UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AVERY RENEE WEBSTER
Plaintiff,
Case No. 1:15-cv-1261-RCL

Vv.

UNITED STATES DEPARTMENT
OF ENERGY

Defendant.

Nw Nee mee Ne ne ee Nee Nee ne ee”

 

MEMORANDUM OPINION
In 2015, plaintiff Avery Renee Webster filed suit against the Department of Energy

(“DOE”) for alleged racial, gender, and disability discrimination and for allegedly creating a
hostile work environment. DOE filed a Motion to Dismiss and for Summary Judgment in 2016,
which the Court granted in part and denied in part. The Court ordered full discovery to give Ms.
Webster the opportunity to explore her surviving claims. DOE has since filed a Renewed Motion
for Summary Judgment (ECF No. 70). After considering that motion, Ms. Webster’s opposition
(ECF No. 71), and DOE’s reply (ECF No. 74), the Court will GRANT Defendant’s Renewed

Motion for Summary Judgment and DISMISS the case with prejudice.

BACKGROUND

In its previous opinion issued on August 25, 2017, the Court summarized the background
of this case as follows:

Plaintiff, who is an African American female, was employed by DOE as an attorney
examiner in the Office of Hearings and Appeals (“OHA”) from August 2007
through April 2012. Plaintiff's supervisors were Ms. Ann S. Augustyn, Ms. Janet
N. Freimuth, Mr. Fred L. Brown, and Mr. Poli A. Marmolejos. Plaintiffs complaint
is based on several specific events that occurred throughout the course of her

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employment, some of which occurred during her high risk pregnancy from October
2010 through July 2011. They are as follows: 1) she was denied regular flexi-place
in February 2011; 2) she was denied medical flexi-place in February 2011; 3) she
was denied the reasonable accommodation of a chair for her pregnancy in January
and February 2011; 4) she was denied a promotion in May 2011; 5) she was issued
a fourteen day suspension on October 3, 2011; 6) she received a performance rating
of “needs improvement” on November 3, 2011; 7) she was given a counseling
memorandum on November 3, 2011; 8) she was placed on a Performance
Improvement Plan (“PIP”) on February 24, 2012; 9) DOE management refused to
return her personal banking information to her; 10) DOE officials “loaded [her]
Personal Security Investigative File and OPM File with defamatory and
inappropriate statements” thereby affecting her ability to get a security clearance;
and 11) she was terminated from her position at DOE and removed from federal
service employment on April 16, 2012.

During the course of the above described incidents, plaintiff initiated administrative
proceedings. On June 6, 2011 she initiated contact with an EEO counselor and on
January 18, 2012, filed a formal EEO complaint with the Agency’s Office of Civil
Rights (“OCR”), alleging violations of Title VII and the ADA. On February 6,
2012, she formally realleged that she had been subjected to a hostile work
environment. On May 24, 2012, after she was removed from federal service,
plaintiff added her removal as an additional issue in her EEO complaint. The
allegations described above formed the basis of plaintiffs complaint.

On January 11, 2013, the OCR issued its Final Agency Decision, finding that the
defendant had offered legitimate, nondiscriminatory reasons for the actions taken
and that plaintiff failed to demonstrate pretext. On January 28, 2013, plaintiff filed
a mixed-case appeal to the Merit Systems Protection Board (“MSPB”).
Administrative Judge Ben-Ami considered plaintiff's removal and any affirmative
defenses, but declined to consider the merits of the nine other issues raised in her
complaint regarding actions taken prior to her removal. This decision was
confirmed by MSPB Administrative Judge Clement on November 27, 2013. On
September 12, 2014 Judge Clement issued her initial decision affirming DOE’s
decision to remove plaintiff from federal service. On October 16, 2014, plaintiff
filed a petition to review the initial decision, and on July 6, 2015 received MSPB’s
final order affirming the initial decision.

ECF No. 47 at 2-3.
‘ In August of 2016, the government filed a Motion to Dismiss and for Summary Judgment
(ECF No. 18), which the Court granted in part and denied in part (ECF Nos. 46, 47).
Specifically, the Court dismissed the following claims:
e Plaintiffs Title VII intentional discrimination and retaliation claims based on (1) the denial

of regular flexi-place in February 2011; (2) the denial of medical flexi-place in February
2011; (3) the denial of the reasonable accommodation of a chair in January and February

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2011; and (4) DOE management’s refusal to return plaintiff's personal banking information
to her

Plaintiff's Rehabilitation Act intentional discrimination claims based on (1) the denial of
regular flexi-place in February 2011; and (2) DOE’s alleged refusal to return banking

information to plaintiff

Plaintiff's Whistleblower Protection Act claims

The Court did not dismiss the following claims:

Plaintiff's Title VII intentional discrimination and retaliation claims based on (1) the denial
of a promotion in May 2011; (2) the 14-day suspension issued on October 3, 2011; (3) the
performance rating of “needs improvement” on November 3, 2011; (4) the counseling
memorandum issued on November 3, 2011; (5) the PIP issued on February 24, 2012; (6)
the allegedly false and defamatory statements placed in plaintiff's Personal Security
Investigative File and OPM File; and (7) the termination on April 16, 2012

Plaintiff's Rehabilitation Act intentional discrimination claims based on (1) the denial of a
promotion in May 2011; (2) the 14-day suspension issued on October 3, 2011; (3) the
performance rating of “needs improvement” on November 3, 2011; (4) the counseling
memorandum issued on November 3, 2011; (5) the PIP issued on February 24, 2012; and
(6) the termination on April 16, 2012

Plaintiff's hostile work environment claims brought under Title VII and the Rehabilitation
Act

The Court ordered additional discovery on the surviving claims to give Ms. Webster the

opportunity to find supporting evidence. After the close of discovery, DOE filed its Renewed

Motion for Summary Judgment on August 31, 2019. For the reasons set forth below, the Court

will grant that motion.

LEGAL STANDARD

I. Summary Judgment

Summary judgment is appropriate “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). Courts must “view the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in its favor.” Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625,
629 (D.C. Cir. 2010). To show that a dispute is “genuine” and defeat a summary judgment
motion, the nonmoving party must present evidence “such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” /d. at 249-50. Furthermore, “[w]hen opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Summary judgment is also appropriate
when, “after adequate time for discovery,” the nonmoving party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial . . . since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

II. Title VII
A. Race and Sex Discrimination

Federal employment discrimination is prohibited by Title VII of the Civil Rights Act of
1964, under which it is unlawful for an employer “to discriminate against any individual with
respect to his [or her] compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 USC. § 2000e-2(a)(1). Title
VII claims that rely on circumstantial evidence—as opposed to direct evidence of
discrimination—are analyzed under the burden-shifting framework found in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the employee “must carry the
initial burden under the statute of establishing a prima facie case of . . . discrimination.” /d. at
802. In cases concerning race or sex discrimination, a prima facie case requires a showing that
“(1) [the plaintiff] 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.” Chappell-

‘Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006) (citing Brown v. Brody, 199 F.3d 446,
452 (D.C. Cir. 1999)).

If the employee establishes a prima facie case of discrimination, the burden “‘must shift to
the employer to articulate some legitimate, nondiscriminatory reason” for the adverse action.
McDonnell Douglas, 411 U.S. at 802. The employer “must clearly set forth, through the
introduction of admissible evidence, the reasons for the [action]” so as to “raise[] a genuine issue
of fact as to whether it discriminated against the plaintiff.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254-55 (1981). The employer, however, “need not persuade the court that
it was actually motivated by the proffered reasons.” Jd. at 254.

If the employer succeeds ‘in offering legitimate, nondiscriminatory reasons for the action,
“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.” /d. at 253. The plaintiff may demonstrate pretext “either directly by persuading
the court that a discriminatory reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of credence.” /d. at 256. Either
way, the plaintiff must show “both that the reason was false, and that discrimination was the real
reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Evidence of pretext may
include “the employer’s better treatment of similarly situated employees outside the plaintiff's
protected group, its inconsistent or dishonest explanations, its deviation from established

procedures or criteria, or the employer’s pattern of poor treatment of other employees in the

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same protected group as the plaintiff” as well as any “other relevant evidence that a jury could
reasonably conclude evinces an illicit motive.” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C.
Cir. 2015) (emphasis added).

Related to sex discrimination is discrimination based on pregnancy. Title VII specifically
precludes discrimination on the basis of “pregnancy, childbirth, or related medical conditions.”
42 U.S.C. § 2000e(k). It mandates that “women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all employment-related purposes . . . as other
persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k).
Plaintiffs may bring disparate treatment claims under § 2000e(k). See Young v. United Parcel

Serv., 575 U.S. 206, 212 (2015).

B. Retaliation

Title VII also prohibits retaliation for “an employee’s having opposed, complained of, or
sought remedies for unlawful workplace discrimination.” Univ. of Texas Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 342 (2013) (citing 42 U.S.C. § 2000e-3(a)). Retaliation claims are subject to the
same McDonnell Douglas burden shifting standard as discrimination claims. Walker, 798 F.3d at
1091. To establish a prima facie case of retaliation, “the plaintiff must allege that she engaged in
activity protected by Title VII, the employer took adverse action against her, and the employer
took that action because of the employee’s protected conduct.” Jd. at 1091-92. With respect to
the third element—causation—“Title VII retaliation claims must be proved according to
traditional principles of but-for causation.” Nassar, 570 U.S. at 360. Thus, “it is not sufficient for
plaintiff to demonstrate that a reasonable jury could find that retaliatory animus . . . was a cause

for [the adverse action]. Rather, plaintiff must demonstrate that there is a genuine issue of
material fact as to whether retaliatory animus was the cause for the [adverse action].” Rattigan v.
Holder, 982 F. Supp. 2d 69, 81 (D.D.C. 2013), aff'd, 780 F.3d 413 (D.C. Cir. 2015).

Once the plaintiff establishes a prima facie case, “the burden shifts to the employer to
identify the legitimate, non-discriminatory or non-retaliatory reason on which it relied in taking
the complained-of action.” Walker, 798 F.3d at 1092. Then, the plaintiff must show “that the
employer’s stated reasons were pretextual, and the real reasons were prohibited discrimination or
retaliation.” Jd. The aforementioned categories of evidence demonstrating pretext in

discrimination claims apply to retaliation claims.

C. Hostile Work Environment

Title VII also prohibits creating a hostile work environment, considering it to be a form
of discrimination. “When the workplace is permeated with ‘discriminatory intimidation, ridicule,
and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment,’ Title VII is violated.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 65, 67 (1986)). Courts are to look “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” to determine whether a hostile work environment exists.
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (citing Faragher v. City of Boca
Raton, 524 U.S. 775, 787-88 (1998)). The standard for such a claim is extremely high, and as the
D.C. Circuit has explained, “a few isolated incidents of offensive conduct do not amount to

actionable harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002).
D. Simplified McDonnell Douglas Framework
Despite its ubiquitous presence in Title VII cases, the issue of whether the plaintiff has
established a prima facie case of discrimination under McDonnell Douglas “is almost always
irrelevant.” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). “[B]y
the time the district court considers an employer’s motion for summary judgment . . . the
employer ordinarily will have asserted a legitimate, non-discriminatory reason for the challenged
decision,” which is “important because once the employer asserts a legitimate, non-
discriminatory reason, the question [of] whether the employee actually made out a prima facie
case is ‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the picture.’” Jd. (quoting
Hicks, 509 U.S. at 510-11). Therefore, the D.C. Circuit has stated:
[i]n a Title VII disparate-treatment suit where an employee has suffered an adverse
employment action and an employer has asserted a legitimate, non-discriminatory reason
for the decision, the district court need not—and should not—decide whether the plaintiff
actually made out a prima facie case under McDonnell Douglas. Rather, in considering an
employer’s motion for summary judgment or judgment as a matter of law in those
circumstances, the district court must resolve one central question: Has the employee
produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-
discriminatory reason was not the actual reason and that the employer intentionally

discriminated against the employee on the basis of race, color, religion, sex, or national
origin?

Id. at 494. This rule applies to retaliation claims as well. See Jones v. Bernanke, 557 F.3d 670,
678 (D.C. Cir. 2009).

The Brady rule, however, does not apply in every case. As the Brady Court noted, the
question of whether the plaintiff has established a prima facie case “is almost always irrelevant,”
meaning that it is sometimes still relevant. 520 F.3d at 493 (emphasis added). When an employer
challenges whether an action taken against the plaintiff was an “adverse employment action”
(which is an element of the prima facie case), courts should first determine whether the action

was legally “adverse” before deciding whether that action occurred as a result of discrimination
or retaliation. See Baloch, 550 F.3d at 1196-97; Nurriddin v. Bolden, 40 F. Supp. 3d 104, 119
(D.D.C. 2014) (Bates, J.), aff'd, 818 F.3d 751 (D.C. Cir. 2016). Furthermore, it is important to
note that the evidence used to support a plaintiff's prima facie case, such as evidence that she
was treated differently from similarly situated employees (also known as comparators), does not
become immediately irrelevant. Instead, “such evidence (or the lack of such evidence) may be
relevant to the determination at summary judgment or trial [of] whether intentional

discrimination occurred.” Brady, 520 F.3d at 494 n.2.

IfI. Americans with Disabilities Act/Rehabilitation Act

Plaintiff also brings claims under the ADA. The ADA prohibits discrimination “against a
qualified individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The term “disability” means
“(A) a physical or mental impairment that substantially limits one or more major life activities of
such individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1).' “[Mlajor life activities include, but are not limited to,
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,
and working,” as well as “the operation of a major bodily function.” 42 U.S.C. § 12102(2). A
“qualified individual” is “an individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such individual holds or desires.”

42 U.S.C. § 12111(8). The ADA excludes from its definition of “employer” the United States

 

' This is a provision of the ADA. The Rehabilitation Act specifically states that “the term ‘individual with a
disability’ means . . . any person who has a disability as defined in section 12102 of Title 42.” 29 U.S.C. §
705(20\(B).
and corporations wholly owned by the United States, meaning that it does not apply to federal
government employees. See 42 U.S.C. § 12111(5)(B)(i).

Although the ADA does not provide a remedy for federal employees, the Rehabilitation
Act (which incorporates the standards applied in ADA cases), Ward v. McDonald, 762 F.3d 24,
28 (D.C. Cir. 2014) (citing 29 U.S.C. § 794(d)), provides a remedy for federal employees
alleging disability discrimination. See Barth v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993). It
provides that “[n]o otherwise qualified individual with a disability in the United States... shall,
solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance or under any program or activity conducted by any Executive agency or by
the United States Postal Service.” 29 U.S.C. § 794(a). The Rehabilitation Act encompasses
disparate treatment claims (intentional discrimination), failure to accommodate claims, and
hostile work environment claims. Von Drasek v. Burwell, 121 F. Supp. 3d 143, 154 (D.D.C.
2015) (collecting cases).

Again, the McDonnell Douglas burden shifting framework applies to discrimination
claims brought under the Rehabilitation Act. Kersey v. Wash. Metro. Area Transit Auth., 533 F.
Supp. 2d 181, 189-90 (D.D.C. 2008), aff'd, 586 F.3d 13 (D.C. Cir. 2009). To establish a prima
facie case of discrimination under the Rehabilitation Act for disparate treatment, “a plaintiff must
show, by a preponderance of the evidence, that she ‘[has] a disability within the meaning of the
[Act]; that [she] was ‘qualified’ for the position with or without reasonable accommodation; and

399

that [she] suffered an adverse employment action because of [her] disability.’” Thompson v.

Rice, 422 F. Supp. 2d 158, 166 (D.D.C. 2006), aff'd, 305 F. App’x 665 (D.C. Cir. 2008). The
burden then shifts back to the employer to provide legitimate, nondiscriminatory reasons for the

action, and then again back to the plaintiff to demonstrate pretext. Kersey, 533 F. Supp. 2d at

10
190. Note, however, that the simplified McDonnell Douglas framework announced in Brady also
may apply to discrimination claims brought under the Rehabilitation Act. See Kersey, 586 F.3d
13, 17 n.2 (D.C. Cir. 2009); Ramsey v. Moniz, 75 F. Supp. 3d 29, 48 (D.D.C. 2014).

The ADA and the Rehabilitation Act also cover claims for hostile work environment
based on disability. See Aldrich v. Burwell, 197 F. Supp. 3d 124, 135 (D.D.C. 2016); Floyd v.
Lee, 968 F. Supp. 2d 308, 328 & n.4 (D.D.C. 2013) (noting that “[a]lthough this circuit has not
resolved the question, four circuits have found that hostile work environment claims are
available under the ADA,” and citing cases from the Tenth, Eighth, Fifth, and Fourth Circuits).
To state a prima facie case of hostile work environment, a “plaintiff must show that (1) [s]he is a
member of a protected class, in this case a ‘qualified individual with a disability;’ (2) [s]he was
subject to unwelcome harassment; (3) the harassment occurred because of [her] disability; (4) the
harassment affected a term, condition, or privilege of employment; and (5) the employer knew or
should have known of the harassment, but took no action to prevent it.” Pantazes v. Jackson, 366
F. Supp. 2d 57, 71 (D.D.C. 2005) (quoting Lester v. Natsios, 290 F. Supp. 2d 11, 22 (D.D.C.
2003)). Failure to accommodate may underlie hostile work environment claims in circumstances
wherein “the jury can weigh a wrongful denial of accommodation alongside evidence of other
harassment, and that other evidence can augment the weight of the denial by suggesting

discriminatory animus.” Floyd v. Lee, 85 F. Supp. 3d 482, 517 (D.D.C. 2015).

ANALYSIS |

J. The Negative Performance Review and Counseling Memorandum Are Not Adverse
Actions.

DOE argues that some of Ms. Webster’s claims fail because she has not alleged any
adverse action. The Court agrees that the November of 2011 performance review and counseling

memorandum do not constitute legally cognizable adverse actions. To qualify as an adverse

1]
action, there must be “a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing
significant changes in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003). Notably,
“not everything that makes an employee unhappy is an actionable adverse action.” Russell v.
Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). Rather, an entdiovas actions must affect a term,
condition, or privilege of employment or future employment opportunity. Ortiz-Diaz v. U.S.
Dep't of Hous. & Urban Dev., 867 F.3d 70, 73 (D.C. Cir. 2017).

Looking first at the negative performance review that Ms. Webster received in November
of 2011, “performance reviews typically constitute adverse actions on/y when attached to
financial harms, such as evaluations that could affect the employee’s position, grade, level,
salary or promotion opportunities.” Baloch, 550 F.3d at 1199 (emphasis added). In the years
since the Ortiz-Diaz decision, courts have continued to find that negative annual performance
appraisals and improvement plans do not constitute adverse actions absent evidence of a change
in the employee’s benefits, responsibilities, or job titles.” See, e.g, Walden v. Patient-Centered
Outcomes Research Inst., 304 F. Supp. 3d 123, 136-37 (D.D.C. 2018). Even after the opportunity
for full discovery, Ms. Webster has been unable to demonstrate that the performance review in
question had a negative financial impact. She points to the agency’s refusal to promote her in
May of 2011, but that decision came approximately six months before the negative review,
meaning that the review could not possibly have been the basis for denial of a promotion.

Therefore, the performance review in this case does not constitute an adverse action.*

 

* In its previous Memorandum Opinion, the Court noted that as of August of 2017, the effects of the Ortiz-Diaz
decision were still uncertain. See ECF No. 47 at 16.

* Even if the negative performance review did constitute an adverse action, the Court would still grant summary
judgment for the defense for the reasons explained in later sections of this Memorandum Opinion.

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Similarly, Ms. Webster has been unable to show that the counseling memorandum
constituted an adverse action. Courts both before and after the Ortiz-Diaz decision have held that
counseling memoranda are generally not adverse actions. See, e.g., Jimenez v. McAleen, 395 F.
Supp. 3d 22, 39 (D.D.C. 2019) (finding that a non-abusive counseling email did not constitute an
adverse action); Tillman v. Barr, 2019 U.S. Dist. LEXIS 103463, 1:17-cv-475 at *24-25 (D.D.C.
June 20, 2019) (holding that a letter of reprimand with job-related criticisms and no abusive
language was not an adverse action under Title VII). The counseling memorandum in this case
was not abusive in tone and was a routine way to help an employee who had received a negative
review learn how to improve. Therefore, the counseling memorandum does not constitute an
adverse action.’

In her opposition, Ms. Webster attempts to argue that these are adverse actions because
they negatively affected future employment prospects. She claims that she has had to disclose the
negative performance evaluation when applying for new jobs. This argument, however,
represents a fundamental misunderstanding of the law. When analyzing whether an action is
adverse, the Court must look only at the action’s impact on the position that the plaintiff held at
the time, not at the impact that it had on future jobs with employers other than the defendant.
Therefore, even if the negative performance evaluation and counseling memorandum have
negatively impacted her job search, they still do not constitute adverse actions for the purposes of
this case. Similarly, her argument about the performance review and/or memorandum negatively
impacting her chances of obtaining a within-grade increase at DOE also fails because it is purely
speculative; she has provided no evidence that she was even being considered for an increase,

nor has she provided evidence that these actions had any impact on such a decision. Therefore,

 

4 Even if the counseling memorandum did constitute an adverse action, the Court would still grant summary
judgment for the defense for the reasons explained in later sections of this Memorandum Opinion.

13
Ms. Webster has failed to show that either the performance review or counseling memorandum
constituted an adverse action.

II. The Agency Had Legitimate, Nondiscriminatory, Nonretaliatory Reasons for Any
Adverse Actions Taken Against Ms. Webster.

To the extent that DOE did take adverse actions against Ms. Webster, it had legitimate,
nondiscriminatory, nonretaliatory reasons for doing so. Looking first at the denial of a promotion
in May 2011, the agency clearly had legitimate reasons for refusing to promote Ms. Webster
from GS-13, Step 3 to GS-14. The evidence supports DOE’s argument that she would not have
been able to perform at the GS-14 level. Her 2009 performance review (which is not a basis for
this lawsuit) indicated that she needed improvement, and her supervisor had repeatedly told her
that she needed to improve the quality of her work and be more mindful of deadlines. Despite
these critiques from both her direct supervisor and her second-line supervisor, there is no
evidence that she improved the quality of her work. Inability to perform at a higher level is a
legitimate reason for denying someone a promotion. Because (as explained below) Ms. Webster
has been unable to show that DOE’s stated basis for denying her a promotion was merely
pretextual, and no reasonable juror could find otherwise, summary judgment for the defense is
appropriate.

Turning to Ms. Webster’s 14-day suspension in October of 2011, the evidence shows that
the agency had legitimate, nondiscriminatory, nonretaliatory reasons for issuing such a
suspension. Ms. Webster frequently exhibited disrespectful behavior and engaged in
inappropriate conduct in the workplace. She had previously been suspended for one day in
February of 2010 (which is not a basis for this lawsuit), yet her behavior never improved. She

was known to yell at supervisors and frequently engaged in name-calling while blatantly refusing

14
to complete the tasks that were assigned to her. DOE documented numerous incidents suggesting
that she had an anger-management problem, an example being her sending of malicious emails.
She was also routinely late to work. These are merely a few of the many facts that DOE cites in
explaining her suspension. Furthermore, upon receiving notice of her suspension, Ms. Webster
did not even try to deny that the events prompting her suspension had occurred. Because (as
explained below) Ms. Webster has been unable to show that DOE’s stated basis for issuing a 14-
day suspension was merely pretextual, and no reasonable juror could find otherwise, summary
judgment for the defense is appropriate.

Even if the negative 2011 performance review did constitute an adverse action, the
evidence shows that there were legitimate, nondiscriminatory, nonretaliatory reasons for giving a
rating of “Needs Improvement.” Quite simply, Ms. Webster failed to adequately perform her
duties. In 2011, four of her assignments were either untimely or not well-written. For example,
her supervisor assigned her a research project in early June of 2011 which should have taken
mere hours to complete. Her supervisor repeatedly asked her about the assignment’s status, but
Ms. Webster went on maternity leave on July 1, 2011 without ever having completed it.
Similarly, even if the counseling memorandum did constitute an adverse action, the evidence
shows that it was not issued for discriminatory or retaliatory reasons. DOE issued the
memorandum to assist Ms. Webster in improving her job performance. For example, it
recommended keeping better track of deadlines and contained suggestions for strengthening her
time-management skills. It is also worth noting that a counseling memorandum is mandatory
when an employee receives a rating of “Needs Improvement,” so if the negative review was
legitimate, it likely follows that the counseling memorandum was also legitimate. Because (as

explained below) Ms. Webster has been unable to show that DOE’s stated reasons for issuing a

15
negative performance review and subsequent counseling memorandum in 2011 were merely
pretextual, and no reasonable juror could find otherwise, summary judgment for the defense is
appropriate.

Looking at the February of 2012 PIP, the evidence shows that it was based on legitimate,
nondiscriminatory, nonretaliatory reasons. Ms. Webster was told that she had 90 days to improve
her performance after receiving the counseling memorandum, yet she failed to do so. This is why
she was placed on a PIP, which was designed to help her improve her performance. It was not
discriminatory or retaliatory—in fact, it demonstrates that even after she refused to change her
behavior upon DOE’s issuance of the counseling memorandum, the agency still made an effort
to help her keep her job. Because (as explained below) Ms. Webster has been unable to show
that DOE’s stated reasons for placing her on a PIP were merely pretextual, and no reasonable
juror could find otherwise, summary judgment for the defense is appropriate.

Moving to the statements in her OPM and security files, the evidence shows that these
statements were not made for discriminatory or retaliatory reasons. Ms. Webster cannot show
that her supervisors made statements that they knew to be false, which is required for the
Rattigan exception to apply, meaning that this claim cannot move forward.° Even if the claim
could proceed, the government would still prevail on the merits. Ms. Webster is unable to show
that these statements were false, let alone knowingly false. If anything, the evidence seems to
confirm the truth of the statements at issue. The agency’s Renewed Motion for Summary
Judgment reviews the evidence supporting these allegedly false statements in great detail. See

ECF No. 70 at 16-20. Essentially, the evidence shows that the following is all true (or, at the very

 

° In Rattigan v. Holder, the D.C. Circuit held that in some cases, the Supreme Court’s holding in Dep’t of the Navy
v. Egan, 484 U.S. 518 (1988), would not bar a claim if the plaintiff “can show that agency employees acted with a
retaliatory or discriminatory motive in reporting or referring information that they knew to be false.” 689 F.3d 764,
767 (D.C. Cir. 2012).

16
least, that Ms. Webster’s supervisors did not knowingly make false statements regarding the
following): (1) Ms. Webster had a problem with authority and frequently yelled at and spoke
disrespectfully to her supervisors; (2) Ms. Webster willfully disregarded rules and directives, as
exemplified by her refusal to comply with any counseling memoranda; (3) Ms. Webster had
anger-management problems and often engaged in name-calling; (4) Ms. Webster did not handle
stress well and would lash out at her supervisors; (5) Ms. Webster used email irresponsibly and
maliciously; (5) Ms. Webster engaged in self-destructive conduct that raised questions about her
mental stability; (6) Ms. Webster exhibited poor judgment and refused to adjust her behavior
despite numerous warnings; and (7) Ms. Webster did not perform the tasks that she was assigned
or performed them poorly and was unable to meet deadlines. All of these allegations are
supported by the ample documentation that DOE provided, and Ms. Webster has failed to refute
(or even attempt to refute) the veracity of these statements. She has also failed to show that her
supervisors actually knew them to be false.® Because (as explained below) Ms. Webster has been
unable to show that the statements were knowingly false or that DOE’s rationale for placing
them in her file was merely pretextual, and no reasonable juror could find otherwise, summary
judgment for the defense is appropriate.

Finally, the evidence shows that DOE had legitimate, nondiscriminatory, nonretaliatory
reasons for terminating Ms. Webster’s employment in April of 2012. The facts already described
in this Memorandum Opinion coupled with the rationale stated in DOE’s termination letter are
more than sufficient to justify her removal. The following are excerpts from the April 5, 2012
removal letter:

... Based on the record, I find that you (1) inappropriately delayed nearly one week,
from February 12, 2012 to February 27, 2012, in picking up files of two cases

 

6 The Rattigan standard requires actual knowledge of falsehoods. The fact that someone should have known that the
statements were false is insufficient. Rattigan, 780 F.3d 413, 418 (D.C. Cir. 2015).

17
assigned to you, despite requests from your supervisor to do so; and (2) failed to
attend scheduled meetings with your supervisor on February 28, 2012 and March
6, 2012, despite being instructed to do so.

... | have thoroughly reviewed the record before me, and I find the documentation
cited by the proposing official credible. In the Notice of Proposed Removal, you
were advised of your right to respond orally, in writing, or both within 10 calendar
days from the date of receipt. You received the Notice of Proposed Removal on
March 14, 2012 and did not file an oral or written response. I find that the specific
reasons for the proposal to remove you from your position and from Federal service
are supported by the record and therefore are sustained.

. .. My decision also takes into account your history of misconduct, for which you
have received three disciplinary actions: (1) a one-day suspension issued to you on
February 24, 2012, based upon three documented incidents of misconduct from
August 2009 through January 2010; (2) a 5-day suspension issued to you on May
21,2010, based on inappropriate behavior towards your supervisor and your failure
to comply with her instructions set forth in a March 16, 2010, counseling
memorandum, and (3) a 14-day suspension issued to you on October 27, 2011, as
a result of disrespectful and argumentative behavior towards your supervisor. These
previous disciplinary actions should have put you on notice that misconduct of this
nature is unacceptable. The previous disciplinary actions cautioned you that further
offenses would lead to progressively severe discipline, up to and including removal.
Notwithstanding these warnings, you have continued to display disrespectful
conduct towards your supervisor.

I also considered your potential for rehabilitation. During the interim following
each of the disciplinary actions described in the foregoing paragraph, you were
encouraged and given a full opportunity to rehabilitate your behavior. You not only
neglected to do so, but continued to display similar misconduct. At no point did you
indicate you were in any way contrite. I therefore have no confidence that you will
not engage in similar incidents of misconduct in the future.
Finally, I considered whether there are any mitigating factors and I find that there
are none. The effect of your continued conduct has been that everyday office-
related encounters cannot be effectively carried out.
ECF No. 70-5 at 10-12. Ms. Webster has identified no evidence suggesting that race, gender, or
pregnancy were plausible bases for DOE’s decision to terminate her. See Johnson v. Perez, 823
F.3d 701, 703 (D.C. Cir. 2016) (explaining that “no reasonable juror could find that the

[defendant’s] stated, nondiscriminatory reasons for dismissing [plaintiff] were not its real

reasons” when plaintiff was clearly terminated due to deficient performance and argumentative

18
responses to supervisor feedback). Because (as explained below) Ms. Webster has been unable to
show that the stated reasons for her termination were merely pretextual, and no reasonable juror
could find otherwise, summary judgment for the defense is appropriate.

In her opposition, Ms. Webster tries—and fails—to demonstrate pretext. One method she
uses to try and show such pretext is providing evidence of two supposed comparators. Quite
simply, she has failed to prove that she was similarly situated to either one of them. Looking first
at Diane DeMoura, a white female who was supposedly promoted three grade levels in the same
amount of time that Ms. Webster was promoted one grade level, Ms. Webster has brought forth
no evidence that Ms. DeMoura had any of the same behavioral or performance issues as Ms.
Webster. It does not appear that Ms. DeMoura refused to complete assignments, repeatedly
arrived late to work, yelled at supervisors, misused her email, etc. Therefore, no reasonable juror
could find that Ms. DeMoura is an adequate comparator. Moving to Steven Fine, it is true that he
received a letter reprimanding him for unbecoming behavior after he got angry and cursed during
a meeting with a supervisor. This, however, is merely one incident—there is no evidence that
Mr. Fine engaged in repeated improper behavior, nor is there any indication that he refused to
complete assignments or turned in poor work product. Therefore, no reasonable juror could find
that Mr. Fine is an adequate comparator.

Ms. Webster also tries to argue that she was mistreated after obtaining certain
accommodations for her pregnancy. In short, she provides no supporting evidence for this claim.
The Court gave her ample opportunity to take full discovery, yet she has come up with no
credible documentation or statements from witnesses that would lead the Court to believe there is
any truth to this argument. It is not sufficient simply to say, “I was mistreated after I obtained

accommodations for my pregnancy.” Instead, Ms. Webster needs to show a direct causal link

19
between the accommodations and alleged mistreatment, which she has been entirely unable to
do. Of course, as the D.C. Circuit explained in Colbert v. Tapella, a plaintiff does not have to
show that discrimination or retaliation was the actual reason for the adverse action. See 649 F.3d
756, 760 (D.C. Cir. 2011) (finding that the District Court erred in requiring plaintiff to show not
only that defendant’s supposedly legitimate reason was pretextual, but also that discrimination
was the actual reason for the adverse action). In order to survive summary judgment, however,
Ms. Webster still does have to show some evidence that could lead the fact-finder to believe that
DOE may have acted based on retaliation or discrimination. In light of the complete paucity of
evidence regarding but-for causation, no reasonable juror could find that DOE took any adverse
actions against Ms. Webster due to her receipt of accommodations for her pregnancy. Therefore,
the Court must grant summary judgment for the defense.

Finally, Ms. Webster attempts to convince this Court that DOE’s actions were retaliatory
through a timeline she created showing the alleged adverse actions and how they supposedly
correspond with her EEO activity. Apparently, she expects the Court to read this timeline and
infer that DOE’s motives must have been retaliatory. This timeline neither establishes a prima
Jacie case of retaliation nor demonstrates pretext. Although suspicious timing can in some cases
be evidence of retaliation, the evidence here overwhelmingly shows that Ms. Webster was fired
for her misconduct and inability to complete assigned tasks, not for any retaliatory reasons. Her
timeline does not overcome the substantial evidence DOE has presented to demonstrate that it
fired her for legitimate reasons. In coming to this conclusion, the Court is not merely weighing
the plaintiff's evidence against DOE’s evidence—rather, the Court has determined that in light of
this evidence, no reasonable juror could find that DOE’s stated reasons for firing her were mere

pretext, meaning that the Court must grant summary judgment for the defense.

20
III. Ms. Webster Was Not Subjected to a Hostile Work Environment.

Ms. Webster has failed to meet the high bar to show that DOE “is permeated with
discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive working environment.” Harris, 510 U.S.
at 21. Quite simply, the evidence does not support Ms. Webster’s version of events. More
importantly, however, even if the Court assumed that Ms. Webster’s allegations were true, those
allegations do not amount to a successful hostile work environment claim. As previously
explained, all of DOE’s allegedly unlawful actions were the result of Ms. Webster’s own
misconduct. Courts have firmly rejected hostile work environment claims that are based on
supervisors’ work-related actions or plaintiffs mere dissatisfaction with the job. For example,
the Court in Bonnette v. Shinseki rejected a hostile work environment claim based on the
plaintiff's placement on PIP, her supervisors’ micromanagement of her work, and written
admonishment. See 907 F. Supp. 2d 54, 81 (D.D.C. 2012). Similarly, the Court in Brooks v.
Grundmann rejected a hostile work environment claim based on supervisors’ criticisms of
plaintiff's work and issuance of negative performance reviews, finding these actions to be well
within the bounds of normal supervisory actions. See 851 F. Supp. 2d 1, 6-7 (D.D.C. 2012).
Courts have even rejected hostile work environment claims in cases with far more severe
allegations than the ones present here. See, e.g., Holmes-Martin v. Sebelius, 693 F. Supp. 2d 141,
165 (D.D.C. 2010) (rejecting a hostile work environment claim that was based on public
criticism, reduced responsibilities, exclusion from meetings, and unrealistic deadlines); Franklin
v. Potter, 600 F. Supp. 2d 38, 77 (D.D.C. 2009) (rejecting a hostile work environment claim that
was based on plaintiff's allegations that he was repeatedly yelled at and threatened with job-

related consequences for refusal to meet workplace expectations); Nurriddin, 674 F. Supp. 2d at

21
93-95 (rejecting a hostile work environment claim that was based on plaintiffs supervisor
making disparaging remarks about plaintiff's EEO complaints and attempting to end plaintiff's
eligibility for workers’ compensation). Essentially, the evidence shows that Ms. Webster was an
exceedingly poor government employee who is now trying to turn around and blame DOE for
her own failures. The Court will not allow her wholly unsupported hostile work environment
claim to proceed any further. Because no reasonable juror could find that Ms. Webster was
subjected to a hostile work environment, summary judgment for the defense is clearly

appropriate.

CONCLUSION
Based on the foregoing, the Court will GRANT Defendant’s Renewed Motion for

Summary Judgment (ECF No. 70).
It will be ORDERED that this case is DISMISSED with prejudice.

A separate Order accompanies this Memorandum Opinion.

Date: i) Ipo | 2o20 Cy, CQ, Prd

Royce C. Lamberth
United States District Court Judge

 
