BRENDA J. LEE, Plaintiff,
RAYMOND EDWIN MABUS, Secretary of the Navy, Defendant.
BARBARA J. ROTHSTEIN, District Judge.
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on [Dkt. # 29] the motion to dismiss or, in the alternative, for summary judgment filed by Defendant the Secretary of the Navy ("the Secretary"). Plaintiff Brenda Lee, an African-American born in 1948, alleges that while employed at the Security Assistance Programs Division of the Naval Sea System Command ("NAVSEA"), she was discriminated against because of her race and age, and retaliated against because of her protected equal employment opportunity ("EEO") activities in violation of 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.  The Secretary moves to dismiss Lee's amended complaint or, alternatively, for summary judgment. The Court has thoroughly reviewed the Secretary's motion, related briefings, and the entire record of this case. For the reasons elaborated below, the Court grants the Secretary's motion for summary judgment.
A. Factual Background
Plaintiff Brenda Lee is an African-American born in 1948. Def.'s Mot. to Dismiss & for Summ. J. ("Def.'s Mot."), Def.'s Stmt. of Undisputed Material Facts ("Def.'s Stmt.") ¶ 1. During the events relevant to this case, Lee was a GS-12 program analyst at NAVSEA. In this capacity, Lee was "responsible for the pre-case development of foreign military sales... cases in the Defense Security Assistance Management System." Id. ¶ 2.
In July 1998, Carolyn Bolling, a NAVSEA employee, filed an EEO complaint alleging same-sex sexual harassment against her direct supervisor, Christine Chaikowski. Pl.'s Opp'n, Ex. 2 (Bolling Decl. ("Bolling Decl.") ¶ 2). Lee supported Bolling's complaint by submitting a written declaration in 1999 and testifying at Bolling's EEO Commission ("EEOC") administrative hearing in 2002. Id. ¶¶ 6-7.
In April 2004, Lee requested an accretion of duties promotion to the GS-13 level from Hercules Randolph, her third level supervisor. Def.'s Stmt. ¶ 5. The parties dispute Randolph's response. The Secretary contends that Randolph told Lee "that there was a freeze' on accretion of duties promotions." Id. ¶ 6. Lee, however, asserts that Randolph "stated or implied that he could help Ms. Lee obtain a promotion through a desk audit." Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss & Mot. for Summ. J. ("Pl.'s Opp'n"), Pl.'s Resp. to Def.'s Stmt. of Material Facts as to Which There is No Genuine Issue ("Pl.'s Resp.") ¶ 6. The parties agree that Randolph told Lee that she could request a desk audit to see if her current position should be reclassified at a higher level. Def.'s Stmt. ¶ 7. He later warned her, however, that if the desk audit showed that her position should be reclassified at a higher level, the position would be advertised and Lee would have to compete for it. Id. ¶ 8. Lee never requested a desk audit. See id. ¶ 9.
Later in April 2004, NAVSEA announced and advertised a vacancy for a GS-13 program analyst position in 63IC2, another office in NAVSEA. Id. ¶ 13. Lee did not apply for the position in 63IC2. Pl.'s Opp'n at 9. NAVSEA ultimately decided to laterally reassign Kathy Ton to the 63IC2 position creating a vacancy in 63IC1. Rather than advertising Ton's old GS-13 program analyst position, the selection committee chose a candidate from the already-generated list of applicants qualified for the 63IC2 position. Def.'s Stmt. ¶¶ 19-20. The panel recommended that Randolph hire Marivic Britton, a younger, white employee with no prior EEO activity. Id. ¶¶ 21-22. Randolph selected Britton for the 63IC1 position on July 13, 2004.
In December 2004, Lee was responsible for monitoring activity in 40 countries. Pls.' Opp'n, Ex. 8 at 96. Lee "believed that she had the heaviest workload and asked that some of her work be redistributed to the other analysts." Def.'s Stmt. ¶ 26. Lee volunteered to give up a number of smaller countries that required less work. Ultimately, in April 2005, Donald Seibel, Lee's first level supervisor, decided to reassign 11 countries which Lee had proposed be transferred. In addition, Seibel also reassigned to Lee's coworkers Australia, Egypt, and Korea which were deemed significant and substantial in light of their volume, complexity, and role in the war on terrorism. Id. ¶¶ 20, 28; Def.'s Mot., Ex. 8 (Donald Seibel Dep. ("Seibel Dep.") at 126:17-127:2, 127:22-128:1).
B. Procedural History
On August 3, 2004, Lee contacted an EEO officer alleging that Randolph discriminated and retaliated against her by denying her an accretion of duties promotion and by not advertising the GS-13 63CI1 position and thus denying Lee a chance to compete for it. Def.'s Stmt. ¶ 35.
On May 24, 2005, Lee again contacted an EEO officer alleging, in part, that Seibel discriminated and retaliated against her when he reassigned Australia, Egypt, and Korea to others. She also alleged that Randolph discriminated and retaliated against her by not selecting her for the GS-13 63CI1 position. Id. ¶ 36.
Lee brought suit on July 1, 2005 alleging discrimination on the basis of race and age and retaliation in violation of Title VII and the ADEA. Specifically, Lee claims that the Secretary discriminated and retaliated against her by (1) not upgrading Lee's GS-12 position to a GS-13 position through an accretion of duties promotion, (2) not selecting Lee for the GS-13 program analyst position, and (3) reducing Lee's work responsibilities. See Am. Compl. ¶¶ 23-25. The Secretary moves for summary judgment arguing that Lee has failed to exhaust her accretion of duties promotion claim and that no genuine issue of material fact exists as to any claim.
II. LEGAL STANDARD - SUMMARY JUDGMENT
Summary judgment may be granted when "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 dispute is "genuine" if a reasonable jury, given the evidence presented, could return a verdict for the nonmoving party. Musick v. Salazar, 839 F.Supp.2d 86, 93 (D.D.C. 2012) (citing Scott v. Harris, 550 U.S. 372, 380 (2007)). "A fact is material if a dispute over it might affect the outcome of a suit under the governing law.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"To survive a motion for summary judgment, the party bearing the burden of proof at trial must provide evidence showing that there is a triable issue as to an element essential to that party's claim.'" Etheridge v. FedChoice Federal Credit Union, 789 F.Supp.2d 27, 32 (D.D.C. 2011) (quoting Arrington v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006)). Neither a "mere... scintilla of evidence, '" Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C. Cir. 2011) (quoting Anderson, 477 U.S. at 252), nor "some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), will suffice to defeat summary judgment. Instead, the nonmovant must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). In considering a summary judgment motion, a court is to draw all justifiable inferences from the evidence in favor of the nonmovant. Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
A. The Secretary Has Not Shown that Lee Failed to Timely Exhaust Her Administrative Remedies
Before filing a civil action under Title VII or the ADEA, the aggrieved party must timely exhaust her administrative remedies. Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998). To satisfy the exhaustion requirement, a plaintiff raising claims of a discrete discriminatory act - such as failure to promote - must initiate informal contact with an EEO counselor within 45 days of when the allegedly discriminatory act occurred. See 29 C.F.R. § 1614.105(a)(1). "Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it." Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). It is undisputed that Lee first initiated informal contact with an EEO counselor on August 3, 2004. See Def.'s Stmt. ¶ 35. Thus, any discrete discriminatory acts that occurred before June 19, 2004 are time barred.
The Secretary argues that Lee was denied an accretion of duties promotion on April 30, 2004 when Randolph told Lee that NAVSEA was not offering such promotions but that Lee could request a desk audit. See Def.'s Mot., Ex. 3 (Hercules Randolph Dep. ("Def.'s Randolph Dep.") at 51:1-11). Lee counters that on April 30, 2004, Randolph told Lee only that she could request a desk audit for a promotion. See Pl.'s Opp'n at 12 (citing id., Ex. 7 (Brenda Lee Dep. ("Pl.'s Lee Dep.") at 30:2-3)). Instead, Lee argues that Randolph unequivocally denied her request for an accretion of duties promotion on July 21, 2004 when Randolph told Lee that if she requested a desk audit, and the desk audit "showed her duties to exceed her grade level, he would have to open her position to competition, " id. at 13, and that accretion of duties promotions not subject to competition were unavailable. Pl.'s Opp'n at 13; see also Pl.'s Lee Dep. at 37:7-16; Pl.'s Opp'n, Ex. 8 (Rpt. on Investigation ("ROI") at 22-23).
It is undisputed that the allegedly discriminatory decision to not promote Lee "occurred" when Lee was told that if she requested a desk audit and it showed that her position should be graded at a higher level, she would not receive an accretion of duties promotion but would instead have to compete for the newly graded position. The parties also agree that Lee eventually learned of this process. However, Lee has provided sufficient evidence to create a dispute of fact as to whether she learned of this process in July 2004 and not April 2004 and thus timely exhausted her accretion of duties promotion claim. Because there is a disputed ...