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Powell v. Lockhart

June 29, 2009


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos. 69 & 12




This matter is before the court on the defendant's motion for summary judgment. The plaintiff claims that during her tenure of employment with the defendant, her supervisor discriminated against her on the basis of her gender, retaliated against her for participating in protected activity and created a hostile work environment based on gender discrimination and retaliation.

The court concludes that the plaintiff has presented sufficient evidence on some but not all of her claims to raise an issue of fact as to whether her supervisor unlawfully discriminated and retaliated against her. Furthermore, the court concludes that a reasonable jury could determine that the plaintiff was subjected to a hostile work environment based on her gender and in retaliation for her involvement in protected activity. Accordingly, the court grants in part and denies in part the defendant's motion for summary judgment.


A. Factual History

In February 1999, the plaintiff began working for the FHFB as Counsel to the Inspector General, Edward Kelley. Declaration of Barbara Powell, dated December 5, 2008 ("Pl.'s Decl.") ¶ 4. Her responsibilities included identifying and reviewing proposed agency policies and procedures, reviewing reports for legal sufficiency and researching legal questions for the agency. See Pl.'s Opp'n, Ex. T at 2. The position was part-time, calling for 40 hours per two-week pay period. Pl.'s Decl. ¶ 4. Soon after starting, however, the plaintiff began to work more than 40 hours every two weeks, with her hours fluctuating between 40 and 80 hours per two-week period depending on Kelley's need. Pl.'s Decl. ¶ 6. She and Kelley ultimately reached an informal agreement that she would work 72 hours every two weeks. Id. at ¶¶ 6, 18.

The plaintiff and Kelley initially enjoyed a cordial working relationship. See Pl.'s Opp'n at 6-7. In her first yearly performance evaluation, given in September 1999, Kelley rated the plaintiff's work as "Commendable," the second-highest of five levels, and described her legal analysis as "well researched, informative and factually supported." Pl.'s Opp'n, Ex. J at 2-9.

Soon, however, disputes began to arise between the plaintiff and Kelley. In October 1999, Kelley refused the plaintiff's request to take more than 1.5 days of paid leave, even though she had allegedly accumulated more than nine days of leave. Pl.'s Decl. ¶ 9; Pl.'s Opp'n at 8-9. The plaintiff also alleges that in January 2000, she worked almost 18.5 hours in one day while accompanying Kelley to New York on an investigation, but that when the plaintiff sought overtime authorization, Kelley laughed at her and refused to authorize more than eight hours of pay for that day.*fn2 Pl.'s Decl. ¶ 13; Pl.'s Opp'n at 10.

The plaintiff and Kelley also had disputes regarding Kelley's apparent unwillingness to appoint the plaintiff to a full-time position. See Pl.'s Opp'n at 15, 35-36. The plaintiff alleges that when she was hired, there was an understanding that Kelley was going to seek authorization to convert her position into a full-time position. Pl.'s Decl. ¶ 5. In the fall of 2000, however, when Kelley first received such authorization, he elected to advertise the full-time position.

Def.'s Mot. at 25. Specifically, the defendant contends -- and the plaintiff does not dispute -- that after several unsuccessful efforts, Kelley obtained the funding and authorization to hire full-time counsel in October 2000. Id. On October 31, 2000, Kelley advertised the full-time position. Def.'s Mot., Ex. 3. The defendant maintains that in January 2001, before Kelley could fill the position, a new chairman joined the agency and imposed a formal hiring freeze. Def.'s Mot. at 25 & Ex. 49 at 1. Kelley posted the vacancy again in 2001, but was unable to fill the position because the agency's chairman allegedly would not authorize the required funds. Id. at 25-26.

Over time, Kelley rated the plaintiff's performance at progressively lower levels. In a June 2001 mid-year review, Kelley rated the plaintiff as "Fully Successful," the middle of five levels. Def.'s Mot., Ex. 14. On June 11, 2001, the plaintiff and Kelley met to discuss the evaluation. Def.'s Mot., Ex. 15. The defendant asserts that during this meeting, the plaintiff repeatedly interrupted Kelley and threatened to report the unsatisfactory performance review to "the people downstairs." Id. The plaintiff describes the encounter differently, noting Kelley's "derisive tone" and "hostility." Pl.'s Decl. ¶ 17. During this meeting, the plaintiff allegedly informed Kelley that she felt his criticism was not based on her work performance but rather on discrimination and improper bias, and that she was considering hiring an attorney to represent her. Id.

The plaintiff states that although she did not initially perceive Kelley's hostile behavior towards her as discriminatory, Pl.'s Opp'n at 11, she "came to see over time that this [was] the way that Kelley treated women under his supervision, but not men." Id. ¶ 16. Indeed, the plaintiff alleges that Kelley had contentious relationships with many of his female employees. Pl.'s Opp'n at 11-12. Kimberly Hardy, an assistant office manager, testified that Kelley made inappropriate comments to her,*fn3 behaved like a "bully" and yelled at his female employees in a way that she could not recall him replicating with men. Pl.'s Opp'n, Ex. A ("Hardy Dep.") at 19-20. Deborah Parker, a senior auditor in the office, testified that Kelley did not have the same level of confrontations with male employees as he had with female staff. Pl.'s Opp'n, Ex. B ("Parker Dep.") at 39. Diane Grant, Kelley's longtime secretary, stated in her affidavit that "Kelley seemed to prey on single women." Pl.'s Opp'n, Ex. D ("Grant Aff.") at 2.

The plaintiff alleges that when she confronted him about the June 11 evaluation, Kelley warned her not to bring her complaints to the attention of agency officials. Pl.'s Opp'n at 12. Nonetheless, on June 13, 2001, the plaintiff wrote a memorandum to the ORM outlining her disagreement with the June 11 evaluation and alleging that Kelley's personal disdain for her prevented him from evaluating her performance objectively. Def.'s Mot., Ex 16. Five days later, on June 18, the plaintiff wrote a memo to Kelley expressing her disagreement with the performance evaluation. Def.'s Mot., Ex 17. That day, Kelley allegedly confronted the plaintiff, shouted at her and threatened to cut her hours nearly in half. Pl.'s Decl. ¶ 18.

On July 1, 2001, Kelley informed the plaintiff that from then on, she would be required to leave the office at 5:00 p.m. each day because he did not want to be in the office with her without another employee present. Pl.'s Opp'n at 12; Def.'s Mot. at 10. The plaintiff testified during a November 2002 EEOC hearing that she had until that point been working until 5:30 p.m. Pl.'s Opp'n, Ex. I ("EEOC Hr'g Tr.") at 336. No other employee in the office had a similar restriction on their working hours. Parker Dep. at 107-08. The plaintiff contends that Kelley's new policy resulted in her schedule being reduced from 72 to 67.5 hours per two-week pay period.*fn4 Pl.'s Decl. ¶ 18. The plaintiff alleges that from that point forward, when she was not out of the office by 5:00 p.m., Kelley would yell at her and on at least one occasion asked if he was going to have to "throw her out." Id. ¶ 19. Shortly after the implementation of the policy, the plaintiff filed an informal EEO complaint against Kelley. Pl.'s Decl. ¶ 22; Pl.'s Opp'n at 13.

By this time, the situation in the office was very tense. Parker Dep. at 18-19. Parker testified that on the day Kelley learned of the plaintiff's EEO complaint, he began arguing with the plaintiff, and the situation became so volatile that Parker had to leave the office.*fn5 Id. The plaintiff alleges that immediately after she informed Kelley of her informal EEO complaint, Kelley went into his office and began loudly slamming drawers and file cabinets for an extended period of time. Pl.'s Opp'n at 13; EEOC Hr'g Tr. at 66-67. Hardy testified that Kelley would yell at the plaintiff in an inappropriate matter and that their encounters inevitably ended up in a "shouting match."*fn6 Hardy Dep. at 21.

In August 2001, Kelley issued a letter of reprimand to the plaintiff, citing two incidents of alleged "insubordination." See Def.'s Mot., Ex. 21 ("August 2001 Letter") at 1-3. The first involved the plaintiff's refusal to attend a meeting when instructed to do so and her inadequate preparation for two interviews. Id. at 1-2. The second involved a confrontation between the plaintiff and Hardy. Id. at 2. During the latter incident, the plaintiff confronted Hardy while Hardy and Kelley were laughing together outside of Kelley's office. Def.'s Mot, Ex. 2 ("Pl.'s Dep.") at 86-88. The plaintiff alleges that Kelley and Hardy were making fun of her. Pl.'s Dep. at 87. Kelley testified that he feared a physical confrontation between the plaintiff and Hardy. Pl.'s Mot., Ex. N ("Kelley Dep.") at 48-49. Both the plaintiff and Hardy, however, characterize the incident differently. Pl.'s Decl. ¶ 23; Pl.'s Opp'n, Ex. O at 219. During an EEO investigation regarding the plaintiff's allegations, Hardy testified about the incident as follows:

MR. KAUFMAN: Maybe you could tell me what you know was going on.

[HARDY]: We had someone coming into the office for an interview and it was lunchtime and I went in to tell Mr. Kelley that I was going to the bank. And he was telling me that I needed to limit my lunch hour. And [the plaintiff] walked by and she asked me why was he talking about her to me. And I said,

"Well, he wasn't talking about you, he was talking to me." And she asked me again. Then he told me to go ahead and go to lunch.

MR. KAUFMAN: Okay. Was that the extent of the incident?

[HARDY]: As far as I remember it, yes.

MR. KAUFMAN: Did that cause you any concern or did that bother you at all?

[HARDY]: No.

Pl.'s Opp'n, Ex. O at 219.

In June 2002, Kelley issued the plaintiff a notice of "Unacceptable" performance in two of four critical elements of her position and placed her on a 90-day*fn7 Performance Improvement Plan ("PIP"). Def.'s Mot., Ex. 27 at 1. The PIP stated that the plaintiff had failed to perform at an adequate level in two of three critical elements to her position: program monitoring and evaluation, and coordination of legal issues. Id. at 2-3; Pl.'s Opp'n at 16.

Although the defendant contends otherwise, the plaintiff maintains that she never agreed to extend the PIP beyond the initial 90-day period. Pl.'s Decl. ¶ 25; Def.'s Mot. at 17. The plaintiff alleges that Kelley did not communicate with her about whether the PIP had ended or whether she had or had not fulfilled her performance requirements under the PIP until August 2003, more than a year after it was first imposed. Pl.'s Opp'n at 15-17. At that time, Kelley submitted a notice of removal proposing the plaintiff's termination based on her purported failure to satisfy her obligations under the PIP. Pl.'s Opp'n, Ex. K; Kelley Dep. at 38-39.

The next month, however, the EEOC Hearing Examiner informally advised Kelley that she intended to rule that he had unlawfully retaliated against the plaintiff by issuing the June 2002 PIP and proposing her termination. See Pl.'s Opp'n, Ex Q. In December 2003, the EEOC Hearing Examiner again informed Kelley that she intended to rule in the plaintiff's favor. See Pl.'s Opp'n, Ex. R. Two months after receiving the second notice of advance ruling from the EEOC, Kelley withdrew the proposed termination. Pl.'s Decl. ¶ 32; Pl.'s Opp'n, Ex. S. One month later, in March 2004, the EEOC concluded that the PIP was retaliatory. Pl.'s Opp'n, Ex. H at 12.

In April 2004, Kelley issued a second letter of reprimand to the plaintiff. Def.'s Mot., Ex. 32 ("April 2004 Letter"). The letter addressed two incidents: one involved a dispute between the plaintiff and Janice Day Saint-Louis, an administrative office manager, and the other involved an encounter with Robert Stanton, a human resources officer with the agency. Id. The letter stated that the plaintiff behaved inappropriately ...

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