Grosdidier v. Board Broadcast Governors

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAMILLE GROSDIDIER,
Plaintiff,
v. Civil Action No. 08-1553 (CKK)
CHAIRMAN, BROADCASTING BOARD
OF GOVERNORS,
Defendant.
MEMORANDUM OPINION
(March 28, 2011)
Plaintiff Camille Grosdidier (“Grosdidier”) brings this action against the Broadcasting
Board of Governors (“BBG” or the “agency”) pursuant to Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621 et seq. Grosidier alleges that her employer, the Voice of America
(“VOA”), an entity within the BBG, discriminated against her based on her race, age, sex, and
national origin and retaliated against her for complaining about this discrimination. Presently
pending before the Court are Defendant’s [21] Motion for Judgment on the Pleadings or
Alternatively, [15] Motion for Summary Judgment and Plaintiff’s [23] Motion for Adverse
Presumption. For the reasons explained below, the Court shall GRANT-IN-PART Defendant’s
Motion for Summary Judgment with respect to all of Plaintiff’s claims except her claim that
Defendant retaliated against her by reducing her editing responsibilities after October 5, 2007,
with respect to which the Court shall DENY-IN-PART Defendant’s motion. The Court shall
also DENY Plaintiff’s Motion for Adverse Presumption.
I. BACKGROUND
Camille Grosdidier has worked as an International Broadcaster with the French to Africa
Service of the Voice of America since 1987. Def.’s Stmt.1 ¶ 2. Grosdidier is a white female of
French national origin who is a naturalized citizen of the United States. Id. ¶ 1. She is employed
at the GS-12 level. Id. ¶ 2. The BBG encompasses all U.S. civilian international broadcasting,
including the VOA, Radio Free Europe, and other networks. Id. ¶ 14. BBG broadcasters
distribute programming in sixty languages to an estimated weekly audience of 175 million people
via radio, television, the internet, and other new media. Id. The VOA’s French to Africa Service
primarily competes with French, British, and local African radio and media services. Id. ¶ 15.
These competitors began using television, internet, and other new communication technologies
before the VOA, and the French to Africa Service has since recognized the importance of
multimedia forms of communication. Id.Throughout most of the time relevant to this litigation, the Chief of the French to Africa
Service was Idrissa Seydou Dia (“Dia”). See Pl.’s Ex. 6 (Dia Dep.) at 5. Dia had been acting in
that capacity since sometime in 2003. Id. Between 1992 and 2002, Grosdidier filed a series of
equal employment opportunity (“EEO”) complaints about discrimination and harassment in the
1
The Court strictly adheres to the text of Local Civil Rule 7(h) (formerly Rule 56.1) when
resolving motions for summary judgment. See Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir.
2002) (finding that district courts must invoke the local rule before applying it to the case). The
Court has advised the parties that it strictly adheres to Rule 7(h) and has stated that it “assumes
facts identified by the moving party in its statement of material facts are admitted, unless such a
fact is controverted in the statement of genuine issues filed in opposition to the motion.” [11]
Order at 2 (Oct. 28, 2009). Thus, in most instances the Court shall cite only to one party’s
Statement of Material Facts (“Stmt.”) unless a statement is contradicted by the opposing party, in
which case the Court may cite a party’s Response to the Statement of Material Facts (“Resp.
Stmt.”). The Court shall also cite directly to evidence in the record, where appropriate.
2
workplace. See Def.’s Ex. Y (Aff. of Camille Grosdidier) at 1-2. In September 2002, Grosdidier
filed a complaint about her nonselection for a GS-13 International Broadcaster position in the
French to Africa Service, alleging discrimination based on her sex, color, and reprisal for
engaging in EEO activity. Id. at 2. That complaint was dismissed by an administrative judge.
See Pl.’s Ex. 2 (Grosdidier Dep.) at 37. Grosdidier also complained about an incident in 2000
when her supervisor, then-Chief Claude Porsella, removed her from editing duties. See id. at 32-
33. She was eventually reinstated to editing duties. Id. at 33-34. Grosdidier contends that her
EEO activity was generally known within the French to Africa Service. See Def.’s Ex. Y (Aff. of
Camille Grosdidier) at 2.
B. Grosdidier’s Complaints About Her Work Environment
Around 2004 and 2005, Grosdidier complained to her supervisors about what she
perceived to be a sexually charged atmosphere in the French to Africa Service. Dia had a
particularly friendly relationship with one female producer in the office, who called Dia “Sexy
Papa” and whom Dia called “Sexy Mama.” See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 109.
Ferdinand Ferella, who worked as a managing editor for the French to Africa Service, described
this as “something of a joke.” Id. Dia testified that it did not have any sexual connotation, but
instead resulted from Dia’s mistranslation of the Jimi Hendrix song “Foxy Lady.” See Pl.’s Ex. 6
(Dia Dep.) at 40-41. Grosdidier objected to the banter between Dia and this employee.
Grosdidier also complained about another female employee who called Ferella “maître,”or
“master,” which she thought was inappropriate. Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 110-
11; Pl.’s Ex. 2 (Grosdidier Dep.) at 190. This conduct stopped after Grosdidier complained.
Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 115.
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Grosdidier complained about hugging and kissing in the workplace that she perceived to
be unprofessional and outside the bounds of what was acceptable in French culture. Pl.’s Ex. 2
(Dep. of Camille Grosdidier) at 185-86. On May 3, 2005, Grosdidier sent an email to Dia
complaining about one particular female co-worker who gave a “big, long, fat hug” to a
Senegalese man visiting the office; Grosdidier objected to what she perceived as the employee’s
“pressing need to press herself against every man in sight on the slightest pretext - especially
strangers - and the way this has ‘sexualized’ our French Branch office.” Pl.’s Ex. 30 (5/3/2005
Email from Grosdidier to Dia) at 17.
Grosdidier also complained about an email sent around the office in April 2004 depicting
a man straddling a cannon, which she perceived to be sexually suggestive. See Pl.’s Ex. 24 (Dep.
of Ferdinand Ferella) at 117; Pl.’s Ex. 29 at 12 (4/13/2004 Email from Grosdidier to Eric
Agnero) (“Thanks for this edifying picture of a man with a giant object between his legs.”). Dia
told Grosdidier that the employee who sent the email did not see anything sexual about the
photograph, which depicted a famous musician from his home country. See Pl.’s Ex. 29 at 13;
Pl.’s Ex. 6 (Dia Dep.) at 36. In November 2003, the same employee had sent an email around the
office containing a picture of an outdoor marketplace in which brassieres were prominently
displayed. See Pl.’s Ex. 29 at 14. Grosdidier also complained about one male employee who
wore short shorts to the office; Ferella agreed in his deposition testimony that his attire was
unprofessional. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 118-19.
Dia took informal action in response to Grosdidier’s complaints, warning people during a
morning office meeting not to go overboard with physical contact and to keep things professional
because “someone” might complain. See Pl.’s Ex. 6 (Dep. of Idrissa Dia) at 37-38. Dia denies
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identifying Grosdidier as the potential complainant. See id. at 132. Dia told Ferella that he was
frustrated by Grosdidier’s complaints because he did not believe the conduct was sexual in
nature. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 115-16. Dia testified in his deposition
that he was upset at Grosdidier for tarnishing his warm relationship with the employee who
called him “Sexy Papa.” See Pl.’s Ex. 6 (Dep. of Idrissa Dia) at 41.
C. Grosidier’s Editing Duties & Other Work Responsibilities
Although Grosdidier’s primary responsibilities as a broadcaster in the French to Africa
Service involved reporting and producing news stories, she was occasionally given duties editing
the work of other broadcasters. Grosdidier has produced evidence indicating that between
February 2004 and at least April 2005, she was regularly assigned editing duties. See Pl.’s Ex. 26
(2/6/2004 Email from Dia to French to Africa Service) at 2 (listing Grosdidier as one of two
broadcasters on the editing team under the overall supervision of a senior editor); Pl.’s Ex. 42
(assignment sheets). Editing duties were normally handled by senior editors rather than
broadcasters like Grosdidier. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 32-33. According
to Timothee Donangmaye (“Donangmaye”), one of Grosdidier’s colleagues, only a few
broadcasters who had excellent language skills were assigned to edit. See Pl.’s Ex. 20 (Dep. of
Timothee Donangmaye) at 33-35. Donangmaye was one of those broadcasters who performed
editing duties on a rotating basis. Id. at 35-36. Grosdidier’s editing skills were mentioned
favorably in several performance evaluations during this period. See Pl.’s Ex. 40 (Performance
Appraisal Report) at 8; Pl.’s Ex. 41 (Performance Appraisal Report) at 8. When assigned editing
duties, Grosdidier would conduct the first editing review of other broadcasters’ work, and the
5
final product would be reviewed again by other supervisors. See Pl.’s Ex. 24 (Dep. of Ferdinand
Ferella) at 43.
Sometime in 2005, Dia made a change in the work assignments that resulted in
Grosdidier working less on editing assignments. Pl.’s Ex. 34 (Dia Dep.) at 66-67, 70. It appears
this change began around June 2005. See Pl.’s Ex. 3 (Assignment sheets). However, by April
2006, Grosdidier was being reassigned to editing duties on a rotating basis. See Pl.’s Ex. 34 (Dia
Dep.) at 68-72; Pl.’s Ex. 27 (Assignment sheets). Records of weekly editing assignments
produced by Grosdidier appear to indicate that she was assigned editing duties at least a few days
each month between April and December 2006. See Pl.’s Ex. 27.
Another aspect of Grosdidier’s duties at the VOA involved editing and uploading content
on the VOA’s website. According to a project manager in the BBG’s Office of Internet Services,
VOA employees cannot edit or upload content on the website unless they have received training
in the content management system used by the VOA, which is called CommonSpot. See Pl.’s
Ex. 22 (Decl. of Marlene Wright) ¶ 3. Since February 2006, an individual could not get a
password to edit or upload news until completing three CommonSpot training classes. Id. ¶ 4.
Grosdidier took her first training class on March 6, 2006 and completed the training requirement
on March 23, 2006. Id. Timothee Donangmaye completed all three classes by May 2005. Id. In
the summer of 2005, Dia sent his staff a memorandum stating that Donangmaye would be
working on the internet with some other staffers, and Grosdidier assumed this meant that she
should not be posting her own content on the website. See Pl.’s Ex. 14 (Grosdidier Dep.) at 88-
90. In February 2007, Dia sent a memorandum to his supervisors requesting approval for
Grosdidier to edit the VOA website. See Pl.’s Ex. 45 (2/12/2007 Memorandum).
6
D. Vacancy for a GS-13 International Broadcaster Position
In February 2006, BBG posted a vacancy announcement for an International Broadcaster,
GS-13 position in the French to Africa Service. Def.’s Stmt. ¶ 16. There is some evidence in the
record that Dia was aware that the vacancy would be filled as early as June 1, 2005. See Pl.’s Ex.
43 (6/1/2005 Email from Grosdidier to French to Africa Service).
The vacancy announcement stated that applicants should have the following knowledge,
skills, and abilities (“KSAs”):
(1) Proven ability to write balanced, objective radio, television and Internet scripts
on news events and feature topics that appeal to, educate, explain, and provide
context to international audiences;
(2) Broad knowledge of the principles, practices, and procedures of journalistic
writing and editing and editing for radio, TV and Internet.
(3) Knowledge of world affairs and U.S. foreign policy, as well as contemporary
political, economic, cultural, and social developments and trends in the U.S.
(4) Skill in establishing and maintaining effective and respectful working
relationships with team members, colleagues in multi-media elements of VOA, and
groups of individuals providing information or interviews for programs or program
segments.
(5) Demonstrated experience in writing/editing for a foreign audience.
(6) Knowledge of international radio broadcast, TV and Internet techniques and
practices.
Def.’s Stmt. ¶ 18. A separate position description document described the major duties for the
position to include “[p]lans and coordinates, as Webmaster, content of Website that includes
news and feature material” and indicated that the incumbent “is a host of our weekly TV
program.” See Pl.’s Ex. 52 (Position Description) at 6; Def.’s Ex. C (Position Description) at 2.
The position description was initially drafted by an employee in the BBG’s human resources
7
office, but the language regarding the webmaster duty and hosting the weekly TV program was
added at Dia’s request. See Def.’s Stmt. ¶ 17; Pl.’s Ex. 6 (Dia Dep.) at 165-67. Dia testified that
it was quite clear that whoever was selected for the position would be hosting the TV show and
managing the website. See Pl.’s Ex. 6 (Dia Dep.) at 61-62. The position was informally
described as “multi-media Senior Editor.” See Def.’s Ex. M. At the time the vacancy was
announced, Donangmaye was hosting the French to Africa Service’s weekly “Washington
Forum” program and was one of the people responsible for updating content on its website. See
Pl.’s Ex. 20 (Donangmaye Dep.) at 36-38, 43. Dia testified that the reason the Service was hiring
a GS-13 level broadcaster was because of the combined television hosting and internet duties.
See Pl.’s Ex. 6 (Dia Dep.) at 60-62. However, Donangmaye had been performing these duties as
a GS-12 level employee, and another employee who worked on the internet was employed at the
GS-9 level. See id. at 46; Pl.’s Ex. 46 (BBG/IBB Staffing Pattern). Ferdinand Ferella explained
that hosting duties are not dependent on grade level. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella)
at 106.
Dia selected a panel of three individuals to conduct the interviews of the candidates and
make a recommendation to him. Def.’s Stmt. ¶ 19. Dia was the selecting official, and he had
stated publicly that he would follow the recommendation of the panel in making his selection for
the position. Id. The three panelists were Andre de Nesnera (“de Nesnera”), Sandra Lemaire
(“Lemaire”), and Dianne Butts (“Butts”). Id. ¶ 20. All three were qualified to serve on the panel.
Id. De Nesnera is a white male of French national origin; Lemaire is a black female of Haitian
national origin; and Butts is an African-American female. Id. ¶¶ 21-23. The panelists received
the vacancy announcement and the candidates’ application packets from Dia. Id. ¶ 24. The
8
parties disagree about the extent to which Dia provided the panelists with additional information
about the candidates or the position. According to de Nesnera, Dia told the panel about the
responsibilities that would be associated with the job, but he did not provide any introductory
remarks for each candidate and he did not tell the panelists what he was looking for in the
candidates beyond the simple job description. See Pl.’s Ex. 9 (De Nesnera Aff.); Def.’s Ex. F
(De Nesnera Dep.) at 17-19. According to Lemaire, Dia gave only a brief description of the job
as it was explained in the vacancy announcement and basic introductory information about each
candidate, such as where the candidate was from. See Pl.’s Ex. 7 (Lemaire Dep.) at 26-32; Pl.’s
Ex. 8 (Lemaire Aff.) ¶ 4.
The panelists interviewed six candidates for the position on March 7, 2007. Def.’s Stmt.
¶ 25. The candidates to be interviewed included Grosdidier, Donangmaye, and four candidates
from outside the VOA. The panel unanimously recommended that Donangmaye be selected for
the position. Id. Donangmaye is a black male of Chadian national origin. Id. The panel drafted
a memorandum explaining their choice of Donangmaye based on his qualifications. See Def.’s
Ex. M. The memorandum explained that the panel was impressed by Donangmaye’s experience
in “all three facets of the multi-media structure,” i.e., radio, television, and internet. See id. The
memorandum further stated that the panel was impressed by Donangmaye’s leadership qualities
and felt that Donangmaye understood the challenges facing the French to Africa Service. Id.
The memorandum did not compare Donangmaye to any of the other candidates. See id. The
record suggests that sometime after the panel drafted this memorandum, Dia informed them that
they needed to include a score for each candidate along with the panel’s recommendation. See
Pl.’s Ex. 10 at 4-5. Dia told them to rate the applicants on a scale of 1 to 100. See id. at 6. The
9
panelists did not have a scoring sheet or a list of factors with which to assign a score; rather, the
panel assigned scores based on the panelists’ recollection of the candidates’ qualifications and
performances during their interviews. See Pl.’s Ex. 7 (Lemaire Dep.) at 53-55; Pl.’s Ex. 12 (De
Nesnera Dep.) at 24-25. The panel assigned a score of 90 points for Donangmaye, 80 points for
Grosdidier, and 85 points for the panel’s second-choice candidate, Rachid Jaafar (“Jaafar”); the
other candidates were scored lower than Grosdidier. See Def.’s Ex. M; Pl.’s Ex. 12 (De Nesnera
Dep.) at 26.
Lemaire testified that she perceived from Grosdidier’s interview that there were people in
the agency she did not get along with, suggesting she might conflict with management. See Pl.’s
Ex. 7 (Lemaire Dep.) at 59-61. She testified that she thought Rachid Jaafar was a better
candidate because he did not have these problems, explaining, “The difference between Ra[c]hid
[Jaafar] and Camille [Grosdidier] was that Ra[c]hid had been an insider–was now on the outside
and was coming back more neutral, so he really had no axe to grind with anyone.” Id. at 59.
Lemaire got the impression that Grosdidier “wasn’t a total cheerleader for the agency and for
management.” Id. at 61. Grosdidier contends that she did not say anything during her interview
that would suggest she had any problems with management, but the only record evidence in
support of this contention is the fact that Butts’s notes from the interview do not indicate any
such statements. See Pl.’s Resp. Stmt. ¶ 72(d).2 Grosdidier testified that the interview was
“disorganized,” and she felt that some of the questioning was aggressive. Pl.’s Ex. 14
2
Grosdidier also cites her own deposition testimony in which she described what she said
during the interview, but she does not explicitly claim that she did not say anything that the
panelists could have construed as critical of management. See Pl.’s Stmt. ¶ 72(e); Pl.’s Ex. 14
(Grosdidier Dep.) at 76-78.
10
(Grosdidier Dep.) at 74-75. According to Grosdidier, de Nesnera asked her, “Tell us why we
shouldn’t go with an outsider? Tell us why you would be better.” Id. at 74. Grosdidier claims
that she answered, “If you do find an outsider who’s best qualified, why not?” Id. Butts testified
that she did not recall Grosdidier being asked this question, but instead she recalled Grosdidier
volunteering something like, “fresh blood for this job might be good rather than me.” See Pl.’s
Ex. 11 (Butts Dep.) at 60-61. Butts thought Grosdidier’s response was odd and suggested she
did not really want the job. Id. at 61. De Nesnera perceived Grosdidier’s comments as
suggesting that she was less qualified to lead her coworkers. See Pl.’s Ex. 12 (De Nesnera Dep.)
at 29. Butts also testified that none of the candidates were asked whether an insider or outsider
would be better, but her notes from the interview with Donangmaye include the phrase “Insider
better why?” with a summary of Donangmaye’s explanation as to why he thought an insider was
better. See Pl.’s Ex. 11 (Butts Dep.) at 59-60; Pl.’s Ex. 16 (Butts interview notes). Grosdidier
also contends that de Nesnera asked her in a forceful voice about her leadership experience,
claiming that the GS-13 position was supervisory, despite the fact that there was nothing about
supervisory responsibilities in the job description. See Pl.’s Ex. 14 (Grosdidier Dep.) at 71-72.
There is some conflicting evidence in the record about what factors were most important
to the panelists in choosing Donangmaye as their top candidate. Lemaire testified that
supervisory experience was an important factor, and this is also reflected in Butts’s notes. See
Pl.’s Ex. 8 (Lemaire Aff.) ¶¶ 22-23; Pl.’s Ex. 16 (Butts interview notes) at 1. However, de
Nesnera testified that supervisory experience was not a factor that was seriously considered or
discussed. See Pl.’s Ex. 12 (De Nesnera Dep.) at 42-43. Both Lemaire and de Nesnera testified
that internet skills were a deciding factor that set Donangmaye apart from Grosdidier. See id. at
11
20-21; Pl.’s Ex. 7 (Lemaire Dep.) at 72-73 (“With regards to being the best person for the job, we
thought Timothee, because he had worked on the French to Africa website. But knowledge of
the internet, I think, from what I recall, Ra[c]hid and Timothee were comparable and Camille,
les[s].”). However, Butts did not recall internet experience being a main factor in the decision.
See Pl.’s Ex. 11 (Butts Dep.) at 71. Defendant states in answers to interrogatories that Lemaire
and de Nesnera also took some notes during the interviews but discarded them afterwards. See
Pl.’s Ex. 13 (BBG Discovery Responses) at 7. However, Lemaire claims in an affidavit that she
did not take any notes. See Def.’s Ex. EE (Lemaire Aff.) at 44.
Grosdidier claims that Dia selected panelists who would accede to his preference for
Donangmaye and disfavor Grosdidier in the selection process. De Nesnera was a regular guest
on the Washington Forum television program that Donangmaye hosted, and he testified at
deposition that “you can’t find a better person” than Donangmaye to be the host of that program.
See Pl.’s Ex. 12 (De Nesnera Dep.) at 8. Butts was the executive producer of the Washington
Forum program, and she had selected Donangmaye for the hosting job after an audition. See
Pl.’s Ex. 11 (Butts Dep.) at 6. Dia had also consulted with Butts, another Service Chief, about
one of Grosdidier’s altercations with another female employee who also worked with Butts. Id.
at 12-13. Butts testified that Dia had talked to her generally about Grosdidier’s complaints, and
Butts believed that Grosdidier was not happy in the Service. Id. at 14-15. However, Butts
testified that she did not talk to Dia about the selection process for the vacant position. Id. at 13.
Lemaire indicated in her deposition that Dia selected her because of her experience in
broadcasting, the internet, the French language, and African affairs. See Pl.’s Ex. 7 (Lemaire
Dep.) at 25. Lemaire was friendly with Dia, but she was not his first choice for the panel. See id.
12
at 13; Pl.’s Ex. 6 (Dia Dep.) at 58-59. Lemaire testified that she was aware that there was “in-
fighting” within that branch of the VOA, which she felt was common knowledge to those in the
agency. Pl.’s Ex. 7 (Lemaire Dep.) at 59. De Nesnera testified, however, that he was not aware
of any friction in the office. See Pl.’s Ex. 12 (De Nesnera Dep.) at 29-30.
Grosdidier also claims that Dia did not provide the panelists sufficient time to review the
candidates’ written qualifications because Grosdidier’s written qualifications were superior.
There is conflicting evidence in the record regarding the extent to which the panelists relied on
the candidates’ written qualifications. According to Lemaire, the panelists were provided a copy
of the written application materials shortly before each interview, and she did not believe that
they kept the materials for their deliberations after the interviews. See Pl.’s Ex. 7 (Dep. of
Sandra Lemaire) at 27, 32-33, 53. Butts and de Nesnera both testified that they had the
candidates’ written materials at the time of the deliberations. See Pl.’s Ex. 12 (Dep. of Andre de
Nesnera) at 17; Pl.’s Ex. 11 (Dep. of Diane Butts) at 36-37. Lemaire testified that the panel’s
assessment was based primarily on their overall assessment of the candidates and their
interviews. Id. at 53-54.
As part of her application, Grosdidier submitted a resume and a two-page statement
setting forth her KSAs. See Pl.’s Ex. 23 (Grosdidier application materials). Grosdidier’s resume
described her experience as a broadcaster with the French to Africa Service since 1987, which
included experience as substitute host of “Washington Forum.” See id. at 4. Grosdidier
explained that she had over twenty years of experience in the French to Africa Service and that
she had been responsible for producing a weekly fifteen-minute economic news magazine
program as well as a daily program covering events relating to the United States. See id. at 6.
13
Grosdidier also highlighted her international travel and cultural experiences. See id. at 6-7. With
respect to internet skills, Grosdidier stated in her KSAs statement that two of her colleagues had
been responsible for managing content on the internet but that she had familiarized herself with
the internet and was taking classes to become certified to assist with the internet duties. See id. at
7. Grosdidier also included a performance appraisal report in which Dia rated her achievement
as “highly successful.” See id. at 9-19. Grosdidier’s educational background includes a masters
degree in international affairs. See id. at 5.
Donangmaye’s application packet described his experience as a broadcaster in the French
to Africa Service since 1998 as well as his prior experience as a reporter for the Chadian
government’s news agency. See Pl.’s Ex. 38 (Donangmaye application materials) at 1-2.
Donangmaye also earned a masters degree in media analysis and management as a Fulbright
Scholar at Virginia Commonwealth University. See id. at 2. Donangmaye highlighted his
experience with internet technology in his application, noting that he was only one of two people
within the French to Africa Service who could edit the website. Id. In his statement setting forth
his KSAs, Donangmaye highlighted his writing and editing experience with the VOA and his
experience as the host of “Washington Forum.” See id. at 3. At the time of the interview and
selection, Donangmaye was not a U.S. citizen.
Rachid Jaafar was working as the Washington senior correspondent for the Al-Jazeera
broadcast network at the time he interviewed for the position of multi-media Senior Editor. See
Def.’s Ex. AA (Jaafar application materials). Jaafar also worked as a broadcast journalist and
news editor for VOA between 1984 and 2002, working primarily in the Arabic language. See id.
at 1-2. Jaafar is also fluent in French and his resume reflected experience translating between
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French, English, and Arabic. See id. He earned a masters degree in international public policy in
2002. Id. at 1. In his KSA statement, he emphasized his experience as a reporter, his experience
establishing and maintaining work relationships, and his familiarity with African issues. See id.
at 3-4. Jaafar was a U.S. citizen at the time of the interview and selection. See Def.’s Stmt. ¶ 35.
Dia accepted the panel’s recommendation of Donangmaye. On March 8, 2006, the day
after the panel conducted its interviews and made its recommendation, Dia wrote to his
supervisor explaining why Donangmaye should be selected for the position over Jaafar and
Grosdidier, who were U.S. citizens. See Def.’s Ex. N (3/8/2006 Letter from Dia to Gwen
Dillard). Dia wrote that he agreed with the panel that Donangmaye was the most qualified
candidate for the job. See id. Dia praised Donangmaye’s command of the French language, his
experience as a newswire writer (which Dia believed made Dia particularly qualified to edit the
website), his knowledge of African issues, and his positive workplace relationships. See id. On
March 22, 2006, Dia wrote a memorandum to the Chief of the agency’s Operations Division
explaining why Donangmaye should be selected for the position over the other qualified U.S.
citizens. See Def.’s Ex. N (3/22/2006 Memorandum from Dia to LaPrell Murphy). He wrote
that Donangmaye had been selected for the GS-13 multi-media Senior Editor position and
praised his qualifications. See id. Dia distinguished the experience of Jaafar as more relevant to
the Arab world than to sub-Saharan Africa, which is targeted by the French to Africa Service.
See id. Dia stated that Grosdidier had a better knowledge of sub-Saharan Africa than Jaafar but
that it was not as extensive as Donangmaye’s. Id. Dia also noted that Grosdidier had not
completed the CommonSpot training for the website. Id. Dia also stated that based on his
knowledge of Grosdidier’s and Donangmaye’s respective strengths and weaknesses in the French
15
language and African issues, as well as their interactions with colleagues in the Service, he was
confident that Donangmaye was the best candidate for the position. Id.
E. Grosdidier’s EEO Complaint Regarding Her Nonselection
Grosdidier was notified of her nonselection for the promotion on April 3, 2006. See
Answer ¶ 5(a)(i). On July 5, 2006, she timely filed a formal complaint alleging that she was not
selected because of her sex, race, national origin, and her prior EEO activity. Compl. ¶ 5(a)(i)-
(ii). In proceedings before the Equal Employment Opportunity Commission (“EEOC”),
Grosdidier conducted discovery and took numerous depositions. Id. ¶ 5(a)(iii). She deposed Dia
on February 2, 2007. See Pl.’s Ex. 6 (Dia Dep.). The EEOC did not grant Grosdidier the relief
she requested.
F. Additional Acts of Alleged Discrimination
Grosdidier claims that after she complained about her nonselection, Dia failed to take
appropriate steps to ensure that Grosdidier’s position description was updated to reflect the duties
of “International Broadcaster” as opposed to “International Radio Broadcaster,” leaving her
position vulnerable in the face of a potential reduction in force action. See Compl. ¶ 27; Pl.’s Ex.
2 (Grosdidier Dep.) at 39-40. The record shows that Dia submitted updated position descriptions
to the agency’s Office of Human Resources for all of his employees in March or April 2007. See
Def.’s Ex. P (Aff. of Carroll Cobb) at 4. Grosdidier disputes this but cites no contrary evidence
in the record. See Pl.’s Resp. Stmt. ¶¶ 54-55.
According to Grosdidier, Dia removed her from participating as a contributor or host on
“Washington Forum” in the fall of 2006. See Pl.’s Ex. 58 (Grosdidier Aff.) at 6. Grosdidier also
claims that shortly after Dia was deposed as part of the EEOC litigation in February 2007, she
16
was again removed from editing duties on a rotational basis. See Pl.’s Opp’n at 41; Pl.’s Resp.
Stmt. ¶ 59.3 Grosdidier has produced records of weekly editing assignments from 2007 that
appear to indicate that Grosdidier was assigned editing responsibilities during one week in late
January/early February 2007 (two days), one week in late February (one day), one week in late
March (four days), one week in early May (five days), and no times throughout the rest of 2007.
See Pl.’s Ex. 28 (2007 assignment sheets).4 It appears that when Grosdidier was not assigned
editing duties, first-level editing was handled by either Henry Francisque, a GS-13 Senior Editor,
Jean Claude Andre, another GS-12 broadcaster, or Donangmaye, now promoted to the GS-13
Senior Editor position. See id. Dia testified that Grosdidier had never had regular editing duties
and that her assignments were always made on an ad hoc basis. See Pl.’s Ex. 6 (Dia Dep.) at 13-
20. Ferdinand Ferella testified at his deposition in March 2009 that the primary editing
assignments had not changed since 2004 when Grosdidier was initially assigned to be a part of
the editing team. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 58-60, 147.
Grosdidier also claims that Dia stopped speaking to her after she filed her complaint
regarding her nonselection for the position. However, the only evidence she cites in support of
this claim is an affidavit from one of her coworkers, Samuel Kiendrebeogo, who stated that Dia
once asked him to relay a message to her regarding a trip she was scheduled to take to Mexico.
3
The Court notes that Grosdidier’s testimony about her reduction in editing
responsibilities has been inconsistent. For example, in one of her affidavits, she claims that was
removed from editing on a regular basis in June 2007. See Pl.’s Ex. 58 at 7. In her opposition
brief, she claims it started in February 2007. See Pl.’s Opp’n at 41.
4
Although Grosdidier does not explain these records directly, they were discussed and
explained by Ferdinand Ferella in his deposition. See Pl.’s Ex. 24 at 40-46.
17
See Pl.’s Ex. 33 (Aff. of Samuel Kiendrebeogo) at 5.5 Kiendrebeogo also states that Grosdidier
told him that she was tired of having intermediaries relay messages from Dia, but this statement
is hearsay and may not be considered by the Court as part of the record at summary judgment.
Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000).
On April 1, 2008, Grosdidier received a letter of admonition from Dia for turning off
shared office printer that was being used by another employee. Def.’s Ex. Q (4/1/2008 Letter
from Dia to Grosdidier). The letter stated that Grosdidier’s conduct was disruptive to the
efficiency of the office and inconsiderate to coworkers. See id.G. Grosdidier’s Second EEO Complaint
Grosdidier contacted an EEO counselor on November 20, 2007 to complain about further
discrimination. Def.’s Stmt. ¶ 3. On December 27, 2007, Grosdidier filed a formal complaint of
discrimination with the BBG. See Def.’s Ex. W (Formal Complaint of Discrimination). In her
formal complaint, Grosdidier claimed that she had been discriminated against on the basis of her
sex, national origin, and engaging in prior EEO activity in 2000, 2001, and 2006. See id. She
claimed that the dates of the alleged discriminatory acts were November 20, 2007 and from
January 2007 to the present (i.e., December 27, 2007). Id. Grosdidier complained about the fact
that her position description had not been updated, reduced professional responsibilities, and her
5
The Court notes that Grosdidier may have provided evidence to support this claim in her
affidavits during the EEOC litigation, many of which she has attached to her opposition brief.
However, she has not cited this evidence in either her opposition brief or her statement of
material facts, and therefore the Court need not consider it. See Fed. R. Civ. P. 56(c)(3) (“The
court need consider only the cited materials . . . .”); LCvR 7(h)(1) (“An opposition to . . . a
motion [for summary judgment] shall be accompanied by a separate concise statement of genuine
issues setting forth all material facts as to which it is contended there exists a genuine issue
necessary to be litigated, which shall include references to the parts of the record relied upon to
support the statement.”) (emphasis added).
18
supervisor’s refusal to directly interact with her. Id. On January 9, 2008, the agency sent
Grosdidier a letter indicating that the following claims had been accepted for processing:
Whether you were subjected to a hostile work environment and discriminated against
due to your Sex (female), National Origin (French) and Reprisal (engaging in prior
protected EEO activity) when the following acts occurred:
1. On or about November 20, 2007, your supervisor refused to update your position
description while updating those of your colleagues.
2. Your supervisor has reduced your professional responsibilities by decreasing your
editing assignments, television air time, supervisory duties and rotational
assignments; and
3. Since February 2007, your supervisor has refused to interact directly with you;
instead he uses your colleagues or email to communicate with you.
Def.’s Ex. R at 1. On April 2, 2008, Grosdidier’s attorney contacted the agency to amend her
complaint to add a claim for:
an ongoing pattern of behavior, aimed at Ms. Grosdidier because of her gender, age,
national origin, and protected EEO activity and including, in addition to the
allegations already included in the complaint, her Branch Chief’s (unjustifiable and
disparate) direct and indirect criticisms of work performance, and his formal and
informal disciplinary actions against her including, most recently, the issuance of a
letter of admonition on April 1, 2008.
See Pl.’s Ex. 1 (4/2/08 Letter from Leslie D. Alderman III to Delia Johnson, Int’l Broadcasting
Bureau). The agency responded on May 12, 2008, indicating that Grosdidier’s complaint had
been amended to include her allegation that her sex, age, national origin, and prior EEO activity
were factors in her receiving a letter of admonition on April 1, 2008. See Pl.’s Ex. 1 (5/12/08
Letter from Delia Johnson to Leslie D. Alderman III).
19
II. LEGAL STANDARD
Defendant has filed a motion for judgment on the pleadings or alternatively, a motion for
summary judgment. Pursuant to Federal Rule of Civil Procedure 12(d), if “matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” Because the parties have engaged in discovery and
presented evidence outside the pleadings for the Court’s consideration, the Court shall treat
Defendant’s motion solely as a motion for summary judgment.
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials); or
(B) showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When
considering a motion for summary judgment, the court may not make credibility determinations
or weigh the evidence; the evidence must be analyzed in the light most favorable to the
nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisputed, are
20
susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman, 571
F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).
The mere existence of a factual dispute, by itself, is insufficient to bar summary
judgment. See Liberty Lobby, Inc., 477 U.S. at 248. “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Id. For a dispute about a material fact to be “genuine,” there must be sufficient
admissible evidence that a reasonable trier of fact could find for the nonmoving party. Id. The
Court must determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251-52. “If the evidence is merely colorable, or is not sufficiently probative, summary
judgment may be granted.” Id. at 249-50 (internal citations omitted). The adverse party must
“do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory
assertions offered without any factual basis in the record cannot create a genuine dispute. See
Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
III. DISCUSSION
In her Complaint, Grosdidier asserts causes of action for discrimination based on her race,
national origin, sex, age, and prior EEO activity. Grosidier’s specific claims are based on: (1) her
nonselection for the GS-13 International Broadcaster position in March 2006; (2) the reduction in
her editing duties and other responsibilities, including removal as substitute host of “Washington
Forum”; (3) the failure to update her job description to reflect the duties of International
Broadcaster; (4) her supervisor’s cessation of direct interaction with her; (5) the letter of
21
admonition issued to her in April 2008; and (6) the vocal and demeaning criticism Grosdidier
received of her work performance and interaction with coworkers. Based on these actions,
Grosdidier asserts claims for discrimination, retaliation, and hostile work environment.
In its motion for summary judgment, Defendant contends that Grosdidier has failed to
exhaust many of her claims, that she has not suffered any adverse employment action, and that
she has not produced evidence sufficient for a reasonable jury to conclude that she was the victim
of discrimination, retaliation, or a hostile work environment. Grosdidier concedes that she did
not exhaust her age discrimination claims and has withdrawn any claims for violations of the
ADEA. See Pl.’s Resp. Stmt. ¶ 12; Pl.’s Opp’n at 1. Accordingly, the Court shall grant
Defendant’s motion for summary judgment with respect to Grosdidier’s ADEA claims.
Grosdidier disputes Defendant’s other contentions and has filed a motion for an adverse
inference based on the destruction of certain evidence relating to her interview for the GS-13
International Broadcaster position. The Court shall address the parties’ arguments below.
A. Exhaustion of Administrative Remedies
Before filing suit under Title VII, federal employees must timely exhaust their
administrative remedies. See 42 U.S.C. § 2000e-16(c); Harris v. Gonzales, 488 F.3d 442, 443
(D.C. Cir. 2007). Under the broad authority conferred by Congress, the EEOC “has established
detailed procedures for the administrative resolution of discrimination complaints, including a
series of time limits for seeking informal adjustment of complaints, filing formal charges, and
appealing agency decisions to the Commission.” Bowden v. United States, 106 F.3d 433, 437
(D.C. Cir. 1997). The administrative time limits created by the EEOC function like statutes of
limitations with which complainants must comply. Id. Of particular significance in this case is
22
the requirement that “[a]n aggrieved person . . . initiate contact with a[n EEO] Counselor within
45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1); 488 F.3d at 443.
“[A] court may not consider a discrimination claim that has not been exhausted in this manner
absent a basis for equitable tolling.” Steele v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008). Any
civil action that follows a charge of discrimination “is limited in scope to claims that are ‘like or
reasonably related to the allegations of the charge and growing out of such allegations.’” Park v.
Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Cheek v. W. & S. Life Ins. Co., 31
F.3d 479, 500 (7th Cir. 1994)); see also Na’im v. Rice, 577 F. Supp. 2d 361, 369-70, 372 (D.D.C.
2008). “At a minimum, the Title VII claims must arise from the administrative investigation that
can reasonably be expected to follow the charge of discrimination.” Park, 71 F.3d at 907.
Defendant bears the burden of proving by a preponderance of the evidence that the plaintiff failed
to exhaust administrative remedies. Nai’m v. Rice, 577 F. Supp. 2d at 370 (citing Brown v.
Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)).
1. Claims of Discrimination Based on Race
In her Complaint, Grosdidier asserts causes of action for discrimination based on race
with respect to each alleged adverse employment action. See Compl. ¶ 32. However, she did not
list race as a basis for her claims on her December 2007 EEO complaint, on which she relies for
all of her claims save her nonselection claim. Grosdidier does not dispute this, and she does not
argue in her opposition brief that her claim of race discrimination was “like or reasonably
related” to her claims of sex, national origin, or reprisal discrimination. See Pl.’s Resp. Stmt. ¶
11; Pl.’s Opp’n at 34-35. Accordingly, the Court shall grant Defendant’s motion for summary
23
judgment with respect to Grosdidier’s claims for discrimination based on race relating to actions
other than her nonselection for a GS-13 International Broadcaster position.
2. Claim Based on Reduction of Duties
Grosdidier asserts causes of action for discrimination and retaliation based on the alleged
reduction in her editing responsibilities and other work duties. Grosdidier contacted an EEO
counselor about her reduction in duties in November 2007, but Defendant contends that this was
untimely because it was not within 45 days of the alleged reduction in duties. The record clearly
shows that many of Grosdidier’s complaints about reduced responsibilities pertain to events that
occurred more than 45 before she contacted an EEO counselor in November 2007. See, e.g.,
Pl.’s Resp. Stmt. ¶ 9 (“Plaintiff’s editing duties were reduced dramatically in the latter part of
2005.”); Pl.’s Opp’n at 41 (“[Dia] removed Ms. Grosdidier from participating as a contributor or
host on Washington Forum in the fall of 2006.”). Therefore, her complaint in November 2007
was untimely with respect to these actions. Grosdidier does not identify in her opposition brief
any specific reduction in duties that occurred during the 45-day time period preceding her EEO
counseling. However, she does claim that her editing responsibilities were reduced from
February 2007 onward, and therefore she has claimed that her editing duties were reduced during
and after the 45-day period preceding her EEO counseling, which began on October 5, 2007.
The record indicates that assignments were made on a weekly basis. To the extent that
Grosdidier purports to assert claims based on weekly assignments after October 5, 2007, they
have been timely exhausted. See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 628
(2007) (“[I]f an employer engages in a series of acts each of which is intentionally
discriminatory, then a fresh violation takes place when each act is committed.”). However, the
24
Court shall grant Defendant’s motion for summary judgment with respect to Grosdidier’s claims
for discrimination and retaliation based on any reduction in her workplace responsibilities that
occurred more than 45 days before she initiated EEO counseling.
3. Claim Based on Cessation of Direct Interaction with Her Supervisor
Grosdidier also asserts causes of action for discrimination and retaliation based on her
supervisor’s alleged cessation of direct interaction with her. Grosdidier complained about this
conduct to an EEO counselor in November 2007, and the only evidence in the record relating to
this claim is a single incident in which Dia asked one of Grosdidier’s coworker’s to pass along a
message to her. The record does not clearly indicate when this occurred, and therefore Defendant
has failed to establish that Grosdidier did not timely exhaust this claim.
4. Claim Based on Hostile Work Environment
In her Complaint, Grosdidier asserts a claim for hostile work environment based on her
employer’s ongoing conduct. Grosdidier exhausted a hostile work environment claim, as
demonstrated by the fact that the agency investigated whether she was subjected to a hostile work
environment when her supervisor failed to update her position description, reduced her
professional responsibilities, refused to interact directly with her, and issued her a letter of
admonition. Even though Grosdidier did not explicitly allege a hostile work environment in her
formal complaint, “[a] plaintiff may adequately exhaust administrative remedies without
specifically alleging a hostile work environment claim in her formal EEO complaint so long as
the hostile work environment claim is ‘like or reasonably related to the allegations . . . [in the
formal EEO complaint] and grows out of such allegations.’” Na’im v. Rice, 577 F. Supp. 2d 361,
372 (D.D.C. 2008) (quoting Robertson v. Snow, 404 F. Supp. 2d 79, 96 (D.D.C. 2005)).
25
Therefore, to the extent that Grosdidier’s complaint is based on the allegations in her formal
complaint, she has exhausted her claim.
However, Defendant contends that Grosdidier is trying to expand her hostile work
environment claim to include actions such as an alleged “sexually charged atmosphere” in 2005
and other events that were not described in Grosdidier’s December 2007 complaint. Grosdidier
argues that the Court should consider acts dating back to 2005, relying heavily on National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), in which the Supreme Court held
that “[p]rovided that an act contributing to the claim occurs within the filing period, the entire
time period of the hostile work environment may be considered by a court for the purposes of
determining liability.” 536 U.S. at 117. However, the Morgan Court was focused only on Title
VII’s statute of limitations. Id.; see 42 U.S.C. § 2000e-5(e)(1) (requiring Title VII plaintiffs to
file a charge with the EEOC within either 180 or 300 days “after the alleged unlawful
employment practice occurred”). The Morgan Court did not explicitly address the parallel
requirement that a plaintiff administratively exhaust her claims by presenting them to the EEOC
or, in the case of a federal employee, the federal agency. “To satisfy the exhaustion requirement,
the allegations in an administrative complaint must be sufficiently specific in order to ‘give
federal agencies an opportunity to handle matters internally whenever possible.’” Hussain v.
Gutierrez, 593 F. Supp. 2d 1, 5 (D.D.C. 2008) (quoting Brown v. Marsh, 777 F.2d 8, 14 (D.C.
Cir. 1985)), appeal dismissed, 2010 WL 1632715 (D.C. Cir. 2010). “At a minimum, the Title
VII claims must arise from the administrative investigation that can reasonably be expected to
follow the charge of discrimination.” Park, 71 F.3d at 907.
26
Although Grosdidier did present a claim for hostile work environment to the agency, the
record shows that her claim was much more limited in scope than the claim she is asserting in
federal court. Grosdidier’s formal administrative complaint, as subsequently amended, described
only four sets of adverse actions: (1) failure to update Grosdidier’s position description; (2)
reduction in Grosdidier’s responsibilities; (3) cessation of direct interaction from Grosdidier’s
supervisor; and (4) a letter of admonition. Grosdidier’s formal complaint listed the dates of
discriminatory conduct as extending from January 2007 to the present, meaning that the agency
would not have had a basis to investigate Grosdidier’s claims about a “sexually charged
atmosphere” or other discrete acts that occurred before January 2007. While Morgan recognizes
that a hostile work environment constitutes a single adverse employment action that occurs over
a period of time, Grosdidier’s December 2007 complaint, as amended, was not sufficiently
specific to make the agency aware that she was claiming the existence of a hostile work
environment as far back as 2005. Indeed, if Grosdidier had believed that her work environment
was hostile in 2005, she presumably would have raised this issue in the formal complaint she
filed in July 2006. Therefore, the Court finds that Grosdidier has failed to exhaust her hostile
work environment claim to the extent that it relies on allegations that are not “like or reasonably
related to” those she raised in her formal complaint with the agency. Accordingly, the Court
shall not consider unrelated allegations in determining whether Grosdidier has established a
hostile work environment claim.
B. Grosdidier’s Nonselection Claim
Grosdidier contends that her nonselection for the GS-13 International Broadcaster
position was the result of discrimination based on her race, national origin, and sex and
27
retaliation for her engaging in prior EEO activity. Defendant denies these allegations, arguing
that Grosdidier was not selected for the position because she was not the most qualified
candidate. Defendant argues that Grosdidier has failed to show that its legitimate explanation is
pretext for discrimination or retaliation and that Grosdidier has failed to produce evidence
sufficient for a jury to conclude that there was a causal connection between her nonselection and
her sex, race, national origin, or protected EEO activity. Defendant also contends that
Grosdidier’s complaints about her work environment in 2005 do not constitute protected activity
and therefore cannot provide the basis for a retaliation claim under Title VII. The Court shall
review the parties’ contentions below.
1. Discrimination and Retaliation Claims Under Title VII
Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, condition, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII also contains an antiretaliation
provision that makes it unlawful for an employer to “discriminate against any of his employees or
applicants for employment . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Id.
§ 2000e-3(a). In the absence of direct evidence of discrimination or retaliation, Title VII claims
are assessed pursuant to a burden-shifting framework initially set out by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Pursuant to that framework,
the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie
28
case of discrimination or retaliation. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-
53 (1981). Then, “the burden shifts to the defendant ‘to articulate some legitimate,
nondiscriminatory reason for the [adverse employment action].’” Id. at 253 (quoting McDonnell
Douglas, 411 U.S. at 802). However, the D.C. Circuit has stressed that once an employer has
proffered a nondiscriminatory reason, the McDonnell Douglas burden-shifting framework
disappears, and the court must simply determine whether the plaintiff has put forward enough
evidence to defeat the proffer and support a finding of retaliation. Woodruff v. Peters, 482 F.3d
521, 530 (D.C. Cir. 2007); see also Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494
(D.C. Cir. 2008) (“[W]here an employee has suffered an adverse employment action and an
employer has asserted a legitimate, non-discriminatory reason for the decision, the district court
need not—and should not—decide whether the plaintiff actually made out a prima facie case
under McDonnell Douglas.”). In reviewing a motion for summary judgment, the court “looks to
whether a reasonable jury could infer . . . retaliation from all the evidence, which includes not
only the prima facie case but also the evidence the plaintiff offers to attack the employer’s
proffered explanation for its action and other evidence of retaliation.” Jones v. Bernanke, 557
F.3d at 677 (internal quotation marks omitted); accord Aka v. Washington Hosp. Ctr., 156 F.3d
1284, 1289 (D.C. Cir. 1998) (en banc) (“[T]he focus of proceedings at trial (and summary
judgment) will be on whether the jury could infer discrimination from the combination of (1) the
plaintiff’s prima facie case; (2) any evidence the plaintiff presents to attack the employer’s
proffered explanation for its actions; and (3) any further evidence of discrimination that may be
available to the plaintiff (such as independent evidence of discriminatory statements or attitudes
on the part of the employer) or any contrary evidence that may be available to the employer (such
29
as evidence of a strong track record in equal opportunity employment).”). A plaintiff who creates
a genuine issue of material fact as to whether the employer has given the real reason for its
employment decision will not always be deemed to have presented enough evidence to survive
summary judgment. Aka, 156 F.3d at 1289. However, evidence of pretext usually will be
enough to get a plaintiff’s claim to a jury. Pardo-Kronemann v. Donovan, 601 F.3d 599, 604
(D.C. Cir. 2010) (citing Jones v. Bernanke, 557 F.3d 670, 678-79 (D.C. Cir. 2009)).
In a case involving nonselection for a promotion, a Title VII plaintiff may meet her
burden “by persuading the court that a discriminatory reason more likely motivated the employer
or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”
Burdine, 450 U.S. at 256. “When an employer says it made a hiring decision based on the
relative qualification of the candidates, ‘we must assume that a reasonable juror who might
disagree with the employer’s decision, but would find the question close, would not usually infer
discrimination on the basis of a comparison of qualifications alone.’” Jackson v. Gonzales, 496
F.3d 703, 707 (D.C. Cir. 2007) (quoting Aka, 156 F.3d at 1294). “In order to justify an inference
of discrimination, the qualifications gap must be great enough to be inherently indicative of
discrimination.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006); see Aka, 156 F.3d at
1294 (holding that factfinder may infer discrimination where a reasonable employer would have
found the plaintiff to be “significantly better qualified for the job”). A plaintiff attacking a
qualifications-based explanation may also “seek to expose other flaws in the employer’s
explanation” by, for example, demonstrating that the employer’s explanation was fabricated after
the decision was made or that the employer’s explanation actually misstates the candidates’
qualifications. Aka, 156 F.3d at 1295.
30
2. Evidence Supporting Grosdidier’s Claims
In her opposition brief, Grosdidier identifies a number of discrete categories of evidence
supporting her claim that her nonselection for the GS-13 International Broadcaster position was
discriminatory and/or retaliatory. Grosdidier’s evidence generally supports her theory that the
selecting official, Idrissa Dia, preselected Timothee Donangmaye for the position and structured
the promotion process in a way that ensured that Donangmaye would be selected over
Grosdidier. Such preselection does not violate Title VII if is based on the qualifications of the
candidate and not discrimination against a protected classification. Nyunt v. Tomlinson, 543 F.
Supp. 2d 25, 39 (D.D.C. 2008), aff’d sub nom. Nyunt v. Chairman, Broadcasting Bd. of
Governors, 589 F.3d 445 (D.C. Cir. 2009). However, Grosdidier contends that the evidence
shows that the selection process was poisoned by discriminatory and/or retaliatory animus. The
Court shall review each of Grosdidier’s contentions below.
a. Evidence that Dia Bore Discriminatory and Retaliatory Animus
Toward Grosdidier
Grosdidier claims that Dia bore discriminatory and retaliatory animus against her based
on her complaints about what she perceived to be a sexually charged workplace environment.
There is evidence in the record that Dia was upset at Grosdidier for making complaints about his
use of term “Sexy Mama” with a female employee, and this evidence could support a finding that
Dia harbored some retaliatory animus against her. However, the evidence in the record cited by
Grosdidier would not support a finding that Dia bore any discriminatory animus based on
Grosdidier’s sex, race, or national origin. Although Grosdidier had complained about what she
perceived to be sexually suggestive language or conduct in the workplace, none of the comments
31
or conduct were directed at Grosdidier or clearly sexist. Cf. Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998) (“We have never held that workplace harassment, even
harassment between men and women, is automatically discrimination because of sex merely
because the words used have sexual content or connotations.”). Furthermore, Grosdidier has
presented absolutely no evidence of bias based on race or national origin in her workplace.
Therefore, the record at most supports a finding that Dia bore retaliatory animus against
Grosdidier based on her complaints about a sexually charged workplace.
b. Evidence that Dia Manipulated Grosdidier’s Duties to
Disadvantage Her in the Selection Process
Grosdidier contends that after Dia learned that he would permitted to fill the GS-13
position, he took deliberate steps to disadvantage Grosdidier and advantage Donangmaye for the
position. Specifically, Grosdidier claims that Dia removed her from regular editing duties shortly
after he learned that he would be filling the GS-13 Senior Editor position. Although Defendant
argues that editing assignments were made on an as-needed basis, there is evidentiary support for
Grosdidier’s claim, since it appears that she stopped receiving editing assignments from Dia in
June 2005 and began receiving them in April 2006 after Dia had selected Donangmaye for the
position. However, there is no evidence that the panelists considered this as a factor in
determining that Donangmaye was more qualified than Grosdidier.
Grosdidier also contends that Dia disadvantaged her by precluding her from posting
content on the French to Africa Service’s website. However, there is no evidence in the record
that Dia precluded Grosdidier from working on the internet; Grosdidier admitted that she had
assumed she was not supposed to work on the internet based on Dia’s memo indicating that
32
Donangmaye would be responsible for internet content. Nonetheless, the record might support
an inference that Dia favored Donangmaye over Grosdidier with respect to the assignment of
internet duties, since Dia did not ask for Grosdidier to be assigned internet duties until February
2007.
c. Evidence that Dia Structured the Selection Process to Disadvantage
Grosdidier
Grosdidier claims that Dia manipulated the vacancy announcement so that the position
would be specifically tailored to Donangmaye’s resume and disadvantage Grosdidier. The record
does indicate that Dia added the duties of webmaster and weekly television host to the position
description, duties that were already being performed by Donangmaye. There is also some
evidence in the record suggesting that these duties were not essential to the creation of a GS-13
position. This evidence might be construed as showing that Dia was trying to structure the
position in a way that would favor Donangmaye. Grosdidier also contends that Dia chose
interview panelists who were predisposed to rule in favor of Donangmaye and against
Grosdidier. Although there is no clear evidence of bias by the panelists, at least of two of the
panelists had worked with Donangmaye and may have been predisposed to select him based on
their positive experiences working with him, although they denied any preselection. In addition,
the record indicates that Dia had communicated with one of the panelists about one of
Grosdidier’s complaints about a sexually charged work environment, suggesting that Dia may
have influenced that panelist’s view of Grosdidier.
d. Evidence that the Panelists Mistreated Grosdidier During the
Interview Process
Grosdidier contends that the record demonstrates that the panelists treated Grosdidier
33
differently than the other candidates and disregarded Grosdidier’s allegedly superior
qualifications. However, there is no evidence that the panelists treated Grosdidier differently
than the other candidates; Grosdidier’s claim of unfair treatment is unsupported speculation
based on what she perceived to be aggressive questioning from the panel. Grosdidier also claims
that the panelists disregarded her superior qualifications as an editor, a critical skill for the Senior
Editor position. However, the record does not establish that Grosdidier had significantly better
qualifications as an editor than Donangmaye. Both Grosdidier and Donangmaye had many years
of experience editing and had been assigned editing duties by Dia on a rotational basis; the fact
that Grosdidier had more years of experience in total and provided more detailed written
application materials does not mean that she was more qualified for the position. Furthermore,
the record shows that Grosdidier was less qualified than Donangmaye regarding internet skills
because he was already trained to edit the VOA website and had been editing content on the
webiste for nearly a year prior to the interview. Grosdidier complains about the fact that the
panel apparently focused more on her interview than her written qualifications, but that does not
suggest that the panel was biased against her. Grosdidier’s complaints about the manner in
which the panelists evaluated her qualifications do not give rise to any inference of
discrimination by the panel. “Title VII, it bears repeating, does not authorize a federal court to
become ‘a super-personnel department that reexamines an entity’s business decisions.’” Barbour
v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999) (quoting Dale v. Chi. Tribune Co., 797 F.2d
458, 464 (7th Cir. 1986)); see also Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C.
Cir. 1996) (“Title VII liability cannot rest solely upon a judge’s determination that an employer
misjudged the relative qualifications of admittedly qualified candidates.”).
34
Grosdidier also contends that the panelists gave contradicting accounts of the selection
process and that this suggests they were covering up their bias against her. However, the
“contradictions” claimed by Grosdidier are exaggerated and largely based on the panelists’
inability to remember the details of their deliberations. The fact that the panelists disagree about
whether supervisory experience or familiarity with the internet were important factors in the
decision does not suggest a cover-up; it mostly suggests that each panelist had different concerns
about what factors were most important for the position. Grosdidier has not established that any
of these factors were improperly considered or that she was obviously the most qualified
candidate based on these factors.
Grosdidier argues that the numerical scores assigned by the panel were arbitrary and that
this supports a finding that the panel was biased against Grosdidier. The record does indicate
that the panelists initially selected Donangmaye as their top choice before being informed by Dia
of the need to assign scores to the candidates. Furthermore, the lack of a formal rating or
assessment process does suggest that the scores were somewhat arbitrary. However, this does
not call into question the validity of the panel’s judgment that Donangmaye was the most
qualified candidate, followed by Jaafar, followed by Grosdidier. Again, Grosdidier’s complaints
focus on the panel’s evaluation of her qualifications, which were not clearly superior to both
Donangmaye and Jaafar. The record shows that Jaafar had similar educational qualifications as
Grosdidier and over two decades of experience as a broadcast journalist, mostly with the VOA.
Grosdidier argues that Jaafar’s experience should be discounted because he worked in Arabic,
but the record shows that he was fluent in French and had experience translating French into
Arabic. The panel could have reasonably decided that he was more qualified than Grosdidier.
35
e. Evidence that the Panelists Believed Grosdidier Had an “Axe to
Grind”
Grosdidier argues that the record shows that the panelists believed Grosdidier had an axe
to grind with the agency and this was the reason she was not selected for the promotion. Indeed,
there is evidence in the record suggesting that the panelists were concerned that Grosdidier’s
views might clash with agency management and that this was one factor that the panelists
weighed against Grosdidier’s candidacy. Although friction with management may be a
legitimate reason for choosing not to promote an employee, a reasonable jury might conclude,
drawing all inferences in favor of Grosdidier, that the panel’s concerns were motivated by
Grosdidier’s prior complaints a sexually charged work environment. Therefore, to the extent
Grosdidier’s complaints amounted to statutorily protected activity, a jury might conclude that
retaliation played a role in the panel’s decisions.
f. Evidence that the Panelists Destroyed Documents Relating to
Selection; Motion for Adverse Presumption
Grosdidier contends that the record clearly shows that two of the panelists destroyed
documents relating to the selection process, and therefore the Court should presume that these
documents would have demonstrated that the panelists did not judge her on the merits but instead
discriminated and retaliated against her. Grosdidier has filed a [23] Motion for Adverse
Presumption in which she asks the Court to enter an adverse inference against Defendant, namely
that all of the evidence that was destroyed would be favorable to Grosdidier and unfavorable to
Defendant. “A sanction for failure to preserve evidence is appropriate only when a party has
consciously disregarded its obligation to do so.” Shepherd v. Am. Broad. Cos., Inc., 62 F.3d
1469, 1481 (D.C. Cir. 1995). “In general, the destruction of notes or other documents
36
purportedly relevant to a case of discrimination has no effect except when the circumstances of
destruction provide a basis for attributing bad faith to the agency involved.” More v. Snow, 480
F. Supp. 2d 257, 274 (D.D.C. 2007) (quotation marks and citations omitted).
Defendant does not dispute that Sandra Lemaire and Andre de Nesnera discarded their
notes regarding the selection process because they did not think they needed to keep them. See
Pl.’s Ex. 13 (BBG Discovery Responses) ¶ 12. But see Def.’s Ex. EE (Lemaire Aff.) at 44
(indicating that Lemaire did not take any notes). Grosdidier contends that this destruction
violated 29 C.F.R. § 1602.14, which provides in pertinent part that “[a]ny personnel or
employment record made or kept by an employer (including but not necessarily limited to . . .
records having to do with . . . promotion . . . ) shall be preserved by the employer for a period of
one year from the date of the making of the record or the personnel action involved, whichever
occurs later.” The EEOC has construed this regulation to apply to the preservation of interview
notes. See Clayton v. Potter, EEOC Appeal No. 0720070042, 2007 WL 2228870 (E.E.O.C. July
26, 2007). Grosdidier also argues that the destruction of interview notes violated internal agency
rules requiring that the entire case file, including documentation supporting the personnel action,
be transmitted to the VOA’s personnel department. See Pl.’s Mot. for Adverse Presumption, Ex.
2 (“Guidelines for Selection, Promotion, and Employment of Non-U.S. Citizens in the Presence
of Qualified U.S. Citizen Competitors.”) at 2. However, these guidelines do not explicitly state
that interview notes must be kept as part of the case file, and there is no evidence in the record
that either Lemaire or de Nesnera was aware of these guidelines. Therefore, although Lemaire
and de Nesnera may have been negligent if they discarded their interview notes, there is
insufficient evidence in the record to support a finding of bad faith. Accordingly, the Court shall
37
deny Grosdidier’s Motion for Adverse Presumption. However, as Grosdidier acknowledges in
her motion, see Pl.’s Mot. for Adverse Presumption at 12 n.6, the Court must evaluate the record
in the light most favorable to Grosdidier when considering Defendant’s motion for summary
judgment, and therefore she is already entitled to all reasonable inferences that can be drawn
from the record. Even where an adverse inference is not warranted due to a lack of bad faith, the
failure to follow a regulation requiring the preservation of evidence may be deemed by the finder
of fact to be probative of the true motivation behind the employment decision. See Johnson v.
Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982) (“[A] failure on the part of the . . . employer to
follow its own regulations and procedures, alone, may not be sufficient to support a finding of . .
. discrimination[, but] the adherence to or departure from internal hiring procedures is a factor
that the trier of fact may deem probative and choose to consider in determining the true
motivation behind the hiring decision . . . .”); McIntyre v. Peters, 460 F. Supp. 2d 125, 138
(D.D.C. 2006) (“[D]efendant’s failure to follow its own policy requiring the retention of
employment decision documents, when viewed in light of plaintiff’s other evidence of pretext,
raises a credibility question that is properly left to the jury.”) (citations omitted).
The inference that may be reasonably drawn from the destruction of interview notes in
this case is limited. The Court cannot presume that the notes destroyed would have contained
direct evidence of discrimination by the panelists against Grosdidier, for it is exceedingly
unlikely that the panelists would have written down any discriminatory thoughts for the record.
Cf. United Food & Commercial Workers Int’l Union v. NLRB, 998 F.2d 7, 1993 WL 264414, at
*2 (D.C. Cir. 1993) (table) (“It is the rare case where direct evidence of unlawful motivation,
such as the smoking gun documents, exists, and unlawful motivation is therefore usually inferred
38
from the employer’s conduct.”). However, it is reasonable to assume that the notes would
corroborate the other evidence in the record suggesting that the panelists relied on a variety of
factors and did not follow rigid criteria in rating the candidates. The Court may also presume
that the notes would corroborate the inconsistent testimony given by the panelists about what
factors were discussed or considered to be significant in choosing Donangmaye as the top
candidate. This evidence suggests that the panelists’ evaluation was somewhat subjective, which
the Court may consider in evaluating whether the selection was truly merit-based. See
Fischbach, 86 F.3d at 1184 (noting that reliance on “highly subjective” criteria may support an
inference of discrimination). However, “[e]ven if a court suspects that a job applicant was
victimized by poor selection procedures it may not second-guess an employer’s personnel
decision absent demonstrably discriminatory motive.” Id. at 1183 (internal quotation marks,
alterations, and citations omitted).
g. Evidence that Dia Misrepresented Grosdidier’s Qualifications to
His Superiors and Did Not Comply with Policies Regarding the
Promotion of Non-Citizens
Grosdidier claims that Dia misrepresented her qualifications to her supervisors in seeking
to justify the hiring of Donangmaye over herself and Jaafar. For example, she points to the fact
that Dia’s memorandum to his supervisor ignored Grosdidier’s superior editing qualifications.
As discussed above, however, Dia’s evaluation of Grosdidier’s qualifications is not inherently
suspect. Grosdidier also contends that Dia misrepresented to the Chief of the Operations
Division that she had not taken the CommonSpot training courses necessary to edit the website.
However, the record shows that Dia’s memorandum was written on March 22, 2006, one day
before Grosdidier completed her training; therefore, it was not a misrepresentation.
39
Grosdidier also argues that the agency violated its own policies regarding the hiring of
noncitizens by selecting Donangmaye for the position. Grosdidier’s argument is based on BBG
policy implementing 22 U.S.C. § 1474(1), which authorizes the agency to “employ . . . aliens
within the United States and abroad for service in the United States relating to . . . the production
of foreign language programs when suitably qualified United States citizens are not available
when job vacancies occur . . . .” As one other court in this district has held, “[n]othing in 22
U.S.C. § 1474 supports the broad argument that the BBG lacks authority to promote non-citizens
to supervisory positions.” Nyunt v. Tomlinson, 543 F. Supp. 2d at 43 n.3 (quotation marks
omitted). However, Section 822.1 of the agency’s personnel manual states that “[a] non-U.S.
citizen may be employed or promoted only if no equally or better qualified U.S. citizen is
available to perform the duties of the position.” See Pl.’s Ex. 49. Grosdidier argues that the
agency violated this provision because she was equally or better qualified for the job. However,
the agency made the determination that she was not equally qualified as Donangmaye, and, as
explained above, the Court cannot second-guess the agency’s employment decision where it is
objectively reasonable based on the record. Grosdidier also argues that the agency violated
Section 822.1(c), which provides that “non-U.S. citizens will not be employed in or promoted to
supervisory positions or positions which involve policy or program decision-making,” except
where agency officials determine that “the unavailability of an equally or better qualified U.S.
citizen to perform such supervisory or managerial functions is not only significantly
handicapping the ability of the Office, or Service to operate, but also is having an adverse impact
on Broadcasting’s mission.” Id. However, there is no evidence that the panelists were aware of
this policy, and even assuming the agency did violate it, the violation does not suggest that its
40
reasons for selecting Donangmaye over Grosdidier were a pretext for discrimination.
h. Summary of Grosdidier’s Evidence
Construing the evidence cited by Grosdidier in the light most favorable to her, a
reasonable jury might conclude that Dia structured the vacant position in a way that favored
Donangmaye over Grosdidier. However, no reasonable jury could conclude that Dia did so in
order to discriminate based on Grosdidier’s race, sex, or national origin. The only evidence of
discrimination based on race, sex, or national origin that Grosdidier has proffered is the fact that
Donangmaye is black, male, and of Chadian national origin, whereas Grosdidier is white, female,
and of French national origin. In a workplace as diverse as the VOA, no reasonable jury could
infer discrimination based on this fact alone.
The record demonstrates that the panel chosen by Dia recommended Donangmaye and
Jaafar over Grosdidier based on a comparison of the candidates’ qualifications and performance
during their interviews. Although Grosdidier claims that the panelists improperly destroyed their
notes from the interviews and treated Grosdidier unfairly during the interview process, her claims
are mostly speculative and unsupported by the record, and they do not credibly undermine
Defendant’s explanation that Donangmaye was chosen for merit-based reasons. Grosdidier has
not shown that she was significantly more qualified than Donangmaye such that a reasonable jury
could conclude that the panel’s decision was a pretext for discrimination. At most, the record
suggests that the panelists used subjective factors to select Donangmaye as their favored
candidate. However, this evidence is not very probative of the panel’s rationale. When
considered together with Grosdidier’s prima facie case—which is based only on the fact that
Donangmaye has a different race, sex, and national origin—Grosdidier does not have enough
41
evidence to enable a reasonable jury to conclude that she was discriminated against on the basis
of sex, race, or national origin. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
148-49 (2000) (“Whether judgment as a matter of law is appropriate in any particular case will
depend on . . . the strength of the plaintiff’s prima facie case, the probative value of the proof of
the employer’s explanation is false, and any other evidence that supports the employer’s case and
that properly may be considered on a motion for judgment as a matter of law.”). Therefore, the
Court shall grant Defendant’s motion for summary judgment as to Grosdidier’s claims that the
agency discriminated against her based on her race, sex, or national origin by not selecting her for
a promotion.
However, there is some evidence in the record that the panelists deemed Grosdidier less
qualified in part because they thought she had an axe to grind with the agency, and the panelists
may have reached this conclusion based on their prior interactions with Dia. Therefore, in
context, a reasonable jury drawing all inferences in favor of Grosdidier might conclude that the
selection process was influenced by retaliatory animus. However, as explained below, retaliation
is only actionable under Title VII if the conduct giving rise to the retaliation—in this case,
Grosdidier’s complaints about a sexually charged work environment—qualifies as protected
activity under the statute. Therefore, the Court must determine whether Grosdidier’s complaints
about her workplace in 2004 and 2005 are protected activity.
3. Protected Activity Under Title VII’s Opposition Clause
Title VII’s antiretaliation provision protects two kinds of activity: (1) participation in
EEO proceedings, such as making a charge, testifying, assisting, or otherwise participating in an
EEO investigation, proceeding, or hearing; and (2) opposition to “any practice made an unlawful
42
employment practice” by Title VII. See 42 U.S.C. § 2000e-3(a). The D.C. Circuit has held that
“an employee seeking the 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. Cir. 2005) (quoting Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1020 (D.C.
Cir. 1981)).
The activities at issue in this case are the complaints Grosdidier made in 2004 and 2005
about sexually charged conduct in her workplace.6 Grosdidier’s complaints are only protected
against retaliation if Grosdidier had a good faith, reasonable belief that her workplace was so
sexually charged that it amounted to a hostile work environment. A hostile work environment is
actionable under Title VII “[w]hen the workplace is permeated with ‘discriminatory intimidation,
ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Harris v. Forklift Systems, 510 U.S.
17, 21 (1993) (citations omitted) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65,
67 (1986)). In determining whether a work environment is hostile or abusive, courts examine all
the circumstances, including the frequency and severity of the discriminatory conduct, whether
the conduct is physically threatening or humiliating as opposed to merely offensive, and whether
there is unreasonable interference with an employee’s work performance. Id. at 23. In order to
be actionable under the statute, a work environment “must be both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one that the victim in
fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). The
6
Although Grosdidier engaged in protected activity in 2002 and earlier, this occurred
before Dia became her supervisor and is too remote in time for a reasonable jury to infer a causal
connected to her nonselection for the GS-13 position in March 2006.
43
“standards for judging hostility are sufficiently demanding to ensure that Title VII does not
become a ‘general civility code.’” Id. (quoting Oncale, 523 U.S. at 80).
Although it appears that Grosdidier had a good faith basis for opposing what she
perceived to be offensive conduct in the workplace, no reasonable employee could believe that
the conduct about which she complained amounted to a hostile work environment under Title
VII. The conduct about which Grosdidier complained consisted of: two emails sent by a
coworker that Grosdidier interpreted as sexually suggestive but which are also susceptible to
innocent interpretations; the use of the phrases “Sexy Papa” and “Sexy Mama” by Dia and a
female coworker; excessive hugging and kissing by other coworkers during greetings; the use of
the term “maitre” or “master” by a female employee to address Dia; and one instance involving a
male coworker’s inappropriate decision to wear shorts at the office. These incidents are neither
frequent enough nor severe enough to meet the standard for a hostile work environment under
Title VII, which “forbids only behavior so objectively offensive as to alter the ‘conditions’ of the
victim’s employment.” Oncale, 523 U.S. at 81. The incidents about which Grosdidier
complained were not directed at her, nor were most of them objectively offensive. And there is
no evidence to suggest that these incidents had a material impact on Grosdidier’s job
performance. Accordingly, her complaints to Dia about them do not qualify as protected activity
for purposes of Title VII’s antiretaliation provision. Therefore, the Court shall grant Defendant’s
motion for summary judgment as to Grosdidier’s claim that the agency retaliated against her by
not selecting her for a promotion.
C. Grosdidier’s Hostile Work Environment Claim
In her Complaint, Grosdidier alleges that Defendant’s ongoing conduct against her
44
constituted a hostile work environment that is based on her age, race, sex, national origin, and her
prior exercise of protected activity. As the Court noted above, however, Grosdidier failed to
exhaust her claims based on age or race discrimination, and her hostile work environment claim
must be limited to allegations that are like or reasonably related to the four actions she described
in her administrative complaint: (1) the failure to update Grosdidier’s position description; (2)
the reduction in Grosdidier’s responsibilities; (3) the cessation of direct interaction from
Grosdidier’s supervisor; and (4) her letter of admonition.
There are two reasons why Grosdidier’s claim for hostile work environment fails. First,
there is not evidence for a reasonable jury to conclude that the alleged actions are connected to
either her sex, her national origin, or her prior protected EEO activity. “Courts in this
jurisdiction have routinely held that hostile behavior, no matter how unjustified or egregious,
cannot support a claim of hostile work environment unless there exists some linkage between the
hostile behavior and the plaintiff’s membership in a protected class.” Na’im v. Clinton, 626 F.
Supp. 2d 63, 73 (D.D.C. 2009); see id. (citing cases). The only workplace conduct that could
possibly relate to Grosdidier’s sex are the actions about which she complained in 2004 and
2005—the alleged excessive hugging and kissing and inappropriate use of terms such as
“master” or “Sexy Papa.” As the Court explained above, however, this conduct was neither
objectively offensive nor directed at Grosdidier, and it is not severe or pervasive enough to
amount to a hostile work environment. Grosdidier also claims that Defendant created a hostile
atmosphere by telling her coworkers that she was the one who had complained about a sexually
charged atmosphere, resulting in retaliation from her coworkers. However, as the Court
explained above, Grosdidier’s complaints about the sexually charged atmosphere did not
45
constitute protected activity, and therefore any hostile work environment based on such
retaliation is not actionable under Title VII.
Grosdidier does cite to some evidence that could connect the allegedly hostile activity to
the filing of her July 2006 EEO Complaint. See Pl.’s Opp’n at 40 (citing Pl.’s Ex. 33 (Aff. of
Samuel Kiendrebeogo)). In an affidavit, Samuel Kiendrebeogo describes an environment in
which coworkers are afraid to interact with Grosdidier shortly after she filed her complaint. See
Pl.’s Ex. 33 (Aff. of Samuel Kiendrebeogo) at 3. Kiendrebeogo’s allegations are somewhat
vague, and the second page of his affidavit is missing from the record, but it appears that the
hostility he describes pertains to other co-workers’ treatment of Grosdidier following the filing of
her complaint. See id. However, Grosdidier did not complain about alienation from her
coworkers in her administrative complaint, and this allegation is not “like or reasonably related”
to the incidents Grosdidier described in her administrative complaint. Therefore, Grosdidier did
not exhaust a hostile work environment claim based on this conduct.
The second reason that Grosdidier’s hostile work environment claim fails is that she has
not presented evidence sufficient for a reasonable jury to conclude that her workplace was
“permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
pervasive to alter the conditions of [her] employment and create an abusive working
environment.’” Harris, 510 U.S. at 21 (1993) (quoting Meritor Savings Bank, 477 U.S. at 65,
67). However, the predicate acts on which her hostile work environment claim rests are not
severe or pervasive enough to suggest that Grosdidier suffered an abusive working environment.
Grosdidier alleges that at some point, Dia stopped interacting with her directly and
communicated to her exclusively through other staff members. See Compl. ¶ 28. Grosdidier has
46
not cited to any evidence in support of this allegation in her statement of material facts, but in
any event, this manner of communication does not qualify as the sort of extreme conduct that is
required to support a hostile work environment claim. See Faragher, 524 U.S. at 788 (“We have
made it clear that conduct must be extreme to amount to a change in the terms and conditions of
employment . . . .”). Similarly, the letter of admonition Grosdidier received in April 2008 for
turning off a shared printer does not constitute severe conduct that suggests an abusive work
environment; the language of the letter is not objectively offensive, and Grosdidier does not deny
that she turned off the printer. The claim that Defendant failed to update Grosdidier’s position
description also does not support her hostile work environment claim, as it is not the sort of
conduct that an employee would find objectively offensive. Moreover, Grosdidier’s claim
regarding her position description is not supported by the record. Grosdidier also complains
about things such as poor treatment during staff meetings, but her statement of material facts
does not cite to any record evidence supporting a claim of persistently poor treatment.
To the extent that Grosdidier relies on discrete adverse actions by her supervisor reducing
her work responsibilities, she misunderstands the nature of a hostile work environment claim.
“A hostile work environment under Title VII must be based on ‘one unlawful employment
practice’ of pervasive, insulting, discriminatory conduct that makes the plaintiff’s day-to-day
work environment severely ‘abusive.’” Rattigan v. Gonzales, 503 F. Supp. 2d 56, 82 (D.D.C.
2007) (quoting Morgan, 536 U.S. at 117). “Cobbling together a number of distinct, disparate
acts will not create a hostile work environment, because ‘[d]iscrete acts constituting
discrimination or retaliation claims . . . are different in kind from a hostile work environment
claim . . . .’” Franklin v. Potter, 600 F. Supp. 2d 38, 77 (quoting Lester v. Natsios, 290 F. Supp.
472d 11, 33 (D.D.C. 2003)). This concern is particularly acute where the plaintiff has failed to
exhaust administrative remedies with respect many of the discrimination claims that she seeks to
incorporate into a hostile work environment claim. Rattigan, 503 F. Supp. 2d at 82; accord
Patterson v. Johnson, 391 F. Supp. 2d 140, 148 (D.D.C. 2005) (“[P]laintiff cannot cure his
failure to timely exhaust his complaints about [discriminatory] incidents by sweeping them under
the rubric of a hostile work environment claim.”), aff’d, 505 F.3d 1296 (D.C. Cir. 2007). In this
case, Grosdidier complains about her removal as a host of “Washington Forum” in the fall of
2006 and reductions in her editing responsibilities beginning in February 2007. These are
discrete acts that are distinct from a hostile work environment. See Morgan, 536 U.S. at 114(“Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are
easy to identify. Each incident of discrimination and each retaliatory adverse employment
decision constitutes a separate actionable ‘unlawful employment practice.’”). Therefore, they do
not support Grosdidier’s hostile work environment claim.
Grosdidier also cites additional evidence in her opposition brief that is not contained in
her statement of material facts in support of her hostile work environment claim. See Pl.’s Opp’n
at 42-43.7 This evidence allegedly shows that Grosdidier’s supervisors collected examples of
mistakes that Grosdidier made on the job, denied her request in July 2006 to work the night shift
for two weeks, subjected her to a security investigation in May 2007, and screamed at her during
a meeting. However, these incidents are not frequent or severe enough to amount to a hostile
7
In addition to not being included in Grosdidier’s statement of material facts, much of the
evidence cited by Grosdidier is not actually in the record. For example, Grosdidier cites to pages
70, 82, 128-29, and 116 of her deposition transcript (Pl.’s Ex. 2), but those pages are part of a
confidential portion of the transcript that was not provided to the Court. See Pl.’s Opp’n at 42.
48
work environment. Furthermore, courts have generally rejected hostile work environment claims
that are based on work-related actions by supervisors. See, e.g., Nurriddin v. Bolden, 674 F.
Supp. 2d 64, 94 (D.D.C. 2009) (“[T]he removal of important assignments, lowered performance
evaluations, and close scrutiny of assignments by management [cannot] be characterized as
sufficiently intimidating or offensive in an ordinary workplace context.”); Bell v. Gonzales, 398
F. Supp. 2d 78, 92 (D.D.C. 2005) (finding that actions such as exclusion from the informal chain
of command, close monitoring of work, missed opportunities for teaching, travel, and high-
profile assignments, and reassignment to another unit did not amount to a hostile work
environment because “they cannot fairly be labeled abusive or offensive”); see also Houston v.
SecTek, Inc., 680 F. Supp. 2d 215, 225 (D.D.C. 2010) (“Allegations of undesirable job
assignment or modified job functions and of [supervisor’s] unprofessional and offensive
treatment are not sufficient to establish that [plaintiff’s] work environment was permeated with
discriminatory intimidation, ridicule, and insult.”) (citation and quotation marks omitted), aff’d,
2011 WL 318401 (D.C. Cir. Jan. 31, 2011).
Based on the frequency, severity, and pervasiveness of the conduct that Grosdidier has
established in the record, the Court finds that no reasonable jury could conclude that Grosdidier
suffered harassment that altered the conditions of her employment and created an abusive
working environment. Therefore, the Court shall grant Defendant’s motion for summary
judgment with respect to Grosdidier’s claim for hostile work environment.
D. Grosdidier’s Other Discrete Claims of Discrimination and Retaliation
In her Complaint, Grosdidier purports to assert causes of action for discrimination based
on race, sex, and national origin and retaliation with respect to various discrete actions: (1) the
49
reduction in her editing duties and other responsibilities, including removal as substitute host of
“Washington Forum”; (2) the failure to update her job description to reflect the duties of
International Broadcaster; (3) her supervisor’s cessation of direct interaction with her; and (4) the
letter of admonition issued to her in March 2008.8 As noted above, Grosdidier failed to exhaust
many of these claims. Defendant also argues in its motion for summary judgment that none of
these actions amount to adverse employment actions that are actionable under Title VII. See
Def.’s Mem. at 33-38. Grosdidier does not argue in her opposition brief that these actions can
provide the basis for a discrimination claim under Title VII, and therefore the Court shall treat
Defendant’s argument as conceded as to any claims for discrimination based on race, sex, or
national origin arising from these actions. See Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when
a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised
by the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded.”), aff’d, 98 F. App’x 8 (D.C. Cir. 2004). Grosdidier does not concede, however, that
these actions could not support discrete claims of retaliation under Title VII. Therefore, the
Court must determine whether Grosdidier has produced enough evidence for a jury to conclude
that these actions constituted retaliation actionable under Title VII.
Title VII retaliation claims are assessed pursuant to a burden-shifting framework initially
8
In her opposition brief, Grosdidier argues that additional actions taken by Defendant
may amount to retaliation. See Pl.’s Opp’n at 44. However, “[i]t is well-established in this
district that a plaintiff cannot amend h[er] Complaint in an opposition to a defendant’s motion
for summary judgment.” Jo v. District of Columbia, 582 F. Supp. 2d 51, 64 (D.D.C. 2008). In
addition, Grosdidier did not exhaust any claims beyond the four identified above. Therefore, the
Court shall not consider these additional actions as stand-alone retaliation claims.
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set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973). As the D.C. Circuit has explained:
Under that framework, a plaintiff must first establish a prima facie case of retaliation
by showing (1) that he engaged in statutorily protected activity; (2) that he suffered
a materially adverse action by his employer; and (3) that a causal link connects the
two. If the plaintiff establishes a prima facie case, the burden shifts to the employer
to produce a legitimate, nondiscriminatory reason for its actions. If the employer
does so, the burden-shifting framework disappears, and a court reviewing summary
judgment looks to whether a reasonable jury could infer retaliation from all of the
evidence, which includes not only the prima facie case but also the evidence the
plaintiff offers to attack the employer’s proffered explanation for its action and other
evidence of retaliation.
Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (citations and quotations omitted). To
establish that an action is materially adverse, a “plaintiff must show that the employment action
produced an injury or harm that might well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Sewell v. Chao, 532 F. Supp. 2d 136 (D.D.C. 2008)
(citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006), aff’d sub nom. Sewell
v. Hugler, 2009 WL 585660 (D.C. Cir. 2009).
1. Claim Based on Cessation of Interaction with Supervisor
Grosdidier contends that Dia retaliated against her by refusing to interact with her
directly, using Grosdidier’s coworkers as intermediaries to communicate with her. However, as
the Court noted above, Grosdidier has only produced evidence of a single incident where this
occurred. Based on this evidence, the Court finds that it may grant Defendant’s motion for
summary judgment on the ground that this lack of direct interaction does not amount to an
adverse employment action under Title VII. No reasonable employee would be dissuaded from
filing a discrimination complaint as a result of a supervisor’s decision to communicate indirectly
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through a coworker. “An employee’s decision to report discriminatory behavior cannot
immunize that employee from those petty slights or minor annoyances that often take place at
work and that all employees experience.” Burlington, 548 U.S. at 68. Accordingly, the Court
shall grant Defendant’s motion for summary judgment as to this alleged action.
2. Claim Based on Failure to Update Job Description
Grosdidier claims that in November 2007, her supervisor failed to update her position
description, making her potentially vulnerable to a reduction in force. However, Grosdidier has
not cited to any record evidence in support of this claim apart from her own deposition testimony
explaining that her position description has remained unchanged. The uncontroverted evidence
in the record establishes that Dia did submit an updated position description for Grosdidier to the
agency’s human resources department. Furthermore, there is no evidence in the record that
Grosdidier was actually harmed by the failure to update her position description, and no
reasonable employee would be deterred from engaging in protected activity by such inaction.
Accordingly, the Court shall grant Defendant’s motion for summary judgment with respect to
this claim.
3. Claim Based on Letter of Admonition
Grosdidier contends that the letter of admonition she received on April 1, 2008 amounts
to retaliation under Title VII. However, letters of admonition or reprimand generally do not
qualify as materially adverse actions when they do not contain offensive language and there is no
evidence that the letter will result in any adverse consequences to the admonished employee.
See, e.g., Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008); Herbert v. Architect of
the Capitol, ___ F. Supp. 2d ___, Civil Action No. 07-1516, 2011 WL 637549, at *12 (D.D.C.
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Feb. 23, 2011). The letter about which Grosdidier complains is not demeaning, there is no
evidence that it caused her any actual harm, and she does not dispute that she committed the
conduct for which she was being admonished. Therefore, the Court finds that no reasonable jury
could conclude that the letter of admonition was a materially adverse action.
4. Claim Based on Reduction of Duties
Grosdidier’s final claim is that she suffered retaliation by having her editing duties
reduced or eliminated on an ongoing basis after Dia was deposed in her EEOC litigation. As the
Court explained above, Grosdidier exhausted this claim only to the extent that Dia continued to
assign her to non-editing duties on a weekly basis after October 5, 2007. The parties did not
directly address this formulation of Grosdidier’s claim in their briefs, and the Court is reluctant to
comb the record in order to assess the merits vel non of this claim. There is some evidence in the
record to support Grosdidier’s claim that she was not assigned editing responsibilities during this
period, and there is also general evidence in the record that Dia, who made the assignments, was
upset at Grosdidier for questioning his commitment to a discrimination-free workplace.
Defendant argues that any reduction in Grosdidier’s editing duties cannot constitute a
materially adverse action because her work assignments varied based on the dynamic needs of
her workplace. In support of this argument, Defendant relies on an affidavit from Dia in which
he explained that Grosdidier was assigned editing duties on an ad hoc basis. However,
Grosdidier has produced evidence suggesting that she was one of the few GS-12 broadcasters
who was ever assigned responsibility for editing the work of other broadcasters, and the pattern
of periods in which Grosdidier was or was not assigned such duties undermines the testimony of
Dia and Ferdinand Ferella that her responsibilities never changed. Considering that all of the
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supervisory positions in Grosdidier’s workplace involve more significant editing duties, a
reasonable jury might conclude that a retaliatory denial of editing duty would dissuade a
reasonable employee from engaging in protected activity. See Burlington, 548 U.S. at 70-71(explaining that in context, reassignment of job duties within an employee’s job description may
constitute actionable retaliation); Edwards v. U.S. Envtl. Prot. Agency, 456 F. Supp. 2d 72, 87
(D.D.C. 2006) (“In the wake of [Burlington Northern & Santa Fe Railway Co. v.] White, this
Court has similarly concluded that a plaintiff’s allegation that she has been stripped of some of
her duties sufficed to establish an adverse employment action in the retaliation context.”).
Accordingly, the Court shall deny Defendant’s motion for summary judgment with respect to
Grosdidier’s claim that she suffered retaliation when she was not assigned editing duties after
October 5, 2007.
IV. CONCLUSION
For the foregoing reasons, the Court finds that Grosdidier failed to exhaust her claims of
age discrimination, claims based on discrete actions that occurred before October 5, 2007, and
her hostile work environment claim to the extent it relies on conduct that is not like or reasonably
related to the allegations raised in her administrative complaint. The Court finds that Grosdidier
has failed to produce evidence sufficient to allow a reasonable jury to conclude that her
nonselection for a GS-13 position in 2006 was motivated by discrimination based on sex, race,
national origin, or Grosdidier’s prior exercise of protected activity. The Court further finds that
no reasonable jury could conclude that the adverse actions Grosdidier suffered amounted to a
hostile work environment actionable under Title VII. With respect to claims based on other
discrete actions taken by her employer, the Court finds that Grosdidier has produced evidence
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sufficient to survive summary judgment on only one claim, that her editing responsibilities were
reduced after October 5, 2007 in alleged retaliation for her prior protected activity. Therefore,
the Court shall DENY Defendant’s [15] Motion for Summary Judgment with respect to
Grosdidier’s claim that Defendant retaliated against her by reducing her editing responsibilities
after October 5, 2007 and GRANT Defendant’s motion in all other respects. The Court shall also
DENY Plaintiff’s [23] Motion for Adverse Presumption. An appropriate Order accompanies this
Memorandum Opinion.
Dated: March 28, 2011 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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