The opinion of the court was delivered by: Padova, J.
Plaintiff Darlene Melton commenced this employment discrimination
action against her employer, Defendant United States Social Security
Administration ("SSA"), under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. The SSA has now filed a Motion for
Partial Summary Judgment, in which it asks that we enter judgment in
its favor on Plaintiff's claims of race discrimination, gender
discrimination, and a discriminatory failure to promote, based on
Plaintiff's failure to exhaust her administrative remedies.*fn1
For the following reasons, we grant the Motion insofar as it
seeks judgment on those claims.
In October 2008, Plaintiff, an SSA employee, received a performance appraisal from her supervisor, Susan Tonik. (See Ex. H. to Def.'s Mot. at 2 ¶ 6.) Plaintiff disagreed with the appraisal and contacted an Equal Employment Opportunity ("EEO") counselor to institute a discrimination complaint. (See Ex. A to Def.'s Mot. at 1, 3.) In conjunction with Plaintiff, the counselor completed an EEO Counseling Report (hereinafter "Counseling Report" or "Report"). (See id. at 1-4.) The Counseling Report form prompts the counselor to mark the "types of discrimination" the complainant claims to have suffered and to indicate the "matter causing the complaint" by "select[ing] from one or more" of several options provided. (Id. at 2.) Plaintiff's completed form reflects that the only type of discrimination that Plaintiff claimed to have suffered was "Retaliation/Reprisal," and it identifies the matters giving rise to Plaintiff's complaint of discrimination as "Evaluation/Appraisal" and "Harassment (Non-Sexual)." (Id.) The completed form does not include checks in the boxes to indicate that Plaintiff suffered discrimination based on "Sex-Female" or "Race-Black," nor does it indicate that "Non-Selection" or "Promotion" were matters giving rise to her complaint. (Id.)
A narrative account attached to the Counseling Report reflects that Plaintiff believed that her poor performance appraisal was a retaliatory response to testimony she gave to the Equal Employment Opportunity Commission ("EEOC") in connection with a 2007 race and age discrimination case arising out of the termination of an African American SSA employee, who, like Plaintiff, was under Ms. Tonik's supervision. (See id. at 3; Ex. H. to Def.'s Mot. at ¶ 4.) The narrative account also reflects that Plaintiff reported to the EEO counselor that Ms. Tonik had subjected Plaintiff to additional workplace harassment, dating back to the time of her testimony. (See Ex. A to Def.'s Mot. at 3.)
Plaintiff filed an EEOC Complaint with the SSA in late February, 2009.*fn2 (See Ex. B to Def.'s Mot.) A checked box in the Complaint indicates that Plaintiff's prior Counseling Report "outlin[ed] the issues and bases" of her Complaint. (Id.) On April 13, 2009, the SSA sent Plaintiff a letter in which it stated that it read her Complaint to set forth two claims: (1) that "based on reprisal, management subjected [her] to continuous harassment (non-sexual) and a hostile work environment beginning 2007 to the present"; and (2) that "based on reprisal, [she] received a negative performance evaluation for fiscal year 2008." (Ex. G to Def.'s Mot. at 1-2.) The letter stated that the SSA was dismissing Plaintiff's claim that she received the performance evaluation in retaliation for her EEOC testimony, because Plaintiff had opted to grieve that claim pursuant to a process set forth in her union's collective bargaining agreement. (See Ex. G to Def.'s Mot. at 2-3 (citing 29 C.F.R. § 1614.107(a)(4) (stating that agency shall dismiss complaint where the complainant has raised the matter in a negotiated grievance procedure).) The letter further stated, however, that the SSA would initiate an investigation into Plaintiff's second claim, i.e., that she had been subjected to a hostile work environment and harassment in retaliation for her testimony in her co-worker's discrimination case. (See Ex. G to Def.'s Mot. at 1-2 ) (Id.) The SSA gave Plaintiff the name and phone number of a member of its intake team, whom Plaintiff could call with any questions, and closed the letter with a statement that, if Plaintiff did not contact the intake team within ten days, the SSA would "conclude that the claim ha[d] been properly identified." (Ex. G to Def.'s Mot. at 3.) There is no evidence in the summary judgment record that Plaintiff ever contacted the intake team to correct any misidentification of her claims.
In connection with the EEO investigation, which was conducted between June 25, 2009, and August 15, 2009, Plaintiff provided an affidavit, which gave further details concerning the retaliation that allegedly followed Plaintiff's 2007 testimony in her co-worker's discrimination case. (See Ex. H. to Def.'s Mot.) By letter dated September 10, 2009, the SSA sent its report of investigation to both Plaintiff and Plaintiff's counsel. (See Ex. I to Def.'s Mot. at 1-2.) On March 8, 2010, the SSA issued a final decision, finding that Plaintiff had not been "discriminated against based on reprisal." (Id. at 5.)
Plaintiff appealed the SSA's decision to the EEOC on April 5, 2010. (See Ex. J to Def.'s Mot. at 1.) On September 14, 2010, the EEOC affirmed the SSA's decision. (Id.) In its written opinion, the EEOC stated that Plaintiff asserted on appeal that "since she testified at a co-worker's discrimination hearing, she ha[d] been subjected to a hostile work environment," and that a "negative performance evaluation had been used to deny [her] promotional opportunities." (Id. at 2.) The EEOC refused to address the claim that Plaintiff had been denied "promotion opportunities." To the extent that Plaintiff was asserting that she was denied promotions as a consequence of the performance appraisal, the EEOC noted that the SSA had dismissed Plaintiff's retaliation claim arising out of the performance appraisal and that Plaintiff had not challenged that decision. (Id.) To the extent that Plaintiff was asserting for the first time on appeal that she was denied "promotion opportunities" because of discriminatory retaliation, the EEOC determined that those claims were not properly before the EEOC because she had not raised them previously. (Id. at 2.) Thus, the EEOC "solely review[ed]" Plaintiff's claim that she was subjected to a hostile work environment because of retaliation (id.), and concluded that Plaintiff had "failed to show that the alleged harassment occurred because of her prior protected activity" or that the alleged "discriminatory events, taken as a whole, were sufficiently severe or pervasive enough to establish a prima facie case of retaliatory harassment." (Id. at 3.) At the conclusion of its decision, the EEOC advised Plaintiff that she had the right to file a civil action with the District Court within ninety calendar days from the date she received the decision. (Id. at 4.)
On December 13, 2010, Plaintiff filed the instant Title VII action, alleging that the SSA engaged in race discrimination, gender discrimination, and retaliation, and asserting that the matters giving rise to her discrimination claims were both a hostile work environment and failures to promote. Specifically with respect to the failures to promote, Plaintiff alleged that she was denied a permanent promotion in July 2007, and that, over the following fourteen months, i.e., July 2007 through September 2008, she "applied for 14 open positions" and "was denied each promotion." (Compl. ¶ 16.)
Summary judgment, either full or partial, is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party "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 an absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a party files a properly supported motion for summary judgment, the burden shifts to the non-moving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
"The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 248. An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A factual dispute is "material" if it might affect the outcome of the case under governing law. Id. In making the summary judgment determination, we "must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 276 (3d Cir. 2001) (internal quotation marks omitted).
In its Motion for Partial Summary Judgment, Defendant seeks judgment in its favor on Plaintiff's Title VII claims insofar as they rest on allegations of race and/or gender discrimination and insofar as they complain of failures to promote.Specifically, Defendant argues that it is entitled to judgment on these aspects of Plaintiff's Title VII claims because the undisputed record evidence establishes that Plaintiff did not raise these ...