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Nuskey v. Hochberg

September 25, 2009


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This employment discrimination case is before the Court on defendant's motion for summary judgment and plaintiff's motion to strike. After careful consideration of the parties' papers, the attached exhibits, the relevant statutes and the case law, the Court will grant defendant's motion in part and deny it in part, and the Court will deny plaintiff's motion as moot.*fn2


Plaintiff Sharon L. Nuskey brought this action against her former employer, the Export-Import Bank of the United States, for age and sex discrimination and reprisal for engaging in protected activity. The Bank is the United States government's official export credit agency - it assists in financing the export of domestic goods and services to create jobs in the United States. See Mot., Memorandum in Support ("Def. Mem.") at 2.

The Bank hired plaintiff on August 9, 2004 as a GS-1101-11 junior Business Development Specialist ("BDS") in the International Business Development ("IBD") Division. See Mot. at 3. She chose to work in the Southeastern and Central Europe region ("SECE"). See Mot., Ex. 1, Deposition of Sharon Lynn Nuskey at 12. At the same time, the Bank also hired three younger men as junior BDSs to work in various regions. See Def. Mem. at 3. The junior BDSs, including plaintiff, were all supervised by different Regional Directors, and all of the Regional Directors reported to IBD Vice President C. Michael Forgione. See Def. Mem. at 3, Ex. 21 at 1. All four junior BDSs were hired as probationary employees for their first year. See Def. Mem. at 3; Ex. 8, Affidavit of Sharon Nuskey ("Nuskey Aff.") at 1. Plaintiff was originally supervised by Margaret Kostic. See Nuskey Dep. at 14. In February 2005, a realignment occurred and Craig O'Connor became the Regional Director for SECE and plaintiff's immediate supervisor. See Def. Mem. at 4, Nuskey Aff. at 1.

The events that immediately preceded plaintiff's termination began on May 10, 2005, when plaintiff requested permission from Mr. Forgione to travel to Germany for work. See Def. Mem. at 29, Ex. 26. Mr. Forgione responded that he did not think that the proposed trip would benefit IBD or the Bank. See id. On May 11, 2005, plaintiff complained to him that while under Mr. O'Connor's supervision she was not being given the same work opportunities as her male colleagues, including international travel and invitations to meetings. See Def. Mem. at 30, Ex. 9, Affidavit of Cosimo M. Forgione ("Forgione Aff.") ¶ 7.

Mr. Forgione and Mr. O'Connor had a meeting with plaintiff the following day to discuss the issue. See Opp., Ex. 58, Deposition of Sharon Lynn Nuskey ("Nuskey Dep.") at 120-21. At that meeting, plaintiff requested that she be allowed to travel to Serbia shortly after the Germany trip to attend a conference. See Mot., Ex. 1, Deposition of Sharon Lynn Nuskey at 97, 103. Although Serbia and Germany were both outside IBD's strategic business plan, Mr. Forgione and his supervisor, John Emens, granted permission to plaintiff to make these trips. See Forgione Aff. ¶¶ 16-17. Mr. Forgione states that he only did so because he was under the impression that the events plaintiff was attending in Germany and in Serbia were within a day of each other. See id. at ¶ 17.

Mr. Forgione then realized that there were four days between the trips, days which plaintiff sought to take as paid leave. See Forgione Aff. ¶ 17. He states that he came to the conclusion that plaintiff's repeated requests to travel to non-target countries in a region of little strategic importance to the Bank, and what he saw as her excessive effort in organizing a trip of little value, indicated that plaintiff was not a good fit for the Bank. See Def. Mem., Ex. 2, Deposition of Cosimo Michael Forgione ("Forgione Dep.") at 23, 24, 182. Mr. Forgione sought advice from the Bank's Human Resources office and learned that because plaintiff was a probationary employee, he had wide latitude to terminate her employment. See id. at 24.

On May 17, 2005, plaintiff contacted the Bank's EEO Director Patrease Jones-Brown regarding her concerns that she was being treated differently from her male probationary colleagues, particularly with regard to travel. See Mot., Defendant's Statement of Material Facts Not in Genuine Dispute ("Def. Facts") ¶ 20; Opp., Plaintiff's Statement of Genuine Issues of Material Fact ("Pl. Facts") ¶ 20. On May 18, 2005, Ms. Jones-Brown contacted Jonathan McMullen, then Chief of the Bank's Office of Administrative Services, and inquired about whether plaintiff needed to use annual leave during the gap between the proposed Germany and Serbia trips. See Pl. Facts ¶ 20a. Mr. McMullen called Mr. Forgione the same day to state that plaintiff did not need to take annual leave for the four day gap. See id.; Forgione Aff. ¶ 17.

Mr. Forgione, Mr. O'Connor and plaintiff all met on May 19, 2005 to attempt to resolve the issue. See Pl. Facts ¶ 21. This meeting ended badly - with Mr. Forgione allegedly remarking to plaintiff that she "seemed to think that [she] was much better educated and older than [her] three male colleagues," but that they were all hired at the same level. Mot., Ex. 8, Affidavit of Sharon Nuskey at 3. Mr. Forgione then terminated the meeting and said that he was going to the Human Resources office. See Pl. Facts ¶ 21. Shortly thereafter, plaintiff returned to the Bank's EEO Office to discuss the events with the Bank's EEO Director, Ms. Jones-Brown. See Pl. Facts ¶ 21b.

On the afternoon of the same day, May 19, 2005, plaintiff met with Mr. Emens, who was Mr. Forgione's immediate supervisor, and explained that Ms. Jones-Brown had suggested that plaintiff meet with him to discuss the events. See Pl. Facts ¶ 21b.*fn3 Later that day, Mr. Forgione met with Mr. Emens to discuss Mr. Forgione's decision to terminate plaintiff, a decision with which Mr. Emens concurred. See Pl. Facts ¶ 21c; Opp., Ex. 27. On the evening of May 19, 2005, plaintiff formally initiated EEO counseling with Ms. Jones-Brown. See Pl. Facts ¶ 21d. On May 20, 2005, the Bank terminated plaintiff, effective immediately. See Def. Facts ¶ 22; Pl. Facts ¶ 22.

After exhausting her administrative remedies before the EEOC, plaintiff filed suit in this Court on September 8, 2006, alleging discrimination on the basis of her sex (female) and age (then 45), and reprisal. On May 30, 2007, the Court denied defendant's pre-discovery motion for summary judgment, finding that defendant had not submitted competent evidence in support of its timeliness defense. See Memorandum Opinion and Order ("Timeliness Opinion"), Dkt. 13 (D.D.C. 2007). The parties engaged in discovery, and the matter is now ripe for summary adjudication.


A. Summary Judgment

Summary judgment may be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).

An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). She is required to provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support [her] claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).

B. The Governing Law

Plaintiff brings suit under Title VII and the ADEA. Title VII provides, in pertinent part, that "[a]ll personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. ยง 2000e-16(a). Title VII also prohibits federal agencies from retaliating against employees for asserting their rights. See Holcomb v. Powell, 433 F.3d at 901. The relevant part of the ADEA provides, in language parallel with Title VII, that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in executive agencies . . . shall be made free from any discrimination based on age." 29 U.S.C. ...

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