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Gray v. Foxx

United States District Court, D. Columbia.

November 10, 2014

REBECCA R. GRAY, Plaintiff,
ANTHONY FOXX, [1] Secretary United States Department of Transportation, Defendant

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[Copyrighted Material Omitted]

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For REBECCA R. GRAY, Plaintiff: Harry James Jordan, LEAD ATTORNEY, JORDAN and ASSOCIATES, Washington, DC.

For RAY H. LAHOOD, Secretary, U.S. Department of Transportation, Defendant: Laurie J. Weinstein, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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Royce C. Lamberth, United States District Judge.

Before the Court is the defendant's motion for summary judgment [47] on the plaintiff's claims of discrimination, retaliation, and hostile work environment. Upon consideration of the defendant's motion [47], the plaintiff's opposition [54] thereto, the applicable law, and the entire record herein, the Court will GRANT the defendant's motion for summary judgment.


The following alleged facts are undisputed by the Department of Transportation (" DOT" ) defendant:[2]

The plaintiff, Rebecca Gray, is a woman in her sixties. Pl.'s Compl. ¶ 2, ECF No. 1. Gray received an undergraduate degree in psychology and has more than three decades of professional experience in related fields. Id. ¶ 5. In April 1999, she " accepted a position as a Human Factors Analyst with Innovative Solutions International, a government contractor providing support services for the [Federal Aviation Authority ('FAA')]" --an agency within the DOT--in Washington, D.C. Id. ¶ 7. The FAA's Human Factors Research and Engineering Group (" Human Factors Group" ) " analyzes how people see, hear, think and physically function to ensure systems work as effectively and safely as possible." Pl.'s

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Opp'n 3-4, ECF No. 54. In October 2001, Gray took a position with L-3 Communications Titan (" Titan" ), providing similar services for the FAA's Human Factors Group. Id.; Opp'n Ex. P at 248[3] (Gray Aff. Nov. 20, 2010), ECF No. 55. Titan (and therefore Gray) was a subcontractor for HiTech--the business that held the relevant contract with the Department of Transportation. See Opp'n Ex. P at 248; Def.'s Mot. Summ. J., Statement of Material Facts (" Def.'s Statement" ) ¶ 2, ECF No. 47.

During her time at the FAA, Gray's direct supervisor was Glen Hewitt. Hewitt's supervisor--and Gray's second-level supervisor--was Dr. Paul Krois, the Acting Program Director for the Human Factors Group during " most of the time" of the alleged discrimination and retaliation. Compl. ¶ 8; Opp'n at 4.

In July 2005, Gray, who remained a subcontractor, applied for two positions within the FAA's Human Factors Group. Compl. ¶ 9.[4] However, on December 15, 2005, Gray " learned that the [Human Factors Group] selection committee had" selected two men--Glen Gallaway and Edmundo Sierra--instead of Gray for the available positions. Id. ¶ 13. Following her nonselection, Gray informally reported her gender and age discrimination claims on or around January 6, 2006.[5] Gray's allegations were known to her employers

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prior to Gray's formal Equal Employment Opportunity (" EEO" ) filing. See Opp'n Ex. I at 87.[6] Gray filed her first formal complaint in March 2006. See id. Ex. D at 39-44.[7]

Gray alleges--and the DOT does not dispute--that one month following her informal complaint, she was removed as a presenter at a seminar and " relegate[ed] [] to just taking notes." Compl. ¶ 26. Gray further claims that Krois excluded her " from attending [a] meeting to introduce the new [Human Factors Group] director." Id. Finally, Gray presents a series of emails and records written in January and February 2006 by Krois, Hewitt, and Dino Piccione, another supervisor within the Human Factors Group,[8] which criticized Gray's professional conduct. Opp'n Exs. H-I at 79-89. While these emails were circulated among supervisors within the Human Factors Group, FAA human resources personnel, and supervisors at Titan, Gray was not a recipient of any of these notes.

On April 8, 2008--more than two years after filing her first formal complaint--" Hewitt informed Gray that budget constraints required that her position be eliminated from the Human Factors [Group]." Id. ¶ 28. Gray " was officially terminated on April 30, 2008." Id. In June 2008,[9] Gray filed her second formal EEO complaint, alleging sex and age discrimination, as well as unlawful reprisal because of her first complaint. Opp'n Ex. O at 233-35.

After Gray filed her complaint in this Court on December 9, 2011, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq., and the Age Discrimination in Employment Act of 1964 (" ADEA" ), 29 U.S.C. § § 621 et seq., the DOT moved to dismiss or, in the alternative, for summary judgment on Gray's hostile work environment and retaliation claims. Def.'s Mot. Dismiss, ECF No. 10 (seeking dismissal of or summary judgment only on Counts II and IV of the complaint). The Court, Judge Bates presiding, denied the DOT's motion largely on the grounds that insufficient discovery had been provided on the question of whether Gray qualifies as an " employee" under Title VII. Gray v. Lahood, 917 F.Supp.2d 120, 125, 127 (D.D.C. 2013). The Court further denied the DOT's argument that Gray failed to exhaust administrative remedies as to her hostile work environment claim, in particular. Id. at 128-129. The DOT's motion for summary judgment, filed on July 2, 2014, does not continue to dispute that Gray has effectively exhausted administrative remedies, pursuant to 29 C.F.R. 1614.407(d), since more than 180 days have elapsed from the time Gray appealed the dismissal of both of her formal complaints to the Equal Employment Opportunity Commission (" EEOC" ) without a final decision. See Compl. ¶ 30-32.

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" The [C]ourt shall grant summary judgment if 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). " [T]he mere existence of some factual dispute between the parties will not defeat. . . summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if, under the applicable law, " it might affect the outcome of the suit." Id. at 248. A dispute is genuine if the " evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Because " [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge," the " evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255; see also Holcomb, 433 F.3d at 895. A nonmoving party, however, must establish more than " the existence of a scintilla of evidence" in support of its position. Anderson, 477 U.S. at 252. The inferences drawn from the evidence " must be reasonably probable and based on more than mere speculation." Rogers Corp. v. E.P.A., 275 F.3d 1096, 1103, 348 U.S.App.D.C. 352 (D.C. Cir. 2002) (citations omitted). Indeed, " the nonmoving party may not rely solely on allegations or conclusory statements[; ] . . . it must present [supporting] facts that would enable a reasonable jury to find in its favor." See Bowdre v. Richardson, 131 F.Supp.2d 179, 183-84 (D.D.C. 2001) (citing Greene v. Dalton, 164 F.3d 671, 675, 334 U.S.App.D.C. 92 (D.C. Cir. 1999)); see also Exxon Corp. v. F.T.C., 663 F.2d 120, 126-27, 213 U.S.App.D.C. 356 (D.C. Cir. 1980). If the evidence presented is " merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50.


The Court will not decide whether Gray is an employee for Title VII or ADEA purposes; even if Gray qualifies as an employee under these statutes, she fails to present the Court with disputed facts from which a reasonable jury could conclude that she was terminated, retaliated against, or harassed for a discriminatory reason. As such, the Court will evaluate Gray's claims pursuant to the statutes governing alleged discrimination and harassment of federal employees.

A. Discrimination

Title VII states that " [i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire . . . any individual. . . because of such individual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1).[10] Similarly, the ADEA declares that " [a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in executive agencies . . . shall be made free from any discrimination based on age." 29 U.S.C. § 633a. In McDonnell Douglas Corp. v. Green, the Supreme Court announced the now-familiar burden-shifting framework used to evaluate Title VII discrimination claims.

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411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). " First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the [adverse employment action]. . . . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal quotation marks omitted) (citing McDonnell Douglas, 411 U.S. at 802, 804). The Circuit has adopted this framework for age discrimination claims pursuant to the ADEA. Johnson v. Lehman, 679 F.2d 918, 921-22, 220 U.S.App.D.C. 100 (D.C. Cir. 1982).

1. Age Discrimination

Gray limits her age discrimination claim to her nonselection for one of the two positions for which she applied in 2005. Compl. ¶ ¶ 46-47 (citing only the position offered to Edmundo Sierra). " To establish a prima facie case under the ADEA, for a claim involving a failure to hire, the plaintiff must demonstrate that (1) she is a member of the protected class (i.e., over 40 years of age); (2) she was qualified for the position for which she applied; (3) she was not hired; and (4) she was disadvantaged in favor of a younger person." Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155, 361 U.S.App.D.C. 214 (D.C. Cir. 2004) (citing Cuddy v. Carmen, 694 F.2d 853, 857, 224 U.S.App.D.C. 287 (D.C. Cir. 1982)). The DOT concedes that Gray " can establish a prima facie case under [the] ADEA." Mot. Summ. J. at 10. However, the DOT offers a legitimate, nondiscriminatory reason for hiring Sierra instead of Gray, citing Sierra's relevant master's degree--as opposed to Gray's bachelor's degree--and " experience managing and conducting human factors research related to the [FAA]'s air traffic control programs," in particular. Id. at 5-6, 10; cf. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (A " relative lack of qualifications" is among the " most common legitimate reasons on which an employer might rely to reject a job ...

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