Morris v. U.S. Department of Justice ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KANDI MORRIS,
Plaintiff,
v.
Civil Action No. 17-198 (RDM)
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Kandi Morris, proceeding pro se, brings this action against her former employer,
the U.S. Department of Justice, for alleged violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). Morris
claims that she was terminated from her position as a FOIA Specialist “without just cause” and
that, while she was employed at the Department, she “did not receive pay commensurate with
[her] education and experience” and was paid “at a rate lower than [her] male counterparts.”
Dkt. 1 at 1. The Department moves to dismiss, or in the alternative, for summary judgment, on
two grounds: first, as a procedural matter, Morris failed to exhaust her administrative Title VII
remedies in a timely manner, and, second, as a substantive matter, the uncontroverted evidence
demonstrates that she was paid at the same rate as her male counterparts. The Court agrees on
both counts and will, accordingly, grant summary judgment in favor of the Department.
I. BACKGROUND
For the purpose of evaluating the Department’s motion for summary judgment, the
following uncontroverted facts are construed in the light most favorable to Morris as the
nonmoving party. See Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006).
Morris, who is an African-American woman, worked at the Department of Justice as a
FOIA Specialist with the Office of Information Policy (“OIP”) for approximately seven months,
until she was terminated in early 2011. Dkt. 10 at 3–4; Dkt. 10-2 at 5. She was hired under the
Federal Career Intern Program (“FCIP”), which “allowed agencies to appoint qualified
individuals in entry level positions in the excepted services and, upon successful completion of a
two[-]year internship period, convert those . . . appointments to career or career-conditional
positions in the competitive service.” Dkt. 9 at 3 (Def.’s SUMF ¶ 2); Dkt. 13 at 5 (Pl.’s SUMF
¶ 36). FCIP employees were eligible for a grade increase after one year of service. Dkt. 10-1 at
128 (Pustay Interrogatory).
When Morris was offered the FOIA Specialist position under the FCIP, she objected to
the starting salary, explaining that the job advertisement stated that the “[s]alary [would] be
determined [based on] educational level, GPA, and work experience,” Dkt. 13 at 2 (Pl.’s SUMF
¶ 2); Dkt. 10-1 at 253, and that, based on those measures, she was entitled to a higher salary, Dkt.
13 at 2 (Pl.’s SUMF ¶¶ 3, 5). As Morris concedes, id. (Pl.’s SUMF ¶ 3), her OIP contact, Laurie
Day, responded to this complaint by explaining that “all FOIA Specialists were started at the
same grade regardless of educational level, GPA[,] or work experience.” Id. (Pl.’s SUMF ¶ 3).
Day, moreover, later confirmed under the penalty of perjury that “[a]ll candidates hired under the
[FCIP] in the Office of Information Policy were hired at the GS-7 level.” Dkt. 10-1 at 148 (Day
Interrogatory). As Day explained, “when OIP first began to use the FCIP, . . . the Justice
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Management Division . . . advised that all candidates had to start at either the GS-5 or GS-7 level
because the FCIP required that individuals show progressive advancement on the FOIA
Specialist career ladder [which ran from GS-5 to GS-11] in order to successfully complete the
program and be converted to a competitive service appointment.” Id. at 149. Although Morris
contends that by slotting her at the GS-7 level OIP “disregarded [her] educational level, GPA[,]
[and] work experience,” Dkt. 13 at 2 (Pl.’s SUMF ¶ 5), she does not controvert the Department’s
assertion, Dkt. 9 at 4 (Def.’s SUMF ¶ 3), or the uniform testimony in the administrative process,
that all of the FOIA Specialists that OIP hired under the FCIP “were appointed at the GS-7, Step
1 level,” id.; see also Dkt. 10-1 at 124 (Pustay Interrogatory); id. at 148 (Day Interrogatory); id.
at 136 (Mallon Interrogatory); id. at 165 (Douglas Affidavit); id. at 179 (Souser Affidavit); id. at
193 (Smith Affidavit); id. at 204 (Logan Affidavit) (“To my knowledge, if I can recall, I think
it’s either a 5 or a 7.”). Morris attests that, despite the GS-7 pay grade, she accepted the position
on the understanding that “after one year, the pay would automatically increase to a GS-9 [level]
and[,] after the second year, it would go to a GS-11 [level].” Dkt. 10-1 at 100 (Morris Affidavit).
The Department, in turn, does not dispute that these grade increases were “available,” but asserts
that they were not “automatic” and, instead, were “based off of performance.” Dkt. 10-1 at 166
(Hibbard Affidavit).
Morris never reached the one-year mark, however. According to Morris, the FCIP was
terminated on December 27, 2010, and those serving “under the FCIP as of March 1, 2011,”
were “converted to the competitive service.” Dkt. 13 at 2–3 (Pl.’s SUMF ¶¶ 7–8); see also Exec.
Order No. 13562, 75 Fed. Reg. 82,585 (Dec. 27, 2010). On January 26, 2011, between the
termination of the FCIP and the March 1 conversion date, Morris was told by OIP’s Chief of
Staff, Carmen Mallon, that she “was being terminated from the Department of Justice for budget
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reasons.” Id. at 3 (Pl.’s SUMF ¶ 14). Morris asked “for a written statement [of] the reason for
[her] termination,” but OIP leadership declined that request and, instead, offered Morris “the
option” of resigning. Id. (Pl.’s SUMF ¶ 16). Morris, in turn, declined and contacted the Justice
Management Division (“JMD”) “to report the unfair treatment and to ask why her reasons for
termination would not be committed to writing.” Id. at 3–4 (Pl.’s SUMF ¶ 19). Although JMD
did not respond to that request, she was eventually presented with a “one-page document” that
was purportedly from JMD, which “stated that [Morris] was being terminated for poor
performance.” Id. at 4 (Pl.’s SUMF ¶¶ 26, 29); see Dkt. 10-1 at 46. Although Morris’s SF-50,
notice of personnel action, states that she was terminated because her FCIP term had come to an
end, Dkt. 10-1 at 48, Mallon purportedly placed the one-page document, which cited poor
performance, in Morris’s file, Dkt. 13 at 5 (Pl.’s SUMF ¶ 32). The actual one-page document,
which the Department produced in support of its motion, reflects aspects of both accounts. It
asserts that OIP management declined to convert Morris’s FCIP position to a position in the
competitive service because she had “not demonstrated performance of the quality expected for
employees in the FCIP program.” Dkt. 10-1 at 46. In any event, all agree that Morris was
terminated on February 10 or 11, 2011. Dkt. 13 at 4 (Pl.’s SUMF ¶ 31); Dkt. 9 at 4 (Def.’s
SUMF ¶ 5).
On February 8, 2013, nearly two years after her termination, Morris filed an EEO
complaint with the Department, alleging that she was discriminated against based on her sex and
race because (1) she was paid “at a rate at or below similarly situated white males with less
education,” and (2) she was told that she was terminated because the FCIP program came to an
end, but “two white women were hired” by OIP. Dkt 10-1 at 26. Morris contends that she did
not file a complaint until earlier because it was not until September 14, 2012, that she “received
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information that white males at OIP were being paid more than black females with more
education.” Id. at 39; see also id. at 304. She asserts that, on that date, she “checked a website
with publicly available salary information,” id. at 39, and also asserts that a “former co-worker
. . . alerted [her] to the website” and to the fact that the co-worker had “filed her own disparate
pay claim, among[] other violations, against OIP and [had] prevailed,” Dkt. 13 at 5 (Pl.’s SUMF
¶ 39).
The Department’s EEO staff agreed to investigate Morris’s disparate pay claim, but
dismissed her termination claim on the ground that it was untimely. As the EEO staff explained,
the record indicated that Morris was informed by OIP management at the time she was
terminated that she had a “right to appeal their decision through the Department’s Equal
Employment Opportunity . . . Complaint process and [informed] of the time for contacting an
EEO Counselor.” Dkt. 10-1 at 71. Despite this notice, however, Morris did not “initially
contact[] the [EEO] Staff” until “October 25, 2012, 594 days after the date of the alleged harm,”
well beyond the 45-day period specified by the governing federal regulation, 29 C.F.R.
§ 1614.105(a)(1). Dkt. 10-1 at 70. Although Morris argued there—as she argues here—that she
did not become aware of the pay disparity until September 14, 2012, the EEO staff concluded
that this revelation failed to explain Morris’s delay in initiating the counseling process with
respect to her separate termination claim. Id. at 70–71. The EEO staff did agree, however, to
initiate an investigation regarding the disparate pay issue and to consider her other contentions
“as background material to the extent it [was] relevant to” that claim. Id. at 72.
In investigating Morris’s disparate pay claim, the EEO staff interviewed multiple
witnesses and collected substantial information. See Dkt. 10-1. After a counseling period,
Morris filed a formal administrative complaint and, on August 31, 2013, she requested that her
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claim be heard by an Administrative Judge (“AJ”). Dkt. 10-2 at 4. As a discovery sanction, the
AJ dismissed Morris’s hearing request, but he did not dismiss her underlying claims and, instead,
remanded the case to the Department for issuance of a decision. Id. After that decision was
entered, the matter was referred to the Department’s Complaint Adjudication Office, which
issued a “final agency decision” on December 9, 2014. Id. at 4–19. That office agreed with the
EEO staff and AJ that Morris’s termination claim was untimely but that her disparate pay claim
was timely. Id. at 5. Considering that claim under both Title VII and the Equal Pay Act, the
Complaint Adjudication Office found that all of the relevant witnesses testified “that all FCIP
FOIA Specialists began as GS-7s” and that the other evidence confirmed their testimony. Id. at
17. Morris, moreover, “was fired from her position before she had served a full year with OIP,
so she could not have been promoted [pursuant to the governing] FCIP[] policies.” Id. Although
white and male FCIP FOIA Specialists were eventually promoted, they attained the required
tenure. Id. Accordingly, the Complaint Adjudication Office concluded that “the record contains
no evidence of disparate . . . pay.” Id.
Morris then exercised her right to appeal that decision to the Equal Employment
Opportunity Commission (“EEOC”), which (1) noted that Morris “d[id] not challenge the
Agency’s dismissal of [her] claim” that “the Agency discriminated against her on the bases of
race . . . and sex” when she “was fired from her FCIP position” and (2) agreed with the
Department’s Complaint Adjudication Office that Morris “failed to establish that the Agency
subjected her to discrimination with regard to pay” and that “[t]he record shows that [Morris] did
equal work for equal pay.” Morris v. Lynch, EEOC Decision No. 0120150908, 2016 WL
2864997, at *1, 3, 5 (May 6, 2016). With respect to the latter claim, the EEOC stressed that
Morris failed to identify a single colleague who had been hired as a FOIA Specialist under the
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FCIP above a starting grade of GS-7 and that Morris’s white and male colleagues in the FCIP
program did not reach a higher pay grade until after they had at least one year’s experience. Id.
at *5.
On January 31, 2017, Morris commenced this suit. See Dkt. 1. Her single-page
complaint contains little substance, alleging only that she “was terminated from the FCIP and the
U.S. Department of Justice without just cause” and that, “[w]hile employed[,] [she] did not
receive pay commensurate with [her] education and experience and was paid at a rate lower than
male counterparts in violation of the Equal Pay Act and Title VII.” Dkt. 1 at 1. In lieu of filing
an answer, the Department has moved to dismiss the complaint or, in the alternative, for
summary judgment, arguing that Morris failed to timely exhaust her administrative remedies or
that her claims fail on the merits. See Dkt. 9. For the reasons explained below, the Court agrees
and will grant summary judgment in favor of the Department.
II. LEGAL STANDARD
The Department moves to dismiss and, in the alternative, for summary judgment. Both
of the defenses it raises, however, are best considered under Federal Rule of Civil Procedure 56.
Under that standard, the moving party is entitled to summary judgment if it can “show[] that
there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). When, as here, the plaintiff bears the ultimate burden of proof,
but the defendant has moved for summary judgment, the defendant “bears the initial
responsibility” of “identifying those portions” of the record that “demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is
“material” if it could affect the substantive outcome of the litigation. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if the evidence is such that a
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reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S.
372, 380 (2007). The Court, moreover, must view the evidence in the light most favorable to the
nonmoving party and must draw all reasonable inferences in that party’s favor. See Talavera v.
Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
If the moving party carries this initial burden, the burden then shifts to the nonmoving
party to show that sufficient evidence exists for a reasonable jury to find in the nonmoving
party’s favor with respect to the “element[s] essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Id. (internal quotation marks and citations omitted).
The nonmoving party’s opposition, accordingly, must consist of more than unsupported
allegations or denials and must be supported by affidavits, declarations, or other competent
evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed. R.
Civ. P. 56(c); Celotex, 477 U.S. at 324. That is, once the moving party carries its initial burden
on summary judgment, the nonmoving party must provide evidence that would permit a
reasonable jury to find in its favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir.
1987). If the nonmoving party’s evidence is “merely colorable” or “not significantly probative,”
the Court should grant summary judgment. Liberty Lobby, 477 U.S. at 249–50.
Because Morris is proceeding pro se, the Court will “liberally construe[]” the complaint
and response and hold them to “less stringent standards than formal pleadings drafted by
lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
III. ANALYSIS
A. Termination Claim
Morris fails to identify the statutory basis for her wrongful termination claim, merely
averring that she “was terminated from the FCIP and the U.S. Department of Justice without just
cause.” Dkt. 1 at 1. Reviewing her complaint in light of the administrative record, however, the
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Court concludes that her termination claim is best understood as premised on Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. The Department concurs with this
understanding of the claim, but argues that the claim must be dismissed for failure to timely
exhaust administrative remedies. Dkt. 9 at 13–14. The Court agrees.
Before bringing a claim under Title VII, “federal employees must administratively
exhaust their claims.” Coleman v. Duke, 867 F.3d 204, 206 (D.C. Cir. 2017). “To start the
administrative process, an employee must contact an [EEO] [c]ounselor at [her] employing
agency with 45 days of the alleged discriminatory conduct.” Id. (citing 29 C.F.R.
§ 1614.105(a)(1)). The agency’s EEO staff then investigates the claim and, if the claim is not
resolved through the counseling process, the counselor must so notify the employee, who then
has fifteen days to file a formal complaint. See 29 C.F.R. § 1614.105. Although not a
jurisdictional bar to suit, see Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011);
Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164, 174 (D.D.C. 2016), courts must
generally dismiss a Title VII claim brought against federal agencies if the employee failed to
“‘initiate contact’ with an EEO Counselor in her agency ‘within 45 days of the date of the matter
alleged to be discriminatory.’” Steele v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008) (quoting 29
C.F.R. § 1614.105(a)(1)). Tolling is appropriate, however, when the plaintiff “did not know and
reasonably should not have . . . known that the discriminatory matter or personnel action
occurred.” 29 C.F.R. § 1614.105(a)(2); see also Loe v. Heckler, 768 F.2d 409, 418–19 (D.C. Cir.
1985). “In other words, [an action is barred for failure to exhaust] if the plaintiff knew, or should
have known, about the alleged discriminatory action 45 days prior to” initiating the EEO process
but failed to do so. Johnson v. Gonzales, 479 F. Supp. 2d 55, 59 (D.D.C. 2007) (quoting Aceto v.
England, 328 F. Supp. 2d 1, 7 (D.D.C. 2004)). But, the 45-day clock does not “start[] to run”
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until the plaintiff has reason to believe “that [s]he has been the victim of discrimination.” Id.;
see also Noisette v. Geithner, 693 F. Supp. 2d 60, 66 (D.D.C. 2010).
This rule is dispositive of Morris’s termination claim. She was terminated on February
10 or 11, 2011, Dkt. 13 at 4 (Pl.’s SUMF ¶ 31); Dkt. 9 at 4 (Def.’s SUMF ¶ 5), and did not
contact the Department’s EEO counselor until October 25, 2012, Dkt. 10-1 at 31—over a year
and a half later. Morris’s principal response—which she offered unsuccessfully in the
administrative process and renews now—is that she “filed a timely complaint with” the
Department’s EEO staff “upon learning of the disparate pay.” Dkt. 13 at 5 (Pl.’s SUMF ¶ 39).
She further explains that a “former co-worker . . . alerted [her] to the website displaying salary
information” and that the co-worker had “filed her own disparate pay claim . . . against OIP and
[had] prevailed.” Id. That account might explain why Morris waited so long to raise her
disparate pay issue, but it says nothing about her separate claim that she was terminated based on
her race or sex. “Discrete acts such as termination, failure to promote, denial of transfer, or
refusal to hire . . . [e]ach . . . constitute[] a separate actionable ‘unlawful employment practice,’”
and a plaintiff “can only file a charge to cover discrete acts that ‘occurred’ within the appropriate
time period.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). The same is
true with respect to tolling the time limit for the exhaustion of administrative remedies; absent
sufficient factual overlap, the tolling of the EEO process for one discrete claim does not toll the
process for other claims. See Burkes v. Holder, 953 F. Supp. 2d 167, 174–75 (D.D.C. 2013)
(“[A] Title VII plaintiff must timely exhaust administrative remedies for each discrete act
alleged.” (citing Morgan, 536 U.S. at 110)). Because Morris offers no reason to conclude that
her termination and disparate pay claims turn on overlapping or interrelated facts, the premise
10
that she learned about pay disparities many months after she was terminated does not save her
termination claim.
Morris also suggests that her efforts to initiate the EEO counseling process were
frustrated because she “contacted JMD” prior to her departure from the Department, but “none of
her calls or emails were returned until after her termination was effective.” Dkt. 13 at 5 (Pl.’s
SUMF ¶ 38). Had JMD taken more than 45 days to respond, and had Morris sought—
unsuccessfully—to contact an EEO counselor to raise her allegation that she was terminated
based on her race and/or sex, that contention would carry significant weight. But that is not what
she says; rather, she merely asserts that JMD did not return her messages until after she was
terminated.
Finally, Morris asserts that she did “dispute[] the reason for [her] termination” with “both
JMD and the Office of Special Counsel.” Id. She does not allege, however, that she ever
suggested that the real reasons for her termination had to do with her race and/or sex. From what
the Court can discern, it appears that Morris’s principal objection was that she was first told that
she was being terminated for budgetary reasons, only to be told later that her termination was for
reasons of performance. See Dkt. 13 at 3–4 (Pl.’s SUMF ¶¶ 14, 29). That discrepancy is
seemingly answered by the letter that she declined to sign, which explained that she was being
terminated because the program was coming to an end and her performance was not sufficient to
justify the conversion of her internship to a position in the competitive service. Dkt. 10-1 at 46.
For present purposes, however, the cogency of that explanation is not at issue. Instead, the
question is merely whether Morris raised a discrimination claim with an EEO counselor during
the 45-day window following her termination, and there is no evidence that she did.
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Accordingly, because Morris failed to initiate contact with an EEO counselor within 45
days of her termination, and because she has not identified any reason why she could not have
initiated that process in a timely manner, her termination claim must be dismissed for failure to
timely exhaust administrative remedies.
B. Disparate Pay Claim
Morris also alleges that, “[w]hile employed” by the Department, she “did not receive pay
commensurate with [her] education and experience and was paid at a rate lower than male
counterparts in violation of the Equal Pay Act and Title VII.” Dkt. 1 at 1. “In order to make out
a case under the [Equal Pay] Act, the [plaintiff] must show that [her] employer pays different
wages to employees of opposite sexes ‘for equal work on jobs[,] the performance of which
requires equal skill, effort, and responsibility, and which are performed under similar working
conditions.’” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974) (quoting 29 U.S.C.
§ 206(d)(1)). “Once [the] plaintiff[] meet[s] [her] burden, the burden then shifts to defendants to
show that the pay differential was justified under one of the exceptions to the Act.” Thompson v.
Sawyer, 678 F.2d 257, 271 (D.C. Cir. 1982) (citation omitted). Those exceptions cover pay
differentials that are justified by “(i) a seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or (iv) . . . any other factor other than
sex,” 29 U.S.C. § 206(d)(1). A plaintiff may also seek relief for a pay disparity under Title VII,
so long as she satisfies the distinct requirements of the statute and does not seek to recover twice
for the same wrong. See Goodrich v. Int’l Broth. of Elec. Workers, AFL-CIO, 712 F.2d 1488,
1490 n.2 (D.C. Cir. 1983). Under the Bennett Amendment to Title VII, these requirements
include the four affirmative defenses applicable under the Equal Pay Act, but they do not include
the “equal work” requirement. County of Washington v. Gunther, 452 U.S. 161, 167–81 (1981).
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As in any Title VII case, the plaintiff must show that her employer discriminated against her
“with respect to [her] compensation” or other “terms, conditions, or privileges of employment,
because of [her] race . . . or sex.” 42 U.S.C. § 2000e-2(a)(1); see also id. at § 2000e-16.
Whether considered under the Equal Pay Act or Title VII, Morris’s disparate pay claim
fails because the uncontroverted evidence shows that all FOIA Specialists employed by OIP
pursuant to the FCIP were paid precisely the same amount as she was during the relevant time
period. As required to meet its burden at summary judgment, the Department has come forward
with competent evidence demonstrating that “[d]uring the time the FCIP was available as an
appointing authority, OIP hired eight FOIA Specialists using the FCIP, . . . and all of these FOIA
Specialists”—including Morris—“were appointed at the GS-7, Step 1 level.” Dkt. 9 at 4 (Def.’s
SUMF ¶ 3). The Director of OIP testified, for example, that “[a]ll FCIP employees at OIP, male
and female, entered at the GS 7, Step 1 level.” Dkt. 10-1 at 129 (Pustay Interrogatory). The
OIP Chief of Staff testified that “OIP hired all FCIP candidates at [the GS-7] pay grade.” Id. at
140 (Mallon Interrogatory). OIP’s Chief of the Initial Request Staff testified that “[a]ll
candidates hired under the [FCIP] in the Office of Information Policy were hired at the GS-7
level.” Id. at 148 (Day Interrogatory). The Deputy Chief of the Initial Request Staff concurred
that all FOIA Specialists hired under the FCIP started at the GS-7 pay grade. Id. at 165 (Hibbard
Affidavit). A Supervisory Human Resource Specialist from JMD shared this understanding, id.
at 179 (Souser Affidavit), as did another Human Resources Specialist, id. at 193 (Smith
Affidavit). And, a Senior FOIA Specialist at OIP recalled that all FOIA Specialists hired by OIP
under the FCIP started at “either a 5 or a 7” GS level. Id. at 204 (Logan Affidavit). Records
attached to the Department’s motion, moreover, further confirm that those FOIA Specialists
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hired under the FCIP were initially paid at the GS-7 level. See Dkt. 10-1 at 267, 275, 288, 297
(listing the appointment grades for four newly hired FCIP FOIA Specialists as GS-7).
After the Department filed its motion to dismiss or, in the alternative, for summary
judgment, Dkt. 9, the Court cautioned Morris—who is proceeding pro se—that the Court would
“accept as true any factual assertion supported by the affidavits (or declarations) or other
documentary evidence submitted with the motion, unless [Morris] submit[ted] [her] own . . .
evidence contradicting th[at] factual assertion,” Dkt. 11 at 1; see also Fed. R. Civ. P. 56(a).
Morris responded with a statement of facts “as to which there remains a genuine dispute,” in
which she admitted certain facts, expressly controverted others, and simply failed to address
others. Dkt. 13. Most significantly for present purposes, she fails to respond to the
Department’s contention that all new FCIP employees started at the GS-7, Step 1 level, and she
offers no evidence purporting to controvert the numerous statements offered by the Department,
all of which were made in the form of declarations pursuant to 28 U.S.C. § 1746.
The Supreme Court “has said that summary judgment should be granted where the
evidence is such that it would require a directed verdict for the moving party.” Liberty Lobby,
Inc., 477 U.S. at 251 (internal quotation marks omitted). That standard is easily satisfied here.
Morris alleges that she was “paid at a rate lower than [her] male counterparts in violation of the
Equal Pay Act and Title VII,” Dkt. 1 at 1. The uncontroverted evidence, however, establishes
that she—like every other FOIA Specialist hired under the FCIP—started at the GS-7, Step 1
level. To be sure, there is evidence that other specialists eventually received promotions to
higher grades, see Dkt. 10-1 at 268, 270, 277, 279, 291, 302, but they did so only after at least a
year of service in grade. Morris, in contrast, was terminated after seven months on the job, and
thus never reached the one-year threshold. See Dkt. 13 at 2 (Pl.’s SUMF ¶ 6). She, accordingly,
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cannot establish that the Department paid “different wages to employees of opposite sexes,” as
required to prevail on an Equal Pay Act claim, Corning Glass Works, 417 U.S. at 195, or that the
Department discriminated against her “with respect to [her] compensation” based on her race or
sex, as required to prevail under the related terms of Title VII, 42 U.S.C. § 2000e-2(a)(1), see
also id. at § 2000e-16.
Morris also alleges that she “did not receive pay commensurate with [her] education and
experience.” Dkt. 1 at 1. To the extent the claim is premised on the notion that she received less
than she deserved because of her sex or race, it fails for the reasons described above. The
Department has offered uncontroverted evidence that it had a firm policy of paying all new
FOIA Specialists hired under the FCIP at the same GS level, regardless of any other
considerations. As the Chief of the OIP’s Initial Request Staff testified, that decision was
premised on the advice from JMD
that all candidates had to start at either the GS-5 or GS-7 level because the FCIP
required that individuals show progressive advancement on the FOIA Specialist
career ladder in order to successfully complete the program and be converted to a
competitive service appointee. The FOIA Specialist career ladder goes from GS-5
to GS-11. Because the career ladder ended at the GS-11 level, no one could start
at the GS-9 level and show successful advancement through two years in the
program.
Dkt. 10-1 at 149–50 (Day Interrogatory). That testimony, and other testimony to the same effect,
is uncontroverted and thus controlling for present purposes.
Morris does allude in her opposition to evidence that another female employee at OIP did
not receive grade increases at the same rate as the male hires. Dkt. 13 at 5 (Pl.’s SUMF ¶ 39).
The personnel records attached to the Department’s motion, moreover, appear to show that one
black female hired as a FOIA Specialist under the FCIP program remained at a GS-7 level for
over two years, Dkt. 10-1 at 280, 286, 291, despite holding a masters’ degree, id. at 280, while it
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appears that two men hired under the FCIP had only bachelors’ degrees, id. at 261, 271, yet
received annual promotions, see id. at 261, 267–71, 275–79. But, even assuming that Morris’s
former colleague was the victim of pay discrimination after her first year at OIP, that would not
undercut the Department’s uncontroverted showing that Morris was treated just like all other
new FCIP hires, regardless of their sex or race. Accordingly, construed in the light most
favorable to Morris, the uncontroverted evidence demonstrates that she was not paid less than
any of her counterparts.
Finally, even assuming that Morris was more qualified than others who were paid at the
GS-7 level, she still has not controverted the Department’s showing that the pay scale for new
FCIP hires was “based on [a] factor other than sex.” Id. As explained above, the evidence
shows that the pay scale was not tied to employees’ qualifications, but rather was based on a
desire to provide room for “progressive advancement” as part of the FCIP. Dkt. 10-1 at 149
(Day Interrogatory). That policy may have undervalued Morris’s education and experience, and
it may have been in some tension with the job listing’s notation that “[s]alary will be determined
by educational level, GPA, and work experience.” 1 Dkt. 10-1 at 253. But the uncontroverted
evidence establishes that it was not based on sex or race.
The Department has, accordingly, carried its initial burden on summary judgment, and
Morris has failed to offer any evidence that would permit a reasonable jury “to find that [the
Department] intentionally discriminated against the employee” on the basis of her race or sex,
Wilson v. Cox, 753 F.3d 244, 247 (D.C. Cir. 2014) (internal quotation marks and alterations
omitted), or that she was paid less than “employees of the opposite sex,” 29 U.S.C. § 206(d)(1).
1
Morris acknowledges that she was told at the time she started at OIP that “all of the FOIA
Specialists were brought in at a Grade 7 regardless of education or experience.” Dkt. 10-1 at 100
(Morris Affidavit).
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CONCLUSION
For the reasons stated above, the Court will grant Defendants’ motion to dismiss or, in
the alternative, for summary judgment, Dkt. 9.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 27, 2018
17