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Kilby-Robb v. Duncan

United States District Court, District of Columbia

September 28, 2016

ARNE DUNCAN, Secretary, U.S. Department of Education, Defendant.


          CHRISTOPHER R. COOPER United States District Judge

         Plaintiff Patricia Kilby-Robb alleges that during late 2010 and early 2011, her employer, the U.S. Department of Education (“DOE” or the “Department”), engaged in race- and age-based discrimination and retaliation, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16(a), and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a(a). She claims that the poor performance evaluation she received from the Department, as well as a number of measures taken by the Department in connection with her extended medical leave, were discriminatory and retaliatory in violation of law. The Court concludes that most of the personnel actions Kilby-Ross complains of are not materially adverse, and that legitimate, non-discriminatory reasons explain those that are. Consequently, the Court will grant summary judgment for the Department.

         I. Background

         Kilby-Robb, an African-American over the age of sixty, has been employed since November 2009 as an Educational Program Specialist in the Charter Schools Programs office of the Department's Office of Innovation and Improvement (“OII”), which administers over two dozen discretionary grant programs for schools across the country. Def.'s Mot. Summ. J. (“MSJ”), Ex. 1; Ex. 2, at 56; Ex. 3, at 134-137.[1] During the relevant time period, Kilby-Robb's immediate supervisor-and, allegedly, the one most directly responsible for the Department's adverse actions-was Scott Pearson, who became Acting Director of the Charter Schools Program in May 2010. MSJ, Ex. 4, at 82. Kilby-Robb's Complaint also more tangentially implicates Margo Anderson, her second-level supervisor; Nancy Paulu, who was the Coordinator for Fund for Improvement of Education (“FIE”) grants and oversaw the work of all grant monitors (including Kilby-Robb) working in the Charter Schools Program; and Carol Lyons, who was a higher-level director within OII. Ex. 5, at 93; Ex. 6, at 99; Ex. 7, at 106.

         For a six-month period beginning in March 2010, soon after the start of her employment in the Charter Schools Programs office, Kilby-Robb was evaluated under the Education Department Performance Appraisal System (“EDPAS”). MSJ, Ex. 8, at 182-209; Ex. 9, at 127- 28. Under EDPAS, non-supervisory employees, including Kilby-Robb, are evaluated with respect to their “organizational priorities” and “customer service, ” on the following scale: 1 - “Unacceptable”; 2 - “Minimally Successful”; 3 - “Successful”; 4 - “Highly Successful”; and 5 - “Outstanding.” MSJ, Ex. 8, at 185, 206. During the relevant evaluation period, Kilby-Robb's “organizational” responsibilities included such things as “complet[ing] required activities for awarding grants by adhering to the appropriate grant procedures, including reviewing applications . . . to assist with the timely and efficient preparation of grant slates for OII and Department approval.” MSJ, Ex. 10, at 129-30. Grant applications were to be reviewed and processed within eight weeks. MSJ, Ex. 7, at 107. Kilby-Robb's “customer service” responsibilities included “[p]roviding sound and timely advice to assigned grantees and OII staff concerning project-related inquiries.” Id. at 131.

         During the evaluation period, Kilby-Robb was assigned twenty-five FIE applications to process; nineteen of those applications were not processed within the expected eight-week window. MSJ, Ex. 14. In May 2010, a grant applicant sent an email to the Department, complaining that Kilby-Robb had been nonresponsive to emails and phone calls, that the processing-not yet completed-had already taken fourteen weeks, and that without the grant funding, the applicant was “having to pay all expenses out of [her] savings and personal credit cards.” MSJ, Ex. 12. The Department received a similar email in September from a grantee seeking approval for some proposed changes: He had sent a letter to Kilby-Robb in July, as well as multiple emails, but had not yet received a response. MSJ, Ex. 13. In October 2010, towards the end of the evaluation period, Pearson-who as Kilby-Robb's direct supervisor was charged with completing her assessment-asked Paulu, the FIE grants coordinator, for a summary of Kilby-Robb's work performance. MSJ, Ex. 15. Paulu catalogued specific examples of deadlines that were missed and “[i]mportant details [that] often were overlooked or ignored, ” noting that “far too often I was required to make major revisions to [Kilby-Robb's] work” and “in several cases take over all or parts of assignments for them to be completed at an acceptable professional level and on time.” MSJ, Ex. 14. On October 25, 2016, after reviewing Paulu's account and consulting via email with other colleagues, Pearson assessed Kilby-Robb as “Minimally Successful, ” i.e., the second-lowest rating, on both her organizational and customer service performance. MSJ, Ex. 10, at 132; Ex. 15.

         Several days after receiving this performance rating, Kilby-Robb took an extended medical leave; she was absent from October 29, 2010 through January 7, 2011. MSJ, Ex. 2. During this time, she corresponded via email with Pearson and Paulu, performing some grant assistance work from home and forwarding other work to Paulu. MSJ, Exs. 11, 18-21. However, Kilby-Robb never communicated to the Department a date on which she would return to work. MSJ, Ex. 11, at 73-74. Most of Kilby-Robb's leave was approved under the Department's sick leave policy, which requires employees to complete a request and submit supporting medical documentation for absences longer than four days. MSJ, Ex. 17. However, Kilby-Robb's approved leave period expired at the end of December, and so on January 4, 2011, Pearson emailed her requesting that she submit a status update. MSJ, Ex. 22. Later that week, Kilby-Robb responded that she had made progress, had an upcoming appointment, and would “return to the Department after consultation with [her] medical team.” Pl.'s Opp'n Def.'s MSJ (“Pl.'s Opp'n”), Ex. E. On January 10, in response to another email from Pearson reminding Kilby-Robb of the Department's leave policies and seeking documentation, she emailed to explain that as of that day, she would “not be on leave, ” but would work from home. MSJ, Ex. 23. The following day, Pearson responded with an email granting Kilby-Robb permission to work from home, but only for that week, and requesting the proper medical documentation for two absences in November as well as the first week in January. MSJ, Ex. 24.

         Pearson and Kilby-Robb, joined by Paulu, spoke on the phone the following day, January 12, primarily to “review the status of [Kilby-Robb's] work, ” given that there was a significant backlog in the grants assigned to her for processing. MSJ, Ex. 4, at 84-85. During the call, Pearson asked about Kilby-Robb's health condition “in the context of understanding when she would return to the office, ” but when Kilby-Robb responded that she felt such questions to be inappropriate-since Paulu was not her direct supervisor-Pearson stopped asking health-related questions. Id. at 85. Pearson later explained that, after discussing the issue with the Department's Human Resources office, he had concluded that it was “appropriate” for Paulu to meet with him and Kilby-Robb “when . . . discussing the content of [Kilby-Robb's] work on FIE [grants], ” but that it was “not appropriate when . . . discussing broader personnel issues.” Pls.' Opp'n, Ex. I. On January 14, still lacking the proper documentation for Kilby-Robb's early-January absences, Pearson marked her as being absent without leave (“AWOL”) on those dates. MSJ, Ex. 25.

         About a week later, on January 18, Kilby-Robb returned to the office, and Pearson and Paulu met with her in person. MSJ, Ex. 28. Pearson had asked Paulu to join the meeting because she had been involved in coordinating, and partially shouldering, Kilby-Robb's workload in her absence. MSJ, Ex. 4, at 84-85; Ex. 6, at 100-01. But when Kilby-Robb objected to Paulu's presence at the meeting, Pearson asked Paulu to leave. MSJ, Ex. 6, at 101. During the meeting, Pearson gave Plaintiff a “Conduct Note for the File, ” which flagged multiple leave dates-two in November, plus the first week in January-for which Kilby-Robb had provided no proper medical documentation. MSJ, Ex. 30. Ultimately, Pearson rescinded the “Conduct Note, ” but on February 1, 2011, he wrote a “Counseling Memorandum” to Kilby-Robb, in which he described concerns regarding her lack of preparation for the January 18 meeting and her failure to provide leave requests for early January. MSJ, Ex. 28. On February 3, in light of medical documentation submitted by Kilby-Robb on January 31, Pearson voided the AWOL designation. MSJ, Ex. 27.

         Kilby-Robb brought this action in June 2013, alleging race discrimination under Title VII (“Count I”); retaliation under Title VII (“Count II”); and age discrimination under the ADEA (“Count III”).[2] Moreover, Kilby-Robb alleged in each count that the Department had “created a hostile work environment.”[3] Am. Compl. ¶¶ 26, 32, 28. All supposed legal violations were founded on the same purported misconduct: Kilby-Robb alleged that the Department discriminated and retaliated against her “by issuing her a low performance evaluation; coercing her into providing confidential medical information; charging her thirty-two hours AWOL; having Paulu participate in discussions regarding her performance and medical condition; harassing her about her medical leave and documentation; [and] issuing her a Memorandum of Counseling.” Id.[4]

         Following discovery, the Department moved for summary judgment, arguing that “aside from her conclusory assertions of discriminatory intent and retaliatory animus, [Kilby-Robb] is unable to show that Mr. Pearson's actions were based on reasons that were other than legitimate and non-discriminatory, ” and that she had been “unable to show . . . any connection between the alleged actions and Ms. Anderson or Ms. Paulu.” Def.'s Mem. Supp. MSJ 2. Resting primarily on her own affidavit, Kilby-Robb contends in her Opposition that she has put forth direct evidence of discriminatory intent, and has “demonstrated that each of the [Department's] justifications for its acts is false and [a] pretext for unlawful discrimination.” Pl.'s Opp'n 2. The Department filed a Reply, and the Motion is ripe for consideration.

         II. Legal Standards

         The Court will grant summary judgment if the movant “shows that there is no genuine dispute as to any material fact, ” such that “judgment as a matter of law” is proper. Fed.R.Civ.P. 56(a). The movant has the burden of showing the “absence of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the Court accepts as true the nonmovant's evidence, drawing all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On the other hand, the nonmovant may not rely on mere allegations or conclusory statements. Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006). The Court is “most likely” to grant summary judgment in favor of a defendant “when a plaintiff's claim is supported solely by the plaintiff's own self-serving, conclusory statements.” Mokhtar v. Kerry, 83 F.Supp.3d 49, 61 (D.D.C. 2015) (quoting Bonieskie v. Mukasey, 540 F.Supp.2d 190, 195 (D.D.C. 2008)).

         III. Analysis

         As enumerated above, Kilby-Robb brings claims of discrimination, retaliation, and- under a liberal reading of her Complaint-hostile work environment. ...

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