Manus v. Hayden
| Decision Date | 23 May 2020 |
| Docket Number | No. 18-cv-1146 (KBJ),18-cv-1146 (KBJ) |
| Parties | SUSAN MANUS, Plaintiff, v. CARLA D. HAYDEN, Librarian, Library of Congress, Defendant. |
| Court | U.S. District Court — District of Columbia |
On September 12, 2017, Plaintiff Susan Manus—a retirement-eligible employee of the National and International Outreach ("NIO") division of the Library of Congress—received a performance counseling memorandum, including a long-term improvement plan, from her supervisor. (See Compl., ECF No. 1, ¶¶ 30-33.) Ten days later, Manus announced her retirement. (See id. ¶ 34.) In the instant lawsuit, Manus claims that her supervisor's persistent critiques of her work performance, which commenced shortly after his hiring, constituted age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. .) Manus further claims that the performance counseling memo was given to her in violation of the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e, et seq., because her supervisor knew that she had previously contacted the Library's Equal Employment Opportunity ("EEO") office to inquire about the possibility of being detailed to another Library position. (See id. ¶ 40-51.) And Manus also maintains that her supervisor's discriminatory and retaliatory conduct forced her to retire from her job earlier than she otherwise would have and, thus, that she was constructively discharged.
Before this Court at present is the Library's motion for summary judgment with respect to Manus's ADEA and Title VII claims (see Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 11), which Manus opposes (see Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl's Opp'n"), ECF No. 15). In the motion for summary judgment, the Library argues that Manus's ADEA claims fail, because she has not identified a cognizable adverse action (see Def.'s Mot. at 6) and has not alleged facts that could possibly give rise to an inference that she was unlawfully constructively discharged (see id. at 20). The Library also contends that Manus's Title VII retaliatory discharge claim cannot be sustained, both because Manus did not suffer any materially adverse employment action, and because her supervisor had specific knowledge that she had not engaged in any protected activity with respect to her contacts with the EEO office at the time that he tendered the performance counseling memo. (See id. at 16-17.)
For the reasons explained fully below, this Court agrees with the Library that the record is manifestly insufficient to establish that the Library took any legally cognizable adverse action against Manus due to her age or protected activity. Nor is the evidence sufficient to support a reasonable inference that Manus either engaged in a protected activity prior to the allegedly adverse actions or was ultimately constructively discharged. Consequently, Manus cannot proceed to trial on any of her claims, and the Library's motion for summary judgment will be GRANTED in full. A separate Order consistent with this Memorandum Opinion will follow.
Plaintiff Susan Manus became the Coordinator of Communications Strategy at NIO in 2015, after transferring out of the Library's Music Division. (See Def.'s Ex. 1 ("Manus Deposition"), ECF No. 11-3, at 18; see also Pl.'s Ex. A ("Manus Affidavit"), ECF No. 15-2, at 3-4.) In September of 2016, Manus applied for the newly created position of Chief Communications Officer of NIO. (See Manus Deposition at 8.) That job was reposted after the first application window closed and no interviews were conducted, but Manus did not reapply because she "wasn't sure that [she] wanted that role at that point[.]" (Id.) Indeed, by that time, Manus had begun speaking with a former colleague at the Music Division, Carol Ward-Bamford, about the possibility of creating a detail assignment for Manus at the Music Division; "[m]aybe a short term, renewable detail . . . as long as it would end up as long-term somehow." (See Def.'s Ex. 25, ECF No. 11-5, at 21.) According to Manus's contemporaneous notes, insofar as the proposed detail was concerned, Manus's "[g]oal [was] long term, [un]til retirement!" (Def.'s Ex. 28, ECF No. 11-5, at 27.)
In mid-September of 2016, as Manus's plans for the detail were developing, a new Chief Communications Officer of NIO—Ellis Brachman—arrived and became Manus's direct supervisor. (See Manus Deposition at 11-13.) Following Brachman's onboarding, Manus and Ward-Bamford put together a written proposal concerningManus's plans for the detail to the Music Division. (See Def.'s Ex. 30, ECF No. 11-6, at 2.) With respect to the reasons for Manus's request to be detailed to another office, the proposal explained that, "[s]ince [Manus's team] has recently added a communications director position, [her] job now has less responsibility." (Def.'s Ex. 31, ECF No. 11-6, at 5.) During the conversations that ensued concerning the detail, it became clear that the Music Division had two problems with Manus's proposal: (1) "the need for salary reimbursement" from NIO, and (2) "the need to advertise a detail, not just offer it to a person[.]" (Def.'s Ex. 32, ECF No. 11-6, at 7.)
Notably, in parallel with the development of the plans for Manus's detail, Brachman began "document[ing] [Manus's] work when it [did] not meet fully successful standards." (Def.'s Ex. 7, ECF No. 11-4, at 29.) This was because, according to Brachman, "from the beginning of [his] time at [the NIO], it was clear that [Manus] was not performing the full duties of her job." (Def.'s Ex. 4 ("Brachman Deposition"), ECF No. 11-4, at 5.) For instance, in an e-mail dated January 31, 2017, Brachman told Manus that he was "disappointed with the content" of Manus's draft of the February monthly newsletter, since it appeared that several of the blurbs had been "pulled verbatim from other material—including references to dates (today, this week, etc[.]) which are no longer true." (Id.)
According to Manus's personal notes, on March 24, 2017, Manus met with the EEO office in order to discuss how "[her] job in NIO has gone downhill—much LESS responsibility than [she] had even a year ago"—which Manus attributed to Brachman's hiring, and Manus specifically mused about whether, if a detail to the Music Division was not a possibility, there were other "really long term options[,]" including to"[r]etire, and get hired part time by Music [D]iv[.]" (Def.'s Ex. 33, ECF No. 11-6, at 9-10.) Manus made clear in an e-mail to a colleague that "NIO knows nothing of this yet." (Def.'s Ex. 34, ECF No. 11-6, at 12).
A short time later, in early April of 2017, Brachman issued to Manus her annual performance rating for the March 2016 through March 2017 period. (Def.'s Ex. 2K, ECF No. 11-3, at 68.) The document stated that, although "Manus spent a majority of this performance period on detail as Co-Director of the 2016 National Book Festival[,]" which has "been called 'the best' book festival in the Library's history[,]" Manus's work product at NIO "does not consistently meet expectations[.]" (Id. at 70.)
In the wake of this report, Manus had two contacts with the Library's EEO office. First, according to Manus's contemporaneous notes, the EEO office let Manus know, on April 3, 2017, that the office was planning to "talk to Ellis [Brachman] to try and work out [a] swap [detail]" between Manus and a lower-level employee at the Music Division. (Def.'s Ex. 2E, ECF No. 11-3, at 43.) The record indicates that, in mid-April of 2017, the EEO office did, in fact, contact Brachman to inform him that Manus was interested in obtaining a detail in the Music Division and that the EEO office would work to facilitate that conversation, as per the office's usual practice. (See Brachman Deposition at 9-10; Def.'s Ex. 5 ("EEO Staff Deposition"), ECF No. 11-4, at 20.) During this communication, the EEO office specifically stressed to Brachman that "this is not an EEO complaint, it's not a grievance, it's not an alternative . . . resolution dispute[.]" (EEO Staff Deposition at 20; see also Brachman Deposition at 10.) Moreover, Brachman apparently informed the EEO office that he did not have any problem with Manus's attempt to look for detail opportunities (see BrachmanDeposition at 10); in fact, he would welcome the proposed detail so long as the expenses involved were reimbursable (id.; see also EEO Staff Deposition at 20). Manus's second contact with the EEO office came on April 17, 2017, when, according to Manus's notes, the EEO office contacted her to let her know that "Ellis [Brachman] said OK to go ahead with 'something', for [Manus] to move to [the Music Division]." (Def.'s Ex. 35, ECF No. 11-6, at 14.)
In the weeks that followed, Manus continued to receive critical performance-related feedback from Brachman. In May of 2017, for example, Brachman e-mailed Manus to inform her that an article she had drafted "seem[ed] very disjointed" and needed to be "streamline[d]" so that it told a "coherent story[.]" (Def.'s Ex. 12, ECF No. 11-4, at 45.) Manus edited the draft, but Brachman subsequently noted that, even then, "[u]nfortunately[,] it took a lot of [further] editing" on his part. (Def.'s Ex. 13, ECF No. 11-4, at 50.) A few weeks later, Brachman e-mailed Manus and copied his own supervisor to let Manus know that a draft she had shared was not "acceptable" because some of the content was repeated from an earlier announcement, and the formatting, fonts, and spacing were not consistent. (Def.'s Ex. 14, ECF No. 11-4, at 55.) Manus felt that, throughout this time, Brachman was "mak[ing] things more difficult for [her] than he needs to," only to "then criticize[] [her]" (Pl.'s Ex. E, ECF No. 15-3, at 16), and she also believed that Brachman preferred to "associate with younger staff" because "he talked to [her] very little, but talked to other younger staff members in passing...
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