Brown v. Jewell

134 F.Supp.3d 170

Jeffrey Brown, Plaintiff,

v.Sally Jewell, Secretary, U.S. Department of Interior, Defendant.

Civil Action No. 13–cv–295 (TSC)

United States District Court, District of Columbia.

Signed September 29, 2015

David A. Branch, Law Office of David Branch & Associates, PLLC, Washington, DC, for Plaintiff.

Claire M. Whitaker, U.S. Attorney's Office for the District of Columbia, Rafique O. Anderson, United States Capitol Police, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, District Judge

Plaintiff Jeffrey Brown alleges race, sex, and age discrimination, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. § 633a (the "ADEA"). Brown claims that his supervisors at the United States Department of Interior ("DOI") denied his request to telework, denied his request to travel, and forced him to retire by transferring most of his job responsibilities to a different office. (Compl. ¶¶ 13, 17, 21).

Defendant moves to dismiss the race and sex claims for failure to exhaust administrative remedies, and to dismiss any claims predicated on the alleged forced retirement for failure to timely appeal. (Def.'s Mem. Supp. Mot. Summ. J. & Dismiss ("Def. Mot.") at 2). Defendant also moves, in the alternative, for summary judgment on a variety of grounds, including that Brown did not suffer any adverse employment action, has not shown an inference of discrimination, has not demonstrated that DOI's proffered non-discriminatory reasons for its actions were pretextual, and has not shown causation for his retaliation claim. (Id. at 2–3).

Upon consideration of the Defendant's motion, the response and the reply thereto, as well as the supplemental briefing ordered by the court on the question of the court's subject-matter jurisdiction over this case, and for the reasons set forth below, each of Brown's claims are dismissed. The forced retirement claims are dismissed for lack of subject-matter jurisdiction, and Defendant's motion is granted as to the remaining claims regarding the denial of his requests to telework and to travel.

I. BACKGROUND

Jeffrey Brown is an African–American male who was approximately 55 years old at the times relevant to the Complaint. (Compl. ¶ 6). He held various positions at DOI throughout his career. (Pl.'s Opp'n at 3–5). At the time of the alleged discrimination, he was a GS–14 Information Technology Specialist in the Office of the Chief Information Officer, Division of IRM Governance, Bureau of Land Management, Department of Interior. (Compl. ¶ 6).

a. Telework Denial and Travel Delays

In September 2008, Brown requested that he be permitted to work remotely for two days per week to reduce his commute. (Def.'s Statement of Facts ¶ 10). According to Brown, he could perform 80–90% of his work duties from home, and he requested telework because he primarily supervised employees on the West Coast, meaning that he often had to stay at work late. (Compl. ¶ 8). Laura Bell, Brown's first-line supervisor, initially approved his request. (Def.'s Statement of Facts ¶ 11). However, the next day Bell informed Brown that her supervisor (and Brown's second-line supervisor), Scott MacPherson, had overruled her approval and denied the telework request because Brown had not provided a medical justification. (Id. at ¶ 12). After discussions between Brown and MacPherson, MacPherson indicated that he would only approve the request for either a short duration or for a valid medical reason. (Id. at ¶ 13). Brown met neither criterion, so his request was denied. (Id. ).

A day after MacPherson's denial, Brown contacted the Department of Interior's Equal Employment Opportunity ("EEO") Office and alleged that he was discriminated against based on race and age when MacPherson denied his telework request. (Id. at ¶ 14; Compl. ¶ 16). His complaint was assigned agency complaint number BLM–09–004. (Def.'s Mot. Ex. A).

While his telework complaint was pending, Brown alleges that he experienced additional incidents of discrimination when MacPherson denied two requests Brown made to travel to DOI field offices in Oregon and Colorado. (Compl. ¶ 17). In October 2008, Brown received an email from an IT manager in DOI's Portland, Oregon field office inviting Brown to travel to Portland to review their configuration management processes. (Pl.'s Opp'n Ex. B at 57). Brown submitted a travel request to MacPherson, but MacPherson allegedly never responded. (Pl.'s Opp'n at 9). Brown claims that MacPherson effectively denied the request (id. ); Defendant claims the trip was merely delayed because of reorganization in the Portland field office. (Def.'s Mot. at 2–3). Either way, it is undisputed that Brown eventually traveled to Portland in July 2009. (Def.'s Statement of Facts ¶ 16; Compl. ¶ 18).

Brown also received an invitation to travel to DOI's Denver, Colorado field office in February 2009. (Compl. ¶ 17). Once again, Brown submitted a travel request to MacPherson, which MacPherson allegedly ignored, and Brown's travel to Denver was delayed until May 2009. (Def.'s Statement of Facts ¶ 16).

While the record is unclear, it appears that at some point Brown amended the aforementioned telework complaint to include allegations related to the travel delays (the "Telework/Travel Complaint"). (Id. ¶ 15). The EEOC eventually ruled that Brown failed to "provide sufficient evidence to raise an inference of discrimination" with respect to the telework denial and travel delays, and the Telework/Travel Complaint was dismissed on the merits. (Id. ¶ 18).

b. Forced Retirement

The series of events which resulted in Brown's alleged forced retirement all transpired after Paulette Sanford–Brown was hired as branch chief in June 2009. During her first meeting as Brown's supervisor, Sanford–Brown allegedly stated in front of Brown's peers that the front office was disappointed in Brown's performance and that she had grave concerns about his programs. (Pl. Opp'n at 9; Pl. Opp'n Ex. C. (the "Thomas Decl.") at 105). Michelle Thomas, another manager in Brown's office, also noted that Sanford–Brown was annoyed with her during the same meeting and made direct and potentially embarrassing remarks to her in front of other managers. (Thomas Decl. at 106). After the meeting, Brown e-mailed MacPherson about what Sanford–Brown had said, and MacPherson indicated that Brown should discuss matters with Sanford–Brown directly. (Pl.'s Opp'n at 9).

Brown claims that later that summer, Sanford–Brown "blindsided" him by sending an e-mail to the Configuration Management team (while Brown was out of the office at a funeral) "notifying them that Brown would be relieved of his operational duties and those duties would be transferred to the National Operations Center in Denver, Colorado." (Compl. ¶ 21). That e-mail, dated August 21, 2009, read as follows:

I wanted to start the dialogue to eliminate the confusion that still exists around roles and responsibilities within the National Configuration Management Program. With the implementation of the MFE initiative, the operational component of NCM transferred to the NOC. As such, WO released its contract resources and therefore, we no longer have the resources to assist us with the document review and final release process.

Our role has now transitioned to updating and revising existing policy to incorporate ITIL standards and to access the CM program to ensure that proper controls are in place ...

Clearly, we still have some things to work out, but I guarantee will get there. I look forward to working with each of you to ensure a smooth transition of responsibilities.

(Pl. Opp'n Ex. C at 108–09).

Brown alleges that this email was tantamount to eliminating his position, as the duties to be transferred accounted for 80–90% of his job responsibilities. (Pl.'s Opp'n at 11). According to Defendant, the operational component of Brown's job was transferred pursuant to the agency-wide Managing for Excellence initiative, which was designed to consolidate all agency operational functions at the National Operations Center ("NOC") in Denver and consolidate all policy functions in Washington, D.C. (Def.'s Mot. at 2). Defendant alleges that Sanford–Brown believed that Brown's operational responsibilities should have been transferred to the NOC long before she became his supervisor, and that the transfer should not have been a surprise to Brown. (Pl. Opp'n Ex. E at 126–32). In any event, Brown alleges that as a result of the transfer, he was forced to retire. (Compl. ¶ 21).

Brown submitted a second complaint to DOI's EEO Office with respect to his forced retirement. (Def.'s Statement of Facts ¶ 17). His initial contact with an EEO official occurred on September 3, 2009. (Pl.'s Opp'n Ex. C at 66). In the informal counseling process, the EEO Office identified Brown's complaint as being based on race, sex, and age discrimination, as well as reprisal for previously filing the Telework/Travel Complaint. (Pl. Opp'n Ex. C at 66, 72, 80). After the informal counseling process failed, on November 9, 2009, Brown filed a formal complaint with the agency (the "Forced Retirement Complaint"). (Id. at 65). In the Forced Retirement Complaint, Brown checked the boxes for "age" and "reprisal" under the section titled "Basis(es) for believing you were discriminated against: (Check one or more, and provide ... specific information)." (Id. ) Brown did not check the boxes for race or sex. (Id. ). The Forced Retirement Complaint was assigned agency complaint number BLM–09–0472. (Id. ).

On December 14, 2010, DOI issued its Final Agency Decision (the "Decision") with respect to the Forced Retirement Complaint. (Pl's Opp'n Ex. F). The agency found that Brown "did not prove that management's testimony was unworthy of belief" and "did not produce any evidence to demonstrate that his age or prior EEO activity were determinative factors in the Agency's decision to transfer...