Hardy v. Powell, Case No. 1:16–cv–01572 (TNM)

314 F.Supp.3d 359

Felicia HARDY and Barry Pope, as personal representatives of the estate of Andre Hardy, Plaintiffs,

v.Jerome H. POWELL, in his official capacity as Chairman, Board of Governors of the Federal Reserve System, Defendant.

Case No. 1:16–cv–01572 (TNM)

United States District Court, District of Columbia.

Signed July 10, 2018

Daniel E. Kenney, DK Associates, LLC, Chevy Chase, MD, for Plaintiffs

Joshua P. Chadwick, Yonatan Gelblum, Board of Governors of the Federal Reserve System, Washington, DC, for Defendant

MEMORANDUM OPINION

TREVOR N. MCFADDEN, United States District JudgeFelicia Hardy and Barry Pope seek $10 million in this Title VII retaliation case against Jerome Powell, whom they have sued in his official capacity as Chairman of the Board of Governors of the Federal Reserve System.¹ As personal representatives of the estate of Andre Hardy, they allege that the Federal Reserve drove Mr. Hardy to commit suicide by retaliating against him for engaging in activity protected by Title VII. Because the Plaintiffs cannot show that they have exhausted their retaliation claims and because they cannot show that retaliation took place, the Defendant's Motion for Summary Judgment will be granted.²

I.

Mr. Hardy worked for the Board of Governors of the Federal Reserve System as a law enforcement officer from 2011 to 2016. Compl. ¶ 22. In 2015, Mr. Hardy participated in tryouts for a new bike patrol unit. Opp. to Mot. Summary J. 5. Although he scored 95% on speed test, he scored 30% on a cone course test. Mot. Summary J. Ex. K. His supervisor, Lieutenant Kelly Graves, gave him a 100% recommendation, and he also earned a 100% "D.C. Code Score." Id. ; see also Opp. to Mot. Summary J. 5. Mr. Hardy's overall score of 81% represents the average of these four scores and placed him 17 out of 21 tryout participants. See Mot. Summary J. Ex. K. Nine participants, including three female officers, were selected for the bike team, but Mr. Hardy was not selected. Opp. to Mot. Summary J. 5.

In June 2015, Mr. Hardy contacted the Board's Employee Relations office to discuss his concern that female officers were favored over him in the formation of the bike team. Id. at 6.³ Employee Relations forwarded Mr. Hardy's complaint to the Board's Equal Employment Opportunity, or EEO, office. Id. In August 2015, Mr. Hardy spoke with Andre Smith, an EEO counselor, to discuss the bike selection process and other instances of perceived discrimination. Id.

The Plaintiffs allege that Mr. Hardy's supervisors learned of his complaint as soon as he contacted the EEO office, and that Lt. Graves retaliated against Mr. Hardy because of it. Id. at 6–11. For example, they allege that when Mr. Hardy sought promotion to corporal, Lt. Graves denied his request to reschedule a necessary exam. Id. at 9–10.⁴ They also allege that Lt. Graves denied Mr. Hardy's request to transfer to a different location, where Mr. Hardy would no longer be under Lt. Graves's supervision. Id. at 10–11.⁵ Mr. Hardy complained about these incidents in a letter to Employee Relations. Id. Ex. 18. But rather than characterizing them as retaliation, he described them as examples of discrimination and complained that Lt. Graves made it clear from the time he first began to supervise Mr. Hardy that he "was coming for [him] personally." Id. Ex. 18 1.

On March 14, 2016, Mr. Hardy submitted a resignation letter:

I am writing to inform you that I am resigning from my position with The Federal Reserve. Thank you for the opportunities and professional development that I have received from the Federal Reserve Law Enforcement Unit. While I believe that that [sic] I am moving for good reasons. I am sorry to leave and I thank you for your support during my time with The LEU [Law Enforcement Unit], which I have found enjoyable and fulfilling.

I am putting in my two weeks' notice and I hope this is sufficient for you. My last day in office will be Monday, March 28 2016. With an effective date of Tuesday, March 29 2016.

Id. Ex. 25. Tragically, on March 28, Mr. Hardy committed suicide after recording an audio note explaining his frustrations with Lt. Graves and his sense that he could never advance in his career. Id. at 11.

In April 2016, the Plaintiffs initiated an EEO complaint on behalf of Mr. Hardy's estate, alleging that discrimination and retaliation had driven Mr. Hardy to resign his position and take his own life. Id. at 11–12. The Board dismissed their complaint because Mr. Hardy's estate lacked standing. Id. at 26–27. The Plaintiffs then sued the Chairman of the Board of Governors in federal court, alleging that the Board violated Title VII by committing sex discrimination and by retaliating against Mr. Hardy for engaging in activity protected by Title VII. The Defendant moved to dismiss the Complaint. In response, the Plaintiffs dropped their claims of sex discrimination but added new allegations about retaliation. Id. at 3 n. 1, 17. The Board's Motion for Summary Judgment is now ripe.

II.

To prevail on a motion for summary judgment, a movant must show 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Celotex Corp v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is material if it could alter the outcome of the suit under the substantive governing law. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323, 106 S.Ct. 2548. Once the party seeking summary judgment makes this showing, the non-moving party bears the burden of setting forth "specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 250, 106 S.Ct. 2505.

III.

"Aggrieved persons who believe they have been discriminated against ... must consult a Counselor prior to filing a [formal administrative] complaint in order to try to informally resolve the matter." 29 C.F.R. § 1614.105(a).⁶ This begins the process for seeking an administrative remedy—a process that a plaintiff must complete, or "exhaust," before bringing a Title VII claim in federal court. Nurriddin v. Goldin , 382 F.Supp.2d 79, 92 (D.D.C. 2005) (citing Brown v. Gen. Servs. Admin. , 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) ); see also 42 U.S.C. § 2000e–16(c). A plaintiff must satisfy the administrative exhaustion requirement for each discrete act of discrimination or retaliation of which he complains. Nurriddin , 382 F.Supp.2d at 93 (citing Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ).

The Plaintiffs claim that Lt. Graves discriminated against Mr. Hardy for engaging in Title VII activity. To satisfy the counseling requirement for this claim, which would be the first step toward showing exhaustion, Mr. Hardy would have had to believe that Lt. Graves retaliated against him and would have had to consult with an EEO Counselor about the alleged retaliation. This he did not do.

The Plaintiffs seek to satisfy the counseling requirement in three ways. First, they note that Mr. Hardy contacted EEO Counselor Andre Smith. Opp. to Mot. Summary J. 23–24. Second, they note that Mr. Hardy complained about unfair treatment in a letter that he sent to Gina Lewis, who worked in Employee Relations. Id. at 24–26.⁷ Third, they argue that they satisfied the counseling requirement on Mr. Hardy's behalf by contacting an EEO Counselor as the representatives of his estate. Id. at 26–30.

But none of this shows Mr. Hardy believed that Lt. Graves retaliated against him and that he consulted with an EEO Counselor about the problem. Although Mr. Hardy complained to Mr. Smith and Ms. Lewis about sex discrimination, he did not complain that Lt. Graves mistreated him in retaliation for engaging in Title VII activity. The Plaintiffs do not allege that Mr. Hardy complained to Mr. Smith about retaliation. See Opp. to Mot. Summary J. 23–24. In fact, they allege that the retaliation of which they complain took place after Mr. Hardy contacted Mr. Smith and in response to that contact. See id. at 6.

The Plaintiffs do claim that Mr. Hardy's letter to Ms. Lewis complained about Lt. Graves retaliating against him for Title VII activity. Pls.' Response to Def.'s Statement of Undisputed Material Facts ¶ 21. But the letter does not reference retaliation, allege that Lt. Graves treated Mr. Hardy differently because of his Title VII activity, or even suggest that Lt. Graves knew of Mr. Hardy's Title VII activity. See Opp. to Mot. Summary J. Ex. 18. To the contrary, the letter states that Lt. Graves mistreated Mr. Hardy because of his sex and that Mr. Hardy felt clear Lt. Graves "was coming for [him] personally" even before he engaged in Title VII activity. Opp. to Mot. Summary J. Ex. 18, 1. Thus, the record shows that Mr. Hardy did not initiate counseling for retaliation and suggests that he did not believe the treatment he experienced was retaliation for Title VII activity. This is fatal to the Plaintiffs' retaliation claim. One can only sue for the specific Title VII violations that were complained of to one's employer. Nurriddin , 382 F.Supp.2d at 92. Swapping Title VII horses midstream frustrates the employer's ability to address actual misconduct before litigation becomes necessary and increases the time and expense involved in defending against frivolous allegations.

As for the...