United States District Court, D. Columbia.
For JANEAN E. CHAMBERS, Plaintiff: David H. Shapiro, Ellen K. Renaud, SWICK & SHAPIRO, P.C., Washington, DC.
For KATHLEEN SEBELIUS, Defendant: Alexander Daniel Shoaibi, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
COLLEEN KOLLAR-KOTELLY, United States District Judge.
Plaintiff Janean Chambers brings this action against Defendant Kathleen Sebelius, in her official capacity as Secretary of Health and Human Services, alleging violations of Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973.  Presently before the Court is Defendant's  Motion to Dismiss, or in the Alternative, Motion for Summary Judgment.  Upon consideration of the pleadings , the
relevant legal authorities, and the record as a whole, the Court GRANTS Defendant's  Motion to Dismiss or, in the Alternative, for Summary Judgment. Accordingly, this action is DISMISSED WITH PREJUDICE in its entirety.
A. Factual Background
Plaintiff Janean Chambers is a 48 year-old blind African-American female who has worked for the Department of Health and Human Services (" DHHS" ) since 1989. Pl.'s Opp'n at 2. In 2006, Plaintiff became a GS-0343-09 Management Analyst in the Office of Information Services (" OIS" ) of the Administration for Children and Families (" ACF" ) within DHHS. Pl.'s Ex. 1 (Chambers Affidavit) at 1. In this capacity, from 2007 until July 2012, Plaintiff's duties included functioning as the Section 508 Coordinator for ACF. Id. at 3. Pursuant to 36 C.F.R. § 1194.1, every federal government agency must ensure that its employees with disabilities have comparable access to electronic data and information through the development, procurement, and maintenance of appropriate electronic and information technology. Accordingly, every operating division of DHHS has a Section 508 Coordinator with the responsibility for ensuring that employees with disabilities are accommodated such that they have equal access to electronic data and information. Pl.'s Ex. 7 (Curtis Deposition Excerpts) at 46:10-19. Plaintiff's supervisors in her GS-9 Management Analyst position were Jeanne Dionne and Michael Curtis. Pl.'s Ex. 1 at 1-2.
Plaintiff's GS-9 position was the full performance level of her position, meaning that it was the highest grade-level that she could be promoted to without either competing with other individuals for a new, advertised position or receiving a non-competitive promotion through her accretion of duties. Id. at 2. In 2007, Plaintiff became eligible for elevation to GS-11 and inquired with her supervisors about obtaining a promotion to this grade level from her current position. Id. at 3. Plaintiff pointed out that all the other individuals functioning as Section 508 Coordinators in DHHS were paid at a higher grade than she was, ranging from GS-12 to GS-14. Id. at 4. In her brief, Defendant points out, and Plaintiff concedes, that there is no position description for a Section 508 Coordinator. Def.'s Stmt. ¶ 23 (citing Def.'s Ex. 10 (Decl. of Stuart Hoffman) ¶ 5); Pl.'s Stmt. at 8. Furthermore, Plaintiff does not deny that there is no grade level requirement for an individual with Section 508 Coordinator duties, and admits that the grade level of each designated Section 508 Coordinator is based upon the specific duties, responsibilities, and authorities granted the incumbent of that position. Def.'s Stmt. ¶ ¶ 25, 37 (citing Def.'s Ex. 10 ¶ 6); Pl.'s Stmt. at 8, 12. In this vein, Defendant further states that Section 508 responsibilities comprise a fraction of an individual's overall duties. Def.'s Stmt. ¶ 26 (citing Def.'s Ex. 10 ¶ 5). Nevertheless, Plaintiff states that all of her work time as a GS-9 was spent on her Section 508 Coordinator duties. Pl.'s Stmt. at 8 (citing Pl.'s Ex. 11 (Chambers Deposition Excerpts) at 4:11-17). She also points out that Jaime Robinson, a DHHS GS-12 IT employee in a different employment series with Section 508 Coordinator duties, stated in his deposition testimony that he did not have any role outside the Section 508 area. Id. at 8 (citing Pl.'s Ex. 8 (Robinson Deposition Excerpts) at 42:14-16).
In response to Plaintiff's requests to be elevated to a GS-11 position, Plaintiff was repeatedly informed bye her supervisors, Mr. Curtis and Ms. Dionne, that they supported her promotion, believing that she was an excellent employee who had " blossomed" in her current position. Pl.'s Ex. 7
at 60:9-20; Def.'s Ex. 4 (Curtis Affidavit) at 3. However, they informed her that because her current position terminated at GS-9, in order to be promoted to a GS-11 position, she would have to compete for a GS-11 position that became available. In an affidavit submitted to the EEO investigator reviewing Plaintiff's claim and in his deposition, Curtis repeatedly stated that he lacked the authority to promote Plaintiff in the absence of a vacancy, and that creation of such a position required the approval of his superiors in DHHS. Def.'s Ex. 4 at 2 (" I only have authority to promote someone in a career-ladder series, and she is not in a promotion allowed career ladder. So I did not have authority to promote her." ); id. at 3 (" Her non-promotion was not based on her race or disability, but on no GS-11 opportunities being available to anyone." ); id. at 2 (" The government process for promotion is that someone advertises a position and you compete for that. There are no GS-11 positions in my office to promote to." ); Pl.'s Ex. 7 at 56:18-19 (Curtis stating that he lacked the authority to promote); id. at 60:13-15 (Curtis responding " Yes" to the question " You thought she was deserving of a promotion. You just had no way of doing that?" ); id. at 100:4-5 (noting that vacancies are " approved by the assistant secretary." ); id. at 62:10:19 (noting that the GS-11 was made available by the assistant secretary who " approves all promotion opportunities" ). Dionne as well consistently stated that she lacked the authority to promote Plaintiff in the absence of a vacancy, which she did not have the power to create herself. Def.'s Ex. 5 at 2 (Dionne Affidavit) (" She did request a promotion. I informed her that I don't have promotion authority." ); id. (" [s]he did [request a promotion] and informed [sic] her that I did not have the authority to promote her." ); id. at 3 (" I did not discriminate against the Complainant based on her race and disability because I had no authority to promote her." ); Pl.'s Ex. 6 (Dionne Deposition Excerpts) at 66:14-67:11 (stating that Dionne and Curtis lacked authority to promote and needed approval to advertise a position). In an e-mail summarizing a meeting between herself and Mr. Curtis and Ms. Dionne, Plaintiff stated that she understood them to lack the authority themselves to create the GS-11 position she sought, as they could only request such a position. Def.'s Ex. 13 (E-mail from J. Chambers to J. Dionne and M. Curtis) (" From this meeting my understanding is that the opportunity for me to advance from a GS-9 to a GS-11 as the ACF Section 508 Coordinator is not available in ACF/OIS." ). Curtis and Dionne informed Plaintiff that although they could request the vacancy she sought, even if the position were approved, Plaintiff would still need to apply for the position. Id. (" Michael stated that he will continue to push this opportunity for advancement because of my title. However, if the slot is approved it will be advertised and I will need to apply for the position." ); Def.'s Ex. 15 (Rebuttal Affidavit of Janean Chambers) at 3-4 (" Mr. Curtis stated that even if and when he has [the] budget for it, that he will need to have an available slot at a higher grade in order to offer a GS-11 level for the Section 508 Coordinator position, and he will have to advertise that job vacancy and I will need to apply for it . . . . He expressed that he would continue to support me and push for me to be promoted." ). Pl.'s Ex. 7 at 57:22-58:5 (Curtis stating " I would have to go back and ask for a [position] . . . It would have to be approved by the assistant secretary. And then they would have to compete. And they would have to select based on all the people that applied for it." ). Curtis subsequently stated to Plaintiff that he had requested the creation of a GS-11 vacancy, but that the failure to create such a vacancy was due to a lack of budget for the
position sought by Plaintiff. Pl.'s Ex. 7 at 83:15-84:5; Def.'s Ex. 15 at 3.
Plaintiff challenges this explanation for the lack of her promotion, arguing that the failure to promote her constitutes discrimination on the basis of race and disability. Primarily, she notes that other vacancies were created during the time period at issue and that these vacancies allowed other employees of DHHS the opportunity to advance beyond the full performance levels of their positions. Pl.'s Stmt. at 1-2. She points out that the OIS spent at least $206,431 to hire and/or increase the salaries of five white, non-disabled employees during the period when ACF alleges that it lacked the budget to create a new GS-11 position to which she could apply to. Id. at 2. However, in alleging these facts, Plaintiff does not point to any GS-11 position created in OIS. Rather she points to the creation of other positions, including a GS-12 Management Analyst Position, a GS-14 Information Technology Specialist and three GS-15 Division Director Positions. Pl.'s Ex. 6 at 92:3-17 (noting that three GS-15 positions were filled with existing GS-14 employees); id. at 96:1-10 (discussing hiring for new GS-12 position); Pl.'s Ex. 7 at 87:7-88:9 (discussing hiring for GS-14 position). Moreover, Plaintiff does not suggest that these vacancies encompassed Section 508 Coordinator duties. Furthermore, Plaintiff does not offer evidence that Dionne and Curtis were seriously involved in the creation of these vacancies. Dionne states in her deposition testimony that she filed paperwork with the Human Resources Department to have the Information Technology Specialist position shifted to a GS-14 from the base level GS-13 because the newly hired employee, Terry Cheng, " ha[d] been working at a higher salary than the lowest step," and " [i]f the person has been working at a higher salary than the lowest step, they can request to be hired at a higher step within the grade." Pl.'s Ex. 6 at 47:6-18. However, according to Defendant, the GS-14 and GS-15 positions were created due to larger departmental needs identified by the Assistant Secretary. See Def.'s Att. 1 (Decl. of Michael Curtis) ¶ 7-8 (noting that Assistant Secretary David Hansell " conveyed to [Curtis] that in regard to OIS ACF positions, he felt it was necessary to fill the three Division Director positions at the GS-15 level, to prevent losing staff." ); id. ¶ 8 (stating that the GS-14 Information Technological Specialist position was approved by Hansell in response to President Obama's emphasis on cyber security). In addition, the Court notes that the GS-12 position was only advertised in March and April 2012, shortly before the end of the time period at issue in this case, and that the individual selected for the position had an effective date of September 2012, well after the end of the time at issue in this case. Def.'s Att. 3 (Decl. of Melissa Smith) ¶ 6; Pl.'s Ex. 9 (GS-12 Vacancy Posting).
In challenging her lack of promotion, Plaintiff also questions whether her supervisors ever actually requested the creation of a GS-11 vacancy. Pl.'s Stmt. at 2-3. She notes that ACF has not produced paperwork containing such a request and that Jason Donaldson, the Deputy Assistant Secretary for Administration at ACF during the time at issue, stated in an affidavit that Plaintiff requested a promotion from him during the informal EEO mediation held on January 4, 2012. Id. (citing Pl.'s Ex. 3 (Donaldson Affidavit) at 3). Plaintiff interprets this statement to mean that Donaldson did not receive any request to promote Plaintiff until the informal EEO mediation in this case on January 4, 2012 and thus Plaintiff's supervisors are untruthful when they state that they requested a vacancy to which she could be promoted. Pl.'s Opp'n at 4. Defendant vigorously disputes this assertion, pointing to multiple statements in the record showing
that Plaintiff's supervisor, Michael Curtis, repeatedly requested the creation of a vacancy that she could be promoted to, even though he did not explicitly mention Plaintiff by name. See, e.g., Pl.'s Ex. 7 at 62:18-19 (" I repeatedly asked for an -11 year after year after year." ); id. at 82:20-83:14 (Curtis stating that he submitted the request and that " the request for an additional 508 position at a senior level was rejected." ); Pl.'s Ex. 6 at 67:9-11 (" My recollection is that [Curtis] said he would talk with Jason Donaldson to see if he could be given the approval to advertise a position." ); id. at 68:5-8 (" I remember in the meeting him saying that he was going to have a conversation with Jason Donaldson to see whether he could get approval to advertise a position." ). Defendant further points to a declaration from Donaldson stating that Curtis requested the position sought by Plaintiff, albeit without referencing her by name. Pl.'s Att. 2 (Decl. ...