Nuskey v. Lambright ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
SHARON L. NUSKEY, )
)
Plaintiff, )
)
v. ) Civil Action No. 06-1573 (PLF)
)
)
FRED P. HOCHBERG, )
Chairman, Export-Import Bank )
of the United States, )
)
1
Defendant. )
__________________________________________)
OPINION
This employment discrimination case is before the Court on defendant’s motion
for summary judgment and plaintiff’s motion to strike. After careful consideration of the parties’
papers, the attached exhibits, the relevant statutes and the case law, the Court will grant
defendant’s motion in part and deny it in part, and the Court will deny plaintiff’s motion as
moot.2
1
The Court has substituted as defendant the current Chairman of the Export-Import
Bank of the United States, Fred P. Hochberg, in the place of the former Chairman, James H.
Lambright, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
2
The following papers are relevant to these motions: the Complaint (“Compl.”);
Defendant’s Motion for Summary Judgment (“Mot.”); Defendant’s Errata re Motion for
Summary Judgment (“Errata Mot.”); Plaintiff’s Memorandum in Support of her Opposition to
Defendant’s Motion for Summary Judgment (“Opp.”); Defendant’s Reply in Support of Motion
for Summary Judgment (“Rep.”); Plaintiff’s: (1) Motion to Strike Defendant’s Timeliness
Argument and Proffered Evidence in its Corrected/“Errata” Motion for Summary Judgment; and
(2) Motion for Rule 37(c) Sanctions; Defendant’s Opposition to Plaintiff’s Motion to Strike and
for Sanctions (“Opp. to Mot. to Strike”); Plaintiff’s Reply to Defendant’s Opposition to her
Motion to Strike and for Rule 37(c) Sanctions.
I. BACKGROUND
Plaintiff Sharon L. Nuskey brought this action against her former employer, the
Export-Import Bank of the United States, for age and sex discrimination and reprisal for
engaging in protected activity. The Bank is the United States government’s official export credit
agency — it assists in financing the export of domestic goods and services to create jobs in the
United States. See Mot., Memorandum in Support (“Def. Mem.”) at 2.
The Bank hired plaintiff on August 9, 2004 as a GS-1101-11 junior Business
Development Specialist (“BDS”) in the International Business Development (“IBD”) Division.
See Mot. at 3. She chose to work in the Southeastern and Central Europe region (“SECE”). See
Mot., Ex. 1, Deposition of Sharon Lynn Nuskey at 12. At the same time, the Bank also hired
three younger men as junior BDSs to work in various regions. See Def. Mem. at 3. The junior
BDSs, including plaintiff, were all supervised by different Regional Directors, and all of the
Regional Directors reported to IBD Vice President C. Michael Forgione. See Def. Mem. at 3,
Ex. 21 at 1. All four junior BDSs were hired as probationary employees for their first year. See
Def. Mem. at 3; Ex. 8, Affidavit of Sharon Nuskey (“Nuskey Aff.”) at 1. Plaintiff was originally
supervised by Margaret Kostic. See Nuskey Dep. at 14. In February 2005, a realignment
occurred and Craig O’Connor became the Regional Director for SECE and plaintiff’s immediate
supervisor. See Def. Mem. at 4, Nuskey Aff. at 1.
The events that immediately preceded plaintiff’s termination began on May 10,
2005, when plaintiff requested permission from Mr. Forgione to travel to Germany for work. See
Def. Mem. at 29, Ex. 26. Mr. Forgione responded that he did not think that the proposed trip
would benefit IBD or the Bank. See id. On May 11, 2005, plaintiff complained to him that
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while under Mr. O’Connor’s supervision she was not being given the same work opportunities as
her male colleagues, including international travel and invitations to meetings. See Def. Mem. at
30, Ex. 9, Affidavit of Cosimo M. Forgione (“Forgione Aff.”) ¶ 7.
Mr. Forgione and Mr. O’Connor had a meeting with plaintiff the following day to
discuss the issue. See Opp., Ex. 58, Deposition of Sharon Lynn Nuskey (“Nuskey Dep.”) at
120-21. At that meeting, plaintiff requested that she be allowed to travel to Serbia shortly after
the Germany trip to attend a conference. See Mot., Ex. 1, Deposition of Sharon Lynn Nuskey at
97, 103. Although Serbia and Germany were both outside IBD’s strategic business plan, Mr.
Forgione and his supervisor, John Emens, granted permission to plaintiff to make these trips.
See Forgione Aff. ¶¶ 16-17. Mr. Forgione states that he only did so because he was under the
impression that the events plaintiff was attending in Germany and in Serbia were within a day of
each other. See id. at ¶ 17.
Mr. Forgione then realized that there were four days between the trips, days which
plaintiff sought to take as paid leave. See Forgione Aff. ¶ 17. He states that he came to the
conclusion that plaintiff’s repeated requests to travel to non-target countries in a region of little
strategic importance to the Bank, and what he saw as her excessive effort in organizing a trip of
little value, indicated that plaintiff was not a good fit for the Bank. See Def. Mem., Ex. 2,
Deposition of Cosimo Michael Forgione (“Forgione Dep.”) at 23, 24, 182. Mr. Forgione sought
advice from the Bank’s Human Resources office and learned that because plaintiff was a
probationary employee, he had wide latitude to terminate her employment. See id. at 24.
On May 17, 2005, plaintiff contacted the Bank’s EEO Director Patrease Jones-
Brown regarding her concerns that she was being treated differently from her male probationary
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colleagues, particularly with regard to travel. See Mot., Defendant’s Statement of Material Facts
Not in Genuine Dispute (“Def. Facts”) ¶ 20; Opp., Plaintiff’s Statement of Genuine Issues of
Material Fact (“Pl. Facts”) ¶ 20. On May 18, 2005, Ms. Jones-Brown contacted Jonathan
McMullen, then Chief of the Bank’s Office of Administrative Services, and inquired about
whether plaintiff needed to use annual leave during the gap between the proposed Germany and
Serbia trips. See Pl. Facts ¶ 20a. Mr. McMullen called Mr. Forgione the same day to state that
plaintiff did not need to take annual leave for the four day gap. See id.; Forgione Aff. ¶ 17.
Mr. Forgione, Mr. O’Connor and plaintiff all met on May 19, 2005 to attempt to
resolve the issue. See Pl. Facts ¶ 21. This meeting ended badly — with Mr. Forgione allegedly
remarking to plaintiff that she “seemed to think that [she] was much better educated and older
than [her] three male colleagues,” but that they were all hired at the same level. Mot., Ex. 8,
Affidavit of Sharon Nuskey at 3. Mr. Forgione then terminated the meeting and said that he was
going to the Human Resources office. See Pl. Facts ¶ 21. Shortly thereafter, plaintiff returned to
the Bank’s EEO Office to discuss the events with the Bank’s EEO Director, Ms. Jones-Brown.
See Pl. Facts ¶ 21b.
On the afternoon of the same day, May 19, 2005, plaintiff met with Mr. Emens,
who was Mr. Forgione’s immediate supervisor, and explained that Ms. Jones-Brown had
suggested that plaintiff meet with him to discuss the events. See Pl. Facts ¶ 21b.3 Later that day,
Mr. Forgione met with Mr. Emens to discuss Mr. Forgione’s decision to terminate plaintiff, a
3
Although Mr. Emens states that he does not recall plaintiff stating that she had
met with Ms. Jones-Brown, he agrees that it is possible that she made such a statement. See
Opp., Deposition of John A. Emens at 96. In any event, to the extent this is a disputed fact, it
must be resolved in plaintiff’s favor at this point.
4
decision with which Mr. Emens concurred. See Pl. Facts ¶ 21c; Opp., Ex. 27. On the evening of
May 19, 2005, plaintiff formally initiated EEO counseling with Ms. Jones-Brown. See Pl. Facts
¶ 21d. On May 20, 2005, the Bank terminated plaintiff, effective immediately. See Def. Facts
¶ 22; Pl. Facts ¶ 22.
After exhausting her administrative remedies before the EEOC, plaintiff filed suit
in this Court on September 8, 2006, alleging discrimination on the basis of her sex (female) and
age (then 45), and reprisal. On May 30, 2007, the Court denied defendant’s pre-discovery
motion for summary judgment, finding that defendant had not submitted competent evidence in
support of its timeliness defense. See Memorandum Opinion and Order (“Timeliness Opinion”),
Dkt. 13 (D.D.C. 2007). The parties engaged in discovery, and the matter is now ripe for
summary adjudication.
II. LEGAL STANDARDS
A. Summary Judgement
Summary judgment may be granted if “the pleadings, the discovery and disclosure
materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.
56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A fact is ‘material’ if a dispute over it might affect
the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d
at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).
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An issue is “genuine” if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v.
Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for
summary judgment is under consideration, “the evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in [her] favor.” Anderson v. Liberty Lobby, Inc.,
477 U.S. at 255; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir.
2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc);
Washington Post Co. v. U.S. Dep’t of Health and Human Services, 865 F.2d 320, 325 (D.C.
Cir. 1989). On a motion for summary judgment, the Court must “eschew making credibility
determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C.
Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
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.
FED . R. CIV . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). She is required to
provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United
States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is “merely
colorable” or “not significantly probative,” summary judgment may be granted. Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 (“[W]here the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is
‘no genuine issue for trial.’”) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have
6
more than “a scintilla of evidence to support [her] claims.” Freedman v. MCI
Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
B. The Governing Law
Plaintiff brings suit under Title VII and the ADEA. Title VII provides, in
pertinent part, that “[a]ll personnel actions affecting employees or applicants for employment . . .
in executive agencies . . . shall be made free from any discrimination based on race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Title VII also prohibits federal
agencies from retaliating against employees for asserting their rights. See Holcomb v. Powell,
433 F.3d at 901. The relevant part of the ADEA provides, in language parallel with Title VII,
that “[a]ll personnel actions affecting employees or applicants for employment who are at least
40 years of age . . . in executive agencies . . . shall be made free from any discrimination based on
age.” 29 U.S.C. § 633a(a). As with Title VII, the ADEA prohibits federal agencies from
retaliating against employees for engaging in protected activity. See Forman v. Small, 271 F.3d
285, 298-99 (D.C. Cir. 2001)
For both Title VII and the ADEA, when a plaintiff offers no direct evidence of
discrimination (or retaliation), her claims must be analyzed under the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Barnette v. Chertoff, 453 F.3d
513, 515 (D.C. Cir. 2006) (applying McDonnell Douglas framework to ADEA claim). Under that
framework, a plaintiff must first establish a prima facie case of discrimination or retaliation.
Doing so creates a rebuttable presumption of discrimination or retaliation and “triggers the
employer’s burden to produce admissible evidence that, if believed, would establish that the
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employer’s action was motivated by a legitimate, nondiscriminatory reason.” Teneyck v. Omni
Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004). If the employer meets this burden, then
all presumptions drop away and the Court must decide “whether intentional discrimination may
be inferred from all the evidence,” including any evidence that the employer’s asserted reason is
pretextual. Id.As the D.C. Circuit has explained, however, “the district court need not — and
should not — decide whether the plaintiff actually made out a prima facie case under McDonnell
Douglas” at the summary judgment stage if (1) the plaintiff has suffered an adverse employment
action, and (2) the defendant has asserted a non-discriminatory reason for its behavior. Brady v.
Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original).
Rather, in those circumstances,
the district court must resolve one central question: Has the
employee produced sufficient evidence for a reasonable jury to find
that the employer’s asserted non-discriminatory reason was not the
actual reason and that the employer intentionally discriminated
against the employee on the basis of [sex or age]?
Id. See also Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (applying Brady
framework to ADEA claim).
III. DISCUSSION
A. Discrimination Claims
1. Alleged Pre-Termination Discrimination
Plaintiff alleges that she was discriminated against while supervised by Mr.
O’Connor because she was excluded from meetings relevant to her work; Mr. O’Connor and Mr.
Forgione failed to inform her about issues that fell within her area of program responsibility; and
8
her exposure to the Bank Directors was limited. See Compl. ¶¶ 41-44 (Count One). Defendant
contends that it should be granted summary judgment on this Count, because plaintiff’s
allegations do not constitute adverse employment actions within the meaning of Title VII or the
ADEA. While Brady directs the district court’s focus to the employer’s proffered non-
discriminatory reason, the Court still first must determine whether, drawing all reasonable
inferences in plaintiff’s favor, plaintiff has proffered evidence that she suffered an adverse
employment action. See Baloch v. Kempthorne, 550 F.3d at 1196.
“An ‘adverse employment action’ [under Title VII] is ‘a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing significant change in benefits.’” Douglas v.
Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (citing Taylor v. Small, 350 F.3d 1286, 1293 (D.C.
Cir. 2003)). To show that she suffered from an adverse employment action, “[a]n employee must
[have] ‘experience[d] materially adverse consequences affecting the terms, conditions, or
privileges of employment or future employment opportunities such that a reasonable trier of fact
could find objectively tangible harm.’” Id. (quoting Forkkio v. Powell, 306 F.3d 1127, 1131
(D.C. Cir. 2006)). “[N]ot everything that makes an employee unhappy is an actionable adverse
action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001).
Plaintiff argues that the complained of actions constitute adverse actions under the
law because she was “deprived of opportunities for career advancement; development of
international business contacts; interaction with clients and other prominent members of the
international community; as well as the opportunity to be kept in the loop regarding work in her
region.” See Opp. at 16. Plaintiff makes these allegations without any explanation of how the
9
complained of actions had a tangible, and not speculative, effect on the terms, conditions and
privileges of her employment. See Douglas v. Donovan, 559 F.3d at 552 (“a tangible
employment action in most cases inflicts direct economic harm”) (citations omitted) (emphasis in
original); see also Holcomb v. Powell, 433 F.3d at 902 (to be actionable, alleged injuries must
not be “purely subjective”). Because plaintiff has not alleged, much less provided competent
evidence to show, that the complained of exclusion from meetings, and limitations on access to
information and the Board of Directors had a tangible effect on the terms and conditions of her
employment, the Court concludes that these actions were not adverse within the meaning of Title
VII. The Court will grant summary judgment for defendant on Count One.
2. Termination Claim
Plaintiff also alleges that she was discriminated against on the basis of gender and
age when defendant terminated her employment on May 20, 2005. See Compl. ¶ 50 (Count
Three). It goes without saying that being fired from one’s job is an adverse employment action;
therefore the Court turns to defendant’s proffered nondiscriminatory reason. See Brady v. Office
of the Sergeant at Arms, 520 F.3d at 494.
Defendant argues that it fired plaintiff because her second-level supervisor, Mr.
Forgione, believed that she was not a good fit for the Bank, in large part based on what he
perceived as her push for unjustified work travel. See Rep. at 1. Mr. Forgione testified:
[I]n my opinion . . . Ms. Nuskey was more concerned with her
personal gain through the EX-IM Bank than for — the good of
Sharon instead of the good of the EX-IM Bank . . . Sharon seemed
to me to be totally focused on taking trips on behalf of the bank to
overseas destinations. . . . it was reflected in the amount of time
she made to make sure that her trip was extended to — for as much
time and [to as] many countries as possible. . . . The main thing
10
was she kept asking to go to different countries. Whenever an
objection would be to, say, Serbia or Croatia, I would tell her, “We
are not open,” or “that is not a target country,” or “we are not going
there,” there would be a disagreement, and then [she would
suggest] another country.
Forgione Dep. at 23, 25-27. He also explained that after he received the phone call from Mr.
McMullen regarding whether plaintiff had to use vacation days for her proposed travel, he came
to the conclusion that she was
[s]pending time trying to find out whether or not she has personal
time coming versus doing the business of the bank. . . . It’s an
indication of where her mind is. Mind is, “Do I take vacation?
. . . . What can I get out of the EX-IM bank?” Instead of, “What
can I give to the EX-IM Bank?
Id. at 28-29.
Because defendant has offered a legitimate nondiscriminatory reason, “the burden
of production shifts back to the plaintiff, ‘the McDonnell Douglas framework falls away, and
[the Court] must determine whether a reasonable jury ‘could infer discrimination.’” Royall v.
Nat’l Ass’n of Letter Carriers, 548 F.3d 137, 144 (D.C. Cir. 2008) (quoting Vickers v. Powell,
493 F.3d 186, 195) (D.C. Cir. 2007)). A plaintiff may meet this burden by showing the
employer’s proffered reason is pretext. See Royall v. Nat’l Ass’n of Letter Carriers, 548 F.3d at
144. In this case, plaintiff argues that the defendant’s proffered reason for her termination is
pretext for a variety of reasons, including alleged statements made by Mr. Forgione referencing
her gender and age.
With regard to her gender discrimination claim, plaintiff relies on multiple alleged
statements by Mr. Forgione that she was a “strong woman” and an “aggressive woman.” See
Opp. at 35; see also Pl. Nuskey Dep. at 109, 117. Such statements create a genuine question of
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material fact as to whether Mr. Forgione was motivated, at least in part, by a discriminatory
animus based on gender stereotypes when he terminated plaintiff’s employment. See Hopkins v.
Price Waterhouse, 920 F.2d 967, 969 (D.C. Cir. 1990) (sexual stereotyping is a form of sex
discrimination under Title VII); Schroer v. Billington, 577 F. Supp. 2d 293, 303 (D.D.C. 2008)
(“an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she
must not be, has acted on the basis of gender”) (quoting Price Waterhouse v. Hopkins, 490 U.S.
228, 251 (1989)). The Court will deny defendant’s motion for summary judgment on plaintiff’s
gender discrimination claim with regard to the termination of her employment.
Plaintiff also argues that Mr. Forgione’s statement allegedly made in their meeting
of May 19, 2005 — that “you seem to think that you are much better educated and older than
your three colleagues” — is evidence of his discriminatory animus with regard to plaintiff’s age.
Mr. Forgione denies having made this comment, and he also adamantly denies that he knew that
plaintiff was over forty, assertions of fact which plaintiff disputes with competent evidence. See
Pl. Facts ¶¶ 23c, 25. Even assuming that Mr. Forgione made the comment and that he knew
plaintiff’s age, as the Court must at this point, the Court cannot conclude that this comment alone
would permit a reasonable jury to find that the plaintiff was terminated based upon her age.
First, it is doubtful whether the comment was even meant as derogatory — as Mr. Forgione
grouped “older” with the generally positive “better educated.” Second, it is consistent with his
secondary legitimate explanation for terminating plaintiff — that she felt that she was
overqualified for the job and that this belief affected her work performance. See Forgione Dep.
12
at 23.4 Finally, plaintiff points to no other statements or evidence of age bias (separable from her
allegations of gender bias) on the part of her supervisors at the Bank. This alleged statement,
standing alone, does not show defendant’s proffered reason to be pretext.
In order to bolster her age discrimination claim, plaintiff also attempts to offer
“evidence of more favorable treatment of similarly situated persons who are not members of the
protected class” in order to prove pretext. Royall v. Nat’l Ass’n of Letter Carriers, 548 F.3d at
144. Plaintiff argues that she was treated differently from the three younger men who were hired
as junior BDSs at the same time she was hired. See Opp. at 23.5
To prove that she is similarly situated to the comparator employees, plaintiff must
show that “all of the relevant aspects of [her] employment situation were nearly identical” to
those of the comparators. Udoh v. Trade Ctr. Mgmt. Assocs., 479 F. Supp. 2d 60, 64 (D.D.C.
2007) (quoting Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999)). Defendant argues that
the three other probationary employees were not similarly situated because they had different
immediate supervisors and worked on different geographic regions. Plaintiff points out,
however, that Mr. Forgione, the individual who made the decision to terminate plaintiff, was the
same second level supervisor for all of the junior BDSs, which suggests to the Court that the
4
Furthermore, even if this comment could be viewed as derogatory, in the context
of a supervisor’s explanation at a deposition for a single stray negative remark about ethnicity or
age, at most the comment “appears to be an uninformed and insensitive statement rather than an
intentionally discriminatory statement.” Valles-Hall v. Ctr. for Nonprofit Advancement, 481 F.
Supp. 2d 118, 150 (D.D.C. 2007).
5
Although plaintiff presents this analysis in support of her prima facie case, under
the framework as clarified by Brady, it is more appropriate to consider it as an attempt to prove
that defendant’s proffered reason is pretext. See Brady v. Office of the Sergeant at Arms, 520
F.3d at 495.
13
difference in immediate supervisors is less relevant to her claim that she was terminated on the
basis of age. The same is true with respect to the fact that the comparators worked in different
geographic regions — a fact that may be more relevant to the employees’ respective
opportunities for travel than to Mr. Forgione’s decision to terminate plaintiff. In sum, plaintiff
and the other junior BDSs may have been similarly situated with regard to certain aspects of their
employment situations.
Even if the Court treats plaintiff and the junior BDSs as similarly situated in
certain respects, however, “the most significant variables in a case alleging discrimination in
connection with disciplinary action . . . [are] the nature of the offenses committed and the nature
of the punishments imposed.” Childs-Pierce v. Util. Workers Union of Am., 383 F. Supp. 2d 60,
70 (D.D.C. 2005) (citing Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985)).
Although plaintiff argues that the younger male junior BDS’s were far from model employees,
the incidents she cites in fact are different in nature and degree from what Mr. Forgione states he
perceived as an effort by plaintiff to extract personal travel at the expense of the Bank. None of
the incidents plaintiff raises is akin to an employee attempting to take advantage of the
employer’s resources and programs for personal gain — the proffered reason for plaintiff’s
termination — a charge that would be of particular concern to any employer. The proffered
evidence with respect to the comparator employees does not show that plaintiff’s age was a
contributing factor in her termination.
Plaintiff also attempts to show that defendant’s proffered reason for her
termination is pretext because of the “hostile” way that she was terminated and Mr. Forgione’s
subsequent announcement of her termination to the staff. See Opp. at 18-19. At most, this
14
evidence suggests that Mr. Forgione was angry with plaintiff, a reasonable likelihood given his
recent decision to fire her — but none of this evidence suggests a discriminatory motive for firing
her on the basis of her age.
Finally, although plaintiff notes that a younger male was hired after she was
terminated, albeit for a different position, she does not provide evidence that the man who
actually assumed her former role as a BDS in the SECE region was younger than she was. See
Pl. Facts ¶¶ 30-31. Even if the Court were to treat the latter hire as evidence that plaintiff was
replaced with a younger individual, despite the fact that plaintiff’s immediate replacement was
not younger, this evidence does not show that defendant’s proffered explanation is pretext as to
her age. See Howie v. Office of Eddie Bernice Johnson, 570 F. Supp. 2d 115, 123 (D.D.C. 2008)
(“Because younger people often succeed to the jobs of older people for perfectly legitimate
reasons, the mere fact that an older employee is replaced by a younger one does not permit an
inference that the replacement was motivated by age discrimination.”) (citing La Montagne v.
Am. Convenience Products, Inc., 750 F.2d 1405 (7th Cir. 1984)). The Court will grant
defendant’s motion for summary judgment on plaintiff’s age discrimination claim with regard to
the termination of her employment.
B. Retaliation
Counts Two and Four of plaintiff’s complaint charge reprisal or retaliation based
on her EEO activity. In order to prevail on a claim of unlawful retaliation, an employee must
show that “she engaged in protected activity, as a consequence of which her employer took a
materially adverse action against her.” Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009)
(quotation omitted); see also id. (general ban on retaliation in Section 2000e-3(a) applies to
15
federal employers through Section 2000e-16). As described above, the same analytical
framework set forth in Brady for discrimination claims applies to retaliation claims. See id. at
1320 n.12.
With regard to whether plaintiff engaged in protected activity, “the Title VII anti-
retaliation provision has two clauses, making it ‘an unlawful employment practice for an
employer to discriminate against any of his employees . . . [1] because [s]he has opposed any
practice made an unlawful employment practice by this subchapter, [the “opposition clause”] or
[2] because [s]he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter,’” the “participation clause.” See
Crawford v. Metro. Gov’t of Nashville & Davidson County, 129 S. Ct. 846, 850 (2009) (quoting
42 U.S.C. § 2000e-3(a)). Plaintiff accuses defendant of violating both. She argues that she
engaged in protected activity when she “opposed” defendant’s allegedly discriminatory conduct
in the meeting on May 11, 2005 and when she “participated” in EEO counseling on May 19,
2005. She was terminated on May 20, 2005.
Defendant challenges plaintiff’s claim that she engaged in opposition activity
protected under Title VII on the ground that no reasonable person could have believed that the
incidents she raised in the May 11, 2005 meeting — her failure to be invited to certain meetings,
her failure to be given work assignments comparable to those given to her male colleagues, and
decisions made with respect to her proposed travel — were discriminatory. See Clark County
Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001). In the District of Columbia Circuit, an
employee seeking protection of the opposition clause must demonstrate “a good faith, reasonable
belief that the challenged practice violates Title VII.” George v. Leavitt, 407 F.3d 405, 417 (D.C.
16
Cir. 2005). Thus, an employee will be protected even if the employer’s conduct ultimately
proves to be lawful, so long as the employee’s opposition is based on a good faith belief that
Title VII was violated. See Parker v. B & O R.R., 652 F.2d 1012, 1019 (D.C. Cir. 1981).
Here plaintiff alleges that when she met with Mr. Forgione on May 11, 2005, she
told him that she felt she was being treated differently from her male colleagues with regard to
inclusion in meetings and department activities, see Nuskey Dep. at 120-21, 123. She also told
him that, “I had just taken EEO training that was required online that said if women are being
treated differently with access to information, participation in meetings and so forth, that that’s
discriminatory.” See id. at 121. If plaintiff relied on an EEO training to conclude that Title VII
had been violated, her belief was in good faith and was not unreasonable — even if her
conclusion ultimately proved to be incorrect. Her statements to Mr. Forgione were not the sort of
“malicious accusations and frivolous claims” that the reasonableness requirement is meant to
protect against. See Burton v. Batista, 339 F. Supp. 2d 97, 114 (D.D.C. 2004) (quoting Parker v.
B & O R.R., 652 F.2d at 1020); see also Crawford v. Metro. Gov’t of Nashville & Davidson
County, 129 S. Ct. at 851 (2009) (“When an employee communicates to her employer a belief
that the employer has engaged in . . . a form of employment discrimination, that communication
‘virtually always’ constitutes the employee’s opposition to the activity.”) (emphasis in original).
With regard to plaintiff’s participation in EEO counseling, defendant argues that
there is no evidence that Mr. Emens or Mr. Forgione knew that plaintiff had approached the
Bank’s EEO office at the time they decided to terminate her employment. In light of plaintiff’s
statement that on May 19, 2005, she told Mr. Emens that she had spoken with Ms. Jones-Brown,
and that the same afternoon Mr. Emens met with Mr. Forgione to discuss plaintiff’s termination,
17
and that plaintiff was terminated the following day with Mr. Emens’s approval, there is a genuine
issue of material fact as to whether Mr. Emens knew that plaintiff had contacted the EEO office
at the time she was terminated. Furthermore, regardless of what other knowledge he had, Mr.
Forgione, of course, knew that plaintiff had “opposed” employment practices that she perceived
as unlawful by raising them in the meeting with him on May 11, 2005.
Turning next to the question of whether defendant took a “materially adverse”
action against plaintiff in response to this protected activity, see Taylor v. Solis, 571 F.3d at
1320, there can be no doubt that the termination of plaintiff’s employment was a materially
adverse action. Plaintiff also argues, however, that in the week following her May 11, 2005
meeting with Mr. Forgione, and leading up to her termination on May 20, 2005, she was
subjected to an arbitrary limit on the cost of her travel, subsequent denial of her travel plans, and
increased hostility from Mr. Forgione. While, if evaluated in isolation, any of these actions
might not be considered “materially adverse,” taken as a whole, and considering the fact that they
all occurred within the space of a week — a week which culminated in plaintiff being fired —
the Court concludes that such actions could dissuade a reasonable worker from pursuing charges
of discrimination. See Hill v. Kempthorne, 577 F. Supp. 2d 58, 67 (D.D.C. 2008) (“the denial of
travel opportunities asserted in Count 2, especially in connection with the other two claims . . .
could dissuade a reasonable worker from pursuing charges of discrimination.”).
While defendant has proffered nonretaliatory explanations for the actions, see
Rep. at 13-17, the temporal proximity between plaintiff’s protected activity and the alleged
retaliation is too close for defendant to escape the inference of a retaliatory motive at the
summary judgment stage. Only nine days elapsed from the date plaintiff first complained of
18
perceived discrimination to Mr. Forgione until her termination; even more compelling, plaintiff
was fired within twenty-four hours of initiating EEO counseling and of informing Mr. Emens
that she had spoken with Ms. Jones-Brown. See Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir.
2000) (“the close temporal proximity of [plaintiff’s] discrimination complaints to the [adverse
action] is sufficient to establish a causal connection.”); Glenn v. Bair, Civil Action No. 07-2195,
2009 U.S. Dist. LEXIS 69876 at *56 (D.D.C. Aug. 10, 2009) (“Even absent direct evidence,
however, temporal proximity can support an inference of causation if the interval between the
protected activity and the adverse personnel action is ‘very close.’”) (quoting Clark County Sch.
Dist., 532 U.S. at 271). The Court will deny defendant’s motion for summary judgment on
plaintiff’s retaliation claims.
C. Hostile Work Environment
Plaintiff alleges that she was subject to harassment on the basis of her sex and age
and as reprisal for engaging in protected activity. See Compl. ¶¶ 47, 51, 52, 54, 55 (Counts Two
and Four). Both defendant and plaintiff treat these allegations as a hostile work environment
claim. To make out a prima facie case of hostile work environment, plaintiff must show that the
alleged harassment was based on her membership in a protected class, and that her employer
knew or should have known of the harassment and failed to take any remedial action. See
Rattigan v. Gonzales, 503 F. Supp. 2d 56, 78 (D.D.C. 2007) (quoting Davis v. Coastal Int’l Sec.
Inc., 275 F. 3d 1119, 1122-23 (D.C. Cir. 2007)). She must also show that the workplace was
permeated with “discriminatory intimidation, ridicule of such severity or pervasiveness as to alter
the conditions of [her] employment and create an abusive working environment.” Hussain v.
Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006) (internal quoations omitted); see also Harris v.
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Forklift Sys. Inc., 510 U.S. 17, 21-22 (1993). To determine whether the level of hostility in an
environment is sufficient to support a claim, a court must look at all the circumstances with the
perspective that “not all abusive behavior, even when it is motivated by discriminatory animus, is
actionable.” Barbour v. Browner, 181 F.3d 1342, 1347 (D.C. Cir. 1999). The standard
established to show a hostile work environment is designed to be “sufficiently demanding to
ensure that Title VII does not become a ‘general civility code.’” Rattigan v. Gonzales, 503
F.Supp 2d at 78 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998)).
In support of her claim, plaintiff relies on the alleged discriminatory statement
made by Mr. Forgione that she seemed to think that she was better educated and older than her
colleagues and his reference to her as a “strong woman” or “aggressive woman.” See Pl. Nuskey
Dep. at 117. She also relies on allegedly abusive statements, none of which relate to gender or
age, made by him leading up to and after her termination, such as calling her a liar and convening
a meeting to explain her termination to the other Bank employees in allegedly disparaging terms.
While Mr. Forgione’s statements may have been offensive to plaintiff, Title VII does not redress
“the ordinary tribulations of the workplace, such as sporadic use of abusive language . . . a few
isolated incidents of offensive conduct do not amount to actionable harassment.” Rattigan v.
Gonzales, 503 F. Supp. 2d at 80 (quotations omitted). In addition, there is undisputed evidence
that Mr. Forgione also yelled at male Bank employees. See Rep. at 23.
Finally, plaintiff contends that two other female Bank employees were subjected
to Mr. Forgione’s “leering” and “frequent, harassing comments” about their wardrobe. See Pl.
Facts ¶¶ 53-54. She also proffers certain other evidence under seal that the Court has considered
in connection with this argument. See id. ¶ 55. Plaintiff never states that she had any personal
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exposure to this alleged behavior or that it affected her directly. She does not raise facts to show
that the alleged behavior was sufficiently “severe or pervasive to alter the conditions of the [her]
employment.” Rattigan v. Gonzalez, 503 F. Supp. 2d at 78 (quoting Onacle v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 78 (1998)). The Court will grant summary judgment for
defendant on plaintiff’s hostile work environment claim.
IV. TIMELINESS AND MOTION TO STRIKE
Defendant again raises the timeliness argument previously considered by the
Court. See Timeliness Opinion. This argument relies on defendant’s assertion that the Final
Agency Decision (“FAD”) was delivered to plaintiff’s residence on June 9, 2006. See Errata
Mot., Defendant’s Memorandum in Support of Corrected Motion for Summary Judgment at 38.6
Plaintiff filed her complaint on September 8, 2006, which, if the statutory time period is
measured from June 9, 2006, was one day later than the 90 days allotted.7 Defendant bases its
assertion as to the date of delivery on a United States Postal Service “Track & Confirm” receipt
in support of this proposition. See Errata Mot., Corrected Declaration of Stephen G. Swimm
6
Defendant’s Errata re Motion for Summary Judgment changes only its arguments
and exhibits as to the statute of limitations defense.
7
As the Court previously stated: “An employment discrimination action against the
federal government may only be filed after the complainant has exhausted administrative
remedies. Furthermore, under Title VII’s time limitations, the complainant must file the civil
action within 90 days of receipt of notice of the final agency action on his or her administrative
complaint. 42 U.S.C. § 2000e-16(c) provides: ‘Within 90 days of receipt of notice of final action
taken by a[n] . . . agency . . . an employee or applicant for employment, if aggrieved by the final
disposition of his complaint, or by the failure to take final action on his complaint, may file a
civil action . . . .’ 42 U.S.C § 2000e-16(c). The 90-day time limit is not jurisdictional, but is akin
to an affirmative statute of limitations defense. See Colbert v. Potter, 471 F.3d 158, 165 (D.C.
Cir. 2006). Failure to file within the limitations period generally results in a loss of the right to
sue.” Timeliness Opinion at 2.
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(“Swimm Decl”) ¶ 7. Plaintiff states, however, that she did not receive the FAD until June 12,
2006. See Opp., Ex. 68, Declaration of Sharon L. Nuskey (“Nuskey Decl.”) ¶ 3. The Court
previously rejected defendant’s argument and accepted plaintiff’s, concluding:
Despite defendant’s “Track & Confirm” printout, no one at
plaintiff’s residence ever signed and returned the return receipt
indicating when the certified mail delivery of the FAD was
received. See Declaration of Sharon L. Nuskey ¶ 4. As such,
defendant does not have evidence — the actual signed certified
mail receipt — to be able to prove when plaintiff received the
FAD, which is its burden to do. See Colbert v. Potter, 471 F.3d at
165 (requiring appellate record to be supplemented with the
original signed post office Domestic Return Receipt with both the
front and back sides of the form showing before affirming grant of
summary judgment for defendant); see also Woodruff v. Peters,
482 F.3d 521, 525 (D.C. Cir. 2007) (defendant’s affirmative
defense of untimely filing fails when defendant fails to submit
“hard proof” of the date of receipt of notice).
Timeliness Opinion at 3.
Defendant argues that the date of delivery and not the date of receipt should
control. Even if the Court were to reach that conclusion, however, it would not help the
defendant in this case, because defendant has not provided competent evidence that the FAD was
properly delivered on June 9, 2006. Without a signature on the return receipt card, or any
evidence of where, or with whom, the mail carrier left the package, and in light of plaintiff’s
statement that she did not see the package in the mail room when she retrieved her mail on June
11, 2006, see Nuskey Decl. ¶ 2, the Court cannot conclude that the package was properly
delivered such that plaintiff could have discovered it on June 9, 2006. Nothing in the
supplemental evidence submitted by defendant changes the Court’s conclusion in this regard.
In order to bolster its argument that the complaint was untimely, defendant
provides declarations from Stephen G. Swimm, a USPS Customer Service Analyst, and Drew A.
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Mitchum, a USPS economist, both of whom describe the USPS Certified Mail service, and state
that failure to obtain a signature on the return receipt card does not affect the delivery of a
Certified Mail item. See Swimm Decl. ¶¶ 3-4; Errata Mot., Declaration of Drew A. Mitchum
¶¶ 3-4. Neither of these individuals states that he ever had any personal knowledge of the date or
method of delivery in this case. Mr. Mitchum also attaches to his declaration a copy of a
“delivery letter” from USPS, which indicates the date, but not the location of delivery. See
Errata Mot., Ex. 40 at 5. This additional information does not change the Court’s prior
conclusion that in the absence of competent evidence, it will presume that the date of receipt of
an EEOC decision or notice is three days after its issuance. See Timeliness Opinion at 3 (quoting
Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n.1 (1984) (per curiam) (citing
Fed. R. Civ. P. 6(e)); Powell v. Washington Metropolitan Area Transit Authority, 238 F. Supp.
2d 160, 163 n.3 (D.D.C. 2002)). The Court will not grant judgment for defendant on the ground
of timeliness.
In light of this conclusion, plaintiff’s motion to strike defendant’s timeliness
argument and evidence in support is moot as to the request to strike. In the same motion,
plaintiff also moved for sanctions under Rule 37(c) of the Federal Rules of Civil Procedure on
the ground that defendant failed to disclose evidence — specifically the existence of Mr.
Mitchum as a witness — during discovery. The primary sanction sought by plaintiff, exclusion
of the new timeliness evidence, has been mooted by the Court’s conclusion that even with Mr.
Mitchum’s evidence, defendant does not succeed on its timeliness argument. Plaintiff also seeks
attorneys’ fees for the time spent litigating the issue in the current round of briefing under Rule
37(c) of the Federal Rules of Civil Procedure. In its discretion, the Court will not award
23
attorneys’ fees. By providing additional evidence this time around, defendant was attempting to
address the Court’s conclusion that it had not supported the timeliness argument with adequate
evidence. Inasmuch as defendant states that it did not know of the existence of Mr. Mitchum
until December 2008, around the same time that it filed its corrected motion for summary
judgment, the Court concludes that defendant acted in good faith by raising the issue again. See
Opp. to Mot. to Strike at 4-5, 12. But now it is time for the parties to put this issue behind them
and move forward to the merits of plaintiff’s remaining claims.
V. CONCLUSION
For the reasons explained above, the Court will grant defendant’s motion for
summary judgment as to Count One, and as to her claims under the ADEA and her hostile work
environment claims. It will deny the motion as to plaintiff’s claims of gender discrimination
with regard to the termination of her employment and retaliation. An Order consistent with this
Opinion will issue this same day.
/s/____________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: September 25, 2009
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