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Reshard v. Lahood

April 7, 2010

CONNIE RESHARD, PLAINTIFF,
v.
RAY H. LAHOOD, SECRETARY, UNITED STATES DEPARTMENT OF TRANSPORTATION,*FN1 DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION*fn2

Connie Reshard, a member of the Pennsylvania Bar who is proceeding pro se in this matter, brought this action against the Secretary of Transportation in his official capacity, seeking to recover compensatory damages and injunctive relief for the defendant's alleged racial discrimination and retaliation against her in violation of 42 U.S.C. § 2000e-2000e(17) (2006) during her employment at the Department of Transportation.*fn3 Complaint ("Compl.") ¶¶ 7-81. Currently before the Court are the parties' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 concerning the plaintiff's claim for retaliation,*fn4 see generally Defendant's Renewed Motion for Summary Judgment; Plaintiff's Motion for Summary Judgment Reprisals and Retaliation ("Pl.'s Mot."), as well as the defendant's motion to stay discovery, Defendant's Motion to Stay Discovery ("Def.'s Mot. to Stay"). After careful consideration of the parties' pleadings, motions and oppositions, and all memoranda of law and exhibits submitted with these filings and incorporated in the motions,*fn5 the Court concludes the defendant is entitled to both a stay of discovery and summary judgment on the plaintiff's sole surviving claim.

I. BACKGROUND

A. Factual Background

The pro se plaintiff, Connie Reshard, is a graduate of the Georgetown University Law Center, Pl.'s Mot. at 4, and licensed to practice law in the Commonwealth of Pennsylvania.*fn6

Memorandum Order (Aug. 24, 2000) at 2. She also holds a masters degree in economics and is a former assistant professor of economics. Pl.'s Mot. at 3. The plaintiff was hired on September 6, 1977, by the Department of Transportation as an Economist in the Office of the Assistant Secretary for Policy and International Affairs at the GS-0110-11 pay level. Id.; Def.'s Mem. at 5. At the time of the termination of her employment by the defendant in January of 1988, Pl.'s Mot. at 21; Def.'s Mem. at 15, the plaintiff's pay scale had increased to the GM-0110-14 level. Def.'s Oct. 14, 2003 Mot., Exhibit ("Ex.") 22, (Mar. 18, 1987 Equal Employment Opportunity Complaint) ("Mar. 18, 1987 Admin. Compl.")).*fn7

1. The Alleged Discriminatory Acts Against the Plaintiff Occurring Between 1979 and 1986*fn8

From 1979 until 1985 the plaintiff received several satisfactory performance appraisals, and several personal letters from other agencies and organizations expressing satisfaction with the performance of her job. Pl.'s Mot., Ex. 2 (Performance Appraisals); id. at Ex. 3 (Letters of Gratitude). Also, during the first two years of her employment, the plaintiff was twice promoted. Id. at 4.

Shortly after the plaintiff "entered the four-year, evening juris doctor program at Georgetown University Law Center," in August 1981, Edward Oppler, the Deputy Director of the Office of International Policy, submitted papers relating to the plaintiff's possible promotion to a GS-14 position. Id. at 4. In March of 1982, before any decision on the promotion was made, the plaintiff took annual leave, missing a meeting as a result of her absence. Id. Mr. Oppler "requested that [another employee] call [the] plaintiff at home to ask whether she wanted to attend [the meeting,]" and he requested that the Office of Personnel "discontinue processing [the] previously submitted papers for [the] plaintiff's promotion[,]" as a result of her absence. Answer ¶¶ 7-8. Despite what had occurred in early 1982, in October of that year Mr. Oppler selected the plaintiff "for a GM-0110-14 Economist position... as a result of an advertised vacancy through the merit promotion process." Id. ¶¶ 7, 12; Pl.'s Mot. at 6.

It was after she achieved the pay scale rank of GM-0110-14 that the plaintiff alleges the discrimination against her began. She asserts that she was discriminated against when: (1) her colleague, Rosalind Ellingsworth, a Caucasian female, "took credit for [the plaintiff's] work.and represented it as her own[;]" (2) her superiors -- including Mr. Oppler, Vance Fort, and Assistant Secretary of Transportation, Judith Conors -- made a "specific effort... to advance [Ms. Ellingsworth] from a consultant... to a supervisory employee[,]" while the plaintiff's employment was not advanced; and (3) "[w]hite staff members received accommodations and other job benefits as a result of expressing their concerns about the issues[,]" whereas the plaintiff did not receive these benefits. Pl.'s Mot. at 6-7. In addition, the plaintiff alleges that during a September 1981 meeting in Cambridge, Massachusetts, that she did not attend, "Ms. Ellingsworth and [another colleague] regularly made jokes about [the plaintiff's] ability to perform [her] job and attend law school." Id. at 8.

As a result of these alleged events, sometime in 1983, the plaintiff asserts that she "met with Wilbur Williams, a special assistant to the Director of Civil Rights for the Office of the Secretary [of Transportation and] told him of the disparate treatment," her failure to get promoted, and "other matters." Id. at 9. The plaintiff contends that the discrimination continued after her meeting with Mr. Williams, including that a white co-worker was sent on foreign travel, while the plaintiff was not, id., and that a colleague, Frances Murphy, received a promotion, while the plaintiff did not, Pl.'s Mot. at 10-11. The plaintiff also claims that during negotiations with Japan in March of 1985, she "was publicly humiliated in front of representatives of the Department of State, the airlines, the trade organizations, and other federal agencies," when she was given "no role" in the negotiations. Id. at 11. As a result of what had occurred, the plaintiff felt forced to accept a temporary detail assignment working in the Office of Transportation, Regulatory Affairs, Regulatory Review and Planning Division. Id. at 11-12. She remained on that detail assignment from April 1, 1985 until early 1986, and claims that during the detail "she was never given a performance [evaluation.]" Id.

While she was detailed in her temporary assignment in August 1985, the plaintiff "applied for a Supervisory Transportation Industry Analyst Position.... involving the identical work [she] had been involved in [throughout her career]," but, according to the plaintiff, the job was given to a "less qualified [and] less educated" white male instead. Id. at 14. Thereafter, in early 1986, the plaintiff alleges that she "was given another detail assignment to the Office of Special Programs," id. at 12, and in August 1986 was provided a form of evaluation evidenced by a handwritten note from the Office of the Assistant Secretary for Policy and International Affairs stating that her performance was "fully successful." Pl.'s Feb. 12, 1999 Mem., Ex. 5 (Note Discussing Plaintiff's Evaluation); Pl.'s Mot. at 13.

2. Alleged Discriminatory Acts Against the Plaintiff Occurring Between December 1986 through January 1988

As a result of her request for a transfer, the plaintiff was scheduled to be transferred to a new position on December 14, 1986. Pl.'s Feb. 12, 1999 Mem., Ex. 6 (Letter Regarding Personnel Matters and Requesting Performance Evaluations from August, 1985 through July 1986); Def.'s Oct. 14, 2003 Mem., Ex. 1 (Letter of Warning from Bruce Butterworth dated Dec. 16, 1986) ("Dec. 16, 1986 Letter of Warning"). Prior to the transfer, on December 8, 1986, the plaintiff met with her anticipated new superiors, Arnie Levine and Bruce Butterworth, to discuss the new position, Def.'s Oct. 14, 2003 Mem., Ex. 1 (Dec. 16, 1986 Letter of Warning), and the plaintiff maintains that they discussed with her "the addition of legal skills in the position description." Id., Ex. 6 at 3 (Notes from the Plaintiff's Personal Files dated March 11, 1987). The plaintiff then prepared a letter that she sent to the Assistant Secretary for Administration requesting that "no personnel actions of any kind [be] implemented" until appropriate evaluations and appraisals based on the plaintiff's responsibilities from August 1985 through 1986 were completed, id., but no action was ever taken as a result of her request. Pl.'s Mot., Ex. 6 at 1 (Dec. 17, 1986 Letter to Jon Seymour from Connie Reshard). The plaintiff states that she informed Mr. Levine and Mr. Butterworth in the December 8, 1986 meeting that "she would be happy" to assume "legal work provided that she [was] compensated with a quality in-step in salary." Id., Ex. 6 at 3 (Notes from the Plaintiff's Personal Files dated March 11, 1987).

On December 15, 1986, her new supervisor, Mr. Butterworth, reportedly sought out the plaintiff to give her an assignment, but was unable to locate her. Def.'s Oct. 14, 2003 Mem., Ex. 1 (Dec. 16, 1986 Letter of Warning). As a result, he left a note "asking [her] to meet [him] in [his] office at 9:30 am to discuss [the assignment that she was] required to do." Id. When the plaintiff "did not arrive at 9:30 a.m. [or] contact [him] to explain why," Mr. Butterworth "went to [her] office and knocked," and the plaintiff responded that she "could not speak to [him]." Id. Mr. Butterworth informed the plaintiff that "[he] needed to see [her] in 15 minutes" in his office, but the plaintiff nonetheless "failed to appear at [his] office." Id. Consequently, Mr. Levine, the plaintiff's other supervisor, "left a message... asking [her] to provide an update on [her] preparation of [the assignment for Mr. Butterworth]." Id. Again, she failed to respond, but later that day "called a Secretary in another division from a Doctor's office and asked for two hours [of] sick leave [without permission or giving notice]." Id. As a result of the plaintiff's behavior, on the next day, December 16, 1986, Mr. Butterworth delivered a Letter of Warning memorializing the events of December 15, 1986. Id. The letter concluded that the plaintiff "failed entirely to meet [her] standard" regarding the assignment by "[n]ot attending meetings when requested by [her supervisors], without offering any explanation, and refusing to do assignments," actions which were "unbecoming [of] a senior staff member" and which "[would] not be tolerated." Id. The letter stated that "in the future, [the plaintiff must] request sick leave... in advance, and always provide reasonable notice." Id.

Thereafter, on December 18, 1986, the "[p]laintiff contacted an [Equal Employment Opportunity ("EEO")] officer[,]" Pl.'s Mot. at 16, to informally discuss what "she felt was racial discrimination toward her[,]" Def.'s Oct. 14, 2003 Mem., Ex. 21 at 1 (March 3, 1987 EEO Counselor's Report ("EEO Counselor's Report")). The EEO counselor and the plaintiff met on two occasions in January 1987, id., but there is no evidence that she filed a formal complaint at that time.

On February 11, 1987, Mr. Butterworth and the plaintiff discussed two new assignments concerning which the plaintiff agreed to provide written work products, but other than a short handwritten note regarding one of the assignments, the plaintiff "failed to produce the work on.February 17 and 18, 1987 [and did not attempt] to request an extension or to explain in any way why [she] had not produced the work." Id., Ex. 2 at 2 ("March 10, 1987 Letter of Warning"). As a result of these events, on March 3, 1987, the parties met "to discuss the scope of [her] position description." Id. On March 10, 1987, Mr. Butterworth sent to the plaintiff a second letter of warning ("March 10, 1987 Letter of Warning") regarding the February 11, 1987 assignments. Id. The letter also discussed the plaintiff's purposeful "[failure] to appear at [a] staff meeting" that took place on February 18, 1987. Id. at 3. The letter warned that "any further misconduct or refusal to perform assignments could result in more severe disciplinary action[.]" Id. at 4.

On March 18, 1987, the plaintiff formally filed an administrative complaint with the Equal Employment Opportunity ("EEO") officer alleging racial discrimination. Def.'s Oct. 14, 2003 Mem., Ex. 22 at 1-10 (Complaint of Discrimination in the Federal Government dated March 18, 1987) ("Original Administrative Complaint"). The Original Administrative Complaint described all of the alleged acts of discrimination included in the plaintiff's complaint, as well as other charges not alleged in her complaint. Id., Ex. 22 at 2-5. The Original Administrative Complaint sought equitable relief in the form of a promotion and retroactive performance appraisals, as well as monetary relief in the form of back pay and general damages resulting from purported damage to her "professional reputation[,]" and "[a] prohibition against the assignment of legal analyses to [her.]" Id., Ex. 22 at 9. The plaintiff twice amended her Original Administrative Complaint, initially on March 19, 1987, id., Ex. 22 at 11-20 (Amendment to Discrimination Complaint of March 18, 1987) ("First Amended Administrative Complaint"), and again on March 27, 1987, id., Ex. 22 at 21-30 (Second Amended Complaint dated March 27, 1987) ("Second Amended Administrative Complaint").

On May 21, 1987, Mr. Butterworth gave the plaintiff a new work assignment. Def.'s Mem. at 7; Def.'s Oct. 14, 2003 Mem., Ex. 3 (Letter of Reprimand Dated June 16, 1987) ("Letter of Reprimand"). Six days later, he inquired as to the plaintiff's progress on the assignment, and she indicated that she had no work product for him at that time. Def.'s Oct. 14, 2003 Mem., Ex. 3 (Letter of Reprimand) at 1. Consequently, Mr. Butterworth scheduled a meeting with the plaintiff and requested that she bring the completed work product to the meeting. Id. The plaintiff again did not have the work product for Mr. Butterworth by the time of the meeting, so on June 2, 1987, he formally requested in writing that she provided him with the work product, stating that the plaintiff's refusal to produce the work product by the end of the day would be considered a "refusal to complete [her] assigned work," and would result in "appropriate action" being taken. Id. at 2 & Attach. 2 (June 2, 1987 Note to Connie Reshard). When the plaintiff subsequently failed to produce the requested work product, Mr. Butterworth "reassigned the work to another staff member," and issued a letter of reprimand to the plaintiff on June 16, 1987. Id. The plaintiff responded to the letter of reprimand on June 25, 1987, refuting the charge that she failed to complete any assignment. Def.'s Oct. 14, 2003 Mem., Ex. 4 (Response Memorandum) at 1-3. In addition, she alleged that she was racially discrimination against in a February 1987 staff meeting when she was "compared to a white economist who is a grade lower." Id. at 2.

On the same day that she responded to Mr. Butterworth's letter, the plaintiff amended the administrative complaint she had filed with the EEO counselor for a third time, incorporating the events surrounding the June 16, 1987 letter of reprimand. Def.'s Oct. 14, 2003 Mem., Ex. 22 at 35 (Letter to Robert Coates dated July 15, 1987 Amending the Administrative Complaint) ("Third Amended Administrative Complaint"). The plaintiff stated that the letter of reprimand "contained gross inaccuracies and allegations of misconduct" and recommended that she should not receive an upcoming semi-annual performance evaluation because she "would be evaluated for a one year period over a 90 day period," which amounts to her "being treated different from other white employees... because [she is] [b]lack." Id. Despite her objection, the semi-annual performance evaluation was issued, with the plaintiff receiving a "fully successful" rating.

Def.'s Oct. 14, 2003 Mem., Ex. 6 (Performance Management and Recognition System, Performance Appraisal Form for the Period of December 15, 1986 - July 31, 1987) ("1987 Performance Evaluation"). The evaluation referenced the satisfactory completion of several assignments, but also included copious remarks noting the "inordinate amount of managerial time and effort spent to secure her cooperation in meeting the job requirements[.]" Id. at Attach.

1. In addition, the evaluation noted that the plaintiff gave the reviewer, Mr. Butterworth, "a copy of another staff member's work with a cover note, purporting that work as her own... as a sign of defiance." Id. The evaluation also reiterated that the plaintiff's "refus[al] to attend staff meetings." Id.

During the time when the above described events were occurring, the plaintiff was also seeking a different position. On July 22, 1987, she applied for a position as a Trade Policy Analyst with the pay scale grade level of GM-301-15. Def.'s Mem. at 9. From the candidates who applied for the position, Mr. Levine ultimately hired another black female candidate based on what he expressed was her ten years of experience and superior overall performance in her previous position. Id. at 9-10. After the plaintiff was not selected for the Trade Policy Analyst position, she amended her Administrative Complaint for a fourth time to add allegations that her non-selection for the Trade policy Analyst position evidenced racial discrimination. Def.'s Oct. 14, 2003 Mem., Ex. 22 at 32-34 (Letter to Robert Coates dated August 17, 1987 Amending the Administrative Complaint) ("Fourth Amended Administrative Complaint").

On September 2, 1987, Mr. Butterworth gave the plaintiff notice of a proposed suspension "from pay and duty status for one calendar day from [her] position of Economist." Def.'s Oct. 14, 2003 Mem., Ex. 8 (Notice of Proposed Suspension dated September 2, 1987) ("Notice of One Day Suspension"). He told the plaintiff that the proposed suspension stemmed from the plaintiff's continued refusal to attend staff meetings without providing any advance notice. Id. at Attach. (Sept. 3, 1987 Letter to Connie Reshard). The letter was sent both to the plaintiff by registered mail and placed on her desk along with a note from Mr. Butterworth stating that he "will not hesitate to propose increasingly severe disciplinary action" if the plaintiff's "[a]cts of insubordination" continued, specifically, not attending staff meetings. Id. Shortly thereafter, Mr. Levine also sent the plaintiff a memorandum advising her of his "decision [to adopt] the September 2, 1987 proposal from [Mr.] Butterworth to suspend [her] from duty and pay status for ...


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