Butler v. Schapiro , 67 F. Supp. 3d 59 ( 2014 )

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RoNEsHA BUTLER
Plaintiff,
Civ. A. No. 11-574 (RCL)
V.
MARY JO WHITE, CHAIR, SECURITIES
AND EXCHANGE COMMISSION,
Defendant.
MEMORANDUM OPINION
Before the Court is defendant Securities and Exchange Commission’s ("SEC") motion
for leave to file an amended answer [55] ("Def.’s Mot. Am." l), plaintiff Ronesha Butler’s
opposition [59] ("Pl.’s Opp’n to Mot. Am."), and the SEC’s reply [60] ("Def’s Reply Re: Mot.
Am."). Also before the Court is defendant’s renewed motion for summary judgment [39]
("Def.’s Mot. Summ. J."), plaintiffs opposition [44] ("Pl.’s Opp’n to Summ. J."), and
defendant’s reply [57] ("Def.’s Reply Re: Summ. J."). Upon consideration of the parties’
arguments, the applicable law, and the entire record herein, the Court will GRANT defendant’s
motion to amend its answer, DENY plaintiffs requests for additional discovery and attomeys’
fees, and GRANT defendant’s motion for summary judgment
BACKGROUND
Plaintiff Ronesha Butler, a black attorney, was hired by the SEC in 2003 as an
attomey advisor. Compl. 1[1[ 9-l0. She was later promoted to Senior Counsel in the SEC’s Office
of Market Supervision ("OMS"), within the Trading and Markets Division. Ia’. From 2003 until
2008, OMS Assistant Director Nancy Burke-Sanow, a Caucasian woman, supervised Butler. Id.
In March 2005, Butler informed Burke-Sanow that she was pregnant, and Burke-Sanow
responded, "Oh so, what are you going to do?" Butler Aff. Ex. 27 at 11 2. She later had another
employee ask if Butler wanted a baby shower, which was customary at the SEC. Ia'. Butler
perceived these comments to be racially charged. Id. When Butler subsequently requested four
months of maternity leave, Burke-Sanow required Butler to fill out daily leave requests, rather
than asking for a simpler extended leave form. Compl. 1111 16-18.
When Butler returned to the SEC after her maternity leave, she was assigned
administrative tasks she considered "junk work." Id. 11 44. She began teleworking two days per
month, and on several occasions between August 2005 and October 2006, Burke-Sanow
questioned Butler about whether Butler was actually working or caring for her daughter. Compl.
1 35. As a result of the questioning, Butler stopped teleworking. Compl. 1} 4l.
In May 2006, the Assistant Directors, including Burke-Sanow, gave recommendations to
the Associate Directors regarding merit pay raises for the May 2005 to April 2006 period. Ia'.
11 50. Although Butler received an overall acceptable rating for the period, she did not receive a
merit pay increase as is customary. Id. at 11 5l. These pay increases have previously been the
subject of litigation between the SEC and the National Treasury Employees Union. In 2008, the
SEC awarded the union $2.7 million as part of a settlement agreement remedying the denial of
merit-step increases from 2003-2007 to black employees and employees over the age of 40.
Def.’s Mot. Summ. J. Ex. 42. Butler was awarded a $l,669 increase to her base salary as well as
a $3,517.74 one-time cash payment as part of the settlement agreement. Pl.’s Resp. to Def.’s
Statement of Undisputed Material F acts 27.
Butler alleges several other instances of perceived hostility throughout this time period,
such as making racially-charged comments about her mother, subjecting her work to great
scrutiny, and making disparaging comments about her to her peers. Compl. 1111 20, 26, 29-30.
The Court addresses these in greater detail in its analysis.
On January 24, 2007, Butler filed an EEO administrative complaint against the SEC
alleging that she had been subjected to racial discrimination and a hostile work environment.
Compl. 11 64. Butler alleges that Burke-Sanow retaliated against her during these proceedings by
reducing the substantive work she received as well as the overall quantity of her work. Ia’. 11 68.
She was removed from working on multiple projects. ld. 11 7l. She claims that at times she had
no work, despite going door-to-door and emailing supervisors asking for work. Butler Dep. Ex.
13 at 36.
Af`ter exhausting her administrative remedies with the EEO, Butler received a right to sue
letter allowing her to bring her suit in district court. On March 2l, 201], Butler filed her
complaint in district court alleging harassment and discrimination on the basis of race, and
retaliation. Id. at 2. Defendant’s motion to dismiss was denied. See Butler v. Schapiro, 839 F.
Supp. 2d 252, 259 (D.D.C. 2012). The Court now considers defendant’s renewed Motion for
Summary Judgment and Motion to Amend its Answer.
ANALYSIS
I. Defendant’s Motion to Amend Its Answer
Before the Court is defendant’s motion to amend its answer. The Court considers first
whether the opportunity to amend has been waived under Rule S(c) as interpreted by the D.C.
Circuit in Harrz`s v. Secretary, U.S. Departmenl of Veterans Ajj’airs, 126 F.3d 339, 343-45 (D.C.
Cir. 1997). Finding that it has not, the Court next considers whether the factors laid out by the
Supreme Court in Foman v. Davis, 371 U.S. l78, 182 (l962) warrant refusing amendment.
Again finding that they do not, the Court will accordingly grant defendant’s motion to amend its
answer and deny plaintiffs request for additional discovery and associated attomeys’ fees.
A. Legal Standard for Rule 15(a) Amendment
The District Court "shall freely give[] leave to amend the pleadings under Rule 15(a)
when justice requires." Harris, 126 F.3d at 345; see also Fed. R. Civ. Pro. 15(a)(2). The Court
makes this determination "on a case by case basis." Harris, 126 F.3d at 344. Indeed, "the grant
or denial of an opportunity to amend is within the discretion of the District Court, but outright
refusal to grant the leave without any justifying reason appearing for the denial is [an abuse of
discretion].” Foman v. Davz`s, 371 U.S. 178, 182 (1962). Justification may be shown through
"undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc." Ia'. at 182. This loose standard for
allowing amendment is consistent with the spirit of the Federal Rules in that it "facilitate[s] a
proper decision on the merits" rather than making "pleading a game of skill in which one misstep
by counsel may be decisive to the outcome." Id. at 181-82 (intemal quotation marks and citation
omitted). Thus, it follows that the party opposing amendment has the burden of convincing the
Court why the amendment should not be granted. E.g., Morgan v. Fed. Aviatz'on Admin., 262
F.R.D. 5, 8 (D.D.C. 2009) (plaintiff has burden of proof where defendant moves to amend
answer under 15(a)); Smith v. Cafe Asia, 598 F. Supp. 2d 45, 48 (D.D.C. 2009) (defendant has
burden of proof where plaintiff moves to amend complaint under 15(a)); see also Gudavich v.
District of Columbia, 22 Fed. App’x 17, 18 (D.C. Cir. 2001) (noting that non-movant "failed to
show prejudice from the district court’s action in allowing the [movant’s] motion to amend").
B. Forfeiture of Aff`irmative Defenses Under Rule 8(c)
Plaintiff’s chief argument in opposition to amendment is that defendant has forfeitedl the
affirmative defenses in question by consistently failing to plead them or amend its answer to
state them. See generally Pl.’s Opp’n to Def.’s Mot. for Leave to Amend Answer. Plaintiff
draws the Court’s attention to Harris v. Secrezary, U.S. Department of Veterans Ajfairs for the
proposition that "a party’s failure to plead an affirmative defense . . . generally results in the
waiver of that defense and its exclusion from the case," and that under Rule 8(c) "a party must
first raise its affirmative defenses in a responsive pleading before it can raise them in a
dispositive motion." 126 F.3d 339, 343, 345 (D.C. Cir. 1997) (intemal quotation marks and
citations omitted). Harrz's suggests that the pleading requirements of Rule 8 are designed to
provide notice to the parties, and rejects the practice of other circuits permitting parties "to raise
affirmative defenses for the first time in dispositive motions where no prejudice is shown." Ia’. at
344 (citing, e.g., Blaney v. United States, 34 F.3d 509, 512 (7th Cir. 1994)). Harris finds that
this practice "subtly alters the structure dictated by Rules 8(c) and 15(a)" by (1) permitting
parties to strategically avoid giving notice until later in the litigation process and (2) allowing the
district court to weigh only undue prejudice rather than considering all of the potential factors
listed in Foman that may weigh against amendment. Id. Instead, Harrz`s requires that "the
District Court await a request for leave to amend" before considering an affirmative defense not
originally raised in the pleadings. Ia'. at 345. Requiring amendment provides the nonmoving
party notice of a new affirmative defense and an opportunity to conduct discovery in order to
l Plaintiff s attempt to characterize defendant’s actions as an intentional waiver rather than a curable forfeiture does
not stand. See generally United States v. Olano, 507 U.S. 725, 733 (l993) ("Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.");
see also Harris, 126 F.3d at 343 n.2 ("[I]f a party ‘waives,’ i.e., intentionally relinquishes or abandons an affirmative
defense, no cure is available under Rule 15."). Defendant cannot knowingly give up a defense it does not know it
has. See I.C., infra (finding defendant was unaware of facts necessary to plead affirmative defense until 2013).
5
establish a proper counter. Ia’. lt also ensures that each Forrzan factor is given its due weight.
See id.
This Court interprets Harrz`s in the context of the present circumstances. Here, defendant
has moved to amend its answer to add the affirmative defenses of "arbitrage and award" and
"release." Def.’s Mot. to Amend 1. Generally, there would be no question about allowing such
amendment under the forgiving standard of Rule l5(a). Here, however, defendant argued the
affirmative defenses in its renewed motion for summary judgment-filed before defendant
moved to amend its answer-and thus plaintiff challenges the validity of amendment.
Essentially, plaintiff argues that Harris precludes amendment where defendant moves to amend
its answer to add affirmative defenses after first arguing them in a summary judgment motion,
but before the Court’s decision on that dispositive motion. The Court disagrees with this
interpretation. lt is clearly the motion to amend that is crucial, not its timing. Harris, 126 F.3d
at 343 n.2 ("A Rule 15 amendment, if allowed by the trial court, will cure any problem of
timeliness associated with forfeiture . . . ."); see also 6 Wright, Miller, & Kane, Federal Practice
& Procea’ure, § 1488 (3d ed. 2014) ("Quite appropriately the courts have not imposed any
arbitrary timing restrictions on requests for leave to amend and permission has been granted
under Rule 15(a) at various stages of the litigation"). Indeed, in a procedural scenario identical
to this one, Judge Bates held that moving to amend even after first arguing an affirmative
defense at the summary judgment stage was permissible under Harris. Nurricldin v. Goldin, 382
F. Supp. 2d 79, 91-92 (D.D.C. 2005). If defendant had argued the affirmative defenses in its
dispositive motion but never filed a motion to amend, Harris would certainly call for the
forfeiture of defendant’s affirmative defenses. See, e.g., Lerner v. District of Columbia, 362 F.
Supp. 2d 149, 162-63 (D.D.C. 2005). But because defendant has moved for leave to amend, this
Court will consider each of the factors in Foman, including undue delay, bad faith, failure to cure
deficiencies, and futility of amendment in addition to undue prejudice before allowing or
denying amendment.
C. Foman Factors
'l`o successfully resist amendment, plaintiff must show "undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility
of amendment, etc." Foman, 371 U.S. at 182. Plaintiff s opposition emphasizes potential undue
prejudice and undue delay, while also implying bad faith. Pl.’s Opp’n to Mot. Amend 3-5. No
amendments were previously requested or allowed, and amendment here would be substantive
and certainly not futile; thus, these final two factors are not applicable to the Court’s analysis.
Of the Foman factors, courts generally consider the "most important factor" to be "the
possibility of prejudice to the opposing party." Djourabchi v. Self, 240 F.R.D. 5, 13 (D.D.C.
2006). To demonstrate "prejudice sufficient to justify a denial of leave to amend the ‘opposing
party must show that it was unfairly disadvantaged or deprived of the opportunity to present facts
or evidence which it would have offered had the amendments been timely."’ In re Vitamins
Antitrust Litig., 217 F.R.D. 30, 32 (D.D.C. 2003) (quoting Dooley v. Uniled Techs. Corp., 152
F,R.D. 419, 425 (D.D.C. 1993)) (intemal quotation marks and citations omitted)). When ample
time remains in discovery, a motion to amend usually does not create prejudice; however, when
there is little time remaining or discovery has closed, the question often hinges on whether the
amended pleading seeks to introduce new issues that would require additional discovery. See
Willz`amsburg Wax Museurn, Inc. v. Hz`storic Figures, Inc., 810 F.2d 243, 247-48 (D.C. Cir.
1987); see also Becker v. District of Columbia, 258 F.R.D. 182, 184-85 (D.D.C. 2009). Even if
new discovery would be required, the Court may exercise its discretion to allow amendment, and
mitigate any resulting prejudice by awarding attomeys’ fees and other costs if appropriate. See
Wright, Miller, & Kane, supra, § 1488 n.27 (citing Amquz`p Corp. v. Aalrnz`ral Ins. Co., 231
F.R.D. 197 (E.D. Pa. 2005)).
Moreover, "[undue] delay without resulting prejudice . . . is not sufficient to warrant
denial of [amendment]." In re Vz'tamins, 217 F.R.D. at 33; Wright, Miller, & Kane, supra, §
1488 ("ln most cases, delay alone is not a sufficient reason for denying leave."). Providing
"sound reason" may mitigate the effect of a substantial delay, see Becker, 258 F.R.D. at 185
(quoting Doe v. McMillan, 566 F.2d 713, 720 (D.C. Cir. 1977)); Shea v. Clinton, 288 F.R.D. l,
6-8 (D.D.C. 20l2), just as providing notice of intent to plead an affirmative defense makes delay
less prejudicial, see, e.g., Harris, 126 F.3d at 343-45; Jackson v. District of Columbz'a, 254 F.3d
262, 267 (D.C. Cir. 2001).
Plaintiff spends approximately half a page of her opposition making conclusory
statements about the prejudice that would result should the Court allow amendment, Pl.’s Opp’n
to Mot. Amend 5. This hardly meets the standard of showing what specific facts or evidence
plaintiff has been deprived from uncovering through discovery. See Vz'tamins, 217 F.R.D. at 32.
Absent this explanation, it is not immediately obvious to the Court what plaintiff could possibly
learn through discovery that would alter the legal question before the Court. Plaintiff has already
conceded the only potentially disputable factual issuer that she did receive compensation and a
salary increase as part of the arbitration agreement. Pl.’s Resp. to Def.’s Statement of
Undisputed Material Facts, ECF No. 44-1 at 27. Thus, if amendment is allowed, the only
question for the Court to decide is whether the arbitration award is an effective means of
preclusion for this case, which will require some interpretation of statutory terms and an
examination of legal precedent. The Court is equipped to perform this analysis at this time, see
II.B.1, infra, and as such the additional discovery requested by plaintiff is unnecessary and will
be denied. This finding indicates that there is no prejudice and that amendment should be
perrnitted, but, to be sure, the Court continues its analysis.
While plaintiff makes much of the fact that she informed defendant of the arbitration
decision from the outset of this litigation, e.g., Pl.’s Opp’n to Mot. Amend 2-4 (emphasizing
"over two and a half years" ago), the Court finds it somewhat duplicitous that plaintiff would
seek to use the strong language of the arbitration decision without also disclosing that plaintiff
was compensated for that wrongful action. Cornpare ECF No. 9-22 (Sept. 9, 2011) (first
appearance in docket of arbitration decision condemning SEC practices as "blatant[ly]
disparate"), with ECF No. 43-42 (Mar. 10, 2014) (first appearance in docket of settlement
agreement for arbitration decision with compensation schedule that included plaintiff). The
earliest evidence that defendant knew plaintiff was compensated under the arbitration decision is
from February 26, 2013. See Letter from Def. Counsel, February 26, 2013, ECF No. 59-4; see
also Def.’s Reply Re: Mot. Amend 3-4 (explaining that defendant "promptly raised the issue
with plaintiff’ after discovering plaintiff was compensated as part of arbitration decision).
Plaintiff then argues that even if that is true, defendant’s year-long delay to amend is
inexcusable. Pl.’s Opp’n to Mot. Amend 3-5. Defendant counters that it was making a litigation
decision. Def.’s Reply Re: Mot. Summ. J. 5-6. However, the point is moot because undue delay
without prejudice is not sufficient to deny amendment, see Vz`tamins 217 F.R.D. at 33, and
absence of a justifying explanation does not immediately indicate a bad faith motive for delay,
The Court finds that plaintiff was not unduly prejudiced by this delay, primarily because plaintiff
was made aware that defendant intended to plead this affinnative defense on February 26, 2013,
and indeed responded with a full-fledged argument on March 22, 2013. See Letter from Pl.’s
Counsel, March 22, 2013, ECF No. 59-5. Moreover, discovery did not close until September 16,
2013. See ECF No. 32 (August 14, 2013 order extending discovery deadline by 33 days).
Plaintiff had more than enough time to reshape her discovery inquiries to address this issue after
receiving defendant’s notice, but apparently chose not to do so at that time. This fact undermines
her claims to prejudice and requests for additional discovery. There is no undue prejudice
standing in the way of considering the merits of defendant’s affirmative defense, and the Court
will thus grant defendant’s Rule 15 motion to amend to add the affirmative defenses of arbitrage
and award and release, and deny plaintiffs request for additional discovery and associated
attorneys’ fees.
II. Defendant’s Motion for Summary Judgment
On defendant’s motion for summary judgrnent, the Court is presented with a number of
legal issues. Plaintiff alleges three counts of title VlI discrimination in her complaint: (1)
discriminatory denial of pay raise based on race, (2) harassment based on race, and (3) reprisal
for filing a complaint. Compl.1111 12-14.
A. Legal Standard
Summary judgment is appropriate when "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); see also Anderson v. Lil)erty Lol)l)y, Inc., 477 U.S. 242, 247 (1986). The
movant may successfully support its motion by "informing the district court of the basis for its
motion, and identifying the portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
10
absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed. R. Civ. P. 56(c)).
A fact is material if it could affect the outcome of the case. Analerson, 477 U.S. at 248.
A dispute is genuine "if the evidence is such that a reasonable jury could retum a verdict for the
nomnoving party." Ial. The "evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id. at 255 . "Credibility deterrninations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge," on a motion for summary judgrnent. Ial. However, if the non-movant’s "evidence is
merely colorable, or is not significantly probative, summary judgment may be granted." Ial. at
249-50. The non-movant must present more than a "mere . . . scintilla of evidence" to avoid
summary judgment. Ial. at 252. Indeed, "[c]onclusory allegations unsupported by factual data
will not create a triable issue of fact." Pub. Health Research Grp. v. FDA, 185 F.3d 898, 908
(D.C. Cir. 1999).
B. Plaintiff s Claims
Plaintiff alleges three counts of title VII discrimination in her complaint: (1)
discriminatory denial of pay raise based on race, (2) harassment based on race, and (3) reprisal
for filing a complaint. Compl. 1111 78-91. The Court will consider each of plaintiffs claims to
determine on which counts there exists a genuine dispute as to material fact that must proceed to
trial.
1. Denial of Pay Raise Based on Race
The most hotly contested issue in this case is plaintiffs allegation that the SEC
discriminated against her based on her race when she was denied a merit-step pay increase in
2006. Because the Court has permitted amendment under Rule 15(a) to add defendant’s
ll
affinnative defenses of arbitration and award and release, the dispositive question is whether the
2008 arbitration settlement between plaintiffs union, the National Treasury Employer’s Union
("NTEU"), and plaintiffs employer, the SEC, precludes plaintiff from litigating the
discrimination issue at hand. Plaintiff first disputes that she is bound by the settlement
agreement because she, individually, never filed a grievance with the NTEU and that the facts of
her specific case were neither investigated nor considered in the final arbitration decision or
settlement agreement. Second, she claims that even if the agreement is applicable, it does not
extend to her intentional discrimination claim regarding merit-step increases.
The Court first considers whether the settlement agreement applies to plaintiff. In its
collective bargaining agreement with the SEC, the NTEU was designated the "exclusive
representative" of all SEC employees, with few exceptions. See ECF No. 42-42. As the
exclusive representative, the union may file grievances on behalf of SEC employees. See 5
U.S.C. § 7l2l(b)(1)(C). A "grievance" is any complaint--
(A) by any employee concerning any matter relating to the employment of
the employee;
(B) by any labor organization concerning any matter relating to the
employment of any employee; or
(C) by any employee, labor organization, or agency conceming--
(i) the effect or interpretation, or a claim of breach, of a collective
bargaining agreement; or
(ii) any claimed violation, misinterpretation, or misapplication of
any law, rule, or regulation affecting conditions of employment.
5 U.S.C. § 7l03(a)(9).
Generally, "[a]n aggrieved employee affected by a prohibited personnel practice . . . may
raise the matter under either a statutory procedure [EEOC complaint] or the negotiated procedure
[filing a grievance], but not both." 5 U.S.C. § 7l21(d). The simple filing of a grievance by the
union, even without the employee’s consent, may amount to an irrevocable election of remedies
12
by the member. Wright v. Snow, 2006 WL 1663490 at *6-7 (D.D.C. June 14, 2006). In this
case, the initial grievance by the union was filed as a "national grievance ‘on behalf of NTEU
and all affected bargaining unit employees,"’ seeking remedies including "[t]hat all affected
employees be awarded up to three merit step increases." ECF No. 9-22 at 1-4. "Affected
employees" were those denied a merit step increase between 2003 and 2007. Plaintiff, as a black
SEC employee denied a merit-step increase in 2006, falls into the "affected" category. Thus, the
suit was brought by her union on her behalf and its legal resolution is binding on her.
Having decided its effect on plaintiff, the Court now decides whether the agreement
precludes litigating intentional discrimination claims related to merit-step increases. The key to
resolving this issue is to examine the precise terms used in the agreement between the SEC and
the NTEU and determine how they apply to plaintiff. See, e.g., Gonzalez v. Dep ’l of Labor, 603
F. Supp. 2d 137, 142-45 (D.D.C 2009) (interpreting terms of settlement agreement).
Acc0rdingly, the Court tums to contract law to guide its interpretation. See id. at 143 (citing
Makins v. District of Columbia, 277 F.3d 544, 546 (D.C. Cir. 2002). "When interpreting a
contract, the plain language and mutual intent of the parties are paramount." Ia’. (citing Mesa Air
Group, Inc. v. Dep’t ofTransp., 87 F.3d 498, 503 (D.C. Cir. 1989)).
The settlement agreement between the SEC and the NTEU "settles all issues raised in the
national merit pay grievances covering contribution years 2003 through 2007, filed by NTEU on
January 8, 2004." ECF No. 42-43 at 9. Although the arbitrator found it unnecessary to address
the issue of intentional discrimination, ECF No. 9-22 at 94, the "NTEU agree[d] that it will not
raise the issues contained in the grievances in any other forum," ECF No. 42-43 at 9. Based on
the "plain language" of the agreement, the denial of merit-step increases was its central point,
and this agreement settled any potential litigation arising from that injury, including intentional
13
discrimination. See Gonzalez, 603 F. Supp. 2d at 144-45. Moreover, if plaintiffs theories
regarding her ability to litigate this issue were credited, then every SEC employee who was
denied a merit-step increase for what they perceived to be intentional discrimination would be
entitled to bring a lawsuit as well. This cannot have been the intent of the settlement agreement,
If the parties intended to reserve the rights of individual SEC employees to sue on certain issues,
then they likely would have stipulated to that effect in the agreement, Id. at 144 (finding the
parties intended to settle all claims "in the absence of clear language to the contrary”). The
Court therefore finds that the sweeping term "all issues" includes every wrongful action related
to the denial of merit-step increases from 2003-2007. Because discrimination against black SEC
employees in determining merit-step increases was one of the issues considered in the grievances
filed by the NTEU, and "all issues" related to the grievances including the denial of merit-step
increases from 2003-2007 have been settled, plaintiff is precluded from alleging intentional
discrimination for the denial of a 2006 merit-step increase in this or any court.
Furthermore, plaintiff was compensated as part of the settlement agreement for the SEC’s
denial of her 2006 merit-step increase. Pl.’s Resp. to Def.’s Statement of Undisputed Material
Facts, ECF No. 44-1 at 27 (conceding that plaintiff received a $l,669 increase to her base salary
as well as a $3,517.74 one-time cash payment as part of the settlement agreement). She now
seeks to recover on an intentional discrimination theory for the same denial of her 2006 merit-
step increase. However, "it goes without saying that the courts can and should preclude double
recovery by an individua1." Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 333 (1980). The
Supreme Court has noted that in factual scenarios like this one, "where [a labor representative]
has prevailed in [a representative] action, the court may reasonably require any individual who
claims under its judgment to relinquish his right to bring a separate private action." Icl. at 333.
14
Here, plaintiff accepted compensation under the NTEU settlement agreement but now brings a
"separate private action" involving the exact injury she was compensated for already. This is
contrary to general principles of equity and faimess as well as the Supreme Court’s mandate.
The Court will accordingly enter summary judgment in favor of defendant in regard to count ll
of plaintiff s complaint: intentional racial discrimination based on the denial of her 2006 merit-
step increase.
2. Harassment Based on Race
a. Legal Stamlard
Count 1 of plaintiffs complaint alleges harassment based on plaintiffs race. Title VII
provides that it is "unlawful for an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).
Title VII discrimination claims have traditionally followed the burden-shifting
framework laid out in McDonnell Douglas C0rp. v. Green, 411 U.S. 792, 802 (1973). See
Braaly, 520 F.3d at 493-94. A plaintiff has the burden of establishing a prima facie case of
discrimination by a preponderance of the evidence. Id. at 802. To establish a prima facie case of
discrimination, a plaintiff must demonstrate that (1) he is a member of a protected class; (2) he
suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference
of discrimination. Nurria’din v. Gola'in, 382 F. Supp. 2d 79, 89 (D.D.C. 2005) ayfa' sub nom.
Nurrz'a'din v. Grzffin, 222 F. App’x 5 (D.C. Cir. 2007).
lf the plaintiff establishes a prima facie case, the burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at
802. The employer’s burden is one of production and "[i]t is sufficient if the defendant’s
15
evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Tex.
Dep ’t of Cmty. Ajj’airs v. Burdine, 450 U.S. 248, 254-55 (1981). If the employer is successful, the
burden shifts back to the plaintiff to show that the employer’s stated reason was a pretext for
discrimination or retaliation. Reeves v. Sanderson Plumbing Proals., Inc., 530 U.S. 133, 143,
(2000). Although the "inter1nediate evidentiary burdens shift back and forth" under the
McDonnell Douglas framework, "[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with the plaintif ."
Ial. at 143 (quoting Bura'ine, 450 U.S. at 253).
Hostile work environment claims "are based on the cumulative effect of individual acts."
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. l0l, 115 (2002). The Supreme Court has
instructed that Title VII is violated "[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. Forklzft Sys.,
Inc., 510 U.S. 17, 21 (1993). A hostile work environment must be both objectively and
subjectively hostile. Ia’. at 21. "This standard . . . takes a middle path between making
actionable any conduct that is merely offensive and requiring the conduct to cause a tangible
psychological injury." Id. The Supreme Court also set out the appropriate inquiry:
[W]hether an enviromnent is "hostile" or "abusive" can be determined only by
looking at all the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work perforrnance. The effect on the employee’s
psychological well-being is, of course, relevant to determining whether the
plaintiff actually found the environment abusive. But while psychological harm,
like any other relevant factor, may be taken into account, no single factor is
required.
Ial. at 23. Generally, "isolated incidents," "offhand comments," and "simple teasing" "will not
amount to discriminatory changes in the ‘terms and conditions of employment."’ Faragher v.
16
City of Boca Raton, 524 U.S. 775, 788 (1998). Title VII does not make actionable offenses
arising from "the ordinary tribulations of the workplace." Ia’. (citation and internal quotation
marks omitted).
b. Plaintiff’s Allegations
Considering the applicable law, the Court is presented with three potentially dispositive
questions on defendant’s motion for summary judgrnent: first, does plaintiff present sufficient
evidence of the alleged conduct? Second, assuming that all the alleged conduct that survived the
evidentiary bar is true, would a reasonable jury be able to conclude that the conduct was
collectively "severe and pervasive" such that it altered the terms or conditions of plaintiffs
employment? Third, does plaintiff present evidence such that a reasonable jury could conclude
that the severe and pervasive conduct was racially motivated?
i. Plaintiff s Evidence and Allegations
Plaintiff alleges that "over the course of one year," defendant subjected her to ten
different kinds of harassment. See Pl.’s Opp’n to Mot. Summ. J. 25.
(1) Burke-Sanow "[required] Plaintiff to fill out dozens of pages of unnecessary
bureaucratic paperwork prior to taking matemity leave (see Ex. 13 at 17-18).” Pl.’s Opp’n to
Mot. Summ. J. 25. Defendant provides evidence that, on the contrary, plaintiff filled out leave
slips according to SEC policy. Butler was only required to fill out a new leave slip when the
type of leave she planned to take changed. See Woodland Dep. 51-54, ECF No. 42-20; Butler
Leave Slips, ECF No. 42-21; Burke-Sanow Dep. 69-71, ECF No. 50-16. Indeed, she filled out
30 leave slips for 108 days of matemity leave. See Butler Leave Slips, ECF No. 42-21. The
Court considers this evidence as defendant presented.
17
(2) Burke-Sanow "[failed] to provide Plaintiff with appropriate Agency-required
paperwork prior to her matemity leave resulting in her incurring unnecessary debts to the
Agency (see [Ex. 13 at 17-18])." Pl.’s Opp’n to Mot. Summ. J. 25. Whether filling out
matemity leave paperwork caused plaintiff to incur unnecessary debts to the SEC is not refuted
by defendant, so it will be assumed for summary judgment purposes.
(3) Burke-Sanow "[kept] a notebook of negative comments regarding Plaintiff and her
work product (see Ex. 1 at 204-05)." Pl.’s Opp’n to Mot. Summ. J. 25. This is a
mischaracterization of the evidence. Burke-Sanow testified that she kept notes of plaintiff as
well as other employees, and there is no indication from the testimony that these notes were
negative. See Burke-Sanow Dep. ll at 204-05, ECF No. 50-1. The Court will treat this claim
accordingly for purposes of summary judgment.
(4) Burke-Sanow "[made] numerous racially charged comments about Plaintiff and her
mother (see Ex. 2 at 98)." Pl.’s Opp’n to Mot. Summ. J. 25. Defendant disputes that the
comments were racially charged, but concedes that the underlying conversations did occur.
Particularly, plaintiff claims that Burke-Sanow said that plaintiffs mother, who was changing
jobs, could be a "secretary" rather than an "administrator," and that she could teach at
"community college" rather than "Georgetown." Butler Dep. 56-57, ECF No. 50-6. Burke-
Sanow also said that she did not know plaintiffs mother was a "real nurse," when in fact she was
a "registered nurse." Ia'. Regarding plaintiff herself, when plaintiff mentioned that she was
pregnant, Burke-Sanow said "oh, so what are you going to do?" and had an employee ask if
plaintiff wanted a baby shower, which was customary at the SEC. Butler Aff. Ex. 27 at 11 2.
Plaintiff interpreted these interactions as racially charged. The Court will assume that the
18
underlying facts were as plaintiff suggests, but reserve any inference of racial animus until later
in its analysis.
(5) Burke-Sanow "[criticized] the amount of time plaintiff spent on Agency sponsored
civil-rights projects without cause (see [Ex. 2] at 79-8l, 84)." Pl.’s Opp’n to Mot. Summ. J. 25.
Plaintiff also alleges that Burke-Sanow "checked up" on her work with the African-American
Council by calling Deborah Balducchi, EEO Office director. Ia'. at 26. Defendant disputes that
Burke-Sanow’s call was in regard to plaintiff specifically, but cannot disprove plaintiffs claims
with evidence. Although Balducchi doesn’t remember any specific call, and generally calls
regarding employee participation in such diversity programs are appropriate, see Balducchi Decl.
1111 2-3, ECF No. 42-12, for purposes of summary judgment the Court will assume that the facts
are as plaintiff alleges.
(6) Burke-Sanow "repeatedly question[ed] Plaintiff and her co-workers about her work
habits (see [Ex. 2] at 22-24, 36-37; Ex. 3 [at] 14, 17)." Pl.’s Opp’n to Mot. Summ. J. 25.
Defendant disputes this on factual grounds. Plaintiff s specific allegations are that Burke-Sanow
"intimated" some kind of problem with plaintiff to Susie Cho and Mark McKayle. Both Cho and
McKayle have given swom statements that Burke-Sanow did not make any disparaging
comments about plaintiff. Ia'. at 24; McKayle Decl. 11 3, ECF No. 42-10. Susie Cho has stated
she "most likely did not say" that conversations with Burke-Sanow about plaintiff made her
uncomfortable. Cho Dep. 25, ECF No. 42-9. At most, McKayle found one instance of Burke-
Sanow calling to inquire about plaintiff to be "unusual," but not rising to the point of making him
"uncomfortable." McKayle Dep. 20, ECF No. 42-11. However, defendant has shown through
competent evidence that Burke-Sanow called McKayle regarding plaintiff rather than the
designated supervisor because she could not reach that supervisor. Burke-Sanow Dep. 119-31,
19
ECF No. 42-4; see McKayle Decl. 11 4, ECF No, 42-10. These are the only employees that
plaintiff cites for her allegation, and their swom testimony does nothing to support plaintiffs
inference that Burke-Sanow "repeatedly" questioned plaintiffs co-workers about her. The Court
will treat the facts accordingly.
(7) Burke-Sanow "inquir[ed] about Plaintiff s perforrnance, quality[,] and timeliness to
her peers, other supervising attomeys[,] and Agency employees." Pl.’s Opp’n to Mot. Summ. J.
25. There is no citation to the record to support this allegation, so the Court assumes it was
meant to be encompassed in the previous, similar, allegation, and treats it accordingly.
(8) Burke-Sanow "subject[ed] Plaintiff to higher scrutiny in regards to her work product
and telecommuting requests than that of Plaintiff s non-Af`rican American peers (see Ex. 2 at
148; Ex. 6 at 15, 30)." Pl.’s Opp’n to Mot. Summ. J 25. Defendant provides evidence that
Burke-Sanow’s interactions with plaintiff regarding telework were in accordance with SEC
policy, and that Burke-Sanow also followed up on her other employee’s telework requests. The
telework policy states:
On the day preceding each telecommute day, I will e-mail my supervisor with a
description of the projects that 1 propose to work on while telecommuting On my
first day back at the office, I will e-mail my supervisor to describe the status of
those projects and what 1 accomplished while telecommuting.
Telework Agreement 9, ECF No. 42-13. Burke-Sanow sent e-mails reminding plaintiff to send
in the required telework e-mails five times over the course of a year of teleworking. See Butler
Dep. 153-56, ECF No. 50-2. She sent our of the emails because plaintiff had forgotten to comply
with the policy, and one because Burke-Sanow was leaving early. See Telework E-mails 1, ECF
No. 42-15; Telework E-mails II, ECF No. 42-16. The only written evidence of Burke-Sanow’s
interactions with others regarding telework, these e-mails, shows that she was consistent among
all employees when asking for explanations for changes in telework schedules, determining
20
whether employees had sufficient work, and reminding individuals to send in the details of their
telework. See Telework E-mails I, ECF No. 42-l5; Telework E-mails ll, ECF No. 42-16.
Burke-Sanow also testifies that she followed up with other workers regarding their child-care
arrangements during their telework days, which plaintiff is unable to refute. Burke-Sanow Dep.
185, 199, 219-20, ECF No. 42-4. However, plaintiff alleges that Burke-Sanow called plaintiff
into her office and went on "tirades" regarding plaintiffs telework, and that this caused plaintiff
to stop teleworking. See Butler Dep. l23, 148, 154-55, ECF No. 50-2. Defendant disputes this
but cannot disprove it, and therefore the Court assumes its truth.
(9) Defendant "subject[ed] Plaintiff to adverse employment actions such as giving
Plaintiff a rating of ‘zero’ for her 2006 merit step increase." Pl.’s Opp’n to Mot. Summ. J. 25.
This heavily disputed issue is not relevant because the Court found that all issues related to the
denial of plaintiffs merit step increase have been resolved and remedied.
(10) Burke-Sanow "tasked Plaintiff for unappealing administrative assignments while
Plaintiff was on matemity leave. See Def Att. 18." Pl.’s Opp’n to Mot. Summ. J. 29.
Defendant does not successfully dispute the contention that this was "junk work" that no one
wanted to do, id., although defendant does present unrefuted evidence that it was actually
another supervisor, Ms. King, who selected plaintiff to perfonn one of the administrative tasks
after Burke-Sanow recommended two potential candidates, including plaintiff. Burke-Sanow
Dep. 233-34, ECF No. 42-4.
ii. Severity and Pervasiveness
Assuming that each of plaintiffs allegations is true, defendant argues that the totality of
the circumstances does not rise to the level of severe and pervasive conduct. The Court agrees.
21
Several cases are illustrative of the high standard for hostile work environment claims. In
George v. Leavitt, the D.C. Circuit affirmed the district court’s denial of plaintiff s hostile work
environment claim where the plaintiff from Trinidad and Tobago was told to "go back where she
came from" by her co-workers on three occasions. 407 F.3d 405, 416-17 (D.C. Cir. 2005). She
advised her supervisor of the incidents, but her supervisor blamed her and took no action. Id. at
408. Later, her supervisor advised her co-workers during a meeting that she was "causing
problems" and that they should "keep [their] distance from her." Id. at 408-09. After an incident
in plaintiffs office, her supervisor "angrily kicked a box" on the way out, which frightened
plaintiff. Id. at 409. The D.C. Circuit ruled that these incidents were the exact kind of "‘isolated
incidents’ that the Supreme Court has held cannot form the basis of a Title VII violation." Id. at
417.
ln Singh v. United States House of Representatives, the plaintiffs supervisor humiliated
her at important meetings, was "hostile, patronizing, and frequently abusive," once told her to
"shut up and sit down," excluded her from meetings, denied her opportunities for professional
growth, isolated her from other staff members, and was generally hypercritical. 300 F. Supp. 2d
48, 54-55 (D.D.C. 2004). Plaintiff was denied a parking spot and denied the opportunity to
attend the "ten-day festivities surrounding her daughter’s college graduation." Id. at 54 (internal
quotation marks omitted). Judge Collyer granted defendant’s motion for summary judgment,
ruling that this conduct was not sufficiently severe and pervasive to create a hostile work
environment. la’. at 56-57.
Here, there is no evidence that the alleged conduct was sufficiently pervasive or severe
such that it altered a term or condition of plaintiffs employrnent. In fact, the evidence shows
that Burke-Sanow’s "constant" alleged wrongful actions were actually limited to discreet
22
instances over the course of more than a year. None of plaintiffs complaints were physical in
nature. The most frequently-occurring events plaintiff alleges relate to plaintiffs telework, was
limited to six occasions. Likewise, the alleged racially-charged comments Burke-Sanow made
regarding plaintiff and plaintiffs mother, while certainly presumptuous and insensitive, were
discreet events Even if they were as racially charged as plaintiff claims, the "mere utterance of
an ethnic or racial epithet which engenders offensive feelings in an employee [does] not affect
the conditions of employment to sufficiently significant degree to violate Title VII." Merz`tor
Sav. Bank, FSP v. Vinson, 477 U.S. 57, 67 (1986) (intemal quotation marks and citation
omitted). Objectively, a reasonable employee would not consider plaintiffs circumstances
severe enough to change the terms and conditions of her employment, Indeed, plaintiff s claims
that other employers noticed and commented about Burke-Sanow to plaintiff proved to be
uncorroborated and unsupported for the purposes of summary judgrnent.
Essentially, many of plaintiffs complaints regarding Burke-Sanow related to her
management style. Burke-Sanow was picky, thorough, and scrutinized much of plaintiffs work.
Plaintiff fails to establish that this did not happen to other employees under Burke-Sanow’s
charge, and indeed defendant presents evidence demonstrating that Burke-Sanow exercised this
level of scrutiny across the board. Objections to a supervisor’s management style have generally
been held not to constitute a severe and pervasive environment. See, e.g., Johnson v. Bolden,
699 F. Supp. 2d 295, 302 (D.D.C. 2010); Allen v. Napolitano, 774 F. Supp. 2d 186, 205-06
(D.D.C. 2011). For example, something as innocuous as a supervisor keeping notes on her
employees does not have much bearing on whether plaintiff was being actively harassed.
Instances where Burke-Sanow said that when she thought of plaintiff she "did not think of a
superstar" and described her work as "fine" are "isolated incidents" that are part of the normal
23
tribulations of the workplace. 1ndeed "[c]riticisms of a subordinate’s work and expressions of
disapproval . . . are the kinds of normal strains that can occur in any office setting." Singh, 300
F. Supp. 2d at 56. Generally, it is not severe conduct to assign "junk jobs," even where such jobs
are not assigned to other workers Freedman v. MCI Telecomm. Corp,, 255 F.3d 840, 847-48
(D.C. Cir. 2001). The administrative roles that plaintiff was assigned needed to be performed by
somebody in the department, and were certainly not unreasonable interferences with her work
performance. Thus, plaintiff being chosen for "junk work" is hardly severe.
All told, the incidents that plaintiff alleges do not give rise to an inference of a severe and
pervasive working enviromnent that altered the terms and conditions of her employment. Like in
Singh, "it appears without doubt that [plaintiff] had a rocky working relationship with [her
supervisor]," 300 F. Supp. 2d at 56, but this does not mean that she was the target of
discrimination by her supervisor. The Court finds that any hardships plaintiff was subjected to
were not sufficiently severe and pervasive for a jury to conclude that plaintiff should succeed on
her hostile work environment claim. At most, she was subjected to the "ordinary tribulations of
the workplace." Faraglzer, 524 U.S. at 728. Therefore, the Court will grant defendant’s motion
for summary judgment insofar as it relates to count 1 of plaintiffs complaint.
3. Retaliation
Plaintiff s third count alleges that she experienced retaliation after filing an EEO
complaint on January 24, 2007. Compl. 1111 63-73. Under Title V11, it is
an unlawful employment practice for an employer to discriminate against any of
his employees . . . because [the employee] has opposed any practice made an
unlawful employment practice by this subchapter, or because [the employee] has
made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). "Evaluation of Title VII retaliation claims follows the same burden-
shifting template as discrimination claims." Holcoml) v. Powell, 433 F.3d 889, 901 (D.C. Cir.
24
2006) (citing Cones v. Shalala, 199 F.3d 512, 520 (D.C. Cir. 2000)). As with discrimination
claims, the D.C. Circuit has instructed that where the defendant has asserted some "legitimate
non-retaliatory explanation" for its conduct, "the district court need not~and should not_
decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas."
Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (quoting Brady v. Ojj‘z`ce of Sergeant at
Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)). "The only question is whether the employee’s
evidence creates a material dispute on the ultimate issue of retaliation ‘either directly 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."’ Id.
(quoting U.S. Poslal Servz`ce Board of Governors v. Aikens, 460 U.S. 71 l, 716 (1983) (internal
quotation marks and citation omitted)). The Court should consider "the three relevant categories
of evidence_prima facie, pretext, and any other-to determine whether they ‘either separately
or in combination’ provide sufficient evidence for a reasonable jury to infer retaliation," id. at
679 (quoting Waterhouse v. District of Columbz`a, 298 F.3d 989, 996 (D.C. Cir. 2002)), mindful
that the "ultimate burden" of persuasion for proving a retaliation claim lies at "all times" with the
plaintiff, Tex. Dep’t ofComm. A/fairs v. Burdz`ne, 450 U.S. 248, 253 (1981).
a. Prima Facie Elementsfor Retaliation Claims
Prima facie evidence is probative of a plaintiffs retaliation claims, and typically relies on
showing that (1) plaintiff engaged in a protected activity, (2) plaintiff suffered a materially
adverse employment action perpetrated by her employer, and (3) the adverse action was causally
related to the protected activity. Jones, 557 F.3d at 677; Holcomb, 433 F.3d at 901-02. Here,
there is no dispute that plaintiff engaged in a protected activity, so the Court begins by setting out
the law for materially adverse employment actions. The requirement of material adversity
25
emphasizes that courts should distinguish between trivial and significant harms arising during the
scope of employrnent. Burlz`ngton N. & Santa Fe Ry. Co. v. W'lzite, 548 U.S. 53, 68 (2006). To
demonstrate material adversity, a retaliation plaintiff must show that "a reasonable employee
would have found the challenged activity materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination." Id. (quotations omitted). Of course, "Title VII . . . does not set forth ‘a general
359
civility code for the American workplace by enumerating a specific list of adverse actions. Ia'.
(quoting Oncale v. Sundowner Oyjfshore Servs., Inc., 523 U.S. 75, 80 (1998)). Rather, the
Supreme Court instructs the courts to examine the "particular circumstances" and context of each
case to determine whether an employer’s action would deter a reasonable employee from
complaining about discrimination. Burlington, 548 U.S. at 69. "[A]n ‘act that would be
immaterial in some situations is material in others"’ Id. (quoting Washington v. 1ll. Dep’t of
Revenue, 420 F.3d 658, 661 (7th Cir. 2005)).
The other relevant element of a prima facie case is causation. The Court of Appeals has
held that causation can be inferred through establishing a "close temporal proximity" between a
protected activity and the alleged retaliatory conduct. Cones, 199 F.3d at 521. Still, "Title VII
retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged
employment action." Univ. of T ex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2521 (2013). This
is a more restrictive standard than that applied to standard discrimination claims, and "must be
proved according to traditional practices of but-for causation." Id. at 2533. This means that
plaintiff must prove that her injury would not have occurred "in the absence of the alleged
wrongful action or actions of the employer." Id. Therefore, plaintiff may establish an inference
26
of causation through temporal proximity, but in order to succeed must also rule out all other
possible explanations of the retaliatory conduct.
b. Plaintiffs Allegations
Despite defendant’s thorough recounting of the applicable legal standard in its motion for
summary judgment, see Def.’s Mot. Summ. J. 37-38, plaintiff does not put forth any argument
that defendant’s non-retaliatory explanations are pretextual, see Pl.’s Opp’n to Mot. Summ. J.
31-35. Instead, plaintiff addresses the prima facie case and one argument regarding same-actor
influence. Id. "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." Hopkins v. Women ’s Div.,
Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (citing FDIC v. Bender,
127 F.3d 58, 67-68 (D.C. Cir. 1997)), ajfd, 98 Fed. App’x 8 (D.C. Cir. 2004). Although the
body of plaintiff s opposition does not address some of the issues defendant raised in its motion,
plaintiffs response to defendant’s statement of undisputed material facts does contain some of
the factual issues plaintiff failed to address in her opposition. See generally Pl.’s Resp. to Def.’s
Statement of Undisputed Material Facts 11 76-99. Accordingly, the Court will take defendant’s
uncontested arguments at face-value so long as they do not conflict with the facts in the record,
but will also address plaintiff s disputes as to the material facts.
Plaintiff alleged in her complaint that "[s]ubsequent to depositions taking place in
[plaintiff s] administrative complaint, Ms. Burke-Sanow removed [plaintiff s] work duties
related to the OTCBB and Pink Sheets and Over-the-Counter Derivatives project that [plaintiff]
headed since 2006 and excluded her from project meetings and precluded her from e-mails
related to the project’s status," and "reassigned these tasks to Heidi Pilpel, a Caucasian
27
employee." Compl. 1111 71-72. To begin with, "a lateral transfer, without more, does not
constitute an adverse employment action sufficient to establish a prima facie case of retaliation."
Jones v. D.C. Dep’t ofCorr., 429 F.3d 276, 281 (D.C. Cir. 2005). 1n regard to the Pink Sheets
Project, defendant puts forth evidence and plaintiff does not dispute that both plaintiff and Pilpel
were transferred away from the project. Def.’s Mot. Summ. J. 40-41. The stated purpose of
plaintiffs removal from the project was for other attomeys to "take a fresh look at the issue." Id.
Plaintiff disputes that this was the purpose behind it, but offers no facts in support of her claim.
"Conclusory allegations" cannot support a claim for summary judgrnent. Pub. Cz`tizen, 185 F.3d
at 908.
1n regard to the OTC equity issues project, plaintiff does not dispute defendant’s assertion
that Burke-Sanow [n]ever took any action to remover her from [the] project. To
the contrary, on one occasion . . . [plaintiff] sent an e-mail to Burke-Sanow asking
whether she had been removed from this matter. 1n response, Burke-Sanow
immediately sent an e-mail to [the project supervisor] reminding her to include
[plaintiff] on all e-mails [r]egarding this matter.
Absent a factual challenge to this claim, the Court cannot find that plaintiff experienced a
retaliatory employment action in regard to this specific project. Plaintiff also agrees that she was
assigned meaningful work after beginning the EEO process, and consistently fails to pin down
any specific retaliatory action at any specific point in time.
Moreover, plaintiffs only quantitatively verifiable allegations prove to be
mischaracterizations, if not outright false. Plaintiff argues that
[a]fter she filed her EEO complaint, a majority of Plaintiff s supervisors refused
to work with her. See Ex. 13 at 36-37. As a result, there were periods of time
when Plaintiff had no work, even though she sent out e-mails and went door to
door asking for work. See z`d. at 36. 1n fact, the year after Plaintiff filed her EEO
complaint, her supervisor only assigned her 13 filings See Def.[‘s] [Ex. 44]2 at 1.
2 Plaintiff cited to "Def. Att. 4 at l," but that attachment is not even remotely related to SEC filings The Court
assumes this was a typography error and that plaintiff was referring to defendant’s exhibit 44, which is an exhaustive
list of filings assigned to plaintiff from 2006-2012. See ECF No. 42-45.
28
Pl.’s Opp’n to Mot. Summ. J. 33. Plaintiff filed her formal complaint of discrimination on
January 24, 2007. Compl. 11 64. She was assigned 46 filings from January 30, 2007 to January
18, 2008 as either a principal or staff attorney; 34 as the principal attomey and 12 as a staff
attomey.3 Def.’s Ex. 44 at l, ECF No. 42-45. Thus, the statement that in "the year after Plaintiff
filed her EEO complaint[] her supervisor only assigned her 13 filings" is a mischaracterization.‘l
Furthermore, these were assigned by seven different supervisors indicating that the claim that “a
majority of Plaintiff s supervisors refused to work with her" is also unsupported by the record.
Id. Over the period of December 1, 2005 to September 6, 2012, plaintiff was assigned 403
filings Def.’s Ex. 45 at 1, ECF No. 42-46. This ranks her fifth out of 79 OMS staff attomeys in
the quantity of work performed over that broad time period, which, while not immediately
relevant to plaintiff s specific allegations, supports the inference that she could not have achieved
fifth-place status had there been many significant disruptions in the work assigned to her. Id. lt
is not unusual for SEC attomeys to receive only two or three filings in a month. Def.’s Ex. 46 at
66-67, ECF No. 42-47. Without any evidence as to what a reasonable SEC employee would
consider a material reduction in filings, the Court cannot conclude that plaintiff suffered a
materially adverse employment action. Indeed, the D.C. Circuit has ruled that a plaintiffs
"retaliation claim must fail" where she offered "no evidence . . . nor even allege[d]" that her
3 Contrary to her brief, plaintiff sets the relevant time frame in her Response to the Statement of Undisputed
Material Facts as between "October 2006," when she first contacted the EEO office, and October 2007. Pl.’s Resp.
to Def.’s Statement of Undisputed Material Facts 11 78. However, Defendant’s Exhibit 44, beginning December l,
2006, does not include the months of October and November 2006. ECF No. 42-45. Plaintiffs numbers all seem to
be calculated with the omission of these two months The Court cannot draw conclusions from inconclusive
numbers, as plaintiff presents no evidence breaking down the filings from those two months Therefore, the Court
will consider the date the EEO action was "filed" as the beginning of the relevant time frame, as plaintiff argued in
her brief.
4 1f by "supervisor" plaintiff means Burke-Sanow specifically, plaintiffs claim is still false: Burke-Sanow assigned
plaintiff 17 of the 46 filings from January 2007-2008. See ECF No. 42-45. Plaintiff also draws a false comparison
between filings assigned by Burke-Sanow ("l3 filings") and all the filings plaintiff was assigned in the previous year
from all supervisors ("50 filings"). Pl.’s Resp. to Def`.’s Statement of Undisputed Material Facts 11 78.
29
situation was different compared to her co-workers. Jones, 429 F.3d at 282. Because plaintiff
has provided no evidence for the Court to make a meaningful comparison, she fails to meet her
burden to establish that the quantity of work assigned to her decreased in any judicially
cognizable way.
Even if, as plaintiff alleges, that "there were periods of time when she did not receive
assignments" and that she "contacted supervisors via e-mail and by going door-to-door asking
for work," Pl.’s Opp’n to Mot. Summ. J. 33, defendant has presented factual records showing
that this may result through non-discriminatory circumstances to any employee. "[Plaintiff] was
not the only employee who sought additional assignments Whether employees were busy or
could take on additional work was often a subject of discussion in managerial meetings Att. 23,
pp. 35-36, 38; Burke-Sanow Notebooks (Att. 24), pp. 611-12, 614, 618, 624, 647-48, 654, 656,
663, [6]71, 673, 688-89, 704, 746, 775, 804, 819." Def’s Mot. Summ. J. 43. lt is common
sense that the quantity of work available in an office fluctuates in response to various changes in
the economy or even the season, see also Def.’s Ex. 23 at 19, ECF No. 42-23 (Burke-Sanow
testifying that "1 personally have to have work to give work."), and normally "[a]n employer has
discretion to assign work to equally qualified employees so long as ‘the decision is not based
upon unlawful criteria," Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C. Cir.
1997) (quoting Tex. Dep’t of Cmty. Ajfaz`rs v. Burdz'ne, 450 U.S. 248, 259 (1981)). All
considered, the D.C. Circuit’s guidance in Jones is equally applicable here where plaintiff does
not provide evidence that her situation was different than that of her co-workers. Plaintiff is
unable to establish that she would have received more work had there been no underlying
discrimination dispute, see Nassar, 133 S. Ct. at 2533, and also presents no evidence
corroborating her claim that the time period when she allegedly received less work was related to
30
any protected EEO action. Plaintiff therefore fails to meet her burden in proving that any lapse
in work was caused by her following through with the EEO process Because plaintiff fails to
carry her burden of establishing a prima facie case and refuting defendant’s evidence as
pretextual, the Court cannot conclude that any reduction in plaintiffs work was retaliatory.
Therefore, the Court will grant defendant’s request for summary judgment insofar as it relates to
count 111 of plaintiff s complaint.
CONCLUSION
For the aforementioned reasons, defendant’s motion to amend its answer will be
GRANTED, and plaintiff s request for additional discovery and attomeys’ fees will be DENIED.
Further, defendant’s motion for summary judgment will be GRANTED. This case will be
DISMISSED with prejudice.
A separate order will be issued alongside this opinion reflecting the relief contemplated
herein.
Signed September 8, 2014 by Royce C. Lamberth, United States District Judge.
31