Arnold v. Salazar

• Decision Date: 19 September 2013
• Docket Number: Civil Action No. 09–964 (RWR).
• Parties: Romella ARNOLD, Plaintiff, v. Ken SALAZAR, Defendant.
• Court: U.S. District Court — District of Columbia

970 F.Supp.2d 1

Romella ARNOLD, Plaintiff,

v.Ken SALAZAR, Defendant.

Civil Action No. 09–964 (RWR).

United States District Court, District of Columbia.

Sept. 19, 2013.

David A. Branch, Law Office of David Branch, Washington, DC, for Plaintiff.

Rhonda C. Fields, Claire M. Whitaker, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD W. ROBERTS, Chief Judge.

Plaintiff Romella Arnold, an African–American employee of the United States Department of the Interior (“DOI”), brings suit against the Secretary of the DOI (“Secretary”) alleging that the Secretary failed to promote her in retaliation for her prior EEO activity, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. At the close of discovery, the Secretary moved for summary judgment. Because Arnold failed to exhaust her administrative remedies and establish a prima facie case that the Secretary retaliated against her by failing to select her for acting supervisor positions, and because Arnold has not rebutted the non-retaliatory reason the Secretary proffered for not promoting her to the Program Manager position for which she applied, the Secretary's motion for summary judgment will be granted.

BACKGROUND

Arnold is an African–American woman who has been employed by the DOI since 1973 when she joined the department as a co-op student. Compl. ¶ 2; Def.'s Mot. for Summ. J. (“Def.'s Mot.”), Romella Arnold Dep. (“Arnold Dep.”) at 6:6–9. In 1975, Arnold became a full-time Equal Employment Opportunity (“EEO”) Specialist in the Office of the Secretary. Arnold Dep. at 6:6–10; Def.'s Mem. of P. & A. (“Def.'s Mem.”) at 1. In 1997, Arnold was reassigned to the DOI's Bureau of Land Management (“BLM”) where she worked as an EEO Specialist. Arnold Dep. at 14:17–15:1; Def.'s Mem. at 2. The next year, Arnold became a GS–13 National Student Employment Program Manager. Compl. ¶ 5; Def.'s Mem. at 2; Arnold Dep. at 14:17–15:4. In 2001, Arnold was detailed to a temporary, 120–day promotion to a GS–14 Program Manager of the Diversity Intern Program and Historically Black Colleges and Universities (HBCU) program. In 2002, after her successor's 120–day detail ended, Arnold resumed the Diversity Intern Program and HBCU Program Manager position, although not on another GS–14 detail, and continued to fulfill her duties as National Student EmploymentProgram Manager. Def.'s Mem. at 3; Arnold Dep. at 20:5–20.

In 2002, Marilyn Johnson was hired as the Assistant Director for Human Resources for the BLM. In this capacity, Johnson served as Arnold's second-level supervisor. Def.'s Mot., Ex. 17, Marilyn Johnson Interview at 4:21–5:11. According to Arnold, Johnson created a hostile work environment, discriminated against Arnold by making false accusations about her, and demoted Arnold from her position as National Student Employment Program Manager in August 2003. Compl. ¶ 7. Johnson appointed Michael Brown to replace Arnold and reassigned Arnold to a GS–13 Title VI EEO Specialist position. Def.'s Mot., Ex. 4, Pl.'s Answers & Objections to Def.'s 1st Set of Interrogs. & Reqs. for Produc. of Docs. at 7. In early August 2003, Arnold made initial contact with an EEO counselor concerning her reassignment to the Title VI position and alleging that Johnson discriminated and retaliated against her, and that Johnson created a hostile work environment. Compl. ¶ 7; Def.'s Mot., Stmt. of Material Facts (“Def.'s Stmt.”) ¶ 1.

In 2004, Brown was removed from the Program Manager position and Sylvia Felder was temporarily assigned as Acting Program Manager. Compl. ¶ 7; Def.'s Stmt. ¶ 8. In 2005, the DOI posted a vacancy announcement (WO Merit 2005–0135) for the Program Manager position (GS–0340–14) “in the Office of the Chief, Human Capital Management, Project Director, Special Initiatives Group.” Def.'s Stmt. ¶ 5. According to the position description, the Program Manager position has “supervisory and management responsibilities,” but the “position does not require technical competence in a specialized function area of Human Resources Management[.]” Def.'s Mot., Ex. 8, Romella Arnold Report of Investigation (“Arnold ROI”) at 195; Def.'s Stmt. ¶ 7. The vacancy announcement “advised applicants that their applications would be scored using an automated on-line system which included self-assessment questions, the answers to which would be used in determining the applicants' qualifications for the position[.]” Def.'s Stmt. ¶ 10. Twelve people applied for the position, including Arnold, Felder, and Brown, and ten received ranking scores.¹ Def.'s Stmt. ¶ 11; Def.'s Mot., Ex. 19, Decl. of Philesa A. Spencer (“Spencer Decl.”) ¶ 9 & Ex. S3. Based on the applicants' responses to the self-assessment questions, the computer generated the following scores:

Def.'s Stmt. ¶ 11.

Philesa Spencer was the Human Resources Specialist responsible for processing the vacancy. Id. ¶ 12. Robert Renton, Johnson's assistant, was the selecting official for the position. Id.; Compl. ¶ 10. Spencer told Renton the number of applicants but not their identities and Renton asked Spencer to send him the top candidates. Def.'s Stmt. ¶¶ 13–15. Spencer selected candidates with scores over 95; the four candidates, who did not include Arnold, were referred for further consideration. Id. ¶¶ 15, 17. A panel interviewed the four candidates and recommended that Renton hire Brown. Id. ¶ 18. Felder was the panel's 4th choice. Id. Nevertheless, Felder was selected for the position in June 2005. Id. ¶ 19; Def.'s Mot., Ex. 16, Hr'g Exs. (Volume 3) at 13.

Arnold made initial contact with an EEO counselor on May 23, 2005 claiming that the DOI retaliated against for filing her 2003 EEO complaint by (1) “fail [ing] to provide [her] with the opportunity to serve in Acting Supervisory positions as such positions became available in the Human Resources office,” and (2) “fail[ing] to consider [her] prior work experience, knowledge, and skills among the best-qualified candidates” for the Program Manager position. Arnold ROI at 9–10. “On July 18, 2005, Arnold amended her complaint to add a claim of reprisal due to her non-selection for the [Program Manager] position.” Def.'s Stmt. ¶ 20. Arnold filed her one-count complaint alleging retaliation for filing her 2003 EEO complaint in May 2009.

The Secretary moves for summary judgment. With respect to Arnold's claim that she was retaliated against by not being selected for acting supervisor positions, the Secretary argues that Arnold failed to exhaust her administrative remedies, and, even if she had, that Arnold cannot establish a prima facie case of retaliation for all of the non-selections. The Secretary also argues that Arnold failed to rebut the legitimate, non-retaliatory reason for not promoting Arnold to the Program Manager position. Arnold opposes.

DISCUSSION

Summary judgment is properly granted if the “movant shows 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, 259, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[A] summary judgment motion will be defeated if sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial, and that a plaintiff may not, in defending against a motion for summary judgment, rest on mere allegations or denials of his pleadings.” (citation omitted) (internal quotation marks omitted)). “A genuine issue is present in a case where the ‘evidence is such that a reasonable jury could return a verdict for the non-moving party,’ a situation separate and distinct from a case where the evidence is ‘so one-sided that one party must prevail as a matter of law.’ ” Dozier–Nix v. District of Columbia, 851 F.Supp.2d 163, 166 (D.D.C.2012) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). “ ‘In considering a motion for summary judgment, a court is to draw all justifiable inferences from the evidence in favor of the nonmovant.’ ” Hairston v. Boardman, 915 F.Supp.2d 155, 159 (D.D.C.2013) (internal quotation marks omitted) (quoting Fields v. Geithner, 840 F.Supp.2d 128, 133 (D.D.C.2012)).

Federal employers are prohibited from discriminating against an employee because the employee “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e–3(a); 42 U.S.C. § 2000e–16 (applying § 2000e–3(a) to federal employers); see also Rochon v. Gonzales, 438 F.3d 1211, 1216 (D.C.Cir.2006).

I. NON–SELECTION FOR ACTING SUPERVISOR POSITIONS

Arnold alleges that the Secretary retaliated against her for bringing her 2003 EEO complaint by not selecting her for acting supervisor positions. Compl. ¶¶ 7, 15. Arnold claims that on eighteen occasions in 2002 to 2005, Def.'s Mot., Ex. 5, Pl.'s Answers to Interrogs. & Resps. to Req. for Prod. of Docs. (“Arnold Interrogs.”) at 8–11, “[o]ther employees in the [Office of Human Resources] were permitted to act in supervisory positions” when Johnson or other supervisors were out of the office but Arnold was never permitted to act in such a position, Compl. ¶ 7. The Secretary argues that he is entitled to judgment as a matter of law on these claims because Arnold failed to timely exhaust her administrative remedies for the acting supervisor positions assigned in 2003 to 2005 and cannot establish a prima facie case of retaliation for the acting supervisor position assigned in 2002. Def.'s Mem. at 13–16.

Title VII “[c]omplainants must timely exhaust the[ir] administrative remedies before bringing their claims to court.” Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997). Specifically, a plaintiff must initiate informal contact with an EEO counselor within 45 days of when the alleged discriminatory conduct occurred. 42 U.S.C. § 2000e–16(c); 29 C.F.R. § 1614.105(...