granting employer summary judgment when plaintiff alleged “a motley mix of adverse actions, spread out over the course of nearly a year, and carried out by different managers”
How later courts described this case
- granting employer summary judgment when plaintiff alleged “a motley mix of adverse actions, spread out over the course of nearly a year, and carried out by different managers”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CASANDRA SMITH,
Plaintiff,
v. Case No. 1:15-cv-472 (CRC)
LINDA MCMAHON,1
Administrator, Small Business
Administration,
Defendant.
MEMORANDUM OPINION
Plaintiff CaSandra Smith was a longtime employee of the U.S. Small Business
Administration (“SBA”) when in May 2013 she learned through a desk audit that she was,
literally, working above her paygrade. In response, Smith’s supervisor—relying on advice from
an SBA job classification specialist—sought to create a new position for her. However, due to a
mix-up in the SBA’s Human Resources office and a subsequent hiring freeze, the position was
never posted, and the SBA solved the problem instead by relieving Smith of her above-grade
duties. Believing that her non-promotion was the product of discrimination on the basis of her
gender and race (African-American), Smith filed a complaint with the agency’s Equal
Employment Opportunity (“EEO”) office. Subsequently, the SBA took a number of actions—
including the denial of Smith’s requests for a transfer and a private office—that Smith viewed as
attempts to retaliate against her for the EEO activity. She brought suit in this Court, challenging
the non-promotion, the alleged retaliatory actions, and other non-selections.
1
By operation of Fed. R. Civ. P. 25(d), the current Administrator of the Small Business
Administration, as former Administrator Contreras-Sweet’s successor, has been “automatically
substituted as a party.”
1
While acknowledging the complexity of the facts underlying this case, the Court
ultimately concludes that Smith has failed to produce sufficient evidence permitting a reasonable
jury to find that any of the adverse actions she alleges were motivated by discrimination or
retaliation. See McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012); Calhoun v. Johnson,
632 F.3d 1259, 1261 (D.C. Cir. 2011). The Court will therefore grant summary judgment for the
SBA.
I. Background
Smith has been an employee of the SBA since 1989. See Def.’s Mem. Supp. Mot.
Summ. J. (“MSJ”), Ex. 1 at 11:20–21. She began her tenure with the agency at its headquarters
in Washington, D.C., but after several years, she relocated to the SBA’s North Carolina District
Office in Charlotte. See id. at 12:16–25. Between 1994 and 2009, Smith’s positions varied
significantly, and they included some supervisory roles. See id. at 12:16–13:16; 157:23–158:14.
In 2009, though still posted in Charlotte, Smith took a position as a Program Analyst with the
SBA’s Washington-based Office of Certification and Eligibility. See id. at 13:22–24, 14:13–15;
Def.’s MSJ, Ex. 3. That Office is located within the Office of Business Development, which in
turn is a subdivision of the Office of Government Contracting and Business Development
(“GCBD”). See Def.’s MSJ, Ex. 4.
A. Desk Audit, Promotion Efforts, and Reassignment of Duties
Although Smith’s Program Analyst job was a GS-13 position, she was soon assigned IT
project management responsibilities that former GS-14 employees had performed. Pl.’s Mem.
Opp’n Def.’s MSJ (“Pl.’s Opp’n), Ex. 18 at 254–59. By early 2013, Smith was convinced that
she was doing above-grade work, and she voiced that concern to management. Compl. ¶ 15. In
response, Robert Watkins—Smith’s supervisor for nearly all of the time period relevant here,
2
Def.’s MSJ, Ex. 1 at 15:21–16:2—requested that the Human Resources office conduct a “desk
audit,” Def.’s MSJ, Ex. 26, which is “a formal review of [an employee’s] duties and
responsibilities . . . [to] [d]etermine[] what knowledge, skills, and abilities are necessary to
perform[ing] [the] job,” Def.’s MSJ, Ex. 25 at 16. Kia Wyche, in Human Resources, began the
desk audit in April 2013. Def.’s MSJ, Ex. 1 at 73:1–5, 76:10–12. The next month, Wyche
emailed Watkins to convey that she had completed the desk audit, and that the “correct
classification for [Smith’s] position” was at a GS-14 level. Def.’s MSJ, Ex. 27. But Wyche
went on to note that Smith’s performance of GS-14-level duties was considered the result of “a
planned management action, since GS-14 duties [had been] assigned to a GS-13 employee,”
rather than simply being acquired due to increased need over time. Id. As a result, under agency
human resources policy, any grade promotion for Smith could not be automatic, since
“competition would apply to filling [the newly recognized GS-14] position.” Id.
Heeding Wyche’s advice, Watkins assembled the paperwork necessary to initiate a
personnel action for the GS-14 position, and on May 20—less than two weeks after the
completion of the desk audit—a recruitment action request was submitted to Human Resources
for processing. See Def.’s MSJ, Ex. 29. Nearly four months later, Human Resources emailed to
apologize: There had been a mix-up involving two separate recruitment actions, which had
caused a processing delay. Def.’s MSJ, Ex. 30. Roughly a week later, Watkins and his
supervisor, Darryl Hairston, completed a second personnel action request, this time clarifying
that the position was open only to GCBD employees (including Smith) and was subject to an
alternative work site (like Smith’s). Def.’s MSJ, Ex. 31. That was emailed to Human Resources
the same day. Id.
3
Mild dysfunction in the SBA’s Human Resources department preceded major
dysfunction, at the federal government writ large. Only a few days after the Human Resources
snafu had been resolved, from October 1 through October 16, 2013, all federal government
agencies—including the SBA—underwent a budget-related shutdown. Soon after the shutdown,
in light of continuing budgetary uncertainty, the SBA implemented an agency-wide hiring freeze,
which lasted through early 2014. See Def.’s MSJ, Ex. 17 at 62:13–18, 114:11–115:5. During
that period, all final hiring decisions were made by the Administrator, see id. at 58:19–59:5;
Def.’s MSJ, Ex. 11 at ¶ 37, and to facilitate that process, in November 2013, SBA senior
administrators and office heads were instructed to submit priority hiring lists for their respective
divisions. See Def.’s MSJ, Ex. 35. On November 25, GCBD submitted its list, which included
the GS-14 post intended for Smith. Id. In January 2014, the SBA’s Acting Administrator
released an agency-wide priority hiring memorandum, approving hiring at GCBD for ten
positions, but only for the purpose of “complet[ing] the transition to HQ of the centralized 8(a)
portfolio review.” Def.’s MSJ, Ex. 37. The GS-14 position intended for Smith did not fall
within that category, and accordingly, it was cancelled. See id. (email from SBA Chief Human
Capital Officer to GCBD leadership seeking “[a]pproval to cancel any . . . job announcement”
not relating to the portfolio review transition and “[a]pproval to cancel your one internal hire”);
see also Def.’s MSJ, Ex. 6 at 88:7–11.
No longer able to raise Smith’s position grade, Watkins set about reducing her
responsibilities (again, on the advice of Human Resources). See Def.’s MSJ, Exs. 38–39.
According to agency protocol, this approach—removing above-grade duties—is one acceptable
means of responding to a desk audit that reveals a mismatch between an employee’s current
grade and current responsibilities. See Def.’s MSJ, Ex. 25 at 16; Ex. 17 at 96:6–14. Throughout
4
January and February 2014, Watkins worked with Human Resources to draft a new position
description for Smith. See Def.’s MSJ, Exs. 38–39. In March 2014, Watkins notified Smith
that, effective the following month, she would be reassigned from the GS-13 “Program Analyst”
position to the GS-13 “Business Systems Support Specialist” position. Def.’s Ex. 40. The notice
also made clear that Smith’s grade and salary would not be affected. Id. Because Smith was on
medical leave when this first notice of reassignment was sent, the notice was reissued in May.
See Def.’s MSJ, Exs. 41, 43.
B. Non-Selections for Two Positions
Smith complains not only of the SBA’s failure to create a new GS-14 position for her, but
also of her non-selection for two existing positions.2 First, in April 2013, at the same time the
SBA was conducting the desk audit for her position, Smith applied for the GS-15 position of
Director of Certification and Eligibility. Def.’s MSJ, Ex. 1 at 51:10–23. As specified in the job
posting, applicants for the position were evaluated along two tracks—“Merit Promotion” and
“Delegated Examining”—each with its own set of hiring criteria. See Def.’s MSJ, Ex. 21.
Smith submitted her application only through the latter, “Delegated Examining” track, under
which military veterans are given preference. Def.’s MSJ, Ex. 11 at ¶ 20. Because Smith did not
identify herself as a veteran in her application, Human Resources did not include her on the
certified list of eligible “Delegated Examining” candidates. Id. at ¶ 30. Smith was not listed
among eligible “Merit Promotion” candidates, either, because she did not submit her application
under that category. Id. at ¶ 31. In contrast, the candidate selected for the position—Ms. Van
2
Smith complained of other non-selections as well, but she has not responded to SBA’s
arguments as to three of these claims, and so has effectively conceded them. See Def.’s MSJ 21–
23, 23–24, 29–30; Def.’s Reply Supp. MSJ (“Def.’s Reply”) 2.
5
Tran—applied under both application tracks, and was ultimately chosen from a list of “Merit
Promotion” qualified individuals. Id. at ¶ 32.
Smith also challenges her non-selection for a Business Opportunity Specialist position in
the SBA’s Los Angeles District Office. Even though the position had been previously classified
as GS-13, a December 2014 vacancy announcement elevated the post to GS-14. See Def.’s MSJ,
Ex. 74 at 17:17–20, 23:13–19.3 Smith applied for that position. Id. at 16:9–15. However, soon
after the vacancy announcement was published, the Office of Field Operations in the SBA’s
headquarters cancelled the position, indicating that it would not be hiring any business
opportunity specialists at the GS-14 level. See id. at 36:20–22, 37:18–38:16. The position was
eventually re-advertised, but at the GS-13 level, and Smith opted not to apply for it. See Def.’s
MSJ, Ex. 1 at 167:10–12.
C. Smith’s EEO Activity and the SBA’s Alleged Retaliation
On August 29, 2013—after the completion of the desk audit, and during the SBA’s
protracted attempts to create a GS-14 position for her—Smith contacted the agency’s EEO
Office, complaining of race- and sex-based discrimination. Compl. ¶ 39. The Office
interviewed her about a week later, id. at ¶ 40, and Smith participated in an unsuccessful
mediation on December 20, 2013, see Pl.’s Opp’n, Ex. 4 at 15, 18. Smith subsequently
submitted a formal EEO complaint—dated December 30, and received January 2, 2014. Def.’s
MSJ, Ex. 68 (Formal EEO Complaint); Ex. 69 (Acknowledgment of Receipt). Smith argues that,
3
Smith contends that the Los Angeles District Director, Victor Parker, raised the
position’s grade specifically to entice her to apply for the position, but he was apparently
unaware that she had applied until after the GS-14 position was cancelled. See Def.’s MSJ, Ex.
74 at 35:5–11.
6
beginning with her first EEO contact in August 2013 and after, the SBA engaged in a series of
acts aimed at retaliating against her for engaging in that protected activity.
1. Office Space
As discussed above, during the period relevant here, Smith was based in the SBA’s
Charlotte District Office. Until 2013, although Smith was permitted to telework nine of every
ten days, see Def.’s MSJ, Ex. 54, she was assigned a cubicle in the “Answer Desk” section of the
office, which functioned as a national call center. Def.’s MSJ, Ex. 1 at 190:2–5. In fall 2013,
Smith had a conversation with Lynn Douthett, the North Carolina District Director, about an
upcoming renovation of the office. According to Smith, Douthett offered to assign her a private
office, and “even showed [her] two potential” office locations. Def.’s MSJ, Ex. 1 at 186:5–13.
Douthett recalls, instead, that she only offered to “see what [she] could do” about obtaining
office space for Smith, and further clarified that “there were no guarantees,” since the office
would be “downsizing from 11,000 square feet to around 5,000.” Def.’s MSJ, Ex. 44 at 50:12–
15.
Regardless, the renovations took place from January to April 2014, and during that time,
there was considerable confusion—involving roughly a half-dozen upper-level managers—
regarding where Smith’s desk would ultimately be located. See Def.’s Statement of Facts
(“SOF”) at ¶¶ 209–27. In the end, due to the significant reduction in the office’s size, Smith was
assigned a cubicle in the same “Answer Desk” section where she had previously been located,
though—like all other cubicles in the office—it was smaller after the renovation. See Def.’s
MSJ, Ex. 1 at 196:22–24; Ex. 17 at 108:6–8. Only one employee in the “Answer Desk” area had
a stand-alone office after the renovation: She had occupied a private office before the renovation
and, unlike Smith, was a supervisor. Id. at 109:14–22, 123:7–18.
7
2. Training Requests
Smith submitted three requests for training that were denied—at least initially—
following her contact with the EEO office.4 First, in fall 2013, Smith sought to attend two
project management training sessions in Washington, D.C. Watkins initially denied that request
due to lack of funding, and also initially advised Smith that she could not travel to D.C. on her
own dime, since that would require reimbursement from the SBA. See Def.’s MSJ, Ex. 78.
However, after Smith spoke to agency counsel and explained that she had an independent reason
for traveling to D.C., she was permitted to attend the training. See id.; Def.’s MSJ, Ex. 75 at 6–
7. Smith also complains that Watkins was nonresponsive to two 2014 training requests—one
submitted in January for a free online seminar, and one submitted in April for a project manager
re-certification course. Id. at 7–8. A different manager ultimately approved both of those
trainings, however. Id.
3. Reasonable-Accommodation Request
In May 2014, Smith submitted a reasonable-accommodation request to the SBA’s EEO
Office, seeking a 100-percent telework schedule (an increase from her 90-percent telework
arrangement) and a transfer to another SBA department. See Def.’s MSJ, Ex. 55. After some
back and forth, including a request for additional medical documentation, the SBA granted
Smith’s telework request in October 2014. See Def.’s MSJ, Ex. 58. However, in July 2014,
Tran—Smith’s supervisor at the time—denied her request for a transfer, citing agency policy that
a reassignment is a reasonable accommodation of “last resort,” to be used only “when an
employee is unable to perform the essential functions of [her] position.” Def.’s MSJ, Ex. 56. In
4
Smith also claims to have submitted numerous requests which were denied prior to her
first EEO contact, see Def.’s MSJ, Ex. 75 at 6–8, but for obvious reasons those denials could not
have been retaliatory.
8
September 2014, Tran’s decision was reviewed and affirmed by the SBA’s Reasonable
Accommodation Review Committee. Def.’s MSJ, Ex. 57. Finally, in January 2015, the Federal
Occupational Health Service also weighed in: After a thorough review of Smith’s medical
documentation, it agreed that Smith had not justified a reasonable-accommodation request,
because she had not shown an inability to perform essential functions of her position. Def.’s
MSJ, Ex. 61. The Chair of the SBA’s Reasonable Accommodation Review Committee
communicated those results to Smith in a February letter, explaining that “[t]he provided
documentation [did] not establish that [she was] suffering from a substantial impairment, only
that she believe[d] she [was] being treated unfairly by her managers.” Def.’s MSJ, Ex. 62.
Accordingly, the agency denied the transfer request. Id.
4. Train-the-Trainer Events
The SBA operates “Train-the-Trainer” sessions, where SBA employees visit district
offices throughout the country and train participants, who in turn train other employees within
their local office. See Pl.’s Opp’n, Ex. 19 at 35:17–38:8. Smith had been a trainer at these
events, and in June 2014, she was slated to participate again, albeit via webinar. See Def.’s MSJ,
Ex. 81.5 However, soon before the event, Smith was notified via email that there would be no
call-in at the event, and that she would no longer be presenting. Def.’s MSJ, Ex. 82. It is unclear
whether the email sender—another SBA employee—or Watkins made the decision to cancel the
call-in. See Pl.’s Opp’n, Ex. 18 at 227:9–228:25. The record also reveals alternate explanations
for the decision. Watkins suggested Smith’s expertise was unnecessary for the training. Pl.’s
5
The other trainers scheduled to attend the June 2014 sessions presented in person, and it
is unclear why it was arranged for Smith to present virtually. However, one likely explanation is
that Smith was the only SBA employee slated to present at three sessions, each of which was
located in a different U.S. city and none of which was in Charlotte. See Def.’s MSJ, Ex. 81.
9
Opp’n, Ex. 25 at 8:9–21. Tran was under the impression that Smith did not participate “due to
[the] lack of proper technology.” Def.’s MSJ, Ex. 83 at ¶ 5.
D. Procedural History
Smith filed a complaint in this Court in April 2015, alleging that the SBA had engaged in
discrimination based on her sex and race, and had retaliated against her for seeking redress from
the EEO. A period of discovery followed, and the SBA now moves for summary judgment,
contending that there can be no genuine dispute that, in acting as it did, the agency was
motivated by legitimate, nondiscriminatory considerations. For instance, it maintains that
Smith’s supervisors did what they could to promote her after the desk audit, but that their efforts
were frustrated by mix-ups at Human Resources, followed by a budget crisis. See Def.’s MSJ
15–21. Likewise, the agency explains that the actions Smith views as “retaliatory” were, in some
cases, not materially adverse, and in others, not demonstrably linked in any way to Smith’s EEO
activity. Id. at 32–44. Smith opposes the agency’s motion. She argues that the processing
mishaps and budget-related hiring issues constitute an “amazing” and “incredible” constellation
of circumstances, less plausible than her own account—i.e., that she was repeatedly denied
promotions because she was a woman and African-American. Pl.’s Opp’n 3–4, 11–28. And
Smith urges the Court to view the retaliatory acts she alleges in their “entirety”; under that
analysis, she argues, they are cognizably adverse. Id. at 4, 34–44.
The Court ultimately agrees with the SBA: Although the agency’s personnel process was
hardly a model of transparency or efficiency, there is insufficient direct or circumstantial
evidence in this record permitting a reasonable juror to infer that Scott was denied promotions
due to her sex or race. Furthermore, the retaliatory acts Smith alleges are not similar enough to
10
be grouped together, nor is there sufficient evidence that those acts were motivated by a
retaliatory purpose.
II. Legal Standards
A court will grant summary judgment if the movant “shows that there is no genuine
dispute as to any material fact,” such that “judgment as a matter of law” is proper. Fed. R. Civ.
P. 56(a). A material fact is one that could affect a suit’s outcome under the relevant law, and a
genuine dispute is one that a reasonable juror could resolve in favor of the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[A] party seeking summary
judgment . . . bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of [the record] which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). But
“after adequate time for discovery and upon motion,” a court must enter summary judgment
“against a party who 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 of proof at trial.” Id.
at 322.
III. Analysis
As outlined above, Smith brings claims that her non-promotion and two non-selections
were discriminatory, and also that several of the agency’s actions following her EEO activity
were retaliatory. The Court will discuss each set of claims in turn.
A. Non-Promotion and Non-Selection Claims
Because the SBA has “assert[ed] a legitimate, non-discriminatory reason” for the non-
promotion and non-selections that Smith challenges, “the question whether [Smith] actually
made out a prima facie case is ‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the
11
picture.’” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008) (quoting St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511 (1993); Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000)). Accordingly, the Court “need not—and should not—
decide whether [Smith] actually made out a prima facie case under McDonnell Douglas.” Brady,
520 F.3d at 494. Rather, that “framework falls away[,] and the court must decide one ultimate
question: ‘Has the employee produced sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason [for the termination] was not the actual reason[,]
and that the employer intentionally discriminated against the employee[?]’” DeJesus v. WP Co.
LLC, 841 F.3d 527, 532–33 (D.C. Cir. 2016) (quoting Brady, 520 F.3d at 494). That “ultimate
question” is really two: the first addressing whether the proffered reason is pretextual or genuine,
and the second evaluating whether the actual reason was discrimination.
1. Non-Promotion to Position at GS-14 Level
The lion’s share of Smith’s complaint and Opposition brief is devoted to the argument
that the agency’s failure to create a GS-14 position for her following the desk audit—and to hire
her for that position—was discriminatory. As Smith frames it, that non-promotion was actually
the result of three separate agency actions: the decision not to automatically promote Smith
following the desk audit; the delay in posting the GS-14 position intended for her; and the
ultimate cancellation of the position.
a. No Automatic Promotion
As recounted above, see supra section I.A, when Wyche in Human Resources completed
Smith’s desk audit and confirmed via email that Smith had been performing above-grade duties,
she also noted that the GS-14-level work had resulted from “a planned management action, since
GS-14 duties were assigned to a GS-13 employee.” Def.’s MSJ, Ex. 27. For that reason, Wyche
12
explained that “competition would apply to filling [the newly recognized GS-14] position.” Id.
Watkins sought clarification of that determination the same day: “How did we determine that
this was a planned management action?” he asked. Def.’s MSJ, Ex. 28. Wyche responded:
“Whenever management assigns duties from one position to another, it is considered a planned
management action [subject to competition].” Id. On the basis of this advice, rather than simply
promoting Smith on the spot, Watkins went about completing and submitting the paperwork
necessary for creating a new GS-14 position—intended for Smith, but open to others. See Def.’s
MSJ, Ex. 29.
According to Smith, Watkins’ decision to create a competitive GS-14 position rather than
automatically promote her was discriminatory. In support of that view, she points to an agency
policy stating that, following a desk audit revealing above-grade responsibilities, the human
resources classifier “will upgrade” the position. Def.’s MSJ, Ex. 25 at 16 ¶ 5. She also cites
deposition testimony from two senior SBA officials, to the effect that the competition
requirement following the desk audit was “a new HR rule.” Pl.’s Opp’n, Ex. 20 at 15:17–16:12;
see also Pl.’s Opp’n, Ex. 23 at 39:10–18.
There are two fundamental reasons why this evidence could not ground a reasonable
juror’s conclusion that Watkins’ decision not to promote Smith automatically was motivated by
discrimination. First, as the SBA discusses at length in its Reply, it is reasonably clear that in
advising Watkins to subject the new GS-14 position to competition, Wyche was correctly
applying a long-recognized distinction between above-grade duties resulting from “accretion,”
on the one hand, and “planned management actions,” on the other. See Skrobot v. United States,
534 F.2d 237, 242–43 (Ct. Cl. 1975) (explaining that, under the Federal Personnel Manual, an
employee may be promoted non-competitively when “the newly created position [is] the result of
13
[an] ‘accretion of additional duties,’” rather than a “planned management action”). As Wyche
explained, because a manager assigned Smith above-grade duties formerly belonging to other
GS-14 employees, those duties resulted from a “planned management action,” subject to
competitive promotion. See Def.’s MSJ, Ex. 28; Def.’s Reply, Ex. 84. On the other hand, if the
desk audit had revealed that Smith’s above-grade duties resulted from “accretion” (as opposed to
reassignment), then it appears she could have been promoted non-competitively. This at least
helps to explain both the SBA’s policy that desk audits can warrant grade increases, see Def.’s
MSJ, Ex. 25 at 16 ¶ 5, as well as the impression of senior management officials that promotions
happened as a matter of course following desk audits, see Pl.’s Opp’n, Ex. 20 at 15:17–16:12;
Ex. 23 at 39:10–18.
Even more to the point, assuming arguendo Smith has shown a genuine dispute as to
whether Wyche correctly applied agency policy in advising Watkins against an automatic
promotion, there is no evidence suggesting Watkins was motivated by discrimination in relying
upon that advice. Watkins was clearly instructed by Wyche—a Human Resources specialist in
classification—that competition should apply to any potential promotion for Smith. Even then,
Watkins did not simply take Wyche’s word for it: He sent a follow-up email asking how she
“determine[d] that this was a planned management action,” and Wyche responded with an
explanation. Def.’s MSJ, Ex. 28.6 Surely, Watkins’ decision at that point was “justified by a
reasonable belief in the validity of the reason given,” regardless of that rationale’s ultimate
accuracy. George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005). On this basis alone, it is clear
6
Smith’s assertions to the effect that Watkins “immediately accepted [Wyche’s]
unsupported and unexplained statement,” Pl.’s Opp’n 14, and that he proceeded to create a
competitive position “without further inquiry or discourse,” id. at 16, are at odds with the record.
14
that Smith has not produced sufficient evidence that Watkins’ decision not to promote her
automatically was discriminatory.
b. Delay in Position Posting
The SBA’s processing of the GS-14 recruitment action intended for Smith was, as
described above, hardly a model of efficiency. See supra section I.A. Although the GS-14
hiring request form was completed by Watkins and submitted only about ten days after the
completion of the desk audit, it appears that Human Resources failed to take any action on the
matter until nearly four months later—on September 19, 2013—when it emailed to apologize for
a mix-up. See Def.’s MSJ, Ex. 30. Watkins completed and submitted another hiring request
within a week, but then—starting October 1, 2013—the SBA was subject to a federal
government shutdown, and then a hiring freeze, which lasted through early 2014. See Def.’s
MSJ, Ex. 17 at 62:13–18, 114:11–115:5. This, combined with the Human Resources mix-up,
caused the delay, and ultimately the cancellation, of the GS-14 position intended for Smith.
Under Smith’s reading of these events, however, the protracted processing period was
intentional rather than unfortunate: She argues that the delay in posting her position was actually
part of a deliberate scheme to deny her a promotion. In support, Smith highlights the extent of
the delay (which presumably goes to pretext) by pointing to agency guidance advising that the
time between the submission of a personnel action request and the posting of the requested
position should be no longer than eight calendar days. See Pl.’s Opp’n, Ex. 6. She further posits
that the delay was aimed not only at denying her a promotion, but also at facilitating the transfer
of her substantive duties to another SBA employee, Kimberly Russell. See Pl.’s Opp’n 18–21.
These arguments do not hold water. The fundamental flaw underlying them is that
Watkins is the only agency official Smith alleges to have acted with a discriminatory motive in
15
denying her a promotion. Accordingly, if Watkins had been to blame for the extended delay in
processing the hiring request—which the parties concede was substantially longer than what
policy or practice prescribed—then Smith might have a case for pretext. The record reflects
quite the opposite, though: Watkins completed the initial hiring request five days after the desk
audit’s completion, and saw to its submission to Human Resources another five days after that.
See Def.’s MSJ, Exs. 29, 31. Similarly, in September, roughly one week after Human Resources
emailed about the mix-up, Watkins completed and oversaw the submission of a second, follow-
up request form. Def.’s MSJ, Ex. 31. Smith faults Watkins for submitting this second request in
“surprisingly sparse” form, Pl.’s Opp’n 16–17, but there is no evidence suggesting that the form
was considered incomplete by Human Resources, and it appears from the record that the second
form was submitted as a supplement to the first. See Def.’s MSJ, Ex. 31. In other words, the
record illustrates that Watkins—the alleged discriminatory agent—far from being to blame for
the delay, was actually making timely efforts to press the hiring request.
This defuses Smith’s main arguments regarding pretext. First, it is largely irrelevant that
the delay violated agency guidance. The parties agree that the delay was substantial, and well
out of step with agency policy and practice. The material point is that no record evidence
suggests that Watkins caused that delay.7 And Smith’s attempts to frame the delay as a
calculated means of reassigning her duties to Russell, another SBA employee, fail for the same
reason: Watkins was not responsible for that, either. See Def.’s MSJ, Ex. 5 at 77:14–17
(explaining that Watkins could not have assigned duties to Russell because he was not her
supervisor); Pl.’s Statement of Disputed Facts (“SOF”) at ¶ 5 (undisputed that Watkins was
7
The Court therefore need not address the SBA’s arguments that the agency policy is
only discretionary, and that the guidance should not be considered because it was not previously
identified during discovery. See Def.’s Reply 13–14.
16
never Russell’s supervisor). Smith’s theory of pretext, in short, is that Watkins, Russell’s
supervisor (Calvin Jenkins), and Human Resources all conspired to delay the GS-14 posting,
thus buying time to assign away her duties. But the record contains no evidence of such a
conspiracy.
c. Position Cancellation
Above, the Court discussed the events leading up to the ultimate cancellation of the GS-
14 position intended for Smith. See supra section I.A. Soon after the Human Resources mix-up,
from October 1 through October 16, 2013, all federal government agencies underwent a budget-
related shutdown. The SBA then implemented an agency-wide hiring freeze, effective through
early 2014. See Def.’s MSJ, Ex. 17 at 62:13–18, 114:11–115:5. In November 2013, SBA senior
administrators and office heads submitted priority hiring lists. See Def.’s MSJ, Ex. 35. GCBD
submitted its list on November 25, which included the GS-14 post intended for Smith. Id. The
SBA’s Acting Administrator, in January 2014, approved hiring at GCBD for ten positions, but
only for the purpose of “complet[ing] the transition to HQ of the centralized 8(a) portfolio
review.” Def.’s MSJ, Ex. 37. While neither party explains what this “portfolio review
transition” entailed, there is no dispute that it was unrelated to the GS-14 position intended for
Smith. The SBA proffers this as its legitimate, non-discriminatory reason for cancelling Smith’s
intended position. See Def.’s MSJ, Ex. 6 at 88:7–11.
Smith challenges that explanation in two main ways. First, she insists that Watkins
actually cancelled the position before the Acting Administrator did, and that his motivations
were discriminatory and retaliatory. See Pl.’s Opp’n 21–24. Second, Smith asserts that every
other position on the priority hiring list was filled, including at least one that also was unrelated
17
to the portfolio review transition. Id. at 26.8 Neither of these contentions is grounded in the
record.
Smith points to two documents supposedly showing that Watkins cancelled the GS-14
position before the Administrator did. The first is a November 2013 email from Watkins to
Bridget Bean, the SBA’s Chief Human Capital Officer, see Def.’s MSJ, Ex. 17 at 6:16–7:1,
attaching Smith’s desk audit results, listing other basic information about the desk auditor
(Wyche) and the date of the audit, and noting as “background” that “[w]e had several concerns
regarding moving forward with the announcement including preselection, potential EEO
complaint, etc[.] that we raised[,] but we were still advised to move forward with competing the
position.” Def.’s MSJ, Ex. 33B. Smith suggests that this email indicates Watkins’ desire for the
GS-14 position—as of November 2013—not “to proceed to competition.” Pl.’s Opp’n 22. But
that is a clear misreading of the email: Watkins wrote in the past tense (he “had . . . concerns”
which he previously “raised” and was “advised” about), not the present. In context, he was
clearly referring to his concerns in May 2013, at the time of the desk audit, not any concerns he
presently had about the posting of the position. His deposition testimony confirms this. See
Def.’s MSJ, Ex. 88 at 46:7–50:21.
The second document Smith points to is a December 26, 2013 email from Watkins to
Wyche, Smith’s desk auditor. See Def.’s MSJ, Ex. 38. Watkins writes: “As you may be
aware[,] we weren’t able to get this announcement out to get a GS-14 advertised. We are
8
Smith also complains that her position was listed “dead last” on the GCBD’s hiring
priority list, framing this as evidence of pretext. Pl.’s Opp’n 27. But the position is actually
included in a separate, unranked category for internal recruits, so on the face of the document, it
is unclear how the position relates in priority to the others. See Def.’s MSJ, Ex. 35.
Furthermore, as SBA points out, including the position intended for Smith on a shortlist of
priority hires would be an odd way of discriminating against her in hiring. See Def.’s Reply 17–
18.
18
looking now at removing the work that is considered 14[-]level work from this employee and
adding it to the responsibilities of a grade 14 employee that we previously hired.” Id. Surely,
this email demonstrates that Watkins knew in late December that Smith’s position would not be
posted, and that he then began the process of removing her GS-14-level duties. However, what
no document shows is that Watkins himself made that decision. Indeed, Smith concedes that
during the hiring freeze, final hiring authority was vested in the SBA Administrator. Pl.’s SOF
at ¶ 154; see also Def.’s MSJ, Ex. 11 at ¶ 37. And Smith has pointed to nothing in the record
even suggesting that Watkins had influence over that decision.
Smith’s other main pretext argument is that hers was “the only position on the entire
priority list submitted by GCBD which was not approved.” Pl.’s Opp’n 26. Purportedly, that
follows because all positions on the list except for Smith’s and another internal hire were related
to the portfolio review transition. Id. The priority hiring document, however, appears to list
numerous positions that are not linked to the 8(a) portfolio review transition, see Def.’s MSJ, Ex.
35, and Smith points to no evidence suggesting they were (or indicating whether any such
positions were actually filled). Smith also asserts that the only other internal hire on the priority
list was (1) filled, despite (2) being unrelated to the portfolio review transition. Pl.’s Opp’n 26.
But Smith has pointed to no record evidence establishing either of those premises.9 Finally,
9
The deposition testimony Smith cites in support establishes only that Jeanne Crepeau, in
GCBD, applied for that position. See Pl.’s Opp’n, Ex. 21 at 49:14–18. Smith also cites
deposition testimony from Calvin Jenkins, but the cited page number was not included in the
exhibit. See Pl.’s SOF at ¶ 169 (citing Jenkins Dep. [Pl.’s Ex. 23] at 78:19–80:9). Smith’s best
evidence is a January 14 memo to the SBA Administrator from the Chair of the Executive
Resources Board recommending the approval of “60 [agency-wide] internal hiring actions [then]
pending” with Human Resources, under certain conditions. Pl.’s Opp’n, Ex. 8. But there is
nothing further confirming whether Crepeau’s position was among those sixty. By the time
Bean—SBA’s Chief Human Capital Officer—emailed the head of GCBD on January 16 to
approve only 10 positions for the portfolio review transition, she sought “approval to cancel
19
Smith cites to agency-wide, internal and external hiring totals (60 and 39, respectively),
apparently to show that the agency hired more than the ten portfolio review positions during the
freeze. See Pl.’s SOF at ¶ 168. Those numbers, however, in no way contradict the agency’s
position that the portfolio review positions were the only spots filled within GCBD, the
subdivision where Smith was employed. See Pl.’s Opp’n, Ex. 8 (January 2014 memorandum to
the SBA Administrator recommending 60 internal and 39 external agency-wide hires, to include
10 hires within GCBD).
As explained above, Smith has failed to show that the SBA’s explanations for creating a
competitive GS-14 position following her desk audit; for the agency’s delay in posting her
position; or for its ultimate cancellation of that position were explained by pretexts, let alone
pretexts for race or gender discrimination. The Court turns now to Smith’s remaining claims of
discriminatory non-selection.
2. Non-Selection for GS-15 Director of Certification and Eligibility Position
Smith applied for the GS-15 position of Director of Certification and Eligibility in April
2013. See supra section I.B. Even though applicants for the position were evaluated along two
tracks, “Merit Promotion” and “Delegated Examining,” see Def.’s MSJ, Ex. 21, Smith submitted
her application only through the latter, Delegated Examining track, which gives military veterans
a preference. Def.’s MSJ, Ex. 11 at ¶ 20. Smith indicated no such preference, and accordingly,
Human Resources did not certify her as an eligible Delegated Examining candidate. Id. at ¶ 30.
Of course, because she did not apply for consideration under Merit Promotion, she was excluded
from that list as well. Id. at ¶ 31.
[GCBD’s] one internal hire,” referring to Smith’s position. Def.’s MSJ, Ex. 37 (emphasis
added). It is unclear what happened to the other internal position.
20
Despite this rather straightforward—and undisputed, see Pl.’s SOF ¶ 75—account for
why Smith was not selected for the position, she insists that her non-selection was
discriminatory. She asserts that she was better qualified than the selectee, and argues that she
should have been included in the Merit Promotion track’s certification list because she had been
performing GS-14-level work (thereby satisfying the relevant time-in-grade requirement). See
Pl.’s Opp’n 29–32. The obvious flaw with both of these arguments is that Smith never applied to
be considered under Merit Promotion. Her arguments about her relative qualifications and her
eligibility for the Merit Promotion certification list are therefore beside the point.10 And there is
nothing in the record suggesting that her non-selection for the GS-15 Director position was
discriminatory.
3. Non-Selection for GS-14 Business Opportunity Specialist Position
Smith also applied and was not selected for a GS-14 Business Opportunity Specialist
position in the SBA’s Los Angeles District Office. See supra section I.B. The position had been
previously classified as GS-13, but in December 2014, when Smith applied, it was advertised at
the GS-14 level. Def.’s MSJ, Ex. 74 at 23:13–19. Soon after the posting and the submission of
Smith’s application, however, the SBA’s Office of Field Operations cancelled the position,
explaining that it would not hire any business opportunity specialists at the GS-14 level. See id.
at 36:20–22, 37:18–38:16. When the position was re-advertised at the GS-13 level, Smith did
not apply for it. See Def.’s MSJ, Ex. 1 at 167:10–12.
10
For a variety of reasons, as SBA explains, those arguments also lack merit. See Def.’s
Reply 4 (noting that the desk audit results revealing Smith’s above-grade work were released
after Human Resources generated the certificate lists of eligible candidates, meaning that no
deciding official could have known to give Smith time-in-grade credit).
21
Essentially, Smith’s challenge to this non-selection boils down to chronology—i.e., the
fact that the position was cancelled soon after she submitted her application. See Pl.’s Opp’n 33
(arguing that the “amazing timing and sequence of these events points to the obvious conclusion
that the position was cancelled at the GS-14 level, in yet another . . . attempt to block . . . Smith
from advancing.”). The problem is that there is no evidence that anyone in the agency was even
aware that she had applied for the position until after it was cancelled. That includes Victor
Parker, the deciding official. See Def.’s MSJ, Ex. 74 at 35:5–11. Nor is there any evidence
connecting the cancellation of the Los Angeles position with any other incident Smith alleges, or
any other official relevant to this case. Without evidence that the cancellation was more than a
simple management decision to keep a position at the grade it previously had been, Smith cannot
sustain her claim.
B. Retaliation Claims
Smith argues that, in addition to passing her over for promotions and open positions for
discriminatory reasons, the SBA retaliated against her in various ways because she reached out
to the EEO, in August 2013. Pl.’s Opp’n 34. In particular, she complains that she was denied a
location transfer, private office space, and the opportunity to attend and facilitate training
sessions. Id.11
A prima facie retaliation case requires showing that “[an employer] took materially
adverse action against [an employee] because he participated in protected activity.” Bridgeforth
v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (citing McGrath v. Clinton, 666 F.3d 1377, 1380
11
Smith’s Complaint suggests that these allegedly retaliatory actions were also
discriminatory. See Compl. at ¶¶ 60–66. However, she makes no such arguments in her
Opposition. See Pl.’s Opp’n 34–44 (no mention of allegedly retaliatory actions being
discriminatory).
22
(D.C. Cir. 2012)). A materially adverse action, for purposes of a retaliation claim, is one that
would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.”
Bridgeforth, 721 F.3d at 663 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
68 (2006)). To show that an employer acted because of the protected activity, “the employee
must proffer evidence from which a reasonable jury could infer the employer’s retaliatory
intent.” McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012). Provided that the employer
has proffered a legitimate, non-retaliatory reason for the action, “the ‘central question’ is whether
‘the employee produced sufficient evidence . . . that the employer’s asserted [non-retaliatory]
reason was not the actual reason and that the employer intentionally [retaliated] against the
employee” in violation of Title VII. Id. (quoting Calhoun v. Johnson, 632 F.3d 1259, 1261
(D.C. Cir. 2011)) (alterations in original).
1. Retaliatory Hostile Work Environment
Before addressing each of the retaliatory actions Smith alleges, the Court first addresses a
threshold legal issue. Simple retaliation claims—like those alleged in Smith’s complaint—rest
on “discrete” and “distinct” adverse actions. See Franklin v. Potter, 600 F. Supp. 2d 38, 76–77
(D.D.C. 2009); Lester v. Natsios, 290 F. Supp. 2d 11, 33 (D.D.C. 2003). In Smith’s Opposition
brief, however, she advances a new theory of retaliation: retaliatory hostile work environment.
See Pl.’s Opp’n 36. This is a “special type of retaliation claim,” with its own set of doctrinal
elements. Baird v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015); see also Román v. Castro, 149
F. Supp. 3d 157, 166–67 (D.D.C. 2016) (summarizing the elements of a retaliatory hostile work
environment claim). Retaliatory hostile work environment claims permit courts to consider the
“cumulative effect” of “several individual acts,” which “may not be actionable on [their] own.”
Baird, 792 F.3d at 168 (citations omitted). But what the claim gives with one hand, it takes a
23
way with the other. Under the theory, plaintiffs must allege acts that are “adequately linked”—
as evidenced by timing, nature, or type—and they must be severe or pervasive enough to “create
an abusive working environment.” Id. at 168–69.
Smith’s retaliatory hostile work environment claim fails to satisfy these latter two
conditions. First, the adverse actions are not thematically connected: They did not, for example,
“involve the same type of employment actions, occur relatively frequently, [or involve] the same
managers.” Baird, 792 F.3d at 169 (quoting Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir.
2011)). Rather, Smith alleges a motley mix of adverse actions, spread out over the course of
nearly a year, and carried out by different managers.12 Second, the alleged adverse actions were
not “of such severity or pervasiveness as to alter the conditions of [Smith’s] employment and
create an abusive working environment.” Baird, 792 F.3d at 169 (quoting Hussain v. Nicholson,
435 F.3d 359, 366 (D.C. Cir. 2006)). The actions are not particularly severe or frequent, let
alone threatening or humiliating. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Smith
points to the medical leave she took from January to April 2014 during the office renovation as
evidence of the hardship she suffered, but the severity standard is objective—not subject to the
heightened sensitivities of individual plaintiffs. Besides, half of the adverse actions Smith
complains of occurred after her return from medical leave.
12
Douthett allegedly reneged on the promise of a private office between fall 2013 and
early 2014. Def.’s MSJ, Ex. 1 at 186:5–13. Watkins denied or failed to respond to the training
requests between November 2013 and April 2014. Def.’s MSJ, Exs. 75, 78. Stanley Jones, Jr.,
cancelled Smith’s virtual participation in the train-the-trainer event in June 2014 (although Smith
alleges this was Watkins’ decision). Def.’s MSJ, Ex. 82. And Van Tran denied the transfer
request in July 2014. Def.’s MSJ, Ex. 56.
24
In short, even if Smith had properly alleged a retaliatory hostile work environment claim
in her complaint—which she did not—that claim would fail on the merits, for the reasons just
described.
2. Discrete Retaliation Claims
The Court now considers individually the adverse actions Smith alleges were retaliatory.
a. Office Space
Recall that the SBA office in Charlotte underwent a renovation in early 2014; that prior
to the renovation, Smith was allegedly promised a private office; but that she ended up in a
cubicle in the “Answer Desk” area of the office. See supra section I.C.1. That was also her
situation prior to the renovation, except that now—thanks to a significant overall downsizing of
the office—her cubicle was smaller. See Def.’s MSJ, Ex. 17 at 108:6–8; Def.’s MSJ, Ex. 1 at
196:22–24. Smith’s account ties her assignment to this cubicle and the denial of a private office
to her EEO activity, which had begun several months prior.
The problem for Smith is that she has not identified evidence, direct or circumstantial,
that would permit a reasonable jury to conclude that her cubicle assignment was the product of
retaliation. See McGrath, 666 F.3d at 1383. The only employee in the “Answer Desk” area with
a private office after the renovation, despite having a lower grade-level than Smith, was the
area’s supervisor. Def.’s MSJ, Ex. 17 at 109:14–22, 123:7–18. Such an arrangement is typical
at the SBA, for the common-sense reason that managers often need to have confidential
conversations with the employees they supervise. See id. at 110:10–12. At the time, Smith had
no such managerial role—indeed, she was teleworking nine out of every ten days. Def.’s MSJ,
Ex. 1 at 194:15–16, 210:13–15. The only other SBA employees in Charlotte with private offices
25
after the renovation had them prior to the renovations. See Def.’s Reply, Ex. 90 at 28:1–10.13
Absent any relevant comparators—or any other evidence suggesting that the treatment Smith
received during and after the renovation was materially different from any other employee in
Charlotte—Smith’s claim that her office space assignment was retaliatory cannot survive.
b. Training Requests
Following her EEO activity, Smith submitted three requests for training that were denied,
at least at first. See supra section I.C.2. Watkins initially denied the first request, for training
sessions in December 2013 and February 2014, citing a lack of funding, but Smith ultimately
attended those trainings when she explained that she would be in Washington anyway during her
leave. See Def.’s MSJ, Ex. 75; Ex. 78 at 6–7. Smith also alleges that Watkins failed to respond
to two 2014 training requests, but a different manager ultimately approved both of them. See id.
at 8.
Smith’s claim regarding training requests fails for at least two reasons. First, as a result
of the denials or non-responses, she does not appear to have suffered any harm that would
“dissuade[] a reasonable worker from making or supporting a charge of discrimination.”
Bridgeforth, 721 F.3d at 663. The training requests were ultimately approved, and Smith points
to no evidence that she was adversely affected by a longer-than-desired waiting period prior to
their approval. Second, Smith points to no evidence permitting a reasonable inference of
retaliatory motive—for instance, in the form of similarly situated comparators. On the other side
of the scale, there is evidence supporting the agency’s legitimate explanation for initially denying
13
The SBA claims these assignments were made as reasonable accommodations, but the
cited deposition testimony either does not support that contention or is not in the record. See
Def.’s MSJ 37 (citing Ex. 44 at 64:6–8 [not in record]); Def.’s Reply 22 (citing Ex. 90 at 28:2–10
[inapposite]).
26
her requests: Smith’s Charlotte location meant that travel funding was almost always necessary
to attend the SBA training, and the agency’s budgetary strain during this period meant such
funds were scarce. See Def.’s MSJ, Ex. 8 at 147:11–21; Ex. 17 at 62:13–18. This is consistent
with Smith’s concession that, well in advance of her EEO activity, her requests for training were
being denied. See Pl.’s Opp’n, 42 n.8. For these reasons, Smith fails to make out a successful
claim that the (initial) denials of her training requests were retaliatory.
c. Reasonable-Accommodation Request
Smith submitted a reasonable-accommodation request to the EEO Office in May 2014,
seeking a 100-percent telework schedule and a transfer to another SBA department. See supra
section I.C.3. The SBA granted Smith’s telework request but denied the transfer request, on the
grounds that there was “no indication that [Smith] [was] unable to perform any essential
functions of her positions.” Def.’s MSJ, Ex. 62.
On this record, no reasonable inference is possible that Tran, Smith’s supervisor at the
time, denied her transfer request for retaliatory reasons. Indeed, it is difficult to see how the
SBA’s legitimate rationale for the denial—compliance with the agency’s reasonable
accommodation policy—could be more airtight. The SBA’s Standard Operating Procedure for
reassignment as a reasonable accommodation provides that reassignment should “be used only as
a last resort in cases where there is no other effective form of reasonable accommodation,” and
where an “employee becomes unable to perform the essential functions of [a] position, even with
[other] reasonable accommodation[s].” Def.’s MSJ, Ex. 52 at 41–42. This was the policy Tran
relied upon when she first denied Smith’s request, explaining that Smith had shown no indication
she was unable to perform any essential job functions. See Def.’s MSJ, Ex. 56. And, after
further review of Smith’s medical documentation, Tran’s decision was affirmed twice on the
27
same grounds—first by the SBA’s Reasonable Accommodation Review Committee, see Def.’s
MSJ, Ex. 57, and then by the Federal Occupational Health Service, see Def.’s MSJ, Ex. 61. For
her part, Smith points to no evidence of pretext.
d. Train-the-Trainer Event
The Court previously explained that in June 2014, the SBA had planned for Smith to help
facilitate certain “train-the-trainer” sessions via webinar, but that soon before the date of the
event, Smith was notified that there would be no call-in (and that she would no longer be
participating). See supra section I.C.4.
Admittedly, it is unclear from the evidence who made the decision to cancel Smith’s
participation, and why that decision was made. (Watkins indicated Smith’s particular expertise
was not needed for the training, Pl.’s Opp’n, Ex. 25 at 8:9–21, while Tran was of the view that
Smith did not participate “due to [the] lack of proper technology,” Def.’s MSJ, Ex. 83 at ¶ 5.)
However, Smith’s claim still fails because she has not identified any harm resulting from her
inability to help facilitate a single training series that would “dissuade[] a reasonable worker
from making or supporting a charge of discrimination.” Bridgeforth, 721 F.3d at 663. Indeed,
she received an overall “extraordinary” or “5” rating—the highest available—for the relevant
evaluation period, stretching from October 2013 to September 2014, along with a performance
bonus based on that award. See Def.’s MSJ, Exs. 63–64. Separately, because Smith was
excluded from the training nearly six months after she filed her EEO complaint, the action “is
not likely to qualify for . . . a causal inference” of retaliation. Moore v. Castro, 192 F. Supp. 3d
28
18, 44 (D.D.C. 2016). For these reasons, her claim regarding the “train-the-trainer” event cannot
be sustained.14
IV. Conclusion
For the reasons outlined above, the Court will grant the SBA’s Motion for Summary
Judgment. An appropriate Order accompanies this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: March 7, 2017
14
Smith also complains that her computer equipment was not connected in the Charlotte
office when she returned from medical leave in 2014. No reasonable inference of retaliation is
possible regarding this action. Watkins sent Smith’s computer to the Office of the Chief
Information Officer for updating and other IT fixes, and contemporaneous emails show he was
engaged with Smith in trying to resolve the issue. See Def.’s MSJ, Ex. 7 at 55:5–12; Ex. 9B at
23:5–24:10; Ex. 50B at 76.
29