ROBERTS v. Holder et al, No. 1:2008cv01011 - Document 56 (E.D. Va. 2009)
Court Description: MEMORANDUM OPINION re: 45 Motion to Dismiss and 46 Motion for Summary Judgment. Signed by District Judge Leonie M. Brinkema on 3/13/09. copies mailed: yes(tfitz, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA F Alexandria Division BARBARA ANN ROBERTS, i~ CLEHK, U.S. DlSTRfcr COUflT ALEXANDRIA. VIRGINIA Plaintiff, 1:08CV1011(LMB/TRJ) v. ERIC HOLDER, Attorney General and DONNA CARR, (Acting) Chief Clerk, Defendants. ) ) MEMORANDUM OPINION Before the Court are the defendants' Motion for Summary Judgment and Motion to Dismiss as to Donna Carr. For the reasons discussed below these motions will be granted. I. PROCEDURAL BACKGROUND Roberts originally filed this employment discrimination action in the U.S. District Court for the District of Columbia, where she was represented by counsel. motion, On the government's it was transferred to this Court. Since transfer, Roberts has proceeded pro se as her previous counsel is not licensed in Virginia. discrimination, Roberts has alleged race-based hostile work environment, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et sea. ("Title VII"). Roberts has missed numerous deadlines and appearances. She failed to appear for the final pretrial conference and has failed ' to file her exhibit and witness lists despite being ordered to do so by the Court. She has also failed to file any responsive pleadings to the defendants' summary judgment motion other than a motion for "suspension of case," in which she asked the Court to suspend the case while she attempted to work out a "global settlement" of all of her claims against the Department of Justice. The defendants opposed this motion, denied it. Finally, the defendants' and the Court Roberts failed to appear for the hearing on summary judgment motion. II. FACTUAL BACKGROUND Plaintiff Barbara Roberts is an African-American woman who was employed until November 8, U.S. Department of Justice, Review (EOIR), 20081 as a legal assistant by the Executive Office of Immigration Board of Immigration Appeals employment with the EOIR in August 1998, (BIA). She began her and moved to the Office of the Chief Clerk beginning in approximately 2000. Karen Vowell, antagonist, a Caucasian female and Roberts' became her supervisor in 2002-2003. became her supervisor, main alleged After Vowell Roberts alleges that Vowell and others xWhen she filed her Complaint, Roberts was still employed by the EOIR. According to the defendants' summary judgment memorandum, she was removed from her position on November 8, 2008. Board. She appealed her removal to the Merit Systems Protection This removal is not at issue here, as there is no evidence that Roberts has exhausted the administrative process. In addition, Roberts has not moved to amend her complaint to add a claim that her removal from the EOIR was an act of retaliation. discriminated against her on the basis for mistreatment, verbal abuse, of race by targeting her and discipline. Roberts focuses much of her case on various performance evaluations. For the 2001-2002 year received an overall "Outstanding" (ending March 31, "Fully Satisfactory" 2002), Roberts rating with an rating in case/files management. This review was not performed by Vowell. Roberts' job performance in 2002-2003 was February, she broke schedules in one month, In the office record by producing 1,500 briefing and subsequently broke her own record the next month by producing 2,500. performance, excellent. Roberts claims that based on her new standards were issued for the office, which caused some resentment among other employees. Notwithstanding the excellent job performance, Roberts came into repeated conflicts with other employees and individuals. June 2002, Bailey, Roberts had a loud confrontation with Vessalina an African-American contractor. only she was punished, contractor. Similarly, with Mildred Byers, Roberts alleges that while Bailey was allowed to continue as a also in June, Roberts had a confrontation an African-American employee. Roberts alleges that Byers was not sanctioned. Roberts alleges that in October 2002, including Karen Vowell, In her supervisor, for problems with invoices, three employees, erroneously blamed her causing Roberts to have a nervous breakdown for which she December, took three months medical Vowell allegedly cursed at Roberts their "team," overall rating of "Outstanding" "Outstanding" rating in all "Coiranunications/Teamwork," Successful." "spot continued; awards" rated as on July 9, Roberts' 2003, problem. 2003, after Roberts showed up a few minutes allegedly confronted only Roberts, that only Roberts on January 5, hearing her s took Byers' and demanded "everyone is 2004, On February 6, a tired of 2004, Roberts had Vowell intervened and allegedly the incident 4 at that take your evaluation and side. On February 10, Vowell using profanity, saying that another confrontation with Byers; together, Roberts also alleges especially management, go look for another job." issues continued to be a and not Myers, 2004 Vowell berated her, , However, nine and a white employee, late, turn in leave slips. meeting in front of co-workers, "Fully she received one of and Vowell in particular, Natalie Myers, with an strong job with other employees, 7, received an first review performed by Vowell. in recognition of her performance. On April to suffer. except where she was During the 2003-2004 work year, performance Roberts causing for the 2002-2003 year, job elements This was Roberts' leave, the Western Team, Notwithstanding the above incidents, In and called her "selfish" because Roberts had taken the medical the performance of leave. that directly precipitated Roberts' that Vowell worker, reassignment occurred. Roberts alleges interrupted a conversation between Roberts Beverly Shears, closely with her and a co- berating her loudly and approaching her "fist balled up." Roberts alleges reported this incident to her union, Frank Krider, and the office's Ombudsman, that she her second-line supervisor, who recommended that Roberts avail herself of a doctor at the agency's Employee Assistance Program. Roberts alleges phone with the doctor, that while she was on the Vowell again verbally reprimanded her for taking lunch beyond her authorized hours; Roberts alleges Krider had given her permission to do so. Roberts was transferred from Vowell's to another part of give her, as one supervisor put it, On February 23, post, W. 2004, Wayne Stogner, Streamline Center, After this incident, team. She was the same office for one week, assigned on detail to another office, that first moved and then the Streamline Center, to a "fresh start." soon after Roberts' arrival at her new Vowell's second-line supervisor at the told her that Vowell had informed him and other supervisors of her "reputation,"2 and that she would have to work hard to change that reputation. In his deposition, Stogner said that he had been advised of Roberts' According to Roberts, reputation, but Stogner said that Vowell stated that Roberts was often away from her desk, left work early without permission, spoke with a "heavy" voice on the phone, and had trouble getting along with co-workers. viewed her as a Roberts' received. "project" to improve. performance at Pursuant the Streamline Center was well- to agency policies, Stogner and Roberts agreed that her appraisal period for 2003-2004 would be extended further into 2004 to allow her new supervisors at Center to evaluate her. Roberts also claims that Stogner promised that her Streamline Center supervisors the evaluation without Vowell's Vowell was consulted on the Roberts "Outstanding" The rating for all This was "Fully Successful" from Vowell's categories rated as chances "Fully the same rating she received in 2002-2003. rating, according to Stogner, difficulties According to Stogner, interpersonal relations. increase) evaluation with an except where she was product was outstanding but she was she was however, evaluation. it was difficult to evaluate Roberts, downgrade, would complete Ultimately, "Outstanding" input about Roberts' with other employees. that 2003-2004 received an overall "Communications/Teamwork," Successful." input. the Streamline getting along Vowell acknowledged because her work so difficult in her Roberts claims ineligible came largely that as a result of to receive a QSI in pay as well as an extra day off, this (quality step and that her for a promotion were compromised. According to 2003-2004 the Complaint, evaluation, it was at that Roberts came this point, to believe after the that she was the subject of racial discrimination. Employment Opportunity complaint on July 20, ("EEO") 2004, She met with Equal counsel to make an informal and on August 12, representatives met with Roberts, Stogner, Roberts claims that at the meeting, 2004, EEO and Vowel1 together. Vowell admitted that she had blamed Roberts for her confrontations with Byers because she and Byers had a personal friendship, Byers came to her crying, Vowell wanted to protect Byers. Roberts also alleges that after the August 12, 2004 meeting, and all present agreed that her 2003- 2004 appraisal should be corrected, one would take responsibility. but it was never done as no On August 19, 2004, Roberts filed a formal claim of race-based discrimination with the EEO. Roberts claims that after she filed her discrimination claim, she was subjected to additional harassment, environment, and reprisal. September 2004, a hostile work She alleges that on two occasions in she returned to the Western Team office, once to give out items that her former co-workers had ordered from her children for a school fundraiser, friend to fill out her "KSAs" and once to seek help from a (knowledge, skills, forms) because she was applying for new jobs. the first occasion, second, and abilities She claims that on Vowell was hostile towards her, two supervisors, Krider and Dorrence and on the (Dee) Andrews, emailed Stogner to complain that Roberts was visiting the Western Team office. Roberts also alleges that on November 29, 2004, Glenda Evans, her first-line supervisor at the Streamline Center, directed that Roberts' "time and attendance" reports, which were still being processed at her old job location because she was only on temporary detail, be sent through inter-office mail instead of having Roberts pick them up in person. Roberts claimed that the extra time for inter-office mail made it impossible to correct any potential mistakes in her report before paychecks were issued. In late 2004, Roberts' detail to the Streamline Center ended and she was returned to the Clerk's Office, although she now reported to a different supervisor. immediately, Almost however, hostilities developed between Roberts and her co-workers and supervisors. On December 20, file from Vowell via e-mail, go through her supervisor, charges" that Roberts On February 3, 2004, after Roberts requested a Vowell responded that Roberts should not Vowell, because of "the horrible filed against Vowell. 2005, Roberts was assigned to the Priority Case Management Team within the Clerk's Office, supervision of Steve Gunderson, under the a Caucasian male, and Andrews, African-American woman. Roberts alleges that Andrews targeted her for harsh treatment, an and did so in retaliation for Roberts' filing an EEO complaint. On March 15, pointed a finger in Roberts' 2005 Andrews allegedly face after Andrews claimed Roberts was wasting time sending emails instead of working. 8 On March 15 and 16, Roberts claims she sent her Andrews found copies taped to her computer screen, did with intent allegedly sent Roberts of emails Andrews had which Roberts to embarrass her. a series claims On March 17, of hostile emails berating her for spending time completing a computer security test Roberts claims was mandatory) 2004-2005, (which before scanning documents. For Roberts received a performance evaluation rating her "Fully Satisfactory" In 2005-2006, workers. Andrews Roberts On June 2, Vessalina Bailey. overall 2005, and for each again came Roberts Roberts alleges job element. into conflict with co- again had conflicts with that during their argument, Bailey threatened violence against her, and that a supervisor, Wanda Jones, wrote up a report without mentioning Bailey's threats. a result Carr, As of suspended Roberts In September, this incident, the Chief Clerk, for one week on August Andrews was 2005. replaced by John Seilers Roberts' supervisor. Seilers, as who provided positive evaluations of her work. December, Roberts was General Counsel evaluations. Roberts 17, Donna where she also received positive claims that OGC wanted to retain her permanently, but the Clerk's Office did not agree transfer, they were as Despite Roberts' In temporarily detailed to the Office of the {"OGC"), Roberts apparently got along well with to let her short-staffed. conflicts with employees and her suspension, it appears her supervisors that her solid job performance persuaded to give her favorable performance ratings. 2005-2006, Roberts received an overall rating of as well as "Outstanding" She received an overall combination of in all areas, rating of "Outstanding" In September 2006, she was moved back to "Outstanding," detail and a ratings, from OGC. to the OGC concluded and the Clerk's Office. given Federal Court Remand duties, "Outstanding," from the Clerk's Office. and "Excellent" Roberts' For At that point, she was a job that Roberts claims was originally assigned to a GS-12 employee and was then assigned to her, a GS-7 employee. Roberts claims that in retaliation for her previous EEO complaints, "sabotage" she was given this more difficult job to her so that her performance would decline, shortly after she took this Verner, job, her new supervisor, and that April began to write her up for purported mistakes. On June 26, 2007, Roberts was suspended for seven days failure to follow instructions and unprofessional conduct. for The suspension stemmed from ten incidents in January and February of 2007 in which Roberts committed acts such as ignoring supervisors' instructions, acting belligerently and disrespectfully at meetings, and leaving meetings without permission or failing to provide an explanation. For 2006-2007, Verner and Carr, was Roberts' performance review, "Unsatisfactory" 10 overall, completed by with "Unsatisfactory" ratings in all but one category (Administration). Roberts claims that as a result of the 2003-2004 and 2004- 2005 performance reviews, increase) in salary. she was denied a QSI However, (quality step the defendants have produced affidavits that no one in EOIR received QSIs during those time periods because of budget constraints. However, one of the affidavits - that of W. Wayne Stoger - asserts that these budget constraints only occurred in 2004-2004, Roberts' whereas one non-outstanding rating did, in 2003-2004 in fact, cost her a QSI. Roberts also claims that she was denied a pay increase on June 26, 2007, again because of her negative evaluations. This assertion does not appear to be disputed. III. DISCUSSION Summary judgment is appropriate when, pleadings and attached evidence, material matter of Catrett. on the basis there is no genuine issue of fact and the moving party is entitled to a judgment as a law. See Fed. 477 U.S. 317, R. Civ. 322-23 P. 56(c); (1986). Celotex Corp. Indus. Co. v. v. Evidence must be viewed in the light most favorable to the nonmoving party. Elec. of the Zenith Radio Corp.. 475 U.S. Matsushita 574, 587 (1986) . The non-movant must set forth specific facts showing that there is a genuine issue for trial, Fed. R. Civ. P. 56(e). and not rest on mere allegations. Evidence that is 11 "merely colorable" or "not significantly probative" summary judgment motion. U.S. 242, 249 (1986). is insufficient to overcome a Anderson v. Liberty Lobby, The nonmoving party must pleadings and by her own affidavits, answers to interrogatories, Inc.. 477 "go beyond the or by the depositions, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp.. 477 U.S. at 317 (internal quotation marks omitted). Summary judgment will be granted to the defendants. preliminary matter, As a many courts within the Fourth Circuit, well as other circuits, have held that a plaintiff's as failure to respond to a summary judgment motion constitutes waiver or abandonment of a claim. FSB, 949 F.Supp. 1236, Local Civil Rule 56(B), See, e.g., 1246-47 (D. However, Md. 1997). because Roberts has response to the defendants' Court may assume Mentch v. that all of them are facts, the true. is given the benefit of the doubt the government's the defendants are still entitled to The government has provided a legitimate, nondiscriminatory reason - Roberts' defendants under failed to provide a as a pro se plaintiff and the Court evaluates summary judgment. Bank. In addition, statement of material even if Roberts arguments on their merits, Eastern Sav. behavior - to explain why the took the personnel actions she alleges racially discriminatory, harassing, 12 to have been or retaliatory. There is not even a hint of any evidence of racially-motivated discrimination or harassment on the record; all the evidence shows that any negative treatment of Roberts, even if unwarranted, was not motivated by her race but by personal animus between Roberts and some of her supervisors. Similarly, although there is temporal proximity between Roberts' EEO complaint and some of the conduct in question, the defendants has rebutted any inferences of retaliation by providing legitimate race-neutral and nonretaliatory explanations that are supported by the evidence in the record. Because Roberts has failed to respond in any way to the defendants' motion, she cannot show that the these explanations are pretextual. On this record, she cannot avoid summary judgment. A. Discrimination. Roberts claims that Vowell and others adverse treatment because of her race. drafted by counsel, the section "Count 1: Compl. violation: Roberts which was M 15-78; however, under Race Discrimination in Violation of Title VII of the Civil Rights Act of 1964, 35[ 133-145, Her complaint, lists numerous facts under the heading *DISCRIMINATION BASED ON RACE," Compl. targeted her for 42 U.S.C. § 2000e, et seq.," Roberts lists only one specific alleged that Vowell's input in the 2003-2004 evaluation caused to be downgraded from "outstanding" in the "communications/teamwork" category. 13 to "fully successful" This, according to Roberts, caused her to lose eligibility for her QSI bonus and diminished her "professional marketability." To prevail on a Title VII claim of discrimination, a plaintiff must first establish a prima facie case of unlawful discrimination, or "prove a set of facts which would enable the fact-finder to conclude, explanation, in the absence of any further that it is more likely than not that [an] employment action was the product of discrimination." Nat'l Ass'n. can do so, 53 F.3d 55, 58 (4th Cir. 1995). adverse Ennis v. If the plaintiff the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the action in question. McDonnell Douglas Corp. v. Green. defendant meets this burden, Id. 792 (1973). the plaintiff must prove, preponderance of the evidence, merely pretextual. 411 U.S. If the by a that the defendant's reasons are To make out a prima facie case, the plaintiff must show that she is a member of a protected class, was qualified for her job and performed it satisfactorily, suffered an adverse employment action, and was treated differently than similarly situated employees outside the protected class. 1384, 1385 Autrv v. (4th Cir. N.C. Dep't of Human Res.. 820 F.2d 1987). Roberts' discrimination claim fails because she cannot make a prima facie case of discrimination. Although she is a member of a protected class and performed her job, 14 and even assuming that she suffered adverse employment actions,3 there is not a scintilla of evidence that her less-than-stellar evaluation was based on her race. The defendants have offered unrefuted evidence that: ¢ Karen Vowell, question, Roberts' supervisor during the period in supervised a team of 9 employees, African-American. Krider Aff. 4. employees supervised by Vowell, Of the 8 African-American 5 received Outstanding ratings in all performance elements, ratings in 3 of the 4 elements, ratings in 2 of ¢ the 4 Id. Roberts had numerous run-ins with supervisors and co-workers, supervisor (Vowell), including a white an African-American co-worker an African-American supervisor American contractor 2 received Outstanding and 1 received Outstanding elements. Throughout her tenure at EOIR, 8 of whom were (Andrews), (Byers), and an African- (Bailey). 3To the extent that the only alleged adverse action in the discrimination count a downgrade in one evaluation category in one year (2003-2004), the defendants argue constitute an adverse employment action. that it cannot The Fourth Circuit has held that a downgrade in a performance evaluation is only actionable if the employer subsequently used it as a basis to detrimentally alter the terms or conditions of the employee's employment. James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371,. 377 (4th Cir. 2004). As described above, there is a dispute between the parties as to whether the downgrade in ratings cost Roberts a QSI in salary in 2003-2004 because the defendants have provided some evidence that no EOIR employees received QSIs that year because of budget constraints. In any case, even assuming that the downgrade did cost Roberts a QSI, Roberts cannot show that the downgrade was based on her race. 15 ¢ Byers, the principal employee who, according to Roberts, treated more favorably than Roberts, Roberts developed a "reputation" was was African-American. that was known to supervisors outside her own working team. Even if Roberts were targeted by Vowell, for harsh treatment, that such targeting was Rather, the evidence is people, and others there is no evidence whatsoever to even suggest - and indeed, Andrews, related to Roberts' race. that Vowell and Roberts did not get along that Roberts did not get along with numerous many of whom were African-American. Accordingly, this claim fails. B. Hostile Work Environment and Retaliation. Roberts harassment, further alleges that she was a hostile work environment, filed her EEO complaint on August 19, Once again, subjected to and retaliation after she 2004. the Complaint includes numerous catch-all heading events under the "RACE DISCRIMINATION AND REPRISAL DISCRIMINATION CONSTITUTING HARASSMENT AND CREATING A HOSTILE WORK ENVIRONMENT." However, in the "Claims section, Roberts isolates the following events: Roberts from visiting the Western Team office to inspect and sign her time and attendance report, be sent by inter-office mail, (1) for Relief" Vowell's preventing instead insisting that the report (2) the downgrading of Roberts' mid-term performance evaluation in 2004-2005 from "outstanding" 16 to "fully satisfactory," Roberts a document filed, (4) Evans' (3) Vowell's one-time refusal to send "due to the horrible charges" Roberts had ordering Roberts not to go to the Western Team office to socialize with her friends and former co-workers, the "sabotaging" of Roberts by putting her in a job for which she was not qualified and doomed to fail, Roberts' (5) and (6) Carr's using failures at the new job as a pretext to impose a one- week suspension. generally She also alleges that her various supervisors "harassed and/or acquiesced in allowing the harassment." Roberts' claims discrimination fail fails: was for the same reason her discrimination claim there is no evidence whatsoever treated harshly, race. for harassment and hostile work environment such treatment was To make a prima environment, harassment characteristic based on race, (3) to the extent she in any way related to her facie claim for a hostile work a plaintiff must show (2) that, (1) gender, unwelcome conduct or or other protected sufficiently severe and pervasive so as to alter the conditions of employment and create a hostile work environment, employer. (4th Cir. and (4) Smith v. 2000). three elements, some basis for imputing liability to the First Union Nat'l Bank. 202 F.3d 234, 241 Assuming that Roberts could satisfy the other there is no indication whatsoever allegedly hostile conduct Roberts 17 that any of the faced was based on her race. There is no evidence of racial animus by any of Roberts' supervisors. In her complaint, Roberts has pointed to isolated incidents where she was treated differently and disciplined more harshly than other individuals with whom she had conflicts; however, at least two of those employees - Byers and Bailey - were themselves African-American. Indeed, one of Roberts' harshest supervisors who allegedly created a hostile work environment, Andrews, was also African-American. Lastly, Roberts has provided absolutely no evidence to support the allegations in her complaint or to refute the defendants' this record, evidence. In light of Roberts cannot even make a prima facie case for hostile work environment or harassment; therefore, these claims fail. Roberts' retaliation claim requires slightly more inquiry, as retaliation under Title VII need not be directly based on race or a protected characteristic; retaliation claim, action, rather, to prevail on a Roberts must prove that she took a protected and that her employer took a materially adverse action against her that was causally connected to the protected action. Holland v. 2007) . Washington Homes. Inc.. 487 F.3d 208, The standard for a "materially adverse" that might "dissuade[] Co. v. {4th Cir. action is one a reasonable worker from making or supporting a charge of discrimination." Santa Fe Rwv. 218 white. 126 S. 18 Ct. Burlington Northern & 2405, 2415 {2006). Roberts clearly took a protected action under Title VII when she filed her EEO complaint on August 19, 2004. Because some of the incidents described above occurred in close temporal proximity to the EEO complaint, the actions were retaliatory; this this raises the possibility that thus, it is necessary to examine claim closely. Many of the actions Roberts claims were retaliatory cannot be considered "materially adverse" under the Burlington Northern standard. Specifically, requesting that a worker not spend time socializing in her former work space, particularly when that worker had a history of conflicts with her co-workers and supervisors, is not materially adverse. Similarly, sending a time and attendance report via inter-office mail, rather than allowing the employee to pick it up in person, also not materially adverse, Roberts a document nor is is the one-time failure by Vowell that Roberts was able to send to obtain from her new supervisor. As for the other alleged actions evaluation, - downgrading Roberts' placing her into a job intending her to fail, and suspending her for one week without pay - although these actions might be considered materially adverse, Roberts has presented no evidence other than mere speculation that and the facts Roberts' they were retaliatory, in evidence strongly suggest otherwise. evaluation in 2004-2005 was 19 indeed one of her more negative evaluations; she received "fully successful" all "outstanding" categories and no ratings. However, comments on her evaluation articulate legitimate, reasons for the ratings, that was noting that Roberts ratings in the non-retaliatory "was given guidance designed to improve her performance" (a comment that gives rise to an inference that her performance had been lacking), "has had difficulty in adapting to the new FOIA procedures," "has failed to perform [scanning of cabinets] without a direct order being given and even then, begin the assignment at Complaint notes the specified time." she failed to Moreover, that she had a number of conflicts with Andrews during 2004-2005. On the record before the Court, the defendants have met their burden of articulating why Roberts' evaluation for that performance time period was not retaliatory. failure to file a response to the defendants' Judgment means Roberts' there is no evidence to suggest Roberts' Motion for Summary that these reasons are pretextual. There is likewise no evidence from which a reasonable jury could conclude that Roberts was given the purportedly difficult job of Federal Court Remand duties her to fail far over too "sabotage" her and cause in retaliation for her EEO complaints. the evidence, 2006, to Roberts was placed in this new position in late two years after she long, According to without filed her EEO complaint further evidence, 20 to support - a period the causation element necessary for a claim retaliation claim. Total Action Against Poverty in Roanoke Vallev. (4th Cir. 1998) See Dowe v. 145 F.3d 653, 657 (holding that a three-year delay between protected activity and adverse action was too long to support causation). Moreover, 2007 evaluation is the unrefuted evidence from Roberts' that Roberts received seven weeks of training to prepare her for the new position, evaluation, and according to "the tasks involved in processing new to her." 2006- Roberts has made no showing, alleges in her Complaint, the [remands were] not other than what she that the new tasks she was assigned were substantially different from those she had previously performed, and there is certainly no evidence that would allow a jury to conclude that the motivating factor behind the shift of responsibilities was an insidious conspiracy to cause Roberts to fail in retaliation for her two-year-old EEO complaints. Finally, retaliatory. Roberts claims that her suspension in 2007 was Again, this suspension occurred over two years after she filed her EEO complaint and therefore is not actionable, Furthermore, without more evidence, as a retaliation claim. the defendants have presented unrefuted evidence - in the form of the suspension letter written by Carr - detailing Roberts' conduct that led to her suspension, failure to follow instructions, such as repeated argumentative behavior, mumbling under her breath when talking to supervisors. 21 and In the absence of any responsive brief or evidence by Roberts, absolutely no basis for holding that there is these reasons are pretextual.4 C. Additional Arguments Raised by Defendants. The defendants have presented additional regarding why Roberts' claims must fail. legal arguments They correctly argue that defendant Donna Carr should be dismissed because there can be only one defendant in a Title VII action arising in the federal workplace. (E.D. Va. 1995), Accordingly, granted. See Lassiter v. aff'd, F.3d 1151 the defendants' (4th Cir. Supp. {her suspension, and the denial bargaining agreement. 2008). 873 1996). the actions the 2004-2005 of a step increase in June cannot be pursued in this Court as to grieve those actions 869, motion to dismiss Carr will be complains performance evaluation, (D.D.C. 885 F. The defendants also argue that three of about which Roberts 2007) 86 Reno. she has already elected through her union under its collective See Smith v. Jackson. 539 F.Supp.2d 116 Because the reasons articulated supra provide sufficient grounds Summary Judgment, for granting the defendants' the Court need not reach this Motion for issue. 4It is particularly noteworthy that in the suspension letter, Carr actually found in favor of Roberts on some of the incidents listed by Verner in her proposed suspension letter, and that Carr's ultimate suspension of 7 days was less than the 10day suspension Verner had proposed. 22 IV. CONCLUSION For the above-stated reasons, the defendants' Motion for Summary Judgment and Motion to Dismiss will be granted by an Order to be issued with this Memorandum Opinion. Entered this '5 day of March, 2009. /s/ Leonie M. Srinkema United States District Judge Alexandria, Virginia 23
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