The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Cora Houston brings claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 against defendant SecTek, Inc., alleging under each statute race discrimination, a racially hostile work environment, and constructive discharge. SecTek moves for summary judgment, contending that Houston did not establish a prima facie case of either racially disparate treatment or a racially hostile work environment; that even if she did, she has not rebutted the legitimate, nondiscriminatory reasons offered by Sectek for its actions and has not established that she availed herself of SecTek's corrective process; and that she was not constructively discharged. While Houston has established that she was subject to an adverse employment action, she has not shown that SecTek's intent was discriminatory even if its proffered reason was pretextual, and she has failed to establish her hostile work environment and constructive discharge claims. Accordingly, SecTek's motion for summary judgment will be granted.
Houston worked as a Level 3 Information Security Specialist for USATREX, a company which provided security services to the U.S. Environmental Protection Agency ("EPA"). (Compl. ¶ 6; Pl.'s Stmt. of Material Facts ("Pl.'s Stmt.") ¶ 38.) Houston worked with Jose Martinez, a Level 4 Senior Information Security Specialist. (Pl.'s Stmt. ¶ 40.) Houston provided technical support to the EPA's National Security Information program by, among other things, providing briefings, delivering documents, and working with EPA security representatives and document control officers. (Compl. ¶ 6.) During her time as a USATREX employee, Houston regularly performed higher level tasks that were officially Martinez's responsibilities. (Pl.'s Mem. of P. & A. in Opp'n to Def.'s Mot. ("Pl.'s Mem."), Ex. A at 76.)
In July 2000, SecTek replaced USATREX as the contract provider of security services to the EPA. (Compl. ¶ 8.) SecTek offered and Houston accepted a position as a Level 3 Information Security Specialist for a ninety-day probationary period. (Id.) Her job description did not change, as her responsibilities were set out in the EPA contract. (Pl.'s Mem., Ex. A at 248-49.) SecTek also hired Martinez as a Level 4 Senior Information Security Specialist. (Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem."), Ex. 4 at 44.) At SecTek, Andrea Czeck, a Deputy Program Manager of Information Security, supervised both Houston and Martinez. (Pl.'s Stmt. ¶ 47.) Czeck determined that Houston was performing duties that were not assigned to her position.*fn1 (Id. ¶ 49.) Czeck later took away the level 4 duties Houston had been performing, assigned them to another employee, and diminished Houston's level 3 duties, leaving her mostly administrative and clerical duties such as destroying and delivering classified documents. (Compl. ¶ 9; Pl.'s Stmt. ¶¶ 49-53.)
Houston also alleges that on a daily basis Czeck treated her in an unprofessional and belittling manner. (Compl. ¶ 11.) On one occasion, Czeck "threw [a memorandum] on Ms. Houston's desk and sarcastically instructed her to, 'Try again.'" (Pl.'s Stmt. ¶ 56.) Czeck also "often accused Ms. Houston of not telling her the truth or having 'something to hide'" and accused her of missing deadlines. (Id. ¶¶ 57, 60.) When Houston would leave the office to deliver confidential documents to the EPA, Czeck would "quiz Ms. Houston with suspicion about the lengths of her travels" and would time the length of Houston's trips. (Id. ¶ 58.) Czeck required that Houston be accompanied by a co-worker when meeting government clients, even though no other Sectek employee was subject to such a requirement. (Id. ¶ 62.) Houston's classified document safe was removed and placed in Czeck's office. (Id. ¶ 63.) Upon the conclusion of Houston's ninety-day probationary period, Czeck extended it by an additional forty-five days "because her performance had been less than satisfactory." (Id. ¶ 72 (internal quotations omitted).) Ten days after Czeck extended her probationary period, Houston received Czeck's performance evaluation, which rated Houston's performance as either "unsatisfactory" or "needs improvement" in each rating category. (Id. ¶¶ 75, 78.) Czeck also provided a written list of the duties she believed Houston was responsible for performing, based on the EPA contract.*fn2 (Pl.'s Mem., Ex. A at 77; Ex. I at 47.) Houston believed that the performance evaluation was wholly inaccurate (Pl.'s Stmt. ¶¶ 79-80), and she alleges that she heard rumors that she was going to be fired. (Id. ¶ 92.) She submitted her resume to another employer, and upon receiving an offer for a position, Houston tendered her resignation to SecTek. (Id. ¶ 94; Pl.'s Mem., Ex. A at 169.)
SecTek moves for summary judgment, arguing that Houston has failed to establish a prima facie case of disparate treatment and that she has failed to rebut the proffered legitimate, nondiscriminatory reason for her treatment; that Houston has failed to establish a prima facie case of hostile work environment and that she never availed herself of SecTek's corrective or preventative procedures to avoid the harm; and that she was not constructively discharged. Houston opposes summary judgment, arguing that there are disputed material facts bearing on whether SecTek discriminated against her.
On a motion for summary judgment, "[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial ---- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment may be granted only where "the pleadings, the discovery and disclosure materials on file, and any affidavits 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 Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). A material fact is one that is capable of affecting the outcome of the litigation. Liberty Lobby, Inc., 477 U.S. at 248. A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," id., as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 252. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the non-movant. Id. at 255. The nonmoving party, however, must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (emphasis omitted). In the end, "the plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burdens of persuasion and production are identical under Title VII and § 1981. Killian v. Georgetown Day School, Civil Action No. 05-1925 (EGS), 2007 WL 1541391, at *4 (D.D.C. May 24, 2007).
A plaintiff bringing discrimination claims under Title VII or § 1981 without direct evidence may employ the burden-shifting framework approved in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), when the defendant denies that its actions were motivated by the plaintiff's race. Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1553-54 (D.C. Cir. 1997); see also Iweala v. Operational Techs. Servs., Inc., 634 F. Supp. 2d 73, 81 (D.D.C. 2009) (noting that the "same framework applies to § 1981 claims" as applies to Title VII claims). Under McDonnell Douglas, the plaintiff first "has the burden of proving by the preponderance of the evidence a prima facie case of discrimination." Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007). The prima facie case for a disparate treatment claim requires that Houston show: "(1) that [she] is a member of a protected group; (2) that [she] suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Felder v. Johanns, Civil Action No. 06-910 (CKK), 2009 WL 187778, at *15 (D.D.C. Jan. 27, 2009). However, the D.C. Circuit has clarified the application of McDonnell Douglas and concluded that
[i]n a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not - and should not - decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). This condensed inquiry does not change the plaintiff's burden. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). A court looks to whether a reasonable jury could infer intentional discrimination from all of the evidence including: 1) the plaintiff's prima facie case, 2) evidence presented to attack the employer's proffered explanation for its actions, and 3) further evidence of discrimination such as evidence of discriminatory statements or attitudes by the employer. Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). A plaintiff can show in a number of ways that the employer's proffered explanation for its actions is a pretext, including by "produc[ing] evidence suggesting that the employer treated other employees of a different race . . . more favorably in the same factual circumstances" or "demonstrat[ing] that the employer is making up or lying about the underlying facts that formed the predicate for the employment decision." Brady, 520 F.3d at 495. A plaintiff can also discredit the employer's reason by "pointing to changes and inconsistencies in the stated reasons for the adverse action; the employer's failure to follow established procedures or criteria; the ...