POLLARD v. QUEST DIAGNOSTICSPOLLARD v. QUEST DIAGNOSTICS
(February 17, 2009)
Plaintiff, Bridget Pollard (“Pollard” or “Plaintiff”), an African-American female, brings the instant lawsuit against her previous employer, Defendant Quest Diagnostics (“Quest” or “Defendant”), alleging claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964,
Currently pending before the Court is Defendant’s Motion for Summary Judgment. As briefing on Defendant’s motion is complete, the case is now ripe. After a searching review of the parties’ briefing, the exhibits attached thereto, the relevant case law, and the entire record herein, the Court shall GRANT Defendant’s Motion for Summary Judgment, for the reasons that follow.
A. Factual Background
In October of 2002, Pollard, an African-American female, was hired by American Medical Laboratories to work as a Medical Technologist at its medical laboratory facility located in Providence Hospital (“Providence”) in Washington, D.C. Defendant’s Statement of Material Facts (“Def.’s Stmt.”) ¶¶ 2, 6.1 Shortly thereafter, Quest2 acquired the Providence medical laboratory facility from American Medical Laboratories. Id. ¶¶ 1, 2. Pollard continued working as a Medical Technologist at the Providence laboratory after it was acquired by Quest. Id. ¶ 2, 7.
As a Medical Technologist, both for American Medical Laboratories and for Quest, Pollard’s responsibilities included performing assigned medical tests, maintaining laboratory
From 2002 to 2005, Pollard worked the third (overnight) shift at the Providence location and reported directed to Isabelita Aglipay. Def.’s Stmt. ¶ 9. In 2005, Pollard requested to work on a “PRN,” or on-call as needed, basis so that she could attend school full-time, which request Quest granted. Id. ¶ 10. While working on a PRN basis, Pollard’s work hours varied, and she worked for several different supervisors. Id. Subsequently, in or around March 2006, Pollard relocated to Raleigh, North Carolina and thereafter worked only occasionally for Quest. Id. ¶ 11. As of early October 2006, however, Pollard had not worked for Quest for several pay periods and her employment with Quest was therefore terminated on October 4, 2006, as a result of a routine audit Quest periodically conducts of all PRN employees, consistent with Quest policy.3 Id. ¶ 12.
In the spring of 2005, Quest decided to create an Information Technology Project Manager (“Project Manager”) position at Providence. Id. ¶ 14. The Project Manager position was posted in mid-May of 2005, see Pl.’s Resp. ¶ 20; Pl.’s Opp’n, Ex. A (“Vacancy Announcement),4 Quest made the position available to both internal and external applicants by announcing it on the internet, on Quest’s internal intranet, and by posting it on the bulletin board in the Providence lab, Def.’s Stmt. ¶ 15. Harvey Vandenburg, the Administrative Director of the Providence Laboratory, and Richard Leap, Director of Information Technology, collaborated in selecting a candidate for the Project Manager position. Id. ¶ 19.
Vandenburg and Leap, together with Human Resources, composed a position description for the Project Manager position. Id.; Def.’s Reply, Ex. 7 (Leap Dep.) 21:5-8 (testifying that he, Vandenburg and Human Resources drafted position description); id., Ex. 6 (Vandenburg Dep.) 24:16- 25:14 (testifying that he and Leap drafted the position description with assistance from
According to Quest’s policy, a written position description is required before an available position may be posted. Def.’s Stmt. ¶ 20. Quest asserts that Vandenburg and Leap composed a position description consistent with that policy. Id. Pollard, however, claims that the position description was not, in fact, composed until August 2005, well after the position was posted in May of 2005. Pl.’s Resp. ¶ 20. As support for this assertion, Pollard points to: (1) a copy of the position description at issue, which indicates the “Date Written” was August 22, 2005; and (2) testimony by Vandenburg, in which he stated: “So I would surmise the posting predated the finalization of the position description.” Id.; see also Def.’s Mot., Ex. 8 (Project Manager Position Description); Pl.’s Opp’n, Ex. H (Vandenburg Dep.) at 49:5-6. As to the fact that the copy of the position description attached as Exhibit 8 to Defendant’s Motion has a “Date Written” of August, 2005, Michael Knapp, Quest’s Director of Employee Services, explained that “each time a job description is revised or updated on the computer system in any way, the date in the ‘Date Written’ section is updated to reflect the then current date.’” Def.’s Reply, Ex. 1 (Knapp Decl.) ¶ 6. Furthermore, Quest presents evidence that the position description, or at least a version of it, was composed as early as June 24, 2005. See id. ¶ 7 (showing that the position description at issue had been printed on June 24, 2005). Finally, both Vandenburg and Leap have confirmed that neither made any changes to the position description, nor are they aware of
Nonetheless, both parties agree that the Project Manager’s primary responsibility was to coordinate and maintain a new upgrade to the LIS system that was to be installed in the near future. Id. ¶ 16. In particular, the “Essential Job Duties and Responsibilities” for the Project Manager position included, inter alia, the following technical aspects:
3. Collaborate with HIS personnel in maintaining database.
4. Facilitates LIS training and competency for all new and existing staff as new processes or procedures are added.
* * *
6. Provides necessary audit trail documentation of all changes and validations to LIS system to meet or exceed regulatory requirements, including but not limited to, annual calculations review, biannual patient report for Medical Director review, LIS upgrade documentation, LIS backup and transaction documentation.
* * *
9. Monitor LIS performance and report outages or system degradation issues to appropriate channels.
Id. ¶ 21. The position description also provided that the minimum qualifications for the Project Manager position included: an educational background in Computer Science or Medical Technology, strong interpersonal skills, basic knowledge of laboratory skills, and experience
Pollard makes much of the fact that the vacancy announcement, as posted in May of 2005, provided only that the position’s requirements included having a degree in medical technology or computer science, general laboratory knowledge, LIS functionalities, and LIS/HIS interface knowledge—and did not include the specific technical requirements set forth in the position description. See Pl.’s Resp. ¶ 22.; see also Pl.’s Opp’n, Ex. A (Vacancy Announcement). Michael Knapp, Quest’s Director of Employee Services, explained, however, that: “The Job Posting Bulletin (i.e., the vacancy announcement to which Pollard refers) . . . does not and could not contain all of the elements of the job description for each position posted. Indeed, every job description for every job contains more requirements than the job posting does. The job posting simply contains a summary of some of the major requirements for the positions listed.” Def.’s Reply, Ex. 1 (Knapp Decl.) ¶ 4.
Pollard applied for the Project Manager position and she, along with three other individuals, was subsequently selected by Vandenburg for a first-round interview. Def.’s Stmt.
As stated above, Vandenburg and Leap collaborated in selecting a candidate for the Project Manager position. Id. ¶ 19. Vandenburg was tasked with conducting the first round interviews and with making an initial determination as to the candidates’ interpersonal skills, while Leap, who (as Director of IT) had more technical knowledge, was tasked with evaluating the candidates’ technical experience. See id. ¶¶ 27-31; see also Def.’s Mot., Ex. 7, Pt. 2 (Vandenburg Dep.) 35:21-37:1.
Pollard was actually out of town on vacation at the time that Vandenburg attempted to contact her to schedule the initial interview. Id. ¶ 27. Vandenburg therefore left a note on the laboratory’s bulletin board for Pollard to contact him. Id. However, because they worked different shifts, Pollard and Vandenburg had difficulty coordinating a time to meet for the interview. Id. Vandenburg ultimately was able to contact Pollard at home and thereafter conducted a telephone interview.6 Id. Because the other three individuals did not have similar difficulties coordinating a time for an interview, Vandenburg conducted face-to-face interviews with Le, Kopley and Townsend. Id. ¶ 29. After interviewing each of the four candidates, Vandenburg concluded that each candidate displayed good verbal communication skills and
Quest emphasizes that, prior to this interview, Pollard and Vandenburg had never had a formal conversation nor had they been formally introduced, and their interaction at Quest had been limited to occasional greetings in the hall. Id. ¶ 28. In addition, Pollard admitted at her deposition that she had no evidence, other than her own unsupported belief, that Vandenburg knew Pollard’s race or color prior to their phone interview. Def.’s Mot., Ex. 2, Pt. 3 (Pollard Dep.) at 86:5-17. Pollard, however, now asserts in her Opposition that Vandenburg “was fully aware” of Pollard’s race and, as support, directs the Court’s attention to an “Applicant Flow Data” chart, which provides the racial and gender composition of all of the applicants for the Project Manager position. See Pl.’s Resp. ¶ 28 (citing Pl.’s Opp’n, Ex. D (Applicant Flow Data). Although the Applicant Flow Data chart does show that Pollard is “black,” Pollard has failed to present any evidence that Vandenburg ever saw this chart.7 See id.
Leap reviewed the resumes of all four candidates to determine whether each candidate possessed the technical knowledge necessary for the Project Manner position. Id. ¶¶ 30-31. Based upon his review of the candidates’ resumes, Leap concluded that only Kopley and Townsend possessed the requisite technical experience and thus decided to interview only those
As stated above, however, Leap declined to interview either Pollard or Le and, as is specific to Pollard, explained that he decided not to interview her because he believed she lacked significant LIS experience. Id. ¶ 34. As Leap had never met Pollard and therefore did not know her race, he based this decision solely on his review of her resume. Id. In particular, Leap concluded from his review of her resume that she did not have experience in “setting up the filing structure of a LIS, managing interfaces for producing or setting up the laboratory reports,” which were the most important aspects of the job. Id. ¶ 35. Plaintiff also lacked any experience with the new LIS that Quest had chosen to install. Id. ¶ 36. Leap concluded that Pollard’s LIS experience was simply comparable to that of a user of the system, and she therefore did not have the requisite experience to manage the new LIS upgrade and to train LIS users. Id. ¶ 37. Importantly, Pollard fully admits that LIS experience was critical to the Project Manager position and that she did not have such experience. Pl.’s Resp. ¶¶ 35-37. And, even more significantly,
Although both Kopley and Townsend were qualified for the Project Manager position, Leap believed that Kopley was the better candidate based on her experience and knowledge. Def.’s Stmt. ¶ 38. Quest therefore offered Kopley the position. Id. Kopley, however, ultimately declined to accept the Project Manager position. Id. Quest does not have a policy of re-posting positions after a top-ranked candidate declines when there is a second ranked candidate. Id. ¶ 39. Accordingly, as Townsend was the second most qualified candidate, Quest subsequently offered him the position. Id. Townsend accepted the offer and thereafter held the position of Project Manager.9 Id. ¶ 40.
Significantly, Pollard acknowledged in deposition that Kopley’s prior experience with the new LIS upgrade rendered her far more qualified for the Project Manager position than Pollard herself, and indicated that Quest’s initial offer to Kopley was not discriminatory:
Q. Do you think [Kopley] was more qualified than you for the job?
* * *
A. I believe from – Yes, that she had more qualifications than I had. Yes.
Q. So is it your belief, then, that the decision to initially offer the position to Ms. Kopley was not a discriminatory decision?
* * * A. I believe that.
Def.’s Mot., Ex. 2, Pt. 3 (Pollard Dep.) 103:3-15 (emphasis added); Def.’s Stmt. ¶ 41. Similarly, Pollard admits that Townsend’s qualifications, as provided in his resume, also rendered him more qualified for the Project Manager position.10 Def.’s Stmt. ¶ 42; see also Def.’s Mot., Ex. 2, Pt. 3 (Pollard Dep.) 118:7-119:1 (acknowledging that Townsend’s qualifications as set forth in his resume were superior). Indeed, Pollard admits that Townsend was the second most qualified candidate for the position, and that Quest offered him the position on that basis. Def.’s Stmt. ¶ 39; Pl.’s Resp. ¶ 39 (admitting Def.’s Stmt. ¶ 39).
Pollard initially complained to Michael Knapp, Quest’s Director of Employee Services, about Quest’s failure to promote her into the Project Manager position at some point in October of 2005. See Pl.’s Reply, Ex. E (10/24/05 Email from Knapp to Vandenburg). Thereafter, on November 29, 2005, Pollard filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) alleging race discrimination with respect to Quest’s decision not to promote her into the IT Project Manager position. Def.’s Stmt. ¶ 49.
Quest evaluates its employees annually. Id. ¶ 50. Generally, employees are provided written performance reviews, which include ratings of their performance in various categories. Id. Employees are also provided a final numerical score that corresponds to a specific overall performance rating category, with a lower score correlating to a higher overall rating: Outstanding (1.00 to 1.33); Excellent (1.34 to 2.33); Achieves Expectations (2.34 to 3.25); and Development Needed (3.26 to 4.00). Id. Ordinarily, an employee’s immediate supervisor performs his or her evaluation. Id.
As is relevant here, Pollard received a performance evaluation in 2004. See id. ¶ 51. Because her then-immediate supervisor, Aglipay, was on medical leave, Pollard’s annual performance review for the 2004 evaluation period was conducted by David Meeder, then-Administrative Director of the Providence Laboratory (i.e.,Vandenburg’s predecessor), rather than her immediate supervisor. Id. Meeder gave Pollard an overall “Excellent” rating. Id. As a result of the “Excellent” rating, Pollard received a 4% merit increase. Id. ¶ 52.
Pollard also received a performance evaluation in 2005. See id. ¶ 53. The performance evaluation is dated January 12, 2006. See Def.’s Mot., Ex. 12 (2005 Performance Evaluation). Aglipay, Pollard’s immediate supervisor, had returned from medical leave by this time, and therefore she prepared Pollard’s 2005 performance evaluation, per Quest’s general policy. Id. ¶¶ 50, 53. Vandenburg confirmed at deposition that he did not have input into Pollard’s evaluation. Def.’s Reply, Ex. 6 (Vandenburg Dep.) at 71:20-22. Based upon her overall performance, Aglipay gave Pollard an initial numerical rating of 2.75, which corresponded to an overall rating of “Achieves Expectations.” See Def.’s Stmt. ¶¶ 53, 56; see also Def.’s Mot., Ex. 15 (Pollard
Pollard, however, subsequently voiced concerns to Aglipay regarding her 2005 performance evaluation rating, and, as a result, Aglipay agreed to improve Pollard’s rating by 0.25 points to a 2.5 overall numerical score. Def.’s Stmt. ¶ 56. Although this was an improvement in the overall numerical score, Pollard’s overall performance rating remained “Achieves Expectations,” as that rating encompasses overall numerical scores from 2.34 to 3.25. See Def.’s Mot., Ex. 15 (Pollard 2005 Annual Performance and Development Review). Pollard did not voice any further objections to either Aglipay or to anyone else at Quest regarding her evaluation. Def.’s Stmt. ¶ 57. As Pollard admits, an “Achieves Expectations” rating reflects a satisfactory performance evaluation. Id. ¶ 54; Pl.’s Resp. ¶ 54. As a result of the 2005 performance evaluation, Pollard received a 3% merit increase.11 Def.’s Stmt. ¶ 59.
Aglipay explained at deposition that, in assessing Pollard’s performance, she took into consideration: (a) several complaints she had received regarding Pollard’s attitudes toward nurses and doctors (i.e., Quest’s customers); and (b) Pollard’s failure to meet the time pressures associated with her job. Id. ¶ 55. Specifically, Aglipay testified that “some of our customers [sic] some complain about [Pollard],” clarifying that, by the term “customers,” Aglipay meant “[n]urses, doctors.” Def.’s Mot., Ex. 13 (Aglipay Dep.) at 33:17-22. She continued: “Yes. They
Although Pollard denies that Aglipay relied on such complaints in compiling Pollard’s 2005 performance evaluation, Pollard has not directed the Court’s attention to any affirmative evidence disputing Aglipay’s testimony. See Pl.’s Resp. ¶ 55. Rather, Pollard relies solely on the fact that Quest did not produce any documentation of such complaints in response to Pollard’s requests for documents. Id. As Quest explains, however, Aglipay testified in deposition that she would “just talk to [Pollard] not to [sic], you know, to be nice to the client,” and could not recall whether any of the complaints issued were ever put in writing or if she herself ever issued Pollard a written letter of counseling. Def.’s Mot., Ex. 13 (Aglipay Dep.) at 39:8-40-13. Knapp, Quest’s Director of Employee Services, testified at his deposition that it was not necessarily common practice or always appropriate for a supervisor to make written notations of performance concerns and/or complaints in preparing an employee’s performance evaluation.
Finally, Aglipay repeatedly testified at her deposition that she was not aware of Pollard’s complaints of discrimination at the time she prepared Pollard’s 2005 performance evaluation. See Def.’s Reply, Ex. 4 (Aglipay Dep.) 55:16-56:16; 59:3-8. Specifically, at her deposition, Aglipay testified as follows:
Q. . . . The performance appraisal that was conducted by you on Ms. Pollard [sic] dated January 2006, right? At the time you had assessed her performance did anybody mention that Ms. Pollard was complaining of or she raised the issue of discrimination?
A. No. I didn’t hear anything.
Id. at 59:3-8.
Pollard, however, ignores this testimony from Aglipay, and argues that, to the contrary, Aglipay knew of Pollard’s discrimination claims prior to her preparation of the 2005 performance evaluation. See Pl.’s Resp. ¶ 58. In support of this assertion, Pollard relies solely on the following testimony from Aglipay:
Q. . . . Were you informed around this time [October 24, 2005] regarding Ms. Pollard’s complaint of discrimination because she did not receive the promotion to [sic] project manager position?
A. No. I didn’t hear any complaint about this.
Q. When were you first informed that she was discussing filing a complaint or that she was going to follow through with filing a complaint of discrimination? * * *
A. When I notice [sic] the complaint it was [sic] Mr. Harvey [Vandenburg] called me in his office at that time that Ms. Pollard complain about not getting the position.
Q. When was that, ma’am?
A. I cannot give you the exact date.
Q. What month was it?
A. I don’t know what month was that. That was before I went to part-time position.
Q. When did you go part-time?
A. 2006, I believe.
Pl.’s Opp’n, Ex. H (Aglipay Dep.) at 54:3-22. Pollard asserts that, because she first complained of discrimination to Knapp in October of 2005, this testimony demonstrates that Aglipay “could have” heard of Pollard’s discrimination complaints as early as October of 2005. Pl.’s Resp. ¶ 58. As noted above, the performance evaluation is dated January 12, 2006. See Def.’s Mot., Ex. 12 (2005 Performance Evaluation). Consideration of Aglipay’s testimony in full, however, demonstrates that, at most, Aglipay was informed of Pollard’s complaint at some unspecified time during 2006. See id. Indeed, Aglipay affirmatively testified that she did not hear about the October 24, 2005 complaint. Id. at 54:7 (“No. I didn’t hear any complaint about this.”). More significantly, Pollard ignores that this exchange in Aglipay’s deposition immediately precedes the excerpts above in which Aglipay went on to clarify that at the time she assessed Pollard’s performance, she had not heard anything regarding Pollard’s discrimination complaints. Def.’s Reply, Ex. 4 (Aglipay Dep.) 55:16-56:16; 59:3-8.
As stated above, Pollard filed a Charge of Discrimination with the EEOC on November 29, 2005, alleging race discrimination with respect to Quest’s decision not to promote her into the IT Project Manager position. Def.’s Stmt. ¶ 49. Pollard amended her EEOC charge on February 28, 2006, to include an allegation of retaliation based upon the differences between her 2004 and 2005 performance evaluations. Id. ¶ 60. On February 28, 2007, the EEOC issued Plaintiff a Dismissal and Notice of Rights in which it determined that it was “unable to conclude that the information obtained establishes violations of the statute.” Id. ¶ 61.
Pollard subsequently filed the instant lawsuit on April 16, 2007. See Compl., Docket No. [1]. Quest thereafter filed a Motion for Summary Judgment. See Def.’s Mot., Docket No. [25]. Pollard filed her Opposition, see Pl.’s Opp’n, Docket No. [35], and Quest its Reply, see Def.’s Reply, Docket No. [36]. Defendant’s Motion is therefore now ripe.
II. LEGAL STANDARDS
A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See
Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (the court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”). “If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). “Mere allegations or denials of the adverse party’s pleading are not enough to prevent the issuance of summary judgment.” Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Id. at 587 (citing
Importantly, “[w]hile summary judgment must be approached with specific caution in
III. DISCUSSION
Pollard’s Amended Complaint sets forth claims of discrimination and retaliation under both Title VII and Section 1981. Title VII of the Civil Rights Act prohibits an employer from “discriminat[ing] against any individual with respect to [her] compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin,”
Under either Title VII or Section1981, Pollard must demonstrate by a preponderance of the evidence that the actions taken by her employer were “more likely than not based on the consideration of impermissible factors” such as race, ethnicity, or national origin. Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (internal quotation marks and citation omitted). In so doing, “the plaintiff may prove his claim with direct evidence,13 and absent direct evidence, he may indirectly prove discrimination” under the burden-shifting analysis created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Brady v. Livingood, 456 F. Supp. 2d 1, 6 (D.D.C. 2006).
Where, as here, the record contains no direct evidence of discrimination, it is necessary to apply the McDonnell Douglas tripartite burden-shifting framework. Cones v. Shalala, 199 F.3d 512, 516 (D.C. Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802). “Like claims of
Under this paradigm, a plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case. McDonnell Douglas, 411 U.S. at 802. If she succeeds, the burden shifts to the defendant to articulate some legitimate, non-discriminatory or non-retaliatory reason justifying its conduct. Id. If the defendant is successful, then “the McDonnell Douglas framework—with its presumptions and burdens—disappear[s], and the sole remaining issue [is] discrimination vel non.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000) (internal citations and quotation marks omitted).
For a claim alleging disparate-treatment discrimination, a plaintiff makes out a prima facie case by showing (1) that she is a member of a protected group; (2) that she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Wiley v. Glassman, 531 F.3d 151, 155 (D.C. Cir. 2007); Mastro v. Potomac Elec. Power. Co., 447 F.3d 843, 850 (D.C. Cir. 2006). For a claim of retaliation, the prima facie elements are (1) that she engaged in a statutorily protected activity; (2) that she suffered a
The D.C. Circuit has clarified that the McDonnell Douglas prima facie factors are “almost always irrelevant” and are “largely [an] unnecessary sideshow” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 492-93 (D.C. Cir. 2008). Where an employer asserts a legitimate, non-discriminatory (or non-retaliatory) reason for its challenged conduct, thereby doing “everything that would be required of [it] if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Id., 520 F.3d at 494 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)); see also Adeyemi v. D.C., 525 F.3d 1222, 1226 (D.C. Cir. 2008) (holding that the prima facie inquiry “is irrelevant when an employer has asserted a legitimate, non-discriminatory reason for an adverse employment action“). “And by the time the district court considers an employer‘s motion for summary judgment or judgment as a matter of law, the employer ordinarily will have asserted a legitimate, non-discriminatory (or non-retaliatory) reason for the challenged decision—for example, through a declaration, deposition, or other testimony from the employer‘s decisionmaker.” Brady, 520 F.3d at 493. In such circumstances, a district court‘s inquiry collapses into a single question: “[h]as the employee produced sufficient evidence for a reasonable jury to find that the employer‘s asserted non-discriminatory [or non-retaliatory] 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.
Based on this guidance, the D.C. Circuit has stated in no uncertain terms that a lower court should not evaluate whether a plaintiff has established a prima facie case where a defendant
Nevertheless, the Supreme Court also advised lower courts in Reeves v. Sanderson Plumbing Products, Inc. that “a plaintiff‘s prima facie case, combined with sufficient evidence to find that the employer‘s justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated [or retaliated].” 530 U.S. 133, 148 (2000). “[T]he trier of fact may still consider the evidence establishing the plaintiff‘s prima facie case ‘and inferences properly drawn therefrom . . . on the issue of whether the defendant‘s explanation is pretextual.” Id. at 143 (quoting Burdine, 450 U.S. at 255 n.10). The Court of Appeals for the District of Columbia Circuit has distilled this analysis, noting that the fact-finder can infer discrimination from the combination of:
(1) the plaintiff‘s prima facie case; (2) any evidence the plaintiff presents to attack the employer‘s proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements of attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong record in equal opportunity employment).
Aka, 156 F.3d at 1289. However, evidence in each of the three categories is not required. Id. “At this stage, if [plaintiff] is unable to adduce evidence that could allow a reasonable
Accordingly, because Quest in this case has asserted legitimate, non-discriminatory and non-retaliatory reasons for its challenged conduct, all of the evidence in the record shall be considered, including that which would be used to establish Pollard‘s prima facie case (but not for the purpose of evaluating whether a prima facie case has been established), to address the ultimate question of discrimination or retaliation vel non.
A. Pollard‘s Claim of Disparate Treatment
First, Pollard alleges a claim of disparate treatment based upon race and color in violation of both Title VII and Section 1981. Specifically, Pollard alleges that Quest failed to promote Pollard, while instead promoting a Caucasian male into the Project Manager position, based upon discriminatory animus.14 As explained above, Pollard applied for the Project Manager position and was selected for the initial round of interviews along with three other individuals. Pollard, however, was not among the two individuals selected for the second round of interviews. Instead, Quest selected only Kopley and Townsend for the second round of interviews and
Quest has repeatedly proffered legitimate, non-discriminatory reasons justifying Townsend‘s selection. Specifically, Quest asserts that it selected Townsend for the Project Manager position because he was better qualified for the position than Pollard, who lacked the requisite technical experience. See Def.‘s Stmt. ¶¶ 31, 34, 39.
Because Quest has stated a legitimate, non-discriminatory reason for Pollard‘s non-selection, Pollard‘s ability to make out a prima facie case of discrimination is irrelevant, and Pollard may establish liability in one of two ways. Fogg v. Gonzales, 492 F.3d 447, 453 (D.C. Cir. 2007). First, Pollard may pursue a “single-motive case,” in which she argues that race was the sole reason for her non-selection and that Quest‘s stated reasons for her non-selection are pretextual.
In the present case, Pollard has advanced a “single-motive” case of discrimination, arguing that Quest‘s non-discriminatory explanations are a pretext for discrimination. See Pl.‘s Opp‘n at 8-12. The Court finds, however, that Pollard cannot survive summary judgment
First, as explained above, prior to her phone interview with Vandenburg, Vandenburg and Pollard had never had a formal conversation or had been formally introduced, and their interaction at Quest had been limited to occasional greetings in the hall. Def.‘s Stmt. ¶ 28. Moreover, even as to those interactions, Pollard has no evidence that Vandenburg knew her name. Def.‘s Mot., Ex. 2, Pt. 2 (Pollard Dep.) at 61:17-21. In addition, Pollard admitted at deposition that she has no evidence that Vandenburg knew her race:
Q. . . . So you don‘t know if when [Vandenburg] spoke to you about this position, whether he knew what your race was, do you? A. I believe he did.
Q. What evidence do you have that he did?
A. I don‘t have any evidence. Except for that he had my records and that sort of information available.
Q. What information in your —
A. My application, something or another.
Q. Do you have any evidence that anything in your application indicated that you were black?
A. No, I don‘t.
Def.‘s Mot., Ex. 2, Pt. 3 (Pollard Dep.) at 86:5-17.
Nonetheless, Pollard now argues that Vandenburg “was fully aware” of Pollard‘s race. See Pl.‘s Resp. ¶ 28. Her sole evidence on this point, however, is an “Applicant Flow Data” chart. See id. (citing Pl.‘s Opp‘n, Ex. D (Applicant Flow Data)). Although the chart provides the racial and gender composition of all of the applicants for the Project Manager position, including Plaintiff, Pollard has failed to proffer any evidence whatsoever as to who created this chart and when and, more importantly, as to whether Vandenburg ever saw this chart. See id. Plaintiff also speculates that Vandenburg may have “suspected or identified Plaintiff‘s racial classification from the telephone interview,” or have otherwise inferred her race from the fact that a majority of Quest‘s employees are African-American. Pl.‘s Opp‘n at 8. “‘However, a plaintiff may not rest on mere speculation alone[,] but must produce some objective evidence’ in support of his theories.” Hamilton v. Paulson, 542 F. Supp. 2d 37, 60 (D.D.C. 2008) (emphasis in original)
Similarly, as to Leap, there is also no evidence in the record that he knew Pollard‘s race and/or color at the time he declined to select her for the second round of interviews. Indeed, Pollard admits that Leap “did not know her race.” Def.‘s Stmt. ¶ 34; Pl.‘s Resp. ¶ 34 (admitting Def.‘s Stmt. ¶ 34); see also Def.‘s Mot., Ex. 2, Pt. 3 (Pollard Dep.) at 86:18-87:2 (admitting at deposition that she met Leap for the first time the day before her deposition in this case and that she had no evidence to suggest that Leap knew what her race was when she submitted her application).
Under D.C. Circuit law, there can be no reasonable inference of racial discrimination where an individual just happens to be a member of a protected class—actionable discrimination only occurs when any employer acts “because of” the plaintiff‘s status as a member of a protected class. Brady, 520 F.3d at 493, 496 n.4 (“[e]ven if [the plaintiff] showed that the sexual harassment incident was not the actual reason for his demotion, he still would have to demonstrate that the actual reason was a racially discriminatory reason“) (citing St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 402, 514 (1993)); Ginger, 527 F.3d at 1345-46 (rejecting a claim of racial discrimination because “[t]he [plaintiffs] . . . adduced no evidence whatsoever of a causal link between race and those aspects of the reorganization [they challenged as discriminatory]“) (emphasis added).
Pollard is therefore wrong as a legal matter when she argues that, even assuming Vandenburg did not know Pollard‘s race, the mere fact that only two Caucasian candidates were
Pollard likely ignores Leap‘s role as the decision-maker in this instance because she has explicitly conceded that Leap made the decision not to select her for the Project Manager position solely based on her resume, and not her race and/or color, agreeing that:
Leap declined to interview Plaintiff . . . because he believed she lacked significant LIS experience. As [] Leap had never met Plaintiff, and thus did not know her race, he based this decision solely upon her resume.
Moreover, Pollard agrees with Leap that Kopley and Townsend were better qualified for the Project Manager position than was she. As Pollard concedes, the Project Manager‘s primary responsibility was to coordinate and maintain a new upgrade to the LIS system that was to be installed in the near future. Def.‘s Stmt. ¶ 16; Pl.‘s Resp. ¶ 16 (admitting Def.‘s Stmt. ¶ 16). In particular, the position description required the Project Manager to maintain the LIS database, facilitate LIS training for staff, audit and maintain the LIS system, and monitor the LIS system‘s performance. Def.‘s Stmt. ¶ 21; Pl.‘s Resp. ¶ 21 (admitting Def.‘s Stmt. ¶ 21).16 Accordingly,
Nonetheless, Pollard argues that Quest‘s asserted legitimate, non-discriminatory reasons for its conduct are pretextual for three reasons. First, Pollard argues that Quest‘s proffered reasons are pretextual because Vandenburg and Leap created the position description for the Project Manager position after both Townsend and Kopley were interviewed and did so in order to tailor the position description to exclude Pollard and/or the other minority candidates. See Pl.‘s Opp‘n at 5-7, 10-12. Specifically, Pollard asserts that she met all of the qualifications for the job posting, as originally listed in the vacancy announcement, and was therefore qualified for the Project Manager position, but that Vandenburg and Leap collaborated after Townsend‘s interview to add new technical requirements—i.e., requirements regarding the LIS upgrade that were not included in the vacancy announcement—to exclude Pollard and all other minority interview applicants from the position. Id. at 5-6, 10-11. Although a plaintiff may show that an employer‘s reasons are pretext by “demonstrat[ing] that the employer is making up or lying about the underlying facts that formed the predicate for the employment decision,” Brady, 520 F.3d at 495, the Court concludes that Pollard has failed to proffer sufficient evidence from which a reasonable jury could conclude that Quest‘s reasons are pretext for discrimination.
Although, as discussed above, there is some dispute as to the exact date on which the position description was created, see supra at 5-6, the Court finds that there is no evidence in the record to support Pollard‘s allegations that it was changed by Vandenburg and Leap after Townsend was interviewed. As discussed above, Pollard claims that the position description was first drafted in August 2005—i.e., after Townsend was interviewed on July 20, 2005. See Pl.‘s Resp. ¶ 20; Pl.‘s Opp‘n, Ex. C (EEOC Investigative Report). As support for this claim, Pollard
Quest, however, has presented evidence that the position description was, in fact, drafted prior to August 22, 2005. Specifically, Quest has proffered evidence that the position description, or at least a version of it, was composed as early as June 24, 2005. See id. ¶ 7 (showing that the position description at issue had been printed on June 24, 2005). In addition, both Vandenburg and Leap averred that the position description was not changed after they had interviewed either Pollard, Kopley or Townsend. See Def.‘s Reply, Ex. 2 (Vandenburg Decl.) ¶ 3; id., Ex. 3 (Leap Decl.) ¶ 3. Quite obviously, if the description was not changed after Townsend‘s interview, then it logically could not have been created after Townsend‘s interview. It is therefore evident from the record that the position description was first created, at the latest, on June 24, 2005, not on August 22, 2005 as Pollard asserts.
Moreover, even if the position description had been changed after Townsend‘s interview, Pollard has not presented any evidence from which a reasonable jury could infer that the technical requirements listed in the position description were included for a discriminatory reason. Indeed, to the contrary, Pollard repeatedly agrees with Quest that technical knowledge and experience, particularly with the LIS upgrade at issue, were important aspects of the Project Manager position. For example, although Pollard argues in her briefing that “[t]here is no reason to believe . . . that the considerations established in the . . . position description were reasonably job related,” Pl.‘s Opp‘n at 10, Pollard concedes that the “primary responsibility of the Project
Finally, Pollard has conceded that Quest‘s initial decision to offer the position to Kopley was not discriminatory. Pl.‘s Opp‘n at 5 n1. (“Plaintiff‘s failure to promote claim only challenges [Quest]‘s selection of Sean Townsend, not Jane Kopley, the other white comparator.“); see also Def.‘s Mot., Ex. 2, Pt. 3 (Pollard Dep.) 103:3-15 (admitting that she did not believe that Quest‘s decision to initially offer the Project Manager position to Kopley was discriminatory). Indeed, as stated above, Pollard admits that “Kopley‘s prior experience with the new LIS upgrade rendered her far more qualified for the Project Manager position. See Def.‘s Stmt. ¶ 41; Pl.‘s Resp. ¶ 41 (admitting Def.‘s Stmt. ¶ 41). Given that Kopley and Townsend went through the same interview process and were selected based on the same set of job requirements, Pollard‘s claim—i.e., that the initial decision to select Kopley was not discriminatory, but the subsequent decision to select Townsend was discriminatory—makes little sense and lacks merit.
Second, Pollard alleges that certain inconsistencies between Vandenburg‘s and Leap‘s deposition testimony concerning the manner in which the position description was drafted demonstrates that Quest‘s proffered reasons are pretextual. Pl.‘s Opp‘n at 11-12. As the D.C.
Upon closer inspection, however, the Court finds nothing inconsistent about the testimony at issue. Contrary to Pollard‘s assertion, Leap did not testify that only he and Vandenburg composed the position description without the assistance of others, but rather that the position description was drafted by a “combination of [Vandenburg], myself and human resources.” See Def.‘s Reply, Ex. 7 (Leap Dep.) at 21:5-8. This is not materially inconsistent with Vandenburg‘s testimony that he and Leap drafted the position description along with assistance from Human Resources and Lim. See Pl.‘s Opp‘n, Ex. H (Vandenburg Dep.) at 30:3-22; Def.‘s Reply, Ex. 6 (Vandenburg Dep.) 24:4-25:14. That Vandenburg specifically mentioned Lim by name, while Leap did not, is not in these circumstances the type of material inconsistency
Third, Pollard alleges that Quest “deliberately disregarded its policy” requiring position descriptions to be drafted prior to the posting of the vacancy announcement, such that a reasonable jury could infer Quest‘s proffered reasons are pretext for discrimination. Pl.‘s Opp‘n at 12. The Court is persuaded, however, “that ‘[a]n employer‘s failure to follow its own regulations and procedures, alone, may not be sufficient to support the conclusion that its explanation for the challenged employment action is pretextual.’ Rather, the ‘irregularities, even if proven,’ must ‘indicate discriminatory hiring practices.‘” Hamilton, 542 F. Supp. 2d at 48 (quoting Fischbach v. D.C. Dep‘t of Corr., 86 F.3d 1180, 1183 (D.C.Cir.1996) and Butler v. Ashcroft, 293 F. Supp. 2d 74, 80 (D.D.C.2003)). Although, as discussed above, the date the position description was created is in dispute, even assuming that the position description was not drafted until after the vacancy announcement was posted—i.e., that the position description
Finally, the Court notes that Quest has directed the Court to “evidence of [its] strong track record in equal employment opportunity,” which the D.C. Circuit has found may be considered in evaluating the ultimate question of discrimination vel non. See Aka, 156 F.3d at 1289. As noted above, Quest has a comprehensive anti-discrimination policy and conducts annual equal employment opportunity training sessions. Id. ¶ 3. In addition, 70% of Quest‘s current employees at the Providence location are African-American, as were 65% at the time of Pollard‘s termination, and 100% of Quest‘s current managerial staff at the Providence location are African-American, as were 50% at the time of Pollard‘s termination. Id. ¶¶ 4, 5. Although by no means dispositive, Quest‘s “strong track record in equal employment opportunity” further emphasizes
B. Pollard‘s Retaliation Claims
Pollard next alleges a claim of retaliation in violation of both
Quest has repeatedly proffered legitimate, non-retaliatory reasons justifying the performance review grade given to Pollard. Specifically, Quest has asserted that Aglipay gave Pollard an “Achieves Expectations” rating “[b]ased upon her overall performance,” and in particular, based on complaints that Aglipay had received from the Providence hospital staff regarding Pollard‘s attitude as well as Pollard‘s failure to meet the time pressures associated with her job. Id. ¶¶ 53, 55.
Because Quest has proffered these legitimate, non-retaliatory reasons, see Brady, 520 F.3d at 493, whether Pollard has established a prima facie case of retaliation is “irrelevant.” Adeyemi, 525 F.3d at 1226. Thus, the court‘s inquiry collapses into the single question of whether Pollard has produced sufficient evidence for a reasonable jury to find that Quest‘s asserted non-retaliatory reasons were not the actual reason for the results of Pollard‘s performance evaluation, and that the real reason was based on retaliation. See Brady, 520 F.3d at 493. As with claims for discrimination, Pollard may establish liability for her retaliation claims in one of two ways—either by using a “single-motive” or “mixed-motive” theory. Fogg, 492 F.3d at 451. In the present case, as with her claims of disparate treatment, Pollard advances a “single-motive” case of retaliation, arguing that Quest‘s asserted reasons are a “pretext [for] retaliation.” See Pl.‘s Opp‘n at 15.
Because the strength of a plaintiff‘s prima facie case constitutes relevant evidence for determining retaliation vel non, see Reeves, 530 U.S. at 143, the Court first pauses to address Quest‘s assertion that Pollard has not established a prima facie case of retaliatory non-selection. See Def.‘s Mot. at 27-29. As discussed above, to establish a prima facie claim of retaliation, Pollard must show: (1) that she engaged in a statutorily protected activity; (2) that she suffered a materially adverse action; and (3) a causal connection exists between the two. Wiley, 511 F.3d at 155. Here, Quest asserts that Pollard cannot satisfy the second and third elements of her prima facie case. See Def.‘s Mot. at 36-37.
As to the second prima facie element, Quest asserts that the “Achieves Expectations” rating awarded to Pollard during the 2005 performance evaluation is not a materially adverse action because it was a satisfactory rating and had only a de minimis affect on Pollard‘s merit increase (i.e., her 2005 merit increase of 3% was only slightly lower than her 2004 merit increase of 4%). Def.‘s Mot. at 27-29. Pollard responds that the 2005 performance evaluation is a materially adverse action because it directly affected her compensation in the form of a lowered merit increase. Pl.‘s Opp‘n at 13-14.
As the D.C. Circuit has observed, “‘[a]dverse actions’ in the retaliation context encompass a broader sweep of actions than those in a pure discrimination claim,” Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008), and a performance rating, even if otherwise satisfactory, can be a materially adverse action when accompanied by a diminished bonus or monetary award, see Russell v. Principi, 257 F.3d 815, 818-19 (D.C. Cir. 2001) (finding that plaintiff had shown an adverse action where “the size of [plaintiff‘s] bonus was directly tied to her performance rating; a higher rating would have automatically meant a larger bonus“); cf Weber v. Battista, 494 F.3d 179, 185 (D.C. Cir. 2007) (finding that plaintiff had shown adverse action where evidence in the record that annual performance evaluation affected award of performance bonuses). Here, Pollard has presented evidence that her merit increase pay is directly affected by her annual performance evaluation. See Pl.‘s Opp‘n at 13-14. Specifically, Aglipay testified at deposition as follows:
Q. Do you know anything about the merit increase pay for Quest Diagnostic Laboratories?
* * *
A. It depends on your evaluation.
Q. And if an employee is given an excellent versus achieved expectation does that have an impact on their merit increase pay, if you know?
A. Yes.
Pl.‘s Opp‘n, Ex. H (Aglipay Dep.) 49:9-18.
Quest does not dispute that Pollard received a 4% merit increase as a result of her 2004 “Excellent” rating and that she subsequently received a 3% merit increase as a result of her 2005 “Achieves Expectations” rating, but rather suggests that this difference is so trivial as to not be materially adverse. Def.‘s Mot. at 27-29. The Court notes as an initial matter that, despite Quest‘s assertion that the difference is “trivial,” there is no evidence in the record as to the exact
Turning to the third prima facie element, Quest asserts that Pollard has not shown that there is a causal connection between the alleged adverse action and her protected activity because she has failed to provide any evidence that Aglipay knew of Pollard‘s discrimination complaints at the time she prepared the 2005 performance evaluation. Def.‘s Mot. at 29. A plaintiff may establish the “causal component of the prima facie case . . . by showing that the employer had knowledge of the employee‘s protected activity, and that the adverse personnel action took place shortly after that activity.” Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985); see also Hazward v. Runyon, 14 F. Supp. 2d 120, 124-25 (D.D.C. 1998).20 As discussed above, see supra
The Court agrees with Quest, however, that Pollard has not provided any evidence that Aglipay knew of Pollard‘s discrimination complaints prior to the completion of the 2005 performance evaluation. At deposition, Aglipay testified that she was not aware of Pollard‘s complaints of discrimination at the time she prepared the performance evaluation:
Q. . . . The performance appraisal that was conducted by you on Ms. Pollard [sic] dated January 2006, right? At the time you had assessed her performance did anybody mention that Ms. Pollard was complaining of or she raised the issue of discrimination?
A. No. I didn‘t hear anything.
Def.‘s Reply, Ex. 4 (Aglipay Dep.) 59:3-8. Pollard has not provided any affirmative evidence to dispute Aglipay‘s own testimony that she had not heard about Pollard‘s discrimination claim at the time she prepared the 2005 performance evaluation.21 The Court therefore agrees with Quest that Pollard “cannot establish a causal connection between the EEO activity and [her] non-selection for the [Project Manager] position because [she] has not sufficiently demonstrated that the selecting official, [Aglipay], knew of [her] prior EEO activity.” Henderson v. Rice, 407 F. Supp. 2d 47, 52 (D.D.C. 2005); see also Holdbrook v. Reno, 196 F.3d 255, 263 (D.C. Cir. 1999) (holding that the plaintiff failed to prove causation because the plaintiff failed to prove the employer knew of an EEO complaint).
Pollard nonetheless appears to contend that she has satisfied the causation element because “the alleged retaliatory actions took place after the Plaintiff initiated her Charge of Discrimination [and] [t]he record contains evidence that the alleged retaliator, [] Vandenburg, knew of the formal Charge of Discrimination at the time of these events and exercised discretion over Plaintiff‘s immediate supervisor.” Pl.‘s Opp‘n at 15. As support for this claim, Pollard cites to Hazward v. Runyon, 14 F. Supp. 2d 120 (D.D.C. 1998). Pollard‘s reliance on Hazward, however, is misplaced. In that case, the court rejected the plaintiff‘s efforts to impute the knowledge of a supervisor to his subordinate, finding that evidence that the supervisor was aware of the complaints, without more, is insufficient to infer knowledge on behalf of others: “The bald fact that someone in a supervisory capacity over the plaintiff knew of the filing is insufficient to lead to a reasonable conclusion that others would also know, unless the plaintiff adduced evidence that this was the sort of information of which intermediate supervisors were required to inform their managers.” Hazward, 14 F. Supp. 2d at 124 n.9. Pollard has provided no such evidence. To the contrary, Vandenburg testified at deposition that he had no input into or influence concerning Pollard‘s 2005 performance evaluation:
Q. Did you have any input into [] Pollard‘s supervisor giving her a score of 2.75 or the 2.5?
A. No, I did not.
Q. So this was strictly independent or strictly the decision and discretion of her immediate supervisor?
A. Correct.
Def.‘s Mot., Ex. 7 Pt. 2 (Vandenburg Dep.) 71:20- 72:3. Accordingly, although Quest concedes that Vandenburg was aware of Pollard‘s protected activity prior to Pollard‘s 2005 performance review, see Def.‘s Mot. at 28, the Court agrees that Pollard has not shown that Aglipay was aware of Pollard‘s discrimination complaints or that Vandenburg‘s knowledge may be imputed to Aglipay.
Turning now to the ultimate question of retaliation vel non, Quest asserts that Aglipay gave Pollard an “Achieves Expectation” rating in her 2005 performance review based on Pollard‘s overall performance and considered complaints from doctors and nurses as well as from Pollard‘s co-workers and Pollard‘s failure to meet time pressures associated with her job. See Def.‘s Stmt. ¶¶ 53, 55. Pollard responds that Quest‘s proffered reasons are a “pretext [for] retaliation” because: (1) Aglipay was unable, at deposition, to identify the names of the individuals who complained to her regarding Pollard‘s attitude or to specify the number of complaints she received concerning Pollard; and (2) Quests has not produced any written documentation of the complaints at issue. Pl.‘s Opp‘n at 15. Noticeably, Pollard provides no direct evidence contradicting Aglipay‘s assertion that she received complaints concerning Pollard‘s attitude and that Pollard failed to meet time pressures associated with her work.
As to the first assertion, Pollard claims that “when pressed for the identifies of these phantom staffers and the quantity of the purported criticism, [] Aglipay was mysteriously unable to respond,” and directs the Court to a portion of Aglipay‘s testimony as support for this claim Pl.‘s Opp‘n at 15 (citing id., Ex. H (Aglipay Dep.) at 37:11-20). However, as shown by a full reproduction of the excerpted testimony, Pollard‘s characterization of Aglipay‘s testimony is
Q. Specifically what allegations were made regarding [] Pollard‘s attitude by staff?
A. The way she answered them back.
Q. She answered who back, ma‘am?
A. Our coworkers. Some of the staff.
Q. Was it the coworkers or was it the staff?
A. Some of the staff, nurses.
Q. We‘re talking about Providence Hospital staff, correct?
A. Yes, sir.
Pl.‘s Opp‘n, Ex. H (Aglipay Dep.) at 37:11-20). Contrary to Pollard‘s assertion, Plaintiff‘s counsel never “pressed” Aglipay for the specific names of the doctors, nurses, and other hospital staff that complained. See id. Moreover, although Aglipay testified that she could not remember with specificity the exact number of complaints, she was able to provide estimates as to the amount of complaints she received. See Def.‘s Reply, Ex. 4 (Aglipay Dep.) 31:21-40:19 (testifying that she had to speak to Pollard regarding the timeliness of her work more than five time but maybe less than ten times and that she had received at least “more than one” complaint from the Providence hospital staff concerning Pollard‘s attitude). The mere fact that Aglipay could not recall with specificity the exact number of complaints she received during 2005 is not surprising, given the lapse of time, and is certainly not evidence of “the type of ‘shifting rationale,’ or an after-the-fact statement that is required to establish that the defendant‘s [nonretaliatory] reason is a pretext.” Jones v. Bernanke, 493 F. Supp. 2d 18, 33 (D.D.C. 2007).
As to the second assertion, Aglipay explained at deposition that she generally would “just
Moreover, although Pollard has denied that Aglipay ever “inform[ed] me that I was the subject of complaints or criticisms from Providence Hospital staff,” Pl.‘s Opp‘n, Ex. B (Pollard Decl.) ¶ 4, she has not similarly denied that she received complaints from Aglipay herself regarding her failure to adequately handle the time pressures of her work nor has she presented any evidence, other than her own speculation, contradicting Aglipay‘s testimony that such complaints were in fact made. Most significantly of all, Pollard now admits that Aglipay gave her the overall “Achieves Expectation” rating “[b]ased on her overall performance.” Pl.‘s Resp.
Accordingly, given the weakness of Pollard‘s evidence as to her prima facie case and her failure to provide any evidence from which a reasonable jury could infer that Aglipay provided Pollard with an “Achieves Expectations” rating for retaliatory reasons, the Court shall grant Defendant‘s Motion for Summary Judgment on Pollard‘s claim of retaliation under both
CONCLUSION
For the reasons set forth above, the Court shall GRANT Defendant‘s Motion for Summary Judgment. This case is therefore DISMISSED in its entirety. An appropriate Order accompanies this Memorandum Opinion.
Date: February 17, 2009
COLLEEN KOLLAR-KOTELLY
United States District Judge