Moore v. Pritzker ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RHONGELYN MOORE,
Plaintiff,
v.
PENNY S. PRITZKER, Civil Action No. 15-1248 {GK)
Secretary, United States
Department of Commerce
Defendant.
MEMORANDUM OPINION
Plaintiff Rhongelyn Moore, an African American woman,
("Plaintiff" or "Moore") brings this action against Penny S.
Pritzker in her official capacity as Secretary of the United States
Department of Commerce ("Defendant," "Employer" or "Government").
Plaintiff alleges retaliation in response to age and race
discrimination and retaliation complaints she filed against
Defendant with the Equal Employment Opportunity Commission
("EEOC"), in violation of Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 u.s.c. § 2000e et seq.
This matter is presently before the Court on Defendant's
Motion to Dismiss or for Summary Judgment filed on November 3,
2015 ("Def.' s Mot.") [Dkt. No. 10] . On December 1, 2015, Plaintiff
filed an Opposition ("Pl.'s Opp.") [Dkt. No. 13]. Defendant did
not file a Reply.
Upon consideration of the Motion, Opposition, the entire
record herein, and for the reasons stated below, Defendant's Motion
to Dismiss is granted in part and denied in part, and Defendant's
Motion for Summary Judgment is granted in part and denied in part.
I . BACKGROUND
A. Factual Background
Rhongelyn Moore ("Plaintiff," "Moore") , a black woman, has
been employed by the United States Department of Commerce ("DOC,"
"Defendant") since 1990. Complaint ~ 9 ( "Compl. ") [Dkt. No. 1] . In
December 2001, Plaintiff was promoted to a GS-13 Public Affairs
Specialist ("PAS") position in the Office of Public Affairs ( "OPA")
of the DOC. Id. ~ 10. The OPA, which is located in the Office of
the Secretary, acts as the primary point of contact for public
affairs and serves as the liaison to the White House and the
Executive Branch for all public ~ffairs. Def.'s Mot. at 2 (citing
United States Department of Commerce, Office of Public Affairs,
https://www.commercegov/os/office-public-affairs).
As a GS-13 PAS, Moore worked on press releases, provided the
Minority Business Development Agency ("MBDA") with support,
drafted advisories on events, and corresponded with reporters. See
Def.'s Mot. at 4, 6. Moore was supervised by Deputy Director of
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OPA, Shannon Gilson. Compl. ~ 11. Gilson was Moore's first-level
supervisor until she left the OPA in August 2011. Id. Gilson was
also Moore's documented rating official, which meant that she was
responsible for both Moore's interim and final work performance
evaluations for each fiscal year. See Pl.'s Opp. at 16, 19; Def.'s
Mot. at 5. Moore's second level supervisor was Kevin Griffis, who
was the Director of OPA until January 2012. Id. ~ 12. As the second
level supervisor, Griff is participated in the final performance
evaluations and, when appropriate, approved the final ratings
completed by the documented rating official. Pl.'s Opp. at 20; see
also Griffis Deel. (Def.'s Ex. 5) ~~ 4-6 [Dkt. No. 10~5]
In August 2011., when Gilson left her position at the OPA,
Parita Shah effectively became Moore's first-level supervisor and
documented rating official. Griffis Deel. ~ 41; Def.'s Mot. at 2;
Pl.'s Opp. at 3. Prior to the promotion, Shah and Moore were co-
workers and periodically worked together on assignments. Pl. 's
Opp. at 18. Following Shah's promotion, she left the office to
work on a different assignment from August to September 2011 and
returned in October 2011, after the end of FY 2011. Compl. ~ 42.
In January 2012, Jennifer Friedman replaced Griffis . and became
Plaintiff's new second-level supervisor when Griffis left the OPA.
Compl. ~~ 12-13.
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As a GS-13 PAS, Moore was given a Performance Appraisal for
each fiscal year. See id. ~ 14. The employees were evaluated on
three critical elements known as Customer Service, Media Outreach
and Support, and Special Projects. Id. ~ 48. Each element was rated
from a Level 1, which means unacceptable performance, to a Level
5, which signifies the highest level of performance. Def.'s Ex. 2
[Dkt. No. 10-2] Each employee was also given an overall final
rating based on the same rating scale. Id. Prior to an employee's
final Performance Appraisal, he or she was given an interim rating.
See Compl. ~ 51. Included in the interim rating were notes on
specific areas for improvement in the three critical elements. Id.
Prior to the final evaluation, employees were given the
opportunity to submit to their supervisors a list of
accomplishments that he or she achieved during that fiscal year.
See id. ~ 30; Def.'s Mot. at 3. The documented rating official
also looked to reviews about employees from other departments with
which the employee worked closely. In this case, Gilson
_corresponded with MEDA about the quality of Moore's work and
overall performance for the fiscal year. Gilson Deel. (Def.'s Ex.
4) at 4 [Dkt. No. 1 O- 4] .
The relevant evaluation period in this case is FY 2011, which
spanned October 1, 2010 to September 30, 2011. Id. With Gilson's
departure set for the end of August 2011, Gilson called Moore to
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review her performance on August 26, 2011. Def.' s Statement of
Facts ~ 9 [Dkt. No. 10-15]. At the evaluation meeting, 1 Moore and
Gilson reviewed Moore's performance rating for the FY 2011. Compl.
~ 49. Moore gave Gilson a list of FY 2011 accomplishments up to
the date of the meeting. See id. ~ 40.
Gilson gave Moore the following ratings: 4 in Customer
Service; 3/4 in Media Outreach and Support; 3/4 in Special
Projects. Compl. ~ 50. Moore alleges that there was an
understanding between her and Gilson that the ratings were not
final. See Compl. ~ 49; Def.'s Statement of Facts ~ 21. Moore
alleges that Gilson stated that "if [Moore] assisted MBDA with its
MED Week event, she did not see why her overall evaluation rating
would not be a level 4 or 5," and did not mention any other negative
comments during this phone call. Pl.'s Opp. at 25, 30.
Moore alleges that she never received a hard copy of Gilson's
interim performance rating, which she would have reviewed in order
to respond and/or improve her performance. Pl.'s Opp. at 11; see
also Deel. of Gilson at 3. Griffis received an email from Gilson
on August 24, 2011 containing Moore's interim rating and the
interim review comments. Pl.' s Opp. at 27. However, Griffis did
1 It is unclear- whether the phone call in late August 2011 was an
interim or an end-of-year performance appraisal meeting. See Aff.
of Spence (Def.'s Ex. 10) at 3 [Dkt. No. 10-10].
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~ot discuss the rating and review comments with Moore or provide
her with a copy of the rating. Compl. ~~ 28-29, 52. Other PAS
employees received a copy of their ratings from Griffis. Pl.' s
Interrog. at 8 [Dkt. No. 12]
Unlike other employees who received an email on December 5,
2011 from Griff is to submit a list of their accomplishments in
preparation for FY 2011 performance evaluations, Moore did not
receive such an email. 2 Compl. ~~ 30-31. Moore later learned about
the email, but when she brought it to Griffis' attention, Griffis
did not afford her the opportunity to submit a final list of
accomplishments. Compl. ~~ 32, 39. Therefore, Moore was unable to
submit a final list of accomplishments at the end of the rating
cycle. Pl.'s Opp. at 16.
Due to the significant number of staff turnovers at OPA during
FY 2011, the FY 2011 final evaluations were unusually delayed and
were not given to employees until well after FY 2011 had ended.
Def.'s Mot. at 5, 29. Moore received her FY 2011 final evaluation
from Shah in February 2012. Compl. ~ 47. At this point, Shah was
Moore's rating official and Griffis was her approving official.
Id. Moore received the following FY 2011 final ratings: 3 in
Customer Service; 3 in Media Outreach and Support; and 4 in Special
2 The Government states that this was a "mistake." Def.'s Mot. at
3.
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Projects. Pl.'s Opp. at 30. Moore received an overall FY 2011
rating of a 3. Id. ~~ 53, 54.
Shah relied, at least in part, on Gilson's interim evaluation,
which included the list of accomplishments that Moore gave to
Gilson in August. Pl.'s Opp. at 12; see also Def.'s Mot. at 4-6.
Shah stated that OPA wanted "Plaintiff [to] improve her
relationship with MBDA." Def.' s Statement of Facts ~ 17. Shah
stated that Moore did not provide MBDA with additional support,
which Moore denies. Id: ~ 19; Pl.'s Opp. at 20. Griffis approved
Shah's FY 2011 final evaluation of Moore. Pl.'s Opp. at 20; Def.'s
Mot. at 23.
As a result of Moore's FY 2011 final rating and DOC's limited
resources in FY 2011, she received a $150 bonus from Griffis.
Compl. ~ 57; Def.'s Mot. at 5. Pursuant to guidance from DOC's
Off ice of the Secretary and the Off ice of Personnel Management on
June 10, 2011, Griffis was required to limit all of the performance
awards given to the staff so that the cumulative amount of awards
did not exceed one percent of the total amount of salaries in OPA.
Def.'s Statement of Facts ~ 22; see also Griffis Deel. ~ 8. This
limit on performance awards decreased the agency's ability to give
them. Id. Moore alleges that Griffis authorized her bonus prior to
the end of FY 2011 and well before he requested staff
accomplishments in December 2011. Compl. ~ 58. Moore claims that
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her bonus did not properly reflect her final performance review.
Id.
On February 6, 2012, following the award of FY 2011 bonuses,
Moore had a meeting with Friedman and Griffis to discuss her FY
2011 final evaluation. Def.'s Statement of Facts ~ 25. At that
meeting, Griff is told Friedman that Moore was a "malcontent"
employee who never signed her performance evaluations and that she
"always had something to complain about." Compl. ~ 65. For example,
Defendant stated that in May 2011, Moore wrote Gilson to say that
she believed the kind of work she was doing was "extremely low
level" and that she needed "something more substantive." Def.' s
Mot. at 3.
B. Procedural Background
On February 28, 2011, Moore filed her administrative Equal
Employment Opportunity ("EEO") claim alleging age discrimination
against Griffis. Compl. ~ 19. The Equal Employment Opportunity
Commission ("EEOC") granted the Government's motion for summary
judgment on August 13, 2012. Id. On June 16, 2011, Moore filed a
complaint against Griff is and Gilson alleging racial
discrimination and retaliation for her prior EEO activity. Id.
~ 21; Def. 's Mot. at 6. The complaint was based in part on Moore's
request for a promotion to the GS-14 of PAS in May 2011 that was
ultimately denied. Compl. ~ 20. The administrative judge granted
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the Government's motion for summary judgment on this complaint on
February 27, 2014. Def.'s Mot. at 7. Plaintiff did not appeal.
Id.
On March 6, 2012, Moore filed her third formal complaint of
retaliation with the EEOC which is the relevant administrative
action in the instant case. Def.'s Mot. at 7; Pl.'s Opp. at 4.
Defendant accepted four counts of retaliation for investigation,
which included allegations that (1) Griffis refused to accept
Moore's final list of FY 2011 performance accomplishments; (2)
Griff is refused to complete Moore's FY 2011 performance
evaluation; (3) Griffis recommended Moore for a $150 performance
bonus, the lowest amount ever awarded to a PAS; and ( 4) in a
meeting on February 6, 2012, Griffis attempted to portray Moore as
a "malcontent employee" in front of Friedman, the new Public
Affairs Director. Pl.'s Opp. at 4-5. On April 30, 2015, following
discovery, the EEOC granted the Government's motion for summary
judgment on all counts. Def.'s Mot. at 8; see Pl.'s Ex. B [Dkt.
No. 1-2] Defendant's Office of Civil Rights implemented the
judgment on May 6, 2015. Def.'s Mot. at 8.
On August 3, 2015, pursuant to 42 U.S.C. § 2000e-16(c), Moore
filed her Complaint alleging one count of retaliation under Title
VII under the Civil Rights Act of 1964 against Defendant. Compl.
~ 69-70. Moore states that the following actions constitute
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retaliatory conduct following her EEO activity: (1) Griffis'
refusal to provide Moore with a copy of her FY 2011 interim rating;
(2) Griffis' refusal to accept Moore's FY 2011 performance
accomplishments; (3) Shah's ineligibility to rate Moore's FY 2011
performance; (4) Griffis' delay in timely completing Moore's FY
2011 performance evaluation; (5) Griff is' FY 2011 performance
evaluation of Moore; (6) Griffis' recommendation of a $150
performance bonus for Moore; and (7) Griffis' attempt to undermine
Moore after Griffis left his position. See generally Compl.
Moore claims compensatory damages, upgraded performance
appraisals, and a retroactive promotion to GS-14 grade level of
PAS position as relief for the alleged retaliation. Compl. at 11-
12. She also claims damages for disparate treatment, humiliation,
stress, anxiety, and damage to personal and professional self-
esteem. Pl.'s Interrog. at 11.
On November 3, 2015, the Government filed its Motion to
Dismiss or for Summary Judgment. On December 1, 2015, Plaintiff
responded with her Opposition, and the Government failed to file
a Reply.
II. STANDARD OF REVIEW
A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b) (6), a
plaintiff need only plead "enough facts to state a claim to relief
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that is plausible on its face" and to "nudge [ ] . [his or her] claims
across the line from conceivable to plausible." Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a claim has been
stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint." Id. at 563.
Under the Twombly standard, a "court deciding a motion to dismiss
must not make any judgment about the probability of the plaintiffs'
success. . . [,] must assume all the allegations in the complaint
are true (even if doubtful in fact) . . . [, and] must give the
plaintiff the benefit of all reasonable inferences derived from
the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame
Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation
marks and citations omitted). A complaint will ·not suffice,
however, if it "tenders 'naked assertion[s]' devoid of 'further
factual enhancement."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 557).
"[M]otions to dismiss for failure to exhaust administrative
remedies are . appropriately analyzed under Rule 12 (b) ( 6) . "
Winston v. Clough, 712 F. Supp. 2d 1, 6 (D.D.C. 2010). "Before
filing suit, a federal employee who believes that her agency has
discriminated against her in violation of Title VII must first
seek.administrative adjudication of her claim." Payne v. Salazar,
619 F.3d 56, 58 (D.C. Cir. 2010) (citation omitted); see 42 U.S.C.
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§ 2000e-16(c). After receiving notice of the agency's final action,
a plaintiff must file his or her civil action in the appropriate
District Court within 90 days. 42 U.S.C. § 2000e-16(c); see also
Colbert v. Potter, 471 F.3d 158, 160 (D.C. Cir. 2006).
These exhaustion requirements are not jurisdictional, but
rather are "similar to a statute of limitations." Colbert, 471
F.3d at 167. Therefore, they are properly raised in a Rule 12(b) (6)
motion to dismiss. See Rosier v. Holder, 833 F.Supp.2d 1, 5 (D.D.C.
2011) (citing Artis v. Bernanke, 630 F.3d 103i, 1034 n.4 (D.C.
Cir. 2011)); see also Gordon v. Nat'l Youth Work Alliance, 675
F.2d 356 (D.C. Cir. 1982) (noting that proper method for raising
a defense of limitation is a motion under Rule 12(b) (6)).
B. Motion for Summary Judgment
A motion for summary judgment is granted only if, looking at
the totality of admissible evidence, there is no genuine issue as
to any material fact and that the moving party is entitled to
judgment as a matter of law. See Arrington v. United States, 473
F.3d 329, 333 (D.C. Cir. 2006). To establish whether a fact is or
is not genuinely disputed, a party must cite to specific parts of
the record, including deposition testimony, documentary evidence,
affidavits or declarations, or other competent evidence, to
support its position. Mason v. Geithner, 811 F. Supp. 2d 128, 174
(D.D.C. 2011). "Conclusory assertions offered without any factual
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basis in the record cannot create a genuine dispute sufficient to
survive summary judgement." Id. (citing Ass' n of Flight
Attendants-CWA v. U.S. Dept. of Transp., 564 F.3d 462, 465 (D.C.
Cir. 2009)) Pursuant to Federal Rule of Civil Procedure 56(a),
"[i]f the evidence presented on a dispositive issue is subject to
conflicting interpretations, or reasonable persons might differ as
to its significance, summary judgment is improper." Beard v.
Preston, 576 F. Supp. 2d 93, 101 (D.D.C. 2008) (internal quotations
omitted) .
III. ANALYSIS
A. Motion to Dismiss
1. Exhaustion of Administrative Remedies (Allegations
1 and 5) 3
"Title VII requires that a person complaining of a violation
file an administrative charge with the EEOC and allow the agency
time to act on the charge." 42 U.S.C. § 2000e-16; e.g., Park v.
Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). This exhaustion
requirement allows the EEOC to investigate, and gives the employer
notice of the claim, narrowing the issue for prompt adjudication
3 Plaintiff has alleged only one Count of retaliation in her
Complaint, but she has proffered seven factual allegations in
support of that Count. The Court will address each of these seven
factual allegations, which correspond to both the seven section
headings in Plaintiff's Complaint and the seven "Claims" outlined
in Defendant's Motion.
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and decision. Ndondji v. InterPark Inc., .768 F. Supp. 2d 263, 276
(D.D.C. 2011).
For a claim of retaliation, a plaintiff is permitted to
combine acts committed over a period of years, including acts by
different supervisors, into a single actionable claim. Bergbauer
v. Mabus, 934 F. Supp. 2d 55, 82 (D.D.C. 2013). A lawsuit following
an EEOC charge must be limited to the claims that were exhausted
through administrative remedies and those that are "like or
- reasonably related to the allegations of the charge and growing
out of such allegations." Ndondj i, 768 F. Supp. 2d at 276; see
also Drewery v. Clinton, 763 F. Supp. 2d 54, 61 (D.D.C. 2011). "At
minimum, the Title VII claims must arise from the administrative
investigation that can reasonably be expected to follow the
charge." Park, 71 F.3d at 907 (internal quotations omitted).
Defendant alleges that Moore's Allegations 1 and 5, which it
refers to as "claims" 1 and 5 were not exhausted through the
available administrative remedies and therefore should be
dismissed by this Court. Def. 's Mot. at 13 -15. The Government
argue~ that these "claims" were not specifically alleged in Moore's
March 6, 2012 complaint to the EEOC. Id. at 14. Additionally, the
Government argues that the EEOC did not accept these two "claims"
for investigation at any point. Id.
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However, a reasonable investigation of the original four
claims as listed in Moore's March 6, 2012 charge to the EEOC would
have given the Government notice of these two "additional claims."
Allegation 1 in Moore's Complaint alleges retaliatory conduct
based on Griffis' refusal to provide Moore with a copy of her FY
2011 interim rating. Griffis' refusal is reasonably related to the
second Claim that the EEOC accepted for investigation, namely,
that "Griff is refused to complete her FY 2011 performance
evaluation rating in a timely manner, and then assigned Pari ta
Shah, an 'ineligible rating official' to rate her." Pl.'s Opp. at
5, 11. In fact, in its April 30, 2015 Order, the EEOC found that
the FY 2011 interim review was missing. Pl.'s Ex. B at 5.
Therefore, questions regarding Moore's interim rating were
addressed and investigated by the EEOC.
In addition, the Government claims that Shah relied on
Gilson' s interim comments for Moore's final FY 2011 ratings.
Therefore, an allegation that Griffis did not provide Moore an
opportunity to review her interim ratings reasonably relates to
the issues addressed and exhausted by the EEOC. Taken together,
the EEOC's comments on the FY 2011 interim ratings are sufficient
to exhaust the claim because they put the Government on notice of
Moore's allegations regarding her interim rating.
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Similarly, Allegation 5, relating to Griffis' final FY 2011
performance evaluation of Moore, is reasonably related to the
original four claims brought before to the EEOC. In its April 30,
2015 Order, the EEOC addressed Moore's allegations that she was
not afforded an opportunity to submit a final list of performance
accomplishments before receiving her final FY 2011 performance
evaluation. This point directly relates to Moore's original four
claims before the EEOC because an employee's list of
accomplishments affects his or her final evaluation. Pl.'s Opp. at
12. Moreover, because the performance evaluation directly impacts
an employee's performance bonus, this allegation is reasonably
related to Moore's award of a $150 performance bonus, which was
both raised in the EEO charge by Moore and investigated by the
EEOC. Compl. ~ 58; Def.'s Mot. at 28.
A plaintiff's burden to state specific claims is not so strict
that Moore is barred from bringing these two claims because they
were not specifically enumerated as claims in her original
retaliation complaint before the EEOC. All of Moore's claims
identified in her Complaint relate to the FY 2011 performance
evaluation process, which the EEOC had the opportunity to
investigate. Because the acts outlined in all seven Allegations
can be tied to one of Moore's original four claims before the EEOC,
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this court will address each of the seven Allegations outlined in
Moore's Complaint and Defendant's Motion.
2. Failure to Establish Prima Facie · Case of
Retaliation (All Allegations)
The Government claims that Moore has failed to establish a
prima facie case of retaliation under Title VII. In order to state
a claim for retaliation under Title VII, Moore must demonstrate
that ( 1) she engaged in protected behavior; ( 2) the Government
took a materially adverse action against her; and (3) the
Government took the action because the employee engaged in the
protected behavior. See McGrath v. Clinton, 666 F.3d 1377, 1380
(D. C. Cir. 2012) . Both parties agree that Moore engaged in a
protected activity when she filed her EEOC Complaints. The
Government disputes that Moore satisfied the second two elements
of a prima facie case of retaliation.
a. Failure to Allege a Materially Adverse Action.
(Allegations 1, 2, 3, 4, and 7)
i. Allegations 1, 3 and 4
Moore asserts that Griffis' refusal to complete her FY 2bll
performance evaluation rating in a timely manner and assignment of
Shah to rate her constituted a materially adverse action because
they affected her promotional potential and materially lowered her
performance award. See Pl.'s Opp. at 20 (citing Baloch v.
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Kempthorne, 550 F. 3d 1191, 1199 (D.C. Cir. 2008) and Weber v.
Battista, 494 F.3d 179, 185-86 (D.C. Cir. 2007).
The Government argues, without citing any controlling case
law, that Moore's allegations in these three claims do not rise to
the level of materiality, and instead are merely "minor
annoyances." Taken in the light most favorable to Moore, the
Government's argument is conclusory at best. The Government has
not met its burden of showing that Moore's grievances do not rise
to the level of a materially adverse action with regard to these
claims.
ii. Allegation 2
Moore argues that Griffis' refusal to accept her performance
accomplishments after leaving her off the December 5, 2011 email
constituted a materially adverse action. She argues that her
performance review was based on her earlier, unfinished list of
accomplishments and that her poor performance review kept her from
a promotion and a higher bonus. See Pl.'s Opp. at 16.
The Government argues that these actions do not meet the
"materially adverse" bar because "a single critical email is not
an adverse action." Def.'s Mot. at 17 (citing Kline v. Berry, 404
Fed. Appx. 505, 506 (D. C. Cir. 2010). The Government
mischaracterizes Moore's allegations. Moore alleges far more than
one critical email; she argues that her supervisor denied her the
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opportunity to advocate for her performance review which in turn
denied her promotion and bonus opportunities. Moore has therefore
shown a materially adverse action for Allegation 2.
iii. Allegation 7
Finally, Moore argues that Griffis' alleged attempt to
undermine her relationship with her new supervisor was a materially
adverse action that "could have undermined Plaintiff's working
relationship with Ms. Friedman and her opportunity for a fresh
start and for a promotion." Pl.' s Opp. at 32 (emphasis added).
Moore also claims that "after Ms. Gilson and Griff is left the
Agency, Plaintiff's performance rating again climbed to a level
'4' rating." Pl.'s Opp. at 32. Thus, by Moore's own admission, the
hypothetical adverse action that could have resulted from Griffis'
statements failed to materialize. Moore has therefore failed to
show a materially adverse action for Allegation 7, and it shall be
dismissed.
b. Fail\1re to Allege that Retaliation Was the But-
For Cause of Each Alleged Adverse Action (All
Allegations)
Moore argues that she has sufficiently plead that retaliation
was the but-for cause of each alleged adverse action, because each
such action occurred within close temporal proximity to her
protected activity.
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The Government argues that Moore has failed to establish that
the employer's actions were the but-for cause of each alleged
adverse action because the adverse actions were not sufficiently
close in time to Moore's filing of the EEOC complaints.
In support of its argument, the Government cites Moore's
assertion that the alleged retaliatory actions occurred within "1-
2 years" of her protected activity, (Def. 's Mot. at 19 (citing
Def.'s Ex. 9 [Dkt. No. 10-9])), and argues that a 1-2 year gap
between the protected activity and adverse actions is not
sufficiently close in time to establish but-for causation. See
Def.' s Mot. at 19 n. 2. However, Moore clarifies that her age
discrimination complaint was filed on or about February 28, 2011,
and a final order on the administrative judge's decision was issued
by Defendant on or about August 13, 2012. Pl.'s Opp. at 33. Moore
further specifies that her retaliation complaint was filed with
the EEOC on June 16, 2011 with a final decision issued on or about
March 6, 2014. Id. Thus, all of the alleged adverse actions
occurred during the time period between Moore's filing· of her
complaints and the administrative judges' final decisions. Viewed
in the light most favorable to Moore, she has established the
element of but-for causation.
In conclusion, Defendant's Motion to Dismiss will be denied
on all counts except for Allegation 7, which will be dismissed.
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B. Motion for Summary Judgment
1 . Legal Framework
Under the McDonnell Douglas framework, 411 U.S. 792 (1973),
in order to establish a prima facie case of retaliation, the
plaintiff must demonstrate that he or she engaged in a protected
activity and the employer's retaliation, which was materially
adverse, was based on that activity. See e.g., Johnson v. Perez,
823 F.3d 701, 706 (D.C. Cir. 2016).
A plaintiff need only establish facts adequate to permit an
inference of retaliatory motive by a preponderance of the evidence.
Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001) (noting that
the initial burden is not great)~ Once the plaintiff has
established a prima facie case of retaliation, the defendant can
rebut the plaintiff's case by producing evidence that the employer
took the adverse employment actions for a legitimate, non-
discriminatory reason. Id. at 102 (citing Aka v. Washington Hosp.
Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998).
However, if the· defendant has offered a legitimate, non-
discriminatory reason for its actions, the court need not and
should not decide whether the plaintiff actually made out a prima
facie case. Brady v. Office of the Sergeant at Arms, 520 F.3d 490,
494 (D.C. Cir. 2008). Thus, the "district court must resolve one
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central question: Has the employee produced sufficient evidence
for a reasonable jury to find that the employer's asserted non-
discriminatory reason was not the actual reason." Id.Our Court of Appeals has declined to serve as a "super
personnel department that reexamines an entity's business
decisions." Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006).
Once a legitimate, non-discriminatory reason is established, the
Plaintiff must present sufficient evidence for a reasonable jury
to find that the employer intentionally retaliated against the
employee to demonstrate pretext. Dave, 60.6 F. Supp. 2d at 50
(internal quotations omitted). "The plaintiff cannot rely on her
view that the employer's actions were imprudent or unfair; an
employer may make an employment decision for a good reason, a bad
reason, or no reason at all so long as the decision is not made in
reprisal for the plaintiff's protected activity." Mason v.
Geithner, 811 F. Supp. 2d 128, 187 (D.D.C. 2011).
Defendant argues that she has articulated a non-
discriminatory reason for each of its actions. This Court will
therefore only examine whether Plaintiff has provided sufficient
evidence to establish that Defendant's proffered reasons are
merely pretext.
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2. Allegations 1 and 2
The Government asserts that denying Moore a hard copy of her
interim rating (Allegation 1) and Griffis' omission of Moore from
the December 5, 2011 email and subsequent refusal to accept her
FY2011 performance requirements (Allegation 2) were "'minor
procedural irregularit[ies]' in personnel practices [that] do[]
not give rise to an inference of discrimination." Brown v. Broad
Bd. Of Governors, 662 F. Supp. 2d 41, 50 (D.D.C. 2009) (citing
Kelly v. Hairston, 605 F. Supp. 2d 175, 179 n. 3 (D.D.C. 2009);
see also Diggs v. Potter, 700 F. Supp. 2d 20, 44 (holding that an
administrative error establishes a legitimate non-discriminatory
reason for an employer's action).
With regard to Allegation 1, Moore counters that because
Griff is was in possession of the emails which formed the basis for
Plaintiff's final interim performance appraisal, his failure to
provide Plaintiff with a copy was deliberate and discriminatory.
Pl.'s Opp. at 34-35 (citing Defendant's Ex. 11, Emails between
Griffis and Gilson [Dkt. No. 10-11]).
The Government notes that Gilson claimed that she misplaced
the written interim performance review. Defendant's Ex. 10, p. 21.
However, the written interim review was based on the August 25,
2011 email exchanges between Gilson and Griff is that contained the
actual comments and rating. Id.; Defendant's Ex. 11. Griffis had
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the August 25 emails in his possession at all times after Plaintiff
requested a copy of the interim rating and has provided no
legitimate reason why he refused to provide it to her.
With regard to Allegation 2, Moore argues that Griffis'
failure to include her on the December 5, 2011 email could not
have been an oversight or minor procedural irregularity because
"Mr. Griffis either had to remove Plaintiff's name from the e-mail
list or create his own list of names." Pl.'s Opp. at 15; see also
Defendant's Ex. 9 at 14 [Dkt. No. 10-9]. Defendant has not provided
any legitimate, non-discriminatory reason why it did not permit
Moore to submit her accomplishments after both parties realized
she had been left off the December 5, 2011 email. Because the list
of accomplishments was used to determine Moore's performance
ratings, Griff is' refusal to correct his "oversight" amounts to
more than a minor procedural irregularity.
Summary Judgment shall therefore be denied for Allegations 1
and 2.
3. Allegations 3 and 4
The Government argues that Allegations 3, "Parita Shah's
ineligibility to rate Plaintiff's FY2011 performance," Def.'s Mot.
at 7, and Allegation 4, "Mr. Griffis' delay in timely completing
Plaintiff's FY2011 performance evaluation, id., "concern nothing
more than Defendant's business decisions." Def. 's Mot. at 22.
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Moreover, the Government has presented evidence to show that Moore
was not uniquely situated as to either of these complaints.
As to Allegation 3, the Government explained that OPA
experienced a high number of staff turnovers in FY 2011. The
departing staff members included Gilson, Moore's first-level
supervisor. As a consequence of these departures, Griffis, in his
capacity as the Director of OPA, made the business decision to
appoint Shah to Gilson's former position. Def.'s Mot. at 22. Moore
was not the only one among Gilson's supervisees to be transferred
to and rated by Shah for FY 2011. Def.'s Mot. at 22 (citing Def.'s
Ex. 5 at 2 [Dkt. No. 10-2]). In fact, all of Gilson's supervisees
were transferred to Shah, who gave them their FY 2011 final
performance evaluations. See Def.'s Ex. 5 at 2.
Similarly, as to Allegation 4, the Government stated that the
significant number of staff turnovers contributed to the delay in
Griffis' ability to complete the FY final evaluations. See Def.'s
Mot. at 22 (Citing Def.'s Ex. 7 at 1 [Dkt. No. 10-7] and Def.'s
Ex. 5 at 2). The Government decided to allow "new employees to get
acclimated to OPA" before rating them. It was that decision that
caused the delay in issuing performance evaluations for FY 2011.
Id. 22-23. Significantly, Moore was not the only employee who
received her FY 2011 final evaluation late. Id. at 26. The
Government also submitted evidence that another employee received
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a rating after Moore did. Compare Compl. ~ 47 (alleging that Moore
received her rating in February 2012), with Def.'s Ex. 2 at 7 [Dkt.
No. 10-2] (showing that Employee C received her FY2011 rating on
March 9, 2012).
Moore argues that "there is no. indication as to when it was
a~tually presented to the employee." Pl.'s Opp. at 35. However,
Moore points to no concrete evidence beyond her speculation that
would suggest that the other employee's rating did not occur on
the date cited by the Government. Although the Court must consider
all allegations in the light most favorable to Plaintiff, the non-
moving party, mere speculation is insufficient to establish
pretext. See Alexis v. District of Columbia, 44 F. Supp. 2d 331,
337 (D.D.C. 1999) (holding that a non-moving party must present
"specific facts showing that there is a genuine issue for trial,"
and "may not rely on mere allegations or denials to prevail" in
order for the Court to deny a motion for summary judgment) .
Plaintiff has therefore failed to carry her burden in showing
pretext with sufficient evidence for a reasonable jury to find
retaliatory motive regarding Allegations 3 and 4.
4. Allegations 5 and 6
The Government asserts that Griffis' FY2011 Performance
Evaluation of Moore (Allegation 5) and Griffis' recommendation of
a $150 performance bonus for Moore (Allegation 6) were based on
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the employer's dissatisfaction with Moore's work performance.
There is no question that dissatisfaction with an employee's
performance may establish a legitimate, non-discriminatory reason
for an employee's performance rating and low bonus. See Johnson v.
Bolden, 492 F. App'x 118 (D.C. Cir. 2012) (holding that an
employer's dissatisfaction with employee's work was a legitimate
non-discriminatory reason for a poor performance rating and a low
bonus).
Moreover, the Government articulated a number of legitimate
reasons for Moore's low performance rating. For example, the
Government stated in Moore's performance rating that, "[w]e would
like to see [Plaintiff] improve her relationship with MBDA," Def.' s
Ex. 8 at 3, noting that " [clients at MBDA] say she has been
collegial but say they would like her to improve press release
turnaround time which can take up to four days. 11
Id. The Government
also noted that the MBDA was not "satisfied with [Plaintiff] as
its liaison. 11
Id. The Government listed additional complaints
about Moore's work performance as explanation for her performance
·rating. See Def.'s Mot. at 24.
Defendant also asserts that Moore's bonus of $150 was lower
than it might otherwise have been to reflect the Government's
above-mentioned concerns as well as the fact that, "the Office of
Public Affairs' budget was reduced and consequently the Office of
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Public Affairs had significantly less money for bonuses." Def.'s
Ex. 5 at 2.
Moore asserts that the Government's reasons are merely
pretext, relying on her assertions in Allegations 1, 2, and 3;
namely, that Shah was not qualified to review her performance and
that she was not given sufficient opportunity to review and respond
to the interim rating because she did not receive a hard copy.
Pl.'s Opp. at 36-37. Moore argues that with regard to her work on
press releases for MBDA, "any delay was not caused by [Plaintiff]
but resulted from the review process itself after a press release
from MNDA was forwarded by [Plaintiff]." Def.'s Ex. 9 at 7. Moore
further asserts that "Defendant's stated reasons do not explain
why the bonus was six times less than other Public Affairs
Specialists who were only one grade level above her and received
at least $1000." Id. at 37.
The Court has already found that the fact of Shah's review of
Moore was not discriminatory. Moore's disagreement with the
employer's assessment of her work is not, without more, sufficient
to establish pretext. See Robertson v. Dodaro, 767 F. Supp. 2d
185, 192 (D.D.C. 2011) ("an employee's subjective assessment of
her own performance is insufficient to establish such pretext
evidence").
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5. Allegations 7
Even if Moore had established a materially adverse action for
Claim 7, she has failed to present evidence' that the Government's
legitimate non-discriminatory reason for this action was pretext.
The Government argues that Moore's allegation that Griffis.
attempted to undermine her after he left his position (Allegation
7) lacks merit because Griffis' statements about Moore were
factual. For examp],e, Moore alleges that Griffis stated that
Plaintiff never signed performance appraisals, and that Plaintiff
always had something to complain about. Compl. ~ 65.
However, Moore concedes that she had not signed a performance
appraisal since 2009. Compl. Ex. B at 5-6. Furthermore, Moore
simply responds that her complaints were justified and permitted.
Pl.'s Opp. at 37-38. Moore points to no other evidence in support
of her assertion that the Government's legitimate non-
discriminatory reason was pretext. Thus, this Court will grant
summary judgment for Defendant on Allegation 7.
In conclusion, Defendant's Motion for Summary Judgment will
be granted on all accounts except for Allegations 1 and 2, which
will survive the Motion.
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IV. CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss is
granted in part and denied in part. Defendant's Motion to Dismiss
is granted as to the allegation that it has labeled "Claim 7," but
denied as to all other allegations.
Defendant's Motion for Summary Judgment is granted in part
and denied in part. Defendant's Motion for Summary Judgment is
granted as to the allegations that it has labeled "Claims" 3-7,
but denied as to the allegations that it has labeled "Claims" 1-
2.
An Order shall accompany this Memorandum Opinion.
September 1, 2016
G~~
Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
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