BRISCOE v. KERRYBRISCOE v. KERRY
Plaintiff Ann Briscoe brings this action against John Kerry, in his capacity as Secretary of State, alleging that she suffered discrimination on the basis of her age, race, and disability, and that she suffered retaliation for engaging in protected activity, in violation of
Ms. Briscoe—an African-American woman who was born in April 1956, Report of EEO Investigation, ECF No. 7-1 at 1—was employed with the Media Resource Unit of the State Department‘s Bureau of Public Affairs. See Def.‘s Statement of Material Facts (“Def.‘s SMF“), ECF No. 7-8 ¶ 1; Pl.‘s Statement of Material Facts (“Pl.‘s SMF“), ECF No. 11 at 7 ¶ 1. She has a physical disability that limits her “ability to reach, stand or push.” Compl., ECF No. 1 at 2. This disability is mentioned in her State Department personnel file, and has been known to the State Department since 2001. See id.; Def.‘s SMF ¶ 8; Pl.‘s SMF ¶ 3.
A. Ms. Briscoe‘s Experience in the Rapid Response Unit.
The Media Resource Unit was abolished in 2006, and Ms. Briscoe was forced to find a job in the newly formed Rapid Response Unit. See Def.‘s SMF ¶ 1; Pl.‘s SMF ¶ 1. The State Department “did not offer her assistance walking to Department offices in search of alternative employment.” Def.‘s SMF ¶ 8; Pl.‘s SMF ¶ 3. The Rapid Response Unit was then led by Duncan McAnnis, who supervised Ms. Briscoe from January 2006 through June 2007. See Def.‘s SMF ¶ 4; Pl.‘s SMF ¶ 3. Prior to Ms. Briscoe‘s transfer to the Rapid Response Unit, Mr. McAnnis said “out with the old in with the new,” a statement that Ms. Briscoe did not hear, but “another employee told her about the comment.” Def.‘s SMF ¶¶ 5–6; Pl.‘s SMF ¶ 3. At this time, Mr. McAnnis also hired and
“[D]uring an unspecified period of time[, Ms. Briscoe] was tasked with helping new staffers sign-in in the building‘s lobby, located two floors beneath her own office,” which was difficult due to her disability. See Def.‘s SMF ¶ 9; Pl.‘s SMF ¶ 3. Ms. Briscoe was also “the only African American in [the Rapid Response Unit] and felt segregated and singled out.” Def.‘s SMF ¶ 11; Pl.‘s SMF ¶ 3. Ms. Briscoe, however, “has not observed any employee at [the Rapid Response Unit] make a derogatory statement about race” or about her disability. Def.‘s SMF ¶ 12, 29–30; Pl.‘s SMF ¶ 3, 10–11. In 2006 and 2007, Ms. Briscoe received neither a performance rating nor an annual review, making her ineligible for promotion. See Def.‘s SMF ¶ 13; Pl.‘s SMF ¶ 3.
Beginning in September or October 2007, Jennifer Barnes became Ms. Briscoe‘s supervisor. See Def.‘s SMF ¶ 4; Pl.‘s SMF ¶ 3. Upon Ms. Barnes‘s arrival, she “met individually with all [Rapid Response Unit] staff except for Plaintiff and inquired as to Plaintiff‘s status in the [Rapid Response Unit] but not that of other employees.” Def.‘s SMF ¶ 14; Pl.‘s SMF ¶ 3. Ms. Briscoe was also isolated from the staff during their daily morning meetings. See Def.‘s SMF ¶ 15; Pl.‘s SMF ¶ 3. Nonetheless, “[p]laintiff received an outstanding rating for 2008 and an
B. Ms. Briscoe Pursues Administrative Proceedings Regarding Her Discrimination Claims.
On February 25, 2009, Ms. Briscoe contacted an EEO Counselor for the first time. See Def.‘s SMF ¶ 16; Pl.‘s SMF ¶ 3; EEO Counselor‘s Report, ECF No. 7-3 at 1. Her formal discrimination complaint was filed on March 25, 2009. See Def.‘s SMF ¶ 17; Pl.‘s SMF ¶ 4; Formal Complaint of Discrimination, ECF No. 7-2. That complaint alleged discrimination on the basis of race, age, and physical disability, and the creation of a hostile work environment. Id. at 2, 3.
Before this complaint was filed, Ms. Briscoe worked the night shift alone; after the complaint was filed, another employee began sharing the shift with her some nights and monitoring her work. See Def.‘s SMF ¶ 18; Pl.‘s SMF ¶ 5. On March 26, 2009, Ms. Barnes informed Ms. Briscoe that she would have her first-ever annual review the following day. See Def.‘s SMF ¶ 19; Pl.‘s SMF ¶ 5. During the review, Ms. Barnes referred repeatedly to Ms. Briscoe‘s EEO complaint and asked Ms. Briscoe to take on additional tasks. See Def.‘s SMF ¶ 20; Pl.‘s SMF ¶ 5. Following the review, Ms. Barnes “reached to grab hold” of Ms. Briscoe. Def.‘s SMF ¶ 21; Pl.‘s SMF ¶ 5.
On March 30, 2009, Ms. Briscoe filed an addendum to her preexisting EEO complaint, alleging retaliation based upon Ms. Barnes‘s behavior on March 27, 2009. See Def.‘s SMF ¶ 22; Pl.‘s SMF ¶ 6. A formal complaint was filed the following day. See Def.‘s SMF ¶ 22; Pl.‘s SMF ¶ 6; Formal Retaliation Complaint, Ex. 3 to Pl.‘s Opp., ECF No. 11 at 70–71.
On April 8, 2011—after the EEOC had granted the State Department‘s motion for summary judgment in Ms. Briscoe‘s discrimination case—Ms. Briscoe received notice that the retaliation claim would proceed under case number DOS-F-047-11. See Letter, Ex. 3A to Pl.‘s Opp., ECF No. 11 at 73–75; Pl.‘s SMF ¶ 6. Ms. Briscoe responded on April 17, 2011 to contest the assignment of a new case number on the ground that the retaliation claim “is included in the current case“—i.e. the case involving her discrimination claims. See Letter, Ex. 3B to Pl.‘s Opp., ECF No. 11 at 76–77. At that point, however, summary judgment had already been granted to the State Department in that case, in a decision that made no mention of any retaliation claim. See Decision, ECF No. 7-4 at 2–11.
Ms. Briscoe‘s retaliation case was dismissed in a final decision issued on February 9, 2012. See Final Decision, ECF No. 7-6. The decision found that she had failed to respond to
D. Procedural History of This Lawsuit.
Ms. Briscoe filed this action pro se on August 5, 2013. See Compl., ECF No. 1. She seeks as relief $45,000,000 in damages, and an assurance “that there will be no harm brought to me or further threats against me by the State Department.” Id. at 7. The State Department subsequently moved to dismiss or, in the alternative, for summary judgment. See Mot. to Dismiss or for Summ. J. (“Mot.“), ECF No. 7. Ms. Briscoe filed an opposition to that motion. See Opp. to Mot. (“Opp.“), ECF No. 11. The State Department has filed a reply in further support of its motion. See Reply in Supp. of Mot. (“Reply“), ECF No. 14. The motion is ripe for resolution by the Court.
II. Standard of Review
Summary judgment is appropriate when the moving party shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.
To survive a motion for summary judgment, however, the requester “must do more than simply show that there is some metaphysical doubt as to the material facts“; instead, the nonmoving party must come forward with “‘specific facts showing that there is a genuine issue for trial.‘” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting
III. Analysis
The State Department argues that it is entitled to judgment on nearly all of Ms. Briscoe‘s claims due to her failure to exhaust administrative remedies. The State Department also asserts that Ms. Briscoe‘s claims all fail on the merits. The Court agrees that Ms. Briscoe‘s disability-discrimination claims, her retaliation claims, and one of her discrete-act race discrimination claims must be dismissed for failure to exhaust. The Court also finds that the State Department is entitled to judgment on the merits of the remaining claims.
A. Applicable Law
1. Administrative Exhaustion Under Title VII, the ADEA, and the Rehabilitation Act.
Under Title VII and the ADEA, “[a]dministrative exhaustion . . . is an affirmative defense that defendant has the burden to plead and prove.” Carty v. District of Columbia, 699 F. Supp. 2d 1, 2 (D.D.C. 2010). Under Title VII, a lawsuit must be filed “‘[w]ithin 90 days of receipt of notice’ of the defendant agency‘s [Final Agency Decision].” Woodruff v. Peters, 482 F.3d 521, 525 (D.C. Cir. 2007) (quoting
The Rehabilitation Act, “limits judicial review to employees ‘aggrieved by the final disposition’ of their administrative
These distinctions aside, “[t]he procedures governing administrative processing of discrimination complaints brought by employees of the federal government under the ADEA, Title VII, and the Rehabilitation Act are set forth in
Administrative remedies must generally be timely exhausted in accordance with these requirements before a case may proceed in federal court. See, e.g., Bowden, 106 F.3d at 437. “[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the [applicable] time period after the discrete discriminatory act occurred.” Morgan, 536 U.S. at 113. “Courts in this district disagree, however, about whether plaintiffs must exhaust allegations of discrimination and retaliation that are related to prior administrative charges.” Hicklin v. McDonald, No. 14-1569, 2015 WL 3544449, at *2 (D.D.C. June 8, 2015). One side of the debate holds that this is not possible, and that each discrete act must be separately exhausted. See id. Another side finds that claims “must arise from the administrative investigation that can reasonably be expected to follow the charge of discrimination.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). At a minimum, however, claims
2. Prima Facie Case Under Title VII and the ADEA.
Where, as here, a plaintiff offers no direct evidence of discrimination, “to survive summary judgment and earn the right to present her case to a jury, she must resort to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).” Barnette v. Chertoff, 453 F.3d 513, 515 (D.C. Cir. 2006). Under this framework, Ms. Briscoe must show “that: ‘(1) [s]he is a member of a protected class; (2) [s]he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.‘” Burley v. Nat‘l Passenger Rail Corp., 33 F. Supp. 3d 61, 68 (D.D.C. 2014) (quoting Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)). An adverse employment action is not limited to “‘hirings, firings, promotions, or other discrete incidents.” Doe v. Gates, 828 F. Supp. 2d 266, 270 (D.D.C. 2011) (quoting Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)). That said, “‘a plaintiff must show materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment such that a trier of fact could find objectively
B. Ms. Briscoe‘s Age-Discrimination Claims
Ms. Briscoe‘s age-discrimination claims relate to two actions of Mr. McAnnis: (1) his statement “out with the old in with the new“; and (2) his hiring of and giving more favorable treatment to younger staffers. See Compl., ECF No. 1 at 2.
1. Ms. Briscoe Did Not Exhaust Her Age-Discrimination Claims, But May Obtain Equitable Tolling.
Administrative documents make clear that both actions occurred in the process of the reorganization of the Media Resource Unit and the creation of the Rapid Response Unit in 2005 and 2006. See Formal Complaint of Discrimination, ECF No. 7-2 at 4. It is undisputed, however, that Ms. Briscoe first contacted her EEO counselor on February 25, 2009. See Def.‘s SMF ¶ 16; Pl.‘s SMF ¶ 3; EEO Counselor‘s Report, ECF No. 7-3 at 1. Accordingly, any discrete acts of discrimination arising in 2005 or 2006 occurred far more than forty-five days earlier than this date and were not timely exhausted.
Ms. Briscoe appeared to plead in her opposition brief an argument that may support equitable tolling of this requirement. “[W]ith respect to ADEA claims, this Circuit has noted that ‘the timeliness and exhaustion requirements of [the ADEA] are subject to equitable defenses and are in that sense non-
2. Ms. Briscoe Has Failed to State a Prima Facie Case for Discrimination Under the ADEA.
In any event, Ms. Briscoe‘s age-discrimination claims must be dismissed because she has failed to make out a prima facie case. It is undisputed that she falls within the ADEA‘s protected class of individuals over forty years of age. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000); Report of EEO Investigation, ECF No. 7-1 at 1. Ms. Briscoe, however, does
C. Ms. Briscoe‘s Disability-Discrimination Claims
Ms. Briscoe‘s claims regarding disability discrimination relate to the following actions: (1) the abolition of her job, after which she “was ordered to find my own job in six weeks which involved walking the lengthy halls which included going to other Annex buildings“; and (2) being “asked over a period of time to go to [a] lobby located two flights down and sign in new staffers who did not have a security clearance.” Compl., ECF No. 1 at 2. The abolition of her job relates to the time period in 2005 and 2006 when the Media Resource Unit was disbanded. See Formal Complaint of Discrimination, ECF No. 7-2 at 4. Ms. Briscoe has provided no indication of when the second event took place.
Again, it is undisputed that Ms. Briscoe first contacted her EEO counselor on February 25, 2009. See Def.‘s SMF ¶ 16; Pl.‘s SMF ¶ 3; EEO Counselor‘s Report, ECF No. 7-3 at 1. Accordingly, the 2005 and 2006 time period when she was allegedly forced to walk the hallways of the State Department to secure a new position is well outside the counseling timeframe. As for the requirement that Ms. Briscoe walk down two flights of stairs to sign in other staffers, the record contains no information from which the Court could determine whether those discrete acts were timely raised in counseling. For that reason, and because the plaintiff bears the burden of pleading and proving
D. Ms. Briscoe‘s Race-Discrimination Claims
Ms. Briscoe‘s claims regarding race discrimination relate to a handful of events, as best the Court can discern: (1) while Mr. McAnnis was still Ms. Briscoe‘s supervisor, he failed to provide her a review or performance rating for two years, thereby preventing her from being promoted; (2) Ms. Briscoe was the only African-American in the Rapid Response Unit and felt singled out and segregated; (3) Ms. Barnes questioned other employees about
1. The 2006–2007 Events Were Not Properly Exhausted.
Ms. Briscoe‘s first allegation—that Mr. McAnnis failed to provide her a performance review for two years—relates to events in 2006 and 2007. As the Court has noted, Ms. Briscoe‘s administrative contact began on February 25, 2009. See Def.‘s SMF ¶ 16; Pl.‘s SMF ¶ 3; EEO Counselor‘s Report, ECF No. 7-3 at 1. Because this far exceeds the forty-five-day counseling period, Ms. Briscoe did not properly exhaust this claim. Nor did she appear to argue that equitable tolling should apply. Accordingly, judgment is granted for the defendant on this portion of the claim.5
The remainder of Ms. Briscoe‘s race-discrimination claim cannot survive because she failed to plead or provide evidence of having suffered any adverse employment action in connection with these events. “When asserting a race discrimination claim under Title VII, the plaintiff must allege two essential elements: 1) that the plaintiff suffered an adverse employment action, and 2) that the adverse employment action was the result of plaintiff‘s race.” Burkes, 953 F. Supp. 2d at 973 (citing Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008)). Ms. Briscoe cannot satisfy the first element because the events she alleges, at most, relate to the general working environment, not any “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). Even recognizing that an adverse employment action need not be as formal as termination or demotion, none of the events described by Ms. Briscoe relate to “materially adverse consequences affecting the terms, conditions, or privileges of
E. Ms. Briscoe‘s Retaliation Claims
Ms. Briscoe‘s retaliation claims relate to events that occurred in the immediate aftermath of her filing of an EEO complaint alleging discrimination in March 2009. The allegations are as follows: First, after the EEO complaint was filed, another employee was assigned to work the night shift along with Ms. Briscoe and that employee appeared to be monitoring her. See Def.‘s SMF ¶ 18; Pl.‘s SMF ¶ 5. Second, during a March 27, 2009 meeting with Ms. Barnes, Ms. Barnes allegedly held an unexpected annual review, referred repeatedly to Ms. Briscoe‘s EEO complaint, asked Ms. Briscoe to take on additional tasks, and
Unlike for many of her discrimination claims, Ms. Briscoe timely contacted an EEO counselor regarding these incidents. See Formal Retaliation Complaint, Ex. 3 to Pl.‘s Opp., ECF No. 11 at 70–71; Def.‘s SMF ¶ 22; Pl.‘s SMF ¶ 6. The problem arose, for administrative exhaustion purposes, after she received the final agency decision in her retaliation case, which was issued on February 9, 2012. See Final Decision, ECF No. 7-6. Upon receipt of that decision, Ms. Briscoe had ninety days to file a civil action. See
Nor can Ms. Briscoe‘s retaliation claims—which were subject to a separate administrative process-be piggybacked onto the timely filed civil action contesting the administrative decision on her discrimination claims. For one, allowing such a circumventing of administrative deadlines where the retaliation claims were
F. Ms. Briscoe‘s Claims Regarding the Administrative Process.
In her opposition brief, Ms. Briscoe appeared to raise various claims regarding deficiencies in the administrative processing of her various claims. See Opp. at 3–5. To the extent that these claims sought to raise separate allegations of retaliation—that is, that the defendant retaliated against her for filing EEO complaints by delaying and undermining the investigation of her complaint—such claims have been found to be improper. See, e.g., Diggs v. Potter, 700 F. Supp. 2d 20, 46 (D.D.C. 2010) (“[T]here is no cause of action for federal employees to bring retaliation or discrimination claims based on complaints of delay or interference in the investigative process.“) (quotation marks omitted). To the extent that she seeks to raise an independent claim regarding this administrative processing, the D.C. Circuit has held “that Congress has not authorized, either expressly or
IV. Conclusion
For the foregoing reasons, the Court addresses defendant‘s motion as one for summary judgment and GRANTS that motion. An appropriate Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
July 2, 2015