The opinion of the court was delivered by: John D. Bates United States District Judge
In this action against defendant Andrew Natsios, Administrator, United States Agency for International Development (hereinafter"defendant" or"AID"), plaintiff Mary T. Lester ("plaintiff") asserts an exceptionally broad array of discrimination claims relating to her lengthy employment at AID. She includes claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 and 794a, and she bases her claims on allegations of race, sex, age and handicap discrimination. Her litany of complaints includes failure to reasonably accommodate her handicap, denial of promotions, excessive job scrutiny and harassment, denial of training, unreasonable work assignments, inaccurate and delayed performance appraisals, exposure to a hostile work environment, and retaliation.
Faced with plaintiff's panoply of claims, defendant nonetheless has moved for summary judgment. The Court has carefully reviewed defendant's motion and plaintiff's responsive filings, and held a lengthy hearing. For the reasons explained below, defendant's motion is granted and judgment is entered in defendant's favor.
During the period relevant to this action, and until her retirement on September 30, 1999, plaintiff was employed as an occupational safety and health specialist, GS-12, with AID. Plaintiff's primary complaints focus on the years 1993 and 1994, although not strictly limited to that period. Many of her allegations revolve around her supervision by William Miller and Lena Goodman, the Division Chief and Acting Chief, Property Management Division, during the relevant time. Among other things, plaintiff contends that AID failed to accommodate her handicap resulting from hypertension; that she was subjected to harassment, including the creation of a hostile work environment resulting from racially-motivated events in the workplace; that she received additional work assignments related to overseeing AID's safety and health concerns worldwide; that she was subjected to inappropriate supervision, including the requirement to submit a weekly calendar of her whereabouts; that she was denied a promotion to GS-13 in 1994 and 1995 (once because an advertised position was cancelled and later because a desk audit was adverse); and that several performance evaluations were improperly delayed or inaccurate as given.
Plaintiff's diverse claims under Title VII, the ADEA and the Rehabilitation Act are collected at several points in her First Amended Complaint ("Am. Compl."). At paragraph 56, she describes her series of complaints as follows:
a. Excessive job scrutiny/supervision and harassment, including being required as of February 8, 1994 to submit a weekly calendar detailing her whereabouts;
b. Being denied, beginning on February 16, 1994, an opportunity to complete the WELP training program that would have enhanced her career potential;
c. Being subjected to an abusive, harassing meeting with her supervisor on February 16, 1994;
d. Being denied selection for a promotion to GS-13 in 1994 through the improper reannouncing and canceling of the GS-13 position for which she had applied;
e. Being harassed with unreasonable work assignment requests regarding her 1993-94 performance appraisal, and being given an inaccurate and unfair 1993-1994 performance appraisal in August 1994;
f. Being denied a promotion to GS-13 through an inaccurate Agency desk audit of her position performed in November 1994;
g. A hostile work environment and intense stress due to her workload being greatly increased in December 1994, and to the removal of necessary administrative help in December 1994;
h. Being denied a reasonable accommodation to her handicap, hypertension, by being denied reassignment, which she had first requested on September, 1994 and then continued to request;
i. Having her supervisor fail to prepare her 1994-95 performance appraisal;
j. Being given a late, unfair, and inaccurate 1994-95 performance appraisal in February 1996 [.]
Am. Compl. ¶ 56; see also id. ¶¶ 59, 63, 67 and 78.
During this time, plaintiff asserts that she engaged in protected EEO activity, including filing a formal EEO complaint in 1989; filing an informal EEO complaint in 1993 regarding the appropriate reviewer for a performance appraisal; participating in a group letter dated October 1, 1993, to the then-AID Administrator alleging discrimination; participating in a class action EEO complaint filed on March 1, 1994; being interviewed by an EEO investigator on March 3, 1994, regarding a co-worker's EEO complaint; and filing formal EEO complaints relating to the assertions in this action in 1994 and 1995. See Am. Compl. ¶¶ 12, 77.
Following full discovery, defendant has moved for summary judgment as to each of plaintiff's claims in her Amended Complaint. In brief, defendant contends that there is no evidence whatsoever of sex or age discrimination, and that because plaintiff's hypertension (high blood pressure) was controlled by medication, plaintiff was not disabled within the meaning of the Rehabilitation Act and, in any event, AID attempted to find plaintiff an alternative position as reasonable, non-discriminatory accommodation before her condition was fully controlled by medication. As to plaintiff's promotion claims, defendant asserts that cancellation of the position she applied for defeats plaintiff's prima facie case of discrimination and that, in any event, the agency has provided a reasonable, non-discriminatory explanation for the cancellation. With respect to the failure to upgrade her position to a GS-13, defendant relies on the results of the AID desk audit as subsequently confirmed by another audit conducted by the Office of Personnel Management. Defendant then contends that under the controlling precedent in this Circuit, see Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999), plaintiff's performance appraisal, training, work assignment, and excessive monitoring claims do not involve"adverse employment actions" giving rise to actionable discrimination claims. Plaintiff's hostile work environment claim, defendant contends, founded in part on her other discrimination claims as well as on three specific incidents, does not rise to the severe and pervasive race-based offensive conduct that is required under the law. Finally, defendant contends that once plaintiff's discrimination claims are defeated for all these reasons, her retaliation claim must fail as well.
Plaintiff's response is generally to assert that she was mistreated over a several-year period in an agency environment where much discrimination towards African-American and female employees was occurring, and that given the smoke of such mistreatment, there must also be the fire of discrimination. Plaintiff urges that there are genuine issues of material fact on various points, and that her claims should all be allowed to go forward to trial and resolution by a jury. Although she has conceded that some claims are much weaker than others, and that for the most part she has no"smoking gun" to prove discrimination, plaintiff contends that her factual allegations are sufficient to defeat defendants' motion on all claims in the Amended Complaint.
Given the range of claims asserted by plaintiff, it is not easy to parse the Amended Complaint and the record to assess the viability of those claims in light of defendant's comprehensive motion for summary judgment. However, once the specific allegations are identified and independently scrutinized under the prevailing law, it is apparent that plaintiff's claims cannot survive summary judgment. Plaintiff's disparate claims can best be analyzed under five distinct groupings: (1) Rehabilitation Act claims; (2) promotion claims; (3) miscellaneous claims relating to performance appraisals, training opportunities, assignments and monitoring; (4) hostile work environment claims; and (5) retaliation claims.*fn1 Before those claims are assessed, however, a brief discussion of the applicable analytical framework is warranted.
I. Analytical and Legal Framework
A. Summary Judgment Standard
Summary judgment is appropriate when the pleadings and the 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." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by"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." Id. (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the"mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322."If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at ...