(1973)). A failure to promote can be considered an adverse employment action. See Palmer v. Shultz, 259 U.S. App. D.C. 246, 815 F.2d 84, 109 (D.C. Cir. 1987).
Assuming plaintiff can demonstrate a prima facie case of pregnancy discrimination, the burden of production shifts to defendant to articulate a legitimate, non-discriminatory reason for plaintiff's non-promotion. See McDonnell Douglas, 411 U.S. at 802. If the defendant satisfies this burden of production, the burden of proof rests on plaintiff to prove that the employer's reason was merely a pretext for pregnancy discrimination. Quarantino, 71 F.3d at 64. Although the burden of production shifts at one point to the defendant if plaintiff establishes a prima facie case of pregnancy discrimination, "the plaintiff has the ultimate burden of persuading the trier of fact that defendant intentionally discriminated against her because of her pregnancy." Id.
While plaintiff has proven that she was indeed pregnant and on maternity leave during the time period at issue, that is the only factor of the four necessary to establish a prima facie case of discrimination that plaintiff has proven. Plaintiff has not put forward any evidence that she was qualified for a Grade 7 position, aside from her empty contention that Holifield would never have attempted to create a new Grade 7 position for plaintiff if plaintiff had not been qualified for it. This "negative proof" is insufficient. In addition, plaintiff has not even shown that she suffered an adverse employment action, since no position had been created into which plaintiff could have been promoted, and Holifield (and ADASA) had no power to create a Grade 7 position without approval from the Office of Personnel.
Finally, plaintiff has not shown any circumstances that give rise to an inference of discrimination. The mere fact that Holifield's decision not to pursue plaintiff's promotion apparently occurred on or about the time plaintiff went on maternity leave is insufficient to establish an inference of discrimination, in the face of Holifield's wholly believable testimony that plaintiff's job performance again declined, and that a hiring freeze prevented even the Office of Personnel from making any progress toward creating a new Grade 7 position for which plaintiff could have applied.
Even if plaintiff could somehow be seen to have established a prima facie case of discrimination stemming from defendant's failure to promote her upon her return from maternity leave, defendant has put forward not just one, but several, legitimate, non-discriminatory reasons for plaintiff's non-promotion. First, no career Grade 7 position was available within ADASA.
Second, plaintiff's job performance declined prior to her departure on maternity leave. Holifield testified that the informal agreement between Holifield and plaintiff was that Holifield would help plaintiff secure a Grade 7 promotion, to the extent she could, if plaintiff continued to show interest and improvement at work. Plaintiff did not hold up her end of the bargain, either before her maternity leave or upon her return. Holifield had no obligation to continue to pursue the extraordinary measure of creating a new position on plaintiff's behalf, once plaintiff had reneged on her side of their informal bargain. Third, the Court has found that Holifield was entirely justified in finding plaintiff was absent without leave for the entire month of September. If Holifield had not by then decided not to pursue a promotion for plaintiff, plaintiff's sheer intransigence during August and September surely cemented that decision.
Plaintiff has put forward no credible evidence to show that the legitimate, non-discriminatory reasons articulated by defendant to explain why it failed to promote her are pretexts for pregnancy discrimination. There simply is no nexus between plaintiff's non-promotion and her pregnancy. The Court therefore holds that defendant did not discriminate against plaintiff on the basis of her pregnancy.
To establish a prima facie case of retaliation, a plaintiff must show:
(1) that he engaged in a statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two. As in a case of disparate treatment, this initial burden is not great. Plaintiff merely needs to establish facts adequate to permit an inference of retaliatory motive . . . . The causal connection of the prima facie case may be established by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity.
Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 86 (D.C. Cir. 1985) (quoting in part McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984)) (footnotes omitted). This Court has previously noted that establishing a prima facie case of retaliation is "not an onerous task." Park v. Washington Metro. Transit Auth., 892 F. Supp. 5, 11 (D.D.C. 1995).
If plaintiff can establish a prima facie case of retaliation, as with the traditional order of proof in Title VII discrimination cases, the burden then switches to defendant to articulate a legitimate, nondiscriminatory reason for the alleged acts of reprisal. The plaintiff is then given the opportunity to prove that the reason articulated by the defendant is a pretext for discrimination. McKenna, 729 F.2d at 790.
Plaintiff alleges that several memoranda and AWOL slips written up following her October 10, 1990, grievance and her December 27, 1990, EEOC charge were not written up for any legitimate disciplinary reason, but rather were written in retaliation for filing the grievance and EEOC charge. Plaintiff points to the flurry of memoranda following her October 1990 return to work as examples of defendant's unlawful retaliation. See Pl.'s Exs. 9, 10, 11, 13, 14, 17. Plaintiff also alleges that two 1991 informal reprimands and two 1991 AWOL charges were issued not because of any wrongdoing on plaintiff's part, but because defendant was retaliating against plaintiff for her 1990 grievance and EEOC charge. See Pl.'s Exs. 21, 23, 25, 27.
The number of documents which plaintiff claims support her retaliation claim is in no way indicative of the merit of that claim. Defendant has put forward legitimate, nondiscriminatory reasons for each of the purportedly adverse actions taken against plaintiff. First, as noted earlier, the Court has already found that Linda Holifield was entirely justified in finding plaintiff AWOL for the entire month of September. The actions that resulted from plaintiff's AWOL status (namely, the change in office space and job duties, and the placement of Isaacs in an intermediate supervisory position to serve as a "buffer" between Holifield and plaintiff) were equally justified, and plaintiff has put forward not one shred of credible evidence that these allegedly adverse actions were taken with unlawful retaliatory intent.
Defendant has also put forward evidence and testimony that plaintiff repeatedly ignored or half-performed tasks given to her by Isaacs and Holifield, and that plaintiff's unresponsive attitude triggered several of the allegedly adverse memoranda from Holifield and Isaacs to plaintiff. Plaintiff does not contest this but to say, in effect, that she never should have been supervised by Isaacs in the first place. This contention does not serve to rebut defendant's legitimate reason for the alleged reprisal against plaintiff in the form of negative memoranda.
In addition, the June 10, 1991, informal reprimand of which plaintiff complains was entirely justified. Holifield's memorandum to plaintiff noted that, on a day on which plaintiff had received leave to be absent from work from 3:30 to 4:30, Holifield had seen plaintiff leave at 2:30. The July 1991 reprimand of which plaintiff complains was precipitated by an incident in which plaintiff was rude and belligerent toward Holifield when asked by her to complete an assignment in a timely fashion. (To the extent that the de bene esse testimony of Dr. Juan Lovelace conflicts with Holifield's representation of the incident, the Court finds Holifield's testimony on the issue more complete and believable.) Plaintiff's AWOL charges of September 16, 1991 and September 24, 1991, while apparently later rescinded, were wholly supported by the evidence, and in no way can be seen to constitute retaliation against plaintiff for her filing of an EEOC charge nearly a year earlier.
Plaintiff also claimed in her testimony at trial that Holifield excluded her from meetings and gave her meaningless job duties, in retaliation for her having filed the charge of discrimination with the EEOC. She has shown no evidence of these things, and the Court therefore will disregard these unsupported allegations. Plaintiff has also alleged that Holifield instituted baseless disciplinary proceedings against her. While the disciplinary action Holifield pursued apparently did not result in the reprimanding or the dismissal of plaintiff, the Court finds that Holifield had ample grounds for pursuing the disciplinary action she sought, and plaintiff has put forward no evidence to rebut those grounds or to show that they were merely a pretext for retaliation. See Def.'s Ex. 17.
In sum, while plaintiff can (barely) establish a prima facie case of retaliation, defendant has in each instance articulated legitimate, non-discriminatory reasons for its adverse actions, and plaintiff has not provided the Court with any evidence even remotely establishing that defendant's reasons were false or a pretext for unlawful retaliation.
This case is no more and no less than "a controversy underpinned by the subtleties of an inharmonious personal relationship." Barnes v. Costle, 183 U.S. App. D.C. 90, 561 F.2d 983, 992 (D.C. Cir. 1977) (citing the opinion of the district court in the same case). Plaintiff has wholly failed to establish that defendant's failure to promote her was due to her pregnancy. In addition, while plaintiff has established a prima facie case of reprisal, defendant has put forward convincing and unrebutted evidence that each adverse employment action was taken for legitimate, nondiscriminatory reasons. Accordingly, judgment is entered for defendant on plaintiff's Title VII claim. An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: JUL 8 1996
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that judgment is granted for defendant on Count I of plaintiff's complaint. This case therefore is concluded, Count I being the only count remaining in this action.
Stanley S. Harris
United States District Judge
Date: JUL 8 1996