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Ann. A. Bright v. Michael J. Copps

December 9, 2011

ANN. A. BRIGHT PLAINTIFF,
v.
MICHAEL J. COPPS, ACTING CHAIRMAN FEDERAL COMMUNICATIONS COMMISSION DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff Ann Bright ("Bright"), an African American female, is employed as an auditor with the Federal Communications Commission ("FCC"). She contends that her employer discriminated against her and subjected her to a hostile work environment because of her race and gender and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e -2(a).*fn1 Before the Court is defendant's motion for summary judgment. For the reasons set forth below, defendant's motion for summary judgment will be granted in part and denied in part.

BACKGROUND

I. FACTUAL BACKGROUND

Bright began her career with the FCC as an accountant in the Cable Services Bureau in 1994. (Def.'s Mot. for Summ. J. ("Def.'s Mot."), Statement of Material Facts Not in Dispute ("Def.'s Stmt.") ¶ 1; Def.'s Mot. at 3.) In 2002, Bright and a number of other auditors joined the newly-created Investigationsand Hearings Division ("IHD"), which is part of the FCC's Enforcement Bureau ("EB"), as part of anagency-wide reorganization. (Id. ¶ 2.)

Prior to the 2002 reorganization, the EB did not conduct audits; after the reorganization, IHD began conducting audits as a means of investigating potential violations of the Communications Act. (Id. ¶ 3 (referring to the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) (amending Communication Act of 1934)); see also Def.'s Mot., Ex. 3 (Trent Harkrader Dep. ("Harkrader Dep.")) 96:9 -- 96:17, Oct. 8, 2009.) This audit work included review of mergers, numbering audits, audit work regarding telecommunications companies, and oversight of a large grant fund, the Universal Service Fund ("USF"), that all telecommunications carriers pay into. (See Def.'s Stmt. ¶ 4; Harkrader Dep. 97:1-97:8; Def.'s Mot., Ex. 2 (Ann Bright Dep. ("Bright Dep.")) 16:6-16:10, July 12, 2011.) From the time that Bright was promoted to the position of auditor in 2003 until March 2005, she worked on only one audit, which was related to the USF. (Def.'s Stmt. ¶ 21; Bright Dep. 48:19-48:22.)

In March 2005 the new FCC's Chairman, Kevin Martin, issued a mandate directing the EB to use other means of enforcement instead of auditing individual companies. (Def.'s Stmt. ¶ 6; see Def.'s Mot., Ex. 1 (Hillary DeNigro Dep. ("DeNigro Dep.")) 18:12-19:1, July 29, 2011.) As a result, work within the IHD moved away from traditional audit work and became more like that performed prior to the 2002 reorganization. (DeNigro Dep. 20:1-20:13, 28:4-28:9; Harkrader Dep. 98:7-98:13.)

A. Detailing IHD Auditors to the Office of the Managing Director ("OMD")

In March 2005, there were eighteen full-time auditors in the IHD and, following Chairman Martin's announcement, supervisors within the EB struggled to find auditing work commensurate with the auditors' skill levels. (DeNigro Dep. 24:22-25, 29:7-29:9, 37:7-37:13.)*fn2

Some auditors were "detailed" (temporarily assigned) to work with other agencies that could make use of their skills. Some of these details resulted in "reassignment" -permanent placement in other agencies. (Id. 36:1-36:12.) Ten of the eighteen auditors were initially detailed (and subsequently permanently reassigned) to the Office of the Managing Director ("OMD"). (Def.'s Mot, Ex. 10 (Decl. of Noelle M. Green) ("Green Decl.") ¶ 3; Def.'s Mot. at 6.)*fn3 Nine of those detailed to the OMD were Caucasian and one was African-American. (Def.'s Reply at 6.) Eight of those detailed to the OMD were male and two were female. (Id.) The racial and gender make-up of the eight auditors who remained in the IHD was as follows: one African-American female, one African-American male, one Hispanic male, and one Asian male. (Green Decl. ¶ 5; Pl.'s Mot. at 14-15.) The other four auditors remaining in the IHD were Caucasian. (Green Decl. ¶ 5.)*fn4 According to Bright, four of these eight individuals had either filed EEO complaints or union grievances. (Pl.'s Opp'n at 15.)

B. Work Assignments within IHD Auditors

The auditors who remained in the IHD were required to perform other IHD work, some significant portion of which was clerical. (Def.'s Stmt. ¶¶ 9-15; Pl.'s Stmt. ¶¶ 10-14.) These non-auditing assignments provided to the auditors after 2005 included working with the Media Bureau to determine the amount of local content on broadcast stations, working to transition from analog to digital television, verifying the accuracy of invoicing related to contractor work associated with the digital television transition, and several "all-hands assignments," including work related to the Telecommunications Consumer Protection Act, 47 U.S.C. §§ 227 et seq., and processing "indecency" complaints against television stations, radio stations, and cable satellite providers. (Def.'s Stmt. ¶¶ 10, 11; DeNigro Dep. 37:7-41:12: Def.'s Mot., Ex. 4 (Benigno Bartolome Dep. ("Bartolome Dep.")) 12:16-12:22, July 29, 2011.) All auditors who remained in the IHD after 2006-2007 were asked to work on assignments relating to indecency complaints. (Def.'s Stmt. ¶ 13; Bartolome Dep. 21:21-22:21.)

Beginning in 2007 Bright was assigned to work on indecency complaints. (2010 Compl. ¶ 8.) Bright maintains that she was asked to do more clerical work than the other auditors remaining in the IHD. (Bright Dep. 21:5-21:7; 2010 Compl. ¶ 9; see also 2008 Compl. ¶¶ 16, 17 (alleging that Bright was required to attend a training seminar to review indecency complaints and subsequently assigned duties including preparing mailing labels and stuffing envelopes).)

After 2005, the IHD conducted a very small amount of "in-house" audit work within the EB. Some auditors who remained in the IHD were assigned to that auditing work and some were offered the opportunity to do auditing work through details to other agencies. (Def.'s Stmt. ¶¶ 16-18; see DeNigro Dep. 20:4-20:19, 29:10-29:18, 107:20-108:9.) Defendant contends that work within the IHD was distributed in an equitable manner. (Def.'s Stmt. ¶¶ 13, 16.) Bright alleges that in 2007 three Caucasian male auditors were given audit assignments and were not given clerical work assignments (2008 Compl. ¶ 19) and that she, by contrast, "has not received an auditing assignments [sic] since early 2005." (Id.)

Between 2005 and 2009, Bright worked on one of the in-house audits and was offered various other details (Def.'s Stmt. ¶ 28; Def.'s Mot., Ex. 5 (Hillary DeNigro Decl. ("DeNigro Decl.")) ¶ 3; Bartolome Dep. 54:21- 55:9; Bright Dep. 53:24-54:1), although the parties disagree regarding whether those details involved "substantive" work. (Compare Def.'s Stmt. ¶ 18 with Pl.'s Stmt. ¶ 18.)*fn5 Bright worked on some of these details and declined to work on others. (Def.'s Stmt. ¶¶ 17-19; Pl.'s Stmt. ¶ 18.) Her supervisors and co-workers on the projects she did work on reported that she did not complete her work on some of those projects. (DeNigro Decl. ¶ 4.)

C. Reassignment Request

On March 13, 2007, Bright met with George Dillon to request to be reassigned to the Atlanta field office of the EB. (Bright Dep. 112:16-112:22; Pl.'s Opp'n at 17; see also id. at 19 (indicating that this discussion occurred in April 2007).) *fn6 At that time there were no open auditor positions in the Atlanta office and it was only staffed with engineers and compliance specialists. (Def.'s Stmt. ¶¶ 23-24; Def.'s Mot., Ex. 8 (Kris Montieth Dep. ("Montieth Dep.")) 98:3- 98:10, Sept. 5, 2007.) The only auditors that were part of the EB but not based at EB headquarters were the two individuals based in New York who telecommuted; these individuals had been part of the Common Carrier Bureau since approximately 1978. (Def.'s Stmt. ¶ 25; DeNigro Dep. 22:5-24:7.) When the FCC reorganized and moved them to the EB, they were permitted to remain part of the New York field office. (Def.'s Stmt. ¶ 25; DeNigro Dep. 22:5-24:7.) No other field office had auditors. (Def.'s Mot. at 28; see also Bright Dep. 112:11-112:15, 121:4-121:10.) When Bright asked to be reassigned to the Atlanta office, Dillon explained that, in order for an employee to be reassigned, "there needs to be a vacancy at that office." (Def.'s Stmt. ¶ 22; Def.'s Mot., Ex. 9 (George Dillon Dep. ("Dillon Dep.")) 153:17-154:23, Sept. 13, 2007.)*fn7 He told her that there were only two non-auditor positions available in the Atlanta office-senior agent engineer and compliance specialist. (Def.'s Stmt. ¶ 24; Pl.'s Opp'n at 19.) He indicated that he thought that she would not likely be selected because of her lack of technical engineering experience. (Dillon Dep. 151:8-152:11; Pl.'s Opp'n at 19.) He also said that he thought that she might make the "best qualified" list for the compliance specialist position because it did not require a technical degree in engineering. (Dillon Dep. 151:23-152:14.) Bright responded that the compliance specialist position was not a professional grade position and would be a demotion for her. *fn8

D. Subsequent Work Environment, Medical Accommodations, and Request for In-Person Meeting

According to Bright, she was "required to endure mistreatment with regard to the undermining of her mental capabilities" and "forced to work in an unsympathetic and hostile working environment" throughout this time. (2008 Compl. ¶ 20.) Bright alleges that, at the time of these events, the FCC indecency policy allowed broadcasters to use the word "nigger," which she found "highly offensive." (Id. ¶ 21.)

Sometime on or about May 2, 2007, Bright filed a charge of discrimination ("2007 EEO Complaint") with the EEO Program Manager within the FCC. (See 2008 Compl. ¶ 24.)

On June 26, 2007, Bright met with Montieth as part of the informal EEO process. (Id.) On that same day, Bright was assigned a task involving the preparation of labels and stuffing envelopes. (Pl.'s Opp'n at 15.)

In February 2008 Ben Bartolome, one of Bright's direct supervisors and the IHD manager overseeing the indeceny project, requested that Bright update the project database, confirm that indecency complaints had been scanned, and draft letters. (Id. at 3; Def.'s Mot. at 35.) After Bright indicated that, due to her carpal tunnel syndrome,*fn9 she could not perform repetitive tasks like typing, she was permitted to handwrite letters. (Pl.'s Opp'n at 16.) Robin Peltzman, a Caucasian paralegal, was assigned to type the letters she drafted. (Id.)

In April 2008 Bright was diagnosed with chronic cervical strain, in addition to her carpal tunnel syndrome (which was originally diagnosed in 1996). (See id. ¶¶ 7, 11.) To accommodate her medical disabilities, Bright was provided with assistants to help her write and type (Def.'s Stmt. ¶ 31; see Bartolome Dep. 65:15 -- 66:18), voice-activated software, a special chair, and other accommodations with respect to her work station. (Def.'s Stmt. ¶ 32; see Def.'s Mot., Ex. 12 ( Lawrence Schaffner Dep. ("Schaffner Dep.")) 24:11- 25:3, July 29, 2011.)

From May through November 2008, Bright was assigned to assist Patricia Green, another auditor, with the "For Cause Audit/Investigation." (2010 Compl. ¶¶ 12-13; Pl.'s Opp'n at 16 (referring to this project as the "numbering audit".).) This assignment was made when Green, who was already on the "For Cause Audit/Investigation," requested assistance. (2010 Compl. ¶ 12.)

On August 14, 2008, IHD Chief Hillary DeNigro ("DeNigro") approved an agreement allowing Bright to telecommute to work two days per week. (See Def.'s Mot., Ex. 14 ("Telecommuting Agreement").) The first sentence of this agreement provided that, even on telecommuting days, employees may be required to come into the office for reasons including meetings, trainings, and work that must be conducted on-site. (Id.)

On November 20, 2008, Bright received a mid-year evaluation from her supervisors Trent Harkrader and Bartolome. (2010 Compl. ¶ 14.) At that meeting, Bright indicated that she experienced pain when she performed repetitive work and, when asked what work she would be able to do, she responded "audit work." (Id.) Bright alleges that, later that day, DeNigro yelled at her outside her office and, when Bright told her to watch her tone, DeNigro threatened Bright with insubordination. (Id.)

On November 21, 2008, Bright was removed from the audit assignment and assigned to perform clerical duties instead. (Id. ΒΆ 13.) Later that day, a co-worker told Bright that she had been removed because management had decided that only one auditor would be ...


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