Allen v. Napolitano

• Decision Date: 06 May 2013
• Docket Number: Civil Action No. 09–02228 (JDB).
• Citation: 943 F.Supp.2d 40
• Parties: Janet E. ALLEN, Plaintiff, v. Janet NAPOLITANO, in her official capacity as the Secretary of the U.S. Department of Homeland Security, Defendant.
• Court: U.S. District Court — District of Columbia

943 F.Supp.2d 40

Janet E. ALLEN, Plaintiff,

v.Janet NAPOLITANO, in her official capacity as the Secretary of the U.S. Department of Homeland Security, Defendant.

Civil Action No. 09–02228 (JDB).

United States District Court, District of Columbia.

May 6, 2013.

David H. Shapiro, Swick & Shapiro, Washington, DC, for Plaintiff.

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

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Defendant Janet Napolitano, Secretary of the United States Department of Homeland Security, has moved for summary judgment on the remaining claims of plaintiff's retaliation complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Plaintiff Janet Allen was the Director of Internal Controls in the Office of Assurance and Compliance within the United States Immigration and Customs Enforcement (“ICE”), a component of the Department of Homeland Security. Allen's remaining claims allege that her supervisor, Kathy Hill, unlawfully retaliated against Allen by not including her in certain meetings and by giving Allen an overall rating of Achieved Expectations for the 2008 performance review period. For the reasons explained below, the Court will grant the Department's motion for summary judgment.

BACKGROUND

The Court's prior opinion lays out the background to this case in more detail. See Memorandum Opinion [Docket Entry 17] (Mar. 31, 2011). During the events in question, plaintiff Janet Allen was the Director of Internal Controls in the Office of Assurance and Compliance within ICE, a GS–15 position under the government's General Schedule pay scale. See Pl.'s Resp. to Statement of Material Facts [Docket Entry 40–17] ¶ 2 (Jan. 24, 2013) (SOMF).¹ The Office of Assurance and Compliance served an auditing function within ICE, evaluating its internal financial control systems, identifying deficiencies and, where appropriate, developing and overseeing corrective action plans. Id. ¶ 9. The Office also reported results of internal control testing and audit-related activities within the Department. Id.

In 2006, Allen filed a complaint of retaliation and discrimination with the Equal Employment Opportunity (EEO) office. Her claims, not themselves relevant here, arose out of actions Allen's then-supervisor Debra Bond took in 2005 and 2006. See Compl. [Docket Entry 1] ¶¶ 7–10 (Nov. 24, 2009). Allen entered an out-of-court settlement agreement with the Department in February 2008 to resolve those claims. See SOMF ¶ 4. Allen's supervisor, Kathy Hill, learned of the settlement because she had to implement certain terms, namely issuing Allen a retroactive performance appraisal review rating of “Outstanding” for the 2005 to 2007 rating periods. See id. ¶ 6. In March and April 2008, Allen complained to Hill that retaliation was motivating Hill's formulation of Allen's performance work plan. See id. ¶ 8. Hill presented Allen with a revised performance work plan on May 23, 2008. Id.

That November, Hill gave Allen an overall performance rating of Achieved Expectations. Id. ¶ 16; see also 2008 Performance Plan and Appraisal [Docket Entry 40–1] at 14 (Jan. 24, 2013) (overall ranking of 2.6 on 0 to 4 scale, i.e., Achieved Expectations). Allen was evaluated based on four performance goals (which accounted for 60% of her rating) and on seven core competencies (which together accounted for the remaining 40%). Id. ¶ 17. Hill rated Allen as “Achieved Excellence,” the highest rating, on two performance goals. She rated Allen as “Exceeded Expectations,” the second highest rating, on performance goal 2, and “Achieved Expectations,” the next highest—and second-lowest—rating on performance goal 3. Finally, Hill rated Allen “Achieved Expectations” on six of the core competencies, and “Exceeded Expectations” on the remaining core competency. See id. ¶ 17. The performance plan required written justification only of a rating above or below “Achieved Expectations.” See 2008 Performance Plan and Appraisal at 14. Nonetheless, in issuing the review, Hill included a narrative discussion of issues that were the basis for the review. See SOMF ¶ 20.

Beginning in November 2008, Hill conducted a number of meetings without Allen that were related to projects on which Allen was working. See Allen EEO Decl. [Docket Entry 40–4] ¶¶ 19–26, 29 (Jan. 24, 2013). For instance, Allen was responsible for overseeing the work of contractor PriceWaterhouseCoopers on one kind of internal control testing. But she was not invited to and did not attend certain meetings between Hill and PriceWaterhouseCoopers. Similarly, Allen did not participate in certain meetings with different contractors about remedying the deficiencies Allen's team identified. See Pl.'s Opp'n to Mot. for Summ. J. [Docket Entry 40] at 5, 7 (Jan. 24, 2013).

Allen filed this action in 2009 challenging the implementation of her 2008 settlement agreement, alleging a number of instances of retaliation, and asserting a hostile work environment. Before discovery could occur, the Department moved to dismiss or, in the alternative, for summary judgment. The Court granted in part the Department's motion. The parties have now completed discovery, and the Department has moved for summary judgment on the remaining claims.

STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and the evidence demonstrate 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). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials,” which it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1); see also Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the Court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. Moreover, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249–50, 106 S.Ct. 2505 (citations omitted). Summary judgment, then, is appropriate if the nonmovant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505.

ANALYSIS

I. Exclusion from Meetings

Allen alleges that Hill excluded her from certain meetings relevant to her job, and that this amounted to an adverse action. To establish an actionable event for a retaliation claim, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse.” See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). An action is materially adverse when “it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” See id. (internal quotation marks omitted). An employment-related action challenged as retaliatory must “result in materially adverse consequences affecting the terms, conditions, or privileges of the plaintiff's employment.” Pardo–Kronemann v. Donovan, 601 F.3d 599, 607 (D.C.Cir.2010) (internal quotation marks omitted). “For employment actions that do not obviously result in a significant change in employment status ... an employee must go the further step of demonstrating how the decision nonetheless caused ... an objectively tangible harm.” Douglas v. Donovan, 559 F.3d 549, 553 (D.C.Cir.2009). Further, “a tangible employment action in most cases inflicts direct economic harm.” Id. at 552 (alteration and internal quotation marks omitted). While “objectively tangible harm” supports a Title VII action, “purely subjective injuries, such as dissatisfaction with a reassignment, public humiliation, or loss of reputation,” do not. Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006) (internal quotation marks omitted). Thus, “not everything that makes an employee unhappy is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir.2001) (internal quotation marks omitted).²

The Court declined to dismiss this claim before discovery because Allen could have developed evidence that the non-participation in certain meetings resulted in the requisite objectively tangible harm. SeeMemorandum Opinion at 17. Discovery, now completed, has revealed the contrary. The undisputed evidence establishes that Hill was in a number of meetings each day and as a result made her Outlook calendar, listing her meeting schedule, available to subordinates including Allen so they could ask to participate in any meeting on her schedule. See SOMF ¶ 55; see also Allen Decl. [Docket Entry 40–9] ¶ 22 (Jan. 24, 2013). While Allen points out that Hill never told Allen the calendar was available and she learned about it “accidentally,” Allen Decl. ¶ 22, she does not dispute that she knew she had access to the calendar at the time of the meetings at issue. And Allen has not identified a single specific meeting in which she asked to participate only to be rejected by Hill. See SOMF ¶¶ 56–57. Accordingly, rather than exclusion from meetings, what is really at issue is Hill's failure to affirmatively invite Allen. It is doubtful that an...