United States District Court, D. Columbia.
For LINDA RAMSEUR, Plaintiff: Charles Benjamin Taylor, LEAD ATTORNEY, Herndon, VA.
For SETH D. HARRIS, Acting Secretary, U.S. Department of Labor, Defendant: Hubert T. Lee, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; Mercedeh Momeni, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
ELLEN SEGAL HUVELLE, United States District Judge.
Plaintiff Linda Ramseur has brought this action against Thomas E. Perez, in his official capacity as the Secretary of the Department of Labor (" DOL" ), alleging that she had been subjected to discrimination, retaliation, and a hostile work environment based on her race and sex. This Court initially granted in part and denied in part defendant's motion on the pleadings. See Fed.R.Civ.P. 12(c). Discovery is now complete, and defendant has filed for summary judgment. (Def.'s Corrected Mot. for Summ. J. and to Dismiss [ECF No. 30]; Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. [ECF No. 30] (" Def.'s Mot." ).) For the reasons given herein, defendant's motion will be granted.
I. PLAINTIFF'S ALLEGATIONS
A. GS-11 Staff Assistant Position
When the events giving rise to this case occurred, plaintiff (African-American) was employed by the DOL as a Staff Assistant, GS-09, assigned to the Office of the Director in DOL's Civil Rights Center (" CRC" ). (Compl. [ECF No. 1] (" Compl." ) ¶ 6.) Ramón Suris Fernandez (Hispanic) became the Director of the CRC in April 2008. (Def.'s Mot., Ex. 1 [ECF No. 31-1] (" Suris-Fernandez Aff." ) ¶ ¶ 3-4.) Early in Mr. Suris-Fernandez's tenure, management expressed a desire to provide plaintiff with an opportunity to advance her career. (Def.'s Statement of Material Facts as to Which There Is No Genuine Dispute [ECF No. 30] (" Def.'s SOF" ) ¶ 5; Suris-Fernandez Aff. ¶ 18.) In October 2008, Julia Mankata-Tamakloe (African-American) -- one of plaintiff's supervisors at the time -- e-mailed Jackie Brooks (African-American) -- a Human Resources (Developmental) Specialist -- inquiring as to whether there existed a GS-11 Staff Assistant position into which plaintiff could be placed due to her accretion of duties. (Def.'s SOF ¶ 6; Def.'s Mot., Ex. 18 [ECF No. 32] (" 2008 E-mail Exchange" ) at 3; Pl.'s Mem. of P. & A. Opposing Def.'s Mot. for Summ. J. [ECF No. 33-3] (" Pl.'s Opp." ) at 4.) Brooks responded that no such position existed and that a position description (" PD" ) would have to be drafted and the position would have to be posted throughout the entire DOL. (2008 E-mail Exchange at 3.) Mankata-Tamakloe sent Brooks a position description for a GS-11 Staff Assistant position (the " Staff Assistant position" ) on November 21, 2008. ( Id. at 5.) Mankata-Tamakloe's involvement in the creation of the position ended in December 2008. (Pl.'s Opp., Ex. 5 [ECF No. 33-8] (" Mankata-Tamakloe Dep." ) at 33.)
In October 2008, Patricia Lamond (Caucasian) joined the CRC. (Def.'s SOF ¶ 3; Def.'s Mot., Ex. 2 [ECF No. 31-1] (" Lamond Aff." ) ¶ ¶ 3-4.) In March 2009, Lamond became plaintiff's second-line supervisor, and Elvia Mata (Hispanic) became plaintiff's first-line supervisor. (Def.'s SOF ¶ ¶ 3-4; Def.'s Mot., Ex. 4 [ECF No. 31-1].) Lamond was also the second-line supervisor of Ken Willis (African-American), who was responsible for coordinating the Staff Assistant position recruitment action. (Def.'s SOF ¶ 7; Def.'s Mot., Ex. 5 [ECF No. 31-1] at 13.) By January 2009, Lamond was communicating with Willis about the Staff Assistant position. (Def.'s SOF ¶ 9; Def.'s Mot., Ex. 19 [ECF No. 32].) In February 2009, Maria McAlpin -- Jackie Brooks's supervisor -- sent an e-mail to Willis, with Lamond and Brooks copied, stating " we are justifying a GS-11 level position so there must be some analytical and evaluation work included in this PD to support the grade." (Def.'s Mot., Ex. 20 [ECF No. 32]; Def.'s Mot., Ex. 6 [ECF No. 31-1] at 15-16.)
On May 18, 2009, the DOL posted a vacancy announcement for the Staff Assistant position. (Def.'s SOF ¶ 12; Def.'s Mot., Ex. 8 [ECF No. 31-1] (" Vacancy Announcement" ).) The announcement contained the following requirement: " [C]andidates should demonstrate specialized experience in planning, implementing, or evaluating compliance and technical assistance activities related to recipients of Federal financial assistance; conducting EEO and EO investigations and non-discrimination statutes under Title VI and VII of the Civil Rights Act and related statutes." (Vacancy Announcement at 3.) The testimony is conflicting as to the identity of the requirement's author. In her deposition, Jackie Brooks stated that " Patty Lamond [and] my direct supervisor, Maria McAlpin . . . worked together in formulating the specialized experience [requirement]." (Pl.'s Opp., Ex. 7a [ECF No. 33-9] (" Brooks Dep." ) at 77.) Plaintiff likewise claims that Lamond and McAlpin inserted the requirement. (Pl.'s Opp. at 11 (" [T]here can be no question that [Lamond] drew the requirement and was assisted by Personnel Officer McAlpin in doing so." ).) Although Lamond herself denies writing the requirement, defendant concedes that " Lamond . . . was ultimately responsible for reviewing the document, as a CRC manager." (Def.'s SOF ¶ 19; see Lamond Aff. ¶ ¶ 37, 41.) For purposes of this motion, the Court must assume that Lamond was the author.
Shortly after the vacancy announcement was posted, plaintiff applied for the position, along with seven other individuals. (Def.'s SOF ¶ 16; Def.'s Mot., Ex. 9 [ECF No. 31-1] (" Applicant Listing" ); Def.'s Mot., Ex. 10 [ECF No. 32].) All eight applicants were female; seven of the applicants identified as " Black or African American" ; one applicant identified as " White." (Pl.'s Opp., Ex. 25 [ECF No. 35-6].) Jackie Brooks reviewed all eight applications and found that all of the applicants either lacked the specified qualifications or were ineligible for consideration. (Def.'s SOF ¶ 17; Applicant Listing; Def.'s Mot., Ex. 7 [ECF No. 31-1] (" Brooks Aff." ) ¶ 30.) Brooks notified plaintiff that the reason she did not qualify for the position was because she " did not have the specialized experience that was required for the position," specifically that she did not meet the requirement that candidates " should demonstrate specialized experience in planning, implementing, or evaluating compliance and technical assistance activities related to recipients of Federal financial assistance; conducting EEO and EO investigations and non-discrimination statutes under Title VI and VII of the Civil Rights Act and related statutes." ( See Def.'s Reply in Supp. of Its Mot. for Summ. J. and to Dismiss [ECF No. 37] (" Def.'s Reply" ), Ex. 25 [ECF No. 37-2] (" Brooks Nov. 19 E-mail" ).) Plaintiff maintains that the reason she did not qualify for the job was because of the requirement that applicants have experience conducting EEO and EO investigations, which plaintiff contends was unrelated to the duties of the position. ( See Compl. ¶ ¶ 35, 39, 50.) No one was ever selected to fill the Staff Assistant position, and the position was not re-posted. ( See Brooks Aff. ¶ 30; Def.'s Mot., Ex. 12 [ECF No. 32] at 74.)
B. 2009 Performance Appraisal and Bonus
On November 5, 2009, plaintiff received a performance rating of " effective" for the period from March 23, 2009 to October 30, 2009. (Def. SOF ¶ 20; Pl.'s Opp., Ex. 3 [ECF No. 33-7] (" 2009 Performance Review" ).) Elvia Mata was plaintiff's direct supervisor during this period and conducted the review; Patricia Lamond approved the performance assessment. (Def.'s SOF ¶ 24; 2009 Performance Review; Def.'s Mot., Ex. 3 [ECF No. 31-1] (" Mata Aff." ) ¶ 17.) Mata has stated that the rating of " effective" was based on plaintiff's " execution of assignments," " customer service -- showing cooperation with others," " display of tact, discretion, and confidentiality," " ability to seek possible sources for information when it is not [readily] available to her," " final product reflects information requested," and " accepting personal responsibility for the quality of her work."  (Def.'s SOF ¶ 21; Mata Aff. ¶ 20.) Moreover, Mata claims that, on at least six occasions between March and October of 2009, she spoke with plaintiff " to discuss her progress towards goal attainment." (Mata Aff. ¶ 18.) For example, Mata claims that on July 13, 2009, she " spoke with complainant about her making copies of a book titled 'Lose Your Love Handles' on government property and distributing these copies to CRC staff including me." ( Id.) And, on August 7, 2009, Mata claims that she " spoke with complainant regarding her tone of email sent to the Director and an employee regarding the Director's Travel Voucher." ( Id.) Plaintiff does not dispute that these six discussions occurred. (Pl.'s Resp. to Def.'s SOF ¶ 22.)
The day before her initial review, which occurred on October 29, 2009, plaintiff sent Mata an e-mail that included documentation of her accomplishments. (Pl.'s Opp., Ex. 26 [ECF No. 35-6] (" Ramseur Oct. 28 E-mail" ).) Plaintiff sent Mata additional supportive documents the day after her review. (Pl.'s Opp., Ex. 29 [ECF No. 35-7] (" Ramseur Oct./Nov. E-mails" ).) Mata has stated that these additional submissions " did not support a higher rating." (Mata Aff. ¶ 27.) Plaintiff alleges that her review should have been amended to reflect her additional submissions, that she was not given an opportunity to submit comments before the appraisal was sent to the personnel office, and that she was not provided with a mid-year appraisal where she could have been informed that she needed to improve her performance. (Pl.'s Resp. to Def.'s SOF ¶ 21; Pl.'s Opp., Ex. 1 [ECF No. 33-6] (" Ramseur Decl." ) ¶ 21.)
As a result of receiving a rating of " effective," plaintiff was not awarded a bonus for that performance period. (Def.'s SOF ¶ 20; Compl. ¶ 49; Pl.'s Opp., Ex. 8 [ECF No. 33-10] (" 2009 Bonus List" ).) Pursuant to DOL's Departmental Personnel Regulation (" DPR" ) 430 subchapter 12 d.3.b, in effect at the time of plaintiff's rating, DOL monetary bonuses were tied to performance. (Def.'s SOF ¶ 25; Def.'s Mot., Ex. 23 [ECF No. 32] (" DPR" ).) The DPR stated that employees receiving a rating of " exemplary" " must receive a performance award" ; employees receiving a rating of " highly effective" " should normally receive a performance award" ; and employees receiving a rating of " effective" " should be considered for and may receive a performance award." (DPR at 13.) In the CRC, besides plaintiff, one other employee, an African-American female, received an " effective" rating and did not receive a bonus. (2009 Bonus List.) Plaintiff asserts that this employee did not receive a bonus due to her retirement. (Pl.'s Opp. at 25.) Six additional employees -- two African-American females, two Hispanic females, one white female, and one white male -- received " effective" ratings and received bonuses. (2009 Bonus List.)
C. Hostile Work Environment
Plaintiff alleges that Patricia Lamond " yelled at her at the top of her lungs in front of other employees." (Ramseur Decl. ¶ 26.) In her deposition, plaintiff was able to recall three such yelling incidents, although only two are included in the parties' submissions. (Def.'s Mot., Ex. 12 [ECF No. 32] (" Ramseur Dep." ) at 106.) In one incident, on November 17, 2009, plaintiff alleges that Lamond " yelled at [her] unnecessarily" after plaintiff failed to make a copy of a document that Lamond had requested. (Def.'s Mot., Ex. 11 [ECF No. 32] (" EEO Compl." ) at 3; see Ramseur Dep. at 99-100.) In another incident, on November 18, 2009, plaintiff alleges that Lamond yelled at her after plaintiff failed to give a fellow employee a message from Lamond. ( See EEO Compl. at 3; Ramseur Dep. at 98-99.) Plaintiff claims that Lamond never yelled at white employees. (EEO Compl. at 3; Ramseur Decl. ¶ 26.) Julia Mankata-Tamakloe has stated that she recalls Lamond raising her voice with plaintiff, but not with any other employees. (Mankata-Tamakloe Dep. at 43.) Lamond agrees that she raised her voice with plaintiff, but she states she has a tendency to " raise [her] voice to office staff" when she " become[s] animated or excited" and that she " did not single out any particular individual." (Def.'s Mot., Ex. 16 [ECF No. 32] ¶ 3; see Def.'s Mot., Ex. 5 [ECF No. 31-1] at 100-01.)
Plaintiff maintains that several other incidents support her hostile work environment claim. On October 7, 2009, plaintiff asserts that Lamond reprimanded her for failing to tell another employee to attend a meeting, even though plaintiff claims that she did inform him of the meeting. ( See EEO Compl. at 1; Ramseur Dep. at 102.) And plaintiff complains that Mata required her to leave a post-it note whenever she was away from her desk. (Pl.'s Opp., Ex. 21 [ECF No. 35-4] at 103-04.) She states that she never observed any other employees leaving post-it notes. ( Id. at 104.) For her part, Mata has stated that she asked all CRC staff to inform the front desk receptionist if they planned to be gone for more than ten minutes or to leave a note on their cubicle if the front desk receptionist was gone, but that plaintiff " would often be away from her desk for more than 10 minutes at a time and would not notify anyone of her whereabouts." (Mata Aff. ¶ 29.)
II. PROCEDURAL HISTORY
On December 9, 2009, plaintiff submitted an " Informal Complaint Informational Form" to the CRC. (Pl.'s Opp., Ex. 19 [ECF No. 35-2].) On February 4, 2010, she filed a formal administrative complaint. An administrative judge dismissed her claims ...