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Perry v. Clinton

December 10, 2009

JANINE PERRY, PLAINTIFF,
v.
HILLARY CLINTON, SECRETARY, U.S. DEPARTMENT OF STATE, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court

MEMORANDUM OPINION

Plaintiff Janine Perry brings this action against defendant Hillary Clinton, Secretary of the U.S. Department of State, in her official capacity ("Secretary"), alleging race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, as well as retaliation for asserting her rights under that statute, id. § 2000e-3. Before the Court is the Secretary's motion to dismiss or, in the alternative, for summary judgment [#25]. Upon consideration of the motion, the opposition thereto, the reply, the oral arguments of counsel and the record of this case, the Court concludes that the motion should be granted in part and denied in part.

I. BACKGROUND

Janine Perry has been an employee of the Department of State ("Department") for more than twenty years. At some point during her tenure there, she joined the Bureau of International Information Programs, Geographic, Western Hemisphere Affairs and became a Program Coordinator; the position was classified as GS-11 on the federal pay scale. She alleges that she began performing the duties of a Website Manager before such a position existed. Other individuals were eventually hired as Website Managers in her Bureau and other offices, and the Department classified them as GS-13.

Because other Website Managers were receiving GS-13 salaries, Perry requested a promotion. According to Perry, Domenick DiPasquale, her supervisor at the time, informed her that she could not move from GS-11 directly to GS-13 but he would create a GS-12 position for her. In July 2003, Perry became a Website Manager classified as GS-12. She was placed in the position, which did not have the potential for promotion to GS-13, through a non-competitive process. Perry alleges that DiPasquale told her that she would become a GS-13 after a year and that when DiPasquale retired in August 2003, he informed Perry's new supervisor, Gerard Joria, that Perry should become a GS-13 Website Manager.

Perry alleges that Joria told her shortly after he became her supervisor that he was aware of an Equal Employment Opportunity ("EEO") complaint she had filed in 1999. She contends he located documents related to that complaint after she tried to dispose of them and that he left those documents in her office. Apparently Joria knew the individual in regard to whom Perry had made the complaint.

In August 2004, Perry raised the issue of a promotion to GS-13 with Joria. She asserts that she "reminded Mr. Joria of the need to treat me the same as the Agency treated the non-African-American Website Managers." Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n"), Ex. 22 at ¶ 14 ("Perry Decl."). Joria declined to promote Perry. Perry alleges she was the only African-American Website Manager and, although her job description was "substantially the same" as those of the other Website Managers within the Department, she was the only one who was not classified as GS-13. Id. ¶ 23. In particular, she notes that Juan DeLeon also worked under Joria as a Website Manager, and he was a GS-13. She also contends that Paula Thomson, a GS-13 Website Manager in the Bureau of International Information Programs, Geographic, Near East Affairs who is not African-American, wondered why Perry, who "did the same thing" as Thomson, was a GS-12. Id. ¶ 19.

As a result of Joria's refusal to promote her, Perry consulted with Human Resources. A female, African-American employee of that office, GraTheryn Weston, performed a "desk audit" to evaluate whether Perry's position was properly classified as GS-12. Id. ¶¶ 15-16. Human Resources determined in June 2005 that Perry's responsibilities did not merit a GS-13 classification. Perry challenged that conclusion, asserting that the Department had used different standards to evaluate her position than it had to consider the pay grade of any other Website Manager and that Weston had not included some of Perry's responsibilities in making the assessment. Perry had a meeting with Human Resources representatives about these concerns, but her position remained a GS-12 and the other Website Manager positions remained GS-13s.

Perry alleges that beginning in 2004, Joria denied several requests she made to attend certain training sessions. Def.'s Mot. to Dismiss, Ex. 7 at ¶ 18. She also alleges that he declined to assist her in developing an Individual Development Plan, which would have included plans for training. Perry asserts that the training she requested was related to her work responsibilities and would have "made it possible for me to advance and receive my GS-13 position within the Bureau." Perry Decl. ¶ 28.

In October 2005, Perry again requested a promotion to GS-13. Her request was denied. On October 7, 2005, Perry contacted an EEO counselor, and on December 30, 2005, she filed a formal complaint of discrimination. The EEO counselor wrote a report summarizing her counseling efforts. The report identifies two allegations of discrimination and retaliation for the 1999 EEO complaint: (1) the denial of a promotion to GS-13 "[o]n a continuing basis since August 2004 . . . including most recently on October 6, 2005, when management refused [Perry's] request that they create a GS-13 Website Manager position" for her; and (2) that Joria "denied or failed to respond to all of [Perry's] training requests and request for an Individual Development Plan (IDP)." Pl.'s Opp'n, Ex. 4 at 3-4 ("Dec. 2005 EEO Counselor's Report").

Perry subsequently supplemented her EEO complaint to include additional allegations. Pl.'s Opp'n, Ex. 6 at 2-3 ("EEO Report of Investigation"). She alleged that some of her job duties-including processing translated articles, photo editing, preparing the "Web Trends Usage Report," and web page development-were transferred to other employees. Id. at 12-13; Def.'s Mot. to Dismiss, Ex. 8 at ¶¶ 2-6.

Perry initiated this action on July 16, 2008. By April 2, 2009, however, Perry had again contacted an EEO counselor to make a complaint of recent discrimination based on her pay grade, which remained GS-12. Perry alleges that Richard Huckaby, her new supervisor, requested that Perry become a GS-13 Electronic Publications Officer, a title given to at least one Website Manager after an office reorganization; the request was denied without explanation and Human Resources made her a GS-12 Electronic Publications Specialist instead. First Am. Compl. ¶¶ 36-37; Def's Mot. to Dismiss, Ex. 6 at 2 ("May 2009 EEO Counselor's Report"). Perry also alleged disability discrimination: she was in a car accident and her request for advanced sick leave was denied. First Am. Compl. ¶ 39; May 2009 EEO Counselor's Report at 2.

She then amended her complaint, filed on April 20, 2009, alleging that the Secretary's "compensat[ing] her less for performing the same work as her non-black and/or non female peers" constitutes race and gender discrimination, asserting that the Secretary has engaged in a "pattern and practice of discriminating against blacks and/or women in the terms and conditions in employment" (Count I), and alleging that the refusal to promote Perry, denial of her requests for training, transfer of her duties, and denial of her request ...


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