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Pough v. Peters

September 8, 2008


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Sharon Pough ("Pough") has brought this action against her former employer, the Federal Aviation Administration ("FAA"),*fn1 charging it with two violations of Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. §§2000e to 2000e-17)*fn2 (1) employment discrimination on the basis of race and national origin and (2) retaliation. Pough's Complaint also asserts that she was subjected to a hostile work environment and that she was constructively discharged.

Secretary has now moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated here, that motion is granted in its entirety.

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Leach v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a nonmovant "must produce more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 466 U.S. 242, 248 (1986)).

What follows is a summary of the facts viewed in the light most favorable to nonmovant Pough, but within the limitations created by the extent of her compliance (or noncompliance) with the strictures of LR 56.*fn3 And that obviates the need, in the evidentiary recital, to repeat "according to Pough" or the like or to identify any conflicting account, though inclusion of the latter is sometimes called for as a purely informational matter.


From 1991 through early 2003 Pough worked in the FAA's Human Resources Office, Great Lakes Region ("Great Lakes"), located in Des Plaines, Illinois (S. St. ¶3). During that time Pough worked primarily on equal employment opportunity ("EEO") issues and held positions such as Equal Employment Manager and Supervisory EEO Specialist (S. St. ¶4). During that same time frame Pough also filed several EEO charges on her own, asserting race-based discrimination and retaliation (S. St. ¶¶5-6, 12).*fn4

Pough's path to her current lawsuit began on February 9, 2003, when her position was reassigned from that of Supervisory Management Specialist at Great Lakes to that of Personnel Management Specialist for the Center for Management Development ("Management Development") (S. St. ¶8). Although Management Development is headquartered in Washington, D.C., Pough's 2003 reassignment did not entail a geographic relocation--she continued to work at Great Lakes (S. St. ¶¶9-10). Pough's reassignment was ordered by Mary Ellen Dix ("Dix"), the Deputy Assistant Administrator for Human Resources Management at FAA's national headquarters in Washington, who acted upon the recommendation of Pough's immediate supervisor Karen Johnson ("Johnson"), Great Lakes' Manager of Human Resources Services (S. St. ¶¶7-8).

In her new position Pough had a new immediate supervisor--Barbara Smith ("Smith"), Director of Management Development--although Dix remained Pough's "second-level" supervisor (S. St. ¶11). Pough later brought an EEO action challenging her reassignment to Management Development on the ground that it constituted a demotion that had been motivated by race-based discrimination and retaliation (S. St. ¶12).

Beginning in 2004 Pough was assigned to a special detail that involved working on a national project for the migration of the new Federal Personnel and Program Systems (S. St. ¶13). Pough worked on that project full-time for nearly a year and a half before she retired from the FAA altogether (id.). During that time she did not operate in her capacity as an employee of Management Development (id.).

In October 2004 Management Development was renamed the Center for Management and Executive Leadership ("Executive Leadership") (S. St. ¶14). At the same time it was "organizationally reassigned" from the Administration for Human Resources to the Administration of Regions and Center Operations (id.). That renaming and reshuffling was part of an agency-wide reorganization during which more than 120 FAA employees received reassignments (S. St. ¶15). Yet Pough responded to these changes by filing still another EEO charge (S. St. ¶16). That November 8, 2004 charge complained that as a result of the agency reorganization she had been allocated an undesirable office space that had no window and that was not conducive to wearing skirts (id.).

On June 12, 2005 Jay Weisz ("Weisz"), a male white, replaced Smith as Director of Executive Leadership (S. St. ¶17). In so doing Weisz became Pough's direct supervisor, a role that required him to fund her position and maintain her personnel, time and attendance records (S. St. ¶¶17-18). During the months that Weisz supervised Pough he never met her, for he did not work at Great Lakes and therefore spoke with Pough only by phone (S. St. ¶18). Weisz had no information about her prior EEO activity (id.).*fn5

While Pough worked for Executive Leadership her second-level supervisor was Robert Igo ("Igo"), Deputy Superintendent of the FAA (S. St. 19). Throughout Pough's tenure at Executive Leadership, she and Igo never met personally (id.). Secretary states that Igo was not aware of any of Pough's previous EEO activity (id.; S. Ex. A. at 75), but Pough seeks to deny that as well.*fn6

In a November 23, 2005 letter Weisz notified Pough that she "was being administratively reassigned from her 'outstationed/virtual position' as a Personnel Management Specialist" at Great Lakes (S. St. ¶20). Effective January 9, 2006 her new position would be as a Program Management Specialist at the Executive Leadership Center in Palm Coast, Florida (id.).*fn7 Weisz explained that the decision to reassign Pough was based on "sound management considerations," the general needs of the FAA and a more specific need for additional on-site program managers at Executive Leadership to help oversee numerous tasks on which contractors were working (id.). That explanation adhered to the FAA's policy governing reassignment, as set forth in its Human Resource Policy Manual (S. St. ¶21).*fn8 According to that policy the FAA pays any travel and transportation costs "incurred in connection with an involuntary reassignment that results in required relocation" (id.).

Less than one week later (on November 29) Pough's doctor prepared a medical certificate advising that Pough was scheduled to undergo major surgery on December 1, 2005 and that she would require six to eight weeks for recovery (S. St. ¶22). About the same time Pough communicated with the administrator's office in Washington to complain that "Weisz was badgering her a couple of days prior to her surgery and gave the impression that she might be placed on AWOL" (S. St. ¶23). According to a statement Pough later made to an EEO investigator, Weisz's actions fitted into a larger pattern she had witnessed while with FAA (S. St. ¶25; S. Ex. A at 50). She said that such badgering was "the tactic of choice" employed by FAA human resources managers who "relentlessly retaliated against employees while they were recovering from life threatening illnesses" (id.).

On January 9, 2006*fn9 Pough's doctor prepared a medical certificate clearing her to return to work at the end of that month (S. St. ¶26). Then in a January 31 letter Weisz extended Pough's reporting date to the Executive Leadership center in Florida to February 26, owing to her extenuating medical circumstances (S. St. ¶27).

In a February 2 email to Igo, Pough stated that "under force" she was "opting for discontinued retirement" (S. St. ¶28). She went on to describe Weisz's action toward her as "punitive" and to say that she "would not feel comfortable working for a manager of his caliber" (id.). Pough also wrote that "[Weisz] did not discuss a directed reassignment to [Executive Leadership] until after he received notification that [she] would be on an extended leave" (id.). Finally Pough told Igo that "another African American employee was terminated with haste from [Executive Leadership]," that the employee's job was given to a white contract employee and that Pough was "certain there are plans for [her] position and/or salary which is why [Pough] was harassed and pressured during [her] sick leave recovery period" (id.).

Weisz responded to Pough's email in a February 6 letter in which he assured Pough that a job was available for her at Executive Leadership (S. St. ¶29). Weisz also reminded Pough that she had been informed of her relocation before she requested medical leave and that she also had been told -- at the time that Executive Leadership was first transferred to "FAA Academy"*fn10 -- that there were no positions or duties that could be performed from Great Lakes (id.). Hence Pough had continued her job at that location only by working in a temporary "out-stationed/ virtual" position (id.).

Weisz's email had no effect on Pough. On February 10 she gave Weisz a signed statement of intent declining the administrative reassignment outside the commuting area and electing to exercise her eligibility for discontinued service retirement (S. St. ¶30).

On March 1 Pough communicated with an EEO counselor to claim that she had been discriminated against on the basis of race and retaliated against for her prior EEO activity when she received a February 6 email from Weisz stating that she must "report to [Management Development] or retire" (S. St. ΒΆ31). As a potential remedy Pough requested (1) that she be reinstated to her position and receive lost ...

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