UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DEBORAH K. MINOR, :
:
Plaintiff, :
:
v. : Civil Action No. 09-0288 (JR)
:
TOM VILSACK, Secretary of :
Agriculture, :
:
Defendant. :
MEMORANDUM
Deborah Minor sues the United States Department of
Agriculture (“USDA”) for violations of the Equal Pay Act, 29
U.S.C. §§ 206 and 215, and Title VII, 42 U.S.C. § 2000e, et. seq.
Minor’s scattershot array of allegations against the
USDA include: lower compensation than four white male
counterparts; failure to provide her a performance appraisal or
award for the period ending September 2007; disparate
treatment(delayed email responses, greater scrutiny of her work
performance, failure to address her concerns promptly, lesser
operating budget); acts that “openly undermined her authority”;
mistreatment by the Assistant Administrator for Human Resources;
exclusion from meetings and removal of some duties; demeaning
remarks and mishandling of her leave requests; and failure to
provide file cabinets to protect the confidentiality of EEO
complaint files.
The USDA moved to dismiss Minor’s Equal Pay Act claim
for lack of subject matter jurisdiction and moves for summary
judgment on her other claims. [#9] Shortly after that motion
was filed, Minor’s attorney withdrew from the case [#11].
Minor’s subsequent pro se opposition falls far short of the
showing necessary to defeat the government’s motion.
1. Equal Pay Act claim
Minor asserts that, between July 2007 and February
2008, she was paid less than four white males who held
“substantially equal positions.” [#1 at ¶ 6] The USDA argues
that this court lacks subject matter jurisdiction of that claim,
because it can be inferred that Minor’s claim seeks more than
$10,000, and because and 28 U.S.C. § 1491 (“the Big Tucker Act”)
grants exclusive jurisdiction over such claims to the Court of
Federal Claims. Even if Minor’s claim is for less than $10,000,
the venue provision of 28 U.S.C. § 1402(a)(1), (“the Little
Tucker Act”), limits the venue for such a claim to district in
which the plaintiff resides – in this case, the Eastern District
of Virginia. [#9] at 3-5. The government is correct, and its
motion to dismiss Count 1 for lack of subject matter jurisdiction
must be granted. See, e.g., Powell v. Castaneda, 390 F.Supp.2d
1, 7 (D.D.C. 2005).
2. Race and sex discrimination claims
The USDA moves for summary judgment on Minor’s race
discrimination claims because Minor did not exhaust them, [#9] at
5-8, and on Minor’s gender discrimination claims because Minor
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did not show that she has suffered an adverse employment action,
[#9] at 16-19. Minor does not oppose these parts of the
government motion. Instead, she has shifted her focus to her
retaliation claims, conceding that she “may be willing to
withdraw [her] bases of race and sex.”
3. Retaliation claims
To make out a prima facie case of illegal retaliation,
a plaintiff must show (1) that she engaged in statutorily
protected activity; (2) that her employer took a materially
adverse action against her; and (3) that there was a causal
connection between the protected activity and the adverse action.
See Burlington N. & Santa Ferry Co. v. White, 548 U.S. 53, 69
(2006). The adverse action must be one that is severe enough to
“dissuad[e] a reasonable worker from making or supporting a
charge of discrimination.” Id. A prima facie case of
retaliation shifts to the employer the burden of offering a
legitimate, non-retaliatory explanation for its actions. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Then
the burden returns to the plaintiff, to show that the defendant’s
proffered reason is a pretext. Id.
The USDA has offered legitimate, non-retaliatory
reasons for its actions: Mr. Thompson began his position as
Minor’s supervisor in April 2007, when mid-year reports were due;
given the timing, he did not complete mid-year evaluations for
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any of his managers. Then, based on a consulting report prepared
before Mr. Thompson’s arrival that recommended a reorganization
of departments, Minor was reassigned to a new, more prestigious
position. Minor’s conclusory response that the agency’s actions
would have “caused any reasonable person to want to leave the
Agency or have no other choice but to engage in protected
activity” is only argument, not evidence or even a colorable
allegation of pretext.
4. Hostile Work Environment
To succeed on a hostile work environment claim under
Title VII, a plaintiff must show more than mere workplace
incivility. Rather, plaintiff must show that she was subjected
to conduct that was “so severe or pervasive as to alter the
conditions of [the victim’s] employment and create an abusive
working environment” and that this conduct was a result of
discrimination based on protected status. See, e.g., Faragher v.
City of Boca Raton, 524 U.S. 775, 786-7 (1998).
Minor’s complaint lists distinct and sporadic acts of
incivility, none of which individually nor all of which
collectively amount to a hostile work environment. Furthermore,
Minor does not show that those acts resulted from discrimination
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based on sex or gender or retaliation. Again, Minor’s response
does not address the USDA’s arguments.
An appropriate order accompanies this memorandum.
JAMES ROBERTSON
United States District Judge
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