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Mcmanus v. Kelly

United States District Court, District of Columbia

March 31, 2017

JOHN F. KELLY, Secretary of Homeland Security, and ROBERT J. FENTON, JR., Acting Administrator, Federal Emergency Management Agency, [1] Defendants.


          RANDOLPH D. MOSS United States District Judge.

         Plaintiff Sheree McManus, a black woman who was fifty-eight years old when she filed this case, has worked for Defendant Federal Emergency Management Agency (“FEMA”) for more than a decade. Her frustrations with her employer began when FEMA did not select her to replace her outgoing supervisor, as that supervisor had recommended. Undeterred, she applied for multiple supervisory positions in 2008 and 2009, but was passed over for each one. She ultimately sought recourse through FEMA's Equal Employment Opportunity (“EEO”) office, alleging that she did not receive the promotions because of her race or age. As that process unfolded, she applied for ten more promotions in 2010, but again watched as FEMA chose other, allegedly less-qualified candidates. She then amended her EEO complaint to allege that these additional non-selections were both discriminatory and the product of unlawful retaliation for her original EEO complaint.

         After the EEO office denied her relief, McManus brought the present suit in 2014. Dkt. 1. McManus alleges that her non-selection for the ten positions for which she applied in 2010 was the result of unlawful race and age discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a, and in retaliation for her protected EEO activity. She also alleges that FEMA retaliated against her by moving her to a less desirable office and by giving her a “proficient” performance evaluation in 2012. See Dkt. 1 at 10-11 (Compl. ¶¶ 85-87).

         Before the Court is FEMA's motion to dismiss and for summary judgment. See Dkt. 11. FEMA asserts that it is entitled to summary judgment as to any claims that McManus withdrew-and, accordingly, did not exhaust-in the course of the EEO administrative process. In addition, FEMA argues that McManus's complaint does not plausibly allege that she was not selected for promotion because of a protected characteristic or in retaliation for her earlier EEO activity. Finally, FEMA contends that McManus's alleged office relocation and deflated performance appraisal do not constitute adverse employment actions and, as such, do not give rise to claims for retaliation under Title VII or the ADEA.

         For the reasons explained below, the Court will grant in part and deny in part FEMA's motion to dismiss and for summary judgment.

         I. BACKGROUND

         For purposes of the present motion, the Court construes the pleadings and evidence in the light most favorable to McManus, who is the nonmoving party. See Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).

         McManus began working for FEMA as a “Grants Management Specialist” in 2003, Dkt. 1 at 2-3 (Compl. ¶¶ 8-9), bringing twelve years of federal government experience with her to the job, including ten in grant management positions, id. at 3 (Compl ¶¶ 10, 13). McManus's supervisor transferred to a new position in 2007 and recommended that McManus “act in her place” as the “Supervisory Grants Management Specialist.” Id. (Compl. ¶¶ 14-16). McManus assumed the role for ten months during 2007-2008 and received a “superior” performance evaluation for her work in that capacity. Id. (Compl. ¶¶ 17-18). Following that interim period, her former supervisor recommended that FEMA promote McManus as her permanent successor, and McManus applied for that position. Id. (Compl. ¶¶ 19-20).

         FEMA filled the open supervisory position in September 2008 with two people-neither of them McManus. Id. at 3-4 (Compl. ¶¶ 21-23). One of the new supervisors was white, and both allegedly lacked policy experience. Id. at 4 (Compl. ¶¶ 25-26). Although FEMA's Deputy Administrator attested that she believed the two newly hired supervisors were more qualified than McManus-who, she believed, lacked sufficient policy experience-McManus's former supervisor disagreed, asserting that McManus “had exceptional policy experience.” Id. (Compl. ¶¶ 27-29).

         Over the next two years, McManus repeatedly sought “promotion opportunities, ” “appl[ying] for seven different [positions] ¶ 2008 [and] 2009.” Id. (Compl. ¶ 32). On each occasion, she made the “best qualified list” and was interviewed for all seven positions, but she was not selected for any of the positions. Id. at 4-5 (Compl. ¶¶ 32-34, 36). On November 12, 2009, McManus contacted an EEO counselor about these non-selections, id. at 5 (Compl. ¶ 37); Dkt. 11-6 at 5, and she filed a formal complaint on February 8, 2010, which was partially accepted on April 22, 2010, Dkt. 11-2 at 1-3. In May 2010, McManus applied for another ten vacancies, Dkt. 1 at 5 (Compl. ¶ 38); Dkt. 11-5 at 1, and, although she was certified as eligible for each of the ten positions, she was not interviewed or selected for any of them, Dkt. 1 at 5 (Compl. ¶¶ 39-41). McManus asserts that all ten open positions required experience with both policy and grant management, and she alleges “that none of the selectees” “possessed as much policy experience” or “broad grants management experience” as she possessed. Id. (Compl. ¶¶ 42-45). McManus amended her EEO complaint in September 2010 to include claims that her failure to secure one of the ten open positions in 2010 was the product of race and age discrimination, as well as unlawful retaliation for her earlier EEO activity.[2] Id. at 7 (Compl. ¶ 62); Dkt. 11-6 at 4, 7; Dkt. 11-5 at 1-2.

         Beyond FEMA's refusal to promote her, McManus also alleges that the agency took other actions in retaliation for her EEO activity. She asserts that an employee selected for one of the 2010 vacancies gave her a performance appraisal of “proficient” in September 2012, even though she had never before received a rating below “superior.” Dkt. 1 at 7 (Compl. ¶¶ 63-66). According to McManus, this employee did not possess “sufficient knowledge” or familiarity with her performance to render such an evaluation. Id. at 8 (Compl. ¶¶ 67-68). McManus also alleges that FEMA retaliated against her by forcing her to vacate her “private office on the fourth-floor, ” which she alleges was then given to “a contract employee.” Id. (Compl. ¶ 70). Although the complaint does not specify the location of McManus's new workspace, she asserts in her opposition brief that she was assigned “to a cubicle.” Dkt. 14 at 12.

         In August 2014, an administrative law judge declined to sustain McManus's EEO claims, Dkt. 11-6, and she filed the present action several months later, alleging race and age discrimination and that she was denied the ten positions for which she applied in 2010, was moved from her office, and was given a less favorable performance review, all because of her protected EEO activity. Dkt. 1. FEMA initially moved to dismiss McManus's complaint, but at oral argument in April 2016, FEMA agreed that summary judgment-as opposed to a motion to dismiss-was the “most appropriate vehicle” to raise its exhaustion claims, Dkt. 15 at 8, and it thus withdrew its pending motion to dismiss, id. at 27. In addition, counsel for McManus disclaimed that the complaint sought relief with respect to the seven non-selections in 2008- 2009, [3] id. at 14, 22, and, with the consent of FEMA, McManus's counsel agreed to submit an amended complaint to address various pleading deficiencies noted by the Court at oral argument, [4] id. at 27. After McManus failed to file an amended complaint by the agreed date, the Court ordered FEMA to “respond to [her] original complaint, ” Minute Order, June 3, 2016, and FEMA did so by filing the pending motion to dismiss and for summary judgment, Dkt. 11.


         A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) is designed to “test[] the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating such a motion, the Court “must first ‘tak[e] note of the elements a plaintiff must plead to state [the] claim' to relief, and then determine whether the plaintiff has pleaded those elements with adequate factual support to ‘state a claim to relief that is plausible on its face.'” Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 678 (2009)) (alterations in original) (internal citation omitted). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to ‘state a claim to relief that is plausible on its face, '” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and unlikely, ” but the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56 (quotation marks omitted).

         The moving party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if it can “show[] that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When, as here, the plaintiff bears the ultimate burden of proof, but the defendant has moved for summary judgment, the defendant “bears the initial responsibility” of “identifying those portions” of the record that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, (1986). If the moving party carries that initial burden, the burden then shifts to the nonmoving party to show that sufficient evidence exists for a reasonable jury to find in the nonmoving party's favor with respect to the “element[s] essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. at 322. The nonmoving party's opposition, accordingly, must consist of more than unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324.


         FEMA's motion raises three arguments. First, FEMA asserts that it is entitled to partial summary judgment because, with respect to seven of the ten positions she sought in 2010, McManus withdrew her discrimination claims in full or in part over the course of the EEO process and, accordingly, failed to exhaust her administrative remedies. Dkt. 11 at 10-11. Next, as to the discrimination claims that it acknowledges McManus properly exhausted, FEMA argues that the complaint fails to allege any “factual matter” that would support a plausible inference that she was not selected for promotion in 2010 because of her age or race. Id. at 12- 14. Finally, FEMA contends that McManus's retaliation claims fail as a matter of law because she has not alleged “a causal link” between her EEO activity and her non-selections, id. at 14- 17, and because the alleged office move and “proficient” performance appraisal do not constitute “adverse employment action, ” id. 17-18. The Court will consider each argument in turn.

         A. Non-Exhausted Claims

         FEMA argues that McManus failed to exhaust administrative remedies with respect to several of her discrimination claims. Specifically, FEMA contends that, during the EEO process, McManus affirmatively withdrew her claims that she was not selected for seven of the ten 2010 positions because of her race and her ...

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