there is sufficient evidence favoring the non-moving party upon which a jury can return a verdict for that party.” Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. The nonmovant “cannot create a genuine issue of fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). See O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 545 (4th Cir.1995), rev’d on other grounds, 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). “When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy, 929 F.2d at 1012. IV. LEGAL STANDARDS APPLICABLE TO PLAINTIFFS’ CLAIMS Plaintiffs seek damages and other relief, primarily on the grounds of what they contend was a purposeful and broad-based scheme to discriminate against them in respect to the terms and conditions of employment as Baltimore County police officers on the basis of their race, to create an objectively intolerable working environment for them as African American officers through a pervasive and severe series of racially hostile acts and verbal acts, and to retaliate against them for seeking redress for these wrongs. Plaintiff Harris has also alleged that the defendants deprived him of First and Fourteenth Amendment guarantees in their treatment of him. I am persuaded, however, after a searching examination of the summary judgment record, that the record establishes, despite the scope and breadth of their complaints, that plaintiffs are not entitled to present any of their claims to a jury and that defendants are entitled to judgment as a matter of law. A. Title Vii And 42 U.S.C. § 1981 The Supreme Court has held that the well-known McDonnell Douglas proof scheme also applies to claims brought under 42 U.S.C. § 1981. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and the Fourth Circuit has stated.“the framework of proof for disparate treatment claims — that is, whether the employer intentionally discriminated against the employee — is the same for actions brought under Title VII or § 1981.” Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910 (4th Cir.1989). Accordingly, my discussion regarding the plaintiffs’ Title VII claims encompasses their intentional racial discrimination claims under 42 U.S.C. § 1981. In this connection, defendants persist in the view that Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir.1995), applying Jett v. Dallas Independent School District, 491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), forecloses Settle’s claims under § 1981. I reject this reading of Dennis. Settle has sued the individual defendants in their individual capacities — not in their official capacities, as did Harris — and nothing in Dennis suggests that such claims are foreclosed. In the view that I take of the claims on their merits, however, the individual claims fail, just as surely as do the other claims. I also assume — without deciding— that a retaliation claim lies under 42 U.S.C. § 1981. See Carney v. American University, 151 F.3d 1090, 1094 (D.C.Cir.1998)(“[O]ur sister circuits disagree about whether retaliation violates section 1981[:] ... compare, e.g., Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1412 (11th Cir.1998)(finding cognizable retaliation claim under section 1981), with Von Zuckerstein v. Argonne Nat. Laboratory, 984 F.2d 1467, 1472 (7th Cir.1993)(finding no such claim).”). 1. Preliminary Observations Plaintiffs present this court with a veritable buffet, if not a smorgasbord, of federal employment discrimination claims. It has become quite evident in a growing number of employment discrimination cases in recent years that these cases have begun to pose subtle interpretative and analytical difficulties. In part, this is due to the fact that courts have seen an increasing number of cases in which the ever-blurring line between traditional “discrete act” disparate treatment and retaliation claims, on the one hand, and the more amorphous and ephemeral “hostile work environment” claims, on the other hand, has grown more and more indistinct. Furthermore, courts have begun to see increasing numbers of so-called “retaliatory harassment” claims. See infra pp. 993-95. The knowledgeable reader here is no doubt struck by the fact that, as to their “discrete act” claims, Settle and Harris do not contend that they have been paid less compensation, assigned to more hazardous duty or denied promotions; obviously, they have not been terminated. Indeed, the record shows that both during their tenure at Western Traffic as well as after their transfer from that unit, their performance evaluations have remained average to above average. Thus, Settle and Harris have adduced no admissible evidence that any defendant acted toward them on an overtly racial basis, and in virtually no respect do their complaints relate to easily recognized tangible terms and conditions of employment. Instead, they have, to a very large extent, mounted a challenge to their general overall treatment by supervisors and others they contend are motivated by racial animus. As much if not more than in any discrimination case, plaintiffs’ ability to survive summary judgment turns on the strength of the chain of inferences leading to the truth of the hypothesis that facially neutral decision-making was a pretext for race discrimination. “While courts must take special care when considering a motion for summary judgment in a discrimination case because motive is often the critical issue, summary judgment disposition remains appropriate if the plaintiff cannot prevail as a matter of law.” Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 958-59 (4th Cir.1996). Relatedly, as to their racial harassment hostile work environment claims, with the exception of the so-called “noose” allegations, there is not a scintilla of evidence in this record of racial epithets, verbal harassment having a racial nexus, inappropriate and distasteful jokes or humor, or any other overtly racial indicia of the presence of racial animus in the workplace at Western Traffic. These evidentiary gaps are telling. As I detail extensively below, after a careful analysis of the record, I am persuaded that plaintiffs have seized on certain attributes of an admittedly subjective decision-making and supervisory regime in a paramilitary law enforcement organization to cobble together grounds of complaint which, when all is said and done, fail at every turn to project evidence of intentional racial discrimination sufficient to permit a rational fact finder to conclude by a preponderance of the evidence that , they have been victims of unlawful discriminatory and retaliatory acts. The plaintiffs’ unrefined, almost desperate, approach to the elements of their claims is graphically demonstrated in the following assertions made by Harris in his memorandum: Plaintiff makes a prima facie case by showing that given all the incidents alleged in his complaint, there is a genuine dispute as to the culpability of Defendants. Although Defendants attempt to isolate each instance of disparate treatment and retaliation, it is important to consider that each occurrence is somehow related to another and that combined they create a full picture of the discrimination and harassment Plaintiff faced. Harris’s Mem. Opp. Defs’ Mot. Summ. Judg. at 24. These assertions are troublesome for several reasons. First, avoidance of summary judgment in employment discrimination cases, as in any case, is not remotely a function of the number of “incidents” alleged by a plaintiff as constituting evidence of unlawful discrimination. In particular, a prima facie case of discrimination or retaliation is not established simply by counting allegations, especially where the principal support for those allegations consists primarily, if not solely, of the prior statements of the alleged victim. Second, while it is certainly true that a court should examine instances of alleged discriminatory treatment holistically and not atomistically, see Cook v. CSX Trans. Corp., 988 F.2d 507, 512 (4th Cir.1993) (“[T]o focus on one piece of the record without considering the- whole would distort the permissible inferences to be drawn.”), this does not mean that evidence of a large number of meritless claims (or non-cognizable allegations) attains probative value when such claims are aggregated. To the contrary, in the absence of direct or circumstantial evidence of discriminatory intent, careful analysis of claims of disparate treatment in accordance with the well settled McDonnell Douglas paradigm is absolutely required. Finally, the suggestion that each of many instances of alleged discrimination are “somehow” related one to another misapprehends plaintiffs’ burden, that is, to make a showing that a reasonable fact finder could reasonably find the facts in favor of the plaintiff. In this light, I shall proceed to examine the plaintiffs’ claims. Before proceeding, however, it is important to clarify several issues which the parties’ memoranda incompletely explicate, but an adequate appreciation for which is critical to a complete understanding of the legal regime through which plaintiffs’ myriad claims must be filtered. a. No Cognizable Pattern and Practice Claims Are Before the Court This case is not a class action. Thus, any suggestion that the plaintiffs are pressing “pattern and practice” claims is misplaced. Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760-62 (4th Cir.1998), petition for cert. filed, 67 U.S.L.W. 3409 (Dec. 14, 1998). b. Plaintiffs’ Statistical Evidence Lacks Probative Value and is Inadmissible The plaintiffs have sought to rely on an in-house review conducted by Baltimore County of the performance ratings received by officers working in Western Traffic, the so-called “Wickless Report.” For the reasons stated here, the Wickless Report is entirely lacking in probative value and is, in any event, inadmissible. In connection with the investigation of IA 93-A-107, Robert Wickless of the Department’s Personnel Services Division reviewed performance appraisals for all officers from 1/1/90 to 7/1/93 and undertook to assess from his review whether intentional discrimination was evident. The statistical evidence derived from the report is patently inadmissible. See Moultrie v. Martin, 690 F.2d 1078, 1082, 1083 n. 7 (4th Cir.1982)(directing that “[i]n all cases involving racial discrimination, the courts of this circuit must apply a standard deviation analysis such as that approved by the Supreme Court in Hazelwood [School District v. United States, 433 U.S. 299, 309 n. 19, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977)]),” cautioning against the use of small sample sizes and noting that (“[pjopulation sizes of less than 30 to 40 are generally considered to be small samples .... ”). Manifestly, Wickless performed the very “straight percentage comparisons” condemned by the Fourth Circuit in Moultrie. Id. Furthermore, on deposition, when plaintiffs’ expert was pressed to explain how he had manipulated the statistics contained in the Wickless Report, he conceded that his “wife ran the numbers” and he would have to check with her. See Carter v. Ball, 33 F.3d 450, 457 (4th Cir.1994)(“[I]f a plaintiff offers a statistical comparison without expert testimony as to methodology or relevance to plaintiffs claim, a judge may be justified in excluding the evidence.”) (citation omitted). Finally, the Wickless report itself has so many disclaimers that it lacks all probative value and is inadmissible. Wickless wrote, “5.6% of the ratings for white males were below average as compared to 7.9% for black males, 42.2% of the ratings for white males were average as compared to 79% for black males, 52.2% of the ratings for white males were above average as compared to 13.1% for black males.” Wickless concluded: “It isn’t difficult to see, based on a review of value judgments [sic] alone, that black males, as a sub group, are not represented by a proportionate number of commendable or exceptional ratings. The reasons for this, however, are difficult to ascertain and are only speculative at best, ’’(emphasis added). Wick-less went on to state: In reviewing justifications for above average level judgments [sic], it appeared to be considerably more difficult for a black male to obtain an above average rating. This seemed to be the case even when justifications implied a commendable or exceptional rating be given and I believe more commendable and exceptional ratings were warranted. When comparing comments for justifications between the 2 groups, what was judged commendable for a white male was often competent for a black male. Likewise, what was judged exceptional for a white male appeared to be judged commendable for a black male. This trend, while not applied discriminately to any one individual, did appear to be an issue with ratings for the black male group. I don’t believe it was intentionally applied, but it did result in distinctly fewer above average ratings for the black male group. % * # * * The only discriminatory pattern present (other than as described in the paragraph above) is rather elusive. It is nonetheless worth mentioning and cause for concern. ... I did note that, taken as a whole, a certain difference in attitude toward evaluation between black and white males appeared to exist. Especially in relation to comments made to justify rating judgments [sic], it appeared that there was a general expectation among raters that white males should and would do well while black males probably could not be expected to do so well. This is an area that is, admittedly, hard to quantify, especially in light of the fact that when a black male clearly excelled, he ivas judged as doing so. While the obvious exceptions— both exceedingly good and bad — were identified and documented as would be expected, the range for fair to competent to commendable seemed to blur. It was in these areas where raters’ expectations seemed to differ in reviewing performance for black and white males. Whether this trend helped or hurt the ratings for black males overall is not clear. In some cases, above average performance, as noted in the paragraph above, may not have been judged as such. On the other hand, below average performance — except for critical issues — may not have been dealt with as stringently as when encountered in white males .... All of the above leads me to believe that — at least in terms of performance appraisals — racial discrimination was not epidemic in Western Traffic during the period from 1/1/90 to 7/1/98. This is not to say that it did not exist in some form, but that it was not calculated, intentional, or overt, (emphases added). These speculative musings on incomplete and inadequate data, based on an examination which failed to employ scientifically valid techniques, and unsupported by an expert sponsor, add nothing to the plaintiffs’ showing in this record. Accordingly, the Wickless Report is not accorded any weight in my consideration of the issues generated by the pending motions for summary judgment. c. Many of the Plaintiffs’ Allegations Do Not Constitide Material Adverse Employment Actions and Are Therefore Not Cognizable “[E]mployment discrimination laws require as an absolute precondition to suit that some adverse employment action have occurred.” Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986). In Page v. Bolger, 645 F.2d 227 (4th Cir.)(in banc), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981), the Fourth Circuit examined the question of what constitutes “adverse employment action” and stated that inquiries “consistently focused on the question whether there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting and compensation.” Id. at 233. The Court went on to state: Among the myriad of decisions constantly being taken at all levels and with all degrees of significance in the general employment contexts covered by Title VII there are certainly others than those we have so far specifically identified that may be so considered, for example, entry into training programs. By the same token, it is obvious to us that there are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within ... TitleVII. Id. (citation omitted). See also Munday v. Waste Management of N. Am., Inc., 126 F.3d 239, 243 (4th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1053, 140 L.Ed.2d 116 (1998)(“In no case in this circuit have we found an adverse employment action ... without evidence that the terms, conditions, or benefits of [plaintiffs] employment were adversely affected.”); Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir.), cert. denied, — U.S. -, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997)(applying Page). In contrast to the unmistakable rule in the Fourth Circuit, which unquestionably imposes the “adverse employment action” requirement in all “discrete act” discrimination and retaliation claims, the Seventh Circuit has speculated that the requirement of an “adverse employment action” may not apply to retaliation claims: No limiting language appears in Title VII’s retaliation provision. 42 U.S.C. § 2000e-3(a). The language of “materially adverse employment action” that some courts employ in retaliation cases is a paraphrase of Title VII’s basic prohibition against employment discrimination, found in 42 U.S.C. §§ 2000e-2(a)(l) and (2). Under these provisions, there is no actionable discrimination without something that can be described as an adverse employment action — “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment,” as subsection 2(a)(1) puts it, or “limit[ing], segregat[ing], or classifying] ... employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee,” as subsection 2(a)(2) puts it. The provision regarding retaliation may intentionally be broader, since it is obvious that effective retaliation against employment discrimination need not take the form of a job action. Shooting a person for filing a complaint of discrimination would be an effective method of retaliation, though, as Nelson points out, 51 F.3d at 388, the victim of the retaliation would have other, and more powerful, remedies than a suit under Title VII. This would be a reason for confining the provision to retaliation that takes the form of an adverse job action. How serious the adversity need be is a separate question, also difficult. McDonnell v. Cisneros, 84 F.3d 256, 258-59 (7th Cir.1996). Nevertheless, consistent with the Fourth Circuit’s decision in Page, the Seventh Circuit has also stated: [A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993). And see Johnson v. DiMario, 14 F.Supp.2d 107, 110 (D.D.C.1998): There is a circuit split on [the issue of what constitutes adverse employment actions]. The Fifth and Eighth Circuits agree with the Fourth Circuit and hold that only adverse actions rising to the level of an ultimate employment decision are actionable under Title VII. See Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997); Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 336, 139 L.Ed.2d 260. The First, Ninth, and Eleventh Circuits all conclude that Title VII’s protection against retaliatory discrimination extend to adverse actions which fall short of ultimate employment decisions. See Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir.1994); Yartzoff v. Thomas, 809 F.2d 1371, 1375-1376 (9th Cir.1987); Wideman v. Wal-Mart Stores Inc., 141 F.3d 1453, 1456-57 (11th Cir.1998). Although the D.C. Circuit has never addressed this precise issue (indeed, it has expressly refused to decide the issue on two occasions, see Taylor v. FDIC, 132 F.3d 753, 764-65 (D.C.Cir.1997); Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1555 (D.C.Cir.1997)), it has indicated that the Age Discrimination in Employment Act’s anti-retaliation clause, which is identical to Title VII’s, “does not limit its reach only to acts of retaliation that take the form of cognizable employment actions such as discharge, transfer or demotion.” Passer v. American Chem. Soc’y, 935 F.2d 322, 331 (D.C.Cir.1991). The Court thus concludes that our court of appeals would agree with the First, Ninth, and Eleventh Circuits that Title VII’s protection ex