The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Julia Evans claims that her employer, the District of Columbia Department of Environment ("DDOE"), discriminated against her on the basis of her sex and/or national origin and retaliated against her for engaging in protected activity by significantly reducing her jobrelated responsibilities, denying her request for a non-competitive promotion, not filling a listed vacancy to prevent her obtaining a competitive promotion, and giving her a poor performance evaluation. Plaintiff claims violations of both Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. and the D.C. Human Rights Act, D.C. Code § 2-1401 et seq. Defendant has moved for summary judgment on all claims (Def.'s Mot. for Summ. J., July 12, 2010). For the reasons stated herein, defendant's motion will be granted as to plaintiff's claims based on the denial of a non-competitive promotion and on her performance evaluation, but denied as to all remaining claims.
In June 2006, the District of Columbia Department of Health hired plaintiff, a Hispanic woman of Peruvian origin, as an "environmental specialist" in its "Non-point Source Management Branch" of the "Watershed Protection Division." (Pl.'s Statement of Material Facts ¶¶ 3,5, Sept. 3, 2010 ("Pl.'s SMF"); Def.'s Mot. for Summ. J., Ex. G (Decl. of Fitzgerald Fant), ¶ 6 & Att. 3, May 12, 2009 ["Fant Decl."].)*fn2 Plaintiff, who had a bachelor's degree in civil engineering from Ricardo Palma University in Lima, Peru, and a master's degree in environmental engineering from Johns Hopkins University, was hired at grade 11, step 4. (Pl.'s SMF ¶¶ 3, 17-18; Fant Decl. ¶ 6 & Att. 3). Her immediate supervisor was Sheila Besse; Besse's immediate supervisor was Hamid Karimi. (Pl.'s SMF ¶4.)
In mid to late 2006, the District of Columbia established the Department of Environment as an independent agency. (Id. ¶ 1 & n.1) The restructuring that followed included transferring the Watershed Protection Division from the Department of Health to the Natural Resources Administration in the Department of Environment, renaming the Non-Point Source Management Branch the Planning and Restoration Branch and creating the Storm Water Management Division to take over storm water management from the Water and Sewer Authority. (Id. ¶¶ 1n.1, 5.) During this "transition period," from approximately July 2006 to March 2007, plaintiff's duties included helping establish the new Storm Water Management Division, assisting in the transfer of storm water management to that division, reviewing and commenting on plans for a restoration project, and assisting the Inspection and Enforcement Branch with data management of storm water management devices. (Id. ¶¶ 7, 9.) Plaintiff also voluntarily undertook the responsibility for managing the "municipal separate storm sewer system permit" (the "MS4 permit"). (Id. ¶ 8.)
For the period from June 2006-May 2007, plaintiff consistently received ratings of "outstanding" from Besse and extremely positive evaluation comments. (Id. ¶ 26; Pl.'s Opp. to Def.'s Mot. for Summ. J. ["Pl.'s Opp."], Ex. 7, Sept. 3, 2007.)
B. May 2007-September 2007
In May 2007, plaintiff applied and was selected for a position as an "environmental engineer" in the newly-established Storm Water Management Division. (Pl.'s SMF ¶ 11; Pl.'s Opp., Ex. 8 (Notification of Personnel Action); Def.'s Mem. in Support of Mot. for Summ. J. ["Def.'s Mem."], Ex. F (Decl. of Hamid Karimi) ¶ 3 ["Karimi Decl."], July 12, 2010; Fant Decl. ¶ 7 & Att. 1.) Plaintiff was appointed at grade 12, step 1, a promotion from her grade 11 position as an "environmental specialist." (Pl.'s SMF ¶ 11.) Her new position was classified as grade 12/13, indicating the potential for a non-competitive promotion to grade 13. (Id. ¶ 11.)
Initially, plaintiff was the only employee in the Storm Water Management Division. (Id.¶ 13.) As no division head was in place when plaintiff began, her direct supervisor was Karimi, the head of the Natural Resources Administration (which included the Storm Water Division); indirectly she also continued to be supervised by Besse, who remained the head of the Watershed Protection Division. (Pl.'s SMF ¶ 12.)
From May until early September 2007, plaintiff was the only employee in the Storm Water Management Division. (Pl.'s SMF ¶ 13.) During this period, plaintiff's duties included:
(1) regularly meeting with Karimi to discuss and implement MS4 permit administration; (2) assisting Karimi and Besse in redeveloping the MS4 budget; (3) assisting DDOE counsel in MS4 permit negotiations in response to a challenge to DDOE's MS4 permit, including developing a Letter of Agreement between EPA and the District to enhance storm water management in the District; (4) regularly meeting with Karimi and Besse for personnel planning, which included reviewing the position descriptions for the Storm Water Division Administrator and an environmental specialist, providing input on questions for candidate interviews, reviewing candidate resumes, and interviewing candidates for an environmental specialist position; (5) serving as the MS4 contact within DDOE and for external agencies, including EPA; (6) overseeing other agencies' compliance with obligations funded by the MS4 permit, including reviewing and approving invoices for payment; (7) overseeing the work of an external contractor hired to write a study for restructuring storm water management in the District; (8) reviewing invoices from, and the work provided by an outside consultant under a pre-existing contract to administer and implement the MS4 program; (9) meeting with other District agencies about the MS4 permit and taking part in an official visit to Portland, Oregon; (10) writing a sole-source contract for outside counsel through the Office of Contracts and Procurement; (11) supervising work provided by a technical contractor; (12) developing a matrix to determine maintenance needs for water quality catch basins installed by District Department of Transportation ("DDOT"); (13) initiating the first project to track deliverables from divisions within DDOE;(14) assuming management of a project to install a storm water management device to comply with MS4 permit obligations; and (15) assisting in writing and editing required reports. (Pl.'s Opp., Ex. 1 (Aff. of Julia Evans) ¶ 11 ["Evans Aff."] .)
In September 2007, Karimi hired Jonathan Champion as an "environmental specialist" for the Storm Water Management Division. (Def.'s Mem., Ex. E (Notification of Personnel Action).) Champion, a white male, had a college degree and was working on his master's degree, but he was not an engineer. (Pl.'s SMF ¶¶ 14, 15; Evans Aff. ¶ 14.) He was the second employee hired for the division after plaintiff, and he was hired at grade 11, step 4. (Def.'s Mem., Ex. E.) Shortly after Champion was hired, Besse assigned him to assist two male employees, who worked under her in the Watershed Protection Division, rather than to assist plaintiff. (Pl.'s SMF ¶ 29.)
C. October 30, 2007: Plaintiff's First Complaint to Karimi
On October 30, 2007, plaintiff complained to Karimi that she was being treated less favorably than her male co-workers in the resources that were made available to her. (Pl.'s SMF ¶ 29.) Her particular complaint arose out of Besse's decision to assign Champion to work with two male employees in the Watershed Protection Division, despite the fact that there was a substantial amount of work to do in the Storm Water Management Division where plaintiff was the only other employee.*fn3 (Id.) Karimi responded by telling plaintiff that he would hire a grade 9 employee to assist her. (Id. ¶ 30.)
D. Post-October 30, 2007 Reduction of Duties
After plaintiff's meeting with Karimi, Besse stopped speaking to her or e-mailing her for the next three to four months. (Id. ¶ 31.) Karimi, in addition to not hiring a grade 9 employee to assist plaintiff (id. ¶ 30),*fn4 took a number of actions in late 2007 and early 2008 that reduced plaintiff's duties and responsibilities. Those actions included: (1) he ceased meeting with her on a regular basis -- indeed, he rarely interacted with her, although he continued to meet regularly with Champion (id. ¶ 31); (2) he began reassigning plaintiff's MS4 and other high-profile duties to Champion (id. ¶ 40); (3) he excluded her from discussions regarding personnel and strategic planning for the Storm Water Management Division (id. ¶ 48); (4) he removed her from writing a conference paper for an upcoming high visibility green roof conference, even though plaintiff had drafted the abstract for the paper with Karimi and Champion, and when plaintiff objected, he gave her only limited review and editing responsibilities (Evans Aff. ¶ 23); (5) he discouraged plaintiff's participation, but included Champion, in the work and meetings of the storm water management task force established by a City Council member in November 2007 (id. ¶ 25); and (6) he assigned Champion the lead on coordinating the MS4 task force (id. ¶ 24).
E. February 2008: Plaintiff's Second Complaint to Karimi
In early 2008, plaintiff learned, or believed she had learned, that Champion had received a "quality step" increase from step 1 to step 4. (Pl.'s SMF ¶ 32; Evans Aff. ¶ 28.) She also heard that Besse was "posting" a higher grade position for one of the male employees in her division. (Evans Aff. ¶ 27.) This information led plaintiff to again meet with Karimi. (Pl.'s SMF. ¶ 32.) In that February 8, 2008meeting, she repeated her complaint about unequal treatment of male and female employees, specifically her belief that management was providing male employees with step increases or promotions and not providing similar increases to female employees and that male colleagues were given greater opportunities for professional development. (Id. ¶ 32; Evans Aff. ¶ 32.) Plaintiff also asked Karimi to consider her for a step increase. (Pl.'s SMF ¶ 32.) Karimi said he would talk to Human Resources, but he never got back to her with any additional information. (Id.; Evans Aff. ¶ 28.)
F. Post-February 2008 Meeting
After February 2008, plaintiff continued to complain to Karimi about disparate treatment of male and female employees in terms of pay, promotions, and assignment of resources and high-profile work. (Pl.'s SMF ¶ 40.) Karimi's response in each instance was to reassign more and more of plaintiff's duties to Champion (id. ¶ 40), including strategic planning for the Storm Water Management Division (¶ 41), "front-burner reports" (¶ 42), plaintiff's role as DOE point-of-contact for MS4, a role with prominence and prestige, as that person is highly visible internally and by the public, briefs DDOE's Director, makes public presentations, and helps draft or negotiate legislation (¶ 46), the annual MS4 report (¶ 43), high-profile and high-visibility projects from the Water and Sewer Authority, such as the numerous issues surrounding the storm water fee that funds the Storm Water Management Division, which required communicating with stakeholders and the general public (id. ¶ 44), confirming MS4 compliance by certain agencies (id. ¶ 47 ), and budgetary work (id. ¶ 49). Karimi also discouraged plaintiff from attending public hearings and meetings, but took Champion with him (id. ¶ 50), invited Champion, not plaintiff, to brief the Director on storm water management issues (id. ¶ 51), excluded plaintiff (the only engineer in the Division) from meetings and projects about technical engineering issues (id. ¶ 53), discouraged plaintiff from participating in a high-level storm water advisory panel meeting in late 2008, conducted by DDOE's Director and attended by directors of other agencies (id. ¶ 54); assigned Champion management of the Storm Water Management Task Force, giving him excellent exposure to high-level District staff and leaders and a unique opportunity to influence policy (id.¶ 55), and reassigned plaintiff's job as the EPA liaison to Champion and also assigned Champion the role of liaison for all the federal government. (Id. ¶ 57.) During this entire time, plaintiff and Champion were the only two employees in the Storm Water Management Division. (Id. ¶ 15.)
G. Denial of Competitive Promotion to Grade 13
In the spring of 2008, Karimi asked Fitzgerald Fant, DDOE's Human Resources Director and EEO Officer, about posting a position for a specific person, who was already a DDOE employee. (Pl.'s SMF ¶ 83.) After being advised by Fant that the position would have to be competitively awarded, Karimi issued Vacancy Announcement No. 10551 for a grade 13 "environmental protection specialist" in the Storm Water Management Division. (Pl.'s SMF ¶ 84; Pl.'s Opp., Ex. 16; Fant. Decl. ¶ 8.) The position, which was to be competitively awarded, opened for applications on April 25, 2008, with a "first screening date" of May 5, 2008. (Pl.'s SMF ¶ 84; Pl.'s Opp., Ex. 16.) After learning about the posting, plaintiff asked Karimi why he was posting a grade 13 "environmental specialist" position with similar job responsibilities to hers, while she was an "environmental engineer," but only at grade 12. (Pl.'s SMF ¶ 85.) She was told by Karimi that "that position is not for you, I have someone else in mind," which plaintiff assumed meant the position was intended for Dianne Davis, an employee who worked for Karimi in the Natural Resources Administration. (Id.; Pl.'s Aff. ¶ 15.) Plaintiff was also prompted by the posting to ask Karimi where she fit in at the Storm Water Management Division and whether she would be getting more opportunities for professional development. (Pl.'s SMF
¶ 85.) In response, Karimi told plaintiff: "if you want professional development, go across the street," which plaintiff took to be a reference to the fast-food restaurants ...