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Simmons v. Cox

July 12, 2007


The opinion of the court was delivered by: Royce C. Lamberth United States District Judge,


This matter comes before the Court on defendant's Motion [23] for Summary Judgment. Defendant seeks summary judgment on plaintiff's race and gender discrimination claims and plaintiff's retaliation claim which were brought under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-16, 2000e-3(a)(2006). Having considered defendant's motion [26], plaintiff's opposition [31], defendant's reply [33], the entire record herein, and the applicable law, the Court grants defendant's Motion [23] for Summary Judgment.


A. Plaintiff's Employment at the SEC

Plaintiff, an African-American woman, was hired by defendant Securities and Exchange Commission ("SEC ") as a GS-4 Clerk Typist in 1988. (Compl. ¶ 6.) Plaintiff excelled in her work and received several promotions. (Id. ¶¶ 8, 9, 11.) By the spring of 1997, plaintiff was a GS-7 Securities Compliance Technician in the Office of Compliance Inspections and Examinations. (Id. ¶ 11.) Then, in 2000, she applied to be a GS-9 paralegal specialist in the Division of Corporation Finance. (Def.'s Mot. Summ. J. Ex.2 ¶ 7.)

The GS-9 paralegal specialist position for which Plaintiff' applied was newly created, and the SEC advertised several openings. (Def.'s Mot. Summ. J. Ex. 2 ¶ 4.) Herbert Scholl ("Scholl") selected plaintiff to fill one of these vacancies. (Pl.'s Opp'n Ex. 44.) At the same time, he filled the two remaining vacancies with Karlene Reid and Cynthia Brooks, who are also African-American females. (Def.'s Mot. Summ. J. Ex. 6 at 13.) Scholl became the first line supervisor for all three paralegal specialists. (Def.'s Mot. Summ. J. Ex. 3 at 104-05.)

Plaintiff's primary task as a paralegal specialist was to process Freedom of Information Act ("FOIA") requests. (Pl.'s Opp'n Ex. 3 at 3.) In addition, plaintiff processed confidential treatment requests ("CTRs"). (Id.) For both tasks, plaintiff had to submit her work for review by a senior staff member in the office. (Pl.'s Opp'n at 5; Def.'s Mot. Summ. J. Ex. 3 at 121.) Richard Landy ("Landy") reviewed plaintiff's FOIA requests and Jacob Fein-Helfman ("FeinHelfman") reviewed her CTRs. (Compl. ¶ 20.) Later, during plaintiff's two performance improvement plans, Scholl became the primary reviewer of plaintiff's work. (See Def. Mot. Summ. J. Ex. 8 at 138.)

Plaintiff passed her first performance review as a GS-9 paralegal specialist for the period of August 27, 2000 through April 30, 2001. (See Pl.'s Opp'n at 7; Def.'s Mot. Summ. J. Ex. 12.) Scholl, however, provided feedback discussing areas in which plaintiff needed to improve. (Def.'s Mot. Summ. J. Ex. 12 .) Specifically, Scholl stated that plaintiff's "transition from a clerical to a paralegal position is not complete." (Id.) To complete the transition, Scholl wrote that plaintiff needed to improver her communication skills, professionalism, and analytical skills pertaining to business and corporate finance. (Id.)

Following plaintiff's first review, plaintiff maintains that she performed at a satisfactory level. (Pl.'s Opp'n at 10; Compl. ¶ 23.) However, Landy and Fein-Helfman, the primary reviewers of plaintiff's work, frequently found fault with her work and conveyed this to Scholl.*fn1

(See Def.'s Mot. Summ. J. at Exs. 13-16). Even when plaintiff received positive feedback, extensive revisions were often necessary.*fn2 (See Pl.'s Opp'n Ex. 28). As a result, in July 2002, upon consideration of the feedback of Landy and Fein-Helfman and his own observations, Scholl failed plaintiff for her performance period from March 2001 to April 2002. (Def.'s Mot. Summ. J. Ex. 17.) Specifically, Scholl failed plaintiff in three critical areas of her review: technical proficiency, analytical ability, and communication skills. (Id.) To improve plaintiff's performance, Scholl placed plaintiff on her first performance improvement plan ("PIP I"). (Def.'s Mot. Summ. J. Ex. 10.) Plaintiff had ninety days to improver her performance in the three areas in which she failed. (Id.)

Prior to her failed evaluation, however, plaintiff had her first confrontation with Scholl after she corrected an error which Scholl made on a CTR. (Pl.'s Opp'n Ex. 2 ¶ 7.) Plaintiff's professional relationship with Scholl then began to deteriorate, and in the summer of 2002, plaintiff told Scholl that if he did not treat her better, she would take him to court for his disparate treatment of her as an African-American woman with a college degree. (Id. at 13-14; Def.'s Mot. Summ. J. Ex. 3 at 145-47.) Plaintiff, however, did not file a formal complaint alleging discrimination until March 4, 2005. (Def.'s Mot. Summ. J. Ex. 42.)

During her PIP I, plaintiff alleges that she performed satisfactorily. (Compl. ¶ 38.) Scholl was plaintiff's primary reviewer, and he disagreed. (Def.'s Mot. Summ. J. Ex 8 at 138.) After reviewing her work, he did not think that she improved her performance to a satisfactory level. (Def.'s Mot Summ. J. Ex. 2 ¶ 19.) Consequently, Scholl failed plaintiff for her PIP I period and proposed that plaintiff should be demoted from a paralegal specialist, SK-9, to a paralegal specialist, SK-7. (Pl.'s Opp'n at 19; Def.'s Mot. Summ. J. Ex. 19.) Through her union, plaintiff unsuccessfully challenged the demotion, but she did not allege that Scholl discriminated against her. (Pl.'s Opp'n at 20; Def.'s Mot. Summ. J. Exs. 20, 21.)

Following plaintiff's demotion, her supervisors adjusted her workload and assigned her tasks more suitable for her current level. (Def.'s Mot. Summ J. Ex. 4 at 11-12.) Plaintiff maintains that she performed this work at an adequate level. (Compl. ¶¶ 46, 53.) Her supervisors, however, thought that she still had difficulty performing her work at an acceptable level. (See Def.'s Mot. Summ. J. Exs. 26-30.) As a result, Scholl rated her performance unacceptable and placed plaintiff on her second performance improvement plan ("PIP II") on June 24, 2004. (Def.'s Mot. Summ. J. Ex. 31; Def.'s Mot. Summ. J. Ex. 11.) Plaintiff had sixty days to improve her performance in the areas of knowledge of her field, execution of duties, and communications. (Def.'s Mot. Summ. J. Ex. 11.) Moreover, PIP II provided plaintiff with detailed procedures for how to improve performance. (See id. at 5.)

During PIP II, plaintiff contends that she continued to work at an adequate level. (Pl's Opp'n at 24; Def.'s Mot. Summ. J. Ex. 36 ΒΆΒΆ 38, 39.) Scholl, however, did not see improvement in plaintiff's work. (Def.'s Mot. Summ. J. Ex. 32.) He found plaintiff's performance unacceptable, and on November 1, 2004, he recommended her removal from the SEC. (Id.) In the proposed removal, he provided thirteen separate items demonstrating plaintiff's failure to improve her performance. (Id.) Plaintiff responded in writing with over thirty exhibits to refute Scholl's claims of her unacceptable performance. (Pl.'s Opp'n at 26; Def.'s Mot. Summ. J. Ex. 36.) After carefully reviewing both parties' evidence, Alan Beller, the deciding official, found that nine of the thirteen ...

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