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CHILDERS v. SLATER

March 23, 1999

PEGGY CHILDERS, PLAINTIFF,
v.
RODNEY SLATER, SECRETARY OF TRANSPORTATION, DEFENDANT.



The opinion of the court was delivered by: Urbina, District Judge.

        MEMORANDUM OPINION

Granting in Part and Denying in Part the Defendant's Motion for Summary Judgment

I. INTRODUCTION

This matter comes before the court upon the defendant's motion for summary judgment, made pursuant to Federal Rule of Civil Procedure 56. The plaintiff, Peggy Childers, is an African-American female who, at the time she filed this complaint, was an employee of the United States Department of Transportation. She brings this pro se action alleging race and sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq. (1994). The defendant is Rodney Slater, the Secretary of Transportation, named in his official capacity as head of the Federal Aviation Administration ("FAA"), an agency within the United States Department of Transportation.

In her complaint, the plaintiff brings in excess of twenty-six claims,*fn1 which are best summarized as follows: (1) discriminatory and/or retaliatory failure to promote;*fn2 (2) discriminatory and/or retaliatory reassignment;*fn3 (3) discriminatory and/or retaliatory performance appraisal;*fn4 (4) discriminatory discipline and/or discipline in reprisal;*fn5 and (5) other claims which essentially constitute discriminatory and/or retaliatory harassment.*fn6 Upon consideration of the parties' submissions, the applicable law and the record herein, the court concludes that the plaintiff has failed to exhaust her administrative remedies with respect to the allegations made in paragraphs 6(e), (i), (m), (n), (p) in part, and (u) of the complaint. The court concludes that the plaintiff has failed to establish a prima facie case of discrimination or retaliation and/or failed to carry her burden of proving that the employer's proffered reasons for its actions were pretextual with respect to the allegations made in paragraphs 6(a), (b), (c), (d), (f), (g) in part, (h), (j), (k), (l), (o), (p) in part, (s), (w) in part, and (x) of the complaint. The court further concludes that there are genuine issues of material fact in dispute regarding the allegations of reprisal made in paragraphs 6(g) and (p) of the complaint, and the allegations regarding failure to reassign to a GS-334 position made in paragraph 6(w) of the complaint. Finally, the court concludes that the plaintiff has failed to state a claim of hostile work environment in paragraphs 6(q), (r), (t) and (v) of the complaint. Accordingly, the court will grant in part and deny in part the defendant's motion for summary judgment.

II. BACKGROUND

The plaintiff is an African-American female who, in July 1992, was employed by the defendant as a Communications Management Specialist at the "GS 391-12/13/14" level in ASM-310, a branch supervised by Frank Corpening. The plaintiff filed her complaint in this action on April 25, 1997, after timely filing her EEOC charge and receiving her letter to sue on January 27, 1997. The complaint alleges several discriminatory and/or retaliatory incidents, which began in October 1992 and continued through January 1994.

The relevant facts are as follows. In October and November 1992, the plaintiff was denied permission to travel to international destinations in France and Portugal on work related matters because of an ostensible lack of travel funds. (Compl. ¶ 6(a).) Endeavoring to avoid future resistance to her participation in international travel, the plaintiff, at the direction of her second line supervisor at ASM-310, Dave Tuttle, developed an Individual Development Plan ("IDP"). (Compl. ¶¶ (b), (c); Decl. of Dave Tuttle ¶ 3.) The IDP was thereupon denied funding. (Compl. ¶ 6(c).) In January 1993, the plaintiff was involved in a confrontation with co-workers in the accounting department of her division. Her supervisor subsequently received written accounts detailing workplace incidents involving the plaintiff and her co-workers. Shortly thereafter, the plaintiff was placed on a performance improvement plan ("PIP") by Corpening. (Compl. ¶ 6(g).) During the time that the PIP was imposed, the plaintiff was reassigned to serve as the FAA Leased International Telecommunications ("FLINT") Project Lead. Consequently, in March 1993, the plaintiff filed a formal complaint of discrimination with the FAA Office of Civil Rights. (Def.'s Mot. for Summ.J., Ex. 2, Admin.Compl. 93-0132.)

The plaintiff was detailed out of ASM-310 and placed in the National Maintenance Coordination Center ("NMCC") in August 1993. Her supervisor at the NMCC was initially Frank DeMarco, followed in February 1994 by David Lantzy. During her tenure at the NMCC, the plaintiff applied for and was denied a permanent reassignment. Also during her tenure at the NMCC, the plaintiff interacted with Jim Wilkins, a co-worker who she alleges harassed her. The plaintiff filed subsequent administrative complaints in March and April 1994. (Def.'s Mot. for Summ.J., Ex. 4, Admin.Compl. 94-0290; Decl. of Harold LeBlanc and Attached Ex.) At the termination of the plaintiffs NMCC detail in April 1994, the plaintiff was detailed to ATM-520, where her supervisor was Gilbert Armbruster. The plaintiff remained at ATM-520 for approximately one year before returning to the supervision of Frank Corpening in April 1995.

III. DISCUSSION

A. Legal Standard for Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment may be granted when the pleadings and evidence demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir. 1995). A genuine issue is one that could change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

All evidence and the inferences drawn therefrom must be considered in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court is mindful of its duty to construe pleadings liberally where, as here, the nonmoving party is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). But if such party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the ultimate burden of proof at trial," then summary judgment must be granted. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

The D.C. Circuit has held that because proof of discrimination is difficult for a plaintiff to establish, the court should view summary judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879 (D.C.Cir. 1997); Johnson v. Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993). Nonetheless, the nonmoving party may not rest on mere allegations, but "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (internal citations omitted). To survive a motion for summary judgment in a discrimination case, a plaintiff cannot rest on mere allegations of pretext. See Hayes v. Shalala, 902 F. Supp. 259, 263 (D.D.C. 1995); Johnson, 836 F. Supp. at 15. By pointing out the absence of evidence to support the nonmoving party's case, the moving party can demonstrate that there is no genuine issue as to any material fact, therefore entitling it to summary judgment. Celotex, 477 U.S. at 325, 106 S.Ct. 2548.

B. Allocation of Burdens and Order of Proof Under Title VII

The Supreme Court has set forth a three step analysis to allocate the burden of proof in a Title VII case alleging discriminatory treatment and retaliation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1978); Mungin v. Katten, Muchin & Zavis, 116 F.3d 1549, 1553 (D.C.Cir. 1997). The plaintiff must first establish, by a preponderance of the evidence, a prima facie case of race or sex discrimination. See McDonnell Douglas, 411 U.S. at 802; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Second, if the plaintiff succeeds in presenting a prima facie case, the burden of proof shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's treatment. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Third, should the defendant meet this burden, the plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not the true reasons, but rather a pretext for discrimination and retaliation. Id.

The burden allocation and order of proof applied in discrimination cases is similarly applied to claims of reprisal under Title VII. See Webb v. District of Columbia, 864 F. Supp. 175, 185 (D.D.C. 1994). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Id. Should the defendant meet its burden, the plaintiff must prove that the employer's proffered reasons are a pretext for discrimination. Id. The D.C. Circuit has additionally held that "in most situations, the employer is permitted one last defense: by clear and convincing evidence, the defendant must prove that plaintiff would have been subjected to the adverse action anyway, even absent retaliation." See, e.g., Chen v. General Accounting Office, 821 F.2d 732, 738 (D.C.Cir. 1987); Williams v. Boorstin, 663 F.2d 109, 116 (D.C.Cir. 1980).

As a threshold matter, the defendant argues for summary disposition of sundry claims based on the plaintiff's failure to exhaust her administrative remedies. Thus, before reaching the substantive merits of the defendant's motion for summary judgment, the court will determine whether the plaintiffs claims are properly before it.

C. Exhaustion of Administrative Remedies

The court will examine the claims for administrative exhaustion roughly in the order in which the claims are disputed in the defendant's motion for summary judgment. The defendant argues that the plaintiff's allegations regarding the FAA's failure to promote her in 1994, 1995 and 1996, embodied at paragraph 6(p) of the complaint, are untimely. The defendant seeks to have these claims dismissed for failure of the plaintiff to exhaust her administrative remedies.

Before bringing suit in federal court, Title VII plaintiffs must exhaust their administrative remedies by filing an EEOC charge and allowing their employers an opportunity to act on the charge. Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir. 1995). Only after the EEOC has notified the aggrieved person of its decision to dismiss or its inability to bring a civil action can that person herself bring an action in federal court. See id.; 42 U.S.C. § 2000e-5(f)(1). The doctrine of administrative exhaustion provides that a Title VII lawsuit following the EEOC charge is limited in scope to claims that are "like or reasonably related to the allegations of the charge and growing out of such allegations." Park, 71 F.3d at 907 (citing Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)) (citations and internal quotations omitted). This circuit has stressed that "adequacy of notice is the core of Title VII administrative exhaustion requirements." Brown v. Marsh, 777 F.2d 8, 14 (D.C.Cir. 1985). Accordingly, courts have adduced that so long as the employer was accorded notice that its actions allegedly violated Title VII and was afforded adequate opportunity to pursue a mutually satisfactory resolution with the employee, the claims before the court might survive an inquiry into administrative exhaustion. See Webb, 864 F. Supp. at 184; Loe v. Heckler, 768 F.2d 409, 420 (D.C.Cir. 1985).

The plaintiff maintains that Corpening's failure to promote her in March 1993 was a determinative and motivating reason for her filing of EEOC charges. (Decl. of Harold LeBlanc and Attached Ex.) Accordingly, she argues that the defendant should have been on notice to investigate every year following 1993 in which she was not promoted by Corpening. The plaintiff admits, however, that any additional claims which arose during the complaint process would have merited a new administrative complaint being filed, and the plaintiff did not file new complaints alleging that Corpening failed to promote her after 1993. (Def.'s Mot. for Summ.J. at 11, 14-16; Def.'s Mot. for Summ.J., Ex. 3J, Childers's Deposition ("Childers's Depo.").) "A court cannot allow liberal interpretation of an administrative charge to permit a litigant to bypass the Title VII administrative process." Park, 71 F.3d at 907 (internal citations and quotations omitted). The court concludes that the plaintiff's claim of non-promotion in 1993 did not fairly embrace future, discrete incidents of non-promotion in subsequent years such that the defendant should have been on notice to investigate and act on the plaintiff's additional claims of non-promotion. See Park, 71 F.3d at 907. Thus, the plaintiff failed to timely allege and administratively exhaust her remedies with respect to the allegations of discrimination and reprisal in paragraph 6(p) of the complaint insofar as they embody the failure to promote the plaintiff after 1993. Accordingly, the defendant's motion for summary judgment will be granted with respect to claims alleging non-promotion in 1994, 1995 and/or 1996.

Next the defendant argues, with respect to paragraph 6(l), that plaintiff did not timely raise a claim of discriminatory performance appraisal within 45 days of receiving the March 1993 appraisal as required by 29 C.F.R. § 1614.105. (Def.'s Mot. for Summ.J. at 23; Decl. of Harold LeBlanc ¶ 7.) A review of the EEO Counselor's Report covering the period from February 23 through April 9, 1993, however, suggests that the March 1993 performance appraisal claim was fairly embraced by the issues raised therein. (Decl. of Harold LeBlanc, Ex. 2.) In this period, the plaintiff alleged that she was "(1) continually subjected to a different set of standards for . . . performance of other elements of her job as indicated in the organizational chart." (Id.) Furthermore, the report recounts that a meeting took place on March 23, 1993, wherein the plaintiff wanted to discuss "(1) having [her] personnel record cleared" and "(2) Performance Improvement Plan dropped." (Id.) The report's reference ...


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