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Cooke v. Rosenker

February 27, 2009


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


Plaintiff Marjorie Murtagh Cooke ("Cooke" or "plaintiff") is the former Director of the Office of Marine Safety, the office within the National Transportation Safety Board ("NTSB") that is responsible for investigating marine accidents. Cooke brings this action against defendant Mark Rosenker, in his official capacity as Chairman of the NTSB, alleging that she was retaliated against in violation of the Fair Labor Standards Act. Currently before the Court is the NTSB's motion for summary judgment.*fn1 Cooke opposes the motion, arguing that a reasonable jury could conclude from all of the evidence that she was retaliated against and that there are genuine issues of material fact that preclude summary judgment. Upon careful consideration of the motion, the parties' several memoranda, the applicable law, and the entire record, the Court will grant the NTSB's motion.


The NTSB is an independent federal agency charged with determining the probable cause of transportation accidents and promoting transportation safety. Def.'s Ex. 5. As part of a restructuring that occurred in the late 1990s, the NTSB's Office of Surface Transportation Safety was divided into four separate modal offices: the Office of Highway Safety ("OHS"); the Office of Railroad Safety ("ORS"); the Office of Pipeline and Hazardous Materials Safety ("OPHS"); and the Office of Marine Safety ("OMS"). First Am. Compl. ("Am. Compl.") ¶ 6. ORS and OPHS later merged to form the Office of Railroad, Pipeline, and Hazardous Materials Investigations ("ORPH"). Id. ¶ 7. The surface modal offices, as they are known, conduct investigations of accidents within the NTSB's jurisdiction; prepare reports for submission to the NTSB and release to the public setting forth the facts and circumstances of such accidents, including a recommendation as to the probable cause(s); determine the probable cause(s) of accidents when delegated authority to do so by the NTSB; initiate safety recommendations to prevent future accidents; and conduct special investigations into selected accidents involving safety issues of concern to the NTSB. See 49 C.F.R. § 800.2.

Prior to the NTSB's restructuring, Cooke was the Chief of the Marine Division from 1994 until 1997. When the Marine Division became OMS in 1997, Cooke became the Director of OMS, and she remained in that position until 2005. Am. Compl. ¶ 8. For a period of time after the restructuring, the directors of the surface modal offices were each paid at the same level on the federal government's General Schedule ("GS") scale -- the GS-15 level. Id. ¶ 9; Decl. of Emily Carroll ("Carroll Decl.") ¶ 7. The directors of the surface modal offices report to the NTSB's Managing Director. Dan Campbell was the Managing Director from 2000 until early 2005. See Aff. of Dan Campbell ("Campbell Aff.") at 1. As the Managing Director, Campbell had Senior Executive Service ("SES") status, which entitled him to a higher pay level than the surface modal office directors.*fn2 See Am. Compl. ¶ 9.

According to the NTSB, there was a plan in place to convert each of the surface modal office directors to a SES position. See Aff. of Ellen Engleman Conners ("Conners Aff.") at 3. But converting the director positions from the GS-15 level to the SES level did not occur overnight. To begin with, the number of SES level positions allotted to the NTSB is determined by the Office of Personnel Management ("OPM").*fn3 See id. at 1-2; Carroll Decl. ¶ 3. The NTSB does, however, have discretion regarding how its allotted SES slots are utilized, and when a vacancy occurs in an existing SES position, the NTSB can fill that position or reassign the SES slot to another position within the agency. See Carroll Decl. ¶ 5. Likewise, when the NTSB is allocated a new SES slot by OPM, it can be used to create a new SES level position or to convert an existing non-SES level position to the SES level. See id. ¶ 4. If the NTSB chooses to convert a position to the SES level, then the employee who holds the reclassified position cannot be noncompetitively promoted to the SES position unless that employee previously held a career SES appointment. See OPM Guide to Senior Executive Service Qualifications ("OPM Guide") at 1, 4, available at (last visited Feb. 26, 2009). Therefore, in most instances when the NTSB, or any other agency, seeks to fill a position reclassified to the SES level, it must -- pursuant to OPM regulations -- advertise the position and allow for a competitive recruitment process. See id. at 4. During the process, an agency rating panel reviews and ranks the candidates, and recommends the best qualified candidates to the selecting official -- in this case, the NTSB's Managing Director. The selecting official then must choose the candidate best qualified for the position and submit the candidate's application package to OPM's Qualifications Review Board ("QRB"). The QRB must certify the candidate's qualifications before that individual's appointment to the SES is finalized. See id.

In 2001, a SES position became available within the NTSB, and it was determined that the Director of ORPH would be reclassified to the SES level. See Carroll Decl. ¶ 11. Bob Chipkevich, the incumbent Director of ORPH, was at the GS-15-level and had never held a career SES appointment. Consequently, the NTSB advertised the position and allowed for a competitive recruitment process. After applying for the position, Chipkevich was eventually selected by the NTSB and appointed as the SES level Director of ORPH. See id. ¶¶ 13-14. Two years later, in 2003, a similar sequence of events occurred with regard to the SES reclassification of the Director of OHS. Once another SES spot opened up, it was determined that the Director of OHS would be reclassified as a SES position. See id. ¶ 16. Again, the incumbent Director of OHS, Joe Osterman, was a GS-15 level employee and had never previously held a career SES appointment; hence, the NTSB advertised the position and conducted a competitive recruitment process. See id. Osterman applied for the position, he was selected, and -- after the QRB's certification of his qualifications -- he was appointed as the SES level Director of OHS. See id. ¶ 17.

After Osterman's appointment to a SES position in 2004, the Director of OMS remained as the only surface modal office director categorized as a GS-15 level position, and Cooke became concerned that she was being "paid significantly less than her male counterparts in salary and bonuses." Pl.'s Mem. of P. & A. in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") at 4. Cooke voiced this concern to the NTSB's then-Chairman, Ellen Engleman Conners ("Conners"), in an April 2004 meeting. Cooke testified that at the meeting, "[she] discussed the fact that [she] was not being paid the same as [her] male counterparts." Dep. of Marjorie Murtagh Cooke ("Cooke Dep.") at 48:16-17. Cooke also claims that "she informed Conners that [she] was the only Director of the four modal investigation offices without SES status and that as a result she made substantially less money than all three of her male counterparts -- and she requested equal pay." Pl.'s Opp'n at 4. While Conners testified that she did not recall the precise words used by Cooke in their meeting, she did recall that Cooke "stated that she wasn't an SES, her office wasn't an SES, and she didn't make as much money as the folks who had an SES." Dep. of Ellen Engleman Conners ("Conners Dep.") at 53:20-22. Conners also testified that Cooke requested overtime to "fix" this differential in pay. See id. at 54:2-3, 57:2-12. Following the meeting, Cooke claims that she "made several attempts to meet with Conners to seek her approval for overtime pay in order to remedy the disparity between Cooke's pay and that of her male counterparts, but Conners refused to meet with Cooke to discuss the issue." Am. Compl. ¶ 15. For her part, Conners testified that she "was always accessible" to meet with Cooke, but could not recall why she never did. See Conners Dep. at 72:7-75:4. She also testified that she relayed Cooke's request to Dan Campbell, Cooke's immediate supervisor, and asked him to follow-up on Cooke's request for overtime. See id. at 66:2-68:9, 75:16-76:16. The parties agree that Cooke was never paid overtime.

Shortly after the April 2004 meeting, the NTSB finally received an additional SES slot from OPM, and it was allocated to the OMS Director position. See Def.'s Ex. 14; Carroll Decl. ¶ 18. Because Cooke, as the incumbent Director, had never held a career SES appointment, she could not be noncompetitively promoted to the SES level position. See Def.'s Ex. 16; OPM Guide at 1, 4. Accordingly, in July 2004, the Director of OMS was advertised as a SES position by the NTSB, and the competitive recruitment process began. See Def.'s Ex. 21. Twenty individuals, including Cooke, applied for the position. See Carroll Decl. ¶ 18. Once the applications were received, Collette Magwood, Assistant Director of the NTSB's Human Resources Division, reviewed the qualifications of all applicants and determined that ten, including Cooke, met the minimum qualifications required for the position. Id. These ten applications were then referred to the NTSB's rating panel. In line with OPM procedure, when a SES position is advertised, the NTSB's Managing Director appoints a rating panel composed of 3 to 5 SES members to rate the qualifications of those applicants who, according to Human Resources, meet the minimum qualifications for the position. See OPM Guide at 4; Carroll Decl. ¶ 19. Human Resources provides the panel with a "Rating and Evaluation Plan" that identifies the criteria that the panel must use to rate the qualifications of the applicants. See Def.'s Ex. 23. In this instance, the rating plan listed five Executive Core Qualifications, two Mandatory Professional/Technical Qualifications, and two Desirable Professional/Technical Qualifications. Id. The panel evaluated each applicant's experience, education, and training against the plan and arrived at a consensus rating on each of the qualifications criteria. See Carroll Decl. ¶ 20. For each element, applicants were rated as follows: HQ (Highly Qualified); Q (Qualified); or NQ (Not Qualified). See Def.'s Ex. 23.

Managing Director Campbell appointed a three-person panel to rate the candidates for the OMS Director position. The panel was composed of Ron Battochi, General Counsel, Bob Chipkevich, Director of ORPH, and Elaine Weinstein, Director of Safety Recommendations and Accomplishments. Def.'s Ex. 22. After completing its review, the panel identified the five best qualified candidates for the position and, on December 2, 2004, referred them to Campbell to be considered for selection. Cooke was rated as one of the five best qualified applicants. Id. Soon thereafter, Campbell cancelled the vacancy announcement after he made the decision not to conduct any interviews or make a selection from the group of applicants referred to him by the panel. See Campbell Dep. at 93:14-97:18; Carroll Decl. ¶ 20. According to Campbell, he made such a decision because he was unhappy with the quality of the top five candidates. See Campbell Dep. at 96:7-97:18. Moreover, he believed that "the pool of candidates had been artificially narrowed by [a] rumor that the first announcement had been wired for [the incumbent, Cooke]." Id. at 93:15-94:1.

Within weeks of Campbell's decision to cancel the vacancy announcement, the NTSB re-advertised the SES level OMS Director position in January 2005. See Def.'s Ex. 24. Cooke and nineteen other individuals applied for the position. See Def.'s Ex. 25. Around this time, Cooke contends that she also "filed a sexual discrimination complaint with the NTSB EEO Director on or about February 7, 2005, using the established NTSB protocol for lodging formal complaints of Equal Pay Act violations." Am. Compl. ¶ 20. The NTSB admits that Cooke had a meeting with the Equal Employment Opportunity ("EEO") Director in February 2005, see Answer ¶ 19, but it characterizes the meeting not as a formal complaint, but rather as part of the pre-complaint process mandated by 29 C.F.R. § 1614.105. See Def.'s Reply in Supp. of Mot. for Summ. J. and Mot. to Strike ("Def.'s Reply") at 5-6. In any event, there is no dispute that on April 16, 2005, Cooke filed a formal EEO complaint alleging, inter alia, that she was discriminated against based upon her gender in violation of the Equal Pay Act. Def.'s Ex. 1.

Meanwhile, the competitive recruitment process for the SES level OMS Director position moved forward. The NTSB's Human Resources Division reviewed twenty applications and concluded that fifteen applicants, including Cooke, met the minimum qualifications for the position. See Carroll Decl. ¶ 24. These applications were referred to a new five-person rating panel appointed by Campbell. The second rating panel was composed of two individuals from the original panel, Weinstein and Chipkevich, and three new members, John Clark, Director of OAS, Dr. Vernon Ellingstad, Director of the Office of Research and Engineering, and Joe Osterman, Director of OHS. Def.'s Ex. 25. As with the first panel, the second rating panel reviewed the applicants and ranked them according to the criteria set forth in the "Rating and Evaluation Plan." See Def.'s Ex. 26. At the conclusion of the second panel's evaluation, the five best qualified candidates were referred to Campbell to be considered for selection. See Carroll Decl. ¶ 24. The second rating panel did not rank Cooke among the five best qualified candidates and she was not referred to Campbell for consideration. See id.; Def.'s Ex. 25. Once again, however, no action was ever taken on the second panel's recommendations, this time because Campbell was in the midst of changing positions, from Managing Director to Executive Director, and would no longer play any role in the selection of the new SES Director of OMS. See Campbell Dep. at 183:9-20; Osterman Dep. at 134:4-13.

In March 2005, Joe Osterman replaced Campbell as the NTSB's Managing Director, and became the selecting official for the SES Director of OMS position. Because Osterman had been a member of the second rating panel, he reconstituted the rating panel -- naming Tom Haueter, his replacement as Director of OHS, to the panel -- and directed the panel to reevaluate all of the candidates. See Osterman Dep. at 134:9-13, 19-21; Def.'s Ex. 25. The third rating panel evaluated the candidates once again according to the criteria set forth in the "Rating and Evaluation Plan" and, on March 28, 2005, the panel provided Osterman with a list of the five best qualified candidates. See Osterman Dep. at 134:22-135:14; Def.'s Ex. 25. Cooke was not among the top five candidates referred to Osterman for consideration. Osterman testified that the third rating panel ranked Cooke as the seventh best qualified candidate for the position. See Osterman Dep. at 137:15-22. Osterman also said that although he did not rule out interviewing Cooke for the position, the decision was made to interview only the top five candidates at first, which was the typical practice for SES positions at the NTSB. See id. at 105:5-108:9, 139:21-140:15, 154:1-11.

After the top five candidates were interviewed, John Spencer was selected for the position of the SES Director of OMS, and he was appointed to the position in August 2005. See Def.'s Ex. 17; Carroll Decl. ¶ 25. Spencer had applied for the position when it was initially advertised in 2004, but at that time Collette Magwood of the NTSB's Human Resources Division determined that Spencer did not meet the minimum qualifications required for the position and she did not refer his application to the first rating panel. See Dep. of Collette Magwood ("Magwood Dep.") at 52:16-53:6. Spencer reapplied for the position in 2005, and he was eventually selected after being ranked as one of the five best candidates by the third and final rating panel. See Def.'s Ex. 25.

Osterman met with Cooke in or about May 2005 to inform her that she had not been selected as the SES Director of OMS. See Am. Compl. ¶ 23; Answer ¶ 23. Osterman testified that at the time he met with Cooke -- following Spencer's selection -- he does not believe that he "was aware of [Cooke's] EEO Complaint." Osterman Dep. at 150:12-20. During their meeting, Osterman and Cooke discussed the possibility of creating a new position for Cooke that would potentially allow her to increase her pay. The proposed position was a Senior Leadership position that would operate as an international liaison under the Managing Director. See id. at 145:5-18, 148:17-149:4. Because a new Senior Leadership position of this type would require authorization from OPM, and would need to be filled via a competitive recruitment process, Osterman requested that Cooke prepare a proposal outlining the job responsibilities. See id. at 149:5-150:1. Soon thereafter, Cooke prepared a proposal and shared it with Osterman. See id. at 157:15-158:3. Osterman reviewed the proposal and subsequently met with Acting Chairman Mark Rosenker, Executive Director Dan Campbell, and Chairman Designee Ellen Engleman Conners to discuss the NTSB's need for such a position. See id. at 159:8-163:11. During that meeting, the NTSB's senior leadership agreed that there was not sufficient work to justify the Senior Leadership position as proposed by Cooke. See id. at 160:14-18, 164:5-9.

Once the decision was made not to seek permission from OPM to create a new Senior Leadership position, Osterman met with Cooke to discuss her options. See id. at 164:11-14. Osterman testified that he and Cooke discussed the possibility that a new GS-15 level national resource specialist position could be created for Cooke within OMS, but it was ultimately decided that this was not the best option because it would be awkward for Cooke, as the outgoing Director, to remain in OMS under the new Director, Spencer. See id. at 165:7-166:18. Osterman testified that he then offered Cooke a planning manager position as a detail in the Office of Safety Recommendations and Communications ("SRC") "because there was an immediate need for a 15-level manager in [that office] for a specific duration of time." Id. at 164:18-21. He stated that he "considered [Cooke] a good planner and felt that that fit [within SRC] would be good for the agency . . . and also give me the opportunity to design a more permanent position for [Cooke] outside of the Office of Marine Safety." Id. at 178:18-179:1. Osterman also testified that "[a]t the time we had the discussion about her going to the detail in [SRC], there was not another [GS-15 level] billet open and available to place her in that was appropriate for her -- for her background." Id. at 180:8-12. Ultimately, Cooke was detailed to SRC in June 2005 for a period of 120 days. Def.'s Ex. 18. In this position, Cooke continued to be paid at the GS-15 level. Id. For her part, Cooke testified that she "offered to assist with the transition to make it as easy on my staff as possible, that I would work for Jack [Spencer] when he came in to help make him successful," but Osterman detailed her to SRC nonetheless. Cooke Dep. at 33:2-6. Cooke also testified that she was given two options "move to the Office of Safety Recommendations and Accomplishments or to retire. Those were my two options." Id. at 40:6-8.

During Cooke's detail to SRC, Osterman had time to evaluate the needs of the agency, and particularly the Office of Management, wherein he needed a GS-15 level associate managing director for strategic management, or chief planning officer for the agency. See Osterman Dep. at 201:17-202:7. When Cooke's detail to SRC ended in October 2005, Osterman testified that he offered the associate managing director position to Cooke and told her "that [he] wouldn't make her do it, she had the option of saying no, but that [he] thought that her planning and presentation, especially strategic planning skills, were good. . . . [and] she would be quite good for the position." Id. at 202:8-17. Cooke considered the offer, but declined the associate managing director position. See id. at 202:18-20. Osterman testified that after Cooke declined the position he informed her "that we would put her in a program management position, program analyst position [within the Office of Management] until such time that we could determine what other positions became available at the 15 level." Id. at 203:7-11. Cooke was reassigned to a program analyst position within the Office of Management on October 16, 2005. Def.'s Ex. 19. In that position she continued to be paid at the GS-15 level. Id. Cooke remained in that position until July 2006 when she retired from the NTSB. Cooke Dep. at 160:16-20.

Cooke originally filed suit in this Court in April 2006 alleging violations of both the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 215(a)(3). That case was assigned to another judge of this Court. In October 2006, an amended complaint was filed containing only the EPA claim, and on Cooke's motion the case was then transferred to the United States Court of Federal Claims. Within weeks, in November 2006, Cooke commenced this action by filing a single-count complaint alleging retaliation in violation of the FLSA. An amended complaint followed in 2007 and after full discovery the NTSB filed the instant motion for summary judgment.


I. Summary Judgment

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 movant 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 identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

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. Retaliation Under the FLSA and the McDonnell Douglas Framework

The FLSA's anti-retaliation provision states that "it shall be unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee." 29 U.S.C. § 215(a)(3). Hence, in order to establish a prima facie case of retaliation under the FLSA, a plaintiff must demonstrate (1) that the employer was aware that plaintiff was engaged in statutorily protected activity, (2) that the employer took adverse action against the plaintiff, and (3) that there was a causal relationship between the two. Hicks v. Ass'n of Amer. Med. Colleges, 503 F. Supp. 2d 48, 51 (D.D.C. 2007); Caryk v. Coupe, 663 F. Supp. 1243, 1253 (D.D.C. 1987). When appropriate, courts look to Title VII cases in interpreting the FLSA. See Darveau v. Detecon, Inc., 515 F.3d 334, 342 (4th Cir. 2008); Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 305-07 (4th Cir. 2004); Nichols v. Hurley, 921 F.2d 1101, 1103-10 (10th Cir. 1990). Because the elements of a prima facie case of retaliation are essentially identical under the FLSA and Title VII, the Court finds that Title VII case law is instructive here. The Court will, however, be mindful "to respect any differences in language and purpose between Title VII and the FLSA." Darveau, 515 F.3d at 342.

The framework for establishing a prima facie case of retaliation for Title VII claims follows McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The first step in the analysis requires a plaintiff to carry the burden of establishing a prima facie case by a preponderance of the evidence. Id.; 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 retaliation, a plaintiff must demonstrate: "(1) that she engaged in statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two." Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985) (quoting McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984)). Under the Supreme Court's decision in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), an adverse employment action in the retaliation context is one that could conceivably dissuade a reasonable worker from making or supporting a charge of discrimination. See also Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C. Cir. 2006); Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006).

Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The employer's burden, however, is merely one of production. Burdine, 450 U.S. at 254-55. The employer "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the ...

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