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Morris v. United States Department of Justice

United States District Court, District of Columbia

March 27, 2018

KANDI MORRIS, Plaintiff,


          RANDOLPH D. MOSS United States District Judge.

         Plaintiff Kandi Morris, proceeding pro se, brings this action against her former employer, the U.S. Department of Justice, for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). Morris claims that she was terminated from her position as a FOIA Specialist “without just cause” and that, while she was employed at the Department, she “did not receive pay commensurate with [her] education and experience” and was paid “at a rate lower than [her] male counterparts.” Dkt. 1 at 1. The Department moves to dismiss, or in the alternative, for summary judgment, on two grounds: first, as a procedural matter, Morris failed to exhaust her administrative Title VII remedies in a timely manner, and, second, as a substantive matter, the uncontroverted evidence demonstrates that she was paid at the same rate as her male counterparts. The Court agrees on both counts and will, accordingly, grant summary judgment in favor of the Department.

         I. BACKGROUND

         For the purpose of evaluating the Department's motion for summary judgment, the following uncontroverted facts are construed in the light most favorable to Morris as the nonmoving party. See Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006).

         Morris, who is an African-American woman, worked at the Department of Justice as a FOIA Specialist with the Office of Information Policy (“OIP”) for approximately seven months, until she was terminated in early 2011. Dkt. 10 at 3-4; Dkt. 10-2 at 5. She was hired under the Federal Career Intern Program (“FCIP”), which “allowed agencies to appoint qualified individuals in entry level positions in the excepted services and, upon successful completion of a two[-]year internship period, convert those . . . appointments to career or career-conditional positions in the competitive service.” Dkt. 9 at 3 (Def.'s SUMF ¶ 2); Dkt. 13 at 5 (Pl.'s SUMF ¶ 36). FCIP employees were eligible for a grade increase after one year of service. Dkt. 10-1 at 128 (Pustay Interrogatory).

         When Morris was offered the FOIA Specialist position under the FCIP, she objected to the starting salary, explaining that the job advertisement stated that the “[s]alary [would] be determined [based on] educational level, GPA, and work experience, ” Dkt. 13 at 2 (Pl.'s SUMF ¶ 2); Dkt. 10-1 at 253, and that, based on those measures, she was entitled to a higher salary, Dkt. 13 at 2 (Pl.'s SUMF ¶¶ 3, 5). As Morris concedes, id. (Pl.'s SUMF ¶ 3), her OIP contact, Laurie Day, responded to this complaint by explaining that “all FOIA Specialists were started at the same grade regardless of educational level, GPA[, ] or work experience.” Id. (Pl.'s SUMF ¶ 3). Day, moreover, later confirmed under the penalty of perjury that “[a]ll candidates hired under the [FCIP] in the Office of Information Policy were hired at the GS-7 level.” Dkt. 10-1 at 148 (Day Interrogatory). As Day explained, “when OIP first began to use the FCIP, . . . the Justice Management Division . . . advised that all candidates had to start at either the GS-5 or GS-7 level because the FCIP required that individuals show progressive advancement on the FOIA Specialist career ladder [which ran from GS-5 to GS-11] in order to successfully complete the program and be converted to a competitive service appointment.” Id. at 149. Although Morris contends that by slotting her at the GS-7 level OIP “disregarded [her] educational level, GPA[, ] [and] work experience, ” Dkt. 13 at 2 (Pl.'s SUMF ¶ 5), she does not controvert the Department's assertion, Dkt. 9 at 4 (Def.'s SUMF ¶ 3), or the uniform testimony in the administrative process, that all of the FOIA Specialists that OIP hired under the FCIP “were appointed at the GS-7, Step 1 level, ” id.; see also Dkt. 10-1 at 124 (Pustay Interrogatory); id. at 148 (Day Interrogatory); id. at 136 (Mallon Interrogatory); id. at 165 (Douglas Affidavit); id. at 179 (Souser Affidavit); id. at 193 (Smith Affidavit); id. at 204 (Logan Affidavit) (“To my knowledge, if I can recall, I think it's either a 5 or a 7.”). Morris attests that, despite the GS-7 pay grade, she accepted the position on the understanding that “after one year, the pay would automatically increase to a GS-9 [level] and[, ] after the second year, it would go to a GS-11 [level].” Dkt. 10-1 at 100 (Morris Affidavit). The Department, in turn, does not dispute that these grade increases were “available, ” but asserts that they were not “automatic” and, instead, were “based off of performance.” Dkt. 10-1 at 166 (Hibbard Affidavit).

         Morris never reached the one-year mark, however. According to Morris, the FCIP was terminated on December 27, 2010, and those serving “under the FCIP as of March 1, 2011, ” were “converted to the competitive service.” Dkt. 13 at 2-3 (Pl.'s SUMF ¶¶ 7-8); see also Exec. Order No. 13562, 75 Fed. Reg. 82, 585 (Dec. 27, 2010). On January 26, 2011, between the termination of the FCIP and the March 1 conversion date, Morris was told by OIP's Chief of Staff, Carmen Mallon, that she “was being terminated from the Department of Justice for budget reasons.” Id. at 3 (Pl.'s SUMF ¶ 14). Morris asked “for a written statement [of] the reason for [her] termination, ” but OIP leadership declined that request and, instead, offered Morris “the option” of resigning. Id. (Pl.'s SUMF ¶ 16). Morris, in turn, declined and contacted the Justice Management Division (“JMD”) “to report the unfair treatment and to ask why her reasons for termination would not be committed to writing.” Id. at 3-4 (Pl.'s SUMF ¶ 19). Although JMD did not respond to that request, she was eventually presented with a “one-page document” that was purportedly from JMD, which “stated that [Morris] was being terminated for poor performance.” Id. at 4 (Pl.'s SUMF ¶¶ 26, 29); see Dkt. 10-1 at 46. Although Morris's SF-50, notice of personnel action, states that she was terminated because her FCIP term had come to an end, Dkt. 10-1 at 48, Mallon purportedly placed the one-page document, which cited poor performance, in Morris's file, Dkt. 13 at 5 (Pl.'s SUMF ¶ 32). The actual one-page document, which the Department produced in support of its motion, reflects aspects of both accounts. It asserts that OIP management declined to convert Morris's FCIP position to a position in the competitive service because she had “not demonstrated performance of the quality expected for employees in the FCIP program.” Dkt. 10-1 at 46. In any event, all agree that Morris was terminated on February 10 or 11, 2011. Dkt. 13 at 4 (Pl.'s SUMF ¶ 31); Dkt. 9 at 4 (Def.'s SUMF ¶ 5).

         On February 8, 2013, nearly two years after her termination, Morris filed an EEO complaint with the Department, alleging that she was discriminated against based on her sex and race because (1) she was paid “at a rate at or below similarly situated white males with less education, ” and (2) she was told that she was terminated because the FCIP program came to an end, but “two white women were hired” by OIP. Dkt 10-1 at 26. Morris contends that she did not file a complaint until earlier because it was not until September 14, 2012, that she “received information that white males at OIP were being paid more than black females with more education.” Id. at 39; see also Id. at 304. She asserts that, on that date, she “checked a website with publicly available salary information, ” id. at 39, and also asserts that a “former co-worker . . . alerted [her] to the website” and to the fact that the co-worker had “filed her own disparate pay claim, among[] other violations, against OIP and [had] prevailed, ” Dkt. 13 at 5 (Pl.'s SUMF ¶ 39).

         The Department's EEO staff agreed to investigate Morris's disparate pay claim, but dismissed her termination claim on the ground that it was untimely. As the EEO staff explained, the record indicated that Morris was informed by OIP management at the time she was terminated that she had a “right to appeal their decision through the Department's Equal Employment Opportunity . . . Complaint process and [informed] of the time for contacting an EEO Counselor.” Dkt. 10-1 at 71. Despite this notice, however, Morris did not “initially contact[] the [EEO] Staff” until “October 25, 2012, 594 days after the date of the alleged harm, ” well beyond the 45-day period specified by the governing federal regulation, 29 C.F.R. § 1614.105(a)(1). Dkt. 10-1 at 70. Although Morris argued there-as she argues here-that she did not become aware of the pay disparity until September 14, 2012, the EEO staff concluded that this revelation failed to explain Morris's delay in initiating the counseling process with respect to her separate termination claim. Id. at 70-71. The EEO staff did agree, however, to initiate an investigation regarding the disparate pay issue and to consider her other contentions “as background material to the extent it [was] relevant to” that claim. Id. at 72.

         In investigating Morris's disparate pay claim, the EEO staff interviewed multiple witnesses and collected substantial information. See Dkt. 10-1. After a counseling period, Morris filed a formal administrative complaint and, on August 31, 2013, she requested that her claim be heard by an Administrative Judge (“AJ”). Dkt. 10-2 at 4. As a discovery sanction, the AJ dismissed Morris's hearing request, but he did not dismiss her underlying claims and, instead, remanded the case to the Department for issuance of a decision. Id. After that decision was entered, the matter was referred to the Department's Complaint Adjudication Office, which issued a “final agency decision” on December 9, 2014. Id. at 4-19. That office agreed with the EEO staff and AJ that Morris's termination claim was untimely but that her disparate pay claim was timely. Id. at 5. Considering that claim under both Title VII and the Equal Pay Act, the Complaint Adjudication Office found that all of the relevant witnesses testified “that all FCIP FOIA Specialists began as GS-7s” and that the other evidence confirmed their testimony. Id. at 17. Morris, moreover, “was fired from her position before she had served a full year with OIP, so she could not have been promoted [pursuant to the governing] FCIP[] policies.” Id. Although white and male FCIP FOIA Specialists were eventually promoted, they attained the required tenure. Id. Accordingly, the Complaint Adjudication Office concluded that “the record contains no evidence of disparate . . . pay.” Id.

         Morris then exercised her right to appeal that decision to the Equal Employment Opportunity Commission (“EEOC”), which (1) noted that Morris “d[id] not challenge the Agency's dismissal of [her] claim” that “the Agency discriminated against her on the bases of race . . . and sex” when she “was fired from her FCIP position” and (2) agreed with the Department's Complaint Adjudication Office that Morris “failed to establish that the Agency subjected her to discrimination with regard to pay” and that “[t]he record shows that [Morris] did equal work for equal pay.” Morris v. Lynch, EEOC Decision No. 0120150908, 2016 WL 2864997, at *1, 3, 5 (May 6, 2016). With respect to the latter claim, the EEOC stressed that Morris failed to identify a single colleague who had been hired as a FOIA Specialist under the FCIP above a starting grade of GS-7 and that Morris's white and male colleagues in the FCIP program did not reach a higher pay grade until after they had at least one year's experience. Id. at *5.

         On January 31, 2017, Morris commenced this suit. See Dkt. 1. Her single-page complaint contains little substance, alleging only that she “was terminated from the FCIP and the U.S. Department of Justice without just cause” and that, “[w]hile employed[, ] [she] did not receive pay commensurate with [her] education and experience and was paid at a rate lower than male counterparts in violation of the Equal Pay Act and Title VII.” Dkt. 1 at 1. In lieu of filing an answer, the Department has moved to dismiss the complaint or, in the alternative, for summary judgment, arguing that Morris failed to timely exhaust her administrative remedies or that her claims fail on the merits. See Dkt. 9. For the reasons explained below, the Court agrees and will grant summary judgment in favor of the Department.


         The Department moves to dismiss and, in the alternative, for summary judgment. Both of the defenses it raises, however, are best considered under Federal Rule of Civil Procedure 56. Under that standard, the moving party is entitled to summary judgment 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). A fact is “material” if it could affect the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the ...

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