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Briscoe v. Kerry

United States District Court, District of Columbia

July 2, 2015

ANN JUANITA BRISCOE, Plaintiff,
v.
JOHN KERRY, Secretary, Department of State, Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiff Ann Briscoe brings this action against John Kerry, in his capacity as Secretary of State, alleging that she suffered discrimination on the basis of her age, race, and disability, and that she suffered retaliation for engaging in protected activity, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; and the Rehabilitation Act, 29 U.S.C. § 794, et seq. Pending before the Court is defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the Court GRANTS defendant's motion.

I. Background

Ms. Briscoe-an African-American woman who was born in April 1956, Report of EEO Investigation, ECF No. 7-1 at 1-was employed with the Media Resource Unit of the State Department's Bureau of Public Affairs. See Def.'s Statement of Material Facts ("Def.'s SMF"), ECF No. 7-8 ¶ 1; Pl.'s Statement of Material Facts ("Pl.'s SMF"), ECF No. 11 at 7 ¶ 1. She has a physical disability that limits her "ability to reach, stand or push." Compl., ECF No. 1 at 2. This disability is mentioned in her State Department personnel file, and has been known to the State Department since 2001. See id.; Def.'s SMF ¶ 8; Pl.'s SMF ¶ 3.

A. Ms. Briscoe's Experience in the Rapid Response Unit.

The Media Resource Unit was abolished in 2006, and Ms. Briscoe was forced to find a job in the newly formed Rapid Response Unit. See Def.'s SMF ¶ 1; Pl.'s SMF ¶ 1. The State Department "did not offer her assistance walking to Department offices in search of alternative employment." Def.'s SMF ¶ 8; Pl.'s SMF ¶ 3. The Rapid Response Unit was then led by Duncan McAnnis, who supervised Ms. Briscoe from January 2006 through June 2007. See Def.'s SMF ¶ 4; Pl.'s SMF ¶ 3. Prior to Ms. Briscoe's transfer to the Rapid Response Unit, Mr. McAnnis said "out with the old in with the new, " a statement that Ms. Briscoe did not hear, but "another employee told her about the comment." Def.'s SMF ¶¶ 5-6; Pl.'s SMF ¶ 3. At this time, Mr. McAnnis also hired and treated more favorably younger employees. See Def.'s SMF ¶ 7; Pl.'s SMF ¶ 3.

"[D]uring an unspecified period of time[, Ms. Briscoe] was tasked with helping new staffers sign-in in the building's lobby, located two floors beneath her own office, " which was difficult due to her disability. See Def.'s SMF ¶ 9; Pl.'s SMF ¶ 3. Ms. Briscoe was also "the only African American in [the Rapid Response Unit] and felt segregated and singled out." Def.'s SMF ¶ 11; Pl.'s SMF ¶ 3. Ms. Briscoe, however, "has not observed any employee at [the Rapid Response Unit] make a derogatory statement about race" or about her disability. Def.'s SMF ¶ 12, 29-30; Pl.'s SMF ¶ 3, 10-11. In 2006 and 2007, Ms. Briscoe received neither a performance rating nor an annual review, making her ineligible for promotion. See Def.'s SMF ¶ 13; Pl.'s SMF ¶ 3.

Beginning in September or October 2007, Jennifer Barnes became Ms. Briscoe's supervisor. See Def.'s SMF ¶ 4; Pl.'s SMF ¶ 3. Upon Ms. Barnes's arrival, she "met individually with all [Rapid Response Unit] staff except for Plaintiff and inquired as to Plaintiff's status in the [Rapid Response Unit] but not that of other employees." Def.'s SMF ¶ 14; Pl.'s SMF ¶ 3. Ms. Briscoe was also isolated from the staff during their daily morning meetings. See Def.'s SMF ¶ 15; Pl.'s SMF ¶ 3. Nonetheless, "[p]laintiff received an outstanding rating for 2008 and an exceeding expectations rating in 2009." Def.'s SMF ¶ 13; Pl.'s SMF ¶ 3.

B. Ms. Briscoe Pursues Administrative Proceedings Regarding Her Discrimination Claims.

On February 25, 2009, Ms. Briscoe contacted an EEO Counselor for the first time. See Def.'s SMF ¶ 16; Pl.'s SMF ¶ 3; EEO Counselor's Report, ECF No. 7-3 at 1. Her formal discrimination complaint was filed on March 25, 2009. See Def.'s SMF ¶ 17; Pl.'s SMF ¶ 4; Formal Complaint of Discrimination, ECF No. 7-2. That complaint alleged discrimination on the basis of race, age, and physical disability, and the creation of a hostile work environment. Id. at 2, 3.

Before this complaint was filed, Ms. Briscoe worked the night shift alone; after the complaint was filed, another employee began sharing the shift with her some nights and monitoring her work. See Def.'s SMF ¶ 18; Pl.'s SMF ¶ 5. On March 26, 2009, Ms. Barnes informed Ms. Briscoe that she would have her first-ever annual review the following day. See Def.'s SMF ¶ 19; Pl.'s SMF ¶ 5. During the review, Ms. Barnes referred repeatedly to Ms. Briscoe's EEO complaint and asked Ms. Briscoe to take on additional tasks. See Def.'s SMF ¶ 20; Pl.'s SMF ¶ 5. Following the review, Ms. Barnes "reached to grab hold" of Ms. Briscoe. Def.'s SMF ¶ 21; Pl.'s SMF ¶ 5.

Ms. Briscoe's initial discrimination-related complaint was assigned the administrative case number DOS-F-055-09. See Def.'s SMF ¶ 17; Pl.'s SMF ¶ 4. The State Department moved for summary judgment in the case on May 20, 2010. See Def.'s SMF ¶ 24; Pl.'s SMF ¶ 7. Ms. Briscoe's case was subsequently assigned to a new Judge in July 2010, and Ms. Briscoe alleges that her opposition to the motion for summary judgment was received. See Pl.'s SMF ¶ 8; Notice of Reassignment, Ex. 5B to Opp., ECF No. 11-1 at 31. On December 29, 2010, in part because of a finding that Ms. Briscoe did not file an opposition to the State Department's motion for summary judgment, the motion was granted. See Def.'s SMF ¶ 26; Pl.'s SMF ¶ 9; Decision, ECF No. 7-4 at 2-11. That decision did not address any retaliation claim. See Decision, ECF No. 7-4 at 2-11. Ms. Briscoe appealed this Order and, on November 14, 2012, the EEOC affirmed, finding, among other things, that even if Ms. Briscoe had filed an opposition to the motion for summary judgment, judgment in favor of the State Department was nonetheless appropriate. See EEOC Appeal Decision, ECF No. 7-5; Def.'s SMF ¶ 27; Pl.'s SMF ¶ 10. Ms. Briscoe's motion for reconsideration of that decision was denied on May 8, 2013. See Def.'s SMF ¶ 28; Pl.'s SMF ¶ 10. These decisions, too, did not address retaliation.

C. Ms. Briscoe Simultaneously Pursues Administrative Proceedings Regarding Her Retaliation Claims.

On March 30, 2009, Ms. Briscoe filed an addendum to her preexisting EEO complaint, alleging retaliation based upon Ms. Barnes's behavior on March 27, 2009. See Def.'s SMF ¶ 22; Pl.'s SMF ¶ 6. A formal complaint was filed the following day. See Def.'s SMF ¶ 22; Pl.'s SMF ¶ 6; Formal Retaliation Complaint, Ex. 3 to Pl.'s Opp., ECF No. 11 at 70-71.

On April 8, 2011-after the EEOC had granted the State Department's motion for summary judgment in Ms. Briscoe's discrimination case-Ms. Briscoe received notice that the retaliation claim would proceed under case number DOS-F-047-11. See Letter, Ex. 3A to Pl.'s Opp., ECF No. 11 at 73-75; Pl.'s SMF ¶ 6. Ms. Briscoe responded on April 17, 2011 to contest the assignment of a new case number on the ground that the retaliation claim "is included in the current case"-i.e. the case involving her discrimination claims. See Letter, Ex. 3B to Pl.'s Opp., ECF No. 11 at 76-77. At that point, however, summary judgment had already been granted to the State Department in that case, in a decision that made no mention of any retaliation claim. See Decision, ECF No. 7-4 at 2-11.

Ms. Briscoe's retaliation case was dismissed in a final decision issued on February 9, 2012. See Final Decision, ECF No. 7-6. The decision found that she had failed to respond to requests for interview by the individual investigating her claim and "did not provide testimony and/or otherwise provide any information to the Investigator regarding her allegation." Id. at 4. This led to the claim being "dismissed for failure to cooperate." Id. Ms. Briscoe was simultaneously ...


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