Burford v. Powell
| Decision Date | 26 February 2019 |
| Docket Number | Civil Action No. 15-2074 (RMC) |
| Parties | DEBORA C. BURFORD, Plaintiff, v. JEROME H. POWELL, Chairman, Board of Governors of the Federal Reserve System, Defendant. |
| Court | U.S. District Court — District of Columbia |
DeBora C. Burford sues her former employer, the Board of Governors of the Federal Reserve System, for retaliation in violation of Title VII and the Age Discrimination in Employment Act. She alleges that she was assigned to "non-critical" security posts rather than the "critical" ones to which she was entitled as a Lead Officer, in retaliation for her protected activity. The Board of Governors maintains that Ms. Burford's post assignments did not constitute materially adverse actions and even if they did, Ms. Burford cannot show the requisite causal nexus between her protected activity and the actions. Both parties move for summary judgment.1
DeBora C. Burford was employed as a Senior Law Enforcement Officer (sometimes, LEO) for the Board of Governors of the Federal Reserve System (the Board) in its Law Enforcement Unit (sometimes, LEU) from 2002 until 2011. Def.'s SOF ¶ 1. In 2009 the Law Enforcement Unit instituted a program by which certain "exemplary" Law Enforcement Officers were designated as "Lead Officers" and routinely assigned to five "critical" security posts "in order to raise the standards of the Unit, improve performance, and to assist in establishing a positive rapport with Board employees." Def.'s SOF ¶ 3; see also Def.'s Mot., Ex. B, Lead Officer Program Description [Dkt. 53-2]; Pl.'s Cross-Mot., Ex. A, Deposition of Larence Dublin (Dublin Dep.) [Dkt. 54-1] at 50-51.3 Participation in the Lead Officer Program was voluntary and did not involve any additional compensation or benefits. See Lead Officer Program Description; Def.'s Mot., Ex. D, Deposition of DeBora Burford (Burford Dep.) [Dkt. 53-4] at 46.4 Lead Officers were expected to be able to handle posts independently, but they hadno supervisory responsibilities. See Lead Officer Program Description; Burford Dep. at 54-56. Designation as a Lead Officer was, thus, not a promotion but a mark of distinction.
In November 2009, Lieutenant Larence Dublin notified Ms. Burford and 11 other LEOs by email that they had been selected for the Lead Officer Program for the day shift:
Congratulations. You have been selected to serve as a Lead Officer on the Day Shift. Your supervisors selected you from a pool of applicants based on technical ability, the ability to work under pressure, and sound judgement [sic]. You will be rotated daily through the five critical posts . . . as well as non-critical posts.
Def.'s Mot., Ex. C, Lead Officer Selection Email [Dkt. 53-3]. Thus, the 12 new Lead Officers were assigned to both the five critical posts and other, non-critical posts. Id. The five critical posts were: the Board's Visitors Center (E1), East Court (E4), West Court (E5), Podium (M1), and South Garage (M8) locations. Id.; see also Burford Dep. at 36-37. It appears that the advantage to the critical posts may have been that the Officer was seated, and not standing; certainly there was more interaction with the other staff of the Board. In the late summer and early fall of 2010, post assignments were made by Sergeant Michelle Tillery-Fuller, the LEU Administrative Sergeant at that time. Def.'s SOF ¶ 9; Am. Compl. ¶¶ 40, 44.
In the summer of 2010, Lead Officer Burford and Law Enforcement Officer Sandra Love had two altercations. As Ms. Burford later complained, Ms. Love had used vulgar language in talking to Ms. Burford in December 2009, and then accused Ms. Burford of "bumping" her on July 23, 2010, and of "putting [her] butt in [Ms. Love's] face" on August 11, 2010. Def.'s Mot. to Dismiss, Ex. A, EEOC Decision [Dkt. 17-1] at 2 (describing Ms. Burford's allegations). At an unspecified time, Ms. Burford "filed her EEO complaint and LEU managers failed to address Love's aggressive and potentially violent behaviors." Am. Compl. ¶ 120. As a result of various disputes with Ms. Love, Ms. Burford testified that Burford Dep. at 23. Ms. Burford further alleges, andDefendant essentially admits, that from August 12, 2010 to October 7, 2010, Ms. Burford was assigned primarily to regular (standing) post duties and not to critical (seated) posts. See EEOC Decision at 2 ( Ms. Burford's allegations); see also Pl.'s Cross-Mot., Ex. A, Deposition of Michelle Tillery-Fuller (Tillery-Fuller Dep.) at 79-80.
During the ensuing EEO investigation, several of Ms. Burford's fellow officers were interviewed in early 2011; Ms. Burford submits signed affidavits from these persons with her briefing. See Pl.'s Cross-Mot., Ex. A, Aff. of Shandra Love (Love Aff.) at 2-6; Aff. of Larence Dublin (Dublin Aff.) at 43-48; Aff. of Michelle Tillery-Fuller (Tillery-Fuller Aff.) at 66-69; Aff. of Franklin Williams (Williams Aff.) at 106-110; Aff. of Billy Sauls (Sauls Aff.) at 121-128. Several of these individuals were also deposed in the instant action. See Pl.'s Cross-Mot., Ex. A, Deposition of Shandra Love (Love Dep.) at 9-42; Deposition of Larence Dublin (Dublin Dep.) at 49-65; Tillery-Fuller Dep. at 70-88; Deposition of Melvin Barksdale (Barksdale Dep.) at 89-105; Deposition of Franklin Williams (Williams Dep.) at 111-120.
Ms. Burford requested a hearing before an EEOC Administrative Judge (AJ). See EEOC Decision. The Board filed a motion for summary judgment, which the AJ granted, and the Board adopted the AJ decision as its own. Id. The EEOC affirmed the finding of no discrimination and no hostile work environment. Id.
Ms. Burford brought this lawsuit pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 § U.S.C. 2000e-16 et seq, and the Age Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. § 621 et seq. In an earlier Memorandum Opinion, this Court dismissed all but one of Ms. Burford's claims. See 3/31/17 Mem. Op. [Dkt. 24]; 3/31/17 Order [Dkt. 25]. Remaining is Ms. Burford's claim that she was retaliated against for her EEO activities when she was assigned to non-critical posts from August 12 to October 7,2010.5 The parties have completed discovery and each has filed a motion for summary judgment.
The Court has jurisdiction over this matter under 28 U.S.C. § 1331, as the retaliation claim arises under the laws of the United States, specifically Title VII and the ADEA. Venue is proper in the District of Columbia because the Board is located in the District, Ms. Burford was employed at the Board in the District, and the relevant actions complained of occurred in the District. See 28 U.S.C. § 1391.
Both Ms. Burford and the Board move for summary judgment. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be 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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to makea showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In ruling on a motion for summary judgment, a court gives the non-movant the benefit of all permissible inferences that may be drawn from the facts alleged in the complaint and accepts the nonmoving party's evidence as true. Anderson, 477 U.S. at 255; Talavera, 638 F.3d at 308. A nonmoving party, however, must establish more than "[t]he mere existence of a scintilla of evidence" in support of its position. Anderson, 477 U.S. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50. Since both parties have moved for summary judgment, these principles will be applied only insofar as Ms. Burford, a pro se plaintiff, is given some leeway. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) () (citation omitted); Hisler v. Gallaudet Univ., 206 F.R.D 11, 14 (D.D.C. 2002) ().
Both Title VII and the ADEA prohibit employers from retaliating against an employee because she "has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a); seealso Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008) (); Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008) ().
To prove retaliation for protected EEO activities under Title VII, an employee must establish three elements: that (1) she made a charge or opposed a practice made unlawful by Title VII; (2) the employer took a materially adverse action against her; and (3) the employer acted "because of" her protected conduct. Allen v. Johnson, ...
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