AMY BERMAN JACKSON, United States District Judge
Plaintiff Violena Bean, a former clerical assistant in the Public Information Office ("PIO") of the District of Columbia Metropolitan Police Department ("MPD"), has brought this action against the District of Columbia. The complaint alleges that defendant discriminated and retaliated against her in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and that ultimately, plaintiff was constructively terminated as a result of a series of disciplinary actions taken after she engaged in protected activity. Compl. [Dkt. # 1]. Defendant has moved for summary judgment on all counts, arguing that "no reasonable juror could find that [defendant] discriminated against [p]laintiff because of her age, retaliated against her because of her protected activity, or that [defendant's] conduct resulted in [plaintiff's] constructive termination." Def.'s Mot. for Summ. J. [Dkt. #16] ("Def.'s Mot."); Def.'s Mem. in Supp. of Def.'s Mot. [Dkt. # 16] ("Def.'s Mem.") at 1. Plaintiff opposed the motion, Pl.'s Opp. to Def.'s Mot. [Dkt. # 20] ("Pl.'s
The Court finds that plaintiff has produced sufficient direct evidence of discrimination — namely, discriminatory statements made by plaintiff's direct supervisor — to entitle her to a jury trial on Count I. However, plaintiff has failed to produce sufficient evidence for a reasonable juror to conclude either that plaintiff was retaliated against because of her protected activity, or that she was constructively terminated. Therefore, the Court will grant defendant's motion for summary judgment on plaintiff's retaliation claim (Count II) and constructive termination claim (Count III), but it will deny the motion with respect to her discrimination claim (Count I).
The facts are not in dispute except where noted.
In 2010, Gwendolyn Crump became the MPD Director of Communications and plaintiff's direct supervisor. Pl.'s Counter SOF ¶ 7; Def.'s Resp. SOF ¶ 7. Plaintiff was sixty-two years old at the time. Pl.'s Counter SOF ¶ 9; Def.'s Resp. SOF ¶ 9.
Plaintiff's relationship with Crump was strained from the beginning. In February 2011, plaintiff was cited twice by Crump: once for insubordination, and once for purportedly failing to submit complete news clippings. Pl.'s Counter SOF ¶ 22; Def.'s Resp. SOF ¶ 22. On February 23, 2011, plaintiff was accused of speaking to Crump in a "loud, hostile, and unacceptable" manner after Crump asked her if she had reviewed an email containing her 2010 performance evaluation. Ex. J to Pl.'s Opp. [Dkt. # 20-1] ("Ex. J") at 1-2. One day later, plaintiff was cited for failing to include several articles in her morning clippings as directed by a PIO officer. Ex. L to Pl.'s Opp. [Dkt. # 20-1] ("Ex. L") at 1-3. Investigations into both incidents sustained the allegations. Pl.'s Counter SOF ¶¶ 27-28; Def.'s Resp. SOF ¶¶ 27-28.
On October 24, 2012, plaintiff answered a phone call from a reporter who had contacted the PIO to speak to an officer about an important news event. Pl.'s Counter SOF ¶ 32; Def.'s Resp. SOF ¶ 32. She did not make a written record of the reporter's call, and she was cited for failing to do so. Pl.'s Counter SOF ¶ 33; Def.'s Resp. SOF ¶ 33.
On February 11, 2013, in response to the proposed fifteen-day suspension, plaintiff sought EEO counseling and, on February 13, 2013, she filed a complaint with the District of Columbia Office of Human Rights ("OHR") alleging that she had been discriminated against on the basis of her age in connection with the fifteen-day suspension. Pl.'s Counter SOF ¶ 41; Def.'s Resp. SOF ¶ 41. In a written statement completed as part of the EEO counseling and eventual OHR complaint, plaintiff alleged that Crump had said: "The officers are faster than you, you need to work, work, work"; and "You've been here so long when are you going to retire?" Ex. B to Pl.'s Opp. [Dkt. # 20-1] ("OHR Complaint").
On March 5, 2013, plaintiff received a Notice of Final Decision to impose the fifteen-day suspension and was advised of her right to appeal the suspension with the Office of Employee Appeals ("OEA"). Pl.'s Counter SOF ¶ 43; Def.'s Resp. SOF ¶ 43; Ex. 4. She began serving her fifteen-day suspension on March 18, 2013, Def.'s SOF ¶ 4; Pl.'s SOF ¶ 4, and she filed an OEA appeal contesting it on April 4, 2013. Pl.'s Counter SOF ¶ 46; Def.'s Resp. SOF ¶ 46.
On August 16, 2013, Crump exchanged emails with Matthew Miranda, a Human Resources Special Assistant, regarding
On April 12, 2013, Crump assigned plaintiff to gather newspaper articles for the Chief of Police and the Command Staff. Ex. 3 to Def.'s Mot. [Dkt. # 16-1] ("Ex. 3") at 2. However, plaintiff failed to complete the assignment, and she was cited a few days later for "neglect of duty, insubordination and incompetence." Pl.'s Counter SOF ¶ 49; Def.'s Resp. SOF ¶ 49; see also Def.'s SOF ¶ 6; Pl.'s SOF ¶ 6; Ex. 3 at 2. While plaintiff does not dispute that she failed to complete the assignment in question, she maintains that her inability to complete the assignment was the result of computer problems. Pl.'s Counter SOF ¶ 47; Bean Dep. at 67:11-69:10.
On June 27, 2013, plaintiff was served with a Proposed Notice of Adverse Action stating that she was to be suspended for thirty-five days as a result of the April incident. Ex. 6 to Def.'s Mot. [Dkt. # 16-1] ("Ex. 6") at 1. The decision to suspend plaintiff was upheld on July 11, 2013, and she began her suspension on August 12, 2013. Pl.'s Counter SOF ¶¶ 58, 61; Def.'s Resp. SOF ¶¶ 58, 61; Def.'s SOF ¶ 6; Pl.'s SOF ¶ 6. On September 18, 2013, plaintiff returned to work. Pl.'s Counter SOF ¶ 68; Def.'s Resp. SOF ¶ 68.
On April 30, 2013, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") against MPD, alleging that she had been subject to unlawful age discrimination and retaliation in connection with previous suspensions that had been imposed upon her as well as other harassing treatment in the workplace. Pl.'s Counter SOF ¶ 50; Def.'s Resp. SOF ¶ 50; Ex. 9 to Def.'s Mot. [Dkt. # 16-1]. On July 22, 2013, Crump was interviewed regarding that EEOC complaint. Pl.'s Counter SOF ¶ 62; Def.'s Resp. SOF ¶ 62.
Also, the parties do not dispute that plaintiff had previously filed an internal EEO complaint, and that during the week of April 16, 2012, the MPD EEO office interviewed her with regard to that complaint. Pl.'s Counter SOF ¶ 26; Def.'s Resp. SOF ¶ 26. Neither party provides any further information about the substance of that complaint.
In addition, at some point in time while Crump was her supervisor, plaintiff complained to Crump that she felt "harassed," prompting a meeting that included plaintiff, Crump, and Assistant Chief Alfred Durham. See Pl.'s Counter SOF ¶¶ 23, 25; Def.'s Resp. SOF ¶¶ 23, 25. Again, neither party provides any other details.
On May 24, 2013, the Internal Affairs Bureau ("IAB") generated an automatic referral to place plaintiff in the Supervisory Support Program ("SSP") as a result of the October 2012 and April 2013 citations. Pl.'s Counter SOF ¶ 51; Def.'s Resp. SOF ¶ 51. SSP is an intervention program similar to placing an employee on a performance improvement plan. Pl.'s Counter SOF ¶ 52; Def.'s Resp. SOF ¶ 52.
On June 11, 2013, Crump received notice that plaintiff had reached the SSP threshold, and she was directed to develop an SSP plan for plaintiff by August 30, 2013.
On November 20, 2013, Meagher informed plaintiff by email that she was being assessed for an SSP plan and scheduled a meeting with her for the same day at 1:30 P.M. — a little more than an hour after the email was sent. Pl.'s Counter SOF ¶ 72; Def.'s Resp. SOF ¶ 72. Plaintiff arrived at the conference room where the meeting was to be held, but when she realized that no union representative was present, she left the conference room and emailed Meagher that she would "be happy" to meet with him as soon as a union representative was available. Pl.'s Counter SOF ¶¶ 75-76; Def.'s Resp. SOF ¶¶ 75-76. In an investigative report about the events of November 20, Crump stated that she and Meagher approached plaintiff's desk at 1:45 P.M. to ask why plaintiff had not reported to the meeting room. Ex. 2 to Def.'s Mot. [Dkt. # 16-1] ("Ex. 2") at 2. According to Crump, plaintiff "ignored Sgt. Meagher's directives, and refused to acknowledge him." Id.; see also Crump Dep. at 95:1-96:15. Plaintiff calls this account "untruthful." Bean Dep. at 54:19-55:5, 56:17-57:1.
In any event, plaintiff returned to the meeting room at 2:00 P.M. with two union representatives. Pl.'s Counter SOF ¶ 78; Def.'s Resp. SOF ¶ 78. As plaintiff describes it, she was not presented with an assessment and performance plan, but she was asked questions about her "rent" and "personal living" instead. Bean Dep. at 46:12-18. Defendant disputes this and maintains that plaintiff answered "no comment" to every question posed by Meagher. Ex. 2 at 2.
On March 5, 2014, plaintiff received a Proposed Notice of Adverse Action advising her that she had been recommended for termination. Def.'s SOF ¶ 8; Pl.'s SOF ¶ 8; see Pl.'s Counter SOF ¶¶ 83, 87; Def.'s Resp. SOF ¶¶ 83, 87. On April 11, 2014, a Hearing Officer issued a final decision recommending that plaintiff's termination be upheld. Pl.'s Counter SOF ¶ 89; Def.'s Resp. SOF ¶ 89. A week later, plaintiff received a Notice of Adverse Action Hearing Officer's Decision informing her that the decision to terminate her had been sent to a Deciding Official from the DRB and that she could request an audience with the Deciding Official within seven days. Ex. GG to Pl.'s Opp. [Dkt. # 20-1]; see Pl.'s Counter SOF ¶ 91; Def.'s Resp. SOF ¶ 91. Although it is undisputed that plaintiff knew she was going to be terminated and ultimately retired, see Def.'s SOF ¶¶ 15-16; Pl.'s SOF ¶¶ 15-16; Pl.'s Counter SOF ¶ 96; Def.'s Resp. SOF ¶ 96, the exact date of her retirement is disputed. On approximately April 25, 2014, plaintiff submitted a notice of her intent to retire, which became effective as of May 2, 2014. Ex. HH to Pl.'s Opp. [Dkt. # 20-1] at DCBEAN00011003; Ex. 10. And on May 1, 2014, the Deciding Official upheld plaintiff's termination. Ex. E to Pl.'s Opp. [Dkt. # 20-1] at DCBEAN00007057.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted).
The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
Plaintiff claims in Count I that defendant discriminated against her on the basis of her age in connection with multiple suspensions and the recommendation for her termination. She alleges in Count II that defendant took these actions in retaliation for the fact that she made formal and informal complaints regarding alleged age discrimination. And in Count III, she claims that this mistreatment forced her to retire.
There is no question that plaintiff's relationship with her supervisor was marked with conflict. Because plaintiff has provided some direct evidence of discriminatory statements made by Crump, the fact-finding must be left to the jury, and the Court will deny defendant's motion for summary judgment on Count I. But since defendant has come forward with evidence to show that plaintiff was disciplined and ultimately recommended for termination because of her poor job performance, and not for a retaliatory purpose, and plaintiff has failed to come forward with evidence to show that defendant's stated reasons were either pretextual or tainted by improper animus, the Court will grant defendant's motion for summary judgment on Count II. And because plaintiff has failed to provide any evidence that she was forced to retire as a result of intolerable working conditions, the Court will grant defendant's motion for summary judgment on Count III the constructive termination claim.
Plaintiff alleges that the District discriminated against her on the basis of her age in violation of the ADEA. The ADEA provides:
29 U.S.C. § 623(a)(1). The ADEA protects "individuals who are at least 40 years of age." Id. § 631(a). To succeed on an ADEA discrimination claim, a plaintiff must prove that "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the [adverse] action gives rise to an inference of discrimination." George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005), quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002). The parties do not dispute that plaintiff was well over forty years of age at all relevant times. Pl.'s Counter SOF ¶ 9; Def.'s Resp. SOF ¶ 9. And defendant does not seem to challenge that plaintiff was subject to adverse employment actions. See Def.'s Mem. at 5-6; Pl.'s Opp. at 21; see also Def.'s SOF ¶¶ 4, 6; Pl.'s SOF ¶¶ 4, 6. So the only question is whether plaintiff
Courts analyze ADEA cases at the summary judgment stage under the same standard as Title VII cases. Wilson v. Cox, 753 F.3d 244, 247 (D.C. Cir. 2014). Accordingly, "[a]t the summary judgment stage, the operative question is whether the employee produced sufficient evidence for a reasonable jury to find that ... the employer intentionally discriminated against the employee on the basis of age." Id. (internal quotations omitted).
Direct evidence includes "a statement that itself shows ... bias in the employment decision." Wilson, 753 F.3d at 247 (holding that an employer's statement that employees "didn't come here to work, [but] came here to retire," was sufficient direct evidence for a reasonable factfinder to conclude that a discriminatory intent motivated the adverse employment action), quoting Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576-77 (D.C. Cir. 2013); see also Ayissi-Etoh, 712 F.3d at 576 (reversing the grant of summary judgment because plaintiff had provided direct evidence of discrimination in the form of a racially charged statement made by his manager). But a stray remark, especially one made by a non-decision maker, or a statement made by a decision maker that is unrelated to the relevant employment decision itself, does not constitute direct evidence. Kalekiristos v. CTF Hotel Mgmt., 958 F.Supp. 641, 665 (D.D.C. 1997) (concluding there was no direct evidence of racial or national origin discrimination where plaintiff only provided evidence of vague statements that were, at most, insensitive), aff'd without op., 132 F.3d 1481 (D.C. Cir. 1997) (citation omitted); see also Steele v. Carter, 192 F.Supp.3d 151, 165 (D.D.C. 2016) (concluding there was no direct evidence of age discrimination where the speaker was not involved in plaintiff's termination and allegedly made the remarks at the very start of plaintiff's employment).
Plaintiff has produced two statements that constitute direct evidence of age discrimination, entitling her to a jury trial. First, in plaintiff's February 13, 2013 OHR complaint, she alleged that Crump told her, "[t]he officers are faster than you, you need to work, work, work," followed by: "[y]ou've been here so long when are you going to retire?" OHR Complaint. Second, in her deposition, plaintiff recounted the following incident:
Bean Dep. at 26:2-16. Both statements were made by Crump, plaintiff's direct supervisor, who was the person who cited her for a number of incidents that resulted in disciplinary action, including suspensions
Defendant contends that these statements are just "stray remarks" without any nexus to an adverse employment action. Def.'s Reply at 2-3. But on both occasions, plaintiff's age was mentioned specifically in connection with the termination of her employment. And the statements could lead a reasonable factfinder to conclude that Crump acted with discriminatory intent.
In the end, a jury may not credit plaintiff's account, or it may accept defendant's evidence that there were legitimate reasons to discipline and terminate plaintiff. But "[c]redibility determinations ... are jury functions, not those of a judge." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Because plaintiff has produced direct evidence of discriminatory statements that would permit a reasonable jury to infer that discriminatory intent motivated the adverse employment actions taken against her, the Court cannot resolve the case as a matter of law, and it will deny defendant's motion for summary judgment on Count I.
Under the ADEA, it is "unlawful for an employer to discriminate against any of his employees ... because such individual ... has opposed any practice made unlawful by" the ADEA or because that individual "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under" the ADEA. 29 U.S.C. § 623(d); see Gomez-Perez v. Potter, 553 U.S. 474, 489, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008) (recognizing that the ADEA prohibits retaliation against federal-sector employees as well under 29 U.S.C. § 633a). When a plaintiff relies on circumstantial evidence to establish her employer's retaliatory motivation for an adverse employment action, the Court applies the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009).
"Under that framework, a plaintiff must first establish a prima facie case of retaliation by showing (1) that [she] engaged in statutorily protected activity; (2) that [she] suffered a materially adverse action by [her] employer; and (3) that a causal link connects the two." Jones, 557 F.3d at 677, citing Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007). Once a prima facie case has been established, "the burden shifts to the employer to produce a `legitimate, non-discriminatory reason' for its actions." Id., quoting Wiley, 511 F.3d at 155. If the employer provides a legitimate, non-discriminatory reason, "the burden-shifting framework disappears, and a court reviewing summary judgment looks to whether a reasonable jury could infer ... retaliation from all the evidence." Id., quoting Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). The Court reviews all relevant evidence — "prima facie, pretext, and any other — to determine whether they `either separately or in combination' provide sufficient evidence for a reasonable jury to infer retaliation." Id. at 679, quoting Waterhouse v. District of Columbia, 298 F.3d 989, 996 (D.C. Cir. 2002).
Unlike in the discrimination context, there are no mixed-motive retaliation claims; the plaintiff must establish that "the desire to retaliate was the but-for cause of the challenged employment action." Univ. of Tex. Sw. Med. Ctr. v. Nassar,
Since defendant has proffered legitimate, non — retaliatory reasons for the adverse actions taken against plaintiff — that is, plaintiff's poor work performance and insubordination — the Court must evaluate whether plaintiff has provided sufficient evidence to enable a reasonable jury to find that the employer's stated reasons were not the actual reasons for the adverse actions, and that the desire to retaliate was the but-for cause of the adverse actions. Because plaintiff's claims are based solely upon weak temporal proximity evidence, and plaintiff has not raised a genuine dispute over the employer's honest belief in its proffered explanation for its adverse actions, the Court will grant defendant's motion for summary judgment on Count II.
Plaintiff received notice of a proposed fifteen-day suspension on February 1, 2013, after she was cited for failing to take a written message when a reporter called on October 24, 2012. See Ex. 4. She began serving the suspension on March 18, 2013. Id.
Defendant does not dispute that plaintiff engaged in protected activity when she filed an EEOC complaint on April 30, 2013. Def.'s Mem. at 7. But it maintains that "[t]he incident and the decision to suspend [p]laintiff preceded" that date, so it cannot serve as the basis for plaintiff's retaliation claim. Id. at 8. Plaintiff responds that her protected activities began before the filing of the 2013 EEOC complaint and the February 2013 disciplinary action, and that she was suspended in retaliation for those protected activities. Pl.'s Opp. at 28-29. But none of the evidence she has adduced supplies the causal connection necessary for a retaliation claim.
Plaintiff insists that she has "adduced record evidence that as of March 2011, an EEO case initiated by her was pending against [Sergeant Raul Mendez]" and that she has "establish[ed] a causal connection through temporal proximity to... her fifteen-day ... suspension[]." Pl.'s Opp. at 28; Ex. K.
Even if the complaint was filed in March 2011, and it constituted protected
Here, the fifteen-day suspension did not occur close in time to the alleged protected activity. While there is evidence that Crump learned of the sexual harassment complaint in an email dated March 11, 2011, see Ex. K, there were nineteen months between the March 2011 complaint and the October 2012 event that led to plaintiff's suspension, and twenty-three months between the complaint and the date plaintiff received notice of the proposed suspension. This window of time is much too great to establish causation on the basis of temporal proximity. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 274, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ("Action taken ... 20 months later suggests, by itself, no causality at all."); Hamilton v. Geithner, 666 F.3d 1344, 1357-58 (D.C. Cir. 2012) (observing that the Supreme Court and D.C. Circuit have suggested that "a three-month period between the protected activity and the adverse employment action may, standing alone, be too lengthy to raise an inference of causation," but that there is technically no "bright-line three-month rule").
Because plaintiff cannot point to temporal proximity evidence that would create a causal connection, no reasonable jury could infer retaliation.
In her opposition, plaintiff also argues that she "had complained to Ms. Crump that she was being `harassed' and `picked on,'" and so "defendant is utterly mistaken that [she] cannot establish a causal connection through temporal proximity" to her fifteen day suspension. Pl.'s Opp. at 28. Defendant challenges plaintiff's characterization of this conversation as protected activity, arguing that plaintiff was just complaining of "ordinary workplace tribulations and a difficult relationship with her supervisor." Def.'s Reply at 4; see Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006) ("While no `magic words' are required, the complaint must in some way allege unlawful discrimination, not just frustrated ambition.").
While Crump did testify in her deposition that plaintiff told her at some point that she was "being harassed," Crump Dep. at 47:8-12, plaintiff has not provided any evidence detailing the nature of the harassment she brought to her supervisor's attention. Moreover, plaintiff has produced no evidence of when this conversation took place. So, even if plaintiff had established that she made a complaint about unlawful age discrimination that could qualify as protected activity, she again has failed to come forward with any evidence of temporal proximity that would allow a reasonable jury to infer that the February 2013 suspension was retaliatory.
On June 27, 2013, plaintiff was notified of the proposed thirty-five-day suspension arising from misconduct on April 12, 2013, Ex. 6 at 1, and she began serving her suspension on August 12, 2013. Def.'s SOF ¶ 6; Pl.'s SOF ¶ 6. Defendant contends that "[t]he incident for which [p]laintiff was investigated and disciplined occurred prior to her filing an EEOC complaint" on April 30, 2013, so this protected activity "cannot serve as the basis of her retaliation claim." Def.'s Mem. at 9. But plaintiff
After receiving notice of the proposed fifteen-day suspension, plaintiff sought EEO counseling on February 11, 2013, and filed an OHR complaint on February 13. Pl.'s Counter SOF ¶ 41; Def.'s Resp. SOF ¶ 41. She argues that the thirty-five-day suspension was in retaliation for her filing an OHR complaint alleging age discrimination, and that a reasonable jury could infer retaliation based on the temporal proximity between the events. Pl.'s Opp. at 28-29 ("After all, [plaintiff's] OHR February 13, 2013, complaint was lodged a mere two months to the day, April 12, 2013, before Ms. Crump initiated the disciplinary action that supported the suspension.").
While the two-month gap between these two incidents is evidence that could potentially advance plaintiff's prima facie case,
Here, plaintiff does not point to any evidence beyond mere temporal proximity. She has not presented evidence that would demonstrate that the employer's stated reasons were pretextual, and she has not shown that anyone involved in disciplining her for the April 12, 2013 incident resulting in the suspension was aware of the OHR complaint. Therefore, the evidence is not sufficient to enable a reasonable juror to find that retaliation was the "but-for" cause of the suspension.
Plaintiff has similarly failed to provide sufficient evidence for a reasonable juror to conclude that the filing of an OEA appeal of the fifteen-day suspension on April 4, 2013, resulted in the June 2013 suspension. There is some evidence of temporal proximity between this protected activity and the adverse action since the April 2013 OEA appeal was filed only eight days before the events underlying the thirty-five-day
First of all, she has not produced any evidence that any person involved in the decision to suspend her for thirty-five days was aware of the OEA appeal at the time. There is evidence that Crump learned about the OEA appeal four months after the incident giving rise to plaintiff's suspension, and almost two months after the sanction was imposed, when she exchanged emails with HR on August 16, 2013, regarding MPD's response to the appeal. Pl.'s Counter SOF ¶ 65; Def.'s Resp. SOF ¶ 65. But by that time, the decision to suspend plaintiff had already been upheld and the suspension was underway. Pl.'s Counter SOF ¶¶ 58, 61; Def.'s Resp. SOF ¶¶ 58, 61. And second, again, plaintiff has not pointed to any evidence that would lead a jury to conclude that defendant's explanation was pretexual.
Because plaintiff cannot point to anything beyond mere temporal proximity, no reasonable juror could conclude that the thirty-five-day suspension was leveled against her because of her April 4, 2013 OEA appeal.
Plaintiff has also failed to provide evidence from which a reasonable jury could infer that the thirty-five-day suspension was in retaliation for filing an EEOC complaint on April 30, 2013.
Therefore, plaintiff has not provided sufficient evidence from which a reasonable jury could infer that she was suspended for thirty-five days in retaliation for engaging in any protected activity on April 30, 2013.
Plaintiff argues that she can "establish a causal connection between her protected
Plaintiff's ongoing litigation of the OEA appeal was protected activity, and this chain of events — if proved — could give rise to an inference of a causal connection between her protected activity and an adverse employment action. But the problem with plaintiff's theory is that the evidence does not establish that Crump emailed Meagher to jump start the SSP process after receiving the deposition notice. The fact is that Meagher emailed Crump, Ex. AA, and plaintiff provides no evidence that Meagher had notice of the pending appeal or of the deposition notice. So, all plaintiff has shown is that these two events occurred close in time to one another.
Because defendant maintains that it initiated the SSP because of plaintiff's poor job performance, Def.'s Mem. at 12-13, and plaintiff has not come forward with evidence that would contradict defendant's account, plaintiff has not provided evidence to create a genuine issue of fact on the question of whether placement on an SSP was retaliatory. See Woodruff, 482 F.3d at 530.
If plaintiff is arguing that it was the recommendation for termination, as opposed to the SSP meeting, that was initiated in retaliation for her pursuit of an OEA appeal and summoning Crump to a deposition, she cannot point to the temporal proximity that would give rise to an inference of a causal connection. Plaintiff was not recommended for termination until March 5, 2014, which was four months after Crump was served with the deposition notice.
In sum, plaintiff has failed to undermine her employer's legitimate, non-retaliatory reasons for the adverse employment actions, and she has failed to provide evidence from which a reasonable juror could infer that any of the adverse actions in question would not have occurred but-for the alleged retaliation. See Nassar, 133 S.Ct. at 2533. Therefore, the Court will grant defendant's motion on plaintiff's retaliation claim (Count II).
In her complaint, plaintiff states that she is bringing "a common law claim of constructive termination." Compl. ¶ 1; see also id. ¶ 32 ("[D]efendant ... constructively terminated Ms. Bean's employment
Plaintiff has not brought any claims under District of Columbia law that would provide the basis for a common law constructive discharge claim. See Arthur Young & Co. v. Sutherland., 631 A.2d 354, 361-63 (D.C. 1993) (finding plaintiff had been constructively discharged as part of her discrimination claim under the District of Columbia Human Rights Act); Atlantic Richfield Co. v. D.C. Comm'n on Human Rights, 515 A.2d 1095, 1101 (D.C. 1986) (concluding that the record supported a finding of constructive discharge based on defendant's discriminatory and retaliatory behavior under the District of Columbia Human Rights Act). In her opposition, plaintiff alludes to the possibility that defendant has conceded her hostile work environment claim, and also includes a header stating that she "Can Establish a Claim of Constructive Termination Under Title VII and District of Columbia Common Law." Pl.'s Opp. at 30-31. So, it is unclear if plaintiff intended to bring a hostile work environment claim, and/or a constructive discharge claim under the ADEA or Title VII. But even if plaintiff had clearly articulated an intent to rely on either of these statutes, the Court would be bound to grant summary judgment in favor of defendant.
Under District of Columbia law, "[a] constructive discharge occurs when the employer deliberately makes working conditions intolerable and drives the employee into an involuntary quit." Darrow v. Dillingham & Murphy, LLP, 902 A.2d 135, 138 (D.C. 2006), quoting Sutherland, 631 A.2d at 362. "The intolerability of the working conditions is judged by an objective standard, not the employee's subjective feelings." Id.; see also Sutherland, 631 A.2d at 362 (establishing a reasonable person standard to evaluate working conditions). Courts usually focus "on the existence of aggravating conditions in the workplace which would lead a reasonable person to resign." Atlantic Richfield Co., 515 A.2d at 1101 (concluding that the plaintiff was constructively discharged where she "was subject to a continuous barrage of derogatory comments about her appearance, behavior, and morality to the point where her behavior was compared to that of a prostitute"). Typically, "[w]hether working conditions are so intolerable that a reasonable person is forced to resign ... is a question for the trier of fact." Sutherland, 631 A.2d at 362.
To establish a hostile work environment claim under Title VII and the ADEA, plaintiff "must show harassing behavior `sufficiently severe or pervasive to alter the conditions of [her] employment.'" Pa. State Police v. Suders, 542 U.S. 129, 133, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), quoting Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); see Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (applying this standard in a case
Although the standards under the local and federal statutory schemes are slightly different, they both come down to the requirement that plaintiff must show extreme circumstances that made her work environment so intolerable that resignation was the only option. Plaintiff contends that Crump "admits that she marginalized Ms. Bean and intentionally made her an outcast among her team by directing them to refrain from talking to her or even being `friendly,'" and that this constitutes the sort of severe conduct that is required to support a constructive termination claim. Pl.'s Opp. at 22. But this mischaracterizes the record, which reveals that Crump actually stated that she avoided "mak[ing] small talk" with and being "friendly" to plaintiff because plaintiff was not "receptive to it," and that other personnel in the department shared this opinion. Crump Dep. at 23:1-25:22. Even if plaintiff's account was supported by the record, criticism from a supervisor or being ignored by co-workers does not constitute the type of behavior that would give rise to constructive discharge. Veitch v. England, 471 F.3d 124, 131 (D.C. Cir. 2006) (concluding that such behavior is not an "aggravating factor" under Title VII).
Moreover, resignations are generally presumed to be voluntary. Aliotta v. Bair, 614 F.3d 556, 566-67 (D.C. Cir. 2010) (holding that employees were not constructively discharged under the ADEA when they were faced with the difficult decision of accepting a buy-out offer or staying and risking termination). There is nothing in the record to suggest that plaintiff was faced with "an impermissible take-it-or-leave-it choice." Id. at 567. Rather, what plaintiff has established is that she faced a series of adverse actions and then chose to retire before she could be terminated. Bean Dep. at 26:2-4 ("I retired before they terminated me."). Although this decision may have been difficult, plaintiff has not pointed to any aggravating circumstances that would have transformed her choice into an involuntary decision.
Therefore, based on the evidence plaintiff has provided, no reasonable jury could find that her working conditions were so intolerable that her only option was to quit. So the Court will grant defendant's motion for summary judgment on Count III alleging constructive termination.
Because plaintiff has provided direct evidence of discriminatory statements by her supervisor, the Court will deny defendant's motion for summary judgment on Count I. However, plaintiff has failed to produce sufficient evidence to enable a reasonable juror to infer that she was retaliated against or constructively terminated, so
A separate order will issue.
With regard to the second citation, plaintiff posits that she was ultimately suspended for nine days, Pl.'s Counter SOF ¶ 28, and defendant does not dispute this fact. Def.'s Resp. SOF ¶ 28. Again, though, plaintiff fails to point to any evidence of the suspension. Plaintiff relies on Exhibit L, the "Final Investigative Report and Recommendation Concerning the Unprofessional Conduct and Neglect of Duty by Civilian Employee Violena Bean," but the report makes no mention of a nine-day suspension. See Ex. L.
