Gilliard v. Martin Gruenberg, Chairman, Fed. Deposit Ins. Corp.

Decision Date26 March 2018
Docket NumberCivil Action No.: 16–2007 (RC)
Citation302 F.Supp.3d 257
Parties Stephanie A. GILLIARD, Plaintiff, v. Martin GRUENBERG, Chairman, Federal Deposit Insurance Corporation, et al., Defendants.
CourtU.S. District Court — District of Columbia

Deidra L. McEachern, McEachern & McEachern, Largo, MD, for Plaintiff.

Marian L. Borum, Beth Ann Wilt, Federal Deposit Insurance Corporation, Arlington, VA, for Defendants.



RUDOLPH CONTRERAS, United States District Judge


Plaintiff Stephanie A. Gilliard, who submitted her amended complaint pro se but who is now represented by counsel, brings this action against the Chairman of the Federal Deposit Insurance Corporation ("FDIC") and other FDIC employees, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. Defendants moved for dismissal or, in the alternative, for summary judgment, and Ms. Gilliard subsequently moved for leave to amend her complaint for a second time. For the reasons set forth below, the Court grants Ms. Gilliard's motion for leave to amend her complaint. Treating Ms. Gilliard's Second Amended Complaint as the operative complaint, the Court grants Defendants' motion to dismiss, except as to Counts One, Three, Four, and Eight. The Court also denies Defendants' alternative motion for summary judgment as premature.


Plaintiff Stephanie Gilliard, an African–American woman, is a Senior Administrative Specialist ("SAS") in the Administrative Management Section ("AMS"), Strategic Planning, Budget and Reporting Branch ("SPBR"), Division of Risk Management Supervision ("RMS") at the FDIC. Am. Compl. ¶ 4, ECF No. 15. She has held that role—a grade level CG–13 position—since June 2011. Gilliard Aff. 14–050 at 1, ECF No. 18–1. During her tenure, she has filed at least four equal employment opportunity ("EEO") complaints, the first in or around October 2011. Gilliard Aff. 14–050 at 7. This action focuses on the period from about March 2013 through December 2014, when, according to Ms. Gilliard, she suffered a host of adverse employment actions—the purported denial of several promotions, the loss of employment responsibilities, unfavorable performance reviews, and exposure to a hostile work environment—because of racial discrimination and/or as retaliation for her protected EEO activity.

A. Non–Promotions
1. Acting AMS Chief Position

In March 2013, RMS Director Doreen Eberly issued an Expression of Interest ("EOI") seeking an FDIC employee to serve as Acting Chief of AMS for a 120–day assignment. Def.'s Facts ¶¶ 6, 8, ECF No. 18; EOI, Ex. C, ECF No. 18–3. The EOI was open to permanent FDIC employees nationwide at the CG–15 and CM–1 grade levels. Def.'s Facts ¶ 7; EOI, Ex. C, ECF No. 18–3. Because Plaintiff is a CG–13 grade level employee, she was not eligible for the position. See Am. Compl. ¶ 11. FDIC employee Janice Butler was selected and served as Acting Chief—and, consequently, as Ms. Gilliard's first-line supervisor—from early May 2013 through early September 2013. Def.'s Facts ¶¶ 2, 9; Am. Compl. ¶ 16.

Ms. Gilliard contends that, based on the position description, the Acting AMS Chief position could have been performed at the CG–13 grade level and she asserts that it should have been advertised as such. Am. Compl. ¶ 11. Ms. Gilliard argues that Phillip Mento, the Associate Director of SPBR, RMS and her second-level supervisor, decided to list the position at the CG–15 grade level to intentionally exclude her from the role because of her race and to provide Ms. Butler—who is a white woman—an advantage in competing for the soon-to-be-posted permanent AMS Chief position.1 Am. Compl. ¶¶ 11–12; Pl.'s List of Material Facts in Dispute ¶ 2, ECF No. 27; Ex. D, Mento Aff. at 4, ECF No. 18–4; Def.'s Facts ¶ 7. Ms. Gilliard further claims that Ms. Butler was not qualified for the AMS Acting Chief position and that Ms. Butler was selected without proper approval from Human Resources. Am. Compl. ¶¶ 14–16.

2. Permanent AMS Chief Position

The permanent AMS Chief position was posted under Vacancy Announcement Number ("VA") 2013–HQ–0838, and was open from August 19 through September 3, 2013. Def.'s Facts ¶ 11; Ex. F, ECF No. 18–6. Unlike its acting equivalent, the permanent AMS Chief position was listed at grade level CG–13. See Def.'s Facts ¶ 13; Ex. F. Ms. Gilliard applied for the position. See Am. Compl. ¶ 15. Like other candidates, she was interviewed by a three-member panel and asked the same three questions as all other interviewees. Def.'s Facts ¶¶ 14–16; Am. Compl. ¶ 15; see also Ex. G, Rudolph Aff. 13–055 at 1–2, ECF No. 18–7. According to Defendants, the interview panel recommended the three top-ranked candidates—none of whom were Ms. Gilliard—to Mr. Mento. Def.'s Facts ¶¶ 17–18; see also Ex. G, Rudolph Aff. 13–055 at 2. Of the recommended candidates, Mr. Mento selected Ms. Butler for the role. Def.'s Facts ¶¶ 18–19; see also Ex. G, Rudolph Aff. 13–055 at 3; Ex. H, Ex. I, Strickler Aff. 13–055 at 3, ECF No. 18–9. Ms. Gilliard argues that she was more qualified for the position than Ms. Butler given her educational background and experience and claims that Ms. Butler was selected for the permanent Chief position because of her alleged personal relationship with Mr. Mento. Am. Compl. ¶¶ 15–17. Ms. Gilliard also notes that Mr. Mento issued her a Letter of Reprimand—based on an incident that occurred months earlier—on the day that she interviewed for the permanent AMS Chief position, contending that he did so to reflect badly on her during the AMS Chief application review process. See Am. Compl. ¶ 11; Pl.'s Facts in Dispute ¶ 6, ECF No. 27.

3. Senior Resource Management Specialist Position

In or around May 2014, AMS Chief Butler hired Suzanne Jeansonne to be her assistant. Am. Compl. ¶ 63. Thereafter, Ms. Butler created the position of Senior Resource Management Specialist ("SRMS"); the new position purportedly entailed performance of nearly the same duties as Plaintiff's position. Am. Compl. ¶ 64. According to Ms. Gilliard, Ms. Butler permitted Ms. Jeansonne to assist in preparing the posting for the job, even though Ms. Butler was aware that Ms. Jeansonne planned to apply for it. Am. Compl. ¶¶ 65–66. Indeed, Ms. Gilliard asserts that Ms. Butler had trained Ms. Jeansonne in hopes of having her take on the SRMS position. See Am. Compl. ¶¶ 63–67. Ms. Gilliard claims that although a three-person selection panel interviewed candidates for the position, Ms. Butler manipulated the interview process to advantage Ms. Jeansonne and to disadvantage Ms. Gilliard. See Am. Compl. ¶ 68. For example, Ms. Gilliard contends that she was required to prepare a writing sample on the spot after the interview while under supervision while Ms. Jeansonne was purportedly permitted to prepare her writing sample after the interview and may have been provided early information about the writing prompt. Am. Compl. ¶¶ 66–69.

4. Senior Human Resources Specialist (Corporate Employee Program and Student Program) Position

Applications for the position of Senior Human Resources Specialist (Corporate Employee Program and Student Program) ("HR Specialist—CEP"), VA 2014–HQ–1103, were accepted from March 7, 2014 through March 21, 2014. Ex. Y, ECF No. 18–25. According to the vacancy announcement, the position required at least one year of specialized human resources experience, including experience writing staffing policies. Id. Ms. Gilliard applied for the job, but Human Resources Officer Monica Cain, who was charged with reviewing and evaluating applications, determined that Ms. Gilliard lacked experience writing staffing policies and therefore did not qualify for the position. See Def.'s Facts ¶¶ 50–59; Ex. AA, ECF No. 18–27; Ex. GG, Cain Aff. 15–006R at 4–5, ECF No. 18–33. Like other applicants who were believed to lack required experience, Ms. Gilliard was afforded an opportunity to submit supplemental information to show that she qualified for the position. See Def.'s Facts ¶¶ 54–57; see also Ex. EE, Email from Stephanie Gilliard to Bettie Smith (April 8, 2014), ECF No. 18–21; Ex. BB, Email from Margo Skinner to Stephanie A. Gilliard (April 11, 2014), ECF No. 18–28.

After reviewing Ms. Gilliard's supplemental submissions, Ms. Cain still determined that Ms. Gilliard lacked the necessary qualifications. Def.'s Facts ¶¶ 56–59; Ex. FF at 2–4, ECF No. 18–32. Ms. Gilliard contends that she would have qualified for the position, if her private sector experience had been properly considered. She asserts that Ms. Cain "willfully obstructed" her right to compete for the position by refusing to look to her private sector work experience to satisfy the requirements. Am. Compl. ¶ 30. According to Ms. Gilliard, Ms. Cain did so as retaliation for Ms. Gilliard's past EEO activity. Am. Compl. ¶ 39.

5. Senior Human Resources Specialist (Performance Management) Position

On April 11, 2014—just days after Ms. Gilliard had been notified that she did not qualify for the HR Specialist—CEP position—Ms. Cain reportedly notified FDIC's Dallas Regional Office Human Resources Officer Candy Capper that the electronic job posting for VA 2014–1103 had been breached by an individual from the Dallas Regional Office. Def.'s Facts ¶ 60; Ex. HH, Capper Aff. at 2–3, ECF No. 18–34; Ex II, Cain Aff. at 2–3, ECF No. 18–35. Furthermore, the data system reflected that Ms. Gilliard's application materials may have been accessed. Def.'s Facts ¶ 61; Ex. II, Cain Aff. at 2–3. Ms. Cain expressed concern that someone may have tampered with Ms. Gilliard's file and asked Ms. Capper to investigate the incident. Def.'s Facts ¶ 62; Ex. II, Cain Aff. at 2. In particular, Ms. Cain explained to Ms. Capper that because Ms. Gilliard had filed EEO complaints, they...

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