Hines v. Powell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________
)
KATHLEEN HAMMOND HINES, )
)
Plaintiff, )
)
v. ) Civil Action No. 98-0203 (RWR)
)
SHEILA C. BAIR,1 )
Chairman, Federal Deposit )
Insurance Corporation )
)
Defendant. )
____________________________ )

MEMORANDUM OPINION

Plaintiff Kathleen Hines filed this action alleging that her

employer, defendant Federal Deposit Insurance Corporation

(“FDIC”), had retaliated against her by refusing to promote her,

and denying her request to transfer to another division with her

slot.2 At the close of discovery, defendant moved for summary

judgment. Because plaintiff did not pursue timely her

administrative remedies with respect to her non-promotion claim,

and she has not rebutted defendant’s legitimate non-retaliatory

reason for denying plaintiff’s request to transfer her with her

1
Sheila C. Bair is substituted as the defendant under Fed.
R. Civ. P. 25(d).
2
Plaintiff had also claimed that the FDIC had retaliated
against her by giving her a poor performance evaluation.
However, defendant has been granted summary judgment on that
claim.
 - 2 -

slot, defendant’s renewed motion for summary judgment will be

granted.

BACKGROUND

Plaintiff, a legal technician in the FDIC’s Legal Division,

filed her first administrative equal employment opportunity

(“EEO”) complaint, designated as FDIC 93-03, with the FDIC on

January 22, 1993, alleging that she had been denied a promotion

in June 1992 on the basis of her race.3 On April 8, 1993, Peggy

Coates, the Discrimination Complaint Adjudication Manager for the

FDIC Office of Equal Opportunity (“OEO”), met with plaintiff and

her EEO representative and asked whether plaintiff would settle

the FDIC 93-03 complaint if she received a GC-6 promotion.

(Def.’s Mem. of P. & A. in Supp of Def.’s Renewed Mot. for Summ.

J. (“Def.’s Mem.”), Ex. 12 (“Coates Decl.”) at ¶ 4; Pl.’s Mem. Of

P.& A. in Opp’n to Def.’s Renewed Mot. for Summ. J. (“Pl.’s

Opp’n”) at 3.) Coates also contacted Lauck Walton, plaintiff’s

second-level supervisor, to discuss a settlement between

plaintiff and the FDIC, but Coates was unable to negotiate a

settlement between plaintiff and Walton. (Coates Decl. at ¶ 4.)

The next working day, plaintiff met with her first-level

supervisor, Floyd Robinson, who told her that he had not

recommended plaintiff for a promotion to GG-6, but that he would

3
The administrative complaint was later dismissed as
untimely and plaintiff did not appeal the decision to the
District Court. (Am. Compl. at ¶ 13.)
 - 3 -

consider doing so. (Def.’s Mem., Ex. 4 (“Sherman Decl.”) at Ex.

A (“Sept. 21, 1993 EEO Compl.”) at 1.)

On April 29, 1993, plaintiff met with Walton. (Sept. 1993

EEO Compl. at 2.) According to the plaintiff, during this

meeting, Walton “stated that he would be willing to promote me to

the GG-6 if I dropped the EEO complaint. He went on to say that

if I decided to go on with the EEO complaint I would remain a GG

5.”4 (Id.) (emphasis in original). Plaintiff declined Walton’s

offer at the meeting, and asked that he transfer her with her

slot to another division within the FDIC. (Sept. 21, 1993 EEO

Compl. at 2.) Walton stated that he would approve of a lateral

transfer, but not a transfer with her slot because Walton’s

supervisor, Associate General Counsel John Thomas, did not want

the division to lose the slot. (Id.)

On May 13, 1993, plaintiff sent Walton an e-mail with the

subject heading “Settlement Update.” In it, plaintiff wrote:

I tried to reach you today concerning your proposal to
settle my EEO complaint. Your offer was for me to drop
my complaint in exchange for a promotion to the Grade 6
level, effective immediately. As you know, I am
currently under consideration for a career ladder
promotion to the Grade 6 level, which in my view is
separate from the claim for a promotion I have advanced
in the EEO complaint. As I indicated to you, I am
willing to accept your offer but only if the Legal
Division further agrees to allow me to transfer myself

4
Walton stated in his deposition that he did not condition
the promotion on the withdrawal of plaintiff’s complaint, but was
offering her the promotion in settlement for the EEO complaint.
(Def.’s Mem., Ex. 9 (“Walton Dep.”) at 23.)
 - 4 -

and the slot (at the Grade 5/6 level) to another
Division or Office of the FDIC. You advised me the
other day that this additional condition is
unacceptable to you. Please let me know if you’ve
change[d] your mind about this additional condition.

(Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss, Ex. C (“May 13,

1993 E-Mail”).)

On May 21, 1993, Walton sent plaintiff a memorandum with the

subject heading “Your E-Mail 16:37:35 May 13, 1993,”

acknowledging that the “EEO complaint is completely separate from

your present situation in which you are under consideration for a

career ladder promotion by Mr. Robinson.” (Sherman Decl. at

Ex. G (“May 21, 1993 Mem.”).) Walton also noted in the

memorandum that he would not recommend a transfer of the slot and

that he was withdrawing his previously-extended settlement offer

in order to “clear the decks” for future settlement discussions

with plaintiff’s new representative, Chris Conanan. (Id.)

Plaintiff contacted an EEO counselor through her

representative, Chris Conanan, Counsel in the FDIC Legal

Division, on June 24, 1993, alleging that Walton’s offer to

promote her in exchange for dropping her EEO complaint

constituted retaliation. (Def.’s Stmt. of Mat. Facts at ¶ 9.)

Plaintiff filed a second administrative complaint of

discrimination with the FDIC, designated FDIC 93-60, on

September 21, 1993, in which she alleged that Thomas, Walton and

Robinson were retaliating against her by conditioning her
 - 5 -

promotion on dropping her EEO complaint. (Sept. 21, 1993 EEO

Compl. at 3.)

Coates sent a letter dated October 19, 1993, with the

subject line of “Identification of Issues and Request for

Clarification,” to plaintiff’s EEO representative and plaintiff.

The letter identified the following issue for the complaint

designated FDIC 93-60: “That her career ladder promotion to Legal

Technician, Grade 6, was denied on May 21, 1993, by management of

the Legal Division’s, [sic] Professional Liabilities Section.”

(Pl.’s Opp’n to Def.’s Mot. to Dismiss, Ex. 1 (“Hines Decl.”) at

Ex. D (“October 19, 1993 Letter”) at 1.) Coates sent a second

letter dated November 18, 1993, with a subject line of

“Identification of Issue for Investigation and Assignment of

Investigator.” In that letter, Coates identified the issue for

the complaint designated FDIC 93-60 as follows: “Whether in

reprisal for her prior participation in the complaint process on

April 29, 1993, Mr. Lauck Walton told Ms. Hammond that he would

promote her to the GG-6 grade level, if she would drop her prior

complaint.” (Sherman Decl. at Ex. F (“Nov. 18, 1993 letter”).)

The November 18, 1993 letter also stated that plaintiff’s

representative should notify Coates within five calendar days if

the issue as described had not been correctly identified. Id.

Plaintiff did not object to the identification of the issue in

the November 18, 1993 letter. The investigation conducted by the
 - 6 -

FDIC focused on Walton’s offer to promote plaintiff on April 29,

1993. (“Sherman Decl. at ¶ 22.)

Plaintiff filed a third EEO complaint, designated FDIC 94-

65, on November 21, 1994, alleging that in retaliation for her

September 1993 claim, defendant denied “her request for a written

statement [from] the Legal Division that if she was offered

another position in the agency, that the Legal Division would

agree to reassign her together with her slot.” (Am. Compl. at

¶ 16.) According to plaintiff, she began seeking a transfer with

her slot out of the legal division prior to the April 29, 1993

meeting with Walton.5 (Pl.’s Dep. at 78.) Plaintiff was never

transferred out of the legal division. (Def.’s Stmt. of Material

Facts at ¶ 23; Pl.’s Dep. at 75-76.)

Plaintiff’s amended complaint alleges that Walton

“retaliated against plaintiff and her activities in pursing her

complaint of discrimination by refusing to promote her to the

next grade of her career ladder position until she dropped her

complaint of discrimination.” (Am. Compl. at ¶ 11.) The amended

complaint also alleges that she was denied a transfer with her

slot in retaliation for filing her second EEO complaint. (Id. at

¶ 16.) The defendant seeks summary judgment.

5
Plaintiff also stated in her deposition that although she
sought a transfer to other positions within the legal division,
she primarily sought a transfer to positions outside of the legal
division. (Pl.’s Dep. at 107-108.)
 - 7 -

DISCUSSION

“Summary judgment is appropriate when the pleadings and the

evidence demonstrate that ‘that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.’” Feirson v. Dist. of Columbia, 506

F.3d 1063, 1065 (D.C. Cir. 2007) (quoting Fed. R. Civ. P. 56(c));

see also Nails v. England, 311 F. Supp. 2d 116, 121 (D.D.C.

2004). “Not all alleged factual disputes represent genuine

issues of material fact which may only be resolved by a jury.

Material facts are those that might affect the outcome of the

suit under governing law, and a genuine dispute about material

facts exists if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Nails, 311 F. Supp.

2d at 121 (internal quotations omitted).

“In deciding whether there is a genuine issue of material

fact, the court must assume the truth of all statements proffered

by the non-movant except for conclusory allegations lacking any

factual basis in the record.” Hussain v. Nicholson, 435 F.3d

359, 365 (D.C. Cir. 2006) (quoting Dist. Intown Prop. L.P. v.

District of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999)).

“Summary judgment may be granted even if the movant has proffered

no evidence, so long as the non-movant ‘fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden
 - 8 -

of proof at trial.’” Dist. Intown Prop., 198 F.3d at 878

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

“Although the burden on the nonmoving party is not great, it is

still required to show specific facts, as opposed to general

allegations, that present a genuine issue worthy of trial.”

Palestine Info. Office v. Shultz, 853 F.2d 932, 944 (D.C. Cir.

1988).

I. NON-PROMOTION

Before filing a Title VII suit, a federal employee must

timely pursue her administrative remedies, following the

requirements set forth in 29 C.F.R. § 1614. If a plaintiff

believes that she has been unlawfully discriminated against, she

must consult an EEO counselor in an effort to resolve the

situation informally. See 29 C.F.R. § 1614.105(a). This contact

with the EEO counselor must occur within 45 days of the alleged

discriminatory incident. See 29 C.F.R. § 1614.105(a)(1). “The

agency or the Commission shall extend the 45-day time limit . . .

when the individual shows . . . that he or she did not know and

reasonably should not have known that the discriminatory matter

or personnel action occurred . . ..” 29 C.F.R. § 1614.105(a)(2).

The defendant bears the burden of proving that the plaintiff

failed to properly exhaust her administrative remedies. See

Colbert v. Potter, 471 F.3d 158, 165 (D.C. Cir. 2006); Armstrong

v. Reno, 172 F. Supp. 2d 11, 20 (D.D.C. 2001) (citing Bowden v.
 - 9 -

United States, 106 F.3d 433, 437-38 (D.C. Cir. 1997) and Brown v.

Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)). The plaintiff has the

burden of pleading and proving facts supporting any equitable

extension of the administrative time limits. See Armstrong, 172

F. Supp. 2d at 21 (citations omitted). “The plaintiff’s time for

[contacting an EEO counselor] starts to run when the plaintiff

has a reasonable suspicion that [she] has been the victim of

discrimination.” Johnson v. Gonzales, 479 F. Supp. 2d 55, 59

(D.D.C. 2007) (citing McCants v. Glickman, 180 F. Supp. 2d 35, 40

(D.D.C. 2001)). A plaintiff is not allowed to “wait until [she]

has direct proof of the allegedly discriminatory actions; rather,

. . . a plaintiff [must contact an EEO counselor] even if [she]

is not in possession of the ‘supportive facts’ necessary to

prosecute a discrimination charge.” Id. (quoting Parades v.

Nagle, Civil Action No. 81-1374 (TAF), 1982 WL 319, at *4 (D.D.C.

1982)).

The procedural requirements governing a plaintiff’s right to

bring a Title VII claim in court are not mere technicalities.

“[I]t is part and parcel of the Congressional design to vest in

the federal agencies and officials engaged in hiring and

promoting personnel ‘primary responsibility’ for maintaining

nondiscrimination in employment.” Patterson v. Johnson, 391 F.

Supp. 2d 140, 145 (D.D.C. 2006) (quoting Kizas v. Webster,

707 F.2d 524, 544 (D.C. Cir. 1983)). “Exhaustion is required in
 - 10 -

order to give federal agencies an opportunity to handle matters

internally whenever possible and to ensure that the federal

courts are burdened only when reasonably necessary.” Brown v.

Marsh, 777 F.2d at 14. The consultation deadline allows an

employer to investigate promptly before evidence becomes stale.

See, e.g., Delaware State Coll. v. Ricks, 449 U.S. 250, 256-57

(1980) (stating that the Title VII administrative filing

requirement protects employers from the burden of defending

claims that arise from decisions that were made long ago).

Defendant contends that the alleged retaliatory conduct

plaintiff complains of first occurred on April 29, 1993 when

Walton met with the plaintiff and allegedly told her he would

promote plaintiff only if she dropped her EEO complaint.

Plaintiff’s EEO representative did not contact an EEO counselor

regarding her claim of retaliation until June 24, 1993. Since

this was more than 45 days after plaintiff’s meeting with Walton

on April 29, 1993, defendant argues that the retaliation claim is

untimely. Plaintiff disagrees, arguing that May 21, 1993, the

date of Walton’s memorandum, was the date of the alleged

retaliatory event. She cites as support her EEO counselor’s

September 29, 1993 report which noted the date of the alleged

discriminatory event to be May 21, 1993, and the October 19, 1993

FDIC letter with the subject line “Identification of Issues and

Request for Clarification,” identifying the alleged retaliatory
 - 11 -

event as “[denial of] her career ladder promotion to Legal

Technician, Grade 6, . . . on May 21, 1993, by management of the

Legal Division’s, [sic] Professional Liabilities Section.”

(Letter of Oct. 19, 1993.) She claims that the retaliation was

part of a continuing violation and that she did not understand

the retaliatory nature of the settlement offer until she received

Walton’s May 21, 1993 memorandum withdrawing the settlement

offer. She asserts that the contact on June 24, 1993 was timely

since it occurred fewer than 45 days after the May 21, 1993

memorandum from Walton to plaintiff.

Crediting for argument’s sake that Walton’s April 29, 1993

proposition was actionable retaliation, plaintiff’s own words and

actions demonstrate that she knew or reasonably should have

suspected on that date that discrimination had occurred. See

Aceto v. England, 328 F. Supp. 2d 1, 7 (D.D.C. 2004).

Plaintiff’s amended complaint alleges that Walton “retaliated

against plaintiff and her activities in pursuing her complaint of

discrimination by refusing to promote her to the next grade of

her career ladder position until she dropped her complaint of

discrimination.” (Am. Compl. at ¶ 11.) Plaintiff’s declaration

and deposition testimony show that, as of April 29, 1993,

plaintiff believed that she would not be given a promotion unless

she withdrew her EEO complaint. In plaintiff’s declaration of

November 29, 1999, she stated that “[o]n or about April 29, 1993,
 - 12 -

. . . Mr. Walton stated that he would only be willing to promote

me to the GG-6 only if I dropped the EEO complaint.” (Pl.’s

Decl. at ¶ 7.) Plaintiff also testified that Walton stated on

April 29, 1993 that he was “willing to promote [her] to the 6 if

[she] dropped all EEO complaints . . ..” (Def.’s Mem., Ex. 3

(“Pl.’s Dep”) at 60-61.) Her own e-mail to Walton two weeks

after the April 29, 1993 meeting confirmed her understanding of

his proposal that she drop her complaint in exchange for a

promotion to the Grade 6 level. (May 13, 1993 E-mail.)

In addition, plaintiff’s own EEO complaint, filed on

September 21, 1993, indicates that she believed as of the

April 29, 1993 meeting that Walton would not promote her unless

she dropped her EEO complaint. It described in detail the

April 29, 1993 meeting with Walton. Although the May 21, 1993

Walton memorandum was attached to the EEO complaint, plaintiff’s

description of the events mentioned not the memorandum but the

April 29, 1993 meeting. Plaintiff’s EEO complaint alleged, in

pertinent part, that on April 29, 1993, “Mr. Walton stated that

he would be willing to promote me to the GG-6 if I dropped the

EEO complaint. He went on to say that if I decided to go on with

the EEO complaint I would remain a GG-5.” (Sept. 21, 1993 EEO

Compl. at 2.) Plaintiff alleged in her September 1993 EEO

complaint, among other things, that she was denied a promotion in

retaliation for refusing to drop her first EEO complaint filed in
 - 13 -

January 1993. She expressly stated that her decision at the

April 29, 1993 meeting not to drop her complaint resulted in

Walton’s alleged refusal to promote her:

I stated to Mr. Walton that I could not drop something
I believed in just to be promoted. I stated to
Mr. Walton that the EEO complaint and the promotion are
two separate issues . . . . I was promotable to the
GG-6 before Mr. Lauck Walton discussed me dropping the
EEO complaint in exchange for the promotion to the GG-6
Legal Technician. Once I decided not to drop my
complaint, I instantly became non-promotable under
Mr. Robinson.

(Id.) Nor did plaintiff ever object to or seek to correct or

clarify Coates’ November 18, 1993 letter which identified the

issue to be investigated for her retaliation complaint as whether

Walton’s April 29, 1993 promotion offer being conditioned on

plaintiff dropping her complaint was retaliation for her prior

participation in the complaint process. Plaintiff confirmed

during her deposition that the November 18, 1993 description of

the issue was correct. (Pl.’s Dep. at 105.) The investigation

that was conducted focused on the issue as it was stated in that

letter.

Plaintiff also argues that the EEO contact was timely

because the April 29, 1993 and May 21, 1993 events were part of a

continuing violation. (Pl.’s Opp’n at 4, 11 n.8.) “For statute

of limitations purposes, a continuing violation is ‘one that

could not reasonably have been expected to be made the subject of

a lawsuit when it first occurred because its character as a
 - 14 -

violation did not become clear until it was repeated during the

limitations period[.]” Taylor v. F.D.I.C., 132 F.3d 753, 765

(D.C. Cir. 1997) (quoting Dasqupta v. Univ. of Wisconsin Bd. of

Regents, 121 F.3d 1138, 1139 (7th Cir. 1997)). In this case, it

would be peculiar indeed if the character of Walton’s alleged

April 29, 1993 ultimatum as the triggering act of a continuing

violation did not become obvious until he withdrew it weeks

later. As is stated above, though, the undisputed material facts

make plain that plaintiff knew or should reasonably have known

that Walton’s behavior she says she witnessed was the

discriminatory retaliation she claims that it was.

Moreover, in National Railroad Passenger Corporation v.

Morgan, 536 U.S. 101 (2002), the Supreme Court held that Title

VII “precludes recovery for discrete acts of discrimination or

retaliation that occur outside the statutory time period.” Id.

at 105. The Court held that “a Title VII plaintiff raising

claims of discrete discriminatory or retaliatory acts must file

[her] charge within the appropriate time period.” Id. at 122.

In so holding, the Court discussed prior opinions in which it had

rejected a plaintiff’s attempt to use, for example, a termination

that occurred within the limitations period to “pull in . . . a

time-barred discriminatory act.” Id. at 113. “[D]iscrete

discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges. Each
 - 15 -

discrete discriminatory act starts a new clock for filing charges

alleging that act.” Id.; see also Ledbetter v. Goodyear Tire &

Rubber Co., 127 S. Ct. 2162, 2169 (2007) (stating that to be

actionable, a discrete act must occur within the filing period).

Plaintiff may not benefit from the continuing violation

theory to revive her claim based on the April 29, 1993 event, a

“discrete” event within the meaning of Morgan. The fact that

Walton sent the May 21, 1993 memorandum does not make the

complaint timely, because the earliest alleged discrete

retaliatory act occurred on April 29, 1993, when plaintiff

understood Walton’s settlement offer to mean that he would not

promote her unless she dropped her EEO complaint. Walton’s

withdrawal of his proposal on May 21, 1993 did not convert the

April 29, 1993 event into a continuing violation and did not re-

start the 45-day clock. Indeed, at no time during the

administrative process, and at no place in her complaint or her

amended complaint in this action, did plaintiff state that the

May 21, 1993 withdrawal of the settlement offer was the

retaliatory event at issue. During the administrative process

and in her complaints here, plaintiff always maintained that the

alleged retaliatory act was conditioning any promotion upon her

dropping her EEO complaint. Accordingly, recasting the act of

retaliation as the withdrawn proposal is unavailing.
 - 16 -

Because the alleged retaliatory event occurred on April 29,

1993 and plaintiff first contacted an EEO counselor on June 24,

1993, plaintiff failed to contact an EEO counselor within 45 days

of the alleged retaliatory event. Thus, defendant has sustained

its burden of proof in establishing that the plaintiff failed to

pursue timely her administrative remedies. Plaintiff has set

forth no evidence to warrant an equitable extension of the

administrative time requirements. Accordingly, defendant’s

motion for summary judgment with respect to plaintiff’s claim

that Walton refused to promote her until she dropped her EEO

complaint will be granted.

II. DENIAL OF TRANSFER WITH SLOT

A court considering a motion for summary judgment on a Title

VII retaliation claim applies a burden-shifting framework.

Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999); see Smith v.

Dist. of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005). A

plaintiff must establish a prima facie case of retaliation by

showing that she engaged in activity protected by Title VII, that

the defendant took an adverse employment action against her, and

that the adverse action was causally related to the exercise of

her rights. See Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir.

2007); Smith, 430 F.3d at 456; Jones v. Washington Metro. Area

Transit Auth., 205 F.3d 428, 433 (D.C. Cir. 2000); Brown, 199

F.3d at 452. Once the plaintiff has established a prima facie
 - 17 -

case, the burden shifts to the employer to “articulate a

legitimate nonretaliatory reason for its action.” Cones v.

Shalala, 199 F.3d 512, 520-21 (D.C. Cir. 2000); see also

Singletary v. District of Columbia, 351 F.3d 519, 524 n.5 (D.C.

Cir. 2003). If the employer meets this burden, the burden

shifting ends, and a court must assess “whether a reasonable jury

could infer intentional [retaliation] from the plaintiff’s prima

facie case and any other evidence the plaintiff offers to show

that the actions were [retaliatory] or that the [non-retaliatory]

justification was pretextual.” Smith, 430 F.3d at 455 (internal

quotations and citations omitted); Woodruff, 482 F.3d at 529.

Under Brown, denying a lateral transfer can constitute an adverse

action if it results in an objectively tangible harm to a future

employment opportunity. Id., 199 F.3d at 457.

Plaintiff filed an EEO complaint on November 21, 1994

alleging that in retaliation for her September 1993 claim,

defendant denied “her request for a written statement [from] the

Legal Division that if she was offered another position in the

agency, that the Legal Division would agree to reassign her

together with her slot.” (Am. Compl. ¶ 16.) Plaintiff argues

that defendant’s denial of a transfer with her slot is an adverse

action because she lost the opportunity to be promoted by being

required to remain in the Professional Liability section. (Pl.’s

Opp’n at 21.)
 - 18 -

Plaintiff’s argument suffers from two key weaknesses. The

first is that she has presented no evidence that she or any other

employee of her division was entitled to expect that her division

would upon request forfeit an allocated employee position to

accommodate an employee’s desire to transfer laterally. She has

cited no authority to support the proposition that an employee

makes out an adverse action when an employer, preferring to keep

staffing slots and not reduce them, declines to surrender a slot

it had neither wanted to surrender nor offered to anyone to

surrender.

Second, assuming for the sake of argument that plaintiff

could make out a prima facie case of retaliation with respect to

defendant’s denial of a transfer with her slot, defendant’s

explanation is a legitimate non-retaliatory justification.

Defendant has provided evidence that plaintiff was denied a

transfer with her slot because it would have reduced the

Professional Liability section staff level. Walton’s May 21,

1993 memorandum to plaintiff states: “From the beginning, I have

also made it clear to you that I had to be in a position to fill

the vacancy your leaving would create. Obviously, if we transfer

your slot, we cannot do that. . . . I have informed you that if

you could consummate a lateral without transferring the slot,

that would be satisfactory, but that I would not recommend either
 - 19 -

retroactivity or transfer of the slot.” (May 21, 1993 Mem.)6

Walton stated in his deposition that plaintiff “couldn’t take her

slot outside the legal division because the legal division

wouldn’t do that.” (Walton Dep. at 20-21.) Plaintiff’s EEO

complaint even corroborates that. (EEO Complaint at 3 (“Mr.

Walton stated that Mr. Thomas did not [want] to [lose] the Legal

Technician slot.”).) Walton further stated that Glen Bjorklund

had told either him or Thomas that plaintiff could not be

transferred with her slot. (Id.) Bjorklund, the former Manager

for Administration of the FDIC Legal Division, stated in his EEOC

hearing testimony that he discussed transferring plaintiff with

her slot with Walton and Walton’s supervisor, John Thomas, and

Bjorklund told them that he “didn’t believe that Deputy General

Counsel Smith would approve the moving of the slot and that it

was something that . . . they could recommend, but that they

could not approve on their own. (Def.’s Mem. Ex. 14 (“EEOC Hr’g,

Test. of Glen Bjorklund”) at 381.) Bjorklund stated that he

believed that Walton and Thomas “both wanted to permit her to

leave with her slot.” (Id. at 382.) Bjorklund also stated that

the decision was made not to grant it because “[t]he division was

6
Plaintiff even confirms that Walton would have allowed
plaintiff a lateral transfer without her slot had she requested
one. Plaintiff stated in her second administrative complaint of
discrimination (FDIC 93-60) that when she met with Walton on
April 29, 1993 and discussed a possible transfer, he said he
would agree to a lateral transfer without the slot. (EEO
Complaint at 3.)
 - 20 -

not willing to give up a position to another position that it

would have to turn around and fill from within its own

allocation, because we would have had to have transferred another

slot or decided that the work could go undone or go out and

recruit somebody from either within the division or outside of

the division to do the work that [plaintiff] was doing.” (Id. at

382.) Bjorklund recalled that Deputy General Counsel Smith made

the decision not to permit plaintiff to transfer with her slot.

(Id. at 383.)

In an attempt to demonstrate pretext, plaintiff first argues

that Walton’s testimony conflicts with Robinson’s deposition

testimony. She points to Robinson’s statement in his deposition

that “[a]t some point I am reasonably certain that [Thomas]

agreed to let her transfer out with her slot.” (Robinson Dep. at

18.) This testimony does not suggest pretext. Regardless of

whether Thomas was willing to transfer plaintiff with her slot,

the fact remains neither Walton nor Thomas had the authority to

transfer plaintiff with her slot, and that Deputy General Counsel

Smith would have to approve any such request. (EEOC Hr’g, Test.

of Glen Bjorklund at 381.) Bjorklund’s uncontroverted testimony

demonstrates that neither Walton nor Thomas made the decision and

that the decision was made to maintain staffing allocations.

Plaintiff also argues that Bjorklund did not discuss the transfer

question with Walton and Thomas until 1995, almost two years
 - 21 -

after her request to be transferred, citing to his testimony at

the EEOC hearing. However, plaintiff’s argument is not supported

by the testimony she cites. All Bjorklund’s July 29, 1997

testimony reflects is that Bjorklund recalled that Deputy General

Counsel Smith made the decision not to permit plaintiff to

transfer with her slot, but when asked when the decision was

made, Bjorklund responded “I don’t recall the actual date. I

believe it was well over two years ago.” (EEOC Hr’g, Test. of

Glen Bjorklund at 383.)

Even if denying one a lateral transfer with one’s slot could

constitute an adverse action and plaintiff could establish a

prima facie case of retaliation based on the denial of a transfer

with her slot, the fact that the Legal Division did not want to

reduce its overall number of staff positions by transferring the

slot is a legitimate non-retaliatory reason for the denial.

Plaintiff has not presented sufficient evidence to demonstrate

that defendant’s legitimate non-retaliatory reason for denying

plaintiff a transfer with her slot was a pretext for retaliation.

Accordingly, defendant is entitled to summary judgment on this

claim.

CONCLUSION

Because the plaintiff failed to contact an EEO counselor

within 45 days of the alleged retaliatory event on April 29,

1993, and plaintiff has offered no evidence to establish that
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extension of the administrative deadlines is warranted, plaintiff

has failed to pursue timely her administrative remedies and

summary judgment will be entered in favor of the defendant as to

the non-promotion claim. Because defendant has provided a

legitimate non-retaliatory reason for denying plaintiff a lateral

transfer with her slot, and plaintiff has not presented

sufficient evidence to demonstrate that the reason is a pretext

for retaliation or that the denial otherwise was retaliatory,

summary judgment will be entered in favor of defendant on that

claim. Accordingly, defendant’s renewed motion for summary

judgment will be GRANTED. An appropriate Order accompanies this

Memorandum Opinion.

SIGNED this 27 day of January, 2009.

/s/
RICHARD W. ROBERTS
United States District Judge