Opinion
Civil Action No. 01-0461 (RMC).
March 24, 2005
MEMORANDUM OPINION
Deborah Maceda has sued James Billington, Librarian, Library of Congress ("the Library"), under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., asserting that the Library has discriminated against her because of her gender, created a hostile work environment because of her gender, and retaliated against her for prior protected activities. After full discovery, the Library filed the instant Motion to Dismiss or for Summary Judgment. For the reasons stated, the case will be dismissed.
BACKGROUND
Ms. Maceda is a white woman who was employed by the Library as a police detective from 1989 to 2004. In her Complaint, Ms. Maceda claimed that the Library discriminated against her on the basis of gender, retaliated against her for engaging in protected activities, and created a hostile work environment.
During the pendency of this suit, the Library terminated Ms. Maceda's employment. Plaintiff's Opposition to Defendant's Motion to Dismiss or for Summary Judgment ("Opp.") at 7.
The underlying EEO charge that led to this suit, filed in August 1999, was the fourth complaint Ms. Maceda had filed against the Library.
The Library moved for partial dismissal or summary judgment as to paragraphs 12 to 25 of the Complaint because those paragraphs had been the subject of two earlier settlement agreements. After full briefing, the Court found there was no genuine issue of material fact and that the settlement agreements barred any subsequent remedy on issues alleged in those paragraphs. See Maceda v. Billington, No. 01-0461, 2003 U.S. Dist. LEXIS 19263, at *9-10 (D.D.C. Jan. 16, 2003). The parties proceeded with discovery on the remaining complaint allegations, which claimed that: 1) the Captain of the Library Police, who is female, assaulted Ms. Maceda, Compl. ¶ 27; 2) a Lieutenant of the Library Police, who is male, "bumped" her in the hallway, Compl. ¶ 28; 3) the Library interfered with her parking privileges, Compl. ¶ 29; 4) a Sergeant, who is male, issued Ms. Maceda a counseling memorandum regarding her use of leave, Compl. ¶ 30; 5) the Library assigned her to frivolous tasks and denied her the opportunity to perform the duties of a detective, Compl. ¶¶ 31, 34-35; 6) the Library placed her on paid leave for two days and suspended her for five days, Compl. ¶¶ 32-33; 7) the Library refused to assign her overtime, Compl. ¶ 36; and 8) her activities were omitted from the daily log of police activity, Compl. ¶ 37.
At the close of discovery, the Library filed the instant motion arguing that there are no genuine issues of material fact and that the Library is entitled to judgment as a matter of law. Defendant's Motion to Dismiss or for Summary Judgment ("Motion") at 8. It argued that summary judgment was appropriate on the claims of gender discrimination and retaliation "because 1) the record indicates that the plaintiff was subject to only one (1) adverse employment action (a five-day suspension in January 1999); and 2) the record is void of any evidence which demonstrates that the defendant's justification for the five-day suspension was pretextual and that the real reason for the suspension was the plaintiff's sex. . . ." Id. at 9. The Library argued that summary judgment was warranted on Ms. Maceda's hostile-work-environment claim because she could not sufficiently demonstrate sexual harassment that affected the terms and conditions of her employment and because she could not show that the Library had notice of any claimed instances of harassment. Id.
Ms. Maceda filed an opposition that narrowed the factual bases for her suit, abandoned certain claims, and included a new allegation. She now claims only retaliation.
The Library prevented Ms. Maceda from performing her duties as a detective as early as 1999, and then terminated her in March 2004 . . . Ms. Maceda continued to be harassed by her supervisors after the 1998 settlement agreement. The harassment rose to the level of an adverse action: 1) Ms. Maceda was not allowed to perform her duties as a detective; and, 2) the Library terminated Ms. Maceda in March 2004.
Opp. at 7. Ms. Maceda has produced some record evidence to support the former allegation, but relies principally upon her simple contention that "[t]here are material facts at issue that preclude summary judgment" to argue that her termination in March 2004 was retaliatory. Id. at 7-8.
The Library filed a reply, renewing its request for summary judgment and objecting to the inclusion of the March 2004 termination as a supplemental claim that has not been pled.
LEGAL STANDARDS
A court may dismiss if it lacks the statutory or constitutional authority to hear a case. Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996). Because subject-matter jurisdiction may not be waived, a court is obliged to address it sua sponte if necessary. Doe by Fein v. District of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996); see Morris v. Washington Metro. Area Transit, 702 F.2d 1037, 1040 (D.C. Cir. 1983) (matters casting doubt on federal subject-matter jurisdiction may be considered on a court's own motion). In determining whether it has subject-matter jurisdiction, a court is not limited to the allegations contained in the complaint, Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987), and may properly consider materials outside the pleadings. Herbert v. Nat'l Acad. of Sciences., 974 F.2d 192, 197 (D.C. Cir. 1992). See also 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350 (2d ed. 1991) (affidavits and other subject matter may be used in assessing a challenge to jurisdiction). Accord Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002) (stating that "[a] court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of . . . subject-matter jurisdiction").
Summary judgment is appropriate when the record shows that no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the responsibility of demonstrating that the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). However, a party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. The nonmoving party must present specific facts that would enable a reasonable jury to find in its favor to survive a properly-supported summary judgment motion. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must view all facts and reasonable inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
ANALYSIS
It is evident that Ms. Maceda has decided to switch horses midstream. After discovery, and in response to the Library's motion, Ms. Maceda has redefined the scope of her suit. Although still recounting instances of alleged misconduct that were listed in her Complaint, her opposition simply argues that there are outstanding genuine issues of material fact regarding whether "Ms. Maceda [was] terminated in March 2004 in retaliation for her earlier EEO complaints and this pending lawsuit" and whether she was "relegated to investigating lost and stolen coffee cups, house plants, cookie tins, etc. in retaliation for her earlier EEO complaints and this pending lawsuit." Opp. at 7-8. The Court accepts that Ms. Maceda has abandoned her other claims and now chooses to proceed on these retaliation claims alone. Two critical inquiries remain: 1) whether Ms. Maceda's failure to exhaust her administrative remedies as to her March 2004 termination, or even raise it in a motion to supplement or amend the pleadings in this case, bars relief; and 2) whether her alleged relegation to trivial assignments or duties constituted an adverse employment action under Title VII.
Ms. Maceda's opposition recounts other alleged misdeeds that were initially a part of her Complaint but fails to include any record evidence as support.
Unfortunately, the second settlement also failed to put an end to the harassment Ms. Maceda was experiencing. For example, Captain Parker has repeatedly bumped and elbowed Detective Maceda in the hallways, on one occasion shoving Detective Maceda into a wall. Lieutenant Agner, an officer who was named in Ms. Maceda's original EEO complaint, also bumped Ms. Maceda in the hallway. In mid-1998, the Library again removed Ms. Maceda's parking privileges. In July 1998, her supervisor, Sergeant Rogers, gave Ms. Maceda a "Memorandum of Counseling" regarding her alleged sick leave use, even though Ms. Maceda had previously submitted a statement from her physician that she was taking sick leave due to illness.
Opp. at 4. Even if the Court were to find that this was more than mere background surplusage and that Ms. Maceda had not abandoned these factual predicates to her claims, her failure to come forward with specific facts showing that there is a genuine issue for trial to rebut the Library's well-supported motion would demand summary judgment as to those claims. See FED. R. CIV. P. 56(e) ("[A]n adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."); Greene, 164 F.3d at 675 ("Although, as a rule, statements made by the party opposing a motion for summary judgment must be accepted as true for the purpose of ruling on that motion, some statements are so conclusory as to come within an exception to that rule."); see, e.g., Davis v. Ashcroft, 355 F. Supp. 2d 330 (D.D.C. 2005) (summary judgment granted where plaintiff failed to set forth evidence sufficient to support Title VII claim; conclusory allegations not enough).
1. Retaliation Claim Based on March 2004 Termination Dismissed for Lack of Jurisdiction
The Library argues that Ms. Maceda's termination in March 2004 cannot be the basis for a retaliation claim. Reply to Plaintiff's Opposition ("Reply") at 5-7. The Court finds that this claim must be dismissed because Ms. Maceda failed to properly plead it and, even if her claim were accepted as properly pled, failed to exhaust her administrative remedies.
On or about October 2003, long after filing the instant lawsuit, Ms. Maceda sought a shift change from her supervisors. She stated to her supervisor and the Library's Health Services group that this was necessary because the medication she was taking to treat an ailment rendered her unable to function until noon every day. Reply Exh. 2 at A-2. After meeting with Ms. Maceda, the Health Services group notified the Library's Threat Assessment Committee that theywere concerned that she could be dangerous. Id. at A-3. She appeared emotionally distraught and agitated and, because she carried a weapon, "they had questions regarding whether [Ms. Maceda] posed a danger or threat to herself and co-workers." Id.
In October 2003, Ms. Maceda was informed that, pending a fitness determination, she was being placed on enforced leave. Reply Exh. 4, November 23, 2003 Letter, at 1. Although two doctors ultimately concluded that an accommodation could be made for her condition, the Library decided that such accommodation was not appropriate. Id. at A-4.
On October 15, 2003, Ms. Maceda filed an "Allegation of Discrimination" claiming that she had been discriminated against when she was ordered to undergo a fitness examination. See Reply Exh. 5, October 15, 2003 Allegation of Discrimination. In that allegation she wrote: "I believe that the Library is using this `Fitness for Duty' exam to force me to settle my court case against them to their advantage." Id. at 2.
Ms. Maceda received Equal Employment Opportunity counseling after filing this informal allegation. Reply Exh. 4, November 23, 2003 Letter, at A-5. After the final interview, she was notified on February 12, 2004 that she could file a formal complaint of discrimination. Id. She did not do so. Ms. Maceda was subsequently informed, on March 29, 2004, that she was being removed from her position due to her inability to perform the full range of duties required for Library Detectives. Reply Exh. 1, March 29, 2004 Letter, at 1. She did not file a formal complaint based on this termination. Reply Exh. 2, Affidavit of Ricardo Grijalva, at 1.
Ms. Maceda had notice and the opportunity to pursue her complaint through the administrative process but chose not to do so. Rather, "two of them I let drop after I was terminated because they are going to be included anyway . . . that would be . . . the termination process. . . ." Reply Exh. 6, August 27, 2004 Maceda Deposition Transcript, at 70. Although Ms. Maceda may believe that she can properly add a claim at the eleventh hour in opposition to a post-discovery dispositive motion, this Court does not.
There has been ample opportunity for Ms. Maceda to inform both the Court and the Library that she would be seeking to base a claim of retaliation upon these events. She was placed on enforced leave in October 2003, and terminated in March 2004. The instant motion was not filed until October 2004, a year after she was placed on enforced leave and five months after she was terminated. During the intervening period, it would have been appropriate to seek to supplement her Complaint to set "forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." FED. R. CIV. P. 15(d). Ms. Maceda chose not to do so. On these facts alone, dismissal of this claim would be appropriate.
Dismissal is appropriate for a second and equally-persuasive reason. It is well-settled that federal employees must, absent equitable considerations, exhaust their administrative remedies prior to bringing suit under Title VII. Bayer v. Dept. of Treasury, 956 F.2d 330, 332 (D.C. Cir. 1992) ("Prior to instituting a court action under Title VII, a plaintiff alleging discrimination in federal employment must proceed before the agency charged with discrimination."); Williamson v. Shalala, 992 F. Supp. 454, 457 (D.D.C. 1998) ("A plaintiff who wishes to institute a civil action . . . under Title VII . . . must first exhaust administrative remedies."). Failure to do so may bar a plaintiff from litigating her claims in court. See Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985) (failure to comply with requirements will ordinarily prevent a remedy in court). The Library has shown by affidavit and other evidence that Ms. Maceda has not exhausted her administrative remedies. See Reply Exh. 2, Affidavit of Ricardo Grijalva, at 1-2 (no formal complaints filed as of November 23, 2004); Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (exhaustion is an affirmative defense).
Under certain circumstances, courts have determined that a plaintiff is not required to exhaust administrative remedies with respect to claims of retaliation. See Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981) (requiring a prior EEO complaint would erect a needless procedural barrier). Nonetheless, the "procedural requirements governing plaintiff's right to bring a Title VII claim in court are not unimportant." Velikonja v. Mueller, 315 F. Supp. 2d 66, 71 (D.D.C. 2004). Accordingly, the Supreme Court has indicated that the Title VII exhaustion requirement applies to discrete discriminatory acts of retaliation, even when they are related to acts alleged in timely filed charges. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
"The mere allegation of retaliation is not a panacea, allowing plaintiffs to circumvent the statutory framework of Title VII, which requires diligent prosecution of administrative claims before suit." Jeffers v. Chao, No. 03-1762 (RMC), slip op. at 12 (D.D.C. Sept. 21, 2004). Courts should craft exceptions where consistent with the reasons for requiring exhaustion and consistent with the overall policy objectives of Title VII. Id.; see Brown, 777 F.2d at 14 ("Exhaustion is required in order to give federal agencies an opportunity to handle matters internally whenever possible to ensure that the federal courts are burdened only when reasonably necessary."). Here, equity does not demand that the Court now permit Plaintiff to simply allege retaliation in response to Defendant's dispositive motion based upon a discrete event of which she has long been aware. This is particularly true where a plaintiff has failed to append a single piece of evidence to support the allegation that the termination occurred, let alone that it was tainted by retaliatory motive. Accordingly, this claim will be dismissed for failure to exhaust administrative remedies. 2. Summary Judgment for Defendant Regarding Claim of Retaliation for Work Assignments
Ms. Maceda's only remaining claim is that the Library relegated her to trivial assignments and duties in retaliation for her protected Equal Employment Opportunity activities. The Library does not seriously contest that Ms. Maceda engaged in statutorily-protected activities. Instead, it disputes that she was assigned only to frivolous matters and argues that, in any event, the mere fact that she was relegated to investigating minor matters does not compel a finding that she suffered an adverse employment action. The Court agrees and will grant summary judgment in the Library's favor.
To survive a motion for summary judgment in Title VII cases, a plaintiff must demonstrate retaliation by a preponderance of the evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13 (1973) (applicable proofs vary depending upon the facts). This requires first establishing a prima facie case that gives rise to an inference of retaliation. Tex. Dep't of Community. Affairs v. Burdine, 450 U.S. 248, 252-54 (1981). To make out a prima facie case of retaliation, Ms. Maceda must show that: 1) she was engaged in a statutorily-protected activity; 2) she suffered an adverse employment action; and 3) there is a causal connection between the two. Stewards v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002); Morgan v. Fed. Home Loan Mortgage Corp. 328 F.3d 647, 651 (D.C. Cir. 2003).
If a prima facie case is made, the burden shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See McDonnell Douglas, 411 U.S. at 802. If the agency articulates a legitimate reason, the inference of discrimination is removed and the plaintiff must "[p]rove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for [retaliation]." Burdine, 450 U.S. at 253.
Ms. Maceda argues that she "was relegated to investigating trivial incidents, such as, complaints of lost or stolen house plants, cookie tins, coffee cups, loose change etc." Opp. at 2. Her citations to record evidence to support this proposition are meager. See Opp. Exh. 2, November 5, 2003 Maceda Deposition Transcript, at 92-93, 169-73; c.f. Opp. Exh. 4, June 15, 1999 Allegation of Discrimination. Further, the Library has come forward with record evidence that she did more than investigate trivial incidents. Ms. Maceda worked on a check fraud case for the Library until it was turned over to police from the District of Columbia and Prince George's County. Motion Exh. 2, August 27, 2004 Maceda Deposition Transcript, at 15-17. She also "had many theft cases of items going out that seemed too large or too ungainly to be easily hidden underneath something. . . ." Id. at 15-17. Importantly, the record does not indicate that Ms. Maceda's combination of trivial and more-important matters was in any way different from the workload of fellow officers or detectives. On the facts presented, it is difficult to find any disparate treatment at all, let alone treatment that might rise to the level of an adverse employment action.
In fact, the record indicates that Ms. Maceda was not aware of the types of assignments received by certain other Detectives at the Library. See Motion Exh. 3, September 1, 2004 Maceda Deposition Transcript, at 19.
Even accepting that Ms. Maceda may have received unwanted and less-favorable assignments, this fact alone would not constitute an adverse employment decision as "mere idiosyncracies of personal preference are not sufficient to state an injury." Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). Subjective injuries, such as dissatisfaction with reassignment or unhappiness over assigned duties, are not adverse actions. Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002). Rather, a change in assignments or duties must normally be accompanied by a decrease in salary or other tangible benefit to be actionable under Title VII. Lester v. Natsios, 290 F. Supp. 2d 11, 28 (D.D.C. 2003) (citing Mungin v. Katten Muchin Zavis, 116 F.3d 1549, 1556-57 (D.C. Cir. 1997)); see Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) ("Not everything that makes an employee unhappy is an actionable adverse action.").
There is no evidence before the Court that the alleged diminution in job responsibility was accompanied by a decrease in tangible benefit. Absent such evidence, the Court finds that Ms. Maceda has failed to present an actionable adverse employment action. Consequently, she has not made out her prima facie case and judgment must be entered in the Library's favor.
CONCLUSION
Plaintiff's retaliation claim based on the March 2004 termination is DISMISSED for failure to exhaust administrative remedies. The motion for summary judgment will be GRANTED and judgment entered for the Library on Plaintiff's retaliation claim based on her alleged assignment to trivial matters. All other claims are deemed abandoned and summary judgment will be GRANTED with judgment entered for the Library. This case is DISMISSED.
SO ORDERED.