Sewell v. Chao

• Decision Date: 01 February 2008
• Docket Number: Civil Action No. 06-1534 (ESH).
• Citation: 532 F.Supp.2d 126
• Parties: Audrey L. SEWELL, Plaintiff, v. Elaine L. CHAO, Secretary, U.S. Dept. of Labor, Defendant.
• Court: U.S. District Court — District of Columbia

532 F.Supp.2d 126

Audrey L. SEWELL, Plaintiff, v. Elaine L. CHAO, Secretary, U.S. Dept. of Labor, Defendant.

Civil Action No. 06-1534 (ESH).

United States District Court, District of Columbia.

February 1, 2008.

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Lisa Alexis Jones, Lisa Alexis Jones, PLLC, Washington, DC, for Plaintiff.

Karen L. Melnik, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff Audrey L. Sewell has sued the Secretary of the Department of Labor ("DOL"), alleging that DOL discriminated against her on the basis of her age; subjected her to a hostile work environment; retaliated against her for filing union grievances and an EEO complaint; and constructively discharged her in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a, et. seq. ("ADEA").¹ Defendant has filed a motion for summary judgment which, for the reasons stated herein, will be granted.

BACKGROUND

Plaintiff's employment with DOL began in 1972. (Def.'s Stmt of Material Facts Not in Dispute ["Def.'s Stmt"] ¶ 1; Compl. ¶ 6.) In 1997, plaintiff started working for the Division of Financial Management ("DFM"), Office of Administration and Planning ("OMAP"), Employment Standards Administration ("ESA"). (Def.'s Stmt ¶ 2; Compl. ¶ 6.) From approximately 2000 to 2005, plaintiff "performed numerous financially analytical duties." (Def.'s Stmt ¶ 5.)

Around 1997, Patricia Vastano joined DOL as the Director of the Strategic Planning Division. (Opp'n 2.) According to plaintiff, "[a]lmost immediately Vastano's enmity toward [plaintiff] surfaced." (Id.) On one occasion, early after Vastano arrived, plaintiff suggested to Vastano that she contact the employees responsible for setting up computers if she wanted her computer moved off the floor. Plaintiff alleges that Vastano "asked [her] why couldn't [plaintiff] get down there and do that." (Def.'s Ex. 2 at 36.) On another occasion, plaintiff explained to Vastano that she couldn't assist her in ordering desk supplies because of the other demands on her time. Vastano responded that "your kind shouldn't be in any position. ..." (Id. at 37.) Plaintiff complained to her supervisor, Cecily Rayburn, and the harassment ceased (Id. at 2-3.) Vastano's behavior began again after Rayburn left DFM and was replaced by Gary Thayer, but stopped after plaintiff again complained to Thayer. (Id. at 3.)

In early 2000, Anne Baird-Bridges joined DOL as OMAP's director (Pl.'s Ex. B [Baird-Bridges Deposition] at 16-20), and sometime thereafter Vastano became her Deputy Director. (Id. at 25-27.) In May 2002, when Thayer left DOL, Vastano became acting director for DFM and plaintiff's direct supervisor. (Pl.'s Opp'n 3; Pl.'s Ex. C [Baird-Bridges EEO Aff.] ¶ 4.) Plaintiff alleges that "within days" of Vastano's appointment, the harassment began again. (Pl.'s Opp'n 3; Def.'s Ex. 2 [Sewell Deposition] at 41-42.) On one occasion, Vastano observed plaintiff having trouble walking because of her arthritis and said "[O]h, you're having trouble walking today? Why don't you just retire?" (Id. at 44.) Plaintiff also alleges that Vastano improperly revised the performance appraisal Thayer had prepared for plaintiff before he left and that Vastano refused to timely approve a leave request that she submitted, (Id. at 50, 57, 60-61.)

In 2003, Yoko Albarak was hired as director of DFM. (Def.'s Ex. 2 at 39-40, 51.) Plaintiff explains that although Vastano continued to make "snide" comments urging her to retire, plaintiff was able to ignore her. (Id. at 42.) In January 2004, Janet Hogler took over the position of DFM director, but left six months later. (Id.) After her departure, Baird-Bridges took over as acting director of DFM and became plaintiffs direct supervisor. (Id. at 84; Pl.'s Ex. B at 24-25.) In November 2004, plaintiff complained to Baird-Bridges about Vastano's treatment of her, but received no response. (Id. at 58.)

On December 27, 2004, Vastano, while acting as OMAP director during Baird-Bridge's absence, issued a letter of reprimand citing plaintiff for insubordination based on an email exchange in which plaintiff accused Vastano of lying, harassment, and racism. (Pl.'s Ex. E [Letter of Reprimand].) The final paragraph of the letter stated that "[t]his reprimand not only outlines the intolerable behavior, but also serves as a warning to you that any repeat of similar outbursts and insubordination will result in disciplinary action up to and including removal." (Id. at 2.) Plaintiff protested the reprimand, and on December 17, 2004, filed a union grievance against Vastano, in which plaintiff alleged that she had been a victim of race and age discrimination. (Def.'s Ex. 2 at 41; Pl.'s Ex. G [Grievance Form against Vastano].) On December 20, 2004, plaintiff Med a union grievance against Baird-Bridges alleging that Baird-Bridges had fostered a hostile work environment and discriminated against plaintiff on the basis of her age. (Def.'s Ex. 2 at 57; Pl.'s Ex. H [Grievance Form against Baird-Bridges].)

On March 9, 2005, Baird-Bridge met with plaintiff and her union representative, Linda Copening, to discuss plaintiffs complaint against Vastano. (Pl.'s Ex. A ¶ 8; Pl.'s Ex. C ¶ 4.) The following day, Baird-Bridges sent plaintiff an email to set up a meeting to discuss plaintiffs fiscal year 2004-2005 performance standards. (Pl.'s Err. A ¶ 8.) The email explained that she wanted to bring plaintiff "up to date" on her specific job responsibilities and ensure that the standards were accurate. (Id.). The meeting was held on March 14, 2005, with Copening in attendance.² (Id.) At the meeting, Baird-Bridges assigned plaintiff two new responsibilities — the detail fund report and the space rent report (id.) — both of which were listed in her existing job description.³ Plaintiff told Baird-Bridges that she was not familiar with these reports. Baird-Bridges responded that George Baily, a private contractor who had been working on the detail fund report, and Vincente Sanabria, a GS-13 budget analyst who had been preparing the space rent report, would train her. (Pl.'s Ex. A at 9.)

Shortly after the meeting, plaintiff approached Baily. (Id.) Baily gave plaintiff some brief training on the detail fund report, which plaintiff did not need since she had assisted, with its preparation in the past.⁴ (Def.'s Ex. 2 at 64-65:) Plaintiff also approached Sanabria about the new assignment and training, but found that Sanabria had not yet been told about the reassignment. (Pl.'s Ex. A, ¶ 9.) Plaintiff assumed that her supervisor would coordinate a training schedule and did not pursue the issue any further either with Sanabria or Baird-Bridges. (Def.'s Ex. 2 at 79-84.) She did not approach Baird-Bridges because she was afraid of her temper based on two prior incidents. (Id. at 88.) In August 2004, plaintiff overheard an altercation between Baird-Bridges and another employee, Charlotte Jenkins, during which she heard Jenkins "screaming for [Baird-Bridges] to let go of her arm." (Def.'s Ex. 2 at 88-89; Pl.'s Ex. B at 37-39). A few months later, in November 2004, `plaintiff went to Baird-Bridges's door' to ask her a question and found her standing at her desk with her back to the door. When plaintiff started to ask her a question, Baird-Bridges turned with her fists at her side and glared. (Id. at 89-92.)

On March 16, 2005, Baird-Bridges issued a step 2 ruling upholding the reprimand, in which she found that plaintiff had failed to demonstrate discrimination or harassment. (Pl.'s Ex. L [Step 2 Decision].) Baird-Bridges denied plaintiffs request that any contact with Vastano be eliminated and refused to order any change in the organizational structure. (Id. at 2.) On April 7, 2005, Local 12 invoked arbitration on plaintiffs reprimand grievance. (Pl.'s Ex. M [Letter from Alex Bastani to Sandy Keppley].)

On April 8, 2005, Baird-Bridges approached plaintiff to complain about her failure to send a "return receipt" email regarding an upcoming meeting. (Id. at 93-94.) Plaintiff alleges that Baird-Bridges yelled at her and called her "Missy." (Id. at 94.) She claims that she feared Baird-Bridges was going to slap her in the face. (Id. at 98.) On April 15, 2005, plaintiff met with Lillian Winstead, EEO Coordinator of Counselors in the Civil Rights Center, about this incident. (Pl.'s Ex. A ¶ 6.)

On Sunday, April 17, 2005, Baird-Bridges sent an email to plaintiff, Sanabria, and DFM clerk Bettye Keller scheduling a meeting for the morning of Monday, April 18, 2005. (Def.'s Ex. 2 at 99; Pl.'s Ex. S. [Email from Baird-Bridges].) Copening was copied on the email, and Baird-Bridges left her a voice mail on her home phone about the upcoming meeting. (Pl.'s Ex. B at 128.) Prior to going to the scheduled meeting on Monday, April 18, plaintiff filed her informal complaint of harassment and age discrimination against Baird-Bridges based on the confrontation on April 8 about the email return receipt. (Pl.'s Ex. T [Informal Complaint of Discrimination].) Baird-Bridges, Vastano, and Charlene Dunn, OMAP's Director of Budget Formulation and Implementation ("Budget"), were present at the meeting, along with plaintiff, Sanabria, and Keller. (Def.'s Ex. 2 at 99.) Plaintiff, Sanabria, and Keller requested union representation, which was denied. (Pl.'s Ex. B at 101.) Each of them was given a transfer memorandum from Baird-Bridges. Plaintiff and Keller were reassigned from DFM to Budget and Sanabria was reassigned to Accounting. (Def.'s Ex. 2 at 100-01.) Plaintiffs transfer did not change her grade level or her job description, nor was she required to change work spaces. (Id. at 101.) All of the employees were unhappy about the transfers. (Pl.'s Ex. B at 102.)

On May 4, 2005, plaintiff had her first meeting with Dunn as her direct supervisor. (Def.'s. Ex. 2 at 108-09.) Dunn had requested that plaintiff bring with her a list of her current duties. (Pl.'s Ex. A ¶ 10...