The opinion of the court was delivered by: John D. Bates United States District Judge
Defendant's motion for summary judgment in this employment-discrimination action requires the Court to determine whether there is sufficient evidence from which a reasonable jury could conclude, first, that plaintiff -- a former employee of the United States Department of Commerce -- suffered objectively tangible harm as a result of either of two challenged personnel actions and, second, that one or both of those personnel actions was done, at least in part, because of plaintiff's sex or because she had engaged in protected activity by filing a sex-discrimination claim. The motion also seeks partial summary judgment on plaintiff's claim that she was forced to resign because of the combined effect of the personnel actions and defendant's contemporaneous decisions to reject plaintiff's requests for paid medical leave and place her on leave without pay. Having carefully reviewed the entire record, the Court concludes, for the reasons that follow, that plaintiff has come forward with sufficient evidence to allow this case to proceed on her claims of sex discrimination and retaliation, but that defendant is entitled to partial summary judgment on the issue of constructive discharge.
Until the events that gave rise to this action, plaintiff Carol Kalinoski had served for nearly eight years as the Chairman of the Operating Committee on Export Policy ("Operating Committee") of the Bureau of Industry and Security ("BIS") of the United States Department of Commerce. In that position, she oversaw the activities of the Operating Committee, an interagency body created by executive order to resolve disputes between and among the Departments of Commerce, Energy, Defense, State, and Justice regarding licenses for the export of goods, technology, and data that have both civilian and military uses.
The Chairman of the Operating Committee holds a senior, supervisory position within the Office of the Assistant Secretary of Commerce for Export Administration. In 2003, when the relevant events occurred, plaintiff's immediate superior was Matthew Borman, the Deputy Assistant Secretary for Export Administration, her second-line supervisor was James Jochum, the Assistant Secretary for Export Administration, and her third-line supervisor was Kenneth Juster, the Undersecretary for Industry and Security, which is the highest position within the BIS.
As Operating Committee Chairman, plaintiff had significant contact with presidentially appointed policy-makers across the government and served as a principal adviser to senior Commerce Department officials on issues related to the licensing of so-called "dual use" materials and technology. Plaintiff represented the Department of Commerce in fact-finding missions overseas and in conferences with officials of foreign governments. She also served as the executive secretary of the Advisory Committee on Export Policy and the Export Administration Review Board, which have authority to review Operating Committee decisions.
Plaintiff, a lawyer, first began working at the Department of Commerce in 1990. She was elevated to Acting Chairman of the Operating Committee in 1995 and was competitively appointed to that position on a permanent basis in 1998. Shortly thereafter, she was promoted to the GS-15 salary level. During plaintiff's tenure as Chairman, her supervisors regularly rated her performance as "outstanding," and, in recognition of her performance, she received several cash awards. On March 23, 2003, with the approval of defendant, plaintiff commenced a four-month unpaid educational leave to complete her thesis for a Master of Laws degree. In her absence, defendant appointed David Flynn, who then held a position at the GS-14 level, to serve as Acting Chairman of the Operating Committee.
On July 21, 2003, two days before the anticipated end of her educational leave, plaintiff met Mr. Borman for lunch, at which time he advised her that she would not return as Chairman of the Operating Committee and that she would be reassigned to a newly created position within the Office of Exporter Services, under the supervision of the office director, Eileen Albanese. The new position, Export Policy Analyst, was to have a pay grade of GS-15, like that of the Operating Committee Chairman, but would involve different responsibilities. Plaintiff immediately expressed to Mr. Borman her objection to the reassignment. Following the meeting, defendant formally reassigned plaintiff from the position of Operating Committee Chairman to the position of Export Policy Analyst.
On July 29, plaintiff sent an e-mail to Mr. Borman, with copies to Mr. Jochum and Mr. Juster, requesting that he reconsider the reassignment or, in the alternative, "attempt to identify another reassignment in the federal civil service which is comparable to [plaintiff's] former position and is career enhancing." Def.'s Ex. 19. Mr. Borman's reply, sent the same day, indicated that he would not reconsider plaintiff's removal as Operating Committee Chairman but that he was "open to hearing about" plaintiff's counterproposal. Def.'s Ex. 20.
Plaintiff alleges that, as a result of defendant's actions in reassigning her, she immediately began to suffer from depression and extreme anxiety. On July 30, plaintiff requested that defendant permit her to use accrued medical leave through August 1. Def.'s Ex. 37. Mr. Borman approved that request and subsequently approved requests by plaintiff to use medical leave through August 15. Id. On August 20, Ms. Albanese (who was plaintiff's supervisor of record) sent a letter to plaintiff stating that plaintiff's request for medical leave from August 16 through August 22 would not be approved without more detailed medical documentation. Id. Eventually that leave was approved, as were subsequent requests for paid medical leave through October 4.*fn3 Effective October 5, 2003, defendant designated plaintiff as absent without leave. Defendant acknowledges that "Plaintiff had a positive sick leave balance at the time she was placed in leave without pay status." Answer ¶ 42.
During the period that plaintiff was on medical leave, defendant issued a vacancy announcement for the position of Operating Committee Chairman. Plaintiff timely applied for the position. Under the competitive evaluation criteria established by Mr. Borman for the vacancy, plaintiff received the highest rating of any applicant for the position (a perfect 100%) and interviewed with Mr. Borman for the position. Plaintiff contends that, during that interview, Mr. Borman attempted to discuss the status of a proposal by plaintiff that, in lieu of the reassignment as Export Policy Analyst, defendant put her on a detail to the Office of the Undersecretary of Defense.
On or about October 31, 2003, plaintiff learned that defendant had chosen Mr. Flynn for the position of Operating Committee Chairman. That same day, Ms. Albanese sent plaintiff a letter that rejected a request for medical leave for the period of October 20 through October 31, citing the recommendation of the Commerce Department's Medical Officer, Dr. Reginald Wills. Def.'s Ex. 39. By letter dated November 7, 2003, plaintiff resigned from the Department of Commerce. Her letter to Secretary Donald Evans stated that she felt "compelled to resign" because she believed "BIS management ha[d] forced me out of the federal civil service, for discriminatory reasons, without retirement benefits." Def.'s Ex. 48.
Plaintiff initiated informal contact with the Commerce Department's Office of Civil Rights regarding her involuntary reassignment on August 8, 2003. On October 1, she filed a formal administrative complaint asserting sex discrimination and stated in her complaint that she would consider denial of her application for the position of Operating Committee Chairman to be discriminatory or retaliatory. Def.'s Ex. 46. By letter dated February 11, 2004, plaintiff requested that the Office of Civil Rights further investigate her assertion that she was constructively discharged. Pl.'s Ex. 13. Nancy McNamara, the chief of the compliance division of the Office of Civil Rights, accepted the request as an amendment to plaintiff's administrative complaint on February 19, 2004. Pl.'s Ex. 14. The investigator assigned to plaintiff's complaint issued a report of his factual findings on March 24, 2004. Pl.'s Ex. 15. Four months later, on July 16, 2004, plaintiff filed this civil action. At that time, the Department of Commerce had not taken any final action with regard to plaintiff's administrative complaint.
Title VII of the Civil Rights Act of 1964, as amended, forbids federal agencies from making employment decisions on the basis of sex. See 42 U.S.C. § 2000e-16. It further prohibits agencies from retaliating against employees for the assertion of their rights under Title VII. See 42 U.S.C. § 2000e-3(a) (prohibiting discrimination against an employee because the employee "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]"); Rochon v. Gonzales, 438 F.3d 1211, 1216 (D.C. Cir. 2006) (concluding that section 2000e-3(a) applies to federal employment actions through the language of 42 U.S.C. § 2000e-16). Where, as in this case, there is no direct evidence of unlawful discrimination, courts apply the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny.
Pursuant to McDonnell Douglas, the plaintiff, as an initial matter, has the burden of establishing a prima facie case of discrimination by a preponderance of the evidence. Id. at 802; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case of unlawful discrimination under Title VII, a plaintiff must demonstrate (1) that she is a member of a protected class; (2) that she suffered an adverse employment action (that is, an action that results in "objectively tangible harm," Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)); and (3) that the unfavorable action occurred under circumstances that give rise to an inference of discrimination. Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); Brody, 199 F.3d at 452. To establish a prima facie case of unlawful retaliation under Title VII, a plaintiff must show (1) that she engaged in a protected activity, (2) that she subsequently was subjected to an adverse action by her employer, and (3) that there was a causal connection between the two events. Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985); Childers v. Slater, 44 F. Supp. 2d 8, 18-19 (D.D.C. 1999). The fact that plaintiff engaged in protected activity is not in dispute here. A prima facie case creates a rebuttable presumption of discrimination or retaliation.
Once a Title VII plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The employer's burden, however, is merely one of production. The employer "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine, 450 U.S. at 254-55. Doing so removes any presumption of discrimination or retaliation created by the prima facie case.
If the defendant employer has produced sufficient evidence of a nondiscriminatory justification for its actions (and, notwithstanding plaintiff's assertion to the contrary at the motions hearing, it does not take much evidence to do so), the burden of production shifts back to the plaintiff to show that the employer's stated reason was a pretext for discrimination or retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). "[T]he sole remaining issue [is] discrimination vel non. At this point, to survive summary judgment 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." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003).
As with all motions for summary judgment, the Court must assume the truth of the non-moving party's factual statements (at least as to facts other than the ultimate issue) and the Court must draw all evidentiary inferences in favor of the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court, however, need not accept as true "conclusory allegations lacking any factual basis in the record." See Hussain v. Nicholson, 435 F.3d 359, 365 (D.C. Cir. 2006). But the party opposing summary judgment (here, the plaintiff) must establish more than the "mere existence of a scintilla of evidence" in support of its position. Anderson, 477 U.S. at 252. Indeed, the movant may succeed on summary judgment by pointing to the absence of evidence proffered by the non-moving party. "If the [non-movant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50. In short, summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
Here, then, plaintiff, as the non-moving party, must offer evidence from which a jury could reasonably conclude that she was the victim of intentional discrimination or retaliation. One way in which she can do that is by producing evidence that tends to show that "the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256. But "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination." Reeves, 530 U.S. at 147. Thus, the trier of fact also may "consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom ... on the issue of whether the defendant's explanation is pretextual.'" Id. (quoting Burdine, 450 U.S. at 255 n.10).
"Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors ... includ[ing] the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Reeves, 530 U.S. at 148-49. As the D.C. Circuit has explained:
Assuming then that the employer has met its burden of producing a nondiscriminatory reason for its actions, the focus of proceedings at trial (and at summary judgment) will be on whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment).
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc); see also Waterhouse v. Dist. of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002).
Plaintiff in this case alleges two distinct -- though closely intertwined -- adverse employment actions: (1) involuntary reassignment to a new position and (2) non-selection for the position she previously held. Plaintiff further alleges two unlawful motives for those actions: (1) sex discrimination, as to the first and second actions, and (2) retaliation for protected activity, as to the second action only. Ultimately, the question for the Court in resolving defendant's summary judgment motion is whether a reasonable jury could conclude that any of the Commerce Department's proffered explanations for these actions are pretextual and thereby infer unlawful discrimination or retaliation. The motion for summary judgment also asserts that plaintiff may not claim that the allegedly unlawful personnel actions, along with the subsequent denial of plaintiff's request to use accrued medical leave, amounted to a constructive discharge.
A. Involuntary Reassignment (Sex Discrimination)
With respect to plaintiff's initial reassignment, defendant argues that it is entitled to summary judgment for two principal reasons: first, that no reasonable jury could conclude that plaintiff suffered an adverse employment action when she was reassigned from the position of Operating Committee Chairman to the position of Export Policy Analyst, and, second, that there is insufficient evidence from which a jury could reasonably conclude that plaintiff's sex was a reason for the reassignment.
1. Plaintiff's reassignment may be an actionable adverse action
In Brody, the D.C. Circuit said that "[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." 199 F.3d at 456 (emphasis supplied). The court of appeals went on to say that "[a] plaintiff who is made to undertake ... a lateral transfer" -- that is, a reassignment in which she suffers no diminution in pay or benefits -- can maintain a cause of action under Title VII if she has endured "materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm." Id. at 457. In Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003), the D.C. Circuit reiterated the principle it had articulated in Brody: "[W]hile generally lateral transfers, or the denial of them, [will] not be considered adverse employment actions, there are circumstances where they [may] be." And in the very recent case of Holcomb v. Powell, the court found such circumstances, holding that a Title VII plaintiff had ...