Akerson v. Penny Pritzker Sec'y Commerce
| Citation | 980 F.Supp.2d 18 |
| Decision Date | 04 November 2013 |
| Docket Number | Civil Action No. 12–10240–PBS. |
| Parties | Bonnie AKERSON, Plaintiff, v. Penny PRITZKER Secretary of Commerce, and U.S. Department of Commerce, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
Rosemary Connolly, Jessica P. Driscoll, Barbara Healy Smith, Christine J. Wichers, U.S. Attorney's Office, Boston, MA, for Defendant.
Jeffrey R. Mazer, Law Offices of Jeffrey R. Mazer, Lynnfield, MA, for Plaintiff.
Plaintiff Bonnie Akerson brings this action alleging that her former employer, the United States Census Bureau, terminated her employment because she is Caucasian and disabled, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e, and the Rehabilitation Act of 1973, 29 U.S.C. § 701. She contends that she was terminated in retaliation for requesting reasonable accommodations for her disability, and that she was paid less than a similarly qualified male employee in violation of the Equal Pay Act, 29 U.S.C. § 206. Defendant moves for summary judgment on all claims. The Court heard oral argument on the motion for summary judgment on July 29, 2013. After a review of the record, the Court DENIES Defendant's Motion for Summary Judgment on Plaintiff's claims of disability discriminationand retaliation but otherwise ALLOWS the motion. (Docket 23).
When all reasonable inferences are drawn in Plaintiff's favor, the record contains the following facts, which are undisputed except where noted.
In February 2008, the Bureau of the Census posted a recruiting bulletin for Partnership Specialist openings in the Boston regional office. Partnership Specialists were eligible for pay at four salary grade levels, GS–7, GS–9, GS–11, and GS–12. Applicants could apply to the position at one or more of the four grade levels, depending on their education and experience. The bulletin stated that applicants “[m]ust submit a separate completed Application for each grade level applied.” Under “HOW TO APPLY,” the posting provided the following instructions:
Each applicant must submit a complete application for each grade level they wish to apply for, using the Optional Application for Federal Employment (OF–612), or a resume, listing your work duties and accomplishments relating to the job for which you are applying. If only one application is received, you will be considered only for the lowest grade.
(emphasis in original).
Plaintiff, a Caucasian female, applied only for the Partnership Specialist position at the GS–9 pay grade. She did not apply for the other three grade levels.
Partnership Specialists were responsible for educating external organizations about the upcoming 2010 Census and encouraging them to enter into “partnership agreements” with the Census Bureau. By signing a partnership agreement, an organization agreed to dedicate its time and resources to promoting the 2010 Census. The 2010 Census Partnership Agreement Form lists twenty-six ways in which a “partner” can support the Bureau's efforts. Each partner could commit to one or more of these projects (referred to as “commitments”) by checking the appropriate boxes on the agreement form. Def. Mem. in Supp., Ex. B (Docket 26).
Plaintiff began working as a Partnership Specialist (GS–9) on May 12, 2008. Defendant paid Plaintiff at the GS–9 salary level. Carlos Linera, Plaintiff's male colleague, applied for the Partnership Specialist position at the GS–11 pay grade, and he was paid at the higher level. The Partnership Specialist positions at the GS–9 and GS–11 levels involved substantially the same responsibilities. At the time of Plaintiff's employment, at least one female Partnership Specialist was paid at the GS–11 salary level. EEOC Hr'g Tr. at 311 (Kalaitzidis Test.) .
Plaintiff had two supervisors at different points during her employment: Cesar Monzon, a Hispanic male, and Ana Maria Garcia, a Hispanic female. Monzon interviewed, hired and then supervised Plaintiff from her initial hiring date until December 23, 2008, when Garcia became her new supervisor. At all times during Plaintiff's employment, Kathleen Ludgate, a Caucasian female, was the Director of the Boston Regional Census Office.
Plaintiff has suffered from an inflammatory bladder disease known as interstitial cystitis for approximately five years. The condition is exacerbated by stress, causing “flare-ups” during which her symptoms are more severe. When her condition is exacerbated, Plaintiff must use the restroom frequently, as often as every twenty minutes, although each visit typically lasts no longer than the restroom visits of a healthy individual. During flare-ups, she experiences a feeling of persistent “fullness” in her bladder, constant pressure and pain, and difficulty sleeping. Neither Monzon nor Ludgate was ever aware of Plaintiff's illness. However, Garcia became aware of Plaintiff's bladder condition and need for frequent restroom breaks on February 9, 2009.
The following facts are largely disputed. Plaintiff asserts that Monzon would intentionally call her on the phone when she was in the restroom, although he could see her desk from his workspace. When she did not answer her phone, Monzon would send a co-worker into the bathroom after Plaintiff, and then “shake his head disapprovingly” when Plaintiff returned from the bathroom.
Monzon denies that he asked employees to seek out Plaintiff in the bathroom. He admits that he repeatedly inquired about Plaintiff's whereabouts, but claims that he did so because on several occasions she was away from her desk for extended periods of time without explanation. Def. Mem. in Supp., Ex. D (Docket 26). Monzon did not recommend her for disciplinary action based on unexplained absences. Plaintiff's October 2008 performance evaluation does not reference absences from the office.
In October of 2008, Plaintiff received a performance evaluation conducted by Monzon. On a scale of one (unacceptable performance) to five (highest level of performance), Plaintiff received a rating of “three” (acceptable performance) in all four evaluated categories. However, she received criticisms in two areas. Monzon's review stated that Plaintiff needed to execute more timely follow-up with external partners and establish a time line for one of her projects.
On or about November 3, 2008, Plaintiff's office instituted a policy that all Partnership Specialists were to submit a minimum of ten signed partnership agreements per week. Laura Medrano, a Hispanic Partnership Specialist, testified as to her understanding that she could meet the quota by obtaining ten total commitments (for example, by submitting two partnership agreement forms, each with five commitments checked off on the form). EEOC Hr'g Tr. at 303–4 (Medrano Test.) (Docket 34, Ex. 1). Monzon testified that the requirement was ten agreements per week, as communicated to Specialists at two November meetings. EEOC Hr'g Tr. at 236–38 (Monzon Test.) .
During the next three months, Plaintiff was counseled by her supervisors at least six times regarding her failure to meet the partnership agreement quota. On November 26, 2008, Monzon spoke with Plaintiff about her low numbers. He also expressed concern that she had not yet submitted a partnership agreement resulting from a business trip to Burlington, Vermont. Plaintiff entered the agreement from her Vermont trip into the database approximately one month after this conversation.
On December 5, 2008, Monzon met with Plaintiff to discuss her failure to obtain ten signed agreements per week. In an e-mail dated December 18, 2008, Monzon wrote, “your number[s] have to increase.” Def. Mem. in Supp., Ex. J (Docket 26). On January 5, 2009, Plaintiff was counseled about problems meeting her quota on a telephone call with Monzon and Garcia and in an email from Garcia the following day.
In late January of 2009, Plaintiff twice met with Garcia regarding her work performance and partnership agreements. Plaintiff described the meetings as “heated” and “serious” and believed her job might be in jeopardy. EEOC Hr'g Tr. at 101 (Pl. Test.) . During one of these meetings, Garcia stated that Plaintiff was on probation. At the last of these meetings, on January 23, 2009, Garcia discussed with Plaintiff the fact that she had submitted only seven partnership agreements for the week, none of which contained original signatures and two of which were dated from October of the previous year.
In addition to the ongoing criticism of Plaintiff's performance with respect to partnership agreements, five other incidents bear on Plaintiff's work performance and interactions with colleagues. On December 29–30, 2009, Plaintiff and Monzon exchanged a series of emails regarding “Hudson College,” only later discovering each was referring to a different “Hudson College.” Def. Mem. in Supp., Ex. L (Docket 26). Plaintiff felt that Monzon's emailed reply constituted an unfair criticism. On January 5, 2009, Plaintiff sent an email listing one of her upcoming meetings as “Tufts Dental,” but was not explicit with her supervisors that it was a personal medical appointment and not a business meeting, which caused confusion.1 Def. Mem. in Supp., Ex. M (Docket 26).
Conflict arose between Plaintiff and Ludgate, who is also Caucasian. At one point, Plaintiff claims that Ludgate yelled at her and criticized her for being late to leave for a trip to Rhode Island with another Partnership Specialist, who is African–American. Plaintiff avers that Ludgate did not similarly reprimand the other Partnership Specialist, who was equally responsible for the miscommunication. Ludgate denies that she yelled at Plaintiff and claims that she also spoke to the other Partnership Specialist about time management concerns. Def. Mem. in Supp., Ex. I (Docket 26).
On ...
To continue reading
Request your trial