United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
This case arises from the grueling relationship between Karla Saunders and her former employer, the Small Business Administration (SBA). After five amended complaints, Ms. Saunders now alleges that she was discriminated against on the basis of her race (African American) and sex (female) and retaliated against for protected Equal Employment Opportunity (EEO) activity in violation of Title VII. Ms. Saunders sues Karen Mills in her official capacity as the Administrator of SBA.
SBA has filed a Motion to Dismiss or, in the alternative, for Summary Judgment. Mot. for Summ. J. [Dkt. 64] (MSJ). Ms. Saunders filed a timely opposition, to which SBA replied. Ms. Saunders conceded and waived several of her discrimination and retaliation claims. However, as it remains, this case is replete with genuine issues of material fact that preclude summary judgment except in part. For the reasons that follow, the Court will grant in part and deny in part Defendant's Motion.
Ms. Saunders is a black female who used to work at SBA. In 2005, she was selected for the position of Chief of the Training and Benefits Division (later named Training and Development Division (TDD)) in SBA's Office of Human Capital Management (OHCM). As Training Chief of the Division, Ms. Saunders held a position at a GS-14 level. She was selected and supervised by Richard Brechbiel, the Chief Human Capital Officer (CHCO) at SBA. After one month as Training Chief, Mr. Brechbiel promoted Ms. Saunders to the GS-15 level. In addition to Mr. Brechbiel, Ms. Saunders's second line supervisor was Darryl Hairston.
In 2006-2007, Ms. Saunders joined two other employees in complaining to SBA's Administrator about systemic discrimination and retaliation at the agency. After an independent investigation of these complaints, Mr. Brechbiel was transferred to a different position. On November 2, 2007, Napoleon Avery became Acting CHCO and, thus, Ms. Saunders's new supervisor. Mr. Avery became the new CHCO in January 2008. In the same month, Annie Spiczak assumed the position of Deputy CHCO, Molly Wilkerson became the new Chief of Staff to the Administrator, and Robert Danbeck joined SBA as Associate Administrator for Management & Administration. Soon after these personnel changes, Ms. Saunders was detailed to the Department of Labor (DOL) from February 11, 2008 to July 30, 2008 and to SBA's Office of Entrepreneurial Development (OED) from August 11, 2008 to April 4, 2009.
After her detail at OED, Ms. Saunders did not return as Training Chief because Dionne Martin had assumed the position of Training Chief during her details. Instead, Ms. Saunders was reassigned to SBA's Office of Faith Based and Community Initiatives (OFBCI) as a Senior Advisor. Ms. Saunders claims that her reassignment to the OFBCI was both discriminatory and retaliatory. She started her job at the OFBCI on May 24, 2009 and worked there for one year. In June 2009, Ms. Martin ended her detail as Training Chief. SBA quickly issued a vacancy announcement for the position. While she was Senior Advisor at the OFBCI, Ms. Saunders applied to her former position as Training Chief, but was not interviewed.
On June 1, 2010, the Office of Special Counsel (OSC) reached an agreement with SBA to return Ms. Saunders to her original position as Training Chief. Kevin Mahoney became her direct supervisor at TDD. Thereafter, Ms. Saunders asserts that SBA committed a series of discriminatory and retaliatory acts against her. For example, she alleges that SBA removed her subordinates, frustrated her attempts to fill vacancies, reduced her responsibilities and duties, failed to give her any performance standards, failed to give her quality step increases and formal written performance appraisals, assigned her to ridiculous and useless tasks, and reorganized the division to make her job more difficult. She also claims that she was the subject of unfair disciplinary actions, as well as low performance ratings that resulted in economic harm.
On June 26, 2014, SBA removed Ms. Saunders from her position. OSC once again intervened and she was reinstated. On September 3, 2014, Ms. Saunders retired from SBA, claiming she was constructively terminated because SBA made her working conditions intolerable and she was no longer willing to withstand the incessant discrimination and retaliation.
Ms. Saunders filed this lawsuit on March 7, 2011. Since then, Ms. Saunders has amended her complaint several times to add allegations of discrimination and retaliation during her employment at SBA. On February 8, 2012, this Court granted in part and denied in part SBA's first Motion to Dismiss. See Order [Dkt. 20]. The Court dismissed several claims, including those regarding Ms. Saunders's details to DOL and OED and her hostile work environment claim. On February 3, 2015, Ms. Saunders filed her Fifth Amended Complaint to include new allegations - specifically, her constructive discharge from SBA in September 2014. See CampL [Dkt. 57].
II. LEGAL STANDARDS
A. Standard of Re view
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed.R.Civ.P. 12(b)(6). A complaint must be sufficient "to give a defendant fair notice of what the .. . claim is and the grounds upon which it rests." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. A court must treat the complaint's factual allegations as true, "even if doubtful in fact, " id., but a court need not accept as true legal conclusions set forth in a complaint, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Twombly, 550 U.S. at 570. A complaint must allege sufficient facts that would allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678-79.
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). If, in considering a Rule 12(b)(6) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56[.]" Holy Land Found. For Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "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); accord Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion .. . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In ruling on amotion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson,
477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson,
477 U.S. at 249-50 (citations omitted).
B. Discrimination under Title VII
Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, prohibits status-based discrimination in federal and D.C. workplaces. 42 U.S.C, § 2006; see also Equal Employment Opportunity Act of 1972, Pub. L. 92-261, sec. 10, § 715, 86 Stat. 103, 111, codified as amended at 41 U.S.C. § 2000e-16 (extending Title VII to the federal government and the District of Columbia). It generally prohibits a federal employer or District of Columbia from making any "personnel decision" based on an employee's race, color, sex, religion or nationality. See 42 U.S.C. § 2000e-16; Baird v. Gotbaum,
792 F.3d 166, 168 (D.C. Cir. 2015). The "two essential elements of a discrimination claim" under Title VII are "that  the plaintiff suffered an adverse employment action  because of the plaintiff's race, color, religion, sex, [or] national origin." Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (collecting cases).
The first element, an "adverse employment action, " is an established legal term. See generally Douglas v. Donovan, 559 ¥36. 549, 551-52 (D.C. Cir. 2009); Ginger v. Dist. of Columbia, 527 F.3d 1340, 1343 (D.C. Cir. 2008). It means "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Taylor v. Small, 350 F'.3d 1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). An employee must "experience materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002); see also Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (distinguishing between non actionable "purely subjective injuries" and actionable "objectively tangible harm"). An actionable adverse action "in most cases inflicts direct economic harm." Burlington Indus., 524 U.S. at 762. Thus, "not everything that makes an employee unhappy is an actionable adverse action." Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001).
To satisfy the second element, a plaintiff can claim that the "adverse employment action" violated Title VII on either of two grounds. First, she can claim that it was perpetrated "because of her race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Second, she can claim that any of those qualities "was a motivating factor for [the] employment practice, even though other factors also motivated the practice." Id. § 2000e-2(m). The first is known as a "single-motive" or "pretext" theory of discrimination, and the second is known as a "mixed-motive" theory. See generally Fogg v. Gonzales, 492 F.3d 447, 451 (D.C. Cir. 2007).
If a plaintiff can summon direct evidence of discriminatory intent under either theory, such evidence will "generally entitle [the] plaintiff to a jury trial" and defeat a defendant's motion for summary judgment. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam) (quoting VateI v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011)). Indeed, "if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 121 (1985)). But if the plaintiff can only adduce circumstantial evidence of discrimination, i.e., a prima facie case only, courts apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
The McDonnell Douglas framework applies as follows. The plaintiff must first make a prima facie case (1) that she is a member of a protected class; (2) that she suffered an adverse employment action; and (3) that the unfavorable action gives rise to an inference of discrimination. Youssef v. F.B.I., 687 F.3d 397, 401-02 (D.C. Cir. 2012); Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). The burden then shifts to the defendant, which must "articulate some legitimate, nondiscriminatory reason" for its action. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If it does, then the plaintiff must show by a preponderance of the evidence that the reason advanced by the employer was merely a pretext to hide discrimination. Id.
On a motion for summary judgment, once an employer articulates a legitimate, non-discriminatory reason for its action(s), the plaintiff's prima facie case is only relevant in the context of the evidence as a whole. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). "[I]n considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?" Id. (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 511 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-16 (1983)).
C. Retaliation under Title VII
Evidence of retaliation may be direct or circumstantial. To establish a retaliation claim, a plaintiff must demonstrate that: (1) she was engaged in a protected activity; (2) the employer took a materially adverse employment action; and (3) there is a causal connection between the protected activity and the materially adverse action. Brown v. Paulson, 597 F.Supp.2d 67, 73 (D.D.C. 2009) (citing Burlington N. & Santa FeRy. Co. v. White, 548 U.S. 53, 68 (2006)). Before a factfinder can infer causation, there must be evidence that the employer was aware of the protected activity. See Holcomb, 433 F.3d at 901-02.
Importantly, retaliatory conduct need not reach the same level of adversity as discriminatory conduct. See generally Mogenhan v. Napolitano, 613 F.3d 1162, 1165-66 (D.C. Cir. 2010). In other words, "Title VII's substantive [discrimination] provision and its anti-retaliation provision are not coterminous" because the "scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm." Steele v. Schafer, 535 F.3d 689, 695 (quoting Burlington N., 548 U.S. at 67). Instead of only "affecting the terms, conditions, or privileges of employment, " as must a discriminatory adverse action, retaliatory conduct need only "dissuade a reasonable worker from making or supporting a charge of discrimination." Mogenhan, 613 F.3d at 1166 (quoting Burlington N., 548 U.S. at 68). Nonetheless, this material adversity requires "more than 'those petty slights or minor annoyances that often take place at work and that all employees experience.'" Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (quoting Burlington K, 548 U.S. at 68).
Retaliation also differs from discrimination in its causation: retaliation claims must be proved according to traditional principles of but-for causation. Univ. of Tex. SWMed. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013) ("[A] plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer."). Thus, there is no "mixed motive" retaliation. Cf. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028, 2032 (2015) (contrasting Nassar's but-for standard in retaliation cases with the more "relaxe[d]" standard in Title VIFs mixed-motive discrimination provision, 42 U.S.C. § 2000e-2(m)).
Finally, retaliation claims based only on circumstantial evidence are subject to the same burden-shifting framework of McDonnell Douglas, as outlined above. See Allen, 195 F.3d at 39.
A. Reassignment to OFCBI
Ms. Saunders alleges that she was discriminated and retaliated against when she was reassigned on May 24, 2009 from her official position as Chief of the TDD to the position of Senior Advisor in OFBCI. Compl. ¶ 156(a). With respect to her discrimination claim, Defendant argues that Ms. Saunders cannot establish that: (1) she was treated differently from a similarly situated employee outside her protected classes (i.e., gender and race); and (2) SBA articulated legitimate non-discriminatory reasons that do not constitute pretext for discrimination.
As to the first argument, Defendant only states, "Plaintiff has no evidence of another manager in OCHM within the same grade level and having similar responsibilities whose employees made numerous complaints to upper management about the manager and requested transfers or left the Agency." MSJ at 15. There may be only one human being who could fit that narrow and detailed description - Ms. Saunders herself. The similarly-situated analysis does not require evidence of a virtually identical employee who was treated more favorably. The purpose of this requirement "is to 'provide plaintiffs the 'boost' that the McDonnell Douglas framework intended.'" Coleman v. Donahoe, 667 F.3d 835, 852 (7th Cir. 2012) (quoting Humphries v. CBOCSW.,
Inc., 474 F.3d 387, 406 (7th Cir. 2007), aff'd, 553 U.S. 442 (2008)) (other citation omitted). If this Court were to agree with Defendant's comparator, it would "transform this evidentiary 'boost' into an insurmountable hurdle." Id.
Moreover, the D.C. Circuit has warned district courts against focusing too much on the employee's burden to make out aprima facie case at the summary judgment stage. In Brady v. Office of Sergeant at Arms, the Circuit noted that the district court's "focus on the prima facie case [under McDonnell Douglas] was not atypical" because "district courts often wrestle with th[is] question" when deciding an employer's motion for summary judgment or judgment as a matter of law in Title VII cases. 520 F.3d at 493. The D.C. Circuit stated that this "judicial inquiry into the prima facie case is usually misplaced" because "[i]n the years since McDonnell Douglas, the Supreme Court's decisions have clarified that the question whether the employee made out a prima facie case is almost always irrelevant." Id. "nce the employer asserts a legitimate, non-discriminatory reason, the question whether the employee actually made out a prima facie case is 'no longer relevant' and thus 'disappears]' and 'drops out of the picture.'" Id. at 493-94 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511 (1993); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).
Relying on U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983), the D.C. Circuit has also instructed that "the prima facie case is a largely unnecessary sideshow" that has "spawn[ed] enormous confusion andwast[ed] litigant and judicial resources." The rule governing this Court's analysis of the instant case was clearly articulated in Brady:
In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not - and should not - decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer ...