July, worked a few days, and then requested and received two weeks of annual leave.
When she returned from annual leave in August of 1989, her probationary period was continued through November 1, 1989, as she had been absent all but a few days of the original probationary period. The meetings resumed, but were not productive because plaintiff refused to discuss her work performance. After defendant told plaintiff that she could not have her attorney with her in the meetings nor could she bring a tape recorder, plaintiff would only respond to Bulger's concerns in writing so that she could have her attorney review her responses. On November 7, 1989, Bulger completed a performance review for the probationary period. She concluded that she could not recommend continuing plaintiff's employ as the Division Secretary. Plaintiff, on November 9, 1989, wrote a rebuttal to this evaluation. As noted above, effective December 1, 1989, plaintiff voluntarily transferred from her position as Division Secretary in HSP of the IOM to a project secretary position with the End-Stage Renal Study. On December 8, 1989, Bond wrote plaintiff a memorandum adopting Bulger's position in her November 7, 1989, evaluation.
Defendant has overwhelmingly carried its burden of articulating legitimate, nondiscriminatory reasons for its actions. The Court fully credits the testimony of Bulger that plaintiff was not fulfilling the basic secretarial tasks she expected her to perform. The Court finds that plaintiff's attempts to show that Bulger's concerns were pretextual are incredible. Plaintiff's testimony, as well as her memoranda and written notes of the meetings, show that plaintiff spent much of her time contradicting her supervisor and making excuses rather than trying to meet her supervisor's expectations and to improve her job performance. Although plaintiff's past performance ratings generally had been good, other supervisors, both before and after Bulger, had raised some of the same concerns as Bulger. The Court finds absolutely no credible evidence, if any evidence at all, of racial prejudice by Bulger or of any intent by anyone at the NAS to discriminate against plaintiff. The Court finds that Bulger made many attempts to salvage the ever-deteriorating relationship between herself and plaintiff and to help plaintiff meet her demands. Plaintiff did not cooperate with these efforts and instead decided that she was being discriminated against because of her race.
As to plaintiff's retaliation claim, plaintiff has failed to prove causation between her protected activity and the alleged harassment. First, as noted above, defendant's actions resulted because plaintiff was not adequately performing her job, not because of protected activity. Second, the timing of defendant's employment actions shows that there was no causal link. Plaintiff claims that her relationship with Bulger began to deteriorate shortly after she testified at the OHR hearing on behalf of a co-worker in November of 1988. The proof at trial, however, showed that plaintiff's relationship with Bulger was, at the very least, strained by as early as June of 1988. The Court finds no evidence that Bulger's treatment of plaintiff was caused by plaintiff's testimony.
In addition, the Court finds that Bulger did not know of plaintiff's testimony until August 1, 1989, at which time plaintiff had already been placed on probation.
Likewise, plaintiff's filing of her own complaint in March of 1989 occurred after Bulger had initiated the actions of which plaintiff complains. In addition, as noted above, neither Bulger nor Stoll knew of plaintiff's protected activity until July 27, 1989, when Bulger received a letter from plaintiff in which plaintiff mentioned her complaint of retaliation and discrimination.
In fact, no one at the NAS learned of plaintiff's complaint until May 15, 1989, the date the NAS received a copy of the complaint. Even by this earlier date, plaintiff had already been placed on probationary status and her working relationship with Bulger was extremely strained. Therefore, the Court finds that there is no reliable evidence that the "harassment" or transfer of plaintiff was caused by her protected activity.
Looking at the situation in retrospect, the Court believes that plaintiff made a greater effort to document that she had a discrimination complaint than she did to address the legitimate concerns of her supervisor. To once again quote the late Judge Gesell, "United States District Court Judges are not personnel officers." Nance v. Librarian of Congress, 661 F. Supp. 794, 800 (D.D.C. 1987). Often, Title VII is "misused in a futile attempt to resolve what are essentially problems attributable to insensitive personnel management, not to discrimination." Id. at 798. In this case, management, far from being insensitive, went to extraordinary lengths to remedy the situation. For her failure to perform the job adequately, her supervisor placed her on probation and eventually recommended her termination. Instead of being terminated, she was offered, and accepted, another position with a one level reduction but the same salary. This is not discrimination.
Finally, plaintiff claims that she was discriminated against due to her race and retaliated against because of her protected activity when she was eventually terminated from her position with the NAS on May 31, 1991. The Court finds this claim specious. When plaintiff transferred to the End-Stage Renal Study, she knew that the position expired when the funding for the study ended, which occurred on March 15, 1991.
Plaintiff was in the same position as every employee on the study, including her supervisor, Dr. Richard Rettig. When the funding expired, each had to find another position, whether inside the NAS or out. Rettig found another position, and would have taken plaintiff with him, except that his new position did not have a secretary. Plaintiff claims that the discrimination and retaliation are shown, in part, by the fact that Bond did not find her another position. The Court rejects this contention. As noted, the NAS generally hired people in two ways: by an advertised application process or by promoting qualified people from within a particular unit. Bond provided plaintiff with an extra 75 days of employment in which to search for a new position. Plaintiff applied for only two openings at the NAS out of at least eleven openings at the grade 8 and grade 9 levels between January 14, 1991, and plaintiff's termination in May. She was not selected for either of these positions: one was a senior marketing assistant and the other was an administrative secretary/senior program assistant. The record is devoid of credible evidence suggesting that plaintiff's inability to continue employment at the NAS was due to racial discrimination or retaliation. Rather, the Court finds that plaintiff was not able to find employment because she did not make sufficient efforts to obtain it.
Accordingly, for the reasons stated above, the Court finds that the reliable evidence in this case clearly indicates that there was no discriminatory intent, or retaliatory motive, on the part of defendant in any of the employment actions involving plaintiff. Therefore, the Court finds for defendant on all of plaintiff's claims.
Stanley S. Harris
United States District Judge
Date: MAR 25 1993
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 816 F. Supp. 774.
ORDER - March 25, 1993, Filed
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that the Clerk of the Court shall enter judgment for defendant on all counts of plaintiff's complaint.
Stanley S. Harris
United States District Judge
Date: MAR 25 1993