United States District Court, District of Columbia
EILEEN E. JENKINS, Plaintiff,
DISTRICT OF COLUMBIA, Defendant.
E. BOASBERG United States District Judge.
past 25 years Plaintiff Eileen Jenkins has built a career as
an architect for the District of Columbia. In 2011, her
particular office was consolidated into D.C. General
Services, Construction Division. Jenkins's lateral
transfer into that Division is the foundation for many of her
grievances today. Because she was transferred “as is,
” Plaintiff was required to apply for a new position
within General Services in order to move onto the new D.C.
pay scale. In 2014, she applied for two such jobs as a
Project Manager - one of which was grade 13 on that pay
scale, and the other of which was grade 14. Jenkins was
offered only the lower position, which she subsequently
case largely arises out of her non-selection for the grade 14
post, a decision that she alleges was the result of both race
discrimination, in violation of Title VII and the District of
Columbia Human Rights Act, and age discrimination, in
violation of the Age Discrimination in Employment Act.
Jenkins further claims that she was subjected to a hostile
workplace at the Division, also in violation of Title VII.
The District now moves for summary judgment on all counts,
claiming that no reasonable jury could find Plaintiff's
non-selection discriminatory or her work environment hostile.
This Court agrees and will grant Defendant's Motion.
the District is moving for summary judgment, the Court
describes the facts in the light most favorable to Jenkins.
See Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir.
2011). In 1992, Plaintiff was hired by the Design and
Engineering Unit of the D.C. Public Schools as an architect.
In 2008, that Unit was reorganized into the Office of Public
Education Facilities Modernization (OPEFM). See ECF
No. 20-1, Exh. B (Notification of Personnel Action). Three
years later, Jenkins's job was again restructured when
the OPEFM became part of the District of Columbia General
Services, Construction Division (DGS). Id. at 20.
For the transfers to both OPEFM and DGS, Jenkins was
transferred “as is, ” meaning that her pay plan,
title, grade, and step remained the same. See ECF
No. 23 (Opposition to MSJ) at 6. At the time of her
assignment to DGS, Jenkins was a grade 14, step 7 architect
under the Education Service System (EG) pay scale.
See Notification of Personnel Action.
order to transfer from the EG scale to that used by DGS - the
Career Service (CS) scale - Jenkins was told that she was
required to apply for an open position within the
Construction Division. Beginning in 2012, DGS posted numerous
job openings for internal candidates, including multiple
positions for grade 13 and 14 Project Managers. See
ECF No. 20-1, Exh. C (Vacancies List). Although these
vacancies were open to all employees, Jenkins did not apply
for any. Id. Instead, she seems to have directed her
energies toward contesting the terms of her lateral transfer.
For example, Jenkins sent a series of emails and letters to
D.C. Council members and to the mayor of the District, all of
which discussed her alleged “pay disparity, ” ECF
No. 23-3 (Email to Mayor Muriel Bowser) at 2, and perceived
lack of adequate compensation. See ECF No. 23-3
(Email to D.C. Council Chairman Phil Mendelson); id.
(Letter to Council Member Kenyan McDuffie). The Court notes
that, interestingly, none of these communications mentioned
race or age discrimination as a basis for her disputes with
March 2014, Jenkins finally submitted applications for two of
the available DGS positions - Project Manager CS-14, #24562,
and Project Manager CS-13, #24563 - both of which would have
transferred her to the Career Service pay scale. See
Opp. at 9. On March 26, 2014, DGS offered Plaintiff the CS-13
Project Manager position. See ECF No. 23-10
(Selection Certificate for CS-13). Even though this move
might seem to have demoted her (from a grade 14 to a grade
13), the EG and CS pay scales are different. In fact, if
accepted, this job would have increased Jenkins's salary
from $81, 642 to $86, 056, as well as making her eligible for
an additional 3% cost-of-living increase. See ECF
No. 20-1, Exh. G (Offer of CS-13 Position). Jenkins
nonetheless rejected the CS-13 offer, expressing her
discontent with DGS's decision not to select her for the
CS-14 position. See ECF No. 23-5 (Letter from
Jenkins to June Locker).
2014, Plaintiff filed a charge with the D.C. Office of Human
Rights, alleging race and age discrimination. See
Opp. at 10. DCOHR dismissed the charge and transferred the
case to the Equal Employment Opportunity Commission.
Id. The EEOC, in turn, did not sustain Jenkins's
charges and sent her a Dismissal and Notice of Rights on
September 1, 2015. Id. Although neither party has
submitted the EEOC filings or records, the District does not
argue that Jenkins failed to administratively exhaust her
claims. The Court therefore proceeds under the assumption
that this has properly occurred.
December 1, 2015, Jenkins filed suit in this Court. Her
Complaint alleges that she was treated differently by DGS
because of her race, in violation of Title VII and the D.C.
Human Rights Act, an assertion she bases largely on her
non-selection for the CS-14 position. See Compl.,
¶¶ 28-38. She also alleges age discrimination under
the Age Discrimination in Employment Act, stating that
“less experienced similarly situated Architects and/or
Project Managers under the age of 40 were hired at a higher
pay scale and/or paid a higher wage than [Jenkins] for same
or similar [work] performed during the relevant
period.” Id., ¶¶ 45-52. Finally,
Jenkins brings a hostile-workplace claim under Title VII,
alleging that as a result of her race and age, her
“supervisors routinely humiliated [her] and engaged in
[a] persistent pattern of severe and pervasive
harassment.” Id., ¶¶ 58-65. The
District has now moved for summary judgment on all counts,
asserting that there is no record evidence supporting any of
Jenkins's allegations. See ECF No. 20 (MSJ).
judgment may be granted 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); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is
“material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty
Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party. See Scott v. Harris, 550 U.S. 372,
motion for summary judgment is under consideration,
“[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Liberty Lobby, 477 U.S. at 255;
see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C.
Cir. 2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1288 (D.C. Cir. 1998) (en banc). On a motion for
summary judgment, the Court must “eschew making
credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007). The non-moving party's opposition, however, must
consist of more than mere 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(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). The non-movant is required to provide evidence that
would permit a reasonable jury to find in his favor. See
Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
are a few issues to address before proceeding to
Plaintiff's more substantive claims. First, the Court can
easily dispose of her allegation that the District violated
42 U.S.C. § 1981. See Compl., ¶ 1. As
Defendant notes in its Motion - and Jenkins concedes in her
response - a plaintiff cannot sue a municipality under §
1981. See MSJ at 10; Opp. at 1. The District is
correct that the Supreme Court has held that 42 U.S.C. §
1983, not § 1981, provides the exclusive remedy for
discrimination and retaliation claims when the alleged
violation is by a state actor. See Jett v. Dallas
Independent School ...