KILBY-ROBB v. DUNCAN
MEMORANDUM AND OPINION re 14 Defendant's motion for summary judgment. Signed by Judge Tanya S. Chutkan on 3/30/2017. (lctsc2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Secretary, U.S. Department of Education,
Case No. 14-cv-2200 (TSC)
Plaintiff Patricia Kilby-Robb brings this suit under Title VII of the Civil Rights Act of
1964 and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a(a). (Compl.
¶¶ 18–35). Defendant Secretary of the U.S. Department of Education (the “Department”) now
moves for summary judgment. (ECF No. 14). For the reasons set forth below, the court
GRANTS Defendant’s motion for summary judgment.
Plaintiff Patricia Kilby-Robb is an African American female who was over sixty years
old at the time of the alleged events in this case. (Compl. ¶ 4). Before starting at the
Department, she worked as a school principal, assistant principal, and community education
director. (Kilby-Robb Decl. ¶ 3 (Pl. Ex. A)). Since 2000, Plaintiff has been employed by the
Department in various offices as an Education Program Specialist at the GS-13, Step 10 pay
level. (Id. ¶ 2). At the time of the alleged events of this case, Plaintiff worked in the
Department’s Office of Innovation and Improvement (“OII”), primarily in the Parental Options
and Information office with the Parental Information and Resource Center (“PIRC”) program.
(Id.). Beginning in 2009, Plaintiff transferred to the Charter Schools Program (“CSP”) within
OII. (Id.). During her employment with the Department before the events in this case, Plaintiff
had filed approximately four complaints of discrimination against the Department. (Id. ¶ 4). Of
these complaints, Plaintiff alleges that one case was closed in September 2005, the second was
closed in April 2010, and the remaining cases were pending before an EEOC administrative
judge at the times of the relevant events in this matter. (Id.).
Plaintiff alleges that Defendant discriminated and retaliated against her in several discrete
incidents between 2008 and 2010. These include a 2008 performance rating of “successful,” a
2009 desk audit determination that Plaintiff should remain at the GS-13 level, an office meeting
in February 2009, the removal of some of her job duties in early 2009, and five job application
denials in 2009 and 2010. Plaintiff filed the present suit in December 2014, alleging violations
of Title VII and the ADEA for discrimination on the basis of race and age.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where there is no disputed genuine issue of material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). In determining whether a genuine issue of
material fact exists, the court must view all facts in the light most favorable to the nonmoving
party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The movant must rely on
record materials to demonstrate the absence of any genuinely disputed issues of material fact.
Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at 332. A fact is material if “a dispute over it
might affect the outcome of a suit,” and an issue is genuine if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Holcomb v. Powell, 433 F.3d
889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986))
(internal quotation marks omitted). The non-movant is “required to provide evidence that would
permit a reasonable jury to find” in her favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242
(D.C. Cir. 1987) (citations omitted). Generally, a plaintiff must provide more than her
conclusory statements to oppose a motion for summary judgment, as “[c]onclusory allegations
made in affidavits opposing a motion for summary judgment are insufficient to create a genuine
issue of material fact.” Sage v. Broad. Publ’ns, Inc., 997 F. Supp. 49, 53 (D.D.C. 1998).
A. Race and Age Discrimination Claims
Title VII bars a federal agency from discriminating against any employee based on her
race. 42 U.S.C. § 2000e–16(a). The ADEA similarly protects federal employees over forty
years old from discrimination based on their age. 29 U.S.C. § 633a(a). The court analyzes both
Title VII and ADEA claims under the well-established burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Barnette v. Chertoff, 453 F.3d 513, 515 (D.C.
Cir. 2006); Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003). Under this framework, the
plaintiff has the initial burden of proving, by a preponderance of the evidence, a prima facie case
of discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981). To
establish a prima facie showing, the plaintiff must demonstrate that she (1) is a member of a
protected class and (2) suffered an adverse employment action, and (3) that the action gives rise
to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802.
In the discrimination context, an adverse employment action is “‘a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing significant change in benefits.’” Douglas v.
Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (quoting Taylor v. Small, 350 F.3d 1286, 1293
(D.C. Cir. 2003)). The D.C. Circuit has articulated that while “‘purely subjective injuries,’ such
as dissatisfaction with a reassignment, public humiliation, or loss of reputation, are not adverse
actions, the threshold is met when an employee ‘experiences materially adverse consequences
affecting the terms, conditions, or privileges of employment or future employment opportunities
such that a reasonable trier of fact could find objectively tangible harm.’” Holcomb v. Powell,
433 F.3d 889, 902 (D.C. Cir. 2006) (quoting Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C.
Cir. 2002)). Moreover, the Supreme Court has stated that “[a] tangible employment action in
most cases [is one that] inflicts direct economic harm.” Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 762 (1998). Furthermore, under the third element of the prima facie showing, an
adverse employment action normally gives rise to an inference of discrimination only “if
otherwise unexplained, [it was] more likely than not based on the consideration of impermissible
factors.” Burdine, 450 U.S. at 254.
While the plaintiff maintains the burden of persuasion at all times, id. at 253, the burden
of proof then “shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for
the [action in question],’” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting
Burdine, 450 U.S. at 253). In asserting a legitimate, non-discriminatory justification for the
challenged actions, the defendant “need not persuade the court that it was actually motivated by
the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as
to whether it discriminated against the plaintiff.” Burdine, 450 U.S. at 254 (citation omitted).
Ordinarily, the burden then shifts back to the plaintiff to demonstrate that the asserted reason is a
pretext for discrimination. Id. at 253. However, where the defendant provides a legitimate, non-
discriminatory explanation for its actions at the summary judgment stage, “the district court need
not—and should not—decide whether the plaintiff actually made out a prima facie case under
McDonnell Douglas.” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008). Instead, the court’s focus is whether the plaintiff produced “sufficient evidence for a
reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual
reason and that the employer intentionally discriminated against the [plaintiff] on [a prohibited
basis].” Id.; see also Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009).
2008 Performance Rating
Plaintiff alleges that the Department discriminated against her when she received a lower
performance rating. (Compl. ¶¶ 22, 28, 34). During the 2008 performance rating period, which
covered October 2007 through September 2008, Plaintiff’s job performance was rated by her
first-line supervisor, Steven Brockhouse, a white male, and the rating was affirmed by her
second-line supervisor, Margo Anderson, a white female. (Def. Ex. 7 (2008 Performance
Rating); Def Ex. 74, ¶ 9 (Decl. of Margo Anderson)). Brockhouse rated Plaintiff as successful,
highly successful, or outstanding in a number of categories, and Plaintiff’s overall rating of
record was “satisfactory.” (Id.; see also Def. Ex. 8 at 26 (defining ratings)).
According to Plaintiff’s performance report, provided by Defendant, Plaintiff was rated
as satisfactory because she was “inconsistent in providing reports regarding program status,” she
took “almost no initiative to provide reports and updates unless they [were] specifically
requested,” she did not “regularly or effectively provide written communication to provide
information that [was] needed to update and support [OII] concerning PIRC program activities,”
she “rarely contribute[d] updates about the PIRC program for weekly reports and she [did] not
consistently keep senior OII staff informed of significant PIRC-related activities and
developments,” her “work products fail[ed] to meet acceptable standards,” “the annual
performance report [did] not conform to approved requirements,” and “[a]lthough [she] had been
advised that the performance report appeared to be incomplete . . . no corrective action was taken
on her part.” (Def. Ex. 7). Defendant additionally submitted the declaration of Margo Anderson,
Plaintiff’s second-line supervisor, who stated:
In general, Ms. Kilby-Robb did not effectively communicate with OII senior staff
and often withheld information. At times, she did not inform her supervisors
about upcoming teleconferences and meetings on a timely basis or share agendas
for meetings until specifically instructed to do so. Although OII management had
previously raised concerns with her about her need to keep her supervisors and
OII senior staff informed about PIRC activities, communication problems within
OII continued during the 2008 rating period.
(Def. Ex. 74, ¶ 7 (Anderson Decl.)). Defendant also submitted several e-mails from 2007
and 2008 discussing the issues with Plaintiff’s drafting of an annual performance report.
Because the Defendant has offered legitimate, non-discriminatory reasons for the
“satisfactory” performance rating, the burden shifts to Plaintiff to establish that these
reasons are merely pretext for discrimination. Brady, 520 F.3d at 494. Plaintiff fails to
do so. To rebut Defendant’s explanation, she cites only to her own declaration and her
own EEO affidavit, in which she states that during her mid-year review she was told by
Brockhouse that she “was doing a perfect job and needed to make no improvements” and
was not told thereafter that there were any issues with her performance. (Kilby-Robb
Decl. ¶ 12; Pl. Ex. C at 3 (Oct. 2009 Kilby-Robb EEO Aff.)). She also states, without
additional explanation, that “the APR did conform to, and in fact exceeded, approved
requirements and was complete.” (Kilby Robb Decl. ¶ 13). Plaintiff did not depose
Brockhouse or Anderson about their performance ratings, and she offered no
corroborating evidence for her own statements regarding her work performance generally
or with respect to the annual performance report specifically.
The court finds that Plaintiff has failed to present evidence sufficient to establish
that there are genuine issues of material fact regarding whether Defendant discriminated
against her based on her race or age during her performance review. Therefore, the court
GRANTS Defendant’s motion as to Plaintiff’s discrimination claims involving the 2008
2008 Desk Audit
Plaintiff alleges that Defendant discriminated against her when, following a desk audit in
December 2008, her position was not reclassified from a GS-13 position to a GS-14. (Compl.
¶¶ 22, 28, 34). Plaintiff claims that her first-line supervisor at that time, Dean Kern, a white
male, intentionally provided false information about her job duties to Sonja Brown, the Human
Resources Specialist conducting the desk audit. (Id. ¶ 12; Kilby-Robb Decl. ¶¶ 15–16).
According to Brown’s memorandum regarding the desk audit, Plaintiff and Kern presented
differing accounts regarding the scope of Plaintiff’s job responsibilities, including to what extent
Plaintiff traveled, served as an expert for the PIRC program, spoke for the agency, and
participated in reviewing or authoring publications. (Def. Ex. 14 (Jan. 14, 2009 Memorandum re
Desk Audit)). Defendant argues that Kern’s description of Plaintiff’s work was not
discriminatory, but that he Kern simply disagreed that Plaintiff’s position should be reclassified
to the GS-14 level because the same duties had not been performed at the GS-14 level before.
(Def. Ex. 9 at 3–4 (Nov. 20, 2009 EEO Aff. of Dean Kern)). Kern also stated that he disagreed
with Plaintiff’s characterization of herself as the “national expert” for the PIRC program because
no such position or designation existed. (Id. at 4).
To satisfy her burden to establish that Defendant’s proffered explanation is merely a
pretext for discrimination, Brady, 520 F.3d at 494, Plaintiff again relies only on her declaration,
which asserts that “[b]ased on Mr. Kern’s prior comments that Ms. Anderson hated me and his
and Ms. Anderson’s continual mistreatment of me, I believe that Kern understated my duties and
responsibilities because Anderson had made it known to Kern that I should not be allowed to be
promoted.” (Kilby-Robb Decl. ¶ 15). Plaintiff offers no corroboration for her statement that
Kern told her that Anderson “hated” her, nor does she offer any evidence at all to rebut the
legitimacy of Kern’s statements to the Human Resources Specialist during the desk audit. While
she disputes her job responsibilities, the desk audit memorandum does credit her as the “expert
for PIRC” who “provides high level technical assistance to research organizations and national
parent teacher associations.” (Def. Ex. 14 at 3–5). Although Plaintiff offers her subjective belief
that Kern “oversimplified and misrepresented the full scope and depth of [her] duties,” she
provides no evidence that this was the case, and further offers no basis to infer that any dispute
about her job duties was intentional and discriminatory. (Kilby-Robb Decl. ¶ 16).
Despite Plaintiff’s assertion that she “is entitled to the inference that Mr. Kern’s
misrepresentations were not the result of some innocent misunderstanding of his subordinate’s
duties,” (Pl. Mem. at 17), she offers the court no evidence for her allegation. The court therefore
concludes that Plaintiff has failed to present evidence sufficient to raise a genuine issue of
material fact as to whether Defendant discriminated against her in declining to reclassify her
position as a GS-14. Defendant’s motion on this claim is GRANTED.
Interference with COR Duties
Next, Plaintiff alleges that following her appeal of her desk audit, Kern discriminated and
retaliated against her “by taking away all her duties and responsibilities, including her national
PIRC and [Contract Officer Representative (“COR”)] duties” between January and April 2009.
(Compl. ¶¶ 12, 22, 28, 34; Kilby-Robb Decl. ¶ 16). Plaintiff alleges that Kern, her supervisor,
performed these work duties between January and April, and then in April he reassigned them to
Dr. Anna Hinton, who was appointed the Deputy Director of Parental Options and Information.
(Compl. ¶ 13). She additionally alleges, without elaboration or explanation, that Defendant’s
actions were “a violation of federal law.” (Id.).
Defendant argues that Plaintiff has failed to establish a prima facie showing of
discrimination on this claim because she provides no evidence that she suffered an adverse
employment action or that the action gives rise to an inference of discrimination. The court
agrees in part. As explained above, to establish that this reassignment was an adverse
employment action under Title VII or the ADEA, Plaintiff must show that there was an
“objectively tangible harm,” Holcomb, 433 F.3d at 902, which “in most cases inflicts direct
economic harm,” Burlington Indus., 524 U.S. at 762. Though Plaintiff concedes she remained at
the same pay grade, GS-13 Step 10, her “claim of an adverse employment action [may] rest on a
significant change in [her] job responsibilities.” Forkkio, 306 F.3d at 1131. Here, it is
undisputed that Plaintiff was the COR for the Department’s contract with the Southwest
Educational Development Library, and that in April 2009 Hinton was re-assigned as the COR
when she was appointed the Deputy Director of Parental Options and Information. Plaintiff
provides the court with no evidence to conclude that the loss of these duties amounted to a
significant change in her job responsibilities, as the remainder of her work responsibilities
However, even assuming that this reassignment was an adverse employment action, there
is no basis for an interference of racial discrimination, as Plaintiff states in her Complaint that
Hinton, to whom the COR position was reassigned, is also African American. (Compl. ¶ 13).
Without some other evidence, Plaintiff fails to establish the final element of the prima facie
showing that this decision was based on her race. Defendant’s motion is therefore GRANTED
with respect to Plaintiff’s race discrimination claim based on the interference with COR duties.
With respect to her allegation of age discrimination, the Complaint alleges that Plaintiff
was over sixty years old and Hinton was under forty years old, (id.), which raises an inference of
discrimination. The burden therefore shifts to the Defendant to proffer a legitimate reason for its
actions. Defendant proffers Kern’s affidavit, in which he states that the COR duties were
transferred to Hinton because “[a]s Deputy Director of the POI office, it was incumbent for Dr.
Hinton to have direct access and supervision over technical assistance contracts in order to
strengthen this office’s ability to provide oversight for Department activities related to
educational choice programs and to support community organizations that effectively inform
parents of their options.” (Def. Ex. 9 at 5). Having provided legitimate, non-discriminatory
justification for its action, the burden reverts back to Plaintiff to establish that this explanation is
mere pretext. 1 Brady, 520 F.3d at 494. Instead, she only alleges--without support--that the
reassignment was related only to Kern’s “consistent hostility” towards her. Plaintiff has
therefore failed to establish a triable issue of fact with respect to her age discrimination claim,
and Defendant’s motion is GRANTED on this claim.
February 2009 Meeting
Plaintiff alleges that in a February 2009 meeting with Employee Relations and a union
In addition to arguing that it had a legitimate basis for the reassignment to Hinton, Defendant
also disputes that it interfered with Plaintiff’s responsibilities between January and April, and
provided documentary and testimonial evidence that Plaintiff continued to act in the role of COR
during that time. (See Def. Exs. 24, 25, 26, 30, 31, 33, 34).
representative, Kern “accused” her “of violating agency regulations in the development of the
PIRC annual performance report and of interacting with the Office of Inspector General in
violation of law and regulation.” (Compl. ¶ 14). Plaintiff alleged that this action was
discrimination on the basis of race and age and retaliation. (Id. ¶¶ 22, 28, 34). Defendant argues
that Plaintiff has failed to establish a prima facie showing of discrimination for this allegation, as
no further action was taken after the meeting and even “public humiliation or loss of reputation
[do] not constitute an adverse action.” Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002).
Plaintiff did not address Defendant’s arguments regarding the February 2009 meeting, and
therefore the court treats the arguments as conceded. The court GRANTS Defendant’s motion
with respect to the February 2009 meeting.
Non-Selection for Employment Positions
Plaintiff additionally alleges that Defendant discriminated against her when she was not
selected for five positions in 2009 and 2010. (Compl. ¶¶ 15–17, 22, 28, 34). Each position is
assessed separately below.
i. Education Program Specialist (OII-2009-0001)
In early 2009, Plaintiff applied for a GS-14 position as the Program Manager for the
Magnet Schools Assistance Program (“MSAP”) and Full-Service Communications Schools
program (“FSCS”). She was interviewed in February 2009, along with two other top candidates,
Jill Staton and Brian Lekander, by a panel of three individuals at the Department. (Def. Exs. 44
(Applicant Listing Report), 47 (interview panel members’ interview note summaries)).
Following these interviews, the panel recommended Staton, a white woman, for the position, and
Kern, as the selecting official, selected Staton based on this recommendation. (Def. Ex. 47 at 7;
Def. Ex. 48 (Staton Selection Memorandum)). Plaintiff alleges that Defendant’s non-selection of
her for the position was discrimination based on her race and age.
Defendant offers a robust description of the Department’s decision-making process and
the factors and qualifications considered, both before and after the interview. There is little
question that both Plaintiff and Staton were highly qualified for the position and merited an
interview. However, the Department gave weight to Staton’s experience with the Department,
where she had worked since 1991, including in leadership roles with the FSCS and MSAP
programs the candidates were seeking to lead, since 2007. (Def. Ex. 45 (Staton Application)).
While Plaintiff had worked at the Department since 2000 and also had leadership experience (see
Def. Ex. 46 (Plaintiff’s Application)), the interview panel determined that Staton’s direct
experience made her more qualified and better suited. The interview panel’s notes also
explained that both candidates gave strong interviews in response to identical questions, but
Plaintiff “did not always offer possible solutions for addressing  challenges” and “[n]ot all
responses to some of the . . . questions were as coherent as they could have been and she seemed
to struggle with her response on program indicators.” (Def. Ex. 47 at 3; see also Def. Ex. 82
(interview questions)). The panel was more impressed with Staton’s interview answers. (Id. at
Because Defendant has articulated legitimate non-discriminatory reasons for selecting
Staton over Plaintiff for the position, the burden shifts to Plaintiff to establish that these reasons
are merely pretext for discrimination. Brady, 520 F.3d at 494. Plaintiff proffers only her
declaration that she was more qualified for the position. (Kilby-Robb Decl. ¶ 21). While
“qualifications evidence may suffice, at least in some circumstances,” to demonstrate pretext,
Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006), the evidence must be such that “a factfinder
[could] conclude that a reasonable employer would have found the plaintiff to be significantly
better qualified for the job,” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en
banc). Thus, to create an inference that the proffered explanation was pretext, Plaintiff must
show that she was “substantially more qualified” than Staton for the position. Hamilton v.
Geithner, 666 F.3d 1344, 1352 (D.C. Cir. 2012). Plaintiff has failed to do so here. She presents
the court with a significant amount of work experience that made her as qualified for the position
as Staton; indeed, the Department clearly recognized this as well, which is why both were
interviewed as top candidates. Beyond this, however, Plaintiff has not presented any evidence to
establish she was substantially more qualified than Staton. Plaintiff also failed to respond to
Defendant’s assertions regarding the candidates’ interview performances, instead noting that
“[s]hortly after the interview, members of the interview panel congratulated [her] as if she had
received the promotion and praised her for how well she answered the questions in her interview
and how knowledgeable she was,” and further stating that when she later asked a panel member
why she was not selected, she was told “You know why,” allegedly referring to prior EEO
activity. (Pl. Mem. at 26–27 (citing Pl. Ex. B (Plaintiff’s Interrogatory Responses))).
When the qualifications between the plaintiff and the person selected for the position are
close, the court “must assume that a reasonable juror who might disagree with the employer’s
decision, but would find the question close, would not usually infer discrimination on the basis
of comparison of [the] qualifications alone.” Aka, 156 F.3d at 1294. The court’s role is not, as
Plaintiff would have it, to reconsider all personnel decisions with which Plaintiff disagrees on the
merits and determine whether Plaintiff should have been selected instead. In the court’s view,
Plaintiff has not proffered enough evidence for a jury to conclude that Defendant’s hiring
explanation was mere pretext for discrimination. Therefore, Defendant’s motion is GRANTED
with respect to Plaintiff’s discrimination claims for this job non-selection.
Supervisory Education Program Specialist (OII-2010-0021)
In 2010, Plaintiff applied for another GS-14 position, which involved serving as a team
leader for teacher quality grant programs, including the School Leadership program, Teacher
Quality Partnership, and Troops to Teachers. (Def. Exs. 54, 61 (job postings)). As with the
previous position, Plaintiff was considered a top candidate for the position and received an
interview. (Def. Ex. 64 (Selection Memorandum)). However, the Department again chose
another candidate for the position, selecting Beatriz Ceja instead of Plaintiff. (Id.). Defendant
asserts that Ceja was ultimately selected because she had more direct experience; at the time of
her selection, Ceja had been working in the Teacher Quality Partnership office for almost seven
years, and she had already been serving as the Team Lead for the School Leadership Program
and Interim Team Lead for the Transition to Teaching program. (Def. Exs. 64, 66 at 2, 67).
Ceja also performed better than Plaintiff in her interview, as the panel noted that she had clear
understanding of the grant processes and providing technical assistance to applicants and
grantees. (Def. Ex. 64). By contrast, the panel found that Plaintiff’s interview responses were
“meandering and not always on target.” (Def. Ex. 63 at 3).
Once Defendant has articulated legitimate reasons for selecting Ceja over Plaintiff, the
burden shifts to Plaintiff to establish evidence that these reasons are merely pretext. Brady, 520
F.3d at 494. As above, Plaintiff again focuses on her own qualifications. (Compl. ¶ 17).
However, the position was to serve as a Team Lead in the Teacher Quality Partnership division,
and at the time of her application Plaintiff had no experience working in that division, while Ceja
had years of directly relevant experience. (Def Exs. 54, 61, 66 at 2, 83). Plaintiff offers no
evidence to establish that she was substantially more qualified for the position, and she therefore
fails to provide any evidence to raise a triable issue of fact as to whether the Department’s
selection of Ceja was discriminatory. The court GRANTS Defendant’s motion as to Plaintiff’s
discrimination claims involving this position.
iii. Additional Positions
Plaintiff alleges discrimination and retaliation in her non-selection for three other
positions. Of these, two were at the GS-15 level: Supervisory Education Program Specialist
(OII-2009-0002) and Supervisory Management and Program Analyst (OII-2010-0020). With
respect to each of these positions, Defendant argues that Plaintiff has failed to establish the prima
facie elements because she has not, and cannot, allege that she was actually qualified for either of
these positions. Under broadly applicable federal regulations, “[c]andidates for advancement to
a position at GS-12 and above must have completed a minimum of 52 weeks in positions no
more than one grade lower (or equivalent) than the position to be filled.” 5 C.F.R. § 300.604(a).
Therefore, in order to be qualified and eligible to apply for either of these job postings, Plaintiff
must have worked at the GS-14 level for at least fifty-two weeks. There is no dispute that
Plaintiff has worked only at the GS-13 level during her tenure with the Department. Defendant
asserts that because Plaintiff was not qualified to apply, her name was not submitted by the
Human Resources office to Anderson, the selecting officer, and therefore Plaintiff was not
considered. (Def. Exs. 70, 71).
Plaintiff alleges that the two position announcements were drafted in such a way as to
exclude her from consideration because if the positions were “open to all Recruiting Sources”
then the time-in-grade requirement would not apply. (Pl. Mem. at 32). This Circuit has held that
inconsistencies or irregularities in an employer’s established hiring policies may support a
finding of discrimination. Porter v. Shah, 606 F.3d 809, 816 (D.C. Cir. 2010); Lane v. Vasquez,
961 F. Supp. 2d 55, 67 (D.D.C. 2013). “[T]he adherence to or departure from internal hiring
procedures is a factor that the trier of fact may deem probative and choose to consider in
determining the true motivation behind the hiring decision of the prospective employer.”
Johnson v. Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982). However, Plaintiff proffers no
evidence that the time-in-grade requirement of 5 C.F.R. § 300.604(a) was not a normal
requirement for GS-15 positions in the Department, and therefore she has failed to raise a triable
issue of whether Defendant’s job posting and hiring for these two positions was discriminatory.
Defendant’s motion is GRANTED with respect to Plaintiff’s discrimination claims for each of
these two positions.
Finally, with respect to the Supervisory Education Program Specialist (OII-2010-0013)
position, Defendant argues that Plaintiff was not selected because she never submitted an
application, the selecting official, Peggi Zelinko, never received the application or Plaintiff’s
name on the “certificate of eligible candidates for consideration” and she was therefore not
considered. (See Def. Ex. 55 at 11; Def. Ex. 58). Plaintiff alleges in her Complaint that the
electronic system used by the Department to submit applications “would not accept her
application” when she attempted to submit it (Compl. ¶ 17; Def. Ex. 57 at 61), and the
Defendant’s refusal to consider her application despite the technical issues was discriminatory.
However, she presents no evidence that other individuals were unable to submit applications
using the Department’s computer system, nor does she provide evidence that other employees
were permitted to submit late applications, while she was not, which could raise an inference of
discrimination. While she claims that younger employees had been given special training on the
application system, she offers only her own interrogatory responses as support for that assertion,
which is insufficient evidence to raise a triable issue of discrimination. Because Plaintiff has
failed to establish a prima facie showing of discrimination, the court GRANTS Defendant’s
motion for her discrimination claims for this position.
B. Retaliation Claims
Plaintiff alleges that the Department’s actions described above were taken in retaliation
for her protected EEO activity. (Compl. ¶¶ 24–29). To prevail on a retaliation claim, “the
plaintiff generally must establish that he or she suffered (i) a materially adverse action (ii)
because he or she had brought or threatened to bring a discrimination claim.” Baloch v.
Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008). In the retaliation context, a “materially
adverse” action is one that would have “dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
68 (2006). The parties do not dispute that Plaintiff engaged in protected EEO activity or that in
the retaliation context the alleged incidents in this case are materially adverse actions, given that
in retaliation claims these “encompass a broader sweep of actions than those in a pure
discrimination claim.” Baloch, 550 F.3d at 1198 n.4. Instead, the parties’ dispute focuses on the
causal connection between Plaintiff’s past EEO activity and these actions.
A plaintiff may establish a causal link between her past protected activity and the alleged
acts of retaliation with circumstantial evidence, such as temporal proximity between the events.
Vasquez, 961 F. Supp. 2d at 67. However, “to rely on temporal proximity to prove causal
relation, the temporal proximity must be ‘very close’—generally less than three months. And
when the defendant gives a non-discriminatory reason for his actions, ‘positive evidence beyond
mere proximity is required to defeat the presumption that the proffered explanations are
genuine.’” Id. at 67–68 (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) and
quoting Woodruff v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007)). While Plaintiff may rely on
such proximity evidence, she must still present sufficient evidence from which a reasonable jury
could find it was more likely than not that retaliation was the actual motive for the employer’s
actions. See Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009).
With respect to Plaintiff’s non-selection for the two positions for which she was
interviewed, OII-2009-0001 and OII-2010-0021, Defendant provided affidavits from each of the
six panelists who interviewed her that none knew of her EEO activity before or after the
interviews. (See Def. Ex. 39 at 2; Def. Ex. 40 at 1; Def. Ex. 41 at 1; Def. Ex. 56 at 2; Def. Ex. 62
at 2; Def. Ex. 63 at 2). Plaintiff offers nothing to rebut this evidence for the OII-2010-0021
position, but argues that for the OII-2009-0001 position, Kern was the selecting official and
knew about her EEO activity. However, the interview panelists, who did not know of her
protected activity, recommended Staton, and Kern accepted their recommendation. (Def. Ex.
48). Without additional evidence from Plaintiff, a reasonable jury could not conclude that there
was causation between the interview panel’s selection and Plaintiff’s past protected EEO activity
based only on Kern’s knowledge. With respect to the remaining three positions, as described
above, the court concluded that Plaintiff failed to establish the necessary prima facie elements
that she was eligible for the positions. Therefore, the court concludes that there is insufficient
evidence to support a retaliation claim for these non-selections.
Plaintiff’s remaining retaliation claims relate to the 2008 performance rating, the 2009
desk audit, a February 2009 meeting, and the reassignment of COR duties. Plaintiff has offered
no evidence apart from temporal proximity that these events were related to her past protected
EEO activity. Defendant argues that the temporal link is too attenuated because two years had
passed between the most recent EEO activity (a February 2006 hearing) and her 2008
performance rating. (Def. Ex. 89 (2006 EEO hearing transcript)). Plaintiff asserts that her EEO
activity was still ongoing when the alleged incidents took place in 2008 and 2009. (Kilby-Robb
Decl. ¶ 4; Pl Mem. at 12). While this dispute may raise a triable issue as to the possible
inference based on temporal proximity, Defendant has already offered legitimate explanations
for each of these incidents, and, as discussed above, Plaintiff has failed to present evidence from
which a reasonable jury could conclude that the explanations are mere pretext. In the retaliation
context, “positive evidence beyond mere [temporal] proximity is required to defeat the
presumption that the proffered explanations are genuine.” Woodruff, 482 F.3d at 530. Because
Plaintiff has failed to provide the court with any additional evidence supporting a finding of
retaliation, the court will GRANT Defendant’s motion as to the remaining retaliation allegations.
C. Hostile Work Environment Claims
Plaintiff alleges that her discrimination and retaliation claims, taken together, amount to a
hostile work environment. (Compl. ¶¶ 22, 28, 34). “To prevail on such a claim, a plaintiff must
show that [her] employer subjected [her] to ‘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.’” Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)). “To determine whether a hostile work environment exists, the
court looks to the totality of the circumstances, including the frequency of the discriminatory
conduct, its severity, its offensiveness, and whether it interferes with an employee’s work
performance.” Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)).
The court has already concluded that for some of these incidents, Plaintiff did not
establish the prima facie elements of a discrimination or retaliation claim, including whether she
suffered an adverse employment action or whether there was an inference of discrimination. For
the remaining incidents, the court concluded that Plaintiff failed to offer evidence to show that
Defendant’s offered explanations for its actions were merely pretext. As a result of Plaintiff’s
lack of evidence needed to survive summary judgment on her discrimination and retaliation
claims, the court further finds that none of her allegations, considered in isolation or
cumulatively, “show an environment so pervaded with discriminatory abuse as to alter the
conditions of plaintiff’s employment.” Williams v. Spencer, 883 F. Supp. 2d 165, 181 (D.D.C.
2012); see also Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (“[T]he removal of
important assignments, lowered performance evaluations, and close scrutiny of assignments by
management [cannot] be characterized as sufficiently intimidating or offensive in an ordinary
workplace context.”). Therefore, the court GRANTS Defendant’s motion with respect to
Plaintiff’s hostile work environment claims.
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED.
Date: March 30, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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