Perry v. Clinton

• Decision Date: 30 August 2011
• Docket Number: No. 08–cv–1216 (RCL).,08–cv–1216 (RCL).
• Parties: Janine PERRY, Plaintiff, v. Hillary Rodham CLINTON, Defendant.
• Court: U.S. District Court — District of Columbia

831 F.Supp.2d 1

Janine PERRY, Plaintiff,

v.Hillary Rodham CLINTON, Defendant.

No. 08–cv–1216 (RCL).

United States District Court, District of Columbia.

Aug. 30, 2011.

Michael Gerard Kane, Cashdan & Kane, PLLC, Westfield, NJ, David Robert Cashdan, Cashdan & Kane, PLLC, Leizer Z. Goldsmith, The Goldsmith Law Firm, LLC, Washington, DC, for Plaintiff.

David Cotter Rybicki, Jeremy S. Simon, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Before the Court is defendant's Motion for Summary Judgment. Def.'s Mot. Summ. J. [64]. Also before the Court is plaintiff's Motion for Leave to File Sur–Reply Opposition to Defendant's Motion for Summary Judgment, Pl.'s Mot. Leave [74], plaintiff's Motion in Limine No. 1, Pl.'s Mot. Limine [78], and defendant's Motion in Limine to Exclude Certain Evidence at Trial. Def.'s Mot. Limine [79]. Having carefully considered the Motions, the Oppositions, the Replies, oral argument of counsel, the entire record in this case, and the applicable law, the Court will grant defendant's Motion for Summary Judgment, and deny plaintiff's Motion for Leave to file a sur-reply ¹, plaintiff's Motion in Limine, and defendant's Motion in Limine as moot. A review of the background of the case, the governing law, the parties' arguments, and the Court's reasoning in resolving those arguments follows.

I. FACTUAL BACKGROUND

Plaintiff Janine Perry, who is African American and female, has worked for the Department of State for over twenty years. Like many Department employees, she began her career on the lower rungs of the government's pay scale and worked her way up, her duties and job title changing periodically. She began working for the Department before the advent of the internet, and took up website-management duties in the '90s as a GS–7 Editorial Assistant. Def.'s SMF [64] ¶ 33.

In 2003, Ms. Perry was a GS–11 “Program Coordinator” in a division of the Department called the Bureau of International Information Programs (“IIP”). IIP itself had several subdivisions, and Ms. Perry worked in one called the “Office of Western Hemisphere.” She was still mostly performing website-management duties at that time. Her first-line supervisor was Dominique DiPasquale. At some point in 2003, she approached Mr. DiPasquale about getting a promotion to the GS–12 level. He consulted with Cynthia Scriber of Human Resources, who created a new “Website Manager” position classified at the GS–12 level to facilitate Ms. Perry's promotion. Id. at ¶ 7. However, since this new position would be “non-competitive”—i.e., Ms. Perry was the only person who would get the job—Human Resources decided to limit its promotion potential, capping it at GS–12. Id. Ms. Perry had held “full performance level” positions in the Department before, and she accepted the GS–12 Website Manager position knowing that it had a full performance level of GS–12. Id. at ¶ 6. Other, non-capped and competitive positions for which she could have applied were available at the time but she apparently didn't apply for them. See Def.'s Ex. 6, Yemelyanov Decl. [64–3] ¶ 15.

The fact that Ms. Perry's new GS–12 position lacked promotion potential was a topic of some discussion between her and Mr. DiPasquale, as he approached the sweet release of retirement. She was likely concerned that once he departed, there would be uncertainty about her ability to obtain promotions beyond the GS–12 level. However, during these discussions, Mr. DiPasquale never promised her that her position would be upgraded to a GS–13 after he retired, and Ms. Perry knew that it wouldn't be solely in her new supervisor's power to make her a GS–13, even if he or she happened to agree with Ms. Perry on that topic. Def.'s SMF [64] ¶ 12; Def.'s Ex. 1, Perry Dep. [64–2], at 65:2–3. Mr. DiPasquale himself doubted whether Human Resources—within a year of creating a non-competitive position to facilitate Ms. Perry's promotion to GS–12—would go along with the creation of yet another one, this time to make her a GS–13. Def.'s Ex. 4, Transcript (1/17/08) [64–2], at 246: 8–14. He thought the most likely path for Ms. Perry would be a “desk audit,” where a Human Resources employee would scrutinize her actual day-to-day responsibilities to see if she deserved an upward adjustment in grade level. Id. at 246:15–16.

In August 2003, Mr. DiPasquale did retire and Ms. Perry got a new first-line supervisor: Gerard Joria. Def.'s SMF [64] ¶ 4. While Mr. DiPasquale and Ms. Perry seemed to have gotten along fairly well, it's clear that Mr. Joria's and Ms. Perry's work relationship began awkwardly and grew more strained as time passed. For example, within a week of Mr. Joria's reporting for duty, he was rummaging around in a storage closet at the office and came across a “burn bag”—i.e., a bag of papers intended to be discarded—that contained an Equal Employment Opportunity complaint that Ms. Perry had filed in 1999 against her former supervisor, William Bach (Mr. DiPasquale's immediate predecessor). Pl.'s Ex. 27, Transcript (1/17/08) [66–27], at 26:15–27:21. At that point Mr. Joria learned that Ms. Perry had filed an EEO complaint several years before. Pl.'s Ex. 8, Transcript (1/16/08) [71–8], at 431:4–11. It's unclear from the record whether Mr. Joria did more than just read the caption on the complaint, or whether he even knew that the complaint was made against a predecessor.

Further awkwardness ensued in September 2003 when Mr. Joria, whose job it was to review employees' reimbursement requests, confronted Ms. Perry about some “inaccuracies” in an expense report she had submitted, where she had sought reimbursement for cab fares taken during a trip to Denver for a conference. Mr. Joria suspected that Ms. Perry might not have actually taken all of the cab rides for which she sought reimbursement from the government. Def.'s Ex. 12, Joria Dep. [64–6], at 133:11–134:12. But he didn't want to file disciplinary charges as his “first act [ ] with a subordinate.” Id. at 180:3–5. After this meeting, Ms. Perry revised the request and Mr. Joria approved it as revised, telling her in a note that they would “just put this behind us” because the whole matter might have been caused by a “misunderstanding” about the reimbursement rules. Id. at 15:5–9.

Friction increased between the two later that year when Mr. Joria became dissatisfied with Ms. Perry's work habits. Apparently he was perturbed when she was absent from her post for too long during the work day. Pl.'s Ex. 8, Joria Dep. [71–8], at 52:1–22. At some point he confronted her about a 2.5–hour absence from work during the middle of the day, which was apparently not “the first time she was missing for long periods of time....” Id. at 52:12–14. He also appears to have had some trouble getting in touch with her when she was “telecommuting” or working from home. Id. He temporarily took away her telecommuting privileges because he felt she was “abusing the privilege.” Id. at 56:12–13.

These somewhat trivial workplace issues were the backdrop for a major dust-up beginning in the summer of 2004 between Ms. Perry and her entire management over the issue of whether she should receive a promotion to the GS–13 level. In April or May 2004, Ms. Perry approached her first-line supervisor, Mr. Joria, about obtaining the promotion. She told him about an understanding she believed she had with her prior supervisor, Mr. DiPasquale, concerning her promotion to GS–13 after his retirement. Def.'s Ex. 1, Perry Dep. [64–2], at 98:18–25. It's not clear what the outcome of this first Perry–Joria meeting was. Then, in May or June 2004, Ms. Perry went to Human Resources, where she learned that she was the only IIP website manager at the GS–12 level; the other four were GS–13's.² Pl.'s Ex. 6, Perry Dep. [71–6], at 100:4–6. According to Ms. Perry, she again approached Mr. Joria and asked him if he would “make my grade a 13,” the same as the other website managers, and he refused. Id. at 102:4–5.

Following Mr. Joria's refusal, Ms. Perry returned to Human Resources, and with the help of an employee in that office, she prepared a draft position description that “would meet the GS–13 level” and that Mr. Joria, so her thinking went, would approve. Pl.'s Ex. 7, Transcript (1/16/08) [71–7], at 213:14–22. She felt that this draft position description “reflected the work that I currently performed.” Id. at 213:20–21. On September 29, 2004, immediately upon receiving an edited version of this draft position description from the Human Resources employee, she presented it to Mr. Joria for his signature. Id. at 230:1–3. However, Mr. Joria felt that her description of her own duties was “seriously flawed” and he refused to sign off on it. Def.'s Ex. 21, Joria Decl. [64–13] ¶ 5. He asked her instead to identify duties she was currently performing that were not included in her current, GS–12–classified position description, and she was unable to do so. Id. at ¶ 6.

At this point, Mr. Joria told Ms. Perry that, because her current position was at the “full performance” level and had no promotion potential, there were only two avenues open to her if she wanted to be paid at the GS–13 level: (1) if there were a “business justification” to do so, a new GS–13 position could be created that she could actually compete for, or (2) Human Resources could perform a “desk audit” to determine whether she was in fact working at a grade level higher than that assigned to her position.³ If so, a new position description could then be prepared at the higher grade level (whether GS–13, 14, or otherwise) to reflect the additional duties that she had assumed. Def.'s SMF [64] ¶ 11; Def.'s Ex. 15, Gibson Decl. [64–9] ¶ 7. She would then receive what is called an “accretion of duties” promotion. Of course, one looming possibility was that the desk audit could reveal that Ms. Perry was performing at the correct—or even a lower—grade level.

Faced with these two choices,...