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

-2- 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.

-3- 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 -4- 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]. -5- ~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. -6- 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 -7- 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

-8- 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 -9- •\

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

-10- 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,

(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."

.

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.,

(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,

(2009)

(quoting Twombly,

).

"[M]otions to dismiss for failure to exhaust administrative

remedies are . appropriately analyzed under Rule 12 (b) ( 6) . "

Winston v. Clough,

(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,

(D.C. Cir. 2010) (citation omitted); see 42 U.S.C. -11- § 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,

(D.C. Cir. 2006).

These exhaustion requirements are not jurisdictional, but

rather are "similar to a statute of limitations." Colbert,

. Therefore, they are properly raised in a Rule 12(b) (6)

motion to dismiss. See Rosier v. Holder,

(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,

(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,

(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,

(D.D.C. 2011). "Conclusory assertions offered without any factual

-12- basis in the record cannot create a genuine dispute sufficient to

survive summary judgement."

(citing Ass' n of Flight

Attendants-CWA v. U.S. Dept. of Transp.,

(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,

(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.,

(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. -13- and decision. Ndondji v. InterPark Inc., .

(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,

(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,

; see

also Drewery v. Clinton,

(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,

(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.

-14- •.

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.

-15- 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,

-16- >'·

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,

(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.

-17- Kempthorne,

(D.C. Cir. 2008) and Weber v.

Battista,

(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,

(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

-18- 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.

-19- 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.

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. -20- B. Motion for Summary Judgment

1 . Legal Framework

Under the McDonnell Douglas framework,

(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,

(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,

(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.

at 102 (citing Aka v. Washington Hosp.

Ctr.,

(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,

(D.C. Cir. 2008). Thus, the "district court must resolve one

-21- >'·

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."

Our Court of Appeals has declined to serve as a "super

personnel department that reexamines an entity's business

decisions." Holcomb v. Powell,

(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,

(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.

-22- 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,

(D.D.C. 2009) (citing

Kelly v. Hairston,

, 179 n. 3 (D.D.C. 2009);

see also Diggs v. Potter,

(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

-23- 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,

"concern nothing

more than Defendant's business decisions." Def. 's Mot. at 22.

-24- 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.

. Significantly, Moore was not the only employee who

received her FY 2011 final evaluation late.

. The

Government also submitted evidence that another employee received -25- 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,

(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

-26- 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,

(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

The Government

also noted that the MBDA was not "satisfied with [Plaintiff] as

its liaison. 11

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 -27- 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,

(D.D.C. 2011) ("an employee's subjective assessment of

her own performance is insufficient to establish such pretext

evidence").

-28- 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.

-29- 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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