United States District Court, District of Columbia
CHRISTOPHER R. COOPER United States District Judge.
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.
tenure in the SEC's Office of Inspector General
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. 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.
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.
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.
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.
Wilson's Requests for Transfer
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.
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.
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.
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.
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.
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.
Wilson's Permanent Transfer
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.
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.
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.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.
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.
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.
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.
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.
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
Standard of Review
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.
Legal Principles Underlying Wilson's Claims
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).
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 ...