Augustus v. Locke

• Decision Date: 30 March 2013
• Docket Number: Civil Action No. 09–1003 (EGS).
• Citation: 934 F.Supp.2d 220
• Parties: Debra AUGUSTUS, Plaintiff, v. Gary LOCKE, Secretary, U.S. Department of Commerce, Defendant.
• Court: U.S. District Court — District of Columbia

934 F.Supp.2d 220

Debra AUGUSTUS, Plaintiff,

v.Gary LOCKE, Secretary, U.S. Department of Commerce, Defendant.

Civil Action No. 09–1003 (EGS).

United States District Court,

District of Columbia.

March 30, 2013.

Alan Lescht, Rani V. Rolston, Alan Lescht & Associates, Washington, DC, for Plaintiff.

Andrea McBarnette, Claire M. Whitaker, Alesia N. Black, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiff, Debra Augustus, an employee of the Office of Facilities Management (“OFM”) of the United States Department of Commerce (“DOC”) brings this action against the DOC alleging discrimination on the basis of her sex and race and retaliation for complaining of her discriminatory treatment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Defendant John E. Bryson, Secretary of Commerce, has filed a motion for summary judgment, essentially arguing that there are no material issues of fact and that judgment should be entered on behalf of defendant. Upon consideration of the motion, the responses and replies thereto, the applicable law, the entire record, and for the reasons set forth below, the Court hereby GRANTS Defendant's Motion for Summary Judgment.

I. Factual Allegations and Procedural BackgroundA. Factual Background¹

Ms. Augustus is an African–American female who was hired as an Equipment Facilities Services Assistant in the OFM in June or July of 2004. See Am. Compl. ¶ 5, 6. Her rank is ZS–IV, which is the rough equivalent of a GS–8 rank. See Am. Compl. ¶ 6; Def.'s Statement of Material Facts Not in Dispute (“Def.'s SMF”) ¶ 2. Her annual salary is approximately $52,000. Am. Compl. ¶ 6. During the relevant period, Patricia McNutt, Chief of the Office of Space and Building Management, was her direct supervisor. Def.'s SMF ¶ 4; Plaintiff's Statement of Material Facts in Dispute (“Plaintiff's SMF”) ¶ 3. Ms. McNutt is a white female whose rank is ZA–IV. Def.'s SMF ¶ 4.

As an Equipment Facilities Services Assistant, it is part of Ms. Augustus' responsibilities to answer phone calls to the room reservations line and coordinate room reservations. See Def.'s SMF ¶ 24; Def.'s Motion for Summary Judgment (“MSJ”) Ex. A., Deposition of Debra Augustus (“Augustus Dep.”) at 75:18–20. Ms. Augustus is also responsible for providing conference room activity reports and keeping track of lobby and auditorium reports. Augustus Dep. at 80:13–17. In addition, she provides administrative services, supports the staff, and is involved in evaluating data for finances. Id. at 226:1–7. In November 2007, Ms. Augustus received a pay increase based on her performance. Def.'s SMF ¶ 7.

1. Assignment of COTR Duties and Proposed Pay Increase

On or about December 17, 2007, Ms. Augustus was assigned the duties of Contracting Officer Technical Representative (“COTR”) for the cafeteria contract. See Am. Compl. ¶ 7; Def.'s SMF ¶ 8; Plaintiff's SMF ¶ 10. Her COTR responsibilities are “extensive” and include, inter alia, performing inspections twice daily, monitoring employees for health code compliance, inventory maintenance, data entry, processing employees and vendors, renewing DOC identifications, and modifying contracts. Am. Compl. ¶ 9. Ms. Augustus devotes approximately 45 to 50 percent of her time to her COTR duties. Id. ¶ 10. Ms. Augustus' COTR duties are collateral; she is expected to continue to perform her primary responsibilities in addition to her COTR responsibilities. Am. Compl. ¶ 7; Def.'s SMF ¶ 9; Def.'s MSJ, Ex. 3, Interrogatory Responses of Debra Augustus at 5. Ms. Augustus was aware that her new duties could be an opportunity for advancement, but she also knew that they did not guarantee a promotion or pay increase. Def.'s SMF ¶¶ 8, 11; Augustus Dep. at 48–24–49:21, 54:1–8; see also Def.'s MSJ, Ex. B., Decl. of Kelly Spence (“Spence Decl.”) ¶ 6.²

At some point after Ms. Augustus was made the COTR for the cafeteria contract, she discussed the possibility of a pay raise with her supervisor, Patricia McNutt. Am. Compl. ¶ 11; Def.'s SMF ¶ 11; Augustus Inter. at 6. To that end, in February 2008, Ms. McNutt and Doug Elznic, Plaintiff's second line supervisor, contacted Human Resources and were given two options: (1) they could rewrite her position description and re-advertise the position so Ms. Augustus could compete for it; or (2) perform a desk audit. Def.'s SMF ¶ 12.

Ms. Augustus alleges that while her supervisors were trying to find ways to promote her, a number of discriminatory events occurred. During a conversation between Ms. McNutt and Mr. Elznic about a potential pay increase, Mr. Elznic purportedly questioned her ability to handle the position. Am. Compl. ¶ 12; Plaintiff's SMF ¶ 16. She also alleges that Fred Fanning, her third-line supervisor, was considering a suggestion by Ms. McNutt to re-advertise her position as a ZA–II position, but ultimately chose not to because she would likely have been promoted as a result. Am. Compl. ¶ 13; Plaintiff's SMF ¶ 17. Finally, at a meeting in February 2008 that she did not attend, Ms. Augustus alleges that Mr. Elznic's assistant suggested that she should not get a raise, and that Mr. Fanning purportedly told other managers that they should “cross all of [their] t's” because she was filing a “case against the department.” Am. Compl. ¶¶ 15, 16; Plaintiff's SMF ¶ 19.

2. The Desk Audit and First EEO Complaint

On March 3, 2008, Mr. Elznic told Ms. Augustus he had requested a desk audit for her position. Def.'s SMF ¶ 13; Augustus Dep. at 58:16–23; Elznic Decl. at 5. Dionne Jones, a Human Resources Specialist, conducted a desk audit of her position; Ms. Augustus' administrative and COTR responsibilities were considered as part of the desk audit. Def.'s SMF ¶ 14; Augustus Dep. at 224:5–225:20; Def.'s MSG, Ex. G at 3. On April 29, 2008, Ms. McNutt, who was not involved in performing the desk audit or the final decision, informed Ms. Augustus that the desk audit had been completed and that there was no resultant change in her grade level. Def.'s SMF ¶ 15; Augustus Dep. at 159:10–13. The next day, Ms. Augustus was sent a final classification determination of her position pursuant to the desk audit. Def.'s SMF ¶ 16. According to the determination, her position title and classification were incorrect; however, the resulting reclassification would not result in a change in her grade or pay. Def.'s SMF ¶ 16; Am. Compl. ¶ 17. Ms. Augustus had the opportunity to appeal the decision to the Agency and the Office of Personnel Management; however, she did not appeal. Def.'s MSJ, Ex. G at 1; Def.'s SMF ¶ 16; Augustus Dep. 223:6–19.

Ms. Augustus' position was officially reclassified from Facility Management and Administrative Assistant, ZS–301–IV, to Facilities Services Assistant, ZS–1603–IV on June 22, 2008. Def.'s SMF ¶ 17. Her position was at the full performance level, which meant that she could not be promoted to a higher classification without competing for another open position. Id.; Spence Decl. ¶¶ 2, 3. After she did not receive a promotion as a result of the desk audit, Ms. Augustus filed an EEO complaint on June 23, 2008 (No. 08–51–00148), alleging discrimination on the basis of her sex and race. Am. Compl. ¶ 20; Plaintiff's Opp'n, Ex. 1, Decl. of Debra Augustus (“Augustus Decl.”) ¶ 24. Ms. McNutt was not named as the discriminating official in the complaint. Def.'s MSJ at 1, 6.

3. Allegations of Retaliation

Ms. Augustus alleges that after she filed her EEO complaint, Ms. McNutt began “retaliating against her by scrutinizing her work and threatening” her, which caused her severe stress and anxiety, and made her feel upset, uneasy, uncomfortable, and intimidated. Am. Compl. ¶ 21; Augustus Decl. ¶¶ 26, 28. In addition, beginning at this time Ms. McNutt also purportedly singled her out by reminding her that she was on the pay for performance program, and that her ability to secure promotions or pay increases was tied to her performance. Am. Compl. ¶ 22.

Despite this alleged retaliation, Ms. Augustus received a positive yearly review, a 3.3% performance pay increase, and a $2,000 bonus in November 2008. Def.'s SMF ¶ 18. And the following month, Ms. McNutt asked her to apply for a Management Analyst position that had recently been advertised because she could not be promoted in her current position. Def.'s SMF ¶ 19. Shortly thereafter Larry Hess, Ms. Augustus' second line supervisor, met with her to inquire whether she submitted an application. Id.; Augustus Dep. at 66:24–67:25, 220:12–24. Ms. Augustus did not apply for the position. Plaintiff's SMF ¶ 20.

On March 31, 2009, Ms. McNutt arrived at work and could not find Ms. Augustus. None of her co-workers knew her whereabouts and Ms. Augustus did not have a two-way radio, which she usually carried, with her. Def.'s SMF ¶ 24. When Ms. Augustus returned to her desk, Ms. McNutt told her that she needed to be seated at her desk from 7:45 a.m. to 9:00 a.m. daily to answer room reservation calls, which was part of her primary responsibilities. Id. If she needed to leave her desk, she was instructed to leave a note on Ms. McNutt's office door. Id. Ms. Augustus contends that there were two other employees available to answer the phone, and that neither of these employees was required to leave a note before leaving their desk. Am. Compl. ¶ 25.

The situation escalated on the morning of May 19, 2008. Ms. Augustus was away from her desk attending to her COTR duties; she had not left a note for McNutt explaining where she was, as she had been instructed to do on March 31, 2009. Am. Compl. ¶ 29; Def.'s SMF ¶ 29. Though Ms. Augustus was often away from her desk in the morning, she had only left a note “one or two times.” Augustus Dep. at 111:5–112:10. That morning, Ms. McNutt contacted Human Resources about Ms. Augustus' failure to leave a note and was told that she could either place her on Absent Without Official Leave (“AWOL”) status or...