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Deborah Douglas-Slade v. Ray H. Lahood

June 22, 2011


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff brings this employment discrimination action under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, see 42 U.S.C. § 2000e-5(f)(1), against the Secretary of Transportation. This matter is before the Court on the parties' cross-motions for summary judgment.*fn1 For the reasons discussed below, summary judgment will be granted for defendant.


Plaintiff, an African-American female, Defendant's Memorandum of Points and Authorities in Support of [his] Motion to Dismiss and for Summary Judgment and Defendant's Opposition to the Plaintiff's Motion for Summary Judgment ("Def.'s Mem."), Ex. 1 (Transcript of EEO Hearing on February 17, 2009) at 7:13-14, began 27-year career in the federal service in 1980, see Plaintiff's Opposition to Defendant's Motion to Dismiss and for Summary Judgment and Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n"), Ex. 139 at 3.*fn2 At all times relevant to the complaint, she was a Computer Specialist with the Federal Aviation Administration ("FAA"), a component of the United States Department of Transportation ("DOT"). Compl., Attach. (Decision, EEOC No. 570-2007-00837X dated April 2, 2009) ("EEO Decision") at 2. In September 2005, after she had "received the Department of Transportation Secretary Award," Def.'s Mem., Ex. 1 at 34:12-13, plaintiff was "promoted . . . to the 'K' pay band, which is similar to a GS-15 level of pay and responsibility." Compl., Attach. (EEO Decision) at 2; Def.'s Mem., Ex. 1 at 36:16-18; Pl.'s Opp'n, Ex. 143 (Notification of Personnel Action effective September 18, 2005). The GS-15 level is at the top of the federal civilian pay scale. See Def.'s Mem., Ex. 1 at 148:16-21.

Section 508 Program

Between April 2001 and March 2007, plaintiff "was solely responsible for the [FAA's Section] 508 [P]rogram," which, pursuant to Section 508 of the Rehabilitation Act, see 29 U.S.C. § 794(d), was designed "to eliminate barriers in the Federal government in electronic and information technology for individuals with disabilities." Compl., Attach. (EEO Decision) at 2 n.3; see Def.'s Mem., Ex. 1 at 33:6-12, 280:1-8. In September 2005, plaintiff "identified and set her annual performance goals" for the following fiscal year, "encompassing the period of October 1, 2005, through September 30, 2006 ('FY 2006')." Compl., Attach. (EEO Decision) at 2; Def.'s Mem., Ex. 1 at 44:7-16, 142:5-143:3; Pl.'s Opp'n, Ex. 147 (Performance Plan). For that time period, among other goals, plaintiff was to ensure that 80% of the FAA's 321 registered websites were Section 508 compliant by September 30, 2006. Compl., Attach. (EEO Decision) at 2; Def.'s Mem., Ex. 1 at 50:13-15, (Vol. 2) 170:1-10; Pl.'s Opp'n, Ex. 147 at 3.

The FAA "is driven by . . . the flight plan, which is an overall compendium of business unit goals and objectives." Def.'s Mem., Ex. 1 (Vol. 2) at 163:16-19. In order to mark the progress of a particular business unit's goals (monthly reports of which are "rolled up to the [FAA] [A]dministrator's flight plan," id., Ex. 1 at 287:9-10), the agency uses a three-tier color-coded rating system. Compl., Attach. (EEO Decision) at 3; Def.'s Mot., Ex. 1 at 288:3-11, (Vol. 2) at 171:9-12. Green "means programs are on track and appear to be on track to achieve the targets of the goal, including monthly targets." Def.'s Mot., Ex. 1 at 288:12-14, (Vol. 2) 171:18-20. "Yellow means that the programs are starting to slip and there's a potential for not accomplishing the goals," and "red means in very high probability the program will not meet the targets for the year so it's virtually failing." Id., Ex. 1 at 288:15-20, (Vol. 2) 171:20-172:3. The FAA's executive management, including the Administrator, reviewed the flight plans. Id., Ex. 1 at 288:1-2. Plaintiff led the Section 508 Program, and she was responsible for determining the color rating for its progress. Id., Ex. 1 at 289:17-290:1. She also was responsible for submitting monthly reports of the program's progress to her supervisor. Id., Ex. 1 at 290:4-9. The color coded rating system "is not mentioned in [plaintiff's] performance standards." Id., Ex. 1 at 50:9-10.

Diana Young became plaintiff's supervisor in February 2006. Def.'s Mem., Ex. 1 at 125:6-8. After supervising plaintiff for approximately five weeks, on April 2, 2006, she conducted a mid-year review of plaintiff's performance. Id., Ex. 1 at 37:17-19, 282:21-16.

Plaintiff's performance was not rated at that time; the purpose of the review was to have "a deep discussion about [her] performance objectives, . . . [her] progress, . . . the challenges facing [her] and [whether] any other adjustments have to be made." Id., Ex. 1 at 284:5-10. According to plaintiff, Ms. Young "indicated everything was excellent." Id., Ex. 1 at 37:21-38:4. According to Ms. Young, although "the program was lagging behind in some of the performance metrics this was to be expected [and] they normally recover very quickly and get right back on track." Id., Ex. 1 at 284:13-17. Plaintiff "fully expected to achieve her goals," id., Ex. 1 at 286:8-9, and she did not request additional assistance at that time. See id., Ex. 1 at 286:4-22.

In April 2006, however, Ms. Young noticed that "the numbers between the targets [the Section 508 Program] was supposed to be meeting and the levels of compliance didn't quite match up," meaning that the program was "slipping further behind." Id., Ex. 1 at 294:11-13, 15-16. A dispute arose between plaintiff and Ms. Young regarding the compliance data for the Section 508 Program. According to Ms. Young, plaintiff "was reporting the numbers in terms of total websites and total . . . 508 compliance compared to the total websites." Id., Ex. 1 at 295:3-6. The FAA target "was to the total -- 80 percent of the websites would be 508 compliant." Id., Ex. 1 at 295:7-9. Plaintiff apparently "refused to . . . translat[e] her total numbers or raw numbers to the target numbers of the flight plan," id., Ex. 1 at 295:14-17, using a formula Ms. Young provided, see id., Ex. 1 at 295:19-296:1. According to plaintiff, Ms. Young's reporting was unethical and dishonest, see id., Ex. 1 at 164:4-12, 296: 2-3, because it misrepresented the program's performance. See id., Ex. 1 at 175:1-5.

To address these reporting discrepancies, Ms. Young called meetings with plaintiff and her support team, Def.'s Mem., Ex. 1 at 298:3-4, and encouraged them to work with others in the agency responsible for managing systems and databases. See id., Ex. 1 at 299:8-20. In addition, plaintiff and Ms. Young had other meetings and e-mail exchanges. Id., Ex. 1 at 301:4-8. In Ms. Young's view, plaintiff was "aggressively . . . resent[ful] of [her] dialogue . . . or . . . e-mail communications," id., Ex. 1 at 302:7-9, while plaintiff continued to accuse Ms. Young of being dishonest. Id., Ex. 1 at 302:20-303:2. Plaintiff "had problems with [Ms. Young] coming in[to her office] and wanting to meet with [her] all of the time," id., Ex. 1 at 164:16-17, and she particularly felt uncomfortable meeting with Ms. Young alone. See id., Ex. 1 at 53:3-6. According to Ms. Young, plaintiff "became increasingly of a stance that [she] need not tell [plaintiff] how to run the program[.] [I]t was becoming progressively a problem of communication. [Plaintiff] was pulling back further and further and less cooperative." Id., Ex. 1 at 302:9-14.

The Section 508 Program was in the red for the months of May and June 2006. Def.'s Mem., Ex. 1 at 235:13-18. Even as the program's progress continued to deteriorate through July, id., Ex. 1 at 303:3-304:14, at no time did plaintiff change her approach. Id. at 304:15-18, 306:8-15. Instead, plaintiff adopted the same approach taken in the prior year, which meant that "when the program falls behind," plaintiff would "go to senior management to solve the problem," id., Ex. 1, at 304:22-305:2. Ms. Young believed that a GS-15 employee "is supposed to handle and manage very high complex programs or initiatives," id., Ex. 1, at 305:13-15, and be a "highly skilled problem solver[]," id., Ex. 1, at 305:17-18, who can "come up with solutions and recommendations on how to solve [a] problem," id., Ex. 1, at 20-21. In her view, plaintiff's strategy "didn't effectively get [the program] to the performance targets." Id., Ex. 1, at 306:14-15.

By July 2006, plaintiff "wasn't communicating at all anymore" with Ms. Young, id. at 307:8-9, and the program's performance continued to worsen. Id., Ex. 1, at 307:18-308:1. As of July 14, 2006, 80 websites (25%) were Section 508 compliant; as of August 11, 2006, 87 websites (27%) were 508 compliant; as of September 1, 2006, 100 agency websites (31%) were 508 compliant. Compl., Attach. (EEO Decision) at 2-3. The Section 508 Program was reported as red in the FAA's flight plan each month from October 2005 through August 2006, Compl., Attach. (EEO Decision) at 3, and was reported as red for Fiscal Year 2006. Def.'s Mem., Ex. 1, at 235:13-18, 340:17-342:16.

Leave Restriction

Agency policy required that an employee request leave in advance except in an emergency situation. See Def.'s Mem., Ex. 1, at 308:16-18. In or around May 2006, plaintiff's "leave usage was incredible." Id., Ex. 1, at 308:10-11. Rather than arranging to use leave in advance, plaintiff typically left Ms. Young a voicemail message around 4:00 or 4:30 a.m. requesting unscheduled leave. Id., Ex. 1, at 309:1-4, 311:15-312:12. Ms. Young tracked plaintiff's leave usage, as she did with other employees, id., Ex. 1, at 309:7-10, and observed that plaintiff used unscheduled leave to "extend[] her weekends and . . . wasn't planning her time," id., Ex. 1, at 313:22-314:1, instead "just . . . deciding not to come in." Id., Ex. 1, at 314:1-2.*fn3

For example, during May 2006, plaintiff was in the office only fifty percent of the time. Id., Ex. 1, at 315:9-11. These unscheduled absences occurred during the period when the Section 508 Program's performance was failing. Id., Ex. 1, at 314:3-10.

On June 12, 2006, Ms. Young discussed with plaintiff her use of unscheduled leave and directed her to observe agency policy by requesting leave in advance. Def.'s Mem., Ex. 1, at 96:14-15; 315:12-316:4. According to Ms. Young, plaintiff "didn't think she needed to adhere to the [leave] policies [because] she got her work done and it wasn't a problem." Id., Ex. 1, at 317:6-8. Shortly thereafter, Ms. Young denied one leave request. See id., Ex. 1, at 227:10-13; see also id., Ex. 8 (Memorandum to plaintiff from Ms. Young dated August 25, 2006) at 11. Although plaintiff submitted her request three days in advance, on Monday, July 19, 2006, for leave on Thursday, July 22, 2006 (the day before her regular day off), Ms. Young denied the request because the office was short-staffed due to preapproved leave granted to two other employees, and because of her concerns about the Section 508 Program's performance. Id., Ex. 1, at 318:9-22. Plaintiff apparently attributed the denial of leave to "personality or other issues," id., Ex. 8, at 11, and expressed her lack of "desire to be in an environment that is hostile and counterproductive." Id., Ex. 1 (Vol. 2) at 114:9-11. A subsequent series of e-mail messages regarding plaintiff's requests for leave evidenced the continued deterioration of the relationship between plaintiff and Ms. Young, see id., Ex. 1, at 322:16-324:11, and "upon this e-mail trail . . . [plaintiff] was immediately claiming a hostile work environment," id., Ex. 1, at 325:9-12, and requested a transfer. Id., Ex. 1, at 325:12-13.

Plaintiff "felt uncomfortable" with Ms. Young, id., Ex. 1, at 164:18-19, and she thought that Ms. Young "had a slight-of-hand way of management . . . say[ing] one thing and do[ing] another." Id., Ex. 1, at 164:21-22; see id., Ex. 1, at 173:7-20. In addition, plaintiff "was uncomfortable" with Ms. Young "because she is a Lesbian." Id., Ex. 1, at 168:3-4. Moreover, plaintiff "didn't like the way [she] felt when [she] was around [Ms. Young]," in part because Ms. Young supposedly "was aggressive . . . like a man -- and [plaintiff] didn't . . . care for that." Id., Ex. 1, at 168:8-14. Generally, plaintiff disapproved of Ms. Young's "whole way of micromanaging" her and "not really giving [her] the opportunity to execute the program as [she] had always done in the past." Id., Ex. 1, at 173:18-18. Further, plaintiff considered Ms. Young to be "rude and disrespectful," and prone to react over "petty things." Id., Ex. 1, at 120:10-11. Plaintiff felt she "didn't need [Ms. Young] hovering around." Id., Ex. 1, at 173:18-19.

On June 21, 2006, plaintiff sought a meeting with Ms. Young's supervisor in order "to inform him of her peculiar management style." Id., Ex. 1, at 53:9-10. On the supervisor's advice, plaintiff and Ms. Young participated voluntarily in an alternative dispute resolution session on July 24, 2006. See id., Ex. 1, at 94:16-18, 206:20-208:11, 325:6-20. Ms. Young hoped to "deal with the issues [they] were having from the program standpoint, what [they might] do to get it back on track [and] deal with issues around attendance." Id., Ex. 1, at 326:4-6. At that meeting plaintiff "introduced . . . 13 examples or situations where [she] felt that [Ms. Young] was being unethical, deceptive -- questioning her ethics -- managing by slight of hand." Id., Ex. 1, at 94:22-95:3; see generally Pl.'s Opp'n, Ex. 107. She sought reassignment to another manager, and her request was denied. Def.'s Mem., Ex. 1, at 95:10-13. Although the parties discussed plaintiff's leave usage during that meeting, id., Ex. 1, at 209:22-211:1, apparently they reached no resolution of issues pertaining to the Section 508 Program's performance. See id., Ex. 1, at 210:11-12, 211:2-6. Overall the meeting was unsuccessful, see id. at 326:9-18; 328:4-7, leaving Ms. Young "with this program that was failing with no recourse," while plaintiff "was more and more distant." Id., Ex. 1, at 327:1-3.

On August 14, 2006, Ms. Young placed plaintiff on leave restriction for a period of one year. Def.'s Mem., Ex. 1, at 331:13-20; see id., Ex. 7 (Memorandum from D.C. Young to plaintiff dated August 14, 2006). Ms. Young informed plaintiff that her "frequent unscheduled absences ha[d] disrupted the efficient operation of the office and at times burdened the other members of the staff with additional work." Id., Ex. 7 at 1. She found that "careful review of [plaintiff's] leave usage has revealed a pattern of unscheduled leave which . . . [was] considered unsatisfactory in view of [her] overall attendance record." Id. That plaintiff "took a lot of Mondays and Fridays off" and "didn't . . . put in leave slips prior to approval" were "reasons for placing [her] on a leave restriction letter." Id., Ex. 1 (Vol. 2) at 133:1-5. The leave restriction required that plaintiff (1) request and obtain approval for scheduled annual and sick leave at least two days in advance; (2) personally contact Ms. Young or her designee within one hour after the start of her work day in cases of emergency when leave cannot be scheduled in advance; and (3) submit a medical certificate for all unscheduled sick leave. Id., Ex. 7 at 1-2. Failure to abide by these conditions would "result in [plaintiff] being charged Absence Without Leave (AWOL)." Id., Ex. 7 at 2. Plaintiff was "devastated" and "shocked" by the leave restriction. Id., Ex. 1, at 99:2.

Subsequently, Ms. Young denied plaintiff's request for leave on August 21, 2006, noting that the Section 508 Program had "been red since May and [plaintiff] needed to concentrate more time and effort on the successful completion of her program goals." Id., Ex. 1, at 333:2-5; Pl.'s Opp'n, Ex. 146-B (Request for Leave or Approved Absence dated August 15, 2006). Plaintiff interpreted these events "as pretext to discrimination and an act of reprisal." Id., Ex. 1, at 333:16-17; see id., Ex. 1, at 336:3-11.

On one occasion, Ms Young placed plaintiff on AWOL status. On the morning of February 26, 2007, plaintiff called in to report that she had a "scratchy throat," Def.'s Mem., Ex. 1, at 201:9-16, and left a voicemail message for Ms. Young to request sick leave for the day. Id., Ex. 1, at 201:19-202:4; 350:1-7. However, due to inclement weather, the Office of Personnel Management later authorized liberal leave on that day. Id., Ex. 1, at 202:16. When plaintiff arrived at work the next day, she submitted a leave slip without "any notation or reference -- or . . . doctor's note . . . substantiating her leave." Id., Ex. 1, at 351:2-5. Plaintiff was not allowed to claim annual leave after first requesting sick leave; without a preapproved leave request or a doctor's note, plaintiff had not complied with the terms of the leave restriction. Id., Ex. 1, at 351:6-10, 352:15-22; Pl.'s Opp'n, Ex. 154 (e-mail message to plaintiff from Ms. Young dated March 6, 2007). Plaintiff deemed this action "draconian" and considered it "apparent that [Ms. Young's] hostility and reprise against [her] continue[d]." Pl.'s Opp'n, Ex. 154 (e-mail message to Ms. Young from plaintiff dated March 6, 2007).

EEO Complaint

Two days after the unsuccessful alternative dispute resolution meeting, plaintiff "chose to go down the EEO process," Def.'s Mem., Ex. 1, at 326:20-21, by filing an EEO complaint on July 26, 2006, alleging discrimination based on race, sex, and reprisal. Id., Ex. 3 (Complaint of Discrimination in the Federal Government, No. 2006-20690-FAA-02). Plaintiff "decided that she needed to file a discrimination complaint based on disparate treatment, retaliation and hostile environment," on the belief that Ms. Young "was going to retaliate." Id., Ex. 1, at 96:2-4, 8.

Plaintiff asserted that Ms. Young created an "extremely hostile" work environment, Ex. 1, at 197:5, and that this alleged hostility escalated after she filed her EEO complaint. Id., Ex. 1, at 197:16-17. Further, plaintiff thought that Ms. Young was trying to "sabotage [the 508 Program] and interfere with it," id., Ex. 1, at 197:19, and "had a vendetta" against ...

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