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VICKERS v. POWELL

November 21, 2005.

CYNTHIA J. VICKERS, Plaintiff,
v.
DONALD E. POWELL, Chairman, Federal Deposit Insurance Corporation, Defendant.



The opinion of the court was delivered by: COLLEEN KOLLAR-KOTELLY, District Judge

MEMORANDUM OPINION

Plaintiff Cynthia Vickers filed this suit against Defendant Donald Powell in his official capacity as Chairman of the Federal Deposit Insurance Corporation ("FDIC" or "Agency") for employment discrimination and retaliation, and for judicial review of a determination by the Merit Systems Protection Board ("MSPB") upholding the FDIC's decision to terminate her employment in 2001. Plaintiff's suit rests on two separate statutory schemes: (1) the Civil Service Reform Act of 1978 ("CSRA"), Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in sections of 5 U.S.C. (2004)), governing this Court's review of the MSPB's decision upholding Plaintiff's removal, see 5 U.S.C. § 7703(b)(2); and (2) Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., governing Plaintiff's claims that (a) her removal was motivated by discrimination based upon her race (African-American) and her gender (female), and upon retaliation for having engaged in Equal Employment Opportunity ("EEO") activity; and (b) she was subjected to a hostile work environment based on race and gender. Currently before the Court is Defendant's Motion for Summary Judgment as to all of the claims alleged in Plaintiff's First Amended Complaint. The Agency contends that the MSPB Administrative Law Judge's decision upholding Plaintiff's removal under the CSRA was supported by "substantial evidence," see Fogg v. Ashcroft, 254 F.3d 103, 112 (D.C. Cir. 2001), in the administrative record. The Agency further asserts that evidence adduced both at the administrative hearing and in the discovery process in this case demonstrates that the FDIC had legitimate, non-discriminatory, non-retaliatory reasons for removing Plaintiff as a federal law enforcement officer, given the precarious nature of her position in which she was entrusted with a weapon capable of lethal force. Finally, the Agency argues that Plaintiff's hostile work environment claims must fail because (1) most of the alleged incidents comprising her a hostile work environment occurred up to eight years before Plaintiff made any contact with the FDIC's EEO office and are therefore untimely, and (2) the remaining incidents — even in aggregate — are insufficient to give rise to a claim of hostile work environment.

Upon a searching examination of Defendant's motion, Plaintiff's Opposition, Defendant's Reply, Plaintiff's Surreply, Defendant's Motion to Strike Plaintiff's Surreply, Plaintiff's Response to Defendant's Motion to Strike, the relevant case law, and the entire record herein, the Court shall grant Defendant's Motion for Summary Judgment in full.

  I: BACKGROUND

  A. Plaintiff Joins the OIG as a Criminal Investigator/Special Agent

  Plaintiff is an African-American female, First Am. Compl. ¶ 4, who commenced employment with the federal government in 1984 as a Special Agent for the Naval Investigative Service. Def.'s Stmt. of Mat. Facts ¶ 1; Pl.'s Response to Def.'s Stmt. ¶ 1. In July 1991, Plaintiff accepted a CG-1811-13 Criminal Investigator/Special Agent position with the FDIC's Resolution Trust Corporation ("RTC") in the Atlanta Regional Office. Id.; Am. Compl. ¶ 7. Pursuant to 12 U.S.C. § 1441a(m), the RTC was merged into the FDIC's Office of Inspector General ("OIG") on January 1, 1996. Def.'s Stmt. of Mat. Facts ¶ 1 & n. 11; Pl.'s Response to Def.'s Stmt. ¶ 1. As a Criminal Investigator/Special Agent, Plaintiff was trained in the use of lethal and non-lethal force, and was authorized to carry an Agency-issued semi-automatic pistol. Def.'s Stmt. of Mat. Facts ¶ 2; Pl.'s Response to Def.'s Stmt. ¶ 2 (during the course of her career, Plaintiff never had occasion to use her firearm). Her duties as a Criminal Investigator/Special Agent included the investigation of criminal activity, interviewing suspects and witnesses, obtaining and executing search warrants, serving subpoenas, conducting surveillance, and making arrests. Id.; but see Pl.'s Response to Def.'s Stmt. ¶ 2 (in the course of her duties, Plaintiff did not conduct surveillance and rarely served subpoenas; virtually none of her actual daily duties required her to carry a firearm). In the course of her performance, Plaintiff would be called upon to carry out these activities alone, with other OIG Special Agents, or in conjunction with agents of other federal, state, or local agencies. Def.'s Stmt. of Mat. Facts ¶ 2; Pl.'s Response to Def.'s Stmt. ¶ 2. Pursuant to 5 C.F.R. § 339.202, Plaintiff's position with the Agency was subject to mandatory medical standards. Def.'s Stmt. of Mat. Facts ¶ 3; Pl.'s Response to Def.'s Stmt. ¶ 3. Specifically, the standards applicable to the Agency's Criminal Investigators/Special Agents require Investigators to be free of mental or emotional instabilities that inhibit the performance of law enforcement duties such as using firearms. Id.

  Dana Bedwell was the Special Agent in Charge ("SAC") of the Atlanta OIG Investigations Office from mid-1996 until March 2001. Def.'s Stmt. of Mat. Facts ¶ 4; Pl.'s Response to Def.'s Stmt. ¶ 4. As the SAC, Mr. Bedwell was Plaintiff's first-line supervisor. Id. Even before he was named SAC, Mr. Bedwell had begun working with Plaintiff in August 1995, when he was transferred to the Atlanta Office as a non-supervisory Grade 14 Special Agent. Id. The relationship between Plaintiff and SAC Bedwell, at minimum, can be described as "somewhat strained." Id. For instance, Plaintiff felt that SAC Bedwell's standards for her, the only permanent African-American Special Agent in the office, were different than those for others, that the grade structure in the office was unfair, that her work was not valued as highly as the work of others in the office, and that the performance evaluation system was unfair and merely a personality contest in which the highest rating was regularly reserved for white males and a few chosen white females. See Pl.'s Response to Def.'s Stmt. ¶ 4. SAC Bedwell was likewise frustrated with Plaintiff, who always refused to sign her annual performance appraisals to acknowledge receiving the document. Def.'s Stmt. of Mat. Facts ¶ 4; Pl.'s Response to Def.'s Stmt. ¶ 4. Despite this strain or tension between Plaintiff and SAC Bedwell, Plaintiff received good marks from SAC Bedwell on her annual performance appraisals, garnering a 2.6 out of 3.0 in October 1999 and a 2.7 out of 3.0 in October 2000; Plaintiff also received a $1,500.00 performance award at SAC Bedwell's direction for the 1999-2000 performance cycle. Def.'s Stmt. of Mat. Facts ¶ 5; Pl.'s Response to Def.'s Stmt. ¶ 5.

  B. The October 31, 2000 Confrontation Between Plaintiff and SAC Bedwell

  The events leading up to Plaintiff's removal from her position with the FDIC commenced on Tuesday, October 31, 2000, when Plaintiff sent an email to SAC Bedwell informing him that she would be out of the office starting Wednesday, November 1, 2000, and would be returning to work on Friday, November 3, 2000 in order to work on the McConnell case in Columbia, South Carolina. Def.'s Stmt. of Mat. Facts ¶ 6; Pl.'s Response to Def.'s Stmt. ¶ 6. She additionally informed SAC Bedwell that she would be out for the majority of the following week (November 6, 2000) working on the Adams matter in Douglasville and Carrollton, Georgia, and would be out for the entirety of the week of November 13, 2000 for medical reasons. Id. Almost contemporaneously with Plaintiff's sending of the email, SAC Bedwell — having not yet read the message — stopped by her office to briefly chat about whether she was prepared for the week ahead. AR Tab 18 (Pl.'s Admin. Hr'g Test.), at 150:19-24, 151:2-12. Informed by Plaintiff that she had sent him an email regarding her plans, SAC Bedwell returned to his office to read the message. Id. at 152:6-8 (Pl.'s Admin. Hr'g Test.). SAC Bedwell responded to Plaintiff's email within the hour in an email that stated something to the effect of "When you have a few moments today I would like to talk with you about your email as I have a few questions about your plans. Thanks." Def.'s Stmt. of Mat. Facts ¶ 7; Pl.'s Response to Def.'s Stmt. ¶ 7; AR Tab 18 (Pl.'s Admin. Hr'g Test.), at 152:18-25 ("And a few minutes later I received a[n] e-mail from him saying I have questions about your — He said I have questions.").*fn1 Later that morning, in response to his email, Plaintiff met with SAC Bedwell in his office. Id. At the meeting, SAC Bedwell asked Plaintiff why she was traveling to Columbia, South Carolina, on the McConnell case and to Carrollton and Douglasville, Georgia, on the Adams case. Id. SAC Bedwell was especially interested in Plaintiff's answers, given that he believed that the McConnell and Adams cases required little additional investigative effort, whereas he would rather have had Plaintiff spend her time working on an older case called "Krotzer." Def.'s Stmt. of Mat. Facts ¶ 7 n. 14; Pl.'s Response to Def.'s Stmt. ¶ 7. Upon SAC Bedwell's flurry of questions about the number and type of interviews that would be necessary in the Adams case, AR Tab 18 (Pl.'s Admin. Hr'g Test.), at 154:16-21, Plaintiff was unable to provide SAC Bedwell with an estimate of the number of interviews to be done off the top of her head. Id.; see also AR Tab 18 (Pl.'s Admin. Hr'g Test.), at 153-57 ("I started to respond to his questions by saying I can't tell you off the top of my head how many interviews there are to be done."). Plaintiff responded, instead, that she felt SAC Bedwell was micro-managing her. Def.'s Stmt. of Mat. Facts ¶ 7; Pl.'s Response to Def.'s Stmt. ¶ 7; AR Tab 18 (Pl.'s Admin. Hr'g Test.), at 156:201-57:18. In response to Plaintiff's accusations of micro-management, SAC Bedwell responded, "I don't know what you're getting upset about, I cut you more slack than anyone around here." Id. Both Plaintiff and SAC Bedwell testified that the meeting took an angry turn, with both raising their voices to the other. Id. Plaintiff testified, consistent with SAC Bedwell's testimony, that she eventually stood up, said "I don't need this," and "I'm out of here," and walked out of his office, and then the workplace. Id.

  After she walked out of the workplace upset over the confrontation, Plaintiff left behind, with the office secretary, the following items: her law enforcement credentials, her FDIC identification card, her building access card, her government-issued cellular telephone, and her government-issued MCI calling card. Def.'s Stmt. of Mat. Facts ¶ 8; Pl.'s Response to Def.'s Stmt. ¶ 8. The next day, Plaintiff's spouse appeared at the office, retrieved some of Plaintiff's personal possessions, and turned in her government credit card, office keys, beeper, and laptop computer. Id. Plaintiff never sought to reconvene her meeting with SAC Bedwell. Id.

  C. Plaintiff on Leave From the FDIC's OIG Office

  On November 2, 2000, SAC Bedwell sent Plaintiff a letter recounting the upsetting meeting of October 31st, and informing her that he had granted her — on his own initiative — four hours of administrative leave for the balance of that workday; that she had not contacted Bedwell, nor any other OIG management official regarding her abrupt departure or her intentions with respect to her continued employment with the Agency; and that, accordingly, she was being placed on an Absent Without Leave ("AWOL") status until such time as she either resigned her position or returned to work. Def.'s Stmt. of Mat. Facts ¶ 9; Pl.'s Response to Def.'s Stmt. ¶ 9. In addition, SAC Bedwell provided information regarding resignation procedures, and advised Plaintiff that if she returned to work, she would need to do so no later than 8:30 a.m. on Monday, November 6, 2000. Id. Finally, SAC Bedwell advised Plaintiff that if she either failed to resign or to report to work as directed, he would be left with no alternative "but to initiate an action to remove [her] from [her] Federal position." Id. Plaintiff received SAC Bedwell's letter and reviewed its contents. Pl.'s Response to Def.'s Stmt. ¶ 9.

  On Monday, November 6, 2000, Plaintiff appeared at the Atlanta OIG office at 6:30 a.m., handed SAC Bedwell a letter, turned away without speaking, and left the building. Def.'s Stmt. of Mat. Facts ¶ 10; Pl.'s Response to Def.'s Stmt. ¶ 10. The letter stated that: Due to the mental, emotional and physical anguish that I am experiencing as a result of my employment with FDIC-OIG, I am requesting six months leave without pay to resolve those medical issues. It is my request that this leave commence immediately.

 Id. This brief contact represented the last meeting between Plaintiff and SAC Bedwell, who retired in March 2001. Id.

  Between December 2000 and March 2001, Plaintiff was treated for severe depressive disorder. Def.'s Stmt. of Mat. Facts ¶ 11; Pl.'s Response to Def.'s Stmt. ¶ 11. In March 2001, Plaintiff submitted to the FDIC a letter from her psychiatrist opining that Plaintiff could return to duty on May 1, 2001. Id. SAC Bedwell, by letter dated March 23, 2001, and citing to 5 C.F.R. § 339.301, directed Plaintiff to report for a medical examination by doctors of the Federal Law Enforcement Medical Programs, Federal Occupational Health, United States Public Health Service ("PHS") in Atlanta. Id. More particularly, the letter directed Plaintiff to report to the Public Health Service on April 9, 2001, to have a blood sample drawn, and on April 10, 2001, for a physical examination. Id. The letter stated, in relevant part:
Title 5 CFR 339.301 provides for the authority to require an employee who occupies a position that has physical and medical standards to report for a medical evaluation whenever there is a question about the employee's capacity to meet the medical and physical requirements of the position.
You occupy the position of Criminal Investigator, and this position does have specific medical standards and physical requirements. As a result, before you can return to work, you are required to obtain medical certification that you meet the medical standards and physical requirements of your position and can perform the essential functions of your job. This certification will encompass not only a medical evaluation by your own physician but a physical evaluation by the United States Public Health Service (PHS) as well as a psychiatric evaluation by a physician of the Corporation's choosing.
* * * * * * * * * * * * Failure to keep these appointments and submit to the required examinations will result in disciplinary action up to and including removal.
Id.

  D. Plaintiff's Efforts at Compliance With the Medical Examination

  On April 9, 2001, Plaintiff reported for her medical examination as directed. Def.'s Stmt. of Mat. Facts ¶ 12; Pl.'s Response to Def.'s Stmt. ¶ 12. A blood sample was obtained, and hearing, vision, and EKG tests were undertaken without controversy. Id. Plaintiff was asked to return the next day for the remainder of the examination with a completed medical history and release forms. Def.'s Stmt. of Mat. Facts ¶ 12; Pl.'s Response to Def.'s Stmt. ¶ 12 (noting that it had not been made clear to her what the medical examination would entail or what tests she was supposed to complete).

  On April 10, 2001, Plaintiff returned to the Public Health Service. Def.'s Stmt. of Mat. Facts ¶ 13; Pl.'s Response to Def.'s Stmt. ¶ 13. However, on the advice of counsel, she refused to complete a medical history form, but did provide medical history information in her conversation with the examining Public Health Service physician, Dr. Richard Miller. Id. After completing the physical examination, Plaintiff refused again, on the advice of her counsel, to execute any releases to authorize access to her private medical records or private physicians. Id. One release was contained on the last page of the United States PHS multi-page examination report form ("the Exam Form"); while the other release was a one-page, stand alone release form ("the Authorization for Disclosure of Information Form"). Id.; see also AR, Tab 3-4(g)(2) (Authorization for Disclosure of Information Form); AR, Tab 3-4(g)(2), Tab 3-4(j), Tab 18, Agency Hr'g Ex. 4, Tab 21 at 6. Plaintiff had previously signed the identical Exam Form release without objection on January 21, 2000, in connection with a routine periodic medical examination required by the medical standards applicable to her position as a Criminal Investigator. Id. According to Plaintiff, she objected to signing both releases provided to her on April 10, 2001, because they were blank and did not identify to whom her medical information would be provided. Pl.'s Response to Def.'s Stmt. ¶ 13. Plaintiff's refusal to (1) complete the medical history form and (2) the two medical releases brought the evaluation process to a halt. Def.'s Stmt. of Mat. Facts ¶ 14; Pl.'s Response to Def.'s Stmt. ¶ 14 (admitting that the process ground to a halt, but claiming that "[i]t was the FDIC's failure to fill out the release forms to identify to whom the medical information would be provided that stalled the process).

  The Exam Form medical release that Plaintiff refused to sign stated, as follows:
I certify that I have reviewed the foregoing information supplied by me and that it is true and complete to the best of my knowledge. I authorize any of the doctors, hospitals, or clinics mentioned on these forms to furnish the Government a complete transcript on my medical record for purposes of processing this exam. I authorize the release of all medical information to the Federal Occupational Health/Law Enforcement Medical Program and on a need to know basis, the designed (Agency/Name) point of contact.
Initial Desc. at 6-7 (citing Agency Response, Tab 4(g)(2), Ex. 4 to Hr'g Tr.). In contrast, the Authorization for Disclosure of Information Form, a "form FOH-9," contained some blanks that were not yet completed. Id. at 10-11 (citing AR, Tab 3-4(g)(2)).

  E. Post-Examination Communications

  On April 18, 2001, Acting SAC Thomas McDade sent Plaintiff a letter instructing her to return to the PHS to complete the medical history form and relevant releases. Def.'s Stmt. of Mat. Facts ¶ 15; Pl.'s Response to Def.'s Stmt. ¶ 15. The letter, in pertinent part, stated: On April 9 and 10, 2001, you were scheduled for blood work and a physical examination with the Public Health Service (PHS) in Atlanta as part of the evaluation process to determine your ability to perform the essential functions of your position after your extended absence. You occupy the position of a Criminal Investigator that has specific medical standards and physical requirements.

  * * * * * * * * * * * *

 
However, PHS has also advised us that, on the advice of your attorney, you refused to complete and sign the Federal Occupational Health Form. Without your input and signature on this form, the attending PHS physician is unable to complete diagnostic and physical findings portions of the form. Further, the needed psychiatric evaluation can not take place until the completion of the physical examination process.
Without this information, the evaluation process to determine your ability to return to work and perform the essential functions of your position, with or without accommodation, is incomplete. Accordingly, you are directed to return to the PHS Office at the Richard B. Russell Federal Building, located at 75 Spring Street, Lower Plaza Level, Atlanta GA 30303, to complete the form and sign the release by COB Friday, April 20, 2001. You do not need an appointment to complete this form; however, if you wish to contact that office, the telephone number is (404) 331-3340.
* * * * * * * * * * * *
Failure to complete the Occupational Health Form will be grounds for disciplinary action up to and including removal.
Id.
  Plaintiff received Acting SAC McDade's letter on April 20, 2001. Def.'s Stmt. of Mat. Facts ¶ 16; Pl.'s Response to Def.'s Stmt. ¶ 16. Plaintiff did not return to the PHS as instructed, and, accordingly, did not execute the medical history form and releases. Id. Plaintiff's attorney — who was her point of contact with the FDIC at that point — stated at Plaintiff's Oral Reply to her proposed removal that Plaintiff could not comply with SAC McDade's instructions because she received the letter too late in the day to make child care arrangements. Id. Plaintiff's attorney also stressed that the medical release was blank, raising concerns. Pl.'s Response to Def.'s Stmt. ¶ 16. However, regardless of the feasibility of same-day child care arrangements or whether Plaintiff could have brought her then ten-year-old son with her to sign the forms, see Pl.'s Opp'n at 5, Def.'s Reply at 13, it is uncontested that Plaintiff did not attempt to contact SAC McDade upon receipt of the April 18 letter, as he explicitly invited her to do in the event that she had concerns, nor did she attempt to contact any member of FDIC management, nor did she attempt to phone the PHS. Def.'s Stmt. of Mat. Facts ¶ 16; Pl.'s Response to Def.'s Stmt. ¶ 16. The next contact between Plaintiff and the FDIC was through a letter from her attorney dated April 27, 2001. Pl.'s Response to Def.'s Stmt. ¶¶ 16-17. The letter from Plaintiff's counsel stated, in relevant part,
Please by advised that Ms. Vickers is willing to certify that the information she provided to the examining physician is true and complete to the best of her knowledge. However, we believe that a wholesale disclosure of her entire medical history, whether to medical or lay personnel, is an unnecessary and unauthorized intrusion on her medical and her personal privacy.
AR Tab 7 (April 27, 2001 Letter from Joleen Payeur Olsen, Plaintiff's counsel, to Janet Welch, FDIC Employee Relations Specialist) at 4.

  F. Plaintiff's Removal

  The FDIC/OIG first proposed Plaintiff's removal in a letter dated April 30, 2001. Def.'s Stmt. of Mat. Facts ¶ 17; Pl.'s Response to Def.'s Stmt. ¶ 17. Plaintiff replied in writing on May 12, 2001, and made an oral reply to her proposed removal on May 24, 2001. Id. After considering Plaintiff's replies, the Agency withdrew the April 30, 2001 proposal and issued a second, superseding proposed removal on September 24, 2001. Id. The September 24th proposed removal included, as grounds therefor, inter alia, charges that Plaintiff failed to cooperate in her medical examination by failing to complete and execute the U.S. Public Health Service medical release forms, and charges that Plaintiff failed to follow instructions because (1) she failed to provide the specific information demanded of her by SAC Bedwell on October 31, 2001, and (2) she failed to comply with Acting SAC McDade's instructions to return to the PHS on April 20, 2001 to complete the medical history form and release. Def.'s Stmt. of Mat. Facts ¶ 18; Pl.'s Response to Def.'s Stmt. ¶ 18. Plaintiff responded to the September 24th proposed removal in writing on October 1, 2001. Id.

  By a letter dated December 6, 2001, Assistant Inspector General for Investigations ("AIGI") Samuel Holland removed Plaintiff from federal service effective December 14, 2001. Def.'s Stmt. of Mat. Facts ¶ 19; Pl.'s Response to Def.'s Stmt. ¶ 19.

  G. The MSPB Process

  Plaintiff filed her initial MSPB appeal with the Atlanta Regional Office of the MSPB on January 11, 2002. Def.'s Stmt. of Mat. Facts ¶ 20; Pl.'s Response to Def.'s Stmt. ¶ 20. Plaintiff denied wrongdoing and alleged that her removal was the result of race and sex discrimination and retaliation for having engaged in EEO activity. Id. Plaintiff further alleged that she had been removed from federal service in retaliation for making whistle blowing disclosures to AIGI Samuel Holland about an allegedly racially and sexually hostile work environment in the Atlanta OIG office during September 2000. Id. MSPB Judge Lynn P. Yovino dismissed Plaintiff's appeal without prejudice on April 29, 2002, so that Plaintiff could undergo a fitness-for-duty examination to insure that reinstatement would be an available remedy in the event of a ruling favorable to Plaintiff. Def.'s Stmt. of Mat. Facts ¶ 21; Pl.'s Response to Def.'s Stmt. ¶ 21. Plaintiff cooperated in the physical examination and psychological evaluation, and in May 2002 was determined to be fit for duty. Id. Plaintiff timely refiled her appeal on July 19, 2002. Def.'s Stmt. of Mat. Facts ¶ 22; Pl.'s Response to Def.'s Stmt. ¶ 22.

  At a pre-trial hearing conference held on October 10, 2002, Administrative Law Judge Yovino rejected Plaintiff's allegation of hostile work environment for lack of relevance in the removal action before her. Def.'s Stmt. of Mat. Facts ¶ 23; Pl.'s Response to Def.'s Stmt. ¶ 23 (asserting that this decision was erroneous, as such material was relevant to show the discriminatory intentions of FDIC officials who supervised Plaintiff and to explain the reasons for her actions on October 31, 2000). Pursuant to Plaintiff's request, a hearing was held before Administrative Law Judge Yovino on October 21, 2002. Def.'s Stmt. of Mat. Facts ¶ 24; Pl.'s Response to Def.'s Stmt. ¶ 24.

  Administrative Law Judge Yovino issued her Initial Decision on December 9, 2002, which became the final decision of the MSPB on January 13, 2003, when Plaintiff declined to file a petition for review with the full Board of the MSPB. Id. In her Initial Decision, Administrative Law Judge Yovino affirmed the charge that Plaintiff failed to follow instructions and its two underlying specifications — i.e., failure to provide SAC Bedwell with information that he requested about her cases during the October 31, 2000 meeting and failure to return to the PHS after having been directed to do so by SAC McDade's April 18, 2001 letter. Def.'s Stmt. of Mat. Facts ¶ 18 n. 16; Pl.'s Response to Def.'s Stmt. ¶ 18. The Administrative Law Judge also sustained as modified the Agency's charge that Plaintiff failed to cooperate in her medical examination. Id. Administrative Law Judge Yovino did not sustain a charge by the Agency that Plaintiff had disrespected her supervisor, SAC Bedwell, during the October 31, 2000 meeting, finding instead that SAC Bedwell's own response excused Plaintiff's otherwise unprofessional actions. Id.

  Plaintiff timely filed this federal district court case on February 3, 2004, within 30 calendar days of the date on which the Initial Decision became final, as required by 5 U.S.C. § 7703(b)(2). Def.'s Stmt. of Mat. Facts ¶ 24; Pl.'s Response to Def.'s Stmt. ¶ 24.

  H. Plaintiff's Affirmative Defenses and Allegations of Race and Gender-Based Discrimination and Hostile Work Environment

  In an effort to justify her post-October 2000 actions, Plaintiff contends that (1) her removal was motivated by discrimination based upon her race (African-American) and her gender (female), and upon retaliation for having engaged in EEO activity; and (2) she was subjected to a hostile work environment based on race and gender. Plaintiff initially contacted an EEO counselor to complain about a hostile work environment based on race and gender after she had commenced her leave of absence with the FDIC on November 9, 2000, Def.'s Stmt. of Mat. Facts ¶ 25; Pl.'s Response to Def.'s Stmt. ¶ 25, although she brought up certain issues regarding the treatment of women and minorities in the Atlanta OIG office with AIGI Samuel Holland when he visited the office on September 29, 2000. See AR Tab 18 (Pl.'s Admin. Hr'g Test.), at 145-47.

  Paragraph 10 of Plaintiff's First Amended Complaint alleges thirteen events that comprise the backbone of Plaintiff's ...


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