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Gilliard v. Gruenberg

United States District Court, District of Columbia

March 26, 2018

MARTIN GRUENBERG, Chairman, Federal Deposit Insurance Corporation, et al., Defendants.



         Granting Plaintiff's Motion for Leave to File A Second Amended Complaint; Granting in Part and Denying in Part Defendants' Motion to Dismiss; and Denying as Premature Defendants' Alternative Motion for Summary Judgment


         Plaintiff Stephanie A. Gilliard, who submitted her amended complaint pro se but who is now represented by counsel, brings this action against the Chairman of the Federal Deposit Insurance Corporation (“FDIC”) and other FDIC employees, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. Defendants moved for dismissal or, in the alternative, for summary judgment, and Ms. Gilliard subsequently moved for leave to amend her complaint for a second time. For the reasons set forth below, the Court grants Ms. Gilliard's motion for leave to amend her complaint. Treating Ms. Gilliard's Second Amended Complaint as the operative complaint, the Court grants Defendants' motion to dismiss, except as to Counts One, Three, Four, and Eight. The Court also denies Defendants' alternative motion for summary judgment as premature.


         Plaintiff Stephanie Gilliard, an African-American woman, is a Senior Administrative Specialist (“SAS”) in the Administrative Management Section (“AMS”), Strategic Planning, Budget and Reporting Branch (“SPBR”), Division of Risk Management Supervision (“RMS”) at the FDIC. Am. Compl. ¶ 4, ECF No. 15. She has held that role-a grade level CG-13 position-since June 2011. Gilliard Aff. 14-050 at 1, ECF No. 18-1. During her tenure, she has filed at least four equal employment opportunity (“EEO”) complaints, the first in or around October 2011. Gilliard Aff. 14-050 at 7. This action focuses on the period from about March 2013 through December 2014, when, according to Ms. Gilliard, she suffered a host of adverse employment actions-the purported denial of several promotions, the loss of employment responsibilities, unfavorable performance reviews, and exposure to a hostile work environment-because of racial discrimination and/or as retaliation for her protected EEO activity.

         A. Non-Promotions

         1. Acting AMS Chief Position

         In March 2013, RMS Director Doreen Eberly issued an Expression of Interest (“EOI”) seeking an FDIC employee to serve as Acting Chief of AMS for a 120-day assignment. Def.'s Facts ¶¶ 6, 8, ECF No. 18; EOI, Ex. C, ECF No. 18-3. The EOI was open to permanent FDIC employees nationwide at the CG-15 and CM-1 grade levels. Def.'s Facts ¶ 7; EOI, Ex. C, ECF No. 18-3. Because Plaintiff is a CG-13 grade level employee, she was not eligible for the position. See Am. Compl. ¶ 11. FDIC employee Janice Butler was selected and served as Acting Chief-and, consequently, as Ms. Gilliard's first-line supervisor-from early May 2013 through early September 2013. Def.'s Facts ¶¶ 2, 9; Am. Compl. ¶ 16.

         Ms. Gilliard contends that, based on the position description, the Acting AMS Chief position could have been performed at the CG-13 grade level and she asserts that it should have been advertised as such. Am. Compl. ¶ 11. Ms. Gilliard argues that Phillip Mento, the Associate Director of SPBR, RMS and her second-level supervisor, decided to list the position at the CG-15 grade level to intentionally exclude her from the role because of her race and to provide Ms. Butler-who is a white woman-an advantage in competing for the soon-to-be-posted permanent AMS Chief position.[1] Am. Compl. ¶¶ 11-12; Pl.'s List of Material Facts in Dispute ¶ 2, ECF No. 27; Ex. D, Mento Aff. at 4, ECF No. 18-4; Def.'s Facts ¶ 7. Ms. Gilliard further claims that Ms. Butler was not qualified for the AMS Acting Chief position and that Ms. Butler was selected without proper approval from Human Resources. Am. Compl. ¶¶ 14-16.

         2. Permanent AMS Chief Position

         The permanent AMS Chief position was posted under Vacancy Announcement Number (“VA”) 2013-HQ-0838, and was open from August 19 through September 3, 2013. Def.'s Facts ¶ 11; Ex. F, ECF No. 18-6. Unlike its acting equivalent, the permanent AMS Chief position was listed at grade level CG-13. See Def.'s Facts ¶ 13; Ex. F. Ms. Gilliard applied for the position. See Am. Compl. ¶ 15. Like other candidates, she was interviewed by a three-member panel and asked the same three questions as all other interviewees. Def.'s Facts ¶¶ 14-16; Am. Compl. ¶ 15; see also Ex. G, Rudolph Aff. 13-055 at 1-2, ECF No. 18-7. According to Defendants, the interview panel recommended the three top-ranked candidates-none of whom were Ms. Gilliard-to Mr. Mento. Def.'s Facts ¶¶ 17-18; see also Ex. G, Rudolph Aff. 13-055 at 2. Of the recommended candidates, Mr. Mento selected Ms. Butler for the role. Def.'s Facts ¶¶ 18-19; see also Ex. G, Rudolph Aff. 13-055 at 3; Ex. H, Ex. I, Strickler Aff. 13-055 at 3, ECF No. 18-9. Ms. Gilliard argues that she was more qualified for the position than Ms. Butler given her educational background and experience and claims that Ms. Butler was selected for the permanent Chief position because of her alleged personal relationship with Mr. Mento. Am. Compl. ¶¶ 15-17. Ms. Gilliard also notes that Mr. Mento issued her a Letter of Reprimand- based on an incident that occurred months earlier-on the day that she interviewed for the permanent AMS Chief position, contending that he did so to reflect badly on her during the AMS Chief application review process. See Am. Compl. ¶ 11; Pl.'s Facts in Dispute ¶ 6, ECF No. 27.

         3. Senior Resource Management Specialist Position

         In or around May 2014, AMS Chief Butler hired Suzanne Jeansonne to be her assistant. Am. Compl. ¶ 63. Thereafter, Ms. Butler created the position of Senior Resource Management Specialist (“SRMS”); the new position purportedly entailed performance of nearly the same duties as Plaintiff's position. Am. Compl. ¶ 64. According to Ms. Gilliard, Ms. Butler permitted Ms. Jeansonne to assist in preparing the posting for the job, even though Ms. Butler was aware that Ms. Jeansonne planned to apply for it. Am. Compl. ¶¶ 65-66. Indeed, Ms. Gilliard asserts that Ms. Butler had trained Ms. Jeansonne in hopes of having her take on the SRMS position. See Am. Compl. ¶¶ 63-67. Ms. Gilliard claims that although a three-person selection panel interviewed candidates for the position, Ms. Butler manipulated the interview process to advantage Ms. Jeansonne and to disadvantage Ms. Gilliard. See Am. Compl. ¶ 68. For example, Ms. Gilliard contends that she was required to prepare a writing sample on the spot after the interview while under supervision while Ms. Jeansonne was purportedly permitted to prepare her writing sample after the interview and may have been provided early information about the writing prompt. Am. Compl. ¶¶ 66-69.

         4. Senior Human Resources Specialist (Corporate Employee Program and Student Program) Position

         Applications for the position of Senior Human Resources Specialist (Corporate Employee Program and Student Program) (“HR Specialist - CEP”), VA 2014-HQ-1103, were accepted from March 7, 2014 through March 21, 2014. Ex. Y, ECF No. 18-25. According to the vacancy announcement, the position required at least one year of specialized human resources experience, including experience writing staffing policies. Id. Ms. Gilliard applied for the job, but Human Resources Officer Monica Cain, who was charged with reviewing and evaluating applications, determined that Ms. Gilliard lacked experience writing staffing policies and therefore did not qualify for the position. See Def.'s Facts ¶¶ 50-59; Ex. AA, ECF No. 18-27; Ex. GG, Cain Aff. 15-006R at 4-5, ECF No. 18-33. Like other applicants who were believed to lack required experience, Ms. Gilliard was afforded an opportunity to submit supplemental information to show that she qualified for the position. See Def.'s Facts ¶¶ 54-57; see also Ex. EE, Email from Stephanie Gilliard to Bettie Smith (April 8, 2014), ECF No. 18-21; Ex. BB, Email from Margo Skinner to Stephanie A. Gilliard (April 11, 2014), ECF No. 18-28.

         After reviewing Ms. Gilliard's supplemental submissions, Ms. Cain still determined that Ms. Gilliard lacked the necessary qualifications. Def.'s Facts ¶¶ 56-59; Ex. FF at 2-4, ECF No. 18-32. Ms. Gilliard contends that she would have qualified for the position, if her private sector experience had been properly considered. She asserts that Ms. Cain “willfully obstructed” her right to compete for the position by refusing to look to her private sector work experience to satisfy the requirements. Am. Compl. ¶ 30. According to Ms. Gilliard, Ms. Cain did so as retaliation for Ms. Gilliard's past EEO activity. Am. Compl. ¶ 39.

         5. Senior Human Resources Specialist (Performance Management) Position

         On April 11, 2014-just days after Ms. Gilliard had been notified that she did not qualify for the HR Specialist - CEP position-Ms. Cain reportedly notified FDIC's Dallas Regional Office Human Resources Officer Candy Capper that the electronic job posting for VA 2014-1103 had been breached by an individual from the Dallas Regional Office. Def.'s Facts ¶ 60; Ex. HH, Capper Aff. at 2-3, ECF No. 18-34; Ex II, Cain Aff. at 2-3, ECF No. 18-35. Furthermore, the data system reflected that Ms. Gilliard's application materials may have been accessed. Def.'s Facts ¶ 61; Ex. II, Cain Aff. at 2-3. Ms. Cain expressed concern that someone may have tampered with Ms. Gilliard's file and asked Ms. Capper to investigate the incident. Def.'s Facts ¶ 62; Ex. II, Cain Aff. at 2. In particular, Ms. Cain explained to Ms. Capper that because Ms. Gilliard had filed EEO complaints, they needed to be “especially careful with her job applications.” Ex. II, Cain Aff. at 2; see also Ex. HH, Capper Aff. at 2.

         Shortly after Ms. Capper's conversation with Ms. Cain, Ms. Capper reportedly mentioned the system breach-including that it involved a job applicant who had a pending EEO complaint-at a staff meeting in the Dallas Office as a “teaching moment” for her staff. Ex. H, Capper Aff. at 3. Ms. Gilliard alleges that she received a phone call in late June or early July 2014, from an employee from the Dallas Regional Office who told her that during the meeting Ms. Capper had called Ms. Gilliard “a troublemaker who likes to file EEOC claims.” Am. Compl. ¶ 32; see also Ex. GGG at 1, ECF No. 18-59.

         About a week after Ms. Gilliard was notified of Ms. Capper's alleged comments, Ms. Gilliard contends that she was scheduled to interview by phone for the Senior Human Resources Specialist (Performance Management) (“HR Specialist - PM”) position. See Am. Compl. ¶ 33. On the day of her interview, Ms. Gilliard called into the interview conference line. After she introduced herself to the panel, Ms. Capper announced herself as one of the interview panelists. Ex. III, ECF. No 18-61; Am. Compl. ¶ 34. Ms. Gilliard refused to go forward with the interview, inferring that the other panel members had been “put on notice” about Ms. Capper's impression of Ms. Gilliard. Ms. Gilliard believed that she had been “effectively eliminated for true consideration.” Am. Compl. ¶¶ 34-35. Ms. Gilliard contends that Ms. Capper “purposely positioned herself to sit on the panel . . . to enable her to eliminate any possibility of the Plaintiff getting the said position.” Am. Compl. ¶ 36. Ms. Capper did so, Ms. Gilliard claims, in retaliation because Ms. Gilliard had engaged in EEO activity. Am. Compl. ¶ 39.

         B. Unfavorable Ratings

         Under the FDIC's “Performance Management and Recognition” (“PMR”) system, employees are rated on two axes (1) Job Standards and (2) Behavioral Standards. Def.'s Facts ¶ 23. On the Job Standards axis, employees are assigned a numerical rating from 1 (“Unacceptable”) to 5 (“Role Model”) in five different categories. Def.'s Facts ¶ 26; see Ex. JJ, ECF No. 18-36. The five scores are then averaged to arrive at the employee's “Summary Job Standards Rating.” See Ex. JJ. On the Behavioral Standards metric, employees are rated either “Below Target, ” “At Target, ” or “Above Target” in each of four categories. Def.'s Facts ¶¶ 28- 9; Ex. JJ.

         Ms. Gilliard contends that from December 2013 through December 2014, Mr. Mento and Chief Butler discriminated and/or retaliated against her when they gave her what she regards as unfairly negative evaluations. Ms. Gilliard first cites her December 2013 PMR on which Mr. Mento rated her 3 out of 5 (“Accomplished Practitioner”) in all but one Job Standards category, resulting in an average rating of 3.2. Am. Compl. ¶ 76; Def.'s Facts ¶¶ 34, 37; See Ex. L, ECF No. 18-12. Ms. Gilliard also complains about mid-year and year-end ratings that Ms. Butler assigned her in 2014. With regard to her 2014 mid-year review, Ms. Butler rated Ms. Gilliard a 3 in three different Job Standards categories-Demonstrates Technical Knowledge of Program Area, Applies Analytical Skills, and Provides Consultative Services. Ex. JJ at 7, ECF No. 18-36. In the remaining two Job Standards categories, Ms. Butler rated Ms. Gilliard a 2. Ex. JJ at 7. In that same evaluation, Ms. Butler rated Ms. Gilliard “At Target” for all four Behavioral Standards categories. Ex. JJ. Finally, Ms. Gilliard protests her 2014 year-end evaluation. On that PMR, Ms. Butler assigned Ms. Gilliard ratings of 3 in two Job Standards categories, and ratings of 2 in the other three categories, for a Summary Job Standards Rating of 2.4. Ex. JJ at 3. On the Behavioral Standards axes, Ms. Butler rated Ms. Gilliard “At Target” in three categories and “Below Target” in the remaining category. Ex. JJ at 3. Ms. Gilliard contends that Ms. Butler used pretextual reasons to justify the low ratings. Am. Compl. ¶¶ 20-23, 27.

         C. Other Allegations

         Ms. Gilliard's Amended Complaint describes a multitude of other purportedly discriminatory and/or retaliatory actions. Among them, Ms. Gilliard asserts that during the relevant period, she had some employment responsibilities taken away from her. Most notably, Ms. Gilliard contends that from about May 2012 through June 26, 2013, she had been tasked with providing administrative management support for RMS's Large Bank Supervision section (“Large Bank Branch”). Am. Compl. ¶ 73. She complains that Mr. Mento removed her from this assignment and transferred it to Angela Tarbet, a white woman. Id. Ms. Gilliard also claims that Ms. Butler subjected her work to “excessive edits” while not making similar edits on the work of white employees, and otherwise offered preferential treatment to white employees. See Am. Compl. ¶¶ 19, 25, 58, 79. Likewise, Ms. Gilliard contends that Ms. Butler worked to turn other managers at the FDIC against Ms. Gilliard. See Am. Compl. ¶¶ 49-54. In addition, Ms. Gilliard complains that Ms. Butler sent her a Letter of Counseling based on an argument between Ms. Gilliard and a co-worker, who is a white woman. Am. Compl. ¶¶ 21-22. Ms. Gilliard claims that Ms. Butler insufficiently investigated the dispute, failing to seek information from an African-American female witness and relying on accounts from the other participant in the dispute. Am. Compl. ¶ 21.

         Finally, Ms. Gilliard describes an incident that occurred on July 9, 2013. That morning, an FDIC Historian was scheduled to present to a group of RMS interns at a kiosk in the FDIC building lobby. See Letter of Reprimand (“LOR”), Ex. K at 1, ECF No. 18-11. Ms. Gilliard was assigned to inform the RMS interns about the presentation and to attend the presentation with the interns. Id. Ms. Butler and Mr. Mento claimed to have arrived in the lobby at the time the presentation was set to begin, and reported that they spotted neither Ms. Gilliard nor the interns. Id. Later, Mr. Mento and Ms. Butler met with Ms. Gilliard, who reportedly claimed that she was in the lobby at the designated presentation start time. Id.; see also Ex. B at 14, ECF No. 18-2; Ex. D, Mento Aff. at 2, ECF No. 18-4. Ms. Gilliard claims that Mr. Mento raised his voice and called her either a “liar” or a “goddamn liar.” Am. Compl. ¶ 75. Mr. Mento later issued Ms. Gilliard a Letter of Reprimand in relation to the incident. See LOR, Ex. K.

         E. Procedural History

         Plaintiff, who was proceeding pro se, filed this action against Defendants on October 7, 2016. See Compl., ECF No. 1. In the weeks after, Plaintiff filed an errata sheet, which sought to add claims not mentioned in her first complaint. See Second Errata, ECF No. 3. In February 2017, the Court ordered Ms. Gilliard to file one operative complaint setting out all of her claims against Defendants. Order, ECF No. 14. Shortly after, Ms. Gilliard filed her Amended Complaint. See Am. Compl., ECF No. 15. In response to Ms. Gilliard's Amended Complaint, on March 13, 2017, Defendants filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. Defs.' Mot., ECF No. 18. On April 6, 2017, counsel appeared on behalf of Ms. Gilliard. See Notice of Appearance, ECF No. 22. Days later, Ms. Gilliard's counsel requested leave to file a second amended complaint. Mot. for Leave to File Second Am. Compl. (“Mot. for Leave”), ECF No. 23. Presently before the Court are Plaintiff's Motion for Leave to File a Second Amended Complaint and Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment.


         Title VII of the Civil Rights Act of 1964 promises that “[a]ll personnel actions affecting employees . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). A separate section of the Act bars employers from “discriminat[ing] against” any employee or job applicant because that individual “has opposed any practice” made unlawful by Title VII or because that individual has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a).

         Direct evidence of discrimination or retaliation generally entitles the plaintiff to a jury trial. See Vatel v. All. of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011). In the absence of direct evidence of discrimination or retaliation, Title VII claims are usually analyzed under the three-step, burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, the plaintiff is first required to make out a prima facie case of disparate treatment. “To establish a prima facie case of discrimination, a claimant must show that ‘(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.'” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007). And, to establish a prima facie case of retaliation, the claimant must show that she (1) “engaged in statutorily protected activity; (2) that [s]he suffered a materially adverse action by h[er] employer; and (3) that a causal link connects the two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). Once the plaintiff establishes a prima facie case of discrimination or retaliation, the burden of production shifts to the defendant to supply “some legitimate, nondiscriminatory [and nonretaliatory] reason for the [action in question].” Wiley, 511 F.3d at 155. After the employer sets out a nondiscriminatory and nonretaliatory reason for the employment action, the burden shifts back to the employee to show that “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005).

         The Supreme Court has instructed that the McDonnell Douglas standard does not “transpose[] into a rigid pleading standard for discrimination cases.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). “[A]t the motion to dismiss stage, the district court cannot throw out a complaint even if the plaintiff did not plead the elements of a prima facie case.” Brown v. Sessoms, 774 F.3d 1020, 1023 (D.C. Cir. 2014); see also Jones v. Air Line Pilots Ass'n, Int'l, 642 F.3d 1100 (D.C. Cir. 2011) (“[A]n employment discrimination plaintiff is not required to plead every fact necessary to establish a prima facie case to survive a motion to dismiss.” (citing Swiekiewicz, 534 U.S. at 511)). This is because “before discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case.” Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006) (quoting Swierkiewicz, 534 U.S. at 512); cf. Americable Int'l v. Dep't of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (“[S]ummary judgment ordinarily is proper only after the plaintiff has been given adequate time for discovery.”). And, relatedly, “discovery may even uncover direct evidence of discrimination, thus entirely eliminating the need to prove a prima facie case.” Chappell-Johnson, 440 F.3d at 488-89. However, “the Court may explore the plaintiff's prima facie case at the dismissal stage to determine ‘whether the plaintiff can ever meet h[er] initial burden to establish a prima face case.” Tressler v. Nat'l R.R. Passenger Corp., 819 F.Supp.2d 1, 5 (D.D.C. 2011) (quoting Rattigan v. Gonazales, 503 F.Supp.2d 56, 72 (D.D.C. 2007)). That is, a court must determine whether, accepting the plaintiff's factual contentions as true and drawing all inferences in her favor, the plaintiff has alleged factual content in her complaint that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         IV. ANALYSIS

         A. Plaintiff's Motion for Leave to Amend Her Complaint is Granted

         The Court first considers Ms. Gilliard's request for leave to amend her complaint for a second time. Federal Rule of Civil Procedure 15(a) permits a plaintiff to amend her complaint once as a matter of course within 21 days of serving it or within 21 days of the filing of a responsive pleading. See Fed. R. Civ. P. 15(a)(1). Otherwise, she may amend her pleading only with the opposing party's written consent-which has been denied in this case-or the Court's leave. Fed.R.Civ.P. 15(a)(2). Rule 15 instructs courts to “freely give leave when justice so requires.” Id.; see also Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006) (explaining that Rule 15 “is to be construed liberally”). Importantly, “[t]he decision to grant or deny leave to amend . . . is vested in the sound discretion of the trial court.” Commodore-Mensah v. Delta Air Lines, Inc., 842 F.Supp.2d 50, 52 (D.D.C. 2012) (citing Doe v. McMillan, 566 F.2d 713, 720 (D.C. Cir. 1977)). Generous standard notwithstanding, courts may deny leave to amend for such reasons as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). ÔÇťAmendments that do not radically alter the scope and nature of the action . . . are ...

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