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ROBERSON v. SNOW

September 12, 2005.

EARL ROBERSON, JR., Plaintiff,
v.
JOHN W. SNOW, Defendant.



The opinion of the court was delivered by: RICHARD ROBERTS, District Judge

MEMORANDUM OPINION

Plaintiff filed a complaint alleging that the Internal Revenue Service ("IRS") discriminated against him by failing to select him for a promotion. Plaintiff also claims that after he filed a grievance regarding his non-selection for the promotion, the defendant retaliated against him by initiating two investigations, which led to plaintiff's arrest and prosecution. Defendant has filed a motion for summary judgment, arguing that plaintiff was not selected for the promotion because of his relatively low rating from the interviewing committee and that the investigations leading to plaintiff's arrest and prosecution occurred in response to employees' reports of threats plaintiff made against his superiors.

Because the plaintiff has failed to rebut the defendant's valid, non-discriminatory justifications for plaintiff's non-promotion, investigation, and prosecution, defendant's motion for summary judgment will be granted. BACKGROUND

  Plaintiff, an African-American male, is a career federal employee who has worked for the IRS for over twenty-two years. (Compl. at 2-3.) Plaintiff is a GS-13 level computer specialist and is employed in the Statistics of Income Division ("SOI") of the IRS, which publishes data with respect to the operation of tax laws. (Id. at 3; Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Mem. Opp'n") at 1; Def.'s Mot. Summ. J., Ex. 1, Dep. of Daniel Skelly ("Skelly Dep.") at 8.) Daniel Skelly was the SOI director until early 2001, at which time Thomas Petska replaced him. (Pl.'s Mem. Opp'n at 3; Compl. at 3-4.)

  On June 5, 2000, the SOI announced vacancies for computer specialist positions at the GS-14 level. (Compl. at 3; Def.'s Mot. Summ. J., Ex. 2, SOI Div. Vacancy Announcement.) The "vacant" positions were actually promotions, whereby the selected persons would continue in their same jobs, but at the GS-14 level rather than the GS-13 level. (Def.'s Mot. Summ. J., Ex. 3, Dep. of Denise Herbert ("Herbert Dep.") at 68:9-21.) On June 16, 2000, plaintiff submitted his application for the promotion. (Compl. at 3.) Over thirty people applied for up to twenty available positions. (Def.'s Mem. of Law in Supp. of Mot. for Summ. J. ("Def.'s Mem. Supp.") at 3-4; Def.'s Mot. Summ. J., Ex. 4, Promotion Certificate.) SOI director Skelly selected a three-member ranking panel to review the submitted applications and rank the applicants. (Skelly Dep. at 78; Def.'s Mem. Supp. at 3.) The panel members were chosen on the basis of their knowledge about computers and status as management officials. (Skelly Dep. at 78-79; Def.'s Mem. Supp. at 3.) After selecting the ranking committee, Skelly did not meet with the panel members, give them any instructions on how to rank candidates, participate in the panel's deliberations, tell them which applicants he wanted to be ranked highest, or indirectly suggest to the panel his preferences. (Skelly Dep. at 82.) The panel members were to apply a mathematical formula used by the personnel office when ranking applicants. (Herbert Dep. at 41-42.)

  The mathematical formula used by the panel scored the applicants based on three factors: (1) the applicant's performance evaluation completed during the previous year by the applicant's supervisor; (2) a review of the applicant's knowledge, skills, and abilities ("KSAs"); and (3) awards received by the applicant in the last three years. (Pl.'s Stmt. Gen. Iss. at 12.) The maximum score possible for any applicant was fifty-three points — thirty points for the performance evaluation, twenty points for the KSAs review, and three points for awards. (Id.) The score for the first factor — the prior year's performance evaluation — was computed by calculating the candidate's average performance score on multiple categories of the prior year's performance evaluation and multiplying that value by six. (Herbert Dep. at 46-49.) Panel members assessed the applicant's knowledge, skills, and abilities — the second factor — based upon both the prior year's performance evaluation and the content of the employee's application for the promotion. (Id. at 51-56.) The final factor — awards — was scored by looking at the performance awards or quality step increases given to the candidate in the last three years, information called for on each application. (Id. at 56.) The panel members did not interview the applicants. (Id. at 51-52.)

  After calculating the total scores for each applicant, the panel provided the scoring information to the personnel office in New Carrollton, Maryland. (Herbert Dep. at 43.) Subsequently, both the panel and the personnel office reviewed the package to determine a "Best Qualified" cut-off point. (Id. at 43-46.) The cut-off point was calculated by looking at the number of available positions. (Id. at 69-71, 73-74.) For the first available position, four applicants appeared on the Best Qualified List. (Id. at 69.) For each additional available position after the first, the applicant with the next highest score was placed on the list. Tie scores placed more than one applicant's name on the list. (Id. at 73.) Twenty positions were potentially available and resulted in a total of thirty applicants appearing on the Best Qualified List. (Def.'s Mot. Summ. J., Ex. 6, Evaluation Criteria Scores ("Listed Rankings").)

  The cut-off point established for the SOI promotions was a score of 44.7. (Def.'s Mot. Summ. J., Ex. 6, Listed Rankings); Def.'s Stmt. Mat. Facts at 4.)*fn1 The panel calculated plaintiff's overall score to be 35.12, and therefore, plaintiff did not appear on the Best Qualified List. (Def.'s Mot. Summ. J., Ex. 5, Rating Sheet for Pl.; Def.'s Mem. Supp. at 4-5.) Only the names and application materials of the individuals on the Best Qualified List were given to Skelly, the selecting official. (Herbert Dep. at 66.) Skelly interviewed only applicants on that list and selected fourteen of them for the promotion on January 2, 2001. (Def.'s Mem. Supp. at 5; Skelly Dep. at 70.)

  Although Skelly did not name the employees selected for promotion until January 2, 2001 (Skelly Dep. at 70), plaintiff claims that he knew on or about November 20, 2000, that he was not chosen when a list bearing the names of those who were promoted was affixed to the back of his chair. (Compl. at 3; Pl.'s Mem. Opp'n, Ex. 6, Dep. of Earl Roberson ("Roberson Dep.") at 29-31.) From December 2000 to January 2001, plaintiff unsuccessfully asked the personnel office for his ranking score, and questioned superiors David Paris and Skelly about the status of the promotion selections. (Pl.'s Mem. Opp'n, Ex. 1, Aff. of Earl Roberson ("Roberson Aff.") at 2.) During this time, plaintiff's fellow employees started to yell across his cubical, harassing and taunting him with statements about his non-promotion. (Id.; Pl.'s Mem. Opp'n at 8.) Plaintiff told Scott Luttrell, an economist at SOI, that he was going to use "a pencil, a piece of paper, and a rulebook" to fight with because management was not following the rules. (Roberson Dep. at 50; Roberson Aff. at 2.; Pl.'s Mem. Opp'n at 8.)

  On January 17, 2001, plaintiff filed a grievance with the National Treasury Employees Union ("NTEU") over his non-selection for the promotion. (Compl. at 4.) Plaintiff alleged that his employer engaged in prohibited personnel practices and discrimination based on sex, color, and race. (Id.; Def.'s Mem. Supp. at 5.) A collective bargaining agreement adopted by the IRS and NTEU requires an employee who believes he has been discriminated against to make a binding choice between raising his claims under either the statutory procedure outlined in 42 U.S.C. § 2000e-16 or the negotiated grievance procedure, but not both. (Def.'s Mot. Summ. J., Ex. 7, 2002 Nat'l Agreement: IRS and NTEU at 112-13.) Plaintiff elected to pursue relief via the internal negotiated grievance procedure. (Compl. at 4.)

  On February 6, 2001, SOI manager Chris Carson contacted the Treasury Inspector General for Tax Administration ("TIGTA") Office, otherwise known as the IRS police, to report that plaintiff allegedly made threatening statements. (Def.'s Mem. Supp. at 5-6.) TIGTA interviewed Carson, as well as Andrew Luttrell and Dean Plueger, economists at SOI. (Def.'s Mot. Summ. J., Ex. 9, Report of Investigation of Threats to Director Skelly ("Skelly Threat Investigation").) Carson alleged that plaintiff had "hypothetically talked about how easy he could bring a gun into the building and shoot his manager" and that "he would only get six months to a year jail time by pleading temporary insanity." (Id. at 4.) Carson also alleged that plaintiff said "he could give a homeless person [fifty dollars] and a knife to stick it in Skelly's neck while he was walking to Union Station." (Id.) Luttrell stated that plaintiff said that if someone were under the same amount of stress that plaintiff was, he might respond "violently" or "retaliate by bringing a gun into the office." (Id. at 7.) According to Luttrell, plaintiff added that "[i]t would be very easy to just walk into the boss's office and shoot him" and that he could also have a homeless person "stab Skelly in the neck while he [was] walking to Union Station." (Id.) Dean Plueger testified that he overheard the conversation between Luttrell and plaintiff. (Id. at 10.) Special Agent Ratliff checked plaintiff's arrest record and found that plaintiff had previously been convicted for carrying a concealed weapon without a license, possession of an unregistered firearm, unlawful possession of ammunition, and driving with an open container. (Id. at 13-23.)

  On February 7, 2001, Paris, one of plaintiff's superiors, came to plaintiff's desk and identified plaintiff to TIGTA Special Agent Kevin Jackson. (Compl. at 4.) Jackson forcibly removed plaintiff from his work area and led him to plaintiff's manager's office. Jackson there alerted plaintiff that the agent acted because plaintiff had made a threat of violence against Skelly. (Id.) Plaintiff initially denied making any such statements, but later said that perhaps his comments were made jokingly and taken out of context by surrounding co-workers. (Pl.'s Mem. Opp'n, Ex. 21, Dep. of Kevin Jackson ("Jackson Dep.") at 61:6-13.) Jackson felt that the witnesses probably misunderstood plaintiff's comments and thought that he was serious. (Id. at 61:14-20.) Nevertheless, Jackson admonished plaintiff and advised him of the penalties for making threats against fellow employees. (Id. at 62:2-8.)

  The First Step meeting between plaintiff, his NTEU union representative, Gerald Plater, and a management official, Kay Khuu, to discuss plaintiff's non-promotion grievance occurred on April 11, 2001. (Roberson Aff. at 3.) On May 2, 2001, Khuu found that the only personnel violation that had occurred did not warrant the relief plaintiff sought.*fn2 (Def.'s Mot. Summ. J., Ex. 13, Grievance of Earl Roberson First Step Response ("First Step Response") at 7.) During this time, plaintiff also filed a claim with TIGTA that IRS management triggered Jackson's investigation in retaliation for the grievance plaintiff had filed.*fn3 (Def.'s Mot. Summ. J., Ex. 15, Report of Investigation ("TIGTA Retaliation Report") at 1.) After investigating the retaliation complaint, TIGTA found "no evidence of retaliation on the part of IRS SOI management" and, instead, found that management had reported the alleged threats out of concern for their employees. (Id. at 6.)

  On May 31, 2001, a Second Step meeting occurred between plaintiff, his union representatives, and Paris to discuss plaintiff's discrimination and retaliation claims. (Compl. at 5.) On June 22, 2001, Paris sent plaintiff a written memorandum stating that plaintiff's grievance lacked merit and that the determination from the First Step meeting that relief was not warranted was correct. (Def.'s Mot. Summ. J., Ex. 14, Second Step Mem. Denying Grievance ("Second Step Response") at 5.) In August 2001, plaintiff attended a Third Step meeting to discuss his grievances. Following that meeting, Petska, the new SOI director, issued a response letter to plaintiff concluding that there was no basis for plaintiff's allegations of discrimination or retaliation. (Def.'s Mot. Summ. J., Ex. 17, Third Step Mem. Denying Grievance ("Third Step Response") at 4.)

  Meanwhile, in July 2001, Petska contacted TIGTA alleging that plaintiff made threats against him in the presence of his co-workers. (Def.'s Mem. Supp. at 8.) TIGTA opened a second investigation on July 2, 2001, and co-workers Martha Eller and Catherine Gullickson Thomas alleged that plaintiff made comments that "he was going to take [Petska] out" and that he would "come in like a ninja and they would never know it." (Def.'s Mot. Summ. J., Ex. 16, Report of Investigation of Threats to Director Petska ("Petska Threat Investigation") at 307-11.) Gullickson Thomas said she asked plaintiff about whom he was talking, and plaintiff allegedly said "Tom." (Id. at 310.) Plaintiff denies making any such threatening statements or comments. (Roberson Aff. at 12.) On October 30, 2001, Jackson obtained a warrant for plaintiff's arrest based on the results of the two TIGTA investigations. (Def.'s Mot. Summ. J., Ex. 18, Aff. Supp. Arrest Warrant at 180; Def.'s Mot. Summ. J., Ex. 16, Petska Threat Investigation at 317.) Plaintiff was arrested on November 1, 2001, and charged with making threatening statements. (Def.'s Mot. Summ. J., Ex. 16, Petska Threat Investigation at 318.) The District of Columbia Superior Court ordered plaintiff to stay away from Petska. (Def.'s Mot. Summ. J., Ex. 18, Release Order Addendum at 182.) The IRS barred plaintiff from entering all IRS buildings pending resolution of his case (Def.'s Mot. Summ. J., Ex. 20, Bar Notice), and indefinitely placed plaintiff on administrative leave. (Def.'s Mot. Summ. J., Ex. 21, Admin. Leave Notice.)

  Plaintiff's criminal bench trial began on April 15, 2002 and plaintiff was acquitted on April 24, 2002. (Def.'s Mem. Supp. at 10.) Plaintiff returned to work approximately one month later. (Roberson Aff. at 12.) Plaintiff had responded to various emails he received during his time away from work with messages such as "I'm Back!!!!!" (Pl.'s Mem. Opp'n, Ex. 15, Email to Denise Herbert at 203.) Plaintiff directed one such message to at least one co-worker who had testified against him at trial and who felt threatened by the message. (Pl.'s Mem. Opp'n at 15; Def.'s Reply to Pl.'s Opp'n at ...


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