The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, an African-American woman over the age of 40, brings this action against her employer for alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623(a)(1). Plaintiff alleges "discrimination, based [on] race, and retaliation for complaining about discrimination[,]" and age discrimination. Complaint, ¶¶ 1-2. Pending for determination by the undersigned United States Magistrate Judge is Defendant's Motion for Summary Judgment (Docket No. 40). Upon consideration of the motion, the memoranda in support thereof and in opposition thereto and the entire record herein, defendant's motion will be granted.
Plaintiff is an African-American woman, who, at the time of the filing of the complaint, was 51 years old and had been an employee of the Department of Labor for almost 24 years. Complaint, ¶¶ 7-8. Plaintiff has held the GS-14 position of Chief, Division of Legislative Affairs, Office of Safety and Health Administration ("OSHA"), since 1992. Complaint, ¶ 9. Plaintiff alleges that she was "one of few African-Americans at the GS-14 level or above" at the Washington, D.C. office of OSHA. Complaint, ¶ 10. Plaintiff further alleges that "because of her race, African-American, and her age, over forty, she has been denied the 'terms, conditions, or privileges' of being a division chief at OSHA." Complaint, ¶ 11. Plaintiff also claims that "[w]hite division chiefs, who had previously held [her] position, received the support of their supervisors and were later promoted to positions at the GS-15 level and above." Complaint, ¶ 13.
Plaintiff states that from 1992 to 1995, she worked under the supervision of Tadd Linsenmeyer. Complaint, ¶ 28. After Mr. Linsenmeyer retired in 1995, Frank Frodyma became plaintiff's immediate supervisor. Complaint, ¶ 29. Plaintiff claims that Mr. Frodyma "[i]mmediately . . . delegated [her] job duties to her younger, white, female staff members." Complaint, ¶ 29. In 1997, Craig Obey became plaintiff's immediate supervisor, and "continued the practice of delegating [her] job duties to younger, white, women." Complaint, ¶ 30.
Plaintiff also alleges that since 1995, her supervisors "deliberately bypassed her" by allowing "her younger, white female staff members" to report directly to her supervisors; assigning projects to her staff members without her knowledge; directing her staff members, instead of her, to attend, and on occasion, conduct "important meetings"; allowing her staff members to transfer to different offices without her knowledge or consent; and "sending important documents directly to her staff and vice versa, without even sending her copies of these documents." Complaint, ¶¶ 17-21.
Plaintiff alleges that "one of the younger, white, female staff members," Celeste Monforton, "began to openly defy [her] authority, in what amounted to blatant acts of insubordination." Complaint, ¶ 23. Plaintiff states that she complained to Mr. Frodyma about Ms. Monforton's behavior, and while Mr. Frodyma "acknowledged Ms. Monforton's behavior[,] . . . [he] refused to authorize disciplinary action and told [her] that she would just have to get used to Ms. Monforton's behavior because she is young and aggressive." Complaint, ¶ 24.
In 1996, plaintiff complained to OSHA's management review group, which, according to plaintiff, determined that "there was no legitimate reason for taking away [her] job duties." Complaint, ¶ 25. Plaintiff alleges that "[a]t this point, the relationship between [her] and her supervisors grew openly hostile[,]" and that "[o]n one occasion, she overheard her supervisor, Frank Frodyma, making derogatory comments about her to the office's director. Rumors were circulated that [plaintiff] was not a competent manager." Complaint, ¶ 26.
Plaintiff alleges that she nevertheless continued to receive "'highly effective' job performance ratings, performance awards, and commendations[,]" and that "[n]one of her supervisors mentioned any deficiencies in her job performance." Complaint, ¶ 27.
Plaintiff states that in May, 1998, she filed an EEO complaint in which she alleged discrimination based on her race and age. She alleges that "[i]n response, "Mr. Obey, [her] current supervisor[,] has become openly hostile towards her by banging his fist and shouting at her on several occasions." Complaint, ¶ 31.
[a]s a result of the entire experience, [she] has suffered prolonged mental and emotional pain and suffering. [She] experienced anxiety, stress, humiliation, embarrassment, and loss of enjoyment, which caused her to become depressed and seek medical attention. Complaint, ¶ 32.
As part of her prayer for relief, plaintiff seeks "appropriate backpay [sic] and reimbursement for lost pension, social security, experience, training opportunities and other benefits in an amount to be shown at trial[.]" Complaint, Prayer (2). However, nowhere in her complaint does plaintiff allege that she lost any salary or benefits.
Defendant moved to dismiss the complaint for lack of subject matter jurisdiction, and argued that plaintiff had failed to exhaust her administrative remedies. The Court (Oberdorfer, J.) denied the motion. See October 22, 1999 Memorandum and Order. Defendant filed an answer, then moved for judgment on the pleadings on the ground that "plaintiff's allegations of retaliation and discrimination are not cognizable 'adverse personnel actions' as that term recently has been clarified by the D.C. Circuit in Brown v. Brody[.]" Defendant's Motion for Judgment on the Pleadings at 1. The undersigned denied the motion by an Order entered on September 28, 2000, finding that the issue of whether plaintiff could prove any set of facts which would entitle her to relief could not be determined solely from consideration of the pleadings. See September 28, 2000 Order at 4.
CONTENTIONS OF THE PARTIES
In the memorandum in support of her motion for summary judgment, defendant submits that "[p]laintiff has not provided a shred of evidence that any of Defendant's actions were motivated by Plaintiff's race, age, or involvement in protected EEO activity." Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Defendant's Memorandum") at 2. More specifically, defendant maintains that "[p]laintiff cannot demonstrate that her supervisors treated her differently from similarly situated employees outside her protected group[,]" or that she was subjected to any "'adverse employment action,' as that term was clarified by the Court of Appeals in Brown v. Brody[.]" Id.; see Defendant's Memorandum at 14- 16. Finally, defendant maintains that even assuming, arguendo, plaintiff is deemed to have made out a prima facie case of discrimination, she cannot rebut OSHA's legitimate, non-discriminatory reasons for its actions. Defendant's Memorandum at 9, 16-18.
With respect to the application of Brown v. Brody, defendant maintains that plaintiff "does not contend that she experienced any diminution of salary, benefits, or grade." Defendant's Memorandum at 11; see id. at 9-14. Defendant suggests that while the removal of an employee's duties could constitute an adverse employment action if shown to affect the terms, conditions or privileges of her current employment or future employment opportunities, plaintiff cannot make such showing, since she admits that she has retained many of the duties of a GS-14 supervisor. Defendant's Memorandum at 13. With respect to plaintiff's allegations of race discrimination, defendant maintains that "[p]laintiff concedes that neither Mr. Frodyma nor Mr. Obey ever made any statements indicating racial bias[,]" and indeed acknowledges that "older white employees were treated badly, just as she was." Defendant's Memorandum at 18 (emphasis in original).
With respect to plaintiff's allegations of age discrimination, defendant claims that "there is no evidence in the record that either Mr. Frodyma or Mr. Obey ever made derogatory comments about older employees[,]" or that they "made reference to her age, encouraged her to retire, or otherwise made statements reflecting bias against older employees." Defendant's Memorandum at 17. Defendant submits that "Mr. Frodyma's characterization of the Outstanding Young Scholars and Presidential Management Interns as 'young, highly-motivated individuals,' without anything more," is insufficient to demonstrate that plaintiff was subjected to discrimination on account of her age, or to rebut defendant's legitimate non-discriminatory reasons for the challenged actions. Id.
Defendant further asserts that plaintiff's failure to allege any adverse employment action is also fatal to her retaliation claim. Defendant's Memorandum at 18-19. Defendant submits that plaintiff's allegation that her supervisor "bang[ed] his fist and shout[ed] at her on several occasions" is not a basis upon which the court could find that plaintiff has made out a prima facie case of retaliation. Defendant's Memorandum at 19. Defendant also maintains that plaintiff has failed to show any nexus between the conduct alleged and her filing of an EEO complaint. Defendant's Memorandum at 19 n.5.
Finally, defendant asserts that even if plaintiff's age discrimination claims were to survive this motion for summary judgment, "her request for compensatory damages and for a jury trial should be denied, because Plaintiff is not entitled to such relief under the ADEA." Defendant's Memorandum at 19.
Defendant includes with the motion for summary judgment and memorandum of points and authorities a separate Statement of Material Facts as to Which There is No Genuine Issue. Each fact set forth therein is followed by a citation to plaintiff's complaint, or to one or more of the nine exhibits which are a part of the record, and accompany the statement.
Plaintiff, in her opposition, maintains that she "has provided testimony and discovery documentation supporting her contention that Defendant's actions were motivated by Plaintiff's race, age, and/or involvement in protected EEO activity." Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Opposition") at 5. Plaintiff submits that "[a]t the very least this testimony and documentation [raise] genuine issues of material fact as to the extent of adverse employment action against Plaintiff, her disparate treatment at the hands of her supervisors, and her supervisors' retaliatory actions as a result of her seeking EEO protection." Id.
With respect to the application of Brown v. Brody, plaintiff maintains that "[d]efendant's blind reliance on Brown and its progeny is misplaced." Plaintiff's Opposition at 15. Plaintiff further argues that "Brown and its progeny do not, as a matter of law, negate Plaintiff's claim that Defendant's actions constitute adverse employment actions[,]" and that "sufficient evidence exists that a reasonable trier of fact could find for Plaintiff that these actions deprived her of certain 'terms, conditions, or privileges of her employment or her future employment opportunities.'" Plaintiff's Opposition at 15-16. Additionally, plaintiff contends that she "has provided sufficient testimony and documentation supporting her allegations of adverse employment action[,]" and that "defendant's evaluation of each incident in isolation ignores the totality of the work conditions endured by Plaintiff, the affront to her authority and position, and the adverse consequences to her career advancement." Plaintiff's Opposition at 16-17.
With respect to her age discrimination claim, plaintiff concedes that "there is no right to a trial by jury in age discrimination suits against the federal government; however, Plaintiff notes that the ADEA does provide for liquidated damages in cases involving willful violations of the Act and intends to present evidence of the willful acts and the damages suffered." Plaintiff's Opposition at 20-21. Plaintiff also "moves this Court for leave to ...