Opinion
1:99cv02255 (PLF).
April 25, 2005
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Lillian J. Drumgold ("Plaintiff"), sues her employer, Howard University ("Defendant"), for alleged disability discrimination, retaliation, breach of contract, and intentional infliction of emotional distress. She seeks relief under (1) Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, Title 42, United States Code, Sections 2000e-2000e-17; (2) the Americans with Disabilities Act of 1990 ("ADA"), as amended, 42 U.S.C. §§ 12101- 12213; (3) the District of Columbia Human Rights Act ("DCHRA"), D.C. Code §§ 1-2501 through 1-2557 (1996), recodified in 2001 as D.C. Code §§ 2-1401 through 2-1404; and (4) District of Columbia tort and contract law.
Before the court at this time is Defendant's motion for summary judgment. Doc. 48. Plaintiff has responded (doc. 49) in opposition to the motion, and the parties have been advised that the motion would be taken under advisement as of a date certain.
I.
In support of its motion for summary judgment, Defendant has filed deposition excerpts and other documents that provide evidence of nondiscriminatory, non-retaliatory reasons for its actions — actions, moreover, that — according to Defendant — failed to rise to the level of "adverse actions" for purposes of Title VII and the ADA. Defendant's evidence reveals the following:Plaintiff began working for Defendant in a permanent position on January 27, 1986. Before that time, she held a temporary position with Defendant. Initially hired as a Graduate Admissions Assistant, her duties included entering applications into the university system, obtaining credentials for applicants, and sending correspondence to the applicants advising them of their status.
In or about 1994, Defendant instituted a Reduction in Force ("RIF") that resulted in several employees in the Graduate Admissions Office losing their jobs. As a result of the RIF, Plaintiff says that she had to assume the duties that were previously the function of employees who were dismissed, namely the duties of an admission assistant, a secretary, and an admission counselor. Defendant points out that no university records support Plaintiff's assertion that she was expected to perform — or did perform — the duties of four different positions.
On or about March 1, 1995, Plaintiff's duties allegedly changed again. At that time, the Graduate School of Arts and Sciences obtained its own Graduate Admissions Office, in effect causing a split in the office in which Plaintiff worked. As a result of the split, two of Plaintiff's co-workers were moved to the Graduate Admissions Office in the Graduate School of Arts and Sciences. Plaintiff was essentially left to perform — by herself, she says — the work of the thirteen remaining schools representing the Graduate Admissions Office. Although Plaintiff says that her supervisor told her she would be given a raise, a promotion, and some kind of assistance as compensation for the increased work load, that alleged oral "promise" never came to fruition. Indeed, Plaintiff's supervisor advised Janice L. Nicholson ("Nicholson"), Associate Vice President, that no such verbal "promise" was ever made, and Plaintiff admitted in her deposition that her supervisor lacked the authority to grant her a raise or a promotion.
While employed in the Graduate Admissions Office, Plaintiff was sexually harassed by a co-employee. Plaintiff informed various people in her office, including her supervisor, about the sexual harassment. Although the offender's behavior toward her improved after he was confronted by Plaintiff's supervisor, the supervisor nonetheless permitted the offender to continue working with and around Plaintiff.
In January or February of 1996, Plaintiff filed a formal complaint, alleging sexual harassment, with the Equal Employment Opportunity Commission ("EEOC"). After she received a right to sue letter, Plaintiff — along with two other individuals who were allegedly harassed by the same individual — filed suit against Defendant in the United States District Court for the District of Columbia. After Defendant investigated the matter, concluding that sexual harassment did, in fact, occur, the offender was either terminated or forced to retire. Defendant thereafter settled with Plaintiff.
On November 4, 1996, soon after her sexual harassment case was settled, Plaintiff was temporarily assigned to an unfunded position as a direct lending data entry clerk in the Financial Aid and Student Employment Office. Associate Vice President Nicholson made the assignment based on her belief that Plaintiff's qualifications, dedication, and skills were needed to help implement the then-new Direct Lending Program. According to Nicholson, no vacant direct lending data entry clerk position existed at that time. Initially treated as a lateral transfer with no change in benefits, Plaintiff's salary continued to be paid from the budget of the Graduate Admissions Office. When asked at her deposition how the reassignment affected her duties, Plaintiff responded that her duties decreased for "[m]aybe a year." Drumgold Dep. at 30.
Upon her temporary reassignment, Nicholson told Plaintiff that she would have the opportunity to learn the duties and responsibilities of a direct lending data entry clerk while she was helping to implement the new program and that she could apply for the position if and when such position was funded and posted. Indeed, Plaintiff's reassignment became official on September 22, 1997, after she applied for — and was formally selected for — a vacant funded data entry clerk position, a position representing a one-grade-level promotion over her previous position. The requisite probationary period was waived, and she was awarded an increase in salary of "something a little over $1,000." Drumgold Dep. at 21.
As explained in Defendant's answers to Plaintiff's interrogatories, each department in the university is allotted a certain number of the limited parking spaces in the various parking lots around the campus. Senior departmental management goes through a selection process every year to decide which employees are to be assigned to each of the alloted parking spaces. In September, 1996, Plaintiff was informed that her parking space was being moved from Mackey Parking Lot, two blocks from the building where she worked, to the Bethune Annex Parking Lot, six blocks from her office. Although Plaintiff was told at the time that there were no available parking spaces closer to her building, Plaintiff became aware that other people were soon after assigned to a closer lot. Despite repeated requests for a more convenient parking space, it was not until mid-1998 that Plaintiff's request was granted. At that time, based on her claims of health problems, Plaintiff was assigned a temporary handicap parking space in Minor Parking Lot, the lot adjacent to her office. She was told, however, that she would be required to obtain a handicap tag within ninety days in order to continue parking in that lot. Although she never obtained such a tag, she continued to park in the Minor Parking Lot beyond the ninety-day period and has not been reassigned since.
By memorandum dated June 19, 1997, Associate Vice President Nicholson responded to a May 23, 1997, memorandum from Plaintiff, entitled: "Compensation for Work Performed Outside of My Job Classification." In her memorandum to Plaintiff, Nicholson explained:
Soon after my arrival you began approaching me in the hall, on the loading dock, in the parking lot, and at various other informal settings to make inquiries and to complain about your assignments, workload, and compensation level. As I indicated each time, in due course I intended to review, and if required, modify all Enrollment Management (EM) positions and, if necessary, to create new positions. This type of effort involves rewriting current staff members' position descriptions to reflect accurately duties and responsibilities as well as incorporate EM's goals and objectives. Overall, my goal has been and continues to be reengineering EM to make it as efficient, effective, and productive as possible.
As the Associate Vice President for the nexus of the University, I am responsible for redirecting resources so as to meet the goals and objectives of the University's Strategic Framework for Action. Frequently this requires shifting and temporarily assigning staff to EM areas with critical needs.
. . . .
In no way was your temporary reassignment on 4 November 1996 related to an alleged assessment of your duties and responsibilities nor to the plan to rewrite position descriptions. I made the temporary reassignment to address a very critical need in Financial Aid and Student Employment.
When you began helping the Direct Lending Program, you were not qualified to perform the duties and responsibilities of the assignment.
Doc. 48, Ex. 6.
On May 17, 1999, Plaintiff was placed on a three-day suspension for disciplinary reasons. According to Keith Thomas, the Data Exchange Coordinator, Plaintiff acted in violation of a cited directive and contrary to a direct order from university management. Specifically, Plaintiff was informed in a meeting on January 27, 1999, that the university representative for any contact with the Department of Education, Title IV WAN Office, was Ms. Tracy Edgerton in Student Financial Services. Should Ms. Edgerton not be available, Plaintiff was told to contact Mr. Sevester Bell or Mrs. Diane Wyatt-Hammond. Plaintiff was expressly instructed that she herself was to make no contact with the Title IV WAN officials. Nonetheless, on May 13, 1999, representatives of the Title IV WAN office informed Student Financial Services that Plaintiff had contacted them, identified herself as the Howard University Administrator for Title IV WAN, and requested that the systems administrator password be reset. Plaintiff was soon after informed about the violation and the resulting discipline.
II.
Where, as here, a defendant has articulated legitimate reasons for its employment-related decisions and — in addition — has produced evidence to support those reasons, a plaintiff — to survive summary judgment — must present evidence sufficient to create a material issue of fact as to whether the employer's proffered reasons are a pretext for discrimination/retaliation. See Aka v. Washington Hospital Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) ( en banc). Plaintiff in this case has produced no such evidence.
A.
Regarding Plaintiff's claim that she was reassigned to the Financial Aid and Student Employment Office in retaliation for the sexual harassment lawsuit she filed, Defendant has supported its motion for summary judgment with ample evidence that Plaintiff was reassigned because the university had a critical need for her help in implementing the new Direct Lending Program. Regarding Plaintiff's claim that she failed to receive a pay raise and/or a promotion upon her reassignment in retaliation for the sexual harassment suit she filed, Defendant has produced evidence that Plaintiff was not given a raise or a promotion upon her reassignment because (1) she was not then qualified as a direct lending data entry clerk, (2) there was no funded vacancy for such a position at that time, and (3) she had not yet gone through the application process for such a position.
In response to Defendant's properly supported motion for summary judgment, Plaintiff has produced little more than her own deposition, which is replete with conclusory, self-serving assertions that are uncorroborated by any other evidence. She says she could have received a two-level promotion if she had been permitted to remain in the Graduate Admissions Office, but she provides no evidence to support such statement. She says she should have been given a raise and/or a promotion as soon as she was reassigned, but she provides no evidence to suggest that her work merited a raise or a promotion at that time. She says she was overworked and underpaid after her reassignment, but the evidence reveals that she voiced the overworked/underpaid complaint both before and after she filed her sexual harassment charge, which suggests that her complaint had little, if anything, to do with a retaliatory animus on the party of Defendant. She says she was denied the opportunity to earn overtime after her reassignment, but she offers no evidence to suggest that anyone in the Financial Aid and Student Employment Office was given overtime opportunities. She says, instead, that she was denied overtime opportunities in the Graduate Admissions Office, opportunities that were allegedly given to two graduate admissions employees from the Graduate School of Arts and Sciences after Plaintiff's departure from the Graduate Admissions Office. She does not contend that she was denied overtime opportunities in the Graduate Admissions Office while she was still employed there, and she provides no evidence that the Graduate Admissions supervisor acted with retaliatory animus when she, in her discretion, called on two graduate admissions employees to work overtime rather that calling in an employee who was then working in another area of the university.
Plaintiff does not contend that she was a qualified direct lending data entry clerk at the time of her reassignment; she admitted in her deposition that her workload actually decreased for as much as a year after her reassignment; and she has not established that a funded, vacant position existed in the Financial Aid and Student Employment Office when she was temporarily reassigned to that office.
Plaintiff says that the Graduate Admissions Office was left "unattended" when she was reassigned, resulting in the office's need for outside or extra assistance. Drumgold Dep. at 249.
Plaintiff also says that Defendant retaliated against her in a number of other ways, including by assigning her to a parking lot six blocks from her office, giving her a "satisfactory" rather than an "excellent" rating on a performance evaluation, requiring her to provide written justification for taking university classes during work hours, requiring her to submit a doctor's excuse when she took sick leave, and unjustly suspending her for contacting the DOE Title IV WAN Office. None of these actions, however, is sufficient — given this record — to establish an "adverse action" for purposes of a retaliation claim. In order to make out a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal connection between the two. See Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003). An "adverse employment action" is "a significant change in employment status, such as hiring, firing, failing to promote, [or] reassignment with significantly different responsibilities causing significant change in benefits." Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761,118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998)); Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (explaining that, "in the absence of diminution of pay or benefits, [a] plaintiff must show an action with `materially adverse consequences affecting the terms, conditions, or privileges of employment'"); see also Brown v. Brody, 199 F.3d 446, 457-58 (D.C. Cir. 1999) (explaining that formal criticism, poor performance evaluations, and lateral transfers involving no diminution in pay or benefits do not ordinarily constitute adverse actions); Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004) (holding that change of shift, lengthened commute, unfair discipline, unfavorable evaluation, difficult assignments, refusal to approve annual leave request, and denial of parking permit did not constitute "adverse action"); Yarber-Butler v. Billington, 53 Fed. Appx. 120, 2002 WL 31818240 (D.C. Cir. 2002) (explaining that failure to promote is not an adverse action if there is no vacant or open position available).
Plaintiff in this case has fallen far short of casting doubt on Defendant's evidence of legitimate reasons for the actions it took. Furthermore, the evidence demonstrates that few, if any, of the actions taken by Defendant rose to the level of "adverse actions" for purposes of a retaliation claim. Plaintiff having failed to produce evidence sufficient to establish a genuine issue of material fact regarding her retaliation claim, summary judgment shall be awarded to Defendant.
B.
Plaintiff has alleged in her Fourth Amended Complaint that Defendant failed to accommodate her disability as required under the ADA. Other than her own selfserving statements, however, the only record evidence of her medical condition is a letter dated July 6, 1998, from Doctor Howard E. Wilson, in which he advised that:
Ms. Lillian Drumgold suffers with angina pectoris and experiences shortness of breath walking up the hill to her office. She should avoid activities that bring on angina to reduce the risk of a heart attack. She is requesting a parking assignment to accommodate her.
Doc. 49, Ex. 6. Defendant has established, and Plaintiff admits, that she was temporarily assigned a parking space next to her office in July, 1998. Although Defendant made the reasonable and legitimate request that Plaintiff obtain a handicap parking permit in order to continue parking in the lot next to her office, she has provided no evidence to establish that she ever did obtain such a permit, that Defendant thereafter reassigned her to a distant parking space, or that Defendant in any other manner discriminated against her on the basis of a disability. In sum, Plaintiff's evidence is woefully inadequate to establish a genuine issue of material fact regarding her disability claim.
III.
Plaintiff having failed to establish a genuine issue of material fact regarding her retaliation and disability claims, the court declines to hear her state law contract and tort claims. Accordingly it is ORDERED:
1. Defendant's motion for summary judgment is GRANTED as to Plaintiff's retaliation (Counts III, V, and VII) and disability (Counts IV and VI) claims.
2. Plaintiff's state law claims for breach of contract (Count I) and for intentional infliction of emotional distress (Count II) are DISMISSED pursuant to 28 U.S.C. § 1367(c)(3).
3. The clerk shall enter judgment accordingly.
DONE AND ORDERED.