Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MOORE v. ASHCROFT

August 25, 2005.

MARIAN L. MOORE, Plaintiff,
v.
JOHN D. ASHCROFT, ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, Defendant.



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

  I: BACKGROUND

  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 3.*fn5 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 appropriately.
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 my face."
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 case].
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 Division. Id.

  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).

  E. LTAU TDY Assignment

  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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.