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Richardson v. Gutierrez

February 26, 2007


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


Plaintiff has sued the secretary of the Department of Commerce ("DOC") for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e--2000e-17 (2006) ("Title VII"), and for violation of the Family and Medical Leave Act of 1993 ("FMLA"), § 105(a)(1), 29 U.S.C. § 2615(a)(1) (2006). The matter comes before the Court on defendant's "Motion to Dismiss and for Summary Judgment." Because plaintiff has abandoned her FMLA claim (see Opp. at 1 n.1), defendant's motion to dismiss that claim will be granted. See Fed. R. Civ. P. 41(b). For the reasons stated herein, defendant's motion for summary judgment on plaintiff's retaliation claim will be denied without prejudice.


Plaintiff is an African-American female who, in February 2005, was laterally transferred from her GS-14-equivalent position as a security specialist for the Department of Homeland Security to a GS-15-equivalent position as assistant director of the Counterespionage Division within the DOC's Office of Security ("OSY"). (See Am. Cmpl. ¶ 4; Def.'s Stmt. ¶ 5 & n.3; Pl.'s Stmt. ¶ 1.) Plaintiff was interviewed for her new position by David Bell and Robert Page.

(Def.'s Stmt. ¶ 4.) She was selected based on Bell's recommendation to Richard Yamamoto, OSY's director of security. (Id.)

According to plaintiff, although Yamamoto "seemed supportive at first," he soon began to "undermine[] her authority" in various ways. (Opp. at 32; accord Am. Cmpl. ¶ 14; Pl.'s Stmt. ¶ 4.) In response, plaintiff contacted Bernadette Worthy, an equal employment opportunity ("EEO") counselor, to complain that "she was being subjected to a pattern of discriminatory treatment" based on her race and gender. (Pl.'s Ex. 5 at 1; accord Am. Cmpl. ¶ 19.) Construing the record in the light most favorable to plaintiff, plaintiff's initial contact with Worthy may have occurred as early as June 6, 2005. (See, e.g., Pl.'s Ex. 5 at 1 (stating that plaintiff contacted Worthy with concerns of discrimination on June 6, 2005); Pl.'s Stmt. ¶ 10 (same); Opp. at 9 (same). But see Pl.'s Ex. 5 at 1 (summary of plaintiff's EEO activity listing her "initial contact" as June 20, 2005); Def.'s Ex. 18 at 19 ("On June 20, 2005, [plaintiff] initially contacted the Office of Civil Rights with [her] concerns of workplace discrimination."); accord Def.'s Ex. 29 at 1; Am. Cmpl. ¶ 19.)

On June 20, 2005, plaintiff requested alternative dispute resolution ("ADR"). (E.g., Pl.'s Ex. 5 at 2.) On that same date, Worthy informed Yamamoto of plaintiff's EEO concerns and request for ADR. (Id.) One week later, Yamamoto "acknowledged the request and referred [Worthy] to . . . Bell . . . to discuss possible resolution." (Id.) On July 5, 2005, OSY authorized Worthy to make plaintiff an offer of resolution. (Id.) The next day, plaintiff declined OSY's offer and asked to move forward with the EEO process. (Id.)

Five days later, on July 11, 2005, Bell conducted a mid-term counseling session with plaintiff in which plaintiff received an unfavorable review. (See, e.g., Def.'s Ex. 1 ["Yamamoto Decl."] at 52 (attaching Bell's assessment of plaintiff's performance deficiencies); Pl.'s Stmt. ¶ 11 ("[O]n July 11, 2005, management gave Ms. Richardson a less than favorable review . . . .").) Bell also informed plaintiff that, for a period of 120 days, she would be reassigned from her position as assistant director of the Counter Espionage Division to the position of "special projects officer." (See Am. Cmpl. ¶ 22; Def.'s Stmt. ¶ 26.)

Plaintiff's new position had no formal job description. (See, e.g., Pl.'s Ex. 1 at 19 ("I was never provided any written duty description."); Pl.'s Ex. 5 at 3 (stating that plaintiff was given no specified duties).) However, defendant does not contest that plaintiff was deprived of all supervisory authority and was instead given responsibility for discrete projects. (See, e.g., Def.'s Stmt. ¶ 26 ("[Plaintiff] was assigned special projects including a declassification project and the Homeland Security Presidential Directive (HSPD)-12 project."); Reply at 3 (emphasizing that plaintiff was "not permanently stripped of her supervisory duties," but never arguing that plaintiff retained management authority).) Furthermore, the parties agree that, although plaintiff did not suffer any loss of pay, grade, or benefits, some of her new responsibilities had previously been assigned to lower-level employees. (See, e.g., Pl.'s Ex. 1 at 18 ("[My new duties] were the duties of [a] failed . . . GS-12 Information Security Specialist[] and . . . a GS-14 Information Security Manager . . . ."); Am. Cmpl. ¶ 26 ("The Agency also assigned Ms. Richardson the job duties of a GS-11 and GS-12 . . . ."); Reply at 3 ("Plaintiff's detail did involve, in part, the performance of certain duties that had previously been assigned to GS-12 and GS-13 employees . . . .").)Also, plaintiff was required to vacate her office and move to an office that had previously been occupied by a GS-14 equivalent. (E.g., Def.'s Stmt. ¶ 29.)

Based on her reassignment, plaintiff amended her pending EEO complaint to include a claim of retaliation. (See Def.'s Ex. 18 at 23.) On August 8, 2005, plaintiff filed a formal EEO complaint. (E.g., Am. Cmpl. ¶ 38.) The DOC's Office of Civil Rights rejected plaintiff's claims on December 21, 2005. (See Def.'s Ex.29 at 37.)

Plaintiff filed her original complaint in this Court on March 20, 2006, and her amended complaint on May 18, 2006.Before any discovery was conducted, defendant filed the instant motion. Plaintiff has filed an opposition, as well as an affidavit pursuant to Federal Rule of Civil Procedure 56(f).


I. Standard of Review

Under Rule 56, a motion for summary judgment must be granted if the pleadings and evidence on file show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). To survive summary judgment, the non-movant must provide evidence that would permit a reasonable jury to find in his favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In considering a motion for summary judgment, "[t]he ...

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