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United States District Court for the District of Columbia

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 properly construed as the legitimate, non-discriminatory reasons USCP proffers for denying plaintiffs the merit increases.

  C. Legitimate, Non-Discriminatory Reasons

  1. Chain of Command

  USCP first argues that "unlike [p]laintiffs, the documentation and paperwork in support of Mr. Chamberlain's award nomination was submitted up the chain of command, and was properly supported." Def.'s Mot. for Summ. J. at 38. To support this contention, USCP provides testimony that Chamberlain's first-line supervisor, Mary Noll, submitted award nomination paperwork on Chamberlain's behalf to Jablonicky, the second-line supervisor.*fn8 In contrast, Warren submitted plaintiffs' award nominations paperwork not to Jablonicky, but directly to McWilliam. Some time after receiving plaintiffs' award nominations from Warren, McWilliam drafted a memo on March 5, 2002 to Jablonicky, stating that the recommendations "are returned for further justification," namely information on plaintiffs' work performance from fiscal year 2001 and the beginning of fiscal year 2002. Pls.' Opp'n, Ex. 13. McWilliam testified that he "was returning [plaintiffs' award nominations] so [they] would come back through the chain of command with further justification if they felt it was necessary — if they felt it was justified." McWilliam Dep. at 41. In discussing why plaintiffs were not recommended for merit increases, Jablonicky testified that

[t]here were a couple — one of the issues is the chain of command issue. [Plaintiffs' award nomination] documents were not submitted through the appropriate chain of command, and the documents came back to me with a memo from Mr. McWilliam that requested further justification, and no further justification was provided.
Jablonicky Dep. (May 14, 2004) at 80. Plaintiffs, however, assert that Jablonicky herself directed Warren to bypass her and address the award nominations directly with McWilliam.*fn9 Warren testified that she "talked with Maryjean about the recommendation. I also e-mailed her notifying her about the recommendation," and "Mrs. Jablonicky advised me that she was not there during the time — part of the time of this recommendation and that she wanted me to send it to Mr. McWilliam, who had the full authority to approve or disapprove the recommendation . . . And she asked me to send it directly to Mr. McWilliam for review," Warren Dep. at 186. Warren testified that in providing the award nominations to McWilliam, she "did exactly what [Jablonicky] told me to do." Id. at 196. If plaintiffs are correct, USCP cannot rely on Warren's supposed violation of the chain-of-command because in bypassing Jablonicky, Warren was allegedly following Jablonicky's direct instructions.

  USCP asserts that in urging Warren to consult with McWilliam, Jablonicky had in mind a different award, see Jablonicky Dep. (May 14, 2004) at 147, not a monetary merit increase but a non-monetary recognition consisting of "a ribbon and a certificate." Wilson Dep. at 82; see Def.'s Mot. for Summ. J., Ex. 13. Jablonicky testified that she had "asked [Warren] to discuss the administrative services award, the content, with Mr. McWilliam . . . what would apply to the chief administrative officer offices would be an administrative services award." Jablonicky Dep. (May 14, 2004) at 146. Warren, however, testified that she "had discussed the awards with Maryjean prior to this memo. And I indicated that I wanted to give them monetary awards." Warren Dep. at 188.

  USCP further argues that Warren's apparent violation of the chain of command, rather than unlawful discrimination, played a role in Jablonicky's decision not to recommend them for the awards. Plaintiffs, however, claim that Jablonicky never raised the chain of command issue when she discussed the award nominations with Warren. Pls.' Sur-reply at 1. Rather, when Jablonicky called Warren in for a meeting to discuss plaintiffs' award nominations on March 7 or 8, 2002,*fn10 Jablonicky "began by telling [Warren] that she had received back [Warren's] recommendation package from John, that she would not approve Ava and Peggy for monetary awards, and that she had only approved non-monetary awards for them." Warren Aff. ¶ 17.

  Finally, Jablonicky justifies her refusal to consider plaintiffs for the merit increases because on the grounds that McWilliam stated he required more information about plaintiffs' work accomplishments, "Ms. Warren never provided additional information to me." Jablonicky Dep. (May 14, 2004) at 158. Plaintiffs assert that in fact, Jablonicky failed to tell Warren that McWilliam had sent the nominations back for additional information, and actually obstructed Warren's inquiry into McWilliam's decisionmaking; Warren testified that "I asked Mrs. Jablonicky after her trance-like state if I could see Mr. McWilliam's package. And she refused to give it to me. . . . Had I known anything that was required, I would have been glad to add it on." Warren Dep. at 215; see also Warren Aff. ¶¶ 17-19. Jablonicky admitted that "I don't recall whether I gave her a copy of the package . . . I do recall that in the end, I had the document and that Ms. Warren had asked for it back at one point." Jablonicky Dep. (May 14, 2004) at 144. Because plaintiffs contradict USCP's proffered chain of command explanations, it thus remains in dispute whether the chain of command issue was a legitimate ground for denial of the award nominations or a pretextual explanation developed after-the-fact.

  2. Chamberlain's `Extraordinary Effort'

  USCP next argues that in contrast to plaintiffs, Chamberlain expended "extraordinary effort" "during the aftermath of the September 11, 2001 incident and the October 2001 anthrax attacks." Def.'s Mot. for Summ. J. at 38. On February 15, 2002, Jablonicky submitted a memo to McWilliam requesting a two-step merit increase for Chamberlain on the basis of his "sustained, exceptional performance," mentioning in particular his willingness to work "12 hour days and 6 day weeks," and his role as a "liason [sic] between the Incident Team and the Department." Def.'s Mot. for Summ. J., Ex. 2H. McWilliam, who approved Chamberlain's award, stated that while "I can't give a specific incident that he did," Chamberlain "was performing at a much higher level than he was graded at." McWilliam Dep. at 46, 73.

  USCP contends that plaintiffs, in contrast, did nothing above and beyond their regular job duties in the period of time following the 9/11 terrorist attack. For example, Jablonicky testified that "Kay Benner had talked to me regarding her displeasure at the lack of helpfulness of my staff, particularly Vonnie [Hattie Lucas], Peggy, Ava, and I believe Carol, in providing assistance when it was needed."*fn11 Jablonicky Dep. (May 14, 2004) at 116-17. Both Wilson and Johnson admitted that they did not work "12 hour days and 6 days a week" in the period immediately after the 9/11 terrorist attack, see Wilson Dep. at 225, Johnson Dep. at 186.

  USCP argues that "based upon the criteria used by Ms. Jablonicky — usefulness in the wake of the 9/11 and anthrax incidents — [p]laintiffs did not make an `extraordinary' contribution to the Department and they were entitled to a merit increase award," Def.'s Reply at 8. The court is not aware of any record evidence, however, which supports the first part of this assertion.

  Plaintiffs claim that their award nominations were based on the criteria outlined in a "Bulletin Board Notice" issued by USCP on January 25, 2002. Pls.' Opp'n, Ex. 15. The notice calls for award nominations, in eleven categories, for accomplishments from the 2001 calendar year, and outlines procedures for submitting nominations. USCP asserts that the governing criteria for the awards at issue are instead contained in a "Capitol Board Resolution for Unified Schedules of Rates of Basic Pay for Members and Civilian Employees of the United States Capitol Police." Def.'s Mot. for Summ. J., Ex. 6. The relevant subsection provides that "[u]pon approval of the Chief of Police or his or her designee, a one-step increase may be provided to a civilian employee for meritorious service and a two-step increase may be awarded for extraordinary contributions or performance. The criteria for meritorious service and extraordinary contributions or performance will be determined by the Chief of Police or his or her designee." Id. at 4. Although the record remains unclear which criteria were applied, or should have been applied, to plaintiffs' award nominations, neither standard provides that "usefulness in the wake of the 9/11 and anthrax incidents" is the determinant of whether a USCP employee should receive a monetary bonus. Likewise, there is no testimony that has been brought to the court's attention indicating that this is the standard Jablonicky subsequently devised or actually applied. On the related question of overtime, although Jablonicky testified that "[o]vertime and a significant amount of work time was used to justify an increase for Mr. Chamberlain," Jablonicky Dep. (May 14, 2004) at 166, she stated that she "didn't know" if overtime or work schedules were "an issue with respect to the recommended merit increases for plaintiffs," id. In the absence of record evidence as to the criteria applied in making the award decisions, plaintiffs have raised a dispute of material fact sufficient to show pretext, precluding summary judgment.

  3. Wilson's Performance/Johnson's Absence

  USCP next attempts to distinguish Chamberlain from plaintiff Wilson on the grounds that Jablonicky had "serious concerns regarding [Wilson's] work performance." Def.'s Mot. for Summ. J. at 42. Specifically, Jablonicky allegedly was dissatisfied with a report that Wilson had been assigned to prepare (the "SEP Report"), and she "indicated to Ms. Warren that [Jablonicky] had performance issues, of which [Warren] was aware, with Ms. Wilson's work." Jablonicky Dep. (May 14, 2004) at 150.

  To bolster its claim that Jablonicky had legitimate, non-discriminatory reasons for denying plaintiffs the merit increases, USCP proffers a trio of memoranda which Jablonicky allegedly wrote "to file" in February and March 2002. Def.'s Mot. for Summ. J., Ex. 2F. In the first, dated February 15, 2002, Jablonicky noted various deficiencies in Wilson's work on the SEP report, and stated that she "informed Ms. Wilson that her work was sloppy and unacceptable." Id. at 1. Jablonicky also wrote that she spoke with Warren about Wilson's shortcomings on the report, and "indicated to Carol that I did not believe Peggy was performing up to the level of her position." Id. at 2. In the second memo, dated March 1, 2002, Jablonicky wrote that she met with Warren and Wilson that same day to discuss the status of the report. At the meeting, Jablonicky voiced her frustration on various aspects of the report, including updates that Wilson had not made and "[n]umbers which were still not balanced." Id. at 3. In regard to the latter issue, Jablonicky wrote that although Wilson wanted to "write off the difference . . . Carol indicated to me that she did not feel it appropriate to fudge the balance," id. In the final memo, dated March 8, 2002, Jablonicky wrote that she met with Warren the previous day to discuss the award nominations Warren had submitted for plaintiffs, and that among other things Jablonicky told Warren "that I could not authorize merit increases for individuals for whom I had current performance issues." Id. at 5.

  Plaintiffs vigorously dispute that Jablonicky raised any of these concerns with either Wilson or Warren, arguing that "it was not until after [plaintiffs] were recommended for the award [that] Ms. Jablonicky beg[a]n to raise an issue regarding [p]laintiff Wilson's performance with the SEP Report." Pls.' Sur-reply at 9. Wilson admitted having a meeting with Jablonicky and Warren about the SEP Report, but disputed Jablonicky's characterization of that meeting. Specifically, she testified that contrary to Jablonicky's memo "to file," Jablonicky did not tell Wilson to pull procurement documents, and Wilson did not "indicate that she had a lot of work to do and that [she] forgot" to complete specific tasks Jablonicky directed her to perform. Id. at 306. Wilson also contradicted other details of Jablonicky's version of the meeting, testifying that "I don't know how to fudge a number on the report," because "you cannot write-off the difference . . . in order to write-off the difference I have to be able to have the ability to extract whatever the difference is out of the FMS so that the two can agree. And I don't have the ability to do that." Wilson Dep. at 302, 304. Wilson admitted that Jablonicky "did question the delays in the status of the projects." Id. at 308. The fact that Jablonicky had "questions" for Wilson, though, does not necessarily mean that Jablonicky had "performance issues" with her.

  Warren, for her part, disputes that Jablonicky ever called to her attention any problems with Wilson's performance: "Maryjean had not had prior discussions with me about work performance issues concerning Ava or Peggy . . . I was always told by Maryjean how happy she was with the work of accounting." Warren Aff. ¶ 27.

  Finally, as evidence of Jablonicky's concerns with Wilson's performance, USCP offers an e-mail message from Jablonicky to Wilson, dated March 12, 2002. Regarding the SEP Report, Jablonicky mentions "delayed projects," and reminds Wilson that "this is a time sensitive report" which "really needs to be prioritized." Def.'s Reply, Ex. 6. This e-mail, however, post-dates Jablonicky's decision to deny plaintiffs the merit awards, and comes at least four days after the meeting Jablonicky had with Warren to discuss the award nominations. While the e-mail might simply memorialize long-standing concerns Jablonicky had, a jury could instead find it to be an ex post facto justification for a discriminatory act. Because the record is sufficiently ambiguous as to what Jablonicky thought of Wilson's work performance prior to the award denials, summary judgment is inappropriate.

  As to Johnson, USCP argues that she "only worked nine out of twelve months" in 2001, and that McWilliam "considered the information that was actually presented to him . . . and deemed it lacking with respect to information about Ms. Johnson's recent performance." Def.'s Reply at 12. According to plaintiffs, however, even though McWilliam requested additional information, Jablonicky never conveyed this fact to Warren, thus denying her the opportunity to supplement plaintiffs' award nominations. D. Pretext

  Once the defendant articulates legitimate, non-discriminatory reasons for the adverse action, plaintiffs must rebut those explanations, creating a genuine dispute of material fact as to whether they are pretextual. Here, "the issue is not the correctness or desirability of the reasons offered but whether the employer honestly believes in the reason it offers." Fischbach v. D.C. Dep't of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (quotation and alterations omitted). While "an employer's reason need not be false to be proven pretextual," it is also true that "proving that an employer's reason is false will not always be sufficient to demonstrate pretext." George, 407 F.3d at 415.

  There is no single formula plaintiffs must follow to proffer evidence which tends to show that defendant's stated reasons are pretextual. If they can produce evidence that defendant's allegedly non-discriminatory reasons "were after-the-fact justifications, provided subsequent to the beginning of legal action," summary judgment is inappropriate. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000). Plaintiffs may also show pretext by "the ever-changing nature of [defendant's] proffered reasons," Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 285 (3d Cir. 2001). While additional evidence may certainly aid in such a showing, "a plaintiff's discrediting of an employer's stated reason for its employment decision is entitled to considerable weight," and she cannot be required "to submit evidence over and above rebutting the employer's stated explanation in order to avoid summary judgment."*fn12 Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998). As described in Section C above, plaintiffs have pointed to record evidence which contradicts each of USCP's stated legitimate, non-discriminatory reasons for denying them the merit increase awards. "Although a jury may ultimately decide to credit the version of the events described by [USCP] over that offered by [plaintiffs], this is not a basis upon which a court may rest in granting a motion for summary judgment." George, 407 F.3d at 413.


  For the foregoing reasons, the court concludes that USCP's motion to dismiss, or in the alternative for summary judgment must be denied.


  Accordingly, it is this 5th day of July, 2005, hereby

  ORDERED, that USCP's motion for summary judgment is DENIED.

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