Opinion
Civ. No. 00-2745 (TFH).
February 10, 2005
MEMORANDUM OPINION
Plaintiff filed this action alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act (ADEA) 29 U.S.C. § 621 et seq. Pending before the Court is Defendant's Motion for Summary Judgment. After reviewing the Defendant's Motion, Plaintiff's Opposition thereto, Defendant's Reply, Plaintiff's Sur-Reply, Defendant's Sur-Rebuttal, and the entire record in this case, the Court will grant Defendant's Motion for Summary Judgment and accordingly dismiss the case.
Plaintiff's Complaint alleges a violation of § 633(a), which discusses federal action superceding state action in ADEA claims. A reading of the statute shows that Plaintiff intended to allege a violation of § 633a, which refers to nondiscrimination on account of age in federal government employment. The Court will assume the mistake was a typographical error and proceed with the analysis under § 633a.
Defendant's motion initially requested dismissal of Plaintiff's claim that Defendant failed to negotiate in good faith with regard to Plaintiff's 1996 federal claim. Plaintiff withdraw that claim in light of the D.C. Circuit Court's Opinion in case 99-5412 affirming the District Court's grant of summary judgment. Pl.'s Resp. and Opp'n to Summ. J. at 3. Therefore, Defendant's motion to dismiss on that ground is moot.
I. BACKGROUND
Consuella Duckett ("Plaintiff") is an African-American female over the age of 40. At the time of the alleged acts, she was a Management Analyst, level GS-11/343, in the Office of Public and Indian Housing at the U.S. Department of Housing and Urban Development ("HUD" or "Defendant") headquarters in Washington, DC. See Compl. ¶ 3, Defendant's Statement of Material Facts as to Which There is No Genuine Issue ¶ 7. Plaintiff contacted the Office of Departmental Equal Employment Opportunity ("ODEEO") on July 9, 1998 to initiate informal counseling concerning discrimination and retaliation that Plaintiff beleived she suffered in relation to failed settlement negations with the government regarding her U.S. District Court for the District of Columbia case No. 96-0375. See Compl. ¶ 9, Defendant's Motion to Dismiss Certain Claims and for Partial Summary Judgment ("Def.'s Mot."), Ex. B. Duckett's final interview was conducted on August 4, 1998. Def.'s Mot. Ex. B. On August 5, 1998 the Equal Employment Opportunity ("EEO") counselor sent Plaintiff a letter informing her of her right to file a formal complaint. Id. Plaintiff states that she never received this letter. Pl.'s Sur-Reply to Def.'s Mot. to Dismiss Certain Claims and for Partial Summ. J. ("Pl.'s Sur-Reply"), Ex. A. Nonetheless, Plaintiff filed her formal "EEO Complaint of Discrimination in HUD" on August 24, 1998. Def.'s Mot., Ex. D. The complaint contains allegations not only relating to HUD's refusal to negotiate in good faith, but also a claim that Duckett was not promoted as was required by Supplement 22 of the National Supplement between HUD and the American Federation of Government Employees, AFL-CIO, National Council of HUD Locals 222 ("Supplement 22"). Id. Plaintiff filed this civil complaint in federal court in November 2000.
HUD contends that Duckett did not exhaust her administrative remedies because she failed to consult with an EEO counselor about the discrimination claims that she subsequently asserted in her complaint. Plaintiff alleges that she did discuss her discrimination claims with the EEO counselor, but the counselor failed to add them to the Counselor's Report as Duckett requested. Duckett Aff. ¶ 3 ( found at Pl.'s Resp. and Opp'n to Summ. J. ("Pl's Resp.")). The issue of Plaintiff's EEO counselor's identity and the authenticity of the EEO complaint, which lists Sylvia Sheridan as the counselor, is contested by the parties.
Defendant also claims that Supplement 22 did not apply to Duckett's position and was furthermore not in effect at the time of her alleged discrimination. Duckett claims that Supplement 22 applied to positions that were not specifically enumerated in its language. She also claims she did not discover the Supplement until July 9, 1998 and, therefore, did not have cause to know of the discrimination against her until that date. Furthermore, Plaintiff asserts that HUD's reasons for not promoting her were merely pretexual and were actually based on discriminatory grounds.
II. DISCUSSION
A. Standard of Review
Defendant has moved for summary judgment under Federal Rule of Civil Procedure 56. Under Rule 56, if the submissions to the Court demonstrate that there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.Proc. 56. Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To succeed on its motion, the moving party need not produce evidence to demonstrate the lack of material facts at issue, but may instead merely point to the lack of evidence before the court to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In considering summary judgment, the Court must view all of the evidence in the light most favorable to the non-moving party.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Furthermore, the D.C. Circuit has noted that because it is difficult to obtain proof in discrimination cases beyond the mere testimony of the plaintiff, the Court should view summary judgment motions in discrimination cases cautiously. Aka v. Washington Hosp. Center, 116 F.3d 876, 879-880 (D.C. Cir 1997).
Nevertheless, the non-moving party may not simply make conclusory allegations unsupported by specific evidence. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 902 (1990). "Although, as a rule, statements made by the party opposing a motion for summary judgment must be accepted as true for the purposes of ruling on that motion, some statements are so conclusory as to come within an exception to that rule." Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (failing to find sufficiently specific facts where plaintiff merely alleged that she was more qualified than others hired for the job).
B. Failure to Exhaust Administrative Remedy
Under Title VII, a person must first pursue certain areas of administrative relief before bringing an action in federal court.Love v. Pullman Co., 404 U.S. 522, 523 (1972). According to 29 C.F.R. § 1614.105, any person aggrieved by an alleged act of discrimination on the basis of race, sex or age must consult with an EEO counselor in order to potentially resolve the matter informally. 29 C.F.R. § 1614.105(a). Furthermore, contact with the counselor must be made within 45 days of the alleged discriminatory conduct. 29 C.F.R. § 1614.105(a)(1).
HUD argues that summary judgment is appropriate because Duckett did not discuss her discrimination claims regarding her lack of promotion with the EEO counselor and therefore did not properly exhaust her administrative remedies before filing her complaint. Defendant points to 29 C.F.R. § 1614.105(b)(1), which states that "only the claims raised in precomplaint counseling (or issues or claims like or related to issues or claims raised in pre-complaint counseling) may be alleged in a subsequent complaint filed with the agency." HUD asserts that Duckett only discussed matters related to HUD's failure to negotiate and settle in good faith her 1996 federal case with the EEO counselor and mentioned nothing about non-promotion discrimination related to Supplement 22. The Defendant submitted a copy of the Counselor's Report in support of this claim. Def.'s Mot., Ex. B.
Plaintiff argues that she did indeed discuss the non-promotion claim during the informal counseling stage. She states that she discussed the matter with Donald Johnson, who was not her counselor but was in charge of assigning her to a collateral duty counselor during the informal counseling process. Pl.'s Sur-Reply, Ex. A. Duckett contends that she told Mr. Johnson of her non-promotion claim, Mr. Johnson was not at all helpful to Plaintiff in her endeavors to resolve her claim, Mr. Johnson did not assign her to Sylvia Sheridan (as the Defendant alleges), and her formal EEO complaint was falsified. Id. In support of her contention that the EEO complaint was falsified, Duckett claims that "it is not her practice" to put the name of her counselor on her complaints. Pl's Sur-Reply at 3. In corroboration of that claim, she has submitted one previously filed EEO complaint in which she left the counselor's name box empty. See Pl.'s Sur-Reply, Ex. B.
To refute Plaintiff's claims, HUD has submitted a copy of the Counselor's Report which makes no mention of Supplement 22 or discrimination relating to non-promotion. See Def.'s Mot., Ex. B. HUD responds to Plaintiff's allegations of falsification by submitting four previously filed EEO complaints submitted by Duckett in which the name of her counselor was listed. See Def.'s Sur-Reply, Ex. 4. Defendant also accurately notes that the name which Plaintiff alleges was placed on the document after it left her hands appears to be of the same font, size, and on the same slightly downward-sloping angle as all of the words which Plaintiff admits to typing on the form. Def. Sur-Reply at 8. Although the Court has grave doubts as to the veracity of Duckett's claim that her Counselor's report was falsified, Plaintiff has shown that there is a factual dispute regarding whether she fulfilled her duty to discuss her concerns with an EEO counselor.
Defendant has also taken issue with the timing of Plaintiff's complaint. Defendant asserts, and Plaintiff does not dispute, that Supplement 22 was only in effect until March 30, 1998. For Duckett to succeed on the issue of discriminatory application of Supplement 22, the alleged discrimination would have had to occur during the period that Supplement 22 was in effect. Thus, to meet the timing requirement of 29 C.F.R. § 1614.105, Plaintiff would have had to assert her claim of discrimination at the latest within 45 days of March 30, 1998. She failed to meet this requirement. 29 C.F.R. § 1614.105 provides for an extension for cases where "he or she did not know and reasonably should not have been known [sic] that the discriminatory matter or personnel action occurred." Plaintiff argues that her deadline should be extended pursuant to this exception because she had no way of knowing about Supplement 22 until a conversation with a fellow employee on July 9, 1998. She claims she was further inhibited because Supplement 22 was never distributed to employees as was promised by Management. Pl.'s Sur-Reply, Ex. A. Because the Court has determined that Duckett has failed to establish a claim under Title VII or the ADEA, it is unnecessary for the Court to consider whether she should be eligible for an equitable tolling of the deadline under 29 C.F.R. § 1614.105.
C. Title VII Claim
Plaintiff claims discrimination on the grounds of race, gender, and reprisal, all of which fall within the scope of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. To succeed on a claim of discrimination under Title VII, a plaintiff must first establish a prima facie case of discrimination.McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its personnel decision. Id. Should the defendant carry this burden of production, the plaintiff must then demonstrate by a preponderance of the evidence that the legitimate reasons offered by the defendant were not the true reasons for their decision, but were merely a pretext for discrimination. Id. at 804; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
1. Unlawful Discrimination on the Basis of Gender or Race
To establish a prima facie case of unlawful discrimination on the basis of gender or race, Plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was qualified for the position at the time she was eligible for the promotion; (3) she was not promoted; and (4) other employees similarly situated who were not members of her protected class received promotions.Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981) (adapting the prima facie case requirements of McDonnell Douglas to apply to a discriminatory refusal to promote case); Woodruff v. Dimario, 164 F. Supp. 2d 1, 5 (D.D.C. 2001). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Plaintiff failed to submit sufficient evidence to establish her prima facie case. While she is a member of a protected class, she has not provided evidence that would enable a reasonable jury to find in her favor on the second element: that she qualified or eligible for a promotion under Supplement 22.
There is no language in Supplement 22 to suggest that a promotion without competition should have been granted to someone in Duckett's position. Paragraph 38 of the Supplement sets forth the positions that had promotion potential to the GS-12 level without competition. Def. Mot., Ex. C (1) ("The positions of Public Housing Revitalization Specialist, General Engineer, Financial Analyst and Program Analyst as designed pursuant to the reorganization have promotion potential to the GS-12 level without competition."). Plaintiff's position at the time of the alleged discrimination, Management Analyst, is not listed in this provision. Id. A plain reading of the text of Supplement 22 establishes that Duckett was not eligible for the promotion.
Nonetheless, Plaintiff claims she was eligible for a promotion under Supplement 22 because other employees with positions not enumerated in Supplement 22 received promotions without competition under the Supplement. Plaintiff relies on the declarations of three employees who were also in positions not enumerated in Supplement 22 but were allegedly promoted pursuant to Supplement 22. Pl.'s Sur-Reply, Ex. G, H, I, J and K. These submissions are insufficent to assist Plaintiff in carrying her burden.
One employee, Victor Oluwole, gives no explanation for why he why he was promoted. Pl.'s Sur-Reply, Ex. H. The other two employees, Dorothy Mitchell and Dorothy Pleasant, admit that they were told they were being promoted because of accretion of duties. Pl.'s Sur-Reply, Ex. I, J. Nonetheless, both Ms. Mitchell and Ms. Pleasant claim they were actually promoted pursuant to Supplement 22. Pl.'s Sur-Reply, Ex. G, K. Neither of the employees assert a factual basis for their belief. Id. "Accepting . . . conclusory allegations as true . . . would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial." Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Ms. Pleasant's claim that "I personally know that per Supplement 22, all other Office of Public Housing employees were promoted or should have been promoted without competition pursuant to Supplement 22. . . ." is not useful without an explanation of the factual basis for her belief. Pl.'s Sur-Reply, Ex. K. Ms. Pleasant provided no facts nor any professional authority to lend credibility to her assertions that she was promoted pursuant to Supplement 22. Similarly, Ms. Mitchell states when referring to her own promotion that, "I have since learned that the promotion was because of Supplement 22 . . ." yet she offers no reasoning or factual allegations to establish how or from whom she learned this information. Pl.'s Sur-Reply, Ex. G. As such, Plaintiff's evidence that she was qualified and eligible for the promotion despite the fact that her position was not listed in Supplement 22 falls to the level of mere conclusory allegations. Because Duckett has failed to meet her burden of demonstrating the second element of her prima facie case of unlawful discrimination on the basis of gender or race, the Court holds that summary judgement is appropriate on her claim of discrimination on the grounds of gender or racial discrimination.
2. Unlawful Discrimination Based on Retaliatory Motives
In order to establish a prima facie case of retaliation, an employee must establish that: (1) she engaged in a statutorily protected activity, (2) she suffered an adverse employment action subsequent to her participation, and (3) there was a causal link between the adverse action and the protected activity. Gregg v. Hay-Adams Hotel, 942 F.Supp. 1, 8 (D.D.C. 1996) (citing Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 708 (7th Cir. 1995)). Again, Plaintiff fails to establish a prima facie case. The Court will assume for purposes of summary judgement that Plaintiff engaged in a protected activity and suffered an adverse employment. It is clear, however, that Plaintiff can not establish a causal link between the two actions.
To prove a causal link between an employer's adverse action and an employee's protected activity the employee is required to show that the employer would not have taken the adverse action "but for" the employee's engagement in the protected activity. See Woodruff v. Dimario, 164 F. Supp. 2d 1, 9 (D.D.C. 2001) (citingGregg v. Hay-Adams Hotel, 942 F. Supp 1, 8 (D.D.C. 1996)). Plaintiff has failed to provide the Court with any evidence whatsoever that "but for" her previous EEO complaints, she would have received the promotion pursuant to Supplement 22.
Even if Plaintiff had met her prima facie burden, the Defendant articulated a legitimate, non-discriminatory explanation for the non-promotion: Supplement 22 did not apply to the Plaintiff. As explained above, a plain reading of the text of the Supplement establishes that Plaintiff was not eligible for a promotion under Supplement 22. If the employer articulates a legitimate, non-discriminatory reason for its adverse employment action, the burden once again shifts to the employee asserting the discrimination or retaliation claim to provide evidence that the employer's asserted rationale is merely pretextual. McDonnell Douglas, 411 U.S. at 804; Texas Dep't of Cmty. Affairs, 450 U.S. at 804. Plaintiff claims that the promotion under Supplement 22 of other HUD employees not enumerated in Supplement 22 proves that the Defendant's legitimate reasons for not promoting her are pretextual. As previously discussed, Plaintiff has offered only conclusory allegations not supported by evidence or factual allegations to establish that non-enumerated employees were promoted under Supplement 22. Plaintiff must offer evidence beyond mere speculations and allegations when refuting Defendant's legitimate and non-discriminatory reasons for its decisions. See Brown v. Brody, 199 F.3d 446, 459 (D.C. Cir. 1999). This Court, therefore, will grant summary judgement to Defendant on Plaintiff's claim of unlawful discrimination based on retaliatory motives
D. ADEA Claim
The ADEA prohibits employers from engaging in discrimination against a person "because of such individual's age," 29 U.S.C. § 623(a), but limits the class of persons protected by the statute to those persons 40 years of age and older. Id. at § 631(a). To succeed on an ADEA claim, a plaintiff "must demonstrate facts sufficient to create a reasonable inference that age discrimination was a `determining factor' in the employment decision." Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C. Cir. 1982).
To establish a prima facie case under the ADEA in a non-promotion case, plaintiff must show that: (1) she was over 40 at the time of the alleged discrimination; (2) she was qualified for the position; (3) she was not promoted; and (4) she was disadvantaged in favor of a younger person. Forman v. Small, 271 F.3d 285, 292 (D.C. Cir. 2001). Plaintiff has not met her prima facie burden. While she was over 40 at the time of the alleged discrimination, Plaintiff fails to establish the second element of the prima facie case. As explained in detail above, Plaintiff has presented no credible evidence that she was qualified for the promotion under Supplement 22. For that reason, the Plaintiff fails on her ADEA claim.