Amit P. Mehta, United States District Judge.
Plaintiff Wanda Walker brings a Title VII claim of retaliation and hostile work
Under Federal Rule of Civil Procedure 56, 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). A genuine dispute of a material fact exists when the fact is "capable of affecting the substantive outcome of the litigation" and "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Elzeneiny v. District of Columbia, 125 F.Supp.3d 18, 28 (D.D.C. 2015). In evaluating a motion for summary judgment, the court looks at the facts in the light most favorable to the nonmoving party and draws all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To defeat a motion for summary judgment, the nonmoving party must buttress its claims with "more than mere unsupported allegations or denials"; its opposition must be "supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial" and that a reasonable jury could find in its favor. Elzeneiny, 125 F.Supp.3d at 28 (citing Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
In addition to prohibiting a federal employer from discriminating against an employee based on her race, sex, religion, or nationality, 42 U.S.C. § 2000e-16(a), Title VII prohibits a federal employer from retaliating against an employee for opposing any practice that is made unlawful by the Act, see Baird v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015) (citing 42 U.S.C. § 2000e-3(a)). In this case, Plaintiff claims to have been retaliated against in multiple ways. She also asserts a claim of retaliatory hostile work environment. The court begins with her discrete retaliation claims, and then addresses her hostile work environment claim.
To make out a prima facie case of retaliation, a plaintiff must demonstrate that she: (1) engaged in protected activity; (2) was subjected to an adverse employment action; and (3) there is a causal link between the protected activity and the adverse action. Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012). Filing a complaint of discrimination, as Plaintiff did here, plainly constitutes protected activity. See Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006). With respect to the adversity requirement, "`[a]dverse actions' in the retaliation context encompass a broader sweep of actions than those in a pure discrimination claim." Baloch v. Kempthorne,
Establishing a prima facie case shifts the burden to the employer to provide a "legitimate, nondiscriminatory or non-retaliatory reason for the challenged action." Morris v. McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016). "Once the employer proffers a non-retaliatory reason for the challenged employment action, the burden-shifting framework falls away, and the `central question' becomes whether `the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted nondiscriminatory [or non-retaliatory] reason was not the actual reason and that the employer intentionally discriminated [or retaliated] against the employee.'" Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)). "[A] court reviewing summary judgment looks to whether a reasonable jury could infer ... retaliation from all the evidence." Carter v. Geo. Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). The employee may survive summary judgment "by providing enough evidence for a reasonable jury to find that the employer's proffered explanation was a pretext for retaliation or discrimination." Morris, 825 F.3d at 668. Only if in light of this evidence no reasonable jury could find that the Plaintiff was retaliated against should a court grant summary judgment for the defendant. See Hamilton, 666 F.3d at 1351.
The court begins with Plaintiff's claim that her five-day suspension in 2011 was retaliatory. Defendant asserts the suspension was imposed because Plaintiff had committed a security violation by disclosing the protected identity of a DIA employee to her attorney. See Def.'s Mot., Mem. of Pts. & Auths. in Supp., ECF No. 29-2 [hereinafter Def.'s Mem.], at 5; Def.'s Mot, ECF No. 29-4 [hereinafter Def.'s Ex. 1], at 18-22.
There is also some dispute as to who initially recommended Plaintiff's suspension. Defendant contends that human resources officer Barbara Frey made the recommendation,
Next, Plaintiff claims that Defendant denied her two separate deployments to Afghanistan in retaliation for her protected activity. But according to Defendant, Plaintiff was denied overseas deployments because of a pending disciplinary action and because of her continued misconduct. See Def.'s Mem. at 6-7; Def.'s Reply to Pl.'s Opp'n, ECF No. 34, at 7-8. Defendant's non-retaliatory explanation mistakenly conflates Plaintiff's two deployment requests, and the court finds that there remain genuine disputes of fact as to the reasons for each denial.
First, Plaintiff sought and, in June 2011 received, approval for a September 2011 deployment to Afghanistan. See Pl.'s Ex. B at 10. Following the approval, Keith Newman, Plaintiff's first-line supervisor, inquired of employee relations specialist Katherine Newmann whether Plaintiff's ongoing EEO case precluded her deployment, to which Newmann responded it did not. Pl.'s Ex. B. at 11; see also Pl.'s Facts, ECF No. 30-1, ¶ 19. But Newmann added that "there are other outstanding issues regarding Ms. Walker," which she wanted "to discuss" with Barbara Frey. Pl.'s Ex. B. at 11. Defendant does not, however, identify what "outstanding issues" prevented Plaintiff from deploying. Rather, Defendant argues that Kolleen Yacoub, Chief of the Office of Mission Support — not Keith Newmann, her first-line supervisor — "relied upon the recommendation of Human Resources" when denying the deployment. Def.'s Mem. at 5-7. That explanation is not, however, supported by the evidence. Yacoub testified that, "I did not directly deny [the deployment].... I believe it was Mr. Newman who actually said to the deployment manager [Plaintiff] will not be able to deploy." Def.'s Ex. 1 at 61; id. at 63 (agreeing the Mr. Newman made the decision not to permit deployment). Moreover, Yacoub could not recall whether the reason for the denial was the "IG investigation that was ongoing or the EEO investigation." Id. at 64-65 (emphasis added). Thus, Yacoub's recollections provide no clarity. Defendant also points to an email that Keith Newman sent to Plaintiff on October 21, 2011, in which Newman states that "continued misconduct" is the reason he cannot support her deployment request. Def.'s Reply at 7-8 (citing Pl.'s Ex. B at 12). That e-mail, however, relates to Plaintiff's second deployment request, not her first, which was formally denied months earlier. The only record evidence of a reason for the denial of the first deployment actually comes from Keith Newman, who testified during the EEO investigation that Plaintiff did not deploy to Afghanistan because the position was changed from a civilian position to a contractor position. See Pl.'s Ex. B at 52-53. But Defendant does not endorse that reason now. Thus, there remains a genuine dispute of fact as to the actual reason for the denial of Plaintiff's first deployment request.
Plaintiff's second deployment request came in September 2011. As noted, although Defendant confuses the first and second denials, Defendant points to Newman's determination that, due to Plaintiff's "continued misconduct," he could not support
In total, a rational jury might could find that Defendant's denials of Plaintiff's requests for deployment were a pretext for retaliation. Accordingly, this portion of Plaintiff's claim survives summary judgment.
Plaintiff asserts that DIA denied her a promotion because of her protected activity. Second Am. Compl. ¶¶ 39, 48-49, Defendant responds that Plaintiff was denied a promotion to security specialist because a better-credentialed applicant was selected. See Def.'s Mem. at 11; Def.'s Facts ¶¶ 24-25. Plaintiff offers no evidence to rebut this proffered non-discriminatory reason. See generally Pl.'s Mem. in Opp'n; Pl.'s Facts. Accordingly, the court grants summary judgment in favor of Defendant as to this issue.
Plaintiff also alleges that her supervisors gave her a lower performance rating than she had earned in prior review periods, and that this negative review came about because she filed a second EEO complaint in August 2011. See Pl.'s Mem. in Opp'n at 3; see also Def.'s Ex. 1 at 1. Defendant justifies the action on the simple ground that Plaintiff deserved the critical marks — her work performance had dropped from the prior year. Def.'s Mem. at 9-10. It also argues that the unfavorable review resulted in no tangible harm to Plaintiff. Id. at 10.
The court finds that, without more, Plaintiff's negative performance rating is not actionable. The D.C. Circuit does not consider all poor performance ratings to rise to the level of material adversity, even under the broader materiality standard in retaliation cases. See Weber v. Battista, 494 F.3d 179, 186 (D.C. Cir. 2007). Rather, it demands that there be some non-speculative tangible harm that arises from the review. For instance, in Weber v. Battista, the Circuit found two performance evaluations to qualify as adverse actions "insofar as they resulted in [the plaintiff] losing a financial award or an award of leave." Id. See also Bridgeforth v. Jewell, 721 F.3d 661, 664 (D.C. Cir. 2013) (describing Weber as having held that "lowering an employee's performance evaluation could be materially adverse action if the lowered score resulted in the employee not receiving a cash award"); Steele v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008) (holding that "the issuance of the lowest performance rating of her career combined with the lowest performance bonus in her branch" constituted materially adverse action). Here, Plaintiff identifies no tangible harm, financial or otherwise, connected to her lowered performance rating in August of 2011. See Pl.'s Mem. in Opp'n at 3; see Pl.'s Facts ¶¶ 44-51. To the contrary, she does not dispute that there was a shortage of bonus money for the year in which she received
Plaintiff's retaliation claim based on Defendant's denial of her requests to attend DIA conferences is not actionable because she has not established that the denials were materially adverse. A denial of a training opportunity is not an adverse employment action unless it "affected some material change in [the employee's] employment conditions, status or benefits." Lester v. Natsios, 290 F.Supp.2d 11, 29 (D.D.C. 2003). Here, Plaintiff has provided no evidence from which a reasonable fact-finder could conclude that the denials here caused any such change.
DIA terminated Plaintiff in the spring of 2012 and cited a wealth of reasons for the action, including Plaintiff's accrued suspensions, insubordination, and unapproved entry of overtime. See Def.'s Facts ¶¶ 32-33, 35-38, 40-46; see also Def.'s Ex. 1 at 24-27, 34-35; Pl.'s Resp. to Def.'s Statement of Facts, ECF No. 30-1, ¶¶ 33-46. Plaintiff admits to a number of infractions — such as missing meetings and failing to prepare reports — but offers justifications for her behavior. Although once more a close call, the court finds that Plaintiff has come forward with sufficient facts to call into question at least some of the non-retaliatory reasons for her termination.
The court already has addressed some of the grounds for her termination that might be pretextual, such as the five-day suspension. Different evidence calls into question some of the other reasons offered for termination. Take, for example, the justification that Plaintiff submitted a timesheet with 20 hours of overtime without authorization. Def.'s Ex. 1 at 25-26. While Defendant dramatically characterizes Plaintiff as having violated "agency overtime procedures" by seeking overtime pay, without prior permission, for time spent completing EEO paperwork, id. at 26, the record evidence shows that Plaintiff initially did not put in for overtime pay and only later sought guidance from Human Resources as to whether overtime was appropriate for those hours — which, Plaintiff noted, were "not pre-approved" — and followed instructions as to how to account for it, see Pl.'s Ex. B at 8, 29. Thus, a reasonable jury might have reason to question the legitimacy of improperly submitted overtime as a basis for her dismissal. Additionally, Plaintiff's supervisors held her to account for failing to complete certain "SCIF" reports, see Def.'s Ex. 1 at 25. But Plaintiff states that she did complete two or three of the reports and only discontinued doing so after her direct supervisor, Newman, agreed with her view that the reports were redundant, leading Plaintiff to believe Newman no longer required them; Plaintiff also claims Newman also never asked her to complete the reports after that point. See Pl.'s Mem., Ex. A,
The foregoing is not to say that Plaintiff has brought sufficient forth evidence of pretext to rebut each non-retaliatory reason for her firing. She has not. Nor is the court acting as a "super-personnel department" examining Defendant's employment decisions. See Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (internal citation omitted). Rather, if the ultimate question here is whether a reasonable jury could infer retaliation from all of the evidence, the answer to that question is "yes." A jury will have to decide whether her protected activity was the "but-for" cause of her firing.
Finally, the court turns to Plaintiff's retaliatory hostile work environment claim. The D.C. Circuit recognizes that a hostile work environment can amount to retaliation under Title VII. See Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006). A hostile environment can result from the "cumulative effect" of lesser, non-actionable retaliatory actions. Nat'l Ry. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). These actions "must be of such severity or pervasiveness as to alter the conditions of employment and create an abusive working environment." Baird, 792 F.3d at 169 (cleaned up). Severity and pervasiveness are determined by a totality of the circumstances. Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
Viewing the evidence in a light most favorable to Plaintiff, the court believes that a reasonable jury could conclude that Plaintiff was subjected to a hostile work environment in retaliation for her protected activity. As described above, Plaintiff has come forward with evidence that, if believed, shows that that she was subjected to a series of materially adverse actions over a period of months, ranging from twice refusing to deploy her to Afghanistan, suspending her for improper reasons, and ultimately terminating her. Moreover, there is evidence from Plaintiff suggesting that she was subjected to lesser workplace indignities following her EEO complaints, such as being stripped of certain job duties, see Pl.'s Ex. A at 91-92, and the assignment of menial tasks like paper shredding, id. at 12. At least one other employee agreed that there was an "immediate change" in the treatment Plaintiff received after filing her EEO complaint. See Pl.'s Ex. B at 48.
In sum, when taken as a whole, a reasonable jury might find these actions to have risen to the level of a retaliatory hostile work environment.
For the foregoing reasons, Defendant's Motion for Summary Judgment, ECF No. 29, is granted in part and denied in part.