to require federal judicial review for every such error. In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action was regular and, if erroneous, can best be corrected in other ways. The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions."
607 F.2d at 638-39 (quoting Bishop v. Wood, 426 U.S. 341, 349-50, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976)) (emphasis added). Ms. Tao does not argue -- and the Court sees no evidence in the record -- that the FBI treated her differently than similarly situated applicants for promotion because of her race or her sex. To this extent, therefore, the Court is in agreement with defendants that plaintiff has failed to state an equal protection claim.
2. The First Amendment Claim
Plaintiff's First Amendment claim rests on the assertion that the FBI's decision that she must be retested before she could reapply for promotion constituted a reprisal or retaliation for her exercise of constitutionally protected rights. First, Ms. Tao contends that this decision was made in reprisal for her exercise of her right of free speech in connection with the statement, in the March 8, 1991, letter from Louis Tao to defendant Sessions, that the denial of promotions to Chinese-Americans in the LSU was discriminatory. Second, Ms. Tao contends that the decision that she alone must be retested was, in effect, retaliation for formally appealing in the first place, and as such violated her right to petition the government for redress of grievances. She claims, in short, is that she was singled out for differential treatment because she challenged the Bureau's handling of her application for promotion and raised the issue of racial or ethnic discrimination in so doing.
As a threshold matter, defendants argue that allowing Ms. Tao to reapply for a promotion by submitting new translation materials can hardly be considered "retaliation" or a denial of her right to petition the government for redress of grievances. The Court agrees and believes, moreover, that this point is dispositive of Ms. Tao's First Amendment claim. As a matter of logic, the analysis of a "Pickering cause of action," Hall v. Ford, 272 U.S. App. D.C. 301, 856 F.2d 255, 258 (D.C. Cir. 1988) (discussing the elements set forth in Pickering v. Board of Educ., 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), and its progeny), requires a showing that the public employer took some action that may be characterized fairly as adverse to the plaintiff's employment status. Thus, courts have considered retaliation claims in cases involving discharge or termination from employment, see, e.g., Rankin v. McPherson, 483 U.S. 378, 382, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987); Pickering v. Board of Educ., 391 U.S. 563, 566, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); Hall v. Ford, 856 F.2d at 257, suspension or other disciplinary action, see, e.g., Murray v. Gardner, 239 U.S. App. D.C. 212, 741 F.2d 434, 437 (D.C. Cir. 1984), cert. denied, 470 U.S. 1050, 84 L. Ed. 2d 813, 105 S. Ct. 1748 (1985), failure to hire when the applicant was otherwise well-qualified for the position, see, e.g., Hubbard v. Environmental Protection Agency, 292 U.S. App. D.C. 278, 949 F.2d 453, 455 (D.C. Cir. 1991), or demotion or reassignment from an existing position. See, e.g., Callaway v. Hafeman, 832 F.2d 414, 415 (7th Cir. 1987).
No such adverse action, not even the decision not to promote her in the first instance, is alleged by Ms. Tao to have occurred or to have constituted the retaliation against her. Instead, accepting her factual allegations as true, the FBI simply told her that she would be reconsidered for promotion when she submitted new translations and when the WMFO submitted a more specific description of her work activities at the equivalent of a GS-12 level. The Court does not believe that such a decision -- even if it could be characterized as "adverse" -- justifies triggering the inquiries under Pickering and its progeny. See Hall v. Ford, 856 F.2d at 258. To hold otherwise would fly in the face of "the common-sense realization that government offices could not function if every employment decision became a constitutional matter." Connick v. Myers, 461 U.S. 138, 143, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983) (footnote omitted).
Nor does the Court believe that the record here supports Ms. Tao's characterization that the FBI's decision on retesting in effect singled her out because she appealed and because she questioned the Bureau's promotion practices towards Chinese-American employees. That characterization depends on the assertion that her application for promotion was denied in the first instance for substantially the same reasons as the applications of Mr. Chang and Ms. Lau. While Ms. Tao's case was not as starkly dissimilar from the cases of the other two Language Specialists as defendants argue, it was not as substantially similar as she claims either. Compare Jenkins Decl. P 5 ("In both the cases of Dennis Chang and Pearl Lau, the only concern was one of accuracy of their translations of the "mystery tape") with Pl.'s Exs. 3 & 5 (indicating that omissions of relevant words and conciseness, in addition to accuracy, were problems). Rather, the record before the Court fairly reflects the conclusion that the perceived deficiencies in the Chang and Lau translations were largely ones of accuracy, while the perceived deficiencies in Ms. Tao's translations were entirely ones of conciseness and relevance. There was thus a basis -- and in the Court's opinion, a rational basis -- for treating Ms. Tao differently.
In the final analysis, Ms. Tao's case calls to mind the maxim that not every error, mistake, perceived unfairness, or slight made by a public employer rises to the level of a constitutional case meriting judicial review by a federal court. See Connick, 461 U.S. at 146-47; Bishop v. Wood, 426 U.S. at 349-50. While the Court cannot say on this record that the FBI conducted its negotiations with Ms. Tao during the course of her appeal with utter and complete propriety, the Court firmly believes that it must adhere to well-established principles and resist the constitutionalization of public sector employment law without more grounds than are presented in this case. Connick may once again be appropriately quoted here: "Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable." 461 U.S. at 146-47 (citing Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); Bishop v. Gardner, supra)) (emphasis added).
Accordingly, for the reasons stated above, the Court will enter an Order this day granting defendants' Motion to Dismiss, Or in the Alternative for Summary Judgment, denying plaintiff's Cross-Motion for Summary Judgment, and dismissing the case. Because the case is dismissed as a matter of law, the Court will also dismiss plaintiff's Motion for Rule 56(f) Discovery as moot.
GEORGE H. REVERCOMB
UNITED STATES DISTRICT JUDGE
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 808 F. Supp. 24.
ORDER - December 3, 1992, Filed
For the reasons set forth in the Court's Memorandum Opinion issued this day, defendants' Motion to Dismiss, Or in the Alternative for Summary Judgment is GRANTED, plaintiff's Cross-Motion for Summary Judgment is DENIED, and the case is DISMISSED.
The Court will also DISMISS plaintiff's Motion for Rule 56(f) Discovery as MOOT.
GEORGE H. REVERCOMB
UNITED STATES DISTRICT JUDGE
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