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Sewell v. Chao

February 1, 2008


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


Plaintiff Audrey L. Sewell has sued the Secretary of the Department of Labor ("DOL"), alleging that DOL discriminated against her on the basis of her age; subjected her to a hostile work environment; retaliated against her for filing union grievances and an EEO complaint; and constructively discharged her in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 633a, et. seq. ("ADEA").*fn1 Defendant has filed a motion for summary judgment which, for the reasons stated herein, will be granted.


Plaintiff's employment with DOL began in 1972. (Def.'s Stmt of Material Facts Not in Dispute ["Def.'s Stmt"] ¶ 1; Compl. ¶ 6.) In 1997, plaintiff started working for the Division of Financial Management ("DFM"), Office of Administration and Planning ("OMAP"), Employment Standards Administration ("ESA"). (Def.'s Stmt ¶ 2; Compl. ¶ 6.) From approximately 2000 to 2005, plaintiff "performed numerous financially analytical duties." (Def's Stmt ¶ 5.)

Around 1997, Patricia Vastano joined DOL as the Director of the Strategic Planning Division. (Opp'n 2.) According to plaintiff, "[a]lmost immediately Vastano's enmity toward [plaintiff] surfaced." (Id.) On one occasion, early after Vastano arrived, plaintiff suggested to Vastano that she contact the employees responsible for setting up computers if she wanted her computer moved off the floor. Plaintiff alleges that Vastano "asked [her] why couldn't [plaintiff] get down there and do that." (Def.'s Ex. 2 at 36.) On another occasion, plaintiff explained to Vastano that she couldn't assist her in ordering desk supplies because of the other demands on her time. Vastano responded that "your kind shouldn't be in any position . . . ." (Id. at 37.) Plaintiff complained to her supervisor, Cecily Rayburn, and the harassment ceased (Id. at 2-3.) Vastano's behavior began again after Rayburn left DFM and was replaced by Gary Thayer, but stopped after plaintiff again complained to Thayer. (Id. at 3.)

In early 2000, Anne Baird-Bridges joined DOL as OMAP's director (Pl.'s Ex. B [Baird-Bridges Deposition] at 16-20), and sometime thereafter Vastano became her Deputy Director. (Id. at 25-27.) In May 2002, when Thayer left DOL, Vastano became acting director for DFM and plaintiff's direct supervisor. (Pl.'s Opp'n 3; Pl.'s Ex. C [Baird-Bridges EEO Aff.] ¶ 4.) Plaintiff alleges that "within days" of Vastano's appointment, the harassment began again. (Pl.'s Opp'n 3; Def.'s Ex. 2 [Sewell Deposition] at 41-42.) On one occasion, Vastano observed plaintiff having trouble walking because of her arthritis and said "[O]h, you're having trouble walking today? Why don't you just retire?" (Id. at 44.) Plaintiff also alleges that Vastano improperly revised the performance appraisal Thayer had prepared for plaintiff before he left and that Vastano refused to timely approve a leave request that she submitted. (Id. at 50, 57, 60-61.)

In 2003, Yoko Albarak was hired as director of DFM. (Def.'s Ex. 2 at 39-40, 51.) Plaintiff explains that although Vastano continued to make "snide" comments urging her to retire, plaintiff was able to ignore her. (Id. at 42.) In January 2004, Janet Hogler took over the position of DFM director, but left six months later. (Id.) After her departure, Baird-Bridges took over as acting director of DFM and became plaintiff's direct supervisor. (Id. at 84; Pl.'s Ex. B at 24-25.) In November 2004, plaintiff complained to Baird-Bridges about Vastano's treatment of her, but received no response. (Id. at 58.)

On December 27, 2004, Vastano, while acting as OMAP director during Baird-Bridge's absence, issued a letter of reprimand citing plaintiff for insubordination based on an email exchange in which plaintiff accused Vastano of lying, harassment, and racism. (Pl.'s Ex. E [Letter of Reprimand].) The final paragraph of the letter stated that "[t]his reprimand not only outlines the intolerable behavior, but also serves as a warning to you that any repeat of similar outbursts and insubordination will result in disciplinary action up to and including removal." (Id. at 2.) Plaintiff protested the reprimand, and on December 17, 2004, filed a union grievance against Vastano, in which plaintiff alleged that she had been a victim of race and age discrimination. (Def.'s Ex. 2 at 41; Pl.'s Ex. G [Grievance Form against Vastano].) On December 20, 2004, plaintiff filed a union grievance against Baird-Bridges alleging that Baird-Bridges had fostered a hostile work environment and discriminated against plaintiff on the basis of her age. (Def.'s Ex. 2 at 57; Pl.'s Ex. H [Grievance Form against Baird-Bridges].)

On March 9, 2005, Baird-Bridge met with plaintiff and her union representative, Linda Copening, to discuss plaintiff's complaint against Vastano. (Pl.'s Ex. A ¶ 8; Pl.'s Ex. C ¶ 4.) The following day, Baird-Bridges sent plaintiff an email to set up a meeting to discuss plaintiff's fiscal year 2004-2005 performance standards. (Pl.'s Ex. A ¶ 8.) The email explained that she wanted to bring plaintiff "up to date" on her specific job responsibilities and ensure that the standards were accurate. (Id.) The meeting was held on March 14, 2005, with Copening in attendance.*fn2 (Id.) At the meeting, Baird-Bridges assigned plaintiff two new responsibilities -- the detail fund report and the space rent report (id.) -- both of which were listed in her existing job description.*fn3 Plaintiff told Baird-Bridges that she was not familiar with these reports. Baird-Bridges responded that George Baily, a private contractor who had been working on the detail fund report, and Vincente Sanabria, a GS-13 budget analyst who had been preparing the space rent report, would train her. (Pl.'s Ex. A at 9.)

Shortly after the meeting, plaintiff approached Baily. (Id.) Baily gave plaintiff some brief training on the detail fund report, which plaintiff did not need since she had assisted with its preparation in the past.*fn4 (Def.'s Ex. 2 at 64-65.) Plaintiff also approached Sanabria about the new assignment and training, but found that Sanabria had not yet been told about the reassignment. (Pl.'s Ex. A ¶ 9.) Plaintiff assumed that her supervisor would coordinate a training schedule and did not pursue the issue any further either with Sanabria or Baird-Bridges. (Def.'s Ex. 2 at 79-84.) She did not approach Baird-Bridges because she was afraid of her temper based on two prior incidents. (Id. at 88.) In August 2004, plaintiff overheard an altercation between Baird-Bridges and another employee, Charlotte Jenkins, during which she heard Jenkins "screaming for [Baird-Bridges] to let go of her arm." (Def.'s Ex. 2 at 88-89; Pl.'s Ex. B at 37-39). A few months later, in November 2004, plaintiff went to Baird-Bridges's door to ask her a question and found her standing at her desk with her back to the door. When plaintiff started to ask her a question, Baird-Bridges turned with her fists at her side and glared. (Id. at 89-92.)

On March 16, 2005, Baird-Bridges issued a step 2 ruling upholding the reprimand, in which she found that plaintiff had failed to demonstrate discrimination or harassment. (Pl.'s Ex. L [Step 2 Decision].) Baird-Bridges denied plaintiff's request that any contact with Vastano be eliminated and refused to order any change in the organizational structure. (Id. at 2.) On April 7, 2005, Local 12 invoked arbitration on plaintiff's reprimand grievance. (Pl.'s Ex. M [Letter from Alex Bastani to Sandy Keppley].)

On April 8, 2005, Baird-Bridges approached plaintiff to complain about her failure to send a "return receipt" email regarding an upcoming meeting. (Id. at 93-94.) Plaintiff alleges that Baird-Bridges yelled at her and called her "Missy." (Id. at 94.) She claims that she feared Baird-Bridges was going to slap her in the face. (Id. at 98.) On April 15, 2005, plaintiff met with Lillian Winstead, EEO Coordinator of Counselors in the Civil Rights Center, about this incident. (Pl.'s Ex. A ¶ 6.)

On Sunday, April 17, 2005, Baird-Bridges sent an email to plaintiff, Sanabria, and DFM clerk Bettye Keller scheduling a meeting for the morning of Monday, April 18, 2005. (Def.'s Ex. 2 at 99; Pl.'s Ex. S [Email from Baird-Bridges].) Copening was copied on the email, and Baird-Bridges left her a voice mail on her home phone about the upcoming meeting. (Pl.'s Ex. B at 128.) Prior to going to the scheduled meeting on Monday, April 18, plaintiff filed her informal complaint of harassment and age discrimination against Baird-Bridges based on the confrontation on April 8 about the email return receipt. (Pl.'s Ex. T [Informal Complaint of Discrimination].) Baird-Bridges, Vastano, and Charlene Dunn, OMAP's Director of Budget Formulation and Implementation ("Budget"), were present at the meeting, along with plaintiff, Sanabria, and Keller. (Def.'s Ex. 2 at 99.) Plaintiff, Sanabria, and Keller requested union representation, which was denied. (Pl.'s Ex. B at 101.) Each of them was given a transfer memorandum from Baird-Bridges. Plaintiff and Keller were reassigned from DFM to Budget and Sanabria was reassigned to Accounting. (Def.'s Ex. 2 at 100-01.) Plaintiff's transfer did not change her grade level or her job description, nor was she required to change work spaces. (Id. at 101.) All of the employees were unhappy about the transfers. (Pl.'s Ex. B at 102.)

On May 4, 2005, plaintiff had her first meeting with Dunn as her direct supervisor. (Def.'s Ex. 2 at 108-09.) Dunn had requested that plaintiff bring with her a list of her current duties. (Pl.'s Ex. A ¶ 10.) Baird-Bridges joined the meeting and reiterated that plaintiff's duties would remain in line with her job description. (Id.) Baird-Bridges then left the meeting, and Dunn gave plaintiff her performance standards. (Id.) Plaintiff claims that "the sole specific item on the standard was the space rent report" and the rest of the standards were unspecific and vague. (Opp'n 13; see also Pl.'s Ex. A ¶ 10.) When plaintiff complained to Dunn that she had not been trained to complete the report, Dunn replied that plaintiff should go tell Sanabria that she needed to be trained and that if Sanabria refused, plaintiff should report back to her. (Pl.'s Ex. A ¶¶ 10-12.) Plaintiff asked Sanabria about scheduling training sessions, but he responded that he was very busy. (Id. ¶ 12.) Plaintiff did not tell Dunn about Sanabria's unavailability, because she "was not going to participate directly or in-directly in the harassment of Mr. Sanabria." (Id. ¶ 14.)

On May 9, 2005, Dunn gave plaintiff a new assignment, which was formulating the Agency Object Class Request Budget Exhibit for the congressional budget. (Id. ¶ 13.) Plaintiff told Dunn that she had never worked on a budget formulation and asked whether she should take a budget formulation course. (Id.) Dunn agreed that a course would be beneficial but maintained that there was inadequate time for it. (Id.) She provided plaintiff with a 4-inch briefing book instead. (Id.) Plaintiff was not able to figure out how to prepare the exhibit from the book. (Id.) Plaintiff believed that she was being "set up to fail" and "wondered why Ms. Dunn was participating in Ms. Baird-Bridges['s] campaign of harassment against [her] . . . ." (Id.)

On May 17, 2005, Sanabria emailed plaintiff to request that her supervisor coordinate training with his supervisor. (Def.'s Ex. 2 at 111-12.) Plaintiff replied to Sanabria, agreeing with his proposal, and copied Dunn on the email. (Pl.'s Ex. AA [Emails Between Sanabria and Sewell].) Dunn did not respond. (Def.'s Ex. 2 at 121.) On May 23, 2005, plaintiff filed a formal complaint of discrimination protesting Baird-Bridge's treatment of her during the confrontation on April 8, 2005. (Pl.'s Ex. BB [Formal Complaint].)

In early June, Sanabria approached plaintiff to schedule a training time. (Def.'s Ex. 2 at 118.) They agreed to meet on June 10. (Id. at 119.) On June 7, 2005, plaintiff received a call at home from Dunn on her "flex" day. Dunn asked plaintiff about the status of the space rent report. (Id. at 119-21.) Plaintiff told Dunn that she had not yet been trained and reminded Dunn that she had not responded to the email from Sanabria. (Id. at 121.) She informed Dunn that she felt that Dunn and the new senior budget analyst, Kimberly Bassett, were harassing Sanabria and that she refused to participate in it. (Id.) Plaintiff explained that she and Sanabria were scheduled to meet on June 10 (id. at 122), and she told Dunn that it was "inappropriate" to hold her accountable for the space rent report before she had been trained. Plaintiff told Dunn that ...

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