Newell v. Mnuchin

• Decision Date: 13 January 2020
• Docket Number: Civil Action No.: 17-2695 (RC)
• Parties: TRACY R. NEWELL, Plaintiff, v. STEVEN T. MNUCHIN, SECRETARY OF U.S. DEPARTMENT OF TREASURY Defendant.
• Court: U.S. District Court — District of Columbia

TRACY R. NEWELL, Plaintiff, v. STEVEN T. MNUCHIN, SECRETARY OF U.S. DEPARTMENT OF TREASURY Defendant.

Civil Action No.: 17-2695 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

January 13, 2020

Re Document No.: 16

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On December 12, 2017, U.S Department of the Treasury employee Tracy Newell brought this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended ("Title VII"). Ms. Newell alleges that she was discriminated against on account of race (African American) and sex (female), retaliated against due to her prior Equal Employment Opportunity ("EEO") activity, and subjected to a hostile work environment by the sexual harassment of her white, male coworkers.¹ More specifically, Ms. Newell contends that she was subjected to "different and disparate conditions" due to her race and gender/sex, and that, when "she complained [about] her disparate treatment, Defendant retaliated by demoting her" in 2014. Compl. 1; see also id. ¶ 9. She further avers that "this retaliation continued" when her employer "denied [her] a bonus, denied the opportunity to take aleadership development training class," and "promot[ed] at least two less qualified co-workers who did not have to compete for the supervisory position [that Ms.] Newell had applied for." Id. at 1. Defendant moved for summary judgment on all claims, arguing, first, that Ms. Newell failed to timely and properly exhaust her administrative remedies for her claims of retaliation and non-selection for a supervisory position; second, that Defendant has put forth a legitimate, non-discriminatory reason for her 2014 reassignment; and finally, that the alleged incidents do not constitute an actionable hostile work environment claim. See Def.'s Mem. Supporting Def.'s Mot. Summ. J. ("Def.'s Mem.") 1-4. For the reasons set forth below, the Court grants Defendant's motion for summary judgment on all claims.²

II. BACKGROUND

A. Factual History³

Ms. Newell's claims involve several categories of activity occurring between 2012 and 2017. The Court will summarize each of these categories in turn, beginning with the events surrounding Plaintiff's removal from a Temporary Plate Printer Assistant Supervisor position in March 2014; then describing the events that give rise to Plaintiff's harassment and hostile workenvironment claims; and then concluding with the events surrounding Plaintiff's 2017 non-selection claim and subsequent claims of discrimination and retaliation.

1. 2014 Reassignment

Ms. Newell began working in the U.S. Treasury Department's Bureau of Engraving and Printing ("BEP") in 1987 and has held several positions in the BEP since that time. See Pl.'s Statement of Material Facts ("SMF") 2, ECF No. 19-1.⁴ In 2004, she became a Plate Printer, a position in which she worked on the day shift and was directly supervised by Bob Smith. Id. at 3. In 2012, Ms. Newell applied for a Temporary Plate Printer Assistant Supervisor ("Temporary Assistant Supervisor") position. Id. at 3. This position was advertised with the statement that it was a "temporary promotion not-to-exceed ['NTE'] 1 year," id.; see also Pl.'s Opp'n Ex. 13, Vacancy Announcement No. 2012-085M, ECF No. 19-15, which "may be made permanent without further competition," Pl.'s Opp'n Ex. 13 at 1. With this temporary promotion, Ms. Newell switched to the evening shift and was directly supervised by Denita Simmons, with Mr. Smith now acting as her second-line supervisor. Pl.'s SMF 4.

This one-year NTE temporary promotion was set to end on September 22, 2013. Id. at 5. However, Ms. Newell continued in this position until March 2014, id., when she was reassigned to her former Plate Printer position, effective March 31, 2014, id. at 7-8. The core facts concerning both Ms. Newell's time in this position between September 2013 and March 2014 and her March 2014 reassignment are disputed. Ms. Newell asserts that her position was made permanent after a one-year probationary period, in keeping with past BEP practices, such that her reassignment was a "demotion." Id. at 7.

Defendant asserts that there was no such permanent assignment and demotion, but rather a reassignment to her prior position once the temporary term ended. On this version of events, which Plaintiff contests, see generally Pl.'s SMF 3-9, Ms. Newell's managers extended her initial temporary assignment for six months (from September 23, 2013 to March 23, 2014) upon the approval of Patrick W. Zunker in the agency's human resources ("HR") department, id. at 5. According to Defendant, Ms. Newell's supervisors attempted to further extend her temporary promotion in March 2014, but were informed by a new HR representative, Patricia Mendoza, that the prior extension of both Ms. Newell and another employee appointed to the same temporary vacancy at the same time, Richard Gibel, had been in error. Id. at 5-7. Because, on Ms. Mendoza's read, the governing provisions in 5 C.F.R. 335 prohibited an extension of these NTE positions beyond the advertised term (here, one year), id. at 7, Mr. Smith informed Plaintiff's direct supervisor, Ms. Simmons, that Ms. Newell would not be continuing in her temporary promotion. id. at 33. Defendant states that, based on this information, Ms. Newell was returned to her non-supervisory Plate Printer position on March 31, 2014.⁵ Id. at 7. Mr. Gibel was also returned to his previously held position, Acting Plate Printer Assistant Supervisor, in late March 2014. Id. at 8-9. Two other male employees, Mr. Smith and Donovan Elliott, were also reassigned at this time. Id. at 8. Defendant states that these two individuals were in temporary promotional assignments and denied extensions by Ms. Mendoza on the samegrounds as her denial of Ms. Newell's extension, id. at 8, whereupon Mr. Smith was returned to his position as Plate Printer Supervisor, effective April 6, 2014, id. at 9, and Mr. Elliott was returned to his position as Plate Printer Assistant Supervisor, effective April 25, 2014, id. at 9. Plaintiff disputes that these two individuals were in fact in temporary positions at the time of their reassignment. See id. at 8-9.

On May 2, 2014, Ms. Newell initiated contact with an Equal Employment Opportunity ("EEO") counselor. See Pl.'s Opp'n Ex. 33, EEO Counselor's Report 2, ECF No. 19-35. A formal EEO complaint was filed on June 2, 2014, id. at Ex. 34, ECF No. 19-36, and Ms. Newell's claim was accepted on June 13, 2014, id. at Ex. 38, EEO Acceptance Letter, ECF No. 19-40. The complaint accepted for investigation was "[w]hether Complainant was subjected to disparate treatment based on race (African-American), sex (female), and age (over 40) when she learned on March 31, 2014 that she was not made a permanent Plate Printer Assistant Supervisor and told to return to her former position as a Plate Printer." EEO Acceptance Letter 1. As the Court next describes, Ms. Newell subsequently amended this complaint to include harassment and hostile work environment claims.

2. Events Underlying 2014 Harassment and Hostile Work Environment Claims

The sexual harassment and hostile work environment components of Plaintiff's complaint arise from several incidents involving co-workers and one incident involving a direct supervisor that occurred during and soon after Ms. Newell's time working as a Temporary Assistant Supervisor. These events are clustered in early 2014. First, while Ms. Newell was operating in her temporary supervisory capacity, she alleges that a male co-worker asked her to go to a strip club and to sexually engage with another female employee. Def.'s Exhibits in Support of Def.'s Mot. Summ. J. ("Def.'s Exhibits") Ex. 19, Sept. 12, 2014 Declaration of Tracy R. Newell("Second Newell Decl."), ECF No. 17-19; see also Pl.'s Opp'n Ex. 45, Email to Dennis Wahkinney (documenting incident for EEO counselor), ECF No. 19-47. The individual in question was later identified as Plate Printer Peter Steormann. Def.'s Exhibits Ex. 44, Pl.'s Resp. Def.'s First Set of Interrogatories, ECF No. 17-44. In response, Ms. Newell states that she "told him [she] did not engage in that activity" and that she "did not appreciate him saying anything in that manner," Second Newell Decl. ¶¶ 48, 53, whereupon the male subordinate employee "apologized and said he was only joking," id. ¶¶ 49, 54. There were no witnesses to this interaction. Id. ¶ 52. However, Asa Soule, another Plate Printer, states that Peter Steormann also asked her to go to a strip club with him. Pl.'s Opp'n Ex. 52, Declaration of Asa Soule 3, ECF No. 19-54. Ms. Newell adds that it was "not unusual" for male employees to approach and request "sexual favors under the guise of humor." Second Newell Decl. ¶ 55. She suggests that such incidents were more frequent in February 2014, when she was also "referred to as 'Baby' and 'Honey'" by another individual and "touched on the buttock" by a third male. Pl.'s Resp. Def.'s First Set of Interrogatories ¶ 1. She also suggests that there was ongoing sexual behavior in the workplace and states that she observed two unnamed superiors engaging in such conduct on "several occasions" spanning "9 months in the year of 2013 and 2 months in the year 2014." Second Newell Decl. ¶¶ 60-61. Ms. Simmons, Plaintiff's immediate supervisor, avers that Ms. Newell never informed her of these incidents. Def.'s Exhibits Ex. 11, Declaration of Denita Simmons ("Simmons Decl.") 12-13, ECF No. 17-11. Ms. Newell declined to escalate the matter. Id. Mr. Smith also states that he was unaware of these incidents. Def.'s Exhibits Ex. 12, March 14, 2019 Declaration of Robert E. Smith ("Third Smith Decl.") ¶ 44, ECF No. 17-12.

The next incident occurred on or about February 21, 2014,⁶ when a male co-worker, Dennis Dunn, approached Ms. Newell at work. Id. ¶ 2.⁷ There were no direct witnesses to this event. See Def.'s Exhibits Ex. 6, EEO Investigative...