The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff has brought this action alleging violations of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 and 794. After the completion of extensive discovery, the defendant has filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). Currently before the Court are (1) the Defendant's Memorandum in Support of its Motion for Summary Judgment ("Def.'s Mem."); (2) the Plaintiff's Opposition to Motion for Summary Judgment ("Pl.'s Opp'n"); and (3) the Defendant's Reply to Plaintiff's Opposition to Motion for Summary Judgment ("Def.'s Reply"). For the reasons set forth below, the Court grants in part and denies in part the defendant's motion.
The following facts are undisputed or, because the plaintiff is the party opposing summary judgment, construed in the light most favorable to her. Stewart v. Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003). For clarity, the Court has structured this section of the opinion seperately to delineate the facts underlying each claim of discrimination raised by the plaintiff.
(A) The 1996 Non-Selection as Section Chief Claim
In 1976, the plaintiff, an African American female, began her career with the Federal Bureau of Investigation ("FBI"). Defendant's Statement of Material Facts Not In Dispute ("Def.'s Stmt.") ¶ 1. In 1991, the plaintiff was promoted to Unit Chief of the FBI's Document Classification Unit. Id. ¶ 2. On March 18, 1996, the FBI posted a vacancy notice for a Section Chief position for the Administrative Resource Management ("AIRM") Section, Information Resources Division ("IRD"). Def.'s Mem. at 5. The notice instructed qualified applicants to apply for the position by contacting the Executive Development Selection Program Administrator. Id. According to the defendant, the names of all applicants, qualified or not, were forwarded to the selecting official, Carolyn Morris, Assistant Director of the IRD. Id. The plaintiff applied for this position but was not selected. Def.'s Stmt. ¶ 3. At the time of her nonselection, the plaintiff was employed as a GS-15 Unit Chief. Id. ¶ 4.*fn1 The person selected was a white male who had been employed as a GS-15 Assistant Special Agent in Charge ("ASAC") in the FBI's Los Angeles Field Office at the time of his selection. Id. The defendant maintains that a minimum qualification for the AIRM Section Chief position was previous field management experience as an ASAC in a field office, as opposed to having held such a position at FBI headquarters. Id. For his position, the defendant relies upon an agency policy which states that to be qualified for a Section Chief vacancy, candidates must be either Inspectors on the Inspection Staff or qualified ASACs, unless the Section Chief position requires a specific skill or experience. Id. ¶ 6. Moreover, according to the defendant, the selecting official for this Section Chief position (Morris), included the ASAC requirement for this particular Section Chief position to ensure that the Section Chief would possess the management and operational field experience essential to maintain IRD's credibility with FBI field offices and agents, and further advance IRD's mission to serve the technical and investigative needs of special agents in the field. Id. ¶ 7. Additionally, Morris determined that given her own lack of field office and investigative experience, the ASAC requirement was an essential qualification for her subordinates in order to maintain IRD's credibility and to obtain the necessary perspectives of field-wide investigative and technical issues essential to IRD's mission. Id. ¶ 8. According to the defendant, the only instance in which Morris did not require ASAC experience was when the vacant Section Chief position required particularized and unique technical experience and skills, which would outweigh the need for ASAC experience. Id. ¶ 9. Because the Section Chief position at issue in this case did not require such particularized and unique technical skill or experience, the defendant contends that the ASAC experience exception was not applicable. Id. ¶ 10. Thus, when considering candidates for this position, all applicants who did not have ASAC experience were eliminated from consideration. Id. ¶ 12. In response to the defendant's representations, the plaintiff asserts that requiring ASAC experience for the Section Chief position was contrary to FBI policies and a pretext for discrimination. Plaintiff's Statement of Genuine Issues ("Pl.'s Stmt.") ¶ 26.
(B) The 1994-1998 Hostile Work Environment Claim
Kevin O'Brien began supervising the plaintiff sometime in 1994. Pl.'s Opp'n at 9.
According to the plaintiff, after O'Brien began supervising her, he engaged in a pattern of harassing activity against her. Id. The plaintiff states that O'Brien would frequently scream at her over the telephone, talked to her in a condescending tone, and failed to involve her in matters directly related to her area of expertise. Id. For example, the plaintiff references an occasion when she helped O'Brien prepare for Congressional testimony, but she was not invited to attend the hearing. Id. at 9-10. The plaintiff asserts that based upon the alleged abusive treatment, she submitted a request to Assistant Director John Collingwood for reassignment to a position in which she would not be under O'Brien's supervision, but her request was denied. Id. at 10. Despite the denial of her request, the plaintiff represents that a white support staff female was transferred from O'Brien's supervision after she complained about him. Id.
In 1997, Collingwood decided to restructure the Freedom of Information and Privacy Act ("FOIPA") section to reduce a considerable backlog of FOIPA matters. Def.'s Mem. at 35. In this reorganization, Collingwood separated the Litigation Unit from the FOIPA section. Id. Despite the plaintiff's seniority, she claims that she was never consulted regarding the creation of the separate Litigation Unit even though Collingwood consulted with white employees within the division on the subject. Pl.'s Opp'n at 12. The plaintiff was ultimately assigned as Chief of this new Litigation Unit. Def.'s Stmt. ¶ 2. The plaintiff represents that, after being assigned as the Unit Chief of the Litigation Unit, the pattern of discrimination intensified. Pl.'s Opp'n at 10. First, according to the plaintiff, O'Brien attempted to dissuade employees from transferring to the plaintiff's unit and limited the resources made available to her. Pl.'s Opp'n at 12. Moreover, the plaintiff contends that she was excluded from certain meetings, including a meeting with then Attorney General Janet Reno and other meetings which had a direct impact on her unit. Id.
Additionally, the plaintiff alleges that she was denied the resources she needed to effectively perform her job. Specifically, she asserts that her new office was "filthy, unfurnished, and had poor ventilation, and had never before been used as a unit chief's office." Id. at 11. Further, she was not given a speaker telephone even though some lower-ranked white support staff members in the division were supplied with one. Id. The plaintiff also contends that she was discriminated against because one-third of the Litigation Unit's space was reassigned to another unit, O'Brien continued to frequently talk to the plaintiff in a loud tone, she did not receive quality step increases while under the supervision of O'Brien, and her unit's appeals reclassification function was reassigned back to the Document Classification Unit ("DCU"). Def.'s Mem. at 43-48.
Moreover, the plaintiff claims that in 1998, she was stripped of her duties as Unit Chief of the Litigation Unit. Pl.'s Opp'n at 13. According to the plaintiff, in November 1998, she discovered a stack of memoranda addressed to Collingwood that detailed a plan drafted by O'Brien, which was designed to eliminate the backlog of classification appeals. Id. at 13-14. The plan called for the reassignment of the classification appeals function to Nancy Steward, a while female who did not have a bachelors degree. Id. at 14. Collingwood later followed the suggestions that had been made in the memoranda and transferred to Steward the classification appeals function. Id. According to the plaintiff, following this reassignment, she "became an emotional wreck." Id. She was nauseous, unable to sleep, and had severe emotional challenges. Id. These events lead the plaintiff to take leave in an attempt to recover from the trauma caused by the reassignment. Id. at 14-15. This need to take leave resulted in the plaintiff taking an extended medical leave of absence, which began on November 17, 1998. Id. Thereafter, the plaintiff never returned to work. Id. at 34.
(C) The Leave of Absence and Fitness for Duty Examination ("FFD") Claim
On November 17, 1998, the plaintiff left a handwritten note along with a doctor's slip for her supervisor, which indicated that she was taking medical leave for at least a month due to work related stress. Def.'s Mem. at 49. On December 9, 1998, the plaintiff asked to be continued on medical leave and stated that her doctor had advised her not to have contact with the office except for "severe emergencies." Id. On January 20, 1999, the plaintiff requested that she be placed on leave without pay. Id. The plaintiff was then on unpaid leave for over a year, when on March 15, 2000, she sent Collingwood a note advising him that she planned to return to work on Monday, March 27, 2000. Pl.'s Mem. at 15. Along with this note, the plaintiff also sent a release from her doctor, Dr. Welsing, which indicated that the plaintiff could return to full time employment on that date. Id.
Upon receipt of the note, John Kelso, who had replaced O'Brien after his retirement, wrote a note to Collingwood which stated that the plaintiff's note was "something of a surprise, and also potentially very disruptive, especially with [an] inspection starting one week after her return." Pl.'s Mem. at 16. On March 24, 2000, Donald Bartnik, Section Chief of the Personnel Assistance Section, wrote a letter to the plaintiff and informed her that the note submitted by Dr. Welsing was insufficient to make a determination about the plaintiff's ability to return to work. Id. at 16. The letter informed the plaintiff that she would be required to take a fitness-for-duty examination before she could return. Id. According to the plaintiff, when officials at the FBI met to discuss her situation, which led to the issuance of Bartnik's March 24, 2000 letter, the officials also discussed the possibility of sending the plaintiff for a psychological examination and terminating her because she had overextended the time she was on leave without pay. Id. at 16-17. On March 24, 2000, Bartnik also sent a letter to Dr. Welsing requesting additional information that the FBI said it needed before it could determine whether the plaintiff would be able to return to work. Id. The supplemental report was submitted by Dr. Welsing on April 13, 2000. Def.'s Mem. at 58
On March 29, 2000, the plaintiff passed the fitness-for-duty physical examination, which was performed by Dr. James Yoder. Id. at 18; Def.'s Mem. at 57. During the examination, the plaintiff stated that she was still taking psychotropic medication. Def.'s Mem. at 57. On April 12, 2000, Bartnik notified the plaintiff that she would be required to take a psychological FFD examination to further assess her fitness to return to work. Id. According to the defendant, Dr. Yoder had input into the decision and agreed with it. Id. However, Dr. Yoder's report concerning his evaluation of the plaintiff was not issued until May 9, 2000. Pl.'s Opp'n at 19.
The plaintiff went to the Isaac Ray Center in Chicago, Illinois on June 8 and 9, 2000, for the psychological examination. Pl.'s Opp'n at 23; Def's Mem. at 60. In late-June 2000, Doctors David Hartman and Peter Fink sent separate reports to the FBI indicating that the plaintiff was unfit for duty. Pl.'s Opp'n at 24-28; Def.'s Mem. at 61. In a letter dated July 28, 2000, the FBI notified the plaintiff of the results of her June 2000 psychological examination. Def.'s Mem. at 62. The letter explained that the doctors at the Isaac Ray Center concluded that the plaintiff was not fit to return to duty because her mental disorder impaired her ability to perform her duties and responsibilities. Id. at 63. In addition, the letter notified the plaintiff that to maintain her FBI employee status, she would be required to submit to additional medical and neurological evaluations and testing. Id. The FBI also mandated that the plaintiff submit monthly reports from her doctors specifying whether she had been compliant with the recommended examinations and treatment, along with reports on her progress. Id. at 63. The plaintiff submitted these reports in December 2000 and January 2001. Id. at 64-65. Following the receipt of the reports, the plaintiff was notified in a letter dated January 31, 2001, that she had been scheduled for a re-evaluation at the Isaac Ray Center on February 6-7, 2001. Id. at 65. Prior to her re-examination, the plaintiff submitted an evaluation from a privately retained doctor, Dr. Robert Bell Mapou, that supported her position that she should be reinstated. Pl.'s Opp'n at 30. Despite this supplemental report, on July 27, 2001, the plaintiff submitted her notice that she intended to retire from the FBI effective August 29, 2001. Pl.'s Opp'n at 34. Nonetheless, after receiving this notice, the FBI decided that the plaintiff should still undergo the re-evaluation because she could change her position about retirement. Def.'s Mem. at 67. A second evaluation occurred on July 30-31, 2001, however, the Isaac Ray Center refused to issue reports regarding this re-examination because the plaintiff had allegedly threaten to take legal action against the doctors. Id. at 67.
(D) The 1999 Non-Selection as Section Chief Claim
Following the plaintiff taking medical leave in November 1998, her immediate supervisor, Section Chief Kevin O'Brien, retired. Pl.'s Opp'n at 9. Despite the plaintiff's alleged continued notification to the FBI management that she desired a promotion to an SES position, the plaintiff was not advised of the vacancy of O'Brien's former position. Id. The position was ultimately awarded to a white male, John Kelso, another Unit Chief in the FOIPA section. Id.
This Court will grant a motion for summary judgment under Rule 56(c) if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits or declarations, if any, 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). When ruling on a motion for summary judgment, this Court must view the evidence in the light most favorable to the non-moving party. Bayer v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992). However, the non-moving party cannot rely on "mere allegations or denials..., but... must set forth specific facts showing that there [are] genuine issue[s] for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). Under Rule 56, "if a party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial" summary judgment is warranted. Hazward v. Runyon, 14 F. Supp. 2d 120, 122 (D.D.C. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The party moving for summary judgment bears the burden of establishing the absence of evidence to support the non-moving party's case. Id. In considering a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
III. Title VII and the Rehabilitation Act
The plaintiff alleges violations of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794. Compl. ¶¶ 16-19. Under Title VII, "[a]ll personnel actions affecting employees... shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). Under the Rehabilitation Act, "[n]o otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be... subjected to discrimination under any program or activity... conducted by any Executive agency...." 29 U.S.C. § 794. To prove a claim of discrimination under either Title VII or the Rehabilitation Act, the plaintiff can present direct evidence of discrimination or the plaintiff can rely on the McDonnell Douglas burden shifting framework in the absence of direct evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); see McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000) (discussing proof required for Rehabilitation Act claims); Mitchell v. Baldrige, 759 F.2d 80, 84-85 (D.C. Cir. 1985) (applying the McDonnell Douglas burden shifting framework to Title VII claims).
The plaintiff alleges race and gender discrimination under both the disparate treatment and disparate impact doctrines, and she also makes a claim of retaliation. Disparate treatment discrimination occurs when "[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin." International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977). In cases of disparate treatment discrimination, a "proff of discriminatory motive is critical...." Id. On the other hand, disparate impact claims of discrimination "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. However, when a claim of disparate impact discrimination is advanced, a "proof of discriminatory motive... is not required...." Id. Title VII also protects employees from retaliation by employers for engaging in a protected activity. 42 U.S.C. § 2000e-3(a).
(A) Disparate Treatment Discrimination
In race discrimination cases alleging disparate treatment, the plaintiff can satisfy her burden by introducing direct evidence of discriminatory intent or indirect evidence of discriminatory intent. See McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000). Under the framework established in McDonnell Douglas, 411 U.S. at 792, to establish a claim under Title VII of the Civil Rights Act of 1964 through indirect evidence, the plaintiff must first establish a prima facie case of discrimination. Id. at 802. A prima facie case of race or gender discrimination requires the plaintiff to show: (1) that she belongs to a protected class; (2) that she applied and was qualified for a job that the employer was trying to fill; (3) though qualified, she was not selected; and (4) the unfavorable action supports an inference of discrimination. Id. This is not an onerous burden. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the plaintiff has satisfied this requirement, the burden then shifts to the employer to articulate legitimate, non-discriminatory reason for the challenged employment decision. Id. However, the employer is not required to support these reasons with objective evidence sufficient to satisfy the "preponderance of the evidence" standard. Burdine, 450 U.S. at 259-60.
Once the defendant presents a legitimate, non-discriminatory reason for the challenged employment decision, then "'the McDonnell Douglas framework -- with its presumptions and burdens' -- disappear[s], and the sole remaining issue [is] discrimination vel non." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000) (internal citations omitted). At this point, the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998) (en banc). Specifically, this Court must consider whether a jury could infer discrimination from (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation; and (3) any further evidence of discrimination that may be available to the plaintiff. Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002) (citing Aka, 156 F.3d at 1289). The ...