The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Johnnie Mae Riggsbee brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., against her former employer Diversity Services, Inc. ("Diversity"), alleging employment discrimination on the basis of her race and sex. Now before the Court is Diversity's motion for summary judgment on all claims. For the reasons discussed below, the Court will grant the motion and enter summary judgment in favor of Diversity.
Diversity is a temporary staffing agency in Washington, D.C. that specializes in placing individuals with disabilities into temporary employment positions with D.C. clients. Decl. of Ellen de Bremond ("de Bremond Decl.") ¶ 2; Diversity Stmt. of Mat. Facts ("SOF") ¶ 1. Diversity earns its fees through employee placement and handles the payroll for the employees that it places in temporary positions. de Bremond Decl. ¶ 3; Diversity SOF ¶ 1. Diversity asserts that as a temporary staffing agency it has little control over an employee's placement or tenure with a client. de Bremond Decl. ¶ 3.
Diversity hired Riggsbee, a black female, in December 2004, and immediately placed her in a position as a temporary identification services clerk in the House of Representatives (the "House") where she earned $13.98 per hour. Id. ¶ 5; Diversity Mem. at 8. Diversity asserts that on April 25, 2005, it successfully negotiated with the House to transfer Riggsbee to a new temporary clerk position where she earned $16 per hour. de Bremond Decl. ¶ 6; Diversity Mem. at 8. However, by the end of June 2005, the House informed Diversity that Riggsbee's temporary assignment was complete and that her services were no longer needed. de Bremond Decl. ¶ 7; Declaration of David Miller ("Miller Decl.") ¶ 4. After her position with the House ended, Diversity claims that it offered Riggsbee three temporary positions -- proctoring exams in July 2005 at $10 per hour, photographing store fronts in September 2005 at $13 per hour, and distributing flyers in September 2005 at $9 per hour. de Bremond Decl. ¶ 9. Riggsbee did not accept these positions and did not fulfill Diversity's weekly check-in requirement after finishing her assignment with the House. Id. ¶ 10.
Riggsbee presents a different version of the events surrounding her temporary employment at the House. She contends that she worked at the House from December 2004 to April 2005 when she was told to leave that position by a Diversity employee. Affidavit of Johnnie Mae Riggsbee ("Riggsbee Aff.") ¶¶ 1-2. She asserts that she was then hired in May 2005 for a receptionist/data entry position at the House that would last until October 2005. Id. ¶ 4. However, in July 2005, she received a call from a Diversity employee telling her to leave this new position. Id. ¶ 5. The next day, she saw Diversity employee Norman Gugliotta, a white male, sitting at her desk. Id. She claims that Gugliotta said he was placed in her old position because he wanted to work there. Id. Riggsbee adds that David Miller, Director of Human Resource Administration for the House, told her that no one at the House had made the decision to terminate her House position. Id. ¶ 7. She asserts that although she checked in weekly with Diversity after she left the House, she was only offered one position distributing flyers in September 2005. Id. ¶ 8. She also claims that the only other position Diversity offered her was a $9 per hour proctoring job in April 2005, before her second position at the House began, which she accepted. Id. ¶ 3.
On December 20, 2005, Riggsbee filed a charge against Diversity with the Equal Employment Opportunity Commission (EEOC). Diversity Ex. 3 ("Riggsbee EEO Compl."). Riggsbee selected race as the only basis for discrimination, and alleged "unlawful racial discrimination against me on the basis of my race and color." Id. The EEOC investigated Riggsbee's charge, rejected her claim that violations of Title VII had occurred, and subsequently issued a right to sue letter allowing her to bring her claim in this Court. Compl. ¶ 14.
Riggsbee filed her judicial complaint on November 21, 2007, alleging employment discrimination based on her race and her sex in violation of Title VII. Id. ¶ 1, 12, 13. Count One alleges race discrimination and lists three actions as being discriminatory: (1) deliberately terminating Riggsbee from her employment with the House despite her excellent work performance and replacing her with a white male, (2) failing and refusing to take appropriate action to remedy the effects of her discriminatory treatment, and (3) failing to make a reasonable effort to find comparable alternative employment. Id. ¶ 12. Count Two alleges sex discrimination based on these same actions. Id. ¶ 13. But only two employment actions are actually described in the complaint, because Diversity's alleged refusal to "remedy the effects of . . . discriminatory treatment" is an inherent part of Riggsbee's discriminatory termination claim, rather than a freestanding claim. See id. ¶¶ 12-13. Hence, the Court's analysis will focus on Riggsbee's termination claim and Diversity's alleged failure to find her comparable alternative employment.
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" which 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.
Riggsbee's complaint alleges employment discrimination on the basis of both her race and her sex. Compl. ¶¶ 12-13. Diversity raises the threshold issue of whether Riggsbee has exhausted her administrative remedies for her sex discrimination claim.Diversity Mem. at 10. An individual must file an administrative charge within the time period specified by Title VII (see 42 U.S.C. 2000e-5(e)(1)) or lose the ability to recover for it. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10 (2002). In evaluating an EEO complaint, "the administrative charge requirement should not be construed to place a heavy technical burden" on complainants. Park v. Howard Univ., 71 F.3d 904, ...