Cheatham v. HolderCheatham v. Holder
- Reporters:
- ,
- Before:
- Rosemary M. Collyer
Richard Cheatham, a paralegal employed in the United States Attorney’s Office in Washington, D.C., alleges that his employer discriminated against him on the basis of his gender and then retaliated against him for complaining about the alleged discrimination. Mr. Cheatham applied for four different supervisory paralegal positions that the United States Attorney’s Office filled with four women. Mr. Cheatham contacted an equal employment opportunity counselor and complained about two non-selections. After counseling and informal settlement efforts, Mr. Cheatham filed a formal administrative complaint, which was accepted as raising discrimination claims as to the same two non-selections. Prior to a hearing before an administrative judge, Mr. Cheatham sought to add the other two positions to his complaint, but the judge twice rejected Mr. Cheatham’s motion. This lawsuit alleges gender discrimination in his non-selection for the two positions that were not investigated. Mr. Cheatham also claims that he has twice experienced retaliation as a result of his equal employment opportunity activity. The Attorney General moves for summary judgment, arguing that Mr. Cheatham’s failure to exhaust his administrative remedies bars his discrimination claims and that he has shown a nondiscriminatory reason for the USAO’s alleged retaliatory actions. For the following reasons,
I. FACTS
A. Gender Discrimination Claims and Procedural History
Mr. Cheatham has worked for the United States Attorney’s Office in the District of Columbia (“USAO”) as a Paralegal Specialist since October 2001.1 In the spring of 2008, he applied and interviewed for four Supervisory Paralegal Specialist positions under vacancy announcement 08-DC-048-M. See Def. Mot. Summ. J. (“Def. MSJ”) [Dkt. 11], Ex. 11 [Dkt. 11-1] (“Vacancy Announcement”); accord Pl. Opp. Def. MSJ (“Pl. Opp.”) [Dkt. 14], Ex. 1 [Dkt. 14-2].2 The announcement stated that it was for three vacancies: one each in the Felony Major Crimes Section, the General Crimes Section, and the Sex Offense Domestic Violence Section. Vacancy Announcement at 54. Mr. Cheatham states in his Opposition brief, and the Government does not dispute, that four vacancies were filled from vacancy announcement 08-DC-048-M. See Pl. Opp., Ex. 2 [Dkt. 14-2] (“July 21, 2008 Memo Announcing Hires”) at 5–6. The positions were in four different sections of the USAO’s Superior Court Criminal Division: (1) the Misdemeanor Unit of the General Crimes Section (“Misdemeanor”); (2) the Felony Unit of the General Crimes Section (“Felony”); (3) the Felony Major Crimes Section (“Grand Jury”); and (4) the Sex Offense/Domestic Violence Section (“Domestic Violence”). Id. at 5.
On May 30, 2008, Mr. Cheatham submitted a complaint form on the website of the Executive Office for United States Attorneys (“EOUSA”), Equal Employment Opportunity (“EEO”) Office. See Def. MSJ, Ex. 1 [Dkt. 11-1] (“EEO Website Complaint”) at 1. He complained that he was not selected for two positions because of his sex. See id. at 1–2 (“My most recent act of discrimination was on May 21, 2008. I was not selected for (2) recent Paralegal Supervisor positions.”). Mr. Cheatham identified the positions as having been filled by two women, of whom “[o]ne that has not been employed with[] the US Attorney[’]s Office no mor [sic] than a year and [a] half, anohter [sic] that was well known throughout the building as a problem employee.” Id. Pursuant to the EEO process for federal employees, Mr. Cheatham engaged in counseling on his charge, and he attempted mediation. The EEO counselor’s summary report noted that Mr. Cheatham complained that he was discriminated against on May 21, 2008, “when he was not selected for either of two (2) vacant Paralegal Supervisor positions, because of his gender (Male).” Def. MSJ, Ex. 2 [Dkt. 11-1] (“EEO Counselor Report”) at 5; see also id. at 6 (“[T]wo females were selected to fill the two vacant Supervisory Paralegal positions.”). On July 14, 2008, Mr. Cheatham received a “Notice of Final Interview” and notice of his right to file a formal complaint. Id. at 8.
Mr. Cheatham’s formal complaint was investigated by an Assistant United States Attorney from the Western District of Pennsylvania in Pittsburgh. A Report of Investigation (“2009 ROI”) issued on October 19, 2009. Def. MSJ, Ex. 5 [Dkt. 11-1]. As part of the investigation, Mr. Cheatham answered written questions under oath. In that forum, he stated that
On September 15, 2009, Mr. Cheatham requested a hearing before an Administrative Judge (AJ) of the Equal Employment Opportunity Commission (EEOC) pursuant
On December 20, 2011, after retaining counsel, Mr. Cheatham filed a motion with the AJ, asking the AJ to compel the USAO to supplement the 2009 ROI by producing “comparator information” regarding the two women who were hired for the Grand Jury and Domestic Violence positions. See Pl. Opp., Ex. 11 [Dkt. 14-3] (“Mot. Compel”). Although the Motion to Compel stated that “[t]he Complainant is not and has never sought to amend his charge of gender discrimination from what was accepted by the Agency,” Mr. Cheatham argued that the USAO’s “failure to provide a complete [ROI] with respect to all comparators [who] were selected for the two supervisor paralegal specialist positions” had “substantially prejudiced” him
[A] thinly-veiled attempt to re-visit Complainant’s Motion to Amend that was previously denied. As the Agency correctly points out in its Opposition, Complainant has had several opportunities to alter or amend the accepted issues in this complaint but failed to do so.
Complainant did not contest the framing of the issues at the Agency informal processing stage; or at the formal processing stage; or after receipt of the [EEOC] Acknowledgement Order; or during discovery. Complainant never informed the tribunal that he contested any of the Agency’s discovery answers or responses and never brought a motion to compel about any discovery dispute. . . .
The Hearing Record demonstrates that the Complainant did not move to amend the complaint until after dispositive motions had been briefed and submitted to the tribunal and after ADR/mediation failed to bring about an amicable resolution of this complaint. . . .
Def. MSJ, Ex. 8 [Dkt. 11-1] (“Order Denying Mot. Compel”) at 42; accord Pl. Opp., Ex. 10 [Dkt. 14-3]. Mr. Cheatham then withdrew his request for a hearing before an EEOC AJ and filed the present action on January 20, 2012.
On December 13, 2012, the Court directed the parties to provide additional information to assist in resolving the administrative exhaustion issue. See Dec. 13, 2012 Order [Dkt. 17]. Both parties filed supplemental briefs, see Pl. Supp. Opp. [Dkt. 18], Def. Report [Dkt. 19], but neither added to the record in any legally significant way.
B. Retaliation Claims
Mr. Cheatham also complains of two retaliatory acts by the USAO since his initial EEO activity. Both of these matters have been fully investigated and considered through the administrative process and are properly before the Court.
[Ms. Trice] mentioned to me that part of her reason for giving me an adverse evaluation was because of negative comments she had received from two of the attorneys I had worked with during this evaluation period. She told me that she believed that their comments were a result of “both of them having received a whiff of my initial gender complaint, and that she believed that they were purposely put in place by Brad Weinsheimer to break me.”
Id.
On August 17, 2011, the EOUSA EEO Office granted Mr. Cheatham leave to add a second allegation of retaliation to the 2011 EEO Complaint. See Pl. MSJ, Ex. 24 [Dkt. 14-4] (“Aug. 17, 2011 Letter”) at 78–80. Mr. Cheatham contended that on July 8, 2011, he had received a memorandum from supervisors at the USAO informing him that he would be receiving a $1500 “Special Achievement Award,” but on August 1, 2011, he was notified that the memorandum had been sent to him in error and that he would not be receiving any award. Id. at 78.
An EEO Specialist investigated the 2011 EEO Complaint and prepared a Report of Investigation (“2011 ROI”) addressing both of Mr. Cheatham’s retaliation allegations. See Def. MSJ, Ex. 10 [Dkt. 11-1]; accord Pl. Opp., Ex. 14 [Dkt. 14-3]. As in the investigation of the
1. Performance Evaluation
The ratings form used by the USAO to evaluate Mr. Cheatham included an overall performance rating of either “Unacceptable,” “Successful,” or “Outstanding.” Def. MSJ, Ex. 14 [Dkt. 11-2] (2009–10 Evaluations) at 5.4 In addition to the overall rating, Mr. Cheatham was also evaluated on five “critical performance elements” pertaining to his paralegal duties, with the same three options available to the evaluating official. Id. The ratings form provided that the overall rating would be determined by the ratings on performance elements; to be rated as “Outstanding,” an employee needed a majority of “Outstanding” ratings and at least one “Outstanding” rating on an element “specifically link[ed] to organizational goals and initiatives.” Id. at 6. Prior to 2010, Mr. Cheatham consistently received overall “Outstanding” ratings. See 2011 ROI at 48; see also Pl. Opp., Ex. 21 [Dkt. 14-4] (“2004-07 Performance Evaluations”). From 2004 to 2007, Mr. Cheatham received four of five top ratings and an overall “Outstanding” rating; in 2009, he received three of five top ratings and an overall “Outstanding”; and in 2010, he received only two of five top ratings and an overall “Successful” rating. See 2004-07 Performance Evaluations; 2009–10 Performance Evaluations.
Mr. Cheatham told the EEO investigator that Ms. Trice had informed him that “a former section chief may have told two of the [AUSAs] who provide input about [Mr. Cheatham’s] performance about [Mr. Cheatham’s] prior EEO activity and that may have led to the poor rating.” 2011 ROI at 47. According to Mr. Cheatham, he “had not received any
The EEO investigator spoke to several USAO staffers regarding Mr. Cheatham’s complaint, including: Ms. Trice, Mr. Cheatham’s supervisor and rating official; Richard Tischner, a USAO section chief and Mr. Cheatham’s reviewing official in 2010; Anthony Osborne Griffith, a Lead Paralegal Specialist who worked with Mr. Cheatham; and two of the AUSAs for whom Mr. Cheatham worked, Justin Dillon and Heather Carlton. 2011 ROI at 48–50; see also Def. MSJ, Ex. 16 [Dkt. 11-2] (Cheatham Interview Transcript (“Cheatham Tr.”)); Def. MSJ, Ex. 17 [Dkt. 11-2] (Wanda Trice Interview Transcript (“Trice Tr.”)); Def. MSJ, Ex. 18 [Dkt. 11-3] (Justin Dillon Interview Transcript (“Dillon Tr.”)); Def. MSJ, Ex. 19 [Dkt. 11-3] (Heather Carlton Interview Transcript (“Carlton Tr.”)). Ms. Trice acknowledged that she knew of Mr. Cheatham’s prior EEO activity when she prepared the 2010 Evaluation but said that she based the evaluation’s contents on feedback from the AUSAs who supervised Mr. Cheatham, which was “not positive.” 2011 ROI at 48. Some AUSAs had “outlined their concerns” in e-mails to Ms. Trice, and others who “were not willing to memorialize their concerns” spoke to her “off the record” by telephone. Id. Ms. Trice also told the EEO Investigator that “she brought the concerns about [Mr. Cheatham’s] performance to his attention during the mid-year review, and she ‘noticed a slight decline in his performance from the time that he was bitter for not getting selected’ for supervisory and lead positions.” Id. (quoting Trice Tr. at 13).
Mr. Tischner stated that he had “very little input” into Mr. Cheatham’s evaluation and merely “signed off on it,” had no personal knowledge of Mr. Cheatham’s work, and was not aware of Mr. Cheatham’s prior EEO activity when the 2010 Evaluation was reviewed. Id. at 49. Both of the AUSAs for whom Mr. Cheatham worked disavowed any knowledge of Mr.
To be honest, every aspect. And let me say this: I like Richard, he’s a nice guy. I have nothing against him personally. I had no idea about his prior EEO complaint, until . . . I received my notice that I was a witness in this. So this is not—nothing personal against him. He seems like a bright guy. He just doesn’t seem to want to apply himself, at least to the work I asked him to do. And I can certainly give you examples of that . . . .
Dillon Tr. at 12.
2. Cash Award
According to Mr. Cheatham, he received a memorandum from Executive AUSA Rachel Lieber on July 8, 2011, stating that he had been awarded a $1,500 “Special Achievement Award.” 2011 ROI at 50. When the money was not included in his paycheck, he inquired why; he was later notified that the memo had been sent to him in error and that he would not be receiving any award. Id. The EEO Investigator spoke to several USAO employees in the course of her investigation. Id. at 51. Each informed the EEO Investigator that the award was intended for an AUSA with the same last name, Virginia Cheatham, who practiced in DOJ’s Fraud and Public Corruption Section, but administrative staff made a “human error” when entering the award information into the computer. See Def. MSJ, Ex. 15 [Dkt. 11-2] (Decl. Rachel Lieber) at 14; accord Def. MSJ, Ex. 20 [Dkt. 11-3] (Decl. Richard Tischner) at 67–68, Def. MSJ, Ex. 21 [Dkt. 11-3] (Decl. Stephanie Bragg Lee) at 70–71. The Budget Officer who was responsible for entry of the information admitted to a “major mea culpa,” and Stephanie Bragg Lee, Supervisory Human Resources Specialist, informed Mr. Cheatham of the error by voicemail. Bragg Lee Decl. at 70–71.
A. Summary Judgment
Under
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).
B. Exhaustion of Remedies under Title VII.
As in the private sector,
A federal employee who believes he has been discriminated against “must initiate contact with a[n] [EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory. . . .”
Following exhaustion of administrative remedies, a federal employee must sue within 90 days of final administrative action or, if the EEOC has not taken final action, within 180 days of filing his initial charge with the EEOC. See Price v. Greenspan, 374 F. Supp. 2d 177, 184 (D.D.C. 2005), aff’d sub nom. Price v. Bernanke, 470 F.3d 384 (D.C. Cir. 2006); see also
III. ANALYSIS
The Court addresses Mr. Cheatham’s discrimination claims regarding his nonselection for the supervisory paralegal positions before turning to the retaliation claims.6
The USAO argues that Mr. Cheatham’s discrimination claims are barred because he failed to exhaust his administrative remedies and because he cannot rebut the USAO’s legitimate, nondiscriminatory reasons for selecting other candidates for the vacant supervisory paralegal positions. Def. MSJ Mem. at 17–26. As to the former argument, the USAO asserts that the two non-selections “were not investigated in the administrative process, and were not addressed in the EEOC proceedings. In light of this fact, . . . [Mr.] Cheatham failed to participate in the administrative process with respect to these non-selections.” Id. at 20. Because the Court finds that Mr. Cheatham did not exhaust his administrative remedies as to the two positions of which he complains here, and there is no basis for equitable tolling or any other excuse for Mr. Cheatham’s failure to exhaust, summary judgment will be granted in favor of the USAO.
Mr. Cheatham applied for four supervisory paralegal positions in the USAO but complained of just two non-selections when he went for EEO counseling—that is, his non-selection for the positions in Misdemeanor and Felony. See EEO Website Complaint at 1; EEO Counselor Report at 5. Only two non-selections were accepted for investigation, and the 2009 ROI addressed his non-selections in Misdemeanor and Felony, with only a passing mention of his interview for Grand Jury. See 2008 Formal EEO Complaint at 11; Sept. 2, 2008 Acceptance Letter at 14; 2009 ROI at 19. Yet in this Court, Mr. Cheatham claims discrimination based upon only his non-selection for the positions in Grand Jury and Domestic Violence. Am. Compl. [Dkt. 2] ¶ 10. He has not exhausted his administrative remedies on these non-selections and cannot bring them to court now. Essentially, Mr. Cheatham asks this Court to reverse the ruling of Administrative Judge Richard W. Furcolo, who denied Mr. Cheatham’s untimely motion to amend his charges to add these specific non-selections to the EEO process. See
Mr. Cheatham contends that his complaint here is fully ripe because: (1) the formal complaint mentioned four non-selections, Pl. Opp. at 15, 18;7 (2) his Motion to Amend Charges before the AJ was “erroneously” so labeled with a “misleading caption” but its text was “tantamount to a Motion to Supplement” the record, id. at 4; (3) when counsel filed a “Motion to Supplement” immediately before the hearing, he “never sought to amend the previously accepted issue for investigation,” id. at 5; and (4) even if he did not exhaust his administrative remedies, Mr. Cheatham had a right to file a lawsuit because more than 180 days had passed from the date he filed his complaint with the EEOC and he did not obtain a hearing, id. at 20–21.
Creative lawyering cannot save Mr. Cheatham’s allegations related to the Grand Jury or Domestic Violence non-selections. Ignoring the facts in the record, counsel asserts that Mr. Cheatham:
Exhausted his administrative remedies when he filed a complaint of discrimination against the Agency for its failure to promote him to either of two (2) supervisory paralegal positions—[Grand Jury] and [Domestic Violence] of the USAO—within 45 days of learning of his non-selection.
That Mr. Cheatham understood exactly this same sequence of events is demonstrated by his Motion to Amend the Charge(s) filed on June 22, 2010, before the AJ. Recognizing that the accepted issue in September 2008 was his non-selection for two supervisory paralegal positions, Mot. Amend Charges at 26, the remedy he sought was to amend the pending charge to read “four Supervisory Paralegal Positions” and to include the Domestic Violence and Grand Jury positions, id. at 27, 30. Mr. Cheatham is an honest man: he admitted that he only complained initially about two non-selections and that, to include the Grand Jury and Domestic Violence vacancies, the accepted charge itself would have had to be amended. See
Counsel’s argument that this lawsuit is timely because it was filed within 180 days of Mr. Cheatham’s formal complaint to the EEOC and before any hearing on the complaint misses the critical point that Mr. Cheatham’s formal complaint did not follow the necessary precursor of counseling on four non-selections and was not accepted for investigation into four nonselections, a limitation that he did not timely correct or protest until the tail end of the administrative process—which he abruptly truncated immediately before an AJ hearing.
“Title VII ‘[c]omplainants must timely exhaust the[ir] administrative remedies before bringing their claims to court.’” Payne, 619 F.3d at 65 (quoting Bowden, 106 F.3d at 437). Mr. Cheatham did not exhaust his administrative remedies as to two of the supervisory paralegal positions for which he was not selected, and those are the two positions about which he complains here. See Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (“[A]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC’s investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.” (alteration in original) (internal citation omitted)). Accordingly, summary judgment will be granted in favor of the USAO as to Mr. Cheatham’s gender discrimination claim, Count One of the Amended Complaint.
B. Retaliation
The Court next turns to Mr. Cheatham’s retaliation claim, Count Two of the Amended Complaint, which is based on two alleged retaliatory acts: a reduction in his customary “Outstanding” performance rating to “Successful” and the denial of a promised cash award in the
Title VII’s antiretaliation provision prohibits an employer from “discriminat[ing] against” an employee because he has “opposed” a practice proscribed by Title VII or because “he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.”
When the employer offers a “legitimate, non-discriminatory reason” for the allegedly materially adverse action, “the sole remaining question” becomes “retaliation vel non—whether, based on all the evidence, a reasonable jury could conclude that [the] proffered
Retaliation can take many forms and need only be a sufficiently material negative action to dissuade a reasonable employee from further pursuing EEO activity. Steele, 535 F.3d at 696 (citing Burlington Northern, 548 U.S. at 68). Both of the actions of which Mr. Cheatham complains would qualify as sufficiently material if prompted by retaliatory animus: a reduction in his customary “Outstanding” performance rating to “Successful” and the denial of a promised cash award in the amount of $1,500. See Burlington Northern, 548 U.S. at 56, 68; Weber, 494 F.3d at 186–87 (holding that loss of a financial award is an adverse employment action).9 Mr. Cheatham’s overall performance rating was “Outstanding” from 2005 to 2009 and in 2010 was reduced to “Successful.” See 2009–10 Evaluations at 5; 2004-07 Performance Evaluations at 39–70. The USAO also acknowledges that Mr. Cheatham received a letter advising him that he
Starting with the denial of the promised cash award, the Agency employs two persons with the last name of Cheatham: Richard Cheatham, the plaintiff, and Virginia Cheatham, an Assistant United States Attorney (AUSA). Everyone agrees that Richard Cheatham received a letter congratulating him on a performance-based cash award. 2011 ROI at 50; Lieber Decl. at 14. The USAO says that the letter to Richard Cheatham was supposed to go, with the promised cash award, to Virginia Cheatham. The USAO submits sworn declarations and records supporting its claim of “human error” on the part of a Budget Officer who made the erroneous data entry, including evidence of the USAO’s apology to Mr. Cheatham by voicemail. See Lieber Decl. at 14, Bragg Lee Decl. at 70–71. Mr. Cheatham argues that he would have received the award except for retaliation, but he offers no evidence to support his argument that retaliation is to blame.10 Summary judgment will thus be granted to the USAO on this claim. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (“[A] mere unsubstantiated allegation . . . creates no genuine issue of fact and will not withstand summary judgment[.]” (internal citation and quotation marks omitted)).
Mr. Cheatham’s first allegation is more complicated and cannot be decided on the present record. Mr. Cheatham has presented a prima facie case of retaliation relating to his performance review and USAO has responded that the attorneys with whom he worked were
Because there is a genuine dispute over material facts concerning the basis for Mr. Cheatham’s lowered performance rating, the Court will deny summary judgment to the USAO on Count Two in part.
IV. CONCLUSION
For the foregoing reasons, summary judgment will be granted to the USAO on Mr. Cheatham’s discrimination claims, Count I of the Amended Complaint, and on Mr. Cheatham’s retaliation claim based on his non-receipt of a cash award, Count II. Summary judgment will be denied as to Mr. Cheatham’s retaliation claim in Count II based on a decline in his performance evaluation in 2010.
A separate memorializing Order accompanies this Opinion.
DATE: April 2, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge