The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
This case involves an employment dispute against the Federal Deposit Insurance Corporation ("FDIC") in which the Plaintiff, an African American female, alleges that she was subject to a hostile work environment based on her race, was denied a pay raise based on her race, and was retaliated against after engaging in protected EEO activity. Am. Compl. ¶¶ 20-25. She brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII"). Pending before the Court is Defendant's Motion for Summary Judgment. Upon consideration of the Motion, the response and reply thereto, the applicable law and the entire record, the Court GRANTS IN PART AND DENIES IN PART Defendant's motion.
Plaintiff is a 47-year-old African American female currently employed by the FDIC. She began working at the FDIC as a Grade 5 secretary in 1990 and has worked her way up to become a Grade 12 Management Analyst. Pl.'s Opp'n at 2. In 1996, Plaintiff joined the Management Support Section ("MSS") of the Management Services Branch ("MSB") within the Division of Administration ("DOA").
Id. From 2000 to 2006, she served as a Grade 12 Management Analyst. Her first line supervisor was a Mr. Bendler (head of MSS) and his superior was a Mr. Sherman (head of MSB). Id. at 3. Ms. Upton Kea is the Director of the Division that includes MSB. Def.'s Mot. at 5.
In 2004, Plaintiff's first-line supervisor, Mr. Bendler, determined that some of the work being done by the four Grade 12 Management Analysts could be considered Grade 13 work. Bendler Dep. 32:15-22, March 15, 2007. After conferring with the Human Resources Department ("HR"), he decided to create two Grade 13 analyst positions. Id. at 54:10-15. The position announcements were posted in late 2003. Plaintiff applied for the position, as did the other three Grade 12 analysts in MSS and 3 other candidates from other FDIC branches. All seven candidates were considered "best qualified" and were forwarded by HR to Mr. Bendler to schedule first round interviews. Id. at 135:19-20. Mr. Bendler selected a panel of three non-MSS Grade 14 employees to conduct the structured first round interview. During the first round interview, all candidates were asked the same questions. Def.'s Mot. at 4.
In between the time applications were due and interviews were conducted, Ms. Brownfield's sister became terminally ill and eventually passed away. Brownfield Aff. I p. 4, August 9, 2005. Ms. Brownfield was out of the office when the first interviews were held. Mr. Bendler and Mr. Sherman requested a special extension from HR so that the roster could be held open another thirty days so Ms. Brownfield could interview for the position. Bendler Dep. 64:20-65:8. Two weeks after returning from leave, Plaintiff participated in the same structured interview before the same panel that had evaluated the other candidates. Brownfield Aff. I p. 4. By her own admission, she did not perform well, and she was not referred on to the second round. Id. at 4,6. Plaintiff's three Grade 12 co-workers (two Caucasian, one Asian) and one other candidate (African American) from another FDIC branch were referred to the second round interviews with Mr. Bendler and Mr. Sherman. Though there were only two positions originally announced, all three of the Grade 12 analysts from MSS were promoted to Grade 13. Bendler Dep. 56:2-11. Consequently, Plaintiff became the only Grade 12 left in her section. Of the seven candidates who applied for the promotion, the four that were rejected were African American. Pl.'s Opp'n at 6.
Plaintiff learned of her non-selection in March 2004. She contends that all the Grade 12 employees could have been promoted if Mr. Bendler had wanted to promote them. Relying on the opinion of the FDIC HR specialist, Plaintiff argues that Mr. Bendler could have asked HR to do a "desk audit" of all the Grade 12 employees and subsequently promoted them all non-competitively if HR determined they were all doing Grade 13 work. Id. at 4. Plaintiff argues that this was likely because her colleagues did not experience any change in job duties after being promoted to Grade 13. Id. Plaintiff argues that Mr. Bendler's decision to compete the Grade 13 positions evidences a policy of refusing to promote African Americans above Grade 12. Plaintiff points to the fact that of the 27 employees in the MSB, only three are Grade 12 employees and they are all African American. All higher graded employees are white or Asian. Am. Compl. ¶ 14.
In December 2004, Plaintiff learned her position had been placed on the "surplus list" which meant it would be eliminated as part of a downsizing effort in August 2006. Id. ¶ 14. Plaintiff's position was the only one of the eight within MSS to be designated as surplus, though it was one of 130 within the overall division. Def.'s Mot. at 5. Plaintiff contends that the surplus decision was race-based because she was the only African American employee in her section and the only one to have her position eliminated. Am. Compl. ¶ 11. She was also the most senior employee in the MSS. Bendler Dep. 157:11-16. Defendant counters that the FDIC's downsizing effort had been going on for years, that the changes in the banking industry necessitated a leaner workforce and that Plaintiff's work had been drying up slowly over the past years such that her position could not be justified.
After the promotion denial and the scheduled elimination of her position, Plaintiff stopped speaking to most of her co-workers and to MSS management. Def.'s Mot. at 5. As a result, Mr. Bendler sent her a "counseling email" on January 25, 2005, attempting to "start a healthy dialogue" about the communication problems they were having and get 2005 off on a "better foot." Ms. Brownfield considered the email to be the "start of a derogatory file on her," though the email clearly stated it would not be included in any personnel file. Def.'s Mot., Ex. 17.
In February 2005, Plaintiff was informed that she had been placed into Group V, the lowest group, in the FDIC's Contribution for Compensation (CBC) program. Am. Compl. ¶ 17. The program grouped all non-bargaining unit FDIC employees into five categories based on their overall contributions to the corporation over the previous year and provided varying pay increases based upon group placement. Def.'s Reply at 5. Employees in Group I received the highest raise while those placed in Group V did not receive any pay raise from the CBC pool. Plaintiff contends that her placement in Group V was "part of a scheme to discriminate against Plaintiff and create a hostile work environment for her at FDIC so she would leave the organization." Am. Compl. ¶ 18. She also alleges that the denial of the pay raise is "separately actionable as a blatant act of race-based discrimination." Id. Plaintiff argues that she has properly raised an inference of discrimination because she was the only person in her section who did not get a raise that year, while all of her non-African American colleagues were given raises "based in part on her own work." Id.
Defendant argues that Plaintiff's non-selection for the Grade 13 promotion, the placement of her position on the surplus list, and the January 25 "counseling email" may not be pursued as individual claims due to failure to exhaust her administrative remedies. Def.'s Mot. at 8. Plaintiff does not dispute this. However, this information may be considered as "background information" to support her discrimination claim. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Accordingly, the Court considers those incidents as "background" to her properly ...