United States District Court, D. Columbia.
YVONNE M. BROOKS, Plaintiff,
JOHN F. KERRY, in his official capacity as Secretary of State, Defendant
[Copyrighted Material Omitted]
For YVONNE BROOKS, Plaintiff: Valencia R. Rainey, LEAD ATTORNEY, Joseph D. Gebhardt, GEBHARDT & ASSOCIATES, LLP, Washington, DC.
For JOHN KERRY, Secretary, Department of State, Defendant: Claire M. Whitaker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
BERYL A. HOWELL, United States District Judge.
Pending before the Court are two motions filed by the defendant John Kerry, in his official capacity as Secretary of State, to resolve the remaining claim asserted by the plaintiff Yvonne Brooks, who is an African-American woman, that her contract for employment as an administrative officer for the U.S. Department of State (" State Department" ) was not renewed upon expiration in March 2007, in retaliation for her seeking Equal Employment Opportunity counseling. See Complaint (" Compl." ) ¶ ¶ 41-44 (Count I), ECF No. 1. The plaintiff is seeking damages for this alleged retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
and the Civil Rights Act of 1991, 42 U.S.C. § 1981. Id. The Court has already had occasion to consider the factual allegations and claims in this lawsuit and granted summary judgment to the defendant on the plaintiff's claims for race discrimination (Count II), failure to accommodate disability (Count III), and hostile work environment (Count IV). Brooks v. Clinton, 841 F.Supp.2d 287, 309 (D.D.C. 2012); Order, inter alia, Granting In Part And Denying In Part Defendant's Motion for Judgment on the Pleadings or for Summary Judgment, ECF No. 47. Following a period of almost one and a half years of discovery requested by the parties on the remaining retaliation claim, the Court now considers the defendant's Final Motion to Dismiss or for Summary Judgment " on the last remaining issue in this case, i.e., whether there is sufficient evidence to warrant a jury trial on Plaintiff's retaliation claim concerning her alleged protected activity on November 16, 2006," Def.'s Final Mot. Dismiss Summ. J. (" Def.'s Mem." ), ECF No. 66, and the defendant's motion to strike as untimely disclosed two documents attached to the plaintiff's opposition motion, see Def.'s Motion to Strike (" Def.'s Mot. Strike" ), ECF No. 75. For the reasons explained below, both the defendant's motions are granted.
A. Factual Allegations Relating to Retaliation Claim
The Court's prior Memorandum Opinion set out a detailed recitation of the factual allegations underlying the plaintiff's claims and those will not be repeated here. See Brooks, 841 F.Supp.2d at 293-96. The following summary is limited to the facts bearing on the two pending motions.
The plaintiff began working, in November 2003, as an Administrative Officer, Personnel Service Contractor to the Management Support Division (" MSD" ) at the State Department 's Bureau of Overseas Buildings Operations (" OBO" ). Compl. ¶ 11. Her contract with the State Department was a one-year contract, with options for renewal in one-year increments for up to five years. See Def.'s Stmt. of Mat. Facts Not in Dispute (" Def.'s SMF" ), ¶ 2, ECF No. 66-1; see also Pl.'s Opp'n. Def.'s Final Mot. Dismiss Summ. J. (" Pl.'s Mot." ) Ex. 15 at 7, ECF No. 70-14 (personal services contract stating the period of performance); Pl.'s Resp. Def.'s SMF ¶ 2, ECF No. 70-29 (noting that the five-year contract could be renewed for another five-year period). The plaintiffs second-line supervisor, Roberto Coquis, was the Contract Officer Representative and ratings official for the plaintiff. Def.'s SMF ¶ ¶ 5-6. In those capacities, he recommended renewal of the plaintiffs contract two years in a row and gave her an " Outstanding" rating in 2005, an " Excellent" rating in 2006, and a " Satisfactory" rating in 2007, just before her contract expired. Id; see also Pl.'s Stmt. Of Add'l Mat. Facts In Dispute (" Pl's SMF" ) ¶ 1; Pl.'s Resp. Def.'s SMF ¶ ¶ 5-6 (admitting Coquis' approval of contract renewals but disputing, without supportive citations, that the ratings were " provided" by Coquis because plaintiff " earned the ratings through her hard work" ). At his deposition, Coquis stated that he " genuinely liked" the plaintiff, Dep. Roberto Coquis (" Coquis Dep." ) at 68:11-12, ECF No. 66-2, " felt [she] was a good employee," and noted that he had " hired her twice before and considered her work valuable." Id. at 162:8-10.
The plaintiff alleges that, in July 2006, her immediate supervisor was replaced by David Spinale, a white male, and Coquis and Spinale " thereafter began a campaign of hostile work environment and disparate treatment" based on her race and sex, and
" failed and refused to accommodate her physical disabilities (Keratitis and Chronic Iritus), a military service-connected disability." Compl. ¶ ¶ 15-16; see also Pl.'s Stmt. Add'l Mat. Facts Dispute (" Pl's SMF" ) ¶ ¶ 6-8, ECF No. 70-30. From the perspective of her supervisors, the plaintiff made errors in her work product, which was repeatedly late, incomplete or inadequate, and this prompted communications to the plaintiff about improving her work on May 24, 2006, see Def.'s First Mot. Dismiss Summ. J. Ex. 5 at 1-2, ECF No. 19-10 (email from Coquis to the plaintiff, dated May 24, 2006, listing errors plaintiff made in slide deck and noting, " [a]s stated in the past, the above are the details that you should be reviewing/correcting" ); Coquis Dep. At 155:22-156:9; Def.'s SMF ¶ 7; Pl.'s Resp. Def.'s SMF ¶ 7 (without contesting errors in her work product, plaintiff notes her " serious eye disability" that affected her ability to work).
In addition, Coquis became concerned about the plaintiff's use of her work computer. For example, on May 24, 2006, the plaintiff sent an email to Coquis and other State Department personnel entitled " 10 Truths Black and Hispanic people know but White people won't admit," that Coquis found " appalling because . . . in addition to referring to . . . whites and black, it also referred to Hispanics. And being Hispanic, I took it personally as discriminatory." Coquis Dep. at 157:1 -5; see also Def.'s First Mot. Dismiss Summ. J. Ex. 9, ECF No. 19-14 (" 10 Truths" Email from the plaintiff to Coquis and others). Receipt of this email from the plaintiff prompted Coquis to caution her about " sending out offensive or inappropriate e-mails from your State Email. "  Id. (emphasis in original). The plaintiff does not deny sending the 10 Truths email, but contends that this " offense merited only an oral counseling (minimal offense) and therefore cannot serve as the basis for [plaintiff]'s termination." Pl.'s Resp. Def.'s SMF ¶ 8; see also Coquis Dep. at 168:3-17 (noting that plaintiff never denied sending the " 10 Truths" email).
During the summer of 2006, the State Department was undergoing an OBO reorganization and cost savings effort, under the direction of OBO Director General Charles Williams, and this effort entailed closure of SA-18, OBO South, the building where the plaintiff was employed. See Suppl. Decl. Wanda L. Mitchell (" Mitchell Suppl. Decl." ) ¶ ¶ 2, 5, ECF No. 66-5; Def.'s SMF ¶ 9. General Williams " encouraged the managers to scrutinize their operations as he was concerned about the functional efficiency of the organization, which he found to be lacking." See Decl. Wanda L. Mitchell (" Mitchell Decl." ) ¶ 4, ECF No. 66-4. As part of the OBO's cost-saving
endeavor, OBO's Director of Human Resources Wanda L. Mitchell discussed the closing of the SA-18 building with Coquis " in about the summer or fall of 2006." Mitchell Suppl. Decl. ¶ 5; Def.'s SMF ¶ 10. Mitchell advised Coquis that " it would be cost efficient" and " the best approach from a [Human Resources (" HR" )] standpoint . . . to downsize staff [in SA-18] as employees left their positions." Mitchell Suppl. Decl. ¶ 5. The plaintiff disputes that OBO was downsizing and asserts that more employees were hired after she was terminated. See Pl.'s Resp. Def.'s SMF ¶ ¶ 9, 24. As support for this assertion, the plaintiff relies on the declaration of Dwayne Butler, which is one of the documents that the defendant seeks to strike. See infra Part III.A This declaration, by a non-managerial physical security officer, states that " three or four new employees" were hired after the plaintiff was let go, but does not state what positions they were hired for, and does not refute Mitchell's statements about the OBO Director's strategy of downsizing SA-18 through attrition, and ultimately ceasing operations in 2009. Mitchell Suppl. Decl. ¶ 6.
Simultaneously, in the summer or fall of 2006, the Information Technology Department at the OBO (" IT" ) undertook an initiative to purge " inappropriate images" from the OBO computer system by performing sweeps of employees' computers. Id. ¶ 7; Def.'s SMF ¶ 12; Pl.'s Resp. Def.'s SMF ¶ 12 (disputing without supportive citations that a sweep uncovered the image attributed to plaintiff). At the time the effort was initiated, it was determined that " counseling and/or letters of warning" would be issued to employees if inappropriate images were found on their computer, unless " there were egregious violations of Department policies." Mitchell Suppl. Decl. ¶ 7. In early November 2006, this department-wide sweep uncovered an inappropriate image with the file name " Spiderman.jpg" on the plaintiff's computer system as well as evidence that the image had been accessed a number of times using the plaintiff's log-in credentials. See Decl. Robert E. Clarke (" Clarke Decl." ) at 6, ECF No. 66-7; Coquis Dep. at 57:3-22; 58:16-22; Mitchell Decl. Ex. 4 (letter of warning, dated November 27, 2006, from Coquis to the plaintiff regarding the " Spiderman.jpg" image). The IT Director Song Keller brought the image to Coquis' attention when it was retrieved, and Mitchell recommended that Coquis provide a letter of warning to the plaintiff. Coquis Dep. at 57:9-16; Pl.'s Resp. Def.'s SMF ¶ 13 (disputing without supportive citation that IT brought the email to Coquis' attention). On November 9, 2006, Coquis forwarded Mitchell a draft of the letter of warning for her review and comment before Coquis sent it to the plaintiff. Mitchell Decl. ¶ ¶ 3, 4; id. Ex. 1. Even before Coquis sent the draft letter to Mitchell, the two had already discussed the possibility of not renewing the plaintiff's employment contract. Mitchell Decl. ¶ 4. Coquis submitted the letter of warning to the plaintiff on November 27, 2006. Mitchell Decl. Ex. 4; Pl.'s SMF ¶ 17; Pl.'s Resp. Def.'s SMF ¶ 15 (without contesting issuance of letters, plaintiff notes that the letter was wrongfully issued as the State Department was in a cyber-security grace period).
The plaintiff contends that she did not download or access " Spiderman.jpg" and that she was " exonerated" after the IT department determined that the image was not found in the hard drive of the plaintiff's assigned computer, but on a computer in a different building and on a different floor than the plaintiff's workstation. See Pl.'s SMF ¶ ¶ 18-19, 21, 27. The documentation on which the plaintiff relies for this contention falls far short of an " exoneration" and instead consists of her
emails to the IT department disputing the conclusion that the " Spiderman.jpg" file was on her computer. See generally Pl.'s Mot. Ex. 21. Contrary to the plaintiff's assertion, the IT department never cleared the plaintiff of wrongdoing, but rather, upon review of the inappropriate image, informed her that the image was downloaded using her log-in credentials, which " has nothing to do with what computer" the image was found on. Pl.'s Mot. Ex. 21 at 13, ECF No. 70-20 (email, dated February 26, 2007, from Keller to the plaintiff); see also id. Ex. 23 at 2-3, ECF No. 70-22 (email, dated February 22, 2007, informing the plaintiff that the directory path for the file included her login information). A second forensic examination of the image undertaken while the parties were in discovery confirmed that the image was located in the plaintiff's " My Documents" subdirectory, which included other personal photographs. Clarke Decl. ¶ 6. The inappropriate file was not located in a temporary internet directory, but " in a directory location that would have required an individual with Ms. Brooks's credentials (username and password) to access and save to." Id. In any event, the plaintiff contends that she should never have received the letter of warning at all because the State Department was " in a cyber-security grace period." Pl.'s Resp. Def.'s SMF ¶ 15 (citing Pl.'s Mot. Ex. 26, ECF No. 70-25 (email dated November 28, 2006, from Cyber Security Incident Program Adjudicator to the plaintiff)). The " grace period" cited by the plaintiff only prevented such incidents from being " entered into [the plaintiff's] permanent incident history record." See id ; see also Pl.'s Mot. Ex. 26. This does not, as the plaintiff assumes, preclude supervisors from issuing letters of warning.
Prior to sending the letter of warning, Coquis also reviewed a snapshot file of the plaintiff's computer inbox provided to Coquis by the IT Department in response to a request he had made on June 20, 2006, shortly after receiving the plaintiff's " 10 Truths" email. See Def.'s SMF ¶ 13; Coquis Dep. at 65:21-66:5; Pl.'s SMF ¶ 15. Coquis explained that although he had briefly " scanned" the snapshot when he first received it, he did not look closely at it because he " didn't think it was necessary at the time." Id. at 66:3-15. He revisited the snapshot of the plaintiff's email inbox after seeing the " Spiderman.jpg" image " to see if there was more" in her inbox. Id. at 63:14-21. Upon close examination of the snapshot, Coquis found other inappropriate images in the plaintiff's inbox. Def.'s SMF ¶ 13; Coquis Dep. at 61:16-63:21. This discovery " did impact [Coquis'] decision not to renew the plaintiff's contract." Coquis Dep. at 93:8-9; id. at 163:17-19; Def.'s SMF ¶ 14; Pl.'s Resp. Def.'s SMF ¶ 14 (without contesting Coquis' decision upon reviewing the file, plaintiff notes that Coquis did not tell anyone of his final termination decision until February 1, 2007); Pl.'s SMF ¶ 20 (alleging Coquis " terminated" plaintiff's employment contract). He explained that this was not a decision he made " overnight" but had considered for at least a month. Id. 93:9-19 (testifying that " the decision . . . started to bubble up in October" ); id. 163:20-164:2 (testifying that " this was not a decision that was made overnight in November, this was a decision that was made over time, at least several weeks if not a month, in the making" ). According to Coquis, as early as October 24, 2006, he considered nonrenewal of the plaintiff's employment contract when he denied her request to attend training from January to March, 2007. Id. 93:8-16. On November 24, 2006, Coquis submitted an email to the HR department, including Mitchell, stating that he had " come across more information that has influenced [him] towards
not renewing [the plaintiff's] contract in April of 2007." Mitchell Decl. Ex. 3; See Brooks, 841 F.Supp.2d at 305.
Coquis notified the plaintiff on February 1, 2007, that her contract would not be renewed. Def.'s SMF ¶ ¶ 15-16; see also Pl.'s Mot. Ex. 22, ECF No. 70-21 (email, dated February 1, 2007, from Coquis to the plaintiff confirming nonrenewal of contract); Pl.'s Resp. Def.'s SMF ¶ ¶ 16, 17. Thereafter, Coquis was informed that the IT department had located a second inappropriate image on the plaintiff's computer system with the file name " FETAL-9WEEKSABORT.jpg" , which had been saved to a State Department computer hard drive and subsequently accessed using the plaintiff's log-in credentials. Coquis Dep. at 68:13-69:22; Pl.'s Mot. Ex. 20, ECF No. 70-19 (letter of warning, dated November 27, 2007, from Coquis to the plaintiff). Upon Mitchell's recommendation, Coquis issued a second letter of warning to the plaintiff on February 27, 2007. Id. ; Coquis Dep. at 68:13-69:22.
The plaintiff's contract was allowed to expire on March 31, 2007. Def.'s SMF ¶ ¶ 15-16; Coquis Dep. at 94:18-95:6; Pl.'s Resp. Def.'s SMF ¶ 16 (without contesting that Coquis gave 60 days' notice, plaintiff notes without supportive citation that Coquis terminated her contract on February 1, 2007). Coquis stated that he did not renew the plaintiff's contract " [b]ased on her performance, and based on the restructuring of our organization," id. at 86:8-10, which included closing SA-18, where the plaintiff was employed, id. at 171:5-7. The plaintiff filed her EEO complaint on May 13, 2007. Def.'s SMF ¶ 17; Def.'s Reply Pl.'s Opp'n Final Mot. Dismiss Summ. J. After Dep. Disc. Ex. 1 (" EEO Counselor's Report" ) at 9, ECF No. 76-2. The plaintiff filed the instant suit on April 26, 2010. See generally Compl.
B. The Court's Prior Decision Regarding the Plaintiff's Retaliation Claim
During the first round of dispositive motion briefing, before discovery was completed, the defendant sought dismissal or summary judgment of the plaintiff's retaliation claim in Count I of the Complaint on the ground that the plaintiff failed to establish causation. According to the defendant, Coquis made his decision not to renew the plaintiff's contract in November 2006, prior to the dates the plaintiff alleges she engaged in EEO activity. See Brooks, 841 F.Supp.2d at 295, 304. These dates were January 26, 2007, when the plaintiff sent a memorandum to General Charles Williams titled " MSD EEO Complaint," and March 13, 2007, when the plaintiff sought EEO counseling. Id. The defendant also moved for dismissal or summary judgment of the remaining three counts on grounds of failure to exhaust administrative remedies with respect to the race discrimination claim (Count II), and failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6), with respect to the disability claim (Count III), and hostile work environment claim (Count IV). Id. After converting the defendant's motion into a motion for summary judgment, judgment was granted in favor of the defendant on Counts II-IV, id. at 309, but denied on the plaintiff's retaliation claim, id. at 306. While the Court credited that Coquis decided not to renew the plaintiff's contract on November 24, 2006, id. at 303-04, the plaintiff claimed to have engaged in protected activity shortly before the date. Specifically, the plaintiff stated " that she previously complained to an EEO counselor, Anita Cary, about her EEO claims on November 16, 2006," id. at 304 (citing Pl.'s Resp. Def.'s SMF ¶ 22), as corroborated by statements she had made in two EEO Counselor's report that she
has " been trying to file an EEO Complaint since November 2006" and " initially informed Anita Carey [sic] EEO Representative of [her] harassment and hostile working conditions." Id. at 304-05. The Court found that " the plaintiff's evidence amounts to little more than her bare assertion with only limited corroboration," and that the evidentiary support of this claim " is indeed thin." Id. at 305. Yet, the Court held that the allegations and evidence were " sufficient to save her retaliation claim from summary judgment," id., based on the temporal proximity of the alleged November 16, 2006 meeting between the plaintiff and Cary, and Coquis' " cryptic non-renewal decision eight days later alluding to" " new information" that led to this decision. Id. at 305-06. Although the defendant claimed there was no record support that Coquis was aware of the plaintiff's alleged attempts to contact an EEO counselor before making his decision, the plaintiff stated that Coquis had observed her meeting with Cary. Id. at 306. Despite finding that " the plaintiff's evidence is weak," based on the extant record before the court, for which deposition discovery had not been completed, the Court concluded that a " jury could sustain a finding of retaliation." Id.
The Court afforded the parties ninety days from the date of the opinion to conduct deposition discovery for the plaintiff's remaining retaliation claim. Id. at 30-31. The ninety days stretched to 469 days after the parties' nine requests to extend the period for deposition discovery were granted. See 4/25/2011 Minute Order; 6/15/2012 Minute Order; 7/24/2012 Minute Order; 10/12/2012 Minute Order; 11/09/2012 Minute Order; 12/12/2012 Minute Order; 1/28/2012 Minute Order; 2/22/2013 Minute Order (amended in 2/25/2013 Minute Order); 4/01/2013 Minute Order (ordering the close of discovery on May 13, 2013).
At the end of the discovery period, the defendant filed the second instant motion to dismiss or, alternatively, for summary judgment on the plaintiff's remaining retaliation claim. See generally Def.'s Mem. In opposition, the plaintiff filed two documents, which the defendant claims the plaintiff failed previously to produce or identify and are the subject of the defendant's pending motion to strike. See Def.'s Mot. Strike at 1, 5. These documents are: (1) a declaration by Dwayne Butler, a former physical security officer at the State Department, who states that he observed the plaintiff meet with EEO counselor Cary on November 15, 2006, see Declaration of Dwayne Butler (" Butler Decl." ), ECF No. 70-10, and (2) a one-page document labeled " HARASSMENT," which appears to list a series of emails or instances of harassment. Id. Ex. 12 at 7, ECF No. 70-12. The defendant's motions are currently before the Court.
C. Plaintiff's Disputed EEO Meeting in November, 2006
The crux of the plaintiff's retaliation claim is that her contract was not renewed in retaliation for her engagement in protected activities, and not because of the quality of her work, a reorganization of the section in which she was employed, or her purported inappropriate use of State Department computers, which prompted a cautionary warning in May, 2006 and two disciplinary letters in November, 2006, and February, 2007. The Complaint refers to the following dates when the plaintiff " felt forced to file an EEO complaint against her manager, Roberto Coquis," Compl. ¶ 17: February 6 and 16, 2007, and March 28, 2007, on which dates the plaintiff alleges ...