Miles v. Clinton

Citations: 961 F. Supp. 2d 272; 2013 WL 4454237; 2013 U.S. Dist. LEXIS 118605Docket: Civil Action No. 2010-2092

Court: District Court, District of Columbia; August 21, 2013; Federal District Court

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Shirley M. Miles, an African-American female, formerly led the Internal Review and Operations Research (IROR) within the Department of State’s Bureau of Overseas Buildings Operations (OBO) and is suing John F. Kerry, Secretary of State, for race and sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The case, identified as Civil Action No. 10-2092, involves a motion for summary judgment filed by the defendant. The court's decision grants the motion in part and denies it in part after reviewing various documents, including the defendant's and plaintiff's submissions, declarations, and deposition transcripts.

OBO, responsible for U.S. diplomatic facilities overseas, hired Miles in September 2002 as a nonsupervisory management analyst. In January 2003, she was appointed by OBO Director General Charles Williams to lead IROR, which was established to conduct independent internal reviews. Initially the sole employee of IROR, Miles had the authority to hire staff. Throughout her tenure, her job title changed several times—from 'program analyst' upon moving to IROR to 'supervisory program analyst' in July 2006—yet all positions were classified as GS-14 without promotion potential.

In January 2008, Richard Shinnick succeeded Williams as the OBO Director, coinciding with the State OIG's first inspection of OBO in 15 years. The OIG's August 2008 report identified multiple issues with OBO's complex organizational structure, particularly the reporting lines of the MSD and IRM divisions directly to the OBO Director rather than an executive director. It criticized Williams’s management style, the secretive operations of the IROR, and inaccuracies in its outputs. Recommendations included developing a mission statement for IROR and providing necessary training for its personnel. Although the plaintiff contested the accuracy of the OIG's findings, they acknowledged the report's content.

Following the report, Shinnick implemented changes affecting IROR and the plaintiff, deciding that IROR would no longer report directly to him. He consulted Jorg Hochuli, head of the Resource Management Division, who recommended integrating IROR into RM due to its historical oversight of similar functions. Shinnick accepted this recommendation, realigning IROR to report to RM’s Deputy Managing Director, Ramsay Stallman. Additionally, he reorganized the MSD and IRM divisions under a newly established Office of the Executive Director, while also reducing the frequency and size of meetings, discontinuing certain regular meetings previously held by the former OBO Director.

In January 2009, OBO submitted a request to the State Department’s Bureau of Human Resources (State HR) for approval of structural changes that had taken effect in August 2008. OBO proposed reclassifying IROR as a 'division' reporting to the Executive Director, despite IROR not meeting the criteria for this classification. OBO sought a waiver, arguing that IROR had functioned as a separate group for eight years, conducting independent reviews and interacting with senior management, which warranted division status.

On February 11, 2009, State HR determined that IROR should be classified as a staff entity rather than a division, recommending its placement with the RM Office of Policy and Program Analysis (RM/P) instead of the Executive Director due to potential conflicts of interest. Despite differing opinions from Shinnick and Hochuli regarding the conflict of interest, Hochuli decided to move IROR to RM/P effective March 2, 2009, where it would report to RM/P’s Director, Isaias 'CY' Alba. 

On February 23, 2009, Hochuli communicated this decision to relevant parties, citing State HR's recommendation and logistical reasons for the move. In response, the plaintiff expressed concerns about working under Alba due to ongoing upheaval within her staff, worries about Alba's management of women, and the implications for her promotion. She argued against the placement of IROR under RM and requested it be reinstated under the Director of OBO.

The realignment of the IR department to RM/P was effective March 2, 2009. On March 5, 2009, Hochuli communicated to the plaintiff that the realignment was for legitimate business reasons and emphasized the importance of compliance, warning that failure to comply could lead to disciplinary action. Concurrently, the plaintiff was pursuing a promotion to GS-15, which she believed had been promised by former OBO Director Williams. She was exploring two routes for this promotion: proposing a reorganization of IROR to create a GS-15 position, which was finalized and submitted for HR review on October 28, 2008, and requesting a desk audit to assess her current duties for possible reclassification to GS-15. 

The desk audit request was sent to State HR on February 5, 2009, but did not begin until after IROR’s relocation. The audit was completed in late summer 2009 and did not support the GS-15 reclassification. Following the move to RM/P, the plaintiff’s job description was revised. Alba submitted a new position description on July 30, 2009, which was approved by State HR on November 5, 2009. The plaintiff learned of these changes on December 2, 2009, through a Notification of Personnel Action email. The new position description retained her GS-14 grade level but altered several aspects: it specified that IROR’s reviews were assigned by the RM/P Office Director, stated her position was accountable to a GS-15, and clarified that Alba had authority over staffing and resource allocation decisions.

The position description change for the plaintiff became effective on December 6, 2009. The plaintiff felt that actions taken by Alba, such as assigning work directly to subordinate Ken Feng instead of allowing the plaintiff to manage assignments, were unjust. On October 21, 2009, Alba informed the plaintiff that her supervisory responsibilities over Feng were revoked due to Feng's allegations of bullying and retaliation by the plaintiff, which he claimed had severely damaged their working relationship. Despite being rated as "Fully Satisfactory" in her 2009 performance review, the plaintiff had previously received "Outstanding" ratings, including one from Shinnick during an eight-month supervision period in 2008. When the plaintiff questioned Alba about her performance review process, she noted the absence of work elements and mid-year evaluations.

Alba restricted the plaintiff's communications with certain offices, claiming she needed specific authorization, despite the plaintiff's belief that these communications were part of her role. Following the transition to RM/P, IROR's workload decreased significantly, leading to insufficient work for the plaintiff and her staff. Both parties contested the extent of performance reviews or audits conducted pre- and post-transition, but agreed on a notable decline in overall numbers. The plaintiff began raising concerns about the lack of work shortly after the move and expressed dissatisfaction to Alba, Hochuli, and new OBO Director Adam Namm, while repeatedly seeking additional work and project suggestions without success. Despite requests to fill vacancies within IROR, permission was denied, and by 2011, only two employees remained under the plaintiff's supervision against a staff ceiling of eight.

In fall 2010, the State OIG initiated a "Compliance Follow-up Review" of OBO, culminating in a May 2011 report stating that OBO was largely compliant with previous recommendations and acknowledging improvements in interactions with other agencies due to leadership changes. The report highlighted insufficient and uneven workload in IR, indicating that staff were not always fully occupied and suggesting a diminished need for internal IR reviews based on various assessments, including prior GAO reviews and the OIG's own inspection.

OBO informed the OIG review team that staffing shortages in the Office of Policy and Program Analysis (RM/P) occasionally led to IR staff being assigned non-internal review work to better balance the workload. The OIG recommended abolishing the separate internal review function and redistributing staff among OBO offices to achieve a more equitable workload distribution. In July 2011, OBO agreed with the OIG's observation that the need for internal reviews was limited and concurred with the recommendation to abolish the Internal Review Office (IROR). In November 2011, the plaintiff was reassigned to a GS-14 position as a senior management and program analyst within RM/P, and IROR was officially abolished in January 2012.

Procedurally, the plaintiff initiated EEO counseling on February 25, 2009, following an incident on February 24, 2009, where she felt 'publicly bullied' by Shinnick. She alleged harassment and discrimination based on her gender in a predominantly male environment and expressed discomfort with her all-male chain of command, believing they supported Shinnick's actions. Additionally, the plaintiff claimed she had been promised a promotion to GS-15, which her chain of command was not honoring. The EEO counselor attempted to informally resolve the complaint but concluded that resolution was not possible, leading to a final report and notice to the plaintiff regarding her right to file a formal discrimination complaint. The report noted allegations of hostile work environment harassment and suggested that a memo from Hochuli was retaliatory due to her pending discrimination complaint.

The notice instructed the plaintiff to restrict her formal Equal Employment Opportunity (EEO) complaint to matters previously discussed or closely related issues. On March 25, 2009, she filed a formal discrimination complaint with the State Department’s Office of Civil Rights, claiming a hostile work environment and harassment due to her gender and race. She expressed discomfort with her all-male chain of command and alleged bias against women, stating her demotion and humiliation as the only black female in senior management. She requested immediate removal of her department from her supervisor's purview. 

On April 10, 2009, the Office of Civil Rights identified specific allegations for investigation, including race and sex discrimination related to her duties, promotion denial, and a hostile work environment. In October 2009, the plaintiff requested an EEOC hearing on her complaint. Between November 2009 and April 2010, she sought to amend her complaint to include new claims of discrimination and retaliation, citing various issues such as removal of supervisory responsibilities, lack of assignments, absence of a performance review, and restrictions on staff recruitment.

On July 19, 2011, upon learning of the decision to abolish her work unit, she initiated further EEO counseling, alleging this decision was another act of discrimination or retaliation. She claimed prior discriminatory behaviors included management's prohibition on conducting reviews and failure to provide adequate work. As a remedy, she sought to retain and fully staff her department, proposing it report directly to senior management instead of the current chain. The EEO counselor contacted relevant management figures for responses regarding the complaints.

Plaintiff filed a complaint in federal court on December 9, 2010, alleging race discrimination, sex discrimination, race plus sex discrimination, and retaliation, based on actions occurring between August 2008 and December 2010. The complaint has been amended twice, with the defendant's consent, to include subsequent actions and to withdraw a claim regarding a denied promotion to a GS-15 position. The amended complaints assert that plaintiff faced discrimination in various actions, including reassignment to a new position, increased supervision, removal of job duties, reclassification, lack of adequate work, and restrictions on her participation in management activities, ultimately leading to her reassignment to a non-supervisory role. Retaliation claims are based on similar actions taken against her after engaging in protected activities. Following discovery, the defendant filed a motion for summary judgment, which can be granted if there are no genuine disputes over material facts that would affect the outcome of the case. The court must evaluate the evidence in favor of the non-moving party and can only grant summary judgment if no reasonable jury could find in favor of the non-moving party. The contested issues for summary judgment include claims related to the realignment and abolishment of the IROR, as well as a retaliatory hostile work environment claim.

Defendant seeks summary judgment on plaintiff's discrimination claims for three reasons: (1) plaintiff did not exhaust her administrative remedies regarding the realignment of IROR into RM/P, (2) this realignment is not considered an 'adverse employment action,' and (3) the actions taken, including the abolishment of IROR and plaintiff's reassignment to a non-supervisory position, were based on legitimate, non-discriminatory reasons. Regarding retaliation claims, defendant argues that the abolishment and reassignment were legitimate and non-retaliatory, and that plaintiff's claim of a retaliatory hostile work environment is untimely and lacks merit.

The document outlines the requirement for administrative exhaustion under Title VII, indicating that federal employees must seek informal pre-complaint counseling within 45 days of the discriminatory act. Although plaintiff sought informal counseling shortly after learning of the realignment, defendant contends she did not specifically identify it as discriminatory during that counseling, nor did she mention race discrimination. The Court, however, finds that plaintiff adequately raised her discrimination claims during informal counseling, as evidenced by the EEO counselor's report, which acknowledged her concerns related to her responsibilities and respect from the chain of command.

In evaluating whether the realignment constituted an adverse employment action, the Court concludes it did not significantly change plaintiff’s employment status or responsibilities, noting her salary and grade remained unchanged and that she continued performing her job. Thus, the Court finds that plaintiff exhausted her administrative remedies and that the realignment does not qualify as an adverse employment action under Title VII.

The Court determined that the realignment of IROR into RM/P does not constitute an adverse employment action, leading to the granting of summary judgment for the defendant on this claim. Regarding the plaintiff's retaliation claim under Title VII, the Court found that the plaintiff failed to establish a prima facie case, as she could not demonstrate a materially adverse action or a sufficient causal connection between her complaints of discrimination and the actions taken against her. The timing of these actions did not indicate retaliatory intent. The Court also dismissed the hostile work environment claim, noting that the plaintiff did not provide adequate evidence of discriminatory conduct that was severe or pervasive enough to alter her working conditions. Consequently, summary judgment was granted to the defendant on this claim as well. 

Additionally, while the defendant argued that the plaintiff did not seek informal counseling for certain claims, the Court acknowledged that these claims were "like or related to" those in her pending EEO complaint, and thus deemed exhausted. However, the defendant was still entitled to summary judgment on other grounds related to those claims. The Court referenced the purpose of informal EEO counseling, emphasizing that it aims to facilitate an informal resolution before an administrative charge is filed.

The purpose of counseling and mediation in employment discrimination cases is to provide employees and employers an opportunity to informally resolve claims, rather than to create a record for judicial review. The informal counseling process allows for the agency to gather sufficient information to investigate the claim, which was accomplished in this case. The plaintiff initiated informal counseling on February 25, 2009, without legal representation, relying on the EEO counselor for accurate reporting and investigation. Although the plaintiff did not explicitly identify the reorganization decision as discriminatory, it was clearly part of her concerns raised during counseling, where she sought a promotion to GS-15 and requested to halt her reassignment. The EEO counselor noted the agency's recent reorganization and included an email from the plaintiff expressing her frustrations and promotion expectations. The plaintiff's failure to specify "race" as a discrimination basis did not undermine the informal counseling process, especially in the absence of direct evidence of such discrimination. There is no legal requirement for employees to distinguish between different types of discrimination during informal counseling, as this standard applies more rigorously to formal complaints. The focus of informal counseling is to allow employees to express concerns in a way that promotes resolution, and the plaintiff met this standard effectively.

Plaintiff has exhausted her administrative remedies regarding her race and sex discrimination claims linked to the reorganization of IROR into RM/P. The defendant seeks summary judgment on these discrimination claims, arguing that the reorganization did not constitute an "adverse employment action" and that the actions taken were for legitimate, non-discriminatory reasons. 

To establish a viable claim of employment discrimination under Title VII, a plaintiff must demonstrate suffering an adverse employment action, which is defined as a significant change in employment status, such as hiring, firing, failing to promote, or reassignment with significantly different responsibilities. Subjective grievances, like dissatisfaction or public humiliation, do not qualify as adverse actions.

The defendant contends that the realignment of IROR into RM/P was not an adverse employment action since the plaintiff's position remained largely unchanged, with no alterations to salary or benefits, and she retained supervisory responsibilities over the IROR staff. While the plaintiff agrees that a change in reporting structure alone does not constitute an adverse action, she disputes the defendant's assessment of her job duties being unaffected by the reorganization. Additionally, the defendant argues that other actions cited by the plaintiff, such as mischaracterization in performance appraisals and direct assignments to her subordinate, also do not qualify as adverse actions. The plaintiff did not contest these specific claims, which the court interprets as a concession that supports the defendant's position for summary judgment on the discrimination claims.

Whether a reassignment of duties qualifies as an adverse action under Title VII is generally determined by a jury. The Court assesses if a reasonable jury could find that the plaintiff's reassignment to RM/P involved significantly different responsibilities, despite no immediate change in the job description. Evidence suggests that the move resulted in a substantial reduction of job duties, including increased supervision and the removal of supervisory responsibilities. The plaintiff's position was reclassified to "staff," and she was not provided adequate work or allowed to fill vacancies. Furthermore, the plaintiff's position description was revised without her knowledge, supporting her claim of diminished responsibilities.

The Court concludes that the question of whether the reassignment constituted an adverse employment action cannot be settled through summary judgment. The plaintiff does not argue that the move to RM itself was an adverse employment action, and any such claim was not exhausted.

In a Title VII disparate-treatment case, if an employer asserts a legitimate, non-discriminatory reason for an adverse action, the central question is whether the employee has provided sufficient evidence for a reasonable jury to find that the employer's stated reason was not the true reason and that intentional discrimination occurred. The court evaluates this by considering the plaintiff's prima facie case, evidence challenging the employer's explanation, and any additional evidence of discrimination. The defendant has presented legitimate reasons for the realignment of IROR and the reassignment of the plaintiff to a non-supervisory role, which the plaintiff contends are pretextual. The defendant also offers legitimate reasons for other actions that the plaintiff does not challenge.

Defendant is entitled to summary judgment regarding plaintiff’s claims related to the reassignment of the administrative assistant and work assignments to Ken Feng. The central issue is whether the plaintiff has presented sufficient evidence for a jury to question the credibility of the defendant's explanations and infer a potential discriminatory motive. A plaintiff may demonstrate that an employer's stated reasons for an employment action are false through various means, such as showing favorable treatment of other employees in similar situations, evidence of fabrications or lies by the employer regarding the facts of the employment decision, inconsistencies in the employer’s stated reasons, failure to adhere to established procedures, negative treatment of minority employees, or discriminatory remarks made by decision-makers.

The employer may defend its actions by providing a legitimate, non-discriminatory reason for its decisions, such as a reasonable belief in the validity of the reasons given, even if those reasons later prove to be incorrect. Specifically, the defendant contends that the decision to realign IROR into RM/P was primarily based on a review by State HR, which aimed to avoid conflicts of interest within the organization. Additional reasons provided by Director Hochuli included the traditional role of RM/P in conducting reviews and concerns about insufficient supervision of IROR.

Hochuli determined that the Internal Review and Oversight (IROR) unit should be incorporated into the Risk Management/Prevention (RM/P) department rather than report to him directly, citing RM/P's historical work in similar areas and the desire for daily supervision of IROR, which he could not personally provide due to his responsibilities. The plaintiff argues that the reasons given for this realignment are pretextual and false, pointing to evidence that contradicts claims of a conflict of interest and the similarity of work performed by IROR and RM/P. Specifically, Shinnick testified that he did not believe there was a conflict with IROR reporting to the Executive Director, Hochuli acknowledged potential conflicts regardless of placement but suggested they could be managed, and Alba confirmed that RM/P was responsible for drafting policies reviewed by IROR. The plaintiff emphasizes that RM/P's work was not comparable to IROR’s in-depth reviews, as evidenced by Hochuli and Alba's inability to identify significant reviews conducted by RM/P.

Although some evidence supports the defendant's perspective, including Hochuli's remarks about the appearance of conflict if IROR reported to the Executive Director, the court found that the evidence, viewed favorably towards the plaintiff, was sufficient to warrant a jury's determination on whether the reasons provided for the reorganization were genuine or discriminatory. The decision to abolish IROR and reassign the plaintiff was justified by the defendant's claim that the OIG recommended the change due to IROR's insufficient and uneven workload, which contributed to inefficiencies in staffing compared to other RM/P staff.

The defendant argues that the decrease in the need for internal reviews by IROR is due to an increase in external reviews and the workload of RM/P's non-IROR employees, asserting that adding more internal reviews would burden OBO staff. The plaintiff counters that these reasons are pretextual, claiming that IROR lacked work because decision-makers, specifically Alba and Hochuli, denied requests for work, contradicting the assertion of RM/P being overworked. Additionally, the plaintiff argues that the Office of Inspector General (OIG) findings were not truly independent but based on information provided by these same decision-makers. Consequently, the court cannot grant summary judgment on the plaintiff's discrimination claims linked to the abolition of IROR and her reassignment to a non-supervisory role.

In regard to the plaintiff's retaliation claims, she alleges that the defendant retaliated against her following her initial complaint by subjecting her to various retaliatory actions and a hostile work environment. The defendant seeks summary judgment, contending that the plaintiff cannot establish a prima facie case of retaliation and that the actions taken were for legitimate reasons. Under Title VII, retaliation is prohibited against employees who engage in protected activities, and to prove retaliation, a plaintiff must demonstrate that materially adverse actions were taken due to their participation in such activities. The defendant maintains that once a legitimate explanation is provided for the adverse actions, the burden shifts to the plaintiff to show that these justifications are pretextual, which is the core issue for the court in deciding on summary judgment.

Plaintiff's discrimination and retaliation claims related to the abolishment of the IROR are distinct but share the same basis for proving pretext. The defendant's motion for summary judgment fails because there is enough evidence to support the plaintiff’s discrimination claim, which similarly applies to the retaliation claim. Thus, the defendant is not entitled to summary judgment on the retaliation claim.

In her opposition to summary judgment, the plaintiff asserts she experienced a retaliatory hostile work environment characterized by several actions: (1) reassignment to a GS-14 position with reduced supervisory duties; (2) lack of new work for over two years; (3) undermining of her authority by a colleague; (4) receiving lower performance evaluations than previously; and (5) the abolition of the IROR, stripping her of supervisory responsibilities. 

The defendant contends that this claim was raised too late and should not be considered at the summary judgment stage. They also argue that even if permitted, the claim would fail as a matter of law. The court agrees with the defendant, noting that to establish a retaliatory hostile work environment, the plaintiff must demonstrate severe or pervasive retaliatory actions that alter the terms of employment. The court finds that the plaintiff's complaint does not assert a claim for a retaliatory hostile work environment; it only alleges a single retaliation claim based on materially adverse actions without mentioning a hostile work environment.

The complaint fails to allege that the workplace was characterized by severe or pervasive retaliatory intimidation, ridicule, or insult sufficient to alter the victim's employment conditions and create an abusive environment. The plaintiff did not plead a retaliatory hostile work environment claim in her complaint, even after two amendments, and cannot introduce it in response to a motion for summary judgment, as established in Taylor v. Mills. Even if allowed, the defendant would still be entitled to summary judgment. The court evaluates hostile work environment claims based on the totality of circumstances, including the frequency, severity, offensiveness of the conduct, and its impact on work performance. The plaintiff's grievances primarily involve work-related actions by supervisors, which are generally not sufficient for hostile work environment claims, as seen in cases like Grosdidier v. Chmn. Bd. of Broadcasting Governors and Douglas-Slade v. LaHood. Consequently, the defendant is granted summary judgment on the retaliatory hostile work environment claim for being both untimely and lacking merit.

Summary judgment is granted in part and denied in part: it is granted for claims related to specific actions such as the plaintiff’s exclusion from meetings, negative performance reviews, and work assignments, while it is denied for claims related to the realignment of IROR and assignment to a non-supervisory position. A separate Order follows this Memorandum Opinion.