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Sercer v. Holder

United States District Court, E.D. Virginia, Alexandria Division

April 21, 2015

ANGELA SERCER, Plaintiff,
v.
ERIC H. HOLDER, Attorney General, U.S. Department of Justice, Defendant

For Angela M. Sercer, Plaintiff: Michael Wayne Beasley, LEAD ATTORNEY, Law Offices of Michael Wayne Beasley, Falls Church, VA.

For Eric H. Holder, in His Official Capacity as Attorney General of The United States, Defendant: Ayana Niambi Free, LEAD ATTORNEY, Kimere Jane Kimball, Danae Kaliroy Remmert, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA; Lauren A. Wetzler, United States Attorney Office, Alexandria, VA.

MEMORANDUM OPINION

CLAUDE M. HILTON, UNITED STATES DISTRICT JUDGE.

THIS MATTER comes before the Court on Defendant's motion for summary judgment.

Following her promotion to Supervisory Special Agent in the Federal Bureau of Investigation's (" F.B.I.'s" ) Behavioral Assessment Unit 1 (" B.A.U. 1" ), Plaintiff Angela Sercer experienced a series of workplace events that she found offensive and discriminatory. Because the events, taken individually or collectively, do not constitute unlawful discrimination under Title VII, and because there is no genuine issue of material fact to be decided, summary judgment in favor of Defendant is warranted.

Plaintiff began her employment with the F.B.I. on March 10, 2002, and was first assigned to B.A.U. 1 on March 14, 2010. At the time, B.A.U. 1 primarily focused on counterterrorism and addressing threats of violent crime and terrorism. At all relevant times, the unit fell within the Investigative Operations Support Section (" I.O.S.S." ) of the Critical Incident Response Group (" C.I.R.G." ). Plaintiff claims she was the victim of numerous acts of discrimination based on her sex during her assignment with B.A.U. 1. She also claims the F.B.I. retaliated against her after she engaged in protected communication with the F.B.I.'s Office of Equal Employment Opportunity Affairs (" O.E.E.O.A." or " E.E.O." ).

Plaintiff timely alleged a) four discrete acts of sex discrimination, b) that she was subjected to a hostile work environment based on her sex, and c) the F.B.I.'s actions constitute unlawful retaliation against her for twice meeting with an O.E.E.O.A. counselor--first on March 5, 2012, and next on November 5, 2012.

The first two discrete acts both stem from her 2012 performance evaluation; she received an " Excellent" overall rating, lower than the " Outstanding" rating she feels she deserved. Following her receipt of the 2012 evaluation, Plaintiff filed a grievance with the assistant director of the C.I.R.G., asserting her overall rating and her rating in three specific categories were too low. The denial of that grievance on November 21, 2012 is the second alleged discrete act. The third discrete act was her transfer from B.A.U. 1 to a unit within the F.B.I.'s Lab Division on November 8, 2012. Finally, Plaintiff alleges sex discrimination as the motivation for a recommendation that she be deemed to have lost effectiveness within B.A.U. 1. This recommendation was never acted upon, as it took place after Plaintiff's transfer to the Lab Division.

Plaintiff's hostile work environment claim is based on the discrete acts listed above along with numerous additional incidents between 2011 and 2013. The additional incidents include: multiple offensive remarks made by one of Plaintiff's coworkers; distribution within B.A.U. 1 of " The Game," a book described as an instructional manual for " pickup artists" ; her unit chief's allocation of an F.B.I. vehicle to one of Plaintiff's male colleagues; Plaintiff's unit chief's lack of support for her research project on lone offenders; Plaintiff's unit chief's consideration of directing her referral to the F.B.I.'s Employee Assistance Program (" E.A.P." ); direction from her assistant section chief and unit chief to edit a document; and the placement of erroneous documents in Plaintiff's " drop file" --an unofficial file used to document performance throughout the year for use in annual performance evaluations. Following discovery, Defendant now moves for summary judgment.

Title VII states that " [i]t shall be an unlawful employment practice for an employer...to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's...sex." 42 U.S.C. § 2000e-2(a)(1). Similarly, it is unlawful for an agency to discriminate against an employee in retaliation for an employee's exercise of her rights under Title VII. See Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008).

Plaintiff's Title VII claims are subject to the familiar burden-shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The initial burden is on Plaintiff to raise an inference of discrimination by establishing a prima facie case of discrimination by a preponderance of the evidence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If she establishes a prima facie case, " the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason" for its actions. Id. at 253. Then, if the defendant successfully carries its burden, " the plaintiff [has] an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. As with all motions for summary judgment, this Court views the facts and draws reasonable inferences in the light most favorable to the nonmoving party.

In order to establish a prima facie case of sex discrimination, Plaintiff must show: " (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) that similarly-situated employees outside the protected class received more favorable treatment." Gerner v. Cnty. of Chesterfield, Va. 674 F.3d 264, 266 (4th Cir. 2012).

As a female, Plaintiff is a member of a protected class. Further, her annual performance evaluations indicate that her job performance during the time period in question was not just " satisfactory," but " excellent." However, no adverse employment action was taken against her--to include the creation of a hostile work environment--and she has not shown that similarly-situated male employees received more favorable treatment by the F.B.I.

As to discrete acts of discrimination, Plaintiff concedes that most of her allegations are untimely. In order to exhaust her administrative remedies, something she must do before bringing a Title VII lawsuit in federal court, Plaintiff was required to report any discrete act of discrimination to an E.E.O. counselor within 45 days of its occurrence. 29 C.F.R. § 1614.105(a)(1). Aware of the 45-day requirement, Plaintiff first contacted an E.E.O. counselor on November 7, 2012.[1] Therefore she did not timely exhaust her ...


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