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Jordan v. Foxx

United States District Court, W.D. Washington, Seattle

May 12, 2015

ANTHONY R. FOXX, Secretary, U.S. Department of Transportation, Defendant.


RICARDO S. MARTINEZ, District Judge.


This matter comes before the Court on Defendant's Motion for Summary Judgment. Dkt. #47. Defendant asks this Court to dismiss Plaintiff's case in its entirety on the basis that she fails to raise any genuine dispute with a material fact as to alleged discrimination or retaliation and therefore her claims fail as a matter of law. Id. Plaintiff argues that she has demonstrated a genuine dispute as to material facts in this matter, specifically with respect to inferred discrimination and retaliation, and therefore Defendant's motion fails and this matter must proceed to trial. Dkt. #50. For the reasons discussed herein, and having considered the oral arguments on May 12, 2015, the Court disagrees with Plaintiff and GRANTS Defendant's motion.


Plaintiff, Marlene Jordan, is an African American woman. Dkt. #51, Ex. A at 25:15-17. Ms. Jordan has worked for the Federal Aviation Administration ("FAA"), a subdivision of the Department of Transportation ("DOT"), since 1998. Dkt. #52 at ¶ 2. She is currently employed as a Management and Program Analyst, also known as a Staffing Specialist, on the Employee Services Team ("EST") in Renton, Washington. Dkt. #52 at ¶ 2. She has worked in that position since 2007. Her seniority level is characterized as "H-band." Id.

The events leading to this action occurred in 2011. At that time, Ms. Jordan's Supervisor was Norma Johnson.[1] Norma began working at the FAA in the 1980s as a secretary, before joining the Human Resources Division. Dkt. #49, Ex. A at 10:22-11:9. For a portion of her career, Norma worked as an EEO investigator within the FAA. Dkt. #49, Ex. A at 17:5-14. In approximately 2009, Norma became the manager of the EST, and Ms. Jordan's first line supervisor. Dkt. #48 at ¶ 2. As manager of the EST, Norma was responsible for approximately 15-18 employees, the majority of them women, and had the ability to hire and fire. Dkts. #51, Ex. B at 11:9-17 and #49, Exs. B and C. Norma was also responsible for directing and managing her employees, including "evaluating performance, coaching and developing staff." Dkt. #49, Ex. G.

During the years that Ms. Jordan was supervised by Norma, she received satisfactory performance reviews, although Ms. Jordan describes her performance as "exceptional." See Dkt. #49, Exs. I-K and H at 128:16-129:4. However, Norma did note deficiencies in Ms. Jordan's performance as well. For example, in one of her performance evaluations Norma noted that feedback from Ms. Jordan's customers was not positive, customers were uncomfortable going to Ms. Jordan for assistance and lacked confidence in her knowledge and expertise, Ms. Jordan was perceived by her colleagues as reluctant to do more than what was minimally required, and she was often not accountable for her own actions. Dkt. #49, Exs. I at 4 and K at 8. On another occasion Norma noted that Ms. Jordan had failed to deliver on a brochure project she had been assigned. Dkts. #49, Ex. K at 7-11 and #48, Ex. A at 9. Norma documented her various verbal conversations and coaching with Ms. Jordan, noting other performance deficiencies. Dkt. #48, Ex. A. However, Ms. Jordan has never received any corrective action, nor has she ever been placed on a Performance Improvement Plan. Dkt. #52 at ¶ 4.

On November 21, 2010, Norma temporarily promoted Ms. Jordan from her H-band position to an I-band level Management & Program Analyst position. Dkt. #49, Ex. A at 82:11-83:11, Ex. N and Ex. H at 70:9-12. In that position, Ms. Jordan's "customer" was the Tech Ops Service Center, and she was responsible, inter alia, for advising managers about hiring and moving employees. Dkt. #49, Ex. A at 83:14-84:10. The promotion was granted on a "non-competitive" basis, meaning that Ms. Jordan did not need to apply for the position. Id., Ex. H at 70:17-22.

According to Defendant, the temporary promotion did not go well for Ms. Jordan. Dkt. #47 at 6-7. Defendant notes that Ms. Jordan had serious performance issues throughout the time she was in that position, including one instance where she failed to process a customer's detail request in a timely manner, resulting in the abandonment of the request (the "Baden" error), and another instance where she incorrectly processed an employee request, resulting in an employee reporting to work and working in the position for more than a month before Norma noticed that the detail had not been fully approved (the "Bowen" error).[2] Dkt. #49, Exs. A at 67:11-68:14, H at 131:25-132:6, R and S, and #48, Ex. A. The promotion ended on February 28, 2011, and Ms. Jordan was returned to her former position. Ms. Jordan does not dispute that during a discussion with Norma she (Ms. Jordan) told Norma that the position was "over her head and overwhelming" to her.[3] See Dkts. #49, Ex. A at 45:15-24 and #50. In fact, Ms. Jordan fails to discuss her temporary I-band promotion at all in her briefing. See Dkt. #50.

Shortly after Ms. Jordan's promotion ended, Norma discovered and addressed the Bowen error with Ms. Jordan. See Dkt. #48, Ex. A and #49, Ex. S. According to Ms. Jordan, on March 10, 2011, Norma confronted her in her cubicle, standing very close to her and speaking in a loud, angry voice, in the presence of her co-workers. Dkt. #52 at ¶ 5. Ms. Jordan had never witnessed Norma treat anyone else this way. Id. The next day, Norma called Ms. Jordan into her office and again spoke to her about the error. Id. at ¶ 6. Ms. Jordan asserts that Norma "berated" her to the point of tears and threatened her job. Id. Norma denies yelling at Ms. Jordan at her cubicle, but explained that she had taken written notes of their March 11th discussion because the discussion had been "intense." Dkts. #51, Ex. B at 83:24-84:15 and #54, Ex. D at 56:21-25.

As a result, Ms. Jordan contacted the EEO hotline and made an informal complaint about the March 10th and 11th interactions, alleging disparate treatment based on race and sex. Dkts. #51, Ex. P and #52 at ¶ 7. On June 14, 2011, Ms. Jordan and Norma participated in mediation and resolved the complaint. Dkt. #51, Ex. P.

On June 30, 2011, the FAA posted vacancy announcement "ANM-ATO-11-0977682-21578, Series FV-343-1" for an I-band level Management & Program Analyst position for a different customer than whom Ms. Jordan had previously worked. Dkt. #49, Ex. T. This was not the same position that Ms. Jordan had previously temporarily filled, although it was the same I-band level of promotion. This position was permanent, and would support the Service Center's En Route operations unit. Dkt. #49, Exs. T and U at 62:20-63:5.

Nine people applied for this position, including Ms. Jordan and the person who ultimately filled the position, Jennifer Johnson. Dkt. #49, Exs. V, W and X. The position was an I-band level, and would have been a promotion for both Ms. Jordan and Jennifer who were both in H-band positions at the time. Sue Fletcher, a lead HR staffing specialist, reviewed the applications and created a "referral list" of qualified candidates from which Norma Johnson could hire. Dkt. #49, Ex. Y at 44:24-45:18. Ms. Fletcher issued the referral list on July 14, 2011. Dkt. #49, Ex. Z. There were three candidates on the list - Ms. Jordan, Jennifer Johnson, and a male employee. Id.

To provide a "totally objective assessment" of the job candidates, Norma convened an interview panel of three employees to conduct the interviews and to make a hiring recommendation.[4] Dkt. #49, Exs. O at 2, Response to Interrogatory No.3 and DD. The panel members were: Paige Anderson - Team Lead, Organizational & Employee Performance Team, ASG; Cindy Alexander - Senior Advisor, Western En Route & Oceanic Operations; and Monique France - Executive Advisor, Western Terminal Operations. Dkt. #49, Ex. EE. The panel reviewed the candidates' written materials, and then held interviews, asking each person the same questions. Id. The panel found that Jennifer had a superior written "applicant package, " and assigned her a score of 53 on the Applicant Package Review score sheet. Id. at 5. Plaintiff received a lower score of 49 on her written materials, id., but presented better verbal communication skills than Jennifer during her interview. Id., Ex. O at 2, Response to Interrogatory No. 3; see also Dkt. #49, Exs. FF, GG and HH. Ultimately, the panel found both candidates equally qualified for the position and referred both to Norma for further consideration for the position. Id., Ex. EE.

Norma was not confident that either candidate was really ready for the promotion. Dkt. #49, Ex. M at 2. Therefore, instead of hiring a candidate for the permanent position, and at the suggestion of Cindy Alexander (who was the representative of the customer who was going to be served), Norma decided to temporarily promote Jennifer to see if she was a good fit. Dkt. #40, Ex. O, Response to Interrogatory No. 3 and Ex. M. Norma had already provided Ms. Jordan with such an opportunity by temporarily promoting her to an I-band manager position several months earlier, albeit for a different customer. Id. Norma met with both Ms. Jordan and Jennifer on August 2, 2011, to inform them of her plan. Id.. Norma also informed Ms. Jordan that if Jennifer did well in the position, she would be made permanent. Dkt. #49, Ex. H at 124:7-22 and Ex. M. According to Norma, Jennifer performed exceptionally well during her promotion. Dkt. #49, Ex. O, Response to Interrogatory No. 6. As a result, Jennifer was hired permanently to the position. Id.

On March 31, 2012, Ms. Jordan filed an EEO Complaint alleging that Norma had discriminated against her based on race and sex, and had retaliated against her based on her prior EEO complaint, when she was not selected for the I-band promotion given to Jennifer.[5] Dkt. ...

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