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Selena P. Hutchinson v. Eric Holder

October 3, 2011


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff Selena Hutchinson is a black female employed by the Federal Bureau of Investigation. She claims that the FBI took several discrete employment actions that constituted discrimination and retaliation. She also alleges that the FBI subjected her to a hostile work environment. Several of her discrete discrimination and retaliation claims were previously dismissed by the Court or have since been withdrawn. Defendant has now filed a Motion for Summary Judgment with respect to what remains. Because no reasonable jury could find that Plaintiff suffered an adverse employment action with regard to one of her discrete claims, that Defendant's stated reasons for its other employment decisions were pretextual, or that Plaintiff was subjected to a hostile work environment, the Court will grant Defendant's Motion.


Plaintiff has been employed by the FBI since March 25, 1990. Compl., ¶ 14. She worked in an IT unit that was part of the Foreign Terrorist Tracking Task Force (FTTTF), a stand-alone entity with its own IT support unit, in the Counterterrorism Division (CTD) of the FBI. See Mot., Exh. 1 (Pl.'s Dep.) at 33-36; Def.'s Stat. Undis. Mat. Facts (SUMF), ¶ 2. She was initially hired as a GS-13 Computer Equipment Analyst, was promoted to the GS-14 level in 1991, and then moved to the GS-15 level in 1995. Compl., ¶¶ 14-15. FBI records showed that her official title at the GS-15 level remained "Computer Scientist" throughout the time period in issue. See Pl.'s Dep. at 26; Reply, Exh. 6 (Personnel Action History, Selena P. Hutchinson). Beginning in 2003, however, Plaintiff was informed by her supervisor, Mark Tanner, that she held a Unit Chief position; she also performed the duties usually associated with that role and was widely regarded to have held that position. See Opp., Exh. 5 (Aff. of Mark Tanner) at 3-4; id., Exh. 18 (Dep. of Jerome Duiguid) at 17-18; id., Exh. 30 (Aff. of Craig Kelly) at 3; id., Exh. 14 (Tanner Documents), passim; id., Exh. 10 (Dep. of James Loudermilk) at 38-39; id., Exh. 3 (Dep. of Thomas Harrington) at 21-22; Def.'s SUMF, ¶ 3.

Upon Tanner's retirement in 2005, Chief Technology Officer Jerome Israel briefly became Plaintiff's supervisor. Compl., ¶ 18. In September 2005, Israel hired Timothy Goodwin as a Unit Chief. Def.'s SUMF, ¶ 1; Israel Dep. at 32, 35. Two months later, the FBI implemented a reorganization in which the previously independent FTTTF IT unit in which Plaintiff worked was absorbed into the Office of the Chief Technology Officer (OCTO). See Pl.'s Dep. at 33-35; Def.'s SUMF, ¶ 6. Following the merger of the FTTTF's IT unit into OCTO, Goodwin was appointed to serve as Acting Section Chief over that unit. See Israel Dep. at 34-35, 41-42; Def.'s SUMF, ¶ 8. In early January, Plaintiff was informed that, as a result of this reorganization, Goodwin had become her direct supervisor. Compl., ¶ 21.

Meanwhile, sometime in late 2005, Israel -- who, after Goodwin's appointment to the Acting Chief position, was Plaintiff's "second-line supervisor" -- began to question Plaintiff's status as a Unit Chief. Id., ¶¶ 20-21. In response to Israel's inquiries, Tanner explained that he had appointed Plaintiff to a Unit Chief position and that she had been performing the duties associated with that role. See Tanner Aff. at 5; Tanner Documents, passim. On January 9, 2006,

Israel informed Plaintiff that she was not, in fact, a Unit Chief. See Compl., ¶ 20. Two days later, Goodwin provided Plaintiff with a new Performance Plan that indicated she no longer had supervisory responsibilities; he also informed two of Plaintiff's subordinate managers that she was no longer their supervisor and that they should report to him in the future. Id., ¶¶ 22-23. Plaintiff was also required to vacate her office. Id., ¶ 24. That same day, Plaintiff initiated informal contact with the FBI's Equal Employment Opportunity office. Id., ¶ 25.

The voluminous record details the deterioration of Plaintiff's relationships with Israel and Goodwin in the months that followed. On March 26, 2007, for example, Goodwin notified several individuals that he was removing Plaintiff from her role of Project Manager for two related projects called Guardian and e-Guardian. See id., ¶ 40. Plaintiff herself was notified three days later. Id. Plaintiff considered these to have been "the better known of the projects" she had been working on, Pl.'s Dep. at 51, and had received awards and commendations for her work on them. See Compl., ¶¶ 16, 30. After her removal from the projects, "she did not receive other assignments commensurate with her grade, skills, and knowledge, was not allowed to participate in decisionmaking, was not invited to meetings, and was not given any bona fide responsibilities or assigned duties." Id., ¶ 42.

In 2007, an individual filed an anonymous complaint with the FBI's Office of Professional Responsibility, alleging Plaintiff had authored three letters of recommendation on FBI letterhead using the title "Unit Chief" or "Acting Section Chief" when she was not entitled to do so. See Compl., ¶¶ 50-54, 63-64; Pl.'s Opp., Exh. 19 (OPR Documents), at 11-12. This complaint resulted in the initiation of an internal investigation of Plaintiff's conduct on April 13, 2007. See OPR Documents at 1. She admitted to having written the letters, but provided OPR with evidence that she had in fact been acting in those roles when she had sent the letters, and Tanner confirmed Plaintiff's assertions. See Compl., ¶ 54; OPR Documents at 11-12. On June 20, 2007, Plaintiff received a letter stating the matter had been referred to the Adjudication Unit for an outcome determination. Compl., ¶ 64. She never received a final determination, but eventually learned that the investigation had been closed. Id. The Adjudication Unit ultimately determined that Hutchinson had not violated a provision of the FBI Offense Code that prohibits "unprofessional conduct," but that she had violated another provision of that Code when she wrote the three letters. See OPR Documents at 11-12. The recommended penalty was an oral reprimand, id., but Plaintiff does not recall having received such a reprimand. See Pl.'s Dep. at 161.

In July 2007, Goodwin was transferred to a different unit, leaving a vacant Unit Chief position. See Compl., ¶¶ 61-62, 70; Def.'s SUMF, ¶¶ 61-62. Plaintiff sent Israel an email indicating that she wished to be considered to replace Goodwin. See Compl., ¶ 62; Israel Dep. at 182-83. Israel responded that he "appreciate[d her] willingness to step up" and that he was "evaluating [his] options and [would] let [her] know." Compl., ¶ 62. Plaintiff heard nothing further about the vacancy until July 5, 2007, when she learned that Richard Chandler, a white male who had previously been a Unit Chief elsewhere, had been appointed to the position. Id., ¶¶ 62, 70; Israel Dep. at 179-84. The vacancy had been neither posted nor opened for competition. Compl., ¶ 70; Israel Dep. at 179, 183-84.

Plaintiff identifies numerous other incidents between 2006 and 2008 that she found objectionable. Inter alia, Plaintiff alleges that she received multiple unfavorable performance reviews and several emails she found "demeaning" and "hostile"; in addition, she was subjected to comments she considered "hostile and inappropriate." See Mot., Exh. V to Parker Decl. (Pl.'s Resp. to Def.'s First Set of Interrogatories) at 1-9. She was again moved from her office and ultimately located "in unhealthy, undesirable seating space." Id. at 4. She alleges that she did not receive awards she believed were merited, was treated differently from other employees at the GS-15 level, and was not given promotions and opportunities she thought she deserved. See id. at 1-9.

As previously mentioned, Plaintiff initially contacted the EEO office on January 11, 2006. Compl., ¶¶ 7, 25. An internal mediation took place on April 30, 2006, but it did not result in the resolution of Plaintiff's complaint. Id. ¶ 26. She received a Notice of Right to File a Discrimination Complaint on February 27, 2007, and filed a formal complaint against Defendant on March 3. Id., ¶¶ 8-9. In February 2009, Plaintiff withdrew her request for a hearing and requested that the case be remanded to the FBI for a Final Agency Decision. Id., ¶ 12. That request was granted on March 2, 2009. Id.

She ultimately filed this suit in federal court on April 20, 2009. She claimed she had been discriminated against on the basis of her race and sex, retaliated against for complaining about the alleged discrimination, and subjected to a hostile work environment. Defendant subsequently filed a partial Motion to Dismiss, and Judge Ellen Segal Huvelle, to whom this case was previously assigned, dismissed certain of Plaintiff's individual discrimination and retaliation claims on November 12, 2009. See Hutchinson v. Holder, 668 F. Supp. 2d 201 (D.D.C. 2009). After discovery, Defendant has now moved for summary judgment on the remaining claims.*fn1

II.Legal Standard

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.


What currently remain in this case are four discrete claims of discrimination and/or retaliation and one of hostile work environment. More specifically, Plaintiff maintains that: 1) Defendant discriminated against her on the basis of race and sex "when it removed her from her position as Unit Chief and removed the vast majority of her duties" in January 2006, Opp. at 5;

2) Defendant discriminated and retaliated against her when "it removed Plaintiff's Program Manager responsibilities for Guardian and e-Guardian" in March 2007, id. at 9; 3) Defendant retaliated against her when an "anonymous individual filed a complaint against Plaintiff with the FBI's Inspection Division alleging that Plaintiff misused FBI letterhead and misrepresented herself by using the title Unit Chief or Acting Section Chief in three written documents" in April 2007, id. at 12; and 4) Defendant discriminated and retaliated against her when it "did not consider Plaintiff for the Unit Chief position" that became vacant in June 2007 and ultimately hired a white male. Id. at 14. Finally, she asserts that Defendant subjected her to a hostile work environment. The Court will first address each of the discrete claims and then tackle the issue of hostile work environment.

A. Discrete Discrimination and Retaliation Claims

Plaintiff contends that Defendant violated the anti-discrimination and -retaliation provisions of Title VII and Section 1981 with respect to four incidents. Title VII makes it unlawful for an employer to "to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin," 42 U.S.C. § 2000e-2(a), or "because [she] has made a charge . . . or participated in any manner in an investigation" of employment discrimination. 42 U.S.C. § 2000e-3(a). Section 1981 prohibits racial discrimination in "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court established the familiar three-step "burden-shifting approach to employment discrimination claims in cases where the plaintiff lacks direct evidence of discrimination." Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C. Cir. 2006). "[W]here an employee has suffered an adverse employment action and an employer has asserted a legitimate, nondiscriminatory reason" for its employment decision, however, the Court need ...

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