Estate of Andre P. Rudder v. Vilsack ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ESTATE OF ANDRE P. RUDDER,
Plaintiff,
v.
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)
)
)
) Civil Case No. 13-0294 (RJL)
TOM VILSACK, Secretary, )
)
)
)
)
United States Department of
Agriculture, z
Defendant. JAN 2 9 2014
€LZY\ c»erx. u.s. steam a aam494 F.3d 179,
184 (D.C. Cir. 2007). The employee may file a civil action within ninety days after the
agency issues an adverse final decision, 29 C.F.R. § l6l4.407(a), or after 180 days elapse
without a decision, id. § l6l4.407(b).
Here, Mr. Rudder filed a formal grievance with NRCS on September 4, 2008, after
withdrawing his informal grievance on July 3l, 2008. See EX. l to Pl.’s Opp. at 2.
Because Mr. Rudder’s formal grievance did not meet the requirements for acceptance,
however, it was rejected by the agency in early October 2008. ]a'. The agency did
organize a mediation session attended by Mr. Rudder later that month, but the parties
were unable to reach a resolution. Ia’. Mr. Rudder filed an EEO complaint on
November 25, 2008, alleging discrimination on the basis of race, national origin, color,
and prior EEO activity. Ex. l to Def.’s Mot. ("Complaint of Employment
Discrimination") [Dkt. #7-9]. His complaint was accepted by the USDA and referred for
investigation on January 29, 2009. Ex. J to Def.’s Mot. (Correspondence from Kenneth
J. Baisden to Lawrence Lucas) [Dkt. #7-l0]. The USDA defined the claim accepted and
referred for investigation as follows:
Whether the agency subjected the complainant to discrimination based on race
(Black), national origin (Trinidadian), and reprisal (prior EEO activity) when on
July 24, 2008, complainant was advised by management of a directed reassignment
from Beltsville, Maryland to Fort Collins, Colorado effective September 28, 2008.
Id. The USDA also advised plaintiff in writing of his right to disagree with this claim.
Id. Plaintiff never exercised this right.
On April l4, 2009, Mr. Rudder made a statement to the EEO investigator assigned
by the USDA to investigate his complaint, See Ex. L to Def.’s Mot. Mr. Rudder stated
that he believed his reassignment was based on his race and color because "[t]he Agency
has engaged in discrimination against employees’ [sic] and customers base [sic] on their
races, i.e. Black Farrners, Asian Class action." Id. at 11 9, l0. Mr. Rudder additionally
stated that "my directed reassignment was based on my national origin because 1 still have
pending EEO cases in which Ms. Dana York is directly involved and one of them pertains
to National origin." Id. at 1 ll. Mr. Rudder also alleged that his October 2007
assignment to the Security Incident team in Beltsville was racially motivated and that
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white employees were treated differently. Id. at 1 5. Mr. Rudder passed away as a result
of hypertensive and atherosclerotic heart disease shortly after giving this statement, on
May 16, 2009. Pl.’s Opp. at l; see also Complaint at 1 22, Moses v. District of
Columbia, No. l0-cv-802 (D.D.C. May 14, 2010) ECF No. l.
On September 4, 2009, the USDA issued a Final Agency Decision ("FAD")
determining that Mr. Rudder had not made a prima facie case of discrimination or
retaliation. Ex. A. to Def.’s Mot. On October 9, 2009, Mr. Rudder’s estate appealed
that decision. See Ex. l to Pl.’s Opp. On December 6, 2012, the Equal Employment
Opportunity Commission ("EEOC") denied that appeal. Id. Plaintiff subsequently filed
the instant civil action on March 7, 2013.
STANDARD 0F REVIEW
Defendant moves for dismissal pursuant to Federal Rule of Civil Procedure
l2(b)(6), arguing that plaintiff failed to exhaust his administrative remedies with respect
to several of the claims raised in his complaint, Defendant’s assertion regarding
non-exhaustion of administrative remedies is an affirmative defense that does not raise
jurisdictional implications. See Artz’s v. Bernanke, 630 F.3d l03l, 1034, n.4 (D.C. Cir.
201 l); Blue v. Jackson, 860 F. Supp. 2d 67, 72 (D.D.C. 2012). As affirmative defense,
the defendant bears the burden of producing evidence demonstrating non-exhaustion.
Bowa’en v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citation omitted). If the
defendant carries this burden, the plaintiff must rebut the defendant’s evidence or invoke
one of the equitable doctrines of waiver, estoppel, or tolling. Id. If a district court refers
to materials outside the pleadings in resolving a l2(b)(6) motion alleging non-exhaustion,
it must convert the motion to dismiss into one for summary judgment and provide the
parties an opportunity to present evidence in support of their positions. See Kz`m v.
United States, 632 F.3d 7l3, 719 (D.C. Cir. 2011); FED. R. CIV.P. 12(d).
"[A] district court can consider a summary judgment motion when it is satisfied
that the parties are not taken by surprise or deprived of a reasonable opportunity to contest
facts averred outside the pleadings and the issues involved are discrete and dispositive."
Hamz`lton v. Gez'thner, 743 F. Supp. 2d l, 8 (D.D.C. 2010) (quotations and citation
omitted). Summary judgment is proper where "there is no genuine dispute as to any
material fact and the movant is entitled to summary judgment as a matter of law." FED.
R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 3l7, 322 (1986). Although
the burden is on the movant to show that there is no dispute of fact, the non-moving party
also bears the "burden of producing in turn evidence that would support a jury verdict."
Ana’erson v. Lz`berly Lobby, Inc., 477 U.S. 242, 256 (1986). The non-moving party "may
not rest upon mere allegation or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial." Id.
The court must accept as true the evidence of, and draw "all justifiable inferences"
in favor of, the party opposing summary judgment. Id. at 255. To the extent that the
non-moving party will bear the burden of proving facts at trial, however, those facts must
be supported by competent evidence, and the absence of such evidence can form the basis
for summary judgment. See Celotex, 477 U.S. at 322-24. A genuine issue exists only
where "the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Ana’erson, 477 U.S. at 248.
ANALYSIS
As a threshold matter, the Court concludes that both parties have had sufficient
opportunity to present material evidence beyond the pleadings and contest the discrete,
dispositive facts and issues involved in this case, Both parties have submitted briefs
extensively discussing the material facts and issues surrounding plaintiff"s claims of
discrimination, retaliation, and administrative exhaustion. Plaintiff’ s Opposition to
Defendant’s Motion cites the record below and presents additional evidence not found in
the Agency Report of investigation. See Pl.’s Opp. & Exhibits [Dkt. #91. Because
plaintiff would not suffer prejudice from the conversion of defendant’s Motion into one
for summary judgment, the Court will so proceed.
Title Vii makes it unlawful for an employer "to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because
of the individual’s race, color, religion, sex, or national origin." 42 U.S.C. §§
2000(e)-2(a)(l). Title Vii similarly prohibits employers from retaliating against an
employee because that employee "has opposed any practice made an unlawful practice by
[Title Vii], or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under [Title Vii]." 42 U.S.C. §§
2000(e)~3(a). Before an employee may obtain relief under Title Vii in federal court, he
must exhaust the administrative process for each discrete act of discrimination or
retaliation he alleges. Blue v. Jackson, 860 F. Supp. 2d 67, 73 (D.D.C. 2012). The
purpose of the administrative exhaustion requirement is to preserve judicial resources and
provide the agency with notice and an opportunity to pursue an administrative resolution.
See Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. l985); Peczrsall v. Holder, 610 F. Supp.
2d 87, 95 (D.D.C. 2009).
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) (citation
omitted). Plaintiff must exhaust those administrative remedies before bringing a suit in
district court. Id. Here, the claim accepted and referred for investigation at the
administrative level was:
Whether the agency subjected the complainant to discrimination based on race
(Black), national origin (Trinidadian), and reprisal (prior EEO activity) when on
July 24, 2008, complainant was advised by management of a directed reassignment
from Beltsville, Maryland to Fort Collins, Colorado effective September 28, 2008.
Ex J. to Def.’s Mot. Mr. Rudder’s estate brings the same claim in the instant Complaint,
in addition to several new claims involving conduct he never raised at the administrative
level. Plaintiff now claims that the following discrete acts constituted discrimination and
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retaliation: (l) reassignment in October 2007 to another team in Beltsville; (2) subjection
to adverse working conditions in Fort Collins; (3) change in job responsibilities in Fort
Collins; and (4) refusal to provide relocation expenses and assistance as recommended by
the CRIA. See Compl. 11 23, 27, 31.
Mr. Rudder’s estate argues that his new claims are sufficiently related, for
purposes of the administrative exhaustion requirement, to piggy-back on the claim
accepted and referred for investigation at the administrative level. i disagree. in
assessing whether an administrative claim has been timely filed, the Supreme Court has
noted that "each incident of discrimination and each retaliatory adverse employment
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decision constitutes a separate actionable ‘unlawhal employment practice. National
R.R. Passenger Corp. v. Morgan, 536 U.S. l0l, ll4 (2002). This Court has further
elaborated that
The key to determining whether a claim must meet the procedural hurdles of the
exhaustion requirement itself, or whether it can piggy-back on another claim that
has satisfied those requirements, is whether the claim is of a "discrete" act of
discrimination or retaliation or, instead, of a hostile work environment. "Discrete
acts such as terrnination, failure to promote, denial of transfer, or refusal to hire"
are individual acts that "occur" at a fixed time.
Coleman-Adebayo v. Leavz'tt, 326 F. Supp. 2d 132, 137-38 (D.D.C. 2004) (quoting
Morgan, 536 U.S. at 114). Here, Plaintiff’ s new claims allege discrete incidents that
were different in kind, involved different individuals, and occurred at different times.
Accordingly, exhaustion of these claims was required "regardless of any relationship that
may exist between [them]." Id. at 138.
ll
The four above-listed acts were not included in Mr. Rudder’s Complaint of
Employment Discrimination dated November 25, 2008, see Ex. i to Def.’s Mot
(Complaint of Employment Discrimination) [Dkt. #7-9], nor were they included in the
claim accepted and referred for investigation in January 2009, see Ex. J to Def.’s Mot. if
plaintiff believed that these discrete acts were improperly omitted from the claim
accepted and referred for investigation, "he certainly had the opportunity (and informed
responsibility) to apprise the agency of its error." Hamz`lton, 743 F. Supp. 2d at 12.
Here, Mr. Rudder never expressed a desire to amend his complaint to include issues or
claims like or related to those raised in the complaint, Because Mr. Rudder did not
properly raise the four above-listed incidents at the administrative level, the USDA was
stripped of an opportunity to reach an administrative resolution. Accordingly, the Court
must dismiss plaintiffs belated claims.
Defendant acknowledges that plaintiff did, however, properly exhaust his Title Vii
claims of discrimination (based on race, color and national origin) and retaliation (based
on prior EEO activity) with respect to his directed reassignment in 2008. Considering all
relevant evidence presented by the parties and drawing all justifiable inferences in
plaintiff s favor, however, defendant is entitled, nonetheless, to summary judgment on
these claims.
Our Circuit has stated that, at the summary judgment stage, it is "almost always
irrelevant" whether a plaintiff in a discrimination suit has made out a prima facie case.
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Braa’y v. Offz`ce of the Sergeant at Arms, U.S. House of Representatz`ves, 520 F.3d 490,
493 (D.C. Cir. 2008). Where, as here, the employer asserts a "legitimate,
non-discriminatory reason" for the actions challenged, the appropriate inquiry is whether
the employee has put forth sufficient evidence for a reasonable jury to conclude that the
employer’s proffered explanation is a mere pretext and the employer intentionally
discriminated against the employee. Id. at 494. The same approach applies to
retaliation claims. Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). Summary
judgment must be granted for the defendant if the plaintiff fails to "produce sufficient
evidence that would discredit [the employer’s proffered explanation] and show that the
actions were retaliatory." Baloch v. Kempthorne, 550 F.3d ll9l, 1200 (D.C. Cir. 2008).
Here, plaintiffs discrimination and retaliation claims fail because no reasonable
factfinder could infer from the record that plaintiff s race, color, national origin, or prior
EEO activity was the reason for plaintiff s reassignment. Defendant has produced ample
evidence that plaintiff was reassigned to Fort Collins for a legitimate organizational
reason in compliance with Title 5, Code of Federal Regulations, Section 2l0.l02(b)(l2).
The record clearly demonstrates that the USDA made a business decision to consolidate
the NRCS iT Security function in Fort Collins for compelling reasons, including
improved data security, responsiveness, coordination, information sharing, budget
efficiency, direct supervision, and infrastructure maintenance. See Def.’s Facts 1 9; Pl.’s
Facts 11 9; Ex. B to Def.’s Mot.; Ex. C to Def.’s Mot.; Ex. E to Def.’s Mot.
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Our Circuit has instructed lower courts to decline 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) (quotations and citation omitted). The reassignment at
issue here strikes me as a direct consequence of an entirely legitimate business decision,
and plaintiff offers no evidence from which a reasonable jury could conclude otherwise.
Employees often try to cast doubt on an employer’s asserted reason by "produc[ing]
evidence suggesting that the employer treated other employees of a different race, color,
religion, sex, or national origin more favorably in the same factual circumstances."
Braa’y, 520 F.3d at 495. Here, plaintiff has failed to produce any concrete comparative
evidence from which a reasonable trier of fact could infer pretext. Indeed, it is
undisputed that the consolidation affected all similarly situated iT staff, both inside and
outside of Mr. Rudder’s protected categories of race, color, and national origin.
Plaintiff"s only argument for discrediting the USDA’s asserted, non-discriminatory
reason is his contention that "[t]he Agency has discriminated against employees’ [sic] and
customers base [sic] on their races, i.e. Black Farmers, Asian Class action." Ex. L to
Def.’s Mot. at 11 9, l0. Mr. Rudder additionally stated that "my directed reassignment
was based on my national origin because i still have pending EEO cases in which Dana
York is directly involved and one of them pertains to National origin." Ia’. at 1 ll. Such
general and conclusory statements of personal opinion and speculation are, of course,
insufficient to support any reasonable inference of suspect motivation on the part of the
USDA. See Para’o-Kronemann v. Donovan, 601 F.3d 599, 611 (D.C, Cir. 2010); Brown
v. Broa'y, 199 F.3d 446, 458-59 (D.C. Cir. 1999). Accordingly, defendant is entitled to
summary judgment as to plaintiffs claims of discrimination and retaliation in connection
with his directed reassignment in 2008.
CONCLUSION
F or all the foregoing reasons, the defendant’s Motion for Summary Judgment is
GRANTED and plaintiffs Motion for Discovery is DENIED as moot. An Order
consistent with this decision shall accompany this Memorandum Opinion.
/&j \ c
1
R1CHARD J. Lhoi>?
United States District Judge