The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge United States District Court for the District of Columbia
Plaintiff Patricia Brooks alleges that her employer, the United States Merit Systems Protection Board ("MSPB" or "the Board"), discriminated against her on the basis of her race and gender and retaliated against her for asserting her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. Brooks has brought an official-capacity suit against MSPB Chairman Susan Tsui Grundmann,*fn1 whom the Court will refer to as though she were the Merit Systems Protection Board itself. Before the Court is the Board's motion for judgment on the pleadings or, in the alternative, for summary judgment [Dkt. # 70]. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the Board is entitled to summary judgment.
The Board has moved for a judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Such a motion is evaluated under the same standard as a Rule 12(b)(6) motion to dismiss, see, e.g., Robinson-Reeder v. Am. Council on Educ., 532 F. Supp. 2d 6, 12 (D.D.C. 2008), and, like a 12(b)(6) motion, must be converted to a Rule 56 motion for summary judgment if "matters outside the pleadings are presented to and not excluded by the court." FED. R. CIV. P. 12(d). Because such matters have been presented and will be considered, the Court treats this motion as one for summary judgment.
A motion for summary judgment should be granted only "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). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must support its factual positions by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its burden, the non-moving party must then establish that a genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To meet its burden, the non-moving party must show that "the evidence is such that a reasonable jury could return a verdict" in its favor. Anderson, 477 U.S. at 248. Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine dispute for trial. See FED. R. CIV. P. 56(c)(1), (e); Celotex, 477 U.S. at 322 n.3. If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249--50.
On this motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in her favor. See Venetian Casino Resort, LLC v. E.E.O.C., 530 F.3d 925, 929 (D.C. Cir. 2008).
For more than twelve years, Patricia Brooks has worked in the Office of Information Resources Management of the United States Merit Systems Protection Board, an independent, quasi-judicial agency that enforces the merit-based pay and promotion provisions of federal civil service laws. Pl.'s Mem. in Opp. to Summ. J. ("Pl.'s Opp."), Ex. 1 (Aff. of Patricia Brooks (May 21, 2007)) ("Brooks Aff."), at 2. Tommy Hwang became the director of that office in 2005.
Pl.'s Opp., Ex. 13 (Dep. of An-Ming ("Tommy") Hwang (June 16, 2009)) ("Hwang Dep."), at 72. Nick Ngo was his deputy and Brooks's direct supervisor. Id. at 135--36. Brooks is a black woman. Hwang and Ngo are Asian men.
Brooks alleges that, in early 2005, Ngo told her that people in the office were questioning whether she deserved her place on the civil service pay scale, Brooks Aff. at 11, and that, in March and April of that year, Hwang and Ngo criticized her performance on several projects. Id. at 8. In May of 2005, Brooks gave a presentation that was very poorly received by Hwang. Id. at 2; Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. 3 (Aff. of An-Ming Hwang (May 8, 2007)) ("Hwang Aff."), at 3. Although there is some dispute about how Hwang expressed his displeasure, the parties agree that he slammed his hand on the table. Brooks Aff. at 2; Hwang Aff. at 3. According to Brooks, he yelled, belittled her, and angrily threw a notebook in her direction. Brooks Aff. at 2. Brooks reported this incident to Neil McPhie, who was then chairman of the Board. McPhie set up a meeting with his chief of staff, who in turn recommended mediation. Id. After Brooks and Hwang participated in that mediation session, Hwang sent emails asking Brooks to explain her performance on several assignments. Id. At the meeting to conduct Brooks's performance appraisal for 2005, Hwang and Ngo criticized her management skills and included that criticism in a document attached to her review. Id. at 4--5.
In early 2006, Ngo suggested that Brooks "beef up" her weekly status reports. Id. at 9. Later that year, Brooks alleges, he demanded that she provide him with more detailed reports on her progress at work than he demanded from other employees. Id. Ngo's mid-year review of Brooks stated that she "has tendencies to underestimate effort, issues, and expectations that ha[ve] resulted in missed target dates for projects." Pl.'s Opp., Ex. 24, at 9 (Fiscal Year 2006 Mid-Year Performance Feedback and Comments (Apr. 21, 2006)). In late August 2006, Brooks contacted Julio Matta, the director of the equal employment opportunity office for the MSPB, to express her concern that she would be unreasonably held to an arbitrary deadline that she could not meet on a major project. Brooks Aff. at 3. In late October, Ngo refused to sign off on Brooks's time sheet, and questioned whether she had worked all of the hours that she claimed on a certain day. Id. Brooks again contacted Matta. Id. At a meeting held to discuss Brooks's time reporting on the day in question-and attended by Brooks, Hwang, Matta, and Ngo-Ngo indicated that he had recently been keeping a close watch on Brooks's attendance and her reported hours. Id. at 3--4. Brooks was ultimately paid for the time in question. Def.'s Mot., Ex. 6 (Aff. of Nick Ngo (May 8, 2007)) ("Ngo Aff."), at 3.
Several days after that meeting, Ngo conducted Brooks's fiscal-year-end performance evaluation. According to Brooks, at the evaluation meeting Ngo said that she had difficulty relating to her peers, though he only mentioned a single example-a disagreement between Brooks and a co-worker in which, as Brooks recalls, Ngo had appeared to side with her. Brooks Aff.at 5--6. Ngo also criticized her for being late on the project referenced above, even though Brooks believed that the real deadline had not yet passed. Id. at 10--11. In the written evaluation, Ngo recorded that Brooks "failed to provide timely weekly activity reports on numerous instances even though management reminded her to do so numerous times" and "did not provide acceptable reasons for the delays." Pl.'s Opp., Ex. 24, at 10 (Performance Evaluation of Patricia Brooks, Oct. 1, 2005--Sept. 30, 2006). He also wrote that Brooks "needs to work on her listening skills as well as being less argumentative with colleagues." Id. at 11. Ngo gave Brooks an overall rating of "Minimally Successful" for fiscal year 2006. Id. Brooks believed that this evaluation was unwarranted. Brooks Aff. at 5.
On February 20, 2007, Brooks filed a formal complaint with the Board's equal employment opportunity office.*fn2 Later that year, she received an annual performance rating of "Fully Successful." Def. Mot., Ex. 4, at 5--6 (Performance Evaluation of Patricia Brooks, Oct. 1, 2006--Sept. 30, 2007). Not long after that performance review was conducted, Brooks and Bill McDermott, a co-worker, had a confrontation in a team meeting. After the incident, a series of emails were exchanged. Brooks stated that McDermott "became visibly angry without provocation and made insulting remarks to me in front of the other Team Leaders," that he "erroneously stated that I did not respond to a question about" a particular software package, and that he "yelled and became so angry that [Hwang] and Nick [Ngo] had to tell him to 'calm down.'" Def. Mot., Ex. 7, at 6 (Email from Patricia Brooks (Nov. 15, 2007, 12:52 p.m.)). Hwang responded to Brooks that he "did not hear any insulting remarks being made to you or anybody else. After Bill [McDermott] made that one loud statement, and a back and forth discussion looked like it was about to ensue, I stated, 'calm down' so that we can stop the discussion and continue with the meeting." Id. at 5 (Email from ...