Dowell v. Department of the Army et al

Filing 156

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 3/23/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DEBBIE L. DOWELL,
Plaintiff,
v.
ROBERT M. SPEER, Acting Secretary,
Department of the Army,
Defendant.

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Case No. 3:14-cv-01314
Judge Aleta A. Trauger

MEMORANDUM
Plaintiff Debbie Dowell brings claims of race discrimination and retaliation in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (“Title
VII”) against the Secretary of the Army as her employer. (Compl., Doc. No. 1; Am. Compl.,
Doc. No. 66.) Now before the court are the plaintiff’s Objections (Doc. No. 151) to the
magistrate judge’s Report and Recommendation (“R&R”) (Doc. No. 148), recommending that
the plaintiff’s Motion for Summary Judgment (Doc. No. 115) be denied, that the defendant’s
Motion for Summary Judgment (Doc. No. 125) be granted, and that this action be dismissed. At
the court’s directive, the defendant has filed a Response to the Objections. (Doc. No. 156.)
When a party files objections to a magistrate judge’s report and recommendation
regarding a dispositive motion, the district court must review de novo any portion of the report
and recommendation to which objections are properly lodged. Fed. R. Civ. P. 72(b)(3); 28
U.S.C. § 636(b)(1)(B) & (C). In conducting its review, the district court “may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).

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The court has conducted a de novo review of the parties’ motions and the entire
evidentiary record in light of the plaintiff’s Objections and finds that material factual disputes
preclude summary judgment in favor of the defendant on the plaintiff’s claim that the defendant
discriminated against her based upon her race and retaliated against her for filing an EEO charge
when it terminated a pending noncompetitive accretion of duties promotion initiated by the
plaintiff’s supervisor. In all other respects, the R&R will be accepted. Accordingly, the plaintiff’s
Motion for Summary Judgment will be denied, and the defendant’s Motion for Summary
Judgment will be granted in part and denied in part.
I.

Factual and Procedural Background
The plaintiff’s claims arise from her employment as a civil engineer with the United States

Army Corps of Engineers (“USACE”), where she worked from 2004 until November 29, 2014. 1
In November 2008, the plaintiff transferred from the USACE’s Louisville District,
Construction Division, Fort Campbell Resident Office, where she had worked for several years, to
the Nashville District’s Nashville Resident Office (“NRO”). She alleges that, while working at the
NRO, she was subject to discrimination on the basis of race and retaliation for having filed an Equal
Employment Opportunity (“EEO”) complaint.

She initiated this action in June 2014. In her Second Amended Complaint, she set forth
claims based on four specific events:
1.
The Plaintiff was discriminated against based upon her race (Black) when she
was discriminatorily transferred to an established GS-12 grade equivalent Civil
Engineer position description under the National Security Personnel System (NSPS)
upon her transfer to the Nashville Resident Office in 2008, but was only paid a GS-11
grade or GS-11 equivalent salary to perform the duties of the position from 2008 to
2014, due to her race.
2.
The Plaintiff was discriminated against based upon her race (Black) and
subjected to reprisal when the Agency ceased a pending Noncompetitive Accretion of
1

At that time, she left to begin working for the United States Bureau of Indian Affairs.

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Duties Promotion initiated by Plaintiff’s Supervisor, upon being made aware that
Plaintiff had filed a complaint with the Nashville EEO Office.
[3.]
The Plaintiff was discriminated against based upon her race (Black) when she
was paid less than Caucasian male engineers to perform the same or greater duties in
the Nashville Resident Office.
[4.]
The Defendant discriminated against Plaintiff based upon her race (Black),
committed fraud, and misused tax-payer funds when he falsified official Government
documents to make it appear that a Caucasian male was performing the GS-12 grade
or equivalent duties in the Nashville Resident Office, which the Plaintiff was actually
performing.
(2d Am. Compl. ¶ 9(1)–(6), Doc. No. 66.) 2

After a contentious period of discovery, the parties filed their respective Motions for
Summary Judgment in June and July 2016, along with Memoranda of Law, Statements of
Undisputed Facts, and reams of supporting exhibits, deposition excerpts, and declarations. Both
parties thereafter filed Responses, Replies, and Surreplies. The magistrate judge issued her R&R
on February 14, 2017, specifically concluding that there are no material factual disputes and that
the defendant is entitled to judgment in his favor as a matter of law on each of the plaintiff’s
claims. She therefore recommended that the defendant’s motion be granted and that the
plaintiff’s be denied.
The plaintiff has filed thirty-four enumerated objections to the R&R. Many of the
objections concern trivial, non-material factual disputes. 3 Substantively, however, the plaintiff

2

The plaintiff also asserted discrimination claims based on two other events, but she
subsequently withdrew the claims related to those events. (See Proposed 3d Am. Compl., Doc.
No. 81; Order, Doc. No. 93.)
3

For example, the plaintiff disputes the magistrate judge’s adoption of the acronym
“NVL” to identify the Nashville Resident Office, instead of or in addition to the acronym
“NRO.” (Objection #1, Doc. No. 151.) The plaintiff insists that the defendant adopted this
acronym for the purpose of confusing the court. (Id.) She also objects to the magistrate judge’s
allegedly erroneous characterization of some of her claims (Objections #2 and #3). Many of the
plaintiff’s objections are repetitive and others are very general. For instance, she asserts that the
magistrate judge erred in finding that no factual disputes “rise to the level of genuine issues of

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objects to the magistrate judge’s determination that the material facts are undisputed and that the
defendant is entitled to summary judgment in his favor as a matter of law.
In order to respond efficiently to the plaintiff’s Objections, the court considers de novo
the Motions for Summary Judgment as to each of the plaintiff’s claims. The court begins this
analysis by focusing on Claim Two, which, as the magistrate judge recognized, presents the
closest call and, therefore, requires the closest scrutiny by the court.
II.

Claim Two: Discrimination and Retaliation
In Claim Two, the plaintiff asserts that the USACE discriminated against her based upon

her race and retaliated against her for filing an EEO charge when it terminated a pending
noncompetitive accretion of duties promotion initiated by the plaintiff’s supervisor.
A.

Factual Background

On April 30, 2012, after the plaintiff had been working at the NRO for over three years,
the plaintiff sent an email to her direct supervisor, David Loyd, requesting an appointment to
discuss the possibility of her upgrading from GS-11 grade to GS-12 grade. (Doc. No. 126-2, at
4.) Loyd forwarded the email to his supervisor, Johnny Wilmore. Wilmore responded that
accretion was the only way to move the plaintiff to the GS-12 pay grade, “other than applying for
a GS-12 vacancy somewhere,” and suggested that they begin that process. (Id.) Wilmore
formally initiated the accretion of duties process on May 23, 2012. (Doc. No. 126-7, at 19.) On
the same date, the plaintiff first contacted the EEO office over the Nashville division (Doc. No.
20-1, at 1–2), but there is no evidence that any of her supervisors became aware of the EEO
complaint on that date.
Accretion of duties is defined as “the gradual addition of duties that have been added to a
material fact” (Objection #6, Doc. No. 151, at 4 (citing R&R, Doc. No. 148, at 10) and that she
“misapplied the standard of review.” (Objection #7, Doc. No. 151, at 4.)

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current employee’s position and these additional duties result in a higher pay grade.” (CHRA
Noncompetititve Accretion of Duties Standard Operating Procedure (“Accretion SOP”), Doc.
No. 126-7, at 32.) An accretion of duties promotion is accomplished through a process set out in
the Accretion SOP. (Id at 31–36.) The purpose of an accretion of duties promotion, as the title of
the SOP suggests, is to provide for the non-competitive promotion of a federal employee when
“additional duties [have been] added to an employee’s job which results in the position becoming
a higher grade.” (Id. at 31, 32.)
The Accretion SOP provides that the accretion of duties promotion process is initiated by
the employee’s supervisor, who submits a request for an accretion of duties promotion to an HR
specialist. The specialist must “analyze each request . . . with the goal of protecting the merit
principle of fair and open competition.” (Id. at 33.) In performing the required analysis,
the HR specialist must compare the existing, encumbered position description
(PD) with the proposed PD. Determine if the employee will continue to perform
the same basic functions, duties and tasks. Not all tasks need to be represented in
the new PD, but a majority of the duties of the current job (at least 50%) must be
included. If the revised PO does not include the old duties, then advise the
manager on the inappropriateness on the effecting a promotion through accretion
of duties . . . .
(Id. at 33.) In addition, among other steps, the HR specialist must determine whether the
employee who is proposed for the accretion of duties promotion “meets qualifications,
licensing/certification requirements and minimum educational requirements.” (Id. at 34.) If the
proposed employee does not meet those requirements, the HR specialist is to “advise
management officials on alternative course(s) of action as the incumbent may not remain in the
position” if the position is, in fact, accreted. (Id.)
In the process of preparing documentation for her accretion package, the plaintiff did not
mark up her current GS-11 PD, as required by the Accretion SOP. Instead, she annotated a GS-

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12 PD by highlighting in yellow those portions of it—essentially the whole thing—that she
believed she was already performing; she also added a duty about training a lower grade intern
engineer. (See Doc. No. 126-7, at 6.) Loyd, her direct supervisor, initialed or wrote “meets” in
the margins next to each itemized duty of the same GS-12 PD and “true” with reference to the
added task of training the intern. (Id.; see Doc. No. 115, at 156–59.) He testified that, by
“meets,” he meant that the plaintiff already was performing those tasks or would be capable of
doing so. (Doc. No. 126-8, at 5.) In his deposition, Loyd stated that he did not think that the
plaintiff’s duties and responsibilities changed at any time while he was her supervisor, but he
“just kept giving [her] work.” (Doc. No. 126-8, at 3.) He also testified, however, that, when she
began working for him, she was “performing at 11 and slowly accreted into the 12.” (Id.)
Loyd forwarded the marked up GS-12 PD to Johnny Wilmore. On June 12, 2012,
Wilmore forwarded it to Rachel Owens, an HR employee. (Doc. No. 126-2, at 3.) Owens
initially responded that she would look at it and then forward it to Barbara Simpson. (Id.)
According to the defendant, before an accretion of duties promotion package becomes an actual
promotion in the Nashville District, the package must first be reviewed by supervisors and
human resources personnel, and then must be approved by Barbara Simpson, the senior
classifier, and the Position Management Committee. (See Doc. No. 126-3, at 22, 31–32, 52;
Waddle Decl. ¶ 6, Doc. No. 119.)
On July 6, 2012, Owens emailed Wilmore to let him know that she needed the plaintiff’s
current PD, “marked up with the additional duties that she will be performing, to accrete her to
the new GS-12.” (Doc. No. 126-7, at 20–21.) On July 30, 2012, Wilmore responded to Owens,
assuring her that they were “in the process” of marking up the plaintiff’s current PD. (Doc. No.
126, at 20.) At the same time, however, he asked whether the accretion package had already been

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sent to Barbara Simpson and rejected by her, or if it had been rejected by Owens herself on the
basis that she needed a markup of the plaintiff’s current PD. Wilmore emphasized that it was
“very important for Jimmy [Waddle] to know the answer to [this] specific question.” (Id.) Owens
assured him that the accretion package had never been sent to the Senior Classifier, Barbara
Simpson, because it had not yet been submitted in the proper form. Owens was “waiting on the
marked-up [current] PD.” (Id.)
Jimmy Waddle, Chief of Engineering and Construction for the Nashville Division and the
plaintiff’s third-level supervisor, was made aware around this time that the plaintiff had filed an
EEO charge and that she was pursuing an accretion of duties promotion. Upon notification of a
mediation meeting to try to settle the plaintiff’s complaint, Waddle told Wilmore to put the
accretion process on hold, “because it could be part of the settlement options.” (Doc. No. 126-7,
at 7.) The mediation meeting, however, conducted on July 26, 2012, did not result in a
settlement. (Id. at 8.) During the meeting, the fact that the accretion process was on hold came
up. Immediately after the meeting, Waddle instructed Wilmore to start working on the accretion
again, but “not to send it out of Construction Branch until he discussed it further with [Waddle].”
(Id.)
Waddle testified that, in preparation for the mediation meeting, he had “looked at all the
credentials and grades and length of service of all engineers and geologists within the
construction branch” as well as the “DAWIA Level certification 4 of all engineers and geologists
within construction branch.” (Id.) He noted at that time that the plaintiff was not DAWIA
certified at Level 1 or Level 2, even though, according to Waddle, she had been encouraged to
4

DAWIA stands for “Defense Acquisition Workforce Improvement Act.” (Doc. No. 1267, at 39.) The DAWIA Certification Compliance Program was created to “assist[] the USACE
Acquisition workforce in meeting statutory certification and continuous learning requirements.”
(Id.)

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take the training since she was hired. (Id.) Waddle testified that, after the mediation, he “decided
to look further at [the plaintiff’s] capability to manage construction projects.” (Id.) He alleges
that his review “showed that she had quality, time and cost growths associated with the projects
which s[h]e managed,” as well as “problems with inadequate documentation” and a “lack of
motivation to get involved and visit her construction sites.” (Id.) Based on these findings,
Waddle allegedly became “further convinced she was not performing GS-12 work, nor was she
performing at a GS-12 level,” and these discoveries led him to put the accretion review on
permanent hold. (Id.)
Waddle submitted a Declaration in which he avers that he stopped the accretion process
because (1) he prefers to promote individuals through the competitive promotion process, which
is the preferred method of promotion within USACE, rather than through the accretion of duties
process; (2) the accretion of duties process is less fair than the competitive promotion process
and the competitive process ensures that the best-suited employee is hired for the position; (3)
the plaintiff was not working on projects that were sufficiently large and complex to justify a
GS-12 grade; and (4) the plaintiff was not qualified to be a GS-12 Civil Engineer, because she
was not certified by DAWIA. (Doc. No. 119 ¶¶ 3–5.)
The plaintiff, for her part, points out that her position, GS-11 engineer, was designated as
an acquisition position and therefore subject to DAWIA standards, requiring DAWIA Level-2
certification, in March 2009, after she had transferred to that position in the NRO, but no one
deemed her unqualified for her GS-11 position. (Doc. No. 138, at 31; Doc. No. 126-7, at 11–15.)
She explained in her EEO charge and her agency testimony that she began taking classes toward
DAWIA certification immediately upon learning of their existence, but, due to circumstances
beyond her control and her work load, she was prevented from achieving the certification

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quickly. (Doc. No. 20-1, at 8; Doc. No. 126-3, at 6.) She points to evidence in the record that
supports a conclusion that DAWIA certification was not required for GS-11 or GS-12 engineers.
(See, e.g., Doc. No. 138-4, at 2–3.) 5 She also points out that the Acquisition Position
Certification Standards submitted by the defendant state that, “[w]hen an employee is assigned to
a position and does not meet the applicable certification standards . . . , the organization has 18
months in which to get the individual certified or obtain a waiver.” (Doc. No. 126-7, at 38.)
Likewise, each agency has 18 months to get incumbents of positions that are newly designated as
having certification requirements certified or to obtain a waiver. (Id.) At the time of her
deposition, the plaintiff was still working on DAWIA certification. Doc. No. 126-3, at 6.) She
received her Level I certification on December 27, 2013. (Doc. No. 126-2, at 36.)
Regarding Waddle’s allegations that the plaintiff’s performance as a GS-11 engineer had
been deficient, the plaintiff argues, correctly, that no objective evidence in the record supports
Waddle’s purported findings. To the contrary, the plaintiff’s performance reviews in the record
uniformly indicate good performance, and her direct supervisor, David Loyd, never expressed
any dissatisfaction with her performance. While the plaintiff tacitly admits to modest cost
growths, she asserts that the cost growths associated with various GS-12 engineers were much
higher. (Doc. No. 138, at 33.)
B.

Discussion

In support of their Motion for Summary Judgment, the defendant argues that he is
entitled to judgment as a matter of law on the plaintiff’s retaliation and discrimination claims

5

Although the plaintiff does not identify this document, it appears to be an excerpt from
Johnny Wilmore’s agency testimony. In responding to the investigator’s question, “Is it required
to have DAU/DAWIA certification to have a 12 position,” the witness responded, “Not to my
knowledge. I know there are people who occupy GS-12 positions who don’t have it.” (Doc. No.
138-4, at 2–3.)

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based on the termination of the accretion review process because: (1) the plaintiff was not
qualified for the promotion she sought; (2) the plaintiff cannot establish that she was subjected to
an adverse employment action; (3) the plaintiff cannot establish a causal connection between the
cessation of the accretion process and her engaging in protected activity for purposes of her
prima facie case of retaliation; and (4) the plaintiff cannot rebut the defendant’s proffered
legitimate, non-discriminatory reason for its action.
1.

Legal Standards – Title VII Discrimination and Retaliation

Under 42 U.S.C. § 2000e–2(a)(1), an employer may not discriminate against any
employee because of such individual’s race or color. A plaintiff alleging that her employer
violated this prohibition may prove her claim using either direct or circumstantial evidence.
White v. Baxter Healthcare Corp., 533 F.3d 381, 391 n.5 (6th Cir. 2008). Where, as here, a
plaintiff relies on circumstantial evidence, courts typically apply the burden-shifting framework
developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), to determine
whether the plaintiff has proffered sufficient evidence to survive summary judgment. Jackson v.
VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 775–76 (6th Cir. 2016).
Under the McDonnell Douglas/Burdine framework, the plaintiff bears the initial burden
of establishing a prima facie case of discrimination. Id. at 776. To establish a prima facie case of
race discrimination, a plaintiff must demonstrate that: “(1) she is a member of a protected group;
(2) she was subjected to an adverse employment decision; (3) she was qualified for the position;
and (4) . . . similarly situated non-protected employees were treated more favorably.” Id.
(quoting Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004)).
A Title VII retaliation claim that a plaintiff seeks to establish with circumstantial

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evidence is likewise analyzed under the McDonnell Douglas burden-shifting framework. Laster
v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). To establish a prima facie case of
retaliation under Title VII, the plaintiff must demonstrate that (1) she engaged in activity
protected by Title VII; (2) her exercise of such protected activity was known by the defendant;
(3) thereafter, the defendant took an action that was “materially adverse” to the plaintiff; and (4)
a causal connection existed between the protected activity and the materially adverse action. Id.
(citations omitted). The Sixth Circuit has repeatedly “admonished that the plaintiff’s burden at
the prima facie stage is not onerous and poses a burden easily met.” Jackson, 814 F.3d at 776
(citations and internal quotation marks omitted).
For both discrimination and retaliation claims, once the plaintiff establishes a prima facie
case, “the burden shifts to the defendant to offer evidence of a legitimate, non-discriminatory
reason for the adverse employment action.” Jackson, 814 F.3d at 776 (Title VII discrimination
case) (citation omitted); Kirkland v. James, 657 F. App’x 580, 584 (6th Cir. 2016) (Title VII
retaliation case). If the defendant meets this burden, “the burden shifts back to the plaintiff to
show that the defendant’s proffered reason was not its true reason, but merely a pretext for
discrimination.” Jackson, 814 F.3d at 776 (citation omitted); Kirkland, 657 F. App’x at 584.
2.

Plaintiff’s Prima Facie Case of Discrimination

In this case, there is no dispute that the plaintiff, as an African American, belongs to a
protected group for purposes of a Title VII discrimination claim. Neither party addresses the
treatment of similarly situated employees in the context of discrimination related to the accretion
process, but the defendant asserts both that the plaintiff was not actually subjected to an adverse
employment action and that she was not qualified for the promotion she sought.
An adverse employment action, for purposes of Title VII discrimination claims, is

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defined as a “materially adverse change in the terms and conditions of [plaintiff’s] employment.”
Hollins v. Atl. Co., 188 F.3d 652, 662 (6th Cir. 1999). Examples of adverse employment actions
include firing, failing to promote, reassignment with significantly different responsibilities, a
material loss of benefits, suspensions, and other indices unique to a particular situation. Smith v.
City of Salem, Ohio, 378 F.3d 566, 575–76 (6th Cir. 2004) (citing Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998)).
The defendant argues that the cessation of the accretion process did not qualify as an
adverse employment action, because the process was halted before the plaintiff actually
completed her accretion package by marking up a GS-11 PD, as required by HR. The court is not
persuaded by this distinction. It is clear that the plaintiff sought a job promotion and embarked
on the accretion review process. That process was initially halted by Jimmy Waddle in
anticipation of a mediation of the plaintiff’s EEO charge. It is reasonable to infer from the record
that the plaintiff and her supervisors did not proceed with completing her accretion package
because of Waddle’s directive that the process be put on hold. (Doc. No. 126-7, at 20.) After the
mediation, Waddle initially told Wilmore to reopen the process but not to take any action without
conferring first with Waddle. No other steps were actually taken, and it is clear from the record
that the process was never actually reopened. These facts, viewed in the light most favorable to
the plaintiff for purposes of the defendant’s Motion for Summary Judgment, would allow a jury
to find that the plaintiff was subjected to an adverse employment action when she was denied the
opportunity to have her position reviewed for an accretion of duties promotion.
The defendant also claims that the plaintiff was not qualified for a GS-12 position
because she did not have the DAWIA certification required by the GS-12 PD. The material facts
concerning this issue are disputed. On the one hand, the plaintiff’s direct supervisors clearly felt

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that she was qualified. Moreover, there is some evidence in the record that other engineers were
promoted to GS-12 without DAWIA Level 2 certification and, alternatively, that the DAWIA
certification requirement could be waived or that the plaintiff could have been promoted and then
granted 18 months within which to achieve the certification. (See Doc. No. 138-4, at 2–3; Doc.
No. 126-7, at 38.) On the other hand, the GS-12 PD clearly requires DAWIA Level 2
certification (Doc. No. 115, at 156); and Human Resources Specialist Linda Miller testified that
GS-12 engineers were required to have DAWIA Level 2 certification and that, to be eligible for
an accretion of duties promotion, an employee has to be qualified for the higher position. (Miller
Decl. ¶¶ 6–7, Doc. No. 127.)
In short, there are material factual disputes as to each element of the plaintiff’s prima
facie discrimination claim, whether the facts are viewed in the light most favorable to the
plaintiff or to the defendant.
3.

Plaintiff’s Prima Facie Case of Retaliation

Here, there is no dispute that the plaintiff engaged in protected activity and that Jimmy
Waddle was aware of that fact. Further, there is at least a question of fact as to whether the
cessation of the accretion process was “harmful to the point that [it] could well dissuade a
reasonable worker from making or supporting a charge of discrimination.” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
As for the causation element, Title VII retaliation claims “must be proved according to
traditional principles of but-for causation,” which “requires proof that the unlawful retaliation
would not have occurred in the absence of the alleged wrongful action or actions of the
employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). The plaintiff
clearly has not presented sufficient proof of causation to warrant summary judgment in her favor.

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To defeat the defendant’s Motion for Summary Judgment, however, the plaintiff simply needs to
provide evidence giving rise to a reasonable inference of causation.
In that regard, the court finds that the extremely close temporal proximity between the
plaintiff’s engagement in an unsuccessful mediation of a discrimination claim, a mediation in
which Waddle participated, is sufficient to create a jury question on the element of causation. See
Upshaw v. Ford Motor Co., 576 F.3d 576, 588 (6th Cir. 2009) (“[T]he combination of close
temporal proximity between an employer’s heightened scrutiny and that plaintiff's filing of an
EEOC charge is sufficient to establish the causal nexus needed to establish a prima facie case of
retaliation.” (citation omitted); see also E.E.O.C. v. Avery Dennison Corp., 104 F.3d 858, 861
(6th Cir. 1997) (“[A]t the prima facie stage the burden is minimal, requiring the plaintiff to put
forth some evidence to deduce a causal connection between the retaliatory action and the
protected activity, providing it is credible.” (quoted in Imwalle v. Reliance Med. Products, Inc.,
515 F.3d 531, 550–51 (6th Cir. 2008))).
4.

Defendant’s Legitimate, Non-Discriminatory Reasons For Its Actions

Given that the plaintiff has established at least a question of material fact as to each
element of her prima facie case of discrimination and retaliation, the defendant must articulate a
legitimate non-discriminatory reason for halting the accretion process. Burdine, 450 U.S. at 252.
“This is merely a burden of production, not of persuasion, and it does not involve a credibility
assessment.” Upshaw v. Ford Motor Co., 576 F.3d 576, 585 (6th Cir. 2009).
The defendant has provided legitimate, non-discriminatory reasons for the cessation of
the plaintiff’s accretion of duties package. Jimmy Waddle testified that he made the decision to
terminate the accretion process in part because the plaintiff did not have DAWIA Level 2
certification as required by the GS-12 PD. (Waddle Decl. ¶ 4, Doc. No. 119.) He stated:

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“[e]nsuring engineers had their proper level of DAWIA certification may not have been as
important to my predecessor as the [Chief of Engineering and Construction for the Nashville
Division], but it is important to me.” (Id.)
Second, Waddle explained his belief that the plaintiff was not working on projects
sufficiently large and complex to justify a GS-12 grade. (Id. at 5.) While the GS-12 engineers
working out of the Nashville Resident Office were working on dam restoration projects valued at
tens of millions of dollars, the largest project the plaintiff was assigned to work on was valued at
$4 to $5 million dollars. (Id.) On these projects, “the ramification of errors would be much less
costly in terms of public safety and funds.” (Id.) And third, in his agency testimony, Waddle
stated that his decision that the plaintiff was not qualified was reinforced by his review of the
plaintiff’s performance history and his identification of a number of performance deficiencies.
(Doc. No. 126-7, at 7–8.)
Poor performance and a failure to meet the objective qualifications of the desired job are
legitimate, nondiscriminatory reasons for refusing to promote an employee. Accord Imwalle, 515
F.3d at 546. By articulating such reasons, the defendant has met his initial burden under the
McDonnell Douglas/Burdine framework.
5.

Pretext

A plaintiff may establish that an employer’s stated reason or reasons for its employment
action were pretextual by showing that the reasons (1) had no basis in fact, (2) did not actually
motivate the challenged conduct, or (3) are insufficient to explain the challenged conduct.
Upshaw v. Ford Motor Co., 576 F.3d 576, 586 (6th Cir. 2009) (citing Manzer v. Diamond
Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)). The plaintiff must produce
“sufficient evidence from which the jury could reasonably reject [the defendants’] explanation

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and infer that the defendants intentionally discriminated against [her].” Johnson v. Kroger Co.,
319 F.3d 858, 866 (6th Cir. 2003). “The jury may not reject an employer’s explanation . . . unless
there is a sufficient basis in the evidence for doing so.” Manzer, 29 F.3d at 1083. “If the
employer had an honest belief in the proffered basis for the adverse employment action, and that
belief arose from reasonable reliance on the particularized facts before the employer when it
made the decision, the asserted reason will not be deemed pretextual even if it was erroneous.”
Upshaw, 576 F.3d at 586 (citing Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 559 (6th
Cir. 2009)).
With respect to Waddle’s purported assessment of the plaintiff’s job performance, the
court finds that the plaintiff has pointed to evidence in the record from which a reasonable jury
could conclude that this stated reason is factually false or not sufficient to motivate the adverse
employment decision. The performance review for the plaintiff in the record is positive (see, e.g.,
Doc. No. 115, at 86–87), and the plaintiff’s direct supervisor never expressed unhappiness with
her performance. In fact, both David Loyd and Johnny Wilmore appeared to be supportive of the
accretion review and believed that the plaintiff either was already performing at the GS-12 level
or was capable of doing so. In addition, the defendants have not pointed to any “particularized
facts” upon which Waddle relied to conclude that the plaintiff’s performance had been subpar in
any way.
Likewise, Waddle’s conclusion that the plaintiff was not performing at the GS-12 level is
arguably insufficient to explain the challenged conduct—his unilateral termination of the
accretion process. The entire purpose of the accretion review is to determine whether a particular
position should be accreted up to a higher grade based on the job responsibilities that have
accrued to that position since its original creation. (Accretion SOP, Doc. No. 126-7, at 32.) Loyd

17
and Wilmore, the plaintiff’s direct supervisors, both apparently believed that the job had accreted
and that the plaintiff was performing, at least in part, at the GS-12 level. The plaintiff has
produced evidence from which a reasonable jury could conclude that she was performing all or
most of the duties described on the GS-12 PD and that she was performing her tasks with
substantial autonomy and relatively little supervision. (See, e.g., Loyd Dep. excerpts, Doc. No.
126-3, at 40–44.) Further, as the plaintiff points out, the relative dollar-value of projects to which
USACE engineers are assigned is not part of either the GS-11 or GS-12 PD. The court therefore
finds that the plaintiff has shown that a jury question exists as to whether this proffered reason
was untrue, did not actually motivate the challenged conduct, or was insufficient to explain the
challenged conduct. See Upshaw, 576 F.3d at 586.
Finally, Waddle contends that one of his primary concerns about the plaintiff’s request
for an accretion promotion was that she was not DAWIA certified at either Level 1 or Level 2,
and the GS-12 PD—like the GS-11 PD—specifically required DAWIA Level 2 certification. He
also averred that compliance with this requirement was very important to him as Chief of
Engineering and Construction for the Nashville Division, while acknowledging that the
certification may not have been as important to his predecessors. (See Waddle Agency Decl.,
Doc. No. 126-7, at 8.) However, as set forth above, there are questions of fact as to whether
DAWIA certification was actually required. Moreover, the record supports a conclusion that the
lack of DAWIA certification was not necessarily disqualifying for Waddle. He testified that he
reviewed the plaintiff’s record in anticipation of the mediation meeting. He learned during that
process that the plaintiff had not achieved DAWIA certification. However, even with that
knowledge, he instructed Wilmore to “start working on [the accretion review] again.” (Doc. No.
126-7, at 8.) Thereafter, however, he took it upon himself to continue digging into the plaintiff’s

18
record. A jury could reasonably infer that Waddle was looking for reasons to justify denying the
plaintiff the accretion review and accretion promotion in retaliation for her having brought a
discrimination claim or on the basis of her race. And it was only in the course of this subsequent
review that he allegedly unearthed evidence of the plaintiff’s poor performance record, which, he
claims, “further convinced him” that the plaintiff was not performing at the GS-12 level. (Doc.
No.126-7, at 8.) As set forth above, however, the defendant has not produced documentation to
support Waddle’s conclusions about the plaintiff’s performance record.
In short, the plaintiff has presented evidence from which a jury could conclude that the
reasons proffered by Waddle for his action (1) had no basis in fact, (2) did not actually motivate
the challenged conduct, or (3) are insufficient to explain the challenged conduct. Upshaw, 576
F.3d at 586. Neither the plaintiff nor the defendant is entitled to summary judgment on the
plaintiff’s claims related to the termination of the accretion review process.
III.

First, Third, and Fourth Claims of Discrimination
With respect to the plaintiff’s first, third, and fourth claims of discrimination, the court is

fully persuaded that the magistrate judge’s application of the law to the material, undisputed
facts was correct. The undisputed facts, viewed in the light most favorable to the plaintiff as the
non-moving party vis-à-vis the defendant’s Motion for Summary Judgment, establish that the
defendant is entitled to judgment in his favor, for the reasons stated more fully in the R&R, and
the plaintiff is not entitled to summary judgment in her favor.
To summarize briefly here: first, the plaintiff’s initial temporary assignment to the
Nashville Resident Office from November 10, 2008 until March 29, 2009 was indisputably
temporary and lateral. The plaintiff appears to be insisting that there was an open GS-12-grade

19
equivalent position 6 in the Nashville office and that that was the only position into which she
could have transferred. The undisputed evidence shows, however, that there was no actual open
position in Nashville in November 2008. Instead, the plaintiff remained officially assigned to the
Louisville office and continued to receive the same pay she would have received if she had not
been on a temporary assignment—whether called a detail, transfer, or reassignment.
As set forth above, an “adverse employment action,” for purposes of Title VII, means an
employment action that “results in a ‘materially adverse change in the terms and conditions of
[plaintiff’s] employment.’” Momah v. Dominguez, 239 F. App’x 114, 123 (6th Cir. 2007)
(quoting Hollins v. Atl. Co., 188 F.3d 652, 662 (6th Cir. 1999)). A “materially adverse” change is
“typically characterized ‘by a decrease in wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsibilities, or other indices that might be
unique to a particular situation.’” Id. (quoting Hollins, 188 F.3d at 662). Consequently, “a purely
lateral transfer . . . , which by definition results in no decrease in title, pay or benefits, is not an
adverse employment action for discrimination purposes.” Id. (citing Kocsis v. Multi-Care Mgmt.,
Inc., 97 F.3d 876, 886 (6th Cir. 1996)). The plaintiff’s temporary lateral reassignment,
undertaken at the plaintiff’s request, therefore did not qualify as an adverse employment action.
Likewise, when the plaintiff was officially transferred to the Nashville Resident Office
effective March 29, 2009, this was a lateral assignment. The defendant explained that the

6

At the time the plaintiff transferred to Nashville, the Nashville Division of the Army
Corps of Engineers was not using the General Schedule (“GS”) pay system, but the Louisville
Division was. Nashville, instead, was using the National Security Personnel System (“NSPS”)
pay system, which classified positions by reference to “YD”) pay bands. At some point in 2009,
the NSPS was abolished, and the Nashville Division began converting employees to the GS pay
system. The plaintiff’s pay level was converted to a GS-11 from YD-02 on May 23, 2010. (Doc.
No. 19-3.) For the sake of simplicity, and consistently with the parties’ practice in this litigation,
the court will refer to the NSPS classifications as “GS-11-grade equivalent” or “GS-12-grade
equivalent,” as applicable.

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position was essentially created for the plaintiff and that, if the position had been classified a GS12-grade equivalent, the plaintiff would have had to compete for the position. Although the
plaintiff inquired about whether the position could be made GS-12-equivalent, the undisputed
facts establish that there was no GS-12-equivalent position available—the plaintiff’s opinion to
the contrary notwithstanding. Again, a lateral transfer is not an adverse employment action. In
short, the plaintiff did not actually apply for a promotion and suffer rejection at that time. As the
magistrate judge noted, a prima facie case based upon allegations of a failure to promote
generally requires that there be an actual open position for which the plaintiff applied and was
rejected. See Watson v. City of Cleveland, 202 F. App’x 844, 855 (6th Cir. 2006). Merely
inquiring about a promotion is not sufficient. Id. Because the plaintiff cannot show that her initial
temporary transfer or permanent reassignment to Nashville amounted to anything other than a
lateral transfer, she cannot establish that she suffered an adverse employment action, a necessary
element of her prima facie case of discrimination.
As for the third claim, because the plaintiff has not established an adverse employment
action with regard to her assignment to a GS-11-equivalent position, the court has no need even
to reach the question of whether other similarly situated employees were treated more favorably
than the plaintiff. Regardless, the plaintiff has not established that she received less pay than
similarly situated employees, because the persons with whom she seeks to be compared were
already working at a GS-12-grade equivalent or higher pay grade when the plaintiff began
working in Nashville, had higher certifications than she did, and were performing different types
of work. In other words, they were not similarly situated. Moreover, under the GS system, the
plaintiff was eligible for promotion to GS-12 or equivalent position only if she competed for the
position of her position was accreted to GS-12, as discussed above.

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And finally, the plaintiff has not established that the defendant discriminated against her,
committed fraud, or misused taxpayer funds by allegedly falsifying government documents to
make it appear that a white male employee was performing the GS-12-equivalent duties in the
Nashville Resident Office that the plaintiff was actually performing. This claim is based entirely
on the plaintiff’s speculation.
The court therefore will overrule the plaintiff’s objections and accept in its entirety the
R&R’s ruling on these claims.
IV.

Conclusion
For the reasons set forth herein, the court will overrule in part and grant in part the

plaintiff’s Objections and accept in part and reject in part the R&R. The plaintiff’s Motion for
Summary Judgment (Doc. No. 115) will be denied; the defendant’s Motion for Summary
Judgment (Doc. No. 125) will be granted in part and denied in part. The plaintiff’s claims that
the defendant discriminated against her based upon her race and retaliated against her for filing
an EEO charge when it terminated a pending noncompetitive accretion of duties promotion
initiated by the plaintiff’s supervisor will be permitted to proceed; the plaintiff’s remaining
claims will be dismissed.
An appropriate order is filed herewith.
This 23rd day of March 2017.

ALETA A. TRAUGER
United States District Judge