Gordon v. Office of the Architect of the Capitol

• Decision Date: 08 March 2013
• Docket Number: Civil Action No. 09–1262 (RBW).
• Parties: Debra Clark GORDON, Plaintiff, v. OFFICE OF THE ARCHITECT OF THE CAPITOL, Defendant.
• Court: U.S. District Court — District of Columbia

928 F.Supp.2d 196

Debra Clark GORDON, Plaintiff,

v.OFFICE OF THE ARCHITECT OF THE CAPITOL, Defendant.

Civil Action No. 09–1262 (RBW).

United States District Court,

District of Columbia.

March 8, 2013.

Jeffrey Howard Leib, Washington, DC, for Plaintiff.

Wyneva Johnson, Darrell C. Valdez, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

The plaintiff, Debra Clark Gordon, brings this action against her employer, the Office of the Architect of the Capitol, pursuant to 2 U.S.C. § 1404 (2006) of the Congressional Accountability Act (“Accountability Act”), alleging discrimination based on her race and color in violation of 2 U.S.C. § 1311(a)(1), and retaliation for participation in protected activities in violationof 2 U.S.C. § 1317(a). Complaint (“Compl.”) ¶¶ 1, 5. The Court previously granted the defendant's motion to dismiss Count II of the plaintiff's complaint in part and Count III in its entirety. Gordon v. Office of the Architect of the Capitol, 750 F.Supp.2d 82, 94 (D.D.C.2010). Currently before this Court is the Defendant's Renewed Motion to Dismiss, or in the Alternative, for Summary Judgment (“Def.'s Mot.”). After carefully considering the parties' submissions,¹ the Court concludes, for the following reasons, that it must deny the defendant's motion to dismiss but grant the defendant's motion for summary judgment.

I. BACKGROUND

The following facts are undisputed unless otherwise noted.² The plaintiff, an African American female, applied for the position of Supervisory Secretary with the defendant, her employer. Def.'s Facts ¶ 1; Pl.'s Facts ¶ 1. One of the plaintiff's superiors, Robin Morey, was the selecting official for the position. Def.'s Facts ¶ 20; Pl.'s Facts ¶ 20. Another superior, Taxiarxis Tzamaras, participated in the interview process with Morey, and an independent observer was also present. Def.'s Facts ¶ 20; Pl.'s Facts ¶ 20. Morey created the interview questions for the position and asked the same questions of the plaintiff and five other applicants. Def.'s Facts ¶ 21; (citing Def.'s Mem. Exhibit 7 (“Morey Dep.”) at 32–33); see Pl.'s Facts ¶ 21 (stating that the plaintiff neither agrees with nor disputes this fact). During the job selection process, the plaintiff did not hear anyone make any racially derogatory comments, and concedes that she “could not answer whether [Morey], the selecting official, discriminated against her.” Def.'s Facts ¶¶ 5–7; Pl.'s Facts ¶¶ 5–7. Morey eventually chose Christine Camera, a Caucasian female, rather than the plaintiff, for the Supervisory Secretary position. Def.'s Facts ¶ 1; Pl.'s Facts ¶ 1.

Regarding his decision, Morey explained that after reviewing the applications and interviewing the candidates, he chose Camera because of her “management experience ... on the private industry side,” Morey Dep. at 36, her “very strong sense of ... security,” id. at 36–37, and the fact that her interview responses “went into detail” using “specific examples, experiences that she had at her other employment on how to deal with [client service] matters, [and] how to ensure confidentiality,” id. at 61–62. He stated that the plaintiff, on the other hand, lacked “[a]ny ability to communicate her experience” in her interview and gave only “very short answers” without “any elaboration.” Id. at 40–41. Morey perceived the plaintiff's responses to the interview questions as “really inadequate and not responsive to the question.” Id. at 51–52. Furthermore, Morey said that the plaintiff exaggeratedher past work experiences on her application. Id. at 24–25; see, e.g., id. at 55–56 (commenting as he read from the plaintiff's application: “She does not do that. Did not lead groups of people in accomplishing week-to-week or month-to-month on a regular basis. She did not address work performance. She did not make higher level recommendations to supervisors.”).

The plaintiff agrees that her answers to the interview questions “didn't come out right.” Def.'s Facts ¶ 22; see Pl.'s Facts ¶ 22. However, she contends that her interview responses were not indicative of her abilities, Pl.'s Facts ¶ 22, and that she was generally very well-qualified for the position, id. ¶¶ 22, 24–26. She points out that at the time of her application, she had been employed by the defendant for twelve years and held a position one grade below the Supervisory Secretary position, see Pl.'s Mem. at 2, whereas Camera had only held a position with the defendant for five months, and Camera's selection represented “a promotion of four grades,” Pl.'s Facts ¶ 26. She vigorously contests Morey's assertion that her application contained inaccuracies. Id. ¶¶ 29–31. Moreover, she states that Morey took none of the same pains to verify the claims in Camera's application. Id. ¶¶ 23, 25, 27, 29–33.

The plaintiff testified during her deposition that on January 28, 2008, she overheard Taxiarxis Tzamaras instructing someone else to send an email to several other individuals to tell them that Camera had been selected for the position. Pl.'s Mem. at 7; see also Def.'s Facts ¶ 2 (citing the plaintiff's deposition ³). Two days later, on January 30, 2008, Morey met with the plaintiff and notified her of her non-selection. Def.'s Facts ¶ 2; Pl.'s Facts ¶ 2.

The plaintiff made a request for counseling with the Office of Compliance on July 28, 2008. Def.'s Facts ¶ 3; Pl.'s Facts ¶ 3. The plaintiff brought this action after the conclusion of the administrative process, alleging that her non-selection was due to her race and that she was subsequently the target of retaliation for her complaint of discrimination. Compl. ¶¶ 5, 24–42.

The defendant filed a motion to dismiss for want of jurisdiction because the plaintiff had not exhausted her administrative remedies, or in the alternative, a motion for summary judgment in its favor. Gordon, 750 F.Supp.2d at 84–85. This Court granted in part and denied in part the motion. Id. at 85. The Court dismissed the retaliation claim “to the extent that the claim is based on alleged retaliation resulting from the plaintiff's participation in counseling and mediation” because she had failed to exhaust her administrative remedies as to that aspect of her retaliation claim, and the claim for hostile work environment in its entirety for the same reason. Id. at 93. Regarding the discrimination count, however, the Court held that jurisdiction in this Court was proper because the plaintiff had exhausted her administrative remedies as to this claim, see id. at 87–93, and determined that it could not yet rule on the defendant's summary judgment motion because no discovery had been conducted, see id. at 93–94.

Now, at the close of discovery, the defendant renews both its motion to dismiss and its motion for summary judgment. The defendant again contends that this Court lacks jurisdiction over the plaintiff's discrimination claim, arguing that the plaintiff failed to exhaust her administrative remedies based on information learned during discovery. See Def.'s Mem. at 13–14. In the alternative, the defendant argues that it is entitled to summary judgment because the plaintiff is unable to offer evidence of either race discrimination, see id. at 14–18, or retaliation, see id. at 18–24. The plaintiff disagrees that the Court lacks jurisdiction over her discrimination claim,⁴see Pl.'s Mem. at 12–20, and argues that summary judgment is inappropriate because while “she does not have direct evidence to prove her claims of discrimination based on race and color, there is sufficient circumstantial evidence to prove [her claims],” Pl.'s Facts ¶ 4; see Pl.'s Mem. at 20–32.

II. STANDARDS OF REVIEW

A. Motion to Dismiss under Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) “presents a threshold challenge to the [C]ourt's jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987). When reviewing the motion, the Court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.’ ” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C.Cir.2005)). However, it is “presumed that a cause lies outside [the federal courts'] limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and the plaintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction, see, e.g., Hollingsworth v. Duff, 444 F.Supp.2d 61, 63 (D.D.C.2006). The “ ‘[p]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13–14 (D.D.C.2001) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed.1987)). Finally, in determining whether it has jurisdiction, the Court “may consider materials outside of the pleadings.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005).

B. Motion for Summary Judgment under Rule 56(a)

Before granting a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, this Court must find 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). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a motion for summary judgment, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147...