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Rixene W. Hicks v. Joshua Gotbaum

December 12, 2011


The opinion of the court was delivered by: Signed by Chief Judge Royce C. Lamberth.


Rixene W. Hicks, an administrative specialist with the Pension Benefit Guaranty Corporation ("PBGC"), an agency of the United States government, brings this action against Joshua Gotbaum, the director of PBGC. Hicks alleges that the agency discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a.*fn1 Before the Court is PBGC's motion for summary judgment [Dkt. #38]. Upon consideration of the motion, the opposition thereto, oral argument, and the record of this case, the Court concludes that PBGC's motion must be granted.


The events giving rise to this case began when Hicks, an African American female over the age of 40, was detailed to PBGC as a "collateral duty counsel" with PBGC's equal employment office ("EEO office") in 2005. Am. Compl. ¶ 4; Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. 6 (Decl. of Rixene Hicks, Oct. 31, 2008) ("Hicks Decl.") at 2. In May 2006, Hicks was selected for a position as a GS-9 Administrative Specialist in PBGC's EEO Office. Hicks Decl. at 2.

For Hicks's work during fiscal year 2006, Hicks's supervisor, Lori Bledsoe, awarded her an "outstanding" rating. Hicks Decl. at 2; Def.'s Mot., Ex. 1 (Decl. of Lori Bledsoe, June 12, 2009) ("Bledsoe Decl.") at 2. Bledsoe contends, however, that in the fiscal year beginning after October 1, 2006, Hicks began to demonstrate performance problems. Bledsoe Decl. at 3. Specifically, Bledsoe avers that Hicks failed to provide updates to her supervisors regarding the status of her pending work; failed to proofread budget reports, EEO counselor reports, and meeting minutes prior to submitting them to her supervisors; and failed to timely pay PBGC contractors for their services. Bledsoe Decl., Attach. 2 (Memo from Lori Bledsoe to Rixene Hicks, May 10, 2007) ("Bledsoe Memo"). On April 5, 2007, Bledsoe instructed PBGC's Human Resources Department not to process Hicks' promotion to the GS-11 level. Bledsoe Decl., Attach. 1 (email from Lori Bledsoe to Human Resources Department, Apr. 5, 2007).

Bledsoe and Hicks met on May 10, 2007 to discuss Hicks's performance. Hicks Decl. at 2; Bledsoe Decl. at 3. Hicks contends that this meeting marked the first time Bledsoe informed her of any problems with her performance. Hicks Decl. at 2. Bledsoe maintains that she had previously raised these performance issues with Hicks during "day to day discussions," although she does not provide specific dates on which such discussions occurred. Bledsoe Decl. at 3.

On May 30, 2007, Hicks filed a grievance against Bledsoe, as a result of learning that she would not be promoted. Am.Compl. ¶ 8; Hicks Decl. at 2. After the filing of the grievance, Bledsoe and Hicks met again. Am. Compl. ¶ 9. Hicks contends that Bledsoe "demanded" that she sign a memorandum regarding a "counseling session that [Hicks] did not agree had taken place," and with which Hicks did not agree. Id. ¶ 11. Hicks further avers that Bledsoe denied her demands for a witness to be present, id. ¶ 12, and that when Hicks attempted to leave, Bledsoe "hollered" at her and physically blocked her exit, resulting in an injury to Hicks's rotator cuff. Id. ¶¶ 12--14; Hicks Decl. at 5.

Subsequently, Hicks applied for workers' compensation benefits for the injury she suffered as a result of the meeting. Hicks Decl. at 6. Hicks contends that PBGC obstructed her efforts to receive compensation by refusing to process her claim. Am. Compl. ¶ 34. PBGC's records indicate that the agency took some initial action on November 7, 2007 and then resubmitted the claim to the Department of Labor on February 13, 2008. Def.'s Mot., Ex. 12 (letter from Stephanie Holder, Nov. 6, 2007); Def.'s Mot., Ex. 14.*fn2

Hicks was transferred from the EEO office to PBGC's Office of Chief Counsel ("OCC") in July 2007. Def.'s Mot., Ex. 3 (Decl. of Betsy Masuoka, Oct. 10, 2008) ("Masuoka Decl.") at

1. Several months later, she accepted an offer of permanent reassignment to OCC at the GS-9 level. Def.'s Mot, Ex. 8 (Decl. of Ruben Moreno, Oct. 10, 2008) at 4; Matsuoka Decl. at 1--2. This position came with the possibility of upward mobility to GS-11, Moreno Decl. at 4. PBGC has on at least one occasion chosen not to promote her to this higher level, and at the time of the parties' most recent briefing in this case, Hicks remained at GS-9.

Hicks filed a complaint in the Superior Court of the District of Columbia in October 2007. See Notice of Removal of a Civil Action, at ¶ 2 [Dkt. # 1]. She also initiated contact with the Equal Employment Opportunity Commission ("EEOC") on November 26, 2007 and filed a formal complaint on July 16, 2008. Def.'s Mot., Ex. 17 at 1--2. PBGC removed the Superior Court action to this Court in November 2007. See Notice of Removal of a Civil Action, at ¶ 2.

In the case at bar, Hicks alleges that PBGC discriminated against her on the basis of her race, sex, and age by failing to promote her to the GS-11 level. She also alleges that, in retaliation for filing a grievance against Bledsoe, Bledsoe denied Hicks promotions and "further created a hostile work environment." Am. Compl. ¶ 44.*fn3 PBGC denies all of Hicks's allegations and contends that it is entitled to summary judgment.


Summary judgment may be granted only where "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 Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A material fact is one that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A genuine issue exists where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 248. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the non-movant. Id. at 255. But the nonmoving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(c); Celotex,477 U.S. at 324. If the evidence is "merely colorable" or ...

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