BERYL A. HOWELL, District Judge.
The plaintiff, Kimberly Warner, who is currently employed as the Chief of the Digital Print Center ("DPC"), a unit of the Plant Operations Division of the Government Printing Office ("GPO"),
After graduating from high school and working as a cashier and ticket seller for Tour Mobile Sightseeing, the plaintiff, in 1989, began her employment with GPO, where she initially worked as a payroll technician in the Finance Department. Compl. ¶ 6; Def.'s Mot. for Summ. J., ECF No. 21 ("Def.'s Mot."), Ex. 1 (Deposition of Kimberly Warner (Oct. 17, 2011) ("Pl.'s Dep."), ECF No. 21-5, at 9;
In 2005, the Phototypesetting and Processing Section was renamed the Digital Print Center ("DPC"), and, in March 2005, the plaintiff became the first Chief of the DPC. Pl. Decl. ¶ 3. Also in 2005, the DPC was moved from the Electronic Photocomposition Division ("EPD"), which is now called "Pre-Press," into the Bindery Division of GPO. Def.'s Mot., Ex. 2 (Deposition of John W. Crawford (Sept. 30, 2011 &
In her role as Chief of DPC, the plaintiff "supervises skilled subordinate employees performing both blue-collar and white-collar work, ensures that division goals are met, monitors production of GPO materials, troubleshoots any problems in the DPC and two offsite locations, and otherwise oversees the safe operation and maintenance of the DPC." Compl. ¶ 7. The plaintiff "is in charge of scheduling, assigning work to, training, evaluating, and monitoring employees across three shifts and serves as the selecting official for all vacancies within the DPC." Id. Her "position requires expert knowledge in highly technical machinery, computers, and software applications; GPO and DPC procedures, work standards, and workflow; and GPO personnel policies, functions, and operations." Id.
Shortly after becoming Chief of the DPC, the plaintiff filed her first formal EEO complaint with GPO on April 27, 2005, alleging gender discrimination by Robert Schwenk, Directing Manager of Plant Operations, and Dannie Young, Superintendent of the Electronic Processing Division ("EPD"), because "she was being paid less than her male coworkers," Compl. ¶ 8, and "being paid significantly less than the male supervisor she replaced," Pl.'s Opp'n at 2; see also Pl. Decl. ¶ 9; Pl.'s Opp'n, Ex. 4 (EEO Complaint of Discrimination No. 05-16, filed April 27, 2005), ECF No. 24-4. Six months after filing her first complaint, the plaintiff filed a second formal EEO complaint on October 18, 2005, alleging that GPO had retaliated against her for filing her first complaint. Compl. ¶ 8. In 2006, the plaintiff's two EEO complaints were consolidated, and in March 2007, the plaintiff reached a settlement with GPO under which the plaintiff "received an increased hourly wage" equivalent to that of an Assistant Foreperson, and "a lump sum payment." Id.; Pl.'s Opp'n, Ex. 5 (EEOC Settlement Agreement, Warner v. James, EEOC No. 100-2005-00191X (Mar. 12, 2007)), at 2-5; Pl. Decl. ¶ 9. According to the plaintiff, management personnel supervising her during the key period at issue in the instant complaint "were all aware of this protected activity," including Walter Wingo, who was her immediate supervisor as of early 2008, Katherine Taylor, who was her second-level supervisor, and John Crawford, who was her fourth-level supervisor.
The plaintiff alleges that she faced "obstacles to her professional advancement" after the settlement of her EEO complaints in 2007. Compl. ¶ 1. These alleged obstacles take myriad forms, including allegedly lower-than-deserved performance evaluations in 2007 and 2008, non-selection for promotion, poor working conditions, denial of professional opportunities, and reduction in supervisory responsibilities. The plaintiff's criticisms of multiple management decisions and activity from 2007 through 2010 could devolve into analysis of workplace minutia but are only generally described below with the key facts underlying her claims of gender discrimination and retaliation.
In the fourth quarter ("Q4") of 2007, GPO implemented a bonus program for supervisors, including the plaintiff, and, in connection with that program, performance ratings were issued with respect to that single quarter. Pl.'s Facts ¶ 16; Def.'s Facts ¶ 16. On January 7, 2008, Ms. Taylor, who had become the Superintendent of the Bindery and the plaintiff's second-level supervisor in December 2007, shortly before the ratings were given, showed the plaintiff her performance rating for Q4 2007. Pl.'s Facts ¶¶ 14, 17; Def.'s Facts ¶¶ 14, 17. The plaintiff points out that this was "her first evaluation since the March 2007 settlement." Compl. ¶ 16. This was also the first time that monetary awards were tied to performance ratings, and "achieving `outstanding' was a little more difficult because goals had to be met to get the money." Def.'s Mot., Ex. 4, Affidavit of John Crawford (Mar. 13, 2009) ("Crawford Aff."), ECF No. 21-4, ¶ 5; see also Crawford Dep., ECF No. 21-6, at 58.
The plaintiff received an "excellent" rating, one rating below the highest rating of "outstanding," which she had "consistently received" before then. Compl. ¶ 16; Pl.'s Facts ¶ 18; Def.'s Facts ¶ 18. Although the plaintiff immediately disputed the rating, she nevertheless signed it at the direction of Ms. Taylor, who indicated that without the plaintiff's signature, she would not obtain her bonus. Pl.'s Facts ¶ 17. The plaintiff says that she signed the document to "acknowledge[ ] seeing the evaluation, not that she agreed with it." Id.
According to the plaintiff, she only received a copy of the evaluation form in March 2008, after it was processed by GPO's Human Capital unit. Id. The plaintiff alleges that the form contained "irregularities," because erasure marks indicated that her scores had been lowered. Pl.'s Opp'n at 4-5. While the plaintiff received checkmarks in the boxes for a "fully satisfied" rating for eight of nine listed Job Elements and in the box for an "outstanding" rating for the ninth, she alleges that the boxes for "outstanding" on five of the Job Elements had been checked, erased, and changed to "fully satisfied." Pl.'s Opp'n at 4; Pl.'s Dep., ECF No. 24-1, at 62; Crawford Dep., ECF No. 24-6, at 352-53; Compl. ¶ 16. In addition, in the "Summary Rating" section of the form, she received an "excellent" rating, but she alleges that the box for an "outstanding" rating had been checked, erased and changed to "excellent." Id.
Another "irregularity" of the 2007 evaluation, according to the plaintiff, was that it was signed by Robert Allegar, based on "materials that [the plaintiff] submitted to show that she had met each Job Element." Pl.'s Opp'n. at 5. The plaintiff claims, however, that Mr. Allegar "had worked outside the building for the previous year and had not supervised [the plaintiff] during that time." Compl. ¶ 16; see also Pl.'s Opp'n at 5. The ratings were also reviewed by Mr. Crawford, who could not recall specifically why the plaintiff was rated "fully successful" rather than "outstanding" for eight Job Elements, but understood that the plaintiff had not met some metrics under her goals. Pl.'s Opp'n at 5; Crawford Dep., ECF No. 24-6, at 94; Crawford Aff., ECF No. 21-4, ¶ 5 ("[S]he had some metrics but they were not what the goal said."). Mr. Crawford explained that "[n]obody in Bindery received an `outstanding' rating," not even himself. Crawford Aff., ECF No. 21-4, ¶ 5.
The plaintiff alleges that "[e]ach rating translated to a number of points, which were used to calculate [the plaintiff's] performance bonus." Pl.'s Opp'n at 4; see also Pl.'s Opp'n, Ex. 13 (Supp. GPO Form 2970: Performance-Based Award Point Calc. Sheet for Kimberly Warner for Oct./ Nov. 2007); Pl. Decl. ¶ 28. The plaintiff was paid a bonus for fiscal year 2007 for the "excellent" rating she received. Declaration of Stephanie F. Smith ("Smith Decl.") (June 29, 2012) (filed under seal), ECF No. 29, ¶ 3. If the plaintiff had received the "outstanding" rating that she says she deserved, her bonus would have been increased by at most $217.50. Id.
The plaintiff alleges that, after her 2007 EEO settlement with GPO, she has applied
In February 2008, a vacancy for an Assistant Production Manager position (second shift) was announced under vacancy announcement 08-480, Pl.'s Facts ¶ 26; Def.'s Facts ¶ 26, and the plaintiff applied for it, Compl. ¶ 14. The major responsibilities of this posted position included: (1) "direct[ing] all shift 2 functions necessary to accomplish pre-press, press and post-press work;" (2) "manag[ing] production activities within the various Production Department divisions to ensure that production deadlines are met and commitments fulfilled, and that optimum quality of products and efficiency of operations are maintained;" (3) "start up the Federal Register, to ensure that it's out of pre-press and into plate and press;" and (4) putting out the Congressional Record, which is "equivalent to putting out a newspaper every day." Pl.'s Facts ¶¶ 27-28; Def.'s Facts ¶¶ 27-28.
The plaintiff was among three individuals listed as eligible for consideration for the vacant position. Pl.'s Facts ¶ 29; Def.'s Facts ¶ 29. From this list, Mr. Crawford, who was the selecting official, selected Richard Lewis. Id. The plaintiff concedes that Mr. Lewis had 37 years of experience in the printing trade and, further, does not dispute that he had a broad range of experience in the operations of GPO, including work in positions involved in the processing of the Congressional Record and Federal Register as well as directly with pre-press and press, and otherwise had been exposed to various manufacturing requirements and every kind of job that comes through the Production department. Pl.'s Facts ¶ 30; Def.'s Facts ¶ 30. She contends that she had "comparable qualifications" to Mr. Lewis, however, and that "Mr. Crawford's justification for hiring Richard Lewis" was not based upon his belief that Mr. Lewis was best qualified but instead was motivated by retaliatory and discriminatory motives against the plaintiff. Pl.'s Facts ¶¶ 30, 32.
The plaintiff further contends that she should have been given the opportunity to fill temporarily the Assistant Production Manager position, just as Mr. Lewis was given this opportunity for three months, allowing him to "gain[ ] valuable experience," before he was promoted to the position. Pl.'s Facts ¶ 32; Compl. ¶ 14.
Following her non-selection for the Assistant Production Manager position, the plaintiff filed an informal EEO complaint, on April 9, 2008, alleging gender and race discrimination, and retaliation for past EEO activity on the basis of, inter alia,
The plaintiff complains about multiple aspects of her physical working conditions, contending that these working conditions were retaliatory and discriminatory. She predicates this contention, at least in part, on a comment allegedly made in November 2007 by Mr. Crawford, who was then the Production Manager in charge of the Bindery and other GPO divisions and was aware of the plaintiff's earlier EEO settlement.
The plaintiff alleges that, in 2007, "excessively loud non-DPC machinery was put into the DPC." Compl. ¶ 19. According to the plaintiff, the non-DPC machinery "is so loud that a safety inspector concluded that the noise level in the DPC is unsafe and advised [the plaintiff] and her employees [to] wear ear plugs." Id. The plaintiff alleges, however, that "given the nature of DPC's business, which includes consulting with customers and vendors over the telephone and servicing walk-up customers, wearing ear plugs is often not feasible" and that "[n]o other actions have been taken to remedy the problem." Id.
Related to the noise issue, the plaintiff alleges that she has been deprived an office and that, consequently, she "faces unnecessary obstacles to performing [her work] tasks because she does not have a private work space." Compl. ¶ 20. The plaintiff complains that while her work space is situated "in the middle of the DPC [work] area," "[a]ll Forepersons, Assistant Forepersons, and Group Chiefs in the Bindery Division have offices." Id. She alleges that she "has been promised an office on several occasions but has never received one." Id.
Mr. Crawford indicates that he agrees with the plaintiff about having her own office, but that space for Bindery personnel
Notwithstanding her workplace conditions, the plaintiff has been able to perform her duties at an "excellent" and "exceeds expectations" level, although she contends that she is hampered in being able to perform "at peak efficiency." Pl.'s Facts ¶ 39; Def.'s Facts ¶ 39. She does not appear to dispute that her work area contains a desk, computer, and a file cabinet, with additional access to a locked cage for storage of sensitive files and to conference rooms for private meetings and telephone calls. Def.'s Facts ¶ 39; Pl.'s Facts ¶ 39. Nevertheless, the plaintiff complains that since her "computer is visible to anyone walking near her," she is unable to work on confidential matters on her computer when other employees are present, and that she has to find meeting space in other offices or rooms, including "on multiple floors." Pl.'s Facts ¶ 39.
The plaintiff alleges that "DPC is not adequately staffed, resulting in [the plaintiff] and her staff being overworked, unable to take time off, and under intense pressure." Compl. ¶ 21. As a result of the understaffing, the plaintiff alleges that she "has had to step in to do printing work that would otherwise be done by her subordinate employees, making it difficult for her to complete her supervisory duties." Id. To remedy the understaffing, the plaintiff "has been trying to fill vacancies in the DPC since 2006," id., and, in fact, in 2007, filled one of 5 approved positions for Océ operator vacancies. Id. The defendant points out that the plaintiff had the opportunity to fill all of the Océ operator positions in 2007, "but chose not to make a selection from the certificate of eligibles issued" for these vacancies, except for one. Def.'s Facts ¶ 40. The plaintiff explains that "there were not enough qualified individuals," and that the remaining four vacancies were cancelled in May 2008 before she could fill them. See Pl.'s Facts ¶¶ 40-41. According to Ms. Taylor, during the 2009 fiscal year budget process "headcount was being reduced across the board," and she "could not make a business case to keep the [Océ] operator vacancies in the budget when the DPC had operated for a period of time without those vacancies being filled[.]" Def.'s Facts ¶ 41; Def.'s Mot., Ex. 2 (Aff. of Katherine Taylor) ("Taylor Aff.") ¶ 9. Consequently, "the vacancies were cancelled." Id. The plaintiff discounts this business-related justification for the cancellation of the vacancies and posits instead that "Ms. Taylor's cancellation of the vacancies was motivated by retaliation and discrimination." Pl.'s Facts ¶ 41.
The plaintiff filed an informal EEO complaint on July 9, 2008, "alleging discrimination based on sex and race[,] and retaliation for her participation in the EEO complaint process, including removing the functions that control [the plaintiff's] pay grade level and the failure to adequately staff DPC." Compl. ¶ 25. Since there was no resolution of her informal complaint, the plaintiff filed her fourth formal EEO complaint on August 21, 2008. Id.
The plaintiff concedes that she was able to hire three graphic process operators in the 2009-2010 time period because a need was identified for those positions. Pl.'s Facts ¶ 42; Def.'s Facts ¶ 42; Pl.'s Dep., ECF No. 21-5, at 213-16.
The plaintiff's "Summary Rating" in her performance evaluation for 2008 was "exceeds
At a meeting in February 2009, Mr. Wingo explained that the plaintiff received an "exceeds expectations" rating because she failed to meet three goals in her performance plan for the 2008 time period. Def.'s Facts ¶ 22; Wingo Dep., ECF No. 24-8, at 62, 76. This performance plan required, inter alia, that the plaintiff (1) ensure that 7B cards, which a supervisor uses to track an employee's disciplinary history, were up-to-date and that corrective actions were timely; (2) "[d]evelop and maintain records by operator of percent time spent on printer operation and job handling; hand-finishing, Digipath utilization;" and (3) "develop a job description proposal by August 30, 2008 for a `Graphic Processor Operator Pre-flight Specialist.'" Def.'s Facts ¶ 22; Def.'s Mot., Ex. 11 (GPO Supervisory Performance Agreement for Kimberly Warner, dated Mar. 24 & 25, 2008) ("GPO Supervisory Performance Agreement"), ECF No. 21-8, at 5, 7, 9; Pl.'s Dep., ECF No. 21-5, at 85-86; Taylor Dep., ECF No. 21-7, at 49.
With respect to the first goal, Mr. Wingo said that the plaintiff failed to ensure that the 7B cards of one of her subordinate supervisors were up-to-date and that corrective actions were timely. Def.'s Facts ¶ 23; Taylor Dep., ECF No. 21-7, at 48-50; Pl.'s Dep., ECF No. 21-5, at 96-98. The plaintiff does not appear to dispute the fact that the required documentation was incomplete for a DPC employee, but rather disagrees about whether she should be held responsible for the lapse. The plaintiff contends that she "was not responsible for the 7B cards of employees directly supervised by her subordinate supervisors," but only for those employees "she directly supervised." Pl.'s Facts ¶ 23.
With respect to the second goal, Mr. Wingo informed the plaintiff that she did not include records reporting the "percent time" operators spent on "printer operation and job handling; hand-finishing; [and] Digipath utilization" in her evaluation binder. Def.'s Facts ¶ 24; Taylor Dep., ECF No. 21-7, at 53-55; Pl.'s Dep., ECF No. 21-5, at 88-89. The plaintiff asserts that "[t]his was not true," and states that she had reported the operators' time on a log sheet in terms of the numbers of hours worked. Pl.'s Opp'n at 7; Pl. Decl. ¶ 38. The plaintiff concedes that her performance plan plainly required reporting the number of hours as a percentage of time worked on each particular task but contends that any failure to report the hours as dictated by the performance plan had previously been excused by Ms. Taylor. Pl.'s Dep., ECF No. 24-1, 87:13-88:5; Pl. Decl. 38; Pl.'s Opp'n at 7 (Ms. Taylor "had told Ms. Warner that reporting hours without a percentage was acceptable."); Pl.'s Facts ¶ 24 (plaintiff maintained the records "in hours, per Ms. Taylor's instructions").
Finally, with respect to the third goal, Mr. Wingo told the plaintiff that "she did not submit written standards and ratings for Graphic Processor Operators and a job description proposal for Graphic Processor Operator, Pre-flight Specialist" by the August 30, 2008 deadline set out in the performance plan. Pl.'s Opp'n at 7; Pl. Decl. ¶ 39. The plaintiff does not dispute that she failed to hand-over to any supervisor a copy of the job description by the deadline
The plaintiff was paid a bonus for fiscal year 2008 for the "exceeds expectations" rating she received. Smith Decl., ECF No. 29, at ¶ 4. If the plaintiff had received an "outstanding" rating, as she says she deserved, her bonus would have been increased by between $129 and $345.00. Id. The plaintiff attempted to appeal her evaluation through the Human Capital department, but Mr. Wingo would not change her ratings. Pl.'s Opp'n at 8; Pl. Decl. ¶ 41.
The plaintiff filed an informal EEO complaint on March 24, 2009, "alleging discrimination on the basis of retaliation for participation in the EEO complaint process, including arbitrarily lowering scores on her 2008 performance appraisal." Compl. ¶ 28. Since there was no resolution of the informal complaint, the plaintiff filed her fifth formal EEO complaint on April 30, 2009. Id.
Since her 2007 EEO settlement, the plaintiff claims that she has been denied various professional opportunities, alleging in her Complaint that at unspecified times she was not allowed to "cross-train — that is, to train to do work in another GPO division — and to participate in special projects, although similar opportunities are given to male employees." Id. ¶ 15. More specifically, the plaintiff alleges that "[f]or over two years, [her] requests to cross-train in the Binding Division have been denied," while "Darrell Mahoney, a Foreperson in the Binding Division, has been given the opportunity to observe and learn about [the plaintiff's] position." Id.
The plaintiff also cites two examples of "special projects" for which she has been denied the opportunity to participate. First, she alleges that her request at some unspecified time for a detail proposed by "the Superintendent of Planning, Scheduling, and Estimating," "was denied by [the plaintiff's] supervisors." Id. Second, she cites the denial of her request to "to join a new Safety Committee, spearheaded by Mr. Mahoney," even though one of her own subordinates was solicited to participate. Id. With respect to the Safety Committee, the plaintiff does not dispute that this committee was created in approximately 2008 to give non-supervisory employees the opportunity to assess the safety of their own work areas and, consistent with its focus on nonsupervisory employee involvement, that Mr. Mahoney was the only supervisor on the Committee after his name was proposed "by an employee of the safety office." Def.'s Facts ¶¶ 33, 34, 35; Taylor Dep., ECF No. 21-7, at 152-57; Pl.'s Facts ¶¶ 33, 34, 35.
The plaintiff complains that certain personnel or equipment changes amount to a "stripp[ing] of supervisory duties" motivated by gender discrimination and retaliation. Compl. ¶¶ 31, 35. According to the plaintiff, she "is left out of meetings where important decisions are made," even though Forepersons and Assistant Forepersons are invited to these meetings. Id. ¶ 22. In response to this complaint, Ms. Taylor, "has claimed that she forgot to
In further support of her claims of having decreased supervisory duties, the plaintiff cites three examples of "[d]ecisions affecting the DPC" for which she was excluded from meetings: (1) "what equipment to put in the DPC;" (2) "the decision to close DPC operations in Laurel, Maryland;" and (3) the transfer of an employee to another GPO unit. Compl. ¶ 22. Not only is the plaintiff critical of the decision-making process, in which she claims to have been excluded, but she also plainly disagrees with the decisions themselves, even though she does not dispute the context in which these decisions were made: namely, that "DPC was running at a significant financial loss and Ms. Taylor tried to find ways to reduce those losses." Def.'s Facts ¶ 43; Pl.'s Facts ¶ 43 (undisputed).
Regarding the decision about DPC equipment, apparently this reflects the plaintiff's disagreement with management's decision to allow the lease for an electric static color tone printer, called the iGen3, which was located in the DPC, to expire in 2010. Def.'s Facts ¶ 51; Pl.'s Facts ¶ 51 (undisputed). The plaintiff disputes that allowing this lease to expire was a cost-saving measure, contrary to the outcome of a management analysis regarding the amount of product generated from the machine. Pl.'s Facts ¶ 52; Def.'s Facts ¶ 52; Taylor Dep., ECF No. 21-7, at 203-04; Pl.'s Dep., ECF No. 21-5, at 130-31. Instead, the plaintiff contends that the decision was "motivated by retaliation and discrimination." Pl.'s Facts ¶ 52.
With respect to the closing of DPC's Laurel, Maryland operations, the plaintiff's complaint appears to relate principally to the reassignment of two employees who were, and remain under, her supervision and whose job is to operate the Océ machines, which are located in both GPO's Laurel facility and its main facility. Pl.'s Facts ¶ 38; Def.'s Facts ¶ 38. For safety reasons, two operators are required to run the machine, and, consequently, "the machine in Laurel could not be operated if one of the employees was not able to come to work." Pl.'s Facts ¶ 37; Def.'s Facts ¶ 37.
The plaintiff contends that reassigning the employees from Laurel "caused a backlog in the work that can only be done on the Océ machine," and disputes that the reassignment was made by Ms. Taylor to
Finally, and related to the plaintiff's complaint about her supervisory duties being "decreased," she alleges that in August 2008, "around the time that [she] filed her second [sic-fourth] formal [EEO] complaint," she learned that one of her employees was being transferred to another GPO unit. Compl. ¶ 26. Specifically, Ms. Taylor and other GPO managers decided it was more cost-effective to re-categorize one of the plaintiff's employees, William Middlebrooks, who was working in the Senate Documents Room, as a detail so that GPO could pass on to the Senate a greater share of the cost of his work. Id.; Def.'s Facts ¶ 44; Taylor Dep., ECF No. 21-7, at 73; Def.'s Mot., Ex. 10, ECF No. 21-8 (E-mail chain between Ms. Warner and Ms. Taylor Regarding Re-categorizing Mr. Middlebrooks as a Detail (Aug. 13, 2008) ("Senate Detail E-mail Chain")). The plaintiff was consulted as part of the team that negotiated how to handle the detail arrangement, when another unit of GPO, the Congressional Publishing Services ("CPS"), insisted that the detailed employee be placed within that unit — consistent with the management of all other congressional details — and resulted in the plaintiff losing an individual from her "head count[.]" Def.'s Facts ¶ 47; see id. ¶¶ 46-50; Pl.'s Facts ¶¶ 46-50; Taylor Aff. ¶ 7. The plaintiff "did voice her concerns to Ms. Taylor" about reassigning the employee "out of DPC," Pl.'s Facts ¶¶ 49-50, and Ms. Taylor agreed "and tried to argue that position to CPS," Pl.'s Facts ¶ 48; Def.'s Facts ¶ 48, but without success. Pl.'s Facts ¶ 50; Def.'s Facts ¶ 50; Senate Detail Email Chain. Ms. Taylor, along with management, determined that "the best thing for GPO overall ... was to detail the employee through CPS rather than continue running at a loss." Def.'s Facts ¶ 49. The plaintiff disputes this reason for the detail, alleging instead that it was motivated by retaliation and discrimination. Pl.'s Facts ¶ 49.
A final agency decision was reached on May 11, 2010 for the third and fourth formal consolidated EEO complaints filed on July 3, 2008 and August 21, 2008, respectively. Compl. ¶ 29. The agency found that GPO had not discriminated or retaliated against the plaintiff. Id. More than 180 days had passed since the plaintiff filed her fifth formal complaint on April 30, 2009, without a final agency decision. Id. ¶ 28.
The plaintiff filed this lawsuit on August 4, 2010, within three months of her receipt of the final agency decision on the third and fourth formal consolidated complaints. She asserts two claims: first, she alleges sex discrimination under Title VII because (1) she "applied for, was qualified for, and was rejected for several positions within GPO, including the Assistant Production Manager position[;]" (2) she was denied an office and (3) training opportunities; (4) given a downgraded 2007 performance evaluation; and (5) stripped of supervisory duties. Compl. ¶¶ 30-31. Second, the plaintiff claims that she faced "retaliatory
Following a lengthy period of almost two years for discovery, the defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Granting a motion for summary judgment is appropriate if the movant carries the burden of showing "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," based upon the pleadings, depositions, and affidavits, and other factual materials in the record. FED. R. CIV. P. 56(a, c); Ali v. Tolbert, 636 F.3d 622, 628 (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).
When, at the summary judgment stage, the parties present a genuine dispute about the facts, the Court must draw all justifiable inferences in favor of the nonmoving party and accept the nonmoving party's evidence as true. See Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009); Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a factual dispute to be "genuine," 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, "must do more than simply show that there is some metaphysical doubt as to the material facts," Scott, 550 U.S. at 380, 127 S.Ct. 1769, and cannot rely on "mere allegations" or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C.Cir.2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993); accord FED. R. CIV. P. 56(e). Notably, "[s]elf-serving testimony does not create genuine issues of material fact, especially where that very testimony suggests that corroborating evidence should be readily available." Fields v. Office of Johnson, 520 F.Supp.2d 101, 105 (D.D.C.2007).
Rather, the nonmoving party must present specific facts "`such that a reasonable jury could return a verdict for the nonmoving party.'" Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23 (D.C.Cir.2013) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see also FED. R.CIV.P. 56(c)(1). 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). see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Moreover, "[w]hen opposing parties tell two different stories, one of which is blatantly
"[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In that situation, 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." Id. at 322, 106 S.Ct. 2548.
Title VII of the Civil Rights Act "makes it unlawful for federal employers to discriminate on the basis of ... gender" and to retaliate "when an employee has opposed any practice made an unlawful employment practice." Grosdidier, 709 F.3d at 23 (internal quotation marks and citations omitted). The "two essential elements of a discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff's... sex...." Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008). With respect to the first element, an adverse employment action for a discrimination claim generally entails a "significant change in employment status," Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003), or "tangible employment action evidenced by firing, failing to promote, a considerable change in benefits, or reassignment with significantly different responsibilities[,]" Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir. 2003). The second element of causation requires a showing "that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision." Univ. of Tex. Southwestern Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2523, 186 L.Ed.2d 503 (2013).
"Where, as here, the record contains no direct evidence that the adverse employment action of which the plaintiff complains was caused by prohibited discrimination, we turn to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to analyze the claim." Jackson v. Gonzales, 496 F.3d 703, 706 (D.C.Cir.2007) (quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir. 2006)). "Although intermediate evidentiary burdens shift back and forth under this framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. (internal quotation marks and alteration omitted). Where an employer "has asserted legitimate, non-discriminatory reason[s] for" the actions being challenged, "the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas." Brady v. Office of Sgt. at Arms, U.S. House of Reps., 520 F.3d 490, 494 (D.C.Cir.2008) (emphasis in original). Instead, the Circuit has instructed that "the district court must resolve one central question: 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 on the basis of ... sex ...?" Id.; see also Bright v. Copps, 828 F.Supp.2d 130, 142 (D.D.C.2011); Diggs v. Potter, 700 F.Supp.2d 20, 40
In resolving that "central question" regarding "the legitimacy of the proffered reason and the ultimate question of discrimination, the court looks to `(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff ... or any contrary evidence that may be available to the employer....'" Grosdidier, 709 F.3d at 25 (emphasis in original) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998) (en banc)); see also Holcomb, 433 F.3d at 897. While the plaintiff need not "submit evidence over and above rebutting the employer's stated explanation in order to avoid summary judgment," Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C.Cir. 2012) (internal quotation marks and citations omitted), the plaintiff must do more than merely state a disagreement with, or disbelief of, the explanation to satisfy the burden of showing that a reasonable jury could find that the employer's asserted reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on a prohibited basis.
The legal framework for demonstrating retaliation under Title VII is similar, but not identical, to the framework for establishing wrongful discrimination. A prima facie case of retaliation requires a plaintiff to show that "(1) [s]he engaged in protected activity; (2) [s]he was subjected to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action." Hamilton, 666 F.3d at 1357 (quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C.Cir.2007)); see also McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.Cir.2012) ("To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action `because' the employee opposed the practice."); Wiley v. Glassman, 511 F.3d 151, 155 (D.C.Cir.2007); Smith v. District of Columbia, 430 F.3d 450, 455 (D.C.Cir.2005); Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 650-51 (D.C.Cir.2003); Singletary v. District of Columbia, 351 F.3d 519, 524 (D.C.Cir. 2003); McKenna v. Weinberger, 729 F.2d 783 (D.C.Cir.1984). With respect to the first element, protected activity encompasses utilizing informal grievance procedures, such as complaining to management or human resources about the discriminatory conduct, as well as the filing of both informal and formal EEO complaints. Richardson v. Gutierrez, 477 F.Supp.2d 22, 27 (D.D.C.2007) ("It is well settled that Title VII protects informal, as well as formal, complaints of discrimination."); Bell v. Gonzales, 398 F.Supp.2d 78, 94 (D.D.C. 2005) ("Initiation of EEO counseling to explore whether an employee has a basis for alleging discrimination constitutes protected activity, even in the absence of an unequivocal allegation of discrimination.").
The second element of an adverse employment action is necessary to sustain a claim of retaliation, just as it is for discrimination claims. In the retaliation context, however, an employment action that is "materially adverse" is defined as one that is "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Ginger v. District of Columbia, 527 F.3d 1340, 1346 (D.C.Cir.2008). Thus, retaliation "encompass[es]
Finally, the lessened motivating-factor causation standard that applies to wrongful discrimination claims does not apply to claims of unlawful retaliation under 42 U.S.C. § 2000e-3(a). Instead, a Title VII retaliation claim requires "proof that the desire to retaliate was the but-for cause of the challenged employment action." Univ. of Tex. Southwestern Med. Ctr., 133 S.Ct. at 2528. In other words, "traditional principles of but-for causation" apply and the plaintiff must show that "the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Id. at 2533.
The McDonnell Douglas burden-shifting framework applies to retaliation claims such that "[w]here, as here, the employer has proffered a legitimate, non-retaliatory reason for a challenged employment action, the central question is whether the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-retaliatory reason was not the actual reason and that the employer intentionally retaliated against the employee in violation of Title VII." McGrath, 666 F.3d at 1383 (internal quotation marks, citation, and brackets omitted); see also Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009) (observing that "these principles apply equally to retaliation claims").
The plaintiff alleges six discrete instances in which she was targeted for retaliation because of her prior EEO activities and, in all but one instance, for gender discrimination. Pl.'s Opp'n at 1-2; Compl. ¶¶ 31, 35. As previously noted, the plaintiff alleges that the following actions were taken against her in retaliation of her prior EEO activities and because of her gender: (1) non-selection "for several positions within GPO, including the Assistant Production Manager position;" (2) "given a downgraded 2007 performance evaluation;" (3) "denied an office;" (4) "denied training opportunities;" and (5) "stripped of her supervisory duties." Compl. ¶¶ 31, 35. In addition, the plaintiff alleges that (6) she was "given [a] downgraded ... 2008 performance appraisal" in retaliation for her prior EEO activities. Compl. ¶ 35. The defendant has proffered legitimate nondiscriminatory and non-retaliatory explanations for each of these alleged instances. The Court will assess these explanations in tandem with the strength of the plaintiff's prima facie claims of gender discrimination and retaliation, in order to determine whether the plaintiff has produced sufficient evidence attacking the defendant's explanations for the allegedly wrongful actions to present a triable issue of fact warranting denial of the defendant's motion for summary judgment.
The plaintiff alleges that "Mr. Crawford's decision not to hire [the plaintiff] for the [Assistant Production Manager] position was motivated by both retaliation and sex discrimination," since she was "just as much qualified" as the selected candidate. Pl.'s Opp'n at 20; Pl.'s Dep., ECF No. 21-5, at 32. The defendant does not dispute that the plaintiff's allegations regarding her non-selection make out prima facie discrimination and retaliation claims, but rather contends that the plaintiff "cannot establish that the legitimate, nondiscriminatory
To give rise to an inference of retaliation, the plaintiff must be "substantially more qualified" than the successful candidate to perform the duties listed in the vacancy announcement, and the nonselected candidate must have a "stark superiority of credentials." Porter v. Shah, 606 F.3d 809, 815, 816 (D.C.Cir.2010) (internal quotation marks and citations omitted); see also Grosdidier, 709 F.3d at 25 ("To prevail on a relative qualifications claim, [the plaintiff] must show that she is `significantly better qualified for the job than [the applicant] ultimately chosen.'" (emphasis in original) (quoting Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C.Cir.2008)). When the relative qualifications of the plaintiff and the selected candidate are generally similar, courts must be careful about injecting themselves or a jury into the hiring process, unless there is a viable showing of pretext. See Stewart, 352 F.3d at 429 (courts are "not `superpersonnel departments that reexamine[] an entity's business decisions.'" (alteration in original) (quoting Dale v. Chi. Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986))). Thus, the difference in qualifications must be "great enough to be inherently indicative of discrimination." Jackson v. Gonzales, 496 F.3d 703, 707 (D.C.Cir.2007) (internal quotation marks omitted). "In a close case, a reasonable [fact-finder] would usually assume that the employer is more capable of assessing the significance of small differences in the qualifications of the candidates, or that the employer simply made a judgment call." Aka, 156 F.3d at 1294. This is not even a close case.
The job posting for the Assistant Production Manager position described the major duties as including managing "production activities within the various Production Department divisions," such as "pre-press, press and post-press work," and serving "as the authoritative source of advice on procedural and regulatory matters with respect to printing operations." Def.'s Mot., Ex. 4, ECF No. 21-8. To be eligible for consideration for the position, which is a "PG-14 grade level, applicants must possess 52 weeks of specialized experience equivalent to the PG-13 grade level." Id.
Set against these standards, the selecting official, Mr. Crawford, gave both the selected candidate, Mr. Lewis, and the plaintiff the same rating on four out of the five job elements, with the plaintiff receiving a slightly lower score of "4.5" compared to Lewis's "5" on the single KSA element regarding "knowledge of current manufacturing and/or printing plant methodologies." Compare Def.'s Mot., Ex. 6 ("Ranking Factors" for Richard C. Lewis), ECF No. 21-8, at 8, with Ex. 7 ("Ranking Factors" for Kimberly Warner), ECF No. 21-8, at 9. While the plaintiff's score of "5" was higher than Mr. Lewis's score of "4" for "annual performance rating," the plaintiff received a lower score for "work experience" (i.e., the plaintiff's score of "3" compared to Mr. Lewis's score of "5") and for "years experience" (i.e., the plaintiff's score of "1.1" compared to Mr. Lewis's score of "3.7"). In the final tally of "total points," the plaintiff's rating of 31.6 was lower than that of Mr. Lewis' 35.7.
According to the defendant, Mr. Crawford selected Mr. Lewis for the position because Mr. Lewis was the "best qualified" candidate as reflected not only by the lower score received by the plaintiff but also by the "contemporaneous ranking of the candidates based on their written submissions against the KSA (knowledge, skill, and abilities) elements for the position, as well as factoring in other information from the written submissions, including work experience, years of experience, and the rating received in the employee's most recent performance rating." Def.'s Mem. at 5. Indeed, it is undisputed that the selected candidate held more positions than the plaintiff across a broader array of units that would be subject to supervision by the Assistant Production Manager. Specifically, at the time of the selection, the selected candidate had held four supervisory positions, including group chief, assistant foreperson, foreperson, and foreperson in charge, and had worked in two different GPO divisions, Plant Planning and Bindery. Crawford Dep., ECF No. 21-6, at 151:2-22. In comparison, the plaintiff had held only two supervisory positions, including Supervisory Graphic Processor Operator and Chief of DPC, and had worked only in the DPC, which was relocated to the Binding division in 2005. Compl. ¶ 6. Further, it is undisputed that the selected candidate had 37 years of experience in the "trade," including at GPO, whereas the plaintiff had 11 years of experience at the time they both applied for this position. Crawford Dep., ECF No. 21-6, at 158.
The plaintiff here does not — and cannot — contend that she is significantly or even markedly more qualified than the selected candidate. Nevertheless, the plaintiff targets the selecting official, John Crawford, as "one of the chief architects" of the discriminatory and retaliatory actions she claims, Pl.'s Opp'n at 17,
As evidence of the intentional mischaracterization of her qualifications, the plaintiff relies largely on two parts of the record: first, the plaintiff cites the portion of Crawford's Affidavit, in which he states that he did not consider the plaintiff to "have knowledge in running the stated Congressional work through the production plant," Crawford Aff., ECF No. 21-4, ¶ 7; see also Pl.'s Opp'n at 23; and, second, two statements allegedly made by Mr. Crawford in 2006 and 2008, which the plaintiff argues "demonstrate that he had both retaliatory and discriminatory animus towards Ms. Warner." Pl.'s Opp'n at 23. These arguments, and others, simply do not withstand scrutiny or create a triable issue of fact regarding the legitimate reason based on comparative qualifications for the selection of Mr. Lewis over the plaintiff for the position of Assistant Production Manager.
The plaintiff's claim that the selecting official "intentionally misrepresent[ed] a key determining factor in the hiring process" by not crediting her "intimate[] familiar[ity] with congressional work," is asserted without any effort to show how this adversely and precisely affected her ratings. Pl.'s Opp'n at 23. If this alleged "misrepresentation" resulted in a downgrading of the plaintiff's score on the single KSA element regarding "knowledge of current manufacturing and/or printing plant methodologies," for which she received a slightly lower score than the selected candidate, the effect was negligible since this only brought her score down by a half point. See Crawford Dep., ECF No. 21-6, at 155-56, 164 (for this job element, the plaintiff "said things that she did, so I gave her the benefit of the doubt at a 4.5.... I didn't think she deserved a five.... In fact, she embellished ... she didn't know the full manufacturing. She'd never been exposed to that."). In other words, even if the plaintiff were given full credit for all of the KSA elements, her overall score would still remain lower than that of the selected candidate.
Indeed, the plaintiff's lower Total Rating is not due to her ratings for the KSA job elements but because her ratings for "years experience" and "work experience" were a combined 4.6 points lower than that of the selected candidate. The "years experience" rating is computed by giving the candidate "1-point for each 10 years" of relevant employment. Def.'s Mot., Ex. 6, ECF No. 21-8. The plaintiff does not appear to dispute that she was entitled to the "1.1" points for her 11 years of work at GPO's DPC unit and that the selected candidate was entitled to "3.7" points for
With respect to specific work on the Congressional Record, Mr. Crawford testified that this work is "equivalent to putting out a newspaper every day, and it's what each representative and Senator says on the floor, and that's documented into the Congressional [R]ecord," and that to "the best of [his] knowledge" DPC did not print the Congressional Record, but only congressional bills and hearings with "small page numbers." Crawford Dep., ECF No. 21-6, at 162-63, 165. The plaintiff counters that DPC produces "the Congressional Bound Record, and other congressional work, including bills up to 140 pages that are being bound," and that DPC's production is "limited only by the number of copies required; jobs requiring a very large run are produced in the Press Division." Pl.'s Opp'n, Ex. 9 (Declaration of Angela Jones) ("Jones Decl."), ECF No. 24-9, ¶ 26. While Mr. Crawford may not have credited DPC with the full amount of congressional work that the plaintiff claims is performed by DPC, this difference in perspective simply does not create a genuine issue whether his reason for not selecting the plaintiff was pretextual, in the face of the clear breadth and depth of the other experience of the selected candidate by comparison to the plaintiff's background. A minor mistake of fact on an issue that would not alter the outcome of a decision does not render an explanation pretextual. As one circuit court has pointed out, "[p]retext is a lie, not merely a mistake." Jordan v. Summers, 205 F.3d 337, 344 (7th Cir.2000); see also Price v. Thompson, 380 F.3d 209, 214 n. 1 (4th Cir.2004) ("[M]ere mistakes of fact are not evidence of unlawful discrimination[.]").
The plaintiff cites two remarks allegedly made by Mr. Crawford in 2006 and in 2007, respectively, that she alleges "demonstrate that he had both retaliatory and discriminatory animus towards [the plaintiff]." Pl.'s Opp'n at 23. Although a supervisor's single egregious remark may constitute direct evidence of discrimination entitling a plaintiff to a jury trial, see Ayissi-Etoh v. Fannie Mae, 712 F.3d 572,
In this case, the plaintiff first describes a conversation with Mr. Crawford in early 2006, in which she expressed concern that she "was being disrespected by [her] male supervisors because [she] was a woman." Pl. Decl. ¶ 12. No other detail is provided by the plaintiff about the precise actions taken by her male supervisors that made her feel this way, nor does she indicate whether her complaint to Mr. Crawford was similarly vague. In any event, in response, Mr. Crawford allegedly told the plaintiff that "what [she] was experiencing was how it is for women at the plant. [Mr. Crawford] told [the plaintiff] that [she] would have to work extra hard and deal with it and that [the plaintiff] should `suck it up.'" Pl. Decl. ¶ 12; Jones Decl. ¶ 5; Pl.'s Dep., ECF No. 24-1, at 51. According to the plaintiff, this statement shows Mr. Crawford's "discriminatory attitude toward women[.]" Pl.'s Opp'n at 23. Even if the plaintiff's rendition of the conversation is assumed to be true, the statement attributed to Mr. Crawford is insufficient to suggest pretext for the plaintiff's non-selection in March, 2008, at least two years later. Not only is this statement too remote in time, and unrelated to the selection process for the Assistant Production Manager position, but the plaintiff's interpretation of the statement as discriminatory is not self-evident. On the contrary, this statement could be interpreted as an effort to "buck-up" the plaintiff's spirits with advice on maintaining her focus on doing a good job, despite the way she felt about "being disrespected." Moreover, the plaintiff's view that this 2006 remark reflects discriminatory or retaliatory animus, is difficult, if not impossible, to reconcile with the fact that Mr. Crawford was her supervisor in 2006 and responsible for giving her an "outstanding" performance evaluation for that year, which strongly undercuts the plaintiff's interpretation of this remark. Pl.'s Dep., ECF No. 21-5, at 77.
The plaintiff also cites a remark allegedly made by Mr. Crawford in November 2007, approximately four months before the plaintiff's non-selection for the Assistant Production Manager position. According to the plaintiff, she was told in a telephone call from Mr. Young, her former supervisor who was also a defendant named in her first and second EEO complaints, that at a management meeting, where the plaintiff was not present, Mr. Crawford stated that he was going to "let the dogs out" on the plaintiff.
This alleged remark does not help the plaintiff's effort to defeat summary judgment for at least two reasons. First, to the extent that the plaintiff contends that this remark reflects discriminatory intent, nothing in the statement suggests that the plaintiff was being targeted based upon her gender. For example, in Forman v. Small, the D.C. Circuit considered statements that were less ambiguous than those at issue here and held that the statements were not sufficient to create a triable issue when the defendant offered a legitimate, non-discriminatory reason for the challenged decision that the plaintiff failed to otherwise rebut as pretext. Forman v. Small, 271 F.3d 285, 293 (D.C.Cir.2001) (in age discrimination suit, "series of comments... that implicitly referred to [the plaintiff's] age [including] ... that [the plaintiff] may be `over the hill' or in the `twilight of his career,' and may have `written his last significant article'" may support prima facie case but did not show pretext in legitimate reason given by employer for denying promotion); see also Reshard v. Lahood, No. 87-2794, 2010 WL 1379806, at *21, 2010 U.S. Dist. LEXIS 34426, at *74-76 (D.D.C. Apr. 7, 2010) (court found no evidence to support plaintiff's claim that supervisor's comment comparing her to white co-worker with lower pay grade "had racial implications" and "even if the Court could infer that [the supervisor]'s comment and the plaintiff's listing in the staff directory were racially motivated, these events would qualify as nothing more than `trivial' harms and `petty slight[s],' which would not support a claim of retaliation."). While the remark attributed to Mr. Crawford was "upsetting" to the plaintiff, Pl. Decl., ECF No. 24-3, ¶ 16, she understood from Mr. Young that this remark meant that she had to "be careful and hold myself accountable and just make sure I'm doing what I[sic] supposed to do like I've always been doing."
Second, to the extent that the plaintiff contends that Mr. Crawford's alleged remark in November, 2007 reflects retaliatory animus, it is unclear for what protected activity the plaintiff claims it was in retaliation. Her first and second consolidated EEO complaints were resolved by settlement in March, 2007, over eight months before the comment was made, so this protected activity was remote in time from the date of the alleged remark. Such an extensive time gap between protected activity and purported retaliation has been found to be too attenuated to support an inference of retaliation. As the D.C. Circuit concluded in a recent case involving a similar "gap between the protected activity and the alleged retaliation" of approximately eight months, "[o]nce the time between a protected disclosure and a negative employment action has stretched to two-thirds of a year, there is no `temporal proximity' that supports a causal connection between the two, nothing else appearing.... The fact that one event precedes another does not in itself evidence causation." Payne v. D.C. Gov't, 722 F.3d 345, 354 (D.C.Cir.2013). Moreover, as the defendant points out, the "[p]laintiff has offered no explanation as to why Mr. Crawford would be motivated to retaliate against her based on that prior EEO activity, which was based on an EEO complaint that pre-dated the reorganization that moved the DPC under the Bindery." Def.'s Mem., ECF No. 21, at 9 (citing Ex. 9, at 1; Ex. 1, Pl.'s Dep., ECF No. 21-5, at 144; Ex. 2, Crawford Dep., ECF No. 21-6, at 331-33). Finally, at the time of the alleged remark, the plaintiff had not engaged in the filing of her third, fourth or fifth informal or formal EEO complaints, which are at issue in the instant lawsuit.
In short, the Court agrees with the defendant that this remark cannot defeat summary judgment but "at most, [] shifts the burden to the Defendant to articulate a legitimate, nondiscriminatory reason for Plaintiff's non-selection, which Defendant has done." Def.'s Mem., ECF No. 21, at 10.
The plaintiff offers two other arguments for rejection of the defendant's relative-qualification reason for her non-selection. Neither of these arguments has merit, however. First, the plaintiff cites "[s]tatistical evidence" purportedly showing that "GPO is systematically discriminating against women," because the "upper echelons of management are overwhelmingly male." Pl.'s Opp'n at 25; see also Compl. ¶ 10 ("The number of women in senior supervisory positions is disproportionately low compared to their respective numbers in GPO's overall white-collar workforce."). Specifically, the plaintiff points to evidence that while "[f]ifty-five percent of Printing Office Grade (PG) employees are female," as the pay scale increases, "women are left behind: [o]nly 37% of PG-14 employees
Statistical evidence may be used to bolster a plaintiff's prima facie case of discrimination or to show that the employer's stated reasons for the challenged actions are a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817; Forman v. Small, 271 F.3d at 292 ("This circuit recognizes statistical data as relevant in individual discrimination claims."). Nevertheless, since the ultimate issue in an individual's disparate treatment discrimination case is "whether the particular plaintiff was the victim of an illegitimately motivated employment decision," evidence of a statistical disparity is "ordinarily not dispositive." Krodel v. Young, 748 F.2d 701, 710 (D.C.Cir.1984); see also Davis v. Joseph J. Magnolia, Inc., 815 F.Supp.2d 270, 280 (D.D.C.2011) (finding statistical evidence "even less meaningful because it is not directly relevant to the type of disparate treatment about which plaintiff complains"); Simpson v. Leavitt, 437 F.Supp.2d 95, 104 (D.D.C.2006) (concluding that statistical evidence of discrimination is "not conclusive [in a disparate treatment case]"); Horvath v. Thompson, 329 F.Supp.2d 1, 10 (D.D.C.2004) (reasoning that "evidence that merely indicates an underrepresentation of [a protected class] in the workforce does not itself establish pretext"). In order to be useful, the plaintiff must focus the statistics on proving discrimination in her particular case. See Krodel, 748 F.2d at 710.
The statistical evidence proffered by the plaintiff provides only a general description of the gender make-up across all of GPO. Bolden v. Clinton, 847 F.Supp.2d 28, 35 (D.D.C.2012) ("It is well-settled that mere description of the composition of a workforce, without more, does not support an inference of discrimination.") (citing Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989); Koger v. Reno, 98 F.3d 631, 639 (D.C.Cir.1996); Whitener v. England, No. 04-cv-0273, 2006 WL 3755220, at *2-3, 2006 U.S. Dist. LEXIS 91436, at *7 (D.D.C. Dec. 19, 2006)). The statistics do not show the gender composition, over time, of the persons who held the position of Assistant Production Manager, or even equivalent positions, in the Plant Operations division, nor do these statistics reveal the gender composition of the applicant pools available to fill the openings for those positions. See Bolden, 847 F.Supp.2d at 35 ("The plaintiff has not paired these facts with relevant comparisons of the applicants' relative qualifications."). Absent more precision, the statistics cited by the plaintiff are insufficient to support an inference of discrimination or to show that the relative-qualifications reason given by the defendant for the plaintiff's non-selection is pretextual.
Second, in further support of her claims that her non-selection for the Assistant Production Manager position was discriminatory and retaliatory, the plaintiff points out that between 2005 and 2008, she has applied for seven jobs, and, "despite being ranked among the most qualified candidates for six of these, she was never selected; men were hired for all but two positions." Pl.'s Opp'n at 25; see also Compl. ¶ 31. This is simply another form of statistical evidence on a personalized basis that fails to provide sufficiently precise information to be useful or persuasive. The plaintiff provides no information other than the titles regarding the seven jobs for
The plaintiff has not provided sufficient evidence from which a reasonable jury could find that her non-selection for the position of Assistant Production Manager was due to discriminatory or retaliatory animus by Mr. Crawford. On the contrary, the choice of Mr. Lewis for this position is amply demonstrated on the record to be due to his longer employment history with GPO, his broader experience in multiple divisions of GPO, and his specific work experience in units for which the Assistant Production Manager is responsible. Consequently, the defendant is entitled to summary judgment on the plaintiff's claims predicated on her nonselection for this position.
The plaintiff alleges that her Q4 2007 performance evaluation was downgraded due to both gender discrimination and retaliation, and that her 2008 performance evaluation was downgraded due to retaliation alone. Compl. ¶¶ 31, 35. As discussed below, the Court finds, contrary to the defendant's contention, that the plaintiff's claims regarding the Q4 2007 evaluation are timely, but nevertheless concludes that the plaintiff has failed to present any genuine dispute showing that the defendant's stated reasons for either of these performance evaluations was pretextual.
As a threshold issue, the Court must address the defendant's challenge to the timeliness of the plaintiff's claim regarding her Q4 2007 performance evaluation. The defendant contends that the agency is entitled to summary judgment on this claim because the plaintiff "failed to raise that claim with an EEO counselor within 45 days of her receipt of the rating." Def.'s Mem. at 11-12. In addressing this contention, the parties spill much ink about when the plaintiff "received" the Q4 2007 performance evaluation.
The plaintiff counters that even if the personnel action is deemed to have occurred
The agency conducted a full investigation and was well aware that the plaintiff signed the performance evaluation in January of 2008, yet it did not raise the issue of untimeliness. See GPO Report at 16. The plaintiff did, in fact, receive her own physical copy of the performance evaluation in March 2008, thus the statement made in her affidavit submitted to the EEO investigator was accurate, despite the defendant's contention to the contrary.
In order for a performance evaluation to constitute an adverse employment action cognizable under Title VII, "it must affect the employee's `position, grade level, salary, or promotion opportunities.'" Taylor v. Solis, 571 F.3d 1313, 1321 (D.C.Cir.2009) (lowering of evaluation from "Outstanding" to "Excellent" to "Fully Effective" over three year period was not materially adverse in face of "bare, conclusory allegation that she was denied promotional and bonus opportunities") (quoting Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C.Cir.2008)); see also Porter v. Shah, 606 F.3d 809, 818 (D.C.Cir. 2010) (an assessment did not affect plaintiff's "position, grade level, salary, or promotion opportunities and was therefore not a materially adverse action" (internal quotation marks and citation omitted)); Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) ("[F]ormal criticism or poor performance evaluations ... should not be considered [adverse actions] if they did not affect the employee's grade or salary." (internal quotation marks and citation omitted)). Evaluations may change over time due to a variety of reasons, such as new demands of the job or different appraisal standards. This is a reality of the workplace and, consequently, a more negative evaluation compared to a prior evaluation is simply not sufficient, standing alone, to establish discrimination, retaliation or pretext. Thus, here, the plaintiff cannot rely solely on her slightly lower performance evaluations of "excellent" rather than "outstanding" to support her claims. See, e.g., Reshard, 2010 WL 1379806, at *20, 2010 U.S. Dist. LEXIS 34426, at *71-74 (where plaintiff "received excellent evaluations," court did not "find that any material adversity resulted from the plaintiff not receiving the performance evaluations she contends she was entitled to receive [and]... plaintiff's performance evaluation allegations fail to support a claim for retaliation."); Sutherland v. Mo. Dep't of Corr., 580 F.3d 748, 752 (8th Cir.2009) (re-classification of plaintiff's performance from "highly successful" to "successful" with no reductions in pay, salary, benefits or prestige "does not provide a material alteration of [the plaintiff]'s employment and is not actionable"); Holley v. N.C. Dep't of Admin., 846 F.Supp.2d 416, 444 (E.D.N.C. 2012) (performance ratings that varied between good, very good, and outstanding and an overall rating that remained at very good was found not to constitute a materially adverse action).
The plaintiff bolsters her claim, however, by arguing that her slightly lower performance rating of "excellent," rather than "outstanding," "reduced her bonus," and that a reduction of even a small amount in her bonus award is enough to show an adverse employment action. Pl.'s Opp'n at 26. The plaintiff did, in fact, receive substantial bonuses for Q4 2007 and in 2008 based upon her "excellent" performance evaluations. Had she received the "outstanding" ratings she believed that she deserved, her bonus for Q4 2007 would have been increased by no more than fifteen percent, or in dollar terms, at most $217.50, and her bonus in 2008 would have been increased by between three and nine percent, or in dollar terms, between $129 and $345. In view of the bonus payments and the relatively small amount of money the plaintiff alleges that she was denied, the defendant contends that her bonuses were not reduced "in any significant way
Clearly, not every monetary harm that may occur in the workplace automatically qualifies as an adverse employment action. See Augustus v. Locke, 934 F.Supp.2d 220, 234, 2013 WL 1290839, at *10 (D.D.C.2013) (loss of approximately $25 as a result of an AWOL charge, was "a mere trivial harm, not an adverse employment action, and certainly not the kind of action that requires action by this Court."); Arafi v. Mandarin Oriental, 867 F.Supp.2d 66, 72 (D.D.C.2012) (where plaintiff was not allowed to service two floors of hotel during visit of Israeli delegation, the maximum amount of lost earnings was the amount of the tips potentially earned from additional two floors and this "de minimis amount ... cannot rise to the level of an adverse employment action"); Brooks v. Clinton, 841 F.Supp.2d 287, 301 (D.D.C.2012) (failure to reimburse $70 taxi fare is not an adverse employment action); Dorns v. Geithner, 692 F.Supp.2d 119, 133 (D.D.C.2010) (denial of three hours of advanced sick leave is too de minimis to be considered "material" or "significant" to constitute an adverse action); Dickerson v. SecTek, Inc., 238 F.Supp.2d 66, 76 n. 4 (D.D.C.2002) (concluding that the difference between one day's pay and one day's overtime pay "could well be described as a de minimis loss of pay, which does not rise to the level of adverse action").
The relatively small reduction in the plaintiff's bonuses due to the challenged performance evaluations presents a close question as to whether she has established the requisite adverse employment action for her prima facie discrimination case. The Court will grant this issue to the plaintiff, however, for two reasons. First, in this Circuit, even seemingly small reductions in bonus payments tied to performance evaluations have been found sufficient to constitute an adverse employment action. See Russell v. Principi, 257 F.3d 815, 819 (D.C.Cir.2001) (in reverse discrimination suit, plaintiff's receipt of bonus of $807 for an "excellent" performance rating, compared to her African-American co-worker's bonus of $1,355 for her "outstanding" rating, represented "the loss of a bonus that is worth hundreds of dollars [and] is not a petty detriment," warranting reversal of summary judgment because plaintiff "presented a prima facie case of reverse discrimination under Title VII based on an adverse employment action."); Pollard v. Quest Diagnostics, 610 F.Supp.2d 1, 29-30 (D.D.C. 2009) (where plaintiff received a 1 percent decrease in merit pay due to an "Achieves Expectations" rating rather than a higher "Excellent" rating, a decrease deemed "trivial" by defendant, court nonetheless found a "materially adverse action") (citing Russell, 257 F.3d at 818-19); accord Weber v. Battista, 494 F.3d 179, 185 (D.C.Cir.2007) (lowered performance evaluation that resulted in the employee not receiving optional cash award, which she had regularly received in each of three years preceding protected activity, could be materially adverse action).
Second, since the defendant has proffered legitimate, non-discriminatory or nonretaliatory reasons for the actions, whether the plaintiff has established a prima facie case is "`a largely unnecessary sideshow[,]'" Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C.Cir.2008) (quoting Brady v. Office of the Sergeant at Arms, U.S. House of Reps., 520 F.3d 490, 494 (D.C.Cir.2008)), and the Court's inquiry "distills to one question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted nondiscriminatory reason was not
The plaintiff alleges that her Q4 2007 performance evaluation, which she received in February or March, 2008, was downgraded because of her gender and in retaliation for her prior EEO activities. Compl. ¶¶ 16, 31, 35. In support of this allegation, she points out that, timing-wise, this was the first evaluation she had received following her settlement in March 2007 of her first two EEO complaints, and that five of the nine Job Elements on the evaluation form appear to have originally been checked as an "outstanding" rating, "but then someone had erased those checkmarks and checked the box for a `fully satisfied' rating." Pl.'s Opp'n at 4; see Def.'s Mem., Ex. 7-8 (GPO Employee Performance Ratings for Kimberly Warner), ECF No. 21-8; Compl. ¶ 16. Additionally, the plaintiff's overall rating was originally rated "outstanding, which was then erased and then marked `excellent,' a rating lower than `outstanding.'" Compl. ¶ 16; see Def.'s Mem., Ex. 7-8 (GPO Employee Performance Ratings for Kimberly L. Warner), ECF No. 21-8. The defendant has proffered two reasons for the "excellent" rating on this performance review: first, the "[p]laintiff's performance fell within the excellent not outstanding range." Def.'s Reply at 18. Second, related to the first reason, the defendant proffered that since this was the first rating period tied to performance goals with monetary bonuses, it became more difficult to obtain the highest rating and, indeed, "no other supervisor in the Bindery received an `outstanding' rating" on their Q4 2007 performance evaluation. Def.'s Reply at 19; see also Crawford Dep., ECF No. 21-6, at 58, 105 ("[S]tarting in 2008, we went to what we called performance goals ... the people at the top wanted to go with a new format and put, attach bonuses to performance, and so the last quarter of the year, they did this.").
At the outset, the Court addresses the plaintiff's allegation that the ratings on the document reflecting the Q4 2007 evaluation appear to have been changed. This fact, standing alone, does not indicate or suggest in any way that the changes in the check-marked boxes were due to discriminatory or retaliatory animus. This performance review was done by Messrs. Allegar and Crawford, and Ms. Taylor's role was simply to hand the plaintiff the final review when it was available in February, 2008 from the Performance Review Committee. Taylor Aff., ECF No. 21-2, ¶ 4; Crawford Aff., ECF No. 21-4, ¶ 5. The plaintiff's fourth-level supervisor, Mr. Crawford, who reviewed this evaluation, explained that the rating supervisor is "supposed to" fill out the evaluation "in pencil because he or she can change their mind," and then, after concurrence by the reviewing supervisor, "finalize" it in ink before presenting the evaluation to the employee. Crawford Dep., ECF No. 24-6, at 354-55; see also id. at 356 (the rating supervisor uses pencil "because the supervisor could rate them, re-think it, erase them, come back. When they give the reviewer their final copy in pencil and the review says okay, I'm satisfied, then they mark them in ink, and then present them
The record simply does not support any nefarious reason for the changed ratings in the Q4 2007 Performance Evaluation, let alone why the erasures were made, other than that the rating supervisor changed some of his ratings before presenting them to Mr. Crawford. In view of the undisputed fact that this was the first rating period connected to bonuses, it is plausible that changes were made to the evaluations to comport with the higher standards for obtaining the highest rating associated with a maximum bonus pay-out. In fact, it is undisputed by the plaintiff that "Q4 2007 ratings of `excellent' for other supervisors in the Bindery show[ ] similar erasure marks." Def.'s Reply at 21.
The plaintiff challenges the defendant's first stated reason, however, stating that "GPO does not even generally defend the appropriateness of the ratings," on the Q4 2007 performance evaluation by contrast to its "detailed ... defense ... for the ratings in [the plaintiff]'s 2008 review." Pl.'s Opp'n at 28 (emphasis in original). The plaintiff is incorrect. The defendant has explained that the challenged Q4 2007 rating of "excellent" was due to the plaintiff not meeting the metrics for certain goals. Crawford Aff., ECF No. 21-4, ¶ 5 ("[T]he Production Manager [] did put goals about metric in Kim's rating that she had to meet ... she had some metrics but they were not what the goal said."). The plaintiff does not anywhere dispute that she did not meet all of the metrics for all of her goals, but instead attempts to deflect attention to the erasures, which, as noted above, do not show anything other than the author slightly revising his ratings, which is not enough to show pretext.
As to the defendant's second stated reason, that getting the highest rating of "outstanding" became more difficult in Q4 of 2007, the plaintiff has no response. See Crawford Aff., ECF No. 21-4, ¶ 5 ("2007 was tied to money and the level for achieving `outstanding' was a little more difficult because goals had to be met to get the money."). Moreover, she does not dispute that, due to the more rigorous rating system applied, no supervisor in Bindery, including Mr. Crawford himself, received an "outstanding" rating for that period. Id. (the plaintiff "received the same level of rating that [Mr. Crawford] did which afforded us a cash bonus ... no one received an `outstanding.'"). This fact significantly undercuts the plaintiff's prima facie case of discrimination since she cannot demonstrate any disparate treatment. See Bridgeforth v. Jewell, 721 F.3d 661, 665 (D.C.Cir.2013) ("The context here [, where no other involved employee was nominated,] refutes [the plaintiff]'s claim that the failure to nominate him for a time-off award was an adverse action."); George v. Leavitt, 407 F.3d 405, 412 (D.C.Cir.2005) (inference of discrimination may be established "by demonstrating that she was treated differently from similarly situated employees who are not part of the protected class"). On the contrary, she was treated exactly the same way and given the exact same performance rating as other "upper echelon" management in the Bindery Division. See Crawford Aff., ECF No. 21-4, ¶ 5 ("She did get a bonus in the
With respect to the plaintiff's claim that the Q4 2007 performance evaluation was retaliatory, the undisputed fact is that this evaluation was given to her in February, 2008, approximately ten months following her March, 2007 EEO settlement. Def.'s Mem. at 13 ("Plaintiff cannot raise an inference of discrimination or retaliation in any event because ... the rating was issued approximately 10 months after any prior protected conduct."). The lack of temporal proximity between the evaluation and her protected activity makes any alleged causal connection between the two events highly implausible. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (for discrimination suits, "the temporal proximity must be very close": a three-or four-month period between an adverse action and protected activity is insufficient to show a causal connection, and a twenty-month period suggests "no causality at all"); Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C.Cir.2012) ("[T]emporal proximity can indeed support an inference of causation, but only where the two events are very close in time.").
The plaintiff's claims of discrimination and retaliation based upon her Q4 2007 performance evaluation are further undercut by the relatively small amount of the reduction in her bonus attributable to her not receiving the "outstanding" rating that she says she deserved. In short, the plaintiff has not presented sufficient evidence for any reasonable jury to find that the defendant's asserted non-discriminatory and non-retaliatory reason was not the actual reason and that the defendant intentionally discriminated against the plaintiff on the basis of her gender or issued the Q4 2007 evaluation to retaliate against her.
The plaintiff alleges that her 2008 performance evaluation, which she received in February 2009, was downgraded to "exceeds expectation," the next to highest rating, rather than the highest rating of "outstanding," which she contends she deserved, in retaliation for her having filed EEO complaints on July 3, 2008 and August 21, 2008. Compl. ¶¶ 17, 23, 25, 35. In support of this allegation, the plaintiff contests the ratings she received for three out of six job elements on which her "exceeds expectations" evaluation was predicated. Specifically, the plaintiff received a score of 67 points, which was three points fewer than required to obtain the highest overall "outstanding" rating, and, as a consequence, the amount of her bonus was reduced by between 3 and 9 percent. Def.'s Mot., Ex. 12 (Summary Rating Form for period Oct. 1, 2007 through Sept. 30, 2008) ("Summary Rating Form"), ECF No. 21-8; Pl.'s Opp'n at 6; GPO Supervisory Performance Agreement. In response, the defendant has proffered a legitimate, non-retaliatory reason for each of the three job elements for which the plaintiff received an "exceeds expectation" rating, based upon the testimony and declarations of the plaintiff's direct supervisor, Walter Wingo, who signed the performance evaluation on November 24, 2008, and the plaintiff's second-level supervisor, Katherine Taylor, who signed the evaluation on November 26, 2008. See Summary Rating Form. Each of these three job elements is discussed below.
Second, with respect to Goal 4, which relates to "[i]ncrease bindery profitability and timeliness of bindery revenue recognition," GPO Supervisory Performance Agreement at 7, the defendant explained that the "[p]laintiff did not receive an `outstanding' rating ... because she failed to `[d]evelop and maintain records by operator of percent time spent on printer operations and job handling; hand-fishing; Digipath utilization,' which was a requirement for the outstanding rating under her performance plan." Def.'s Mem. at 15 (quoting GPO Supervisory Performance Agreement). As her supervisor explained, the plaintiff "submitted log sheets with raw data, [while] [p]ercent is by definition a calculation, so I would expect to see a percent." Taylor Dep., ECF No. 21-7, at 54. The plaintiff does not dispute that she provided operator time in hours rather than in percentages, as required by the job element, but claims this format for reporting had been previously excused. Specifically, the plaintiff states that "although Ms. Taylor had not changed the language in Ms. Warner's performance plan, she had told Ms. Warner that reporting hours without a percentage was acceptable." Pl.'s Opp'n at 7; Pl.'s Dep., ECF No. 24-1, at 86-87; Taylor Dep., ECF No. 24-7, at 147; Pl. Decl. ¶ 38. Ms. Taylor confirms that she spoke to the plaintiff about this job element and advised her only that maintaining a log sheet was "okay ... for data collection." Taylor Dep., ECF No. 21-7, at 55. Ms. Taylor denies having had any discussion with the plaintiff about whether that format
To bolster her position, the plaintiff points out that Ms. Jones, a DPC supervisor, received an "outstanding" rating from Mr. Wingo for an identical goal, even though Ms. Jones submitted the same data as the plaintiff in operator hours rather than as a percentage of time worked. Jones Decl., ECF No. 24-9, ¶ 24.
Finally, with respect to Goal 6, the defendant proffered that the "[p]laintiff did not receive an `outstanding' rating [on this goal] because she did not develop a job description proposal by August 30, 2008 for a `Graphic Processor Operator, Preflight Specialist,' as required to receive an `outstanding' rating for that element under her performance plan." Def.'s Mem. at 15. The plaintiff disputes this assertion and claims that she included the written standards and ratings for "Graphic Processor Operators" and a job description proposal for "Graphic Processor Operator, Preflight Specialist" in the binder that she provided to Mr. Wingo to show that she had met her Job Element. Pl.'s Opp'n at 7-8; Pl. Decl. ¶ 39. After the plaintiff showed to Mr. Wingo the materials in the binder, he told the plaintiff that her rating would stay the same because he had no way of knowing whether she had completed the documents by the deadline. Pl.'s Opp'n at 8. The plaintiff does not dispute that she did not alert her supervisors that the documents were completed, or physically turn over the requisite documents to her supervisors, by August 30, 2008. Moreover, she does not dispute that the documents offered by the plaintiff to Mr. Wingo in support of her claim are undated. Pl.'s Dep., ECF No. 24-1, at 92-95. Indeed, the plaintiff has provided no evidence, other than her assertions, to support her claim that the documents were completed by the deadline of August 30, 2008, which was required to obtain the "outstanding" rating for Goal 6 that she says she deserved.
In sum, the plaintiff has failed to produce sufficient evidence to create any triable fact that would permit a reasonable jury to reject the defendant's proffered
The Court next turns to the plaintiff's assorted claims regarding her work conditions, which she argues were imposed on her for discriminatory and retaliatory reasons. Although the claims in the Complaint identify only one working condition — that she "was also denied an office," Compl. ¶¶ 31, 35 — the plaintiff also apparently considers understaffing at DPC, which is mentioned in her factual allegations, see id. ¶ 21, as support for her claims. Consequently, the Court will consider both her lack of a private office and DPC understaffing in evaluating whether the record contains a triable issue regarding these work conditions being imposed for discriminatory and retaliatory reasons to refute the defendant's proffered explanations for their presence.
The plaintiff contends that she was "promised an office on several occasions but has never received one," Compl. ¶ 20, and, further, that she "faces unnecessary obstacles to performing [her] tasks because she does not have a private work space[,]" id. The plaintiff's deposition testimony and performance reviews contradict this contention. At the outset, it is worth noting that the plaintiff has not had a private office during her entire employment at DPC, so she cannot contend that this working condition has changed for the worse after she engaged in any protected activity. In addition, despite her expressed wish for a private office, she has been able to perform her duties and accomplish her performance goals successfully using the facilities provided to her. Indeed, the plaintiff testified that she was able to perform her job duties notwithstanding her lack of a private office. Pl.'s Dep., ECF No. 21-5, at 113-14. Not only has the plaintiff been able to perform her job duties, but she has been able to perform them successfully as evidenced by the "exceeds expectations" or "outstanding" ratings she has earned on her performance reviews over multiple years. Under these circumstances, the Court finds that the plaintiff's lack of a private office simply does not constitute an adverse employment action for her discrimination claim, nor is it materially adverse for purposes of her retaliation claim, even if the plaintiff finds this working condition inconvenient and aggravating.
In any event, the defendant has asserted a legitimate, non-discriminatory and nonretaliatory reason for not providing the plaintiff with a private office. Mr. Crawford has expressed his support for the plaintiff to have a new office, and explained that he had planned to construct a private office for the plaintiff within DPC, but others within GPO management determined that new machinery had to be placed in the planned location for the plaintiff's new office.
The plaintiff alleges that the lack of adequate staffing at DPC has resulted in the plaintiff and her staff "being overworked, unable to take time off, and under intense pressure." Compl. ¶ 21. She further alleges that she filled one vacancy for an Océ operator in 2007, but that "the job announcements for the other four positions were canceled." Id.; see also Pl.'s Opp'n at 11 ("Both Mr. Crawford and Ms. Taylor have canceled DPC vacancies [in May 2008] without consulting [the plaintiff], even though [the plaintiff] was the selecting official and the DPC remained understaffed."). This allegation does not withstand scrutiny in light of the undisputed evidence uncovered during discovery.
First, the fact that employees, especially U.S. government employees in a time of severe federal budget constraints, face overwork due to the elimination of vacant positions does not constitute a materially adverse employment action. See Allen v. Napolitano, 774 F.Supp.2d 186, 203 (D.D.C.2011) (finding denial of additional resources and support is not sufficient to qualify as a material adverse action). Moreover, the record indicates that the failure to fill all of the vacant positions was due, at least in part, to the actions of the plaintiff, who determined in 2007 and 2008 that she did not have a sufficient number of qualified candidates to fill the positions. Pl.'s Dep., ECF No. 21-5, at 203-07; Taylor Aff., ECF No. 21-2, ¶ 9. In any event, the plaintiff did fill one vacancy in 2008, and was subsequently able to hire three graphic process operators in 2009-2010. Compl. ¶ 21.
Second, the defendant has proffered a legitimate reason for the canceled positions that the plaintiff cannot and does not dispute. Specifically, the defendant explains that "during the [Fiscal Year 2009] budget process that was occurring at that time and in which headcount was being reduced across the board, Ms. Taylor could not make a business case to keep those vacancies in the budget," especially in light of the length of time "the DPC was able to operate without those positions being filled." Def.'s Mem. at 22 (citing Taylor Aff. ¶ 9). No evidence has been presented that raises any triable fact about this assessment of the "business case to keep those vacancies," and, consequently, this allegation does not sustain the plaintiff's claims of discrimination or retaliation.
Under the broad rubric of "[o]bstacles to [a]dvancement," the plaintiff includes factual allegations that she "has been denied valuable opportunities to cross-train — that is, to train to do work in another GPO division[,]" and "denied the opportunity to serve on special committees and projects" because of her gender and in retaliation for her prior EEO activities. Compl. ¶ 15.
First, the denial of training opportunities and committee assignments outside of, or in addition to, an employee's job responsibilities does not generally constitute an adverse employment action. See Dorns v. Geithner, 692 F.Supp.2d 119, 133 (D.D.C.2010) (finding the denial of the plaintiff's request to attend four training courses did not rise to the level of adverse employment actions under Title VII); Brooks v. Clinton, 841 F.Supp.2d 287, 301 (D.D.C.2012). To "constitute an adverse employment action[,]" the plaintiff must "`tie the alleged discriminatory employment action to some actual, tangible adverse employment consequence.'" Edwards v. EPA, 456 F.Supp.2d 72, 85 (D.D.C.2006) (quoting Nurriddin v. Goldin, 382 F.Supp.2d 79, 102 (D.D.C.2005)). Thus, "to be adverse, the denial of a ... training opportunity must have a discernible, as opposed to a speculative, effect on the terms, conditions, or privileges of one's employment." Id. at 86.
Here, the plaintiff makes the conclusory assertion that cross-training and service on committees are the "types of experience [that] can be the determinative factor in [promotion] decisions." Compl. ¶ 15. She argues that "prevent[ing her] from acquiring experience and knowledge that she could note on her resume and use to apply to better jobs within GPO, negatively affect[ed] her future employment opportunities and future salary." Pl.'s Opp'n at 42. Such alleged harm is not "actual" or "tangible." It is speculative. Indeed, close examination of the plaintiff's nonselection for the Assistant Production Manager position shows that the selecting official's focus was on the actual jobs held by the candidates, rather than committees on which they served or cross-training they received. Thus, the claimed denial of opportunities to cross-train or serve on committees is not a materially adverse employment action.
Second, even if these claimed denials of opportunity did qualify as adverse employment actions, for each incidence cited by the plaintiff, the defendant has asserted legitimate, non-discriminatory and non-retaliatory reasons. With respect to the plaintiff's alleged requests to cross-train, the plaintiff concedes that "no formal cross-training program exists" to which she was denied consideration. Pl.'s Opp'n at 43. Furthermore, the plaintiff can cite to no other person similarly situated to the plaintiff, or from DPC generally, who was cross-trained in other divisions of the Bindery. The fact that the plaintiff is not a journeyman and never completed a bookbinding apprenticeship is a significant barrier to her being eligible for cross-training in another Bindery unit, where employees have this specialized training. In fact, the plaintiff conceded that she has not pursued this specialized training. Pl.'s Dep., ECF No. 21-5, at 18-23. The plaintiff bases her allegation about being denied cross-training on the example of Darrell Mahoney, "a Foreperson in the Bindery Division." Compl. ¶ 15. The plaintiff's belief that Mr. Mahoney was sent to DPC for "cross-training" is based upon her impression that Mr. Mahoney "seemed to be checking on the work that [plaintiff] was doing and interacting with her subordinates when
The plaintiff has identified one instance in 2010 where her request to serve on the Safety Committee was denied. Pl.'s Dep., ECF No. 21-5, at 152-54. The only supervisor on this Committee had been named by Ms. Taylor at the suggestion of the safety office, and the other members of the Committee were intentionally non-supervisory employees in order to give them the opportunity to assess the safety of their own work areas. Taylor Dep., ECF No. 21-7, at 152-57.
The plaintiff alleges that GPO management "made two personnel decisions concerning the DPC that undermined [her] advancement opportunities by reducing her supervisory duties" because of her gender and in retaliation of her prior EEO activities. Pl.'s Opp'n at 9; Pl. Decl. ¶ 54. These two personnel decisions involve, first, the reassignment in July 2008 of two DPC employees from the GPO facility in Laurel, Maryland to the main GPO building, see Pl.'s Opp'n at 10, Def.'s Facts ¶ 36; and, second, the August 2008 detail to the U.S. Senate of a DPC employee, Mr. Middlebrooks, through another GPO unit, Congressional Publishing Services (CPS). Compl. ¶ 26, Def.'s Facts ¶¶ 46-49.
While changes in job responsibilities may constitute adverse employment actions when they affect "the terms, conditions, or privileges of [the plaintiff's] employment or future employment such that a trier of fact could find objectively tangible harm," Doe v. Gates, 828 F.Supp.2d 266, 270 (D.D.C.2011) (emphasis omitted), the plaintiff fails to show how the two challenged personnel reassignments contributed to the stripping of the plaintiff's supervisory duties. The two DPC employees reassigned from the Laurel facility remain under the plaintiff's supervision and, thus, this reassignment did not result in a significant reduction in the "quantity or quality" of her supervisory responsibilities. Def.'s Facts ¶ 38 ("The operators reassigned from Laurel remained under [the plaintiff's] supervision after they were reassigned to main GPO."); Pl.'s Facts ¶ 38 ("Undisputed."); Taylor Aff., ECF No. 21-2, ¶ 8 ("The two people we brought back are still under her supervision."); cf. Holcomb v. Powell, 433 F.3d 889, 902-03 (finding the plaintiff "experience[d] an extraordinary reduction in responsibilities that persisted for years, from which a reasonable jury could conclude [the plaintiff] suffered objectively tangible harm," when "[t]he record include[d] uncontroverted testimony that her duties dramatically declined in both quantity and quality" (internal quotation marks omitted)). Moreover, the plaintiff has admitted that she maintains some supervisory responsibility for Mr. Middlebrooks, including "[providing] technical support and ... supplying a replacement when he was on leave." Pl.'s Opp'n at 40 (citing Pl. Decl. ¶ 56; Jones Decl. ¶ 14). Even if the plaintiff's supervisory duties for Mr. Middlebrooks were somewhat diminished, this does not rise to the level of an adverse employment action. Thus, these personnel changes do not satisfy the requisite elements for a prima facie case of either discrimination or retaliation.
In any event, the defendant explains that both of the challenged personnel decisions were "business decisions taken by GPO in response to budgetary pressures and other business considerations." Def.'s Mem. at 17. Specifically, the two DPC employees in the Laurel facility were reassigned "because it was not efficient to have those operators working out of Laurel when similar machinery in the main building was available for them to use." Id. at 23; see Taylor Aff., ECF No. 21-2, ¶ 8. The Océ digital press operated by these employees requires two employees to be present for safety reasons, and "if one did not show up, the other just sat there." Taylor Aff., ECF No. 21-2, ¶ 8. In addition, with only two operators in Laurel, there was only one shift "and nobody there on afternoon or night shift." Id. Since the GPO was "not getting additional production ... for business reasons we decided to shut it down at least temporarily." Id. The plaintiff does not dispute the safety concerns
Regarding the change in the detail of Mr. Middlebrooks, the record is clear that the plaintiff's supervisor, Ms. Taylor, sought to effectuate the plaintiff's proposal of having this employee detailed to the U.S. Senate from DPC. Given the significant financial loss to GPO without a detail for this employee, the plaintiff does not dispute that he needed to be detailed from some part of GPO. Every other employee detailed from GPO to a congressional office is apparently detailed from CPS, and CPS insisted that no exception be made for Mr. Middlebrooks. Taylor Aff. ¶ 7 ("All congressional details are managed from a single point in GPO, Congressional Publishing Services[.]"). Thus, over the objection of the plaintiff, "Ms. Taylor concurred with her management that she would do the best thing for GPO overall, which was to detail [Mr. Middlebrooks] through CPS rather than continue running at a loss." Def.'s Mem. at 25 (citing Taylor Aff. ¶ 7). The fact that the plaintiff "just did not like the outcome," Taylor Aff. ¶ 7, does not make the decision discriminatory or retaliatory. Thus, the plaintiff has not provided evidence sufficient for a reasonable jury to find that the defendant's personnel reassignment decisions were pretext for discrimination or retaliation.
The plaintiff's myriad complaints about her non-selection for another position, her performance evaluations for the fourth quarter of 2007 and 2008 (despite her substantial bonuses for those time periods), her working conditions, and management decisions regarding cross-training, committee assignments, personnel reassignments, and equipment leases, paint a picture of an employee who has been deeply dissatisfied, frustrated and unhappy in her job for years. As the D.C. Circuit has recently reiterated, "not everything that makes an employee unhappy is an actionable adverse action," because otherwise the courts would be called upon to mediate "even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like." Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C.Cir.2013) (internal quotation marks and citations omitted). Close examination of each of the plaintiff's factual allegations underlying her claims of gender discrimination and retaliation, to the extent these allegations constitute adverse employment actions, fail to raise any triable issue about whether the defendant's
An Order accompanies this Memorandum Opinion.
