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Moore v. Pritzker

United States District Court, District of Columbia

September 1, 2016

PENNY S. PRITZKER, Secretary, United States Department of Commerce Defendant.



         Plaintiff Rhongelyn Moore, an African American woman, ("Plaintiff", or "Moore") brings this action against Penny S. Pritzker in her official capacity as Secretary of the United States Department of Commerce ("Defendant, " "Employer" or "Government"). Plaintiff alleges retaliation in response to age and race discrimination and retaliation complaints she filed against Defendant with the Equal Employment Opportunity Commission ("EEOC"), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.

         This matter is presently before the Court on Defendant's Motion to Dismiss or for Summary Judgment filed on November 3, 2015 ("Def.'s Mot.") [Dkt. No. 10]. On December 1, 2015, Plaintiff filed an Opposition ("Pl's Opp.") [Dkt. No. 13]. Defendant did not file a Reply.

         Upon consideration of the Motion, Opposition, the entire record herein, and for the reasons stated below, Defendant's Motion to Dismiss is granted in part and denied in part, and Defendant's Motion for Summary Judgment is granted in part and denied in part.

         I. BACKGROUND

         A. Factual Background

         Rhongelyn Moore ("Plaintiff, " "Moore"), a black woman, has been employed by the United States Department of Commerce ("DOC, " "Defendant") since 1990. Complaint ¶ 9 ("Compl.") [Dkt. No. 1] . In December 2001, Plaintiff was promoted to a GS-13 Public Affairs Specialist ("PAS") position in the Office of Public Affairs ("OPA") of the DOC. Id. ¶ 10. The OPA, which is located in the Office of the Secretary, acts as the primary point of contact for public affairs and serves as the liaison to the White House and the Executive Branch for all public affairs. Def.'s Mot. at 2 (citing United States Department of Commerce, Office of Public Affairs, https://www.commercegov/os/office-public-affairs).

         As a GS-13 PAS, Moore worked on press releases, provided the Minority Business Development Agency ("MBDA") with support, drafted advisories on events, and corresponded with reporters. See Def.'s Mot. at 4, 6. Moore was supervised by Deputy Director of OPA, Shannon Gilson. Compl. ¶ 11. Gilson was Moore's first-level supervisor until she left the OPA in August 2011. Id. Gilson was also Moore's documented rating official, which meant that she was responsible for both Moore's interim and final work performance evaluations for each fiscal year. See Pl's Opp. at 16, 19; Def.'s Mot. at 5. Moore's second level supervisor was Kevin Griffis, who was the Director of OPA until January 2012. Id. ¶ 12. As the second level supervisor, Griffis participated in the final performance evaluations and, when appropriate, approved the final ratings completed by the documented rating official. Pl's Opp. at 20; see also Griffis Decl. (Def.'s Ex. 5) ¶¶ 4-6 [Dkt. No. 10-5].

         In August 2011, when Gilson left her position at the OPA, Parita Shah effectively became Moore's first-level supervisor and documented rating official. Griffis Decl. ¶ 41; Def.'s Mot. at 2; Pl's Opp. at 3. Prior to the promotion, Shah and Moore were coworkers and periodically worked together on assignments. Pl's Opp. at 18. Following Shah's promotion, she left the office to work on a different assignment from August to September 2011 and returned in October 2 011, after the end of FY 2 011. Compl. ¶ 42. In January 2012, Jennifer Friedman replaced Griffis and became Plaintiff's new second-level supervisor when Griffis left the OPA. Compl. ¶¶ 12-13.

         As a GS-13 PAS, Moore was given a Performance Appraisal for each fiscal year. See id. ¶ 14. The employees were evaluated on three critical elements known as Customer Service, Media Outreach and Support, and Special Projects. Id. ¶ 48. Each element was rated from a Level 1, which means unacceptable performance, to a Level 5, which signifies the highest level of performance. Def.'s Ex. 2 [Dkt. No. 10-2] . Each employee was also given an overall final rating based on the same rating scale. Id. Prior to an employee's final Performance Appraisal, he or she was given an interim rating. See Compl. ¶ 51. Included in the interim rating were notes on specific areas for improvement in the three critical elements. Id.

         Prior to the final evaluation, employees were given the opportunity to submit to their supervisors a list of accomplishments that he or she achieved during that fiscal year. See id. ¶ 30; Def.'s Mot. at 3. The documented rating official also looked to reviews about employees from other departments with which the employee worked closely. In this case, Gilson corresponded with MBDA about the quality of Moore's work and overall performance for the fiscal year. Gilson Decl. (Def.'s Ex. 4) at 4 [Dkt. No. 10-4] .

         The relevant evaluation period in this case is FY 2011, which spanned October 1, 2010 to September 30, 2011. Id. With Gilson's departure set for the end of August 2011, Gilson called Moore to review her performance on August 26, 2011. Def.'s Statement of Facts ¶ 9 [Dkt. No. 10-15]. At the evaluation meeting, [1] Moore and Gilson reviewed Moore's performance rating for the FY 2 011. Compl. ¶ 49. Moore gave Gilson a list of FY 2011 accomplishments up to the date of the meeting. See id. ¶ 40.

         Gilson gave Moore the following ratings: 4 in Customer Service; 3/4 in Media Outreach and Support; 3/4 in Special Projects. Compl. ¶ 50. Moore alleges that there was an understanding between her and Gilson that the ratings were not final. See Compl. ¶ 49; Def.'s Statement of Facts ¶ 21. Moore alleges that Gilson stated that "if [Moore] assisted MBDA with its MED Week event, she did not see why her overall evaluation rating would not be a level 4 or 5, " and did not mention any other negative comments during this phone call. Pl's Opp. at 25, 30.

         Moore alleges that she never received a hard copy of Gilson's interim performance rating, which she would have reviewed in order to respond and/or improve her performance. Pl's Opp. at 11; see also Decl. of Gilson at 3. Griffis received an email from Gilson on August 24, 2011 containing Moore's interim rating and the interim review comments. Pl's Opp. at 27. However, Griffis did not discuss the rating and review comments with Moore or provide her with a copy of the rating. Compl. ¶¶ 28-29, 52. Other PAS employees received a copy of their ratings from Griffis. Pl's Interrog. at 8 [Dkt. No. 12].

         Unlike other employees who received an email on December 5, 2011 from Griffis to submit a list of their accomplishments in preparation for FY 2011 performance evaluations, Moore did not receive such an email.[2] Compl. ¶¶ 30-31. Moore later learned about the email, but when she brought it to Griffis' attention, Griffis did not afford her the opportunity to submit a final list of accomplishments. Compl. ¶¶ 32, 39. Therefore, Moore was unable to submit a final list of accomplishments at the end of the rating cycle. Pl's Opp. at 16.

         Due to the significant number of staff turnovers at OPA during FY 2011, the FY 2011 final evaluations were unusually delayed and were not given to employees until well after FY 2 011 had ended. Def.'s Mot. at 5, 29. Moore received her FY 2011 final evaluation from Shah in February 2012. Compl. ¶ 47. At this point, Shah was Moore's rating official and Griffis was her approving official. Id. Moore received the following FY 2011 final ratings: 3 in Customer Service; 3 in Media Outreach and Support; and 4 in Special Projects. Pl's Opp. at 30. Moore received an overall FY 2011 rating of a 3. Id. ¶¶ 53, 54.

         Shah relied, at least in part, on Gilson's interim evaluation, which included the list of accomplishments that Moore gave to Gilson in August. Pl's Opp. at 12; see also Def.'s Mot. at 4-6. Shah stated that OPA wanted "Plaintiff [to] improve her relationship with MBDA." Def.'s Statement of Facts ¶ 17. Shah stated that Moore did not provide MBDA with additional support, which Moore denies. Id: ¶ 19; Pl's Opp. at 20. Griffis approved Shah's FY 2011 final evaluation of Moore. Pl's Opp. at 20; Def.'s Mot. at 23.

         As a result of Moore's FY 2011 final rating and DOC's limited resources in FY 2011, she received a $150 bonus from Griffis. Compl. ¶ 57; Def.'s Mot. at 5. Pursuant to guidance from DOC's Office of the Secretary and the Office of Personnel Management on June 10, 2011, Griff is was required to limit all of the performance awards given to the staff so that the cumulative amount of awards did not exceed one percent of the total amount of salaries in OPA. Def.'s Statement of Facts ¶ 22; see also Griffis Decl. ¶ 8. This limit on performance awards decreased the agency's ability to give them. Id. Moore alleges that Griffis authorized her bonus prior to the end of FY 2011 and well before he requested staff accomplishments in December 2011. Compl. ¶ 58. Moore claims that her bonus did not properly reflect her final performance review. Id.

         On February 6, 2012, following the award of FY 2011 bonuses, Moore had a meeting with Friedman and Griffis to discuss her FY 2011 final evaluation. Def.'s Statement of Facts ¶ 25. At that meeting, Griffis told Friedman that Moore was a "malcontent" employee who never signed her performance evaluations and that she "always had something to complain about." Compl. ¶ 65. For example, Defendant stated that in May 2011, Moore wrote Gilson to say that she believed the kind of work she was doing was "extremely low level" and that she needed "something more substantive." Def.'s Mot. at 3.

         B. Procedural Background

         On February 28, 2011, Moore filed her administrative Equal Employment Opportunity ("EEO") claim alleging age discrimination against Griffis. Compl. ¶ 19. The Equal Employment Opportunity Commission ("EEOC") granted the Government's motion for summary judgment on August 13, 2012. Id. On June 16, 2011, Moore filed a complaint against Griffis and Gilson alleging racial discrimination and retaliation for her prior EEO activity. Id. ¶ 21; Def.'s Mot. at 6. The complaint was based in part on Moore's request for a promotion to the GS-14 of PAS in May 2011 that was ultimately denied. Compl. ¶ 20. The administrative judge - granted the Government's motion for summary judgment on this complaint on February 27, 2014. Def.'s Mot. at 7. Plaintiff did not appeal. Id.

         On March 6, 2012, Moore filed her third formal complaint of retaliation with the EEOC which is the relevant administrative action in the instant case. Def.'s Mot. at 7/ Pl's Opp. at 4. Defendant accepted four counts of retaliation for investigation, which included allegations that (1) Griffis refused to accept Moore's final list of FY 2011 performance accomplishments; (2) Griffis refused to complete Moore's FY 2011 performance evaluation; (3) Griffis recommended Moore for a $150 performance bonus, the lowest amount ever awarded to a PAS; and (4) in a meeting on February 6, 2012, Griffis attempted to portray Moore as a "malcontent employee" in front of Friedman, the new Public Affairs Director. Pl's Opp. at 4-5. On April 30, 2015, following discovery, the EEOC granted the Government's motion for summary judgment on all counts. Def.'s Mot. at 8; see Pl's Ex. B [Dkt. No. 1-2]. Defendant's Office of Civil Rights implemented the judgment on May 6, 2015. Def.'s Mot. at 8.

         On August 3, 2015, pursuant to 42 U.S.C. § 2000e-16(c), Moore filed her Complaint alleging one count of retaliation under Title VII under the Civil Rights Act of 1964 against Defendant. Compl. ¶ 69-70. Moore states that the following actions constitute retaliatory conduct following her EEO activity': (1) Griff is' refusal to provide Moore with a copy of her FY 2 011 interim rating; (2) Griffis' refusal to accept Moore's FY 2011 performance accomplishments; (3) Shah's ineligibility to rate Moore's FY 2011 performance; (4) Griffis' delay in timely completing Moore's FY 2011 performance evaluation; (5) Griffis' FY 2011 performance evaluation of Moore; (6) Griffis' recommendation of a $150 performance bonus for Moore; and (7) Griffis' attempt to undermine Moore after Griffis left his position. See generally Compl.

         Moore claims compensatory damages, upgraded performance appraisals, and a retroactive promotion to GS-14 grade level of PAS position as relief for the alleged retaliation. Compl. at 11-12. She also claims damages for disparate treatment, humiliation, stress, anxiety, and damage to personal and professional self-esteem. Pl's Interrog. at 11.

         On November 3, 2015, the Government filed its Motion to Dismiss or for Summary Judgment. On December 1, 2015, Plaintiff responded with her Opposition, and the Government failed to file a Reply.


         A. Motion to Dismiss

         To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge [ ]. [his or her] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). " [O] nee a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563. Under the Twombly standard, a "court deciding a motion to dismiss must not make any judgment about the probability of the plaintiffs' success... [, ] must assume all the allegations in the complaint are true (even if doubtful in fact) ... [, and] must give the plaintiff* the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation marks and citations omitted). A complaint ...

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