The opinion of the court was delivered by: James E. Boasberg United States District Judge
Plaintiff Mary Bailey is a white female employed by Defendant Washington Metropolitan Area Transit Authority who suffers from an anxiety disorder. Her initial suit against WMATA included claims of race, age, and disability discrimination. As her causes of action under the Americans with Disabilities Act and the Age Discrimination in Employment Act have since been dismissed, her remaining claims are twofold. First, she alleges Defendant discriminated against her because of her race and disability when it declined to offer her a promotion. Second, she contends that Defendant retaliated against her for complaining about discrimination by offering her a severance package. The parties have now filed Cross-Motions for Summary Judgment. Because no reasonable jury could find that Defendant's stated reason for its hiring decision was pretextual and because Plaintiff did not suffer an adverse employment action in the severance episode, the Court will grant Defendant's Motion.
Plaintiff has been employed by Defendant in various capacities within the human resources department since 2001. See Def.'s Mot., Exh. 6 (Pl.'s Dep.) at 12; First Am. Compl., ¶ 2. She has been diagnosed with and receiving treatment for generalized anxiety for twenty years. First Am. Compl., ¶ 10. In addition, she was "treated for thyroid cancer in 1989 and since that time has been taking [a] daily dose of thyroid hormone replacement medication. Her doctors have discovered that during the time in question her thyroid hormone level was very high, which causes emotional behavior." Id. Indeed, Plaintiff has suffered "anxiety attacks at work where she would lose control of her emotions and would frequently cry and tremble." Id.
In November 2007, Defendant hired Delecia Sampson, a black female, as Chief of Workforce Client Services. Def.'s Mot., Exh. 7 (Dep. of Delecia Sampson) at 14; First Am. Compl., ¶ 5. In March 2008, Sampson terminated one of the Supervisors in the HR department, Robert McFerron, leaving a vacancy. Id., ¶ 7; Sampson Dep. at 30. The terminated employee had suggested to Sampson that Plaintiff could take his place, First Am. Compl., ¶ 7; Pl.'s Dep. at 20-21, but Sampson nevertheless appointed Lora Wright, a black female, to the vacant Supervisor position. First Am. Compl., ¶ 3. Sampson unilaterally promoted Wright to the Supervisor position without posting the vacancy and opening the position to competition, as is required by WMATA internal guidelines. Id., ¶¶ 7-8. Plaintiff complained to the Inspector General's Office about Sampson's failure to adhere to the guidelines, and Sampson issued a statement acknowledging the lapse and retracting her appointment of Wright. See id., ¶ 8.
Sampson then posted the position to the employees in the department, opening it to competition. Id. The posting, however, was made more narrowly and for a shorter time than WMATA's internal guidelines require. See id; Pl.'s Dep. at 24; Pl.'s Mot. and Opp. at 3. Plaintiff and Wright were the only two applicants. See Sampson Dep. at 51. Both candidates interviewed in front of a panel of individuals selected by Sampson, see id.: 1) Sampson herself; 2) Andrea Burnside, "a white female who was Ms. Sampson's supervisor"; 3) Gary Baldwin, "a white male who was the Human Resources Director for Client Services"; 4) Deborah Coram, a black female who worked in the Office of Civil Rights; and 5) Kim Thompson, "a white female who was the Executive Assistant for the head of Rail transportation, David Kubicek." Def.'s Mot. at 4 (citing Pl.'s Dep. at 24-27). Sampson stated she selected panelists from "all areas of HR," hoping to represent "a broad spectrum of opinions." Sampson Dep. at 51.
The panel asked both applicants the same ten questions, and the panelists each scored both applicants out of 100 points. See id. at 52; Pl.'s Dep. at 26. Four of the panelists scored Wright higher than Plaintiff; one panelist scored the two candidates equally. Def.'s Mot. at 5. Wright was selected to fill the vacancy. First. Am. Compl., ¶ 9. Defendant explains its decision as follows: "The panel scored Ms. Wright higher than Plaintiff and Ms. Wright better answered the questions in regard to strategic partnering with the client office." Def. Mot. at 16 (citing Def. Mot., Exh. B (Dep. of Andrea Burnside) at 25). In addition, Defendant states that "the panel felt Ms. Wright conducted herself more impressively during the interview, and selected Ms. Wright as the better candidate to interface with Mr. Kubicek." Id.
After being passed over for the promotion, Plaintiff complained to Jim Wynne, the Director of Civil Rights, about the selection process and the panel's decision, alleging that she had been treated in a discriminatory fashion. First Am. Compl., ¶ 11. "Wynne worked out an arrangement for Plaintiff to work on the Client Services Team for Bus Service in Landover, Maryland." Id.
Approximately two weeks after Plaintiff started work in Landover, Sampson requested a meeting with her during which Sampson "stated that she believed Plaintiff Bailey was unable to control her emotions at work, was not happy and was not expressing support for her new organization." Id., ¶ 12. Sampson offered Plaintiff a severance package, which Plaintiff declined. Pl.'s Dep. at 55-56. Plaintiff discussed the offer and the events surrounding it with some friends and, shortly thereafter, received an email from Sampson "informing her that she was engaging in disruptive and gossipy conduct." First Am. Compl., ¶ 12. Plaintiff again contacted Wynne, the Civil Rights Director, about what she believed to be "discrimination and unfair treatment." Id. Wynne "was not responsive." Id.
Plaintiff then filed a claim with the Equal Employment Opportunity Commission on August 20, 2008, alleging discrimination on the basis of age, race, and disability. See Def.'s Mot., Exh. A (Charge of Discrimination). The EEOC ultimately issued Plaintiff a Notice of Right to Sue. First Am. Compl., ¶ 14. Plaintiff filed this suit on June 2, 2009, and filed an Amended Complaint on July 31, 2009. She alleged violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilition Act. See id., ¶¶ 15-33. Though Plaintiff initially named both WMATA and Sampson as Defendants, id., ¶ 3, Sampson was never served, and the case has not proceeded against her. See Def.'s Mot. at 1, n.1. Defendant subsequently filed a Motion to Dismiss, and Judge Ricardo Urbina, to whom this case was previously assigned, dismissed Plaintiff's ADA and ADEA claims on March 17, 2010. See Bailey v. WMATA, 696 F. Supp. 2d 68, 71 n.5 (D.D.C. 2010). After discovery, both parties moved for summary judgment on the remaining claims.*fn1
Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at 248. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, Inc., 477 U.S. at 248; Holcomb, 433 F.3d at 895. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." FED. R. CIV. P. 56(c)(1)(A).
The party seeking summary judgment "bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under consideration, "the evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be drawn in [her] favor." Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant is required to provide evidence that would permit a reasonable jury to find in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Liberty Lobby, Inc., 477 U.S. at 249-50.
Three claims remain in this case: (1) that, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), Defendant retaliated against Plaintiff for expressing her belief that she had been discriminated against; (2) that Defendant discriminated against her on the basis of disability in violation of the Rehabilitation Act, 29 U.S.C. § 794(a); and (3) that Defendant discriminated against her on the basis of race in violation of Title VII, 42 U.S.C. § 2000e-2(a). The Court will address each in turn.
As a preliminary matter, Plaintiff contends that Defendant is barred from seeking summary judgment on the retaliation claim under the law-of-the-case doctrine. See Pl.'s Mot. and Opp. at 7. Plaintiff insists that Defendant "previously moved the Court to dismiss this claim, and the Court did not grant its motion. The Court's refusal to grant Defendant's motion thus constitutes the law of the case, and Defendant cannot be heard to advance the same argument a second time." Id. (citation omitted).
Such a position is clearly belied by Judge Urbina's March 17, 2010, Memorandum Opinion. As Defendant rightly points out, see Def.'s Opp. and Reply at 4, Judge Urbina explicitly stated that he did not rule on the retaliation issue at the motion-to-dismiss stage:
WMATA also moved to dismiss the plaintiff's claim of Retaliation, see Def.'s Mot. at 5-6, but later withdrew that portion of its motion, electing instead to pursue that argument following discovery, see Def.'s Reply at 1 n.1. Accordingly, the court will not address the plaintiff's retaliation claim.
Bailey v. WMATA, 696 F. Supp. 2d 68, 71 n.5 (D.D.C. 2010). Plaintiff's suggestion that Defendant is precluded from seeking summary judgment is thus entirely misplaced.
Title VII provides, in relevant part, that it is unlawful for an employer "to discriminate against any of [its] employees . . . because [she] has made a charge . . . or participated in any manner in an investigation" of discrimination. 42 U.S.C. § 2000e-3(a). "In order to prevail upon a claim of unlawful retaliation, an employee must show 'she engaged in protected activity, as a consequence of which her employer took a materially adverse action against her.'" Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009) (quoting Weber v. Battista, 494 F.3d 179, 184 (D.C. Cir. 2007)). "[A] 'materially adverse' action for purposes of a retaliation claim is one that 'could well dissuade a reasonable worker from making or supporting a charge of discrimination.'" Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
Plaintiff initially suggested in her First Amended Complaint that she suffered a materially adverse employment action when "she was transferred to Landover, Maryland to work as a recruiter for bus operators." First Am. Compl., ¶ 24. Plaintiff, however, appears to have abandoned this theory, since it appears nowhere in her briefs. Instead, she now argues that the adverse action occurred when "Sampson attempted to force her to resign" by offering her a severance package and then questioned her about "projects she was expected to work on." Pl.'s Reply at 4.
Such an allegation is plainly insufficient to prevail here because no reasonable jury could find that the proffer of a severance package and resulting discussion constituted a materially adverse employment action. "To establish an adverse personnel action in the absence of diminution of pay or benefits, plaintiff must show an action with 'materially adverse consequences affecting the terms, conditions, or privileges of employment.'" Stewart v. Evans, 275 F.3d 1126 (D.C. Cir. 2002) (quoting Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)); see also Walker v. WMATA, 102 F. Supp. 2d 24, 29 (D.D.C. 2000) ("An employment decision does not rise to the level of an actionable adverse action . . . unless there is a 'tangible change in the duties or working conditions constituting a material employment disadvantage.'" (quoting Kilpatrick v. Riley, 98 F. Supp. 2d 9, 10 (D.D.C. 2000))). Despite styling the offer of the severance package as an "attempt to force her to resign," Pl.'s Reply at 4, Plaintiff simply has not identified any adverse action taken because she declined to accept it. In other words, Plaintiff lost no benefit, no salary, and no leave in connection with the severance offer. Plaintiff, moreover, points to no threats, implicit or explicit, connected with Defendant's offer. And while Plaintiff may well have found it uncomfortable to "come up with a list of projects" she wanted to work on and "stat[e] how [she] would make a positive contribution," Pl.'s Reply at 4 (quoting Pl.'s Dep. at 54-56), this is the type of work typical employees are required to do every day. Even if they were not, such "petty slights [and] minor annoyances" do not rise to the level of a materially adverse employment action. Burlington Northern, 548 U.S. at 68.
Because no reasonable jury could find that the severance-package offer and resulting discussion constituted "materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm," Forkkio v. Powell, 306 F.3d ...