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Oliver v. Napolitano

August 9, 2010


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


Plaintiff Renee Oliver, an employee of the Department of Homeland Security ("Department"), brings this action against defendant Janet Napolitano in her official capacity as Secretary of the Department of Homeland Security.*fn1 Oliver alleges that the Department discriminated against her on account of race and reprisal in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Currently before the Court are plaintiff's Amended Motion for Leave to File First Amended Complaint, and defendant's Opposition to plaintiff's Motion to Amend/Correct Complaint, as well as defendant's Motion for Summary Judgment. Upon consideration of the submissions of the parties and the relevant law, plaintiff's Motion to Amend/Correct Complaint is denied and defendant's Motion for Summary Judgment is granted.


A. General Background

Plaintiff is an African American female who began working for the United States Department of Justice in 1986 as a student intern participating in the Stay in School Program. ([31-1] Oliver Decl. ¶ 2, May 4, 2010.) She held the position of a clerk typist from 1987-1990, working initially for Immigration and Naturalization Service ("INS"), the predecessor to the U.S. Immigration and Customs Enforcement ("ICE") agency within the Department of Homeland Security ("DHS"). (Def.'s Stmt. Material Facts Not in Genuine Dispute ¶ 1, Feb. 23, 2010 [hereinafter Def.'s Facts]; Oliver Decl. ¶ 2.) In 1990 plaintiff became an account technician in the INS Office of Financial Management. (Id.)

During the relevant time period plaintiff worked with seven other account technicians, all of whom were African-American. (Def.'s Facts ¶¶ 4, 6.) In 1991, Judy Harrison, a manager at the Department, informed plaintiff and all other account technicians that, in order to be promoted to an accountant position, they needed to earn 24 college credit hours towards an accounting degree. (Oliver Decl. ¶ 3.) Accordingly, the plaintiff and other account technicians who desired a promotion attended the necessary classes while maintaining their position. (Id.)

From 2000 through 2002, plaintiff was reassigned to different sections within INS. (Oliver Decl. ¶ 4.) For instance, in October 2001, plaintiff was transferred to the Travel Section and remained there until March 2002, when she was transferred to the Headquarters Section ("Headquarters"). ([1] Compl. ¶ 8, Feb. 20, 2008.)

In March 2009, plaintiff was promoted to the position of Mission Support Specialist, and is currently a GS-9. ([25-3, Ex. 2] Oliver Dep. 7:2-22, Oct. 14, 2009.) However, before this promotion and therefore throughout the relevant time period, plaintiff was a GS-7. (Id.)

B. September 2001 Accountant Vacancy and March 2002 Reassignment

In September 2001, while plaintiff was stationed in the Travel Section, the position of GS-0510-7/9 Accountant was advertised as Vacancy Announcement No. 01-30-011 ("September 2001 Vacancy") ([25-4, Ex. 5] Oliver Aff. ¶¶ 8, 9, July 8, 2005.) Plaintiff applied for the position and her application was referred to the selection team along with five other candidates. (Def.'s Facts ¶ 18.) Bernard Rubenstein, a Caucasian male, and Angela Winstead, an African-American female, held interviews. (Id. at 20.) An additional candidate for the position was Ms. Tanner, an African American female, who was working in the Headquarters section when she applied. (Oliver Dep. p. 108:2-8.) Following the interviews of all candidates Ms. Winstead recommended Ms. Tanner for the position and she was selected. ([25-4, Ex. 8] Winstead Aff. ¶ 6.)

In February 2002, Ms. Oliver met with Bernard Rubenstein to protest alleged discriminatory treatment and her belief that Ms. Tanner did not meet the minimum credit-hour requirement for the accountant position. (Oliver Decl. ¶ 5.) At this meeting that she learned of her transfer to Headquarters ("March 2002 Reassignment") and protested on the basis that this position had no promotion potential. (Id.)

C. May 2002 EEOC Complaint (First EEO Contact)

On May 7, 2002, plaintiff contacted the Equal Employment Opportunity Office ("EEO") regarding her reassignment into a position that allegedly did not have promotion potential. ([25-5, Ex. 21] Rpt. EEO Counseling 2, July 22, 2002 [hereinafter 1st EEO Rpt.].) On June 19, 2002 plaintiff filed a formal complaint with the Equal Employment Opportunity Commission ("EEOC") regarding this issue. ([25-5, Ex. 22] Compl. Discrim., June 19, 2002 [hereinafter 1st EEOC Compl.].) On the EEOC complaint form plaintiff checked the boxes for Race (black) and Sex (female) to indicate why she believed she was discriminated against. (Id.; Def.'s Facts ¶ 44.)

D. May 2002 Accountant Vacancy

The Department advertised the position of GS-0510-7 Accountant through Vacancy Announcement 02-19-DE010 ("May 2002 Vacancy"), and plaintiff applied for this position on May 24, 2002. (Oliver Aff. ¶ 13.) At the time plaintiff applied for this position she was a GS-7. (Def.'s Facts ¶ 27.) The Department did not end up filling the May 2002 Accountant Vacancy. Instead the Vacancy Announcement was returned unused to the Office of Human Resources and no selections were made at the GS-7 level. ([52-3, Ex. 3] EEOC Hrg. Tr. 116:10-16, Sept. 8, 2005 (Edward Bain) [hereinafter Bain Test.]; [52-4, Ex. 14] DEU Certificate, Aug. 12, 2002.)

The reason this vacancy was not filled is because in the same month the Department issued a separate announcement (Vacancy Announcement No. 02-19-DE004). This announcement was also for an Accountant position, but sought candidates of higher government-level qualifications. The hiring official, Mr. Bain, stated that he was looking to hire at the highest level possible and therefore began his interviews at the GS-13. (Def.'s Facts ¶ 31; [25-4, Ex. 16] Edward Bain Decl. ¶ 3.) On August 12, 2002, Stephanie Pryor, a Caucasian female, was hired as a GS-12 for the Accountant position under Vacancy Announcement No. 02-19-DE004. (Oliver Decl. ¶ 7; Def.'s Facts ¶ 32.)

E. September 2002 EEOC Complaint (Second EEO Contact)

On September 11, 2002, plaintiff again contacted the EEO Office adding to her complaint her non-selection for the May 2002 Accountant Vacancy. On November 14, 2002, plaintiff filed a second formal EEOC complaint alleging three claims: 1) non-selection for September 2001 Accountant Vacancy; 2) non-selection for May 2002 Accountant Vacancy; and 3) details to three different units between September 1998 and May 2002. ([25-5, Ex. 23] Rpt. EEO Counseling 2, Nov. 15, 2002 [hereinafter 2d EEO Rpt.].) In this formal complaint plaintiff alleged discrimination on the basis of race, but unlike her previous complaint she did not raise gender discrimination. This is evident by the fact that, on the EEOC complaint form, plaintiff checked the box for "Race" (black) but did not check the box for "Sex" when asked why she believed she was discriminated against. ([25-5, Ex. 24] Compl. Discrim., Nov. 14, 2002 [hereinafter 2d EEOC Compl.].) On December 31, 2002 the three claims were accepted for investigation. ([25-5, Ex. 24] Letter from D. Diane Weaver, Director, EEO Office, INS, DOJ, to renee Oliver, Dec. 31, 2002.)

F.May 2003 Accountant Vacancy

On May 23, 2003, while plaintiff was stationed at Headquarters, the Department advertised for a GS-510-7/9/11 Accountant position through Vacancy Announcement No. MP & RP 03-21-005 ("May 2003 Vacancy"). After applying for the position plaintiff was interviewed by Jim Alfredo, Karen Gaskin, and Rebecca Schorr. (Oliver Aff. ¶ 17.) The same selection team also interviewed two other candidates in addition to Ms. Oliver, and selected Renee Douglas, an African-American female, for the position. (EEOC Hrg. Tr. 146-147, 150-155 (Rebecca Schorr); EEOC Hrg. Tr. 182:21-190:15 (James Alfredo); [25-5, Ex. 19] Gaskin Decl. ¶ 3.) Mr. Alfredo and Ms. Gaskin did not know of plaintiff's EEO activity at the time of their interview and selection of Renee Douglas. (Gaskin Decl. ¶ ...

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