UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KELLY WARDELL,
Plaintiff, v. Civil Action No. 09-02079 (JEB) HILDA SOLIS, Secretary, United States Department of Labor,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Kelly Wardell is employed by Defendant, the U.S. Department of Labor, as a
GS-12 criminal investigator in the Office of Labor Racketeering and Fraud Investigations
(OLRFI). Approximately six months after returning from maternity leave, Plaintiff was
transferred to a different unit of the OLRFI. She claims that Defendant discriminated against her
on the basis of sex — in particular, by treating new mothers differently than new fathers — both
in transferring her and in failing to nominate and promote her to a GS-13 position. Defendant
has now moved for summary judgment. Because no reasonable jury could find that Defendant’s
stated reasons for declining to promote Plaintiff were pretextual, the Court will grant
Defendant’s Motion with respect to the promotion claim. As disputes of material fact preclude
summary judgment on the transfer claim, however, it will deny Defendant’s Motion on that
issue.
I. Background
Plaintiff was initially hired by the Washington Regional Office (WRO) of the OLRFI as a
GS-5 student trainee while she was still in college in 2002, and she was promoted to a GS-7
1 criminal investigator position (also referred to as a “special agent”) upon her graduation later that
year. Pl.’s Resp. to Def.’s SUMF, ¶¶ 1-2. In March 2005, she was transferred as a GS-9
criminal investigator to the Protective Operations Unit (POU), a unit of the OLRFI created after
September 11, 2001, to provide day-to-day protection to the Secretary of Labor, on a temporary
detail assignment. Id., ¶ 4; Mot., Exh. 21 (Decl. of Thomas Farrell), ¶ 4. She was promoted to
the GS-11 level a few months later and was officially reassigned to the POU in October 2005.
Pl.’s Resp. to Def.’s SUMF, ¶ 4.
Dennis Chomicki, the Special Agent in Charge (SAC) of the POU during Plaintiff’s
tenure there, promoted Plaintiff to a GS-12 position on August 6, 2006. Id., ¶ 5. Approximately
ten months later, in June 2007, Plaintiff asked SAC Chomicki when she would be promoted to
the GS-13 level, the top rung of the criminal investigator career ladder. Id., ¶¶ 6-7. Chomicki
advised her that in order to receive a promotion she should continue to work on domestic and
international trips and complete a protection class. Id., ¶ 6.
In November 2007, Plaintiff informed SAC Chomicki that she was pregnant. Id., ¶ 9.
On or about January 31, 2008, she told SAC Chomicki that, per her doctor’s advice, she would
not be able to wear a weapons-and-equipment belt or carry a firearm for the remainder of her
pregnancy. Id., ¶ 9; Mot., Exh. 8 (Decl. of Dennis Chomicki), ¶ 3. From February 3, 2008, until
she began her maternity leave, accordingly, Plaintiff worked “light duty special assignments.”
Pl.’s Resp. to Def.’s SUMF, ¶ 9; Chomicki Decl., ¶ 3. She took maternity leave beginning May
11, 2008, and returned to work on August 18, 2008. Pl.’s Resp. to Def.’s SUMF, ¶ 10.
Plaintiff was transferred from the POU back to the WRO on February 15, 2009. Pl’s
Resp. to Def.’s SUMF, ¶ 13. She maintains that she did not seek — indeed, that she opposed —
the transfer. Pl.’s SUMF, ¶ 25; Opp., Exh. 1 (Pl.’s Decl.) at 6. She alleges her transfer was
2 discriminatory, pointing in particular to statements made by SAC Chomicki both to her and to
her former supervisor, John Dolce, about the difficulties new mothers face in the POU. See Pl.’s
SUMF, ¶¶ 26-27; Pl.’s Decl. at 6; Opp., Exh. 2 (Aff. of John Dolce), ¶ 8. Assistant Inspector
General (AIG) Thomas Farrell, the individual ultimately responsible for the transfer, however,
has testified that Plaintiff was transferred because she herself requested it. See Mot., Exh. 15
(Aff. of Thomas Farrell) at 2; see also id., Exh. 14 (Farrell Email, October 16, 2008). Plaintiff
was never nominated for a promotion to the GS-13 level position. Pl.’s Resp. to Def.’s SUMF, ¶
14.
Plaintiff filed an administrative complaint of discrimination with the DOL Civil Rights
Center on April 23, 2009. Id., ¶ 16. That complaint was dismissed following Plaintiff’s filing of
the instant suit on November 3, 2009. Id., ¶ 17. Her Complaint alleges that she was
discriminated against on the basis of her gender both when Defendant did not nominate her for a
GS-13 promotion after she returned from maternity leave and when Defendant transferred her
from the POU to the WRO. Compl., ¶¶ 7.1.1-7.1.2. Defendant has now filed a Motion for
Summary Judgment. 1
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at
248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
1 In considering Defendant’s Summary Judgment Motion, the Court has reviewed Defendant’s Motion, Plaintiff’s Opposition, and Defendant’s Reply.
3 for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, Inc.,
477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to particular parts of materials in the
record.” FED. R. CIV. P. 56(c)(1)(A).
The party seeking summary judgment “bears the heavy burden of establishing that the
merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc., v.
Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under
consideration, “the evidence of the non-movant[s] is to be believed, and all justifiable inferences
are to be drawn in [her] favor.” Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. PEPCO,
447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288
(D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must “eschew
making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is
required to provide evidence that would permit a reasonable jury to find in its favor. Laningham
v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is
“merely colorable” or “not significantly probative,” summary judgment may be granted. Liberty
Lobby, Inc., 477 U.S. at 249-50.
III. Analysis
4 Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any
individual, or otherwise to discriminate 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.” 42 U.S.C. § 2000e-2(a). “This statutory text establishes
two elements for an employment discrimination case: (i) the plaintiff suffered an adverse
employment action (ii) because of the employee's race, color, religion sex or national origin . . .
.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). “[W]here the
plaintiff lacks direct evidence of discrimination,” courts have traditionally followed the three-
step “burden-shifting approach” set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), to determine whether the second element has been satisfied. Chappell-Johnson v.
Powell, 440 F.3d 484, 487 (D.C. Cir. 2006). If “an employer has asserted a legitimate, non-
discriminatory reason” for its employment decision, however, our Circuit has eschewed focusing
on the McDonnell Douglas prima facie case inquiry in favor of a more streamlined approach:
[I]n considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory 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?
Brady, 520 F.3d at 494.
With regard to both of the alleged incidents of discrimination, therefore, the Court must
first determine whether Plaintiff suffered an adverse employment action. Because Defendant has
proffered nondiscriminatory explanations for both of its employment decisions, the Court will
then follow Brady and its progeny in determining whether Plaintiff has produced sufficient
5 evidence for a reasonable jury to find that Defendant’s asserted reason was pretextual and that
Defendant in fact discriminated against her.
A. Failure to Promote
It is undisputed that Defendant’s failure to promote Plaintiff constitutes an adverse
employment action. See, e.g., Stella v. Mineta, 284 F.3d 135, 146 (D.C. Cir. 2002) (“no question
that failure to promote is an ‘adverse action’”). Defendant, however, has offered a legitimate,
nondiscriminatory reason for declining to promote Plaintiff to a GS-13 position: “Plaintiff did
not demonstrate that she could perform successfully at the GS-13 level.” Mot. at 5 (citing id.,
Exh. 18 (Def.’s Resp. to Pl.’s First Disc. Requests) at 10-11). More specifically, “Plaintiff
needed more experience doing advance work for events that had complicated logistics and
security issues. She also needed formal protective operations training . . . .” Id. (internal citation
omitted). SAC Chomicki, furthermore, has testified that Plaintiff lacked “comprehensive
knowledge of protection” and that he believed further experience and training would have helped
her obtain this knowledge. See Opp., Exh. 6 (Dep. of Dennis Chomicki) at 12.
The only remaining question, then, is whether Plaintiff has “produced sufficient evidence
for a reasonable jury to find [this] reason was not the actual reason and that the employer
intentionally discriminated against the plaintiff.” Adeyemi v. District of Columbia, 525 F.3d
1222, 1226 (D.C. Cir. 2008) (citing Brady, 520 F.3d at 493-95). Two preliminary issues are
worthy of note here. First, Plaintiff was never competing against colleagues for a specific
promotion; instead, investigators were promoted according to whatever timetable they merited.
See Opp. at 11. Second, Plaintiff is not challenging Defendant’s failure to promote her at any
time prior to her return from maternity leave. “Plaintiff is claiming discrimination based on
gender due to her being the mother of a newborn (as compared to the treatment of new fathers
6 who were special agents), not generally on the basis of gender. Plaintiff is not contending that
Mr. Chomicki treated her unfavorably prior to her return from maternity.” Pl.’s Resp. to Def.’s
SUMF ¶ 15; see also Opp. at 3. The scope of the failure-to-promote claim, therefore, is quite
limited: Plaintiff must provide evidence sufficient for a reasonable jury to find that Defendant’s
failure to nominate her for a promotion during the six-month window between her return from
maternity leave and her transfer to the WRO was discriminatory.
Plaintiff has not made such a showing. She relies primarily on the testimony of her
former supervisor, John Dolce, about her strong performance to challenge the veracity of SAC
Chomicki’s explanation. Dolce’s testimony, however, merely confirms what is not in dispute:
Plaintiff “was right on line to be promoted.” Dolce Aff, ¶ 10. Chomicki’s testimony is
consistent with Dolce’s in this respect; indeed, Chomicki suggests that Plaintiff may in fact have
been promoted had she remained in the POU and taken the next available training session in the
Spring of 2009. See Chomicki Dep. at 19-20.
Plaintiff also points to her performance appraisals in attempting to demonstrate that
Defendant’s nondiscriminatory explanation was pretextual. See Opp. at 8-9. While these
appraisals certainly demonstrate that Plaintiff was performing satisfactorily, they do not establish
that she was so well qualified for a promotion as to raise an inference of discrimination. On
SAC Chomicki’s 2008 GS-12 written evaluation, as Plaintiff emphasizes, her performance was
rated “Exceeds” for three elements, “Meets” for five elements, and “Needs Improvement” or
“Fails” for none. See Opp. at 8; Reply at 7; Opp., Exh. 3 (2008 Perf. Eval.). According to the
ratings scale, however, this amounts only to an “Effective” overall rating — right in the middle
of the five-level scale. See 2008 Perf. Eval.; see also Reply at 7. This rating was significantly
lower than the “Outstanding” she received the year in which SAC Chomicki promoted her from
7 GS-11 to GS-12. See Opp., Exh. 6 (2006 Perf. Eval.). The written evaluations, therefore, are
consistent with the testimony of both Dolce and Chomicki — Plaintiff’s was on track for a
promotion, but was not yet clearly entitled to one. The judiciary is simply not a “super-personnel
department that reexamines an entity’s business decisions” in close cases. Jackson v. Gonzales,
496 F.3d 703, 707 (D.C. Cir. 2007) (quoting Holcomb, 433 F.3d at 897) (internal quotation
marks omitted).
Next, Plaintiff argues that SAC Chomicki’s reliance on the training course she had not
completed as a basis for declining to nominate her for a promotion was pretextual, pointing to
Dolce’s testimony that “this had never been a requirement” for the GS-13 position. See Opp. at
6-8 (quoting Dolce Aff., ¶ 10). Defendant, however, has provided evidence demonstrating that
Dolce was mistaken and that, in fact, each individual promoted to the GS-13 level between 2000
and 2010 received comparable training. See Def.’s Resp. to Pl.’s First Disc. Requests at 10, 15-
16.
Acknowledging that “each Agent was nominated on his or her own” such that “the
promotion of one did not preclude others being promoted,” Plaintiff does not devote much of her
argument to comparing her qualifications to those of individuals who received promotions. Opp.
at 11. It is worth noting, however, that each of the male agents whom Plaintiff identifies in her
Complaint as having been promoted to GS-13 despite being hired into the POU after she was had
earned outstanding performance evaluations, taken the formal protective-operations course, and
possessed significant experience at the equivalent of the GS-13 level or higher in other agencies
prior to coming to the POU. See Reply at 10; Chomicki Decl., ¶ 4; Def.’s Resp. to Pl.’s First
Disc. Requests at 11-13, 15-16. In any event, even if Plaintiff could demonstrate that she was
more qualified than others who were promoted — which she has not done — that would not be
8 sufficient. To support an inference of discrimination, a jury must be able to find Plaintiff was
“significantly better qualified for the job.” Holcomb, 433 F.3d at 897 (emphasis added). Such a
showing has not been made here.
Finally, Plaintiff references Dolce’s testimony that “SAC Chomicki told [him] that it was
going to be harder for the [Plaintiff] to do protective assignments, since she was a mother”
whereas “he didn’t think that would be a problem” for “the other single parent on the detail (a
male).” Dolce Aff., ¶ 7. That testimony, however, appears to concern the transfer, which is
addressed in Section III.B, infra, not the failure to promote. See Mot., Exh. 27 (Chomicki Aff.)
at 4 (providing context for this discussion and testifying that conversation took place just before
Plaintiff’s transfer).
In the final analysis, Plaintiff has provided evidence establishing that she was “right on
line to be promoted.” Dolce Aff., ¶ 10. Indeed, this may well have happened had she remained
in the POU. She has not provided evidence, however, that her non-promotion during the short
window between her return from maternity leave and her transfer was discriminatory. On the
contrary, SAC Chomicki’s explanation for declining to nominate her for a promotion both is
supported by evidence and has remained consistent prior to and throughout this dispute.
Defendant’s Motion, therefore, is granted with respect to this claim.
B. Transfer
Plaintiff’s second claim fares better. She argues that Defendant discriminated against her
on the basis of her gender when it transferred her from the POU back to the WRO. In seeking
summary judgment, Defendant first argues that the transfer was not an adverse employment
action. To establish an adverse action “in the absence of diminution of pay or benefits, plaintiff
must show an action with ‘materially adverse consequences affecting the terms, conditions, or
9 privileges of employment.’” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (quoting
Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)).
“[U]nder certain circumstances, a lateral transfer may qualify as an adverse action;
whether it does or not is ‘generally a jury question.’” Czekalski v. LaHood, 589 F.3d 449, 456
(D.C. Cir. 2009) (quoting Czekalski v. Peters, 475 F.3d 360, 364-65 (D.C. Cir. 2007)) (emphasis
in original). If Plaintiff has proffered evidence sufficient for a reasonable jury to find that her
transfer from the POU to the WRO left her with “significantly different responsibilities,” Forkkio
v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (quoting Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 761 (1998)), Defendant is not entitled to summary judgment. See Czekalski v. Peters,
475 F.3d at 365 (if reasonable jury could find that transfer left plaintiff with “significantly
diminished responsibilities, a court may “not take that question away from the jury”).
Plaintiff has met that burden here. Although her salary was not officially changed upon
her transfer, Plaintiff points to financial differences between working at the POU and at the
WRO. She asserts that employees in the POU have the potential for greater earnings in certain
special pay categories, better chances of being promoted, higher per diem for overseas travel,
more flexible scheduling, and greater potential for earning frequent flyer miles. See Opp. at 17;
Pl.’s Decl. at 9-12. More importantly, Plaintiff maintains that her responsibilities were
significantly altered. “[T]he difference in the jobs,” she argues, “is between that of a run-of-the-
mill criminal investigator and someone who personally protects the life and safety of a member
of the President’s cabinet.” Opp. at 16 (citing Pl.’s Decl. at 3-13). Defendant concedes that the
responsibilities of the two units are different: “While POU’s main duty is protection of the
Secretary, the regional and field office’s main duty is conducting criminal investigations.” Mot.
at 17. In fact, Defendant admits that “[Plaintiff’s] primary duties transitioned back to conducting
10 criminal investigations” when she was transferred. Id. at 18. Despite the fact that special agents
in the WRO “periodically perform protection duties” as necessary, a reasonable jury could
certainly conclude that Plaintiff held “significantly different responsibilities” post-transfer.
Forkkio, 306 F.3d at 1131 (quoting Burlington, 524 U.S. at 761). Defendant, accordingly, has
not shown that Plaintiff’s transfer, as a matter of law, was not an adverse employment action.
Defendant nevertheless maintains it is still entitled to summary judgment because it has
offered a legitimate, nondiscriminatory reason for Plaintiff’s transfer, which she cannot
overcome. Defendant argues and both AIG Farrell and SAC Chomicki testified that the
legitimate reason for her transfer was that she herself requested it. See Reply at 15; Mot. at 6;
Farrell Email; Farrell Aff. at 3; Chomicki Aff. at 4-5. Plaintiff, however, insists she merely
“inquired about where she might transfer in response to hearing that the Agents might be moved
around if the incoming Secretary of Labor did not want as much protection as the existing one
had” and that Farrell must have been “confused.” Opp. at 13; Pl.’s Decl. at 6. Dolce’s testimony
that Plaintiff told him that she had not requested a transfer, moreover, supports Plaintiff’s
account. See Dolce Aff., ¶ 8. This factual dispute is material: if, as Farrell testified, Plaintiff
requested a transfer and was transferred pursuant to that request, her claim that her transfer was
discriminatory must fail; if, on the other hand, as Plaintiff testified, she did not request the
transfer, Defendant is left without a nondiscriminatory explanation for its action. Summary
judgment is thus impermissible.
Also disputed and similarly material is whether Chomicki told Plaintiff she was being
transferred because of her status as a new mother. Compare Chomicki Aff. at 4-6 (“Neither
myself nor ASAIC Aivazis told the [Plaintiff] that there was a reason, other than her own
request, that she was being transferred.”); Reply at 13 (“The comments about Plaintiff’s being a
11 new mother had nothing to do with her reassignment.”), with Opp., Exh. 12 (Pl.’s Aff.), ¶ 21
(“Dennis Chomicki informed me that I was being transferred due to my family.”).
Because Plaintiff has provided evidence sufficient for a reasonable jury to find that her
transfer was materially adverse and because material disputes of fact remain with regard to
Defendant’s nondiscriminatory explanation, the Court will deny Defendant’s Motion with
respect to the transfer issue.
IV. Conclusion
For the foregoing reasons, the Court ORDERS that:
1. Defendant’s Motion for Summary Judgment is GRANTED IN PART and
DENIED IN PART;
2. The Motion is GRANTED as to the failure-to-promote claim (Compl. ¶
7.1.1);
3. The Motion is DENIED as to the transfer claim (Compl., ¶ 7.1.2); and
4. All parties shall appear for a status hearing on November 1, 2011, at 10:00
a.m.
SO ORDERED.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: October 19, 2011