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July 5, 2005.

AVA JOHNSON, et al., Plaintiffs,

The opinion of the court was delivered by: HENRY KENNEDY, District Judge


Plaintiffs Ava Johnson and Peggy Wilson*fn1 allege that their employer, the United States Capitol Police Board ("USCP") discriminated against them on the basis of race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Congressional Accountability Act of 1995 ("CAA"), 2 U.S.C. §§ 1301 — 1438. Presently before the court is defendant's motion to dismiss, or in the alternative for summary judgment [#61]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion must be denied. I. BACKGROUND INFORMATION

USCP's Office of Financial Management ("OFM") has three sections — accounting, budget, and procurement. At the time of their complaint, plaintiffs, both African-American women, worked in the accounting section. They allege that they have "consistently" suffered "disparate and discriminatory treatment as compared to [OFM's] white employees" at the hands of Maryjean Jablonicky, who became OFM's director in April 2001. Compl. ¶¶ 11, 10. Plaintiffs' immediate supervisor was Carol Warren; both Jablonicky and Warren are white women. Although plaintiffs originally sought recovery for numerous alleged discriminatory acts, their only claim still before the court is that USCP improperly denied them a salary increase award in February — March 2002.*fn2 Although Warren advocated for plaintiffs to receive the award, Jablonicky "refused to process the paperwork" for the increases, while approving a similar award for plaintiffs' white counterpart in OFM's procurement section. Id. ¶¶ 13-14.

  More specifically, according to plaintiffs, Warren sought to recognize their contributions with a merit pay award. She discussed the matter with Jablonicky, both in person and via e-mail. See Warren Dep. at 188. After seeking guidance from USCP's personnel office and receiving Jablonicky's instructions to do so, Warren consulted with USCP's Chief Administrative Officer, John McWilliam. Warren then prepared a separate nomination package for Johnson and for Wilson, consisting of a pre-printed form entitled "United States Capitol Police Award Nomination," dated February 6, 2002,*fn3 as well as a cover memo to McWilliam, dated February 26, 2002. Pls.' Opp'n, Exs. 11, 12. On March 5, 2002, McWilliam sent Jablonicky a memo indicating that he was returning the award nominations for further information because "[t]he recommendations for both requests cover actions by the employees primarily in FY 2000," while "[m]erit increases must include the employee's most recent performance." Id., Ex. 13. Shortly afterward, on March 7 or 8, 2002, Jablonicky then summoned Warren into her office to discuss the nominations. During this discussion, according to Warren, Jablonicky "went into an irate and lengthy tirade," Warren Aff. ¶ 18. She "told [Warren] that she would not approve the awards"; mentioned that Kay Benner, an employee with USCP's Human Resources Division, had called Warren and her staff "worthless people"; and stated by way of justification that Warren and plaintiffs "did not work overtime as other divisions did during the anthrax and the 9/11 incident." Warren Dep. at 210, 212, 214. Jablonicky, however, "did not tell [Warren] that John was asking for additional information to approve the awards." Warren Aff. ¶ 17.

  Jablonicky, for her part, stated that "[d]uring the conversation, both parties were frustrated, but neither party raised a voice or was disrespectful." Def.'s Mot. for Summ. J., Ex. 2F at 6. She testified that she "asked [Warren] why the award nomination memorandum did not come through me," a question for which Warren "did not provide a clear explanation." Jablonicky Aff. ¶¶ 47-48. She further stated that she would not authorize merit increases for plaintiffs because of "performance issues" she had with Wilson's work, and because she "wasn't sure that we had enough work time for 2001, because Ava [Johnson] had been out sick, to justify the merit increase over and above her salary. . . ." Jablonicky Dep. (May 14, 2004) at 150-51. Around the time she denied plaintiffs' award nominations, Jablonicky approved the same award for Dewayne Chamberlain, a white man working in OFM's procurement section. Jablonicky Aff. ¶¶ 59, 63. After completing their required period of counseling with OFM's Office of Compliance, plaintiffs brought this action on March 4, 2003.


  A. Legal Standard/Analytical Framework

  Under Fed.R.Civ.P. 56, summary judgment*fn4 shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a summary judgment motion, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50.

  Title VII makes it unlawful for an employer to discriminate against an individual on the basis of race or sex. 42 U.S.C. § 2000e-2(a). The CAA applies several anti-discrimination laws, including Title VII, to the legislative branch of the federal government. Reynolds v. U.S. Capitol Police Bd., 357 F. Supp. 2d 2, 9 (D.D.C. 2004).

  Where, as here, the record contains no direct evidence of discrimination,*fn5 the court employs a burden-shifting framework adapted from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). First, to make a prima facie case of racial discrimination under Title VII, plaintiffs must show that (1) they belong to a protected class; (2) they suffered an adverse employment action; and (3) the adverse action gives rise to an inference of discrimination. Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). Next, if plaintiffs successfully establish a prima facie case of discrimination, the burden shifts to USCP to assert a "legitimate, non-discriminatory reason" for the adverse action. McDonnell Douglas, 411 U.S. at 802. Plaintiffs must then demonstrate that USCP's asserted explanation is in reality "a pretext for discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). In a case of alleged discrimination in violation of Title VII, the court "must apply strictly the standards for summary judgment because `discriminatory intent and proof of disparate treatment are notoriously difficult to establish.'" Teneyck v. Omni Shoreham Hotel, 224 F. Supp. 2d 43, 47 (D.D.C. 2002) (quoting Ross v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994), aff'd per curiam, No. 95-5080, 1995 WL 791567 (D.C. Cir. Dec. 7, 1995)).

  B. Prima Facie Case

  In this circuit, denial of a monetary award has been held to constitute an adverse employment action for purposes of Title VII. See Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001) ("a bonus is a tangible, quantifiable award" with a "direct, measurable, and immediate effect"). Since, as African-American women, plaintiffs are members of a class of persons protected by Title VII, it is undisputed that they have made out the first two elements of their prima facie case. USCP argues, however, that they fail to establish the third element of their prima facie case, because they are not similarly situated to Dewayne Chamberlain, their white co-worker who did receive the merit increase.*fn6 Specifically, USCP argues that because Chamberlain worked as a purchasing agent rather than as an accountant, and because he reported to a different first-line supervisor than plaintiffs, he cannot be a valid comparator for purposes of plaintiffs' discrimination claim. See Def.'s Reply at 3-4. Plaintiffs respond that like Chamberlain, plaintiffs were nominated for a merit increase award; that the same supervisor denied plaintiffs' nominations and approved Chamberlain's; that while plaintiffs and Chamberlain "did not perform identical job functions," they worked within the same office, "performing financial support tasks" for USCP, and were all non-supervisory employees under the same second-line supervisor. Pls.' Sur-reply at 5. Plaintiffs are correct that for purposes of establishing a prima facie case, they "need not show identical circumstances with [their] comparator in all pertinent respects. It suffice[s] to show that the plaintiff[s] and the comparator were `similarly situated in all material respects' — not in all respects." Willingham v. Ashcroft, 226 F.R.D. 57, 62 (D.D.C. 2005) (quoting McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) (internal citation omitted)); see also Anderson v. WBMG-42, 253 F.3d 561, (11th Cir. 2001) (plaintiffs similarly situated to comparator when they "fell within the primary responsibility of one middle manager and the same supervisory chain of command.") Accordingly, plaintiffs have brought forward a prima facie case of race-based discrimination.*fn7

  USCP also asks the court to find that plaintiffs were not similarly situated to Chamberlain on the basis of three additional factors: chain of command issues, Chamberlain's extraordinary contributions to USCP, and Jablonicky's stated concerns with Wilson's performance. Although USCP raises these issues for the purpose of showing that plaintiffs are not similarly situated to Chamberlain, they are more ...

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