United States District Court, District of Columbia
KESSLER UNITED STATES DISTRICT JUDGE
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
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.
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.
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
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].
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. ¶¶
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.
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] .
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,  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.
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.
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].
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. 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.
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.
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
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.
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.
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.
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.
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
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.
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.
STANDARD OF REVIEW
Motion to Dismiss
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 ...