Broderick v. Donaldson, Civil Action No. 02-0159 (AK).

338 F.Supp.2d 30

Catherine A. BRODERICK, Plaintiff, v. William B. DONALDSON, Chairman, Securities and Exchange Commission, Defendant.

Civil Action No. 02-0159 (AK).

United States District Court, District of Columbia.

September 20, 2004.

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David H. Shapiro, Ellen Kyriacou Renaud, Richard L. Swick, Swick & Shapiro, P.C., Washington, DC, for Plaintiff.

Peter David Blumberg, Washington, DC, for Defendant.

MEMORANDUM ORDER

KAY, United States Magistrate Judge.

Pending before the Court is Defendant's Motion for Summary Judgement ("Motion") [27], Plaintiff's Opposition to Defendant's Motion for Summary Judgement ("Opposition") [35], and Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgement ("Reply") [40]. Upon consideration of the pleadings, the entire record herein, and Oral Argument held on September 9, 2004, Defendant's Motion for Summary Judgement should be and hereby is GRANTED.

I. BACKGROUND

A. Plaintiff's Employment History & First Title VII Lawsuit

Catherine Broderick is a white female employed by the Securities and Exchange Commission ("SEC") since 1979, working first in the Washington Regional Office and next in the Division of Corporate Finance. In 1986, Broderick filed a lawsuit against the SEC claiming that her rights under Title VII to the Civil Rights Act of 1964 were being violated. Broderick v. Ruder, 685 F.Supp. 1269 (D.D.C.1988). Specifically, Broderick made allegations of a sexually hostile work environment and retaliation. Although claims made under Title VII are commonplace in the Federal Court system, Broderick's case against the SEC received special attention from the national media. Although people who make claims similar to those made by Broderick are oftentimes unable and unwilling to share these experiences with a wide audience, Broderick was not reticent in this regard, and appeared often to share her story.¹

In 1988, the Trial Court conducted a bench trial and ruled in favor of Plaintiff. Id. The parties ultimately negotiated a proposed order and in June 1988, Judge Pratt issued a Joint Order which set forth the following:

. An award of back pay, based upon salary increases to which she would have been entitled had she been promoted on the dates listed above, with interest as provided by law.

. Removal from her personnel file of any remaining negative performance evaluations.

. A Transfer to a position in the Division of Enforcement or the Office of the General Counsel at the agreed-upon GM-15 level, with appropriate work assignments, on-the-job-training, evaluation standards, and increased responsibilities over time as she acquires the training and experience and as she demonstrates the capabilities to assume such responsibilities. (Footnote: The parties have agreed that the commission will have thirty days within which to prepare and present to the plaintiff for her approval two sets of performance standards relating to each of the two positions mentioned above. The first set of performance standards for each job will set forth the initial duties and responsibilities assigned to the plaintiff in light of her current training and experience. The second set of performance standards for each job will set forth the full duties and responsibilities she will be expected to assume after she acquires the training and experience and demonstrates the proficiency necessary to assume those duties and responsibilities.)

. The Commission agrees to pay for a maximum of 208 psychiatric counseling sessions over a two year period to the extent not covered by the plaintiff's insurance.

. In the event that plaintiff decides to seek employment outside the Commission, in order to assist her in obtaining outside employment, will pay the reasonable costs of out-placement services if those services take place within two years from the date of this order.

Second, the Commission was permanently enjoined from

. ... retaliation against Ms. Broderick in any form for exercising her rights pursuant to Title VII of the Civil Rights Act of 1964

. .... creating or condoning the creation of a sexually hostile work environment ...

Finally, the Commission was required to take reasonable steps to advise its employees that sexually harassing other Commission employees is prohibited. Broderick v. Ruder, 46 Empl. Prac. Dec. P 38,042, 1988 WL 66210 (D.D.C. June 16, 1988).

B. Actions Pursuant to the Joint Order

In prompt response to the Joint Order, the SEC transferred Broderick to the Appellate Division of the Office of General Counsel, promoted her to a GM-15 level, and gave her the job title of Counsel to the Assistant General Counsel. Although job positions at the GM-15 level within the SEC typically beget supervisory roles, functionally Broderick was a staff attorney (the entry level position for an attorney), preparing initial drafts of briefs, and on some occasions, reviewed briefs, yet never acting as a supervisor in the federal personnel sense of the word.

In 1995, and all subsequent years since, Broderick has received an "Outstanding" overall performance appraisal and has received an "Outstanding" (highest score) performance appraisal in all categories except for one titled `Legal Analysis,' in which she received an "Exceeds Fully Successful" (second highest score) (Opposition at 9.) Additionally, and consistent with her job appraisal, on numerous occasions Broderick received praise from her supervisors regarding her work. (Id. at 9-13.) Despite receiving these high ratings, Broderick, in response to her 2000 job appraisal, sent a memorandum indicating her disapproval of, and "object[ions] to the legal analysis rating." (Id. at 14-15.) Although the "Exceeds Fully Successful" rating is given when "job performance consistently exceeds that expected" (Standard for Executive Excellence, Office of Personnel Management, available at www.results.gov/pdfs/opm — execstandard.pdf; See also, A Handbook for Measuring Employee Performance, Office of Personnel Management, available at http:// www.opm.gov/perform/wppdf/2002/handbook.pdf), the Plaintiff nonetheless charged in her memorandum that "none of her supervisors `had brought any failure to apply legal analysis correctly to [her] attention during this rating period.'" (Id. at 15.) (correction in original)

In November and December of 1996, Broderick sent memoranda to Richard Walker, then the SEC General Counsel, Jacob Stillman, the Solicitor of the Appellate Group, and Susan Wyderko, Assistant General Counsel, stating that she has been "wrongly accused" of not reading the record pertaining to specific cases on which she had been working. (November 25 and December 24, 1996 Memoranda (Def.Ex.8); Broderick Invest. Tr. at 39-40; Broderick Tr. at 117-118.) Again in June 1998, Broderick sent a memorandum to Jacob Stillman the Solicitor of the Appellate Group, copied to the Equal Employment Opportunity ("EEO") office, complaining that she was "still being treated as a staff attorney" and requesting a "change in job title and position commensurate with my seniority, experience and outstanding performance appraisals." (Broderick Invest. Tr. (Oct. 25, 2000) at 15; Broderick Tr. at 117; June 12, 1998 Memorandum (Motion Ex. 9[29]).) Broderick stated that she is "already being paid at the [appropriate salary] level by virtue of my lawsuit against the Commission." (Id.) In response to her memorandum, agency officials met with Broderick to discuss her concerns and gave her additional duties (i.e., editing the Appellate Group's monthly summary of litigation events). (Stillman Invest. Tr. at 65.)

In 1996 and 1998 Broderick unsuccessfully applied for the position of Assistant General Counsel, and in 1999 Broderick unsuccessfully applied to become Senior Litigation Counsel, a supervisory position within the Agency, and was one of six applicants for the position. (Compl. at ¶ 7(e)-(g).) Two other applicants, Hope Augustini and Rada Potts were selected for the Senior Litigation Counsel positions. (Opposition at 16-18.)

On July 13, 2000, Broderick's supervisor, Katharine Gresham, approached Broderick to discuss Broderick's uncivil behavior toward Gresham. In response, Broderick became hostile, and made a comment about Gresham's mother and suggested to her that she seek psychological assistance. (July 13, 2000 Memorandum (Motion Ex. 4); Complaint ¶ 7(n); Pl. Int Resp., No. 11 (Motion Ex. 6).) Following this exchange Gresham spoke with Stillman and an Associate General Counsel about the most appropriate way to respond to Broderick's unprofessional conduct and the decision was made to take the lowest form of personnel action possible by sending her a disciplinary memorandum outlining the incident, admonishing her for her statements, and advising her that her conduct was inconsistent with her performance standards. Although letters of this kind are typically placed in an employees personnel file, Broderick's supervisors decided that the memorandum would not be added to her personnel file.

C. Procedural History of the Pending case

In January 2002, Broderick filed a complaint in this case claiming that she had been subjected to a hostile work environment, including failure to provide her with supervisory duties and responsibilities commensurate with her experience, failure to promote her on three separate occasions, failure to improve her rating on performance evaluations failure to provide her with assignments, bonuses and awards, and giving her a disciplinary memorandum regarding her conduct. (Complaint at ¶ 7.) The Plaintiff's claims are predicated on violations of Title VII to the Civil Rights Act of 1964 and violations of the Joint Order filed in the previous Title VII case brought by the Plaintiff against the SEC. Specifically, the Plaintiff claims that she suffered and continues to suffer economic losses from lost pay and benefits, lost career benefits and lost career...