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Tillman v. Barr

United States District Court, District of Columbia

June 20, 2019

TAMEKA TILLMAN Plaintiff,
v.
WILLIAM P. BARR, [1]Attorney General Defendant.

          MEMORANDUM OPINION

          Amit P. Mehta United States District Court Judge.

         I. INTRODUCTION

         Plaintiff Tameka Tillman was a Budget Analyst at the Department of Justice for more than five years before her termination in September 2013. Plaintiff, an African-American woman, claims that during her tenure she was subject to discrimination on account of race. Based on her firing, suspensions, denial of pay increase, leave restrictions, and other allegedly adverse actions, Plaintiff asserts that she was subject to (1) a hostile work environment, (2) disparate treatment on the basis of race, and (3) retaliation following complaints to her Equal Employment Opportunity (“EEO”) Office.

         Defendant Attorney General William P. Barr seeks summary judgment as to all claims. For the reasons below, the court grants Defendant's motion in full.

         II. BACKGROUND

         A. Factual Background

         Plaintiff Tameka Tillman was a Budget Analyst for the Administrative Management Section of the Department of Justice's Civil Rights Division from 2008 until her termination in September 2013. Def.'s Stmt. of Material Facts, ECF No. 24-1 [hereinafter Def.'s Facts], ¶¶ 1, 3; Pl.'s Stmt. of Disputed Material Facts in Supp. of her Opp'n to Def.'s Mot. to Dismiss & Mot. for Summ. J., ECF No. 30-1 [hereinafter Pl.'s Facts]; Decl. of Tameka Tillman, ECF No. 30-2 [hereinafter Pl.'s Decl.], ¶ 3. As a Budget Analyst, Plaintiff was responsible for “the formation, justification, presentation, and execution for the Division's various budget submissions.” See Def.'s Ex. C, Position Description, ECF No. 24-4, at 2; see also Def.'s Facts ¶ 4; Pl.'s Decl. ¶ 4.

         Earnestine Delamar was Plaintiff's first-line supervisor from the time she began in 2008 until January 2010, when Ms. Delamar retired. Def.'s Facts ¶ 5; Pl.'s Decl. ¶ 5. Plaintiff's second-line supervisor was Milton McConkey, until late 2011 when he became her fourth-line supervisor. Pl.'s Decl. ¶ 5.

         In January 2009, Ms. Delamar removed Plaintiff from her alternate flexible work schedule (“AWS”) citing the need to “see improvement” before she could consider “putting [Plaintiff] back on AWS.” See Def.'s Ex. E, Delamar Emails, ECF No. 24-6 [hereinafter Def.'s Ex. E], at 1-2; Def.'s Facts ¶ 9; Pl.'s Facts, ¶ 9 (not disputing that Plaintiff was removed from AWS). On October 5, 2009, Ms. Delamar sent Plaintiff an email expressing her belief that Plaintiff's feelings toward her had been negative and disrespectful, but that she nevertheless spent “countless hours . . . trying to help [Plaintiff] understand [her] job.” Def.'s Facts ¶ 10; Pl.'s Facts ¶ 10 (not disputing the substance of the email); Def.'s Ex. E at 3. When Ms. Delamar retired in January 2010, Linda Ellinger became Plaintiff's new first-line supervisor. See Def.'s Facts ¶ 5; Pl.'s Decl. ¶ 5. Plaintiff's performance evaluation for the 2009-2010 year, completed by Ellinger, also noted Plaintiff's need for improvement in the budget formation process. Def.'s Facts ¶ 11; Pl.'s Facts ¶ 11 (not disputing the content of the evaluation). Despite these issues, Plaintiff received a “Successful” overall rating in her 2009-2010 performance evaluation. Pl.'s Facts ¶ 11; Pl.'s Ex. 4, ECF No. 30-5 [hereinafter Pl.'s Ex. 4], at 5-6.[2]

         From April 2010 until October 2010, Plaintiff was detailed to the National Oceanic Atmospheric Administration, effectively removing her from the 2010 fiscal year budget formulation cycle. Def.'s Facts ¶¶ 12-13; Pl.'s Facts ¶¶ 12 (not disputing missing the 2010 budget cycle); Pl.'s Decl. ¶ 9. In her 2010-2011 evaluation, Ms. Ellinger again noted that she would like to see Plaintiff “demonstrate a greater initiative in finding ways to improve” her budget formation skills as required for her position. Def.'s Facts ¶ 14; Pl.'s Facts ¶ 14 (not disputing Ellinger's evaluation). Notwithstanding that critique, Plaintiff received ratings of “Excellent” overall, and either “Excellent” or “Outstanding, ” the second-highest and highest possible marks, respectively, in all categories. Pl.'s Facts ¶ 14; Pl.'s Ex. 4 at 13.

         Moeen Chowdhury become Plaintiff's first-line supervisor following Ellinger's departure in November 2011. Def.'s Facts ¶ 6; Pl.'s Facts ¶¶ 5-7. Jody Harry became Plaintiff's second-line supervisor in July of 2012. Def.'s Facts ¶ 7; Pl.'s Facts ¶ 7. In the 2011-2012 evaluation, Mr. Chowdhury reported that Plaintiff performed her budget formulation duties at a “minimally satisfactory level” and her work “contained numerous and substantive errors.” See Def.'s Ex. I, 2011-2012 Performance Evaluation, ECF No. 24-11 [hereinafter Def.'s Ex. I], at 2; Def.'s Facts ¶¶ 16-17; Pl.'s Facts ¶¶ 15-17 (not disputing the report itself). Mr. Chowdhury rated Plaintiff as “Successful” overall, and her ratings in individual job elements ranged from “Minimally Successful” to “Outstanding.” Pl.'s Facts ¶ 17; Pl.'s Ex. 4 at 21.

         On May 23, 2012, Plaintiff filed a formal complaint of discrimination with the EEO Office against Mr. Chowdhury and Ms. Harry. Pl.'s Decl. ¶ 10.

         Later, in July 2012, Plaintiff was assigned to complete the Fiscal Year 2014 “control numbers” by August 16, 2012. Def.'s Facts ¶ 21; Pl.'s Facts ¶ 21 (not disputing that Plaintiff was “initially responsible for the control number report in 2012”). Plaintiff claims that at some point in 2012 the project was assigned to an agency contractor but then reassigned to her in December 2012. Pl.'s Facts ¶ 21. Defendant contends that Plaintiff received information from the contractor on August 21, 2012, to complete the assignment. Def.'s Reply in Supp. of Mot. to Dismiss & Mot. for Summ. J., ECF No. 31 [hereinafter Def.'s Reply], Def.'s Reply in Supp. of Stmt. of Undisputed Material Facts, ECF No. 31-1 [hereinafter Def.'s Reply Facts], ¶ 24. Regardless, it is undisputed that the project was delayed, and that Mr. Chowdhury asked to meet with Plaintiff on several occasions in January to assist her. Def.'s Facts ¶¶ 26-27; Pl.'s Facts (undisputed). Plaintiff stated on January 23, 2013, that she would “complete the control numbers today, ” but did not do so. Def.'s Facts ¶¶ 28-29; Pl.'s Facts ¶¶ 28-29. Ultimately, Plaintiff never completed this assignment, and it had to be finished by her supervisors. Def.'s Facts ¶¶ 29-30; Pl.'s Facts ¶¶ 29-30. These events prompted Ms. Harry, on January 31, 2013, to issue Plaintiff an official Letter of Reprimand, stating that her “delay and failure to properly address [her] assignment” were unacceptable. See generally Def.'s Ex. L, Official Letter of Reprimand, ECF No. 25-1; Def.'s Facts ¶ 31; Pl.'s Facts ¶ 31.

         On February 28, 2013, Mr. Chowdhury issued Plaintiff a leave restriction letter for “ongoing deficiencies” in her attendance. See Def.'s Ex. P, Leave Restriction Letter, ECF. No. 25-5 [hereinafter Def.'s Ex. P], at 1; Def.'s Facts ¶ 34; Pl.'s Decl. ¶ 21. The letter cited Plaintiff's failure “consistently to come to work on a regular basis [and] . . . early departures during the period of January 29 - February 26, 2013” as the basis for the leave restriction. See Def.'s Ex. P at 1. The letter required Plaintiff to obtain Mr. Chowdhury's approval for any future absence, late arrival, or request for early departure. See Id. Further, the letter advised Plaintiff that her absences during the week of February 24, 2013, would be recorded as absent without leave, or AWOL, until she provided medical documentation. See Def.'s Facts ¶¶ 37-38; Pl.'s Facts ¶ 35. When Plaintiff later provided the medical documentation, her leave requests were approved. See Def.'s Facts ¶ 38; Pl.'s Decl. ¶ 22.

         On March 7, 2013, Plaintiff violated her leave restriction by meeting with her employment discrimination lawyer outside of work without permission from approximately 11:30 a.m. until 4:15 p.m. Def.'s Facts ¶ 40; Pl.'s Facts ¶¶ 39, 40. During her absence, Plaintiff failed to respond to a request to complete a work assignment, and ultimately did not complete that assignment. Def.'s Facts ¶ 41; Pl.'s Facts (undisputed). Further, when later questioned about her absence, Plaintiff responded untruthfully, saying she was not “out of [her] office from 11:30 to 4:15 pm, [but had gone] to lunch and returned and had to make numerous trips to the restroom for a medical condition.” Def.'s Facts ¶ 42; Pl.'s Facts (undisputed).

         On March 21, 2013, Ms. Harry proposed to one of her superiors suspending Plaintiff for four days. Def.'s Facts ¶ 43; Pl.'s Facts ¶ 43. In the proposal letter, Harry specifically cited Plaintiff's March 7th absence without leave, failure to follow instructions pursuant to the leave restriction letter Plaintiff had received a month prior, and lack of candor about her whereabouts. See Def.'s Ex. V, March 21, 2013 Proposed Four-day Suspension, ECF No. 25-11 [hereinafter Def.'s Ex. V], at 1-4. After considering these reasons, plus the earlier-issued Letter of Reprimand, Deputy Executive Officer Gary Wong authorized the suspension, finding it to be “an appropriate penalty for this charge.” See generally Def.'s Ex. W, May 2, 2013 Decision on Proposed Four-Day Suspension, ECF No. 25-12 [hereinafter Def.'s Ex. W].

         Meanwhile, on April 2, 2013, Mr. Chowdhury placed Plaintiff on a sixty-day Performance Improvement Plan (“PIP”). Def.'s Facts ¶ 46; Pl.'s Facts ¶ 46. A letter notifying Plaintiff of the PIP stated that she would have sixty days to “demonstrate the required improvement in [her] performance, ” and that by the end of the sixty days she would have to bring her performance up to at least a minimally satisfactory level in order to avoid a reduction in grade or removal. Def.'s Ex. X, ECF No. 25-13 [hereinafter Def.'s Ex. X], at 1. The PIP listed examples of Plaintiff's unacceptable performance and discussed the steps she would have to take to come into compliance with the Administrative Management Section's standards. Def.'s Facts ¶¶ 46-55; Pl.'s Facts ¶¶ 46-54 (not disputing the contents of the PIP).

         In early April 2013, Plaintiff received a second suspension for different misconduct. On April 10, 2013, Ms. Harry sent a letter to Plaintiff notifying her of a proposed five-day suspension for “insubordination and disrespectful conduct toward [her] supervisors, and failure to follow instructions.” See generally Def.'s Ex. Y, April 10, 2013 Proposed Five-Day Suspension, ECF No. 26-2 [hereinafter Def.'s Ex. Y]; Def.'s Facts ¶ 57; Pl.'s Decl. 36 (not disputing the letter). Explaining the reasons for the suspension, the letter states that Plaintiff (1) refused to attend her mid-year performance review with Mr. Chowdhury on March 22, 2013, (2) made disrespectful remarks toward her supervisors, (3) failed to incorporate edits by a deadline, and (4) told Ms. Harry that she was not allowed in her office and that she had “had enough of [Ms. Harry].” See Def.'s Ex. Y at 1-4. Mr. Wong once more found that the evidence supported the charges alleged and approved a five-day suspension. Def.'s Facts ¶¶ 57-60; Pl.'s Facts ¶¶ 57-60.

         On May 29, 2013, Plaintiff filed a formal EEO complaint against Mr. Chowdhury and Ms. Harry. Pl.'s Decl. ¶ 40; Def.'s Ex. A, Final Agency Decision, ECF No. 24-2 [hereinafter Def.'s Ex. A], at 1. On May 31, 2013, two days after filing her complaint and at the conclusion of the sixty-day PIP period, Ms. Harry issued Plaintiff a Notice of Proposed Removal. Def.'s Facts ¶ 61; Pl.'s Facts ¶¶ 61, 63. The Notice stated that Plaintiff had not met the due date or failed to complete “11 specifically identified assignments in Plaintiff's PIP.” Def.'s Facts ¶ 62; Pl.'s Facts ¶¶ 60-62. Additionally, on June 4, 2013, Plaintiff did not receive a Within-Grade Increase based on her poor performance. Def.'s Facts ¶ 66; Pl.'s Decl. ¶ 43. On September 9, 2013, Executive Officer McConkey issued a Decision on Removal, terminating Plaintiff from her position effective September 11, 2013. Pl.'s Decl. ¶ 44.

         B. Procedural Background

         Plaintiff filed her complaint in this case on March 15, 2017, alleging hostile work environment, race discrimination, and retaliation in violation of Title VII. See Compl., ECF No. 1 [hereinafter Compl.]. Following discovery, Defendant moved for summary judgment as to all claims on September 7, 2019. Def.'s Mot. to Dismiss & Mot. for Summ. J., ECF No. 24 [hereinafter Def.'s Mot.].

         III. LEGAL STANDARD

         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 assessing a motion for summary judgment, the court considers all relevant evidence presented by the parties. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008). The court looks at the facts in the light most favorable to the non-moving party and draws all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If the court determines “no reasonable jury could reach a verdict in her favor, ” then summary judgment against that party is appropriate. Wheeler v. Georgetown University Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016). When ruling on a summary judgment motion, courts are “not to make credibility determinations or weigh the evidence.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006).

         IV. DISCUSSION

         Plaintiff's race-based claims for hostile work environment (Count III) and disparate treatment (Count I) and her retaliation claim (Count II) are rooted in the same ten events: (1) the removal of certain duties, (2) the failure to train on revised duties, (3) the imposition of reprimands and suspensions, (4) the denial of alternative work schedule, (5) the restriction of leave and added scrutiny placed on her leave requests, (6) the charge of AWOL, (7) the requirement to report her daily arrival and departure times and times she left her desk, (8) the placement on a Performance Improvement Plan (“PIP”), (9) the denial of within-grade pay increase, (10) the proposed and ultimate termination from employment. See Compl.

         Defendant moves for summary judgment on all counts.

         A. Hostile Work Environment

         The court begins with Plaintiff's hostile work environment claim. Plaintiff asserts that Defendant has not moved for summary judgment on this claim. See Pl.'s Opp'n., ECF No. 30 [hereinafter Pl.'s Opp'n], at 34-54. Plaintiff is correct that Defendant addresses this claim for the first time in its Reply brief, and in a footnote no less. See Def.'s Reply at 3 n.1. Nevertheless, the court will exercise its discretion and consider Defendant's challenge. The record ...


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