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Walker v. Mattis

United States District Court, District of Columbia

July 27, 2018

WANDA WALKER, Plaintiff,
v.
JAMES N. MATTIS, Defendant.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta, United States District Judge.

         I. INTRODUCTION

         Plaintiff Wanda Walker brings a Title VII claim of retaliation and hostile work environment following her termination from the Defense Intelligence Agency (“DIA” or “Defendant”). Plaintiff, a former Security Specialist at the DIA, alleges that she was retaliated against for filing Equal Employment Opportunity complaints in which she alleged discrimination based on her race, color, and other protected traits. See Second Am. Compl., ECF No. 19, ¶¶ 19, 22, 32, 48, 49, 52, 53. Defendant has moved for summary judgment. See Def.'s Mot. for Summ. J., ECF No. 29 [hereinafter Def.'s Mot.]. The court assumes that both parties are familiar with the record and so refers to the facts only as necessary. After careful scrutiny of the record, this Court finds that there remain genuine disputes of material fact as to certain bases for Plaintiff's retaliation claims, such that a reasonable jury could find in Plaintiff's favor. Accordingly, Defendant's Motion for Summary Judgment is granted in part and denied in part

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 56, 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). A genuine dispute of a material fact exists when the fact is “capable of affecting the substantive outcome of the litigation” and “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Elzeneiny v. District of Columbia, 125 F.Supp.3d 18, 28 (D.D.C. 2015). In evaluating a motion for summary judgment, the court looks at the facts in the light most favorable to the nonmoving party and draws all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To defeat a motion for summary judgment, the nonmoving party must buttress its claims with “more than mere unsupported allegations or denials”; its opposition must be “supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial” and that a reasonable jury could find in its favor. Elzeneiny, 125 F.Supp.3d at 28 (citing Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

         III. DISCUSSION

         In addition to prohibiting a federal employer from discriminating against an employee based on her race, sex, religion, or nationality, 42 U.S.C. § 2000e-16(a), Title VII prohibits a federal employer from retaliating against an employee for opposing any practice that is made unlawful by the Act, see Baird v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015) (citing 42 U.S.C. § 2000e-3(a)). In this case, Plaintiff claims to have been retaliated against in multiple ways. She also asserts a claim of retaliatory hostile work environment. The court begins with her discrete retaliation claims, and then addresses her hostile work environment claim.

         A. Discrete Retaliation Claims

         To make out a prima facie case of retaliation, a plaintiff must demonstrate that she: (1) engaged in protected activity; (2) was subjected to an adverse employment action; and (3) there is a causal link between the protected activity and the adverse action. Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012). Filing a complaint of discrimination, as Plaintiff did here, plainly constitutes protected activity. See Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006). With respect to the adversity requirement, “‘[a]dverse actions' in the retaliation context encompass a broader sweep of actions than those in a pure discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008). “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ” which means “it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). And, finally, a causal link between a protected activity and the subsequent adverse employment action must “be prove[n] according to traditional principles of but-for causation.” Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).

         Establishing a prima facie case shifts the burden to the employer to provide a “legitimate, nondiscriminatory or non-retaliatory reason for the challenged action.” Morris v. McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016). “Once the employer proffers a non-retaliatory reason for the challenged employment action, the burden-shifting framework falls away, and the ‘central question' becomes whether ‘the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted nondiscriminatory [or non-retaliatory] reason was not the actual reason and that the employer intentionally discriminated [or retaliated] against the employee.'” Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)). “[A] court reviewing summary judgment looks to whether a reasonable jury could infer . . . retaliation from all the evidence.” Carter v. Geo. Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). The employee may survive summary judgment “by providing enough evidence for a reasonable jury to find that the employer's proffered explanation was a pretext for retaliation or discrimination.” Morris, 825 F.3d at 668. Only if in light of this evidence no reasonable jury could find that the Plaintiff was retaliated against should a court grant summary judgment for the defendant. See Hamilton, 666 F.3d at 1351.

         1. Five-Day Suspension

         The court begins with Plaintiff's claim that her five-day suspension in 2011 was retaliatory. Defendant asserts the suspension was imposed because Plaintiff had committed a security violation by disclosing the protected identity of a DIA employee to her attorney. See Def.'s Mot., Mem. of Pts. & Auths. in Supp., ECF No. 29-2 [hereinafter Def.'s Mem.], at 5; Def.'s Mot, ECF No. 29-4 [hereinafter Def.'s Ex. 1], at 18-22.[1] Whether a reasonable jury could infer retaliatory motive is a close call. On the one hand, more than seven months passed between Plaintiff's filing of her first EEO complaint, on July 19, 2010, and the formal notice recommending her five-day suspension, dated March 9, 2011. See Def.'s Ex. 1 at 2, 21-22. The D.C. Circuit has not adopted a bright-line rule for when temporal proximity cuts off a reasonable inference of causation, but precedent provides that a “three-month period between the protected activity and the adverse employment action may, standing alone, be too lengthy to raise an inference of causation.” Hamilton, 666 F.3d at 1357. Thus, the seven-month passage of time here weakens any inference of but-for causation. See Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 69 (D.C. Cir. 2015).

         On the other hand, Plaintiff has offered evidence to suggest potential deficiencies in the investigation of her alleged misconduct, as well as the commission of egregious error in the ultimate finding of wrongdoing underlying the five-day suspension. “An employer's investigation that is so unsystematic and incomplete that a factfinder could conclude that the employer sought, not to discover the truth, but to cover up its own discrimination can also permit a factfinder to find pretext.” Burley v. Nat'l Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015); see also Gipson v. Wells Fargo N.A., 460 F.Supp.2d 15, 30 (D.D.C. 2006) (stating that “deviation[s] from typical procedure . . . may support a finding of retaliation.”). Moreover, “[a] plaintiff might also establish pretext with evidence that a factual determination underlying an adverse employment action is egregiously wrong, because ‘if the employer made an error too obvious to be unintentional, perhaps it had an unlawful motive for doing so.'” Burley, 801 F.3d at 296 (citation omitted). Here, in support of her defense, Plaintiff's then attorney (not counsel presently representing her) submitted an affidavit, dated March 9, 2011, see Pl.'s Mem. in Opp'n, ECF No. 30 [hereinafter Pl.'s Mem.], Pl.'s Ex. B, ECF No. 30-3, at 25-26-the very same date that Plaintiff received the formal Notice of Proposed Suspension, see Def.'s Ex. 1 at 21-22-in which he attested that Plaintiff had not disclosed to him any DIA employee's identity or contact information, but that he had learned such information from a different source. Pl.'s Ex. B at 25-26. One might reasonably expect that such important, exculpatory evidence would be expressly referenced and discussed in either the Notice of Proposed Suspension, see Def.'s Ex. 1 at 20-22, or in the final suspension decision, see id. at 18-19. Yet, neither document mentions the attorney's affidavit, let alone explains why decision-makers deemed it not to be exculpatory. See Pl.'s Ex. B at 34 (letter from Plaintiff to the Deputy Director for Counterintelligence and Human Intelligence complaining that “[m]anagement completely ignored my lawyer's written statement”). Moreover, there is a genuine dispute of material fact as to whether Defendant provided Plaintiff with access to the evidence against her. Plaintiff says she was denied the opportunity to review the evidence against her, see Id. at 24, 34, while the final suspension notice states that Plaintiff was “provided an opportunity to review the materials relied upon to support the proposed suspension, ” Def.'s Ex. 1 at 18. Finally, the question of procedural irregularities is bolstered by the testimony of Brandon Kasen, an intelligence officer at DIA, see Def.'s Ex. 1 at 3, who stated that although alleged security violations by DIA employees “normally” come through his office, Plaintiff's report “never came through our office and I don't know why.” Pl.'s Mem., Pl.'s Ex. C, ECF No. 30-4, at 7. Kasen's testimony could be understood to mean that Plaintiff's suspension did not follow ordinary procedures.

         There is also some dispute as to who initially recommended Plaintiff's suspension. Defendant contends that human resources officer Barbara Frey made the recommendation, [2] while Plaintiff provides evidence that employee relations specialist Katherine Newmann made the recommendation. Compare Def.'s Statement of Material ...


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