The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Carla Harris brings this employment discrimination suit against the Attorney General of the United States pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff alleges that the Executive Office for United States Attorneys ("EOUSA" or "agency") of the Department of Justice unlawfully terminated her services as a Personnel Security Specialist when her supervisor discovered that she was pregnant. Now before the Court is defendant's motion for summary judgment and plaintiff's cross-motion for partial summary judgment, both pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1
Defendant contends that plaintiff may not bring a Title VII claim against the federal government because she was not a federal employee and that, even if plaintiff was an employee, the EOUSA's actions were not discriminatory. Plaintiff argues that she is entitled to summary judgment on the EOUSA's affirmative defense of failure to exhaust administrative remedies. For the reasons discussed below, the Court denies defendant's motion for summary judgment and grants plaintiff's cross-motion for partial summary judgment.
Plaintiff worked for Integrated Management Services, Inc. ("IMSI"), a contractor for the Department of Justice, from April through October 2002. See Harris Dep. at 9. After a brief stint with another contractor, she discovered that she was pregnant, and returned to IMSI in early 2003, primarily to obtain a better benefits package. See id. at 8-14.
Under a contract with the EOUSA, IMSI provided, among other things, "Security Support Services," which included providing staff to be Personnel Security Specialists. See Contract at A-2, C-3. Personnel Security Specialists "[c]onduct background investigations" for potential Department of Justice staff, "[p]repare reports of investigations resulting from interviews conducted during background investigations," and perform related tasks. Id. This position is part of the EOUSA's mission to, in part, provide "operational support" and "administrative and personnel services" to the United States Attorneys. See Def.'s Consol. Stmt. ¶ 23. Plaintiff, through IMSI, was to work at the EOUSA offices as a Personnel Security Specialist, repeating an arrangement that had existed for several months in 2002 between plaintiff, IMSI, and the EOUSA. See Harris Dep. at 9, 14.
Although IMSI had hired plaintiff, IMSI's contract permitted the EOUSA to screen and interview IMSI employees before they could work at the EOUSA. Contract at C-17. Thus, plaintiff interviewed with Gloria Harbin of the EOUSA in late March 2003. Harris Dep. at 50.
Harbin was then the Chief of the Preemployment Security Division of the EOUSA. Harbin Dep. Vol. 1 at 12. Her responsibilities in this position included interviewing candidates from contractors and checking their references, establishing procedures for contract staff once hired, and evaluating their work. See Harbin Dep. Vol. 1 at 29-30, 211; Harbin Dep. Vol. 3 at 222. At the time of plaintiff's interview with Harbin, plaintiff was not visibly pregnant, and Harbin did not think that plaintiff was pregnant. See Harbin Dep. Vol. I at 40-41. After interviewing plaintiff and checking her references, Harbin approved plaintiff to begin work at the EOUSA.
Plaintiff's first day of work at the EOUSA was two months later, on May 19, 2003. Harris Dep. at 20. By this time, plaintiff was visibly pregnant, so that "immediately when visually [they] met, [EOUSA staff] could tell that [plaintiff] was pregnant." Id. at 46. Plaintiff arrived at the EOUSA site around 1:00 pm after completing paperwork at IMSI that morning. Id. at 20. Plaintiff was shown where she would be sitting, but was told to go to lunch because the other staff were at lunch. Id. at 21. Plaintiff ate lunch and then had a "casual conversation" with her previous supervisor at the EOUSA, Eric Dorsey. Id. at 10, 22-23. Afterwards, Cassandria James, an IMSI contract employee, and Leslie Thompson, a non-contract federal employee, "told [plaintiff] about the office" (id. at 23), and took plaintiff to the room where she was to work. James Dep. at 65-66. The room was a large copy room with three or four desks in it. Id. Plaintiff alleges that the chair that she was assigned was broken, and that she "needed a chair with support because [she] was pregnant." Harris Dep. at 26, 48. Plaintiff had mentioned her need for a new chair to Dorsey during her earlier conversation with him. Id. at 23-24. James, however, recalls that there were no problems with the chair. James Dep. at 74-75.
There is disagreement in the record about plaintiff's behavior during her time with James and Thompson. James recalls that she "personally observed [plaintiff] yelling and using profanity when expressing displeasure with the office space and her assigned desk" and "personally witnessed [plaintiff] complain for approximately 30 minutes in a very loud voice in an irate tone about her office space and desk." Id. at 38, 39. By plaintiff's account, on the other hand, plaintiff had a "[r]eal casual conversation" with Thompson and James. Harris Dep. at 25. Plaintiff does not recall cursing or being loud and irate, but acknowledged the possibility that she may have used a curse word in a casual manner. See id. at 33-34, 46-48 ("I don't recall using curse words," but "I might have sat in the chair and been like 'Oh shit I almost fell.'").
James subsequently told Harbin about plaintiff's alleged misbehavior. Harbin Dep. Vol. 1 at 56; James Dep. at 79, 105. Plaintiff does not dispute that James made the complaint but suspects that James lied to Harbin because James "knew that . . . [Harbin] had an aversion to women that were pregnant and that she might want to hear such a thing." Harris Dep. at 45. Harbin called Lisa Morrow, the employment manager at IMSI, and "stated that [plaintiff] had allegedly said out loud 'Oh hell no, this is not going to work' regarding her seating [and that plaintiff] 'ramped and raved' about how she was not going to sit where she was assigned." Lisa Morrow Documentation ("Morrow Doc.") at 1.*fn3 Harbin further told Morrow that she was considering removing plaintiff from the contract, depending on the outcome of a meeting with plaintiff that afternoon. Id.
The parties' accounts of that meeting are different. Harbin describes it as "quite the meeting," stating that plaintiff "gave [her] a lot of attitude." Harbin Dep. Vol. 1 at 77. Plaintiff, meanwhile, remembers "a very forgettable conversation" in which she "did mention to [Harbin] that the chair that [she] had in the office was broken" but little more, though she does say that Harbin was unpleasant "[a]bout everything [plaintiff] discussed with her." See Harris Dep. at 26, 30. By all accounts, though, Harbin told Harris that she should contact Harbin if she wanted to make any changes to her office space, such as by installing a computer. See Harbin Dep. Vol. 1 at 80; Morrow Doc. at 1.
On the morning of the next day, May 20, plaintiff "ran into another guy that used to work . . . there the first time that [plaintiff] was there," the IT support person, and suggested to him during a casual "chit-chat" that she would like a computer in her office space. See Harris Dep. at 28. Thereafter, Harbin called Morrow again, this time to request that plaintiff be removed from the EOUSA contract. Morrow Doc. at 1. As explanation, Harbin reiterated her concerns about plaintiff's behavior and complained that plaintiff had "broken the chain of authority" by seeking a computer and a new chair from EOUSA staff other than Harbin herself. Id. Harbin also told IMSI that she was surprised that plaintiff had not mentioned before that she was pregnant (id.), though Harbin later added that she "would think [plaintiff] would have mentioned it, because it's such a joyful event, but it's irrelevant," Harbin Dep. Vol. 1 at 110. IMSI complied and directed plaintiff to return to IMSI headquarters. Harris Dep. at 31; Morrow Doc. at 2. When plaintiff returned to IMSI, IMSI staff recounted Harbin's issues to plaintiff, and plaintiff responded that she was not aware of any of the issues that Harbin had cited. Harris Dep. at 32; Morrow Doc. at 2. IMSI then issued plaintiff a letter stating that "[a]s there are no other open positions matching your skills and experience, we will be unable to offer you employment beyond today, May 20, 2003." IMSI Ex. at 119. However, IMSI found a position for plaintiff at the Department of State the next day, see Hill Dep. at 53, and wrote the following note on the file copy of the May 20 letter: "Rescinded - located temporary position at Dept. of State. Continues to look for alternate Perm. position." IMSI Ex. at 119. Plaintiff began work at the Department of State the following Monday. See IMSI Ex. at 241.
Plaintiff now seeks relief for unlawful sex discrimination in violation of Title VII. Defendant initially moved to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that plaintiff had failed timely to exhaust her administrative remedies under 29 C.F.R. § 1614.105(a)(1), because she failed to initiate timely contact with an Equal Employment Opportunity ("EEO") counselor and filed her EEO complaint on January 15, 2004, long after the period for exhaustion had expired. Harris v. Attorney Gen. of U.S., 400 F. Supp. 2d 24, 26 (D.D.C. 2005) ("Harris I"). Plaintiff objected that she was not aware of the time limit and that the statute does not impose the time limit on individuals who are not aware of it. Id. at 27. This Court granted defendant's motion, holding that plaintiff was on constructive notice of the time limit because of EEO posters at the EOUSA. Id. at 28. On appeal, the D.C. Circuit held that there was a genuine issue of material fact as to what the posters stated and whether they were posted, and remanded the case to this Court for further proceedings. Harris v. Gonzales, 488 F.3d 442, 446 (D.C. Cir. 2007) ("Harris II").
Now that discovery has been completed, defendants have moved for summary judgment on the ground that plaintiff was not a federal employee covered by 42 U.S.C. § 2000e-16 and, in the alternative, that the EOUSA actions were not discriminatory. Plaintiff has cross-moved for partial summary judgment, seeking to strike defendant's affirmative defense of failure to exhaust administrative remedies. These motions are now fully briefed and ripe for resolution.
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 ...