Summary
granting the plaintiff's motion for leave to file a supplemental declaration on summary judgment, even though the motion was untimely
Summary of this case from Weyerhaeuser Co. v. Novae Syndicate 2007Opinion
CASE NO. C08-1850JLR.
May 20, 2010
I. INTRODUCTION
This matter comes before the court on the motion to dismiss and/or for summary judgment (Dkt. # 23) filed by Defendant Hilda L. Solis, U.S. Secretary of Labor ("DOL"). The DOL first requests that the court dismiss Plaintiff Anne K. Block's disability discrimination claims based on her alleged failure to exhaust her administrative remedies with respect to those claims. The DOL next requests that the court grant summary judgment in its favor with respect to Ms. Block's retaliation claims. Having reviewed the motion, as well as all papers filed in support and opposition, and having heard the arguments of counsel on May 14, 2010, the court GRANTS the motion (Dkt. # 23). The court also GRANTS Ms. Block's motion for leave to file supplemental declaration (Dkt. # 47).
II. BACKGROUND
This action involves allegations that employees of the DOL discriminated against Ms. Block on the basis of her hearing impairment, failed to grant her request for an accommodation of her hearing impairment, and ultimately discriminated and retaliated against her by terminating her employment after she filed informal and formal Equal Employment Opportunity ("EEO") complaints.
A. Employment at the U.S. Department of Labor
On November 26, 2006, Ms. Block began her employment as a workers' compensation claims examiner ("claims examiner") for the DOL's Office of Workers' Compensation Programs, Energy Employees Occupational Illness Compensation Program ("EEOICP"), in Seattle, Washington. (Block Decl. (Dkt. # 36) ¶ 13; Long Decl. (Dkt. # 30) ¶ 2.) The mission of the EEOICP is to provide compensation and benefits to eligible nuclear weapons workers of the U.S. Department of Energy. (Long Decl. ¶ 1.) After starting work, Ms. Block remained on a one-year probationary period, which ran from November 26, 2006, to November 25, 2007. ( Id. ¶ 2; see Block Decl. ¶ 14.) Christy Long, the district director of the EEOICP at the time of Ms. Block's employment, terminated Ms. Block's employment effective as of November 23, 2007. (Long Decl. ¶ 2 Ex. 1.)
B. Hearing Impairment
Ms. Block identifies herself as an individual living with a hearing disability. (Block Decl. ¶ 3.) She explains that her hearing difficulties manifested in 2001 and eventually became more substantial and permanent as the result of an initial medical misdiagnosis and a later error during corrective surgery. ( Id. ¶¶ 3, 7-8.) Ms. Block states that she has no hearing in her left ear and has significantly reduced hearing in her right ear. ( Id. ¶ 8.) Ms. Block characterizes her hearing impairment as having adversely affected not only her ability to hear, but also other aspects of her life, including her walking, sleeping, eating, and speech. ( Id. ¶ 10.) She states that her hearing impairment is particularly severe when she is placed in an environment with background noise, which often requires her to ask follow-up questions or communicate via email. ( Id. ¶ 12.)
C. Initial Phase of Employment
On the first day of her employment, Ms. Block completed a variety of forms for Joyce Vail, operations manager, and indicated on this paperwork that she had a hearing impairment. ( Id. ¶ 17.) After her orientation, Ms. Block began working in earnest in mid-December 2006. ( Id. ¶¶ 18-19.) Ms. Block was stationed in a closed cubicle on the sixth floor of the office building. ( Id. ¶ 19.) Throughout December, January, and February, Ms. Block worked on case files and was instructed to prepare recommended decisions. ( Id. ¶ 20.)
D. Interactions With Ms. Hornback
In March 2007, F. Margo Hornback, a senior claims examiner, was assigned to review Ms. Block's work. ( Id. ¶ 24; Hornback Decl. (Dkt. # 26) ¶ 2.) Senior claims examiners review the work of claims examiners, such as Ms. Block, and provide mentoring to assist them in meeting the relevant standards and goals. (Hornback Decl. ¶ 2.) Ms. Hornback and Ms. Block did not have a positive working relationship. As Ms. Block tells it, Ms. Hornback "declared her disdain for" Ms. Block in mid-March (Block Decl. ¶ 25), and their relationship went from bad to worse over the subsequent months: Ms. Block describes an interaction between the two regarding their divergent approaches to the EEOICP claims process ( id. ¶¶ 25-26); she states that Ms. Hornback sent her a personal email about Ms. Hornback's "rotten childhood" ( id. ¶ 27); and she states, without elaboration, that Ms. Hornback told to her that she did not like women ( id. ¶ 29). None of these incidents expressly involved Ms. Block's hearing impairment.
In May 2007, Ms. Block began to suspect that other employees knew of her hearing impairment. Ericka Burkhart, one of Ms. Hornback's co-workers, came into Ms. Block's general work area, "asking fellow examiners if anyone was deaf in their left ear who would be willing to trade their head set with her." ( Id. ¶ 30.) It appears that Ms. Burkhart made this comment to Ms. Hornback, among others. ( Id.) Ms. Block states that until that time she had no reason to believe that anyone other than Ms. Vail knew about her hearing impairment. ( Id.) In response, Ms. Block immediately entered the office of her manager, Kelly Kotada, and related the incident to him. ( Id.) She complained to him: "Hornback is telling other people things about me that she should not have knowledge of or access to." ( Id.) Ms. Block states that Mr. Kotada replied that Ms. Hornback had told him that Ms. Block had a hearing impairment. ( Id.) Mr. Kotada did not know how Ms. Hornback had learned about Ms. Block's hearing impairment. ( Id.)
Ms. Hornback allegedly began harassing Ms. Block after she complained to Mr. Kotada. ( Id. ¶ 31.) As Ms. Block states: "After I complained about Hornback, she refused to speak with me, and when I had questions she would repeatedly scream at me when responding and refused to respond to my email questions." ( Id.) Ms. Hornback allegedly slowed her processing of Ms. Block's work product, which caused Ms. Block's caseload to come to a "virtual standstill" ( id. ¶ 32), and Ms. Hornback allegedly made "condescending statements" to Ms. Block, such as "you [sic] not cut out for this job," "you should resign," "I have eyes inside here," "you should have stayed under the radar," and "I heard you complained about me! I will make sure you get fired for this" ( id. ¶ 33). Ms. Block states that two of Ms. Hornback's friends, David Ronquillo, a manager, and Karen Waller, a senior claims examiner, began making allegedly untruthful statements about her leaving work early. ( Id. ¶ 34.)
Ms. Block requested that Mr. Kotada transfer her to a new senior claims examiner. ( Id. ¶ 36.) Her request, however, was denied by Ms. Long. ( Id.) Ms. Block states that she also approached Mr. Kotada several times between May 2007 and July 2007 to complain about Ms. Hornback's alleged behavior. ( Id.) She received "no managerial action" in response. ( Id. ¶ 39.)
In July 2007, Ms. Hornback allegedly entered Ms. Block's cubicle, grabbed her by the shoulders, and shook her. ( Id. ¶ 37.) Ms. Block was "so startled that [she] began shaking endlessly." ( Id.) She immediately left work and took several personal days off. ( Id.)
In mid-July 2007, Ms. Block began looking for other employment. ( Id. ¶ 39; Kotada Decl. (Dkt. # 29) ¶ 11.) Mr. Kotada agreed to be a reference for Ms. Block. (Kotada Decl. ¶ 11.) In an email to Ms. Block, Mr. Kotada stated: "I will be more than happy to be a reference for you, although I would hate to lose you if you decide on another position." (Davis Decl. (Dkt. # 35) Ex. 1.)
On August 17, 2007, Ms. Block sent an email to Ms. Hornback, in which Ms. Block wrote: "Please stop harassing me." (Kotada Decl. Ex. 5.) The email exchange arose in the context of a particular claimant's file and Ms. Hornback's comments about how Ms. Block had handled the case. ( Id. ¶ 12.) Mr. Kotada was copied on Ms. Block's email to Ms. Hornback, and he forwarded a copy of the email to Ms. Long. ( Id.)
E. Ms. Block's First Informal EEO Complaint
On or around August 28, 2007, Ms. Block filed an informal EEO complaint ("Informal EEO Complaint") with the Civil Rights Center of the U.S. Department of Labor. (Block Decl. ¶ 40; Mittet Decl. (Dkt. # 24) Ex. 2; Barry-Perez Decl. (Dkt. # 33) ¶ 2.) On the cover sheet, Ms. Block indicates that the bases of her complaint are age ("40+") and disability ("hearing"). (Mittet Decl. Ex. 2 at 5.) In her Informal EEO Complaint, Ms. Block focuses on the actions of Ms. Hornback:
The record includes two different version of Ms. Block's Informal EEO Complaint. ( Compare Mittet Decl. Ex. 2 (signed August 27, 2007, and emailed August 28, 2007) with Block Decl. Ex. 3 (signed August 21, 2007).) The two versions are not substantially different, but the version submitted by the DOL includes two additional paragraphs, as well as other minor changes. Without more, the court will cite to the Informal EEO Complaint attached to the declaration of Ms. Mittet as it contains additional allegations and was submitted at a later date. The court emphasizes, however, that it relies on both complaints in the course of its ruling; allegations raised by Ms. Block in either version will be considered.
In her declaration, Ms. Block states:
I filled out a form titled 'Informal complaint' and to the best of my recollection, I checked four boxes; disability, age, gender, and reprisal. I checked all four because I am a woman, over the age of forty, with major hearing and physical limitations, and believed that I was being retaliated against because I opposed Hornback's discriminatory practices.
(Block Decl. ¶ 40.) Ms. Block, however, does not submit a copy of the cover sheet.
I, Anne Kathleen Block, an employee with the US Department of Labor, Energy Employees Occupational Injury Compensation Program, . . . hereby wish and intend to pursue a claim of discrimination against a senior claim's [sic] examiner Margo Hornback (Hornback), who is also employed in the same office, alleging discrimination based upon a presumed disability and/or actual disability which has caused a hostile work environment.
( Id. Ex. 2 at 6 ¶ 1.) She further explains:
From May to present, Hornback has created a [sic] environment that is hostile due to my disability, or on her presumption thereof, by screaming at me in front of other examiners and by refusing to process my work in a timely manner, falsifying papers, misfiling claimant's [sic] files inside my number block, and destroying claimant's [sic] documents all in [sic] attempt to discredit me based on my initial complaint against her.
( Id. Ex. 2 at 7 ¶ 9.) Vic Sung of the Civil Rights Center was assigned to investigate Ms. Block's Informal EEO Complaint. (Block Decl. ¶¶ 40-41; Kotada Decl. ¶ 13; Long Decl. ¶ 6.) Ms. Block also contacted Cherylann F. DeLaurentis, an Equal Opportunity Specialist with the Civil Rights Center. Mr. Sung spoke with both Mr. Kotada and Ms. Long, and recommended to them that Ms. Hornback be replaced by a different senior claims examiner. (Block Decl. ¶ 41; Kotada Decl. ¶ 14; Long Decl. ¶ 6.) Ms. Block was transferred to a different unit, and Ms. Waller replaced Ms. Hornback as Ms. Block's senior claims examiner. (Block Decl. ¶ 41; Kotada Decl. ¶ 14; Waller Decl. (Dkt. # 32) ¶ 3.)
F. Transfer of Ms. Block from the Sixth Floor to the Fifth Floor
Ms. Block was moved from the sixth floor to the fifth floor of the building as part of her transfer to a new unit. (Block Decl. ¶¶ 45-47; Kotada Decl. ¶¶ 14-15.) She learned of the move from a co-worker, and immediately sent an email to Mr. Kotada protesting the move. (Block Decl. ¶ 45.) The problem, in Ms. Block's view, arose from the fact that she was being moved from a closed cubicle with acoustic barriers to an open table office space without acoustic barriers. ( Id. ¶ 47.)
On September 5, 2007, Ms. Block met with Ms. Long and Mr. Kotada to discuss her transfer from the sixth floor to the fifth floor. ( Id. ¶ 46; Long Decl. ¶ 8.) Ms. Block states that she "requested to remain inside a closed cubical work station." (Block Decl. ¶ 46.) Although it was Ms. Long's impression that Ms. Block "was agreeable to this move," Ms. Long states that Ms. Block "implied that she had problems filtering out background noises which made it difficult for her to hear." (Long Decl. ¶ 8.) Nevertheless, the move went forward, and Ms. Block states that she "virtually had no way of communicating other than email." (Block Decl. ¶ 47.)
G. Ms. Block's Amended Informal EEO Complaint
As discussed in Part III.A, the court grants Ms. Block's motion for leave to file supplemental declaration. The court therefore will consider Ms. Block's second declaration and her Amended Informal EEO Complaint.
On September 24, 2007, Ms. Block filed an amended informal EEO complaint ("Amended Informal EEO Complaint"). (2d Block Decl. (Dkt. # 47) Ex. 1.) In her Amended Informal EEO Complaint, Ms. Block writes:
I, Anne Kathleen Block, an employee with the US Department of Labor, Energy Employees Occupational Illness Compensation Program, . . . hereby wish and intended to pursue a claim of discrimination against the US Department of Labor in Seattle, WA, my former senior claim's [sic] examiner, Margo Hornback (Hornback), Seattle Asst. District Officer Tracy Johnson, David Ruijuillo, and Randy Dempster, alleging discrimination based upon a presumed disability and/or actual disability. In addition, I wish to file a claim against Tracy Johnson and Randy Dempster, collectively, for retaliating against [sic] for filing my initial complaint with the DOL EEO counselor.
( Id. Ex. 1 at 6 ¶ 1.) Ms. Block also addresses her move to the fifth floor. She writes:
On 09/05/2007, I was told that I would be moving to a new unit. On 09/06/007, [sic], I was moved as the direct result of the complaint that I filed with Vic Sung, the Regional DOL EEO Counselor. This move was a retaliatory action taken against me for filing an EEO Complaint.
( Id. Ex. 1 at 8 ¶ 10.) Ms. Block does not name either Mr. Kotada or Ms. Long as alleged perpetrators in her Amended Informal EEO Complaint.
In late September 2007, Ms. Block contacted Ms. DeLaurentis to rescind her agreement to mediate and to obtain a right to file letter. ( Id. ¶ 51; see Barry-Perez Decl. Ex. 1.) By letter dated September 25, 2007, the Civil Rights Center confirmed that it had rescinded Ms. Block's request to participate in mediation and advised Ms. Block that she had 15 days within which to file a formal EEO complaint after receipt of the letter. (Barry-Perez Decl. Ex. 1; Block Decl. ¶ 53 Ex. 4.)
On October 11, 2007, Ms. Block filed a formal EEO complaint ("Formal EEO Complaint") with the Civil Rights Center. (Block Decl. ¶ 53 Exs. 5-6.) The Civil Rights Center did not respond to Ms. Block's Formal EEO Complaint. In her Formal EEO Complaint, Ms. Block expands her focus beyond Ms. Hornback and alleges claims for both disability discrimination and retaliation. ( Id. Ex. 5.) On the cover sheet, Ms. Block indicates that the bases of her complaint are religion, sex, age, disability, and reprisal. ( Id. Ex. 5 at 48.) In her Formal EEO Complaint, Ms. Block writes:
The DOL originally took the position that Ms. Block had not filed a formal EEO complaint. (Mot. at 10, 14.) After reviewing the evidence submitted by Ms. Block, however, the DOL reversed course. The DOL now states that Ms. Block's Formal EEO Complaint "was evidently lost and not logged into the DOL's data base. After receiving the exhibit showing an actual date of receipt, DOL searched and found the complaint." (Reply (Dkt. # 42) at 2 n. 2.)
I, Anne Kathleen Block, an employee with the US Department of Labor, Energy Employees Occupational Illness Compensation Program . . . hereby wish and intend to pursue a claim of discrimination against the US Department of Labor in Seattle, WA, my former senior claim's [sic] examiner, Margo Hornback (Hornback), Seattle Asst. District Officer Tracy Johnson, David Ruijillo, and Randy Dempster, alleging discrimination based upon a presumed disability and/or actual disability. In addition, I wish to file a claim against Tracy Johnson and Randy Dempster, collectively, for retaliating against [sic] for filing my initial complaint with the DOL EEO counselor.
( Id. Ex. 5 at 49 ¶ 1.) In general, the complaint focuses on the alleged harassment of Ms. Block by Ms. Hornback and others.
Ms. Block also complains about her transfer to the fifth floor in her Formal EEO Complaint. She writes:
10. On 09/05/2007, I was told that I would be moving to a new unit. I objected to this move for two reasons: the table that I was being moved to was 100% open space verses [sic] my former space that has acoustical barriers to block out background noise, and the table did not have a keyboard tray (and [sic] suffer from repetitive stress syndrome) and if moved I would not be able to hear clients in an open area verses [sic] the closed area that I had, and the fact that I suffer from Repetitive Stress syndrome and the new table does not have a [sic] ergonomic adjustable keyboard tray as did my form [sic] cubical, I was still ordered to move 24 hours later. Since that time I was given a keyboard.
11. Retaliation 1: on 09/06/2007, I was moved as the direct result of the complaint that I filed with Vic Sung, the Regional DOL EEO Counselor. This move was a retaliatory action taken against me for filing an EEO Complaint.
( Id. Ex. 5 at 51 ¶¶ 10-11.) Ms. Block does not name either Mr. Kotada or Ms. Long as alleged perpetrators in her Formal EEO Complaint.
In mid-October 2007, Ms. Hornback visited the fifth floor. ( Id. ¶ 54; Hornback Decl. ¶ 13.) Ms. Block states that Ms. Hornback, "within 3 feet from [Ms. Block's] work station," made comments to Ms. Block's new senior claims examiner. (Block Decl. ¶ 54.) Ms. Block does not specify the substance of these comments, but relates that the comments prompted her to email Ms. Long. ( Id.; Long Decl. Ex. 2.) In this email, Ms. Block informed Ms. Long that she had filed her Formal EEO Complaint: "With a formal EEO complaint now pending in DC against Margo, I am respectfully requesting that she refrain from further comments to my new senior." (Long Decl. Ex. 2.) Ms. Long scheduled a meeting with Ms. Block. (Block Decl. ¶ 54.) At the meeting, Ms. Long allegedly stated: "soon you won't have to worry about Hornback." ( Id.) Ms. Block interpreted this statement as a "direct attack on [Ms. Block's] future employment with the DOL." ( Id.)
The record remains unclear as to the nature of Ms. Hornback's alleged statements. In her briefing, Ms. Block characterizes Ms. Hornback as discussing the quality of Ms. Block's work, although she does not point to evidence to support this characterization. (Resp. (Dkt. # 34) at 8.)
H. Ms. Block's New Work Load
In October 2007, Ms. Block's new manager, Rayleen Kirkland, assigned additional, more complex work to Ms. Block. ( Id. ¶ 55.) Ms. Block explains that claims examiners were assigned cases based on the last two digits of a claimant's social security number. ( Id.) She states her understanding that ordinarily claims examiners with less than one year of experience would be assigned one social security digit, and claims examiners with two years of experience would be assigned two social security digits, "but never three." ( Id.) Ms. Kirkland, however, "assigned three new social security digits" to Ms. Block ( id.), which Ms. Block viewed as a difficult caseload:
My new case files were some of the most complex cases that I had ever worked on, and were files located on the 6th floor. This was unusual because an examiner's case files were always located on the floor for which the examiner worked.
( Id. ¶ 56.) Furthermore, Ms. Block states that the worksheets associated with her new case files "consistently contained incorrect information." ( Id. ¶ 57.) She complained about this type of incorrect information, but "[n]o action was taken to address [her] complaints." ( Id.)
I. Termination of Ms. Block's Employment
In late October 2007, Ms. Long began considering whether to terminate Ms. Block's employment. (Long Decl. ¶ 10; Davis Decl. Ex. 4.) She ultimately decided to terminate Ms. Block's employment during her probationary period. Pursuant to a letter from Ms. Long dated November 20, 2007, the DOL terminated Ms. Block's employment effective on November 23, 2007. (Long Decl. ¶ 2 Exs. 1, 4.) Ms. Long informed Ms. Block that she had decided to terminate her employment because Ms. Block's performance during her probationary period had "not been acceptable." ( Id. Ex. 4.) Ms. Long explains the basis for her decision:
You have received training and guidance continuously during your trial period. However, you have failed to accurately and consistently apply the training and guidance you received and your performance has not improved. You did not receive a rating of record for your job performance for the period of December 21, 2006 through September 30, 2007 because your performance did not meet the expectations listed in elements stated in the performance plan. In lieu of your receipt of a rating of record for the period of December 21, 2006 through September 30, 2007, I have decided to terminate your employment during your probationary period.
The trial period is a means of measuring the ability of an employee to perform the work of a position and, as such, is an essential and integral part of the examining process. You have demonstrated either an unwillingness or inability to conduct yourself in accordance with management's stated expectations. Therefore, it is my determination that your employment with the U.S. Department of Labor, Employment Standards Administration, Office of Workers' Compensation Programs, be terminated.
( Id.)
Ms. Long's evaluation of Ms. Block's performance as unacceptable was based in part on and echoed by other DOL employees' negative assessments of Ms. Block's performance. Specifically, Mr. Dempster, Ms. Johnson, Ms. Kirkland, Mr. Kotada, and Ms. Waller all agree that Ms. Block's performance was not acceptable. (Dempster Decl. (Dkt. # 25) ¶¶ 3-6; Johnson Decl. (Dkt. # 27) ¶¶ 4-5; Kirkland Decl. (Dkt. # 28) ¶¶ 3-5; Kotada Decl. ¶¶ 8, 18; Waller Decl. ¶¶ 3-5.) Ms. Hornback also states: "Ms. Block's work was inferior to most other new claims examiners I have trained, mentored, and reviewed." (Hornback Decl. ¶ 4.)
Despite these negative assessments, Ms. Block had previously received some positive feedback from Mr. Kotada via email about her performance. (Davis Decl. Exs. 5-12.) For example, on February 21, 2007, Mr. Kotada emailed Anne as follows:
Anne, good job on keeping up with your follow ups (you have no follow ups older than 40 days).
(Davis Decl. Ex. 5.) In a similar vein, on July 17, 2007, Mr. Kotada emailed:
Anne, very good job on working on your Pt E cases (incl. your interims) — as you can see the total E inventory went down quite a bit in just one month (May to June). Of course, you picked up a digit in July, so the inventories naturally increased. Keep up the good work, and as stated previously, everyone needs to finish up their 300s for this quarter. Thx.
(Davis Decl. Ex. 11.) The record contains a handful of other, similar email commendations. Mr. Kotada states that this type of encouragement is part of his management style. (Kodata Decl. ¶ 8.) He explains:
While I was Ms. Block's manager, my goal was to provide her (and all my new staff) with as much training and mentoring as needed. Although Ms. Block was not completing her work in a satisfactory manner, my style of management is to encourage my employees, especially understanding that the learning curve for a new Claims Exaimer is steep. On occasion, when I could, I did recognize when Ms. Block had done good work and told her so — usually as it related to completing a specific task.
( Id.)
J. Second Informal and Formal EEO Complaints
On December 10, 2007, Ms. Block filed a second informal EEO complaint ("Second Informal EEO Complaint"). ( See Mittet Decl. Exs. 3, 6; Barry-Perez Decl. ¶ 4.) Shortly thereafter, on December 18, 2007, Ms. Block filed a second formal EEO complaint ("Second Formal EEO Complaint"). (Mittet Decl. Ex. 4.) On the cover sheet, Ms. Block indicates that the sole basis of her Second Formal EEO Complaint is reprisal. ( Id.) She did not check the box labeled disability. ( Id.) In her Second Formal EEO Complaint, Ms. Block states:
The parties do not provide a copy of Ms. Block's Second Informal EEO Complaint. ( But see Mittet Decl. Ex. 3 (EEO Counselor's Summary Report of Second Informal EEO Complaint).)
The US Department of Labor's (DOL) Seattle Energy Employees Occupational Illness Compensation Program (EEOICP) District Office located in King County Washington terminated my employment in direct retaliation of a formal complaint I filed with the Civil Rights Division in DC (filed on or about 10/10/07).
( Id. Ex. 4 at 13 ¶ 1.) Ms. Block focuses on her termination as retaliation for her EEO activity, but does not allege that the DOL terminated her employment on the basis of disability.
K. Present Lawsuit
On December 29, 2008, Ms. Block filed the present lawsuit. (Compl. (Dkt. # 1).) In her complaint, Ms. Block pleads two claims. First, Ms. Block alleges a discrimination claim under the Rehabilitation Act of 1973:
Defendant unlawfully discriminated against the Plaintiff because of her disability in the terms and conditions of her employment and by failing to priide [sic] her with reasoable [sic] accommodation of her disability, in violation of the Rehabilitation Act.
( Id. ¶ 34.) Second, Ms. Block alleges a retaliation claim. ( Id. ¶ 36.) The DOL now moves to dismiss Ms. Block's disability discrimination claims and moves for summary judgment in its favor as to her retaliation claims.
III. ANALYSIS
A. Motion for Leave to File Supplemental Declaration
As a preliminary matter, the court considers Ms. Block's motion for leave to file supplemental declaration. Ms. Block requests leave to file a second declaration in opposition to the DOL's motion. Having considered the motion, and deeming responsive briefing and oral argument unnecessary, the court grants the motion for the reasons that follow.
In her motion, Ms. Block argues that the DOL raised a new argument in its reply and at oral argument on its motion to dismiss and/or for summary judgment. (Block Mot. (Dkt. # 47) at 1.) Specifically, Ms. Block contends that the DOL did not assert in its motion to dismiss and/or for summary judgment that she did not exhaust her administrative remedies in compliance with 29 C.F.R. § 1614.105(a). Ms. Block explains that she "was unable to present any evidence on the issue because defendant did not raise this argument until its reply brief." (Block Mot. at 2.)
The court disagrees with Ms. Block that the DOL did not raise its exhaustion argument under 29 C.F.R. § 1614.105(a) in its motion to dismiss and/or for summary judgment. A review of that motion demonstrates that the DOL raised this argument and the legal standards associated with it. ( See Mot. at 12 n. 1, 13-15, 22 n. 7.) Ms. Block correctly observes that the DOL primarily focused on its erroneous belief that Ms. Block had not filed a formal EEO complaint, but this does not excuse Ms. Block's failure to present evidence to counter the DOL's secondary arguments.
The court also notes that Ms. Block did not file her motion in a timely manner. The DOL filed its reply on April 19, 2010, the court heard oral argument on May 14, 2010, and Ms. Block filed her motion on May 18, 2010. ( See Dkt. ## 42, 45, 47.) To the extent Ms. Block believed the DOL had improperly raised a new argument in its reply, she would have been well advised to file a motion to strike or a surreply, or to take other appropriate action, after reviewing the DOL's reply. This is particularly true in light of the impending trial date. Ms. Block has offered no justification for her delay.
Nevertheless, the court will not turn a blind eye to the supplemental evidence submitted by Ms. Block. The court is mindful that public policy favors the disposition of cases on their merits. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (en banc). By a similar token, disposition of a case on a more complete record must be preferred to disposition on a less complete record. Therefore, despite strong reservations, the court, in the exercise of its discretion, grants Ms. Block's motion for leave to file supplemental evidence. The court will consider Ms. Block's supplemental declaration in the course of ruling on the DOL's motion to dismiss and/or for summary judgment.
The court notes that Ms. Block's supplemental evidence does not alter the court's ultimate ruling on the DOL's motion to dismiss and/or for summary judgment. Even if the court had denied Ms. Block's motion for leave to file supplemental evidence, the court would have granted the DOL's motion to dismiss and/or for summary judgment.
B. Claims Alleged in the Complaint
The court next considers the nature of the claims raised by Ms. Block in her complaint. This inquiry is necessary because Ms. Block does not pinpoint the bases of her claims with specificity, but rather pleads her claims for discrimination and retaliation with a broad brush. On the one hand, the parties agree that Ms. Block's cause of action for disability discrimination encompasses both a failure to accommodate claim and a disparate treatment claim regarding the termination of her employment. The parties also agree that Ms. Block's cause of action for retaliation rests on the termination of her employment. On the other hand, Ms. Block does not expressly plead a hostile work environment claim in her complaint and does not address the applicable legal standard for such a claim in her briefing. Counsel for Ms. Block confirmed at oral argument that Ms. Block does not assert a hostile work environment claim. On this record, the court holds that Ms. Block does not allege a hostile work environment claim.
C. Disability Discrimination Claims and Exhaustion of Administrative Remedies
A federal employee must exhaust his or her administrative remedies by filing a claim of discrimination with the allegedly offending agency of the United States in order to preserve his or her right to maintain a suit for employment discrimination against the agency. Leorna v. U.S. Dep't of State, 105 F.3d 548, 550 (9th Cir. 1997). The procedures for submitting an employment discrimination claim are set forth at 29 C.F.R. Part 1614. Pursuant to those procedures, a federal employee complaining of disability discrimination must consult an EEO counselor prior to filing a complaint in order to try to informally resolve the matter, 29 C.F.R. § 1614.105(a), and the employee must initiate this contact "within 45 days of the date of the matter alleged to be discriminatory," 29 C.F.R. § 1614.105(a)(1). See Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009); Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003); Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002); Leorna, 105 F.3d at 550-51.
Failure of the employee to comply with this pre-filing exhaustion requirement within the 45-day window for each discrete act of discrimination generally results in the employee losing the opportunity to recover for it in federal court. Kraus, 572 F.3d at 1043; Lyons, 307 F.3d at 1105; see Johnson v. U.S. Treasury Dep't, 27 F.3d 415, 416 (9th Cir. 1994); Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985). As the Ninth Circuit teaches:
The regulations further provide that an employee's failure to initiate contact with an EEO Counselor within 45 days is grounds for the dismissal of her EEO complaint, although "[t]he time limits in this part are subject to waiver, estoppel and equitable tolling." Similarly, although the regulatory pre-filing exhaustion requirement at § 1614.105 "does not carry the full weight of statutory authority" and is not a jurisdictional prerequisite for suit in federal court, we have consistently held that, absent waiver, estoppel, or equitable tolling, "failure to comply with this regulation [is] . . . fatal to a federal employee's discrimination claim" in federal court.Kraus, 572 F.3d at 1043 (citations omitted). When an employee "pursues several disparate treatment claims, based on discrete discriminatory acts, the limitations period will begin to run for each individual claim from the date on which the underlying act occurs." Lyons, 307 F.3d at 1106-07. Discrete acts include "termination, failure to promote, denial of transfer, or refusal to hire," among others. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
A federal court may consider an allegation or claim not raised by an employee in compliance with the pre-filing exhaustion requirement of 29 C.F.R. § 1614.105(a) if the allegation or claim is "like or related" to those claims originally raised. Scher v. Runyon, Appeal No. 01942286, 1995 WL 17214376, at *2 (E.E.O.C. May 30, 1995); see Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003). "In determining if a later allegation or complaint is 'like or related' to the original complaint, the question arises as to whether the later allegation or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation." Scher, 1995 WL 17214376, at *2. In B.K.B. v. Maui Police Department, 276 F.3d 1091 (9th Cir. 2002), the Ninth Circuit set out a list of factors that courts should consider in determining whether an employee has sufficiently exhausted particular allegations or claims:
[I]t is appropriate to consider such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred. In addition, the court should consider plaintiff's civil claims to be reasonably related to allegations in the charge to the extent that those claims are consistent with the plaintiff's original theory of the case.276 F.3d at 1091.
Although B.K.B. does not address the pre-filing exhaustion requirement of 29 C.F.R. § 1614.105(a), the court finds it appropriate to consider these factors when evaluating questions of pre-filing exhaustion under 29 C.F.R. § 1614.105(a).
The DOL moves to dismiss certain of Ms. Block's claims on the theory that she failed to exhaust her administrative remedies prior to bringing suit in federal court. (Reply at 3.) The DOL concedes that Ms. Block exhausted two claims: harassment by Ms. Hornback based on disability; and termination of employment in retaliation for her prior EEO activity. ( Id.) By contrast, the DOL asserts that Ms. Block failed to exhaust any claims alleging disparate treatment on the basis of disability or denial of reasonable accommodation with respect to Ms. Block's transfer from the sixth floor to the fifth floor.
As discussed in Part III.B, Ms. Block did not plead a hostile work environment claim in her complaint.
1. Ms. Block Did Not Administratively Exhaust Her Disparate Treatment and Failure to Accommodate Claims Predicated on Her Transfer to the Fifth Floor
With respect to Ms. Block's disparate treatment and failure to accommodate claims predicated on her transfer to the fifth floor, the court concludes that Ms. Block failed to administratively exhaust these claims in accordance with the pre-filing requirements of 29 C.F.R. § 1614.105(a). First, Ms. Block's transfer to the fifth floor and the DOL's denial of her request for accommodation constitute discrete acts that must be separately exhausted. Cherosky, 330 F.3d at 1245-1248; Lyons, 307 F.3d at 1106-07. Second, Ms. Block's Informal EEO Complaint does not address these claims as it was filed in August 2007 before Ms. Block's transfer in September 2007. Third, Ms. Block's Amended Informal EEO Complaint does not raise either a failure to accommodate claim or a disparate treatment claim on the basis of disability. Instead, her Amended Informal EEO Complaint states that her transfer was a retaliatory act and makes no suggestion that it was motivated by her hearing impairment. Ms. Block has thus presented no evidence to show that she raised these allegations during the pre-filing exhaustion process or that the EEO investigated these allegations at any time. Taken together, these considerations indicate that Ms. Block failed to exhaust these claims.
Ms. Block contends that she "followed every administrative step necessary to preserve her cause of action for disability discrimination," but she does not address these discrete acts or explain on what basis she believes she exhausted her administrative remedies pursuant to 29 C.F.R. § 1614.105(a) with respect to them. (Resp. at 12.) A liberal reading of Ms. Block's Formal EEO Complaint suggests that she raised, or at least alluded to, these claims in her Formal EEO Complaint. Yet this does not obviate Ms. Block's obligation to comply with the pre-filing exhaustion requirements of 29 C.F.R. § 1614.105(a). Allowing an employee to sidestep the pre-filing exhaustion requirements would interfere with the goal of promoting the non-judicial resolution of employment discrimination claims.
Additionally, Ms. Block's disparate treatment and failure to accommodate claims predicated on her transfer to the fifth floor cannot be considered "like or related to" the claims in her Informal EEO Complaint or her Amended Informal EEO Complaint. The transfer of Ms. Block from the sixth floor to the fifth floor is factually distinct from Ms. Hornback's alleged harassment of Ms. Block. Likewise, the denial of Ms. Block's alleged request for an accommodation is factually distinct from Ms. Hornback's alleged harassment of Ms. Block. These claims do not focus on Ms. Hornback's actions, but rather involve different alleged perpetrators, and they occurred at a later date. The legal bases of these claims are also distinct from the harassment claim raised by Ms. Block in her Informal EEO Complaint and her Amended Informal EEO Complaint. Likewise, the legal bases of these claims are distinct from the retaliation claim raised by Ms. Block in her Amended Informal EEO Complaint. In sum, these claims neither add to nor clarify the claims raised in Ms. Block's Informal EEO Complaint and her Amended Informal EEO Complaint and could not have reasonably been expected to grow out of her Informal EEO Complaint or her Amended Informal EEO Complaint during the investigation. Scher, 1995 WL 17214376, at *2; see B.K.B., 276 F.3d at 1100. On this record, the court finds that Ms. Block's disparate treatment and failure to accommodate claims predicated on her transfer to the fifth floor are not like or related to the claims of her Informal EEO Complaint and her Amended Informal EEO Complaint.
The court concludes that Ms. Block did not administratively exhaust her disparate treatment and failure to accommodate claims predicated on her transfer to the fifth floor. Furthermore, Ms. Block presents neither argument nor evidence to support the application of waiver, estoppel, or equitable tolling. On this record, Ms. Block's failure to comply with the pre-filing exhaustion requirements with respect to these claims is fatal. The court thus dismisses these claims.
2. Ms. Block Did Not Administratively Exhaust Her Disparate Treatment Claim Predicated on the DOL's Termination of Her Employment
Next, with respect to Ms. Block's disparate treatment claim predicated on the DOL's termination of her employment on the basis of disability, the court also concludes that Ms. Block failed to administratively exhaust this claim. The termination of Ms. Block's employment is a discrete act, Morgan, 536 U.S. at 114, and Ms. Block was thus obligated to comply with the relevant administrative exhaustion requirements. She did not do so. While Ms. Block filed her Second Informal EEO Complaint in December 2007 within 45 days of the DOL's termination of her employment in November 2007, she has presented no evidence to suggest that she raised her hearing impairment as a basis for this adverse employment action. Moreover, even assuming Ms. Block had raised disability as a basis for her Second Informal EEO Complaint, she chose to focus exclusively on retaliation as the basis for her Second Formal EEO Complaint and the Civil Rights Center investigated only that alleged claim.
This disparate treatment claim cannot be considered like or related to the retaliation claim raised by Ms. Block in her Second Formal EEO Complaint. This disparate treatment claim undeniably arises from the same adverse employment action as Ms. Block's retaliation claim and it involves the same alleged perpetrators. At its core, however, the claim embraces a fundamentally different legal theory and basis for the adverse employment action. It thus is not like or related to Ms. Block's retaliation claim.
In sum, the court concludes that Ms. Block did not administratively exhaust her disparate treatment claim predicated on the DOL's termination of her employment on the basis of disability. Once again, Ms. Block does not raise any argument to support the application of waiver, estoppel, or equitable tolling. Accordingly, the court dismisses this claim.
D. Retaliation Claims
1. Rule 56(c) Legal Standard
Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing there is no genuine issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party meets his or her burden, then the non-moving party "must make a showing sufficient to establish a genuine dispute of material fact regarding the existence of the essential elements of his case that he must prove at trial" in order to withstand summary judgment. Galen, 477 F.3d at 658. The non-moving party "must present affirmative evidence to make this showing." Id. Furthermore, as the Ninth Circuit teaches, "[b]ald assertions that genuine issues of material fact exist are insufficient," and a mere scintilla of evidence supporting a party's position is also inadequate. Id.
2. Retaliation Claims
Courts apply the three-step McDonnell Douglas burden-shifting analysis to retaliation claims. Davis v. Team Elec. Co., 520 F.3d 1080, 1088-89 (9th Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); Bergene v. Salt River Project Agric. Improvement Power Dist., 272 F.3d 1136, 1140 (9th Cir. 2001). Under this analysis, the employee must first establish a prima facie case of retaliation. If he or she does so, the employer must come forward to articulate a legitimate, nonretaliatory reason for the challenged action. Finally, if the employer satisfies its burden, the employee must show that the proffered reason is merely a pretext for retaliation.
a. Retaliation: Termination of Ms. Block's Employment
i. Prima Facie Case
"To make out a prima facie case of retaliation, an employee must show that (1) he engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action." Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000); see Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 887 (9th Cir. 2004). The first two elements are easily established here: Ms. Block engaged in protected activity by filing informal and formal EEO complaints. Ray, 217 F.3d at 1241 n. 3. The DOL also subjected Ms. Block to an adverse employment action by terminating her employment. Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002).
The element of causation, however, presents a closer question. To establish causation for purposes of a retaliation claim, a plaintiff must present evidence that engaging in the protected activity was one of the reasons for her firing and that but for such activity she would not have been fired. Villiarimo v. Aloha Island Air., Inc., 281 F.3d 1054, 1064-65 (9th Cir. 2002). The Ninth Circuit has recognized that in some cases "causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity." Id. at 1065; see Passantino v. Johnson Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). Nevertheless, "timing alone will not show causation in all cases[.]" Villiarimo, 281 F.3d at 1065. Instead, a plaintiff must show that the termination "occurred fairly soon after the employee's protected expression." Id. (quoting Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir. 2000)); see also Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001).
To begin with, the court notes that Ms. Long knew that Ms. Block had made both informal and formal EEO complaints at the time Ms. Long decided to terminate Ms. Block's employment. (Long Decl. ¶¶ 5-6 Ex. 2.) The record is also clear that Mr. Kotada knew of Ms. Block's EEO activity. (Kotada Decl. ¶¶ 13-15.) Although Ms. Long and Mr. Kotada may not have known the precise contours of Ms. Block's complaints, they were aware, at a minimum, that Ms. Block alleged that Ms. Hornback had been harassing her. (Kotada Decl. ¶ 16; Long Decl. ¶ 5.) They were also aware that Ms. Block's EEO complaints involved alleged harassment by Ms. Johnson and Mr. Ronquillo. (Kotada Decl. ¶ 15; Long Decl. ¶ 5.) Finally, viewing the evidence in Ms. Block's favor, Ms. Long and Ms. Kotada were aware that Ms. Block identified herself as living with a hearing impairment, regardless whether they considered it a disability or knew that related to Ms. Block's EEO complaints. (Kotada Decl. ¶ 16; Long Decl. ¶ 8.)
With this background in mind, the court turns to the question of whether Ms. Block has presented sufficient evidence to demonstrate causation for purposes of a prima facie case of retaliation. Ms. Block has not submitted direct evidence, but rather relies on the temporal proximity between her EEO activity and her termination to show causation. The parties agree that Ms. Block filed her Informal EEO Complaint in late August 2007, and that the DOL terminated Ms. Block's employment in late November 2007. This reveals a temporal proximity of approximately three months. Absent a bright-line rule, a three-month period does not necessarily demonstrate sufficient temporal proximity to establish a causal link. See Villiarimo, 281 F.3d at 1065. The court is persuaded, however, that Ms. Block has presented additional evidence to strengthen the inference of causation. Specifically, the record reveals that Ms. Long made the preliminary decision to terminate Ms. Block's employment in late October 2007 or early November 2007, even though Ms. Long did not immediately follow-through with her decision. (Davis Decl. Ex. 4; see Long Decl. ¶ 10.) This consideration tightens the sequence of events, and suggests that Ms. Long arrived at her decision to terminate Ms. Block's employment approximately two months after Ms. Block's initial EEO activity. Cf. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 1003 (9th Cir. 2009) (considering date decision-maker initially intended to terminate employee as part of causation analysis). On this record, viewing the evidence in the light most favorable to Ms. Block, the court finds that Ms. Block has met her burden to show a causal link. Ms. Block has thus made out a prima facie case of retaliation.
ii. Legitimate, Nonretaliatory Reason
Next, the burden shifts to the DOL to show that it terminated Ms. Block's employment for a legitimate, nonretaliatory reason. Davis, 520 F.3d at 1094. The DOL has met its burden by presenting a range of evidence to support its stated reason for terminating Ms. Block's employment: namely, that Ms. Block's performance was unacceptable and did not warrant continued employment. The record is replete with evidence to support Ms. Long's assessment. ( See Dempster Decl. ¶¶ 3-6; Johnson Decl. ¶¶ 4-5; Kirkland Decl. ¶¶ 3-5; Kotada Decl. ¶¶ 8, 18; Long Decl. ¶¶ 10-14; Waller Decl. ¶¶ 3-5.) Ms. Block does not dispute that the DOL has satisfied its burden to show that it terminated her employment for a legitimate, nonretaliatory reason. Therefore, the court concludes that the DOL has satisfied its burden.
iii. Pretext
Finally, the burden returns to Ms. Block to show that the DOL's proffered reason for her termination was a pretext for retaliation. Davis, 520 F.3d at 1094; Bergene, 272 F.3d at 1140. The critical issue at this stage is whether Ms. Block has produced sufficient evidence to raise a triable issue of fact as to whether the reason proffered by the DOL for terminating her employment was a pretext for unlawful retaliation. Bergene, 272 F.3d at 1141. A plaintiff may present either direct or circumstantial evidence to show pretext. Direct evidence is evidence which, if believed, proves the fact of retaliatory animus without inference or presumption. Id. at 1142. "Only a small amount of direct evidence is necessary in order to create a genuine issue of material fact as to pretext." Id. By contrast, circumstantial evidence is evidence "that tends to show that the employer's proffered motives were not the actual motives because they are inconsistent or otherwise not believable." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). "Circumstantial evidence of pretext must be specific and substantial in order to survive summary judgment." Bergene, 272 F.3d at 1142.
Here, Ms. Block relies on circumstantial evidence instead of direct evidence to demonstrate a genuine issue of material fact as to pretext. Notably, Ms. Block identifies no direct evidence that Ms. Long terminated her employment due to retaliatory animus. Instead, Ms. Block argues that she has shown pretext on two grounds. (Resp. at 24.) First, Ms. Block points to eight emails from Mr. Kotada, which she insists undermine Ms. Long's asserted reason for terminating her employment. Second, Ms. Block contends that her assignment of a more difficult caseload following her EEO activity, paired with her transfer to the fifth floor, demonstrates that the DOL "fabricated its 'poor performance' allegation by ensuring that Ms. Block could not succeed." ( Id. at 23.) Ms. Block also submits evidence that she believes shows the DOL targeting other employees for failure in similar fashion. ( Id. at 23-24.)
As a preliminary matter, the court finds that temporal proximity, standing alone, is insufficient to raise a genuine issue of material fact as to pretext on the facts of this case. The temporal proximity between Ms. Block's EEO activity and Ms. Long's termination of her employment is approximately three months, with the preliminary decision apparently having been made approximately two months after Ms. Block filed her Informal EEO Complaint. Thus, while the termination of Ms. Block's employment arrives on the heels of protected activity, it lags some distance behind. This is simply not a case involving a short temporal proximity spanning days or even weeks from which a strong inference can be drawn.
Moreover, the timing of Ms. Long's decision to terminate Ms. Block's employment must be viewed in the context of her initial, one-year probationary period as an employee. There is no factual dispute that Ms. Block began her employment as a probationary employee and that her probationary period was set to expire in November 2007. Accordingly, Ms. Long had a limited time frame within which to evaluate Ms. Block's performance as a probationary employee. There is no evidence in the record to suggest that Ms. Long made her decision with respect to Ms. Block's employment in a premature manner or at an otherwise unusual time. In light of the foregoing, temporal proximity is insufficient to show a genuine issue of material fact as to pretext.
Next, the court finds that Mr. Kotada's email commendations of Ms. Block's performance do not constitute evidence that is sufficiently substantial to demonstrate a genuine issue of material fact as to pretext. None of the emails submitted by Ms. Block represent a formal evaluation of Ms. Block's overall performance by Mr. Kotada. So too, none of the emails touch on Ms. Block's performance in anything but a cursory manner. Rather, these emails, even viewed in the light most favorable to Ms. Block, amount to little more than the everyday pleasantries and encouragements of the employee-manager relationship. Stated differently, this evidence is not substantial. Likewise, Mr. Kotada's statement that he would be "more than happy" to be a reference for Ms. Block, although he would hate to lose her if she decided on another position, does not meaningfully address Ms. Block's performance. Even viewed in the light most favorable to Ms. Block, Mr. Kotada's emails are not sufficiently probative to give rise to a genuine issue of material fact regarding pretext.
The court also finds that Ms. Long's alleged statement to Ms. Block — "soon you won't have to worry about Hornback" — is not evidence that is sufficiently substantial to show a genuine issue of material fact as to pretext. Ms. Long allegedly made this statement at a meeting with Ms. Block to discuss Ms. Hornback's visit to the fifth floor. (Block Decl. ¶ 54.) Viewing the evidence in the light most favorable to Ms. Block, the court will assume that Ms. Long made the alleged statement and that Ms. Block perceived it as a threat. From this starting point, the court asks: are the statement and Ms. Block's perception of the statement sufficiently specific and substantial to give rise to a genuine issue of material fact as to pretext? First, the statement, by its express terms, does not address Ms. Block's employment at all and does not threaten her continued employment. Second, the statement does not expressly refer to Ms. Block's protected activity. Third, Ms. Block provides no additional factual context from which to draw the inference that Ms. Long intended the statement as a threat in retaliation for Ms. Block's protected activity. In essence, this is an anodyne statement with no corresponding factual context to shade its meaning. Although this type of statement could, in some factual circumstances, constitute specific and substantial evidence of pretext, it does not rise to such a level here. The court thus finds that this statement does not carry Ms. Block's burden to show a genuine issue as to pretext.
Additionally, the court finds that Ms. Long's decision to terminate Ms. Block's employment without prior notice and without a prior review is insufficient to show a genuine issue of material fact as to pretext. Ms. Block identifies no provision in the collective bargaining agreement or performance standards that mandates notice or a review prior to termination for a probationary employee. ( See Block Decl. Ex. 2.) Without more, this is insufficient to show pretext. Furthermore, even if Ms. Long had erred in her interpretation, this does not necessarily demonstrate pretext where, as here, the only evidence on this issue shows that Ms. Long terminated Ms. Block's employment in accordance with the procedures as she understood them. See Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000).
Finally, the court finds that the assignment of a more difficult caseload to Ms. Block following her EEO activity is not sufficiently specific and substantial evidence to show a genuine issue of material fact as to pretext. In her declaration, Ms. Block states that Ms. Kirkland assigned three new social security digits to her in October 2007, and asserts that "Standard Office Procedures for examiners with less than one year experience is one social security digit; after two years, two, but never three." (Block Decl. ¶ 55.) Ms. Block provides no support for her contention that this approach to assigning caseloads is a standard EEOICP policy or that the EEOICP followed this policy in October 2007. Even assuming that Ms. Kirkland assigned Ms. Block a more difficult caseload and assuming Ms. Block's worksheets associated with her new caseload contained errors, the court is not persuaded that this is sufficient to show a genuine issue of material fact as to pretext. Ms. Block has not presented any evidence of a connection between her EEO activity and her new caseload beyond the simple fact that one preceded the other. This evidence is not sufficiently substantial to satisfy Ms. Block's burden. Likewise, Ms. Block fails to show how the DOL's alleged treatment of another employee gives rise to a genuine issue of material fact as to pretext with respect to Ms. Block.
In contrast to Ms. Block's assertions, Page Rebelo, a senior claims examiner, states that claims examiners are assigned "either two or three" digits. (Davis Decl. Ex. 3 (Rebelo Dep.) at 13.) "So if they're — if they're a new claims examiner, they may at first get one digit. As they progress in their first year, they may move up to two digits. After a year with the department, once they become a GS-11, they may jump up to three digits." ( Id.)
In her declaration, Edna Lassair, a claims examiner, states that "[i]t was also common at the DOL for managers and/or senior claims examiners to assign large and/or more complex caseloads to employees they wanted to get rid of or did not like for one reason or another." (Lassair Decl. (Dkt. # 38) ¶ 9.) Ms. Lassair also states that "it was well known that many employees had been subjected to retaliation and discriminatory practices." ( Id. ¶ 6.) These generalized assertions are unsupported and do not give rise to a genuine issue of material fact regarding pretext.
In sum, the court concludes that Ms. Block has not satisfied her burden to present specific and substantial evidence to show a genuine issue of material fact as to pretext. Even viewing the evidence in the light most favorable to Ms. Block and considering the totality of the evidence in the record, the court finds that Ms. Block has not met her burden. Therefore, the court grants the DOL's motion for summary judgment with respect to Ms. Block's retaliation claim. b. Retaliation: Transfer to the Fifth Floor
Ms. Block also asserts that her transfer to the fifth floor constitutes unlawful retaliation in response to her EEO activity. (Resp. at 21.) The parties have submitted less briefing on the subject of this retaliation claim. Once again, however, the court concludes that Ms. Block has made out a prima facie case of retaliation. Viewing the evidence in the light most favorable to Ms. Block, the court finds that: (1) Ms. Block engaged in protected activity by filing EEO complaints; (2) she was subjected to an adverse employment action by being moved to the fifth floor; and (3) she has shown causation based on the close temporal proximity between her EEO activity and the transfer. Next, the court concludes that the DOL has satisfied its burden to present a legitimate, nonretaliatory reason for the action. Specifically, the DOL has presented evidence that Ms. Long and Mr. Kotada, in conjunction with Mr. Sung, transferred Ms. Block to the fifth floor in an attempt to resolve the conflict between Ms. Block and Ms. Hornback within the context of the informal EEO complaint process. (Kotada Decl. ¶¶ 13-15; Long Decl. ¶¶ 5-7.)
The burden thus falls to Ms. Block to show that the DOL's proffered reason was a mere pretext for retaliation. She has not done so. Even viewing the evidence in the light most favorable to Ms. Block, the court finds that she has not presented either direct evidence or specific and substantial circumstantial evidence that is sufficient to demonstrate a genuine issue of material fact as to pretext. On this record, the fact that Ms. Long and Mr. Kotada decided to transfer Ms. Block in connection with Mr. Sung's investigation and the informal EEO complaint process, without more, is insufficient to show pretext. To conclude that the DOL's attempt to informally resolve Ms. Block's Informal EEO Complaint, absent additional indicia of pretext or other considerations, constitutes sufficient evidence of pretext would interfere with the purpose of 29 C.F.R. § 1614.105(a), i.e., "to try to informally resolve the matter." Ms. Block points to no additional evidence to demonstrate pretext. To the extent Ms. Block contends that the evidence she marshaled in an attempt to show that Ms. Long's termination of her employment was a pretext for retaliation also constitutes evidence of pretext with respect to this retaliation claim, the court disagrees. This evidence, by and large, does not speak to Ms. Block's transfer and, in any event, is insufficient to show pretext for the reasons stated above. Therefore, the court finds that Ms. Block has not shown a genuine issue of material fact as to pretext with respect to her retaliation claim predicated on her transfer to the fifth floor. The court grants summary judgment in favor of the DOL with respect to this claim.
IV. CONCLUSION
For the foregoing reasons, the court GRANTS the DOL's motion to dismiss and/or for summary judgment (Dkt. # 23) and GRANTS Ms. Block's motion for leave to file supplemental declaration (Dkt. # 47). The court directs the clerk to enter judgment in favor of the DOL.