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Ratcliff v. Spencer

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

June 5, 2019

RICHARD V. SPENCER Secretary, U.S. Navy, Defendant.


          T.S. Ellis, III, Judge

         At issue in this Title VII and ADEA action is whether Plaintiff can survive summary judgment on any of her claims. She cannot do so; the undisputed factual record reflects that Plaintiff has not presented evidence to establish aprima facie case of gender or age discrimination, retaliation, or a hostile work environment. Accordingly, for the reasons that follow, summary judgment must be granted in Defendant's favor.[1]


         Defendant substantially complied with Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 56 regarding summary judgment by setting forth a statement of undisputed material facts in separately numbered paragraphs. Plaintiff, for her part, also substantially complied with the rules by responding to each of Defendant's undisputed facts. In addition to responding to Defendant's statement of undisputed facts, Plaintiff also sets forth a number of facts that she claims are disputed. As noted infra, these facts are immaterial. Accordingly, the following material facts are undisputed:

         Plaintiff a former senior level intelligence official, became a Chief Human Capital Officer ("CHCO") of Naval Intelligence Activity ("Naval Intelligence"), [2] in June 2010. In this capacity, Plaintiff was responsible for "developing recommending, implementing and directing programs and policies pertaining to human capital management within the Naval Intelligence Community." In 2013, Lynn Wright ("Wright") became the Deputy Director of Naval Intelligence, responsible for managing Naval Intelligence's senior executive corps, which included Plaintiff. From November 2015 to March 2018, Andrew Richardson ("Richardson") was the Assistant Deputy Director of Naval Intelligence. In this capacity, Richardson reported to Wright, and was Plaintiffs supervisor.

         Wright administered Naval Intelligence's operation of "joint duty assignments" or "JDAs" whereby an employee would be detailed to a position in another Intelligence Community element or other relevant organization for the purpose of providing an opportunity for the employee to gain a wider understanding of the missions and functions of the various components of the Intelligence Community. As such, a JDA is meant to be a career-broadening experience designed to open up new possibilities for participating employees. A JDA is, in fact, required before being considered for promotion to the senior intelligence executive corps.

         In 2014, Plaintiff applied for and received a JDA assignment with the Under-Secretary of Defense for Intelligence ("USDI"). Pursuant to a memorandum of understanding ("MOU") between Naval Intelligence, USDI, and Plaintiff, the JDA would extend from July 21, 2014 to July 19, 2016. The MOU provided that, upon completion of the JDA, the Navy would "ensur[e] that [Plaintiff was] permanently placed in [her] former position or an equivalent position, as determined by the employing element." In 2016, Plaintiff extended her JDA until July 20, 2017. Also in 2016, Wright developed guidance for implementation of JDAs. Significantly, this guidance stated: "An employee should not return to the exact same job they left, even if that is the preference of the employee and the home organization."[3]

         While Plaintiff was on her JDA, her CHCO position was occupied by Cynthia Snyder ("Snyder"). In December 2016, Snyder informed Wright and Richardson that she would be returning to her home office before her JDA term expired. As a result of Snyder's premature departure, the CHCO position was vacant and Wright decided to fill the position by advertising it to the general public. In conformance with her policy, Wright determined in late 2016 that Plaintiff would not be returning to her CHCO position. Thus in December 2016, Richardson met with Plaintiff and informed her that she would not be returning to her CHCO position. At that meeting, Richardson asked Plaintiff about her retirement plans and suggested that there were some employees at Naval Intelligence who had declined to retire. Plaintiff and Richardson also discussed cyber issues within the Intelligence Community and cyber positions that addressed those issues. In February 2017, Plaintiff emailed Richardson expressing her preference for her former CHCO position or, alternatively, extending her JDA.

         On March 31, 2017, Naval Intelligence advertised Plaintiff s CHCO position on USAJobs. Plaintiff was surprised and sent written complaints to Wright, Richardson, and their supervisors. On April 17, 2017, Richardson and Plaintiff met again. When Plaintiff expressed her interest in returning to her CHCO position, Richardson said "Sara, don't sell yourself short that the only job you can do is Human Capital." Later in the conversation, he also commented that the National Reconnaissance Office has "moms out there who . . . just want to be close to their kids, so they don't have a problem recruiting women." Plaintiff and Richardson also discussed where Plaintiff would work following her JDA. Plaintiffs email summary indicates that: (1) "I am speaking with [USDI] about a possible extension" and (2) "I will research the Navy Cyber Workforce Personnel option you presented." Richardson informed Plaintiff that hiring for the CHCO position had been paused and suggested that Plaintiff pursue a JDA with the Office of the Director of National Intelligence ("ODNI"). Plaintiff rejected this idea because it would be a demotion, but Richardson reached out to ONDI anyway. In May 2017, USDI, Naval Intelligence, and Plaintiff agreed to a short three-month extension of Plaintiff s JDA through October 27, 2017, rather than Plaintiffs proposed 18-month extension.

         On May 18, 2017, Plaintiff filed with the Navy's Equal Employment Opportunity, Diversity & Inclusion Office an informal complaint against Wright and Richardson alleging discrimination. On May 23, 2017, Plaintiff and Richardson met again and discussed the Navy cyber position that was to be created for Plaintiff to fill. Plaintiff was apprehensive that such a position would not be equivalent to her CHCO position. On May 23, 2017, Plaintiff sent an email to Richardson reiterating her concerns and indicating that the Navy had opposed her requested 18-month JDA extension. On May 31, 2017, Richardson replied indicating that Plaintiffs statement was "categorically false," that Naval Intelligence was "willing to approve any further extension of your JDA," and that her characterizations were "misleading and incomplete." The record makes clear that the proposed Navy cyber workforce position was intended to be a position with the same pay, grade, and benefits that Plaintiff enjoyed as CHCO. During the summer of 2017, Richardson worked with others to develop this cyber position. The position description underwent heavy revisions. On August 11, 2017, Plaintiff provided Richardson with her concerns and doubts about the cyber position. Richardson did not immediately respond.

         On September 18, 2017, before her JDA at USDI expired and before the design of Plaintiffs proposed cyber position at Naval Intelligence had been finalized, Plaintiff resigned from Naval Intelligence and accepted a position as Executive Director of the Federal Chief Human Capital Officers Council with the Office of Personnel Management ("OPM").[4] In October 2017, Plaintiff filed a formal equal employment opportunity complaint with the Navy's Equal Employment Opportunity, Diversity & Inclusion Office. In late 2017, Zev Goldrich, a male younger than Plaintiff, was selected to be the CHCO. A cyber position, similar to what Richardson had proposed and offered to Plaintiff, was advertised in February 2018. Plaintiff was 61 years old at the time that she filed her complaint in this case.


         The standard for summary judgment is too well-settled to require extensive elaboration here. Simply put, summary judgment is appropriate when there is "no genuine issue as to any material fact" and based on those undisputed facts the moving party "is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To serve as a bar to summary judgment, facts must be "material," which means that the disputed fact "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Importantly, at the summary judgment stage, courts must "view the evidence in the light most favorable to . . . the non-movant." Dennis v. Columbia Colletion Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002).


         Plaintiff claims that she was treated differently from other employees because of her gender and age, in violation of Title VII and the ADEA. To avoid summary judgment on her Title VII and ADEA disparate treatment claims Plaintiff must produce either direct evidence of gender and age discrimination or rely instead on the McDonnell-Douglas[5] burden shifting framework. Direct evidence is "evidence of conduct or statements that both reflect directly on the alleged discriminatory attitude and that bear directly on the contested employment decision." Johnson v. Mechs. & Farmers Bank,309 Fed.Appx. 675, 681 (4th Cir. 2009) (quoting Taylor v. Va. Union Univ., 193 F.3d 219, 232 (4th Cir. 1999) (en banc)). Here, Plaintiff has not produced direct evidence of discriminatory animus based on gender or age nor ...

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