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Dowell v. Speer

United States District Court, M.D. Tennessee, Nashville Division

March 23, 2017

DEBBIE L. DOWELL, Plaintiff,
v.
ROBERT M. SPEER, Acting Secretary, Department of the Army, Defendant.

          MEMORANDUM

          ALETA A. TRAUGER United States District Judge.

         Plaintiff Debbie Dowell brings claims of race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (“Title VII”) against the Secretary of the Army as her employer. (Compl., Doc. No. 1; Am. Compl., Doc. No. 66.) Now before the court are the plaintiff's Objections (Doc. No. 151) to the magistrate judge's Report and Recommendation (“R&R”) (Doc. No. 148), recommending that the plaintiff's Motion for Summary Judgment (Doc. No. 115) be denied, that the defendant's Motion for Summary Judgment (Doc. No. 125) be granted, and that this action be dismissed. At the court's directive, the defendant has filed a Response to the Objections. (Doc. No. 156.)

         When a party files objections to a magistrate judge's report and recommendation regarding a dispositive motion, the district court must review de novo any portion of the report and recommendation to which objections are properly lodged. Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1)(B) & (C). In conducting its review, the district court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         The court has conducted a de novo review of the parties' motions and the entire evidentiary record in light of the plaintiff's Objections and finds that material factual disputes preclude summary judgment in favor of the defendant on the plaintiff's claim that the defendant discriminated against her based upon her race and retaliated against her for filing an EEO charge when it terminated a pending noncompetitive accretion of duties promotion initiated by the plaintiff's supervisor. In all other respects, the R&R will be accepted. Accordingly, the plaintiff's Motion for Summary Judgment will be denied, and the defendant's Motion for Summary Judgment will be granted in part and denied in part.

         I. Factual and Procedural Background

         The plaintiff's claims arise from her employment as a civil engineer with the United States Army Corps of Engineers (“USACE”), where she worked from 2004 until November 29, 2014.[1]

         In November 2008, the plaintiff transferred from the USACE's Louisville District, Construction Division, Fort Campbell Resident Office, where she had worked for several years, to the Nashville District's Nashville Resident Office (“NRO”). She alleges that, while working at the NRO, she was subject to discrimination on the basis of race and retaliation for having filed an Equal Employment Opportunity (“EEO”) complaint.

         She initiated this action in June 2014. In her Second Amended Complaint, she set forth claims based on four specific events:

1. The Plaintiff was discriminated against based upon her race (Black) when she was discriminatorily transferred to an established GS-12 grade equivalent Civil Engineer position description under the National Security Personnel System (NSPS) upon her transfer to the Nashville Resident Office in 2008, but was only paid a GS-11 grade or GS-11 equivalent salary to perform the duties of the position from 2008 to 2014, due to her race.
2. The Plaintiff was discriminated against based upon her race (Black) and subjected to reprisal when the Agency ceased a pending Noncompetitive Accretion of Duties Promotion initiated by Plaintiff's Supervisor, upon being made aware that Plaintiff had filed a complaint with the Nashville EEO Office.
[3.] The Plaintiff was discriminated against based upon her race (Black) when she was paid less than Caucasian male engineers to perform the same or greater duties in the Nashville Resident Office.
[4.] The Defendant discriminated against Plaintiff based upon her race (Black), committed fraud, and misused tax-payer funds when he falsified official Government documents to make it appear that a Caucasian male was performing the GS-12 grade or equivalent duties in the Nashville Resident Office, which the Plaintiff was actually performing.

(2d Am. Compl. ¶ 9(1)-(6), Doc. No. 66.)[2]

         After a contentious period of discovery, the parties filed their respective Motions for Summary Judgment in June and July 2016, along with Memoranda of Law, Statements of Undisputed Facts, and reams of supporting exhibits, deposition excerpts, and declarations. Both parties thereafter filed Responses, Replies, and Surreplies. The magistrate judge issued her R&R on February 14, 2017, specifically concluding that there are no material factual disputes and that the defendant is entitled to judgment in his favor as a matter of law on each of the plaintiff's claims. She therefore recommended that the defendant's motion be granted and that the plaintiff's be denied.

         The plaintiff has filed thirty-four enumerated objections to the R&R. Many of the objections concern trivial, non-material factual disputes.[3] Substantively, however, the plaintiff objects to the magistrate judge's determination that the material facts are undisputed and that the defendant is entitled to summary judgment in his favor as a matter of law.

         In order to respond efficiently to the plaintiff's Objections, the court considers de novo the Motions for Summary Judgment as to each of the plaintiff's claims. The court begins this analysis by focusing on Claim Two, which, as the magistrate judge recognized, presents the closest call and, therefore, requires the closest scrutiny by the court.

         II. Claim Two: Discrimination and Retaliation

         In Claim Two, the plaintiff asserts that the USACE discriminated against her based upon her race and retaliated against her for filing an EEO charge when it terminated a pending noncompetitive accretion of duties promotion initiated by the plaintiff's supervisor.

         A. Factual Background

         On April 30, 2012, after the plaintiff had been working at the NRO for over three years, the plaintiff sent an email to her direct supervisor, David Loyd, requesting an appointment to discuss the possibility of her upgrading from GS-11 grade to GS-12 grade. (Doc. No. 126-2, at 4.) Loyd forwarded the email to his supervisor, Johnny Wilmore. Wilmore responded that accretion was the only way to move the plaintiff to the GS-12 pay grade, “other than applying for a GS-12 vacancy somewhere, ” and suggested that they begin that process. (Id.) Wilmore formally initiated the accretion of duties process on May 23, 2012. (Doc. No. 126-7, at 19.) On the same date, the plaintiff first contacted the EEO office over the Nashville division (Doc. No. 20-1, at 1-2), but there is no evidence that any of her supervisors became aware of the EEO complaint on that date.

         Accretion of duties is defined as “the gradual addition of duties that have been added to a current employee's position and these additional duties result in a higher pay grade.” (CHRA Noncompetititve Accretion of Duties Standard Operating Procedure (“Accretion SOP”), Doc. No. 126-7, at 32.) An accretion of duties promotion is accomplished through a process set out in the Accretion SOP. (Id. at 31-36.) The purpose of an accretion of duties promotion, as the title of the SOP suggests, is to provide for the non-competitive promotion of a federal employee when “additional duties [have been] added to an employee's job which results in the position becoming a higher grade.” (Id. at 31, 32.)

         The Accretion SOP provides that the accretion of duties promotion process is initiated by the employee's supervisor, who submits a request for an accretion of duties promotion to an HR specialist. The specialist must “analyze each request . . . with the goal of protecting the merit principle of fair and open competition.” (Id. at 33.) In performing the required analysis,

the HR specialist must compare the existing, encumbered position description (PD) with the proposed PD. Determine if the employee will continue to perform the same basic functions, duties and tasks. Not all tasks need to be represented in the new PD, but a majority of the duties of the current job (at least 50%) must be included. If the revised PO does not include the old duties, then advise the ...

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