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Kilby-Robb v. Devos

United States District Court, District of Columbia

March 30, 2017

ELISABETH DEVOS, Secretary, U.S. Department of Education, Defendant.


          TANYA S. CHUTKAN, United States District Judge.

         Plaintiff Patricia Kilby-Robb brings this suit under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a(a). (Compl. ¶¶ 18-35). Defendant Secretary of the U.S. Department of Education (the “Department”) now moves for summary judgment. (ECF No. 14). For the reasons set forth below, the court GRANTS Defendant's motion for summary judgment.

         I. BACKGROUND

         Plaintiff Patricia Kilby-Robb is an African American female who was over sixty years old at the time of the alleged events in this case. (Compl. ¶ 4). Before starting at the Department, she worked as a school principal, assistant principal, and community education director. (Kilby-Robb Decl. ¶ 3 (Pl. Ex. A)). Since 2000, Plaintiff has been employed by the Department in various offices as an Education Program Specialist at the GS-13, Step 10 pay level. (Id. ¶ 2). At the time of the alleged events of this case, Plaintiff worked in the Department's Office of Innovation and Improvement (“OII”), primarily in the Parental Options and Information office with the Parental Information and Resource Center (“PIRC”) program. (Id.). Beginning in 2009, Plaintiff transferred to the Charter Schools Program (“CSP”) within OII. (Id.). During her employment with the Department before the events in this case, Plaintiff had filed approximately four complaints of discrimination against the Department. (Id. ¶ 4). Of these complaints, Plaintiff alleges that one case was closed in September 2005, the second was closed in April 2010, and the remaining cases were pending before an EEOC administrative judge at the times of the relevant events in this matter. (Id.).

         Plaintiff alleges that Defendant discriminated and retaliated against her in several discrete incidents between 2008 and 2010. These include a 2008 performance rating of “successful, ” a 2009 desk audit determination that Plaintiff should remain at the GS-13 level, an office meeting in February 2009, the removal of some of her job duties in early 2009, and five job application denials in 2009 and 2010. Plaintiff filed the present suit in December 2014, alleging violations of Title VII and the ADEA for discrimination on the basis of race and age.


         Summary judgment is appropriate where there is no disputed genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The movant must rely on record materials to demonstrate the absence of any genuinely disputed issues of material fact. Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 332. A fact is material if “a dispute over it might affect the outcome of a suit, ” and an issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)) (internal quotation marks omitted). The non-movant is “required to provide evidence that would permit a reasonable jury to find” in her favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (citations omitted). Generally, a plaintiff must provide more than her conclusory statements to oppose a motion for summary judgment, as “[c]onclusory allegations made in affidavits opposing a motion for summary judgment are insufficient to create a genuine issue of material fact.” Sage v. Broad. Publ'ns, Inc., 997 F.Supp. 49, 53 (D.D.C. 1998).


         A. Race and Age Discrimination Claims

         1. Legal Framework

         Title VII bars a federal agency from discriminating against any employee based on her race. 42 U.S.C. § 2000e-16(a). The ADEA similarly protects federal employees over forty years old from discrimination based on their age. 29 U.S.C. § 633a(a). The court analyzes both Title VII and ADEA claims under the well-established burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Barnette v. Chertoff, 453 F.3d 513, 515 (D.C. Cir. 2006); Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003). Under this framework, the plaintiff has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie showing, the plaintiff must demonstrate that she (1) is a member of a protected class and (2) suffered an adverse employment action, and (3) that the action gives rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802.

         In the discrimination context, an adverse employment action is “‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.'” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)). The D.C. Circuit has articulated that while “‘purely subjective injuries, ' such as dissatisfaction with a reassignment, public humiliation, or loss of reputation, are not adverse actions, the threshold is met when an employee ‘experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.'” Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (quoting Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002)). Moreover, the Supreme Court has stated that “[a] tangible employment action in most cases [is one that] inflicts direct economic harm.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998). Furthermore, under the third element of the prima facie showing, an adverse employment action normally gives rise to an inference of discrimination only “if otherwise unexplained, [it was] more likely than not based on the consideration of impermissible factors.” Burdine, 450 U.S. at 254.

         While the plaintiff maintains the burden of persuasion at all times, id. at 253, the burden of proof then “shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the [action in question], '” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting Burdine, 450 U.S. at 253). In asserting a legitimate, non-discriminatory justification for the challenged actions, the defendant “need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Burdine, 450 U.S. at 254 (citation omitted). Ordinarily, the burden then shifts back to the plaintiff to demonstrate that the asserted reason is a pretext for discrimination. Id. at 253. However, where the defendant provides a legitimate, non- discriminatory explanation for its actions at the summary judgment stage, “the district court need not-and should not-decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Instead, the court's focus is whether the plaintiff produced “sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the [plaintiff] on [a prohibited basis].” Id.; see also Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009).

         2. Individual Incidents

         a. 2008 Performance Rating

         Plaintiff alleges that the Department discriminated against her when she received a lower performance rating. (Compl. ¶¶ 22, 28, 34). During the 2008 performance rating period, which covered October 2007 through September 2008, Plaintiff's job performance was rated by her first-line supervisor, Steven Brockhouse, a white male, and the rating was affirmed by her second-line supervisor, Margo Anderson, a white female. (Def. Ex. 7 (2008 Performance Rating); Def Ex. 74, ¶ 9 (Decl. of Margo Anderson)). Brockhouse rated Plaintiff as successful, highly successful, or outstanding in a number of categories, and Plaintiff's overall rating of record was “satisfactory.” (Id.; see also Def. Ex. 8 at 26 (defining ratings)).

         According to Plaintiff's performance report, provided by Defendant, Plaintiff was rated as satisfactory because she was “inconsistent in providing reports regarding program status, ” she took “almost no initiative to provide reports and updates unless they [were] specifically requested, ” she did not “regularly or effectively provide written communication to provide information that [was] needed to update and support [OII] concerning PIRC program activities, ” she “rarely contribute[d] updates about the PIRC program for weekly reports and she [did] not consistently keep senior OII staff informed of significant PIRC-related activities and developments, ” her “work products fail[ed] to meet acceptable standards, ” “the annual performance report [did] not conform to approved requirements, ” and “[a]lthough [she] had been advised ...

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