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Smith v. McMahon

United States District Court, District of Columbia

March 7, 2017

LINDA MCMAHON,[1] Administrator, Small Business Administration, Defendant.


          CHRISTOPHER R. COOPER United States District Judge.

         Plaintiff CaSandra Smith was a longtime employee of the U.S. Small Business Administration (“SBA”) when in May 2013 she learned through a desk audit that she was, literally, working above her paygrade. In response, Smith's supervisor-relying on advice from an SBA job classification specialist-sought to create a new position for her. However, due to a mix-up in the SBA's Human Resources office and a subsequent hiring freeze, the position was never posted, and the SBA solved the problem instead by relieving Smith of her above-grade duties. Believing that her non-promotion was the product of discrimination on the basis of her gender and race (African-American), Smith filed a complaint with the agency's Equal Employment Opportunity (“EEO”) office. Subsequently, the SBA took a number of actions- including the denial of Smith's requests for a transfer and a private office-that Smith viewed as attempts to retaliate against her for the EEO activity. She brought suit in this Court, challenging the non-promotion, the alleged retaliatory actions, and other non-selections.

         While acknowledging the complexity of the facts underlying this case, the Court ultimately concludes that Smith has failed to produce sufficient evidence permitting a reasonable jury to find that any of the adverse actions she alleges were motivated by discrimination or retaliation. See McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012); Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011). The Court will therefore grant summary judgment for the SBA.

         I. Background

         Smith has been an employee of the SBA since 1989. See Def.'s Mem. Supp. Mot. Summ. J. (“MSJ”), Ex. 1 at 11:20-21. She began her tenure with the agency at its headquarters in Washington, D.C., but after several years, she relocated to the SBA's North Carolina District Office in Charlotte. See id. at 12:16-25. Between 1994 and 2009, Smith's positions varied significantly, and they included some supervisory roles. See id. at 12:16-13:16; 157:23-158:14. In 2009, though still posted in Charlotte, Smith took a position as a Program Analyst with the SBA's Washington-based Office of Certification and Eligibility. See id. at 13:22-24, 14:13-15; Def.'s MSJ, Ex. 3. That Office is located within the Office of Business Development, which in turn is a subdivision of the Office of Government Contracting and Business Development (“GCBD”). See Def.'s MSJ, Ex. 4.

         A. Desk Audit, Promotion Efforts, and Reassignment of Duties

         Although Smith's Program Analyst job was a GS-13 position, she was soon assigned IT project management responsibilities that former GS-14 employees had performed. Pl.'s Mem. Opp'n Def.'s MSJ (“Pl.'s Opp'n), Ex. 18 at 254-59. By early 2013, Smith was convinced that she was doing above-grade work, and she voiced that concern to management. Compl. ¶ 15. In response, Robert Watkins-Smith's supervisor for nearly all of the time period relevant here, Def.'s MSJ, Ex. 1 at 15:21-16:2-requested that the Human Resources office conduct a “desk audit, ” Def.'s MSJ, Ex. 26, which is “a formal review of [an employee's] duties and responsibilities . . . [to] [d]etermine[] what knowledge, skills, and abilities are necessary to perform[ing] [the] job, ” Def.'s MSJ, Ex. 25 at 16. Kia Wyche, in Human Resources, began the desk audit in April 2013. Def.'s MSJ, Ex. 1 at 73:1-5, 76:10-12. The next month, Wyche emailed Watkins to convey that she had completed the desk audit, and that the “correct classification for [Smith's] position” was at a GS-14 level. Def.'s MSJ, Ex. 27. But Wyche went on to note that Smith's performance of GS-14-level duties was considered the result of “a planned management action, since GS-14 duties [had been] assigned to a GS-13 employee, ” rather than simply being acquired due to increased need over time. Id. As a result, under agency human resources policy, any grade promotion for Smith could not be automatic, since “competition would apply to filling [the newly recognized GS-14] position.” Id.

         Heeding Wyche's advice, Watkins assembled the paperwork necessary to initiate a personnel action for the GS-14 position, and on May 20-less than two weeks after the completion of the desk audit-a recruitment action request was submitted to Human Resources for processing. See Def.'s MSJ, Ex. 29. Nearly four months later, Human Resources emailed to apologize: There had been a mix-up involving two separate recruitment actions, which had caused a processing delay. Def.'s MSJ, Ex. 30. Roughly a week later, Watkins and his supervisor, Darryl Hairston, completed a second personnel action request, this time clarifying that the position was open only to GCBD employees (including Smith) and was subject to an alternative work site (like Smith's). Def.'s MSJ, Ex. 31. That was emailed to Human Resources the same day. Id.

         Mild dysfunction in the SBA's Human Resources department preceded major dysfunction, at the federal government writ large. Only a few days after the Human Resources snafu had been resolved, from October 1 through October 16, 2013, all federal government agencies-including the SBA-underwent a budget-related shutdown. Soon after the shutdown, in light of continuing budgetary uncertainty, the SBA implemented an agency-wide hiring freeze, which lasted through early 2014. See Def.'s MSJ, Ex. 17 at 62:13-18, 114:11-115:5. During that period, all final hiring decisions were made by the Administrator, see id. at 58:19-59:5; Def.'s MSJ, Ex. 11 at ¶ 37, and to facilitate that process, in November 2013, SBA senior administrators and office heads were instructed to submit priority hiring lists for their respective divisions. See Def.'s MSJ, Ex. 35. On November 25, GCBD submitted its list, which included the GS-14 post intended for Smith. Id. In January 2014, the SBA's Acting Administrator released an agency-wide priority hiring memorandum, approving hiring at GCBD for ten positions, but only for the purpose of “complet[ing] the transition to HQ of the centralized 8(a) portfolio review.” Def.'s MSJ, Ex. 37. The GS-14 position intended for Smith did not fall within that category, and accordingly, it was cancelled. See id. (email from SBA Chief Human Capital Officer to GCBD leadership seeking “[a]pproval to cancel any . . . job announcement” not relating to the portfolio review transition and “[a]pproval to cancel your one internal hire”); see also Def.'s MSJ, Ex. 6 at 88:7-11.

         No longer able to raise Smith's position grade, Watkins set about reducing her responsibilities (again, on the advice of Human Resources). See Def.'s MSJ, Exs. 38-39. According to agency protocol, this approach-removing above-grade duties-is one acceptable means of responding to a desk audit that reveals a mismatch between an employee's current grade and current responsibilities. See Def.'s MSJ, Ex. 25 at 16; Ex. 17 at 96:6-14. Throughout January and February 2014, Watkins worked with Human Resources to draft a new position description for Smith. See Def.'s MSJ, Exs. 38-39. In March 2014, Watkins notified Smith that, effective the following month, she would be reassigned from the GS-13 “Program Analyst” position to the GS-13 “Business Systems Support Specialist” position. Def.'s Ex. 40. The notice also made clear that Smith's grade and salary would not be affected. Id. Because Smith was on medical leave when this first notice of reassignment was sent, the notice was reissued in May. See Def.'s MSJ, Exs. 41, 43.

         B. Non-Selections for Two Positions

         Smith complains not only of the SBA's failure to create a new GS-14 position for her, but also of her non-selection for two existing positions.[2] First, in April 2013, at the same time the SBA was conducting the desk audit for her position, Smith applied for the GS-15 position of Director of Certification and Eligibility. Def.'s MSJ, Ex. 1 at 51:10-23. As specified in the job posting, applicants for the position were evaluated along two tracks-“Merit Promotion” and “Delegated Examining”-each with its own set of hiring criteria. See Def.'s MSJ, Ex. 21. Smith submitted her application only through the latter, “Delegated Examining” track, under which military veterans are given preference. Def.'s MSJ, Ex. 11 at ¶ 20. Because Smith did not identify herself as a veteran in her application, Human Resources did not include her on the certified list of eligible “Delegated Examining” candidates. Id. at ¶ 30. Smith was not listed among eligible “Merit Promotion” candidates, either, because she did not submit her application under that category. Id. at ¶ 31. In contrast, the candidate selected for the position-Ms. Van Tran-applied under both application tracks, and was ultimately chosen from a list of “Merit Promotion” qualified individuals. Id. at ¶ 32.

         Smith also challenges her non-selection for a Business Opportunity Specialist position in the SBA's Los Angeles District Office. Even though the position had been previously classified as GS-13, a December 2014 vacancy announcement elevated the post to GS-14. See Def.'s MSJ, Ex. 74 at 17:17-20, 23:13-19.[3] Smith applied for that position. Id. at 16:9-15. However, soon after the vacancy announcement was published, the Office of Field Operations in the SBA's headquarters cancelled the position, indicating that it would not be hiring any business opportunity specialists at the GS-14 level. See id. at 36:20-22, 37:18-38:16. The position was eventually re-advertised, but at the GS-13 level, and Smith opted not to apply for it. See Def.'s MSJ, Ex. 1 at 167:10-12.

         C. Smith's EEO Activity and the SBA's Alleged Retaliation

         On August 29, 2013-after the completion of the desk audit, and during the SBA's protracted attempts to create a GS-14 position for her-Smith contacted the agency's EEO Office, complaining of race- and sex-based discrimination. Compl. ¶ 39. The Office interviewed her about a week later, id. at ¶ 40, and Smith participated in an unsuccessful mediation on December 20, 2013, see Pl.'s Opp'n, Ex. 4 at 15, 18. Smith subsequently submitted a formal EEO complaint-dated December 30, and received January 2, 2014. Def.'s MSJ, Ex. 68 (Formal EEO Complaint); Ex. 69 (Acknowledgment of Receipt). Smith argues that, beginning with her first EEO contact in August 2013 and after, the SBA engaged in a series of acts aimed at retaliating against her for engaging in that protected activity.

         1. Office Space

         As discussed above, during the period relevant here, Smith was based in the SBA's Charlotte District Office. Until 2013, although Smith was permitted to telework nine of every ten days, see Def.'s MSJ, Ex. 54, she was assigned a cubicle in the “Answer Desk” section of the office, which functioned as a national call center. Def.'s MSJ, Ex. 1 at 190:2-5. In fall 2013, Smith had a conversation with Lynn Douthett, the North Carolina District Director, about an upcoming renovation of the office. According to Smith, Douthett offered to assign her a private office, and “even showed [her] two potential” office locations. Def.'s MSJ, Ex. 1 at 186:5-13. Douthett recalls, instead, that she only offered to “see what [she] could do” about obtaining office space for Smith, and further clarified that “there were no guarantees, ” since the office would be “downsizing from 11, 000 square feet to around 5, 000.” Def.'s MSJ, Ex. 44 at 50:12- 15.

         Regardless, the renovations took place from January to April 2014, and during that time, there was considerable confusion-involving roughly a half-dozen upper-level managers- regarding where Smith's desk would ultimately be located. See Def.'s Statement of Facts (“SOF”) at ¶¶ 209-27. In the end, due to the significant reduction in the office's size, Smith was assigned a cubicle in the same “Answer Desk” section where she had previously been located, though-like all other cubicles in the office-it was smaller after the renovation. See Def.'s MSJ, Ex. 1 at 196:22-24; Ex. 17 at 108:6-8. Only one employee in the “Answer Desk” area had a stand-alone office after the renovation: She had occupied a private office before the renovation and, unlike Smith, was a supervisor. Id. at 109:14-22, 123:7-18.

         2. Training Requests

         Smith submitted three requests for training that were denied-at least initially- following her contact with the EEO office.[4] First, in fall 2013, Smith sought to attend two project management training sessions in Washington, D.C. Watkins initially denied that request due to lack of funding, and also initially advised Smith that she could not travel to D.C. on her own dime, since that would require reimbursement from the SBA. See Def.'s MSJ, Ex. 78. However, after Smith spoke to agency counsel and explained that she had an independent reason for traveling to D.C., she was permitted to attend the training. See id.; Def.'s MSJ, Ex. 75 at 6- 7. Smith also complains that Watkins was nonresponsive to two 2014 training requests-one submitted in January for a free online seminar, and one submitted in April for a project manager re-certification course. Id. at 7-8. A different manager ultimately approved both of those trainings, however. Id.

         3. Reasonable-Accommodation Request

         In May 2014, Smith submitted a reasonable-accommodation request to the SBA's EEO Office, seeking a 100-percent telework schedule (an increase from her 90-percent telework arrangement) and a transfer to another SBA department. See Def.'s MSJ, Ex. 55. After some back and forth, including a request for additional medical documentation, the SBA granted Smith's telework request in October 2014. See Def.'s MSJ, Ex. 58. However, in July 2014, Tran-Smith's supervisor at the time-denied her request for a transfer, citing agency policy that a reassignment is a reasonable accommodation of “last resort, ” to be used only “when an employee is unable to perform the essential functions of [her] position.” Def.'s MSJ, Ex. 56. In September 2014, Tran's decision was reviewed and affirmed by the SBA's Reasonable Accommodation Review Committee. Def.'s MSJ, Ex. 57. Finally, in January 2015, the Federal Occupational Health Service also weighed in: After a thorough review of Smith's medical documentation, it agreed that Smith had not justified a reasonable-accommodation request, because she had not shown an inability to perform essential functions of her position. Def.'s MSJ, Ex. 61. The Chair of the SBA's Reasonable Accommodation Review Committee communicated those results to Smith in a February letter, explaining that “[t]he provided documentation [did] not establish that [she was] suffering from a substantial impairment, only that she believe[d] she [was] being treated unfairly by her managers.” Def.'s MSJ, Ex. 62. Accordingly, the agency denied the transfer request. Id.

         4. Train-the-Trainer Events

         The SBA operates “Train-the-Trainer” sessions, where SBA employees visit district offices throughout the country and train participants, who in turn train other employees within their local office. See Pl.'s Opp'n, Ex. 19 at 35:17-38:8. Smith had been a trainer at these events, and in June 2014, she was slated to participate again, albeit via webinar. See Def.'s MSJ, Ex. 81.[5] However, soon before the event, Smith was notified via email that there would be no call-in at the event, and that she would no longer be presenting. Def.'s MSJ, Ex. 82. It is unclear whether the email sender-another SBA employee-or Watkins made the decision to cancel the call-in. See Pl.'s Opp'n, Ex. 18 at 227:9-228:25. The record also reveals alternate explanations for the decision. Watkins suggested Smith's expertise was unnecessary for the training. Pl.'s Opp'n, Ex. 25 at 8:9-21. Tran was under the impression that Smith did not participate “due to [the] lack of proper technology.” Def.'s MSJ, Ex. 83 at ¶ 5.

         D. Procedural History

         Smith filed a complaint in this Court in April 2015, alleging that the SBA had engaged in discrimination based on her sex and race, and had retaliated against her for seeking redress from the EEO. A period of discovery followed, and the SBA now moves for summary judgment, contending that there can be no genuine dispute that, in acting as it did, the agency was motivated by legitimate, nondiscriminatory considerations. For instance, it maintains that Smith's supervisors did what they could to promote her after the desk audit, but that their efforts were frustrated by mix-ups at Human Resources, followed by a budget crisis. See Def.'s MSJ 15-21. Likewise, the agency explains that the actions Smith views as “retaliatory” were, in some cases, not materially adverse, and in others, not demonstrably linked in any way to Smith's EEO activity. Id. at 32-44. Smith opposes the agency's motion. She argues that the processing mishaps and budget-related hiring issues constitute an “amazing” and “incredible” constellation of circumstances, less plausible than her own account-i.e., that she was repeatedly denied promotions because she was a woman and African-American. Pl.'s Opp'n 3-4, 11-28. And Smith urges the Court to view the retaliatory acts she alleges in their “entirety”; under that analysis, she argues, they are cognizably adverse. Id. at 4, 34-44.

         The Court ultimately agrees with the SBA: Although the agency's personnel process was hardly a model of transparency or efficiency, there is insufficient direct or circumstantial evidence in this record permitting a reasonable juror to infer that Scott was denied promotions due to her sex or race. Furthermore, the retaliatory acts Smith alleges are not similar enough to be grouped together, nor is there sufficient evidence that those acts were motivated by a retaliatory purpose.

         II. Legal Standards

         A 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). A material fact is one that could affect a suit's outcome under the relevant law, and a genuine dispute is one that a reasonable juror could resolve in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[A] party seeking summary judgment . . . bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). But “after adequate time for discovery and upon motion, ” a court must enter summary ...

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