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Kelly Wardell v. Hilda Solis

October 19, 2011


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


Plaintiff Kelly Wardell is employed by Defendant, the U.S. Department of Labor, as a GS-12 criminal investigator in the Office of Labor Racketeering and Fraud Investigations (OLRFI). Approximately six months after returning from maternity leave, Plaintiff was transferred to a different unit of the OLRFI. She claims that Defendant discriminated against her on the basis of sex - in particular, by treating new mothers differently than new fathers - both in transferring her and in failing to nominate and promote her to a GS-13 position. Defendant has now moved for summary judgment. Because no reasonable jury could find that Defendant's stated reasons for declining to promote Plaintiff were pretextual, the Court will grant Defendant's Motion with respect to the promotion claim. As disputes of material fact preclude summary judgment on the transfer claim, however, it will deny Defendant's Motion on that issue.


Plaintiff was initially hired by the Washington Regional Office (WRO) of the OLRFI as a GS-5 student trainee while she was still in college in 2002, and she was promoted to a GS-7 criminal investigator position (also referred to as a "special agent") upon her graduation later that year. Pl.'s Resp. to Def.'s SUMF, ¶¶ 1-2. In March 2005, she was transferred as a GS-9 criminal investigator to the Protective Operations Unit (POU), a unit of the OLRFI created after September 11, 2001, to provide day-to-day protection to the Secretary of Labor, on a temporary detail assignment. Id., ¶ 4; Mot., Exh. 21 (Decl. of Thomas Farrell), ¶ 4. She was promoted to the GS-11 level a few months later and was officially reassigned to the POU in October 2005.

Pl.'s Resp. to Def.'s SUMF, ¶ 4.

Dennis Chomicki, the Special Agent in Charge (SAC) of the POU during Plaintiff's tenure there, promoted Plaintiff to a GS-12 position on August 6, 2006. Id., ¶ 5. Approximately ten months later, in June 2007, Plaintiff asked SAC Chomicki when she would be promoted to the GS-13 level, the top rung of the criminal investigator career ladder. Id., ¶¶ 6-7. Chomicki advised her that in order to receive a promotion she should continue to work on domestic and international trips and complete a protection class. Id., ¶ 6.

In November 2007, Plaintiff informed SAC Chomicki that she was pregnant. Id., ¶ 9. On or about January 31, 2008, she told SAC Chomicki that, per her doctor's advice, she would not be able to wear a weapons-and-equipment belt or carry a firearm for the remainder of her pregnancy. Id., ¶ 9; Mot., Exh. 8 (Decl. of Dennis Chomicki), ¶ 3. From February 3, 2008, until she began her maternity leave, accordingly, Plaintiff worked "light duty special assignments." Pl.'s Resp. to Def.'s SUMF, ¶ 9; Chomicki Decl., ¶ 3. She took maternity leave beginning May 11, 2008, and returned to work on August 18, 2008. Pl.'s Resp. to Def.'s SUMF, ¶ 10.

Plaintiff was transferred from the POU back to the WRO on February 15, 2009. Pl's Resp. to Def.'s SUMF, ¶ 13. She maintains that she did not seek - indeed, that she opposed - the transfer. Pl.'s SUMF, ¶ 25; Opp., Exh. 1 (Pl.'s Decl.) at 6. She alleges her transfer was discriminatory, pointing in particular to statements made by SAC Chomicki both to her and to her former supervisor, John Dolce, about the difficulties new mothers face in the POU. See Pl.'s SUMF, ¶¶ 26-27; Pl.'s Decl. at 6; Opp., Exh. 2 (Aff. of John Dolce), ¶ 8. Assistant Inspector General (AIG) Thomas Farrell, the individual ultimately responsible for the transfer, however, has testified that Plaintiff was transferred because she herself requested it. See Mot., Exh. 15 (Aff. of Thomas Farrell) at 2; see also id., Exh. 14 (Farrell Email, October 16, 2008). Plaintiff was never nominated for a promotion to the GS-13 level position. Pl.'s Resp. to Def.'s SUMF, ¶ 14.

Plaintiff filed an administrative complaint of discrimination with the DOL Civil Rights Center on April 23, 2009. Id., ¶ 16. That complaint was dismissed following Plaintiff's filing of the instant suit on November 3, 2009. Id., ¶ 17. Her Complaint alleges that she was discriminated against on the basis of her gender both when Defendant did not nominate her for a GS-13 promotion after she returned from maternity leave and when Defendant transferred her from the POU to the WRO. Compl., ¶¶ 7.1.1-7.1.2. Defendant has now filed a Motion for Summary Judgment.*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 ...

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