UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANNETTE L. CHANDLER, )
)
Plaintiff, )
)
v. ) Civil Case N0. 16-1439 (RJL)
)
)
MARTIN J. GRUENBERG, Chairman, )
FEDERAL DEPOSIT INSURANCE ) D
CORPORATION, ) F l L E
) JuL 2 0 2017
Defendant' ) C|ork, U.S. Dlstrict & Bankruptcy
Courts lar the Dlstr|ct of Co\umb|a
MEMORANDUM OPINION
(July jj, 2017) [# 9]
Annette L. Chandler (“Chandler” or “plaintiff’), proceeding pro se, brings this
action alleging that defendant, Martin J. Gruenberg (“Gruenberg” or “defendant”), in his
capacity as Chairman of the Federal Deposit Insurance Corporation (“FDIC” or “the
Agency”), retaliated against her for her protected civil rights activity, in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (“Title VII”). This
matter is now before the Court on defendant’s Motion to Dismiss [Dkt. # 9]. Upon
consideration of the parties’ submissions, defendant’s motion is GRANTED and
plaintiffs case will be DISMISSED with prejudicel
1 On February 6, 2017, plaintiff moved for leave to flle an amended complaint [Dkt. # 14] in an attempt to
bolster the facts supporting her claim of retaliation. There are no new factual allegations in her motion,
however, that would alter my ruling in this Memorandum Opinion. Her motion is therefore DENIED as
moot.
l
BACKGROUND
Plaintiff is a former employee of the FDIC, having worked there from February
25, 1977 until her retirement on August 30, 2007. See Compl. at W 4, 6; Def.’s Mot. to
Dismiss (“Def.’s l\/[ot.”), Ex. A (“Investigative Report”) at 3. Immediately prior to her
retirement, plaintiff was serving as Investigative Specialist with the FDIC’s Offlce of
lnspector General. See Compl. at il 6. Federick Gibson (“Gibson”), Acting lnspector
General, was Chandler’s second-level supervisor while she was employed with the FDIC.
Def.’s Mot., Ex. E (“Final Agency Decision”) at 3. During her time as an FDIC
employee, plaintiff filed ten Equal Employment Opportunity (“EEO”) administrative
complaints and two civil actions against the Agency. See Def.’s Mot., Ex. B (“Pl.’s
Aff.”) at 3.
ln 2009, after Chandler’s retirement from the FDIC, Mir, Mitchel & Company
(“l\/[l\/IC”) contacted plaintiff and suggested that she apply for a position with the
company. Ml\/IC is a Receivership Assistance Contractor (“RAC” or “contractor”) who
works with the FDIC to “provide services during bank closings, including post[-]closing
activity.” See Final Agency Decision at 2-3; Compl. at il 9. Plaintiff applied for the
position, and l\/[l\/IC hired her. Compl. at il 9. From 2009 through 2013, however,
plaintiff never received a work assignment from Ml\/IC, despite her repeated calls and
emails seeking work. Compl. at il 9; lnvestigative Report at 6. When plaintiff inquired
about this, l\/ll\/lC allegedly told her that “there was no work to which she could be
assigned.” Compl. at 11 9.
ln February of 2015, another FDIC contractor, the SolomonEdwards Group
(“SEG”), contacted plaintiff and offered her a position on its contract as an RAC for the
FDIC. Id. at il 10. ln this role, plaintiff would be tasked with working on the
investigative team in bank closings. Id. Plaintiff accepted the position and was
immediately assigned as an lnvestigative Technician for an FDIC contract to work on the
closing of the Doral Bank in San Juan, Puerto Rico. Id. at ilil lO-l l. She travelled to
Puerto Rico and began working with the SEG team on February 27, 2015. Id. at ill l.
Plaintiff alleges that, on March 23, 2015, her supervisor, Doug Thorpe (“Thorpe”)
approached her and told her that he had been ordered to terminate her employment Id. at
il l2. She claims that he told her the order had not come from SEG management, but
rather from the FDIC. Ia’. Although plaintiff continued to inquire about additional work
assignments with SEG, she was never assigned another project. ]a’. at il l3.
ln support of her retaliation claim, plaintiff alleges that the FDIC “was and had
been poisoning her prospects of working on its contracts in retaliation for her successful
litigation of prior EEO complaints from when she was an employee of FDIC.” Ia’. at
i l4_. Plaintiff timely initiated the EEO process at the FDIC on May l, 2015 by seeking
counseling for her claims. Id.; Def.’s l\/lot., EX. D (“EEO Counselor’s Report”) at l.
Because plaintiffs attempts to resolve the matter informally were unsuccessful, she filed
a formal Discrimination Complaint on July 30, 2015. Def.’s Mot., EX. C (“Acceptance of
Formal Discrimination Complaint”). On March 23, 2016, the FDIC issued a Final
Agency Decision, which found that Chandler “was not retaliated against as alleged in the
complaint.” Final Agency Decision at 6. Plaintiff subsequently flled the present action.
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STANDARD OF REVIEW
Although defendant has filed a motion to dismiss, the parties have presented
materials outside the pleadings relied upon by the Court. Therefore, l will treat the
motion as one for summary judgment See Fed. R. Civ. P. 12(d); House v. Salazar, 598
F. Supp. 2d 89, 9l (D.D.C. 2009). A party is entitled to summaryjudgment ifthe
pleadings, the discovery and disclosure materials on file, and any affidavits show “that
there is no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter oflaw.” Fed. R. Civ. P. 56(a). The party seeking summary
judgment bears the initial burden of demonstrating the absence of a genuine issue of
material fact. Celol'ex Corp. v. Catrett, 477 U.S. 3 l7, 322 (1986). And in deciding
whether there is a disputed issue of material fact, the Court must draw all justifiable
inferences in favor of the non-moving party. Anderson v. Lz'berly Lobby, Inc., 477 U.S.
242, 255 (1986).
ANALYSIS
Where, as here, the record contains no direct evidence of retaliation, under the
McDonnell Douglas burden-shifting framework, a plaintiff must establish a prima facie
case of retaliation in order to succeed on a retaliation claim. See th`te v. Washz`ngton
Nursl`ng Facz'lily, 206 F. Supp. 3d l37, l44 (D.D.C. 2016); see also McDonnell Douglas
Corp. v. Green, 4ll U.S. 792 (1973). To do So, Chandler must show: (l) that she
engaged in statutorily protected activity; (2) that the employer took a materially adverse
action such that the action could well dissuade a reasonable employee from making or
supporting a charge of discrimination; and (3) that there existed a causal link between the
4
two. See Jones v. Bemanke, 557 F.3d 670, 677 (D.C. Cir. 2009). Defendant primarily
argues that Chandler has failed to establish a retaliation claim because she has presented
nothing more than a suspicion that she was retaliated against, which is insufficient to
survive summary judgment See Def.’s Mot. at l2. l agree. Specifically, it is plaintiffs
failure to establish the second prong of her prima facie retaliation claim_that Gruenberg
took a materially adverse action against her_that dooms her case.
To support her argument that the FDIC took an adverse employment action against
her, plaintiff states that she “believes” her failure to receive work from MMC and SEG
“resulted from FDIC’s interference,” which Chandler believes was motivated by her prior
EEO activity. See Pl.’s Aff. at 4 (emphasis added). But plaintiffs mere belief that she
was retaliated against, without more, is simply not enough. Indeed, the record is devoid
of any evidence supporting Chandler’s allegation that the FDIC’s retaliatory interference
prevented her from receiving work from its contractors. lnstead, the record affirmatively
supports defendant’s assertion that the FDIC had absolutely no involvement in
Chandler’s failure to receive work from l\/[MC and SEG. See, e.g., Def.’s Reply to Pl.’s
Opp. to Def.’s Mot. to Dismiss (“Def.’s Reply”), EX. l, Affidavit of Tad. J. Taber
(“Taber Aff.”) at 8 (“The decision regarding whether to hire or deploy an individual is
made solely by the RAC,” not the FDIC.); Def.’s Mot., EX. L, Affidavit of James
McConnell (“l\/IcConnell Aff.”) at 4 (“There is no way FDIC could have interfered with
lplaintiff s] employment because [the FDIC] do[esl not get to request or choose anyone
[on their contracts].”). The record is clear that the FDIC has no involvement in deciding
who its contractors hire and fire, and Chandler has offered no evidence to suggest that the
FDIC had any such involvement in her case.
As evidence of retaliation, Chandler proffers the fact that “the badge or
(contractor) ID number (C-07816) issued to [herl by [SEG] was the same as that issued
by ll\/lMCl,” and thus she concludes that the FDIC knew her lD number and retaliated
against her through both employers. See Pl.’s Opp. to Def.’s Mot. to Dismiss (“Pl.’s
Opp.”) at 4. The record, however, clearly disproves Chandler’s suspicion. Tad J. Taber, _
a Resolution and Receivership Specialist with the FDIC, stated in his affidavit that
“[elach individual contractor is issued a contractor id number . . . [which] does not
change. Once an individual receives a contractor number, he or she will retain that
number regardless of the Receivership Assistance Contractor with whom he or she
works. The name and contractor number . . . will follow that individual from contract to
contract.” See Taber Aff. at l. lt was therefore standard practice for Chandler to retain
the same contractor number at both SEG and Ml\/IC, and Chandler’s speculation of
retaliation based on her contractor ID number falls far short of establishing a prima facie
case. See Brown v. Broaalcastl`ng Ba’. ofGovernors, 662 F. Supp. 2d 4l, 49 (D.D.C.
2009) (“[Plaintiff] rests on nothing but unreasonable inferences, speculation and
unsubstantiated allegations None of these creates a genuine issue of material fact.”).
Perhaps most fatal to Chandler’s claim that the FDIC “interfered” with her
employment is the fact that she was never actually employed by either MMC or SEG.
Indeed, as Connie Dryden, Assistant Director for Investigations for the FDIC, stated, the
fact that plaintiff received a contractor number “just means that she could be activated at
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any point, but it was not a given that she would be given work.” Def.’s Mot., EX. l,
Affldavit of Connie Dryden (“Dryden Aff.”) at 3. And l\/IMC’s Senior Human Resources
manager, Linda Day, similarly indicated that Chandler “was never employed with
[l\/ll\/ICl.” Def.’s Mot., Ex. F (“Linda Day Email”). As to SEG, Chandler’s offer of
engagement from SEG stated that the estimated duration of her engagement was “2-4
weeks; contingent upon client needs.” Def.’s Mot., Ex. G (“Engagement Letter”) at l.
Crucially, the engagement letter made clear that it did “not constitute an offer to employ
[Chandler] for any particular length of time,” and it specified that plaintiff was an “at-will
employee.” Ia’. at 2.
The record also indicates that SEG’s decision to release plaintiff from its contract
as the contract was winding down was consistent with its standard practice of letting
employees go at the end of a contract period. F or example, defendant presented evidence
showing that, at the end of a contract period, the FDIC “requests the RAC contractor to
release their employees based on the winding down of a particular work assignment
associated with the closing.” Dryden Aff. at 3. And for the SEG contract on which
Chandler worked, plaintiff was one of twelve consultants who were released within a
one-month period as the contract wound down. See Def.’s l\/[ot., Ex. J (“SEG Email”) at
l (“[Chandlerl and other members of the lnvestigation team were released in accordance
with the normal wind down of their role on the FDIC engagement, as was anticipated and
communicated in her offer letter.”). lndeed, plaintiffs pre-exit clearance record for
contractors did not indicate that she was terminated, but rather it stated that the “Type of
Action” taken with respect to Chandler was “Employee Departure at Contract
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Completion.” Def.’s Mot., Ex. H (“Pre-Exit Clearance Record”) at l. This kind of action
is standard practice for a RAC contractor as a project nears completion, and there is no
evidence in the record that any kind of retaliatory animus motivated SEG’s or Ml\/[C’s
employment decisions.
Finally, even if Chandler could establish that she suffered a retaliatory adverse
employment action, her retaliation claim still fails because she has not established the
third prong of a prima facie case of retaliation: a causal connection between the adverse
action and her protected activity. To establish a causal connection, it is necessary that the
officials making the adverse decision “had knowledge of [plaintiffs] protected activity at
the time the alleged retaliation occurred.” Tarner v. Shinseki, 824 F. Supp. 2d 99, 122
(D.D.C. 2011); see Taylor v. Chao, 516 F. Supp. 2d 128, 137 (D.D.C. 2007) (“ln order to
show causation, a plaintiff must show that the official responsible for the alleged
retaliatory act had knowledge of the protected activity.”); Bola'en v. Cll'nton, 847 F. Supp.
2d 28, 39 (D.D.C. 2012) (“Ifthe officials responsible for an allegedly adverse
employment action are unaware of the employee’s prior EEO activity, that employee
cannot establish a prima facie case of retaliation.”).
Here, plaintiff has not even alleged that her decisionmakers were aware of her
protected activity. Nowhere in plaintiff s complaint does she allege that the relevant
RAC officials were aware of her protected activity during her time at the FDIC. While
Gibson was aware of Chandler’s EEO activity when she was an FDIC employee, he did
not “[k]now anything about either of the contracts with MM&C or SEG,” so Chandler
cannot possibly show that Gibson’s knowledge of her EEO activity impacted her
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engagement with either RAC. Def.’s Mot., Ex. M, Affidavit of Frederick W. Gibson, Jr.
(“Gibson Aff.”) at 4. And in Chandler’s sworn affidavit, she concedes that, while she
was contracting for MMC, she “did not really even suspect . . . retaliation by FDIC
officials,” and that she “did not have solid proof of FDIC’s involvement” in the
contractors’ employment decisions. Pl.’s Aff. at_ 6. Indeed, Chandler admits that she did
not even intend to allege knowledge on the part of the RAC decisionmakers See id. (“It
is not my contention that MMC, LLC officials were necessarily aware of my earlier EEO
activity.”). Because Chandler has failed to establish knowledge of her protected activity
on the part of the relevant officials, her retaliation claim necessarily fails.
BN_CLU_S!B
For the foregoing reasons, defendant’s Motion to Dismiss, construed as a Motion
for Summary Judgement, is GRANTED and plaintiffs claim is DISMISSED with
prejudice A separate Order consistent with this decision accompanies this Memorandum
flaw
RICHARLLLLEON
United States District Judge
Opinion.