ELLEN SEGAL HUVELLE, United States District Judge.
Plaintiff Linda Ramseur has brought this action against Thomas E. Perez, in his official capacity as the Secretary of the Department of Labor ("DOL"), alleging that she had been subjected to discrimination, retaliation, and a hostile work environment based on her race and sex. This Court initially granted in part and denied in part defendant's motion on the pleadings. See Fed. R. Civ. P. 12(c). Discovery
When the events giving rise to this case occurred, plaintiff (African-American) was employed by the DOL as a Staff Assistant, GS-09, assigned to the Office of the Director in DOL's Civil Rights Center ("CRC"). (Compl. [ECF No. 1] ("Compl.") ¶ 6.) Ramón Suris Fernandez (Hispanic) became the Director of the CRC in April 2008. (Def.'s Mot., Ex. 1 [ECF No. 31-1] ("Suris-Fernandez Aff.") ¶¶ 3-4.) Early in Mr. Suris-Fernandez's tenure, management expressed a desire to provide plaintiff with an opportunity to advance her career. (Def.'s Statement of Material Facts as to Which There Is No Genuine Dispute [ECF No. 30] ("Def.'s SOF") ¶ 5; Suris-Fernandez Aff. ¶ 18.) In October 2008, Julia Mankata-Tamakloe (African-American) —one of plaintiff's supervisors at the time—e-mailed Jackie Brooks (African-American) —a Human Resources (Developmental) Specialist—inquiring as to whether there existed a GS-11 Staff Assistant position into which plaintiff could be placed due to her accretion of duties.
In October 2008, Patricia Lamond (Caucasian) joined the CRC. (Def.'s SOF ¶ 3; Def.'s Mot., Ex. 2 [ECF No. 31-1] ("Lamond Aff.") ¶¶ 3-4.) In March 2009, Lamond became plaintiff's second-line supervisor, and Elvia Mata (Hispanic) became plaintiff's first-line supervisor. (Def.'s SOF ¶¶ 3-4; Def.'s Mot., Ex. 4 [ECF No. 31-1].) Lamond was also the second-line supervisor of Ken Willis (African-American), who was responsible for coordinating the Staff Assistant position recruitment action.
On May 18, 2009, the DOL posted a vacancy announcement for the Staff Assistant position. (Def.'s SOF ¶ 12; Def.'s Mot., Ex. 8 [ECF No. 31-1] ("Vacancy Announcement").) The announcement contained the following requirement: "[C]andidates should demonstrate specialized experience in planning, implementing, or evaluating compliance and technical assistance activities related to recipients of Federal financial assistance; conducting EEO and EO investigations and non-discrimination statutes under Title VI and VII of the Civil Rights Act and related statutes." (Vacancy Announcement at 3.) The testimony is conflicting as to the identity of the requirement's author. In her deposition, Jackie Brooks stated that "Patty Lamond [and] my direct supervisor, Maria McAlpin ... worked together in formulating the specialized experience [requirement]." (Pl.'s Opp., Ex. 7a [ECF No. 33-9] ("Brooks Dep.") at 77.) Plaintiff likewise claims that Lamond and McAlpin inserted the requirement. (Pl.'s Opp. at 11 ("[T]here can be no question that [Lamond] drew the requirement and was assisted by Personnel Officer McAlpin in doing so.").) Although Lamond herself denies writing the requirement, defendant concedes that "Lamond ... was ultimately responsible for reviewing the document, as a CRC manager." (Def.'s SOF ¶ 19; see Lamond Aff. ¶¶ 37, 41.) For purposes of this motion, the Court must assume that Lamond was the author.
Shortly after the vacancy announcement was posted, plaintiff applied for the position, along with seven other individuals. (Def.'s SOF ¶ 16; Def.'s Mot., Ex. 9 [ECF No. 31-1] ("Applicant Listing"); Def.'s Mot., Ex. 10 [ECF No. 32].) All eight applicants were female; seven of the applicants identified as "Black or African American"; one applicant identified as "White." (Pl.'s Opp., Ex. 25 [ECF No. 35-6].) Jackie Brooks reviewed all eight applications and found that all of the applicants either lacked the specified qualifications or were ineligible for consideration. (Def.'s SOF ¶ 17; Applicant Listing; Def.'s Mot., Ex. 7 [ECF No. 31-1] ("Brooks Aff.") ¶ 30.) Brooks notified plaintiff that the reason she did not qualify for the position was because she "did not have the specialized experience that was required for the position," specifically that she did not meet the requirement that candidates "should demonstrate specialized experience in planning, implementing, or evaluating compliance and technical assistance activities related to recipients of Federal financial assistance; conducting EEO and EO investigations and non-discrimination statutes under Title VI and
On November 5, 2009, plaintiff received a performance rating of "effective" for the period from March 23, 2009 to October 30, 2009. (Def. SOF ¶ 20; Pl.'s Opp., Ex. 3 [ECF No. 33-7] ("2009 Performance Review").) Elvia Mata was plaintiff's direct supervisor during this period and conducted the review; Patricia Lamond approved the performance assessment. (Def.'s SOF ¶ 24; 2009 Performance Review; Def.'s Mot., Ex. 3 [ECF No. 31-1] ("Mata Aff.") ¶ 17.) Mata has stated that the rating of "effective" was based on plaintiff's "execution of assignments," "customer service—showing cooperation with others," "display of tact, discretion, and confidentiality," "ability to seek possible sources for information when it is not [readily] available to her," "final product reflects information requested," and "accepting personal responsibility for the quality of her work."
The day before her initial review, which occurred on October 29, 2009, plaintiff sent Mata an e-mail that included documentation of her accomplishments. (Pl.'s Opp., Ex. 26 [ECF No. 35-6] ("Ramseur Oct. 28 E-mail").) Plaintiff sent Mata additional supportive documents the day after her review. (Pl.'s Opp., Ex. 29 [ECF No. 35-7] ("Ramseur Oct./Nov. E-mails").) Mata has stated that these additional submissions "did not support a higher rating." (Mata Aff. ¶ 27.) Plaintiff alleges that her review should have been amended to reflect her additional submissions, that she was not given an opportunity to submit comments before the appraisal was sent to the personnel office, and that she was not provided with a mid-year appraisal where she could have been informed that she needed to improve her performance. (Pl.'s Resp. to Def.'s SOF ¶ 21; Pl.'s Opp., Ex. 1 [ECF No. 33-6] ("Ramseur Decl.") ¶ 21.)
Plaintiff alleges that Patricia Lamond "yelled at her at the top of her lungs in front of other employees." (Ramseur Decl. ¶ 26.) In her deposition, plaintiff was able to recall three such yelling incidents, although only two are included in the parties' submissions. (Def.'s Mot., Ex. 12 [ECF No. 32] ("Ramseur Dep.") at 106.) In one incident, on November 17, 2009, plaintiff alleges that Lamond "yelled at [her] unnecessarily" after plaintiff failed to make a copy of a document that Lamond had requested. (Def.'s Mot., Ex. 11 [ECF No. 32] ("EEO Compl.") at 3; see Ramseur Dep. at 99-100.) In another incident, on November 18, 2009, plaintiff alleges that Lamond yelled at her after plaintiff failed to give a fellow employee a message from Lamond. (See EEO Compl. at 3; Ramseur Dep. at 98-99.) Plaintiff claims that Lamond never yelled at white employees. (EEO Compl. at 3; Ramseur Decl. ¶ 26.) Julia Mankata-Tamakloe has stated that she recalls Lamond raising her voice with plaintiff, but not with any other employees. (Mankata-Tamakloe Dep. at 43.) Lamond agrees that she raised her voice with plaintiff, but she states she has a tendency to "raise[][her] voice to office staff" when she "become[s] animated or excited" and that she "did not single out any particular individual." (Def.'s Mot., Ex. 16 [ECF No. 32] ¶ 3; see Def.'s Mot., Ex. 5 [ECF No. 31-1] at 100-01.)
Plaintiff maintains that several other incidents support her hostile work environment claim. On October 7, 2009, plaintiff asserts that Lamond reprimanded her for failing to tell another employee to attend a meeting, even though plaintiff claims that she did inform him of the meeting. (See EEO Compl. at 1; Ramseur Dep. at 102.) And plaintiff complains that Mata required her to leave a post-it note whenever she was away from her desk. (Pl.'s Opp., Ex. 21 [ECF No. 35-4] at 103-04.) She states that she never observed any other employees leaving post-it notes. (Id. at 104.) For her part, Mata has stated that she asked all CRC staff to inform the front desk receptionist if they planned to be gone for more than ten minutes or to leave a note on their cubicle if the front desk receptionist was gone, but that plaintiff "would often be away from her desk for more than 10 minutes at a time and would not notify anyone of her whereabouts." (Mata Aff. ¶ 29.)
On December 9, 2009, plaintiff submitted an "Informal Complaint Informational
On February 6, 2013, plaintiff filed an employment discrimination suit under Title VII. Count I of the complaint alleged that defendant engaged in an unlawful employment practice by including a requirement in the Staff Assistant position posting that disproportionately disqualified minority and/or women applicants and had no relation to the tasks expected to be performed. (Compl. ¶¶ 52-56.) Count II alleged that defendant retaliated against her by giving her a poor performance review and denying her a performance award, delaying the progress of her administrative claim, and subjecting her to a hostile work environment. (Id. ¶¶ 57-61.) Count III asserted that plaintiff's conditions of employment—Lamond's "constant yelling," being "instructed ... to leave sticky notes on her cubicle," the addition of the specialized experience requirement to the Staff Assistant position, and the improper procedure that was followed in denying her a performance bonus—amounted to a hostile work environment. (Id. at 25-28.) Finally, Count IV claimed that plaintiff had been the subject of "workplace bullying." (Id. at 28-29.)
Defendant moved for a judgment on the pleadings, which this Court granted in part and denied in part. Ramseur v. Perez, 962 F.Supp.2d 21 (D.D.C.2013). First, this Court held that Count I stated a sufficient disparate impact claim and that plaintiff had exhausted her administrative remedies related to that claim. Id. at 26-27. This Court also noted that Count I included a disparate treatment claim. Id. at 28. Second, the Court dismissed plaintiff's retaliation claims in Count II. Her allegation of retaliation based on delays in processing her administrative claim failed because "there is no cause of action under Title VII for delay or interference in the administrative process." Id. at 29. The remainder of her retaliation claim failed to state a cause of action because the allegedly retaliatory incidents all occurred before plaintiff engaged in any protected activity. Id. at 28-29. Third, with respect to plaintiff's hostile work environment claim, Count III survived since the Court was "unable to conclude that the allegations in the complaint [were] deficient as a matter of law." Id. at 30. Fourth, "workplace bullying is not an independently cognizable claim under Title VII," and thus, the Court dismissed Count IV and said that it would "treat its allegations as part of ... plaintiff's hostile work environment claim." Id.
A motion for summary judgment is appropriate when the pleadings, the discovery, the disclosure materials on file, and any affidavits show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute as to a material fact exists if a "reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A moving party is thus entitled to summary judgment against "a party who 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." Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C.Cir.2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). When considering a motion for summary judgment,
Under Title VII, it is an "unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, ... [or] sex." 42 U.S.C. § 2000e-2(a). The "two essential elements" of a discrimination claim under this section are "that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff's race, color, ... [or] sex." Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008).
Plaintiff correctly acknowledges that her allegations of disparate treatment are governed by the framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). (Pl.'s Opp. at 14.) "First, the plaintiff must establish a prima facie case of discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). "In a ... refusal-to-promote discrimination case, the McDonnell Douglas prima facie factors are that: (i) the employee `belongs to a racial minority' or other protected class; (ii) the employee `applied and was qualified for a job for which the employer was seeking applicants'; (iii) despite the employee's qualifications, the employee `was rejected'; and (iv) after the rejection, `the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.'" Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 n. 1 (D.C.Cir.2008) (quoting McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817). Once plaintiff makes out a prima facie case, the burden shifts to defendant who must "articulate some legitimate, nondiscriminatory reason" for the adverse action. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; see Reeves, 530 U.S. at 142, 120 S.Ct. 2097.
If defendant satisfies its burden, "the McDonnell Douglas framework—with its presumptions and burdens—disappear[s], and the sole remaining issue [is] discrimination vel non." Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097 (internal quotations marks and citations omitted); see also Baloch, 550 F.3d at 1197 n. 2 ("In cases where the employee has suffered an adverse action and the employer has asserted a legitimate, non-discriminatory reason for that action, we do not consider the McDonnell Douglas prima facie factors."). In such a situation, "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 nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?" Brady, 520 F.3d at 494; Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003) ("[T]o survive summary judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason.").
Plaintiff asserts that she "was victimized by the insertion of a special placement factor into the vacancy announcement for a
Defendant's first response is that plaintiff has not made out a prima facie case of discrimination because no one was hired for the position and the vacancy was not re-posted. (See Def.'s Mot. at 15.) To be sure, the fourth factor of the traditional McDonnel Douglas prima facie case requires a plaintiff to show that "after [plaintiff's] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S. at 802, 93 S.Ct. 1817. The purpose of this element is "to eliminate non-selection cases in which there was no available vacant position." Lewis v. District of Columbia, 653 F.Supp.2d 64, 73 (D.D.C.2009); see also Cones v. Shalala, 199 F.3d 512 (D.C.Cir.2000) ("[The] function [of the prima facie case] is limited to eliminating the two most common non-discriminatory reasons for a plaintiff's rejection: `an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.'" (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977))). Consequently, courts have dismissed cases where external factors rendered the position unavailable. E.g., Hopkins v. Whipple, 630 F.Supp.2d 33, 38 (D.D.C.2009) (summary judgment granted where government canceled position due to "changed workload and resulting lack of work for Russian interpreters"); Carter v. Pena, 14 F.Supp.2d 1, 6 (D.D.C.1997) (summary judgment granted where vacancies were canceled due to budgetary considerations). But, the Supreme Court has cautioned that "the precise requirements of a prima facie case can vary depending on the context and were `never intended to be rigid, mechanized, or ritualistic.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)). The D.C. Circuit has consequently "adopted a more general version of the prima facie case requirement: `the plaintiff must establish that (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.'" Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C.Cir.2006) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999)). Indeed, in Chappell-Johnson, the Circuit reversed a district court's grant of summary judgment for an employer even though plaintiff did "not attempt to show that the position remained open and that the employer continued to seek applicants," where plaintiff had produced other evidence to support an inference of discrimination in a failure-to-hire case. Id.; see also Lewis, 653 F.Supp.2d at 74 (concluding that a "categorical rule that the cancellation of a vacancy announcement can never give rise to a discrimination claim" is "contrary to existing law").
In the present case, plaintiff did not fail to secure the Staff Assistant position because of an "absence of a vacancy in the job sought." Int'l Bhd. of Teamsters, 431 U.S. at 358 n. 44, 97 S.Ct. 1843. On the contrary, all of the evidence in the record suggests that plaintiff did not receive the job because she lacked the specified qualifications.
Defendant argues, in the alternative, that it had a "legitimate, non-discriminatory reason for [the] adverse employment action." (Def.'s Mot. at 16 (quoting Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C.Cir.2008)).) In particular, CRC management made clear to plaintiff that she was not given the position because she failed to meet the specified qualifications for the job. (See Brooks Nov. 19 E-mail.) The Supreme Court has noted that a plaintiff's "absolute or relative lack of qualifications" is one of the "two most common legitimate reasons on which an employer might rely to reject a job applicant." Int'l Bhd. of Teamsters, 431 U.S. at 358 n. 44, 97 S.Ct. 1843. As such, defendant has carried its burden to articulate a legitimate, nondiscriminatory reason for the adverse employment action. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (noting that defendant must merely "set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection" and that "[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons").
The question thus becomes whether plaintiff has "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 race, color, [or] sex." Brady, 520 F.3d at 494. The Brady Court listed a number of ways that a plaintiff could prove that an employer's stated reason was pretextual, see id. at 495, most of which plaintiff has failed to allege. For instance, plaintiff has not put forward any "evidence suggesting that the employer treated other [applicants] of a different race, color, [or] sex ... more favorably in the same factual circumstances." Id. No applicant was ever hired for the position.
Plaintiff's principal contention is that the specialized experience requirement, which disqualified her, was unrelated to the position.
Nonetheless, the evidence submitted by plaintiff is insufficient to allow a reasonable jury to conclude that defendant fabricated its reason for plaintiff's non-promotion or that the true reason was discriminatory. To be sure, the Brady Court noted that one way a plaintiff could prove that an explanation was pretextual was by "demonstrate[ing] that the employer is making up or lying about the underlying facts that formed the predicate for the employment decision." 520 F.3d at 495. "If the employer's stated belief about the underlying facts is reasonable in light of the evidence, however, there ordinarily is no basis for permitting a jury to conclude that the employer is lying about the underlying facts." Id.; see also Fischbach v. D.C. Dep't of Corrections, 86 F.3d 1180, 1183 (D.C.Cir.1996) ("Once the employer has articulated a nondiscriminatory explanation for its action ... the issue is not the correctness or desirability of [the] reasons offered ... [but] whether the employer honestly believes in the reasons it offers." (alterations in original) (internal quotation marks omitted)).
There is little reason to think that CRC management fabricated the need for the investigate requirement to cover up discriminatory animus. Lamond testified that experience conducting investigations was relevant to many of the duties of the newly created position. (See Pl.'s Opp.,
Plaintiff's and Mankata-Tamakloe's testimony that CRC staff assistant positions have not traditionally required knowledge of investigations does little to undermine Lamond's testimony, since no GS-11 staff assistant positions existed when CRC set about to create the position in October 2008. (See 2008 E-mail Exchange at 3.) Mankata-Tamakloe submitted a first draft of a new position description on November 21, 2008, but she stopped working on the position description at the end of December 2008. (Id. at 5; Mankata-Tamakloe Dep. at 33.) Mankata-Tamakloe's position description was subsequently revised. In particular, on February 9, 2009, Maria McAlpin,
Plaintiff nonetheless cites procedural irregularities in the hiring process, which she contends are evidence of disparate treatment. (Pl.'s Opp. at 16.) To be sure, a plaintiff can discredit an employer's stated reasons for an adverse employment action by "pointing to ... the employer's failure to follow established procedures or criteria." Brady, 520 F.3d at 495 n. 3. But, not every procedural violation can
Plaintiff's first procedural challenge is to argue that CRC did not produce a "legally mandated Job Analysis during discovery."
Plaintiff also alleges that "the agency did not produce a crediting plan" for the position in question.
In sum, plaintiff adduces no evidence to support an inference that the requirements were added to the job description so she would not be promoted and that this was motivated by discriminatory animus. Plaintiff has thus failed to undermine defendant's legitimate, nondiscriminatory reason for not promoting her: namely, that she was not qualified for the position. The Court will therefore grant defendant's motion for summary judgment on plaintiff's disparate treatment claim related to the Staff Assistant position.
Plaintiff also alleged that defendant retaliated against her for "complain[ing] of the discriminatory disparate impact" by giving her a low performance rating and denying her a bonus in November 2009. (Compl. ¶ 58.) This Court held that, since "plaintiff's first protected activity occurred on December 9, 2009," and "the acts that she is complaining about all occurred in November 2009," "it is factually impossible for plaintiff to prove causation as to this retaliation claim." Ramseur, 962 F.Supp.2d at 29. Plaintiff, however, continues to maintain that the 2009 appraisal and denial of a bonus support her hostile work environment claim, addressed infra, and her discrimination claim. (See Pl.'s Opp. at 27.) In particular, plaintiff alleges that the following facts demonstrate disparate treatment based on race and sex:
(Pl.'s Opp. at 27-28.)
"[L]oss of bonus money because of an improperly low performance rating
It is therefore incumbent upon plaintiff to show that the "employer's asserted nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, [or] sex." Brady, 520 F.3d at 494. Plaintiff provides scant evidence on this score. First, plaintiff contends that she "was the sole active employee [in the CRC] who did not receive a bonus," which plaintiff argues "suggests disparate treatment." (Pl.'s Opp. at 24.) This fact, even if true,
Next, plaintiff argues that the fact that she "receiv[ed] highly rated performance reviews greater than `effective' throughout [her 30 years at DOL] ... suggests that the ... reviewer possessed some animus directed at the Plaintiff ... and suggests that Race and Gender could have affected their assessments." (Pl.'s Opp. at 24 (emphasis added).) However, as Mata explains, "employees are evaluated for the work they accomplished within the rating period of their evaluations." (Mata Aff. ¶ 24.) Plaintiff's receipt of better appraisals in the past does not suggest that her 2009 rating was a pretext, particularly where CRC management cited numerous complaints about plaintiff's performance during that period that plaintiff does not
In an attempt to overcome this case law, plaintiff alleges that CRC management made a number of procedural errors in handling her 2009 appraisal. The Court finds that these allegations are either not supported by the record or are not "so irregular or inconsistent with [defendant's] established policies as to make its ... explanation unworthy of belief." Porter, 606 F.3d at 816 (internal quotation marks omitted). For example, plaintiff alleges that defendant "did not consider the Plaintiff's submissions of work accomplishments before downgrading the appraisal." (Pl.'s Opp. at 27-28.) However, Mata has testified that plaintiff's additional submissions were reviewed and simply did not justify a higher rating. (Mata Aff. ¶ 27.) Plaintiff has given no reason to doubt Mata's account, and plaintiff's own e-mail indicates that Mata requested one of the submissions. (See Ramseur Oct. 28 E-mail.) Plaintiff also argues that CRC management "did not consult with prior supervis[ors] in the rating of record, thus disregarding ½ of the work performed in the rating period." (Pl.'s Opp. at 28.) But Lamond and Mata became plaintiff's supervisors in March 2009, and the rating period began on March 23, 2009 (see Def.'s SOF ¶¶ 3-4; Pl.'s Resp. to Def.'s SOF ¶¶ 3-4; 2009 Performance Review), so her prior supervisors' input would not have been relevant. Plaintiff contends that CRC did not provide her "with a mandatory mid-year review." (Pl.'s Opp. at 27; see 2009 Performance Review.) Although DOL guidelines do call for mid-year "progress reviews" (DPR at 5), four other CRC employees (two Hispanic females, one African-American male, and one Caucasian female) also did not receive mid-year reviews, and all received bonuses.
"[F]acially neutral employment practices that have significant adverse effects on protected groups have been held to violate [Title VII] without proof that the employer adopted those practices with a discriminatory intent." Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986-87, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). "The evidence in these `disparate impact' cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities." Id. at 987, 108 S.Ct. 2777.
Plaintiff alleges that the job requirement for the GS-11 Staff Assistant position was a facially neutral policy that disproportionately disqualified females and African-Americans. (See Compl. ¶¶ 20-24, 52-56.) To support this claim, she points to the distribution of applicants—seven African-Americans and one Caucasian; all women—none of whom were selected for the position. (See id. ¶ 20; Pl.'s Opp. at 19; Pl.'s Opp., Ex. 25 [ECF No. 35-6].) Plaintiff also cites a 2009 DOL report showing that 582 of 1334 administrative support staff positions were held by African-American women. (See Pl.'s Opp., Ex. 33 [ECF No. 35-7].) Plaintiff submits no further evidence to support her disparate impact claim; in particular, she withdrew her only expert prior to his deposition. (See Def.'s Mot., Ex. 14 [ECF No. 32].) Defendant contends that plaintiff's disparate impact evidence is insufficient to survive summary judgment because she "provided no statistical evidence, whatsoever, to support her claim." (Def.'s Mot. at 7.)
Courts have consistently required statistical evidence to prove a disparate impact claim. See Watson, 487 U.S. at 994, 108 S.Ct. 2777 ("Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group."); Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep't of Hous. & Urban Dev., 639 F.3d 1078, 1085-86 (D.C.Cir.2011) ("When presenting a disparate impact claim, a plaintiff must generally demonstrate with statistical evidence that the practice or policy has an adverse effect on the protected group." (internal quotation marks omitted)); Krodel v. Young, 748 F.2d 701, 709 (D.C.Cir.1984) ("Statistical evidence is crucial in disparate impact cases...."). The Supreme Court has specifically warned against "small or incomplete data sets." Watson, 487 U.S. at 996-97, 108 S.Ct. 2777.
Plaintiff has failed to offer statistical evidence upon which a reasonable jury could infer that the job requirement disproportionately disqualified African-Americans or women. The imbalance in job applicants is not itself probative as to
Plaintiff alleges that the conduct of her supervisors, Lamond and Mata, subjected her to a hostile work environment.
To prevail on a hostile work environment claim, "a plaintiff must show that h[er] employer subjected h[er] to `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working
With respect to Lamond's handling of the Staff Assistant position selection process, the Court has already explained that there is no evidence in the record indicating that the specialized experience requirement was added to discriminate against plaintiff or was racially or sexually motivated. Supra Section II.A; see also Na'Im v. Clinton, 626 F.Supp.2d 63, 73 (D.D.C.2009) ("Courts in this jurisdiction have routinely held that hostile behavior, no matter how unjustified or egregious, cannot support a claim of hostile work environment unless there exists some linkage between the hostile behavior and the plaintiff's membership in a protected class."). Moreover, defendant's failure to promote plaintiff was not a form of "discriminatory intimidation, ridicule, [or] insult" that could give rise to a hostile work environment claim. Harris, 510 U.S. at 21, 114 S.Ct. 367 (internal quotation marks omitted).
The denial of a bonus also cannot contribute to plaintiff's hostile work environment claim. Defendant has provided legitimate, nondiscriminatory reasons for giving plaintiff an "effective" rating and denying her a bonus, which plaintiff has failed to rebut. Supra Section II.B; see also Baloch, 550 F.3d at 1201 (finding no hostile work environment where there were "legitimate reasons and constructive criticism offered in ... letters of counseling and reprimand"). And, there is no evidence that, in delivering plaintiff's performance review, Lamond or Mata were abusive or hostile. See Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C.Cir.2014) (finding no hostile work environment where plaintiff's "performance reviews ... d[id] little to evince abusive conditions"). Plaintiff's allegations related to her 2009 appraisal, therefore, cannot contribute to her hostile work environment claim. See Nurriddin v. Bolden, 674 F.Supp.2d 64, 94 (D.D.C.2009) ("Nor can the removal of important assignments, lowered performance evaluations, and close scrutiny of assignments by management be characterized as sufficiently intimidating or offensive in an ordinary workplace context.").
Plaintiff's remaining complaints do not sustain a claim of discriminatory hostile work environment. Viewing the facts in the light most favorable to plaintiff, there is evidence that plaintiff was yelled at three times in front of her coworkers, that plaintiff was singled out to leave post-it notes on her cubicle during long breaks, and that plaintiff was once reprimanded without cause. The Supreme Court has made clear that Title VII does not reach the "ordinary tribulations of the workplace," Faragher, 524 U.S. at 788, 118 S.Ct. 2275, and the D.C. Circuit has rejected allegations more severe than plaintiff's. For example, in George v. Leavitt, 407 F.3d 405 (D.C.Cir.2005), the Circuit upheld
For the foregoing reasons, the Court will grant defendant's motion for summary judgment [ECF No. 30]. An Order consistent with this Memorandum Opinion will be issued on this day.
