Gladys Kessler, United States District Judge
Plaintiff Sandra Burton ("Plaintiff," "Burton") brings this lawsuit against the Secretary of the United States Department of Housing and Urban Development ("Defendant," "Government," or "HUD"). Plaintiff alleges two counts of retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e
Plaintiff alleges she was retaliated against because she had previously complained of racial discrimination by a supervisor at HUD.
Defendant filed a Motion for Summary Judgment on December 7, 2015 ("Def.'s Mot."). [Dkt. No. 58]. Plaintiff filed an Opposition on January 11, 2016, [Dkt. No. 64], which she then corrected on January 13, 2016 ("Pl.'s Corr. Opp'n"). [Dkt. No. 65]. Defendant filed its Reply on February 26, 2016 ("Def.'s Reply"). [Dkt. No. 69]. Upon consideration of the Motion, Corrected Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion for Summary Judgment is denied.
Sandra Burton, a white woman, was hired by the United States Department of Housing and Urban Development (HUD) in 2006. AC ¶ 7 [Dkt. No. 31]. Initially, Burton worked as a Contract Specialist in the Office of the Chief Procurement Officer ("OCPO").
In February 2009, Burton and HUD entered into a settlement agreement ("2009 EEO Settlement") to resolve the 2008 EEO Complaint. AC ¶¶ 9, 10. Pursuant to the 2009 EEO Settlement, Burton was transferred to a new office within OCPO, placed under a new supervisor, and allowed to telework.
Burton alleges that sometime in early August of 2010, Stowe asked to see a copy of the 2009 EEO Settlement. AC ¶ 14. Burton alleges that she and Stowe began to have problems shortly thereafter. For example, Burton alleges that, starting as early as August of 2010 and no later than September of 2010, Stowe began encouraging Burton to either retire or seek other employment, despite the fact that Burton had never expressed a desire to do either. Ex. 26 to Pl.'s Corr. Opp'n [Dkt. No. 65-6 at pp. 47-49]. Burton also alleges that during this time period Stowe repeatedly told Burton that Bryon "hated" her.
On August 25, 2010, a dispute arose between Burton and another colleague, Erma Ellis-Stewart, Ex. 26 to Pl.'s Corr. Opp'n [Dkt. No.65-6 at pp. 54-55]; the exact nature of this dispute is unclear.
On November 17 and 18, 2010, another series of incidents occurred between Burton and Stowe. On November 17, Stowe called Burton into her office to discuss Burton's practice of copying senior managers on emails. AC ¶ 17. The Government asserts that this was in violation of a directive Stowe had previously given Burton to refrain from doing so. Ex. 8 to Pl.'s Corr. Opp'n [Dkt. No. #65-5 at p. 5]. From here, Stowe and Burton's versions of events diverge dramatically.
Burton alleges that Stowe berated her, yelling loudly, cursing, and telling Burton "I got you now." Ex. 8 to P l.'s Corr. Opp'n [Dkt. No. #65-5 at pp. 12-13];
The Government tells a quite different tale. In a document entitled "Statement of Facts" and drafted by Stowe on November 17, 2010, she recounts that it was Burton who yelled, cursed, and acted in an unprofessional and insubordinate manner. Stowe claimed that, in contrast, she was the one who remained calm throughout the encounter. Ex. 8 to Pl.'s Corr. Opp'n [Dkt. No. #65-5 at p. 5].
The next day, November 18, 2010, a series of emails were exchanged in which Stowe asked Burton to complete certain assignments. Ex. 8 to Pl.'s Corr. Opp'n, [Dkt. No. #65-5 at pp. 6-8]. In her responses to Stowe, Burton again copied senior managers, specifically Keith Surber and Bryon.
Later that same day, Bryon issued a Notification of Administrative Leave and Enforced Leave, placing Burton on administrative leave for three days and enforced leave for 14 days. Ex. 7 to Pl.'s Corr. Opp'n [Dkt. No. 65-4 at pp. 158-159]. As justification for this action, Bryon relied on: Stowe's account of Burton's conduct in the November 17 meeting, where she purportedly "engaged in a heated verbal altercation" with Stowe and was "extremely physically demonstrative, in a threatening manner"; the November 18 emails, in which Burton continued copying senior management and called Stowe a liar; and the August 25 incident with Ms. Ellis-Stewart.
On December 16, 2010, Stowe issued a Proposal to Suspend Burton for five days. Ex. 8 to Pl.'s Corr. Opp'n [Dkt. No. 65-5 at pp. 2-3]. On January 31, 2011, Bryon upheld Stowe's Proposal, suspended Burton for five days, and also issued her a Memorandum of Counseling. Ex. 5 to Def.'s Mot. [Dkt. No. 59-4]; Ex. 7 to Def.'s Mot. [Dkt. No. 59-6]. Both the Proposal to Suspend and the Suspension were based primarily on Stowe's account of Burton's allegedly unprofessional conduct in the November 17. Ex. 4 to Def.'s Mot. [Dkt. No. #59-3]; Ex. 5 to Def.'s Mot. [Dkt. No. #59-4].
Over the course of February 14, 15, and 24, 2011, another series of incidents transpired between Stowe and Burton, which led to Burton being suspended for 30 days. Ex. 8 to Def.'s Mot. [Dkt. No. 59-7]. In a series of emails exchanged between Burton and Stowe on February 14, 2011, Stowe assigned Burton a time-sensitive task that was to be completed by the close of business.
As with the previous incidents in November 2010, Burton provides a wholly divergent account of what transpired. Burton claims: she attempted to complete the project assigned to her on February 14; that given its complexity, it was not possible to complete it within the originally specified timeframe; she communicated this to Stowe, and they orally agreed that Burton would complete it by February 15; and that Burton successfully did so. Ex. 10 to Pl.'s Corr. Opp'n [Dkt. No. 65-5 at pp. 27-28]. Similarly, Burton claims that her leave request was orally granted by Stowe on February 14, and that Stowe reneged on their agreement the next morning for the purpose of finding her AWOL.
On March 9, 2011, Stowe proposed suspending Burton for 30 days on the basis of these incidents, charging that she failed to follow a lawful order, that she was AWOL, and that she was unprofessional in her conduct and language. Ex. 8 to Def.'s Mot. [Dkt. No. 59-7 at pp. 2-5]. Subsequently, on May 8, 2011, Bryon upheld the Proposal to Suspend Burton for 30 days. Ex. 9 to Def.'s Mot. [Dkt. No. 59-8]. In her decision, Bryon sustained each of the charges made by Stowe.
At some point following Stowe's March 9, 2011 issuance of the Proposal to Suspend Burton for 30 days, David Blocker replaced Stowe as Burton's direct supervisor.
On September 22, 2011, Blocker issued a Proposal to Remove Burton from her position at HUD. Ex. 10 to Def.'s Mot. [Dkt. No. 59-9]. Relying on the July 2011 emails, Blocker accused Burton of failing to follow instructions and conduct unbecoming a federal employee.
Before she could be removed from her position, Burton resigned. Complaint ¶ 33; Ex. 12 to Def.'s Mot. [Dkt. No. 58-11]. Subsequently, on January 9, 2012, Keith Surber, a senior manager within OCPO, ratified Blocker's Proposal to Remove Burton. Ex. 11 to Def.'s Mot. Again, this decision purported to apply the
Throughout much of the relevant time period discussed above, Burton complained that she was being disciplined in retaliation for her prior 2008 EEO complaint and 2009 EEO Settlement. Burton first claimed that she was being retaliated against on December 8, 2010, shortly after her return from administrative leave, in a letter sent by her lawyer to Defendant. Ex. 9 to Pl.'s Corr. Opp'n [Dkt. No. 65-5 at pp. 18-20]. On December 9, 2010, Burton sent an email to Bryon, stating that Stowe was retaliating against her because of her prior EEO activity. Ex. 23 to Pl.'s Corr. Opp'n [Dkt. No. 65-6 at p. 25.] On January 28, 2011, before her 5-day suspension, Burton's attorney contacted HUD's EEO office to informally complain about alleged retaliation.
Finally, on March 10, 2011, the day after Stowe issued the Proposal to Suspend Burton for 30 days, she filed a formal EEO complaint against HUD ("2011 EEO Retaliation Complaint"). AC ¶ 2. In the 2011 EEO Retaliation Complaint, she names Stowe, Bryon, Surber, and Priscilla Lewis as the individuals who retaliated against her. Ex. 11 to Pl.'s Corr. Opp'n [Dkt. No. 65-5 at p. 38]. An investigation of the 2011 EEO Retaliation Complaint was conducted, but the results of the investigation are not evident from the record.
On September 17, 2012, pursuant to 42 U.S.C. § 2000e-16(c), Burton filed her Complaint against Defendant, alleging two counts of retaliation under Title VII of the Civil Rights Act of 1964. Pl.'s Complaint [Dkt. No. 1]. Plaintiff amended her Complaint on July 17, 2014.
Following the filing of Plaintiff's Complaint, the Parties engaged in a significant amount of discovery, which ended on October, 30, 2015. The Government then filed its Motion for Summary Judgment on December, 8, 2015. Def.'s Mot. [Dkt. No. 58]. Plaintiff filed her Opposition on January, 11, 2016, and then a corrected Opposition on January 13, 2016. Pl.'s Corr. Opp'n [Dkt. No. 65]. The Government filed its Reply to Plaintiff's Opposition on February 2, 2016. Def.'s Reply [Dkt. No. 69].
Summary judgment may be granted only if the pleadings, the discovery materials, and affidavits on file 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.
The burden is on the moving party to demonstrate the absence of any genuine issues of material fact.
In reviewing the evidence on a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party and draws all inferences in her favor.
"Title VII prohibits the federal government from ... retaliating against employees for engaging in activity protected by Title VII."
Here, there is no real dispute as to whether Plaintiff engaged in protected activity.
The parties appear to agree that Plaintiff was subjected to the following materially adverse actions: 1) the administrative and enforced leave in November 2010; 2) the five-day suspension; 3) the issuance of a memorandum of counseling; and 4) the 30-day suspension.
The Government also appears to concede that the Plaintiff's resignation following the Notice of Proposal to Remove would constitute a materially adverse action if she could successfully show that she was constructively discharged. Def.'s Reply at 3 n.2. However, the Government contends that a resignation in the face of a proposed removal for-cause can never constitute a constructive discharge. Def.'s Reply at 7. For this proposition, the Government relies on
The Government overlooks
Here, the Court has no difficulty finding that a reasonable jury could conclude that the test is satisfied. After a series of escalating disciplinary actions, Plaintiff was confronted with a formal proposal to terminate her federal employment, and was simultaneously placed on indefinite administrative leave. Ex. 10 to Def.'s Mot. [Dkt. No. 59-9]. Plaintiff faced the prospect of losing valuable retirement benefits accrued from nearly 35 years of federal service if she were successfully terminated for-cause. AC at ¶ 33. Under such circumstances, it would be evident to any reasonable employee that they were about to be terminated and that resignation was the only available option.
Therefore, the Court concludes that a reasonable jury could conclude that Plaintiff was constructively discharged. Because the parties are in agreement that the other disciplinary actions were also materially adverse, the only remaining question in dispute is the motive for these actions.
Where a plaintiff attempts to prove unlawful retaliation in violation of Title VII using circumstantial evidence of motive, the burden-shifting framework of
Where an employer has given non-retaliatory reasons for the adverse actions suffered by the plaintiff, she may claim an inference that these reasons are pretextual — and that the real motive was retaliation — by producing evidence of the employer's "inconsistent or dishonest explanations, its deviation from established procedures or criteria, or the employer's pattern of poor treatment of other employees in the same protected group as the plaintiff, or other relevant evidence that a jury could reasonably conclude evinces an illicit motive."
Such other relevant evidence can include "temporal proximity between an employer's knowledge of protected activity and an adverse employment action."
The Government argues that it is entitled to summary judgment because there were valid, non-retaliatory reasons for disciplining Plaintiff and she has produced no evidence suggesting that those reasons were pretextual. The Government asserts that it has produced undisputed evidence that Plaintiff was insubordinate and acted unprofessionally, and was therefore disciplined for entirely valid business reasons. Def.'s Reply at 4-5; Def.'s Mot. at 11-13.
In addition, the Government contends that, in contrast, Plaintiff has failed to produce any evidence explaining why her supervisors would wish to retaliate against her when they were not the subject of her
Plaintiff responds that she has produced evidence from which a jury could reasonably conclude that the Government's stated reasons were pretextual and that the real reason for disciplining her was retaliation. Plaintiff points to the temporal proximity between her supervisors' knowledge of her prior EEO complaint and adverse actions, a pattern of inconsistent or dishonest explanations for the discipline she received, as well as other evidence.
While the Government has the stronger argument with respect to Bryon, Surber, Lewis, and Blocker, as to whom the Plaintiff has produced little evidence of retaliatory animus, the same cannot be said of Plaintiff's direct supervisor, Stowe. Plaintiff alleges that Stowe learned of her prior protected activity, and shortly thereafter began encouraging her to seek other employment or resign. Ex. 26 to Pl.'s Corr. Opp'n [Dkt. No. 65-6 at pp. 47-49]. Plaintiff further alleges that when she failed to take the hint, Stowe began an escalating campaign of threats and intimidation to force her from the agency.
Viewing the evidence in its totality and in a light most favorable to Plaintiff, and drawing all reasonable inferences in her favor, the Court finds that a jury could credit Plaintiff's account of events and reasonably conclude that it was Stowe's retaliatory animus, and not the otherwise legitimate reasons given by the Government, that caused the disciplinary actions against Plaintiff. Thus, there is a genuine dispute as to a material fact, the motive for disciplining Plaintiff.
Here, Plaintiff produces evidence showing that Stowe sought to encourage Plaintiff to leave her job within weeks of learning of her prior protected activity. According to Plaintiff, no more than a few weeks after Stowe gained this knowledge, Stowe began regularly telling Plaintiff that her superior, Bryon, hated her and encouraging her to retire or resign. Pl.'s Corr. Opp'n at 5; Ex. 26 to Pl.'s Corr. Opp'n [Dkt. No. 65-6 at pp. 47-49]. Plaintiff alleges that when she showed no interest in doing so, Stowe began attempting to intimidate or harass her, falsely accusing her of being away from
The Government argues that the period of time that elapsed between Plaintiff's 2008 EEO complaint and 2009 EEO Settlement and when the adverse actions were taken against Plaintiff is simply too long to infer retaliation. Therefore, the Government contends that the Court must disregard Plaintiff's evidence of temporal proximity.
The Government is certainly correct that a three to four month gap between protected activity and an adverse action is insufficient, on its own, to establish an inference of retaliation. Def.'s Mot. at 10 (citing
Additionally, the Government argues that it could not retaliate against Plaintiff for her 2011 EEO Retaliation Complaint, filed on March 10, 2011, when it had already suspended her for 5 days and proposed a new 30-day suspension prior to that date. Def.'s Mot. at 10 (citing
Therefore, the Court finds that this evidence supports an inference that Stowe acted with a retaliatory motive.
The Government also argues that even if the Court were to consider Plaintiff's evidence of temporal proximity, Plaintiff cannot survive summary judgment because she has not produced any additional evidence supporting an inference of retaliation. Def.'s Reply at 3 ("positive evidence beyond mere proximity in time is required" (quoting
She has produced evidence that supports her claim that Stowe repeatedly lied about Plaintiff's conduct and that these lies are the foundation for the Government's stated reasons for disciplining her. Pl.'s Corr. Opp'n at 13;
For example, Plaintiff's version of the meeting on November 17, 2010, is diametrically opposed to Stowe's, with each accusing
Similarly, Plaintiff disputes Stowe's account of the events of February 14, 15, and 24, 2011, accusing Stowe not only of giving a partial, misleading account of their interactions, but doing so in order to engineer a situation in which it would appear that Plaintiff was AWOL.
This competing evidence embodies the kind of "he said, she said" dispute, resolution of which requires a credibility judgment that is properly left to a jury.
Thus, there is a dispute as to Plaintiffs conduct, and this dispute is clearly material.
Other evidence suggests that Stowe was concerned with Plaintiff's prior protected activity, suggesting retaliatory animus. For example, Plaintiff alleges that Stowe, unprompted, requested to see a copy of the 2009 EEO Settlement, an otherwise confidential document. AC ¶ 14; Ex. 26 to Pl.'s Corr. Opp'n [Dkt. No. 65-6 at p. 46]. Such settlements are made confidential for the very purpose of minimizing any potential for retaliation, because a request to see one could be viewed as evidence of an improper concern with prior protected activity.
Furthermore, Plaintiff alleges that, shortly after the request was made, Stowe asked her whether she had an attorney. Ex. 8 to Pl.'s Corr. Opp'n [Dkt. No. #65-5 at p. 11]. This evidence suggests that Stowe was improperly interested in Plaintiff's prior protected activity and the possibility that she might engage in future protected activity, further supporting the inference that Stowe was motivated by a desire to retaliate.
Plaintiff also points to inconsistencies in Stowe's statements as further evidence of retaliation. Pl.'s Corr. Opp'n at 26. Plaintiff notes that Stowe denied ever knowing about the 2008 EEO Complaint or the 2009 EEO Settlement, when first asked during the investigation of Plaintiff's new, 2011 EEO Retaliation Complaint. Ex. 4 to Pl.'s Corr. Opp'n [Dkt. No. 65-4 at pp. 64]. This directly contradicts Plaintiff's evidence that Stowe not only knew of her prior EEO activity, but actively sought that information out. While Stowe later admitted that she did know of Plaintiff's prior protected activity,
While no single piece of evidence is dispositive, after "considering all the evidence in its full context," the Court readily concludes that a jury could reasonably infer that Plaintiff was subject to materially adverse disciplinary actions because Stowe sought to retaliate against her for her prior, protected EEO activity.
Finally, even though Stowe was not the deciding official in any of the disciplinary actions against Plaintiff, the Defendant may still be held liable under a "cat's paw" theory of retaliation. Under such a theory an employer may be held liable where: (1) a supervisor performs an act motivated by retaliatory animus; (2) the act is intended to cause a materially adverse action; and (3) the act is "a proximate cause" of the ultimate adverse action.
Here, Stowe played such an "integral role" in the disciplinary process that if a jury concluded she acted out of retaliatory animus, it could well conclude that her animus was a proximate cause of the disciplinary actions taken against Plaintiff.
Similarly, the Government argues that that there can be no inference that Plaintiffs constructive discharge was retaliatory, because the official who proposed her removal, Blocker, had no retaliatory animus. Def.'s Reply at 2 n.1; Def.'s Mot. at 10. As noted previously, Plaintiff has produced little evidence suggesting that Blocker had any desire to retaliate against Plaintiff. Nonetheless, a reasonable jury could conclude that Stowe's desire to retaliate influenced Blocker's Proposal to Remove Plaintiff to such a degree that it was a proximate cause of her constructive discharge.
In proposing to remove Plaintiff, Blocker expressly relied on the prior disciplinary actions taken against Plaintiff to conclude that her removal was warranted. Ex. 10 to Def.'s Mot. [Dkt. No. 59-9 at p. 6]. In turn, these disciplinary actions were based in large part on Stowe's accounts of her interactions with Plaintiff, accounts that Plaintiff alleges Stowe fabricated. Thus, Stowe's accounts were factual predicates for Blocker's decision.
Additionally, it is clear from the entire record that the Proposal to Remove was simply the ultimate step in a series of progressively punitive disciplinary actions, in which each increase in discipline was justified by the prior disciplinary actions. In other words, Plaintiff alleges that Stowe sought to drive Plaintiff from HUD, by fabricating accounts of misbehavior, and levying progressively harsher discipline on her, with Blocker's proposal simply the final step in this campaign. If a jury credited Plaintiff's claims, it could reasonably conclude that Stowe's animus was a proximate cause of Blocker's decision.
For these reasons, the Court finds that if a jury credits Plaintiffs allegation that Stowe acted with retaliatory animus, it could also reasonably conclude that Stowe's retaliatory acts were the proximate cause of each of the materially adverse actions that form the basis of her claims.
For the foregoing reasons, Defendant's Motion for Summary Judgment is
