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Keys v. Donovan

United States District Court, District of Columbia

June 2, 2015

JAMES L. KEYS, Plaintiff,


JAMES E. BOASBERG, District Judge.

Pro se Plaintiff James Keys is an employee of the Department of Housing and Urban Development. In this employment-discrimination case, he alleges that HUD superiors retaliated against him for an Equal Employment Opportunity complaint that he filed in 2011. Specifically, he claims that they created a hostile work environment, took away certain of his job responsibilities, and gave him a lower performance rating. The Court previously dismissed Plaintiff's hostile-work-environment claim, but granted him the opportunity to proceed on the others. Discovery now complete, HUD has filed a Motion for Summary Judgment. Because no reasonable jury could find that the agency retaliated against Keys, the Court will grant the Motion.

I. Background

On a motion for summary judgment, the Court must view the facts in the light most favorable to Keys, the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Yet, because Plaintiff failed to submit a separate statement of facts identifying genuine issues in dispute, as is required by LCvR 7(h), the Court will treat as true those facts identified in Defendant's Statement. See Lu v. Lezell, 45 F.Supp. 3d 86, 92 (D.D.C. 2014) (finding most of defendant's facts to be deemed admitted for plaintiff's failure to comply with LCvR 7(h)). In any event, none of Plaintiff's arguments turns on a dispute regarding these facts.

From February 2011, Keys was employed as a GS-14 Administrative Management Specialist in HUD's Field Policy and Management Department. See Mot., Exh. 9 (Notice of Appeal to the EEOC) at ECF p.5. Although his supervisor, Paul Scott, never provided a formal position description for him, his job responsibilities included tasks relating to human resources, administrative management, and labor disputes. See id. at ECF p.6.

In September 2011, Plaintiff filed an EEO complaint alleging a number of discrimination-related grievances. Specifically, Keys claimed that Scott had failed to create a performance plan or position description for him, was frequently disrespectful, and had inappropriately denied him a temporary promotion on account of his race. See Mot., Exh. 7 (First EEO Complaint) at 2. HUD and Plaintiff subsequently settled the dispute in December 2011. See Mot., Exh. 3 (Settlement Agreement) at 4. Pursuant to the settlement, HUD, inter alia, transferred Plaintiff to a new supervisor, Nelson Bregon, effective December 13. See id. at 2, 4. Plaintiff, in turn, agreed to "release... his right to file any complaint... against the Department... that was or could have been raised in connection with [his discrimination claim]." Id. at 2.

Keys thereafter complained to Bregon that he had not received a performance rating or position description for Fiscal Year 2011, both of which he should have obtained while working under his previous supervisor, Scott. See Mot., Exh. 12 (Deposition of James Keys) at 118:2-119:17; 121:25-122:21. In response, Bregon worked with Plaintiff to create a list of performance standards, and they agreed that Bregon would evaluate Keys based on those standards after he was under Bregon's supervision for at least ninety days. See id. at 147:16-21; Mot., Exh. 2 (Affidavit of Nelson Bregon), ¶ 2. Bregon entered these standards into the Employee Performance Planning and Evaluation System (EPPES) on January 19, 2012. See Mot., Exh. 17 (FY 2011 Performance Appraisal) at 1.

On February 8, 2012, Bregon and Keys met to discuss the 2011 performance rating, and Bregon informed Keys that he intended to rate his performance as "fully successful." See Mot., Exh. 15 (February 8- March 6, 2012, E-mail Correspondence between Bregon and Keys) at 1. Bregon had the option of assigning Plaintiff one of five "summary ratings" ranging from "unsatisfactory, " the lowest rating, to "outstanding, " the highest. See FY 2011 Performance Appraisal at 1. Finding Plaintiff had performed somewhere in between, Bregon considered the "fully successful" rating appropriate as he had worked at a sufficient level of competence, but had not exceeded expectations. See id.; Bregon Aff., ¶ 4. Plaintiff nonetheless believed that this rating was inaccurate; because Bregon had not been his supervisor during the 2011 rating period, Keys felt that he lacked sufficient information to rate him. See Mot., Exh. 13 (Deposition of Nelson Bregon) at 42:16-43:7; Keys Dep. at 129:1-18. In an e-mail after the meeting, Keys thus requested that Scott rate him instead. See February 8- March 6, 2012, E-mail Correspondence between Bregon and Keys at 1.

On March 1, Plaintiff had not yet received Scott's evaluation, and he again complained to Bregon about it. See ECF No. 5 (Defendant's Motion to Dismiss and for Summary Judgment), Exh. 5 (March 1-6, 2012, E-mail Correspondence between Keys and Bregon) at 3. Plaintiff reiterated his request - made previously on February 8, 2012 - that Scott be the one to rate his performance. See id. 1-2; Keys Dep. at 129:1-18.

On March 6, 2012, Bregon reported that Scott had also concluded that during FY 2011, Keys performed at a "fully successful" level. See March 1-6, 2012, E-mail Correspondence between Keys and Bregon at 1; Mot., Exh. 14 (Affidavit of Paul Scott), ¶ 3. Bregon incorporated this input with his own assessment, filed a "fully successful" rating in EPPES, and forwarded the final rating to the reviewing official. See Mot., Exh. 17 (Keys's Performance Rating) at 3. Scott based his rating of Keys on the amount of oversight he had required to complete his assignments and on an error Plaintiff had committed. See Scott Aff., ¶ 3. Scott also added that, although Plaintiff did all of the work he had been assigned, "there was nothing distinguished in his performance." Id.

Believing that this rating was unfairly retaliatory, Plaintiff initiated the administrative process in March 2012 by seeking EEO counseling and by filing an informal EEO complaint. See Keys Dep. at 101:23-102:23; Mot., Exh. 5 (Informal EEO Complaint). His sole charge was that his lower performance rating for FY 2011 was given in retaliation for his prior EEO activity. Ultimately, on appeal, the EEOC concluded that HUD had articulated legitimate, nonretaliatory reasons for its performance rating and that such reasons were not pretexts for retaliation. See Mot., Exh. 10 (June 25, 2013, EEOC Decision) at 2. Keys then filed this suit on September 26, 2013, alleging that HUD had retaliated against him by taking away his job responsibilities, creating a hostile work environment, and giving him a lower employment evaluation, thereby depriving him of a performance bonus.

The agency moved to dismiss the action in February 2014. See ECF No. 5. In granting the motion as to the hostile-work-environment claim, the Court found as a matter of law that Keys had not alleged facts that rose to the level required. See Keys v. Donovan, 37 F.Supp. 3d 368, 374 (D.D.C. 2014). Plaintiff's Complaint, however, did overcome Rule 12(b)(6)'s low bar as to his remaining allegations. Given that he was pro se, moreover, the Court allowed Keys a "significant amount of leeway in filing [his] pleadings." Id. at 371. He was thus permitted to take discovery in order to corroborate his other retaliation claims.

That process now complete, the agency has once again filed a dispositive motion. This time it seeks summary judgment; Plaintiff ...

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