BERYL A. HOWELL, District Judge.
Plaintiff Lee T. Staropoli, a former Postal Inspector, brings this lawsuit against the Defendant Postmaster General of the United States, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., alleging that she was subject to disparate treatment discrimination on the basis of sex (Count I), disparate impact discrimination on the basis of sex (Count II), and retaliation for engaging in protected activity (Count III). Complaint ("Compl."), ECF No. 1, at 9-14. This Court earlier denied the Defendant's Motion to Dismiss, finding that the plaintiff exhausted her administrative remedies. Order (May 25, 2011), ECF No. 24; Memorandum Opinion (May 25, 2011), ECF No. 23. Pending before the Court is the Defendant's Motion for Summary Judgment. ECF No. 33. The plaintiff opposes summary judgment as to Counts I and III, Pl.'s Opp'n to Def.'s Mot. for Summ. J., ECF No. 39, at 1-2, but agrees to a voluntary dismissal of Count II, id. at 2 n. 1. Accordingly, the Court grants the Defendant's Motion for
The plaintiff was an employee of the United States Postal Service, beginning in 1987, until her termination in 2001. Compl. ¶¶ 4, 41, Defendant's Answer ("Answer"), ECF No. 25, ¶¶ 4, 41. The plaintiff entered the United States Postal Service as a letter carrier in the Boston, Massachusetts area, and was later promoted and became a Postal Inspector in Buffalo, New York. Def.'s Statement of Material Facts of Which There is No Genuine Dispute in Supp. of Mot. for Summ. J. ("Def.'s Facts"), ECF No. 33-2, ¶¶ 1, 3.
In 1998, the plaintiff's husband, another U.S. government employee, was transferred to the Washington, D.C. area for work. Id. at ¶ 7. The plaintiff then applied for, and received, a position as a Polygraph Examiner in the Washington, D.C. area. Id; see also Transcript of Deposition of Lee Staropoli (Dec. 14, 2011), ECF No. 33-3 ("Staropoli Dep.") at 25:8-25.
In 1997, before the plaintiff's transfer to the Washington, D.C. area, USPIS implemented a new pay schedule for all Postal Inspectors called "the law enforcement availability pay," or "LEAP," whereby law enforcement officers, including polygraph examiners, receive a 25 percent pay increase for working fifty-hour weeks. Compl. ¶ 9; Answer ¶ 9; Def.'s Facts. ¶ 8. USPIS developed the LEAP program in response to a congressional mandate in 39 U.S.C. § 1003(c), enacted as part of the Omnibus Consolidated Appropriations Act of Fiscal Year 1997, Pub.L. No. 104-208, 110 Stat. 3009, 380-81 (1996). Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem"), ECF No. 33-1, at 21-22 (quoting Powell v. U.S. Postal Serv., No. 99-3320, 2000 U.S.App. LEXIS 2090 (Fed.Cir.2000) (per curiam)). Specifically, section 1003(c) required that "[c]ompensation and benefits for all Postal Inspectors ... be maintained on a standard of comparability to the compensation and benefits paid for comparable levels of work in the executive branch of the Government outside of the Postal Service." Pub. L. No. 104-208, 110 Stat. 3009, 380-81 (enacting 39 U.S.C. § 1003(c)). Pursuant to this statutory mandate, a Postal Service task force studied the "General Schedule" ("GS") pay system used in nearly every other federal law enforcement agency, and after concluding that a direct conversion to that pay system was impossible, designed and implemented regulations, including LEAP, to fulfill the congressional mandate. See Powell, 2000 U.S.App. LEXIS 2090 at *2-3. LEAP governed the plaintiff's salary during her entire Washington, D.C. area tenure with USPIS. See Compl. ¶¶ 9, 13; Answer ¶ 9; Def.'s Facts ¶¶ 10, 12.
Although she inquired about part-time employment possibilities at the time she accepted the transfer offer, Staropoli Dep. at 39:14-17, the plaintiff understood that her new position would require full-time, fifty-hour weeks pursuant to the LEAP program. Id. at 40:6-9.
While USPIS originally hired the plaintiff to conduct polygraph examinations only in Maryland, the District of Columbia, and Virginia, Def.'s Facts ¶ 11, Staropoli Dep. at 27:13-22, USPIS expanded her geographic responsibilities in 1998 to include North Carolina and South Carolina, following the illness and death of another USPIS polygraph examiner, Def.'s Facts ¶ 13; Staropoli Dep. at 33:2-19. In three years of covering these geographic areas, the plaintiff never requested a decrease in her travel. Id. at 36:16-18.
Indeed, after her transfer, the plaintiff successfully worked the required fifty-hour weeks for three years. See id. at 40:10-17. This means, as the defendant points out, that the plaintiff was able to sustain a 50 hour-a-week schedule after "1) the institution [in 1997] of LEAP pay and its 50 hour workweek requirement, 2) her selection for a position in Washington and subsequent
Following her transfer, the plaintiff advocated for certain changes in working conditions — notably, a part-time employment program for USPIS — and even co-authored, in 1999, a detailed, eighty-five page proposal for creating a more family-friendly culture in the agency. Compl. ¶ 14; Ans. ¶ 14; see also Lee T. Staropoli & Rose M. Papa, The Heart of the Matter: Creating a Family Friendly Work Culture in the Inspection Service ("The Heart of the Matter"), Nov. 29, 1999, ECF No. 33-4.
The Heart of the Matter stated, inter alia, that "[p]ressures to meet the demands of family, work, continuing education, volunteer and charitable activities, spiritual pursuits, and recreation present some of the greatest challenges confronting the average American worker," and that "[t]he pressures facing the federal law enforcement community are even greater." Cover Letter from Plaintiff and Rose M. Papa to Kenneth Weaver, Chief Postal Inspector (Nov. 29, 1999), in The Heart of the Matter at LTS 1521. The document, based in part on written testimonials from women at USPIS,
The Chief Postal Inspector, Kenneth C. Weaver, considered The Heart of the Matter, as did USPIS' Executive Committee. Compl. ¶¶ 15-16, Answer ¶¶ 15-16. The Executive Committee apparently rejected the proposal in their May 16-17, 2000 meeting, and the Chief Postal Inspector, on August 9, 2000, notified the plaintiff that USPIS would not implement the recommendations in the Heart of the Matter. Compl. ¶¶ 15-19; Answer ¶¶ 15-19.
Around the time that USPIS decided not to implement the proposals in The Heart of the Matter, and after the plaintiff had made clear that she was advocating for more family friendly policies at USPIS,
Although the Executive Committee had rejected The Heart of the Matter proposal, the plaintiff continued to advocate for workplace changes, and in particular for a part-time employment program, as well as for part-time employment for herself. On December 13, 2000, for example, the plaintiff wrote a letter to the Chief Postal Inspector "requesting that the Agency issue a decision concerning her recommendations and the Proposal." Compl. ¶ 20, Answer ¶ 20. On January 16, 2001, Chief Postal Inspector responded, "reiterating the Agency's position rejecting the proposal." Compl. ¶ 21; Answer ¶ 21. Furthermore, although USPIS still did not offer a part time employment program, the plaintiff, on February 26, 2001, sent a letter to Chief Postal Inspector Kenneth Weaver, through her first-line supervisor James Wachuta, requesting part-time employment in order to meet her family responsibilities. Letter from Lee Staropoli, U.S. Postal Inspection Service, to Kenneth Weaver, Chief Postal Inspector, U.S. Postal Inspection Service (Feb. 26, 2001), ECF No. 39-8.
On February 9, 2001, the plaintiff also initiated an "individual and class complaint alleging that [USPIS'] pay policy discriminated against female Postal Inspectors." Compl. ¶ 22; see also Answer ¶ 22; Pl.'s Opp'n at 17; 1st EEO Compl., ECF No. 39-7. (This is not the EEO proposal underlying the instant action.) The Counsel/Inspector in Charge responded to that Complaint internally, noting that "[t]he `allegations' [made in the complaint] are not at all supported by a factual basis upon which we could provide an intelligent response. There's absolutely no basis articulated for even considering at this point designation of class action status." E-mail from Lawrence Katz, Counsel/Inspector in Charge, U.S. Postal Inspection Service, to Deborah L. Lewis, U.S. Postal Inspection Service (May 8, 2001 8:37 a.m.), ECF No. 39-7, at 11. Although not formally responding to the Complaint, USPIS did offer to send a member of its Executive Committee to meet with the plaintiff to discuss her concerns, and noted that "Ms. Staropoli has been an advocate of part-time employment for postal inspectors." Id.
In March, 2001, the plaintiff took two weeks of sick leave, providing medical documentation that the plaintiff had Chronic Fatigue Syndrome. Pl.'s Opp'n at 18.
In April, 2001, the plaintiff again requested part-time employment status by contacting Acting Deputy Chief Inspector Rowan. Pl.'s Opp'n at 19. On April 24, 2001, the plaintiff also informed the Assistant Inspector-in-Charge, James Wachuta, that she "could no longer work a 50-hour week due to the Agency's discriminatory pay policy and [the] Agency's failure to implement the Proposal to allow a part-time program schedule to assist women with family and childcare responsibilities." Compl. ¶ 24; see also Answer ¶ 24.
The plaintiff's second-line supervisor, Geffen, denied both her request for part-time employment and her request for a leave of absence. Compl. ¶ 27; Answer ¶ 27; Letter from Roy W. Geffen to Plaintiff (May 7, 2001), ECF No. 33-7. He explained that "[t]here is still no part-time agent program in the Postal Service" and that the plaintiff "occup[ies] a unique position within the Inspection Service" and that USPIS' "operational needs" require full staffing "in strategic locations," including "in this locale." Letter from Roy W. Geffen to Plaintiff at 1.
While denying the plaintiff's request for part-time employment on the grounds that no part-time program existed, Geffen mentioned to the plaintiff other possible options, including 30 days of annual leave, or long-term leave for a serious health condition under the Family and Medical Leave Act. See id.
Subsequently, Geffen granted the plaintiff leave from May 1, 2001 to July 16, 2001 after she provided medical documentation that she was not able to work but could return to work on July 16, 2001. See Def.'s Facts ¶ 21; Letter from Plaintiff to Chief Inspector Weaver (July 13, 2001), ECF No. 33-6, at 1; Letter from Roy W. Geffen to Plaintiff (July 20, 2001), ECF No. 33-8; Pl.'s Opp'n at 20.
The plaintiff accepted Geffen's offer of leave but, on July 16, 2001, the day she was medically cleared to return to work, the plaintiff did not report back to work. See Letter from Roy W. Geffen to Plaintiff (July 20, 2001), ECF No. 33-8 (noting that he had only approved leave through July 13, 2001, that the plaintiff's health care provider had indicated a return date of July 16, 2001, and that "[a]s of this date, [the plaintiff had] not reported for duty nor ... provided medical documentation stating [her] incapacity to perform the duties of [her] position"). Since the plaintiff did not return to work, Geffen placed the plaintiff on Absent Without Leave ("AWOL") status, effective July 16, 2001, and stated that the plaintiff was "directed to report for duty immediately." Id.
Despite her supervisor's clear orders to return to work, the plaintiff never returned to work, nor did she submit any medical documentation to establish that she was incapable of returning to work. See Staropoli Dep. at 80:2-4; Memorandum to File from Roy W. Geffen, Inspector in Charge, U.S. Postal Inspection Service, RE: Lee Staropoli (July 26, 2001), ECF No. 33-9 (noting that he had spoken with the plaintiff and that she had stated that "under my present condition, I [cannot] return to a 50 hour work week" and noting that he had not received "any current medical documentation" to this effect); Memorandum to File from Roy W. Geffen, Inspector in Charge, U.S. Postal Inspection Service, RE: Lee Staropoli (Aug. 20, 2001), ECF No. 33-10. Evidently,
The plaintiff also apparently did not pursue alternative employment arrangements that would have allowed for her to work fewer hours. For example, while the plaintiff continued to request part-time employment, she declined Geffen's offer to opt out of the LEAP program temporarily to work a 40-hour week because she did not, at the time, think she could work 40 hours a week. See Memorandum to File from Roy W. Geffen RE: Lee Staropoli (July 26, 2001), ECF No. 33-9; Staropoli Dep. at 90:2-7. Furthermore, while the plaintiff continued to request part-time employment despite the fact that her position as a Postal Inspector was not eligible for part-time employment at the time, see Memorandum to File from Roy W. Geffen RE: Lee Staropoli (Aug. 20, 2001), ECF No. 33-10, the plaintiff did not apply for any non-inspector part-time positions that would have qualified her for part-time employment. See Staropoli Dep. at 99:3-8 ("Q: Did you apply for a headquarters part-time position? A: I asked them for part-time. Q: Did you apply for a position at headquarters that would have placed you on part-time status? A: No.").
After the plaintiff ignored Geffen's direct order to return to work, and after Geffen placed the plaintiff on AWOL, Geffen proposed that USPIS terminate the plaintiff's employment. See Letter from Roy W. Geffen, Inspector in Charge, U.S. Postal Inspection Service, to Lee Staropoli, U.S. Postal Inspection Service, RE: Notice of Proposed Adverse Action-Removal (Aug. 28, 2001), ECF No. 33-11.
Shortly after Geffen proposed the plaintiff's removal, USPIS announced, in September 2001, that it would begin a part-time employment program in January of 2002. See Letter from Lee T. Staropoli, U.S. Postal Inspection Service, to Kenneth Newman, Deputy Chief Inspector, U.S. Postal Inspection Service, and Roy Geffen, Inspector in Charge, U.S. Postal Inspection Service (Sept. 17, 2001), ECF No. 39-11. The plaintiff requested leave without pay until she could be assigned to the new part-time program when it commenced in slightly less than three months, id. at 1, but that request was not granted.
Almost three years after the effective date of her termination, and over four years after she had last reported for work, the plaintiff filed an administrative complaint against the Postal Service with the Equal Employment Opportunity Commission ("EEOC") on October 17, 2005. See Memorandum Opinion, ECF No. 23, at 3. On June 26, 2007, an EEOC Administrative Law Judge ("ALJ") held a hearing, and issued a bench decision dismissing the case on the merits the same day. See id.; Hearing Transcript & ALJ Decision (June 26, 2007), ECF No. 11-5, at 27 (finding that the plaintiff "has not shown that the agency's reason for its action is a pretext for gender discrimination or reprisal, or that the real reason for its action is gender discrimination or retaliation"). Staropoli appealed the ALJ's decision to the EEOC's Office of Federal Operations ("OFO") on August 4, 2008, and OFO dismissed the appeal as untimely by a ruling issued on December 3, 2008. See Memorandum Opinion, ECF No. 23, at 3. On December 22, 2008, Staropoli moved for reconsideration of the denial of her appeal, and the OFO again denied the appeal on reconsideration on June 19, 2009. See id. at 3.
The plaintiff filed her Complaint in this Court on September 17, 2009.
Following the denial of the defendant's motion to dismiss, the Court's initial scheduling order required the parties to complete discovery by December 20, 2011, see Scheduling Order of July 7, 2011; the Court extended these deadlines by consent of the parties through January 20, 2012, see Minute Order (Dec. 20, 2011).
The defendant has now filed a Motion for Summary Judgment, ECF No. 33, which is pending before the Court.
Federal Rule of Civil Procedure 56 provides that 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). 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
In ruling on a motion for summary judgment, the Court must draw all justifiable inferences in favor of the nonmoving party, and shall accept the nonmoving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C.Cir.2011); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider "other materials in the record." FED.R.CIV.P. 56(c)(3). For a factual dispute to be "genuine," Estate of Parsons, 651 F.3d at 123, the nonmoving party must establish more than "[t]he mere existence of a scintilla of evidence" in support of its position, Anderson, 477 U.S. at 252, 106 S.Ct. 2505, and cannot simply rely on allegations or conclusory statements, see Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. See Anderson, 477 U.S. at 250, 106 S.Ct. 2505. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (citations omitted).
The plaintiff alleges in her Complaint that she was subject to disparate treatment discrimination on the basis of sex (Count I), disparate impact discrimination on the basis of sex (Count II), and retaliation for engaging in protected activity (Count III). See Compl. at 9-14. The defendant moves for summary judgment on all three counts, arguing, inter alia, that her disparate impact claim fails as a matter of law because the "[p]laintiff's willful failure to provide any statistical information or expert reports prevents her from establishing a prima facie case of disparate impact discrimination," and that her disparate treatment and retaliation claims fail because, "[c]ontrary to Plaintiff's allegations, she was not removed from her position due to her gender or in retaliation for prior conduct, but rather because Plaintiff refused to come to work, as Plaintiff herself admitted at her deposition under oath." Def.'s Mem. at 1, 15; Def.'s Reply at 11 (arguing that the "undisputed reason that USPIS removed Plaintiff from the federal service was because she chose not to report to work," and that "[t]his legitimate, non-discriminatory, and non-retaliatory reason for the Agency's action entitles it to judgment as a matter of law"). As noted, the plaintiff opposes summary judgment as to Counts I and III, Pl.'s Opp'n at 1-2, but agrees to a voluntary dismissal of Count II, id. at n. 1. Since the plaintiff has conceded that the defendant is entitled to summary judgment as to Count II, the Court will proceed by addressing the plaintiff's only remaining claims, in Counts I and III, seriatim below.
The Court first turns to the plaintiff's claim that she was subject to disparate treatment due to the defendant's discrimination against her on the basis of her sex in violation of Title VII. Compl. at 9-11. The plaintiff alleges in her Complaint that the defendant discriminated against her on the basis of her sex by: (1) "denying her request for part-time employment to assist with her family and childcare responsibilities;" (2) "denying her request to participate in a Part-Time Inspector Program that would have assisted with her family and childcare responsibilities;" and
In a case where there is no direct evidence of discrimination, the Court is guided in its analysis of circumstantial evidence by the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pursuant to the McDonnell Douglas framework, it is the plaintiff's burden first to establish a prima facie case of sex discrimination by showing that "(1) ... she is a member of a protected class; (2) ... she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Nguyen v. Mabus, 895 F.Supp.2d 158, 174 (D.D.C.2012). If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for its actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the defendant establishes a legitimate, nondiscriminatory reason, "the burdenshifting framework disappears, and a court reviewing summary judgment looks to whether a reasonable jury could infer intentional discrimination... from all the evidence." Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C.Cir.2004).
Courts "need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas," however, where (1) "an employee has suffered an adverse employment action," and (2) "an employer has asserted a legitimate, non-discriminatory reason for the decision." Brady v. Office of the Sergeant at Arms, U.S. House of Reps., 520 F.3d 490, 494 (D.C.Cir.2008) (emphasis in original). In this case, the plaintiff suffered an adverse employment action when she was terminated from USPIS, and the defendant has asserted a legitimate, non-discriminatory reason for the decision, namely that she "refused to come to work, as Plaintiff herself admitted at her deposition under oath." Def.'s Mem. at 1; see id. at 15 (noting that "the undisputed reason that USPIS removed Plaintiff from the federal service was because she chose not to report to work").
Here, the plaintiff has not produced "sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason" for her termination and that "the employer intentionally discriminated against the employee on the basis of [sex]." Brady, 520 F.3d at 494. Rather, the record is clear that the plaintiff was terminated because she was AWOL from work, with no medical explanation for her absence, and that, furthermore, her employer made earnest efforts to get her to come back to work before they terminated her. See Letter from Roy Geffen, Inspector in Charge, to Plaintiff (July 20, 2001), ECF No. 33-8 (notifying the plaintiff that she was being placed on AWOL status effective July 16, 2001 because her health care provider had "indicated a return to duty date of July 16, 2001"); see id. ("As of this date, you have not reported for duty nor have you provided medical documentation stating your incapacity to perform the duties of your position."); Memo to File from Roy W. Geffen, Inspector in Charge, Regarding Lee Staropoli (July 26, 2001), ECF No. 33-9 (noting that he had informed the plaintiff by phone that "due to the fact that she has not provided any medical documentation for me to review, she has not requested a 40 hour (without LEAP) temporary assignment, so she needs to come back to work immediately"); see id. (noting that the plaintiff acknowledged on the telephone that "I understand you are ordering me back to work," and "I am telling you I can not and will not be returning to work at this time"); see id. (noting that Geffen told the plaintiff "I have no choice but to write her a letter of removal," and that the plaintiff stated "I have to do what I have to do"); Memo to File from Roy W. Geffen, Inspector in Charge, RE: Lee Staropoli (Aug. 20, 2001), ECF No. 33-10 (noting that Geffen called the plaintiff because he "was hoping she had changed her mind" and reported to work that morning, and that plaintiff responded "Roy, I told you Friday I was not going to be there"); Letter from Roy Geffen, Inspector in Charge, to Plaintiff Regarding Notice of Proposed Adverse Action — Removal, ECF No. 33-11 (providing the plaintiff notice of a proposal to remove her from employment based on the plaintiff's AWOL status); see id. at 3 (explaining that Geffen had "no choice but to take this action" because the plaintiff "refused to return to [her] assignment and ... made it clear that [she had] no intention of doing so"); see id. (stating that plaintiff "could and
As the defendant notes, the plaintiff herself admitted in her deposition that her unauthorized absence from work was the reason for her termination.
Staropoli Dep. at 86:10-24. The plaintiff attempted to clarify in her deposition that the "cause of [her] removal was the agency's unwillingness to give me any leave, and to not place me on AWOL status" and "they had choices to make." Id. at 86:25 to 87:1-2. The plaintiff characterizes the defendant's argument that the plaintiff was terminated because she did not return to work as "simplistic and deceptively convincing at first blush." Pl.'s Opp'n at 2. Yet, the record is, in fact, crystal clear that the plaintiff was terminated due to her being AWOL without a medical excuse, that the plaintiff was aware of this basis for her termination, and, furthermore, that the plaintiff had opportunities to rectify the situation but did not do so by, for example, providing a medical excuse for her absence or reporting to work. Hence, the defendant is correct that the plaintiff "admits (as she must) the one basic, undisputed fact that defeats her claims in this case: Plaintiff failed to report to work as ordered, was thus considered Absent Without Leave (`AWOL'), and, therefore, Plaintiff lost her job." Def.'s Reply at 2 (citation omitted).
In addition to this admission about the reason for her termination, the plaintiff notably fails to overcome the strong inference that Geffen, the supervisor who approved her hire in the Washington, D.C. area and later proposed her removal, did not intentionally discriminate against her. See, e.g., Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C.Cir.2011) (noting that "when the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to [that person] an invidious motivation that would be inconsistent with the decision
Moreover, Geffen not only arranged for the plaintiff's hire in the Washington, D.C. area, but gave her more responsibility as a Polygraph Examiner, with an expanded geographic territory, granted her medical leave, and, at the plaintiff's request, wrote the plaintiff a glowing letter of recommendation months before she was removed from service. Geffen's demonstration of his appreciation of the plaintiff's work and character only further reinforces that Geffen's proposed removal of the plaintiff was not based on sex discrimination. See, e.g., Brooks v. Clinton, 841 F.Supp.2d 287, 302 (D.D.C.2012) (noting that "discrimination here would be particularly surprising since [the plaintiff's supervisor] himself previously lauded the plaintiff's work in earlier years, describing her prior work as `outstanding' and recognizing her prior contributions with performance awards"). Thus, from the record, there is simply no indication that Geffen had any discriminatory animus for the plaintiff, but, instead, Geffen appears to have been interested in supporting the plaintiff's USPIS career. The record also shows that the plaintiff was terminated only after Geffen ordered the plaintiff to return to work, informed her that she would be terminated if she did not return to work, and even followed up with her "hoping she had changed her mind" about returning to work. Memo to File from Roy W. Geffen, Inspector in Charge, RE: Lee Staropoli (Aug. 20, 2001), ECF No. 33-10.
The plaintiff argues that her termination "was not a foregone conclusion and the Agency could have easily accommodated" the plaintiff, Pl.'s Opp'n at 5, but that is unsupported speculation. USPIS had no part-time program at the time for ISLE (Inspection Service Law Enforcement) employees in the plaintiff's position, which is exactly why the plaintiff was advocating for the creation of one. See id. at 16 (explaining that the plaintiff wrote a letter to Chief Postal Inspector Weaver advocating that Inspection Service employees like herself be allowed to "take advantage" of the part-time program for EAS employees). Furthermore, it is also apparent from the record that USPIS attempted to work with the plaintiff in developing some possible alternatives to working 50-hour weeks and finding ways for her to take a longer period of leave if medically necessary. For example, Geffen discussed with the plaintiff the possibility of opting out of the LEAP program temporarily and working 40-hours a week, but the plaintiff dismissed this idea. See Geffen Memo to File RE: Lee Staropoli (July 26, 2001), ECF No. 33-9. He also inquired repeatedly as to whether she had medical documentation for not returning to work. See id.; see also Geffen Letter to Plaintiff (May 7, 2001), ECF No. 33-7, at 2 (informing her that "if [her] absence is due to a serious health condition as defined under the Family and Medical Leave Act (FMLA), [she] may be entitled to certain protections under the Act"). Thus, the defendant attempted to provide, or at least suggest, some alternatives for the plaintiff but
Although the plaintiff admitted in her deposition that her AWOL status was the reason for her termination, she still attempts to suggest that the AWOL charge was a mere pretext for a discriminatory termination on the basis of sex by presenting evidence to challenge the defendant's proffered reason for her termination, as well as other evidence to suggest that USPIS generally discriminates against women through its un-family friendly policies. The Court addresses the plaintiff's arguments in turn.
First, the plaintiff's Opposition is replete with arguments attempting to connect the plaintiff's allegedly discriminatory termination with her concerns about the disparate impact of USPIS' policies on female employees. As noted, the plaintiff has conceded her disparate impact claim, see Pl.'s Opp'n at 1-2 n. 1, so the Court will thus not address the merits of the plaintiff's claims regarding the LEAP Policy's alleged disparate impact on female Postal Inspectors. Although the plaintiff concedes the disparate impact claim, her Opposition nevertheless raises issues about the LEAP program's undue burden on female Postal Inspectors, see Compl. ¶¶ 11-14, and includes arguments only relevant to the conceded disparate impact claim. See, e.g., Pl.'s Opp'n at 2 (noting that, at the time of the plaintiff's termination, USPIS was aware that LEAP "was placing an undue burden on female employees with family and child care obligations because the schedule required Postal Inspectors to work a mandatory 50 hours a week"); id. at 3 ("By rejecting Ms. Staropoli's [Heart of the Matter] proposal, the Postal Inspection Service sent a clear and unmistakable message that condoned discrimination against women."); id. (noting that the plaintiff's health began deteriorating while she was on the phone with another pregnant Postal Inspector "who was concerned about the hostile work environment females faced in the Postal Inspection Service" and that her health continued to decline after that); id. at 5 (arguing that "Female Postal Inspectors were disproportionately impacted by the LEAP schedule and had more prevalent problems managing a balance between career, personal and family obligations" and the fact that USPIS "discarded [the plaintiff's] career and failed to provide the support necessary to keep her from becoming another statistic demonstrates a bias and an inference of discrimination sufficient for a jury to find" for the plaintiff); id. at 21 (noting that USPIS "alone had the choice to extend an accommodation to retain a highly praised and valued Postal Inspector ... or to continue its practice of discriminating against women by failing to implement measures that recognized the unique support
Second, the plaintiff suggests that the proffered reason for her termination was pretextual because USPIS "failed to utilize all the measures in its arsenal and simply fired Ms. Staropoli weeks before the implementation of the Postal Inspector Part-Time Pilot Program." Id. at 44; id. at 27 (noting that "[g]iven all the options and choices that [USPIS] had at its disposal, the termination of [the plaintiff] did not have to occur and one is left with the strong inference that [USPIS'] failure to assist [the plaintiff] was discriminatory"). The "cause of [her] removal" was not "the agency's unwillingness to give [her] any leave," as the plaintiff contends, however. Pl.'s Opp'n at 27 (quoting Staropoli Dep. at 86-87). It was her decision not to return to work when ordered to do so.
Furthermore, any suggestion that USPIS' decision to implement a part-time program after the proposed removal of the plaintiff means that the defendant's reason for the plaintiff's termination was pretextual is unavailing. As the defendant suggests, the temporal proximity of the implementation of the part-time program and the termination of the plaintiff's employment may merely be coincidental. See Def.'s Mem. at 20. More significantly, the plaintiff has not shown any evidence to suggest that the timing of the part-time program's implementation was in any way connected to the plaintiff's removal proceedings. Indeed, the plaintiff would have presumably been eligible to apply for the new Part-Time Pilot Program if she had qualified for and taken FMLA leave, produced medical reports for USPIS that convinced them to give her a longer medical leave, or accepted her supervisor's proposal that she temporarily work 40 hours a week. Thus, in no way does USPIS' introduction of this program suggest that the agency's decision to terminate the plaintiff was pretextual.
Third, the plaintiff compares the treatment she received when requesting part-time employment and additional leave to the treatment given to other USPIS employees and contends that, because these other employees were granted leave, she was also entitled to leave. In support of this contention, she provides the declaration of a former supervisor regarding the treatment by USPIS of two male postal inspectors, one of whom suffered a massive, debilitating heart attack, which left him confined to a wheelchair, and the other who had a brain tumor. See Declaration of John Griffith, ECF No. 39-14 ("Griffith Decl."). The plaintiff argues
Since the plaintiff has not offered evidence sufficient to refute USPIS' legitimate, nondiscriminatory reason for her termination, no reasonable jury could find that USPIS terminated the plaintiff because of sex discrimination. See Brady, 520 F.3d at 494. The Court will therefore grant summary judgment for the defendant on the plaintiff's disparate treatment claim.
The Court now turns to the plaintiff's claim that she was subject to retaliation. Specifically, the plaintiff argues that her termination from USPIS was in retaliation for protected activity in the form of (1) "opposing the Agency's discriminatory LEAP pay program," (2) the Agency's refusal "to implement her Proposal or a part-time program," and (3) the plaintiff's initiation of "EEO/EEOC complaints against the Agency related to the fact that the Agency's pay policy had a disparate impact on female Postal Inspectors." Compl. ¶ 64. In its Motion for Summary Judgment, the defendant again argues that the only reason for the plaintiff's termination is "the undisputed reason that ... she chose not to report to work." Def.'s Mem. at 15; see id. at 19 (positing that "Plaintiff's choice to not report as ordered is the legitimate, nonretaliatory reason for her removal and Defendant is therefore entitled to judgment as a matter of law on Plaintiff's retaliation claim"). The Court agrees.
"To prove unlawful retaliation, a plaintiff must show: (1) that [s]he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against [her]; and (3) that the employer took the action `because' the employee opposed the practice." McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.Cir. 2012). The McDonnell Douglas and Brady
The plaintiff has not carried her burden, and cannot show that the third element of a retaliation claim, "that the employer took a materially adverse action against the employee `because' the employee opposed a protected practice." McGrath, 666 F.3d at 1383. The plaintiff discusses her purported protected activity, including her advocacy related to the agency's pay program and attempts to make the agency more family-friendly, at length, but produces zero evidence to suggest that her termination was tied to these activities, nor her earlier EEO/EEOC activity.
The plaintiff suggests that the "disputed fact" here is "whether Defendant actually had a choice but elected to sit on its hands and refuse to help Ms. Staropoli because it intended to retaliate against her." Pl.'s Opp'n at 42. Whether the defendant could have "help[ed]" the plaintiff is not a disputed fact that merits the plaintiff's retaliation claim proceeding to a jury, however. Instead, the record is clear that the plaintiff was terminated on the basis of her refusal to return to work after she was informed that she would be removed if she failed to return. See, e.g., Letter of Decision Regarding Adverse Action (Removal) from K.W. Newman, Deputy Chief Inspector, to the Plaintiff (Nov. 27, 2001), ECF No. 33-12, at 4 (informing the plaintiff of the "decision that the charge of [AWOL] contained in the Notice of Proposed Removal[] is sustained and warrants your removal from the Postal Service," effective December 3, 2001); Staropoli Dep. at 86:10-24. While the plaintiff hoped for
Finally, as with the plaintiff's discrimination claim, the plaintiff has not overcome an inference that Geffen, the supervisor who proposed her removal, was not retaliating against her when he was the same supervisor who had arranged for her hire in the Washington, D.C. area; gave her more responsibility as a Polygraph Examiner, with an expanded geographic territory; granted her medical leave; and, at the plaintiff's request, wrote the plaintiff a glowing letter of recommendation months before she was removed from service and after she co-authored The Heart of the Matter, which she claims was protected activity. See Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C.Cir. 2011) (noting that "[i]f [the supervisor] did not want to work with [the plaintiff] because of her ... gender, it would be odd to select her and then immediately start ginning up reasons to dismiss her.").
Accordingly, since no reasonable juror could find that the defendant retaliated against the plaintiff in terminating her employment, the Court will grant summary judgment for the defendant on the plaintiff's retaliation claim.
For the reasons explained above, the Defendant's Motion for Summary Judgment, ECF No. 33, is GRANTED. An Order consistent with this Opinion shall be issued.
