Bean v. Dist. of Columbia

264 F.Supp.3d 242

Violena BEAN, Plaintiff,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 14–1723 (ABJ)

United States District Court, District of Columbia.

Signed September 12, 2017

Lisa Alexis Jones, Lisa Alexis Jones, PLLC, New York, NY, for Plaintiff.

Alex Karpinski, Jonathan Hale Pittman, Tram T. Pham, Office of Attorney General/DC, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Violena Bean, a former clerical assistant in the Public Information Office ("PIO") of the District of Columbia Metropolitan Police Department ("MPD"), has brought this action against the District of Columbia. The complaint alleges that defendant discriminated and retaliated against her in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. , and that ultimately, plaintiff was constructively terminated as a result of a series of disciplinary actions taken after she engaged in protected activity. Compl. [Dkt. # 1]. Defendant has moved for summary judgment on all counts, arguing that "no reasonable juror could find that [defendant] discriminated against [p]laintiff because of her age, retaliated against her because of her protected activity, or that [defendant's] conduct resulted in [plaintiff's] constructive termination." Def.'s Mot. for Summ. J. [Dkt. #16] ("Def.'s Mot."); Def.'s Mem. in Supp. of Def.'s Mot. [Dkt. # 16] ("Def.'s Mem.") at 1. Plaintiff opposed the motion, Pl.'s Opp. to Def.'s Mot. [Dkt. # 20] ("Pl.'s Opp."), and defendant replied. Def.'s Reply to Pl.'s Opp. [Dkt. #25] ("Def.'s Reply").

The Court finds that plaintiff has produced sufficient direct evidence of discrimination—namely, discriminatory statements made by plaintiff's direct supervisor—to entitle her to a jury trial on Count I. However, plaintiff has failed to produce sufficient evidence for a reasonable juror to conclude either that plaintiff was retaliated against because of her protected activity, or that she was constructively terminated. Therefore, the Court will grant defendant's motion for summary judgment on plaintiff's retaliation claim (Count II) and constructive termination claim (Count III), but it will deny the motion with respect to her discrimination claim (Count I).

BACKGROUND¹

The facts are not in dispute except where noted.² Plaintiff Violena Bean began working for MPD as a Public Information Office clerical assistant in 2004. Def.'s SOF ¶ 1; Pl.'s SOF ¶ 1. Plaintiff's primary duty was to compile newspaper clippings from various news sources on matters of interest to MPD. Def.'s SOF ¶ 2; Pl.'s SOF ¶ 2.

In 2010, Gwendolyn Crump became the MPD Director of Communications and plaintiff's direct supervisor. Pl.'s Counter SOF ¶ 7; Def.'s Resp. SOF ¶ 7. Plaintiff was sixty-two years old at the time. Pl.'s Counter SOF ¶ 9; Def.'s Resp. SOF ¶ 9.

Plaintiff's relationship with Crump was strained from the beginning. In February 2011, plaintiff was cited twice by Crump: once for insubordination, and once for purportedly failing to submit complete news clippings. Pl.'s Counter SOF ¶ 22; Def.'s Resp. SOF ¶ 22. On February 23, 2011, plaintiff was accused of speaking to Crump in a "loud, hostile, and unacceptable" manner after Crump asked her if she had reviewed an email containing her 2010 performance evaluation. Ex. J to Pl.'s Opp. [Dkt. # 20–1] ("Ex. J") at 1–2. One day later, plaintiff was cited for failing to include several articles in her morning clippings as directed by a PIO officer. Ex. L to Pl.'s Opp. [Dkt. # 20–1] ("Ex. L") at 1–3. Investigations into both incidents sustained the allegations. Pl.'s Counter SOF ¶¶ 27–28; Def.'s Resp. SOF ¶¶ 27–28.³

The Fifteen–Day Suspension

On October 24, 2012, plaintiff answered a phone call from a reporter who had contacted the PIO to speak to an officer about an important news event. Pl.'s Counter SOF ¶ 32; Def.'s Resp. SOF ¶ 32. She did not make a written record of the reporter's call, and she was cited for failing to do so. Pl.'s Counter SOF ¶ 33; Def.'s Resp. SOF ¶ 33.⁴ Subsequently, on February 1, 2013, plaintiff received a Proposed Notice of Adverse Action stating that she was to be suspended for fifteen days without pay as a result of the October incident. Pl.'s Counter SOF ¶ 38; Def.'s Resp. SOF ¶ 38; Ex. 4 to Def.'s Mot. [Dkt. #16–1] ("Ex. 4") at 1.

On February 11, 2013, in response to the proposed fifteen-day suspension, plaintiff sought EEO counseling and, on February 13, 2013, she filed a complaint with the District of Columbia Office of Human Rights ("OHR") alleging that she had been discriminated against on the basis of her age in connection with the fifteen-day suspension. Pl.'s Counter SOF ¶ 41; Def.'s Resp. SOF ¶ 41. In a written statement completed as part of the EEO counseling and eventual OHR complaint, plaintiff alleged that Crump had said: "The officers are faster than you, you need to work, work, work"; and "You've been here so long when are you going to retire?" Ex. B to Pl.'s Opp. [Dkt. # 20–1] ("OHR Complaint").

On March 5, 2013, plaintiff received a Notice of Final Decision to impose the fifteen-day suspension and was advised of her right to appeal the suspension with the Office of Employee Appeals ("OEA"). Pl.'s Counter SOF ¶ 43; Def.'s Resp. SOF ¶ 43; Ex. 4. She began serving her fifteen-day suspension on March 18, 2013, Def.'s SOF ¶ 4; Pl.'s SOF ¶ 4, and she filed an OEA appeal contesting it on April 4, 2013. Pl.'s Counter SOF ¶ 46; Def.'s Resp. SOF ¶ 46.

On August 16, 2013, Crump exchanged emails with Matthew Miranda, a Human Resources Special Assistant, regarding MPD's response to plaintiff's OEA appeal, Pl.'s Counter SOF ¶ 65; Def.'s Resp. SOF ¶ 65, and defendant filed its response on August 20, 2013. Pl.'s Counter SOF ¶ 66; Def.'s Resp. SOF ¶ 66. On November 5, 2013, Crump was served with a Notice of a Deposition in plaintiff's OEA appeal. Pl.'s Counter SOF ¶ 70; Def.'s Resp. SOF ¶ 70. And on December 9, 2013, defendant produced responses to plaintiff's discovery requests in this matter. Pl.'s Counter SOF ¶ 84; Def.'s Resp. SOF ¶ 84.

The Thirty–Five–Day Suspension

On April 12, 2013, Crump assigned plaintiff to gather newspaper articles for the Chief of Police and the Command Staff. Ex. 3 to Def.'s Mot. [Dkt. # 16–1] ("Ex. 3") at 2. However, plaintiff failed to complete the assignment, and she was cited a few days later for "neglect of duty, insubordination and incompetence." Pl.'s Counter SOF ¶ 49; Def.'s Resp. SOF ¶ 49; see also Def.'s SOF ¶ 6; Pl.'s SOF ¶ 6; Ex. 3 at 2. While plaintiff does not dispute that she failed to complete the assignment in question, she maintains that her inability to complete the assignment was the result of computer problems. Pl.'s Counter SOF ¶ 47; Bean Dep. at 67:11–69:10.

On June 27, 2013, plaintiff was served with a Proposed Notice of Adverse Action stating that she was to be suspended for thirty-five days as a result of the April incident. Ex. 6 to Def.'s Mot. [Dkt. # 16–1] ("Ex. 6") at 1. The decision to suspend plaintiff was upheld on July 11, 2013, and she began her suspension on August 12, 2013. Pl.'s Counter SOF ¶¶ 58, 61; Def.'s Resp. SOF ¶¶ 58, 61; Def.'s SOF ¶ 6; Pl.'s SOF ¶ 6. On September 18, 2013, plaintiff returned to work. Pl.'s Counter SOF ¶ 68; Def.'s Resp. SOF ¶ 68.

Plaintiff's Formal and Informal Complaints

On April 30, 2013, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") against MPD, alleging that she had been subject to unlawful age discrimination and retaliation in connection with previous suspensions that had been imposed upon her as well as other harassing treatment in the workplace. Pl.'s Counter SOF ¶ 50; Def.'s Resp. SOF ¶ 50; Ex. 9 to Def.'s Mot. [Dkt. # 16–1]. On July 22, 2013, Crump was interviewed regarding that EEOC complaint. Pl.'s Counter SOF ¶ 62; Def.'s Resp. SOF ¶ 62.

Also, the parties do not dispute that plaintiff had previously filed an internal EEO complaint, and that during the week of April 16, 2012, the MPD EEO office interviewed her with regard to that complaint. Pl.'s Counter SOF ¶ 26; Def.'s Resp. SOF ¶ 26. Neither party provides any further information about the substance of that complaint.

In addition, at some point in time while Crump was her supervisor, plaintiff complained to Crump that she felt "harassed," prompting a meeting that included plaintiff, Crump, and Assistant Chief Alfred Durham. See Pl.'s Counter SOF ¶¶ 23, 25; Def.'s Resp. SOF ¶¶ 23, 25. Again, neither party provides any other details.

The November 20, 2013 Supervisory Support Program Meeting

On May 24, 2013, the Internal Affairs Bureau ("IAB") generated an automatic referral to place plaintiff in the Supervisory Support Program ("SSP") as a result of the October 2012 and April 2013 citations. Pl.'s Counter SOF ¶ 51; Def.'s Resp. SOF ¶ 51. SSP is an intervention program similar to placing an employee on a performance improvement plan. Pl.'s Counter SOF ¶ 52; Def.'s Resp. SOF ¶ 52.

On June 11, 2013, Crump received notice that plaintiff had reached the SSP threshold, and she was directed to develop an SSP plan for plaintiff by August 30, 2013.

Pl.'s Counter SOF ¶ 56; Def.'s Resp. SOF ¶ 56.⁵ However, Crump did not complete or submit the required SSP Intervention Plan by August 30, 2013 as required, and she failed to do so over the next few months despite receiving notices that the plan was overdue. Pl.'s Counter SOF ¶¶ 67, 69; Def.'s Resp. SOF ¶¶ 67, 69.⁶ Finally, on November 7, 2013, Meagher sent an email to Crump with a subject line reading, "Hello please call me when you can. We need to do Ms. Bean's SSP." Ex. AA to Pl.'s Opp. [Dkt. # 20–1] ("Ex. AA").⁷

On November 20, 2013, Meagher informed plaintiff by email that she was being assessed for an SSP plan and scheduled a meeting with her for the same day at 1:30 P.M.—a little more than an hour after the email was sent. Pl.'s Counter SOF ¶ 72; Def.'s Resp. SOF ¶ 72. Plaintiff arrived at the conference room where the meeting was to be held, but when she realized that...