ROSEMARY M. COLLYER, United States District Judge.
Deborah Cole sues The Boeing Company for alleged retaliation in violation of the District of Columbia Human Rights Act (DCHRA), D.C.Code § 2-1401.01 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Boeing denies that it retaliated against Ms. Cole in any way and contests Ms. Cole's allegations on all bases. The Court finds that Ms. Cole complained of actions by a civilian employee of the National Geospatial Intelligence Agency that were entirely unrelated to discrimination made unlawful by Title VII or the DCHRA. For these reasons, summary judgment will be granted to Boeing.
Deborah Cole, a Caucasian woman, worked as a contractor at the Washington, D.C., Navy Yard for BAE Systems PLC, or its predecessors, until early 2010. 2nd Am. Compl. [Dkt. 38] ¶ 34 n.9. Ms. Cole worked in the National Geospatial Intelligence Agency's (NGA)
Because Boeing disputes that Ms. Cole complained of discrimination barred by Title VII or the DCHRA, the Court quotes liberally from the record; none of the relevant facts is disputed, only their legal significance. According to Ms. Cole, she had difficulty being accepted by NGA managers in PSID because she is a photogrammetrist and not a geospatial analyst.
On April 1, 2010, Mr. Compton called Ms. Cole into his office and "then proceeded to yell at her, falsely accusing her of destroying the PLSS database," in the program where Ms. Cole had formerly worked. Id. ¶ 34. Mr. Compton said that "he ha[d] worked a long time to develop a good working relationship with PLSS and now [Ms. Cole] had ruined it." Id. ¶ 35. On April 2, 2010, Ms. Cole met again with Mr. Compton and he "told her that he did not want her on the contract and that he was pulling her out of Shawna McGhee's group." Id. ¶ 35. Mr. Compton stressed that he had no need for a photogrammetrist in his group, but needed a geospatial analyst. Id. ¶ 36. Ms. Cole was then transferred out of Ms. McGee's team. Distressed at Mr. Compton's accusation concerning the PLSS database, Ms. Cole immediately reported it to Mr. Hand.
Soon thereafter, employees working for NGA at the Washington Navy Yard were notified that representatives from the NGA Office of Inspector General (OIG) would be visiting on site and employees could make appointments to speak with them. Ms. Cole made an appointment and met with two OIG representatives on April 12, 2010. Ms. Cole reported to the OIG that Dean Compton was "slandering me from a previous group where I was working... [t]he PLSS on the second floor" that worked with L1. Mem. in Supp. of Mot. for Summ. J. [Dkt. 47-1](MSJ), Ex. A (Cole Dep.) at 174.
Robert Ballard, NGA's Contracting Officer Representative (COR), complained about Ms. Cole in a June 29, 2010 email to Mr. Hand, titled "Personnel Issue":
MSJ, Ex. D (Ballard 7/29/10 Email) at 3-4. Mr. Ballard sent a second email to Mr. Hand on July 13, 2010, forwarding a message from Mr. Compton concerning Ms. Cole's work in PSID. In that message, Mr. Compton noted that Ms. Cole was hired as a carto/photogrammetrist but that the contract now needed a geospatial analyst; that Ms. Cole's first assignment in PSID had been changed "to make sure she did not interact with our PL[SS] counterparts" [who had accused her of "messing up" the database]; that Ms. Cole "was only able to do tasks with extensive support
Mr. Hand forwarded Mr. Ballard's July 13 email to Ms. Cole within the hour of its receipt. His message: "Debbie, Just to confirm, did you contact NGA training for GA classes? I need details!!!" MSJ, Ex. F (Hand/Cole Email Chain) at 3-4. In her response, Ms. Cole stated that, "All I did was innocently call Gregg Clark last week who is with NGA training to ask him to find out what specifics there were to qualify for a GA position from a photogrammetry position because Rodd [Chin] said it would be a good idea to find out that info. Rodd kept pushing me to ask Dean for training, but I didn't." Id. at 3. She also complained about continuing "lies" about her that would "becom[e] more and more elaborate as time progresses." Id. at 2.
Ms. Cole asked Mr. Hand to "[p]lease let me know when I can sue Compton for for [sic] civil damages. What he has been saying about my previous job, even though my boss said he'd give me a great recommendation, cannot be legal.... Where I work now is the complete opposite of that place and I fell blessed I work with such wonderful people. I don't want to lose all of that because of pipsqueaks like Compton who abuse their authority...." Id. at 3.
Early the next morning, Mr. Hand answered Ms. Cole's late-night email, stating in full:
Mr. Hand answered Mr. Ballard on July 16, 2010, assuring him that the NGA OIG had investigated the PLLS database issue and found no incident of wrongdoing by Ms. Cole. Mr. Hand also told Mr. Ballard that he had spoken with the Boeing PSID supervisors and "was told that [Ms. Cole] was doing a great job.... All indications are that she is a valuable member of their team." Emails Re: Compton Comments at 3. Mr. Compton had ordered NGA employees not to talk with Boeing, so Mr. Hand was unable to obtain their input. Id. However, Mr. Hand reported that Ms. Cole had "made no formal requests for GA training" and only called NGA training "to find out what the NGA standard qualifications are for a GA." Id. Mr. Hand continued:
Id. at 4. On July 16, 2010, Mr. Hand forwarded his email to Ms. Cole "for your eyes only" (FYEO), and she responded on July 18, "Looks great !" Id. at 2.
The NGA Inspector General sent a letter dated July 16, 2010, addressed to Ms. Cole at her workplace, explaining that it had reviewed her "14 April 10 concern alleging mistreatment and a hostile working environment."
Ms. Cole received an interim performance evaluation from Mr. Hand in August 2010. Her overall rating was "Met Expectations" across 17 categories. Cole Dep., Ex. 9 (Interim Evaluation). She received the lower rating of "Met Some Expectations" in three categories and Mr. Hand commented that her interpersonal skills needed improvement. Id. Mr. Hand also rated Ms. Cole as having exceeded expectations in two categories and praised Ms. Cole for being "technically savvy and adaptable" and for going "the extra mile to prove herself and erase doubts." Id.
Mr. Hand notified Ms. Cole on August 27, 2010 that she was being transferred from the Washington Navy Yard office to a position at the NGA Crystal City, Virginia office to work on a new NGA contract beginning in October. Mr. Hand had previously asked Mr. Chin by email, on which Ms. Cole was copied, about swapping Ms. Cole's position with another geospatial analyst within the NGA contract because Mr. Hand "[didn't] see the friction between Debbie [Cole] and Dean [Compton] fading anytime in the next decade." Def. Facts, Ex. G (Email Chain Re: Swap) at 2. Mr. Hand discussed the possibility of a transfer with Ms. Cole in early August 2010, asking if she would like him "to find a position, you know, similar to this one outside where you don't have to worry about Dean Compton? You know, give you a
Based on these allegations, Ms. Cole alleges that Boeing violated her rights under the DCHRA and Title VII.
Ms. Cole exhausted her administrative remedies by filing a timely charge with the Washington, D.C. field office of the Equal Employment Opportunity Commission (EEOC), which was cross-filed with the D.C. Office of Human Rights. 2nd Am. Compl. ¶ 17. She received a Right to Sue letter from the EEOC in April 2011 and filed suit in the Superior Court of the District of Columbia on July 18, 2011, complaining of gender discrimination and retaliation in both the District of Columbia and Virginia, relying solely on the DCHRA. Boeing removed the case to federal court pursuant to 28 U.S.C. § 1441. See Notice of Removal [Dkt. 1]. On March 1, 2012, this Court dismissed all but one claim: Ms. Cole's claim for retaliation under the DCHRA based on facts occurring in the District of Columbia. See Cole v. Boeing Co., 845 F.Supp.2d 277 (D.D.C. 2012). Ms. Cole filed a motion for reconsideration, Dkt. 17, which the Court denied. See Order [Dkt. 20].
Ms. Cole then filed a Motion to Amend as of Right, or in the Alternative, Motion for Leave to File an Amended Complaint, seeking to add Title VII as a ground for her complaint. See Mot. to Amend [Dkt. 14]. On November 1, 2012, this Court granted leave for Ms. Cole to amend her complaint only to the extent that she sought to add Title VII as a ground for her claim that Boeing retaliated against her based on events that occurred in the District of Columbia. The motion was denied in all other respects. See Order [Dkt. 22]. Ms. Cole's First Amended Complaint was stricken as not in compliance with the Court's Orders as to the scope of the claims Ms. Cole could pursue. See Order [Dkt. 31]. Ms. Cole then filed a Second Amended Complaint on February 25, 2013. After discovery, Boeing filed a Motion for Summary Judgment [Dkt. 47], which is now fully briefed.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if 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(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On summary judgment, the burden on a moving party who does not bear the ultimate burden of proof in the case may be satisfied by making an initial showing that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317,
The burden then shifts to the nonmovant to demonstrate the existence of a genuine issue of material fact. The nonmovant may not rest on mere allegations or denials, but must instead by affidavit or otherwise, present specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (nonmovant must present specific facts that would enable a reasonable jury to find in its favor).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. In addition, if the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Summary judgment is properly granted against a party who "after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
District courts use "special caution" when considering summary judgment in employment discrimination or retaliation actions due to "the potential difficulty for a plaintiff ... to uncover clear proof of discriminatory or retaliatory intent." Nurriddin v. Bolden, No. 04-2052, 2014 WL 1648517, at *5 (D.D.C. Apr. 25, 2014) (citation omitted). "Nevertheless, the plaintiff is not relieved of his obligation to support his allegations with competent evidence." Id.
Boeing contends that Ms. Cole did not engage in any activity protected under Title VII or the DCHRA, did not suffer any retaliation or materially adverse action, and fails to show that Boeing's proffered legitimate non-retaliatory reasons for the alleged material adverse actions are pretextual.
Title VII prohibits an employer from retaliating against an employee "because [she] has opposed any practice made an unlawful employment practice by this title, or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title." 42 U.S.C. § 2000e-3(a). The McDonnell Douglas burden-shifting framework applies to claims of retaliation. Geleta v. Gray, 645 F.3d 408, 410 (D.C.Cir.2011) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). First, the plaintiff must establish a prima facie case of retaliation by showing that: (1) she engaged in protected activity; (2) she suffered from a materially adverse act; and (3) a causal connection exists between the protected activity and the employer's act.
With regard to whether an employer's action is "materially adverse," a court considers whether the action "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Pardo-Kronemann v. Donovan, 601 F.3d 599, 607 (D.C.Cir.2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Whether an action "is materially adverse depends upon the circumstances of the particular case, and `should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.'" Burlington, 548 U.S. at 71, 126 S.Ct. 2405 (quoting Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)).
Count I of the Second Amended Complaint alleges retaliation under Title VII, alleging that Ms. Cole "engaged in protected activity and opposition to practices made unlawful under Title VII by opposing discriminatory and/or harassing practices at the workplace, and/or by participating in protected activity with the OIG, and/or the EEO or EEOC." 2nd Am. Compl. ¶ 91. Boeing contends that it is entitled to summary judgment because Ms. Cole has failed to make out a prima facie case for retaliation. The Court agrees.
None of Ms. Cole's actions constituted protected activity under Title VII, which dooms her retaliation claim under that statute. Title VII does not bar ill treatment because an employee complains to an inspector general, because a manager erroneously blames the employee for suspected misconduct, or because a manager engages in actions perceived as harassment after such an IG complaint or erroneous accusation of blame. Protected activity under Title VII is limited to participating in EEO activity or opposing unlawful employment practices as defined in 42 U.S.C. § 2000e-2 & e-3, which deal exclusively with employment discrimination on the basis of race, color, religion, sex, or national origin. King v. Jackson, 468 F.Supp.2d 33,
Ms. Cole first argues that she engaged in protected activity when she informed Mr. Hand in April 2010 that Mr. Compton had accused her of destroying the PLSS database, threatened to terminate her, and harassed her. 2nd Am. Compl. ¶ 39. Less than two weeks later, Ms. Cole complained to the Office of the Inspector General that "the PLSS group and Mr. Compton were defaming her reputation by spreading lies about her and that she wanted it to stop." Id. ¶ 42. "She also informed the investigator that she felt she was being harassed and that she would also like to file a charge with NGA's Equal Employment Opportunity (EEO) office." Id.
Further describing her alleged protected activities, Ms. Cole alleges that she told Mr. Hand she went to the OIG "because she wanted the harassing treatment and false allegations to stop," id. ¶ 62, and because "Mr. Compton's slanderous allegations about her to the contract officer [were] reprisal for her filing a complaint against him with the OIG." Id. ¶ 64. In response to Mr. Hand's email advice, "DO NOT SUE," Ms. Cole told Mr. Chin that "she was frustrated that Mr. Compton was getting away with ruining her reputation and trying to destroy her career and that there was nothing she could do to stop it." Id. ¶ 72. Ms. Cole also alleges that she told Mr. Chin, a co-worker, on three separate occasions that she wanted to file an EEO complaint, but he failed to tell her
In describing her protected activity, not once does Ms. Cole mention unlawful discrimination in violation of Title VII. Notably, the Second Amended Complaint does not specify the nature of Ms. Cole's protected class, except to describe her as a "40 year old Caucasian female." 2nd Am. Compl. ¶ 10. Ms. Cole's own Declaration, which purports to describe all of her alleged protected activity, fails to mention discrimination or identify gender as an issue. See Cole Decl. at 2. Throughout the lengthy and detailed Second Amended Complaint, there are occasional references to the opinions of fellow employees that NGA was male-dominated and inhospitable to women, see 2nd Am. Compl. ¶¶ 29 (Ms. McGhee's experiences); id. ¶¶ 87, 88 (Stephen Fraise's opinions), but nothing in the operative allegations connects any aspect of Mr. Compton's alleged conduct or, more importantly, Boeing's responses, to either Ms. Cole's gender or to her alleged Title VII activity. References to the observations and perceptions of others are not evidence that Ms. Cole complained of activity made unlawful by Title VII.
Ms. Cole is quite candid that she blames Mr. Compton for slandering her reputation because he thought she had destroyed the PLSS database, because he thought she had destroyed his hard-won working relationship with PLSS, because she was not a geospatial analyst, and/or because she complained to the IG about him. See 2nd Am. Compl. ¶¶ 34, 36, 42, 53, 55-57, 64, 66, 67, 80, 81. In his deposition testimony, Mr. Hand emphasized that Ms. Cole "never came to me and said that it was a sexual harassment or discrimination case or any other sort of EEO complaint. I was under the assumption that it was a personality conflict and had no other cause to believe otherwise." Pl. Hand Dep. at 100; see also Mem. in Opp'n., Ex. D (Def. Hand Dep.) at 81 ("At no point did she mention sex discrimination, in any of her e-mails."). In the absence of evidence in the record that Ms. Cole reasonably believed she was the subject of discrimination made unlawful under Title VII, Ms. Cole's inquiry to her co-worker about filing an EEO complaint does not constitute protected activity. See Goode v. Billington, 932 F.Supp.2d 75, 93 (D.D.C.2013) (Plaintiff's threat to file a hostile work environment complaint was not protected activity because "[a]t the time the Plaintiff first threatened to file a hostile work environment complaint, the Plaintiff did not, and could not reasonably, believe he was being harassed on the basis of his religion.").
Even if Ms. Cole were found to have engaged in protected activity, Boeing would be entitled to summary judgment because Ms. Cole has failed to establish the second prong of her prima facie case. Ms. Cole argues that she suffered the following materially adverse actions: she was told not to sue Mr. Compton for civil damages; she received an average interim performance review; she was transferred from the Washington Navy Yard to a position at the NGA Crystal City, Virginia office; and she lost opportunities for overtime. See 2nd Am. Compl. ¶¶ 71, 84, 86; Plaintiff's Statement of Material Facts in
Ms. Cole seizes upon Mr. Hand's DO NOT SUE email to prove interference with her protected rights. In doing so, she ignores the context of the statement. Ms. Cole asked to be advised when she could sue Mr. Compton for slander and Mr. Hand answered, DO NOT SUE because it would interfere with Boeing's NGA contract. See Hand/Cole Email Chain at 2-3.
An average performance evaluation, such as the one Ms. Cole received in August 2010, may not rise to the level of a materially adverse action absent evidence that the evaluation affected an employee's "position, grade level, salary or promotion opportunities" or were "attached to financial harms." Taylor v. Solis, 571 F.3d 1313, 1321 (D.C.Cir.2009) (quoting Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C.Cir.2008) (internal quotation marks omitted)). Although Ms. Cole was transferred to Virginia after receiving the average performance evaluation, nothing in the operative allegations connects the performance evaluation to her transfer. She has presented no evidence that the evaluation itself affected her position, grade level, salary or promotion opportunities or was attached to financial harms; in fact, she was made a team lead after her transfer.
Similarly, Ms. Cole's transfer to the Virginia office does not rise to the level of a materially adverse action. A "lateral transfer — that is, a transfer involving no diminution in pay and benefits — may qualify as a materially adverse employment action if it result[s] in materially adverse consequences affecting the terms, conditions, or privileges of the plaintiff's employment." Geleta, 645 F.3d at 411 (citations and internal quotation marks omitted). Ms. Cole attests that the transfer did not result in the loss of pay and did not increase her commute. Cole Dep. at 209-210, 251. Ms. Cole became a team lead, which she thought was a good thing. Id. at 251. Her conclusory assertion that she lost opportunities to earn overtime pay is unsupported by any evidence in the record and cannot raise a genuine issue of material fact. Dist. Intown Properties Ltd. P'ship v. D.C., 198 F.3d 874, 878 (D.C.Cir.1999) (in deciding a motion for summary judgment, "the court must assume the truth of all statements proffered by the non-movant except for conclusory allegations lacking any factual basis in the record"); Greene, 164 F.3d at 675 (nonmovant must present specific facts that would enable a reasonable jury to find in its favor).
Ms. Cole's deposition testimony also makes clear that she perceived the transfer to be retaliatory for subjective reasons unrelated to her gender. She says she viewed the transfer as a form of retaliation against her "[b]ecause I was close with my teammates and we got along well, and also the people that I was seeing do the type of work that Dean Compton was placing on this project were not qualified to do it" and "because I had no say in anything. [Mr. Hand] just moved me." Cole Dep. at 247-48. "[P]urely subjective injuries, such as dissatisfaction with a reassignment ... are not adverse actions...." Holcomb, 433 F.3d at 902 (citations and internal quotation
Finally, were Ms. Cole able to show that she took actions protected by Title VII and that she suffered a materially adverse action, she nonetheless has failed to point to a genuine issue of material fact that her alleged protected activities were the but-for cause of her transfer. See Nassar, 133 S.Ct. at 2533 (to prevail on a Title VII retaliation claim, a plaintiff must prove but-for causation). A reasonable jury could not find that Boeing would not have transferred Ms. Cole to Virginia but for protected activity, in light of the problems between Mr. Compton and Ms. Cole. See Email Chain Re: Swap at 2 (Mr. Hand "[didn't] see the friction between Debbie [Cole] and Dean [Compton] fading anytime in the next decade."); Hand/Cole Email Chain at 2 (Mr. Hand emailed Ms. Cole that "Yes, while you're on this contract, you WILL have this sort of conflict the entire time as long as Dean Compton is your [NGA Point of Contact]."); Ballard 7/29/10 Email at 4 (Mr. Ballard emailed Mr. Hand that "the working relationship with PSID and PL are strained with Ms. Cole's continued presence"); Emails Re: Compton Comments at 5 (Mr. Compton emailed Mr. Ballard that "Ms [sic] Cole performs jobs when instructed but has very limited ability to perform at the expected level for an experienced GA."); Cole Dep. at 145-46 (Mr. Compton told Ms. Cole "he doesn't want me in that group, that they need a geospatial analyst, they don't need a photogrammetrist."); Id. at 159 ("I just remember back then being, feeling like why didn't Boeing management do their homework before I came to the site and find out if they wanted the right, the title or not."). See Rattigan v. Holder, 982 F.Supp.2d 69, 83 (D.D.C.2013) ("Under Nassar, the existence of true allegations implicating legitimate security concerns make it impossible for a jury to find that the [electronic communication detailing concerns about the Plaintiff] would not have been referred [to the FBI Security Division] but-for a retaliatory animus.").
The Court concludes Ms. Cole never complained of discrimination made unlawful under Title VII and that she could not have reasonably believed she was engaged in protected activity under Title VII while in Washington, D.C.; the evidence does not support a claim for retaliation due to a complaint of gender or other discrimination under Title VII. The Court further concludes that she did not suffer a materially adverse action and that there is no issue of material fact that her alleged protected activities were the but-for cause of her transfer. Ms. Cole has thus failed to establish a prima facie case of retaliation. Boeing's motion for summary judgment on Count 1 will be granted.
The DCHRA makes it unlawful to retaliate against a person "because that person has opposed any practice made unlawful by this chapter, or because that person made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing authorized under this chapter." D.C.Code § 2-1402.61(b). Count II of the Second Amended Complaint alleges retaliation under the DCHRA. Count II contends that Ms. Cole "engaged in protected activity
The analysis of Ms. Cole's claim of retaliation under Title VII applies equally to Ms. Cole's claim under the DCHRA. See Howard Univ. v. Green, 652 A.2d 41, 45 (D.C.Cir.1994) (retaliation claims under the DCHRA are analyzed using the same legal framework as federal retaliation claims). The Court will also grant the motion for summary judgment on Count II.
For the foregoing reasons, the Court will grant Boeing's motion for summary judgment and judgment will be entered in favor of Boeing. A memorializing Order accompanies this Opinion.
In her Opposition, Ms. Cole asserts that she "complained about her sexually hostile work environment to the OIG." Pl. Opp'n [Dkt. 48] at 11 (emphasis added). The claim that she complained about a sexually hostile work environment is not borne out by the record. See 2nd Am. Compl. ¶ 42 ("She also informed the [OIG] investigator that she felt she was being harassed...."); Cole Affidavit (Cole Decl.) [Dkt. 48-2] ¶ 4(i) ("I spoke to the NGA's OIG alleging my harassment and hostile work environment by Mr. Dean Compton...."); OIG 7/16/10 Letter ("The Office of Inspector General (OIG) reviewed your 14 April 10 concern alleging mistreatment and a hostile working environment...."). Moreover, even if Ms. Cole had complained to the OIG about "discrimination," this vague and unspecific statement would not be sufficient to alert anyone to a potential Title VII complaint. Critically, Ms. Cole does not offer any evidence that she complained to Boeing about discrimination made unlawful by Title VII.