United States District Court, District of Columbia
S. CHUTKAN, United States District Judge.
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.
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.).
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 STANDARD
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).
Race and Age Discrimination Claims
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.
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.
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.
2008 Performance Rating
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)).
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