The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Patricia Masupha ("Masupha") is a black female of South African decent who has been employed for nearly nineteen years by the U.S. Department of Transportation ("DOT"), Federal Aviation Administration ("FAA"). After a series of workplace incidents involving Masupha, her supervisor, Bernadette O'Brien ("O'Brien") suspended her for five days. Masupha filed this action against Norman Y. Mineta ("Mineta"or "Defendant") in his official capacity as the Secretary of the DOT pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 2000(e) et seq. contending that she suffered an adverse employment action--suspension--on account of her sex, race, age, and national origin; and that O'Brien's reason for suspending her was to retaliate against her for having previously opposed the DOT's alleged discriminatory practices.
Mineta moves for summary judgment on Masupha's Title VII claim claiming that: 1) Masupha has presented no direct evidence of sex, race, age, or national origin discrimination or retaliation; 2) Masupha cannot establish a prima facie case of sex, race, age, or national origin discrimination or retaliation because she has not identified any similarly-situated employees outside of the protected class who were treated more favorably; and 3) even if Masupha could establish a prima facie case of sex, race, age, or national origin discrimination or retaliation, there were legitimate, non-discriminatory reasons for her suspension.
Masupha has failed to present any direct evidence of sex, race, age, or national origin discrimination or retaliation, and has not demonstrated the existence of a genuine issue of material fact bearing on whether Defendants treated any similarly-situated employees outside of the protected class more favorably than she, or whether Defendant's articulated reasons for suspending Masupha for five days were a pretext for discrimination or retaliation. Accordingly, Defendant's Motion for Summary Judgment is granted.
Masupha, a black female of South African decent, is a personnel management specialist for the FAA. Pltf. 56.1 Resp. ¶ 1.*fn1 Masupha received a bachelor's degree in 1989 and a master's degree in Human Resource Development in 1999. Def. 56.1 Resp. ¶ 36. O'Brien is Masupha's direct supervisor. Def. 56.1 Resp. ¶ 37; Def. Mtn.*fn2
In April 2005, Masupha participated in Air Traffic Controller Specialist ("ATCS") hiring process. Def. 56.1 Resp. ¶ 42; Ex. 2. She was to fill 18 ATCS vacancies for those candidates who would be required to train at the FAA Academy from May 19, 2005 to August 3, 2005 and seven additional ATCS vacancies for the September 15, 2005 to December 1, 2005 Academy class. Id. FAA policy requires that an ATCS receive medical clearance prior to being hired. Pltf. 56.1 Resp. ¶ 5*fn3 . The policy is set forth in the Office of Professional Management ("OPM") Qualification Standards Operating Manual (the "Manual"). Ex. I, p. 1. Masupha had recently received specific training DOT procedures associated with hiring Air Traffic Control Specialists. Def. 56.1 Resp. ¶ 43; Pltf. 56.1 Resp. ¶ 16.
On April 29, May 13, and May 19, 2005, Masupha extended final job offers to eight applicants for ATCS positions without ensuring that those candidates had received the required medical clearance. Pltf. 56.1 Resp. ¶ 6.*fn4 On May 18, 2005, Masupha, O'Brien and FAA personnel met to discuss Academy applicant Jeremy Braughton's ("Braughton") status. Pltf. 56.1 Resp. ¶ 7. During the meeting, O'Brien learned that Masupha gave Braughton a firm job offer and scheduled Braughton to start training at the FAA Academy on May 19, 2005 even though Braughton had not yet obtained the required medical clearance. Pltf. 56.1 Resp. ¶ 7.
The following day, O'Brien met with Masupha to discuss the situation and admonished Masupha for offering Braughton a job before obtaining the required medical clearance. Pltf. 56.1 Resp. ¶ 8. Additionally, O'Brien admonished Masupha for concealing her mistake for two weeks. Id.; Ex. I. Because Masupha concealed her mistake, O'Brien attended the May 18, 2005 meeting under the mistaken belief that Braughton had obtained medical clearance prior to Masupha's offer. Id. O'Brien told Masupha "...this should never happen again" and that "once was more than enough." O'Brien also said that she " expected to be told everything" and that "matters like this must be brought to [my] attention immediately." Pltf. 56.1 Resp. ¶ 8.
On May 24, 2005, O'Brien and Masupha attended a meeting with Security and Aviation Medicine ("SAM") to discuss suitability determination procedures. Pltf. 56.1 Resp. ¶ 9. During this meeting, the fact that Masupha hired Braughton before he was medically cleared was addressed. Believing that Masupha's mistake was an isolated event, O'Brien supported Masupha in front of the SAM stating that she would never knowingly hire an individual that did not posses the necessary clearance. Id. Masupha sat silently during the May 24, 2005 meeting knowing that she had hired seven additional candidates who had not obtained the required medical clearance and Masupha did not disclose this fact to O'Brien or any other FAA employee. Id.
Masupha's conduct came to light on the following day when the Regional Flight Surgeon, Dr. Kowalski, told O'Brien that Masupha had hired an additional seven individuals who did not have medical clearance. Pltf. 56.1 Resp. ¶ 10. O'Brien was forced to call three or four candidates and rescind their job offers. Pltf. 56.1 Resp. ¶ 11. One of the candidates drove from Montana to Oklahoma City to attend the FAA Academy and O'Brien was forced to call the candidate less than 24 hours before he was to begin class to rescind his job offer. Id. Dr. Kowalski delayed telling O'Brien about Masupha's conduct because he wanted to give Masupha the opportunity to tell O'Brien. When the actual start dates were approaching, Dr. Kowalski could delay no longer and he was forced to disclose this information to O'Brien. Id.
On July 5, 2005, O'Brien drafted a Notice of Proposed Suspension ("Notice") to Masupha setting forth her basis for suspending her for ten-days. Pltf. 56.1 Resp. ¶ 4. O'Brien intended to suspend Masupha for negligent work performance and for failure to follow instructions from a superior official. Id. As to the former, O'Brien specifically charged Masupha with failing to adhere to FAA Policy requiring ATCS candidates to receive medical clearance prior to extending job offers to them. Id. Regarding the latter charge, O'Brien specifically charged Masupha with concealing her mistakes from O'Brien on two occasions--one occurring after O'Brien instructed her to bring similar matters to her attention immediately. Id.
O'Brien allowed Masupha time to respond to the Notice in writing and on August 2, 2005, Masupha submitted a seven-page written response that Masupha characterizes as a complete statement of the reasons she believed that her suspension was unfair.*fn5 Pltf. 56.1 Resp. 13, 14. Masupha did not dispute any of the facts set forth in the Notice. Pltf. 56.1 Resp. ¶ 15. Rather, Masupha apologized for her mistakes and stated that they were not intentional. Id. Although Masupha acknowledged that she had received specific training in hiring Air Traffic Control Specialists she claimed that her training was short and that she "may have missed or overlooked the instructions that clearances must be received." Pltf. 56.1 Resp. ¶ 16. Masupha also conceded that she failed to tell O'Brien about the seven additional job offers to candidates who were not medically cleared but stated that she did so because the "situation was very tense," she wanted to inform her trainer first, and because she was afraid that "O'Brien would be angry". Pltf. 56.1 Resp. ¶ 17. Masupha pleaded financial hardship, asked O'Brien to consider reducing the proposed ten-day suspension, and promised that the mistake would not happen again. Id.
O'Brien reduced Masupha's suspension from ten days to five days (two non-work days and three pay days) on the basis of Masupha's financial situation. Pltf. 56.1 Resp. 18. Although O'Brien found that the negligent work performance charge was "supported by a preponderance of the evidence" she chose to give Masupha the "benefit of the doubt" and withdrew the charge. Id. O'Brien, however, could not overlook Masupha's failure to disclose the fact that she hired seven other candidates having warned her to on May 18, 2005 to bring similar matters to her attention immediately. Accordingly, O'Brien upheld the failure to follow directions charge stating, "[w]ithholding serious issues from me in order to avoid admonishment is, at best, irresponsible behavior not expected of a Specialist. The acceptance of consequences is part of taking responsibility. Your reply indicates that you made a choice to take actions which were contrary to my instructions." Pltf. 56.1 Resp. ¶ 19.*fn6 Masupha was suspended for five days in September 2005.
Masupha identified Cindy Warrender ("Warrender"), Gary Yackle ("Yackle"), Diana Maiello ("Maiello"), Deborah Larson ("Larson"), Gabriele Weiman ("Weiman"), Sandra Granger ("Granger"), and Jennifer Scottberg ("Scottberg") as being individuals who are similarly situated to Masupha, but who were treated more favorably. Pltf. 56.1 Resp. ¶ 23. Warrender is a white female and is a personnel management specialist. Pltf. 56.1 Resp. ¶ 24. In May 2005, Warrender and Masupha mistakenly set an individual's salary at the wrong level. Id. Neither Warrender or Masupha were disciplined for the error. Id.
Maiello and Larson are female management specialists.*fn7 Pltf. 56.1 Resp. ¶ 25. Although she has no personal knowledge regarding their conduct, Masupha "believes" that Warrender, Maiello, and Larson made an error involving setting an individual's salary at the wrong level because she heard O'Brien orally reprimand them at a meeting. Id.; Def. 56.1 Resp. ¶ 63. Although O'Brien warned Warrender, Maiello and Larson that she was going ...