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Walker v. Johnson

August 17, 2007

JAMES T. WALKER, PLAINTIFF,
v.
STEPHEN L. JOHNSON, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Plaintiff James T. Walker is an African-American male employee of the U.S. Environmental Protection Agency ("EPA") who sues his employer pro se for discrimination on the basis of race, color, gender, and retaliatory animus in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). The administrative processing of Dr. Walker's charges took close to seven years until he received a Right to Sue Letter dated July 29, 2005. He filed suit in October 2005, eight long years after his initial discrimination charge. Defendant Stephen L. Johnson, EPA Administrator, now files a motion to dismiss or for summary judgment, which Dr. Walker opposes. The motion became ripe for decision in June 2007 and the Court moves expeditiously to address it. Because the record contains no evidence of unlawful discrimination or retaliation, Defendant's motion will be granted.

I. BACKGROUND FACTS

Dr. James T. Walker is an African-American male who at all times relevant was employed as a GS-13, step 10, Environmental Scientist in the National Center for Environmental Assessment -- Washington Office ("NCEA-W"), in EPA's Office of Research and Development ("ORD").*fn1 Dr. Walker's claims can be grouped into two general categories: non-selection for a promotion allegedly based on race, gender, and retaliation; and several discrete acts of alleged discrimination and retaliation based on race and prior EEO activity that, according to Dr. Walker, formed a pattern of pervasive retaliation.

A. Alleged Non-Selection Due to Race, Gender, and Retaliation

In December 1997, Dr. Walker applied for a position as a GS-13/14 Environmental Scientist in the Office of Child Health Protection ("OCHP"). Def.'s Statement of Material Facts as to Which There is No Genuine Dispute ("Def.'s Facts") ¶ 1. Margaret Kelly, a White female, who was a Regulatory Affairs Team Leader in OCHP, acted as the Subject-Matter Expert responsible for rating and ranking the applicants. Id. ¶ 3. Ramona Trovato, a White female and the Director of OCHP, was the selecting official. Id. As posted, one portion of the first evaluation factor required experience in the field of "health physics," but Ms. Kelly thought this was an irrelevant criterion for the position and, with Ms. Trovato's agreement, eliminated this factor from consideration. Id.; see also Pl.'s Statement of Material Facts as to Which There is a Genuine Dispute ("Pl.'s Facts") ¶ 16. Ms. Kelly then rated and ranked the applicants and sent three names to Ms. Trovato: Paula Goode, a White female, Robin Anderson, a Black female, and Denny Cruz, an Hispanic male. See Def.'s Facts ¶¶ 7-8. These candidates received scores from Ms. Kelly of 47, 44, and 44, respectively. Def.'s Ex. 7. Dr. Walker's score was 31, and he ranked sixth of the nine applicants overall. Id.; see also Def.'s Ex. 17. Ms. Trovato selected Ms. Goode for the position. Pl.'s Facts ¶ 23. On the first evaluation factor, from which the "health physics" element had been removed, Dr. Walker received nine out of a possible 12 points, the same score received by Ms. Goode. Def.'s Ex. 7.

Dr. Walker alleges that Ms. Kelly changed the selection criteria "after having received and reviewed the applications for this position" in order "to prevent Dr. Walker from being the most highly ranked applicant and the most qualified for the position." Compl. ¶ 15. Ms. Kelly is deceased and unable to provide testimony or affidavit evidence in this matter. However, the EPA proffers an EEO Counseling Report, prepared by EEO Counselor Carolyn G. Epps on her investigation of Dr. Walker's charge of discriminatory non-selection, which states:

Telephonic conversation with Subject-Matter Expert [Ms. Kelly]. Did not know race of individual and this was not stated on the application. No prior knowledge of [Dr. Walker] or prior EEO complaint. According to the Subject-Matter Expert ranking factor number one was an irrelevant point for the job. The factor was removed before receiving package of applications.

Def.'s Ex. 8. Dr. Walker does not dispute that Ms. Kelly made this statement. See Pl.'s Facts ¶ 28. Ms. Trovato similarly told the EEO Counselor that "[t]he change to the ranking factor was brought to her attention by [Ms. Kelly] prior to review of the applications." Def.'s Ex. 8; see also Def.'s Ex. 3 (Trovato Decl.) ("At [the time the health physics criterion was removed], I know for certain that I was ignorant of who might have applied."). Moreover, Francine Butler, a personnel management specialist at EPA, stated under oath that it would have been ordinary EPA procedure for Ms. Kelly to review the vacancy announcement before the application period closed and, therefore, before she received any applications to review. Def.'s Ex. 4.*fn2

At the EEO counselor's request, Ms. Kelly re-reviewed Dr. Walker's application. Def.'s Ex. 8. She noted that he "did not get high points because his application showed straight science application. The ranking factors had a lot to do with the ability to meet and deal with scientific and non-scientific groups outside the agency pertaining to children's health," and Dr. Walker did not present a strong background in the important areas of "[o]ral communications, program management, [and] oversight functions." Id.

Dr. Walker also contends that his non-selection was the result of retaliation for prior EEO activity. See Pl.'s Amended Motion to Deny Def.'s Motion to Dismiss Or In the Alternative For Summary Judgment ("Pl.'s Mem.") at 14. Specifically, he cites a 1994 discrimination complaint that he filed against his then-manager Margo Oge. Pl.'s Facts ¶ 1. After he filed the charge but before it was resolved, Ms. Oge was transferred to another department and was replaced by Ms. Trovato. Id. ¶ 3. Dr. Walker eventually settled his EEO complaint in 1995, and the settlement agreement was authorized and signed by Ms. Trovato. Id. ¶¶ 6-7. For her part, Ms. Trovato denies that she knew of Dr. Walker's prior EEO activity at the time she selected Ms. Goode for the Environmental Scientist position at OCHP. See Def.'s Ex. 3.

B. Discrete Acts of Discrimination and Retaliation

In addition to the non-selection, Dr. Walker alleges a series of other adverse actions that he believes constituted a pattern of unlawful retaliation and discrimination. The origins of this claim can be traced to an incident that occurred on or about August 27, 1998. At that time, Dr. Walker was mentoring Kathleen Reed, a summer intern from the University of Maryland. See Def.'s Facts ¶ 12. Ms. Reed asked Dr. Walker to include her name and the name of her faculty advisor, Dr. Tony Whitehead, and their publications, in a research proposal that was submitted by Dr. Fatimah Jackson, another researcher from the University of Maryland. Pl.'s Facts ¶ 65. "Dr. Walker refused and told her that it was against federal law for her to make such a request to a government official and, because she had done nothing to finish her [summer] project, she had to leave" the EPA. Id. ¶ 66. This response provoked a loud and angry rejoinder from Ms. Reed, who concluded with the accusation, "Jim you raped me . . . Jim you raped me . . . ." See Def.'s Facts ¶ 12; Def.'s Ex. 11 (Mar. 4, 2000 Walker Affidavit).

Dr. Walker returned to his office and called his supervisor about the incident. Pl.'s Facts ¶ 69. When Ms. Reed was interviewed, she apparently reported that "'Dr. Walker had turned towards her in a threatening manner.'" Id. Tonya Hamlett, then-National Program Manager for Preventing Violence in the Workplace at EPA, was asked to intervene. Def.'s Ex. 12 ¶ 3 (Feb. 14, 2006 Declaration of Tonya Hamlett ("Hamlett Decl.")). She interviewed Dr. Walker and Ms. Reed and recommended that they be sent home for the remainder of the work week. Id. ¶ 4. According to Charles H. Ris, Deputy Director for the NCEA-W and Dr. Walker's second-line supervisor, the purpose of the administrative leave, "in accordance with advice from the labor relations specialist [Tonya Hamlett], was to separate the parties and allow for a cooling off period. . . . [N]either [Mr. Ris] nor anyone else had reached any conclusions as to what exactly had happened or who was to blame. What was apparent was that [there were] two agitated and emotional employees who needed to be separated from each other, in order to prevent a further escalation of the incident." Def.'s Ex. 14, Declaration of Charles H. Ris ("Ris Decl.") at 1-2.*fn3

Indeed, the argument between Dr. Walker and Ms. Reed was no small matter: [Dr. Walker] did not disguise his contempt for Ms. Reed's allegations, which he regarded as baseless. [He] was also very agitated over defamatory remarks that he alleged Ms. Reed made to him during their verbal altercation, which . . . Ms. Reed did not deny uttering. He was particularly upset that Ms. Reed had publicly maligned him, since the altercation had occurred in cubicled space and apparently at a sufficient volume to have been overheard by nearby co-workers. He was surprised, and then exercised, over [Mr. Ris's] order for him to leave the building on administrative leave.

Id. at 2. On the next Monday Mr. Ris instructed Dr. Walker and Ms. Reed to have nothing more to do with each other and that responsibilities for mentoring Ms. Reed would be turned over to someone else. Id. He issued a formal memo, "Subject: The Rules," to each of them stating, inter alia, that "[w]hatever did happen is unfortunate for both of you, but it can stop right here." Def.'s Ex. 15. After investigating the incident, Ms. Hamlett "concluded that there was insufficient evidence to sustain a finding that anyone had acted violently" and recommended to Dr. Walker's supervisors that the matter be closed. Hamlett Decl. ¶ 5.

Notwithstanding Mr. Ris's advice and Ms. Hamlett's conclusion, Dr. Walker repeatedly urged management to investigate further his claim that Ms. Reed defamed him and his other allegations against her. Def.'s Ex. 14. Other employees were invited to come forward to provide more information, but "there were no witnesses who saw the episode and no one who would admit to overhearing it. The facts surrounding the altercation were a 'he said/she said' matter." Def.'s Ex. 14. Dr. Walker contacted Ms. Hamlett to inquire as to the status of his "case" and, "because of his degree of agitation over the matter, . . . in a break with [her] usual protocol [she] issued him a memorandum noting that the case had been closed without any definitive findings." Def.'s Ex. 12. On September 2, 1998, Mr. Ris sent Dr. Walker a memo advising that Dr. Walker should "wrestle with or perhaps let erode away [any embarrassment] as these things will do." Def.'s Ex. 20. He also directed: "The alleged event is a thing of the past in this office, it[']s over! Let it go if you can do so. What you do outside of EPA with the University controversies is none of our business, though if someone drags EPA into it or if it is perceived that EPA is involved, we might have to reply." Id. One week later, on September 9, 1998, Ms. Hamlett "entreated [Dr. Walker] to discontinue his pursuit of the matter . . . . What is more, [she] told [Dr.] Walker to refrain from conduct which might imply that he was acting on behalf of EPA in a matter he had no authority to look into. [Dr.] Walker said he understood [her] instructions." Def.'s Ex. 21 pp. 1-2.

Despite management's repeated instructions to move on, Dr. Walker could not let the matter go. In October 1998 he wrote a letter to the President of the University of Maryland, on EPA letterhead, suggesting that there was "strong evidence" that Ms. Reed had made false statements on her application to EPA and had improperly attempted to influence Dr. Walker, "'a government official.'" Def.'s Ex. 16. The letter directed the University to provide Dr. Walker with certain information "within thirty working days," including proof that Ms. Reed had written certain articles, a copy of the University's code of ethics for students participating in internship programs, and a statement from Ms. Reed confirming or denying that she had been convicted of a felony. Id. Dr. Walker ended the letter by threatening to turn the matter over the EPA's Inspector General's Office if his demands were not met. Id.

This did not go over well with the EPA, which found the episode "quite embarrassing to EPA, generally, and to [ORD] specifically, and the Director of the NCEA-W apologized for, and repudiated, [Dr. Walker's letter] almost immediately." Ris Decl. at 3. On December 3, 1998, EPA issued a formal Letter of Reprimand to Dr. Walker for "refusing to comply with instructions, misrepresenting [his] status as an official representative of the Agency conducting official business, and for misuse of Agency letterhead for unauthorized business." Def.'s Ex. 22.*fn4 Two weeks later, on December 18, 1998, Dr. Walker filed an EEO charge based on the earlier incident with Ms. Reed. Def.'s Ex. 13. And, on February 9, 1999, Dr. Walker filed an EEO complaint alleging that the Letter of Reprimand was issued in retaliation for his prior EEO activity. Def.'s Facts ¶ 21; Pl.'s Ex. 8.

The Letter of Reprimand was to remain in Dr. Walker's personnel file "for a period not to exceed two years." Def.'s Ex. 22; Pl.'s Facts ¶ 52. In June 2000, 18 months after the Letter of Reprimand was issued, Dr. Walker asked Mr. Ris why the Letter of Reprimand had not been removed because "the issuing managers had told [Dr. Walker] that it would be taken out before the recommended two year period had ended." Pl.'s Facts ¶ 54. According to Dr. Walker, Mr. Ris responded, "I do not know. You are still filing all of those EEO complaints." Pl.'s Facts ¶ 55. Defendant denies that anyone at EPA told Dr. Walker that the letter would be removed before the two-year period ended and that Mr. Ris stated that the letter was being kept in the file because Dr. Walker had filed EEO complaints. See Def.'s Reply Brief at 14-15. In any event, due to an administrative error, it appears that the Letter of Reprimand had never actually been placed in Dr. Walker's personnel file. Def.'s Ex. 10 (Hamlett Decl.)¶¶ 8-10.*fn5

On or about December 21, 2000, Dr. Walker filed a class complaint against the EPA alleging discrimination based on race, gender, and retaliation. Pl.'s Facts ¶ 59. Thereafter, in August 2001, Dr. Walker learned that Mr. Ris had told Agency counsel from the EPA Office of the General Counsel about the December 3, 1998, Letter of Reprimand and had sent counsel a copy, even though it should have been removed from Dr. Walker's personnel file earlier. Id. ¶¶ 60-62. Dr. Walker contends that Mr. Ris's communication with Agency counsel violated the promise that the Letter of Reprimand would not be used as the basis for an adverse personnel action after the two-year period had expired. Id. ¶¶ 62-63.

As another part of the alleged pattern of retaliation, Dr. Walker complains about an incident in June 2004. At that time, the Office of Research and Development published a list of individuals who received cash awards in a competition judging scientific research papers. Pl.'s

Facts

¶ 29. Dr. Walker had submitted a paper for the competition but was not recognized. Id. ¶ 30. He "was a bit suspicious, because the list primarily contained names of individuals who were either program directors/managers or persons who controlled the research 'purse strings' in NCEA/ORD, or personal friends of those individuals." Id. Because this appeared to be a conflict of interest to Dr. Walker, he "sent a 'global' email to NCEA, ORD managers, and scientists, expressing his concerns and asking management to look into this matter by asking the Office of the Inspector General to provide a reading on whether his concerns were justified." Id. ¶ 32. On June 25, 2004, Mr. Ris sent an email to Dr. Walker admonishing him for sending the global email because "[t]hese types of matters . . . are kept reasonably confidential in initial stages so that proper inquiry can be made and so that the named employees are not unfairly branded, embarrassed by allegations . . . or suffer unnecessary defamation of character." Def.'s Ex. 24. Dr. Walker challenges this admonishment as retaliation for his participation in prior EEO activity and as discrimination because of his race, although it is undisputed that he failed to seek EEO counseling on this matter until May 3, 2005. Def.'s Facts ¶ 32.

Summing up his claims, Dr. Walker alleges a pervasive retaliatory policy against him "in [an] attempt to put him in his place and violate his civil rights," including:

* taking away his supervisory responsibilities over summer interns;

* eliminating the summer intern program for minorities;

* taking away his ability to use EPA letterhead to communicate with individuals outside the Agency about EPA-related matters;

* preventing him from participating in functions or activities within the Agency that would allow him to advance or be promoted to a GS 15 or above;

* preventing him from participating in functions or activities within the Agency that are commensurate with his skill, background and expertise (scientific workgroups, priority projects, etc.);

* preventing him from using the office email system to communicate with others within NCEA/ORD on issues related to the Agency;

* preventing him from being selected to a higher grade level that he was the most qualified for;

* using the Letter of Reprimand to prevent him from being certified as a class agent; and

* preventing him from contacting EPA's Office of Inspector General on matters related to misuse of government ...


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