Esters v. Nielsen

• Decision Date: 24 February 2021
• Docket Number: Civil Action No. 1:18-cv-02547 (CJN)
• Parties: KIMBERLY A. ESTERS, Plaintiff, v. KIRSTJEN M. NIELSEN, Secretary of the U.S. Department of Homeland Security Defendant.
• Court: U.S. District Court — District of Columbia

KIMBERLY A. ESTERS, Plaintiff, v. KIRSTJEN M. NIELSEN, Secretary of the U.S. Department of Homeland Security Defendant.

Civil Action No. 1:18-cv-02547 (CJN)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 24, 2021

MEMORANDUM OPINION

Kimberly Esters was a Management and Program Analyst ("MAPA") employed by the Department of Homeland Security. Compl. ¶¶ 21-22, ECF No. 1. After a series of disputes with her supervisor, she sued DHS for discrimination, retaliation, and a hostile work environment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a). See generally Compl. Following discovery, DHS moved for summary judgment. See generally Def.'s Mot. for Summ. J. ("Mot."), ECF No. 18. For the following reasons, the Court grants summary judgment for DHS on all of Plaintiff's claims.

I. Background

Esters's work troubles began during her time as an employee in DHS's Office of Cyber and Infrastructure Analysis ("OCIA"). Compl. ¶ 21. In March 2013, Esters submitted a request to telework in order to care for her sick mother. Id. ¶ 27. Her first-line supervisor, Rick Bosarge, granted her initial request. Id. But Bosarge later spoke with his supervisor, Tommy Brown, who informed Bosarge that OCIA policy did not permit employees to telework in order to care for dependents. Id. ¶¶ 28-29. Following his conversation with Brown, Bosarge denied Esters's request to continue teleworking. Pl.'s Resp. to Def.'s Statement of Material Facts ("Pl.'s SOMF") ¶¶ 9, 12, 27, ECF No. 19-1. While Esters acknowledges that OCIA's formal policy did not permit dependent care,¹ she asserts that OCIA actually practiced an informal policy in which telework approval was left to the manager's discretion. Pl.'s Opp'n to Def.'s Mot. ("Pl.'s Opp'n") at 11-12, ECF No. 19. In particular, Esters alleges that two other employees were permitted to telework while caring for dependents, the first while on maternity leave, id., and the second to care for his wife after surgery, id. at 11.

Later that year, Esters met with Brown and a second employee for her mid-year review, where she was informed that she was on track to receive a score of 3.6 to 3.7 for her upcoming performance evaluation. Pl.'s Opp'n at 12-13; Compl. ¶ 34. Her ultimate score, however, was 3.1. Compl. ¶ 31. Esters alleges that she requested a meeting with Brown to discuss her lower-than-expected score but Brown refused to meet with her. Id. ¶ 36. Thereafter, Esters sent an email "up the chain of command" detailing her concerns regarding her performance evaluation. Id. ¶ 37. After learning that Esters had sent her email, Brown said to Esters "I thought we talked about how you need to handle matters with your performance evaluation. I told you how you could work on communication skills with Rick." Id. ¶ 40.

Esters asserts that Brown became increasingly "negative and harassing" toward her in the following months. Compl. ¶ 43. She identifies at least five encounters with Brown during which he demonstrated hostile behavior. In February 2014, Brown spoke harshly to Esters in the presence of other DHS employees. Id. ¶ 44. In May 2014, Brown approached Esters on three separateoccasions, the first time to yell at her regarding a "one-pager" missing from his notebook, id. ¶ 45; the second time to yell at her about hiding information from his executive assistants, staying in her cubicle, and not processing his travel expense report, id. ¶¶ 51-52; and the third time to confront her about his travel voucher in what Esters describes as a "hostile and badgering tone," id. ¶ 53. Esters also alleges that Brown tried to embarrass her on other occasions by raising his voice and asking her questions that she wouldn't be able to answer as a new contracting officer representative. Id. ¶ 57. Finally, Esters asserts that Brown made clear that she would never be promoted. Id. ¶ 59.

In June 2014, Esters filed an informal EEO complaint. Compl. ¶ 58. She alleges that, over the next several months, her supervisors retaliated against her for her protected EEO activity and continued to discriminate against her by failing to promote her despite performing duties performed by individuals with higher GS levels, denying her the opportunity to compete for a position, and failing to select her for two MAPA positions. In particular, she alleges that Brown attempted to intimidate her by asking if she was "'being prevented from filing an EEO' complaint," id. ¶ 74, and telling her that he had heard she was "having problems," id.; that Brown initiated a gap analysis to promote another analyst from a GS-11 to a GS-12 but no such gap analysis was requested for her (she was a GS-9 at the time), id. ¶¶ 71-72; Pl.'s Opp'n 13-14; that during the relevant period, she performed some of the same duties as another employee who was working as a GS-13, Pl's Opp'n at 14; that after she left her position, her replacement was hired as a GS-12, Compl. ¶ 73; that DHS did not consider her for a GS-11 MAPA position that it filled, id. ¶¶ 60-61; Pl.'s SOMF ¶ 52; and that she was not selected for two management positions for which she applied, Pl.'s Opp'n at 14-15.

On a final note, Esters contends that she was required to work without a position description and perform duties outside of her job classification. Compl. ¶ 41. At her deposition, Esters clarified that Brown did sign a position description for her position in 2011, Mot. Ex. 7 at 71-76,² ECF No. 18-11, and that her claim is actually that she was assigned human capital tasks that were not her responsibility, id.

II. Legal Standard

Absent evidence of direct discrimination, disparate-treatment claims are subject to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008); Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). A plaintiff establishes a prima facie discrimination claim by alleging that "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (quoting George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005)). For a retaliation claim, a plaintiff must allege that (1) she engaged in protected activity, (2) she was subjected to an adverse employment action, and (3) there was a causal link between the protected activity and the adverse action. Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007)).

Once a plaintiff establishes a prima facie claim,³ the burden shifts to the employer to articulate some legitimate, non-discriminatory or non-retaliatory reason on which it relied in taking the complained-of action. Jones, 557 F.3d at 677. This burden is "merely one of production" inwhich an employer must produce evidence "sufficient for the trier of fact to conclude" that the action was taken for the provided reason. Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 854 (D.C. Cir. 2006). An employer's explanation for the challenged action must be "clear and reasonably specific." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981). "This obligation arises both from the necessity of rebutting the inference of discrimination arising from the prima facie case and from the requirement that the plaintiff be afforded 'a full and fair opportunity' to demonstrate pretext." Id.; see also Oates v. District of Columbia, 824 F.2d 87, 91 (D.C. Cir. 1987). But this intermediate burden does not require the employer to introduce evidence that, absent any evidence of pretext, would persuade the trier of fact that the employment action was lawful. Burdine, 450 U.S. at 257; see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc) (employer not required to support reasons with objective evidence sufficient to satisfy preponderance of the evidence standard; at all times the plaintiff retains ultimate burden of persuasion).

When the employer proffers a sufficiently clear and specific reason, the "central question" at summary judgment becomes whether "the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, [age,] or national origin[.]" Brady, 520 F.3d at 494 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 511 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-16 (1983)); Bilal-Edwards v. United Planning Org., 15 F. Supp. 3d 1, 11-12 (D.D.C. 2013) (similar analysis for ADEA claim). The plaintiff may make this showing "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."Burdine, 450 U.S. at 256. Either way, the plaintiff is required to show "both that the reason was false, and that discrimination was the real reason." Hicks, 509 U.S. at 515.

Whether evidence proffered to show pretext is sufficient to raise an inference of unlawful discrimination or retaliation is a fact-sensitive inquiry. See Aka, 156 F.3d at 1294 ("[I]t is difficult, if not impossible, to say in any concise or generic way under what precise circumstances such an inference will be inappropriate."). The Court of Appeals has identified several factors that may support an inference of pretext, including the employer's (1) preferential treatment of similarly situated employees outside the plaintiff's protected group; (2) inconsistent or dishonest explanations; (3) deviation from established procedures or criteria; (4) pattern of poor treatment of other employees...