The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
MEMORANDUM OPINION (August 25, 2005)
Pending before the Court is Defendant's Motion for Summary
Judgment.*fn1 Plaintiff brings claims of race and gender
discrimination and retaliation under Section 717 of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. and
Sections 501 and 504 of the Rehabilitation Act of 1973,
29 U.S.C. §§ 791 and 794a. Plaintiff alleges that she was subjected to
discrimination and retaliation when she was: "verbally assaulted"
in the workplace, Compl. ¶ 7.a; wrongfully referred to the
Federal Bureau of Investigation's ("FBI") Office of Professional
Responsibility ("OPR") for misconduct, Id. ¶¶ 7.b, 8-10; given
what she perceives as undesirable or unreasonable assignments and
"embarrassed" in the presence of her colleagues, Id. ¶ 7.d-e;
denied an opportunity to work as the acting chief in her
supervisor's temporary absence, Pl.'s Opp'n at 3, 14; failed to
receive a performance appraisal on one (1) occasion and was
"downgraded" on another, Compl. ¶ 7.d; denied reasonable
accommodation, Id. ¶ 7.g; denied two (2) requests for temporary duty and assignments, Supplement
to Compl. ("Supp. to Compl.") ¶¶ 2-4; and had her official duty
station changed, Id. ¶¶ 5-7. Plaintiff also claims that she was
subjected to a hostile work environment, id. ¶ 7 and that the
allegations in her Complaint constitute a modified version of the
traditional "pattern or practice" claim because she was subjected
to disparate treatment vis-à-vis similarly situated white males
in the FBI when punished through the OPR process. Id. ¶ 11;
Pl.'s Opp'n at 43 n. 22.
After carefully considering the Defendant's motion, Plaintiff's
Opposition, Defendant's Reply, Plaintiff's Surreply, the
submitted exhibits, and the relevant case law, the Court shall
grant Defendant's Motion for Summary Judgment.*fn2
The Court begins its discussion of the facts by noting that
this Court strictly adheres to the text of Local Civil Rule 56.1
(identical to Local Civil Rule 7(h) (formerly Rule 7.1(h)). The local rules for summary judgment "assist? the district court to
maintain docket control and to decide motions for summary
judgment efficiently and effectively." Jackson v. Finnegan,
Henderson, Farabow, Garret & Dunner, 101 F.3d 145, 150 (D.C.
Cir. 1996). "Requiring strict compliance with the local rule is
justified both by the nature of summary judgment and by the
rule's purposes. . . . The procedure contemplated by the rule
thus isolates the facts that the parties assert are material,
distinguishes disputed from undisputed facts, and identifies the
pertinent parts of the record." Id. (quoting Gardels v. CIA,
637 F.2d 770, 773 (D.C. Cir. 1980). "[A] district court should
not be obliged to sift through hundreds of pages of depositions,
affidavits, and interrogatories in order to make [its] own
analysis and determination of what may, or may not, be a genuine
issue of material fact." Id. (quoting Twist v. Meese,
854 F.2d 1421, 1425 (D.C. Cir. 1988)). As such, in resolving the
present summary judgment motion, this Court "assumes that facts
identified by the moving party in the statement of material facts
are admitted, unless such a fact is controverted in the statement
of genuine issues filed in opposition to the motion." LCvR 56.1;
7(h). The Court also cites directly to the record, where
appropriate, to provide additional information not covered in
either of the parties' statements.*fn3 Plaintiff Marian L. Moore, an African-American female, began
working for the FBI in 1967. Def.'s Ex. 2 (12/17/02 Moore Dep.)
at 9:24. In 1975, Plaintiff became a Fingerprint Specialist in
the Latent Fingerprint Section of the FBI's Laboratory Division
("Laboratory Division" or "LD"), where she worked for 19 years,
until 1994. Id. at 10:12-10:13, 12:2-12:5. Plaintiff reached
the GS-12 pay level in 1985. Id. at 12:10. In 1987, Plaintiff
and her twin sister, who was also a fingerprint specialist, began
to complain of respiratory problems.*fn2 Def.'s Ex. 1
(02/24/95 Ahlerich Mem.) at 2. Beginning in March 1993, the FBI
attempted to find other positions within the LD where Plaintiff
could be assigned. Id. at 6. As part of that effort, in July,
1994, the FBI recommended that Plaintiff be assigned to a GS-12
Management Analyst position in the Administrative Unit of the
Laboratory Division ("Administrative Unit" or "AU"), id. at 10,
and on March 17, 1995, the recommendation was implemented. Id.
at 12. Plaintiff has never requested that she be returned to her
position in the Latent Fingerprint Unit, and has served as a
Management Analyst since April 1995. Def.'s Ex. 2 (12/17/02 Moore
Dep.) at 52:22-53:2.
In 1993 and 1994, Plaintiff filed formal complaints of
discrimination with the FBI's Office of Equal Employment
Opportunity Affairs. Id. at 24:7-24:8. The 1993 claim alleged discrimination on the basis of sex, race and disability, and was
brought against managers in the Latent Fingerprint Section. Id.
at 24:9-24:24. The 1994 claim was identical to the 1993 claim
except that it added a claim of retaliation. Id. at 28:5-28:12.
Plaintiff filed a civil action in this District Court in July
1996, alleging discrimination on the basis of sex, race and
disability (physical rhinitis) as well as retaliation for having
filed the discrimination complaints. Compl. ¶ 6. Plaintiff's case
was settled on March 10, 1998, and Plaintiff stipulated to the
settlement of all claims she had on or before March 10, 1998.
Def.'s Ex. 3 (Stipulation of Settlement and Dismissal, Moore v.
Reno, Civil No. 96-1627 HHG (D.D.C.)). As part of the
settlement, Plaintiff was promoted to GS-13. Id. ¶ 3.
In January 1999, the Administrative Unit was divided into two
(2) units: the Finance Unit and the Human Resources Unit. Def.'s
Mot. for Summ. J. at 3; Pl.'s Opp'n at 6. Plaintiff was assigned
to the Human Resources Unit where she continued to work as a
Management Analyst. Def.'s Ex. 2 (12/17/02 Moore Dep.) at
54:18-56:7. Plaintiff's primary duties "consisted of posting
merit vacancy notices, evaluating applicants and doing staffing
duties, which at times also included conducting studies and doing
research, but mostly posting vacancy notices." Id. at
56:4-56:7. Ms. Janet Cantamessa was designated Unit Chief ("Unit
Chief" or "UC") of the Human Resources Unit in January 1999, and
joined the unit in April 1999. Def.'s Ex. 4 (01/25/99 Mem. from
Laboratory to Director's Office). Ms. Cantamessa's assignment was
a lateral transfer from the FBI's Information Resources Division
("Information Resources Division" or "IRD"), where she had been
the Personnel Management Unit Chief. Def.'s Ex. 4 (01/25/99 Mem.
from Laboratory to Director's Office); Def.'s Ex. 5 (01/17/02
Cantamessa Dep.) at 11:17-18:21; Def.'s Mot. for Summ. J. at 4.
Ms. Cantamessa held a similar position in the FBI's Criminal Division from 1991-1996. Def.'s Ex. 4 (01/25/99
Mem. from Laboratory to Director's Office); Def.'s Ex. 5
(01/17/02 Cantamessa Dep.) at 19:7-19:10. In April 1999, Ms.
Cantamessa became Plaintiff's supervisor, as well as her rating
official for purposes of her performance evaluations. Def.'s
Stmt. of Material Facts not in Dispute ("Def.'s Stmt.") ¶ 56.
A. September 1999 Incident
On September 8, 1999, Plaintiff was asked by Ms. Cantamessa to
draft an electronic communication ("EC") regarding the grant of
leave to the agency's administrative employees who had been
deployed to Kosovo. See Pl.'s Opp'n at 7; Def.'s Ex. 27 (OPR
Materials) at 5; Pl.'s Ex. 11 (9/9/1999 Memo from Ms. Cantamessa
to Plaintiff) at FBI-1008-09; Pl.'s Ex. 11 (9/13/99 Memo from
Plaintiff to Mr. DeVincentis) at FBI-1010-12. Ms. Cantamessa
provided Plaintiff a previously published EC, and asked Plaintiff
to make minor administrative changes to the document and the
substantive change of making a two (2) day administrative leave a
three (3) day administrative leave. Id. After Mr. Cantamessa
sought a status report regarding Plaintiff's progress on the
assignment the following day, Plaintiff informed her that she
could not complete the assignment because she was provided
limited information and would not do the EC unless told
specifically what it should say. Id. A disagreement then
erupted between Plaintiff and Ms. Cantamessa after Ms. Cantamessa
advised Plaintiff that, given her GS-13 level, she should be able
to complete the assignment without direct supervision, and noted
that she considered Plaintiff's performance to be at an
unacceptable level. Id. According to Ms. Cantamessa, and
undisputed by Plaintiff, "At this point, Ms. Moore became
agitated, came close to me, pointing her finger and raised her
voice while stating that she does not do anything without
specific and clear instruction and doesn't like her competence
questioned." Def.'s Ex. 27 (OPR Materials) at 5. Ms. Cantamessa then asked Plaintiff to lower her voice and
stop pointing her finger; Plaintiff refused, and stated that she
would not complete the Kosovo Deployment EC task. Id. Ms.
Cantamessa then reassigned the task, documented the incident, and
informed her Section Chief. Id.
On September 10, 1999, Ms. Cantamessa attempted to counsel
Plaintiff regarding her refusal to complete the assignment. Id.
at 6. During this session, Ms. Cantamessa asked Ms. Kimberly
Hawkins, Plaintiff's former supervisor and a GS-14 Supervisory
Management Analyst, to witness the session. Id.; see also
Def.'s Ex. 17 (Hawkins Stmt.) at 1; Def.'s Ex. 22 (Thurman Stmt.)
at 1. During the counseling session, Plaintiff became upset over
the issue of her competence and over the presence of Ms. Hawkins.
Id. After she became upset, Plaintiff abruptly left the room,
pausing to state to Ms. Cantamessa, ". . . go ahead and keep
pushing me because I promise that if you keep pushing I will push
and push you harder and you have a witness who heard me say
that." Id. Ms. Cantamessa interpreted Plaintiff's statements as
a "threat." See Def.'s Ex. 27 (OPR Materials) at 6. Ms. Hawkins
recalled that on the whole, "I did not think that Ms. Moore's
language was disrespectful but her demeanor was confrontational
particularly as she departed." Def.'s Ex. 17 (Hawkins Stmt.) at
2. Ms. Hawkins agreed with Ms. Cantamessa's recollection of
Plaintiff's exiting statement, and "interpreted" her words "to be
threatening" as well. Id.*fn3 After two (2) days, Ms.
Cantamessa met with Plaintiff again, and they were able to foster
an amicable understanding regarding the need to cooperate and
work as a team. Def.'s Ex. 15 (Cantamessa Stmt.) at 3.
A subsequent Office of Civil Rights ("OCR") investigation of
this incident concluded that Plaintiff had unprofessionally
raised her voice and made what was perceived to be a threatening
statement. Def.'s Stmt. ¶ 21.
B. February 2000 Incident
On February 25, 2000, Plaintiff was assigned the task of
preparing a vacancy announcement for a secretarial position in
the Laboratory Division. Def.'s Stmt. ¶ 1. On February 28, 2000,
Plaintiff and Ms. Cantamessa discussed the vacancy posting at
Plaintiff's cubicle and had a disagreement over how the posting
should be "effectuated." Id. ¶ 2. Specifically, Plaintiff and
Ms. Cantamessa clashed over two details. First, Ms. Cantamessa
believed that the vacancy posting could be prepared and developed
because another individual (Mr. Wempy) was leaving the Unit,
meaning that the Unit would not be over the ceiling for number of
employees once the posting was effectuated. See Def.'s Ex. 5
(01/17/02 Cantamessa Dep.) at 97:2-101:9. Plaintiff, on the other
hand, felt that she should not begin work on the posting because
the posting request had not been approved yet by the Unit Chief
due to the fact that Mr. Wempy had not yet left the Unit and
therefore still counted towards the final ceiling totals. See
Def.'s Ex. 9 (Moore Stmt.) at 2-3. Second, Ms. Cantamessa felt
that since Plaintiff had access to the information needed to fill
out the form, Plaintiff could complete the form herself and then
get the Unit Chief to sign it. Pl.'s Ex. 6 (01/17/02 Cantamessa
Dep.) at 101:4-101:9. In contrast, Plaintiff asserted that it was
the Unit Chief's responsibility to fill out the form. Def.'s Ex. 9 (Moore Stmt.) at 3.*fn4
As this discussion began, Ms. Cantamessa was standing next to
Plaintiff's desk, where Plaintiff was seated, and was more than
an arm's length away. Def.'s Ex. 5 (01/17/02 Cantamessa Dep.) at
110:10-111:9. During their discussion, Ms. Cantamessa once again
reminded Plaintiff of her job grade level (GS-13), Pl.'s Ex. 6
(01/17/02 Cantamessa Dep.) at 102:9-102:17, in order to suggest
that she expected an employee at that level to work independently
and be flexible so that she made the job of managers easier in
doing personnel work, not more complicated. Pl.'s Ex. 6
(Cantamessa Dep.) at 102:18-103:1; Def.'s Ex. 9 (Moore Stmt.) at
Plaintiff took exception to Ms. Cantamessa's
reference to her grade level, and stated that she was tired of
Ms. Cantamessa questioning her competence. Def.'s Ex. 5 (01/17/02
Cantamessa Dep.) at 104:6-7; Def.'s Ex. 9 (Moore Stmt.) at 3. It
is uncontested that at this point, Plaintiff stood up to confront
Ms. Cantamessa. According to Ms. Cantamessa,
Ms. Moore rose quickly out of her chair and
approached me in a threatening manner. She
frighten[ed] and intimidated me as she is much taller
than me. Ms. Moore leaned towards my face and screamed that she
would not fill out the form in question. I asked her
to return to her seat and comport herself
Def.'s Ex. 15A (Cantamessa Stmt.) at 6; see also Def.'s Ex. 27
(OPR Materials) at 2 (noting that Ms. Cantamessa's statement
comported with her contemporaneous documentation of the incident
on 2/27/00) ("Ms. Moore, at this point, jumped out of her chair
(I was standing next to her desk) and moved extremely close to me
saying in a loud voice, her I go again, questioning her
skills."); Def.'s Ex. 2 (12/17/02 Moore Dep.) at 105:17-20 ("I
pushed my chair out and stood up, and at that time she told me to
get out of her face, and after that point and I think I may
have made a statement to her saying, no, you get out of my
face."). Two fellow employees heard this incident from their
neighboring cubicles, and entered later statements supporting Ms.
Cantamessa's version of events. Ms. Freda Hyatt, a GS-11
Management Analyst, heard the incident from her cubicle and found
Plaintiff's voice to be "loud and unprofessional." Def.'s Ex. 18
(Hyatt Stmt.) at 1. Ms. Cynthia Merrill, a GS-13 Management
Analyst, noted that:
. . . There was a question about a form to which the
UC [Ms. Cantamessa] explained that Ms. Moore could
fill out the form herself. Ms. Moore did not think it
was her responsibility. Ms. Moore's voice was
assertive and angry. I heard the UC say that, "You're
a GS-13 you should be able to do this work." Ms.
Moore replied that, "You're always throwing that in
I also heard the UC say, "Don't get in my face," and
"I'll take care of it myself." The UC then walked
away. Though I recall that the UC had raised her
voice, it was in response to Ms. Moore's
confrontational voice and her conduct.
Def.'s Ex. 16 (Merrill Stmt.) at 2; see also Pl.'s Ex. 6
(01/17/02 Cantamessa Dep.) at 104:15-18 ("I did not yell, but I
may have said it very sternly."). Ms. Heller, a GS-11 analyst,
also overheard the confrontation, and thought that "both UC
Cantamessa and Ms. Moore exhibited unprofessional behavior."
Def.'s Ex. 19 (Heller Stmt.) at 2. Believing that Plaintiff approached her in an inappropriately
aggressive manner, Ms. Cantamessa subsequently decided to report
the incident to the FBI's Office of Professional Responsibility
("OPR"). Def.'s Stmt. ¶ 3. The action was taken because Ms.
Cantamessa felt it was important to take measures to maintain
control of the Unit and to demonstrate that what she considered
unprofessional and disruptive conduct would not be tolerated.
Def.'s Ex. 5 (01/17/02 Cantamessa Dep.) at 115:10-117:5. On March
10, 2000, OPR notified the Laboratory Division that it had begun
an inquiry into Ms. Cantamessa's allegation that Plaintiff had
acted unprofessionally and disrupted the workplace by attempting
to physically threaten her and failing to perform a work
assignment as instructed by her supervisor. Def.'s Stmt. ¶ 4. The
communication requested that the Laboratory Division provide
Plaintiff with a copy of the notification and advise her of
certain rights to which she was entitled. See Def.'s Ex. 10
(3/10/05 OPR Notification) at 1. This directive was effectuated
on March 23, 2000, when Mr. Keith DeVincentis Ms. Cantamessa's
supervisor and the Section Chief of the Investigative Support
Section, Laboratory Division acted as the presenting official
and provided Plaintiff the communication. Id.; Def.'s Ex. 11
(DeVincentis Stmt.) at 9.
On March 20, 2000, OPR requested that the Laboratory Division
investigate the allegations in Ms. Cantamessa's referral. Def.'s
Stmt. ¶ 5. The Laboratory Division was directed to interview
Plaintiff's supervisor, any other witnesses having knowledge of
the allegations, and Plaintiff herself. Id. The relevant OPR
investigative guidelines instructed that all interviews of FBI
employees must be reported in the form of a typed, signed sworn
statement. See Def.'s Ex. 13 (Conducting OPR Investigations) at
1. The Laboratory Division assigned Unit Chief Robert Laughlin to
conduct the OPR investigation. Def.'s Stmt. ¶ 6. After Mr.
Laughlin had begun his investigation and collected a number of statements, the
investigation was taken over by William Warner, who interviewed
Plaintiff on April 12, 2000. Id. ¶ 8.
At the April 12, 2000 interview, Plaintiff provided Mr. Warner
with an unsigned four (4)page typewritten document entitled
"Statement of Marian L. Moore," and supporting documentation.
Def.'s Stmt. ¶ 9; Def.'s Ex. 25 (Unsigned Moore Stmt.). Mr.
Warner felt that the statement only vaguely addressed the
allegations in question and considered the accompanying
documentation unrelated to resolution of the issues. Id. Mr.
Warner asked Plaintiff to give her account of the allegations
that had been raised by the referral and that had been addressed
by other witnesses who provided statements. Id. ¶ 10. After the
conclusion of the interview, Mr. Warner gathered together his
notations from his discussion with Plaintiff and crafted a new
statement that attempted to comport with her views by 2:15 p.m.
on April 12, 2000. See Def.'s Ex. 24 (4/28/00 Warner FD-302) at
1-6. Due to time pressures caused by Plaintiff's work schedule,
Mr. Warner scheduled a meeting on April 18, 2000, in order to
review this prepared statement with Plaintiff, with Ms. Alicia L.
Brew acting as a witness. Id. Following her review, Plaintiff
"made numerous comments about [the statement] to include the fact
that she did not agree with the `composition' of the statement.
She said its merely another person's version of what she said."
Id. at 6. Despite the fact that Mr. Warner went over each
paragraph with her and offered to make all the changes to the
document that Plaintiff had requested, Plaintiff continued to
refuse to sign the document because it had been drafted by
someone other than herself; Plaintiff emphasized that she
preferred her own "composition." Def.'s Stmt. ¶ 10; Def.'s Ex. 24
(4/28/00 Warner FD-302) at 1-6 (Plaintiff refused to sign both
before and after the lunch break on April 18, 2000). When told
that her original statement did not directly address the allegations against her, Plaintiff
simply disagreed and refused to accept any revised statement.
Id. at 7.
On May 2, 2000, Mr. Warner submitted a summary of his
investigation to OPR. Def.'s Stmt. ¶ 11. Warner recommended that
Plaintiff receive a five (5)-day suspension and a probationary
period not to exceed six (6) months. Id. On May 24, 2000, the
matter was referred to the OPR Adjudication Unit "for review and
appropriate action." Id. ¶ 12. The Adjudication Unit completed
its review of the matter on October 31, 2000. Id. ¶ 13. It
found that Plaintiff "acted unprofessionally during the February
28, 2000 incident by raising her voice and acting in a manner
that Ms. Cantamessa found to be physically threatening." Id. ¶
14 (quoting Def.'s Ex. 27 (OPR Materials, Addendum: OPR
Adjudication Unit II) at 16.
The Adjudication Unit noted that Plaintiff denied raising her
voice, but found her contention was refuted by the recollections
of two (2) other employees in addition to Ms. Cantamessa. Id. ¶
15. It also recognized that Ms. Canatmessa's instruction to
Plaintiff to complete the Vacancy Posting Request Form arguably
was not a "legitimate instruction by a superior to a subordinate"
because it contradicted Laboratory Division policy governing
vacancy postings. Id. ¶ 20. The Adjudication Unit found,
however, that Plaintiff's "actions and extreme reaction to UC
Cantamessa exercising her supervisory authority were highly
unprofessional and indicative of a verbal altercation," and
violated the standards of conduct mandated by FBI regulations.
Id. ¶ 18. The Adjudication Unit further determined that Ms.
Cantamessa's perception that she was being physically threatened
on February 28, 2000 was reasonable in view of Plaintiff's
confrontational history with Ms. Cantamessa and others in the
Human Resources Unit, the fact that Plaintiff is "physically more
imposing" than Ms. Cantamessa, and the fact that the confrontation occurred within the confines of a cubicle.
Id. ¶ 16.
The Adjudication Unit did not find that Plaintiff was
insubordinate during the February 28, 2000 confrontation with Ms.
Cantamessa, id. ¶ 19, or that Plaintiff intended to intimidate
or threaten Ms. Cantamessa. Id. ¶ 17. It summarized that:
[I]t is quite clear that [Plaintiff] overreacted to
the situation and acted in a manner UC Cantamessa
found frightening. She also adversely affected her
co-workers by noisily disrupting the workplace and by
forcing UC Cantamessa to select another employee to
complete her work.
[Plaintiff's] unreasonable reactions to work
assignments were not limited to the unprofessional
behavior and insubordination discussed above. In
September 1999, she loudly and angrily confronted UC
Cantamessa about a Kosovo deployment EC. At that time
she pointed her finger at UC Cantamessa and again
unprofessionally raised her voice to her. Moreover,
[Plaintiff] said, "go ahead and keep pushing because
I promise that if you keep pushing I will push and
push you harder." In addition to UC Cantamessa, a
witness also perceived this to be a threat. This
confrontational scene once again resulted in a
co-worker completing the assignment because
[Plaintiff] refused to do so. [Plaintiff]'s failures
to handle assignments believed to be well within her
range of expertise and grade level resulted in
counseling by UC Cantamessa. Moreover, by disrupting
the workplace and adversely affecting the Unit,
[Plaintiff] violated all of the [FBI regulations]
previously cited above with respect to her
unprofessional conduct on February 27-28, 2000.
Def.'s Ex. 27 (OPR Materials, Addendum) at 18-19.
C. Adjudication Unit's Disciplinary Action
To determine the appropriate disciplinary measures for
Plaintiff's misconduct on February 28, 2000, the Adjudication
Unit reviewed relevant precedent cases. Def.'s Stmt. ¶ 22. OPR
categorizes employee misconduct into Offense Codes. Id. ¶ 23.
OPR reviewed precedent cases with the following Offense Codes: 5A
Verbal Altercations; 38 J, Unprofessional Conduct Not Otherwise
Specified; and 19C, Insubordination Belligerent, Threatening,
and Abusive Behavior. Id. In surveying the precedent cases, OPR
found that [m]ost employees who engaged in verbal altercations
in the workplace, acted unprofessionally in the
workplace, or were insubordinate to their supervisor,
received a letter of censure. However, when the case
was more aggravating because it was the employee's
second offense or the employee had been previously
counseled or had a history of insubordination, they
received probation along with their censure or were
suspended and placed on probation.
Def.'s Ex. 27 (OPR Materials, Addendum) at 19 (internal citations
omitted); Def. Stmt. ¶ 24.
The OPR analogized Plaintiff's case to a precedent case in
which an employee failed to attend to her duties on two (2)
occasions, causing her co-workers to cover for her; engaged in
loud and disrespectful conduct on another occasion; and
undermined her supervisor's authority by making derogatory
comments. Def.'s Stmt. ¶ 25. The employee in that case received a
ten (10) day calender suspension without pay and six (6) months
of probation. Id. The Adjudication Unit noted that Plaintiff's
situation is similar in several respects. [Plaintiff]
refused to complete her assigned duties for which her
co-workers had to cover for her. When she asserted
that she had not been given sufficient information to
complete tasks, she loudly, disrespectfully, and
rudely comported herself and disrupted the Unit. She
wrongfully challenged her supervisor and acted
confrontational towards her. Her unprofessional
conduct and challenging attitude toward Cantamessa
disrupted and arguably demoralized the Unit overall.
Thus, it appears that [Plaintiff] engaged in
misconduct similar to the employee [in the cited
Def.'s Ex. 27 (OPR Materials, Addendum) at 20. Further informing
the Adjudication Unit's decision was its finding that Plaintiff's
credibility was undermined by (1) her failure to sign both her
statement and the statement prepared by Mr. Warner and (2) her
initial refusal to answer a direct question about her conduct
during the Kosovo EC incident in September 1999. Def.'s Stmt. ¶
25; Def.'s Ex. Ex. 24 (4/28/00 Warner FD-302) at 2-3; Def.'s Ex.
27 (OPR Materials) at 20-21. Based on those aggravating factors and the precedent cases, the
Adjudication Unit recommended that Plaintiff be suspended for
three (3) calender days without pay and placed on probation for
one (1) year. Def.'s Stmt. ¶ 26. Plaintiff appealed the OPR's
decision to the FBI's Inspection Division on July 3, 2001. Def.'s
Ex. 30 (Moore Letter to Inspection Division). By letter dated
October 23, 2001, the OPR's decision was affirmed. Def.'s Ex. 31
(Letter from Thomas Bernard Locke to Plaintiff). Plaintiff's
suspension commenced at the close of business Friday June 9,
2001, and therefore covered only one (1) work day Monday, June
12, 2001. Def.'s Ex. 29 (SF-50 Notice of Personnel Action).
Plaintiff's one (1) year probation began on Tuesday, June 13,
2001 upon return from her suspension. Def.'s Ex. 27 (OPR
Materials) at 8.
D. Plaintiff Seeks Assistance From FBI Ombudsman
As a result of what she considered to be "hostile and adverse
working conditions created by Ms. Cantamessa," Plaintiff sought
the assistance of the FBI's Ombudsman office and Equal Employment
Opportunity ("EEO") Counselor Mr. Jerome Simpson at some point
during her disciplinary process. Def.'s Stmt. ¶ 27 (quoting
Def.'s Ex. 2 (12/17/02 Moore Dep.) at 57:9-57:18).*fn6 Ms.
Allyson Simons, Deputy Assistant Director of the Laboratory
Division, convened a meeting on July 18, 2000 to address the situation; attending the
meeting were Ms. Simons, Ms. Zeigler, Mr. Simpson, Ms.
Cantamessa, Plaintiff, and her twin sister, Ms. Ferguson. Id.;
see also Def.'s Ex. 32 (7/19/00 FBI TDY for Plaintiff and her
sister); Def.'s Ex. 33 (Plaintiff's Chronology). The next day, as
requested at the meeting by Plaintiff, Plaintiff and her sister
were granted a request for a temporary duty assignment ("TDY")
with the Information Evidence Management Unit ("IEMU") and were
assigned to a new work space to begin on July 24, 2000, under the
instruction of IEMU Unit Chief Mark Olson. Id. ¶ 28.*fn7
Apparently happy with this outcome, Plaintiff expressed her
appreciation to the July 18, 2000 meeting participants:
I would like to thank each of you for your
objectivity, consideration and assistance in the
matter surrounding the TDY to the Information &
Evidence Management Unit (IEMU). I was allowed to
voice my opinion and position, consideration was
given to my request and action was taken. I realize
the entire matter has not been resolved.
Def.'s Ex. 34 (07/25/00 Email from Moore to Simons, et. al). By
communication dated July 25, 2000, Mr. Olston informed Plaintiff and her sister of
their responsibilities during the IEMU TDY, which were to include
eliminating backlogged leads in the FBI's Automated Case Support
system. Def.'s Ex. 35 (7/25/00 Olson Mem.).
On August 17, 2000, the FBI Director's Office announced a
reorganization that mandated the reassignment of all FBI
Headquarters Information Technology personnel, equipment, and
programs to the Information Resources Division by October 1,
2000. Def.'s Stmt. ¶ 30. On August 25, 2000, in response to the
Director's mandate, the Laboratory Division identified personnel
who would be transferred to the Information Resources Division.
Id. ¶ 31. Because of her ongoing TDY to IEMU and her stated
interest in work related to information technology, Plaintiff and
her sister were included on the list of Laboratory Division
employees to be transferred to the Information Resources
On September 26, 2000, the Information Resources Division
announced the organizational and reporting lines of Information
and Technology personnel assigned to the Information Resources
Division. Def.'s Stmt ¶ 32. Plaintiff and her sister were
identified as employees to be assigned to the Laboratory
Automation Support Unit ("LASU") under the supervision of Unit
Chief Mr. Mark Olson. Id. Mr. Olson expressed concern that
Plaintiff and her sister were classified as Management Analysts,
not Computer Specialists, and therefore did not possess the
qualifications needed to work in his unit. Id. ¶ 33. Mr. Olson
therefore requested that the Administrative Services Division
rescind the transfer and that Plaintiff and her sister be
returned to the Laboratory Division. Id. ¶ 34.*fn8 The
Administrative Services Division reestablished Plaintiff's and her sister's Management Analyst
positions in the Laboratory Division effective December 17, 2000.
Def.'s Ex. 54 (12/08/2000 Mem. from Administrative Services to
IRD). On January 12, 2001, Mr. Olson informed Plaintiff and her
sister of the reassignment and notified them that they should
report to Ms. Cantamessa on January 16, 2001. Def.'s Ex. 41
(01/12/01 Email from Olson to Moore).
In September or October 2001, Plaintiff volunteered her
services to the FBI's Language Training and Assessment Unit
("LTAU") to develop a database to track the testing and
processing of over 1,500 FBI applicants with Arabic language
skills. Def.'s Stmt. ¶ 35. Following completion of the project,
LTAU asked Plaintiff if she could be temporarily assigned to the
unit to perform additional database functions. Id. ¶ 36.
Plaintiff's interest in a TDY to LTAU came to the attention of
Ms. Cantamessa, who was supportive of the idea. Id. ¶ 37. On
November 28, 2001, Plaintiff conveyed her acceptance of the TDY,
but claimed that a Memorandum of Understanding ("MOU") between
the divisions was required before the TDY could be implemented.
Id. ¶ 38.
Plaintiff's support for her claim that an MOU was required is a
September 19, 2001 communication from the FBI's Administrative Services Division.
Id. at ¶ 39; Def.'s. Ex. 44 (Mem. from Administrative Services
to All Divisions). But that communication does not impose an MOU
requirement for TDYs with a duration of less than ninety (90)
days like the one Plaintiff was seeking. Id. On December 18,
2001, Plaintiff advised Language Services that, "I can no longer
perform volunteer work (TDY) on the Language Testing Program
database project. The Laboratory Division did not formalize the
TDY assignment." Def.'s Stmt. ¶ 41 (quoting Def.'s Ex. 46
(12/18/01 Email from Moore to Maria Brau, et. al.)).*fn9
F. Office Of The Ombudsman TDY
Around June 2002, Plaintiff and FBI Ombudsman Ms. Sarah Zeigler
discussed the possibility of Plaintiff performing a TDY in the
Office of the Ombudsman. Def.'s Stmt. ¶ 42. Ms. Ziegler's office
had a need for an automated system to track the cases it worked
on and an employee in the office thought that Plaintiff had the
expertise to create the needed database. Id. Either before or
shortly after Plaintiff began assisting the Office of the
Ombudsman, Ms. Zeigler spoke with Ms. Pamela Sauer, Plaintiff's
supervisor at the time, about the TDY. Id. ¶ 43. Ms. Sauer did
not object to Plaintiff helping with the system, but wanted her
to remain available to perform assignments from Ms. Sauer's unit.
Id. ¶ 44. On August 26, 2002, Plaintiff communicated with Ms. Sauer about
formalizing the temporary duty arrangement with the Office of the
Ombudsman. Id. ¶ 45. Ms. Sauer advised Plaintiff that the
person making the TDY request needed to prepare any MOU that
would be required for the TDY. Id. Plaintiff relayed this to
Ms. Zeigler, who then asked Plaintiff to draft the MOU. Id. ¶
45. Plaintiff then contacted the FBI's Performance Recognition
and Awards Unit ("PRAU") regarding the MOU requirement. Id. ¶
46. Plaintiff informed Ms. Zeigler that PRAU had told her that an
MOU was not necessary and that all that was required was a
communication ("EC") documenting the assignment. Id. Plaintiff
offered to draft the EC and provided a draft EC to Ms. Zeigler on
August 26, 2002. Id. The draft was for a TDY of an 18-20 month
duration, a period proposed by Plaintiff which roughly
approximated the time she had left until she was to retire from
the FBI. See Def.'s Ex. 53 (Ombudsman Docs.) at 2-4; Def.'s Ex.
47 (01/14/03 Zeigler Dep.) at 52-53. However, Plaintiff never
presented the EC or any other formal request to any Laboratory
Division Management official, to include Mr. Hildebrand, Ms.
Cantamessa, or Ms. Sauer, prior to her transfer to Quantico.
Id.; see also Def.'s Ex. 2 (12/17/02 Moore Dep.) at 77:10-15.
G. Change of Duty Station
On September 5, 2002, before Plaintiff presented the required
EC to any Laboratory Division managers for the TDY to the Office
of the Ombudsman, she was notified that her duty station was
being transferred to the new Laboratory Division facility at the
FBI Academy in Quantico, VA. Def.'s Stmt. ¶¶ 47-48. On September
13, 2002, Plaintiff accepted the change of duty station and
acknowledged that she was expected to report to Quantico on
October 7, 2002. Id. ¶ 49. In accepting the change of duty to
Quantico, Plaintiff handwrote on the margins of her acceptance form that she expected to "be granted permission to
accept a TDY to the office of the ombudsman for a period of 18 to
20 months." Def.'s Ex. 50 (Doc. Indicating Pl.'s Acceptance of
Change of Duty Station).
Decisions about when employees of the Laboratory Division were
reassigned to the new facility were dictated by the construction
schedule of the new facility. Def.'s Stmt. ¶ 50. Employees were
generally given change of duty notices as their space in the new
facility neared completion and as their responsibilities at FBI
Headquarters in Washington diminished or the quality of work in
Quantico demanded the assignment of new personnel on-site. Id.
Plaintiff's assigned unit, the Administrative Unit, was to be
located in the North Tower of the Quantico facility, which was
the first of three towers to be completed and released for
occupancy. Id. ¶ 51. At the time Plaintiff received her change
of duty notice, the Administrative Unit had already transferred
three (3) of its employees to Quantico. Id. ¶ 52. Six (6) other
members of the unit received orders with the same reporting date
as Plaintiff, although they did not ultimately report on that
date since the North Tower was not yet ready for occupancy by
that time. Id.
Although the North Tower was not yet ready for occupancy, there
was, according to Ms. Sauer, a "pressing need for assistance in
managing the massive amount of paperwork created by the
construction project." Def.'s Ex. 51 (Sauer Decl.) ¶ 8. Prior to
Plaintiff's arrival, this work was handled by a single employee
who was occasionally helped by a colleague. Id. Ms. Sauer
anticipated that Plaintiff would assist in managing the paperwork
and could perform those duties in the office trailer where it was
being managed. Id. ¶ 9. The duties included filing and matching
punch lists from the on-sight inspections to include change
orders and the coordination of a variety of construction related
correspondence. Id. During an introductory tour of the facility, Plaintiff
complained of respiratory problems. Def.'s Stmt. ¶ 53. On October
7, 2002, Plaintiff was assigned to an office trailer with air
conditioning, heat, a private restroom, a refrigerator, a
microwave, phone, fax service, a copier, and a computer. Id. ¶
54; Pl.'s Stmt. ¶ 12.*fn10 Since February 2003, Plaintiff
has been assigned to the new facility and no longer works out of
the office trailer; as such, Plaintiff spent roughly four (4)
months in the trailer. Def.'s Stmt. ¶ 55. Plaintiff claims that
this transfer to Quantico caused her "an undue hardship" due to
the fact that she lives 44 miles from Quantico and had to expend
extra time and gas to arrive at work each day. Pl.'s Opp'n at 18;
Pl.'s Ex. 22 (10/4/02 email from Plaintiff to Zeigler); Pl.'s Ex.
1 (Pl.'s Answers to Interrogatories) at 13.
H. Performance Appraisal Reviews
Ms. Cantamessa became Plaintiff's supervisor and rating
official in April, 1999. Def.'s Stmt. ¶ 56. On January 14, 2000,
Ms. Cantamessa rated Plaintiff for the ratings period from
December 1, 1998 to November 30, 1999. Id. ¶ 57. Ms. Cantamessa
rated Plaintiff Superior in Project Management, Fully Successful
in Communication Skills, and Superior in Liaison, for a Summary
Rating of Superior. Id. ¶ 57. Ms. Cantamessa did not present
Plaintiff with a PAR for the rating period from December 1999 to
November 2000. Id. ¶ 58. Under the FBI's Performance Management
system, there was no requirement that an employee have on record
a PAR for the most current rating period in order to compete for
promotions. Id. ¶ 59. On January 29, 2002, Ms. Cantamessa rated
Plaintiff as "Meets Expectations" for each of her seven Critical
elements for a Summary Rating of "Meets Expectations." Id. ¶
61. Plaintiff signed the PAR on January 31, 2002. Id. Three
considerations are relevant to the gaps in Plaintiff's PARs: (1)
there was no requirement under the FBI's Performance Management
System that the employee have on record a PAR for the most
current rating period in order to compete for promotions, see
Def.'s Ex. 57 (FBI's Manual of Admin. Operations and Procedures)
Part 1, Section 7-4.1; (2) Plaintiff never applied for a new
position or a promotion during the relevant time period, and
instead contented herself with various TDYs, making her PARs less
relevant, Def.'s Ex. 2 (12/17/02 Moore Dep.) at 59-61, ...