VIRGINIA M. HERNANDEZ COVINGTON, District Judge.
This matter comes before the Court pursuant to the Motion for Summary Judgment filed by Defendant, the Secretary of the Department of Defense, on November 2, 2017 (Doc. # 34), with a response in opposition thereto filed by Plaintiff, Margaret Chambers, on December 19, 2017 (Doc. # 45), and a reply in support thereof filed by the Secretary on January 8, 2018 (Doc. # 46). For the reasons that follow, the Secretary's Motion (Doc. # 34) is granted.
Ms. Chambers brought suit in this case alleging employment discrimination under Title VII of the Civil Rights Act of 1964 based on her race (Count I) and gender (Count II), and in retaliation for filing complaints of discrimination (Count III). (Doc. # 1). On December 26, 2016, Ms. Chambers filed an amended complaint, raising substantially the same allegations but removing reference to a hostile work environment. (Doc. # 25). On December 26, 2016, the Secretary filed an answer, denying discrimination and retaliation, and raising several affirmative defenses. (Doc. # 28).
On November 2, 2017, the Secretary filed the instant Motion, seeking summary judgment on all three counts. (Doc. # 34). In response, Ms. Chambers indicated that she no longer intends to pursue "those counts in her federal complaint that concern alleged discrimination based on her race and sex." (Doc. # 45 at 1). Instead, she seeks to pursue only "her charge of retaliation" and responded in opposition only as it related to that count. (Doc. # 45 at 2). As such, the Court grants the Secretary's unopposed Motion for Summary Judgment as to Counts I and II, and addresses the opposed Motion as to Count III. The Motion is ripe for review.
Summary judgment is proper where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. Summary judgment will be granted unless there is a "
In addition to prohibiting employment discrimination, Title VII of the Civil Rights Act of 1964 "forbids employer actions that `discriminate against' an employee (or job applicant) because [s]he has `opposed' a practice that Title VII forbids or has `made a charge, testified, assisted, or participated in' a Title VII `investigation, proceeding, or hearing.'"
In retaliation cases relying on circumstantial evidence, the burden of production shifts between the parties.
Ms. Chambers is a telecommunications specialist with the Defense Information Systems Agency, an agency within the Department of Defense. (Doc. # 35 at 6). DISA Central, a command field office of DISA, is located at MacDill Air Force Base. (Doc. # 35 at 6). DISA Central is further divided into several branches, CS1 through CS5. (Doc. #34-1 at 3, 30). Ms. Chambers joined DISA central in June of 2011, at which time she was assigned to CS4. (Doc. # 34-1 at 15). Eventually, she moved to CS2. (Doc. # 34-1 at 15).
In CS2, Ms. Chambers' immediate supervisor was Anthony "Tony" McFadden, the Branch Chief for CS2. (Doc. # 34-1 at 15). Mr. McFadden reported to Sidney Shafer, the Deputy Commander of DISA Central. (Doc. # 34-1 at 2). And Mr. Shafer reported to Colonel Aubrey Wood, the Commander of DISA Central. (Doc. # 34-1 at 2). Above Colonel Wood was Larry Huffman, DISA Director of Operations. (Doc. # 34-1 at 2).
Effective August 1, 2012, Colonel Wood decided to merge CS2 and CS4. (Doc. ## 34-1 at 16, 35 at 17). The idea was to "bridge the gap between the infrastructure transport, voice, and data services provided by the CS2 branch and the enterprise services and applications carried on that infrastructure worked by CS4." (Doc. # 34-1 at 3). With the merger, Ms. Chambers was given section lead responsibilities over Mark Laine and Victor Perez, two employees that transferred from CS4. (Doc. # 35 at 19). The CS4 employees were located in a separate building from CS2 and remained there until November of 2012. (Doc. # 34-1 at 82). In November, Mr. Laine and Mr. Perez moved into the CS2 building. (Doc. # 35 at 40). With the transition came conflict as Ms. Chambers felt several employees became adversarial toward her. (Doc. # 35 at 31). According to Ms. Chambers, both Mr. Laine and Mr. Perez were uncooperative with her, stating that they "just didn't" want to work with her in CS2. (Doc. ## 34-1 at 15, 35 at 46).
Ms. Chambers believed that the refusal to work with her was because of her race and sex. (Doc. # 34-1 at 17). However, at deposition, Ms. Chambers stated that she had "no idea what their issue was." (Doc. # 35 at 49). She also acknowledged that Mr. Laine and Mr. Perez were unhappy in the branch and frustrated because they felt she was receiving opportunities they were not. (Doc. # 35 at 30, 47-48, 56-57).
Mr. Laine clarified that he did not refuse to work with her, but did refuse to treat her as his supervisor, and rejected the suggestion that any conflict was a result of her race or sex. (Doc. # 34-1 at 77-78). Mr. Laine also perceived a "very toxic" environment in the branch, caused primarily by a close personal relationship between Ms. Chambers and Mr. McFadden. (Doc. # 34-1 at 75-76). Although doubting it was sexual, Mr. Laine stated that the relationship made him uncomfortable. (Doc. # 34-1 at 75-76). It also seemed to Mr. Laine that Mr. McFadden was attempting to push Ms. Chambers into a "larger supervisory role" and that Mr. McFadden took little interest in the branch beyond how it could get Ms. Chambers promoted. (Doc. # 34-1 at 75-76). Mr. Perez was similarly reluctant to treat Ms. Chambers as his supervisor and rejected the notion that it had anything to do with her race or sex. (Doc. # 34-1 at 82, 84-85). He also identified "drama" within CS2 and corroborated the uncomfortable relationship between Ms. Chambers and Mr. McFadden. (Doc. # 34-1 at 83).
In addition to work environment issues, the merger caused logistical complications. In particular, the change in buildings created communication issues with the former CS4 employees and their customers. (Doc. ## 34-1 at 4, 100, 38 at 26). Also around this time, a Lieutenant Colonel resigned from the United States Air Force and Colonel Wood learned that the Air Force would not fill that position based on its placement in the DISA Central front office. (Doc. # 34-1 at 100). Additionally, Colonel Wood received approval to hire for a GS-14 position that was previously vacant in CS4. (Doc. # 34-1 at 8, 101). Based on these factors, and Mr. Shafer's recommendation, Colonel Wood decided to reconstitute CS4. (Doc. ## 34-1 at 4, 36 at 42-44). The newly-reconstituted CS4 included the GS-14 as a supervisory position, which CS4 did not previously have (Doc. # 38 at 39), as well as Mr. Laine, Mr. Perez, and the Lieutenant Colonel position. (Doc. # 36 at 45).
On December 14, 2012, Colonel Wood sent an email announcing his decision to undo the merger and reconstitute CS4, effective January 1, 2013. (Doc. # 34-1 at 50, 101).
On January 3, 2013, Ms. Chambers contacted an Equal Employment Opportunity Counselor, alleging that the decision to reconstitute CS4 was discriminatory based on her race and sex. (Doc. # 34-2 at 2-3). Ms. Chambers argues that Colonel Wood simply decided to reconstitute CS4 rather than address the refusal of Mr. Laine and Mr. Perez to work with Ms. Chambers, which she alleged was based on her race and sex. (Doc. # 35 at 67). Ms. Chambers also accused Colonel Wood of conspiring to exclude Ms. Chambers from the GS-14 position and ensuring that it was filled by a white male. (Doc. # 35 at 67, 107). The informal complaint was handled by EEO counselor Cynthia Wilson. (Doc. # 34-2 at 6).
DISA usually conducts climate assessments every two years or upon a change in command, but they may also be conducted upon request. (Doc. # 34-2 at 30). The last climate assessment was done just prior to Colonel Wood assuming command. (Doc. # 36 at 35). In this case, an assessment was conducted at the request of Colonel Wood, upon hearing complaints of "a potential hostile work environment impacting the morale and welfare of the employees." (Doc. # 34-2 at 30). Specifically, Colonel Wood testified that he was receiving complaints of unprofessional conduct and an unprofessional relationship in CS2. (Doc. # 36 at 32).
After receiving complaints about CS2, Colonel Wood called his supervisor, Mr. Huffman, in DISA Headquarters to discuss how to proceed. (Doc. # 36 at 33, 37). Upon his advice, he called the Equal Employment Opportunity office in DISA Headquarters. (Doc. ## 36 at 33, 39 at 48). On April 16, 2013, Chandra Vickers, director of the EEO Office, flew to Tampa to conduct EEO training and make herself available for employees to raise any concerns. (Doc. # 39 at 109-10). After speaking with the employees, Ms. Vickers "confirmed some of the things that Colonel Woods had been hearing," and determined that it was necessary to conduct a complete climate assessment, which began on April 29, 2013. (Doc. # 39 at 125-26).
The goal of the climate assessment is to get an "accurate, unbiased representation" of the work environment. (Doc. # 34-2 at 30). This is determined primarily through focus groups with the relevant groups in DISA: "Branch Chiefs, Deputy Branch Chiefs, non-supervisory employees, Officers, Senior Enlisted Military, Enlisted Military (E-6 and below), and contractors." (Doc. # 34-2 at 30). Participants are also offered one-on-one sessions to bring specific concerns. (Doc. # 34-2 at 30). In this case, there were twenty-three one-on-one sessions. (Doc. # 34-2 at 30).
For the non-supervisory employees, separate group sessions were conducted with each branch and one make-up session. (Doc. # 34-2 at 36). The report combines some information to preserve anonymity between the branches. (Doc. # 34-2 at 36). Under morale, however, the report notes the main reasons provided in each of the branches for the relatively low morale. (Doc. # 34-2 at 37). For CS2, the report provided the following reasons:
(Doc. # 34-2 at 37-38). Although her name is redacted from the copy provided to the Court, Ms. Chambers acknowledges that the allegations in the report reference her and her relationship with Mr. McFadden. (Doc. ## 35 at 112-24, 34 at 10-12, 45 at 2-3).
Under work environment, the report went on to state that the CS2 employees were:
(Doc. # 34-2 at 39-40).
As for the contractors, the group session was attended primarily by contractors from the CS2 Branch. (Doc. # 34-2 at 40). The morale was even worse. The assessment found:
(Doc. # 34-2 at 40-41) (footnote in original). As for the contractors' work environment, the assessment found:
(Doc. # 34-2 at 41).
As a result of these findings, the report recommended a "reassignment for Ms. [Chambers] outside of Building 805 and not under the supervision of Mr. Anthony `Tony' McFadden," noting that "Mr. McFadden and Ms. [Chambers'] failure to remain professional has proven to be the impetus to many of the situations mentioned by employees within CS2." (Doc. # 34-2 at 43). After he received the written climate assessment report, Colonel Wood reviewed it with other leadership in DISA, including the EEO Office, Office of the General Counsel, and Personnel, and the consensus was to transfer Ms. Chambers to a similar position in CS3. (Doc. ## 36 at 55, 38 at 73).
After logging into a personnel system on June 20, 2013, Ms. Chambers discovered that she had been reassigned to CS3. (Doc. # 34-1 at 87). She immediately emailed Mr. Shaffer, who responded that Colonel Wood intended to reassign some employees and that Colonel Wood would be in later that day. (Doc. # 34-1 at 89). She later met with Colonel Wood, who informed her that she was being reassigned as a result of the climate assessment. (Doc. # 34-1 at 88).
On June 24, 2013, Ms. Chambers received the official memorandum ordering her transfer to CS3. (Doc. ## 34-1 at 89, 34-2 at 74). Ms. Chambers reported to CS on June 28, 2013. (Doc. # 34-1 at 90). Shortly before her transfer and also as a result of the assessment, Mr. McFadden was granted his previously requested assignment to Special Operations Command on a temporary basis, which eventually became permanent. (Doc. ## 34-2 at 61, 37 at 7).
In CS3, Ms. Chambers has the same job title with the same pay rate. (Doc. # 35 at 143-44). However, she no longer is a section lead. (Doc. # 35 at 10). Ms. Chambers alleges that her new position has "has no upward mobility potential and lack[s] supervisory responsibilities." (Doc. # 34-1 at 88). She also alleges that she has less meaningful work and is often idle. (Doc. # 35 at 194-95).
With regard to the prima facie case of retaliation, the Secretary does not dispute that Ms. Chambers participated in a statutorily protected activity or that she suffered a materially adverse employment action. Instead, the Secretary argues that the transfer of Ms. Chambers was not causally related to her protected activity and that Ms. Chambers cannot show that the reason for the transfer was mere pretext for retaliation. (Doc. # 34 at 21-23). The Court agrees with the Secretary.
To demonstrate a causal connection, Ms. Chambers must "`show that the decision-makers were aware of the protected conduct, and that the protected activity and the adverse actions were not wholly unrelated.'"
Causation may be shown by establishing "close temporal proximity between the statutorily protected activity and the adverse employment action."
Here, Ms. Chambers first contacted an EEO counselor on January 3, 2013. (Doc. # 34-2 at 2). She filed her formal complaint of discrimination on February 8, 2013. (Doc. # 25 at 2). It was not until late June of 2013, that Ms. Chambers was transferred to CS3. (Doc. # 34-2 at 74). Standing alone, this three to four month gap is not a sufficient temporal proximity to establish causation.
Ms. Chambers seeks to add a link in the chain of causation by arguing that Colonel Wood requested the climate assessment after learning that Ms. Chambers was alleging discrimination. (Doc. # 45 at 6-7). However, for purposes of temporal proximity and causation, the relevant timeframe is measured from the protected activity and the adverse employment action.
Assuming Ms. Chambers had established her prima facie case, the Secretary has met the "`exceedingly light'" burden of providing "legitimate, non-discriminatory reasons" for the employment action.
Thus, the burden once again falls on Ms. Chambers to show that reliance on the climate assessment was mere pretext and her protected activity was the but-for cause of her transfer.
In attempting to rebut the reason for the transfer, Ms. Chambers argues essentially that the entire climate assessment was fabricated by Colonel Woods and Ms. Vickers to justify retaliating against Ms. Chambers. (Doc. # 45 at 7, 11). However, this conclusory accusation is unsupported by the record.
Ms. Chambers places great emphasis on the fact that Ms. Vickers was in charge of both the climate assessment and Ms. Chambers' EEO investigation. (Doc. # 45 at 7-8, 11). While Ms. Vickers did conduct the climate assessment, along with another employee (Doc. # 39 at 32), there is no evidence that she played an active role in Ms. Chambers' investigation. On the contrary, she testified that she does not conduct EEO investigations and that they usually rely on an investigative branch of the Department of Defense to do so. (Doc. # 39 at 93-94). Further, knowledge of, or participation in, Ms. Chambers' investigation has no tendency to prove that Ms. Vickers colluded with Colonel Woods to fabricate the climate assessment.
Ms. Chambers also calls into question the results of the climate assessment by pointing out that a previous assessment was conducted in August of 2012, which did not reveal a toxic environment. (Doc. # 45 at 7). However, Ms. Chambers acknowledged that she did not become a section lead until August of 2012. (Doc. # 35 at 159). As noted in the climate assessment, both the non-supervisory employees and the contractors reported that morale in CS2 dropped upon Ms. Chambers becoming the "unofficial `Deputy Branch Chief.'" (Doc. # 34-2 at 37, 40).
Finally, Ms. Chambers attempts to discredit the climate assessment by refuting or contextualizing certain findings in the report. (Doc. # 45 at 9-10). For example, although Ms. Chambers argues that she never had to count to ten to ease her anger, she admits that she did pound her fist on the table, but only because she was being yelled at. (Doc. # 45 at 9-10). However, this argument misses the mark entirely. "The inquiry into pretext centers on the employer's beliefs, not the employee's beliefs and, to be blunt about it, not on reality as it exists outside of the decision maker's head." Alvarez, 610 F.3d at 1266.
Therefore, even if the Court accepts Ms. Chambers' argument that her fellow employees lied or exaggerated about her (Doc. ## 45 at 10, 35 at 129), Ms. Chambers has provided no concrete evidence that Colonel Woods had any suggestion the climate assessment report was inaccurate.
It is not the role of this Court to determine whether there was a toxic environment in CS2, whether the employees conducting the climate assessment should have interviewed more people, or whether Colonel Woods should have taken another course of action.
As such, even viewing the evidence in the light most favorable to her, Ms. Chambers has not created a genuine issue of material fact and summary judgment is warranted.
Accordingly, it is
