Bush v. Engleman

• Decision Date: 04 June 2003
• Docket Number: No. CIV.A. 01-0372(PLF).,CIV.A. 01-0372(PLF).
• Parties: Barbara J. BUSH, Plaintiff, v. Ellen ENGLEMAN, Chair, National Transportation Safety Board, Defendant.
• Court: U.S. District Court — District of Columbia

266 F.Supp.2d 97

Barbara J. BUSH, Plaintiff, v. Ellen ENGLEMAN, Chair, National Transportation Safety Board, Defendant.

No. CIV.A. 01-0372(PLF).

United States District Court, District of Columbia.

June 4, 2003.

John W. Davis, Washington, DC, for Plaint

David J. Ball, Jr., Assistant United States Attorney, Washington, DC, for Defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on defendant's motion to dismiss or for summary judgment or, in the alternative, for a more definite statement. Upon consideration of defendant's motion, plaintiffs opposition, defendant's reply and the entire record before it, the Court grants defendant's motion to dismiss with respect to plaintiffs discrimination claims because plaintiff failed to exhaust her administrative remedies, and grants defendant's motion for summary judgment with respect to plaintiffs claim of retaliation.

I. BACKGROUND

Plaintiff Barbara Bush is an African-American woman who has been a federal government employee for over 40 years and now is employed as Chief of the Facilities Division at the National Transportation Safety Board ("NTSB"). See Comp. 115. Defendant Ellen Engleman is sued in her official capacity as Chairman of the NTSB. Plaintiff alleges that her employer has taken adverse employment actions against her that constitute race and gender discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 633 et seq.¹

Specifically, plaintiff alleges that in 1997 and 1998, she was subjected to insulting and hostile treatment by a management employee at NTSB, Craig Keller, and that defendant refused to remedy this hostile treatment. See Comp. ¶¶ 10-23. Allegedly as a result of Mr. Keller's actions and defendant's failure to respond, plaintiff sought equal employment opportunity ("EEO") counseling within the NTSB on November 3, 1998. See Defendant's Motion to Dismiss or for Summary Judgment or, in the Alternative, for a More Definite Statement ("Def.Motion"), Exh. 3, Plaintiffs Administrative EEO Complaint at 1 ("EEO Comp.").² After she began the internal EEO process, plaintiff asserts, defendant retaliated against her by transferring plaintiffs contracting responsibilities to another division under Mr. Keller. See id. MI 18, 28-30. In addition, plaintiff alleges that after she filed a formal complaint of discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"), defendant transferred two members of plaintiffs staff to another division. See id. 111123, 28-30. Plaintiff asserts that these acts constituted illegal discrimination and retaliation based on plaintiffs age, race and gender as well as on her protected EEO conduct, and had the effect of disqualifying plaintiff from performance awards and promotion eligibility. See id. ¶¶ 24-26, 28-30.

In describing the circumstances of the alleged discrimination and retaliation, plaintiff also mentions a management study that was commissioned by the NTSB in 1998 and conducted by an outside consultant. See Comp. ¶¶ 18-21. The complaint gives few details about the study, but plaintiff acknowledges in her opposition to summary judgment that it was this study that recommended the transfer of certain of plaintiffs responsibilities and staff to another division. See Plaintiffs Opposition to Defendant's Motion to Dismiss or for Summary Judgment or, in the Alternative, for a More Definite Statement at 7 ("Pl.Opp."). While plaintiff does not allege that the outside consultant itself was somehow biased, she suggests that the practical impact of the study—namely, the transfer of duties and staff away from plaintiff—was not legitimate but rather retaliatory, arguing that "[irrespective of the management study's report and recommendations, NTSB officials had absolute discretion as to whether to transfer Plaintiffs duties away from her and whether to give them to her harasser [Keller], and they did so. And they made that decision after Plaintiff had entered the EEO process." PI. Opp. at 7-8.

Defendant describes the management study in greater detail and provides evidence that the study was independent and unbiased and thus that the implementation of its recommendations is inconsistent with plaintiffs theory of retaliation. According to the documents submitted by defendant and uncontested by plaintiff, the study was conducted by outside consultant FPMI Communications, Inc. in an effort to identify ways to meet the NTSB's needs in human resources management and facilities. See Def. Motion, Exh. 1, FPMI Communications, "NTSB: A Review of Options for Meeting Human Resource Management and Facilities Needs" at 1 ("FPMI Report"); EEO Comp. ¶9. One purpose of the study was to examine which functions should be assigned to the office of the Chief Financial Officer ("CFO"), which position the NTSB had created earlier in 1998. See Def. Motion, Exh. 11, Affidavit of Peter Goelz at 3 ("Goelz aff."). The CFO already was responsible for emergency accident related contracts, and the study considered whether all contracting for the NTSB should be consolidated in the CFO's office. See id, at 2; FPMI Report at 28.

In conducting the study, FPMI interviewed plaintiff and other NTSB managers to evaluate the performance and efficiency of each division. See FPMI Report at 4. FPMI submitted its written report to the NTSB on January 4, 1999, recommending the transfer of all contracting responsibilities to the CFO's office because contracts "would benefit from assignment to the CFO's Office where some contract oversight is occurring now," and identifying efficiencies and other improvements in the NTSB's operations that could be expected to result from the transfer. Id at 28. The NTSB's management employees immediately took measures to implement FPMI's recommendations. See id. at 1. On January 15, 1999, all contracting duties were moved from the Facilities Department (plaintiffs division) to the CFO's office. See Goelz Aff. at 3; Battocchi Aff. at 3. Subsequently, the NTSB also transferred two employee slots related to contract work from plaintiffs division to the CFO's office. See Def. Motion, Exh. 2, January 25, 1999 E-mail from Keller to CFO Staff.

Shortly after the transfer was announced, plaintiff completed her EEO counseling and, on February 17, 1999, she filed her administrative EEO complaint, alleging age, race and gender discrimination and retaliation by the NTSB. See EEO Comp. Roughly two months later, the NTSB announced that it was dismissing plaintiffs discrimination claims for failure to state a claim but would accept her retaliation claim for investigation. See Def. Motion, Exh. 4, April 8, 1999 NTSB Notice Letter at 1-2. In giving notice of this partial dismissal of plaintiffs claims, the agency informed plaintiff of her right to appeal the dismissal of her discrimination claims to the EEOC. See id. at 2.

Plaintiff states that she filed a notice of appeal of the partial dismissal with the EEOC on April 30, 1999. See Pl. Opp. at 2. While it is unclear whether the EEOC received plaintiffs appeal, the NTSB did receive a service copy of plaintiffs notice of appeal and the Court will proceed on the assumption that her notice was properly filed as she asserts. See Def. Motion, Exh. 5, Plaintiffs Notice of Appeal; Def. Reply at 3, n. 2. In the notice, plaintiff stated that she planned to file a brief in support of her appeal "within the time limits provided by the Commission's Regulations appearing at 29 C.F.R. § 1614 et seq." See id. at 1. These regulations require that an appeal brief be filed within 30 days of a notice of appeal. See 29 C.F.R. § 1614.403(d)., Despite her representation that she would file a timely brief, plaintiff did not file a brief in support of her appeal, either within the 30 days or thereafter. See Def. Motion at 3-4. Accordingly, when plaintiff later appealed the NTSB's denial of her retaliation claims and the EEOC granted summary judgment to the NTSB on those claims, it held also that plaintiff had waived her right to appeal the NTSB's earlier dismissal of her discrimination claims. See Def. Mot., Exh. 8, EEOC Decision at 1, n. 1. Based on the EEOC's denial of relief, plaintiff filed this action in which she reasserts her claims of both discrimination and retaliation.

II. DISCUSSION

A Discrimination Claims: Failure to Exhaust

With respect to plaintiffs allegations of race, age arid gender discrimination and hostile work environment, defendant correctly argues that plaintiff has failed to exhaust her administrative remedies. As defendant notes, Title VII confers the right to file a civil action in federal court only when a party has been "aggrieved by the final disposition of [her administrative] complaint, or by the failure to take final action on [her] complaint." 42 U.S.C. § 2000e-16(c). This exhaustion requirement is mandatory and serves to "allow the agency an opportunity to resolve the matter internally and avoid unnecessarily burdening the courts." Wilson v. Pena, 79 F.3d 154, 165 (D.C.Cir.1996). Furthermore, a plaintiff who abandons the administrative process fails to satisfy the exhaustion requirement. "A plaintiff may not cut short the administrative process prior to its final disposition, for upon abandonment a claimant fails to exhaust administrative relief and may not thereafter seek redress from the courts." Greenlaw v. Garrett, 59 F.3d 994, 997 (9th Cir.1995); see also Powell v. Reno, No. 98-2299, 1999 U.S. Dist. LEXIS 18134, at *6 (D.D.C. Nov. 12, 1999) ("A plaintiff who abandons the administrative process mid-stream `prevents exhaustion and precludes judicial review of those claims.'") (quoting Greenlaw v. Garrett, 59 F.3d at 997).

In the present case, plaintiff argues that she exhausted her administrative remedies with respect to her discrimination claims by...