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Browne v. Donovan

United States District Court, D. Columbia.

February 4, 2014


For MARSHA G. BROWNE, Plaintiff: Frederick Arnold Douglas, LEAD ATTORNEY, Alex Chintella, DOUGLAS & BOYKIN, PLLC, Washington, DC.

For SHAUN DONOVAN, Secretary, United States Department of Housing and Urban Development, Defendant: Marina Utgoff Braswell, LEAD ATTORNEY, U.S. ATTORNEYS OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.


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COLLEEN KOLLAR-KOTELLY, United States District Judge.

Plaintiff Marsha Browne brings this action against Defendant Shaun Donovan, in his official capacity as Secretary of Housing and Urban Development, alleging violations of Title VII of the Civil Rights Act of 1964. Presently before the Court is Defendant's [24] Motion to Dismiss and for Summary Judgment. Upon consideration of the pleadings [1], the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART Defendant's [24] Motion to Dismiss and for Summary Judgment. Specifically, the Court GRANTS Defendant's Motion with respect to Plaintiff's claim of hostile work environment, as well as Plaintiff's claims that the failure to detail and the failure to promote her were based on race, sex, or age discrimination. However, the Court DENIES Defendant's Motion with respect to Plaintiff's claims that the failure to detail and the failure to promote her constituted retaliatory action in violation of Title VII.


A. Factual Background

Plaintiff Marsha Browne is an African-American female born in 1948 who has worked within the Office of Ethics and Personnel Law (" OEPL" ), in the Office of General Counsel (" OGC" ) at the U.S. Department of Housing and Urban Development (" HUD" ) in Washington, D.C. since 1998. Compl. ¶ ¶ 2-3. The OEPL has two divisions: the Personnel Law Division (" PLD" ) and the Ethics Law Division. Def.'s Ex. 2 (OGC Organizational Chart) at 1. Plaintiff has served as the Assistant General Counsel for PLD, a GS-15 position, since 2001. Compl. ¶ 1; Def.'s Ex. 1 (Browne Deposition) at 30:3-9. Since

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2007, Plaintiff's second-line supervisor in this position has been Linda Cruciani, the Deputy General Counsel of Operations in OGC. Pl.'s Ex. 1 (Cruciani Affidavit) ¶ 4.

On or about the week of August 17, 2009, Plaintiff accompanied her first-level supervisor Paula Lincoln, the then-Associate General Counsel for OEPL and an African-American female, to a meeting with Nestor Davidson, the then-Principal Deputy General Counsel for HUD. Pl.'s Ex. 8 (Browne Affidavit) ¶ 38. Plaintiff alleges that at this meeting she informed Davidson of her belief that Linda Cruciani was undermining her on the basis of her race. Id. Defendant disputes whether Plaintiff complained of racial discrimination by Cruciani in this meeting, but nevertheless concedes that Plaintiff's statements to Davidson constitute protected activity under Title VII's anti-retaliation provisions. Def.'s Reply Stmt. ¶ 88.

Subsequently, in November 2009, Lincoln informed OGC management that she was leaving her position and would be joining another department within HUD. Def.'s Ex. 3 (Cruciani E-mail); Def.'s Ex. 4 (Lincoln Deposition) at 11:5-7. Lincoln's departure left the position of Associate General Counsel for OEPL vacant. Upon Lincoln's departure, Cruciani recommended to HUD General Counsel Helen Kanovsky that the HUD Regional Counsel for Region I, Miniard Culpepper, and the HUD Regional Counsel for Region V, Courtney Minor, be detailed in succession as Acting Associate General Counsel for OEPL while OGC advertised for a permanent replacement. Def.'s Ex. 6 (Cruciani Affidavit) ¶ 52; Compl. ¶ 71. Culpepper and Minor are both African-American males, ages 59 and 55 respectively. Def.'s Ex. 8 (Table of HUD Employees' Age, Gender, and Race) at 1 and 3. Neither Culpepper nor Minor received additional pay or benefits for serving in the detail. Def.'s Ex. 11 (Personnel Form Detailing Minor), Def.'s Ex. 12 (Personnel Form Detailing Culpepper).

Upon learning from Cruciani that Culpepper and Minor would be detailed into the position, Plaintiff informed Cruciani that she wanted an opportunity to act in the position. Pl.'s Ex. 8 ¶ 67. Cruciani responded that Plaintiff had already had the opportunity to function as Acting Associate General Counsel during periods when Lincoln and Sam Hutchinson (Lincoln's predecessor), were out of the office. Id. Cruciani also stated that Plaintiff could apply for a permanent appointment to the vacant position. Id. Immediately following her meeting with Cruciani, Plaintiff met with Kanovsky to inform her that she wanted to act in the Associate General Counsel position. Id. ¶ 68. Plaintiff followed up with a memorandum to Kanovsky explaining her position and stating her view that if Culpepper and Minor had been detailed into the Acting Associate General Counsel position in order to provide either of them an advantage in applying for the permanent position, such action would constitute a prohibited personnel practice. Pl.'s Ex. 11 (Browne Memorandum). Kanovsky subsequently testified that, following her conversation with Plaintiff in November 2009, she believed that Plaintiff would sue HUD if she was not detailed to the OEPL position. Pl.'s Ex. 9 (Kanovsky Deposition) at 103:11-22.

Kanovsky stated in her deposition that she decided to bring Regional Counsel to HUD headquarters in order to facilitate greater understanding between headquarters and its regional offices. Def.'s Ex. 5 (Kanovsky Deposition) at 85-86. Cruciani stated that she decided to recommend Culpepper and Minor specifically for the detail because they were both Ethics Officials who supervised personnel, labor, and ethics legal work in their respective regions

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and they both had management experience. Def.'s Ex. 6 ¶ 56.

Plaintiff contests these rationales for selecting Culpepper and Minor for the detail, arguing that bringing Regional Counsel in to act as Acting Associate General Counsel is atypical. Rather, the typical practice, she contends, is to detail the next person in the chain of command into an open position, here, an Assistant General Counsel such as Plaintiff. Pl.'s Ex. 6 (Salamido Affidavit) ¶ 17. Further, Plaintiff points out that detailing Regional Counsel into the position as Acting Associate General Counsel resulted in the expenditure of over $30,000 in additional costs, given the costs for Culpepper and Minor's housing, travel, and per diem. Pl.'s Ex. 8 ¶ 75; Pl.'s Ex. 2 at 172:16-19. Defendant responds that although Culpepper and Minor were the first Regional Counsel in memory to be detailed, in the past two other Regional Counsels had turned down offers for details at headquarters. Def.'s Ex. 5 at 89:1-19. In questioning Defendant's stated rationale, Plaintiff also points out that Cruciani provided alternative reasons for the selection of Culpepper and Minor, and not Plaintiff, for the detail. Specifically, Cruciani stated that she could not detail Plaintiff into the position because of tension between Browne and another Assistant General Counsel in OEPL, Athena Jones. Pl.'s Ex. 1 ¶ 53. Ms. Jones has denied the existence of tension between her and Plaintiff. Pl.'s Ex. 14 (Jones Affidavit) ¶ ¶ 11, 16. Plaintiff further contests the stated rationale for detailing Culpepper and Minor by pointing to the fact that Kanovsky had asked Lincoln, the outgoing Associate General Counsel for any recommendations for the detail, and Lincoln had provided no recommendations. Pl.'s Ex. 2 at 81:17-25, 83.

HUD subsequently posted the vacancy announcement for the Associate General Counsel position, which indicated that applications would be accepted from December 14, 2009 until January 11, 2010. Def.'s Ex. 17 (Vacancy Announcement) at 1. Neither Culpepper nor Minor applied for the position. Def.'s Ex. 1 at 110:7-10. However, Plaintiff did apply. Pl.'s Ex. 8 ¶ 55. As part of the selection process, Cruciani asked three Senior Executive Service officials at HUD, Inez-Banks Dubose, David Enzel, and John Grant to serve on an Executive Review Board panel that would review the applications submitted for the position, rate the applicants pursuant to rating instructions provided by the Office of Executive Resources in HUD, and create a list of the best qualified persons to refer to OGC for interview and/or selection. Def.'s Stmt. ¶ 23. According to the panel's rating and ranking worksheets of employee qualifications, Plaintiff was tied for the fourth highest applicant for the position, with a score of 23. Def.'s Ex. 19 (Rating and Ranking Workseet) at 1. Peter Constantine, the applicant eventually selected for the position, scored the second highest, with a score of 26. Id. Accordingly, Plaintiff and Constantine, along with five other applicants, were included on the Best Qualified List (" BQL" ) of candidates created by the panel members that was forwarded to Cruciani and Davidson. Def.'s Stmt. ¶ 25.

On or about February 23, 2010, apparently during the time when Plaintiff was being considered for the vacant Associate General Counsel position, Plaintiff and a group of African-American OGC employees and two former Caucasian OGC employees met with then-HUD Deputy Secretary Ron ...

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