The opinion of the court was delivered by: Chief Judge Royce C. Lamberth
This case involves allegations of unlawful racial discrimination, hostile work environment and retaliation by the Office of the Architect of the Capitol ("OAC"). Before the Court is defendant's Motion for Summary Judgment or Judgment on the Pleadings. Def.'s Mot. , Nov. 8, 2011. Having carefully considered the motion, the opposition, the reply, the entire record in this case, and the applicable law, the Court will grant defendant's Motion. A review of the background of the case, the governing law, the parties' arguments, and the Court's reasoning in resolving those arguments follows.
In April 2005, Iris Smith, a Caucasian GS-13 Human Resources Specialist, resigned from the OAC. Newton Decl. ¶ 4. The OAC subsequently advertised an employment vacancy for a "Human Resources Specialist (Employee Benefits), GS-0201-12." Def. Not. Filing Ex. 1 [21-1], at 1 ("Def. Ex."); Def. Statement of Material Facts Not in Dispute ¶ 2 ("Def. SMF"). The vacancy announcement listed the "promotion potential" for this position as "12." Def. Ex. 1 [21-1], at 1. The application deadline was April 29, 2005. Id.
On October 2, 2005, the OAC filled the vacancy by hiring plaintiff Margaret Newton, an African American. Compl. ¶ 13; Def. SMF ¶ 3. She was hired as a GS-12, Step 4, Human Resources Specialist in the OAC's Human Resources Management Division ("HRMD"). Id. Newton's previous employment was as a GS-11 Legal Administrative Specialist in the Office of Personnel Management. Def. Ex. 9 [21-9], at 2. This GS-11 position was her highest grade level position in the federal competitive service prior her appointment in the HRMD. Def. SMF ¶ 4.
The names of the HRMD's various branches and its organizational structure prior to October 2006 are unclear from the record.*fn1 It appears that the OAC hired Newton into the HRMD's Employee Benefits & Services Branch. Def. SMF ¶ 3; Def. Ex. 1. Newton's first-line supervisor during this time was Maria Wennersten, Chief of the Employee Benefits & Services Branch. Compl. ¶ 14; Def. SMF ¶ 4. The Employee Benefits & Services Branch also included Karen Bowman, a Caucasian GS-13 Human Resources Specialist, as well as support staff. Tiscione Decl. [21-1] ¶ 12. Bowman retired on September 15, 2006, and her GS-13 position was eliminated. Id. ¶ 13; Pl. Ex. 1 [22-1].
One month after Bowman's retirement, the HRMD was reorganized and Chief Wennersten became head of a different branch. Tiscione Decl. ¶¶ 14--19. Newton states that she was informed by Chief Wennersten that, pursuant to the reorganization, her "position would be reclassified as a 'GS-12/13 HR Specialist (Retirement)' career ladder position." Newton Decl.
¶ 13. One important attribute of a "career ladder" position, according to the HRMD Manual, is that it makes the incumbent eligible to be noncompetitively promoted to a higher grade. Def. Ex. 7 [21-7], at 47. The OAC disputes Newton's assertion that she ever held a "career ladder" position. Def. Mem. in Opp'n 17--18 ("Def. Opp'n"). As explained later, Newton does not proffer sufficient evidence for a reasonable jury to believe that she held a "career ladder" position, therefore no genuine dispute of material fact exists.
Because of the HRMD reorganization and Chief Wennersten's transfer to a different branch, Newton reported directly to HRMD Director Rebecca Tiscione, who served concurrently as Acting Chief of the Employee Benefits & Services Branch from October 2006, until March 4, 2007. Tiscione Decl. ¶¶ 18--19; Newton Decl. ¶ 14. During this six-month period, Newton was the only permanent Human Resources Specialist employed in the Employee Benefits & Services Branch. Def. SMF ¶ 7; Newton Decl. ¶ 8.
The parties dispute the type of work Newton performed during this six-month period. Newton states that she performed GS-13 level work during this period. Newton Decl. ¶ 16. By contrast, OAC states that Newton never performed GS-13 level work and that the GS-13 work during this timeframe was "either not needed at the time, or performed by the new Branch Chief when she was hired." Tiscione Decl. ¶ 18. Again, as later explained, this dispute is immaterial. On March 4, 2007, Rebecca Vento was hired as the new Chief of the Employee Benefits & Services Branch and became Newton's first-line supervisor. Def. SMF ¶ 9.
In January 2008, Newton met with Director Tiscione and Chief Vento to request "a noncompetitive promotion" to the GS-13 level. Def. SMF ¶ 10; Newton Decl. ¶ 30. Her request was denied. Def. SMF ¶ 14. On February 26, 2008, Chief Vento rated Newton "unsuccessful" in her 2007 annual review, subjecting Newton to the implementation of a Performance Improvement Plan ("PIP"). Def. SMF ¶ 12; Newton Decl. ¶ 23. On April 23, 2008, Newton filed a "Request for Counseling" with the Office of Compliance alleging unlawful racially discriminatory practices and a hostile work environment. Def. SMF ¶ 16.
On May 19, 2008, Newton applied for participation in an "Alternate Work Schedule" program, which Chief Vento denied on May 21. Def. SMF ¶¶ 14--15; Newton Decl. ¶¶ 34--35. The following day, Director Tiscione also denied Newton's participation "based on performance issues." Def. SMF ¶ 16; Newton Decl. ¶ 36.
On June 6, 2008, Chief Vento rescinded the "unsuccessful" rating in Newton's 2007 annual review and changed it to "fully successful." Def. SMF ¶ 17. Chief Vento also withdrew Newton's PIP because Chief Vento "did not perform the implementation of the PIP in a timely manner." Vento Decl. ¶ 19. Instead, that day Chief Vento placed Newton on a "work plan." Def. SMF ¶ 18; Newton Decl. ¶ 39. On June 30, 2008, Newton filed a second "Request for Counseling" with the Office of Compliance alleging a new round of unlawful racially discriminatory practices, retaliatory employment practices, and a hostile work environment. Def. SMF ¶ 19.
In July 2008, Newton was diagnosed with job-related depression, anxiety, insomnia and stress and took medical leave. Def. SMF ¶ 20. She concurrently filed a claim under the Federal Employment Compensation Act (FECA) alleging various "stressors" including "too much work for one person." Def. SMF ¶ 22; Def. Ex. 4, at 5. Her FECA claim also alleged that "[t]he stress of a hostile work environment and discrimination has caused me to become very ill." Def. SMF ¶ 23; Def. Ex. 4, at 13. As support for this statement, Newton presented an extensive list of her retirement services and clerical duties. Def. SMF ¶ 23, Def. Ex. 4, at 13--18. Newton remained on medical leave from July 2008 until February 2009. Def. SMF ¶ 25.
Defendant OAC has moved for judgment on the pleadings or, in the alternative, summary judgment. Def. Mot. Summ. J.  1. Because the Court relies on materials outside of the pleadings, the Court will consider the motion as one for summary judgment. See Fed. R. Civ. Pro. 12(d).
The Federal Rules of Civil Procedure state that "[t]he court shall grant summary judgment 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 (1986). The standard requires more than the existence of some factual dispute: "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247--48 (1986). A fact is material if, under the applicable law, it could affect the outcome of the case. Id. A dispute is genuine if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Also, because "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge," the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
A non-moving party, however, must establish more than "the existence of a scintilla of evidence" in support of its position. Id. at 252. Furthermore, it may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). To avoid summary judgment, the non-moving party must present specific facts that could enable a reasonable jury to find in its favor. Id. However, if the evidence presented is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249--50.
OAC moves for summary judgment on all of Newton's claims. Def.'s Mot. Summ. J.  36--37. As to her discrimination claims, OAC argues that she has failed to proffer sufficient evidence to undermine the OAC's legitimate business reasons for its decisions and that Newton has no evidence that her termination was racially motivated. Id. As to her hostile work environment claims, OAC argues that Newton's evidence demonstrates mere "isolated incidents," not the severe and pervasive conduct required to show a hostile work environment. Id. at 31. Finally, as to her retaliation claims, OAC argues that Newton has failed to establish a prima facie case of retaliation and to rebut the OAC's proffer that legitimate reasons-not retaliation-motived its actions. Id. at 17--24. Newton counters that summary judgment is inappropriate because a reasonable jury could conclude that the OAC's proffer is merely a pretext for prohibited racial discrimination and retaliation, and that she has presented sufficient evidence to establish her claims for a hostile work environment. Pl.'s Opp'n  18--37. The Court will discuss these and other arguments in the analysis that follows.
Newton brings eight discrimination claims against OAC under the Congressional Accountability Act, 2 U.S.C. 1311(a)(1) ("CAA") (Counts I--III, V, VII, IX, XI, XIII). Pursuant to the CAA, OAC employees are to be free from any discrimination based on race. 2 U.S.C. §§ 1301(3)(F), 1311(a)(1). Racial discrimination under the CAA is the same as discrimination "within the meaning of section 703 of the Civil Rights Act of 1964." § 1311(a)(1). Therefore, courts apply the traditional Title VII framework outlined by the D.C. Circuit in Brady v. Office of Sergeant at Arms, 520 F.3d 490 (2008).*fn2
In the usual cases, where (as here) an "employer has asserted a legitimate, non-discriminatory reason for the decision, . . . the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, sex, or national origin . . . ." Vatel v. ...