ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
Before
the Court is Defendant's pre-discovery Motion for Summary
Judgment.[1] ECF No. 11. For the reasons explained
below, the Motion is GRANTED IN PART and
DENIED IN PART.
With
regard to Plaintiff's age discrimination claim, the Court
concludes that there are genuine issues of material fact as
to the two issues raised by Defendant: whether (1) Plaintiff
suffered an adverse employment action when she was
transferred and (2) a reasonable jury could conclude from all
the evidence that the action was undertaken for a
discriminatory reason based on her age.[2] The Motion is
therefore denied as to that claim.
As to
the former point, the Court so holds because Plaintiff has
raised a genuine issue of material fact concerning whether
she had significantly different, and diminished,
responsibilities and supervisory authority after she was
transferred. See Czekalski v. Peters, 475 F.3d 360,
364 (D.C. Cir. 2007).
As to
the latter point, the Court so holds because Plaintiff
has-barely-offered sufficient evidence tending to negate
Defendant's contention that Plaintiff was transferred
because Defendant urgently needed to fill her new position in
light of the findings of its annual audit. That evidence
includes facts that suggest that Plaintiff's new position
had fewer responsibilities and less supervisory authority
than her previous one; the fact that the position remained
open for long periods both before and after she occupied it
(no one else was apparently transferred or hired to fill it
after she resigned); the lack of a clear connection, at least
on the record here, between the audit's findings and her
new position's duties; and other circumstantial evidence
from which a reasonable jury could conclude that
Plaintiff's supervisors may have-for whatever
reason-simply wanted to transfer Plaintiff in order to
promote her much younger subordinate into her old position.
And not long afterward, that is precisely what happened.
Defendant
offers various additional reasons justifying Plaintiff's
transfer: for example, that she was a good fit for her new
job in terms of her skillset, and that doing so made
budgetary sense. But Plaintiff casts some doubt on each of
them, and more importantly, each is ultimately subordinate to
the overarching reason Defendant proffered why
anyone had to be transferred into the position at
all-because of an urgent need to fill it. Our Circuit has
held that “[u]sually, proffering ‘evidence from
which a jury could find that [the employer's] stated
reasons . . . were pretextual . . . will be enough to get a
plaintiff's claim to a jury.'” George v.
Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005) (second
alteration in original) (quoting Carpenter v. Fed.
Nat'l Mortgage Ass'n, 165 F.3d 69, 72 (D.C. Cir.
1999)); Aka v. Washington Hosp. Ctr., 156 F.3d 1284,
1291 (D.C. Cir. 1998) (en banc) (identifying narrow
circumstances in which this is not so). Such is the case on
the current record here.
The
Court emphasizes that, simply because a reasonable jury could
conclude-on the record as it now stands-that Defendant
transferred Plaintiff for reasons other than the one it has
proffered does not at all mean that Plaintiff is likely to
prevail in this matter. It is simply not the case “that
plaintiff's evidence is in any way overwhelming or
objectively persuasive. Indeed, it is worth noting that
plaintiff's case of [age] discrimination in reassignment
is based entirely upon evidence that . . . tends to negate
defendant's explanation. . . . Totally absent from the
record is any circumstantial evidence tending to affirm that
plaintiff's [age] was a consideration in the challenged
action, such as the sort of ‘independent evidence of
discriminatory statements or attitudes on the part of the
employer' that the D.C. Circuit [has] referenced. . . .
The inference of [age]-based bias is therefore not a strong
one. But, under the applicable precedent in this Circuit, it
is nonetheless a proper issue for jury resolution.”
Kalinoski v. Gutierrez, 435 F.Supp.2d 55, 69 (D.D.C.
2006) (citation omitted) (quoting Aka, 156 F.3d at
1289).
As for
Plaintiff's sex discrimination claim, the Court concludes
that Plaintiff has failed to demonstrate a genuine issue of
material fact as to whether Plaintiff's transfer was
undertaken for that discriminatory reason. As such,
Defendant's Motion is granted as to that claim.
Plaintiff
asserts that she was the victim of discrimination because her
supervisors, whom she alleges wanted to promote her
subordinate, could have decided to transfer any one of
Plaintiff's male counterparts from other agency
components to make room for her subordinate- but instead
chose Plaintiff because she was female. At the outset, the
Court notes that Plaintiff's subordinate, who was
ultimately promoted into her old position, was also
female. While a plaintiff need not have been replaced by
someone outside her protected class to make a prima facie
case of discrimination, see Stella v. Mineta, 284
F.3d 135, 145-46 (D.C. Cir. 2002), “a replacement
within the same protected class cuts strongly against any
inference of discrimination.” Murray v.
Gilmore, 406 F.3d 708, 715 (D.C. Cir. 2005) (citing
Brown v. Brody, 199 F.3d 446, 451 (D.C. Cir. 1999)).
Nonetheless,
Plaintiff argues that it is the sex of her spared male
counterparts who were not transferred, and not that of her
subordinate who replaced her, that is relevant to her claim
of sex discrimination. But even assuming Plaintiff is correct
that her supervisors wanted to promote her subordinate, the
obvious reason they would have transferred Plaintiff
is because her subordinate would have been more familiar with
and qualified for Plaintiff's position, as
opposed to those occupied by her male counterparts. There is
no evidence in the record that any of Plaintiff's male
counterparts occupied positions for which Plaintiff's
subordinate would have been qualified.
On this
record, that Plaintiff has cast doubt upon Defendant's
stated reasons for her transfer is insufficient to avoid
summary judgment on this claim. There is substantial,
uncontroverted evidence that Plaintiff's supervisors did
not discriminate against her based on her gender. See
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 148 (2000). Accordingly, because no reasonable jury
could find that Plaintiff's supervisors did so,
Defendant's motion for summary judgment as to that claim
is granted.
SO
ORDERED.
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