                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

_____________________________
                              )
DENISE A. BANKS,              )
                              )
          Plaintiff,          )
                              )
          v.                  )       Civil Action No. 07-1807 (RWR)
                              )
TOM VILSACK,                  )
                              )
          Defendant.          )
_____________________________ )

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Denise A. Banks, an African-American woman born in

1949, brings this action against the Secretary1 of the United

States Department of Agriculture (“USDA”) under Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et

seq., and the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621 et seq., alleging that while employed at the USDA,

she was harassed and discriminated against because of her race,

gender, and age, and retaliated against because of her protected

equal employment opportunity (“EEO”) activities.    At the close of

discovery, the USDA moved for summary judgment and Banks cross-

moved for partial summary judgment.    Because there is a genuine

issue of material fact as to whether Banks was discriminatorily

removed from the Senior Executive Service (“SES”), the USDA’s and

Banks’s motions for summary judgment will be denied as to this


     1
       Secretary Tom Vilsack is substituted as the defendant
under Federal Rule of Civil Procedure 25(d).
                                 -2-

claim.    The USDA’s motion for summary judgment will be granted as

to Banks’s claim that she was subjected to a hostile work

environment and as to several of her retaliation claims2 because

there is no genuine dispute about material facts and the USDA is

entitled to judgment as a matter of law.       The USDA’s motion will

be denied as to Banks’s other discrimination and retaliation

claims.

                             BACKGROUND

     Banks is an African-American woman who was born in 1949.

Am. Compl. ¶ 1; see also Pl.’s Mot. for Partial Summ. J. & Opp’n

to Def.’s Mot. for Summ. J. (“Pl.’s Mot.”), Pl.’s Stmt. of Facts

Not in Genuine Dispute (“Pl.’s Stmt.”) ¶ 1.       Banks began working

at the USDA in February 1999 as the Deputy Director for Civil

Rights (Employment) at the SES level.        Def.’s Mot. for Summ. J.

(“Def.’s Mot.”), Def.’s Material Facts Not in Genuine Dispute

(“Def.’s Stmt.”) ¶ 1.   As the Deputy Director, Banks supervised

several managers in the division.      Id.    Banks was supervised by

Rosalind Gray.   Id. ¶ 2.

     Banks was subject to a one-year probationary period when she

was appointed as the Deputy Director.        Id. ¶ 1.   Her November

1999 performance appraisal for the probationary period stated

     2
       Banks conceded her claims that the USDA retaliated against
her for engaging in protected EEO conduct by removing her from
the SES, issuing her a letter of direction, and giving her a low
performance rating in 2005. See Def.’s Reply in Further Supp. of
His Mot. for Summ. J. & Opp’n to Pl.’s Partial Mot. for Summ. J.
(“Def.’s Reply & Opp’n”) at 2.
                                 -3-

that she did not meet several critical elements of her position

and that her overall performance was rated as “unsatisfactory.”

Id. ¶ 8.   As a result of her poor performance rating, Gray

recommended that Banks be terminated.   Id.; see also Pl.’s Stmt.

¶ 5.   Notwithstanding Gray’s recommendation, Assistant Secretary

for Administration, Paul Fiddick, removed Banks from the SES

position in January 2000 but reassigned her to a GS-15 position,

Special Assistant to the Deputy Director for Programs in the

Office of Civil Rights.   Def.’s Stmt. ¶ 8; see also Pl.’s Stmt.

¶ 6.

       Banks alleges that she was so distraught over being removed

from her SES position that she took approximately two weeks of

sick leave after receiving Fiddick’s letter.   Def.’s Stmt. ¶ 10;

Am. Compl. ¶ 18.    Although Banks alleges that her leave was

approved and that she submitted all of the medical documentation

supporting it, she received a Letter of Counseling from her new

supervisor, Fred Isler, when she returned to work stating that he

was displeased that Banks had been absent for two weeks and he

had not known where she was.   Def.’s Stmt. ¶ 10.

       From 2000 to 2004, Banks received overall performance

ratings of “outstanding” on her performance appraisals.    See

Pl.’s Stmt. ¶ 10.   In light of her performance ratings, Banks

received cash performance awards in the amount of $4000.   Id.;

see Am. Compl. ¶ 40.    In August 2004, Sadhna True became the

Director for Civil Rights and Employment at the USDA.   Am. Compl.
                                     -4-

¶ 24.       In that capacity, True became Banks’s second line

supervisor.      Id.   In 2005, Banks received the lower performance

rating of “Superior”; in 2006 and 2007, she received the even

lower rating of “Fully Successful.”        Def.’s Stmt. ¶ 16; Def.’s

Mot., Ex. 17 (Banks 2005 Performance Appraisal) at 27, Ex. 18

(Banks 2006 Performance Appraisal) at 29; see also Am. Compl.

¶¶ 36-37, 44-45, 47.      As such, Banks received reduced or no

monetary performance awards from 2005 to 2007.

        In July 2007, Banks received a Letter of Direction from

True.       Def.’s Stmt. ¶¶ 17-20.   The letter stated that Banks had

not been achieving her performance goals for her position and

gave Banks specific instructions to improve her performance and

deadlines to meet.      Id.   The letter warned that failure to meet

the requirements in the letter “may result in further conduct or

performance-based action.”      Def.’s Mot., Ex. 7 (Letter of

Direction) at 34.      After receiving the letter, Banks “was

required to work extremely long hours to meet all the

requirements contained in the Letter of Direction[.]”       Am. Compl.

¶ 49.

        In November 2007, Michael Watts, the acting Director for

Civil Rights, reassigned Banks from her Division Chief position

to the position of special assistant to the acting Director for

Civil Rights.      Def.’s Stmt. ¶ 24.3

        3
       The Plaintiff’s Genuine Disputes of Material Fact does not
dispute the defendant’s identification of the position to which
                                 -5-

     From 1999 to 2007, Banks filed three EEO complaints.      Am.

Compl. ¶¶ 8-11.   Banks also supported other employees’ EEO

complaints by filing affidavits and testifying on their behalf.

Id. ¶¶ 28-34.

     In Banks’s five-count amended complaint she alleges that her

supervisors’ conduct described above was discriminatory and

retaliatory.    The amended complaint alleges that Banks was

retaliated against because of her protected EEO activities (Count

One), and was discriminated against on the basis of race (Count

Two), sex (Count Three), and age (Count Four).   It also claims

that Banks was subjected to a hostile work environment because of

her race, color, sex, age, and prior EEO activity (Count Five).

     The USDA moves for summary judgment arguing that Banks

cannot make out a prima facie case of disparate treatment,

retaliation, or hostile work environment.   The USDA further

argues that it has offered legitimate business reasons for its

actions and Banks cannot show that those reasons are pretextual.

Def.’s Mot., Def.’s Mem. of P. & A. in Supp. of His Mot. for

Summ. J. (“Def.’s Mem.”) at 1.   Banks opposes and cross-moves for

summary judgment arguing that she is entitled to judgment as a

matter of law that her demotion from her SES position was

discriminatory.   Pl.’s Mot. at 1.



Banks was reassigned, although Banks’s amended complaint
identifies the position as Assistant Secretary for the Office of
Adjudication and Compliance, Am. Compl. ¶ 12.
                                  -6-

                             DISCUSSION

     A “court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”   Fed. R. Civ.

P. 56(a).   A dispute is “genuine” “where the ‘evidence is such

that a reasonable jury could return a verdict for the non-moving

party,’ a situation separate and distinct from a case where the

evidence is ‘so one-sided that one party must prevail as a matter

of law.’”   Dozier-Nix v. District of Columbia, 851 F. Supp. 2d

163, 166 (D.D.C. 2012) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 252 (1986)).    To survive a motion for summary

judgment, the nonmoving party “must provide evidence showing that

there is a triable issue as to an element essential to that

party’s claim.”    Arias v. DynCorp, Civil Action No. 01-1908

(RWR), 2013 WL 864566, at *3 (D.D.C. Feb. 6, 2013) (internal

quotation marks omitted); see also Moore v. Hartman, 571 F.3d 62,

66 (D.C. Cir. 2009).   In considering a motion for summary

judgment, a court accepts as true the nonmovant’s evidence and

draws all “justifiable inferences . . . in his favor.”   Anderson,

477 U.S. at 255.

I.   DISPARATE TREATMENT

     Title VII disparate treatment claims are analyzed under the

burden-shifting framework articulated in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973).    The same framework applies to age

discrimination claims.   See Krodel v. Young, 748 F.2d 701, 705
                                 -7-

(D.C. Cir. 1984).   A plaintiff making a disparate treatment claim

carries the initial burden to establish a prima facie case of

discrimination.   McDonnell Douglas, 411 U.S. at 802.   To do so,

“a plaintiff must show [(1)] that he ‘is a member of a protected

class,’ [(2)] that he ‘suffered an adverse employment action,’

and [(3)] that ‘the unfavorable action gives rise to an inference

of discrimination.’”   Youssef v. FBI, 687 F.3d 397, 401 (D.C.

Cir. 2012) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C.

Cir. 2002)); see also Cuddy v. Carmen, 694 F.2d 853, 857 (D.C.

Cir. 1982) (discussing a plaintiff’s initial burden in an ADEA

case).   “An ‘adverse employment action’ . . . is ‘a significant

change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different

responsibilities, or a decision causing significant change in

benefits.’”    Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir.

2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

761 (1998)).   “An employee must ‘experience 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.’”

Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (quoting

Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002)).

“[F]ormal criticism or poor performance evaluations are [not]

necessarily adverse actions” and they should not be considered as

such if they did not “affect[ ] the [employee’s] grade or
                                -8-

salary.”   Brown v. Brody, 199 F.3d 446, 457-58 (D.C. Cir. 1999)

(internal quotation marks omitted), abrogated on other grounds by

Steele v. Schafer, 535 F.3d 689 (D.C. Cir. 2008).

     If a plaintiff makes out a prima facie case, the burden

shifts to the employer to “produc[e] a non-discriminatory

explanation for the challenged personnel action.”   Ford v. Mabus,

629 F.3d 198, 201 (D.C. Cir. 2010).   If the employer provides a

legitimate, non-discriminatory reason for the action, then the

plaintiff must show “that discriminatory animus was the

determining or but-for cause of the personnel action.”    Id.   “The

plaintiff may satisfy this burden ‘either indirectly by showing

the employer’s reason is pretextual or directly by showing that

it was more likely than not that the employer was motivated by

discrimination.’”   Id. (quoting Forman v. Small, 271 F.3d 285,

292 (D.C. Cir. 2001)).

     Although the plaintiff bears the initial burden under the

McDonnell Douglas framework, “the prima-facie-case aspect of

McDonnell Douglas is irrelevant when an employer has asserted a

legitimate, non-discriminatory reason for its decision[.]”

Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir.

2008).

     Therefore, if an employer asserts a legitimate,
     nondiscriminatory reason for an adverse employment
     action, the district court must conduct one central
     inquiry in considering an employer’s motion for summary
     judgment . . . : whether the plaintiff produced
     sufficient evidence for a reasonable jury to find that
     the employer’s asserted non-discriminatory reason was
                                -9-

      not the actual reason and that the employer
      intentionally discriminated against the plaintiff on a
      prohibited basis.

Id.   To determine whether a plaintiff has produced sufficient

evidence, a court may consider “(1) the plaintiff’s prima facie

case; (2) any evidence the plaintiff presents to attack the

employer’s proffered explanations for its actions; and (3) any

further evidence of discrimination that may be available to the

plaintiff (such as independent evidence of discriminatory

statements or attitudes on the part of the employer).”    Dunaway

v. Int’l Bhd. of Teamsters, 310 F.3d 758, 763 (D.C. Cir. 2002)

(internal quotation marks omitted).   “Often, the employee

attempts to produce evidence suggesting that the employer treated

other employees of a different race, color, religion, sex, or

national origin more favorably in the same factual

circumstances.”   Brady v. Office of Sergeant at Arms, 520 F.3d

490, 495 (D.C. Cir. 2008).

      Banks’s amended complaint claims that the USDA discriminated

against her on the basis of race, sex, and age by removing her

from the SES in 2000, demoting her from a supervisory Division

Chief position in 2007, denying her leave, and denying her

performance awards.4   Am. Compl. ¶¶ 54-56.   The USDA argues that


      4
       The USDA also speaks of Banks’s “claim” that she was
discriminated against when she was given the letter of direction
in 2007. Def.’s Mem. at 25-26. While Banks’s amended complaint
describes the letter as “discriminatory and retaliatory,” Am.
Compl. ¶ 51, Banks’s amended complaint alleges no such claim in
Counts Two, Three, and Four. Nevertheless, to the extent that
                               -10-

it had legitimate non-discriminatory reasons for its decisions to

remove Banks from the SES and for Banks’s low performance rating

in 2006.5

     The USDA asserts that Banks was removed from the SES because

Banks was unable to “meet the requirements of her job as a member

of the SES.”   Def.’s Mem. at 25.   The USDA claims that Banks was

unable to meet deadlines, manage her staff, and had trouble

communicating effectively with her supervisors and staff.   The

USDA offers Banks’s performance appraisal from her probationary



Banks claimed that the letter of direction was discriminatory,
this claim fails because the letter was not an adverse employment
action. See Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir.
2008)(finding that a letter of counseling that “contained no
abusive language, but rather job-related constructive criticism,
which can prompt an employee to improve her performance” was not
retaliatory under the higher, “materially adverse employment
action” standard (internal quotation marks omitted)); see also
Letter of Direction at 34 (explaining that the letter “provides
feedback regarding [Banks’s] performance” and “contains specific
instructions and deadlines”).
     5
       Although the USDA discusses facts related to Banks’s
claims that the USDA discriminated against her by reassigning her
in 2007, see Def.’s Mem. at 15-16, and denying Banks leave, id.
at 7-8, and discusses Banks’s performance appraisals and awards
in the 2005 and 2007 fiscal years, id. at 10-14, the USDA does
not argue that there is no genuine dispute of material fact on
these claims. Accordingly, to the extent that the USDA moves for
summary judgment on these claims, its motion will be denied. The
USDA argues that it had a legitimate non-discriminatory reason
for giving Banks a lower performance rating in 2006 of “Fully
Successful” than the higher rating of “Superior” in 2005. Def.’s
Mem. at 26. However, the USDA does not challenge Banks’s claim
that the USDA discriminatorily denied Banks an “Outstanding”
rating in 2006 which would have entitled Banks to a higher
performance award. See Am. Compl. ¶¶ 44-45. Thus, summary
judgment will not be granted for the USDA on Banks’s claim that
her 2006 performance rating was discriminatory.
                               -11-

year and related documents as support for its proffered non-

discriminatory reason for removing Banks from the SES.     Id. at 3-

5.   For example, Banks allegedly promised to turn in an

affirmative employment plan.   However, the performance appraisal

states that Banks never submitted the plan.    See Def.’s Mot., Ex.

3 (Banks 1999 SES Appraisal Record (“Banks 1999 Appraisal”),

Suppl. Stmt. for Denise A. Banks (“Banks 1999 Appraisal Suppl.”))

at 34.   The performance appraisal also describes how Banks missed

two deadlines to submit training modules.   When Banks finally

submitted the modules, they contained “many factual and technical

errors.”   Banks 1999 Appraisal at 32.   Banks also allegedly

failed to submit timely performance evaluations for the employees

she supervised.   Instead, she told employees who inquired as to

the whereabouts of their evaluations that they were in the

Director’s office.   Banks 1999 Appraisal Suppl. at 34.    The USDA

alleges that Banks’s performance was rated as “unsatisfactory,”

due to Banks’s poor performance and that Gray recommended that

Banks be terminated.   See Def.’s Mot., Ex. 2 (Rosalind Gray Dep.

at 23:11-13); see also Banks 1999 Appraisal at 31.

      Banks counters that the USDA’s proffered legitimate non-

discriminatory reason is false and provides evidence that the

reason is pretexual.   Banks points to documents in the record

that discuss the falsity of almost every statement in her 1999

performance appraisal and provide greater context to show that

she successfully performed her SES position.   For example, Banks
                                 -12-

contends that she made substantial progress on the affirmative

employment plans but that she never received the additional

information from others necessary to complete them.    See Pl.’s

Mot., Ex. 12 (Stmt. of Rebuttal of Rosalind Gray’s Suppl. Rep.

for Denise Banks’ SES Performance Appraisal (Jan. 2000) (“Banks

Rebuttal 2000”) at 5-6).   Banks also alleges that the deadline

set for the training modules was arbitrary and unrealistic and

that the quality of the modules was due to Gray’s refusal to hire

needed experts to aid in developing the modules and not Banks’s

poor performance.    See Pl.’s Mot., Ex. 24 (Denise Banks’ Stmt. of

Rebuttal (Dec. 1999) at 3, 6-7).    Banks also asserts that

“performance evaluations of the majority of staff in the

Employment directorate were executed and forwarded to the

Director’s Office.”   Banks Rebuttal 2000 at 5.   She also contends

that she never told any of her employees that their evaluations

were in the Director’s office.    Id.

     Although the USDA has offered a legitimate non-

discriminatory reason for removing Banks from the SES, Banks has

put forward sufficient evidence for a reasonable jury to find

that the USDA’s proffered reason is false and is not the actual

reason she was removed.    Because there is a genuine dispute of

material fact as to Banks’s performance in the SES position,

summary judgment will be denied for both the USDA and Banks

regarding Banks’s claim that she was demoted from the SES because

of discrimination.
                                  -13-

II.     RETALIATION

        Courts analyze retaliation claims under the McDonnell

Douglas framework.      See Jones v. Bernanke, 557 F.3d 670, 677

(D.C. Cir. 2009).      To establish a prima face case of retaliation,

a plaintiff must show “(1) that [she] engaged in statutorily

protected activity; (2) that [she] suffered a materially adverse

action by [her] employer; and (3) that a causal link connects the

two.”    Id. at 677.

        The USDA argues that Banks cannot establish a prima facie

case of retaliation because she “cannot establish a causal

connection between her prior protected activity and the actions

taken against her.”     Def.’s Mem. at 21.   Specifically, the USDA

contends that Banks cannot make out a prima facie case that she

was removed from the SES, she received the letter of direction

and had to work additional hours as a result, and her performance

rating in 2005 was lowered in retaliation for her protected EEO

conduct.    Id. at 21-24.    In response, Banks repeats some of her

allegations that the USDA retaliated against her, see Pl.’s Mot.,

Pl.’s Mem. in Supp. of Her Mot. for Partial Summ. J. & in Opp’n

to Def.’s Mot. for Summ. J. (“Pl.’s Mem.”) at 19-22, and asserts

that she did not waive her retaliation claims because she “filed

an EEO complaint after her termination was proposed,” Pl.’s Reply

to Def.’s Opp’n to Pl.’s Mot. for Partial Summ. J. at 5, but she

does not address any of the USDA’s arguments challenging her

retaliation claims.     “A party opposing a summary judgment motion
                               -14-

who does not address an argument advanced in the motion is deemed

to have conceded the argument.”   Hairston v. Boardman, Civil

Action No. 08-1531 (RWR), 2013 WL 165017, at *3 (D.D.C. Jan. 16,

2013).   Thus, the USDA’s arguments regarding Banks’s retaliation

claims will be treated as conceded, and the USDA’s motion for

summary judgment will be granted as to Banks’s challenged

retaliation claims.6

III. HOSTILE WORK ENVIRONMENT CLAIM

     Under Title VII, harassing an employee on the basis of her

membership in a protected class is unlawful when it amounts to

discrimination that expressly or constructively alters the

employee’s “terms, conditions, or privileges of employment[.]”

42 U.S.C. § 2000e-2(a)(1); see also Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993); Curry v. District of Columbia, 195

F.3d 654, 659 (D.C. Cir. 1999).   “Courts describe . . . a

constructive alteration as ‘hostile work environment’

harassment.”   Curry, 195 F.3d at 659 (quoting Burlington Indus.,

524 U.S. at 752).   To state a hostile work environment claim, a



     6
       The USDA challenged only three of Banks’s bases for her
retaliation claim. Count One of Banks’s amended complaint also
claims that the USDA retaliated against Banks by reassigning her
from her supervisory position as a Division Chief, Am. Compl.
¶ 12, failing to restore her annual leave, id. ¶ 50, denying her
leave, id. ¶ 18, issuing discriminatory performance standards,
id. ¶ 47, denying Banks the opportunity to receive certain
training, id. ¶ 51, and lowering her performance ratings in 2006,
id. ¶¶ 44-45, and in 2007, id. ¶ 47, which resulted in no or
decreased performance awards. See id. ¶ 53. Judgment will not
be entered for the USDA on these unchallenged bases.
                               -15-

plaintiff has to show that she suffered harassment because of her

protected activity or on the basis of a protected classification

such as race or sex, “that her employer knew or should have known

of the alleged harassment and failed to take remedial action, and

that the hostile environment interfered with her work.”

Dozier-Nix, 851 F. Supp. 2d at 166; see also Na’im v. Clinton,

626 F. Supp. 2d 63, 79 (D.D.C. 2009).   “Not all things that make

an employee unhappy create a hostile work environment.”     Graham

v. Holder, 657 F. Supp. 2d 210, 216 (D.D.C. 2009).   The conduct

complained of “must be extreme to amount to a change in the terms

and conditions of employment[.]”   Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998).   “To determine whether a hostile work

environment exists, the court looks to the totality of the

circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it

interferes with an employee’s work performance.”   Graham, 657 F.

Supp. 2d at 216 (citing Faragher, 524 U.S. at 787–88).

     The USDA argues that Banks cannot establish a prima facie

case of hostile work environment because the allegedly

discriminatory conduct was not frequent because it occurred over

the course of eight years, the conduct was not severe, and Banks

does not allege that the conduct interfered with her work.

Def.’s Mem. at 29-30.   Banks’s spare response counters that

“True’s attitude toward her subordinates evinced a fundamental

contempt for African American women.”   Pl.’s Mem. at 44.
                                -16-

However, Banks does not point to any evidence to support this

assertion and has argued nothing in her opposition and cross-

motion for summary judgment that would demonstrate that the

discriminatory conduct was so frequent and severe as to interfere

with her work.   Because Banks has not made out a prima facie case

of hostile work environment, judgment will be entered for the

USDA on this claim.

                        CONCLUSION AND ORDER

     The parties have demonstrated that there are disputed issues

of material fact regarding whether Banks was discriminatorily

removed from the SES.   Further, Banks conceded the challenged

retaliation claims, and did not make out a prima facie case of

hostile work environment.   Accordingly, it is hereby

     ORDERED that the USDA’s motion [38] for summary judgment be,

and hereby is, GRANTED IN PART and DENIED IN PART.     Summary

judgment is entered for the USDA on Banks’s claims in Count One

that the USDA retaliatorily removed her from the SES, issued her

a letter of direction, and lowered her performance rating in

2005, and on Count Five.    Summary judgment is denied as to

Banks’s other claims of discrimination and retaliation.    It is

further

     ORDERED that Banks’s motion [46] for partial summary

judgment be, and hereby is, DENIED.    It is further

     ORDERED that the parties appear for a scheduling conference

on April 16, 2013 at 10:15 a.m.
                          -17-

SIGNED this 26th day of March, 2013.


                                        /s/
                                 RICHARD W. ROBERTS
                                 United States District Judge
