COLLEEN KOLLAR-KOTELLY, District Judge.
In the three above-captioned actions,
On August 14, 2003, Plaintiffs, along with other African American employees at the IRS, brought suit against the Secretary alleging that they had been discriminated against on the basis of race in connection with a variety of employment actions (the "2003 Litigation"). See Compl., Mason v. Snow, Civil Action No. 03-1730(CKK) (D.D.C. Aug. 14, 2003). On May 1, 2006, the action was dismissed with prejudice when the parties reached an agreement to settle their dispute (the "2006 Settlement").
In 1981, Mable Gaines began working at IRS Headquarters in Washington, D.C., as a clerk-typist. Def.'s Stmt. ¶ 1; Pls.' Stmt. ¶ 1. Around ten years later, she became an Inventory Management Specialist in the Distribution Division of the IRS's Media and Publications ("M & P") Organization, a position that she held until her prolonged absence from work that began on December 21, 2004, and lasted until June 4, 2007. Def.'s Stmt. ¶ 2; Pls.' Stmt. ¶ 2.
Gaines alleges that on the morning of December 21, 2004, a former co-worker entered her cubicle and—without saying a word—struck her on the right arm with such force that it could be heard across the room and caused a nerve in her shoulder to "pop." Def.'s Stmt. ¶ 3; Pls.' Stmt. ¶ 3;
Following the alleged assault, Gaines claimed that she was totally incapacitated as a result of the injuries she sustained and was unable to work.
In the weeks following her departure in December 2004, Gaines's supervisors maintained contact with her and they honored her request to be reassigned from the Distribution Division within the M & P Organization to the Tax Forms and Publications Division.
On June 9, 2005, Gaines was examined by a board-certified orthopedic surgeon, who concluded that she was able to return to work full-time so long as she was not required to lift more than ten pounds.
On October 27, 2005, the DOL's OWCP contacted Gaines a second time, informing her in a letter that she had thirty days to either accept the Tax Analyst position that had been offered to her or to provide an explanation for her refusal. Def.'s Stmt. ¶ 15; Pls.' Stmt. ¶ 15. The letter again warned Gaines that her refusal to accept suitable work could result in the termination of her workers' compensation benefits. Def.'s Stmt. ¶ 15; Pls.' Stmt. ¶ 15.
After a considerable amount of time had elapsed,
On June 4, 2007, Gaines returned to work, serving as a Tax Analyst in the IRS's New Carrollton office located in Lanham, Maryland. Def.'s Stmt. ¶ 17; Pls.' Stmt. ¶ 17. Upon her return, Gaines's chain-of-command was as follows:
The day of Gaines's return to work, she was taken on an office tour by her second-line supervisor, Gelineau. Def.'s Stmt. ¶ 23; Pls.' Stmt. ¶ 23. During the tour, Gelineau explained to Gaines that the entire office was conducting a week-long "clean building initiative," in connection with which employees were encouraged to cull their files of excess paperwork, organize their workspace, and remove any extraneous boxes or office supplies. Def.'s Stmt. ¶ 23; Pls.' Stmt. ¶ 23. Gelineau instructed Gaines to clean and organize the area surrounding Gaines's workplace, which would include removing boxes, equipment, and files, an instruction that Gaines admits applied to everyone in the office. Gaines Dep. at 227-33, 235; Dep. of Ann Gelineau ("Gelineau Dep.") at 89. Gaines admits that she did not inform Gelineau that she could not lift items of a certain weight, but speculates that Gelineau was otherwise aware of her lifting limitation. Gaines Dep. at 229-30. She also admits that she did not actually clean and organize the area and was never instructed to do so again, by Gelineau or anyone else. Id. at 233.
As a Tax Analyst within the Tax Forms and Publications Division, Gaines was expected to perform "plain language" review of tax forms, notices, and publications. Def.'s Stmt. ¶ 25; Pls.' Stmt. ¶ 25. However, upon her return to work, Gaines did not immediately begin "plain language" review work and was instead assigned to work on a "front-line manager readiness course" with her second-line supervisor, Gelineau. Def.'s Stmt. ¶ 26; Pls.' Stmt. ¶ 26. Subsequently, Gaines's supervisors made arrangements for her to obtain informal training in order to get her acclimated to her new position.
In March 2008, Gaines submitted an application for a "flexiplace" assignment, requesting that she be allowed to work at home full-time following a surgical procedure that she planned to undergo at the end of the month. Def.'s Stmt. ¶ 31; Pls.' Stmt. ¶ 31. However, Gaines's supervisors informed her that they were unable to accommodate her request for a "flexiplace" assignment and accommodations to work from home because she was yet to complete the requisite "plain language" review training. Def.'s Stmt. ¶ 33; Pls.' Stmt. ¶ 33; Gardner Dep. at 28, 35; Gelineau Dep. at 26-27. Gardner told Gaines that he would be able to "better justify" her working from home following the completion of her training.
Like she was during her absence from work from December 2004 through June 2007, Gaines was again approved to participate in the Leave Transfer Program. Def.'s Stmt. ¶ 32; Pls.' Stmt. ¶ 32. However, Gaines's first-line supervisor, Gardner, admitted he "dropped the ball" and failed to send out notice of Gaines's approval for the Leave Transfer Program to other employees for them to make contributions of donated leave on her behalf. Gardner Dep. at 41-42.
The IRS's Employee Tax Compliance ("ETC") Branch is responsible for the identification of IRS employees who fail various computerized compliance checks related to the failure to file or the late filing of tax returns or the non-payment of taxes. Def.'s Stmt. ¶ 35; Pls.' Stmt. ¶ 35. On January 24, 2008, after performing a routine computerized comparison of payroll and tax account records, the ETC Branch determined that Gaines had failed to make sufficient estimated tax payments pertaining to gambling winnings during tax-year 2006.
Upon discovering the issue, the ETC Branch referred the new incident to Gaines's supervisors for purposes of determining a suitable punishment. Def.'s Stmt. ¶ 39; Pls.' Stmt. ¶ 39; Gelineau Dep. at 92; Golatz Dep. at 21-22. On July 8, 2008, Gaines's first-line supervisor, Gardner, and her second-line supervisor, Gelineau, asked to meet with Gaines in person to discuss the matter.
On July 14, 2008, Gaines sent her fourth-line supervisor, Fayne, a letter in which she expressed her desire to retire and to begin the disability application process.
On December 12, 2008, upon learning of this development, Gaines's supervisors rescinded the original suspension proposal and issued a new letter proposing the same fourteen-day suspension, albeit this time incorporating the facts relating to the new incident of tax noncompliance.
On March 3, 2009, Gaines underwent a work-capacity evaluation, after which the examining doctor determined that she was able to return to work on a full-time basis.
Shortly thereafter, Swick called Gaines's third-line supervisor, Becker. Def.'s Stmt. ¶ 54; Pls.' Stmt. ¶ 54. The parties dispute what was said during this conversation, though they agree that it occurred. On the one hand, the Secretary contends that Swick requested that the IRS begin the process of terminating Gaines for non-disciplinary reasons—in other words, that she be terminated without cause. Def.'s Stmt. ¶ 54. On the other hand, Gaines admits that Swick and Becker discussed two available options—a non-disciplinary termination and a disability retirement—but denies that Swick requested that the IRS begin the process for a non-disciplinary termination. Pls.' Stmt. ¶ 54. Both versions of the conversation find some support in the record. Becker testified at her deposition that Swick informed her that Gaines would not be "coming to work" and requested that Becker "start the termination procedures." Dep. of Stacey Becker ("Becker Dep.") at 28. Meanwhile, Swick has submitted a declaration in which he states that while he and Becker "did discuss the option of a non-disciplinary termination, ... [he] did not suggest that Ms. Becker propose Ms. Gaines's termination." Pls.' Ex. 33 (Decl. of Richard L. Swick) ¶¶ 3, 5. Furthermore, there is a point in Becker's deposition testimony where she suggests that Swick stated during the conversation that the IRS "needed to get her retirement going," Becker Dep. at 67, which may or may not be consistent with the remainder of her testimony. Viewing this conflicting evidence in the light most favorable to Gaines as the non-movant, the Court will assume for purposes of resolving the pending motions that Swick did not ask or otherwise propose that the IRS commence the process of terminating Gaines for non-disciplinary reasons.
Setting aside whether Swick requested that the IRS do so, the IRS subsequently initiated the process of removing Gaines
It is an employee's responsibility to initiate the disability retirement application process. Becker Dep. at 68. The Secretary asserts that the IRS cannot process a disability retirement without a Form OPM SF-3112B application for disability retirement from the employee, Def.'s MSJ Mem. at 10 n. 4, and this assertion is left uncontested by Gaines in her opposition papers. When notifying Gaines of her proposed non-disciplinary termination on September 15, 2009, the IRS described the application process for Gaines and provided relevant contact information. Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15, 2009) at 1. It is undisputed that Gaines did not file an application for a disability retirement—Form OPM SF-3112B—until October 4, 2009. Def.'s Stmt. ¶ 57; Pls.' Stmt. ¶ 57. Thereafter, the IRS forwarded her application to the Office of Personnel Management ("OPM")
Mason began working with the IRS in 1987 as a GS-5-level Printing Analyst. Def.'s Stmt. ¶ 63; Pls.' Stmt. ¶ 63. As a result of the 2006 Settlement, he was promoted to a GS-14-level Technical Advisor position in the M & P Organization. Def.'s Stmt. ¶ 64; Pls.' Stmt. ¶ 64. During the relevant time period, Mason's chain-of command was as follows:
Def.'s Stmt. ¶¶ 65-67; Pls.' Stmt. ¶¶ 65-67.
Mason complains of a series of approximately fourteen "incidents" that allegedly occurred between him and his supervisors in the approximately three-year period extending from June 2, 2006, to July 31, 2009.
On or about April 16, 2007, Mason applied for the position of Branch Chief of Functional Publishing, Vacancy Announcement 40-41-AT7TG322 ("'322 Position"). Def.'s Stmt. ¶ 68; Pls.' Stmt. ¶ 68. Five employees, all African American, were named to the best-qualified list for the '322 Position. Def.'s Stmt. ¶ 69; Pls.' Stmt. ¶ 69. In addition to Mason, included on the list were (1) co-plaintiff Benton, (2) Freeman, (3) Vincente Tillman ("Tillman"), and (4) Cynthia McKinney ("McKinney"). Def.'s Stmt. ¶ 69; Pls.' Stmt. ¶ 69. Steve Manno ("Manno") was the ranking official, Farah was the recommending official, and Fayne was the selecting official. Def.'s Stmt. ¶¶ 70, 72; Pls.' Stmt. ¶¶ 70, 72.
As the ranking official, Manno began the process by reviewing the application packages and written submissions that the five candidates submitted and assigning each candidate a score.
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RANKING INTERVIEW
NAME SCORE SCORE
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Freeman (selectee) 100 28
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Tillman 100 22
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Mason 95 22
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Benton 95 21
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McKinney 90 17
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See Def.'s Ex. M (Management Selection Program Ranking Form for R. Freeman); Def.'s Ex. N (Management Selection Program Ranking Form for V. Tillman); Def.'s Ex. O (Management Selection Ranking Form for D. Benton); Def.'s Ex. P (Management Selection Program Ranking Form for C. McKinney); Def.'s Ex. Q (Management Selection Ranking Form for E. Mason).
The scores were then reviewed by Farah, who as the recommending official chose the highest-ranking candidate— Freeman. Def.'s Ex. L (Promotion Certificate) at 1501. Thereafter, the scores and Farah's recommendation were reviewed by Fayne, who as the selecting official selected the highest-ranking candidate—Freeman—on July 8, 2007. Def.'s Stmt. ¶¶ 78-79; Pls.' Stmt. ¶¶ 78-79; Def.'s Ex. L (Promotion Certificate) at 1501.
The application and review materials demonstrated a "clear separation" between Freeman and the other four candidates, including Mason.
On March 28, 2008, employees in the M & P Organization received an e-mail describing the Rotational Work Assignment Program, which was designed to "provide Printing Specialists the opportunity to gain a broader knowledge base of the organization and its programs." Def.'s Stmt. ¶ 84; Pls.' Stmt. ¶ 84. Employees were invited to select up to three program choices for a rotational work assignment and to submit their choices to their supervisor by April 11, 2007, along with a statement explaining why the choices would benefit the IRS. Def.'s Ex. R (E-mail from T. Costa to M & P Listserv dated Mar. 27, 2007) at 1. Mason submitted his requests for a rotational assignment on April 23, 2007, after the submission deadline had elapsed. Def.'s Stmt. ¶ 85; Pls.' Stmt. ¶ 85. Nonetheless, Mason's second-line supervisor, Farah, considered Mason's request. Def.'s Stmt. ¶ 86; Pls.' Stmt. ¶ 86. After consulting with Mason's first-line supervisor, co-plaintiff Benton, and his third-line supervisor, Fayne, Farah decided that Mason should remain in his current position in order to complete an ongoing project, the VERA/VSIP Mailout Program, and denied Mason's request on April 23, 2007.
On August 30, 2007, Mason sent an e-mail to his third-line supervisor, Fayne, requesting that his post of duty be changed from IRS Headquarters in Washington, D.C., to the IRS's New Carrollton office located in Lanham, Maryland. Def.'s Stmt. ¶ 91; Pls.' Stmt. ¶ 91. Fayne responded to Mason's request later that day, reminding Mason of the general policy that requests by employees in the M & P Organization for a transfer to New Carrollton office would not be considered until January 2008 because the M & P Organization had in place a moratorium on all relocations to the New Carrollton office affecting all employees in the organization. Def.'s Stmt. ¶ 92; Pls.' Stmt. ¶ 92; Def.'s Ex. S (E-mail from D. Fayne to E. Mason dated Aug. 30, 2007). At his deposition, Mason admitted that he was already aware of the policy at the time that he made his request. Mason Dep. at 177-78. He has also conceded that he is unable to identify any other employee in the M & P Organization who requested and was granted a transfer to the New Carrollton office during the moratorium. Def.'s Stmt. ¶ 95; Pls.' Stmt. ¶ 95.
On December 17, 2007, Mason requested to be transferred to another branch within the M & P Organization.
On October 15, 2007, Mason met with his first-line supervisor, Dangel, during which he provided Dangel with a memorandum entitled "Requests for Family Medical Leave Act and Flexi-Place," and a seven-page, single-spaced "Informal Meeting Agenda." Def.'s Stmt. ¶ 99; Pls.' Stmt. ¶ 99. In the memorandum, Mason explained that he had two sisters in Memphis, Tennessee, who required his support and requested "to be approved for the Family Medical Leave Act" and "to be allow [sic] to work Flexi-place from the Memphis Service Center Campus." Def.'s Stmt. ¶ 100; Pls.' Stmt. ¶ 100. In the agenda, Mason expressly asked Dangel to seek approval for the requests on his behalf from "appropriate upper management officials." Def.'s Stmt. ¶ 101; Pls.' Stmt. ¶ 101. Pursuant to Mason's request, Dangel subsequently approached his supervisors and inquired whether Mason could work in Memphis. Def.'s Stmt. ¶ 102; Pls.' Stmt. ¶ 102. It is undisputed that Dangel did not discuss the nature of Mason's sisters' illness, Mason's prior protected activity, or Mason's participation in the Employee Assistance Program with his supervisors.
Subsequently, Dangel notified Mason that he had spoken with Farah and Fayne about his requests. Def.'s Stmt. ¶ 104; Pls.' Stmt. ¶ 104. This prompted Mason to send a lengthy e-mail to his first-line supervisor, Dangel, his second-line supervisor, Farah, his third-line supervisor, Fayne, and his fifth-line, Atlanta-based supervisor, Susan Carroll, entitled, "Did not need to know requesting [sic] reassignment its [sic] a trust broken reassigned [sic] to B-tax chief or Pub. chief." Def.'s Stmt. ¶ 105; Pls.' Stmt. ¶ 105.
Following implementation of the 2006 Settlement, Mason was promoted to a GS-14-level, 1601-series Technical Advisor position. Def.'s Stmt. ¶ 106; Pls.' Stmt. ¶ 106. Prior to the promotion, Mason was a GS-13, non-managerial, non-bargaining-unit employee and received performance appraisals on Form 6850-NBU. Def.'s Stmt. ¶ 107; Pls.' Stmt. ¶ 107. Following his promotion to Technical Advisor, however, Mason was evaluated under Form 12450-B, which is typically used for management officials.
The matter was complicated somewhat when Mason stated that he did not want to assume managerial responsibilities upon his promotion.
Consistent with this account, Mason's first-line supervisor, Mendez, initially signed Mason's review on the Form 6850-NBU on February 27, 2007, issuing Mason a rating of "Outstanding"—the highest rating available—for the period from February 1, 2006, to January 31, 2007.
At the end of fiscal-year 2007, Mendez furnished Mason with a summary narrative
Mason also received a "Met" rating for fiscal-year 2008. Def.'s Stmt. ¶ 129; Pls.' Stmt. ¶ 129; Def.'s Ex. CC (Management Official Performance Agreement for E. Mason). Mason's first-line supervisor, Dangel, compared Mason's achievements to his pre-set CPEs and determined that Mason had satisfactorily met his goals.
Mason routinely sent e-mails to his supervisors and senior IRS officials raising what he claims were "workplace concerns." Def.'s Stmt. ¶ 136; Pls.' Stmt. ¶ 136. For example, on June 6, 2008, Mason sent a four-page, single-spaced e-mail about his 2007 performance appraisal to his first-, second-, third-, and acting-third-line supervisors, as well as to the following senior IRS officials: Douglas H. Shulman, IRS Commissioner; Richard E. Byrd, Commissioner of the Wage & Investment Division; Pamela G. Watson, Deputy Commissioner of the Wage & Investment Division; and Linda E. Stiff, Deputy Commissioner of the Small-Business/Self-Employment Division. Def.'s Stmt. ¶ 137; Pls.' Stmt. ¶ 137; Def.'s Ex. EE (E-mail from E. Mason to P. Dangel dated June 6, 2008) at 1334-37. In the e-mail, Mason insisted that the "
Eventually, Mason was directed to stop sending e-mails detailing his various grievances directly to senior IRS officials. Def.'s Stmt. ¶ 140; Pls.' Stmt. ¶ 140. However, Mason nonetheless continued to send the e-mails because he felt the responses he received from his managers, the EEO apparatus, the Treasury Inspector General for Tax Administration ("TITGA"), and the Office of Civil Rights and Diversity were "unjust." Def.'s Stmt. ¶ 140; Pls.' Stmt. ¶ 140. Alleging that EEO investigators "tamper" with complaints and conspire with IRS supervisors to "cover up" wrongdoing, Mason claims that the EEO process is thoroughly "corrupt" and "should be abolished."
After tolerating Mason's communications for months and encouraging him to use the IRS's EEO apparatus and the agency grievance process to resolve his concerns, it became clear that Mason would not stop sending such communications. Def.'s Stmt. ¶ 143; Pls.' Stmt. ¶ 143. Mason's supervisors then contacted the Labor Relations Branch to determine how best to handle the matter. Def.'s Stmt. ¶ 143; Pls.' Stmt. ¶ 143. At that point, a Labor Relations Specialist recommended to Mason's supervisors that they issue him a management directive
Mason Dep. Ex. 19 (Mem. Directive for Resolving Issues of Personal Concern dated Feb. 28, 2008) at 1. The memorandum then proceeds to outline the procedure for invoking the agency grievance system and EEO apparatus. Id. at 2. The memorandum concludes by warning Mason that his failure to abide by these instructions "may result in disciplinary action." Id.
Nonetheless, Mason continued to e-mail senior IRS officials with complaints, requests for information, and demands to address his workplace grievances.
On July 31, 2009, Mason's first-line supervisor, Dangel, met with Mason to apprise him of his unsatisfactory performance. Def.'s Stmt. ¶ 153; Pls.' Stmt. ¶ 153. For months, Dangel had orally notified Mason that he was not performing his duties in a timely or satisfactory manner. Def.'s Stmt. ¶ 153; Pls.' Stmt. ¶ 153. Dangel therefore requested that Mason meet with him to discuss how they could improve Mason's performance. Def.'s Stmt. ¶ 154; Pls.' Stmt. ¶ 154. During the meeting, Dangel furnished Mason with a memorandum detailing Mason's unsatisfactory performance, including Mason's unacceptable work product (and total lack of work product) with respect to several specific projects. Def.'s Stmt. ¶ 155; Pls.' Stmt. ¶ 155; Def.'s Ex. FF (Notice of Unsatisfactory Performance of Duty and Failure to Respond Readily to the Directions of Your Supervisor dated July 31, 2009) at 1-3. The memorandum identifies several instances of what was described as Mason's "uncooperative, unresponsive and unproductive" behavior. Def.'s Ex. FF (Notice of Unsatisfactory Performance of Duty and Failure to Respond Readily to the Directions of Your Supervisor dated July 31, 2009) at 2. The memorandum concludes as follows:
Id. at 3. Mason's work on the enumerated tasks was incomplete, late, or altogether absent, and his work product was often sloppy and contained grammatical, spelling, and organizational errors.
In the middle of the meeting, shortly after Dangel gave Mason the memorandum, Mason handed Dangel a pre-prepared letter of resignation. Def.'s Stmt. ¶ 158; Pls.' Stmt. ¶ 158. In his letter of resignation, Mason wrote:
Mason Dep. Ex. 1 (Ltr. from E. Mason to P. Dangel dated July 31, 2009) at 1 (emphasis and underlining in original). Despite the contents of Mason's letter, it is undisputed that Dangel never threatened Mason with an "AWOL charge" and no one ever placed Mason on "AWOL status." Def.'s Stmt. ¶ 160; Pls.' Stmt. ¶ 160. Furthermore, neither Dangel nor any of Mason's other supervisors had ever denied any of Mason's requests for leave without pay.
Mason complains that Dangel did not also immediately approve Mason's request for leave without pay for the week of August 17, 2009. Pls.' Stmt. ¶ 162. However, it is undisputed that Mason had been scheduled to attend a training session during that week, which prompted Dangel to ask Mason to provide him with a compelling reason why he could not attend the training. Def.'s Stmt. ¶ 163; Pls.' Stmt. ¶ 163; Dangel Dep. at 153. In an e-mail dated July 29, 2009, Dangel stated:
Mason Dep. Ex. 1 (E-mail from P. Dangel to E. Mason dated July 29, 2009) at 1. Mason had personally requested the training program and had known that it was scheduled for the week at issue since at least May 2009. Def.'s Stmt. ¶ 164; Pls.' Stmt. ¶ 164. However, Mason refused to provide the requested explanation and instead tendered his resignation. Def.'s Stmt. ¶ 166; Pls.' Stmt. ¶ 166.
Benton began working at the IRS in 1987 as a GS-5-level Printing Analyst. Def.'s Stmt. ¶ 167; Pls.' Stmt. ¶ 167. During the relevant time period, Benton was a 1601-series, GS-14-level Technical Advisor in the M & P Organization and his chain-of-command was as follows:
Def.'s Stmt. ¶¶ 168-71; Pls.' Stmt. ¶¶ 168-71.
Benton complains of a series of approximately fourteen "incidents" that allegedly occurred between him and his supervisors in the approximately one-and-a-half-year period extending from June 28, 2007, to January 9, 2009.
On or about October 30, 2006, Benton applied for the position of Printing Officer Branch Chief, Vacancy Announcement No. 40-41-AT7TG044 ("'044 Position"). Def.'s Stmt. ¶ 172; Pls.' Stmt. ¶ 172. Four employees were named to the best-qualified list for the '044 Position. Def.'s Stmt. ¶ 173; Pls.' Stmt. ¶ 173. In addition to Benton, included on the list were (1) Dangel, (2) Freeman, and (3) Tillman. Def.'s Stmt. ¶ 173; Pls.' Stmt. ¶ 173. Mendez was the ranking official; Farah was the recommending official; and Fayne was the selecting official.
As the ranking official, Mendez began the process by evaluating the application packages and written submissions that the five candidates submitted and assigning each candidate a score.
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RANKING INTERVIEW
NAME SCORE SCORE
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Dangel (selectee) 95 37.5
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Freeman 95 31
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Benton 90 32.5
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Tillman 90 31
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See Def.'s Ex. HH (Final Ranking Form); Def.'s Ex. MM (Interview Materials).
The Scores were then reviewed by Farah, who as the recommending official chose the highest-ranking candidate—Dangel. Def.'s Ex. LL (Promotion Certificate). Thereafter, the scores and Farah's recommendation were reviewed by Fayne, who as the selecting official selected the highest-ranking candidate—Dangel. Def.'s Ex. LL (Promotion Certificate); Farah Dep. at 70-71; Fayne Dep. at 88-89; Benton Dep. at 56, 259-60.
On March 29, 2007, Benton met with his third-line supervisor, Fayne, to discuss his non-selection for the '044 Position.
Benton Dep. at 159. At best, the cited testimony is sufficient to create a genuine
Benton further contends that he received an e-mail from Fayne the following day, March 30, 2007, in which she wrote:
Pls.' Interrog. Resps. No. 3. Benton claims that he found the e-mail "very unusual and disturbing." Id.
Like Mason, Benton applied for the '322 Position on or about April 16, 2007. See supra Part I.B.2. However, Benton was ranked even lower than Mason, placing him fourth out of the five candidates. Def.'s Stmt. ¶¶ 187-88; Pls.' Stmt. ¶¶ 187-88. The application and review materials demonstrated a "clear separation" between the ultimate selectee, Freeman, and the other four candidates, including Benton.
On or about August 30, 2007, Benton, like Mason, requested a transfer from IRS Headquarters in Washington, D.C., to the IRS's New Carrollton office in Lanham, Maryland. Def.'s Stmt. ¶ 190; Pls.' Stmt. ¶ 190. Like Mason, he was informed by his supervisors in late August and early September 2007 that there was a general policy that requests by employees in the M & P Organization for a transfer to the New Carrollton office would not be considered until January 2008, because the M & P Organization had in place a moratorium on all relocations to the New Carrollton office affecting all employees in the organization.
On or about September 5, 2007,
On September 12, 2007, Benton "elevat[ed]" his request to his second-line supervisor, Farah. Def.'s Ex. PP (E-mail from D. Benton to M. Farah dated Sept. 12, 2007). Later that same day, Farah indicated that he had discussed Benton's request with Benton's third-line supervisor, Fayne, and informed Benton that the only GS-14-level reassignment available at that time was in Fayne's office, working in Balance Measures.
On September 25, 2007, Benton approached his first-line supervisor, Freeman, and submitted an application for Family and Medical Leave Act ("FMLA") leave for the period extending from October 10, 2007, to approximately October 10, 2008. Def.'s Stmt. ¶ 197; Pls.' Stmt. ¶ 197; Benton Dep. Ex 1 (Appl. for Leave under the Family and Medical Leave Act) at 1. Freeman then contacted his supervisors,
Benton claims that he learned on November 26, 2007, that his second-line supervisor, Farah, had directed his first-line supervisor, Mendez, to lower his fiscal-year 2007 performance appraisal to a "Met." Pls.' MSJ Opp'n at 36 (citing Pls.' Interrog. Resps. No. 7). However, it is undisputed that Benton was issued the highest possible rating, "Outstanding," on December 5, 2007, and in fact received a performance award. Def.'s Stmt. ¶ 204; Pls.' Stmt. ¶ 204. He also claims that "he was not furnished a copy of his [appraisal] until nearly a year later in October 2008." Pls.' Interrog. Resps. No. 7.
Like Mason, Benton routinely sent e-mails to his supervisors and senior IRS officials raising workplace concerns and grievances. Def.'s Stmt. ¶ 207; Pls.' Stmt. ¶ 207. For example, on July 9, 2007, Benton sent a three-page, single-spaced e-mail entitled, "You Refuse to Meet, but You Plan to Discredit Me Personally & Professionally—Donovan L. Benton," to his third-line supervisor, Fayne, as well as Carl Froehlich, Director of IRS Agency-Wide Shared Services; Susan W. Carroll, Director of CARE; Richard J. Morgante, Commissioner of the Wage & Investment Division; and Kevin M. Brown, Deputy Commissioner of IRS Services & Enforcement. Def.'s Stmt. ¶ 208; Pls.' Stmt. ¶ 208. In the e-mail, Benton chided his third-line supervisor, Fayne, for her purportedly "aggressive tone"
Benton often included deadlines e-mails, demanding a response "by a date certain." Def.'s Stmt. ¶ 212; Pls.' Stmt. ¶ 212. Benton claims that if his supervisors failed to meet his deadlines, he had a right to "elevate" his concerns to the "next appropriate high-level management official(s)" in his "chain of command." Def.'s Stmt. ¶ 213; Pls.' Stmt. ¶ 213. He maintains that the deadlines were a "professional courtesy" and justifiable given the timing of the responses to his communications. Def.'s Stmt. ¶ 212; Pls.' Stmt. ¶¶ 212, 214. Even after senior IRS officials responded by directing Benton to pursue his complaints through the EEO apparatus, TITGA, or with his supervisors who were familiar with his situation, Benton nonetheless continued to send e-mails to senior IRS officials.
As conceded by Benton, "[a]fter tolerating Benton's abusive communications for months, and after encouraging him to pursue his grievances through the EEO or Agency Grievance offices, his supervisors contacted [the] Labor Relations [Branch] to determine how to proceed." Def.'s Stmt. ¶ 216; Pls.' Stmt. ¶ 216. At that point, a Labor Relations Specialist recommended to Benton's supervisors that they issue him a management directive explaining that his behavior was unacceptable and describing the proper channels to use in raising workplace grievances. Def.'s Stmt. ¶ 217; Pls.' Stmt. ¶ 217. The Labor Relations Specialist and Benton's supervisors subsequently drafted the management directive and provided it to Benton on December 10, 2007. Def.'s Stmt. ¶ 218; Pls.' Stmt. ¶ 218. The directive, entitled "Directive for Resolving Issues of Personal Concern," was signed by Benton's second-line supervisor, Farah, and provided as follows:
You are therefore directed as follows:
Benton Dep. Ex. 2 (Mem. Directive for Resolving Issues of Personal Concern dated Dec. 10, 2007) at 2185-86. The memorandum then proceeds to outline the procedure for invoking the agency grievance system and EEO apparatus. Id. at 2186. The memorandum concludes by warning Benton that his failure to abide by these instructions "may result in disciplinary action." Id.
Nonetheless, Benton continued to e-mail senior IRS officials with complaints, requests for information, and demands to address his workplace grievances.
During a routine computerized comparison of payroll and tax account records, the ETC Branch discovered that Benton had failed to timely pay his federal taxes for tax-year 2006. Def.'s Stmt. ¶ 225; Pls.' Stmt. ¶ 225. This violation followed two other tax compliance violations—one in tax-year 2001 and a second in tax-year 2004—for which Benton had previously been counseled. Def.'s Stmt. ¶ 226; Pls.' Stmt. ¶ 226. Benton did not fully satisfy his tax liability for tax-year 2006 until August 27, 2007.
Following his two suspensions, Benton continued to send e-mails to senior IRS officials raising his many workplace concerns and grievances.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and [that it] ... is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a "material" fact, and therefore "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; rather, the dispute must be "genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or is not genuinely disputed, a party must (a) cite to specific parts of the record—including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence—in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. FED.R.CIV.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass'n of Flight Attendants-CWA, 564 F.3d at 465-66. Moreover, where "a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the district court may "consider the fact undisputed." FED. R.CIV.P. 56(e).
When presented with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence, but instead must analyze the evidence in the light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. If material facts are genuinely in dispute, or undisputed material facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). In the end, the district court's task is to determine "whether the evidence presents a sufficient disagreement to require submission to [the trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. In this regard, the non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); "[i]f the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted," Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Stated differently, the mere existence of a "scintilla of evidence" in support of the non-movant's position will not suffice; there must be enough evidence on which the trier of fact could reasonably find for the non-movant. Talavera v. Shah, 638 F.3d 303, 308 (D.C.Cir.2011) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505).
In recognition of the difficulty in uncovering clear evidence of discriminatory or retaliatory intent, the district court should approach summary judgment in an
The United States District Court for the District of Columbia has supplemented Rule 56 of the Federal Rules of Civil Procedure with Local Civil Rule 7(h)(1), which requires that each party submitting a motion for summary judgment attach a statement of material facts for which that party contends there is no genuine dispute. In turn, the party opposing the motion must submit a responsive statement enumerating all material facts that the party contends are genuinely disputed. See LCVR 7(h)(1). Both the movant's initial statement and the non-movant's responsive statement must be based on "references to the parts of the record relied on to support the statement." Id.; see also FED.R.CIV.P. 56(c)(1) & (3) (requiring parties to "cit[e] to particular parts of materials in the record" and providing that "[t]he court need consider only the cited materials."). This well-reasoned rule "places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C.Cir. 1996). The parties in these actions have been cautioned on several occasions that this Court strictly adheres to the dictates of Local Civil Rule 7(h)(1) when resolving motions for summary judgment. See 6/11/09 Scheduling & Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil Action No. 09-462) at 3; Tr. of 5/13/10 Status Hr'g (Civil Action No. 09-462) at 21-22.
Gaines is pursuing four claims under Title VII, each of which is based on the contention that she was retaliated against, in one way or another, for her participation in the 2003 litigation. Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 25-26; Compl. (Civil Action No. 10-683) ¶¶ 12-13; Pls.' MSJ Opp'n at 45. First, Gaines claims that she was subjected to a hostile work environment. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 25; Pls.' MSJ Opp'n at 45-51, 56-59. Second, Gaines claims that her requests for a "flexiplace" assignment and related accommodations were improperly denied. See Pls.' MSJ Opp'n at 52, 66-67. Third, Gaines claims that she was improperly suspended without pay for ten days. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 25; Pls.' MSJ Opp'n at 52-54. Fourth, Gaines claims that she was improperly subjected to a non-disciplinary termination. See Compl. (Civil Action No. 10-683) ¶¶ 12-13;
Gaines claims that she was subjected to a hostile work environment in retaliation for her participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 25; Pls.' MSJ Opp'n at 45-51, 56-59. "In this [C]ircuit, a hostile work environment can amount to retaliation under Title VII." Hussain v. Nicholson, 435 F.3d 359, 366 (D.C.Cir.) (citing Singletary v. District of Columbia, 351 F.3d 519, 526 (D.C.Cir.2003)), cert. denied, 549 U.S. 993, 127 S.Ct. 494, 166 L.Ed.2d 365 (2006). A workplace becomes "hostile" for purposes of Title VII only if the allegedly offensive conduct "permeate[s] [the workplace] with `discriminatory [or retaliatory] intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 & 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). The inquiry has an objective component and a subjective component: the environment must be one that a reasonable person in the plaintiff's position would find hostile or abusive, and the plaintiff must actually perceive the environment to be hostile or abusive. Id. In determining whether a hostile work environment exists, the district court must take into account "the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee's work performance." Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C.Cir.2008) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).
Gaines's opposition in support of her hostile work environment claim leaves much to be desired. Whereas the Secretary's opening memorandum provides an exhaustive account of the factual and legal bases that he claims support dismissal of Gaines's hostile work environment claim, addressing in turn each of the various component-acts that Gaines has identified as comprising part of the alleged hostile work environment, see Def.'s MSJ Mem. at 3-11, 40-49, Gaines offers no meaningful factual or legal analysis in support of her claim-none. She begins by reciting the skeletal allegations concerning her claim seriatim, see Pls.' MSJ Opp'n at 46-51, proceeds to restate the legal standard governing hostile work environment claims generally, see id. at 56-59, and then concludes by asserting that simply because she has "testified that [she was] subjected to severe hostility on an almost daily basis," then "there is an issue of fact regarding whether [she] suffered from a hostile work environment," id. at 57. In so doing, Gaines ignores virtually every factual and legal argument raised by the Secretary. With few exceptions, the only factual support for her allegations is her narrative response to an interrogatory posed by the Secretary in discovery asking her to identify each act relevant to the alleged hostile work environment. See Pls.' Interrog. Resps. No. 11. Inexplicably, the argument section of her opposition does not even specifically mention her, but instead focuses on Plaintiffs as a whole despite the stark difference in their claims. In the final analysis, Gaines's opposition reduces to little more than legal boilerplate, and amounts to an impermissible attempt to shift the burden to the Secretary and this Court to sift through the record to ascertain the viability of her claim.
In setting forth the factual background that she considers relevant to her hostile work environment claim, Gaines identifies the following component-acts:
Unfortunately, Gaines has compiled a list of discrete employment actions that she attempts to bring under the umbrella of a hostile work environment claim. Regardless of the possible strategic advantages that might flow from such an approach, it is well-established that "this jurisdiction frowns on plaintiffs who attempt to bootstrap their alleged discrete acts of retaliation into a broader hostile work environment claim." Baloch v. Norton, 517 F.Supp.2d 345, 364 (D.D.C. 2007), aff'd sub nom. Baloch v. Kempthorne, 550 F.3d 1191 (D.C.Cir.2008); accord Nurriddin v. Goldin, 382 F.Supp.2d 79, 108 (D.D.C.2005), aff'd, 222 Fed.Appx. 5 (D.C.Cir.2007), cert. denied, 552 U.S. 1243, 128 S.Ct. 1473, 170 L.Ed.2d 296 (2008); Lester v. Natsios, 290 F.Supp.2d 11, 33 (D.D.C.2003). The reason is simple:
Consistent with the distinction between the two theories, courts are often hesitant to allow plaintiffs to bring suit under a hostile work environment theory based upon nothing more than an amalgamation of loosely related discrete acts. There is no bright line rule for determining when a variety of component-acts may be considered collectively; instead, "courts must exercise their judgment carefully and on a case-by-case basis."
In this case, the Secretary argues in his opening memorandum that Gaines is improperly attempting to "bootstrap" discrete acts of retaliation in the guise of a hostile work environment claim. See Def.'s MSJ Mem. at 41. In opposition, Gaines offers no response to this argument, electing instead to recite legal boilerplate concerning hostile work environment claims generally and then faulting the Secretary for "ignor[ing] the totality of the circumstances." Pls.' MSJ Opp'n at 58. In so doing, Gaines provides no meaningful analysis of her hostile work environment claim and fails to explain how the various component-acts identified congeal into a coherent hostile work environment. See Pls.' MSJ Opp'n at 56-59. In this Circuit, "it is well understood ... that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (citation omitted), aff'd, 98 Fed.Appx. 8 (D.C.Cir.2004); accord Lewis v. District of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C.Cir. Feb. 2, 2011). Because Gaines has failed to provide any rejoinder to the Secretary's argument that her hostile work environment claim is not predicated on "one unlawful employment practice," Def.'s MSJ Mem. at 41 (internal quotation marks omitted), the Court shall, in an exercise of its discretion, treat the argument as conceded.
Even if the Court were inclined to reach the merits of the argument, the result would be the same. Depending on how they are framed, Gaines has identified somewhere in the neighborhood of ten to
There is another ground for granting summary judgment in the Secretary's favor on Gaines's hostile work environment claim: to the extent there is a common thread among the component-acts identified by Gaines, it is that there is no evidence to suggest that any one was taken in retaliation for her participation in the 2003 Litigation. Critically, Title VII only prohibits discrimination against an employee taken "because" the employee has engaged in protected activity. 42 U.S.C. § 2000e-3(a). Consistent with this statutory mandate, "the plaintiff must establish a causal connection between the harassment and her protected activity to succeed on the claim." Lewis v. District of Columbia, 653 F.Supp.2d 64, 81 (D.D.C.2009) (citing Nichols v. Truscott, 424 F.Supp.2d 124, 141 (D.D.C.2006)). There is an evidentiary component to this principle: evidence that bears no connection to the plaintiff's protected status cannot support a hostile work environment claim. Harris v. Wackenhut Servs., Inc., 419 Fed.Appx. 1, 2 (D.C.Cir. 2011) (per curiam) (citing, inter alia, Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 440 (2d Cir.1999)). Therefore, courts should exclude from consideration employment actions that "lack a linkage" to discrimination or retaliation.
Here, all of the component-acts that Gaines relies upon in support of her hostile work environment claim are facially neutral. Of course, this alone is not necessarily fatal to her claim: facially neutral incidents may, in appropriate circumstances, be considered as part of the "totality of the circumstances" supporting a plaintiff's hostile work environment claim. However, this is appropriate only if a trier of fact could reasonably conclude that they were, in fact, based on the plaintiff's participation in protected activity. Alfano, 294 F.3d at 378. In other words, the plaintiff must first demonstrate that there is a factual basis for inferring that the incidents were motivated by a retaliatory animus. In this case, Gaines's has completely failed to meet that burden: not one of the component-acts is accompanied by any indicia of retaliatory animus of any kind, let alone a retaliatory animus specifically directed towards her participation in the 2003 litigation. Furthermore, where the Secretary has proffered a non-retaliatory reason for a specific act, Gaines has "failed to offer any contradictory evidence to rebut the [Secretary's] neutral reason." Graham v. Holder, 657 F.Supp.2d 210, 217 (D.D.C.2009). Viewing the record as a whole, no trier of fact could reasonably conclude that the acts complained of by Gaines were motivated by a retaliatory animus.
First, Gaines alleges that she was involved in a physical altercation with a co-worker on December 21, 2004. However, Gaines concedes that the only reason the co-worker struck her was because she refused to attend a breakfast outing earlier that morning. See Def.'s Stmt. ¶ 6; Pls.' Stmt. ¶¶ 5-6; Pls.' MSJ Opp'n at 47; Gaines Dep. at 106. There is no evidence to suggest that the altercation had any nexus to Gaines's participation in the 2003 litigation and therefore it cannot support her hostile work environment claim.
Second, Gaines alleges that her supervisors failed to solicit leave donations on her behalf in early 2005 while she was on leave. Unfortunately, Gaines states the allegation in such a conclusory manner that it unclear exactly what she contends transpired or when:
Pls.' MSJ Opp'n at 48 (citing Pls.' Interrog. Resps. No. 11). This sort of cursory allegation may suffice in a complaint, but it is patently insufficient to create a genuine dispute necessitating trial. As an initial matter, Gaines offers no response to the Secretary's argument that her "supervisors had no responsibility to solicit leave donations on her behalf." Def.'s MSJ Mem. at 42. In an exercise of its discretion, the Court shall treat the argument as conceded. More importantly, however, Gaines offers no facts from which a trier of fact could infer that the action was taken in retaliation for her participation in the 2003 Litigation. See Hussain, 435 F.3d at 365 (concluding that the district court properly disregarded "conclusory allegations" of discriminatory animus in the plaintiff's own affidavit); Robinson v. Duncan, 775 F.Supp.2d 143, 153 (D.D.C. 2011) (faulting the plaintiff for "present[ing] nothing aside from conclusory allegations from which a reasonable jury could conclude that [the decisionmaker] acted with discriminatory or retaliatory animus."). On this record, no reasonable trier of fact could conclude that John Wood's alleged failure to solicit leave donations on Gaines's behalf in early 2005 had any nexus to Gaines's participation in the 2003 litigation. Therefore, it cannot support her hostile work environment claim.
Third, Gaines alleges that a letter was sent to her on August 25, 2005, directing her to return to work on September 6, 2005. The undisputed sequence of events that led to the issuance of the letter precludes a trier of fact from drawing an inference of retaliation. It is undisputed that Gaines was examined by a board-certified orthopedic surgeon on June 9, 2005, and it is undisputed that the surgeon concluded that Gaines was able to return to work full-time so long as she was not required to lift more than ten pounds. Def.'s Stmt. ¶ 10; Pls.' Stmt. ¶ 10. Based on that examination, the DOL's OWCP—not the IRS—determined that Gaines was fit to return to work based on the stated lifting limitation and notified the IRS of that determination on August 19, 2005. Def.'s Stmt. ¶ 11; Pls.' Stmt. ¶ 11. That in turn prompted the IRS to send Gaines a letter less than a week later offering her a position as a Tax Analyst, acknowledging her lifting limitation, and instructing her to report to work on September 6, 2005. Def.'s Stmt. ¶ 12; Pls.' Stmt. ¶ 12; Gaines Dep. Ex. 7 (Ltr. to M. Gaines dated Aug. 25, 2005) at 1. At her deposition, Gaines admitted that her supervisors at the IRS did not initiate the request that she return
Fourth, Gaines alleges that while she was out on leave, her fourth-line supervisor, Fayne, "occasionally spoke with [her] on the phone concerning her return to the workplace, [indicated] that she would start with a clean slate, and [stated] that when she [did] return to the workplace, she [would] have to hit the ground rolling." Pls.' MSJ Opp'n at 49 (citing Pls.' Interrog. Resps. No. 11). Without further factual elaboration, Gaines claims that the statements attributed to Fayne reflected a "condescending and demeaning attitude" and were "insensitive and totally unprofessional." Id. (citing Pls.' Interrog. Resps. No. 11). However, it is far from clear how the statements attributed to Fayne, which taken at face value appear to be words of encouragement and reassurance from a supervisor to an employee, could be construed as condescending, demeaning, insensitive, or unprofessional. Regardless, and more to the point, Gaines adduces no evidence that would allow a trier of fact to reasonably conclude that these statements were motivated by a retaliatory animus. By Gaines's own account, Fayne was merely "over-talking" her, "telling [her] what was going to be going on when [she] returned to work" and preventing Gaines from "get[ting] a word in edgewise." Gaines Dep. at 122. There is no evidence to suggest that the statements had any nexus to Gaines's participation in the 2003 Litigation and therefore they cannot support her hostile work environment claim.
Fifth, Gaines alleges that her third-line supervisor, Becker, failed to provide her with "complete reporting instructions" upon her return to work on June 4, 2007. At her deposition, Gaines admitted that she did not view the act as hostile, merely "inappropriate." Gaines Dep. at 226. Gaines adduces no evidence that would allow a reasonable trier of fact to conclude that Becker's alleged failure to provide her with "complete reporting instructions" had any connection to her prior
Sixth, Gaines alleges that during an office tour upon her return to work on June 4, 2007, her second-line supervisor, Gelineau, instructed her to participate in a "clean building initiative." According to Gaines, Gelineau instructed her to clean and organize the area surrounding her workplace, an instruction that Gaines admits applied to everyone in the office. Gaines Dep. at 227-33, 235; Gelineau Dep. at 89. It is undisputed that Gelineau explained that the entire office was conducting a week-long "clean building initiative," in connection with which all employees were encouraged to cull their files of excess paperwork, organize their workspace, and remove any extraneous boxes or office supplies. Def.'s Stmt. ¶ 23; Pls.' Stmt. ¶ 23. There is no indication that Gaines was singled out for special treatment. Furthermore, Gaines offers no response to the Secretary's argument that Gelineau "had no knowledge of Gaines's EEO activity at the time." Def.'s MSJ Mem. at 46 (citing Gelineau Dep. at 83). In an exercise of its discretion, the Court shall treat the argument as conceded.
Seventh, Gaines alleges that upon her return to work on June 4, 2007, she was temporarily assigned to a workshop before she began work on her permanent responsibilities.
Eighth, Gaines claims that sometime shortly after her return to work on June 4, 2007, her first-line supervisor, Gardner, "failed to assign [her] a coach to train her in completing work assignments." Pls.' MSJ Opp'n at 51. For various reasons, no reasonable trier of fact could infer that the alleged failure to assign Gaines a coach was retaliatory. As an initial matter, Gaines fails to respond to the Secretary's argument that Gardner "had no knowledge of her participation in the 2003 lawsuit or her EEO activity." Def.'s MSJ Mem. at 47 n. 15 (citing Gardner Dep. at 60, 69-70). In an exercise of its discretion, the Court shall treat the argument as conceded. In any event, the argument is supported by the record. Furthermore, the uncontested evidence in the record establishes that Gardner made arrangements to provide Gaines with training to get her acclimated to her position. See Def.'s Stmt. ¶ 30; Pls.' Stmt. ¶ 30; Gaines Dep. at 235, 239; Gardner Dep. at 17, 35. While Gaines alleges that she further requested that she be assigned a senior analyst as an "on-the-job" coach, she admits that Gardner in fact asked a senior analyst to serve as her coach and that the senior analyst "refused to do so." Pls.' MSJ Opp'n at 51. Gaines adduces no evidence that would permit a reasonable trier of fact to conclude that Gardner's efforts, or the senior analyst's refusal, had any connection to her prior protected activity. True, Gaines alleges that "other new analysts" were provided a senior analyst as an on-the-job coach. Pls.' Stmt. ¶ 27 (citing Gaines Dep. at 235-40). The actual testimony relied upon for this allegation only suggests that a single employee, Nuss, was coached by a senior analyst for an unspecified duration at some point after Gaines started in her new position. Gaines Dep. at 237. Gaines makes no attempt to show that she was similarly situated to Nuss in all material respects or to provide any meaningful explanation as to how the coaching that Nuss allegedly received differed from the training opportunities she received.
Ninth, Gaines vaguely alleges that she was "intentionally isolated from [her] group by non-association." Pls.' MSJ Opp'n at 51. Unfortunately, the allegation is stated in such conclusory and unilluminating terms that it is difficult to glean from Gaines's submissions exactly what is the basis of her complaint. Equally troubling, the sum total of evidence identified by Gaines in support of this allegation is the following statement from her responses to the Secretary's interrogatories:
Pls.' Interrog. Resps. No. 11. Gaines does not even attempt to explain how this could possibly serve as evidence of retaliation. By her own account, she was required to complete certain training "since she was new to the section," and when she approached her supervisor to request an assignment he said "he would see what he could do to assist her in her request." Pls.' MSJ Opp'n at 51. No reasonable trier of fact could draw an inference of retaliation from this sequence of events, especially where, as here, the uncontested evidence in the record shows that the relevant supervisor, Gardner, had no knowledge of Gaines's prior protected activity at the time. There is no evidence to suggest that Gaines was "intentionally isolated" and, even if she was, that it had any nexus to Gaines's participation in the 2003 Litigation. Therefore, it cannot support her hostile work environment claim.
Tenth, Gaines contends that her requests for a "flexiplace" assignment and related accommodations were improperly denied in March 2008. For the reasons set forth elsewhere, see infra Part III.A.2, no reasonable trier of fact could conclude that Gaines's requests were denied in retaliation for her prior protected activity. Therefore, they cannot serve as evidence in support of her hostile work environment claim.
Eleventh, Gaines alleges that her first-line supervisor, Gardner, failed to solicit leave donations on her behalf in May 2008. The totality of the evidence cited for this allegation is as follows: "In May 2008 Gardner failed to solicit requests for donated leave . . . on behalf of plaintiff Gaines, after he agreed to do so." Pls.' Interrog. Resps. No. 11. Gaines provides no meaningful factual support for her allegation. Meanwhile, the record shows that Gaines was approved to participate in the Leave Transfer Program. Def.'s Stmt. ¶ 32; Pls.' Stmt. ¶ 32. However, Gardner admitted he "dropped the ball" and forgot to send out notice of Gaines's approval for the Leave Transfer Program to other employees for them to make contributions of donated leave on her behalf. Gardner Dep. at 41-42. The Secretary concedes as much, and argues that Gardner had no knowledge of Gaines's protected activity at the time, that there is no evidence that Gardner's lapse was related to Gaines's protected activity, and that, regardless, Gardner had no responsibility to solicit
Twelfth, Gaines alleges that her first-line supervisor, Gardner, and her second-line supervisor, Gelineau, denied her the right to have a union representative present during a meeting concerning potential disciplinary action.
Thirteenth, Gaines claims that her ten-day suspension for tax non-compliance was imposed in retaliation for her prior protected activity. For the reasons set forth elsewhere, see infra Part III.A.3, no reasonable trier of fact could conclude that the suspension was imposed for her prior protected activity. Therefore, it cannot serve as evidence in support of her hostile work environment claim.
Fourteenth, and finally, Gaines contends that her non-disciplinary termination on October 23, 2009, was taken in retaliation for her prior protected activity. For the reasons set forth elsewhere, see infra Part III.A.4, no reasonable trier of fact could conclude that Gaines was terminated for her prior protected activity. Therefore, it
In the final analysis, of the myriad component-acts identified by Gaines as supporting her hostile work environment claim, Gaines has failed to point to any evidence to suggest that any one was taken in retaliation for her participation in the 2003 Litigation. Viewing the record as a whole, no trier of fact could reasonably conclude that the acts complained of by Gaines were motivated by a retaliatory animus. Having failed to designate specific facts showing that there is a genuine dispute requiring trial, see Ricci, 129 S.Ct. at 2677, Gaines's claim must fail on this separate independent basis. Accordingly, the Court will enter summary judgment in the Secretary's favor on Gaines's hostile work environment claim.
Gaines claims that her requests for a "flexiplace" assignment and related accommodations were denied in retaliation for her participation in the 2003 Litigation.
In this case, Gaines submitted an application for a "flexiplace" assignment and related accommodations in March 2008, requesting that she be allowed to work at home full-time following a surgical procedure that she planned to undergo at the end of the month. Def.'s Stmt. ¶ 31;
First, Gaines asserts that the Secretary's proffered justification for denying her requests is nothing more than a "post hoc rationale" raised for the first time in this litigation. Pls.' MSJ Opp'n at 67. This argument is easily dispensed with, as it is flatly contradicted by the record. Gardner, in the course of denying Gaines's requests on or about July 11, 2008, included the following contemporaneous explanation for the decision:
Gaines Dep. Ex 25 (Reasonable Accommodation Req.) at 2. On this record, no reasonable trier of fact could conclude that the Secretary's proffered justification is a "post hoc rationale" raised for the first time in this litigation.
Second, Gaines claims that her supervisors granted a "flexiplace" request by a co-worker, Nuss, two months after Nuss began working in her position. Pls.' MSJ Opp'n at 66-67. The argument fails at the outset because Gaines never attempts to establish that she and Nuss were similarly situated in all material respects. See McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 4 (D.C.Cir. 2010) (allegation that other employees received accommodations not offered to the plaintiff did "not provide the slightest reason to doubt" the defendant's proffered explanation where the plaintiff had failed to show that she was similarly situated to the alleged comparators). Likewise, Gaines's passing suggestion that "all nine of [her] coworkers were on flexiplace," Pls.' MSJ Opp'n at 66 (citing Gardner Dep. at 71), goes nowhere because she does not even identify these co-workers by name, let alone attempt to establish that they were all similarly situated. Gaines had failed to satisfy her threshold burden of showing that she and any of the alleged comparators were similarly situated.
The two arguments tendered by Gaines are without merit, and this alone suffices to grant summary judgment in the
More to the point, Gaines simply has adduced no evidence that would allow a reasonable trier of fact to conclude that the denial of her requests had any nexus to her prior protected activity. Indeed, she concedes that she was "new to that area," that she had never performed "plain language" review of publications and notices in her career, and that she needed "plain language" review training. Def.'s Stmt. ¶ 28; Pls.' Stmt. ¶ 28; Gaines Dep. at 236. These admissions, and the Secretary's proffered explanation, are consistent with the record, which shows that Gaines's supervisors made arrangements for her to obtain the requisite training. Def.'s Stmt. ¶ 30; Pls.' Stmt. ¶ 30; Gardner Dep. at 17, 35; Gaines Dep. at 235, 239. On this record, no reasonable trier of fact could conclude that the Secretary's proffered explanation is pretextual. The Secretary is entitled to summary judgment on Gaines's claim based on the denial of her requests for a "flexiplace" assignment and related accommodations.
Gaines also claims that she was improperly suspended without pay for ten days in retaliation for her participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 25; Pls.' MSJ Opp'n at 52-54. The issue first emerged on January 24, 2008, when the ETC Branch within the IRS performed a routine computerized comparison of payroll and tax account records and determined that Gaines had failed to make sufficient estimated tax payments pertaining to gambling winnings during tax-year 2006. Def.'s Stmt. ¶ 34; Pls.' Stmt. ¶ 34. It is undisputed that the ETC Branch discovered the issue independently and that Gaines's supervisors had no role in initiating the investigation. Def.'s Stmt. ¶ 37; Pls.' Stmt. ¶ 37. Subsequently, the matter was referred to Gaines's supervisors for purposes of determining a suitable punishment; they in turn informed Gaines on July 8, 2008, that they were considering a fourteen-day suspension without pay, but advised Gaines that alternative discipline was also a possibility. Def.'s Stmt. ¶¶ 39, 41; Pls.' Stmt. ¶¶ 39, 41.
Upon being notified of the proposed discipline, Gaines stopped reporting to work altogether and never returned. Def.'s Stmt. ¶ 42; Pls.' Stmt. ¶ 42. Thereafter, and while the fourteen-day suspension proposal
The Secretary is entitled to summary judgment on this claim. As a threshold matter, Gaines has completely failed to interpose a meaningful defense in support of her claim. Whereas the Secretary argues at great length in his opening memorandum that Gaines "presents no evidence connecting her protected activity to the suspension," Def.'s MSJ Mem. at 49, the argument section of Gaines's opposition does not even address the claim, let alone provide a response to the Secretary's detailed factual and legal arguments, see Pls.' MSJ Opp'n at 55-67. Among other things, Gaines (a) does not dispute that the challenged employment action came over two years after she last participated in protected activity in connection with the 2003 Litigation, a time lag that precludes an inference of retaliation based on temporal proximity, and (b) fails to provide any evidence contradicting the Secretary's assertion that the supervisors responsible for the proposed suspension did not have contemporaneous knowledge of her protected activity. See Def.'s MSJ Mem. at 51 (citing Gelineau Dep. at 82-83; Gardner Dep. at 61, 69; Becker Dep. at 61). True, the introductory paragraphs to Gaines's opposition include a passing statement that "[t]he ten day suspension of Ms. Gaines for paying taxes on her gambling winnings when she filed her return rather than when she won the money was unjustified and retaliatory." Id. at 5. However, such an argument hardly warrants serious attention; courts need not resolve arguments raised in a cursory manner and with only the most bare-bones arguments in support. See Wash. Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C.Cir.1997). Because Gaines has failed to respond to the arguments raised by the Secretary in support of dismissal, the Court shall, in an exercise of its discretion, treat those arguments as conceded. On this basis alone, the Secretary is entitled to summary judgment on the claim.
However, even if the Court were inclined to reach the merits of the claim, Gaines has failed to produce sufficient evidence to permit a reasonable trier of fact to conclude that the Secretary's proffered reason for the suspension "was not the actual reason" and that the Secretary instead intentionally retaliated against Gaines. Brady, 520 F.3d at 494. Even setting aside the magnitude of the temporal gap between Gaines's protected activity and the challenged suspension and the absence of any evidence that the responsible decisionmakers had any knowledge of that protected activity, Gaines admits that she engaged in the underlying conduct cited as grounds for the proposed suspension. Def.'s Stmt. ¶¶ 38, 44; Pls.' Stmt. ¶¶ 38, 44; Pls.' MSJ Opp'n at 53. Cf. Waterhouse, 298 F.3d at 995 (where plaintiff "did not contravene—and in fact admitted—many of the deficiencies the defendants cited concerning her performance, she failed to establish that her employer's proffered reason was unworthy of credence.") (internal quotation marks, notations, and citations
Finally, Gaines claims that she was subjected to a non-disciplinary termination in retaliation for her participation in the 2003 Litigation. See Compl. (Civil Action No. 10-683) ¶¶ 12-13; Pls.' MSJ Opp'n at 54-55, 67. Gaines stopped reporting to work altogether on July 10, 2008, two days after her supervisors advised her that they were considering suspending her for fourteen days for tax non-compliance, claiming that she was totally incapacitated and unable to work. Def.'s Stmt. ¶ 42; Pls.' Stmt. ¶ 42. On March 3, 2009, Gaines underwent a work-capacity evaluation, after which the examining doctor determined that she was able to work on a full-time basis. Def.'s Stmt. ¶ 50; Gaines Dep. Ex 18 (Work Capacity Evaluation dated Mar. 3, 2009). On July 21, 2009, Gaines's legal counsel, Swick, responded to this development by informing the IRS in a letter that Gaines was "not likely to be physically able to return to work at the IRS" and requested that an IRS representative "call [him] to explore a resolution to th[e] situation." Gaines Dep. Ex. 20 (Ltr. from R. Swick to S. Becker dated July 21, 2009) at 1. Shortly thereafter, Swick called Gaines's third-line supervisor, Becker, and the two discussed the available options, including Gaines's non-disciplinary termination. Pls.' Ex. 33 (Decl. of Richard L. Swick) ¶¶ 3, 5. Thereafter, the IRS initiated the process of removing Gaines for non-disciplinary reasons, citing as grounds Gaines's admitted failure to report for work and inability to perform her duties since July 10, 2008. Def.'s Stmt. ¶¶ 55, 59; Pls.' Stmt. ¶¶ 55, 59. On September 15, 2009, the IRS notified Gaines of the proposed non-disciplinary termination, and advised Gaines that the proposed action would not affect her ability to apply for a disability retirement. Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15, 2009) at 1-2. Gaines elected not to respond to the proposal, and on October 16, 2009, the IRS notified Gaines that her non-disciplinary proposal would be upheld and that she would be removed from federal service effective October 23, 2009. Def.'s Stmt. ¶¶ 60-61; Pls.' Stmt. ¶¶ 60-61; Gaines Dep. Ex. 23 (Ltr. from K. Becton-Johnson to M. Gaines dated Oct. 16, 2009). Subsequently, after Gaines filed an application for disability retirement, her termination was converted from a non-disciplinary removal to a disability retirement. Def.'s Stmt. ¶¶ 57-58, 62; Pls.' Stmt. ¶¶ 57, 62.
The Secretary is entitled to summary judgment. Once again, Gaines has completely failed to interpose a meaningful defense in support of her claim. Her opposition consists of a single paragraph and asserts but one argument—specifically, Gaines contends that summary judgment must be denied simply because there is a factual dispute as to whether Becker, in communicating with Swick about the status of Gaines employment, actually understood
In proposing Gaines's termination, Gaines's supervisors identified the basis for the proposal in the following manner:
Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15, 2009) at 1. Significantly, these assertions are indisputably true. By the time her termination became final, Gaines had not reported to work for over a year and three months; she testified that she no longer wanted to continue working at the IRS and maintained that she was unable to work despite a contrary determination by a board-certified physician. Gaines Dep. at 207, 212. Moreover, her legal counsel made it clear that Gaines was "not likely to be physically able to return to work at the IRS." Gaines Dep. Ex. 20 (Ltr. from R. Swick to S. Becker dated July 21, 2009) at 1. The mere fact that there might be some disagreement as to what Swick said to Becker during a single phone conversation does not change the fact that the two proffered bases for Gaines's termination—namely that she was "unable" and "unavailable" to perform the duties of her position—are conceded to be true. On this record, no reasonable trier of fact could conclude that the Secretary's proffered justification was pretextual based solely on the factual dispute as to what was said during the conversation between Swick and Becker.
Furthermore, Gaines fails to respond to the Secretary's argument that no inference of retaliation can arise from the temporal proximity between the challenged employment action and her protected activity because "Gaines had not engaged in protected activity for years prior to the proposed removal." Def.'s MSJ Mem. at 53. Similarly, Gaines offers no rejoinder to the Secretary's argument that Becker, as the supervisor responsible for the proposed termination, "did not know that Gaines had participated in the 2003 Lawsuit at the time she proposed the removal." Def.'s MSJ Mem. at 53 (citing Becker Dep. at 61-62). In an exercise of its discretion, the Court shall treat both arguments as conceded. In any event, both arguments are supported by the record. More to the point, Gaines adduces no evidence that would permit a reasonable trier of fact to conclude that her termination had any nexus to her participation in the 2003 Litigation. Accordingly, the Secretary is entitled to summary judgment on this claim as well.
In sum, Gaines has failed to adduce sufficient evidence to permit a reasonable
Mason is pursuing four claims under Title VII, each of which is based on the contention that he was retaliated against, in one way or another, for his participation in the 2003 Litigation.
Mason claims that he was subjected to a hostile work environment for his participation in the 2003 Litigation. Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 1, 14; Compl. (Civil Action No. 10-184) ¶ 1, 12; Pls.' MSJ Opp'n at 12-24, 56-59. For at least three independent reasons, Mason's hostile work environment claim must fail.
Mason's opposition in support of his hostile work environment claim leaves much to be desired. In his opening memorandum, the Secretary explains at great length why he believes the component-acts identified by Mason as comprising his hostile work environment claim are non-actionable, either because they are insufficiently adverse or because there is no evidence that they had any connection to Mason's participation in protected activity. See Def.'s MSJ Mem. at 54-71. Nonetheless, Mason offers no meaningful factual or legal analysis in support of his claim—none. Instead, he begins by reciting the skeletal allegations concerning his claim seriatim, see Pls.' MSJ Opp'n at 12-24, proceeds to restate the legal standard governing hostile work environment claims generally, see id. at 56-59, and then concludes by asserting that simply because he has "testified that [he was] subjected to severe hostility on an almost daily basis," then "there is an issue of fact regarding whether [he] suffered from a hostile work environment," id. at 57. In so doing, Mason ignores virtually every argument raised by the Secretary. For example, he offers no rejoinder to the Secretary's argument that he "adduces no evidence to refute the IRS's legitimate, nonretaliatory explanation[s]" for his allegations that he was addressed in an "inappropriate tone or manner," Def.'s MSJ Mem. at 57, or that his allegations of workplace harassment are "quotidian workplace interactions . . . that do not entitle him to a jury trial," id. at 58. Inexplicably, Mason's argument section mentions him only once, and instead focuses on Plaintiffs as a whole despite the stark differences in their claims. In the final analysis, Mason's opposition reduces to little more than legal boilerplate, and amounts to an impermissible attempt to shift the burden to the Secretary and this Court to sift through the record to ascertain the viability of his claim.
Moreover, with few exceptions, the only factual support for his allegations is his narrative responses to interrogatories posed by the Secretary in discovery asking him to identify each act relevant to his claim. See Pls.' Interrog. Resps. No. 3, 5, 7. However, Mason failed to raise these factual matters in the manner specifically prescribed by the Court. By the terms of this Court's prior orders, in responding to the Secretary's statement of material facts, Mason was required to set forth any additional facts that he considered germane to the pending motions at the end of his responsive statement, a procedure that was designed to afford the Secretary a meaningful opportunity to address whether any additional proffered facts were or were not genuinely in dispute. See 6/11/09
In setting forth the factual background that he considers relevant to his hostile work environment claim, Mason identifies somewhere in the neighborhood of twenty-six component-acts extending over an approximately three-year period.
Furthermore, Mason has failed to discharge his burden to adduce sufficient evidence to "establish a causal connection between
First, with respect to the series of approximately fourteen "incidents" that allegedly occurred between Mason and his supervisors in the three-year period extending from June 2, 2006, to July 31, 2009, Mason has provided only the barest of factual content in connection with these incidents. See supra Part I.B.1. Mason makes no meaningful attempt to establish that these incidents had any connection with his protected activity, let alone his participation in the 2003 Litigation. Indeed, his allegations inevitably reduce to the bare and unilluminating allegation that he personally found his supervisors' actions to be "aggressive," "condescending," "disruptive," and "harassing."
Second, with respect to the denial of Mason's request for a rotational work assignment on April 23, 2007, it is undisputed that Mason's request was first denied because his second-line supervisor, Farah, determined that Mason was then needed in his current position to complete an ongoing project. Def.'s Stmt. ¶ 86; Pls.' Stmt. ¶ 86. Indeed, Mason's first-line supervisor, co-plaintiff Benton, is admitted to have informed Farah that Mason's participation in the project was necessary. Def.'s Stmt. ¶ 87; Pls.' Stmt. ¶ 87. Consistent with this account, once Mason had completed the project, his request for a rotational work assignment was granted the very next day. Def.'s Stmt. ¶ 90; Def.'s Ex. R (E-mail from M. Farah to E. Mason dated July 27, 2007). Mason has failed to adduce any evidence that would allow a reasonable trier of fact to conclude that the initial denial was in any way retaliatory.
Third, with respect to Mason's request for a transfer to the New Carrollton office, it is undisputed that his third-line supervisor, Fayne, denied his request based on a general policy that such transfers would not be considered because there was a moratorium on all relocations to the New Carrollton office. Def.'s Stmt. ¶ 92; Pls.' Stmt. ¶ 92. Indeed, Mason admitted at his deposition that he was aware of the policy at the time he made his request. Mason Dep. at 177-78. He has also conceded that he is unable to identify any other M & P employee who requested and was granted a transfer to the New Carrollton office during the moratorium.
Fourth, with respect to Mason's contention that his request to be reassigned to another branch in the M & P Organization, Mason has adduced no evidence to contradict the Secretary's proffered justification that his supervisors concluded that reassignment was inappropriate at that time because Mason had just recently transferred to his branch and there was no staffing need for someone working at his position in any of the other branches. Def.'s Stmt. ¶ 98; Def.'s Ex. U (Decl. of Paul L. Dangel) at 1112; Def.'s Ex. V (Decl. of Mitchell A. Farah) at 992. More broadly, he fails to adduce any evidence that would allow a reasonable trier of fact to conclude that the denial was made in retaliation for his participation in prior protected activity. Therefore, it cannot support his hostile work environment claim.
Fifth, with respect to Mason's allegation that his first-line supervisor, Dangel, disclosed information concerning his request for FMLA leave, it is undisputed that Dangel did not actually discuss the nature of Mason's sisters' illness, Mason's prior protected activity, or Mason's participation in the Employee Assistance Program with his supervisors. Def.'s Stmt. ¶ 103; Pls.' Stmt. ¶ 103. In any event, it is undisputed that Mason expressly asked Dangel to seek approval for his FMLA request on his behalf from "appropriate upper management officials." Def.'s Stmt. ¶ 101; Pls.' Stmt. ¶ 101. More broadly, Mason fails to adduce any evidence that would allow a reasonable trier of fact to conclude that Dangel's actions had any connection with Mason's participation in prior protected activity. Therefore, they cannot support Mason's hostile work environment claim.
Sixth, with respect to Mason's 2007 and 2008 performance appraisals, Mason "offers no evidence of pretext nor does he refute his supervisors' legitimate, nonretaliatory explanation for the rating[s]" he received. Def.'s MSJ Mem. at 68. Despite Mason's conclusory allegations to the contrary, he points to no evidence that would allow a reasonable trier of fact to conclude that his rating was
Seventh, Mason cannot rely on his meeting with his first-line supervisor, Dangel, concerning Mason's performance, occurring just prior to Mason's resignation from the IRS. It is undisputed that Dangel met with Mason to apprise him of his unsatisfactory performance and to discuss how they could improve Mason's performance. Def.'s Stmt. ¶¶ 153-54; Pls.' Stmt. ¶¶ 153-54. For months, Dangel had orally notified Mason that he was not performing his duties in a timely or satisfactory manner, Def.'s Stmt. ¶ 153; Pls.' Stmt. ¶ 153, and the record establishes that Dangel had documented legitimate concerns with the timing and adequacy of Mason's performance. See supra Part I.B.10. Mason fails to adduce any evidence that would permit a reasonable trier of fact to conclude that the meeting, or Dangel's concerns, had any connection to his prior protected activity. Therefore, they cannot support his hostile work environment claim.
Finally, Mason cannot rely upon his non-selection for the '322 Position, his three-day suspension for sending "broadcast" communications to senior IRS management, or the circumstances allegedly leading to his resignation. For the reasons set forth below, no reasonable trier of fact could conclude that these actions were taken in retaliation for Mason's participation in protected activity. See infra Part III.B.2-4.
In the final analysis, Mason has failed to point to sufficient evidence to allow a reasonable trier of fact to conclude that the component-acts identified as supporting his hostile work environment claim were taken in retaliation for his prior protected activity. Viewing the record as a whole, no trier of fact could conclude that Mason was subjected to an objectively severe or pervasive retaliatory hostile working environment. Accordingly, the Court will enter summary judgment in the Secretary's favor on Mason's hostile work environment claim.
Mason claims that his non-selection for the '322 Position on or about April 16, 2007, was in retaliation for his participation in the 2003 Litigation. Fourth Am. Compl. (Civil Action No. 09-462) ¶ 21; Pls.' MSJ Opp'n at 9-12, 59-62. In his opposition, Mason tenders a total of three arguments as to why a trier of fact could find in his favor on his claim.
Mason claims that he was "better qualified than the selectee," listing his assessment of his own qualifications and asserting that he "performed quite well." Pls.' MSJ Opp'n at 9. Like any employee, Mason understandably has his own views about his performance. However, it is axiomatic that a "[p]laintiff cannot establish pretext simply based on [his] own subjective assessment of [his] own performance." Waterhouse v. District of Columbia, 124 F.Supp.2d 1, 7 (D.D.C.2000) (internal quotation marks omitted), aff'd, 298 F.3d 989 (D.C.Cir.2002). Where, as here, a plaintiff attempts to use his comparative qualifications to show that the employer's proffered qualifications-based explanation is pretextual, he must adduce sufficient evidence to allow a trier of fact to conclude that he was "significantly better qualified" than the ultimate selectee. See Colbert v. Tapella, 649 F.3d 756, 759-60 (D.C.Cir.2011); Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C.Cir.), cert. denied, 555 U.S. 1036, 129 S.Ct. 606, 172 L.Ed.2d 464 (2008). A qualifications gap alone cannot support an inference that the employer's qualifications-based justification is pretextual; the gap must be "great enough to be inherently indicative of discrimination [or retaliation]." Adeyemi, 525 F.3d at 1227; see also Porter v. Shah, 606 F.3d 809, 816 (D.C.Cir.2010) (referring to a "stark superiority of credentials"). In this case, Mason has failed to come forward with affirmative evidence that would allow a reasonable trier of fact to conclude that he was significantly or markedly more qualified than the ultimate selectee—Freeman. Indeed, he has provided no meaningful comparative analysis of his qualifications relative to Freeman at all. See Pls.' MSJ Opp'n at 9-12, 59-62. Without such a showing, his argument must fail.
Second, Mason alleges that the ultimate selectee for the '322 Position was "pre-selected" because he had been chosen to serve in the position previously on a temporary basis. Pls.' MSJ Opp'n at 10 (citing Dep. of Richard Freeman ("Freeman Dep.") at 18-19). As an initial matter, by burying the allegation in his sixty-eight page opposition memorandum instead of including it in his responsive statement of material facts, Mason failed to raise the allegation in the specific manner prescribed by the Court. See 6/11/09 Scheduling & Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil Action No. 09-462) at 3; Tr. of 5/13/10 Status Hr'g (Civil Action No. 09-462) at 21-22. In any event, the evidence cited by Mason in support of his allegation is insufficient to allow a reasonable trier of fact to infer that Freeman was in fact "preselected." See Freeman Dep. at 18-19. Furthermore, Mason ignores the fact that there is nothing per se improper about "preselection," at least from the standpoint of Title VII. Rather, for evidence of preselection to be relevant, there must be some indicia of retaliation attaching to the preselection. See Pearsall v. Holder, 610 F.Supp.2d 87, 100 n. 12 (D.D.C.2009); Nyunt v. Tomlinson, 543 F.Supp.2d 25, 39 (D.D.C.2008), aff'd, 589 F.3d 445 (D.C.Cir. 2009). Because Mason never even bothers to explain how the mere fact that Freeman had been chosen to serve in the position on a temporary basis is indicative of retaliation, the argument must fail.
Third, Mason contends that the recommending official for the '322 Position, Farah,
Beginning first with Farah, Mason and Benton each claim that a trier of fact could infer a generalized retaliatory animus on Farah's part based on three alleged "incidents" between Farah and another IRS employee who participated in the 2003 Litigation—namely, Gerald Plater ("Plater"). Notably, Mason and Benton do not claim, nor could they, that the incidents have any direct relationship to them or the employment actions they challenge in these actions. Instead, they essentially claim that the three incidents are so egregious that a trier of fact could infer that Farah had a "retaliatory, abusive and oppressive mind-set." Pls.' MSJ Opp'n at 61. But Mason and Benton's allegations are devoid of factual content, rendering it impossible for this Court or the trier of fact to situate the alleged incidents in any meaningful context, let alone conclude that Farah's behavior had any nexus to Plater's or anyone else's participation in protected activity. Just as importantly, a review of the evidentiary support cited by Mason and Benton reveals that they have radically misconstrued the nature of the alleged "incidents" and, by extension, misstate the inferences that could reasonably be drawn from those incidents.
Mason and Benton first contend, in cursory fashion and without further explication, that Farah "openly threatened to `get'" Plater. Pls.' MSJ Opp'n at 61 (citing Plater Dep. at 44-45). But in this regard, Plater merely testified as follows:
Plater Dep. at 44. Mason and Benton provide no context for the comment-none. They do not state when it occurred or under what circumstances, and they make no attempt to connect it with Plater's or anyone else's participation in protected activity. Absent further factual content, there is no basis upon which a reasonable trier of fact could conclude that this "incident" had any nexus to Plater's participation in the 2003 Litigation, let alone under circumstances that would allow Mason and Benton to use it as evidence in support of their discrete claims in these actions. In short, it is insufficient to support Mason and Benton's allegation that Farah harbored a generalized retaliatory mind-set.
Mason and Benton next contend, in a single sentence unaccompanied by any meaningful explanation, that Farah was "unprofessional and demeaning" towards Plater. Pls.' MSJ Opp'n at 61 (citing Plater
Finally, Mason and Benton claim that Farah commented to Plater that he viewed the work of a particular business unit dominated by African Americans as "mule work." Pls.' MSJ Opp'n at 61 (citing Plater Dep. at 45-46). However, Mason and Benton conveniently ignore the fact that both Plater and Farah denied that Farah ever used such potentially loaded language. See Plater Dep. at 44; Farah Dep. at 156. According to Plater, Farah probably used the term "grunt work." Plater Dep. at 46. Regardless, Plater unambiguously testified that he did not interpret the term to be directed towards African American employees, but instead saw it as a statement about "the type of work that was being done" by entry-level employees in a particular business unit. Id. at 45-47. Just as importantly, Mason and Benton make no attempt to connect the alleged incident to Plater's participation in protected activity; in particular, they do not even bother to explain how allegedly discriminatory comments may be indicative of a generalized retaliatory animus. In short, the incident is insufficient to support Mason and Benton's allegation that Farah harbored a generalized retaliatory mind-set.
Simply put, Mason and Benton have failed to adduce sufficient evidence that would allow a trier of fact to reasonably conclude that Farah held any sort of retaliatory animus towards Plater, let alone an animus that could be imputed to support their claims in these actions. Similarly, they have failed to make any effort to show that Plater's experience is "closely related . . . to [their] theory of the case." Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008).
The same holds true with respect to Fayne. Mason and Benton, citing three alleged "incidents," claim that a trier of fact could infer that Fayne exhibited a "hostility towards the EEO process and those who participate in it." Pls.' MSJ Opp'n at 60. However, whether considered together or independently, the three incidents are insufficient to permit a reasonable trier of fact to conclude that Fayne harbored a generalized retaliatory animus.
First, Mason and Benton claim that a presentation that Fayne made with another IRS employee as part of a federal dispute resolution seminar in August 2001, two years before they had even commenced the 2003 Litigation, is evidence of her retaliatory animus. See id. (citing Pls.' Ex. 14 (The New Cost of Discrimination: How Agreeing to Settle a Discrimination Complaint Could Cost Your Job) at 1). Neither Mason nor Benton ever attempt to explain how the contents of the
Second, Mason and Benton claim that Fayne "attempted to bribe Mr. Benton to withdraw his EEO complaint by promising him promotional consideration for doing so." Pls.' MSJ Opp'n at 60 (citing Benton Dep. at 179). It is undisputed that, when Benton met with Fayne to discuss his non-selection for the '044 Position, Fayne offered Benton opportunities to improve his managerial and interviewing skills and offered to place him in a front-line managerial position. Def.'s Stmt. ¶¶ 201-02; Pls.' Stmt. ¶¶ 201-02; Fayne Dep. at 191, 221-23. In Benton's view, Fayne's offer amounted to an attempt to "bribe [him] with a promotion." Pls.' Stmt. ¶ 202 (citing Benton Dep. at 179). However, in the single page of deposition testimony specifically cited by Mason and Benton in support of their allegations, Benton merely reiterated his view that he personally "interpreted" Fayne's offer as a bribe.
Benton Dep. at 159. At best, the cited testimony is sufficient to create a genuine dispute that Benton and Fayne discussed the complaint, but nothing more. It does not provide a basis for a trier of fact to reasonably conclude that Fayne harbored a generalized "hostility towards the EEO process and those who participate in it." Pls.' MSJ Opp'n at 60. Indeed, if anything, Benton's testimony would tend to suggest that Fayne was responsive to Benton's concerns and sought to provide him with the training and opportunities to advance further in the IRS.
Third, Mason and Benton rely upon an e-mail from Fayne to Benton, in which Fayne wrote, again on the heels of Benton's non-selection for the '044 Position:
Pls.' Interrog. Resps. No. 3. Simply put, the Court is left wondering why Benton considers this e-mail "very unusual and disturbing." Id. If anything, the e-mail would also tend to suggest that Fayne was open to discussing and responding to Benton's workplace concerns. The mere fact that Fayne suggested that Benton attempt to raise his concerns with her prior to taking more formal action is not indicative of a retaliatory animus; indeed, it is entirely appropriate for supervisors to encourage the informal reporting and discussion of workplace concerns in the first instance. Viewed in context, the e-mail is, on its face, a routine and unremarkable attempt by a supervisor to encourage a higher level of trust with an employee. Mason and Benton adduce no evidence that would permit a reasonable trier of fact to conclude that the e-mail is evidence that Fayne harbored a generalized "hostility towards the EEO process and those who participate in it." Pls.' MSJ Opp'n at 60.
While the foregoing discussion suffices to grant summary judgment on Mason's claim based on his non-selection for the '322 Position, the Court nonetheless pauses to observe that, viewing the record a whole, no reasonable trier of fact could conclude that the Secretary's proffered qualifications-based justification for Mason's non-selection was pretextual. It is undisputed that the application and review materials demonstrated a "clear separation" between the ultimate selectee, Freeman, and the other four candidates, and both Manno, as the ranking official, and the interview panel agreed that Freeman had the most extensive managerial experience, demonstrated more relevant personal achievement than the other candidates, and had an educational background that was superior or comparable to other candidates. See supra Part I.B.2. Indeed, Mason admitted at his deposition that he was not the most qualified candidate for the position. Mason Dep. at 206-08. In his own view, at least two candidates should have been selected over him. Id. Ultimately, "[s]hort of finding that the employer's stated reason was indeed a pretext. . . the court must respect the employer's unfettered decision to choose among qualified candidates." Fischbach v. D.C. Dep't of Corrections, 86 F.3d 1180, 1183 (D.C.Cir.1996). On this record, no reasonable trier of fact could conclude that the Secretary's proffered justification for Mason's non-selection was pretextual. Accordingly, the Secretary is entitled to summary judgment on the claim.
Mason claims that his three-day suspension, which was proposed on October 6, 2008, and upheld on January 6, 2009, was imposed in retaliation for his participation in the 2003 Litigation. Fourth Am. Compl. (Civil Action No. 09-462) ¶ 21; Pls.' MSJ Opp'n at 25-27, 62-64. However, Mason has failed to adduce sufficient evidence for a reasonable trier of fact to conclude that the Secretary's proffered justification for the suspension was not the actual reason and that the Secretary intentionally retaliated against him. See Brady, 520 F.3d at 494.
While the claim is heavily contested, the essential facts are undisputed. Mason routinely sent prolix e-mails to senior IRS officials, including officials as high as the IRS Commissioner, raising what he claims
Despite this directive, Mason continued to e-mail senior IRS officials with complaints, requests for information, and demands to address his workplace grievances, see supra Part I.B.9, prompting his second-line supervisor, Farah, to propose his suspension without pay for three days for (1) "fail[ing] to follow a directive from management," (2) "misus[ing] government equipment and government supplies," and (3) mis[using] work time," Mason Dep. Ex. 20 (Notice of Proposed Disciplinary Suspension dated Oct. 6, 2008) at 1-6. The proposal letter identified (1) fourteen separate instances between May 9, 2008, and October 6, 2008, in which Mason allegedly sent inappropriate communications to senior IRS management, (2) thirteen separate instances in which he used government equipment to send such communications, and (3) two instances in which he "misused work time" to draft such communications. Id. The three-day suspension was approved on January 9, 2009. Def.'s Stmt. ¶ 152; Pls.' Stmt. ¶ 152.
Mason appears to be laboring under the misapprehension that this sequence of events somehow constitutes direct evidence of retaliation. See Pls.' MSJ Opp'n at 63. It is nothing of the sort. Mason had adduced no evidence demonstrating that he was ever discouraged from raising his myriad allegations of discrimination or retaliation in the workplace. Indeed, all the competent evidence in the record establishes that Mason was repeatedly encouraged to raise whatever concerns he might have through the agency's EEO apparatus or the agency grievance process. Def.'s Stmt. ¶ 143; Pls.' Stmt. ¶ 143; Mason Dep. Ex. 19 (Mem. Directive for Resolving Issues of Personal Concern dated Feb. 28, 2008) at 1. In other words, he was merely directed to raise his concerns through "the appropriate channels," Mason Dep. Ex. 19 (Mem. Directive for Resolving Issues of Personal Concern dated Feb. 28, 2008) at 1, and there was nothing inappropriate about such an instruction. Cf. Rollins v. State of Fla. Dep't of Law Enforcement, 868 F.2d 397, 399 (11th Cir. 1989) (employer did not act improperly where its actions were based on "the manner in which [the plaintiff] complained of discrimination, not on the fact that she complained," as the plaintiff "habitually bypassed the chain of command by bringing her complaints of discriminatory employment
Nor can Mason create a genuine dispute requiring trial merely by repeating his personal view that his e-mails to senior IRS management raised "workplace" and not "personal" concerns and therefore did not violate the letter of the written management directive. Pls.' MSJ Opp'n at 25-26. Such an argument seeks to impose an unreasonably technical reading upon the written management directive; the record establishes that Mason was repeatedly warned that the kind of e-mails he was sending to senior IRS management was inappropriate and advised that his concerns should be raised through other channels. On this record, no reasonable trier of fact could reach any conclusion but that Mason continued to send communications to senior IRS officials knowing that his conduct was in contravention of the instructions of his superiors.
More to the point, the Court understands that Mason may personally disagree with his supervisors' interpretation of the directive, but that alone is hardly sufficient to warrant an inference of retaliation. Where, as here, "the employer's stated belief about the underlying facts is reasonable in light of the evidence, . . . there ordinarily is no basis for permitting a jury to conclude that the employer is lying about the underlying facts." Brady, 520 F.3d at 495 (citing, inter alia, George v. Leavitt, 407 F.3d 405, 415 (D.C.Cir. 2005)). The question is not whether Mason in fact contravened the letter of the management directive, but rather whether his supervisors "honestly and reasonably believed" that he did. Id. at 496 (emphasis omitted). In this case, it is undisputed that Mason was repeatedly directed to cease sending communications raising his concerns to senior IRS management and
Finally, Mason's suggestion that the penalty imposed by his supervisors exceeded the "maximum allowable penalty" is without merit. Pls.' MSJ Opp'n at 26, 63 (citing Def.'s Ex. SS (IRS Guide to Penalty Determinations). The record evidences that Mason was repeatedly warned that his conduct was unacceptable and yet he continued to serially send communications prepared with agency resources to senior IRS management. Indeed, the suspension proposal identifies no less than fourteen instances between May 9, 2008, and October 6, 2008, in which Mason sent communications in contravention of the directive. Mason Dep. Ex. 20 (Notice of Proposed Disciplinary Suspension dated Oct. 6, 2008) at 1-6. Therefore, there is no basis to Mason's argument that he was suspended for a "first offense." Pls.' MSJ Opp'n at 63.
In the final analysis, Mason has failed to adduce sufficient evidence for a reasonable trier of fact to conclude that the Secretary's proffered justification for the suspension was not the actual reason and that the Secretary intentionally retaliated against him. See Brady, 520 F.3d at 494. Accordingly, the Secretary is entitled to summary judgment on the claim.
Finally, Mason claims that he was constructively discharged in retaliation for engaging in protected activity. See Compl. (Civil Action No. 10-184) ¶¶ 12; Pls.' MSJ Opp'n at 12-24, 65-66. It is undisputed that Mason resigned his employment with the IRS on July 31, 2009. Def.'s Stmt. ¶ 153; Pls.' Stmt. ¶ 153. In this Circuit, resignations are presumed to be voluntary. Aliotta v. Bair, 614 F.3d 556, 566 (D.C.Cir.2010). However, "[i]n certain cases, the doctrine of constructive discharge enables an employee to overcome the presumption of voluntariness and demonstrate [that he] suffered an adverse employment action by showing the resignation . . . was, in fact, not voluntary." Id. To meet that burden, the plaintiff "must show that the [allegedly] abusive working environment became so intolerable that [his] resignation qualified as a fitting response." Penn. State Police v. Suders, 542 U.S. 129, 134, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). In this case, Mason has failed to adduce sufficient evidence to meet his burden for at least two independent reasons.
First, and most importantly, because Mason has failed to make the lesser showing that he was subjected to a severe and pervasive hostile work environment, see supra Part III.B.1, it necessarily follows that his constructive discharge claim, which requires a more robust showing and rests on the same nucleus of factual allegations, must fail as well. Sewell v. Hugler, No. 08-5079, ___ Fed.Appx. ___, ___, 2009 WL 585660, at *1 (D.D.C. Feb. 25, 2009) (per curiam).
Second, to prevail on a constructive discharge claim, a plaintiff must point to "the existence of certain `aggravating factors,'" Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C.Cir.1997) (quoting Clark v. Marsh, 665 F.2d 1168, 1173 (D.C.Cir.1981))—i.e., "those aspects of a discriminatory [or retaliatory] work environment that, by making the workplace so disagreeable, prevent the reasonable employee from seeking remediation on the job," Veitch v. England, 471 F.3d 124, 130 (D.C.Cir.2006) (citing Mungin, 116 F.3d at 1558), cert. denied, 552 U.S. 809,
Pls.' MSJ Opp'n at 66. Similarly, in his letter of resignation, Mason wrote:
Mason Dep. Ex. 1 (Ltr. from E. Mason to P. Dangel dated July 31, 2009) at 1 (emphasis and underlining in original).
To the extent this may even be characterized as an "aggravating factor," it is unsupported by the record. Despite the allegations in Mason's letter, it is undisputed that Dangel never threatened Mason with an "AWOL charge" and no one ever placed Mason on "AWOL status." Def.'s Stmt. ¶ 160; Pls.' Stmt. ¶ 160. More to the point, neither Dangel nor any of Mason's other supervisors ever denied Mason's requests for leave without pay. Def.'s Stmt. ¶ 161; Mason Dep. at 130-31. Indeed, according to Mason, Dangel had personally "approved hundreds of hours of leave without pay so that [he] could care for his sister." Pls.' Stmt. ¶ 165. Most notably, Dangel had just recently approved Mason's request for leave for the week of August 10, 2009, so that Mason could attend to his sister. Def.'s Stmt. ¶ 162; Pls.' Stmt. ¶ 162.
The gravamen of Mason's complaint is that Dangel did not automatically grant his specific, successive request for leave for the week of August 17, 2009. However, it is undisputed that Mason was scheduled to attend a training session during that week, that he personally requested the training, that he was aware of the date for months, and that he had already been approved to take leave the prior week. Def.'s Stmt. ¶¶ 163-64; Pls.' Stmt. ¶¶ 163-64. When Dangel simply asked Mason to provide him with a sufficiently compelling reason why he could not attend the training session, Mason refused to provide the requested explanation and instead tendered his resignation.
In sum, Mason has failed to adduce sufficient evidence to permit a reasonable trier of fact to find in his favor on any of his claims. Therefore, the Court shall enter summary judgment in the Secretary's favor and dismiss Mason's claims from this action.
Benton is pursuing six claims under Title VII, each of which is based on the contention that he was retaliated against, in one way or another, for his participation in the 2003 Litigation.
Benton claims that he was subjected to a hostile work environment in retaliation for his participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 1, 17; Pls.' MSJ Opp'n at 31-40, 56-59. For at least three independent reasons, the claim must fail.
As was the case with Gaines's and Mason's submissions, Benton's opposition in support of his hostile work environment claim leaves much to be desired. In his opening memorandum, the Secretary explains in considerable detail why he believes that the component-acts identified by Benton as comprising his hostile work environment claim are non-actionable, either because they are insufficiently adverse or because there is no evidence that they had any connection to Benton's participation in protected activity. See Def.'s MSJ Mem. at 73-81. Nonetheless, Benton offers no meaningful factual or legal analysis in support of his claim—none. Instead, he begins by reciting the skeletal allegations in support of his claim seriatim, see Pls.' MSJ Opp'n at 31-40, proceeds to restate the legal standard governing hostile work environment claims generally, see id. at 56-59, and then concludes by asserting simply that because he has "testified that [he was] subjected to severe hostility on an almost daily basis," then "there is an issue of fact regarding whether [he] suffered from a hostile work environment," id. at 57. In so doing, Benton ignores virtually every argument raised by the Secretary. Inexplicably, Benton's argument section of his opposition does not even mention him, and instead focuses on Plaintiffs as a whole despite the stark differences in their claims. In the final analysis, Benton's opposition reduces to little more than legal boilerplate, and amounts to an impermissible attempt to shift the burden to the Secretary and this Court to sift through the record to ascertain the viability of his claim.
Moreover, with few exceptions, the only factual support for his allegations is his narrative responses to interrogatories posed by the Secretary in discovery asking him to identify each act relevant to his claim. See Pls.' Interrog. Resps. No. 3, 5, 7. However, Benton failed to raise these factual matters in the manner specifically prescribed by the Court. By the terms of this Court's prior orders, in responding to the Secretary's statement of material facts, Benton was required to set forth any additional facts that he considered germane to the pending motions at the end of his responsive statement, a procedure that was designed to afford the Secretary a meaningful opportunity to address whether any additional proffered facts were or were not genuinely in dispute. See 6/11/09 Scheduling & Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil Action No. 09-462) at 3; Tr. of 5/13/10 Status Hr'g (Civil Action No. 09-462) at 21-22. By burying his allegations in his sixty-eight page opposition memorandum or in response to the Secretary's proffered factual statements that he admits, Benton deprived the Secretary of this opportunity. The Court considers it well within its discretion to disregard, and does disregard, the allegations on this basis alone. However, even considering Benton's allegations, his hostile work environment claim must fail.
In setting forth the factual background that he considers relevant to his hostile work environment claim, Benton identifies somewhere in the neighborhood of twenty-five component-acts.
Furthermore, Benton has failed to discharge his burden to adduce sufficient evidence to "establish a causal connection between the [alleged] harassment and [his] protected activity." Lewis, 653 F.Supp.2d at 81. Without exception, Benton has stated the alleged component-acts in such summary and cursory form that they lack any indicia of retaliatory animus of any kind, let alone a retaliatory animus specifically directed towards his participation in the 2003 Litigation. Just as importantly, where the Secretary has proffered a non-retaliatory reason for a specific act, Benton offers no contradictory evidence that would allow a reasonable trier of fact to conclude that the proffered reason was pretextual. See Graham, 657 F.Supp.2d at 217. Viewing the record as a whole, no trier of fact could reasonably conclude that the acts complained of were motivated by a retaliatory animus.
Second, with respect to his allegations concerning his interactions with his third-line supervisor, Fayne, following his non-selection for the '044 Position, Benton has failed to point to competent evidence from which a reasonable trier of fact could conclude that these interactions had any connection to his protected activity. See supra Parts I.C.2 and III.B.2.c. Therefore, his allegations in this regard cannot support his hostile work environment claim.
Third, with respect to Benton's request for a transfer to the New Carrollton office, it is undisputed that his third-line supervisor, Fayne, denied his request based on a general policy that such transfers would not be considered because there was a moratorium on all relocations to the New Carrollton office. Def.'s Stmt. ¶ 190; Pls.' Stmt. ¶ 190. Benton, like Mason, contends that a trier of fact could draw an inference of retaliation from the fact that another employee, Rolphs, was granted a request to transfer, but it is undisputed that Rolphs was granted a request to transfer to Rome, Italy, not the New Carrollton office. See supra Part III.B.1.c. In any event, Benton makes no attempt to establish that he was similarly situated to Rolphs in all material respects. More broadly, Benton has failed to adduce any evidence that would allow a reasonable trier of fact to conclude that the denial of his request was in any way retaliatory. Therefore, it cannot support his hostile work environment claim.
Fourth, with respect to Benton's contention that his request to be reassigned to another branch in the M & P Organization, Benton has adduced no evidence to contradict the Secretary's proffered justification that granting his request would impact all four branches of the organization because it would require
Fifth, with respect to Benton's requests for FMLA leave, the record establishes that his first-line supervisor, Freeman, in fact granted Benton's requests. See supra Part I.C.7. Benton has failed to present any evidence that would allow a reasonable trier of fact to conclude that the delay in granting the request, if any, was unreasonable. See id. Nor has he adduced any evidence suggesting that Freeman acted improperly in obtaining the necessary approvals from his supervisors. See id. More generally, Benton has failed to adduce any evidence that would suggest that the handling of his FMLA requests had any nexus to his protected activity. Therefore, it cannot support his hostile work environment claim.
Sixth, with respect to Benton's 2007 performance appraisal, it is undisputed that Benton received the highest rating possible, and in fact received a performance award. See supra Part I.C.7. He has failed to adduce any evidence to suggest that there was an unreasonable delay in the issuance of his performance appraisal or, more importantly, that any such delay had any connection to his participation in protected activity. On this record, no reasonable trier of fact could conclude that the actions of Benton's supervisors were retaliatory. Therefore, these allegations cannot support his hostile work environment claim.
Finally, in support of his hostile work environment claim, Benton cannot rely upon his non-selection for the '044 Position, his non-selection for the '322 Position, his three-day suspension, his fourteen-day suspension, or his termination. For the reasons set forth below, no reasonable trier of fact could conclude that these actions were taken in retaliation for Benton's participation in protected activity. See infra Part III.C.2-6.
In the final analysis, Benton has failed to point to sufficient evidence to allow a reasonable trier of fact to conclude that the component-acts identified as supporting his hostile work environment claim were taken in retaliation for his prior protected activity. Viewing the record as a whole, no trier of fact could conclude that Benton was subjected to an objectively severe or pervasive hostile work environment. Accordingly, the Court will enter summary judgment in the Secretary's favor on Benton's hostile work environment claim.
Benton contends that his non-selection for the '044 Position was in retaliation for his participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 17; Pls.' MSJ Opp'n at 59-62. Benton's arguments as to why a trier of fact could infer that his non-selection was retaliatory are without merit. First, Benton's contention that he had "superior qualifications" lacks merit because he has failed to adduce sufficient evidence to allow a reasonable trier of fact to conclude that he was "significantly better qualified" than the ultimate selectee—Dangel. Adeyemi, 525 F.3d at 1227. Indeed, he fails to provide any meaningful comparative analysis of his qualifications
Like Mason, Benton claims that his non-selection for the '322 Position in or about April 2007 was unlawful. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 17; Pls.' MSJ Opp'n at 59-62. Also like Mason, Benton fails to adduce sufficient evidence to allow a reasonable trier of fact to conclude that his non-selection for the '322 Position was in retaliation for his participation in protected activity. Indeed, Benton's arguments in support of his claim are coterminous with those tendered by Mason, see Pls.' MSJ Opp'n at 59-62, and are unavailing for the same reasons. See supra Part III.B.2. More broadly, viewing the record as a whole, no reasonable trier of fact could conclude that the Secretary's proffered qualifications-based justification for Benton's non-selection was pretextual. It is undisputed that the application and review materials demonstrated a "clear separation" between the ultimate selectee, Freeman, and the other four candidates, and both Manno, as the ranking official, and the interview panel agreed that Freeman had the most extensive managerial experience, demonstrated more relevant personal achievement than the other candidates, and had an educational background that was superior or comparable to other candidates. See supra Part I.B.2. Indeed, Benton was the fourth-ranked candidate out of a field of five. See id. Ultimately, "[s]hort of finding that the employer's stated reason was indeed a pretext . . . the court must respect the employer's unfettered decision to choose among qualified candidates." Fischbach, 86 F.3d at 1183. On this record, no reasonable trier of fact
Like Mason, Benton claims that his three-day suspension in March 2008 was imposed in retaliation for his participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 17; Pls.' MSJ Opp'n at 62-64. However, like Mason, Benton has failed to adduce sufficient evidence for a reasonable trier of fact to conclude that the Secretary's proffered justification for the suspension was not the actual reason and that the Secretary intentionally retaliated against him. Indeed, Benton's arguments in support of his claim are coterminous with those tendered by Mason, see Pls.' MSJ Opp'n at 62-64, and are unavailing for the same reasons. See supra Part III.B.3. As was the case with Mason, after tolerating Benton's prolix e-mails to senior IRS officials for months, and after encouraging Benton to pursue his grievances through the EEO apparatus or agency grievance process, Benton was issued a management directive instructing him to cease sending such communications. See supra Part I.C.8. Nonetheless, Benton continued to e-mail senior IRS officials with complaints, requests for information, and demands to address his workplace grievances. See id. After repeated warnings, Farah issued a letter proposing Benton's suspension without pay for three days, identifying thirteen instances in which Benton was determined to have violated the management directive. See id. Like Mason, Benton has adduced no evidence demonstrating that he was ever discouraged from raising his myriad allegations of discrimination or retaliation in the workplace; the Secretary did not run afoul of Title VII merely by directing Benton to raise those allegations through the appropriate channels and not to senior IRS officials after tolerating Benton's communications for months. Def.'s Stmt. ¶ 216; Pls.' Stmt. ¶ 216. Cf. Rollins, 868 F.2d at 399; Rattigan, 604 F.Supp.2d at 49. While Benton may personally disagree with his supervisors' interpretation of the directive, that interpretation is "reasonable in light of the evidence." Brady, 520 F.3d at 495 (citing George, 407 F.3d at 415). Benton has failed to adduce sufficient evidence to allow a reasonable trier of fact to doubt that his supervisors "honestly and reasonably believed" that he had serially violated the management directive. Id. at 496. For these reasons, and for the reasons set forth above in connection with Mason's parallel claim, see supra Part III.B.3, Benton has failed to adduce sufficient evidence for a reasonable trier of fact to conclude that the Secretary's proffered justification for the suspension was not the actual reason and that the Secretary intentionally retaliated against him. See Brady, 520 F.3d at 494. Accordingly, the Secretary is entitled to summary judgment on the claim.
Benton claims that his fourteen-day suspension in August 2008 was imposed in retaliation for his participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 17; Pls.' MSJ Opp'n at 64-65. However, Benton has failed to adduce sufficient evidence for a reasonable trier of fact to conclude that the Secretary's proffered justification for the suspension was not the actual reason and that the Secretary intentionally retaliated against him. Benton has admitted that he committed various tax infractions over the years, including the one that ultimately led to his fourteen-day suspension
Sixth, and finally, Benton claims that his termination in January 2009 was in retaliation for his participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 17; Pls.' MSJ Opp'n at 62-64. For the same reasons described above, see supra Parts I.C.10, III.B.3, and III.C.4, Benton has failed to adduce sufficient evidence that he was terminated because he engaged in protected activity. On this record, the Secretary's proffered justification that Benton was terminated for serially sending e-mails to senior IRS official despite the contrary instructions of his supervisors is "reasonable in light of the evidence." Brady, 520 F.3d at 495 (citing George, 407 F.3d at 415). Benton has failed to adduce sufficient evidence to allow a reasonable trier of fact to doubt that his supervisors "honestly and reasonably believed" that he had serially violated the management directive. Id. at 496. For these reasons, and for the reasons set forth above, Benton has failed to adduce sufficient evidence for a reasonable trier of fact to conclude that the Secretary's proffered justification for the termination was not the actual reason and that the Secretary intentionally retaliated against him. See Brady, 520 F.3d at 494. Accordingly, the Secretary is entitled to summary judgment on the claim.
In sum, Benton has failed to adduce sufficient evidence to permit a reasonable trier of fact to find in his favor on any of his claims. Therefore, the Court shall enter summary judgment in the Secretary's favor and dismiss Benton's claims from this action.
In his Motion for Sanctions, the Secretary seeks the exclusion of evidence concerning a meeting between Benton and his third-line supervisor, Fayne, on the basis that Benton admittedly secretly recorded the conversation but destroyed the recording rather than producing it in the course of discovery. Because the Court concludes that the Secretary is entitled to summary judgment against all three plaintiffs even when considering the evidence the Secretary seeks to have excluded, it is unnecessary to reach the merits of the Secretary's motion. The motion will be denied as moot.
For the reasons set forth above, the Court shall grant the Secretary's Motion for Summary Judgment, deny the Secretary's Motion for Sanctions, and dismiss all three actions in their entirety. Appropriate Orders accompany this Memorandum Opinion.
