United States District Court, District of Columbia
ANNETTE L. CHANDLER, Plaintiff,
MARTIN J. GRUENBERG, Chairman, FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.
MEMORANDUM OPINION (July 19, 2017) [# 9]
RICHARD J. LEON United States District Judge
L. Chandler ("Chandler" or "plaintiff),
proceeding pro se, brings this action alleging that
defendant, Martin J. Gruenberg ("Gruenberg" or
"defendant"), in his capacity as Chairman of the
Federal Deposit Insurance Corporation ("FDIC" or
"the Agency"), retaliated against her for her
protected civil rights activity, in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e ("Title VII"). This matter is now before the
Court on defendant's Motion to Dismiss [Dkt. # 9]. Upon
consideration of the parties' submissions,
defendant's motion is GRANTED and plaintiffs case will be
DISMISSED with prejudice.
is a former employee of the FDIC, having worked there from
February 25, 1977 until her retirement on August 30, 2007.
See Compl. at ¶¶ 4, 6; Def.'s Mot. to
Dismiss ("Def.'s Mot."), Ex. A
("Investigative Report") at 3. Immediately prior to
her retirement, plaintiff was serving as Investigative
Specialist with the FDIC's Office of Inspector General.
See Compl. at ¶ 6. Federick Gibson
("Gibson"), Acting Inspector General, was
Chandler's second-level supervisor while she was employed
with the FDIC. Def.'s Mot., Ex. E ("Final Agency
Decision") at 3. During her time as an FDIC employee,
plaintiff filed ten Equal Employment Opportunity
("EEO") administrative complaints and two civil
actions against the Agency. See Def.'s Mot., Ex.
B ("Pl.'s Aff")at 3.
2009, after Chandler's retirement from the FDIC, Mir,
Mitchel & Company ("MMC") contacted plaintiff
and suggested that she apply for a position with the company.
MMC is a Receivership Assistance Contractor ("RAC"
or "contractor") who works with the FDIC to
"provide services during bank closings, including
post[-]closing activity." See Final Agency
Decision at 2-3; Compl. at ¶ 9. Plaintiff applied for
the position, and MMC hired her. Compl. at ¶ 9. From
2009 through 2013, however, plaintiff never received a work
assignment from MMC, despite her repeated calls and emails
seeking work. Compl. at ¶ 9; Investigative Report at 6.
When plaintiff inquired about this, MMC allegedly told her
that "there was no work to which she could be
assigned." Compl. at ¶ 9.
February of 2015, another FDIC contractor, the SolomonEdwards
Group ("SEG"), contacted plaintiff and offered her
a position on its contract as an RAC for the FDIC.
Id. at ¶ 10. In this role, plaintiff would be
tasked with working on the investigative team in bank
closings. Id. Plaintiff accepted the position and
was immediately assigned as an Investigative Technician for
an FDIC contract to work on the closing of the Doral Bank in
San Juan, Puerto Rico. Id. at ¶¶ 10-11.
She travelled to Puerto Rico and began working with the SEG
team on February 27, 2015. Id. at ¶11.
Plaintiff alleges that, on March 23, 2015, her supervisor,
Doug Thorpe ("Thorpe") approached her and told her
that he had been ordered to terminate her employment.
Id. at ¶ 12. She claims that he told her the
order had not come from SEG management, but rather from the
FDIC. Id. Although plaintiff continued to inquire
about additional work assignments with SEG, she was never
assigned another project. Id. at ¶ 13.
support of her retaliation claim, plaintiff alleges that the
FDIC "was and had been poisoning her prospects of
working on its contracts in retaliation for her successful
litigation of prior EEO complaints from when she was an
employee of FDIC." Id. at ¶ 14. Plaintiff
timely initiated the EEO process at the FDIC on May 1, 2015
by seeking counseling for her claims. Id; Def.'s
Mot., Ex. D ("EEO Counselor's Report") at 1.
Because plaintiffs attempts to resolve the matter informally
were unsuccessful, she filed a formal Discrimination
Complaint on July 30, 2015. Def.'s Mot., Ex. C
("Acceptance of Formal Discrimination Complaint").
On March 23, 2016, the FDIC issued a Final Agency Decision,
which found that Chandler "was not retaliated against as
alleged in the complaint." Final Agency Decision at 6.
Plaintiff subsequently filed the present action.
defendant has filed a motion to dismiss, the parties have
presented materials outside the pleadings relied upon by the
Court. Therefore, I will treat the motion as one for summary
judgment. See Fed. R. Civ. P. 12(d); House v.
Salazar, 598 F.Supp.2d 89, 91 (D.D.C. 2009). A party is
entitled to summary judgment if the pleadings, the discovery
and disclosure materials on file, and any affidavits show
"that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter
of law." Fed.R.Civ.P. 56(a). The party seeking summary
judgment bears the initial burden of demonstrating the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). And in
deciding whether there is a disputed issue of material fact,
the Court must draw all justifiable inferences in favor of
the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255(1986).
as here, the record contains no direct evidence of
retaliation, under the McDonnell Douglas
burden-shifting framework, a plaintiff must establish a
prima facie case of retaliation in order to succeed
on a retaliation claim. See White v. Washington Nursing
Facility, 206 F.Supp.3d 137, 144 (D.D.C. 2016); see
also McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). To do so, Chandler must show: (1) that she engaged in
statutorily protected activity; (2) that the employer took a
materially adverse action such that the action could well
dissuade a reasonable employee from making or supporting a
charge of discrimination; and (3) that there existed a causal
link between the two. See Jones v. Bernanke, 557
F.3d 670, 677 (D.C. Cir. 2009). Defendant primarily argues
that Chandler has failed to establish a retaliation claim
because she has presented nothing more than a suspicion that
she was retaliated against, which is insufficient to survive
summary judgment. See Def.'s Mot. at 12. I
agree. Specifically, it is plaintiffs failure to establish
the second prong of' her prima facie retaliation
claim-that Gruenberg took a materially adverse action against
her-that dooms her case.
support her argument that the FDIC took an adverse employment
action against her, plaintiff states that she
"believes" her failure to receive work
from MMC and SEG "resulted from FDIC's interference,
" which Chandler believes was motivated by her prior EEO
activity. See Pl.'s Aff at 4 (emphasis added).
But plaintiffs mere belief that she was retaliated against,
without more, is simply not enough. Indeed, the record is
devoid of any evidence supporting Chandler's allegation
that the FDIC's retaliatory interference prevented her
from receiving work from its contractors. Instead, the record
affirmatively supports defendant's assertion
that the FDIC had absolutely no involvement in Chandler's
failure to receive work from MMC and SEG. See, e.g.,
Def.'s Reply to Pl.'s Opp. to Def.'s Mot. to
Dismiss ("Def.'s Reply"), Ex. 1, Affidavit of
Tad. J. Taber ("Taber Aff") at 8 ("The
decision regarding whether to hire or deploy an individual is
made solely by the RAC, " not the FDIC);
Def.'s Mot., Ex. L, Affidavit of James McConnell
("McConnell Aff") at 4 ("There is no way FDIC
could have interfered with [plaintiffs] employment because
[the FDIC] do[es] not get to request or choose anyone [on
their contracts]."). The record is clear that the FDIC
has no involvement in deciding who its contractors hire and
fire, and Chandler has offered no evidence to suggest that
the FDIC had any such involvement in her case.
evidence of retaliation, Chandler proffers the fact that
"the badge or (contractor) ID number (C-07816) issued to
[her] by [SEG] was the same as that issued by [MMC], "
and thus she concludes that the FDIC knew her ID number and
retaliated against her through both employers. See
Pl.'s Opp. to Def.'s Mot. to Dismiss ("Pl.'s
Opp.")at4. The record, however, clearly disproves
Chandler's suspicion. Tad J. Taber,, a Resolution and
Receivership Specialist with the FDIC, stated in his
affidavit that "[e]ach individual contractor is issued a
contractor id number . . . [which] does not change. Once an
individual receives a contractor number, he or she will
retain that number regardless of the Receivership Assistance
Contractor with whom he or she works. The name and contractor
number . . . will follow that individual from contract to
contract." See Taber Aff. at 1. It was
therefore standard practice for Chandler to retain the same
contractor number at both SEG and MMC, and Chandler's
speculation of retaliation based on her contractor ID number
falls far short of establishing a prima facie case.
See Brown v. Broadcasting Bd. of Governors, 662
F.Supp.2d 41, 49 (D.D.C. 2009) ("[Plaintiff] rests on
nothing but unreasonable inferences, speculation and
unsubstantiated allegations. None of these creates a genuine
issue of material fact.").
most fatal to Chandler's claim that the FDIC
"interfered" with her employment is the fact that
she was never actually employed by either MMC or
SEG. Indeed, as Connie Dryden, Assistant Director for
Investigations for the FDIC, stated, the fact that plaintiff
received a contractor number "just means that she could
be activated at any point, but it was not a given that she
would be given work." Def.'s Mot., Ex. I, Affidavit
of Connie Dryden ("Dryden Aff.") at 3. And
MMC's Senior Human Resources manager, Linda Day,
similarly indicated that Chandler "was never employed
with [MMC]." Def.'s Mot., Ex. F ("Linda Day
Email"). As to SEG, Chandler's offer of engagement
from SEG stated that the estimated duration of her engagement
was "2-4 weeks; contingent upon client needs."
Def.'s Mot., Ex. G ("Engagement Letter") at 1.
Crucially, the engagement letter made clear that it did