Gladys Kessler, United States District Judge.
Plaintiff Rhongelyn Moore, an African American woman, ("Plaintiff" or "Moore") brings this action against Penny S. Pritzker in her official capacity as Secretary of the United States Department of Commerce ("Defendant," "Employer" or "Government"). Plaintiff alleges retaliation in response to age and race discrimination and retaliation complaints she filed against Defendant with the Equal Employment Opportunity Commission ("EEOC"), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e
This matter is presently before the Court on Defendant's Motion to Dismiss or for Summary Judgment filed on November 3, 2015 ("Def.'s Mot.") [Dkt. No. 10]. On December 1, 2015, Plaintiff filed an Opposition ("Pl.'s Opp.") [Dkt. No. 13]. Defendant did not file a Reply.
Upon consideration of the Motion, Opposition, the entire record herein, and for the reasons stated below, Defendant's Motion to Dismiss is
A. Factual Background
Rhongelyn Moore ("Plaintiff," "Moore"), a black woman, has been employed by the United States Department of Commerce ("DOC," "Defendant") since 1990. Complaint ¶ 9 ("Compl.") [Dkt. No. 1]. In December 2001, Plaintiff was promoted to a GS-13 Public Affairs Specialist ("PAS") position in the Office of Public Affairs ("OPA") of the DOC.
As a GS-13 PAS, Moore worked on press releases, provided the Minority Business Development Agency ("MBDA") with support, drafted advisories on events, and corresponded with reporters.
In August 2011, when Gilson left her position at the OPA, Parita Shah effectively became Moore's first-level supervisor and documented rating official. Griffis Decl. ¶ 41; Def.'s Mot. at 2; Pl.'s Opp. at 3. Prior to the promotion, Shah and Moore were coworkers and periodically worked together on assignments. Pl.'s Opp. at 18. Following Shah's promotion, she left the office to work on a different assignment from August to September 2011 and returned in October 2011, after the end of FY 2011. Compl. ¶ 42. In January 2012,
As a GS-13 PAS, Moore was given a Performance Appraisal for each fiscal year.
Prior to the final evaluation, employees were given the opportunity to submit to their supervisors a list of accomplishments that he or she achieved during that fiscal year.
The relevant evaluation period in this case is FY 2011, which spanned October 1, 2010 to September 30, 2011.
Gilson gave Moore the following ratings: 4 in Customer Service; ¾ in Media Outreach and Support; ¾ in Special Projects. Compl. ¶ 50. Moore alleges that there was an understanding between her and Gilson that the ratings were not final.
Moore alleges that she never received a hard copy of Gilson's interim performance rating, which she would have reviewed in order to respond and/or improve her performance. Pl.'s Opp. at 11;
Unlike other employees who received an email on December 5, 2011 from Griffis to submit a list of their accomplishments in preparation for FY 2011 performance evaluations, Moore did not receive such an email.
Due to the significant number of staff turnovers at OPA during FY 2011, the FY 2011 final evaluations were unusually delayed and were not given to employees until well after FY 2011 had ended. Def.'s Mot. at 5, 29. Moore received her FY 2011 final evaluation from Shah in February 2012. Compl. ¶ 47. At this point, Shah was Moore's rating official and Griffis was her approving official.
Shah relied, at least in part, on Gilson's interim evaluation, which included the list of accomplishments that Moore gave to Gilson in August. Pl.'s Opp. at 12;
As a result of Moore's FY 2011 final rating and DOC's limited resources in FY 2011, she received a $150 bonus from Griffis. Compl. ¶ 57; Def.'s Mot. at 5. Pursuant to guidance from DOC's Office of the Secretary and the Office of Personnel Management on June 10, 2011, Griffis was required to limit all of the performance awards given to the staff so that the cumulative amount of awards did not exceed one percent of the total amount of salaries in OPA. Def.'s Statement of Facts ¶ 22;
On February 6, 2012, following the award of FY 2011 bonuses, Moore had a meeting with Friedman and Griffis to discuss her FY 2011 final evaluation. Def.'s Statement of Facts ¶ 25. At that meeting, Griffis told Friedman that Moore was a "malcontent" employee who never signed her performance evaluations and that she "always had something to complain about." Compl. ¶ 65. For example, Defendant stated that in May 2011, Moore wrote Gilson to say that she believed the kind of work she was doing was "extremely low level" and that she needed "something more substantive." Def.'s Mot. at 3.
B. Procedural Background
On February 28, 2011, Moore filed her administrative Equal Employment Opportunity ("EEO") claim alleging age discrimination against Griffis. Compl. ¶ 19. The Equal Employment Opportunity Commission ("EEOC") granted the Government's motion for summary judgment on August 13, 2012.
On March 6, 2012, Moore filed her third formal complaint of retaliation with the EEOC which is the relevant administrative action in the instant case. Def.'s Mot. at 7; Pl.'s Opp. at 4. Defendant accepted four
On August 3, 2015, pursuant to 42 U.S.C. § 2000e-16(c), Moore filed her Complaint alleging one count of retaliation under Title VII under the Civil Rights Act of 1964 against Defendant. Compl. ¶ 69-70. Moore states that the following actions constitute retaliatory conduct following her EEO activity: (1) Griffis' refusal to provide Moore with a copy of her FY 2011 interim rating; (2) Griffis' refusal to accept Moore's FY 2011 performance accomplishments; (3) Shah's ineligibility to rate Moore's FY 2011 performance; (4) Griffis' delay in timely completing Moore's FY 2011 performance evaluation; (5) Griffis' FY 2011 performance evaluation of Moore; (6) Griffis' recommendation of a $150 performance bonus for Moore; and (7) Griffis' attempt to undermine Moore after Griffis left his position.
Moore claims compensatory damages, upgraded performance appraisals, and a retroactive promotion to GS-14 grade level of PAS position as relief for the alleged retaliation. Compl. at 11-12. She also claims damages for disparate treatment, humiliation, stress, anxiety, and damage to personal and professional self-esteem. Pl.'s Interrog. at 11.
On November 3, 2015, the Government filed its Motion to Dismiss or for Summary Judgment. On December 1, 2015, Plaintiff responded with her Opposition, and the Government failed to file a Reply.
II. STANDARD OF REVIEW
A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge [his or her] claims across the line from conceivable to plausible."
"[M]otions to dismiss for failure to exhaust administrative remedies are ... appropriately analyzed under Rule 12(b)(6)."
These exhaustion requirements are not jurisdictional, but rather are "similar to a statute of limitations."
B. Motion for Summary Judgment
A motion for summary judgment is granted only if, looking at the totality of admissible evidence, there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
A. Motion to Dismiss
1. Exhaustion of Administrative Remedies (Allegations 1 and 5)
"Title VII requires that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on the charge." 42 U.S.C. § 2000e-16;
For a claim of retaliation, a plaintiff is permitted to combine acts committed over a period of years, including acts by different supervisors, into a single actionable claim.
Defendant alleges that Moore's Allegations 1 and 5, which it refers to as "claims" 1 and 5 were not exhausted through the available administrative remedies and therefore should be dismissed by this Court. Def.'s Mot. at 13-15. The Government argues that these "claims" were not specifically alleged in Moore's March 6, 2012 complaint to the EEOC.
However, a reasonable investigation of the original four claims as listed in Moore's March 6, 2012 charge to the EEOC would have given the Government notice of these two "additional claims." Allegation 1 in Moore's Complaint alleges retaliatory conduct based on Griffis' refusal to provide Moore with a copy of her FY 2011 interim rating. Griffis' refusal is reasonably related to the second Claim that the EEOC accepted for investigation, namely, that "Griffis refused to complete her FY 2011 performance evaluation rating in a timely manner, and then assigned Parita Shah, an `ineligible rating official' to rate her." Pl.'s Opp. at 5, 11. In fact, in its April 30, 2015 Order, the EEOC found that the FY 2011 interim review was missing. Pl.'s Ex. B at 5. Therefore, questions regarding Moore's interim rating were addressed and investigated by the EEOC.
In addition, the Government claims that Shah relied on Gilson's interim comments for Moore's final FY 2011 ratings. Therefore, an allegation that Griffis did not provide Moore an opportunity to review her interim ratings reasonably relates to the issues addressed and exhausted by the EEOC. Taken together, the EEOC's comments on the FY 2011 interim ratings are sufficient to exhaust the claim because they put the Government on notice of Moore's allegations regarding her interim rating.
Similarly, Allegation 5, relating to Griffis' final FY 2011 performance evaluation of Moore, is reasonably related to the original four claims brought before to the EEOC. In its April 30, 2015 Order, the EEOC addressed Moore's allegations that she was not afforded an opportunity to submit a final list of performance accomplishments before receiving her final FY 2011 performance evaluation. This point directly relates to Moore's original four claims before the EEOC because an employee's list of accomplishments affects his or her final evaluation. Pl.'s Opp. at 12. Moreover, because the performance evaluation directly impacts an employee's performance bonus, this allegation is reasonably related to Moore's award of a $150 performance bonus, which was both raised in the EEO charge by Moore and investigated by the EEOC. Compl. ¶ 58; Def.'s Mot. at 28.
A plaintiff's burden to state specific claims is not so strict that Moore is barred from bringing these two claims because they were not specifically enumerated as claims in her original retaliation complaint before the EEOC. All of Moore's claims identified in her Complaint relate to the FY 2011 performance evaluation process, which the EEOC had the opportunity to investigate. Because the acts outlined in all seven Allegations can be tied to one of Moore's original four claims before the EEOC, this court will address each of the seven Allegations outlined in Moore's Complaint and Defendant's Motion.
2. Failure to Establish Prima Facie Case of Retaliation (All Allegations)
The Government claims that Moore has failed to establish a
a. Failure to Allege a Materially Adverse Action (Allegations 1, 2, 3, 4, and 7)
i. Allegations 1, 3 and 4
Moore asserts that Griffis' refusal to complete her FY 2011 performance evaluation rating in a timely manner and assignment of Shah to rate her constituted a materially adverse action because they affected her promotional potential and materially lowered her performance award.
The Government argues, without citing any controlling case law, that Moore's allegations in these three claims do not rise to the level of materiality, and instead are merely "minor annoyances." Taken in the light most favorable to Moore, the Government's argument is conclusory at best. The Government has not met its burden of showing that Moore's grievances do not rise to the level of a materially adverse action with regard to these claims.
ii. Allegation 2
Moore argues that Griffis' refusal to accept her performance accomplishments after leaving her off the December 5, 2011 email constituted a materially adverse action. She argues that her performance review was based on her earlier, unfinished list of accomplishments and that her poor performance review kept her from a promotion and a higher bonus. See Pl.'s Opp. at 16.
The Government argues that these actions do not meet the "materially adverse" bar because "a single critical email is not an adverse action." Def.'s Mot. at 17 (citing
iii. Allegation 7
Finally, Moore argues that Griffis' alleged attempt to undermine her relationship with her new supervisor was a materially adverse action that "
b. Failure to Allege that Retaliation Was the But-For Cause of Each Alleged Adverse Action (All Allegations)
Moore argues that she has sufficiently plead that retaliation was the but-for
The Government argues that Moore has failed to establish that the employer's actions were the but-for cause of each alleged adverse action because the adverse actions were not sufficiently close in time to Moore's filing of the EEOC complaints.
In support of its argument, the Government cites Moore's assertion that the alleged retaliatory actions occurred within "1-2 years" of her protected activity, (Def.'s Mot. at 19 (citing Def.'s Ex. 9 [Dkt. No. 10-9])), and argues that a 1-2 year gap between the protected activity and adverse actions is not sufficiently close in time to establish but-for causation. See Def.'s Mot. at 19 n. 2. However, Moore clarifies that her age discrimination complaint was filed on or about February 28, 2011, and a final order on the administrative judge's decision was issued by Defendant on or about August 13, 2012. Pl.'s Opp. at 33. Moore further specifies that her retaliation complaint was filed with the EEOC on June 16, 2011 with a final decision issued on or about March 6, 2014.
In conclusion, Defendant's Motion to Dismiss will be denied on all counts except for Allegation 7, which will be dismissed.
B. Motion for Summary Judgment
1. Legal Framework
A plaintiff need only establish facts adequate to permit an inference of retaliatory motive by a preponderance of the evidence.
However, if the defendant has offered a legitimate, nondiscriminatory reason for its actions, the court need not and should not decide whether the plaintiff actually made out a prima facie case.
Our Court of Appeals has declined to serve as a "super personnel department that reexamines an entity's business decisions."
Defendant argues that she has articulated a nondiscriminatory reason for each of its actions. This Court will therefore only examine whether Plaintiff has provided sufficient evidence to establish that Defendant's proffered reasons are merely pretext.
2. Allegations 1 and 2
The Government asserts that denying Moore a hard copy of her interim rating (Allegation 1) and Griffis' omission of Moore from the December 5, 2011 email and subsequent refusal to accept her FY2011 performance requirements (Allegation 2) were "`minor procedural irregularit[ies]' in personnel practices [that] do not give rise to an inference of discrimination."
With regard to Allegation 1, Moore counters that because Griffis was in possession of the emails which formed the basis for Plaintiff's final interim performance appraisal, his failure to provide Plaintiff with a copy was deliberate and discriminatory. Pl.'s Opp. at 34-35 (citing Defendant's Ex. 11, Emails between Griffis and Gilson [Dkt. No. 10-11]).
The Government notes that Gilson claimed that she misplaced the written interim performance review. Defendant's Ex. 10, p. 21. However, the written interim review was based on the August 25, 2011 email exchanges between Gilson and Griffis that contained the actual comments and rating. Id.; Defendant's Ex. 11. Griffis had the August 25 emails in his possession at all times after Plaintiff requested a copy of the interim rating and has provided no legitimate reason why he refused to provide it to her.
With regard to Allegation 2, Moore argues that Griffis' failure to include her on the December 5, 2011 email could not have been an oversight or minor procedural irregularity because "Mr. Griffis either had to remove Plaintiff's name from the e-mail list or create his own list of names." Pl.'s Opp. at 15;
Summary Judgment shall therefore be denied for Allegations 1 and 2.
3. Allegations 3 and 4
The Government argues that Allegations 3, "Parita Shah's ineligibility to rate Plaintiff's FY2011 performance," Def.'s Mot. at 7, and Allegation 4, "Mr. Griffis' delay in timely completing Plaintiff's FY2011 performance evaluation, id., "concern nothing more than Defendant's business decisions." Def.'s Mot. at 22. Moreover, the Government has presented evidence to show that Moore was not uniquely situated as to either of these complaints.
As to Allegation 3, the Government explained that OPA experienced a high number of staff turnovers in FY 2011. The departing staff members included Gilson, Moore's first-level supervisor. As a consequence of these departures, Griffis, in his capacity as the Director of OPA, made the business decision to appoint Shah to Gilson's former position. Def.'s Mot. at 22.
Similarly, as to Allegation 4, the Government stated that the significant number of staff turnovers contributed to the delay in Griffis' ability to complete the FY final evaluations.
Moore argues that "there is no indication as to when it was actually presented to the employee." Pl.'s Opp. at 35. However, Moore points to no concrete evidence beyond her speculation that would suggest that the other employee's rating did not occur on the date cited by the Government. Although the Court must consider all allegations in the light most favorable to Plaintiff, the non-moving party, mere speculation is insufficient to establish pretext.
Plaintiff has therefore failed to carry her burden in showing pretext with sufficient evidence for a reasonable jury to find retaliatory motive regarding Allegations 3 and 4.
4. Allegations 5 and 6
The Government asserts that Griffis' FY2011 Performance Evaluation of Moore (Allegation 5) and Griffis' recommendation of a $150 performance bonus for Moore (Allegation 6) were based on the employer's dissatisfaction with Moore's work performance. There is no question that dissatisfaction with an employee's performance may establish a legitimate, non-discriminatory reason for an employee's performance rating and low bonus.
Moreover, the Government articulated a number of legitimate reasons for Moore's low performance rating. For example, the Government stated in Moore's performance rating that, "[w]e would like to see [Plaintiff] improve her relationship with MBDA," Def.'s Ex. 8 at 3, noting that "[clients at MBDA] say she has been collegial but say they would like her to improve press release turnaround time which can take up to four days."
Defendant also asserts that Moore's bonus of $150 was lower than it might otherwise have been to reflect the Government's above-mentioned concerns as well as the fact that, "the Office of Public Affairs'
Moore asserts that the Government's reasons are merely pretext, relying on her assertions in Allegations 1, 2, and 3; namely, that Shah was not qualified to review her performance and that she was not given sufficient opportunity to review and respond to the interim rating because she did not receive a hard copy. Pl.'s Opp. at 36-37. Moore argues that with regard to her work on press releases for MBDA, "any delay was not caused by [Plaintiff] but resulted from the review process itself after a press release from MNDA was forwarded by [Plaintiff]." Def.'s Ex. 9 at 7. Moore further asserts that "Defendant's stated reasons do not explain why the bonus was six times less than other Public Affairs Specialists who were only one grade level above her and received at least $1000."
The Court has already found that the fact of Shah's review of Moore was not discriminatory. Moore's disagreement with the employer's assessment of her work is not, without more, sufficient to establish pretext.
5. Allegations 7
Even if Moore had established a materially adverse action for Claim 7, she has failed to present evidence that the Government's legitimate non-discriminatory reason for this action was pretext.
The Government argues that Moore's allegation that Griffis, attempted to undermine her after he left his position (Allegation 7) lacks merit because Griffis' statements about Moore were factual. For example, Moore alleges that Griffis stated that Plaintiff never signed performance appraisals, and that Plaintiff always had something to complain about. Compl. ¶ 65.
However, Moore concedes that she had not signed a performance appraisal since 2009. Compl. Ex. B at 5-6. Furthermore, Moore simply responds that her complaints were justified and permitted. Pl.'s Opp. at 37-38. Moore points to no other evidence in support of her assertion that the Government's legitimate nondiscriminatory reason was pretext. Thus, this Court will grant summary judgment for Defendant on Allegation 7.
In conclusion, Defendant's Motion for Summary Judgment will be granted on all accounts except for Allegations 1 and 2, which will survive the Motion.
For the foregoing reasons, Defendant's Motion to Dismiss is
Defendant's Motion for Summary Judgment is
An Order shall accompany this Memorandum Opinion.