Brooks v. Kerry

YVONNE M. BROOKS, Plaintiff, v. JOHN F. KERRY, in his official capacity as Secretary of State, Defendant.

Civil Action No. 10-0646 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DATED: March 31, 2014

Judge Beryl A. Howell

MEMORANDUM OPINION

Pending before the Court are two motions filed by the defendant John Kerry, in his official capacity as Secretary of State,¹ to resolve the remaining claim asserted by the plaintiff Yvonne Brooks, who is an African-American woman, that her contract for employment as an administrative officer for the U.S. Department of State ("State Department") was not renewed upon expiration in March 2007, in retaliation for her seeking Equal Employment Opportunity counseling. See Complaint ("Compl.") ¶¶ 41-44 (Count I), ECF No. 1. The plaintiff is seeking damages for this alleged retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981. Id. The Court has already had occasion to consider the factual allegations and claims in this lawsuit and granted summary judgment to the defendant on the plaintiff's claims for race discrimination (Count II), failure to accommodate disability (Count III), and hostile work environment (CountIV). Brooks v. Clinton, 841 F. Supp. 2d 287, 309 (D.D.C. 2012); Order, inter alia, Granting In Part And Denying In Part Defendant's Motion for Judgment on the Pleadings or for Summary Judgment, ECF No. 47. Following a period of almost one and a half years of discovery requested by the parties on the remaining retaliation claim, the Court now considers the defendant's Final Motion to Dismiss or for Summary Judgment "on the last remaining issue in this case, i.e., whether there is sufficient evidence to warrant a jury trial on Plaintiff's retaliation claim concerning her alleged protected activity on November 16, 2006," Def's Final Mot. Dismiss Summ. J. ("Def's Mem."), ECF No. 66, and the defendant's motion to strike as untimely disclosed two documents attached to the plaintiff's opposition motion, see Def's Motion to Strike ("Def's Mot. Strike"), ECF No. 75. For the reasons explained below, both the defendant's motions are granted.

I. BACKGROUND

A. Factual Allegations Relating to Retaliation Claim

The Court's prior Memorandum Opinion set out a detailed recitation of the factual allegations underlying the plaintiff's claims and those will not be repeated here. See Brooks, 841 F. Supp. 2d at 293-96. The following summary is limited to the facts bearing on the two pending motions.

The plaintiff began working, in November 2003, as an Administrative Officer, Personnel Service Contractor to the Management Support Division ("MSD") at the State Department's Bureau of Overseas Buildings Operations ("OBO"). Compl.¶ 11. Her contract with the State Department was a one-year contract, with options for renewal in one-year increments for up to five years. See Def's Stmt, of Mat. Facts Not in Dispute ("Def's SMF"), ¶ 2, ECF No. 66-1; see also Pl.'s Opp'n. Def's Final Mot. Dismiss Summ. J. ("Pl.'s Mot.") Ex. 15 at 7, ECF No. 70-14 (personal services contract stating the period of performance); Pl.'s Resp. Def.'s SMF ¶ 2, ECF No. 70-29 (noting that the five-year contract could be renewed for another five-year period). The plaintiff's second-line supervisor, Roberto Coquis, was the Contract Officer Representative and ratings official for the plaintiff. Def.'s SMF ¶¶ 5-6. In those capacities, he recommended renewal of the plaintiff's contract two years in a row and gave her an "Outstanding" rating in 2005, an "Excellent" rating in 2006, and a "Satisfactory" rating in 2007, just before her contract expired. Id; see also Pl.'s Stmt. Of Add'l Mat. Facts In Dispute ("Pl's SMF") ¶ 1; Pl.'s Resp. Def.'s SMF ¶¶ 5-6 (admitting Coquis' approval of contract renewals but disputing, without supportive citations, that the ratings were "provided" by Coquis because plaintiff "earned the ratings through her hard work"). At his deposition, Coquis stated that he "genuinely liked" the plaintiff, Dep. Roberto Coquis ("Coquis Dep.") at 68:11-12, ECF No. 66-2, "felt [she] was a good employee," and noted that he had "hired her twice before and considered her work valuable." Id. at 162:8-10.

The plaintiff alleges that, in July 2006, her immediate supervisor was replaced by David Spinale, a white male, and Coquis and Spinale "thereafter began a campaign of hostile work environment and disparate treatment" based on her race and sex, and "failed and refused to accommodate her physical disabilities (Keratitis and Chronic Iritus), a military service-connected disability." Compl. ¶¶ 15-16; see also Pl.'s Stmt. Add'l Mat. Facts Dispute ("Pl's SMF") ¶¶ 6-8, ECF No. 70-30.² From the perspective of her supervisors, the plaintiff made errors in herwork product, which was repeatedly late, incomplete or inadequate, and this prompted communications to the plaintiff about improving her work on May 24, 2006, see Def.'s First Mot. Dismiss Summ. J. Ex. 5 at 1-2, ECF No. 19-10 (email from Coquis to the plaintiff, dated May 24, 2006, listing errors plaintiff made in slide deck and noting, "[a]s stated in the past, the above are the details that you should be reviewing/correcting"); Coquis Dep. At 155:22-156:9; Def.'s SMF ¶ 7; Pl.'s Resp. Def.'s SMF ¶ 7 (without contesting errors in her work product, plaintiff notes her "serious eye disability" that affected her ability to work).

In addition, Coquis became concerned about the plaintiff's use of her work computer. For example, on May 24, 2006, the plaintiff sent an email to Coquis and other State Department personnel entitled "10 Truths Black and Hispanic people know but White people won't admit," that Coquis found "appalling because . . . in addition to referring to . . . whites and black, it also referred to Hispanics. And being Hispanic, I took it personally as discriminatory." Coquis Dep. at 157:1 -5; see also Def.'s First Mot. Dismiss Summ. J. Ex. 9, ECF No. 19-14 ("10 Truths" Email from the plaintiff to Coquis and others). Receipt of this email from the plaintiff prompted Coquis to caution her about "sending out offensive or inappropriate e-mails from your State Email.''³ Id. (emphasis in original). The plaintiff does not deny sending the 10 Truths email, but contends that this "offense merited only an oral counseling (minimal offense) and therefore cannot serve as the basis for [plaintiff]'s termination." Pl.'s Resp. Def.'s SMF ¶ 8; see also Coquis Dep. at 168:3-17 (noting that plaintiff never denied sending the "10 Truths" email).

During the summer of 2006, the State Department was undergoing an OBO reorganization and cost savings effort, under the direction of OBO Director General Charles Williams, and this effort entailed closure of SA-18, OBO South, the building where the plaintiff was employed. See Suppl. Decl. Wanda L. Mitchell ("Mitchell Suppl. Decl.") ¶¶ 2, 5, ECF No. 66-5; Def.'s SMF ¶ 9. General Williams "encouraged the managers to scrutinize their operations as he was concerned about the functional efficiency of the organization, which he found to be lacking." See Decl. Wanda L. Mitchell ("Mitchell Decl.") ¶ 4, ECF No. 66-4. As part of the OBO's cost-saving endeavor, OBO's Director of Human Resources Wanda L. Mitchell discussed the closing of the SA-18 building with Coquis "in about the summer or fall of 2006." Mitchell Suppl. Decl. ¶ 5; Def.'s SMF ¶ 10. Mitchell advised Coquis that "it would be cost efficient" and "the best approach from a [Human Resources ("HR")] standpoint . . . to downsize staff [in SA-18] as employees left their positions." Mitchell Suppl. Decl. ¶ 5. The plaintiff disputes that OBO was downsizing and asserts that more employees were hired after she was terminated. See Pl.'s Resp. Def.'s SMF ¶¶ 9, 24. As support for this assertion, the plaintiff relies on the declaration of Dwayne Butler, which is one of the documents that the defendant seeks to strike. See infra Part III.A This declaration, by a non-managerial physical security officer, states that "three or four new employees" were hired after the plaintiff was let go, but does not state what positions they were hired for, and does not refute Mitchell's statements about the OBO Director's strategy of downsizing SA-18 through attrition, and ultimately ceasing operations in 2009. Mitchell Suppl. Decl. ¶ 6.

Simultaneously, in the summer or fall of 2006, the Information Technology Department at the OBO ("IT") undertook an initiative to purge "inappropriate images" from the OBO computer system by performing sweeps of employees' computers. Id. ¶ 7; Def.'s SMF ¶ 12;Pl.'s Resp. Def.'s SMF ¶ 12 (disputing without supportive citations that a sweep uncovered the image attributed to plaintiff). At the time the effort was initiated, it was determined that "counseling and/or letters of warning" would be issued to employees if inappropriate images were found on their computer, unless "there were egregious violations of Department policies." Mitchell Suppl. Decl. ¶ 7. In early November 2006, this department-wide sweep uncovered an inappropriate image with the file name "Spiderman.jpg" on the plaintiff's computer system as well as evidence that the image had been accessed a number of times using the plaintiff's log-in credentials. See Decl. Robert E. Clarke ("Clarke Decl.") at 6, ECF No. 66-7; Coquis Dep. at 57:3-22; 58:16-22; Mitchell Decl. Ex. 4 (letter of warning, dated November 27, 2006, from Coquis to the plaintiff regarding the "Spiderman.jpg" image). The IT Director Song Keller brought the image to Coquis' attention when it was retrieved, and Mitchell recommended that Coquis provide a letter of warning to the plaintiff. Coquis Dep. at 57:9-16; Pl.'s Resp. Def.'s SMF ¶ 13 (disputing without supportive citation that IT brought the email to Coquis' attention). On November 9, 2006, Coquis forwarded Mitchell a draft of the letter of warning for her review and comment before Coquis sent it to the...