The opinion of the court was delivered by: Conti, District Judge.
In this memorandum opinion, the court considers the motion for summary judgment (Doc. No. 25) filed by defendant John E. Potter, Postmaster General, United States Postal Service ("defendant" or "Postal Service"), with respect to the only remaining claim asserted by plaintiff Jacqueline R. Smith ("plaintiff") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000, et seq. ("Title VII"), which is a claim for retaliation. After considering the joint concise statement of material facts, defendant's motion for summary judgment, and the submissions of the parties, the court will grant summary judgment in favor of defendant by reason of plaintiff's failure to adduce sufficient evidence to support a prima facie case of retaliation.
Factual Background and Procedural History
The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in light most favorable to nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Plaintiff is an African-American woman. Complaint ¶ 19; Answer ¶ 19. At all times relevant to this litigation, plaintiff was an employee of the Postal Service. Complaint ¶ 5; Answer ¶ 5.
I. The Protected Activity, the 2001 EEO Complaint
On or about January 3, 2001, plaintiff filed EEO complaint 1-C-151-0026-01 ( the "2001 EEO Complaint") alleging that she had been subjected to sexual assault at work when Michele Rotunda ("Rotunda"), plaintiff's co-worker, grabbed plaintiff on November 15, 2000 while plaintiff was having a conversation with other employees. Defendant's Appendix to the Concise Statement of Material Facts, Exhibit ("Def.'s Ex.") A.
The Postal Service acknowledged and accepted the 2001 Complaint for investigation on or about January 30, 2001 via an acceptance letter sent to plaintiff. Joint Statement of Material Facts ("J.S.") ¶ 2. On February 11, 2002, the Postal Service (pursuant to 29 C.F.R. § 1614.109 (g)(3)) sent a fifteen-day notice to plaintiff informing her that a decision on the 2001 EEO complaint would be issued without a hearing. J.S.¶ 3. Plaintiff a filed response in opposition to the issuance of a decision without a hearing and a supplemental affidavit in support of her opposition. Id. ¶ 4. Within the supplemental affidavit, plaintiff specifically alleged many of the retaliatory acts upon which the above-captioned suit is based. Def.'s Ex. D.
On March 5, 2002, the administrative judge issued an order of judgment in favor of defendant and on or about March 6, 2002, the administrative judge issued an accompanying decision finding defendant not liable for the conduct of Rotunda. J.S. ¶ 8; Def.'s Ex. F. In the decision, the administrative judge construed plaintiff's references to retaliation as a request to amend the existing complaint to include an additional complaint of retaliation. Id. The administrative judge denied that request and further advised plaintiff that if plaintiff intended to pursue that claim, plaintiff should seek equal employment opportunity ("EEO") counseling "assuming [plaintiff] had not already done so." Id. In a footnote, the administrative judge stated that "for time computation purposes, the postmark or receipt date of the complainant's prehearing statement by the EEOC should be deemed the date used to determine if the Complainant's initial EEO counselor contact were [sic] timely under 29 C.F.R. § 1614.105(b)." Id. at 2 n.2 (citation omitted) (emphasis in original). The decision also included an attached notice describing the appeal process from the final order including the right to file a civil action in federal district court. Id. Plaintiff did not appeal the dismissal of the 2001 Complaint. J.S. ¶ 12.
II. The Second EEO Complaint
On April 12, 2002, plaintiff requested pretrial counseling for race discrimination and retaliation. Def.'s Ex. G; J.S. ¶ 14. On May 31, 2002, plaintiff filled EEO Complaint 1-C-151-0052-02 (the "2002 EEO Complaint"). In the 2002 EEO Complaint, plaintiff alleged that she had been subjected to retaliation and racial discrimination by co-workers and supervisors. J.S. ¶¶ 15-17. The 2002 EEO Complaint and the incidents described therein provide the basis for this civil lawsuit. In the 2002 EEO Complaint, plaintiff claimed that she was subjected to discriminatory conduct from February 2001 through March 31, 2002 in response to her submission of the 2001 EEO Complaint on January 3, 2001. J.S. ¶¶ 15, 18.
On July 31, 2002, plaintiff submitted to the EEO investigator an EEO investigative report which identified the issues in the 2002 EEO Complaint. J.S. ¶ 19. The issues included the same incidents that were included in plaintiff's affidavit for the pre-complaint counseling. Def.'s Ex. G.
On March 15, 2004, a final agency decision was issued by the administrative judge dismissing the 2002 EEO Complaint. Def.'s Ex. K. The administrative judge concluded that plaintiff failed to state a prima facie case of racial discrimination or retaliation. Id. at 8. The decision instructed plaintiff about remedial steps available to her after the final decision including instructions concerning her ability to file a civil action in the appropriate federal district court. Id. On June 14, 2004, plaintiff filed the above-captioned civil action.
III. The Pending Civil Lawsuit
Plaintiff originally filed the above-captioned lawsuit alleging, among other things, retaliatory discrimination in violation of Title VII and discrimination on the basis of race in violation of 42 U.S.C. §1981. J.S. ¶¶ 24-25. This court granted defendant's motion to dismiss plaintiff's section 1981 claims based upon plaintiff's consent to the dismissal. February 2005 Memorandum Order at 4 (Doc. No. 8). This court also found that plaintiff's claims for sexual discrimination and racial discrimination were time-barred. Id. The only remaining claim in this case, therefore, is plaintiff's retaliation claim, which is the subject of defendant's instant motion for summary judgment.
Plaintiff's retaliation claim is based upon the following retaliatory incidents. On the day after the original alleged sexual assault incident by Rotunda, Bob Ecklund ("Ecklund"), plaintiff's manager, called her into his office, "making [her] walk through the lobby to reach his office which is right across the floor, compound[ing] [her] feeling of intrusion, embarrassment, [and] violation." J.S. ¶ 81; Brief in Opposition to Summary Judgment, Exhibit ("Pl.'s Ex.") 1 (affidavit). Plaintiff claimed that Euklund, by making her walk across the lobby and report to his office to discuss the incident, made her "feel degraded as though [she] [had done] something immoral." J.S. ¶ 80; Pl.'s Ex. 1. In more detail, plaintiff stated in the investigative affidavit:
. . . Mr. Ecklund called me in the office, however, he told me to walk out through the turnstiles and come in through the lobby and he'll open the door that way. At this time Mr. Ecklund made me feel degraded as though I had did [sic] something immoral. When I arrived at the office Mr. Ecklund questioned me on how I felt about the situation. Did I mind if Michelle worked in the tour office? Did I mind working out in the paper section? Would I mind if Michelle would only speak to me in a professional manner[?] At this time after making me walk through the lobby to reach his office, which is right across the floor, compounded my feeling of intrusion, embarrassment, [and] violation. I felt pain in my chest and my body began to ache, I told him holding back the tears that I can't even talk about it now and I didn't know how I felt at this time.
Plaintiff further alleges actions by multiple co-workers and supervisors in support of her retaliation claim against the Postal Service. Many of these alleged incidents of retaliation, however, fail because the co-worker or supervisor in question maintained that he or she had no knowledge of plaintiff's protected activity and because plaintiff failed to adduce any facts showing that there is a genuine dispute for trial regarding their knowledge about her protected activity.
On two occasions in February 2001, for example, plaintiff alleges that John Marker ("Marker"), plaintiff's co-worker, attempted to retaliate against her by almost running her over with a forklift. J.S. ¶¶ 29-30. In a sworn, signed statement dated May 12, 2006, Marker denied attempting to run plaintiff over with a forklift. Id.¶ 32. Def.'s Ex. L.*fn1 Marker further denied in that statement that he ever attempted to retaliate against her and further denied having knowledge of plaintiff's previous EEO activity. Def.'s Ex. L.*fn2 In a deposition, plaintiff admitted that any knowledge that she had about Marker's awareness of her EEO activity was based upon speculation and not her own personal knowledge:
Q: So any knowledge you have about Mr. Marker knowing about your claim against Ms. Rotunda is speculation on your part that he knew because, in your opinion, everybody in the facility knew what everyone else did?
Q: Well, how you would describe it, your knowledge about what he knew or didn't know?
Def.'s Ex. J at 79-80; J.S. ¶ 34.
Plaintiff also alleges retaliation based upon the failure of Tina Augustine ("Augustine"), plaintiff's supervisor, to forward plaintiff's request to take December 2, 2001, as a non-scheduled day off. J.S. ¶ 35. Part-time clerks in the Postal Service, including plaintiff at that time, had no set schedule. Id. ¶¶ 36-37. Part-time clerks, however, could request non-scheduled days off. See Id. Plaintiff asserts that Augustine's failure to forward her request was done in retaliation for her previously protected activity; plaintiff, however, does not provide any evidence of Augustine's knowledge of that activity. Id. ¶¶ 41-42.*fn3 On the contrary, plaintiff admitted in a deposition that her assertion of Augustine's knowledge is based upon an assumption:
Q: But is it like your previous testimony, you just assumed that she [Augustine] knew?
Q: But you have no independent knowledge that she did know?
A: I'm sorry. No, I did not because, you know, they're not going to come out and verbally say.
Plaintiff also alleges retaliation based upon the actions that occurred on December 3, 2001, when Greg Schwartz ("Schwartz"), the FLMA coordinator, allegedly yelled at plaintiff while they were discussing a leave issue. J.S. ¶ 43. Although plaintiff stated that she believes that Schwartz was aware of her prior EEO complaint and alleges that this encounter was in retaliation to her EEO complaints, plaintiff admitted in a deposition that she was not sure whether Schwartz knew about her protected activity:
Q: . . . . Do you know whether or not Mr. Swartz [sic] knew that you had filed a [sic] EEO complaint against Ms. Rotunda at the time this occurred?
A: He probably did. I don't know for sure.
Def.'s Ex. J at 122-23. Schwartz stated that he had no knowledge of the previous complaint about Rotunda. Id. ¶¶ 44-6.*fn4 In a signed affidavit dated April 22, 2003, Schwartz stated:
I do remember vaguely having a discussion with employee Jacqueline Smith concerning her need to document her absence, however I do not remember yelling at her and demanding documentation "or else." Documentation was required from any employee if it was deemed justified relating to the situation. I did not at that time have any knowledge of the situation concerning Ms. Smith and Michele Rotunda, who to this day I do not know. . . . I was not as I stated earlier, [sic] aware of the complainants ...