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Perry v. Donovan

August 20, 2010


The opinion of the court was delivered by: Chief Judge Royce C. Lamberth


Plaintiff Marie Perry, an employee at the United States Department of Housing and Urban Development (hereinafter "HUD"), brings this action against defendant Shaun Donovan in his official capacity as Secretary of HUD.*fn1 Perry alleges that HUD discriminated against her on account of her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Currently before the Court is defendant HUD's Motion [62] for Summary Judgment. For the reasons set forth below, the Court will deny HUD's motion.


Plaintiff, an African American female, joined the Department of Housing and Urban Development in 1993 as a GS-2 Clerk Typist. (Perry Decl. on Summ. J. Mot. ("Perry Decl.") ¶¶ 1--2.) Plaintiff was moved to the Office of General Counsel ("OGC") in 1996 and converted to a Freedom of Information Act Specialist ("FOIA Specialist") in 1999. (Id. ¶¶ 3-4.) In 2002, plaintiff was promoted to her current grade level of GS-11. (Id. ¶ 4.) She continues to be employed at that pay level at the current time. (Id.) In August 2004, Holly Salamido, a Caucasian female, was appointed Assistant General Counsel of the OGC's FOIA Division and became plaintiff's immediate supervisor. (Salamido Dep. 10:15-11:02, July 21, 2009.)

During plaintiff's mid-year performance review in January 2005 and again during her annual performance review in March 2005, plaintiff spoke to Ms. Salamido about a potential promotion from the GS-11 to GS-12 grade level. (Perry Decl. ¶ 6; Pl.'s Ex. 24 at 3.) Plaintiff's workload had increased, and she was responding to more "complex" FOIA requests than before. (Pl.'s Ex. 4 at Question 4.) Plaintiff believed she was performing GS-12 level work and deserved a promotion based on accretion of duties. (Perry Decl. ¶ 6.)

Ms. Salamido denied her the promotion because she was prohibited from making non-competitive promotions.*fn2 (Decl. Salamido ¶ 4.) Plaintiff's career ladder position capped her grade level at GS-11. (Id.) To obtain a GS-12, plaintiff had to apply for an available GS-12 position or request a desk audit. (Id.) There were no available GS-12 vacancies at the time; therefore, on July 25, 2005 plaintiff requested a desk audit. (Pl.'s Ex. 5 [73-12].) Desk audits are "used to assure that [a] position [is] properly classified and that [one is] being adequately compensated for the work [he or she] perform[s]." (Def.'s Ex.15 [62-3].) Desk auditors compile information from an employee interview, an employee's work samples, and a Supervisory Position Review Questionnaire and compare that information to a classification standard, or Position Description, that specifically covers that position.*fn3 (Thrash Dep. 18:14-23:11, July 17, 2009.)

Marlene Thrash, a Human Resources Specialist, conducted plaintiff's desk audit and based on the aforementioned documents determined that plaintiff was working at a GS-12 grade level. (Pl.'s Ex. 5[73-12].) Ms. Thrash also concluded plaintiff could not be non-competitively promoted because there were other GS-11 FOIA Specialists entitled to compete for the promotion.*fn4 (Id.)

Ms. Salamido challenged the results of the first desk audit because the use of the paralegal series classification standard adversely affected the audit's conclusions (Def.'s Facts ¶ 30), and Ms. Salamido "was not given an opportunity to verify the audit findings" before Ms. Thrash submitted her recommendation to the division director. (Thrash Dep. 18-31.) The Paralegal Specialist Series, GS-950-0, "summarize[s] the essence of performing legal research" but "[n]o legal research has ever been assigned to the FOIA Specialists." (Def.'s Ex. 33.) Therefore, on or about October 24, 2005, Ms. Salamido submitted accurate Position Descriptions (PD) for GS-11 and GS-12 FOIA Specialist positions. (Pl.'s Ex. 10 [73-17].)

Additionally, the desk auditor is required to talk with the employee's supervisor before evaluating the position and submitting the report. (Day Dep. 20:3-10.) Ms. Salamido submitted a memorandum on November 30, 2005 outlining her challenges to the findings of the initial desk audit. (Id.) As a result of the additional information received from Ms. Salamido, the position was re-evaluated. (Id.) Factor 2, Supervisory Controls, was changed as a result. (Id.)

Ms. Salamido's main objection to the first desk audit centered on Factor 2, Supervisory Controls, of the position description (PD). This factor covers the "nature and extent of direct or indirect involvement exercised by the supervisor, the employee's responsibility, the review of completed work" and the employee's expertise ". . . interpreting policy on own initiative." (Id.) Ms. Salamido noted that unlike GS-12's, GS-11 FOIA Specialists do not interpret policy but are provided specific instructions on how to apply it in a specific context. (Def.'s Ex. 33.) The extent and sophistication of the knowledge [of FOIA law] distinguishes GS-11's and GS-12's. (Id.) Additionally, plaintiff's work samples were not solely her work; others had edited them for accuracy and legal correctness. (Id.) Thus, when Ms. Thrash conducted the second desk audit, she took into account the new PD and Ms. Salamido's November 2005 memorandum and determined plaintiff was performing GS-11 work. (Id.) Ms. Thrash admitted that she would not have made the findings she did in the first desk audit had she given appropriate weight to Ms. Salamido's Supervisory Position Review Questionnaire rather than the plaintiff's work samples. (Thrash Dep. 90:10-93:21.)*fn5

Plaintiff alleges Ms. Salamido's challenge to the first desk audit, specifically to the Supervisory Controls factor, was discriminatory because it resulted in the reversal of the findings of the first desk audit and foreclosed the opportunity for plaintiff to attain promotion. (Pl.'s Opp. Summ. J. 15.) Plaintiff alleges five acts of discrimination: 1) The initial desk audit was correct and its results well-founded; 2) Ms. Salamido misrepresented her level of supervisory control over plaintiff; 3) Ms. Salamido misrepresented the complexity of plaintiff's work; 4) Ms. Salamido failed to revise plaintiff's PD until after the favorable desk audit was issued; and 5) HUD failed to implement plaintiff's revised PD. Additionally, plaintiff points to the non-promotion of Sandra Jenkins, a similarly situated African-American female GS-11 FOIA Specialist, who was also denied promotion based on accretion of duties because Ms. Salamido challenged her desk audit results. (Pl.'s Opp. Summ. J. 19.) These claims of intentional discrimination led plaintiff to file suit against HUD.


Summary judgment is appropriate when "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). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party's evidence is to be believed, and all reasonable inferences from the record are to be drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S 242, 255 (1986). It is not enough, however, for the non-moving party to show that there is "some factual dispute." Id. at 247. "Only disputes over facts that might affect the outcome of the suit under the governing law will ...

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