United States District Court, District of Columbia
CHRISTOPHER R. COOPER United States District Judge.
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.
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
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.
Desk Audit, Promotion Efforts, and Reassignment of
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.
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.
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.
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.
Non-Selections for Two Positions
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. 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.
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. 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.
Smith's EEO Activity and the SBA's Alleged
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
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.
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.
submitted three requests for training that were denied-at
least initially- following her contact with the EEO
office. 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.
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.
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. 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
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,
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.
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 ...