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Black v. Tomlinson

March 31, 2006


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


On December 16, 2002, plaintiff Dawn A. Black filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that her former employer, the United States Information Agency ("USIA"),*fn1 engaged in retaliatory nonselection and other adverse actions following her pursuit of gender discrimination claims against the agency. Before the Court is defendant's Motion for Summary Judgment. For the reasons explained herein, the Court will grant the motion.


Plaintiff began her work as a graphic artist in the USIA Office of Cuba Broadcasting's TV Marti unit in 1991 and was promoted to the position of Art Director (TV Production Specialist), GS-13, in 1995. (Pl.'s Ex. 5 (Black Affidavit); Def.'s Statement of Mat. Facts as to Which There is No Genuine Issue ¶¶ 1-2 ("Def.'s Stmt."); Compl. ¶¶ 1-2, 5.) Soon thereafter, Congress appropriated funds for the relocation of Cuba broadcasting operations from Washington, D.C. to Miami, Florida. (Def.'s Stmt. ¶ 3.) See Omnibus Consolidated Rescissions and Appropriations Act, Pub. L. No. 104-134, 110 Stat. 1321-43 (1996). In a June 14, 1996 canvass letter, USIA Director of Personnel and Administration Eva Jane Fritzman notified Office employees of the dates of the impending move and indicated that each would receive "a formal offer of transfer to Florida in the official position and grade/step . . . occup[ied] at the time of transfer." (Pl.'s Ex. 2.) Fritzman also noted the agency's "commit[ment]" to those unwilling or unable to make the move, stating that it would "help[] . . . employees locate new jobs and . . . consider them for vacancies which occur in the International Broadcasting Bureau and USIA, including unannounced vacancies." (Id.) Plaintiff gave an equivocal response to the letter's request for a non-binding relocation decision, indicating that while she was interested in remaining in the District of Columbia, a number of factors -- "location, expenses, married couples" and others -- made it premature to decide at that time. (Id.)

Ultimately, for reasons the parties dispute, plaintiff elected to remain in Washington, declining the agency's May 22, 1998 offer of a Miami position "at the same title, series, grade, status and organizational unit as the position [she] currently occup[ied] as documented in [her] Official Personnel Folder." See Black v. Tomlinson, No. 00-cv-3036, at 3 (D.D.C. Sep. 23, 2002) (CKK) (Mem. Op.). In a December 21, 2000 lawsuit, Black alleged that she had been subject to sexual harassment and a hostile work environment while employed at TV Marti, and as a result, she was constructively discharged. Id. at 1. Black complained that employees within the Office's Technical Operations Division -- two managers in particular -- consistently treated her differently on the basis of her sex, resulting in a hostile work environment. Id. at 5. In support of her hostile environment and constructive discharge claims, she further contended that the agency had failed to offer her an equivalent management position in Miami due to its refusal to correct records in her Official Personnel Folder that classified her as a bargaining unit member instead of as management. Id. at 13. Black's claims were ultimately dismissed on summary judgment in a September 22, 2002 Memorandum Opinion, in which the Honorable Colleen Kollar-Kotelly concluded that the agency's failure to correct her personnel file prior to relocation did not amount to an adverse employment action, that she had not demonstrated aggravating circumstances in support of her constructive discharge claim, and that she had otherwise failed to exhaust administrative remedies. Id. at 16-19.

Black was separated from the agency on September 22, 1998, under general reduction-in-force procedures. (Pl.'s Exs. 3 and 4.) Under the terms of her separation, plaintiff was allowed two years' placement on the agency's reemployment priority list ("RPL"), a "mechanism . . . use[d] to give reemployment consideration to . . . former competitive service employees separated by reduction in force." See 5 C.F.R. § 330.201(a). As provided in the regulations governing RPLs, Black's listing entitled her to "priority consideration over certain outside job applicants," and at the agency's discretion, priority over internal candidates. Id. § 330.201(b). (See also Pl.'s Ex. 4; Pl.'s Ex. 24 at 72-74 (Welch deposition); Def.'s Ex. 1 ¶¶ 6-8 & n.3 (White declaration) ("The Agency's RPL was established and administered in accordance with 5 C.F.R. § 330.202."); Def.'s Ex. 2 at 17-21 (Czuczor deposition).) Black completed the required enrollment application only in part, indicating an interest in "any good job to retain salary," responding affirmatively to an inquiry into whether she was under "pay or grade retention," and leaving blank sections addressing other positions she believed herself qualified for, other schedules she was available for, and other areas in which she would be willing to work. (Pl.'s Ex. 4.) See 5 C.F.R. § 330.202(a)(1) ("To be entered on the RPL, an eligible employee . . . must complete an application . . . specify[ing] the conditions under which he or she will accept employment, including grade, occupation, and minimum hours or work per week, in addition to positions at the same representative rate and type of work schedule . . . as the position from which the employee was or will be separated."). Plaintiff never returned to employment with the agency. Though she was referred for two or three interviews during her time on the list,*fn2 she was not offered any of the positions. (See Compl. ¶ 14.) Plaintiff's attempts to obtain an agency position through the standard application process were also unsuccessful. (Id. ¶ 13.)*fn3

A year into her placement on the reemployment priority list, Black concluded that the agency was refusing to offer her positions due to her prior engagement in protected activity. In a September 20, 1999 letter to the USIA's Office of Civil Rights, Black asserted that the agency's continued failure to rehire her despite her qualifications and reemployment priority was a "retaliatory action" stemming from her prior filing of a discrimination suit. (Pl.'s Ex. 10.) The letter concluded with a request to "file a retaliation complaint against USIA personnel." (Id.)

After the EEOC ruled against plaintiff in her initial discrimination case,*fn4 see Black, Civ. No. 00-3036, at 6, the International Broadcasting Bureau's Office of Civil Rights opened an investigation into her second claim:

Whether [Black] ha[d] been retaliated against when, as she alleges, she was not selected and rehired by the Agency based on her placement on the Agency's reemployment priority placement list, her seniority with the Agency, or for any positions for which she applied between September 22, 1998 and September 20, 1999. (Pl.'s Ex. 7 (March 1, 2001 notice of revised claim accepted for investigation).) An Administrative Judge ultimately rejected plaintiff's retaliation claim in an opinion adopted by the agency on September 11, 2002. (Compl. Ex. A at 1.) Plaintiff filed this action on December 16, 2002, contending that defendant's denial of undefined "employment opportunities and other consideration offered to other RIFFed personnel" was unlawful retaliation stemming from plaintiff's June 5, 1998 filing of a formal sex discrimination complaint. (Compl. ¶ 16.) See Black, Civ. No. 00-3036, at 6 (date of formal discrimination complaint filing).


I. Legal Standard Under Title VII: Retaliation

Under the burden-shifting framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), a plaintiff seeking to establish a claim of retaliation under Title VII must demonstrate that she engaged in a statutorily-protected activity, that she suffered an adverse employment action, and that a causal connection exists between the two. Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003). When the plaintiff claims that the retaliation involved a failure to hire through an application process, she must also demonstrate "that [she] applied for an available job . . . and . . . that [she] was qualified for that position," Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 651 (D.C. Cir. 2003), thereby eliminating "'the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.'" Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977)). "If the plaintiff establishes a prima facie case, the employer must then articulate a legitimate, nondiscriminatory reason for its actions. The plaintiff must then demonstrate that the employer's stated reason was pretextual and that the true reason was discriminatory." Taylor, 350 F.3d at 1292 (internal quotations omitted).

"The prima facie case method established in McDonnell Douglas was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.'" United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 709, 715 (1983) (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)). Thus, "[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant." Id.; see also Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1553-54 (D.C. Cir. 1997). The question, in such cases, is whether a reasonable jury could conclude that plaintiff suffered retaliation. See id.; Waterhouse v. District of Columbia, 298 F.3d 989, 993 (D.C. Cir. 2002) (proceeding to the "final question" of whether a reasonable jury could find plaintiff had been unlawfully discriminated against where plaintiff did not argue that defendant had failed to proffer a legitimate reason for the challenged action).

Defendant contends that summary judgment is appropriate on a number of grounds. First, defendant argues that plaintiff is unable to establish a prima facie case of retaliation because the selecting officials were unaware of her prior protected conduct, she was not qualified for the positions at issue, the vacancy alleged did not exist, or the agency cancelled the relevant vacancy announcement. (Def.'s Mem. in Supp. at 5-9.) According to defendant, these and other factors also provide legitimate, nondiscriminatory reasons for the actions at issue, as the agency declined to hire or refer plaintiff for various positions due either to her lack of qualification, the limited range of interest indicated in her RPL application, or its cancellation of the vacancy announcements at issue. (Id. at 9-11.) Finally, defendant contends that plaintiff cannot establish pretext since agency officials provided her with the requisite priority of consideration, the agency did not hire and train other unqualified applicants for positions plaintiff was denied, the selecting officials judged plaintiff's qualifications correctly and did not harbor retaliatory motives, plaintiff was unqualified for many of the contested positions, and plaintiff had indicated a lack of interest in jobs falling below her previous salary grade. (Id. at 11-14.)

II. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute as to a material fact -- one that "might affect the outcome of the suit under the governing law" -- is "genuine" if a reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A moving party is therefore entitled to summary judgment against "a party who fails to make a showing sufficient 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." Waterhouse, 298 F.3d at 992 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

When considering a motion for summary judgment, the Court must draw every justifiable inference in favor of the nonmoving party and accept that party's evidence as true, while abstaining from credibility determinations and any weighing of the evidence. Anderson, 477 U.S. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The non-movant must offer more than unsupported allegations or denials, however -- affidavits or other competent evidence setting forth specific facts on which a reasonable jury could find in her favor are required if summary judgment is to be avoided. Greene v. Dalton, 164 F.3d 671, 674-75 (D.C. Cir. 1999). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998), aff'd, 1999 WL 825425 (D.C. Cir. 1999) (citation omitted).

The procedures governing motions for summary judgment are further defined in this Court's local rules. Under Local Civil Rule 56.1, "[e]ach motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement." Local Civ. R. 56.1. In opposing a motion for summary judgment, a party is accordingly required to file "a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement." Id. The Court is entitled to treat as admitted those facts identified in the moving party's statement and not controverted in that of the non-movant. Id. In conjunction with the filing of a twenty-four page opposition which is often devoid of citations to either the record or controlling authority, plaintiff has provided the Court with a forty-page rambling and disjointed "Statement of Material Facts in Dispute." Plaintiff's statement -- which often consists of nothing more than a summation of Black's deposition testimony and is without any specification of the portions of defendant's statement of facts it purports to contest -- is insufficient under the rules and has complicated the Court's ability to resolve this case expeditiously. The Court has nonetheless reviewed the entire record and has determined that there are no facts in dispute that would preclude the granting of summary judgment.*fn5

III. Nonselection

Though plaintiff's complaint does not reference any of the specific positions which are at issue, eight have been identified by the parties. (See Def.'s Mem. in Supp. at 6-8.) Five of the positions were allegedly denied to plaintiff after she submitted an application through standard procedures: (1) Special Assistant (vacancy announcement B/P-98-68); (2) Staff Assistant, GS- 12/13 (vacancy announcement B/P-98-120); (3) Special Projects Officer, GS-13 (vacancy announcement B/P-99-9); (4) Supervisory TV Broadcast Technician, GS-14 (vacancy announcement B/P-98-21); and (5) Video Production Specialist (vacancy announcement INV-056-98). (See Def.'s Rep. at 2; Pl.'s Ex. 5 at 2 (Black Affidavit).) While there is arguably some disagreement as to one of the positions (see supra note 2), the remaining three appear to have been referred to plaintiff under RPL procedures: (6) TV Production Specialist, GS-9/11 (vacancy announcement B/P-99-184); (7) Radio Production Specialist, GS-12 (vacancy announcement B/P-99-14); and (8) TV Broadcast Technician (vacancy announcement B/P-99-53). (See Def.'s Response to Pl.'s Stmt. ¶ 132 (asserting that plaintiff was referred for three positions under RPL procedures); Pl.'s Stmt. ¶ 132 (asserting that plaintiff was only referred for the TV Production Specialist (B/P-99-184) and Radio Production Specialist (B/P-99-14) positions under the RPL); but see Pl's Ex. 5 at 3 (plaintiff's affidavit indicating that she was contacted for three positions, including that of TV Broadcast Technician (B/P-99-53)); ...

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