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Kilby-Robb v. Spellings

November 23, 2007


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Patricia Kilby-Robb, a GS-13 employee of the United States Department of Education, brings this action against Margaret Spellings in her official capacity as the Secretary of Education. Plaintiff claims she was subjected to race and gender discrimination in the terms, conditions, and privileges of her employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, plaintiff alleges that: (1) she performed the duties of a grade 14 employee without additional compensation or promotion; (2) she received an erroneously low performance evaluation; and (3) she was subjected to a hostile work environment. Currently before the Court is defendant's motion for summary judgment, which the Court now grants in its entirety.


Plaintiff is an African-American female who is currently employed as an Education Program Specialist, grade 13, step 10, at the U.S. Department of Education ("DOE"). Statement of Undisp. Facts ("Statement") ¶ 1. From 2001 to 2002, plaintiff worked at DOE as a member of the Parental and Local Family Information Centers ("PIRC") team, which resided in the Office of Elementary and Secondary Education ("OESE"). Pl.'s Opp. ¶¶ 2, 9. The PIRC team consisted of Rachel Couch (GS-12), plaintiff (GS-13), and the Team Leader, Daisy Greenfield (GS-14), an African-American female. Def.'s Mot. at 7.

In December 2002, a new office was created within DOE: the Office of Innovation and Improvement ("OII"). Statement ¶ 2. At that time, the PIRC team function was transferred to the jurisdiction of OII's Parental Options and Information ("POI") area, headed by John Fiegel (GS-15), and the membership of the PIRC team changed slightly. Id. ¶ 3. The members of the PIRC team in OII were James Guitard (GS-12), Rachel Couch (GS-12), and plaintiff (GS-13). Pl.'s Opp. ¶ 18. Greenfield maintained her grade 14 position in OESE and did not transfer to OII. Statement ¶ 6; Def.'s Ex. 5, Dep. of John Fiegel ("Fiegel Dep.") 15:13-15. Since Greenfield was no longer the PIRC Team Leader, the PIRC team initially faced a "leadership vacuum" until plaintiff and Steven Brockhouse (GS-15) took over Greenfield's former PIRC responsibilities. Def.'s Mot. at 8. In particular, Brockhouse, Deputy Director of POI, assumed Greenfield's supervisory role and became responsible for the day-to-day activities of the PIRC team while plaintiff was asked to take on the duties of Acting Team Leader. Def.'s Ex. 5, Fiegel Dep. 16:13-18, 17:5-10; Statement ¶ 6.

When plaintiff accepted the Acting Team Leader position, she claims that she was required to perform grade 14 duties in addition to her regular grade 13 duties. Pl.'s Opp. ¶ 17. According to plaintiff, Fiegel told her the PIRC Team Leader position would eventually be announced as a grade 14 position and that he would request grade 14 compensation for plaintiff while she held the position in an acting capacity. Id. ¶¶ 22, 39.

Fiegel denies telling plaintiff he would request grade 14 compensation for her as Acting Team Leader, although he admits that he hoped eventually to advertise a new grade 14 position in the PIRC program if funding became available. Def.'s Ex. 7, John Fiegel's Statement and Resp. to Interrogs. ("Fiegel Statement") ¶¶ 8, 13. Ultimately, no funding materialized, and no position was advertised. Id. Instead, DOE merged the PIRC team with the Magnet Schools team and placed both teams under the leadership of Brockhouse. Pl.'s Ex. Z, Dep. of Donna Hoblit ("Hoblit Dep.") 24:4-19.

At the start of the calendar year in 2003, DOE adopted a new appraisal performance system, changing from a pass/fail rating system to one that used a rating scale of unacceptable, minimally successful, successful, highly successful, and outstanding. Def.'s Mot. at 9. The initial rating period was a transitional one of only 120 days -- covering January 1, 2003, through April 30, 2003. Id. In preparation for the evaluation process, plaintiff began assembling a list of her accomplishments, but she was unable to complete her list before she took time off due to the illness and death of her father. Pl.'s Opp. ¶ 31. Plaintiff later became ill herself in April 2003, was diagnosed with hyperthyroidism, and underwent treatment for her condition. Id.

When plaintiff met with Brockhouse and Fiegel in June 2003 to discuss her performance evaluation, she was issued a "successful" performance rating. Def.'s Ex. 12, Kilby-Robb Performance Evaluation at 3. Plaintiff was apparently devastated at this result and immediately expressed her disappointment and belief that the rating was too low. Plaintiff left the meeting distraught and refused to sign her evaluation. Pl.'s Opp. ¶ 40. During this first rating period,"outstanding" evaluations were given to three individuals (two Caucasian males and one African-American female); "highly successful" evaluations were given to four individuals (one Caucasian female and three Caucasian males); and "successful" evaluations were given to seven individuals, including plaintiff (four African-American females, one African-American male, and two Caucasian females). Def.'s Ex. 7, Fiegel Statement ¶ 7.

Shortly thereafter, plaintiff was out of the office for a period of time to attend the PIRC institute. Pl.'s Opp. ¶ 41. During her absence, plaintiff referred all of her calls and e-mails to Brockhouse without telling him she had done so. Id. Upon her return to the office, Brockhouse sent plaintiff an e-mail stating as follows: "I am writing to advise you that the action you took -- to refer all of your telephone calls and e-mail messages to me without prior consultation regarding alternative[s] that were available for handling this work during your absence -- represents very poor judgment and constitutes unsatisfactory performance with respect to both effective communication and working cooperatively to achieve the goals of the organization." Pl.'s Ex. B, Investigation Report, Brockhouse E-mail at 42. Brockhouse then requested plaintiff consult with him prior to leaving referral messages in the future. Id.

Around this time in June 2003, plaintiff claims Fiegel told her that he was not going to submit the paperwork requesting that she be promoted or compensated at the grade 14 level. Pl.'s Opp. ¶ 42. Plaintiff thereafter sought EEO counseling on July 26, 2003, regarding her 2003 performance appraisal, her claim of non-sexual harassment, and her claim that she was performing grade 14 duties without being properly compensated. Def.'s Ex. 15, Counselor's Report at 1-2.

In August 2003, plaintiff submitted an application for telework and requested a computer to work from home. Pl.'s Opp. ¶ 43. Margo Anderson, the OII Executive Officer, reviewed plaintiff's request for a computer and denied it based upon DOE's policy and economic considerations. Def.'s Ex. 9, Dec. of Margo Koines Anderson ("Anderson Dec.") at 4-5.

According to Anderson, plaintiff did not indicate that her desire to obtain a computer for telework was "part of or for a reasonable accommodation request as to any particular, identifiable disability." Id. at 4. Plaintiff "was allowed to take some time off and was told by her supervisor at the time, John Fiegel, to take more time off if she wished, but she declined to do so." Id.

On November 24, 2003, plaintiff filed a formal EEO complaint of discrimination. Def.'s Ex. 16. In her complaint, she alleged discrimination based upon her 2003 performance evaluation and her claim that she was performing grade 14 duties without proper compensation. Id. Plaintiff also alleged that she was subjected to a hostile work environment when she did not receive a grade 14 position description, when her request for a computer was denied, when she was told that she had exercised poor judgment in failing to sign her performance evaluation, when she was told that her supervisor of record was not who she previously thought it was, and when she did not have the opportunity to have a follow up progress review conference with management. Id.

Although DOE claims plaintiff was only the Acting Team Leader from January through April 2003, plaintiff continued to call herself the Acting Team Leader until February 2005. Def.'s Ex. 5, Fiegel Dep. 14:5-20. Around that time, plaintiff sent an e-mail to seven people addressing them as the "PIRC TEAM." Pl.'s Ex. V, Kilby-Robb E-mail at 1. In that e-mail, plaintiff indicated she would be hand-delivering draft copies of a report and that she would provide additional information at a meeting scheduled for the next day. Id. In plaintiff's signature block, she identified herself as the Acting PIRC Team Leader. Id. In response, Brockhouse sent an e-mail to plaintiff expressing his frustration with her action of amending a meeting agenda without permission to do so. In his e-mail Brockhouse clearly stated: "There is no 'PIRC TEAM.'" "You are not serving in the role of acting team leader. Your position description does not and has not included a 'team leader' addendum and you are not detailed, delegated or assigned such responsibilities." Id.

Nine months later, on November 23, 2005, plaintiff filed the instant action alleging that DOE discriminated against her by failing to promote her or compensate her at the grade 14 level and by giving her an improperly low performance evaluation. Plaintiff also asserted that she had been subjected to a hostile work environment. DOE has moved for summary judgment, arguing that plaintiff was never given grade-controlling duties that warranted promotion or compensation at the grade 14 level, that plaintiff's performance evaluation was legitimate and nondiscriminatory, and that plaintiff's hostile work environment allegations, "even if true, hardly constitute the kind of pervasive intimidation, ridicule and insult that must be shown to sustain a hostile work environment claim." Def.'s Mot. at 3-4. The Court agrees that summary judgment for DOE is warranted on plaintiff's disparate treatment and hostile work environment claims.


I. Summary Judgment Standard

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact."

Id. (quoting Fed. R. Civ. P. 56(c)).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). 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.

II. The McDonnell Douglas Framework

Plaintiff claims discrimination under Title VII, which makes it unlawful for a federal government employer to discriminate "based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). The Court analyzes plaintiff"s disparate treatment and hostile work environment claims under Title VII pursuant to the familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, a plaintiff 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). In order to make out a prima facie case of discrimination, a plaintiff must show that "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable 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)). If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The employer's ...

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