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Cenny C. Norris v. Kenneth Lee Salazar

August 17, 2012

CENNY C. NORRIS, PLAINTIFF,
v.
KENNETH LEE SALAZAR, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR,
DEFENDANT.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

The plaintiff, Cenny C. Norris, brings this action against her former employer, the Commission of Fine Arts ("CFA"), alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791 et seq. Specifically, the plaintiff alleges that the CFA discriminated against her based on her race and disability (a back injury) by awarding her a bonus of $4000 in 2004 instead of the $5000 she had hoped to receive, as well as by, inter alia, placing her on Absence Without Leave ("AWOL") status and denying her request to work from home on a part-time basis. See generally Amended Complaint ("Am. Compl."), ECF No. 14.*fn1

Pending before the Court is the defendant's Motion to Dismiss the plaintiff's Amended Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 18. For the reasons set forth below, the Court will grant the defendant's Motion to Dismiss.

I.BACKGROUND

A. FACTUAL ALLEGATIONS

The plaintiff, Cenny C. Norris,*fn2 is an African-American woman who was hired in February 2000 as the Administrative Officer of the CFA. See Am. Compl. ¶¶ 4, 6. The CFA, established in 1910, "is charged with giving expert advice to the President, Congress, and the heads of departments and agencies of the Federal and District of Columbia governments on matters of design and aesthetics, as they affect the Federal interest and preserve the dignity of the nation's capital." Def.'s Mem. in Supp. of Mot. to Dismiss ("Def.'s Mem."), ECF No. 18, at 2 n.2 (quoting the Commission of Fine Arts website, available at http://www.cfa.gov).*fn3

At the time of the plaintiff's employment, the CFA had a total of eleven salaried employees, including the Secretary and the plaintiff. See id. at 3. The Secretary of the CFA supervised the plaintiff as well as seven other CFA employees: an "Assistant Secretary, a Technical Information Specialist, an Administrative Assistant, a Staff Architect, an Architectural Historian and two Architects." Am. Compl. ¶ 8. In addition to the salaried employees, there are seven unpaid Commissioners (one of whom is Chairman of the Commission) appointed by the President of the United States. See id. ¶ 9; Def's Mem. at 3.

The plaintiff was employed as an Administrative Officer at the CFA "at all times relevant to this lawsuit." Am. Compl. ¶ 4. Her responsibilities as Administrative Officer "included, but were not limited to, managing the budget by preparing reports, scheduling travel arrangements, organizing training for staff and supervising the work of the administrative assistant." Id. ¶ 7.

In 2000, the Secretary of the CFA and the plaintiff's immediate supervisor, Charles Atherton, managed the "day to day operations of the CFA." Id. ¶ 8. The Secretary "made assignments to Ms. Norris, conducted her performance rating, and evaluated her performance." Id.

1. The Plaintiff's Performance Awards and Promotion at the CFA

The plaintiff alleges that, on November 2, 2004, she was informed that she would receive an annual bonus of $4,000, instead of the $5,000 she was anticipating. See id. ¶¶ 35-36. Since two of the plaintiff's three claims arise from the 2004 bonus, the Court provides a brief background about bonuses at the CFA.

For its salaried employees, including the plaintiff, the plaintiff alleges that the "CFA practice is to conduct performance evaluations and award[] bonuses based on the evaluations once a year." Id. ¶ 20. The "practice" is for each staff member to present to the Secretary a self-prepared "memo . . . listing [his or her] accomplishments for the year." Id. The Secretary then "evaluates the employee, [and] meets with the employee to discuss [his or her] performance." Id. The Secretary then recommends to the Chairman of the Commission what amount should be awarded to each employee. See id. ¶ 21. The plaintiff alleges that, in practice, the Chairman "always signs the recommendations of the Secretary." Id.

On September 6, 2000, seven months after the plaintiff's employment with the CFA began, "she received a performance award of $1000." Id. ¶ 18. The next year, the CFA quadrupled her bonus and she received $4,000. See id. In 2002, she received a $4500 bonus, and, in 2003, she received $4000. See id.

While the plaintiff's bonus in 2003 was slightly less than the year before, she alleges that other CFA employees "received an increase in their performance award over the previous year."

Id.*fn4 She also alleges that her white male Administrative Support Assistant, Mr. Lukavic, was given a performance award of $4000 in 2003, even after the plaintiff "verbally informed him and her supervisors, Mr. Lindstrom and Mr. Atherton[,] that his performance was unacceptable," and after "[o]ther staff members complained to her that Mr. Lukavic had allowed his work to pile up . . . [and] spent most of his time surfing the internet." Id. ¶ 28.

The plaintiff was "very disturbed" about what she terms the $500 "reduction" in her bonus and "inquired about the reason for the decision to the Secretary[] Mr. Charles Atherton and the Assistant Secretary Mr. Frederick Lindstrom." Id. ¶ 19. Both were "unable to provide [the plaintiff] with a reason for the decrease in her award." Id. ¶ 23. The plaintiff informed them that "her performance during the year had been exceptional," id. ¶ 31, and that "she believed . . . she was being discriminated against and that she was disturbed and humiliated," id. ¶ 24. When the plaintiff "stressed the unfairness of the decision regarding her performance award, [the Secretary] told her 'life is not fair.'" Id. ¶ 31. He also, however, promised the plaintiff that "after 6 months he would process paperwork for a promotion on her behalf." Id.

As promised, on July 25, 2004, the plaintiff received a promotion, moving from GS-11 to GS-12, as well as a salary increase of over $18,500 (with her annual salary increasing from $44,148 to $62,659). See id. ¶¶ 6, 26.*fn5

Later that year, following her promotion and pay raise, the Assistant Secretary*fn6 informed the plaintiff that "all staff were going to receive the same [bonus] awards that they received the prior year." Id. ¶ 35. After the plaintiff reminded him that she had not received an increase the prior year, the Assistant Secretary told her that he had "recommended to the Chairman that she receive an award of $5000," or a $1000 increase from the prior year. Id. On November 2, 2004, however, the Assistant Secretary informed the plaintiff that the Chairman had not accepted his recommendation and that the plaintiff would receive $4000. See id. ¶ 36.*fn7

The plaintiff alleges that one other employee, an Architect, received an award in 2004 that was $1000 more than the Architect received in 2003. See id. ¶ 30. The plaintiff alleges that the Architect's award "was increased $500.00 by [the Chairman] above the recommendation of [the] Assistant Secretary." Id.

The plaintiff also alleges that the Assistant Secretary told her that the Chairman, who works in New York and only visits CFA once a month for Commission meetings, "was not aware of the actual performance of the CFA staff." Id. ¶ 38. The Assistant Secretary, however, also "informed her that [the Chairman] had stated that 'Cenny is not performing at the same level as everyone else on staff'" and that the plaintiff was "dropping the ball." Id. ¶ 39.

2. The Plaintiff's Back Injury and Subsequent Termination

In June 2003, over a year before her promotion, the plaintiff injured her back "while performing her job duties" at the CFA, and was diagnosed with a herniated disk. Id. ¶¶ 10-11. The next month she filed a claim with the Office of Workers' Compensation ("OWCP"). See id.

¶ 12. After filing the claim on July 15, 2003, she was "diagnosed . . . as unable to tolerate a normal workday and [her doctor] recommended that she work a limited work schedule." Id. ¶

13. On September 12, 2003, the plaintiff's OWCP claim was approved. See id. ¶ 15.

In October 2004, about three months after her promotion, the plaintiff "re-aggravated" her back injury and "filed a second claim with OWCP." Id. ¶ 16. That claim was also approved. See id.*fn8

"As a result of her condition [the plaintiff] was required to miss some days from work for therapy sessions." Id. In fact, it appears that the plaintiff was absent from the office on OWCP/LWOP [or Leave Without Pay] from March 2005 until her termination on March 6, 2006. See Def.'s Mem., Ex. 5 (Hester v. Dep't of the Interior, No. DC-0752-06-0443-I-1, 2006 MSPB LEXIS 4189, at *2 (M.S.P.B. July 24, 2006)) ("MSPB Denial"), ECF No. 18-5.*fn9

On April 5, 2005, while absent from the office, the plaintiff asked the CFA to allow her to work from home since her "physician recommended that she work part-time, obtain a home work station for job simulation and telecommute." Am. Compl. ¶ 44. On August 20, 2005, the plaintiff again asked to work from home or to work in the office on a part-time basis, but her requests were denied. See id. ¶¶ 45, 51.

At some point, the Secretary required the plaintiff to "provide leave requests for all her absences even though she had filed disability certificates from the OWCP with the CFA." Id. ¶46. The Secretary also placed the plaintiff on AWOL status because of her attendance record, and the plaintiff was "denied benefits for several pay periods in 2005." Id. ¶ 47.

Ultimately, on March 6, 2006, the plaintiff was dismissed from her job after she had been on leave for 10 months. See ...


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