Miller v. Chao

Filing 52

ORDER granting 40 defendant's Motion for Summary Judgment (as more fully set out in order). Signed by Judge Patrick R Wyrick on 5/8/2024. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
)
)
)
Plaintiff,
)
)
v.
)
)
PETE BUTTIGIEG, Secretary, United
)
States Department of Transportation,
)
Federal Aviation Administration,
)
)
Defendant.
ORDER

TAJOHNAE A. MILLER,

Case No. CIV-20-1161-PRW

Before the Court is Defendant’s Motion for Summary Judgment (Dkt. 40). The
matter is fully briefed, and for the reasons discussed below, the Motion is GRANTED.
Background 1
In February 2016, Plaintiff Tajohnae Miller, an African American female, began
working as an Air Traffic Controller Specialist (“ATCS”) trainee at the FAA Training
Academy, Mike Monroney Aeronautical Center, Oklahoma City, Oklahoma. Over the next
months, Ms. Miller and a class of seventeen other trainees participated in ATCS instruction
and examination. Madeline Bostic, a white female, was one of Ms. Miller’s classmates.
Both Ms. Miller and Ms. Bostic performed well in the classroom instruction and
written examination portions of the program. However, in the simulator-based performance

The below factual recitation is taken from the statements of material facts in the parties’
briefs.

1

1

assessments—which account for the bulk of a student’s total score for the program—both
women had assessment runs that fell below expectations. After their performance
assessments, both women used the Technical Review process to note perceived technical
and procedural errors that they felt contributed to their low scores. Upon review by
instructors, no system errors were noted, and no lost points were restored.
After completion of the performance assessments, FAA Academy instructors
totaled up the ATCS trainee scores. Ms. Miller and Ms. Bostic both fell short of the
required seventy points needed to pass the program. On May 10, 2016, both Ms. Miller and
Ms. Bostic were dismissed from ATCS training for failing to achieve a passing grade.
On May 13, 2016, Ms. Bostic contacted an Equal Employment Opportunity
(“EEO”) counselor, claiming that she had suffered harassment during ATCS training on
the basis of her sexual orientation. Ms. Bostic claimed that the harassment had negatively
affected her performance in the simulated runs, leading to her failing grade. Richard
Mitchell, a white male, was a manager at the FAA Academy. After reviewing Ms. Bostic’s
EEO complaint, Mr. Mitchell agreed to participate in an Alternative Dispute Resolution
(“ADR”) process. That process led to a settlement whereby Ms. Bostic would be reinstated
to the Academy and given another chance to participate in and pass the ATCS training
program.
Word of Ms. Bostic’s reinstatement soon got around to her former classmates.
Perhaps uncomfortable sharing the real circumstances of her reinstatement, Ms. Bostic may
have given a cover story. In any case, when Ms. Miller heard of the reinstatement through

2

another friend and classmate, she was led to believe that Ms. Bostic had been reinstated as
a result of “computer glitches” during her simulator runs.
Believing that she, too, had been a victim of technical difficulties, Ms. Miller
reached out to FAA Academy personnel to inquire about the possibility of reinstatement.
On August 6, 2016, the same day she learned of Ms. Bostic’s reinstatement, Ms. Miller
emailed Ron Ward, her former first-line supervisor at the FAA Academy. Ms. Miller
explained the situation as she understood it, and asked if reinstatement was a possibility.
Receiving no response, Ms. Miller sent a follow-up email and contacted the FAA Hotline
on August 25, 2016. An FAA Hotline representative acknowledged the inquiry and told
Ms. Miller that someone from the Air Traffic Organization would respond to her directly
in about a week. On September 21, 2016, having still received no response to her request,
Ms. Miller contacted an EEO counselor to begin the process of an EEO complaint.
In her EEO complaint, Ms. Miller alleged that she was discriminated against on the
basis of race. 2 In the intervening months, while working with the EEO counselor, Ms.
Miller was informed that the FAA Academy would not offer reinstatement and would not
agree to adjudicate her request through ADR. The complaint identified both decisions as
discriminatory actions, and listed August 6, 2016, as the date of those actions. After an
investigation, the Equal Employment Opportunity Commission ultimately concluded that
Ms. Miller’s complaint was untimely and failed to state a claim.

Ms. Miller initially alleged discrimination on the basis of color as well, but later dropped
that allegation.

2

3

Ms. Miller filed her present Complaint (Dkt. 1) on September 23, 2020, alleging
discrimination on the basis of race in violation of Title VII. After a period of discovery,
Defendant filed the present Motion for Summary Judgment (Dkt. 40) on January 3, 2022.
Legal Standard
Summary judgment is proper “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.” 3 A
genuine dispute exists if a reasonable juror could return a verdict for either party. 4 A fact
is material if it “might affect the outcome of the suit under the governing law.” 5 In
considering a motion for summary judgment, a court must view all facts and reasonable
inferences in the light most favorable to the nonmovant. 6 Summary judgment is appropriate
when a party “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” 7
Analysis
Defendant raises two possible grounds for summary judgment. First: that Ms. Miller
failed to comply with the timing requirements for her EEO complaint, and therefore failed
to properly exhaust her administrative remedies. Second: that Ms. Miller cannot show that

3

Fed. R. Civ. P. 56(a).

4

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

5

Id.

6

Id.

7

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
4

the FAA Academy’s decisions were made with discriminatory intent. The Court addresses
each in turn.
I.

Administrative Exhaustion
Employment discrimination actions under Title VII are subject to “rigorous

administrative exhaustion requirements and time limitations.” 8 “Before a federal civil
servant can sue h[er] employer for violating Title VII, [s]he must, among other things,
‘initiate contact’ with an Equal Employment Opportunity counselor at h[er] agency ‘within
45 days of the date of the matter alleged to be discriminatory.’” 9 The standard rule is that
the 45-day limitations period “commences when the plaintiff has a complete and present
cause of action.” 10 Claims generally accrue “when the plaintiff knows or has reason to
know of the existence and cause of the injury which is the basis” of the action. 11 In an
employment discrimination case, the start of the limitations period thus depends on the
circumstances and the kind of discriminatory action alleged. 12
Defendant argues that the limitations period began on August 6, 2016, the date that
Ms. Miller learned of Ms. Bostic’s reinstatement, and the date that Ms. Miller first inquired

Brown v. Gen. Servs. Admin., 425 U.S. 820, 833 (1976); see James v. McHugh, 566 F.
App’x 623 (10th Cir. 2014) (unpublished).

8

9

Green v. Brennan, 578 U.S. 547, 549–50 (2016) (quoting 29 CFR § 1614.105(a)(1)).

Id. at 554 (quoting Graham Cnty. Soil & Water Conservation Dist. v. United States ex
rel. Wilson, 545 U.S. 409, 418 (2005)).
10

Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004) (quoting Indus.
Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir.
1994)).

11

Green, 578 U.S. at 553–54, 564 (“The limitations-period analysis is always conducted
claim by claim.”); see also Del. State College v. Ricks, 449 U.S. 250, 257 (1980)
12

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about her own reinstatement. Indeed, Defendant’s position is that Ms. Miller herself
repeatedly confirmed that August 6 was the relevant date. In her Department of
Transportation complaint form, Ms. Miller listed August 6 in large bold letters as the date
of discriminatory action. 13 Ms. Miller did not object when that date was used in the
statement of the claim turned over to an EEO investigator. 14 Ms. Miller repeated that
August 6 was the date of the discriminatory action in her sworn statement to the EEO
investigator, 15 and the date was carried over into the statement of the claim in the final
EEO decision. 16 It is undisputed that Ms. Miller first contacted an EEO counselor on
September 21, 2016, forty-six days from August 6, 2016. Defendant therefore concludes
that Ms. Miller failed to properly exhaust her administrative remedies.
Ms. Miller does not contest the fact that August 6, 2016, appears throughout the
EEO documentation as Defendant suggests. However, according to her, that date was in
error. She argues that, logically speaking, it must be. On August 6, 2016, Ms. Miller was
operating under the belief that Ms. Bostic had been reinstated due to computer issues during
her performance assessments. For all Ms. Miller knew, her request for reinstatement along
similar lines would promptly result in similar results. It was only after FAA failed to
respond to her inquiries that Ms. Miller had any reason to suspect that she was being treated

(“Determining the timeliness of Ricks’ EEOC complaint . . . requires us to identify
precisely the ‘unlawful employment practice’ of which he complains.”).
13

Ex. 13 (Dkt. 40-13), at 9.

14

Ex. 1 (Dkt. 51-1).

15

Miller Aff. (Dkt. 40-9), at 1.

16

Ex. 2 (Dkt. 51-2), at 3.
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differently, and it was only when FAA finally decided to not reinstate her and to not
participate in ADR that she was in fact treated differently. Ms. Miller argues that whatever
the exact date her discrimination claims accrued, it was after August 6, 2016, and therefore
her consultation with the EEO counselor was timely.
Looking to the claims at issue, the Court finds that Ms. Miller has the better of the
argument. The alleged discriminatory actions here are FAA’s refusal to reinstate Ms. Miller
or to engage in the ADR process. After submitting her inquiry on August 6, and for several
weeks thereafter, Ms. Miller had no insight into the status of her request. From emails
produced in discovery, it appears that FAA Academy personnel did not begin discussing
Ms. Miller’s request until August 8, 2016, at the earliest. 17 It is safe to say that the
“matter[s] alleged to be discriminatory” in this case must have occurred after that date, and
therefore within forty-five days of Ms. Miller’s consultation with the EEO counselor on
September 21, 2016. The Court finds no administrative exhaustion problem here. 18
II.

Title VII
Title VII of the Civil Rights Act of 1964 prohibits racial discrimination in

employment decisions. 19 Where a plaintiff relies on circumstantial evidence of

17

Exs. 5–8 (Dkt. 47-5–47-8).

The parties also discuss the possible application of the doctrine of equitable tolling to
this case, which could serve to effectively extend the applicable limitations period. Because
the Court concludes that Ms. Miller’s contact with the EEO counselor was within the
limitations period, it does not address these arguments.

18

19

42 U.S.C. § 2000e–2(a)(1).
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discrimination, the familiar tripartite framework of McDonnell Douglas Corp. v. Green 20
governs. 21 The burden starts with plaintiff, who must present a prima facie case of
discrimination. 22 If that hurdle is cleared, the burden shifts to the employer to provide a
legitimate, nondiscriminatory reason for the disputed action. 23 If such a reason is provided,
the burden shifts back to the plaintiff to demonstrate that the given reason is pretextual 24—
that is, that the proffered reasons are so “incoherent, weak, inconsistent, or contradictory
that a rational factfinder could conclude the reasons were unworthy of belief.” 25
Generally stated, a prima facie case of race-based discrimination is established
through evidence that: (1) the employee belongs to a protected class; (2) the employee
suffered an adverse employment action; and (3) the circumstances give rise to an inference
of discrimination. 26 The burden to establish a prima facie case is not onerous. 27
Nevertheless, the prima facie case requirement “serves an important function in the

20

411 U.S. 792 (1973).

See, e.g., Ibrahim v. All. for Sustainable Energy, LLC, 994 F.3d 1193, 1196 (10th Cir.
2021).
21

22

Id.

23

Id.

24

Id.

Bekkem v. Wilkie, 915 F.3d 1258, 1268 (10th Cir. 2019) (quoting Young v. Dillon Cos.,
468 F.3d 1243, 1250 (10th Cir. 2006)).

25

26

Ibrahim, 994 F.3d at 1196.

27

Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005).
8

litigation: it eliminates the most common nondiscriminatory reasons for the [adverse
employment action].” 28
The first two prima facie case elements are undisputed here. As to the third element,
Defendant argues that the circumstances here do not give rise to an inference of
discrimination. The basis of Ms. Miller’s claim is a disparity in the treatment that she
received compared to Ms. Bostic. Defendant notes that such comparisons must be “legally
relevant.” 29 That is, the employees must be “similarly situated in all material respects.”30
Defendant argues that Ms. Bostic and Ms. Miller were not similarly situated in all material
respects, in that they presented very different reasons for seeking reinstatement to the FAA
Academy.
Ms. Miller disagrees. She notes that they were in the same FAA Academy class,
sharing the same lead instructor and supervisors. Both women scored poorly on
performance assessment runs on the same day, and both used the Technical Review process
to flag what they believed were computer errors during the assessments. After those
complaints were adjudicated and no points were restored, both women were dismissed
from the program for failing to meet the scoring threshold. Added together, Ms. Miller

28

Id.

29

Hysten v. Burlington N. & Santa Fe. Ry. Co., 296 F.3d 1177, 1182–83 (10th Cir. 2002).

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1218 (10th Cir. 2011); see Morman
v. Campbell Cnty. Mem. Hosp., 632 F. App’x 927, 935 (10th Cir. 2015) (unpublished)
(applying the “all material respects” standard in the McDonnell Douglas context).
30

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argues, these conjoined circumstances show that Ms. Bostic and herself were similarly
situated. 31
As for Defendant’s argument that the similarities end at the nature of the two
women’s reinstatement requests, Ms. Miller responds that the difference is undercut by
what she perceives as irregularities in the FAA Academy’s investigation of Ms. Bostic’s
request. Ms. Miller also relies on records showing three other white FAA Academy trainees
who were granted reinstatement, and three other black trainees who were denied
reinstatement. She argues that these other cases raise an inference of discrimination.
The Court finds that Ms. Miller has failed to establish a prima facie case of racial
discrimination. The Court recognizes the many similarities between Ms. Miller and Ms.
Bostic’s situations leading up to their dismissal from the training program. But Ms. Miller’s
claims of discrimination both center around reinstatement, and it is on that point—the most
material point—that the two women differ. Ms. Bostic approached the FAA Academy in
the course of an EEO complaint alleging that sexual orientation discrimination had
interfered with her performance. Ms. Miller sent an email asserting that there was “a glitch
in the system” 32 during her performance assessments. Such issues are handled by the
Technical Review process, which Ms. Miller in fact participated in after her simulator runs.
These facts are not disputed by the parties, and no favorable inference drawn in favor of

See Ibrahim, 994 F.3d at 1196 (“Employees are similarly situated when they share a
supervisor or decision-maker, must follow the same standard, and engage in comparable
conduct.”).
31

32

Ex. 6 (Dkt. 47-6).
10

Ms. Miller can close the gap between their given reasons for requesting reinstatement. Ms.
Miller and Ms. Bostic were not similarly situated in this critical respect.
As Ms. Miller notes, differential treatment or apparent favoritism can create an
inference of discrimination. 33 The strength of that inference, or whether an inference can
be drawn at all, depends once more on the similarity between the compared employees.
For two employees who are identically situated, any unexplained difference in outcome
can open the door to an inference of discrimination. 34 As the employee circumstances differ
in greater degrees, discrimination becomes harder to infer from mere disparities of result. 35
Something more, such as procedural irregularities or apparent bad faith, is then needed to
bolster the inferential step. 36 Ms. Miller expends a great deal of effort probing the
thoroughness of FAA Academy’s consideration of Ms. Bostic’s claims. 37 What Ms. Miller
ultimately arrives at, however, is mere conjecture that the decision to reinstate Ms. Bostic
was improperly motivated. 38 Given the material difference between the two women’s

33

See Ibrahim, 994 F.3d at 1196–97.

34

See id.

35

See Medlock v. United Parcel Service, Inc., 608 F.3d 1185, 1192–95 (10th Cir. 2010).

The Tenth Circuit has recognized that there is some overlap between this kind of prima
facie case inquiry and the pretext analysis performed at the third step of McDonnell
Douglas. Id. at 1191 n.5 (“As this [not similarly situated] contention turns on the reasons
given for reinstating the comparators and refusing to reinstate Medlock, it goes to the
justification-versus-pretext inquiry as much as to the prima facie case.”).

36

37

See Pl.’s Resp. (Dkt. 48), at 25–30.

In addition, Ms. Miller’s primary theory of the improper motive isn’t racial favoritism,
but nepotism. See Medlock, 608 F.3d at 1195 (“To conclude somehow from this that
Popejoy was reinstated for reasons that cast doubt on the justification for not reinstating
Medlock would be sheer conjecture, which we have long recognized is an inadequate basis
38

11

situations, that is not enough to “eliminate the most common nondiscriminatory reason[]”
for the disparate outcomes. 39 “[I]n prima facie case terms, the comparison does not give
rise to a reasonable inference of [racial] discrimination.” 40
The other reinstatement decisions Ms. Miller references are equally unavailing. The
three white trainees who were reinstated were all members of the same class whose
instruction was repeatedly disrupted by an unruly classmate. 41 The three black trainees who
were not reinstated pursued EEO complaints alleging various forms of racial
discrimination. 42 Two of those complaints went to ADR mediation but failed to settle for
undisclosed reasons. 43 In any event, none of the six trainees is a good comparator for Ms.
Miller, nor do they raise or bolster any inference of discrimination in the FAA Academy’s
decision not to reinstate her.
Again, the Court finds that Ms. Miller has failed to establish a prima facie case of
discrimination. For the same reasons, the Court concludes that Ms. Miller has failed to
demonstrate that FAA Academy’s given reasons for agreeing to ADR mediation and
reinstating Ms. Bostic, while denying the same for Ms. Miller, were pretextual—i.e., so
“incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude

on which to oppose summary judgment.” (citing Hinds v. Sprint/United Mgmt. Co., 523
F.3d 1187, 1197 (10th Cir. 2008))).
39

Plotke, 405 F.3d at 1099.

40

Medlock, 608 F.3d at 1194; see also Hysten, 296 F.3d at 1182–83.

41

Exs. 2–4 (Dkt. 48-2–48-4).

42

Exs. 6–8 (Dkt. 48-6–48-8).

43

Exs. 7, 8 (Dkt. 48-7, 48-8).
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the reasons were unworthy of belief.” 44 Thus, even assuming arguendo that Ms. Miller has
a prima facie case of discrimination, her claim nevertheless falls short at the third step of
McDonnell Douglas. The Court finds that there is no genuine dispute of material fact, and
that Defendant is entitled to judgment as a matter of law.
Conclusion
For the reasons discussed above, Defendant’s Motion for Summary Judgment (Dkt.
40) is GRANTED. A separate judgment will be entered in favor Defendant and against
Ms. Miller.
IT IS SO ORDERED this 8th day of May 2024.

44

Bekkem, 915 F.3d at 1268.
13