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Webster v. U.S. Department of Energy

United States District Court, District of Columbia

August 25, 2017

U.S. DEPARTMENT OF ENERGY, et al., Defendants.


          Royce C. Lamberth United States District Judge.


         Plaintiff Avery Renee Webster brings claims against her former employer, the United States Department of Energy ("DOE") for race discrimination in violation of Title VII of the Civil Rights Act of 1964 (Count One), gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (Count Two), pregnancy related discrimination in violation of the Americans with Disabilities Act ("ADA") (Count Three), retaliation for filing complaints and engaging in other activity with the Equal Employment Opportunity Commission ("EEOC") (Count Four), and retaliation for whistleblower activity (Count Five). Although not in named counts, Plaintiff also brings claims for hostile work environment under Title VII and the Rehabilitation Act.

         Defendant now moves to dismiss plaintiffs complaint, or, in the alternative, for summary judgment [ECF No. 18]. For the reasons stated below, the Court will grant in part and deny in part defendant's motion.


         Plaintiff, who is an African American female, was employed by DOE as an attorney-examiner in the Office of Hearings and Appeals ("OHA") from August 2007 through April 2012. Plaintiff s supervisors were Ms. Ann S. Augustyn, Ms. Janet N. Freimuth, Mr. Fred L. Brown, and Mr. Poli A. Marmolejos.

         Plaintiff s complaint is based on several specific events that occurred throughout the course of her employment, some of which occurred during her high risk pregnancy from October 2010 through July 2011. They are as follows: 1) she was denied regular flexi-place in February 2011; 2) she was denied medical flexi-place in February 2011; 3) she was denied the reasonable accommodation of a chair for her pregnancy in January and February 2011; 4) she was denied a promotion in May 2011; 5) she was issued a fourteen day suspension on October 3, 2011; 6) she received a performance rating of "needs improvement" on November 3, 2011; 7) she was given a counseling memorandum on November 3, 2011; 8) she was placed on a Performance Improvement Plan ("PIP") on February 24, 2012; 9) DOE management refused to return her personal banking information to her; 10) DOE officials "loaded [her] Personal Security Investigative File and OPM File with defamatory and inappropriate statements" thereby affecting her ability to get a security clearance; and 11) she was terminated from her position at DOE and removed from federal service employment on April 16, 2012.

         During the course of the above described incidents, plaintiff initiated administrative proceedings. On June 6, 2011[1] she initiated contact with an EEO counselor and on January 18, 2012, filed a formal EEO complaint with the Agency's Office of Civil Rights ("OCR"), alleging violations of Title VII and the ADA. On February 6, 2012, she formally realleged that she had been subjected to a hostile work environment. On May 24, 2012, after she was removed from federal service, plaintiff added her removal as an additional issue in her EEO complaint. The allegations described above formed the basis of plaintiff s complaint.

         On January 11, 2013, the OCR issued its Final Agency Decision, finding that the defendant had offered legitimate, nondiscriminatory reasons for the actions taken and that plaintiff failed to demonstrate pretext. On January 28, 2013, plaintiff filed a mixed-case appeal to the Merit Systems Protection Board ("MSPB"). Administrative Judge Ben-Ami considered plaintiffs removal and any affirmative defenses, but declined to consider the merits of the nine other issues raised in her complaint regarding actions taken prior to her removal. This decision was confirmed by MSPB Administrative Judge Clement on November 27, 2013. On September 12, 2014 Judge Clement issued her initial decision affirming DOE's decision to remove plaintiff from federal service. On October 16, 2014, plaintiff filed a petition to review the initial decision, and on July 6, 2015 received MSPB's final order affirming the initial decision.


         A. Standards of Review

         1. Lack of Subject Matter Jurisdiction

         Courts must dismiss claims under Federal Rule of Civil Procedure 12(b)(1) when they lack subject matter jurisdiction over the claims. Courts may dismiss for lack of subject matter jurisdiction based on the complaint alone (a facial challenge), or "where necessary, . . . consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts" (a factual challenge). Herbert v. Nat'l Acad. o/Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

         2. Failure to State a Claim

         Under Rule 12(b)(6), courts may dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. Proc. 12(b)(6). To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550U.S. at555. Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citations omitted). When considering a motion to dismiss under Rule 12(b)(6), "the court must assume 'all the allegations in the complaint are true (even if doubtful in fact), ' and the court must give the plaintiff 'the benefit of all reasonable inferences derived from the facts alleged.'" Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal citations omitted).

         3. Summary Judgment

         Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Courts must "view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor." Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 629 (D.C. Cir. 2010) (internal quotation marks omitted). To show that a dispute is "genuine" and defeat summary judgment, the nonmoving party must present evidence "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. (internal citations omitted). Furthermore, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).

         Summary judgment is also appropriate when, "after adequate time for discovery, " the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         B. Substantive Legal Standards

         Plaintiff brings claims under Title VII, the Americans with Disabilities Act, the Whistleblower Protection Act, and for hostile work environment.

         1.Title VII

         a) Race and Sex Discrimination

         Federal employment discrimination is prohibited by Title VII of the Civil Rights Act of 1964, under which it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).

         Title VII claims that rely on circumstantial evidence-as opposed to direct evidence of discrimination-are analyzed under the burden-shifting framework found in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the employee "must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." Id. at 802. In cases concerning race or sex discrimination-disparate treatment based on race or sex, a prima facie case consists a showing that "(1) [the plaintiff] is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006) (internal quotation marks omitted).

         A plaintiffs "burden of establishing a prima facie case of disparate treatment is not onerous, " TexasDep 't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981), and the requirement of establishing a prima facie case "is 'not intended to be an inflexible rule.'" Young v. United Parcel Serv., Inc., 135 S.Ct. 1338, 1353 (2015). Thus, "an individual plaintiff may establish a prima facie case by 'showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under' Title VII." Id.

         If the employee establishes a prima facie case of discrimination, the burden "must shift to the employer to articulate some legitimate, nondiscriminatory reason for the" adverse action. McDonnell Douglas, 411 U.S. at 802. The employer "must clearly set forth, through the introduction of admissible evidence, the reasons for the [the action]" so as to "raise[] a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine, 450 U.S. at 254-55. The employer, however, "need not persuade the court that it was actually motivated by the proffered reasons." Id. at 254.

         If the employer succeeds in offering legitimate, nondiscriminatory reasons for the action, the "plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. at 252. The plaintiff may demonstrate pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 255. Either way, the plaintiff must show "both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Evidence of pretext may include "the employer's better treatment of similarly situated employees outside the plaintiffs protected group, its inconsistent or dishonest explanations, its deviation from established procedures or criteria, or the employer's pattern of poor treatment of other employees in the same protected group as the plaintiff, or other relevant evidence that a jury could reasonably conclude evinces an illicit motive." Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015).

         i. Pregnancy Discrimination

         Title VII specifically precludes discrimination on the basis of "pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000(k). It mandates that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k). Plaintiffs may bring disparate treatment claims under the Section 2000e(k). See Young, 135 S.Ct. at 1345. To establish a prima facie case of pregnancy discrimination based on the denial of an accommodation-i.e., that the denial constituted disparate treatment, a plaintiff must show "that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others 'similar in their ability or inability to work.'" Id. at 1354. Then, again, the burden shifts to the employer to show '"legitimate, nondiscriminatory' reasons for denying her accommodation, " which "cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ('similar in their ability or inability to work') whom the employer accommodates." Id. If the employer succeeds, the burden shifts back to the plaintiff to demonstrate pretext. Id. For example, the plaintiff may "provid[e] sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's 'legitimate, nondiscriminatory' reasons are not sufficiently strong to justify the burden, but rather-when considered along with the burden imposed-give rise to an inference of intentional discrimination." Id.

         b) Retaliation

         Title VII also prohibits retaliation for "an employee's having opposed, complained of, or sought remedies for, unlawful workplace discrimination." Univ. of Texas Sw. Med. Ctr. v. Nassar,133 S.Ct. 2517, 2522 (2013) (citing 42 U.S.C. §2000e-3(a)). Retaliation claims are subject to the same McDonnell Douglas burden shifting as discrimination claims. Walker, 798 F.3d at 1091. To establish a prima facie case of retaliation, "the plaintiff must allege that she engaged in activity protected by Title VII, the employer took adverse action against her, and the employer took that action because of the employee's protected conduct." Id. at 1091-92. With respect to the third element-causation-"Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test [for discrimination claims-that 'that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.' 42 U.S.C.A. § 2000e-2(m)]." Nassar, 133 S.Ct. at 2533. Thus, "it is not sufficient for [the] plaintiff to demonstrate that a reasonable jury could find that retaliatory animus . . . was a cause ...

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