Opinion
Civil Action No. 02-1403 DAR.
April 21, 2005
MEMORANDUM OPINION
Defendant's Motion for Summary Judgment (Docket No. 30) is pending for determination by the undersigned. Upon consideration of the motion, the memoranda in support thereof and in opposition thereto and the entire record herein, Defendant's motion will be granted.
An Order was entered on March 31, 2005 (Docket No. 49) granting Defendant's Motion for Summary Judgment.
I. BACKGROUND
Plaintiff, in a complaint filed on July 12, 2002, alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. Plaintiff alleges discrimination on the basis of gender. Employment Discrimination Complaint ("Complaint") (Docket No. 1) ¶ 5. Plaintiff pled that she had "exhausted all administrative remedies before filing this action." See Complaint ¶ 4, and that the "action is filed within 90 days after plaintiff received the final agency decision on her internal EEO complaint concerning her reassignment in July 1997 from the position of Director of Communications, Navigation and Surveillance to a position with significantly decreased responsibilities, budget and staff in the Office of Information Technology with the Federal Aviation Administration in Washington, DC." Complaint ¶ 4. Defendant, in his answer, "admits the Plaintiff was issued a final agency decision regarding her EEO complaint . . . but is without sufficient information or knowledge to admit or deny when Plaintiff received the document . . . and denies the remaining allegations in this paragraph." Answer, ¶ 4.II. CONTENTIONS OF THE PARTIES
Defendant moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment, alleging that there are no genuine issues as to any material fact for trial and, consequently, Defendant is entitled to summary judgment as a matter of law because the Plaintiff cannot establish the prima facie elements of her claims. Defendant asserts six grounds in support of his motion: (1) Plaintiff lacks standing to assert any claim for the alleged failure of the FAA to promote females to SES level positions; (2) Plaintiff failed to exhaust her administrative remedies regarding her claim of constructive discharge and discriminatory employment practices of the FAA; (3) Plaintiff failed to offer sufficient evidence of a "pattern and practice" of discrimination, her claim against the FAA should be dismissed; (4) Plaintiff cannot make out a prima facie case of discrimination; (5) Defendant is entitled to summary judgment because it has articulated legitimate, non-discriminatory reasons for its actions; (6) Plaintiff cannot produce evidence showing that Defendant's legitimate non-discriminatory reasons for its decisions are pretexts for discrimination or retaliation. Defendant's Memorandum in Support of Motion for Summary Judgment at 5-13.
Plaintiff contends that she "has been the victim of discrimination (based upon her gender) in the form of constructive demotion and discharge for the position noted in paragraph 4 in the defendant's agency as set forth in her formal EEO complaint and affidavit in the report of investigation." Complaint ¶ 5. Plaintiff further contends that the "alleged discriminating official for the reassignment . . . has engaged in a pattern and practice of discrimination against females in the Federal Aviation Administration ("FAA") in Washington, DC." Id. Plaintiff avers that "[f]emales are under-represented at the SES level at [FAA] headquarters . . . where plaintiff was employed." Id. Plaintiff alleges that she "suffered lost pay and benefits, embarrassment, humiliation and emotional distress and diminished retirement income." Complaint ¶ 6.
Plaintiff was employed with the Defendant in the FAA as the Director of Communication, Navigation and Surveillance. Complaint ¶¶ 2, 4; Plaintiff's Opposition at 3. Plaintiff alleges gender discrimination in the form of constructive demotion and discharge when the Defendant reassigned her to a position with significantly less responsibilities, budget and staff. Complaint ¶ 4. Plaintiff seeks injunctive relief, attorney's fees and costs for this action and the administrative phase of the case, retroactive reinstatement of the level of the position from which she was removed, back pay with interest, compensatory damages, restoration of sick and annual leave used as a result of the discrimination and a trial by jury. Complaint ¶ 7.
According to Plaintiff, the FAA designated the Office of Communication, Navigation and Surveillance Systems as "AND". Ms. Czekalski, as Director of the Office of Comm unication, Navigation and Surveillance Systems was referred to as "AND-1." Plaintiff's Opposition at 3, n. 1.
Plaintiff opposes Defendant's motion, and contends that there are genuine issues of material facts in dispute because she can successfully establish a prima facie case of discrimination under Brown v. Brody by showing: 1) she is a member of a protected class; 2) she suffered an adverse employment action when her demotion tarnished her reputation as it significantly reduced her managerial responsibilities and placed her in a position that was below people who were her peers prior to the demotion; and 3) her demotion gives rise to an inference of discrimination as there is evidence that Donohue made his decision to demote Plaintiff because she was "not one of the boys"; Donohue was dismissive and belittling to Plaintiff and other women; Donohue was uncomfortable working with females; and Donohue was rude, sexist and uncivil to women. Opposition to Motion for Summary Judgment ("Plaintiff's Opposition) at 2.
In Plaintiff's Opposition in a footnote, she incorrectly states that "Defendant's refusal to provide full discovery is before the Court in plaintiff's motion to compel discovery." Plaintiff's Opposition at 26, n. 4. Plaintiff also stated that "[she] believes that upon receipt of the requested inform ation, she will be able to bolster her evidence that defendants alleged non-discriminatory reasons are pretextual." Id. Plaintiff's motion is not before this Court. On November 2, 2004, the Court denied Plaintiff's Motion to Com pel Discovery (Docket No. 29).
On August 23, 2004, Plaintiff filed a Response to Defendant's Statement of Material Facts Not in Dispute (Docket No. 34) and an Opposition to Defendant's Motion for Summary Judgment (Docket No. 35). On January 18, 2005, the Court in an Order (Docket No. 43) struck from the record Plaintiff's Response to Defendant's Statement of Material Facts Not in Dispute because Plaintiff failed to file a separate concise statement of genuine issues in the form prescribed by LCvR 7(h). As directed by the Court, Plaintiff timely filed her Statement of Genuine Issues (Docket No. 46) and Defendant timely filed a supplemental reply (Docket No. 47).
III. STANDARD OF REVIEW
Summary judgment shall be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood 43 F. 3d 1538, 1540 (D.C. Cir. 1995). The burden is upon the non-moving party to demonstrate that there are material facts in dispute. Chelates, 477 U.S. at 324. There is a genuine issue of material fact "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are in dispute if they are capable of affecting the outcome of the suit under governing law. Id. In considering a motion for summary judgment, all evidence and inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 477 U.S. at 248; see also Bayer v. United States Dept. Of Treasury, 956 F. 2d 330, 333 (D.C. Cir. 1992).
This circuit has held that because proof of discrimination may be difficult for a plaintiff to establish, "the court should view summary judgment motion in such cases with special caution."Childers v. Slater, 44 F. Supp. 2d 8, 15 (D.D.C. 1999) (citingAka v. Washington Hosp. Ctr., 116 F. 3d 876, 879 (D.C. Cir. 1997)); see also Johnson v. Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993). Nevertheless, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 474 U.S. at 586. Rather, she must come forward with "specific facts showing that there is a genuine issue for trial." Id. at 587; Fed.R.Civ.P. 56(e).
Moreover, Rule 56(e) of the Federal Rules of Civil Procedure provides, in relevant part:
When a motion for summary judgment is made and supported as provided in this rule, an 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 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.
Fed.R.Civ.P. 56(e). The nonmoving party must therefore
go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial" . . . Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing[.]Celotex, 477 U.S. at 324 (emphasis added).
In addition, Local Civil Rule 7(h) provides:
Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement . . . In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.
LCvR 7(h) (emphasis supplied); see also, LCvR 56.1. The District of Columbia Circuit has held that "[i]f the party opposing the motion fails to comply with this local rule, then `the district court is under no obligation to sift through the record' and should `[i]nstead . . . deem as admitted the moving party's facts that are uncontroverted by the nonmoving party's Rule [LCvR 7(h)] statement.'" Securities and Exch. Comm'n v. Banner Fund Int'l, 211 F. 3d 602, 616 (D.C. Cir. 2000) (citation omitted). The District of Columbia Circuit "[has] explained . . . that the `the procedure contemplated by the [local] rule . . . isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record." Burke v. Gould, 286 F. 3d 513, 517 (D.D.C. 2002) (quoting Gardels v. Cent. Intelligence Agency, 637 F. 2d 770, 773 (D.C. Cir. 1980)). This circuit has affirmed the grant of summary judgment where the nonmoving party failed to cite any evidence in the record, and in the statement of genuine factual issues, "did not set forth specific, material facts, but simply asserted, without citing evidence in the record, that there was a disputed issue[.]" Burke, 286 F. 3d at 518 (quotingTarpley v. Greene, 684 F. 2d 1, 7 (D.C. Cir. 1982)).
Finally, Rule 56(f) of the Federal Rules of Civil Procedure provides that
[s]hould it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
IV. BURDEN OF PROOF IN A TITLE VII ACTION
In Texas Dep't of Community of Affairs v. Burdine, 450 U.S. 248 (1981), the Court, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), sets forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the Plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the Plaintiff succeeds in proving the prima facie case, the burden shifts to the Defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 804. Third, should the Defendant carry this burden, the Plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Defendant were not its true reasons, but were a pretext for discrimination. Burdine, 450 U.S. at 254; McDonnell Douglas, 411 U.S. at 804.
V. DISCUSSION
A. Plaintiff lacks standing to assert any claim for the alleged failure of the FAA to promote females to SES level positions.
Defendant avers that Plaintiff, in her complaint, alleges that females are underre-presented at the SES level at FAA Headquarters, where she is employed. Memorandum in Support of Motion for Summary Judgment at 6. Defendant further states that Plaintiff was employed at the SES level at the FAA Headquarters.Id.
Defendant relies on Gray v. Greyhound Lines, 545 F. 2d 169 (D.C. Cir. 1976), in which the court reasoned that "in order to bring an action under Title VII, an `aggrieved person' must satisfy the Constitutional requirements for Article III standing." 545 F. 2d at 179. The court further opined that a "plaintiff must clearly allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers." 545 F. 2d at 175.
Plaintiff contends that she "has not sued the Department of Transportation for its failure to promote other women to the SES." Plaintiff's Opposition at 25. Plaintiff argues that "defendant's failure to promote women is evidence of both defendant's illegal motive and the pretextual nature of its articulated reason for demoting and discharging Ms. Czekalski." Id.
In examining the record in this matter in the light most favorable to the Plaintiff, the undersigned cannot find any genuine issue about any material fact relating to Plaintiff's claim of sex discrimination. The Cour further finds that no reasonable jury could return a verdict in her favor on this basis. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court finds that Plaintiff has failed to present any evidence to support her contention that she is somehow aggrieved or has suffered injury as a result of not being promoted to an SES position after she applied. Plaintiff is in fact invoking a claim for disparate treatment based on sex in the promotion of females to the SES level. Plaintiff is also arguing that as a rebuttal to the agency's articulated reason for the so called adverse action, i.e., failure to promote, is pretexual discrimination based on sex.
The record reflects that Plaintiff was promoted to an SES position by Dr. George Donohue and some time after that, she was demoted or reassigned but continued to keep her pay and SES status. The record is devoid of any evidence that demonstrates that Plaintiff applied for and was qualified for an available SES position; and despite her qualifications she was rejected.McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802. Thus, Plaintiff lacks standing to assert any claim for the alleged failure of the FAA to promote females to SES level positions in addition to not establishing a prima facie case of sex discrimination.
B. Plaintiff has failed to exhaust her administrative remedies regarding her claim of constructive discharge and discriminatory employment practices of the FAA.
Defendant contends that Plaintiff raises for the first time in her opposition that she was discriminated against when Dr. George Donohue removed the Voice Switching Control System ("VSCS") from her supervision and transferred her Deputy Director, leaving her short staffed for at least six months. Defendant's Reply at 2. Defendant provides examples of Plaintiff's lack of notice by pointing out that Plaintiff failed to raise these issues in her EEO Complaint and her District Court Complaint. Id. Plaintiff, in her opposition, failed to squarely refute Defendant's contentions. In examining the Complaint, Plaintiff only addressed "her reassignment in July 1997 from the position of Director of Communications, Navigation and Surveillance to a position with significantly decreased responsibilities, budget and staff in the Office of Information Technology . . ." Complaint ¶ 4. Plaintiff, in her Opposition, does not provide the date when the removal of the program occured, but it appears from the record that it occurred some time in 1996, since the action took place before Mr. Steve Zaidman, Deputy Director, was reassigned in August of 1996. Plaintiff's Opposition at 4.
The Court finds that Plaintiff failed to provide adequate notice to the Defendant of her claim at the administrative level and in her District Court Complaint and is thus barred from presenting her claim for the first time in her opposition.
As to her constructive discharge claim, Plaintiff alleges she was constructively discharged when she was reassigned in July 1997 from the position of AND-1. Complaint ¶ 5. Defendant contends in his motion that Plaintiff "only argued that she was subjected to discrimination when she was reassigned from the [above] position. . . ." Defendant's Memorandum in Support of Motion for Summary Judgment at 8. Defendant further contends that Plaintiff was asked during her EEO deposition in September, 2000 "if she was raising a constructive discharge claim, she specifically stated that she was not . . ." Id.; Plaintiff's EEO Depo. (Exh.6) at 133, line 16.
The Court finds that Plaintiff failed to exhaust her administrative remedies as to her constructive discharge claim by failing to put Defendant on notice of this claim in order for the agency to properly investigate this matter fully. Therefore, the Court will grant summary judgment with respect to the constructive discharge claim. C. Plaintiff has failed to offer sufficient evidence of a pattern and practice of discrimination.
Defendant contends that Plaintiff "failed to raise the claim in the adminstrative phase, and further failed to even argue the claim before the EEOC." Defendant's Memorandum in Support of Motion for Summary Judgment at 9.
Plaintiff alleged in her Complaint that the "alleged discriminating official for the reassignment . . . has engaged in a pattern and practice of discrimination against females in the [FAA][and that] [f]emales are under-represented at the SES level at the [FAA] headquarters in Washington, DC, where plaintiff was employed." Complaint ¶ 5. Plaintiff argues that "defendant's failure to promote women is evidence of both defendant's illegal motive and the pretextual nature of its articulated reason for demoting and discharging Ms. Czekalski." Plaintiff's Opposition at 25. Plaintiff states that "[she] has offered evidence of other discriminatory acts against women in the workplace where Ms. Czekalski worked." Plaintiff's Opposition at 26.
In examining Plaintiff's opposition, the exhibits attached thereto, the record again is devoid of any factual evidence to support Plaintiff's contention. Plaintiff has failed to present any factual issues to refute Defendant's contention. At best, Plaintiff merely makes conclusory statements without providing any evidence to support her statements. As Defendant accurately observes, the Plaintiff has not provided any evidence of specific incidents or statistical evidence from which a trier of fact could draw an inference of gender discrimination. Since Plaintiff has failed to meet her burden, the Court will grant summary judgment with respect to her claim of pattern and practice of discrimination against women. D. Plaintiff cannot make out a prima facie case of discrimination.
As an exam ple of a conclusory statement proffered by Plaintiff, she states, "[t]here is also evidence that the move was motivated by Donohue's sexist and discrim inatory motives as he justified the VSCS rem oval because Ms. Czekalski and her male subordinate, Peter Challan had some managerial friction." Plaintiff's Statement of Genuine Issues (Docket No. 46) at 3, Genuine Issue No. 6.
Plaintiff alleges that the Defendant discriminated against her on the basis of her gender when she was reassigned from her position as AND-1 to the Y2K Compliance Project as Program Manager for Information Technology Oversight. Plaintiff's Opposition at 11. Defendant argues that "Plaintiff cannot point to any evidence in the record giving rise to an inference of discrimination based on her gender." Defendant's Memorandum in Support of Motion for Summary Judgment at 11.
In order to establish a prima facie case in a disparate treatment action, the Plaintiff must show that she: 1) is a member of a protected group, 2) she suffered an adverse employment action, 3) and the unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F. 3d 446, 452 (D.C. Cir. 1999); McDonnell Douglas, 411 U.S. at 802; Harding v. Gray, 9 F. 3d 150, 152 (D.C. Cir. 1993).
It is undisputed from the record that Plaintiff belongs to a protected group (female) so the first part of the prong has been met. With respect to the second prong, Plaintiff alleges that she was demoted "to a position with significantly decreased responsibilities, budget and staff." Complaint ¶ 4; Plaintiff's Opposition at 10. Plaintiff argues that as the "Director . . . [she] was the head of a department that had an annual budget larger than some small countries." Plaintiff's Oppostion at 10. Plaintiff further argues that "she went from being Director supervising several hundred people, down to a team with only a few staff members." Plaintiff's Opposition at 11. Plaintiff contends that she suffered a loss of prestige when she was demoted and placed under the supervision of Theron Gray, who was a colleague and equal at one time. Plaintiff's Opposition at 11-12. Plaintiff offered the testimony of two individuals who described the new assignment to be a demotion since it was in essence a reduction in rank at the FAA. Plaintiff's Opposition at 12.
Defendant addresses the question of whether the demotion constitutes an adverse employment action by relying on Brown v. Brody, 199 F. 3d 446 (D.C. Cir. 1999), and Mungin v. Katten Muchin Zavis, 116 F. 3d 1549 (D.C. Cir. 1997). The circuit court reasoned that "changes in assignments and work-related duties do not ordinarily constitute adverse employment decisions if unaccompanied by a decrease in salary or work hour changes". Mungin v. Katten Muchin Zavis, 116 F. 3d at 1557. In Mungin v. Katten Muchin Zavis, 116 F. 3d 1549 (D.C. Cir. 1997), the court reasoned that "[a]n employer has discretion to assign work to equally qualified employees so long as `the decision is not based upon unlawful criteria.'" 116 F. 3d at 1557. The court further stated that "the factfinder may not second-guess an employer's personnel decision absent demonstrably discriminatory motive." (emphasis omitted) 116 F. 3d at 1556.
In Forkkio v. Powell, 306 F. 3d 1127 (D.C. Cir. 2002), a federal employee brought an action alleging race discrimination and retalliation as a result of personnel actions taken during a reorganization. The court stated that "[a]ctions short of an outright firing can be adverse within the meaning of Title VII, but not all lesser actions by employers count." Forkkio v. Powell, 306 F. 3d at 1130. The court, referring to its earlier decision in Brown v. Brody (citations omitted), further stated that "[p]urely subjective injuries, such as dissatisfaction with a reassignment, . . . or public humiliation or loss of reputation, . . . are not adverse actions." 306 F. 3d at 1130-1131. However, the court explained that "[i]n contrast with purely subjective harms, `reassignment with significantly different responsibilities, or . . . a significant change in benefits' generally indicates an adverse action." 306 F. 3d at 1131; citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). The court announced in Brown v. Brody that "an employee suffers an adverse employment action if he experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Brown v. Brody, 199 F. 3d 446, 457 (D.C. Cir. 1999).
Since Plaintiff failed to allege in her Complaint that her Deputy Directory was moved to another Division and that a new Deputy was not appointed until six months later, and the VSCS program was removed from her, and thus, she was constructively discharged, the Court will not consider these matters in determining whether these acts constitute an adverse employment action. The only evidence before the Court is the demotion or reassignment from the position of Director to the Y2K or year 2000 program position. Plaintiff in her opposition stated that she "suffered an adverse employment action when her demotion tarnished her reputation as it significantly reduced her managerial responsibilities and placed her in a position that was below people who were her peers prior to the demotion." Plaintiff's Opposition at 2. Plaintiff alleged that she was selected to be the Director of the Office of Communication, Navigation, and Surveillance Systems (AND) on February 19, 1995 and she "becom[e] one of seven top-level Directors under George Donohue, the head of the FAA's Administration for Research and Acquisition (ARA)." Plaintiff's Opposition at 3. Dr. George Donohue testified that a total of approximately 25 people which included Plaintiff's staff and submanagers reported directly to her. Donohue Depo. at 45. Dr. Donohue further testified that approximately 500 employees worked in AND and indirectly reported to Plaintiff through her submanagers. Id. Plaintiff stated in her opposition that Dr. Donohue testifed that she had "a budget close to one billion dollars." Opposition at 3.
It is interesting to note that Plaintiff avers in her Complaint that she was reassigned but in her opposition she repeatedly stated that she was demoted in July 1997 by Dr. Donohue. Complaint ¶ 4; Opposition at 4. Plaintiff presented deposition testimony of three individuals who opined that the reassignment was in fact a demotion in rank, she was not in charge of a priority program, she had a significantly reduced staff and budget, and decreased responsibilities. Carrico Depo. at 25-26; Gifford Depo. at 26; Crossetti Decl., ¶ 8. In examining the testimony of Ms. Harlan and Dr. Donohue, both testified that the year 2000 program was a priority and that according to Dr. Donohue, ". . . the importantance of programs is not measured by the amount of money you have or the number of people you have." Donohue at 102, 122; Harlan Depo. at 109-110.
In fact, Mr. Carrico did not testify that the year 2000 project was not a priority program, he stated that "[plaintiff] was a good fit to manage a program that had that kind of importance in the agency" and that "[i]t was just dawning on people that this might be a big problem." Carrico Depo at 39. He further testified that the project "had just been funded" and later in 1999 that the panic started and that "the very heavy funding" began. Carrico Depo at 39-40. Dennis DeGaetano testified that the year 2000 program was a priority program in mid-1997. DeGaetano Depo. at 27.
In further support of her contention, Plaintiff stated that the demotion tarnished her reputation and placed her in a position that was below people who were her peers prior to the demotion. Plaintiff's Opposition at 2. Plaintiff testified and proffered testimony from Dr. Donohue that she was placed under Theron Gray when she was reassigned to the year 2000 program and became the Assistant to the Director for Y2K. Czekalski Depo. at 91; Donohue Depo. at 120.
Plaintiff asserts that as a result of the assignment or demotion she was stripped of her position as Director and "was therefore left with no logical choice but to retire, because Donohue's letter and the drastic demotion made it clear that she was not going to advance under his watch." Opposition at 5. Plaintiff further asserted that since Donohue stated some time in March of 1997, that their relationship "just wasn't working for him" and she "therefore retired at the end of 1997 because of Donohue's attitude and the resulting poor working relationship." Plaintiff's Opposition at 6.
In Forkkio v. Powell, 306 F. 3d 1127 (D.C. Cir. 2002), the circuit court agreed with the finding of the district court that the plaintiff "failed to provide any evidence, beyond his conclusory assertions of loss of prestige, of any adverse consequence to his position or future career. . . ." 306 F. 3d at 1131. Plaintiff argued that "when Donohue stripped her of top level managerial responsibilities, placed her two levels below Director, and tarnished her image as her colleagues rightly considered her demoted", in essence constitued an adverse action. Opposition at 10. Plaintiff further argued that "[t]he moment [Plaintiff] received the June 12, 1997 demotion letter, her career took a monumental step backwards." Plaintiff's Opposition at 23. The Court finds that a trier of fact has no basis to draw an inference that gender was a factor in Mr. Donohue's decision to demote her. In addition, Plaintiff has failed to explain any adverse consequence to her position or future career as a resulf of the demotion or reassignment.
The Plaintiff has not demonstrated that this action affected her salary or changed her work hours or affected any conditions, privileges, terms of employment, or future employment. Forkkio v. Powell, 306 F. 3d at 1131. The only tangible evidence Plaintiff relies on is that she suffered loss of prestige which does not rise to the level of an actionable adverse employment action.
As to Plaintiff's claim of disparate treatment based on gender, Plaintiff and Defendant submitted the deposition testimony of several employees who agreed that Mr. Donohue is a results-oriented individual and treats men and women harshly. Overby Depo. at 49-50 (Plaintiff's Ex. 10); Harlan Depo at 120; DeGaetano Depo. at 50 (Defendant's Ex. 12) Plaintiff has failed to present any evidence of any men whose performance may have been minimally satisfactory or who had cost overruns, or who had subordinates or colleagues complain about their management style, and who were ultimately demoted or reassigned. Plaintiff must demonstrate that she and a similarly situated person outside her protected class were treated disparately. Wilson v. Suntrust Bank, et al., No. 3-7194, 2004 WL 295830, at *2 (D.C. Cir. 2004). Even if Plaintiff could make out a prima facie case, she failed to rebut the Defendant's legitimate, nondiscriminatory reasons for the reassignment. Dr. Donohue cited poor performance and complaints from other managers as a justification for the reassignment. Defendant's Memorandum in Support of Motion for Summary Judgment at 1. Plaintiff only offered conclusory statements and has failed to produce any factual evidence in rebuttal.
Accordingly, the undersigned finds that the Plaintiff has failed to meet the second prong of the McDonnell Douglas test, thus failing to meet her burden of persuasion and production. Since Plaintiff failed to establish a prima facie case of discrimination, the Court will not address the remaining issues presented by Defendant.
VI. CONCLUSION
Upon consideration of the Defendant's Motion for Summary Judgment, the Memorandum in Support thereof, the opposition thereto, and the entire record herein, and in accordance with the Order entered on March 31, 2005 (Docket No. 49), the Defendant's Motion for Summary Judgment shall be granted for the reasons set forth in this memorandum opinion.