ROYCE C. LAMBERTH, Chief Judge.
Rixene W. Hicks, an administrative specialist with the Pension Benefit Guaranty Corporation ("PBGC"), an agency of the United States government, brings this action against Joshua Gotbaum, the director of PBGC. Hicks alleges that the agency discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a.
The events giving rise to this case began when Hicks, an African American female over the age of 40, was detailed to PBGC as a "collateral duty counsel" with PBGC's equal employment office ("EEO office") in 2005. Am. Compl. ¶ 4; Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. 6 (Decl. of
For Hicks's work during fiscal year 2006, Hicks's supervisor, Lori Bledsoe, awarded her an "outstanding" rating. Hicks Decl. at 2; Def.'s Mot., Ex. 1 (Decl. of Lori Bledsoe, June 12, 2009) ("Bledsoe Decl.") at 2. Bledsoe contends, however, that in the fiscal year beginning after October 1, 2006, Hicks began to demonstrate performance problems. Bledsoe Decl. at 3. Specifically, Bledsoe avers that Hicks failed to provide updates to her supervisors regarding the status of her pending work; failed to proofread budget reports, EEO counselor reports, and meeting minutes prior to submitting them to her supervisors; and failed to timely pay PBGC contractors for their services. Bledsoe Decl., Attach. 2 (Memo from Lori Bledsoe to Rixene Hicks, May 10, 2007) ("Bledsoe Memo"). On April 5, 2007, Bledsoe instructed PBGC's Human Resources Department not to process Hicks' promotion to the GS-11 level. Bledsoe Decl., Attach. 1 (email from Lori Bledsoe to Human Resources Department, Apr. 5, 2007).
Bledsoe and Hicks met on May 10, 2007 to discuss Hicks's performance. Hicks Decl. at 2; Bledsoe Decl. at 3. Hicks contends that this meeting marked the first time Bledsoe informed her of any problems with her performance. Hicks Decl. at 2. Bledsoe maintains that she had previously raised these performance issues with Hicks during "day to day discussions," although she does not provide specific dates on which such discussions occurred. Bledsoe Decl. at 3.
On May 30, 2007, Hicks filed a grievance against Bledsoe, as a result of learning that she would not be promoted. Am. Compl. ¶ 8; Hicks Decl. at 2. After the filing of the grievance, Bledsoe and Hicks met again. Am. Compl. ¶ 9. Hicks contends that Bledsoe "demanded" that she sign a memorandum regarding a "counseling session that [Hicks] did not agree had taken place," and with which Hicks did not agree. Id. ¶ 11. Hicks further avers that Bledsoe denied her demands for a witness to be present, id. ¶ 12, and that when Hicks attempted to leave, Bledsoe "hollered" at her and physically blocked her exit, resulting in an injury to Hicks's rotator cuff. Id. ¶¶ 12-14; Hicks Decl. at 5.
Subsequently, Hicks applied for workers' compensation benefits for the injury she suffered as a result of the meeting. Hicks Decl. at 6. Hicks contends that PBGC obstructed her efforts to receive compensation by refusing to process her claim. Am. Compl. ¶ 34. PBGC's records indicate that the agency took some initial action on November 7, 2007 and then resubmitted the claim to the Department of Labor on February 13, 2008. Def.'s Mot., Ex. 12 (letter from Stephanie Holder, Nov. 6, 2007); Def.'s Mot., Ex. 14.
Hicks was transferred from the EEO office to PBGC's Office of Chief Counsel ("OCC") in July 2007. Def.'s Mot., Ex. 3 (Decl. of Betsy Masuoka, Oct. 10, 2008) ("Masuoka Decl.") at 1. Several months later, she accepted an offer of permanent reassignment to OCC at the GS-9 level. Def.'s Mot, Ex. 8 (Decl. of Ruben Moreno,
Hicks filed a complaint in the Superior Court of the District of Columbia in October 2007. See Notice of Removal of a Civil Action, at ¶ 2 [Dkt. # 1]. She also initiated contact with the Equal Employment Opportunity Commission ("EEOC") on November 26, 2007 and filed a formal complaint on July 16, 2008. Def.'s Mot., Ex. 17 at 1-2. PBGC removed the Superior Court action to this Court in November 2007. See Notice of Removal of a Civil Action, at ¶ 2.
In the case at bar, Hicks alleges that PBGC discriminated against her on the basis of her race, sex, and age by failing to promote her to the GS-11 level. She also alleges that, in retaliation for filing a grievance against Bledsoe, Bledsoe denied Hicks promotions and "further created a hostile work environment." Am. Compl. ¶ 44.
Summary judgment may be granted only 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(a); see Burke v. Gould, 286 F.3d 513, 517 (D.C.Cir.2002). A material fact is one that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue exists where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 248. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the nonmovant. Id. at 255. But the nonmoving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. FED.R.CIV.P. 56(c); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. After addressing whether PBGC's motion for summary judgment is premature, it applies the summary judgment standard to PBGC's motion and the evidence that Hicks's proffers in opposition.
PBGC maintains that summary judgment is appropriate at this time. Hicks, however, rejoins that she is entitled to discovery before summary judgment is granted. PBGC has the better argument.
Hicks's reliance on Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) is misplaced and unavailing. She argues that the case stands for the proposition that a plaintiff need not plead facts establishing a prima facie case. Although the Swierkiewicz case does stand for that proposition, its holding is inapposite. Swierkiewicz addressed the proper standards for resolving motions to dismiss under Rule 12(b)(6). It did not address the standard for evaluating a motion for summary judgment. To the extent that Hicks cites Swierkiewicz for the more general proposition that she is entitled to discovery, her argument is misguided. In order to stave off summary judgment, a party must "provide sufficient particularity to justify [a] request for discovery." Brookens, 616 F.Supp.2d at 96. It is not enough to make "conclusory assertions." Id. Because of Hicks's failure to provide a Rule 56(d) affidavit and because she has failed to identify what facts, if any, are necessary to discover, the Court concludes that it need not grant Hicks time to
In the absence of direct evidence of discrimination, Title VII and ADEA claims are analyzed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as simplified by Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008). Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discrimination, retaliation, or hostile work environment. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The employer can rebut this prima facie showing by presenting "some legitimate, nondiscriminatory reason" for the action in dispute. Id. The burden then shifts back onto the plaintiff to demonstrate that the asserted reason is pretextual. Id. at 805, 93 S.Ct. 1817.
Where a defendant has moved for summary judgment, however, and "where an employee has suffered an adverse employment action and an employer has asserted a legitimate non-discriminatory reason for the decision," courts need not evaluate whether a plaintiff has satisfied the burden of establishing a prima facie case. Brady, 520 F.3d at 494. Instead, courts set aside the McDonnell Douglas framework and ask: "Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee...?" Id.
PBGC argues that Hicks's race, sex, and age discrimination claims must fail because the agency had a legitimate, non-discriminatory reason for not promoting Hicks on two challenged occasions: while she worked in the EEO office and after she had been transferred to the Office of Chief Counsel ("OCC"). As its basis for the first non-promotion, the PBGC relies on principal factor: Hicks's performance deficiency. As evidence of this reliance, PBGC points to a June 6, 2007 memorandum from Bledsoe to Hicks counseling Hicks that she had frequently failed to complete assignments within deadlines. Bledsoe Memo at 1. The memorandum also states that Hicks did not pay an invoice for interpretive services on time and did not advise Bledsoe of the problem. Id. at 2. In addition, the memorandum cites Hicks's submission of a 2008-09 budget that was not realistic or accurate, as well as her numerous budget report proofreading mistakes, EEO counselor reports,
Turning to the second non-promotion at the OCC, the Court finds the agency also proffers a legitimate, non-discriminatory reason for this non-promotion decision as well: lack of opportunity to observe Hicks's performance. Hicks's administrative support specialist position in the OCC was designated as GS-9, with the potential for promotion. Matsuoka Decl. at 1-3. PBGC has introduced evidence that Hicks's OCC supervisor, Betsy Matsuoka, was prepared to promote Hicks to GS-11 if she found Hicks's performance to be sufficient at the end of a six-month observational period. Id. at 3. Hicks was never promoted, however, because Matsuoka did not have six months to observe Hicks; although six months had passed since Hicks began working at OCC, Hicks had only been at work for approximately five and a half weeks. Id. Hicks has asserted that her absences were due to health-related problems. Hicks Decl. at 8 (stating that she was out of the office due to the injury Bledsoe allegedly inflicted).
Because PBGC has proffered legitimate, non-discriminatory reasons for Hicks's non-promotion, the Court turns to the "central question" of whether Hicks has produced sufficient evidence such that a reasonable jury could infer that the non-promotions were the result of discrimination. Brady, 520 F.3d at 494. Hicks may defeat summary judgment by demonstrating that PBGC's proffered reasons were not the true reasons for her non-promotion, but instead amount to pretext for unlawful discrimination. Colbert v. Tapella, 649 F.3d 756, 758-59 (D.C.Cir.2011). In her filings, Hicks adduces three types of evidence. The Court addresses each category of evidence in turn and concludes that, because none demonstrate a genuine issue of material fact, PBGC is entitled to summary judgment.
Hicks's first category of evidence can more precisely be considered the lack of evidence related to her alleged deficiencies. Hicks argues that, prior to filing a grievance against Bledsoe, she was never apprised of alleged performance deficiencies "in writing." Pl.'s Opp'n at 12. This, however, is not sufficient to prove pretext. The fact that Bledsoe never provided documentation of Hicks's performance problems "in writing" does not, in and of itself, cast doubt on Bledsoe's stated concerns about Hicks's performance. It just means that Bledsoe did not apprise Hicks of those concerns in writing. See Pollard v. Quest Diagnostics, 610 F.Supp.2d 1, 33 (D.D.C.2009) (finding that a reasonable jury could not infer unlawful animus from the fact that the employer did not document complaints about the plaintiff in writing). Accordingly, the Court finds that Hicks's proffered evidence "`requires too much speculation to create a genuine issue of fact about [PBGC's] motives.'" Id. (quoting Carney v. Am. Univ., 151 F.3d 1090, 1094 (D.C.Cir.1998)).
The second category of evidence that Hicks puts forward addresses her performance more directly. Specifically, she contends that she never had any performance problems and that PBGC is incorrect to assert otherwise. In support of this argument, Hicks offers evidence that the problem with the invoices was not her fault. In a letter setting forth PBGC's decision on the grievance Hicks filed against Bledsoe, a PBGC official concluded that while Hicks "had the responsibility for processing those [invoice] payments," she "took the necessary actions of informing [her] supervisor of issues concerning those invoices and that management intervention was necessary, but for reasons unknown..., was not taken." Pl.'s Opp'n, Ex. 4 at 1 (Letter from Stephen Barber, Chief Management Officer, to Rixene Hicks, undated). This evidence rebuts PBGC's contention that Hicks was deficient in the processing of the invoices. Nevertheless, Hicks cannot create a genuine issue for trial by demonstrating that only one of PBGC's reasons for her non-promotion was false; she can only create a genuine dispute if she can make this demonstration with respect to all of PBGC's reasons. Kirk v. Small, 2004 WL 1249294, at *1 (D.C.Cir. June 7, 2004) ("[T]hat some of employer's reasons for firing plaintiff were successfully challenged by plaintiff `does not defeat summary judgment if at least one reason for each of the actions stands unquestioned.'") (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir. 1995)).
As additional proof that discrimination motivated PBGC's failure to promote her, Hicks points to the undisputed evidence that Hicks was hired into a permanent EEO position subsequent to being detailed to the EEO office and that she was given an "outstanding" rating for her performance in this position in 2006. But a strong performance in 2006 is not
Thus, in asserting that her performance was not deficient, Hicks has provided evidence with respect to the processing of the invoices; she has not, however, put forward sufficient evidence to demonstrate that PBGC's other concerns about her performance were pretextual. As such, she has not created a genuine issue for trial. Kirk, 2004 WL 1249294, at *1.
The third type of evidence relates to the investigation of the incident in which Hicks alleges that Bledsoe "attack[ed]" her. Pl.'s Opp'n at 11. In particular, Hicks suggests that procedural irregularities plagued the investigation and that they are evidence of PBGC's illegal discrimination against her. As support, Hicks notes that she was not allowed to have a representative attend a hearing regarding the investigation. Pl.'s Opp'n, Ex. 9 (email from Ricardo Silva to Stuart Bernsen, June 18, 2007). Hicks does not, however, proffer any evidence to suggest that employees are ordinarily entitled to have representatives at such hearings. Hicks also puts forward evidence that the Federal Protective Service did not investigate the incident. Pl.'s Opp'n, Ex. 10 (letter from Rixene Hicks to Office of Inspector General, Apr. 11, 2008). Hicks suggests that the Federal Protective Service was "blocked" from doing so. Pls.'s Opp'n at 11. Again, however, Hicks fails to provide any support for the notion that the Federal Protective Service's lack of investigation was a departure from normal procedures.
Despite these attempts to raise the specter of irregular procedures, there is nothing in the record from which a reasonable jury could conclude that Hicks was treated differently from the way in which PBGC's policies and procedures would dictate she should have been treated.
In sum, PBGC has provided two facially permissible reasons for its non-promotion decision: performance deficiencies during Hicks's time in the EEO office, and insufficient opportunity to observe Hicks's performance during her time in OCC. With respect to her performance deficiencies in the EEO office, Hicks has rebutted PBGC's evidence that she was at fault in the processing of the invoices. She has failed, however, to demonstrate that PBGC's other proffered reasons were not the true reasons for her non-promotion. With respect to the insufficient opportunity to observe Hicks's performance in the OCC, Hicks has not provided any rebuttal evidence at all. As such, Hicks has failed to create a triable issue as to whether either of PBGC's proffered explanations were pretext. The Court will therefore grant PBGC's motion for summary judgment with respect to Hicks's non-promotion claim.
Hicks contends that PBGC discriminated against her in processing her workers' compensation claim because the agency acted too slowly. PBGC argues that no discrimination occurred and that, in fact, the agency processed Hicks's claim faster than those of other similarly situated employees. The Court agrees with PBGC.
Hicks has not rebutted the PBGC's evidence. In her opposition to summary judgment, she cites an email describing the customer service record of the PBGC representative involved in processing Hicks's claim as "unparalleled." Pl.'s Opp'n, Ex. 8 at 1 (email from Ruben Moreno to Ricardo Silva and other recipients, Jan. 16, 2008). Hicks presumably proffers this email to suggest that the representative normally performed well, but that, with respect to Hicks, her service was lacking. This evidence does not rebut the facts that PBGC adduces in support of its contention that Hicks was not disparately treated with respect to processing time.
The basis for Hicks's hostile work environment claim is difficult to discern. Her complaint merely states that she experienced a hostile work environment and does not identify specific evidence that supports this claim. See Am. Compl. ¶ 44. Her opposition brief, meanwhile, does not address the issue of hostile work environment at all. Giving Hicks the benefit of the doubt, the Court reads her complaint to indicate that all of the activity about which she complains forms the basis of her hostile work environment claim. As a
"Not all things that make an employee unhappy create a hostile work environment." Graham v. Holder, 657 F.Supp.2d 210, 216 (D.D.C.2009). Rather, a hostile work environment is actionable "when workplace conditions are so suffused with discriminatory intimidation, ridicule and insult of such severity or pervasiveness as to alter the conditions of the victim's employment." Hussain v. Principi, 344 F.Supp.2d 86, 107 (D.D.C.2004) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)) (internal quotation marks and alterations omitted). In addition, a plaintiff must offer evidence of a causal connection between her protected status and the harassment. Na'im v. Clinton, 626 F.Supp.2d 63, 77 (D.D.C.2009). Such a showing is necessary because the anti-discrimination statutes do not "prohibit all forms of workplace harassment, only those directed at discrimination" based on protected status. Lee v. Winter, 439 F.Supp.2d 82, 85-86 (D.D.C.2006).
Hicks describes a meeting with Bledsoe in which Bledsoe refused to allow Hicks to have a witness present and prevented Hicks from leaving the room. Pl.'s Opp'n, Ex. 1. If true, such an occurrence would certainly be unwelcome and threatening. PBGC correctly observes, however, that there is no evidence of derogatory remarks, intimidation, ridicule or insult based upon race, sex, or age. Indeed, there is no evidence that this incident was at all connected to Hicks's status as an African American, a woman, or an individual over the age of 40. In addition, for the reasons described earlier in this opinion, there is no evidence that Hicks's non-promotion to GS-11 or the processing of her workers' compensation claim was related in any way to her race, sex, or age. Because "it must be clear that the hostile work environment was the result of discrimination based on a protected status," Hicks's hostile work environment claim must fail. Smith v. Jackson, 539 F.Supp.2d 116, 139 (D.D.C.2008) (quoting Singh v. U.S. House of Representatives, 300 F.Supp.2d 48, 56 (D.D.C.2004) (internal quotation marks omitted)).
Even if Hicks had provided evidence of a causal connection between these events and her protected status, she still has not demonstrated that the events at issue amount to an actionable hostile work environment claim. PBGC is correct to characterize the meeting between Hicks and Bledsoe as an "isolated event." Def.'s Mem. at 12. Indeed, there is no evidence in the record of any other workplace disturbances — either physical or verbal in nature. The other events about which Hicks complains — her non-promotion and the processing of her workers' compensation claim — are the same events Hicks relies upon to support her disparate treatment claim. Hicks cannot "bootstrap discriminatory claims into a hostile work environment claim." Nurriddin v. Goldin, 382 F.Supp.2d 79, 108 (D.D.C.2005). That is because "`[d]iscrete acts constituting discrimination or retaliation claims ... are different in kind from a hostile work environment claim that must be based on severe and pervasive discriminatory intimidation or insult.'" Id. at 108-09 (quoting Lester v. Natsios, 290 F.Supp.2d 11, 33 (D.D.C.2003)).
Moreover, viewed as a whole, the facts Hicks has put forward do not rise to the
Employers are forbidden "from discriminating against an employee or job applicant because that individual opposed any practice made unlawful by Title VII or made a charge, testified, assisted, or participated in a Title VII proceeding or investigation." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (describing Title VII's retaliation provision) (internal alterations and quotation marks omitted). The same ban on retaliation applies under the ADEA. Gomez-Perez v. Potter, 553 U.S. 474, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008). Hicks contends that PBGC's discrimination against her and its hostile work environment constitute retaliation. Specifically, she alleges that Bledsoe denied Hicks promotions and "further created a hostile work environment." in retaliation for Hicks' filing of a grievance against Bledsoe. Am. Compl. ¶ 44. This claim cannot survive because the Court has already concluded that PBGC is entitled to summary judgment on both Hicks's discrimination and hostile work environment claims. See Hussain v. Gutierrez, 593 F.Supp.2d 1, 11 (D.D.C. 2008) (dismissing retaliation claim that alleged defendants retaliated against plaintiff by creating a hostile work environment and terminating her contract because the court had already concluded that plaintiff had failed to present evidence upon which a reasonable jury could find that she was subjected to a hostile work environment or illegal discrimination).
For the foregoing reasons, PBGC's motion for summary judgment must be granted as to all of Hicks's claims. An appropriate order accompanies this memorandum opinion.
