United States District Court, District of Columbia
STEPHANIE A. GILLIARD, Plaintiff,
MARTIN GRUENBERG, Chairman, Federal Deposit Insurance Corporation, et al., Defendants.
MEMORANDUM OPINION RE DOCUMENT NOS. 18, 23
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
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
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.
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.
Acting AMS Chief Position
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.
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. 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.
Permanent AMS Chief Position
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.
Senior Resource Management Specialist Position
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.
Senior Human Resources Specialist (Corporate Employee Program
and Student Program) Position
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.
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.
Senior Human Resources Specialist (Performance Management)
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.
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.
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.
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.
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. ¶¶
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.
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.
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 FRAMEWORK
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.
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.
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
Plaintiff's Motion for Leave to Amend Her Complaint is
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). “Amendments that
do not radically alter the scope and nature of the action . .
. are ...