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Velikonja v. Gonzales

August 15, 2007

MARIA VELIKONJA, PLAINTIFF,
v.
ALBERTO GONZALES, ATTORNEY GENERAL, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff alleges that her former employer, the Federal Bureau of Investigation ("FBI"), violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as a result of various referrals relating to allegations of time and attendance fraud. In two previous opinions, this Court dismissed Counts I and IV of plaintiff's complaint and granted summary judgment on the remaining counts. The D.C. Circuit affirmed except as to this Court's entry of judgment with respect to Count I insofar as it related to the second referral for investigation. Velikonja v. Gonzales, 466 F.3d 122, 123-24 (D.C. Cir. 2006). The parties have since conducted additional discovery relating to this remaining claim, and defendant has now moved for summary judgment. For the reasons explained herein, defendant's motion will be granted.

BACKGROUND

I. Factual History

The facts will be recounted briefly here, as they have been exhaustively discussed in the Court's four prior opinions in this case and in a related one (Civ. Action No. 04-1001) that was dismissed on res judicata and exhaustion grounds. See Velikonja v. Mueller, 315 F. Supp. 2d 66 (D.D.C. 2004) ("Velikonja I"); Velikonja v. Mueller, 362 F. Supp. 2d 1 (D.D.C. 2004) ("Velikonja II"), aff'd, 466 F.3d 122 (D.C. Cir. 2006); Velikonja v. Ashcroft, 355 F. Supp. 2d 197 (D.D.C. 2005) ("Velikonja III"), aff'd, 466 F.3d 122 (D.C. Cir. 2006); Velikonja v. Gonzales, Civ. No. 04-1001, 2005 U.S. Dist. LEXIS 43780 (D.D.C. June 30, 2005) ("Velikonja IV"), aff'd, 466 F.3d 122 (D.C. Cir. 2006).

Plaintiff Maria Velikonja began her employment at the FBI in 1985. (Pl.'s Opp'n Ex. A [Feb. 15, 2001 Velikonja Stmt.] at 1.) In November 1997, she began working as a Supervisory Special Agent in the Finance Division at FBI Headquarters in Washington, D.C. (Pl.'s Opp'n Ex. C [July 16, 2002 Velikonja Stmt.] at 3.) She joined the National Security Law Unit ("NSLU") of the FBI's Office of the General Counsel ("OGC") in January 2000. (Id.) Her supervisor there was Michael Woods. (Pl.'s Opp'n Ex. A at 2.) In the spring of 2000, Woods became concerned about discrepancies between the hours plaintiff claimed she worked on her time sheets and the actual time she was seen working at the NSLU workplace. (Oct. 23, 2003 Zimmerman Decl. Ex. G [Feb. 22, 2001 Woods Stmt.] at 2-3.) Woods and his supervisor, Spike Bowman, began to monitor the time of plaintiff's arrivals. (Id. at 3.) In July 2000, Woods obtained the building's electronic records so that he could compare the times at which plaintiff entered the building to the times at which she reported arriving. (Id. at 4.) He compiled a chart noting the discrepancies he observed between the electronic logs and plaintiff's self-reported time in the office. (Id.; see also July 19, 2004 Zimmerman Decl. Ex. A [July 19, 2000 Woods Mem.].)

Based on his findings, Woods had a meeting with plaintiff and wrote a memorandum to her summarizing his concerns and inviting her to respond to them by the next day. (Oct. 23, 2003 Zimmerman Decl. Ex. G at 4; July 19, 2004 Zimmerman Decl. Ex. B [July 20, 2000 Woods Mem.].) Plaintiff responded by letter the same day, explaining that she typically rounded her time to the nearest hour or half-hour and often performed work without being physically present within NSLU. (Oct. 23, 2003 Zimmerman Decl. Ex. B [July 20, 2000 Velikonja Mem.] ¶¶ 2, 6.)

During a routine inspection of OGC in 2000, the FBI's Inspection Division discovered Woods' records regarding plaintiff's time and attendance discrepancies and determined that the matter should be referred to the Office of Professional Responsibility ("OPR"). (Def.'s Facts ¶ 4.) OGC referred the matter to OPR on November 7, 2000. (Id. ¶ 5.) Plaintiff contacted an EEO counselor at that time, but did not file a complaint. (Pl.'s Opp'n Ex. F at 3215.)

According to defendant, beginning in April 2001, plaintiff's supervisors again noticed plaintiff's absences from the office, particularly in the early afternoon. (Def.'s Facts ¶ 6; Pl.'s Opp'n Ex. S [Jan. 30, 2002 O'Connor Letter] at 13.) Woods obtained the electronic records of plaintiff's entry to the building between April 2, 2001 and April 17, 2001, and compared those records with plaintiff's self-reported times. (Def.'s Facts ¶ 7.) Woods uncovered discrepancies that he felt could not be explained to his satisfaction by any authorized work from home. (Pl.'s Opp'n Ex. T [July 9, 2001 Woods Mem. to OPR] at 2-3.) OGC relayed this information to OPR in a memo dated July 9, 2001. (Id. at 2-3; see Pl.'s Facts ¶ 14.)

On May 13, 2001, plaintiff was assigned to temporary duty in Macedonia. (Def.'s Facts ¶ 9.) Although the duty was intended to last until September 2001, plaintiff returned to the United States on June 25, 2001, due to dangerous conditions in Macedonia. (Pl.'s Opp'n Ex. C at 18.) Plaintiff did not report back to NSLU until July 23, 2001. (Id. at 19.) She stated that she was continuing to work on preparing a training course for Macedonians, but that Woods had advised her not to return to NSLU until she was sure that her temporary duty assignment had been completed. (Id. at 18.) She further stated that her office within NSLU was unavailable, as it was being used by another OGC unit, and that she had taken a number of days of administrative leave approved by her overseas supervisors. (Id. at 18-19.) Woods, however, concluded that plaintiff performed little or no work during this period for either NSLU or the foreign office, and that she intentionally deceived her supervisors in Macedonia into thinking that she was under the supervision of NSLU and vice versa. (May 18, 2007 Zimmerman Decl. Ex. 3 [July 25, 2001 Woods Mem.] at 2.)

Citing concerns about her "veracity and trustworthiness" in the face of the sensitive information handled within the NSLU, OGC transferred plaintiff against her will from the NSLU to the Procurement Law Unit on July 25, 2001. (July 19, 2004 Zimmerman Decl. Ex. G [Parkinson Stmt.], at 3-4;Pl.'s Opp'n Ex. C at 19-20.) OGC notified OPR that it believed Velikonja had committed additional misconduct (July 19, 2004 Zimmerman Decl. Ex. E [Schiera Stmt.] at 3-4), and it formally referred the additional violations to OPR for investigation in October 2001. (May 18, 2007 Zimmerman Decl. Ex. 1 [Mem. from OPR to OGC].) OPR decided to process this second referral as a new investigation instead of consolidating it with the first referral from November 2000. (July 19, 2004 Zimmerman Decl. Ex. E at 4; Def.'s Facts ¶ 18.)

On August 23, 2001, OGC announced that it was establishing a new Foreign Intelligence Surveillance Act ("FISA") unit within NSLU and invited employees interested in applying for the position of Acting Chief of the new unit to respond by return e-mail. (Pl.'s Opp'n Ex. I). Plaintiff responded to Kathy Eckman, an OGC secretary, that she "might be interested in applying" for the position. (Id.) Plaintiff does not claim that she ever actually applied for this position. (See Pl.'s Opp'n at 11.) In November 2001, another employee was selected for the FISA job. (Am. Comp. ¶ 37; July 19, 2004 Zimmerman Decl. Ex. G at 4.)

Plaintiff claims to have met with an EEO counselor on July 25, 2001 (Am. Compl. ¶ 48), but the EEO records reveal that she first made contact with the EEO counselor on July 25, and her initial interview with the counselor was not until July 27, 2001. (Pl.'s Opp'n Ex. F at 3210, 3215.) Plaintiff filed a formal complaint of discrimination on November 6, 2001. (Pl.'s Opp'n Ex. N.) Among other issues raised in the complaint, plaintiff alleged that the time and attendance controversy resulted in her inability to become Acting Unit Chief of the new FISA unit. (Id. at 4.)

OPR concluded the first referral on January 30, 2002, and it determined that plaintiff had committed multiple violations of FBI policies. (Pl.'s Opp'n Ex. S at 1.) Based on its findings, the FBI suspended plaintiff for fourteen days and placed her on one year of probation. (Id. at 13.) Plaintiff resigned on September 9, 2003. (Def.'s Facts ΒΆ 22.) As a result ...


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