Opinion
Civil Action No. 02-1092 (RMC).
April 27, 2005
MEMORANDUM OPINION
By Memorandum Opinion and Order dated July 30, 2003, this Court refused to dismiss Plaintiff Gale A. Smith's charge that a pattern of assigning her to administrative instead of professional work, because of her race, could constitute an adverse action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The Court also found that Ms. Smith's complaint concerning her 2000 performance appraisal was timely. Now that discovery has concluded, Defendant John W. Snow, Secretary of the Treasury, who is sued in his official capacity, moves to dismiss or, in the alternative, for summary judgment. The Court finds that the undisputed facts demonstrate that Ms. Smith has not been the victim of an adverse action, which is a necessary predicate to maintaining a Title VII case. Accordingly, summary judgment will be awarded to Mr. Snow and Ms. Smith's complaint will be dismissed.
I. BACKGROUND
Gale Smith, an African-American woman, is a GS-14 Program Analyst in the Research Division of the Internal Revenue Service ("IRS"). Starting in 1998, Ms. Smith worked in the Earned Income Tax Credit ("EITC") group under Marguerite Kinney, a Caucasian woman, who was chief of the group. Ms. Smith claims that, from the beginning, Ms. Kinney assigned her "duties which were primarily administrative in nature" instead of tasks "involving coordinating and managing research projects," which were assigned to the Caucasian program analysts. Compl. ¶¶ 18, 25.
Ms. Smith contacted an Equal Employment Opportunity ("EEO") counselor on July 12, 2000, and filed her first formal administrative complaint on September 2, 2000. This EEO complaint alleged that Ms. Smith had not been assigned work commensurate with her position as a GS-14 Program Analyst. The period covered by this EEO complaint was 45 days prior to the time that Ms. Smith contacted the EEO counselor, i.e., beginning on May 26, 2000. See 29 C.F.R. § 1614.105(a)(1) (federal employee must contact EEO counselor within 45 days of alleged discriminatory or retaliatory act). At the end of September 2000, Ms. Smith received an overall rating of "Met" on her annual performance evaluation. After learning of this rating in early December 2000, she again contacted an EEO counselor and filed a second EEO complaint on January 20, 2001. As relevant, this second EEO complaint alleged that she had received a lower rating on her September 2000 performance evaluation in retaliation for her first EEO complaint.
Other matters raised in this EEO complaint were dismissed in the Court's earlier memorandum opinion and order. See Smith v. O'Neill, No. 02-1092 (RMC), Memorandum Opinion and Order, July 30, 2003 ("Mem. Op.").
II. LEGAL STANDARDS
A. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This remedy is not a "disfavored legal shortcut[;]" rather, it is a reasoned and careful way to resolve cases fairly and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). 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. v. Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). To be "material" and "genuine," a factual dispute must be capable of affecting the substantive outcome of the case. Anderson, 477 U.S. at 247-48; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
In deciding a motion for summary judgment, the Court's threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. Once the moving party shows that there is a lack of evidence to support the opponent's case, the burden shifts to the non-movant to show, through affidavits or otherwise, the existence of a material issue for trial. Bias v. Advantage Intern, Inc., 905 F.2d 1558, 1561 (D.C. Cir. 1990) ; see Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (citing FED. R. CIV. P. 56 (c)). Conclusory allegations by the non-movant are insufficient to withstand summary judgment. Exxon Corp. v. F.T.C., 663 F.2d 120, 127 (D.C. Cir. 1980) (citing Marks v. United Stated Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978)).
B. Title VII
In employment discrimination cases under Title VII — in the absence of direct evidence of discrimination — courts apply the burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell-Douglas framework, the plaintiff must first establish by a preponderance of the evidence a prima facie case of discrimination or retaliation.
[T]o state a prima facie claim of disparate treatment discrimination, the plaintiff must establish that (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. For retaliation claims . . . the prima facie requirements are slightly different. The plaintiff must show `1) that she engaged in a statutorily protected activity; 2) that the employer took an adverse personnel action; and 3) that a causal connection existed between the two.' A common element required for discrimination and retaliation claims against federal employers, and private employers, is thus some form of legally cognizable adverse action by the employer.Brown v. Brody, 199 F.3d 446, 452-53 (D.C. Cir. 1999) (citations omitted). Should the plaintiff meet this requirement, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Ultimately, the plaintiff must prove by a preponderance of the evidence that the employer's stated reason was merely pretextual. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993).
III. ANALYSIS
Ms. Smith contends that she was "essentially relegated to performing administrative work, such as taking notes, organizing paper work, and Xeroxing, and her tasks were not related to technical, analytical or management aspects of a project." Mem. Op. at 10 (citing Plaintiff's Opposition to Defendant's Motion to Dismiss ("Pl.'s Opp.")). From this, she argues "that her career has been stalled, and her professional reputation tarnished." Id. In its first opinion, this Court agreed that, if proved, these allegations might make out a prima facie case of an adverse action due to race. See id. The evidence set forth in the post-discovery record shows a dispute over whether Ms. Smith was the victim of disparate treatment in work assignments and, if this were the issue, whether she would need a trial for its resolution. However, disparate treatment alone does not constitute an adverse action and Ms. Smith presents no evidence from which one could find that her work assignments actually had "materially adverse consequences affecting the terms, conditions, or privileges of her employment . . . such that a reasonable trier of fact could conclude that [she] has suffered objectively tangible harm." Brown, 199 F.3d at 457.
Before beginning its discussion, the Court must address the scope of Ms. Smith's charge. Ms. Smith alleges that she was subjected to discriminatory treatment with respect to work assignments beginning in 1998, when she first began working at the EITC Group under Ms. Kinney. However, as noted above, Ms. Smith did not file a formal administrative complaint until September 2, 2000. Thus, only Ms. Smith's claims of disparate treatment that allegedly occurred after May 26, 2000 are at issue here. See 29 C.F.R. § 1614.105(a)(1). Because she failed to timely file an administrative complaint, Ms. Smith's claims concerning the work assignments she received in 1998 and 1999 will not be considered.
For purposes of its analysis, the Court assumes that Ms. Smith could demonstrate that, during the relevant time period, she received more assignments of an administrative nature than her EITC colleagues. Defendant does not actually dispute this fact, but only points out that all of the Program Analysts had some administrative-type assignments. What is missing is any evidence that these administrative assignments had a material impact on Ms. Smith's job. Even assuming that Ms. Smith received an unbalanced load of administrative duties, she has not presented "a scintilla of evidence suggesting these [assignments] had a material adverse effect upon the terms or conditions of her employment." Taylor v. Small, 350 F.3d 1286, 1296 (D.C. Cir. 2003). Ms. Smith does not claim any specific instance in which her grade, pay or benefits were reduced, or any failure to promote or transfer. See Mem. Op. at 10. With respect to her reputation, Ms. Smith conceded in her deposition that no one thought any less of her by virtue of the kinds of assignments she received. Smith Dep. at 196. While she believes that Ms. Kinney assigned her a disproportionate number of administrative assignments in comparison to her Caucasian co-workers, she does acknowledge that she held other positions of responsibility and that her assignments did not prevent her from receiving any promotions because she did not apply for any other jobs. Id. at 25, 208; Def.'s Mem., Ex. 1 at 154-57. Ms. Smith points to no impact arising from her work assignments except her 2000 performance rating of "Met," a rating lower than in previous years, but one that nonetheless means that she was found to have met the responsibilities and requirements of her job with a "solid, dependable performance." Def.'s Mem., Ex. 1 at 152. This constitutes a fully successful performance appraisal. Id. In this Circuit, the law is clear that a performance appraisal of satisfactory, without more, fails to state an adverse personnel action under Title VII. See Brown, 199 F.3d at 452. The Court of Appeals has further instructed:
The Court has dismissed Ms. Smith's hostile workplace claim. See Mem. Op. at 13.
Performance evaluations are likely to be `[i]nterlocutory or intermediate decisions having no immediate effect upon employment.' The reason of any evaluation is often speculative, making it difficult to remedy. For example, a single poor evaluation may drastically limit an employee's chances for advancement, or it may be outweighed by later evaluations and be of no real consequence. This reasoning is reflected in Brown where the Court suggested that performance evaluations should not be considered adverse actions if they did not `affect the [employee's] grade or salary,' and analogized performance evaluations to lateral transfers, which are not actionable unless they `affect the terms, conditions, or privileges of [an employee's] employment or her future employment opportunities such that a reasonable trier of fact could conclude that plaintiff has suffered objectively tangible harm.'Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) (citations omitted). In addition, while Ms. Smith argues that receiving and performing a plethora of administrative work assignments resulted in the 2000 performance appraisal of "Met," she offers no evidence that causally relates the two phenomena. As a result, the 2000 performance appraisal is not actionable and presenting it as the result of receiving inappropriate work assignments does not strengthen Ms. Smith's case.
At base, this is a lawsuit about Ms. Kinney's work assignment practices and the consequences of those assignments to Ms. Smith. "[M]inor changes in work-related duties or opportunities do not constitute actionable injury unless they are accompanied by some other adverse change in the terms, conditions or privileges of employment." Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002). "Mere inconveniences and alteration of job responsibilities will not rise to the level of adverse action." Id. (citation omitted). "[C]hanges in responsibilit[ies] are not adverse employment actions, but rather constitute only the `ordinary tribulations of the workplace' which employees should expect." Lester v. Natsiois, 290 F. Supp. 2d 11, 29 (D.D.C. 2003) (citations omitted). Ms. Smith offers nothing beyond her 2000 performance appraisal from which the Court — or a jury — could find any material consequences of Ms. Kinney's assignments on Ms. Smith. As suggested above, however, she does not establish a causal connection between the two, even if a fully successful performance rating could be deemed an adverse action. Thus, assuming that Ms. Smith's evidence is true and that after May 26, 2000, Ms. Kinney repeatedly assigned more administrative tasks to her than to her colleagues, Ms. Smith has not shown any material impact from receiving those assignments. Thus, having failed to demonstrate an adverse action, Ms. Smith has failed to establish a prima facie case.
Accordingly, Defendant's motion for summary judgment will be granted and Plaintiff's complaint will be dismissed. A memorializing order accompanies this memorandum opinion.