Gordon v. Beers

972 F.Supp.2d 28

Jacqueline T. GORDON, Plaintiff,

v.Rand BEERS, Defendant.

Civil Action No. 09–2211 (JEB).

United States District Court, District of Columbia.

Sept. 23, 2013.

Jacqueline T. Gordon, Washington, DC, pro se.

Leicester B. Stovell, Leicester Bryce Stovell, Esq., Washington, DC, for Plaintiff.

Claire M. Whitaker, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

Plaintiff Jacqueline Gordon, an employee of the Federal Emergency Management Agency, filed one discrimination complaint with the Equal Employment Opportunity Commission in September 2004 and another in May 2007. Both times, the Commission rejected her claims. In 2009, she filed this employment-discrimination suit. Suing under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Gordon alleged that her EEOC complaints had triggered numerous incidents of retaliatory conduct, as well as behavior among her coworkers that created a hostile work environment. The Court previously dismissed most of Plaintiff's claims on the ground that they were untimely. See Gordon v. Napolitano (Gordon I), 786 F.Supp.2d 82, 86–87 (D.D.C.2001). The Court, however, did decide that it would be premature to dismiss the three remaining claims before discovery. Id. Discovery now having closed, Defendant Rand Beers, Acting Secretary of the Department of Homeland Security, moves to dismiss or, in the alternative, for summary judgment on these three surviving claims. Concluding that Plaintiff's evidence is insufficient to create a material dispute of fact, the Court will treat Defendant's filing as a motion for summary judgment and will grant it.

I. Background

The facts in this case are largely set forth in Gordon I, 786 F.Supp.2d at 83. To briefly recap, and taking the facts in the light most favorable to Plaintiff, Gordon, a black woman over 40 years of age, was at all relevant times employed by the Federal Emergency Management Agency, a component of the Department of Homeland Security. See Def. First Mot. To Dismiss, Exh. 15 (First Administrative Deposition of Jacqueline Gordon) at 6:6–6:22. In September 2004, Gordon filed a complaint with the EEOC alleging discrimination based on gender, race, color, and age, as well as reprisal for prior protected activity. See Am. Compl., ¶ 25. The EEOC found in favor of the Agency. See First Mot., Exh. 9 (First EEOC Decision) at 13.

Plaintiff believes that her EEOC complaint triggered retaliatory conduct, as well as treatment by her colleagues and supervisors that constituted a hostile work environment. This belief prompted Gordon to contact the EEOC again, in January of 2007, and to file a second complaint before that body in May of the same year. See First Mot., Exh. 17 (Second EEOC Decision) at 2. Reaction to this later complaint, she alleges, also contributed to her hostile work environment. The EEOC again resolved the matter in favor of DHS, see id. at 15, and Plaintiff received a Notice of Right To Sue. See Gordon I, 786 F.Supp.2d at 83. She then brought an action against the Agency in this Court in November 2009, setting forth one count of retaliation and one count alleging a hostile work environment. See Am. Compl., ¶¶ 34–41. The Complaint alleged a large number of incidents of retaliation, see id., ¶¶ 7–21, 36–37, and it claimed that those incidents, when taken together, also created a hostile work environment. See id., ¶¶ 39–41.

Then–Secretary Janet Napolitano sought to dismiss the suit in its entirety under Rule 12(b) of the Federal Rules of Civil Procedure, claiming that Plaintiff had failed to exhaust her administrative remedies or state a claim upon which relief could be granted. See First Mot. at 1. In the alternative, the Secretary argued, the suit should be decided in her favor on summary judgment under Rule 56. Id. After determining that “each incident was of a different kind from the others” and occurred “over the course of several years,” Gordon I, 786 F.Supp.2d at 84, this Court dismissed almost all of Plaintiff's claimed incidents of retaliation for lack of exhaustion. Id. at 87. The Court deemed it premature, however, to dismiss the two remaining retaliation incidents and the hostile-work-environment claim prior to discovery. Id. at 86–87. Those surviving claims allege: (1) retaliation in connection with an overtime dispute that occurred on December 19, 2006; (2) mistreatment by a FEMA contractor, Eddie Cherriss, on February 6, 2007; and (3) a litany of incidents of harassment that allegedly constitute a hostile work environment. Id. at 85 (citing Am. Compl., ¶¶ 16(b), 16(e), 17).¹

With discovery now complete, Defendant has renewed his Motion To Dismiss or, in the Alternative, for Summary Judgment on the remaining claims. The Court is unsure why Defendant has labeled his pleading a Motion To Dismiss; as the Motion draws on evidence outside of the Complaint and associated documents, the Court must treat it solely as a Motion for Summary Judgment. SeeFed.R.Civ.P. 10(c).

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505;Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505;Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

When a motion for summary judgment is under consideration, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505;see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C.Cir.2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C.Cir.1998) ( en banc ). On a motion for summary judgment, the Court must “eschew making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007).

The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant is required to provide evidence that would permit a reasonable jury to find in her favor. Laningham v. Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the nonmovant's evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. Liberty Lobby, 477 U.S. at 249–50, 106 S.Ct. 2505.

III. Analysis

Although the Court has already dismissed most of Gordon's claims, pieces of two counts remain from her Amended Complaint. Count I alleges retaliation, and Count II claims that Gordon was subjected to a hostile work environment. See Am. Compl., ¶¶ 34–41.

A. Retaliation

Title VII prohibits an employer from retaliating against an employee “because [the employee] has opposed any practice made an unlawful employment practice” under the statute. 42 U.S.C. § 2000e–3(a). In cases like this one, in which there is no direct evidence of retaliation, the Court must begin with the familiar three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C.Cir.2012). Under this framework, the plaintiff has the initial burden of establishing by a preponderance of the evidence a prima facie case of retaliation.

To establish such a prima facie case, “a plaintiff must show: (1) that he opposed a practice made unlawful by [statute]; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action because the employee opposed the practice.” Id. at 1380 (internal quotation marks omitted). In cases where the defendant offers a legitimate, non-retaliatory reason for its decision, the court “need not— and should not—decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008). Instead, it simply looks at whether the employee has produced sufficient evidence for a reasonable jury to conclude that the asserted non-retaliatory justification for the action is a pretext for retaliation. Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C.Cir.2010). In this case, however, Defendant does not offer a reason for any action or decision; instead, it relies on Plaintiff's failure to establish a prima facie case of retaliation. In such circumstances, there is no Brady pretext question to reach. See Dudley v. Washington Metro. Area Transit Auth., 924 F.Supp.2d 141, 181 (D.D.C.2013) (because Defendant “attack[ed] Plaintiff's prima facie case directly”—here, whether adverse action occurred and whether it was reasonably proximate to alleged retaliation—court did not need to consider question of pretext).

Just two alleged acts of retaliation by FEMA remain after Gordon I. First, Gordonmentions a dispute about overtime that she claims occurred in retaliation for her 2004 EEOC...