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Banks v. Vilsack

United States District Court, District of Columbia

March 26, 2013

DENISE A. BANKS, Plaintiff,
TOM VILSACK, Defendant

Page 186

For DENISE A. BANKS, Plaintiff: Charles W. Day, Jr., LEAD ATTORNEY, The Day Law Practice LLC, Rockville, MD; Joseph D. Gebhardt, LEAD ATTORNEY, GEBHARDT & ASSOCIATES, LLP, Washington, DC.

For THOMAS JAMES VILSACK, Secretary of Agriculture, U.S. Department of Agriculture, Defendant: Judith A. Kidwell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

Page 187


RICHARD W. ROBERTS, United States District Judge.

Plaintiff Denise A. Banks, an African-American woman born in 1949, brings this action against the Secretary [1] of the United States Department of Agriculture (" USDA" ) under Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621 et seq., alleging that while employed at the USDA, she was harassed and discriminated against because of her race, gender, and age, and retaliated against because of her protected equal employment opportunity (" EEO" ) activities. At the close of discovery, the USDA moved for summary judgment and Banks cross-moved for partial summary judgment. Because there is a genuine issue of material fact as to whether Banks was discriminatorily removed from the Senior Executive Service (" SES" ), the USDA's and Banks's motions for summary judgment will be denied as to this claim. The USDA's motion for summary judgment

Page 188

will be granted as to Banks's claim that she was subjected to a hostile work environment and as to several of her retaliation claims [2] because there is no genuine dispute about material facts and the USDA is entitled to judgment as a matter of law. The USDA's motion will be denied as to Banks's other discrimination and retaliation claims.


Banks is an African-American woman who was born in 1949. Am. Compl. ¶ 1; see also Pl.'s Mot. for Partial Summ. J. & Opp'n to Def.'s Mot. for Summ. J. (" Pl.'s Mot." ), Pl.'s Stmt. of Facts Not in Genuine Dispute (" Pl.'s Stmt." ) ¶ 1. Banks began working at the USDA in February 1999 as the Deputy Director for Civil Rights (Employment) at the SES level. Def.'s Mot. for Summ. J. (" Def.'s Mot." ), Def.'s Material Facts Not in Genuine Dispute (" Def.'s Stmt." ) ¶ 1. As the Deputy Director, Banks supervised several managers in the division. Id. Banks was supervised by Rosalind Gray. Id. ¶ 2.

Banks was subject to a one-year probationary period when she was appointed as the Deputy Director. Id. ¶ 1. Her November 1999 performance appraisal for the probationary period stated that she did not meet several critical elements of her position and that her overall performance was rated as " unsatisfactory." Id. ¶ 8. As a result of her poor performance rating, Gray recommended that Banks be terminated. Id.; see also Pl.'s Stmt. ¶ 5. Notwithstanding Gray's recommendation, Assistant Secretary for Administration, Paul Fiddick, removed Banks from the SES position in January 2000 but reassigned her to a GS-15 position, Special Assistant to the Deputy Director for Programs in the Office of Civil Rights. Def.'s Stmt. ¶ 8; see also Pl.'s Stmt. ¶ 6.

Banks alleges that she was so distraught over being removed from her SES position that she took approximately two weeks of sick leave after receiving Fiddick's letter. Def.'s Stmt. ¶ 10; Am. Compl. ¶ 18. Although Banks alleges that her leave was approved and that she submitted all of the medical documentation supporting it, she received a Letter of Counseling from her new supervisor, Fred Isler, when she returned to work stating that he was displeased that Banks had been absent for two weeks and he had not known where she was. Def.'s Stmt. ¶ 10.

From 2000 to 2004, Banks received overall performance ratings of " outstanding" on her performance appraisals. See Pl.'s Stmt. ¶ 10. In light of her performance ratings, Banks received cash performance awards in the amount of $4000. Id.; see Am. Compl. ¶ 40. In August 2004, Sadhna True became the Director for Civil Rights and Employment at the USDA. Am. Compl. ¶ 24. In that capacity, True became Banks's second line supervisor. Id. In 2005, Banks received the lower performance rating of " Superior" ; in 2006 and 2007, she received the even lower rating of " Fully Successful." Def.'s Stmt. ¶ 16; Def.'s Mot., Ex. 17 (Banks 2005 Performance Appraisal) at 27, Ex. 18 (Banks 2006 Performance Appraisal) at 29; see also Am. Compl. ¶ ¶ 36-37, 44-45, 47. As such, Banks received reduced or no monetary performance awards from 2005 to 2007.

In July 2007, Banks received a Letter of Direction from True. Def.'s Stmt. ¶ ¶ 17-20. The letter stated that Banks had not been ...

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