Walker v. Mattis
Walker v. Mattis
Opinion of the Court
I. INTRODUCTION
Plaintiff Wanda Walker brings a Title VII claim of retaliation and hostile work *271environment following her termination from the Defense Intelligence Agency ("DIA" or "Defendant"). Plaintiff, a former Security Specialist at the DIA, alleges that she was retaliated against for filing Equal Employment Opportunity complaints in which she alleged discrimination based on her race, color, and other protected traits. See Second Am. Compl., ECF No. 19, ¶¶ 19, 22, 32, 48, 49, 52, 53. Defendant has moved for summary judgment. See Def.'s Mot. for Summ. J., ECF No. 29 [hereinafter Def.'s Mot.]. The court assumes that both parties are familiar with the record and so refers to the facts only as necessary. After careful scrutiny of the record, this Court finds that there remain genuine disputes of material fact as to certain bases for Plaintiff's retaliation claims, such that a reasonable jury could find in Plaintiff's favor. Accordingly, Defendant's Motion for Summary Judgment is granted in part and denied in part
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute of a material fact exists when the fact is "capable of affecting the substantive outcome of the litigation" and "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Elzeneiny v. District of Columbia ,
III. DISCUSSION
In addition to prohibiting a federal employer from discriminating against an employee based on her race, sex, religion, or nationality, 42 U.S.C. § 2000e-16(a), Title VII prohibits a federal employer from retaliating against an employee for opposing any practice that is made unlawful by the Act, see Baird v. Gotbaum ,
A. Discrete Retaliation Claims
To make out a prima facie case of retaliation, a plaintiff must demonstrate that she: (1) engaged in protected activity; (2) was subjected to an adverse employment action; and (3) there is a causal link between the protected activity and the adverse action. Hamilton v. Geithner ,
*272Baloch v. Kempthorne ,
Establishing a prima facie case shifts the burden to the employer to provide a "legitimate, nondiscriminatory or non-retaliatory reason for the challenged action." Morris v. McCarthy ,
1. Five-Day Suspension
The court begins with Plaintiff's claim that her five-day suspension in 2011 was retaliatory. Defendant asserts the suspension was imposed because Plaintiff had committed a security violation by disclosing the protected identity of a DIA employee to her attorney. See Def.'s Mot., Mem. of Pts. & Auths. in Supp., ECF No. 29-2 [hereinafter Def.'s Mem.], at 5; Def.'s Mot, ECF No. 29-4 [hereinafter Def.'s Ex. 1], at 18-22.
*273On the other hand, Plaintiff has offered evidence to suggest potential deficiencies in the investigation of her alleged misconduct, as well as the commission of egregious error in the ultimate finding of wrongdoing underlying the five-day suspension. "An employer's investigation that is so unsystematic and incomplete that a factfinder could conclude that the employer sought, not to discover the truth, but to cover up its own discrimination can also permit a factfinder to find pretext." Burley v. Nat'l Passenger Rail Corp. ,
There is also some dispute as to who initially recommended Plaintiff's suspension. Defendant contends that human resources officer Barbara Frey made the recommendation,
*274In the end, the court must draw from the evidence all reasonable inferences in Plaintiff's favor. Notwithstanding the length of time between the protected activity and the adverse action, because there are genuine disputes of fact as to the regularity of the investigatory process and Plaintiff's ultimate responsibility for the alleged security violation, a reasonable jury could find Defendant's non-retaliatory reason for the five-day suspension to be pretext. Accordingly, the court denies Defendant's motion for summary judgment as to that adverse action.
2. Denial of Deployments
Next, Plaintiff claims that Defendant denied her two separate deployments to Afghanistan in retaliation for her protected activity. But according to Defendant, Plaintiff was denied overseas deployments because of a pending disciplinary action and because of her continued misconduct. See Def.'s Mem. at 6-7; Def.'s Reply to Pl.'s Opp'n, ECF No. 34, at 7-8. Defendant's non-retaliatory explanation mistakenly conflates Plaintiff's two deployment requests, and the court finds that there remain genuine disputes of fact as to the reasons for each denial.
First, Plaintiff sought and, in June 2011 received, approval for a September 2011 deployment to Afghanistan. See Pl.'s Ex. B at 10. Following the approval, Keith Newman, Plaintiff's first-line supervisor, inquired of employee relations specialist Katherine Newmann whether Plaintiff's ongoing EEO case precluded her deployment, to which Newmann responded it did not. Pl.'s Ex. B. at 11; see also Pl.'s Facts, ECF No. 30-1, ¶ 19. But Newmann added that "there are other outstanding issues regarding Ms. Walker," which she wanted "to discuss" with Barbara Frey. Pl.'s Ex. B. at 11. Defendant does not, however, identify what "outstanding issues" prevented Plaintiff from deploying. Rather, Defendant argues that Kolleen Yacoub, Chief of the Office of Mission Support-not Keith Newmann, her first-line supervisor-"relied upon the recommendation of Human Resources" when denying the deployment. Def.'s Mem. at 5-7. That explanation is not, however, supported by the evidence. Yacoub testified that, "I did not directly deny [the deployment] .... I believe it was Mr. Newman who actually said to the deployment manager [Plaintiff] will not be able to deploy." Def.'s Ex. 1 at 61; id. at 63 (agreeing the Mr. Newman made the decision not to permit deployment). Moreover, Yacoub could not recall whether the reason for the denial was the "IG investigation that was ongoing or the EEO investigation." Id. at 64-65 (emphasis added). Thus, Yacoub's recollections provide no clarity. Defendant also points to an email that Keith Newman sent to Plaintiff on October 21, 2011, in which Newman states that "continued misconduct" is the reason he cannot support her deployment request. Def.'s Reply at 7-8 (citing Pl.'s Ex. B at 12). That e-mail, however, relates to Plaintiff's second deployment request, not her first, which was formally denied months earlier. The only record evidence of a reason for the denial of the first deployment actually comes from Keith Newman, who testified during the EEO investigation that Plaintiff did not deploy to Afghanistan because the position was changed from a civilian position to a contractor position. See Pl.'s Ex. B at 52-53. But Defendant does not endorse that reason now. Thus, there remains a genuine dispute of fact as to the actual reason for the denial of Plaintiff's first deployment request.
Plaintiff's second deployment request came in September 2011. As noted, although Defendant confuses the first and second denials, Defendant points to Newman's determination that, due to Plaintiff's "continued misconduct," he could not support *275the September deployment request. Id. at 12. The potential shortcoming of this explanation, however, is that DIA policy provides that, a supervisor only can recommend disapproval of an employee's deployment request, and that the Deputy Under Secretary of Defense (Civilian Personnel Policy) possesses the final say with regard to deployment denials. Pl.'s Ex. B at 18. Requests to the Deputy Under Secretary must be submitted in accordance with the operative procedure. See id. Here, the record is silent as to whether anyone above Newman disapproved of Plaintiff's deployment request or whether Newman's recommendation operated as the denial, and whether Plaintiff's deployment request was submitted in accordance with the relevant procedure. Without facts to answer these outstanding questions, it is inappropriate to enter summary judgment in Defendant's favor.
In total, a rational jury might could find that Defendant's denials of Plaintiff's requests for deployment were a pretext for retaliation. Accordingly, this portion of Plaintiff's claim survives summary judgment.
3. Denial of Promotion
Plaintiff asserts that DIA denied her a promotion because of her protected activity. Second Am. Compl. ¶¶ 39, 48-49, Defendant responds that Plaintiff was denied a promotion to security specialist because a better-credentialed applicant was selected. See Def.'s Mem. at 11; Def.'s Facts ¶¶ 24-25. Plaintiff offers no evidence to rebut this proffered non-discriminatory reason. See generally Pl.'s Mem. in Opp'n; Pl.'s Facts. Accordingly, the court grants summary judgment in favor of Defendant as to this issue.
4. Negative Performance Rating
Plaintiff also alleges that her supervisors gave her a lower performance rating than she had earned in prior review periods, and that this negative review came about because she filed a second EEO complaint in August 2011. See Pl.'s Mem. in Opp'n at 3; see also Def.'s Ex. 1 at 1. Defendant justifies the action on the simple ground that Plaintiff deserved the critical marks-her work performance had dropped from the prior year. Def.'s Mem. at 9-10. It also argues that the unfavorable review resulted in no tangible harm to Plaintiff. Id. at 10.
The court finds that, without more, Plaintiff's negative performance rating is not actionable. The D.C. Circuit does not consider all poor performance ratings to rise to the level of material adversity, even under the broader materiality standard in retaliation cases. See Weber v. Battista ,
5. Denial of Requests to Attend Conferences
Plaintiff's retaliation claim based on Defendant's denial of her requests to attend DIA conferences is not actionable because she has not established that the denials were materially adverse. A denial of a training opportunity is not an adverse employment action unless it "affected some material change in [the employee's] employment conditions, status or benefits." Lester v. Natsios ,
6. Termination
DIA terminated Plaintiff in the spring of 2012 and cited a wealth of reasons for the action, including Plaintiff's accrued suspensions, insubordination, and unapproved entry of overtime. See Def.'s Facts ¶¶ 32-33, 35-38, 40-46; see also Def.'s Ex. 1 at 24-27, 34-35; Pl.'s Resp. to Def.'s Statement of Facts, ECF No. 30-1, ¶¶ 33-46. Plaintiff admits to a number of infractions-such as missing meetings and failing to prepare reports-but offers justifications for her behavior. Although once more a close call, the court finds that Plaintiff has come forward with sufficient facts to call into question at least some of the non-retaliatory reasons for her termination.
The court already has addressed some of the grounds for her termination that might be pretextual, such as the five-day suspension. Different evidence calls into question some of the other reasons offered for termination. Take, for example, the justification that Plaintiff submitted a timesheet with 20 hours of overtime without authorization. Def.'s Ex. 1 at 25-26. While Defendant dramatically characterizes Plaintiff as having violated "agency overtime procedures" by seeking overtime pay, without prior permission, for time spent completing EEO paperwork,
The foregoing is not to say that Plaintiff has brought sufficient forth evidence of pretext to rebut each non-retaliatory reason for her firing. She has not. Nor is the court acting as a "super-personnel department" examining Defendant's employment decisions. See Holcomb v. Powell ,
B. Hostile Work Environment
Finally, the court turns to Plaintiff's retaliatory hostile work environment claim. The D.C. Circuit recognizes that a hostile work environment can amount to retaliation under Title VII. See Hussain v. Nicholson ,
Viewing the evidence in a light most favorable to Plaintiff, the court believes that a reasonable jury could conclude that Plaintiff was subjected to a hostile work environment in retaliation for her protected activity. As described above, Plaintiff has come forward with evidence that, if believed, shows that that she was subjected to a series of materially adverse actions over a period of months, ranging from twice refusing to deploy her to Afghanistan, suspending her for improper reasons, and ultimately terminating her. Moreover, there is evidence from Plaintiff suggesting that she was subjected to lesser workplace indignities following her EEO complaints, such as being stripped of certain job duties, see Pl.'s Ex. A at 91-92, and the assignment of menial tasks like paper shredding, id. at 12. At least one other employee agreed that there was an "immediate change" in the treatment Plaintiff received after filing her EEO complaint. See Pl.'s Ex. B at 48.
In sum, when taken as a whole, a reasonable jury might find these actions to have risen to the level of a retaliatory hostile work environment.
IV. CONCLUSION AND ORDER
For the foregoing reasons, Defendant's Motion for Summary Judgment, ECF No. 29, is granted in part and denied in part.
Citations to the parties' exhibits are to the page numbers automatically generated by CM/ECF.
Frey is an Employee Management Specialist in the DIA's Human Resources department, and is not in Plaintiff's direct chain of command. See Def.'s Statement of Material Facts, ECF No. 29-1, ¶ 2; see also Pl.'s Ex. B at 3.
For the same reason, to the extent Plaintiff's briefs may be construed as alleging retaliation based on a reduction in her duties, see Def.'s Mem. at 12-13, the claim fails and Defendant is entitled to summary judgment on this claim as well.
Reference
- Full Case Name
- Wanda WALKER v. James N. MATTIS
- Cited By
- 13 cases
- Status
- Published