Wilson v. Clayton

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER United States District Judge.

         Jacqueline Wilson, an employee of the Securities and Exchange Commission (“SEC”), has sued the agency. She alleges that it took discriminatory action against her in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (“ADEA”), and that it retaliated against her for complaining about this alleged discrimination. With discovery closed, the SEC has moved for summary judgment. The Court will grant the motion.

         I. Background

         A. Factual Background

         1.Wilson's tenure in the SEC's Office of Inspector General

         Wilson, an African-American woman now in her fifties, began working at the SEC in 2008 as Assistant Inspector General for Audits in the agency's Office of Inspector General (“OIG”). See Pl.'s Statement of Disputed Material Facts (“Pl.'s Facts”), ECF No. 23-1, ¶ 1. The position carried an SK-17 grade, the highest rung on the SEC's pay scale.^[1] Def.'s Statement of Undisputed Material Facts (“SUMF”), ECF No. 21-1, ¶ 1. Wilson supervised six SEC auditors and several contractors. See Pl.'s Opp'n. to Def.'s Mot. Summ. J. (“Opp'n”) Ex. A, ECF No. 23-2, at SEC Bates No. 00076.

         In February 2013, Carl Hoecker was hired as the agency's new Inspector General. SUMF ¶ 2. In his early months at OIG, Hoecker made several personnel moves relevant to this case. In June 2013, he advertised a job opening for a Deputy Inspector General and promoted Mary Beth Sullivan, a white woman, to that position. Deposition of Carl Hoecker, Def.'s Mot. Summ. J. (“MSJ”) Ex. 2 (“Hoecker Dep.”), at 56:6-13. Prior to Hoecker's tenure, Sullivan had been reprimanded after an investigation in which Wilson cooperated. Id. at 57:1-10. In August, Hoecker hired Paul Crane, a white man, as Assistant Inspector General for Investigations. Hoecker had supervised Crane in a previous role and hired him without an interview. Id. at 61:1-62:6.

         Finally, in late 2013, Hoecker advertised a new position: Deputy Inspector General for Audits, Evaluations, and Special Projects. See MSJ Ex. 9, at SEC Bates No. 00152-57. Like Wilson's job, the new position was an SK-17 position that involved audit functions. Id. As Hoecker tells it, he envisioned the role as helping supervise OIG audits, which he thought needed improvement, and working on special projects and evaluations. Hoecker Dep. at 76:7-15. As Wilson tells it, the job responsibilities were duplicative of hers. See, e.g., Opp'n Ex. A at SEC Bates No. 00081. Sullivan and Crane were part of a three-person panel responsible for reviewing applications and sending candidates to Hoecker for an interview. Hoecker Dep. at 80:20-81:18; see also Affidavit of Carl Hoecker, MSJ Ex. 5 (“Hoecker Aff.”), ECF 21-7, at SEC Bates No. 00088. Despite the fact that Wilson was on a “best qualified” list for the position, the panel did not select her for an interview. Hoecker interviewed three candidates and hired Rebecca Sharek, a white woman. Hoecker Dep. at 87:16-91:6; see also Hoecker Aff. at SEC Bates No. 00088.

         During Hoecker's first several months at OIG, he directly supervised Wilson and expressed dissatisfaction with her job performance. SUMF ¶ 2; see also Hoecker Dep. at 42:18- 47:4; Hoecker Aff. at SEC Bates No. 00088; Deposition of Lacey M. Dingman-Woodsmall, Def.'s MSJ Ex. 4 (“Dingman Dep.”), ECF 21-6, at 72:1-22. The parties tell different tales about whether this dissatisfaction was fair, what motivated it, and how intensely it was expressed. In Wilson's view, it was unwarranted, discriminatory, and sufficiently severe to constitute harassment. See Affidavit of Jacqueline Wilson, MSJ Ex. 1 (“Wilson Aff.”), at SEC Bates No. 00077. When Sullivan was promoted to Deputy Inspector General, she became Wilson's supervisor. She, too, expressed dissatisfaction with Wilson's work in ways Wilson thought unfair, hostile, and retaliatory for Wilson's role in the prior investigation that had resulted in Sullivan's reprimand. Opp'n Ex. A at SEC Bates No. 00029, 00031. For example, Wilson recounts that Sullivan required daily check-ins, insisted on being copied on certain external emails, and unfairly criticized her work. Id.; see also Wilson Aff. at SEC Bates No. 00078. Crane was made part of a senior leadership team; Hoecker and Sullivan insisted that Wilson brief that team about certain aspects of her work. Hoecker Dep. at 70:20-72:5. Wilson detailed an incident in which Hoecker approved her presence at an off-site training but required her to leave the training early to attend in person a meeting that others were permitted to attend telephonically. Opp'n Ex. A at SEC Bates No. 00031. She found this “excessive and an abuse of Hoecker and Sullivan's authority to be fair and treat [her] as a senior official.” Id. She also indicated that Hoecker met frequently with Crane and took Sullivan and Crane to certain meetings-opportunities she was not given. Id. at 00029. On November 15, 2013, Wilson contacted the agency's equal employment opportunity (“EEO”) office regarding Hoecker's treatment of her. Id. at 00031. She decided not to file a formal complaint at that time.

         2. Wilson's Requests for Transfer

         In June 2013, several months into Hoecker's tenure and shortly after Sullivan began supervising her, Wilson contacted Erica Williams, the SEC Chair's Deputy Chief of Staff, to report a hostile work environment. SUMF ¶ 3; Pl.'s Facts ¶ 3. According to the SEC, she also asked for a transfer, SUMF ¶ 3; Wilson now disputes that, but she indicated in both her EEO narrative and her complaint in this case that she asked for help finding a new job. See Opp'n Ex. A at SEC Bates No. 00029; Wilson Aff. at SEC Bates No. 00077; Compl. ¶ 21.

         In any event, it is undisputed that shortly thereafter, Lacey Dingman, the SEC's Chief Human Capital Officer, called Wilson to discuss the possibility of a move. According to Dingman, she approached the heads of two offices within the SEC for whom Wilson had expressed interest in working. Dingman Dep. at 14:20-15:9. After considering the possibility, both told Dingman that they would be unable to accommodate Wilson. Id. at 15:12-19; see also Affidavit of Lacey Dingman, MSJ Ex. 7 (“Dingman EEO Aff.”), at SEC Bates No. 00103 (“I had asked several of my colleagues in other organizations in the SEC about accepting her but they declined, because of the impact on their offices. The substantive work they all do is substantially different from what the OIG does and they were concerned about accepting someone at her grade level into their organizations without competition.”). Wilson declined to take a demotion to an SK-16 position at that time. Dingman Dep. at 21:19-22:22.

         From Wilson's perspective, the situation at OIG further deteriorated, eventually leading to her November 2013 EEO activity. Around that time, Wilson wrote to Jeffery Heslop, the SEC's Chief Operating Officer, to request a transfer. She wrote that “[she] really need[ed] out of OIG as soon as possible, ” and indicated that she was “open to accepting whatever open vacancies” were available within Heslop's office, including an SK-16 position. Def.'s Reply Supp. MSJ (“Reply”) Ex. B, ECF No. 28-2, at 3; see also Deposition of Jeffery L. Heslop, MSJ Ex. 3 (“Heslop Dep.”), at 12:1-9. She enclosed a resume, which Heslop forwarded to Dingman. Reply Ex. B at 3. Hoecker, too, spoke with Heslop regarding a temporary detail for Wilson. Hoecker Dep. at 105:10-106:22. He mentioned that Wilson had complained to the EEO office about him. Id. Wilson took leave towards the end of 2013 and, upon her return in January 2014, was offered and accepted a temporary 90-day detail to Dingman's department, the Office of Human Resources (“OHR”). Opp'n Ex. A at SEC Bates No. 00031.

         3.Wilson's Temporary Detail

         In OHR, Wilson worked in the Transportation, Supplemental Benefits and Special Program Branch of OHR's Total Rewards Group. Wilson Aff. at SEC Bates No. 00075. Her direct supervisor was Trinette Smith, also an SK-17 grade. Dingman testified that during Wilson's detail, she continued to reach out to other departments within the SEC in an effort to find Wilson a new permanent role but was unsuccessful in finding a position that suited Wilson's preferences. Dingman Dep. at 16:5-17:10; Dingman EEO Aff. at SEC Bates No. 00103.

         During this period, in February 2014, the OIG was undergoing a process of updating security clearances. Kelly Gibbs, an SEC Personnel Security Specialist, emailed Wilson, indicating that Hoecker had informed her about Wilson's detail and that, because Wilson's OHR position did not require clearance, her background investigation would be canceled. Opp'n Ex. B, ECF No. 23-3, at ¶ 0004. Wilson objected, noting that her “permanent position ha[d] not changed and [she was still] an OIG asset.” Id. Gibbs responded that, based on the conversation with Hoecker, Wilson “d[id] not need a clearance at [that] time” and that when she returned to OIG and needed a clearance, they would commence the investigation. Id. at ¶ 0002.

         Around the same time, Sullivan submitted Wilson's performance evaluation for 2013, rating her a 2 out of 5-substantially lower than previous years' evaluations. Declaration of Jacqueline Wilson (“Wilson Decl.”), Opp'n Ex. C, ECF No. 23-4, ¶ 12. Wilson appealed the evaluation through the SEC's grievance process on both procedural and substantive grounds. See generally Reply Ex. C, ECF No. 28-3. As part of the appeal, she claimed that the rating stemmed from discriminatory animus. Id. at 2. From March until September 2014, Wilson and the agency engaged in discussions to settle the grievance. Wilson's detail was extended twice during these negotiations. MSJ Ex. 8 at SEC Bates No. 00261-62. In September, Wilson rejected the agency's settlement offer. Her detail was extended twice more after that. Id. at SEC Bates No. 00263-64.

         4. Wilson's Permanent Transfer

         In November 2014, the agency permanently transferred Wilson to OHR. MSJ Ex. 12 at SEC Bates No. 00268. She remained, and continues to serve, in the position to which she had been detailed for the previous eleven months: a Supervisory Program Specialist, overseeing the Transportation, Supplemental Benefits and Special Program Branch of OHR's Total Rewards Group. She remained an SK-17 employee and continued to report to Smith, an SK-17 as well. In this position, Wilson supervises three employees. Pl.'s Facts ¶ 25. She indicates that she does not attend OHR management meetings. Id.

         Wilson's current position, unlike her previous one in OIG, does not have an educational requirement and involves limited auditing functions. Id. According to her EEO complaint, all other SEC employees with equivalent positions are at the SK-15 pay grade, lower than Wilson's SK-17 grade. Opp'n Ex. A at SEC Bates No. 00032. Further, Wilson says that she is one of only two SK-17 employees in the SEC who reports to another SK-17 employee. Id.

         5. Wilson's Salary

         When Wilson was hired in 2008, her initial salary was set at $128, 805. Affidavit of Lacey Dingman-Woodsmall, MSJ Ex. 13 (“Dingman Aff.”) ¶ 5. By 2014, she was paid $164, 296, MSJ Ex. 14 at SEC Bates No. 00269, with a fifteen percent retention incentive.^[2]Dingman Aff. ¶ 7; see also Dingman Dep. at 49:6-8. The fifteen percent incentive was the highest percentage salary increase available at the agency. Dingman Dep. at 46:2-4. When Wilson was permanently transferred, her retention incentive was eliminated. SEC policy allowed an employee to receive a retention incentive for a discrete period, subject to renewal. See Dingman Dep. at 49:20-22; Heslop Dep. at 38:21-40:17. Dingman testified that Wilson's incentive expired during her detail but Dingman, in consultation with Heslop, extended the incentive until the permanent transfer in November 2014. Dingman Dep. at 49:20-51:13; see also Dingman EEO Aff. at SEC Bates No. 00104.

         In 2012, the SEC adopted a new policy for setting salaries for new hires and employees who transfer within the agency. Dingman Dep. at 42:19-43:2. Under this policy, the agency uses a salary matrix to determine compensation. Id. at 41:4-17; see also Dingman Aff. ¶ 11; Affidavit of Jeffery Heslop, MSJ Ex. 16 (“Heslop Aff.”), at SEC Bates No. 00096. Upon the hiring of a new employee, an SEC compensation specialist makes a salary recommendation to a hiring manager based a new employee's experience and qualifications. Dingman Dep. at 46:11- 48:6. The employee's hiring manager then provides additional information to justify a higher or lower amount, and Dingman reviews the recommendations and makes a final decision. Id. In making these assessments, the compensation specialist does not consider the salaries of existing SEC employees. Id. at 47:17-19. When Sharek was hired in 2014, her salary was determined pursuant to this policy. Dingman Aff. ¶ 13; see also Hoecker Dep. at 92:15-93:14; Heslop Dep. at 28:11-29:3. She was paid $195, 000 per year. Dingman Aff. ¶ 13.

         Because the SEC salary matrix did not apply to employees who were hired before 2012 unless they later transferred, Dingman Aff. ¶ 11, Wilson's salary was unaffected by the matrix-based policy for her entire tenure at OIG, including her temporary detail to OHR. When she was permanently transferred in November 2014, Wilson became eligible for a matrix-based salary readjustment. Id. This readjustment did not occur immediately upon her transfer, however. According to Smith, Wilson's supervisor who was responsible for processing the readjustment, she forgot to do so. MSJ Ex. 17 at SEC Bates No. 00109; see also Dingman Dep. at 71:3-22. After Wilson raised the salary discrepancy between her and Sharek in a January 2015 EEO complaint following the permanent transfer, Dingman and Smith applied the matrix to adjust Wilson's salary. MSJ Ex. 17 at SEC Bates No. 00109; see also Dingman Dep. at 69:8-70:10. Wilson's new annual salary was set at $203, 871, an increase of approximately 24 percent. Attachment C to Dingman Aff. The raise was also made retroactive to Wilson's November 2014 permanent transfer. Id.; Dingman Dep. at 69:8-14.

         B. Procedural History

         Following her permanent transfer in November 2014, Wilson contacted an agency EEO counselor. This time Wilson filed a formal complaint. See generally Opp'n Ex. A at SEC Bates No. 00075-82. The EEO office concluded in an October 2015 Final Agency Decision that Wilson had failed to prove by a preponderance of the evidence that she had suffered discrimination and issued her a right to sue notice. See Mot. Dismiss Ex. D, ECF No. 11-4. She filed suit in this Court in 2016 alleging race and sex discrimination and retaliation in violation of Title VII, and age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). Her Complaint identified six discrete acts supporting her claims: (1) workplace harassment during her tenure in OIG; (2) her non-selection for the Deputy Inspector General position for which Sharek was hired; (3) her February 2014 formal performance evaluation; (4) her detail extensions; (5) her permanent transfer to OHR; and (6) her salary both as compared to similarly situated white, male employees over her OIG tenure and relative to Sharek's starting salary. See Mem. Op. and Order, ECF No. 18, at 5-9.

         The SEC moved to partially dismiss Wilson's Complaint as time-barred on the ground that she had failed to exhaust administrative remedies for several of the discrete acts underlying her claims. The Court granted the motion in part, concluding that the only claims that Wilson had properly exhausted stemmed from (1) her permanent transfer and (2) her salary relative to Sharek's (but not relative to similarly situated white men during her tenure at OIG). See generally id. Those two issues form the only remaining claims in the case. In its opinion, however, the Court noted that while the other acts alleged could not constitute separate claims, Wilson would be able to marshal details of the other acts as evidence to support her remaining claims, which she has attempted to do here. Id. at 10 n.4.

         Discovery has been completed and the SEC has moved for summary judgment, contending that no reasonable jury could conclude that Wilson's permanent transfer or pay relative to Sharek's resulted from discrimination or retaliation. Wilson opposes that motion, which is now ripe for the Court's review.

         II. Standard of Review

         Summary judgment is appropriate where “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 court must accept as true the nonmovant's evidence and draw all reasonable inferences in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The nonmovant may not, however, rely on “mere allegations” or conclusory statements. Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006).

         III. Analysis

         A. Legal Principles Underlying Wilson's Claims

         Wilson contends that when the agency permanently transferred her to OHR and when it set Sharek's salary higher than hers, it did so for discriminatory and retaliatory reasons in violation of Title VII and the ADEA. Where, as here, there is no direct evidence of discrimination or retaliation, the Court applies the three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Giles v. Transit Employees Fed. Credit Union, 794 F.3d 1, 5 (D.C. Cir. 2015) (applying McDonnell Douglas framework to ADEA claims).

         First, an employee must establish a prima facie case of discrimination or retaliation. Then, the burden shifts to the employer “to articulate some legitimate, nondiscriminatory [and nonretaliatory] reason” for the employment action. McDonnell Douglas, 411 U.S. at 802. Third, the burden shifts back to the employee to rebut the employer's proffered reason “by proving, under a preponderance of the evidence standard, that the employer's justification is merely pretext for discrimination” or ...