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Weng v. Solis

United States District Court, District Circuit

August 15, 2013

KARIN WENG, Plaintiff
HILDA L. SOLIS, Secretary of Labor Defendant


Barbara Jacobs Rothstein U.S. District Court Judge


Plaintiff Karin Weng brings this action against Defendant Hilda L. Solis, Secretary of Labor, U.S. Department of Labor, in her official capacity, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”) and the Rehabilitation Act of 1973, 29 U.S.C. § 749(a) (“Rehabilitation Act”). Plaintiff alleges that Defendant discriminated against her based on her race (Asian), national origin (Taiwanese), sex (female), and/or in retaliation for Plaintiff’s prior protected EEO activity. Plaintiff also claims that Defendant subjected her to a hostile work environment. Dkt. No. 16, Amended Complaint (“Am. Comp.”) at ¶ 2.

Presently before the Court is Defendant’s Motion for Partial Summary Judgment. Dkt. No. 24 Motion for Partial Summary Judgment (“Mot.”). Defendant does not seek summary judgment as to the entire Amended Complaint; rather, she seeks to dismiss some of the allegations on which Plaintiff bases her discrimination claims. Defendant argues that the undisputed material facts demonstrate that: (1) these alleged incidents do not constitute adverse employment actions under Title VII, and (2) Plaintiff cannot produce sufficient evidence for a reasonable jury to find that Defendant’s stated reasons for its actions were mere pretexts for discrimination based on race, national origin, or sex. Defendant does not seek to dismiss the remainder of Plaintiff’s discrimination claims, nor does it challenge Plaintiff’s retaliation or hostile work environment claims at this time. Plaintiff opposes the motion. Dkt. No. 29 Plaintiff’s Opposition to Defendant’s Motion for Partial Summary Judgment (“Opp.”). Having reviewed the motion, the opposition and reply thereto, the entire record and relevant case law, the Court finds and rules as follows.


The parties provide detailed versions of the factual background in this case. The Court incorporates only those details necessary as background for Plaintiff’s claims and Defendant’s response. In addition, because Defendant does not challenge Plaintiff’s retaliation and/or hostile work environment claims with this motion, the Court limits the Background section to those facts that are relevant to her discrimination claims.

Plaintiff, an Asian-American female, was employed by the U.S. Department of Labor (“DOL”) as a former Pension Law Specialist for the Employment Benefits Security Administration (“EBSA”), Division of Individual Exemptions, Office of Exemption Determinations (“OED”). Am. Comp. at ¶¶ 10-12. Her primary duty was to process applications for administrative exemptions from the prohibited transaction provisions of the Employee Retirement Income Security Act. Id. at ¶ 12. She was hired by the OED in 1995 and retained her position until 2010 when she was discharged. Opp. at 2.

Plaintiff claims that from the moment she started working at the OED in 1995, she, along with other minority employees, was subject to racial and sexual slurs, comments, jokes, and derogatory name calling. Id. at 1. She submits an affidavit from a co-worker, Janet Schmidt, in which Ms. Schmidt testifies that OED managers referred to Plaintiff as “the Chinker” and claimed that they were “going to see about firing the Chinker.” Dkt. No. 30, Ex. 3.

In February 2006, Plaintiff testified at an EEO arbitration between Ms. Schmidt and Plaintiff’s first-line supervisor, Mr. Raps (who is a white American male). Am. Comp. at ¶ 30. Shortly thereafter, on February 14, 2006, Plaintiff requested that she be allowed to work a second Flexiplace day from home each week.[1] See Dkt. No. 33-9. Plaintiff asserts that Mr. Raps denied the request; Defendant claims that Mr. Raps informed Plaintiff that a final decision would not be made on her request until the following week when Plaintiff’s second-line supervisor, Lyssa Hall (who is an African American female), returned to the office. Dkt. No. 30 at ¶ 32; Dkt. No. 24 at ¶ 32.

On February 23, 2006, Plaintiff, Mr. Raps, and Ms. Hall met. Id. The parties disagree as to the purpose of the meeting. Plaintiff contends that she “requested the meeting to appeal Mr. Raps’ denial of…. [her] request for a second flexiplace day.” Dkt. No. 33, Ex. 43. Defendant asserts that the purpose of the meeting was to “informally counsel” Plaintiff about her “unacceptable” behavior in the workplace. See Dkt. No. 24. However, both parties agree that, at the meeting, Ms. Hall approved Plaintiff’s request for a second Flexiplace day. Id.; Dkt. No. 33, Ex. 43.

Plaintiff further alleges that beginning in February 2006, Mr. Raps started making harassing phone calls to her at home while she was working on Flexiplace. Dkt. No. 30 at ¶ 44. Plaintiff admits that the phone calls were not ethnically or sexually charged. Id. at ¶¶ 45-46. Plaintiff further admits that the subject of each phone call was about work, but argues that the true purpose of the phone calls was to harass her. Id. at ¶ 47.

Thereafter, on April 21, 2006, Mr. Raps conducted Plaintiff’s FY 2006 mid-year evaluation and rated her as “needs to improve” in every performance standard for a “minimally satisfactory” overall rating. Id. at ¶ 38; Dkt. No. 30 at ¶ 38. He also requested that she take a remedial writing course. Dkt. No. 24 at ¶ 40; Dkt. N. 30 at ¶ 40. Later that evening, Plaintiff stopped by Mr. Raps’ office, handed him a file, and immediately left. Dkt. No. 24 at ¶ 3; Dkt. No. 30 at ¶ 3. Defendant alleges that Mr. Raps “called [Plaintiff] back to his office” … “[but] Plaintiff deliberately ignored his repeated calls and left for the evening.” Dkt. No. 24 at ¶ 3. Plaintiff admits that Mr. Raps called her back, but “cannot say with certainty how many times he called her name because she left the office in great haste after signing out.” Dkt. No. 30 at ¶ 1.

On April 24, 2006, Mr. Raps issued Plaintiff a “Warning Memorandum, ” in which he admonished Plaintiff for disrespectful conduct when she refused to respond to his request to return to his office. Dkt. No. 24 at ¶ 4; Am. Comp. at ¶ 33. The Warning Memorandum also states that Plaintiff had been “informally counseled on at least three prior occasions (April 18, 2006, March 23, 2006, and February 23, 2006) about the importance of, among other things, being able to interact with [Mr. Raps] on work matters in order for [Plaintiff] to successfully do [her] job.” Id. The Memorandum concludes as follows: “This memorandum serves to advise you that any further incidents similar to the one that occurred [on April 21, 2006] may subject you to more serious disciplinary action.” Id.

Next, Defendant asserts that on April 27 and 28, 2006 Plaintiff refused to meet with Mr. Raps to discuss a case file and behaved rudely towards him. Dkt. No. 24 at ¶ 5. On May 10, 2006, Mr. Raps issued a Letter of Reprimand to Plaintiff, claiming that she (1) failed to follow instructions, and (2) acted unprofessionally, based on the April 27 and 28 incidents. Id. at ¶ 10, Ex. F. Plaintiff challenges Mr. Raps’ characterization of the April 27 and 28 incidents in the May 10, 2006 Letter of Reprimand. She disputes that she behaved unprofessionally and/or failed to follow instructions. Dkt. No. 30 at ¶ 2. She also questions whether the April 27 and 28 incidents were the real motivation for the Letter of Reprimand, noting that she had filed an EEO complaint two days earlier, on April 25. Dkt. No. 24, Ex. H.

On November 14, 2006, Plaintiff’s attorney sent a letter to Plaintiff’s supervisors stating that Plaintiff suffers from a “disabling anxiety disorder” and related “mood disorders.” Dkt. No. 35, Ex. 23. Plaintiff asserted that the disorders are “at least in part connected to the stress she has suffered as a result of the hostile work environment created by Mr. Raps and other OED management officials.” Id. She further claimed that her disorders “cause[] her to suffer panic attacks in ‘adversarial’ interactions.” Id. Plaintiff provided statements from her treating psychiatrist and her treating physician, both of whom “strongly recommended” that Plaintiff “not meet alone with Mr. Raps and that a neutral third party be present in all of their meetings.” Id.

Plaintiff claims that Defendant “blatantly ignored” her request for a medical accommodation. Id. Instead, Mr. Raps continued to insist that Plaintiff meet alone with him. Dkt. No. 24, Ex. K. For instance, the parties agree that on November 15, 2006 (one day after Plaintiff made her request for the medical accommodation), Mr. Raps insisted on two separate occasions that Plaintiff meet with him alone in her office. Id.; Dkt. No. 30 at ¶ 17. Each time, Plaintiff brought a union representative with her to the meeting. Id. Defendant alleges that the same thing occurred on November 29, 2006; Mr. Raps requested to meet with Plaintiff alone, and Plaintiff brought two union representatives with her to the meeting. Dkt. No. 24, Ex. K.

On December 14, 2006, Mr. Raps proposed that Plaintiff be suspended without pay for five work days for failing to follow his instructions to meet with him alone in his office. Id. Plaintiff’s attorney filed a written objection to the proposed suspension, citing her November 14, 2006 request for a medical accommodation. Dkt. No. 35, Ex. 23. The proposed suspension was instituted by Ms. Hall on March 27, 2008, but reduced to two work days.

Thereafter, on December 19, 2006, Plaintiff was removed from the Flexiplace program. Dkt. No. 24, Ex. U. Defendant asserts that she was removed from the program per the Plaintiff’s Flexiplace Agreement, which provided that she is permitted to work outside the office as long as her performance “is fully successful and [she] has demonstrated an ability to work alone and without face-to-face supervision.” Dkt. No. 24 at ¶ 37. Accordingly to Defendant, Plaintiff received a “minimally satisfactory” rating on her 2006 annual performance review and thus, was no longer qualified for the Flexiplace program. Id. at ¶ 38.

In January 2007, Mr. Raps was temporarily assigned to EBSA’s Office of the Chief Accountant. Dkt. No. 30 ¶ 29. During that time, Plaintiff alleges that she reported to Ms. Hall without incident. Dkt. No. 35, Ex. 23. However, Mr. Raps returned to OED on October 1, 2007 and Plaintiff was told that she would have to resume meeting alone with him in his office. Dkt. No. 30 ¶ 29. Plaintiff claims that she tried to secure permission, on medical grounds, to meet with Mr. Raps while standing in his doorway, but her request was denied. Id.

Thereafter, on October 9, 2007, Mr. Raps requested to meet with Plaintiff in his office. Dkt. No. 24, Ex. L. When Plaintiff stood in his doorway, he insisted that she come into his office and sit. Id. Mr. Raps alleges that Plaintiff became upset; Plaintiff alleges that she suffered a panic attack. Id. She claims that Mr. Raps “knowingly triggered” the panic attack “by his harassment of her.” Dkt. No. 30 at ¶ 27; Dkt. No. 31, Ex. 23.

On December 6, 2007, Mr. Raps issued Plaintiff a proposed fourteen day suspension without pay. Dkt. No. 24, Ex. L. Plaintiff’s attorney filed a written objection to the proposed suspension. Dkt. No. 35, Ex. 23. The suspension was affirmed and instituted on March 12, 2008. Id.


A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are “material, ” a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. A court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252. The nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. ...

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