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Hendricks v. Paulson

October 4, 2007

MYRA A. HENDRICKS, PLAINTIFF,
v.
HENRY M. PAULSON, JR.,*FN1 SECRETARY OF THE TREASURY DEFENDANT.



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

MEMORANDUM OPINION

Myra A. Hendricks was a Special Agent of the Treasury Inspector General for Tax Administration ("TIGTA") until she left that job on August 6, 2004. She instituted this lawsuit in 2003 and has amended it thereafter, bringing forth allegations that she suffered discrimination, harassment, and a hostile work environment, that she was retaliated against, and that she was constructively discharged, due to her race, African American, and gender, female, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.*fn2 Secretary of the Treasury Henry M. Paulson, Jr., sued in his official capacity, denies all allegations. After full discovery, Treasury moved for summary judgment in its favor. The Court has reviewed the extensive record and briefs with great care and concludes that there are no genuine and material fact issues in dispute and that summary judgment should be entered in Treasury's favor as a matter of law.

I. BACKGROUND FACTS

A. The Agency and Its Selection Policies

Pursuant to the IRS Restructuring Act, in 1998 the Office of Investigations of IRS Internal Security became the Washington Office of Investigations under the new Treasury Inspector General for Tax Administration ("TIGTA"). See Pl.'s Second Am. Compl. and Demand for Jury Trial [Dkt. #49] ("SAC") ¶ 14. The name of the office changed two more times, eventually becoming the Special Inquiries and Inspection Division in 1999. Id. In 2002, the Special Inquiries and Inspection Division's name changed to the Special Inquiries and Intelligence Division ("SIID"). Id. SIID is the elite investigative division within TIGTA. Id. ¶ 16. Its special agents handle sensitive investigations, including allegations of misconduct by IRS Chief Counsel employees, the IRS Commissioner's Advisory Board, IRS Senior Executives, IRS GS-15 management officials, TIGTA Special Agents, and Internal Revenue Service Special Agents assigned to the Criminal Investigation Division. Id. ¶ 16. Special Agents in SIID conduct investigations, write reports of investigation, interview witnesses and complainants, work with the Office of the U.S. Attorney to prosecute subjects of investigations, and testify before grand juries. See id. ¶ 17.

The TIGTA Operations Manual contains the agency's policies, standards and procedures for Merit Staffing. See Chapter (600) 70.5 of the Operations Manual ("Operations Manual") (Def.'s Ex. 21). When selecting candidates for promotion to vacant positions, the TIGTA must "formally evaluat[e] [all qualified/eligible candidates] against the knowledge, abilities, skills, and other characteristics ("KSAs") stated in the vacancy announcement . . . determined to be important to the position being filled." Id. at 531-32.

To ensure the integrity and reliability of the candidate evaluation procedures, a merit staffing panel or ranking official will evaluate candidates against KSAs. Use of a panel or a ranking official is at the discretion of the selecting official. Panel members or ranking officials must be at least the grade level of the position to be filled. The panel members for all supervisory positions must be supervisors themselves. If a panel is used, it shall be generally composed of three members. Whenever possible, at least one (and preferably two or more) voting members will have a substantive/technical knowledge of the position to be filled . . . The primary function of the panel/ranking official will be to rank all basically qualified candidates against established evaluation criteria. The outcome of this process is a determination of the best qualified candidates.

Id. at 532. TIGTA policy indicates that "[t]he selecting official has the discretion to interview or not interview any noncompetitive*fn3 applicant certified for selection." Id. With respect to competitive applicants, TIGTA policy indicates that if one competitive applicant is interviewed, then all competitive applicants must be interviewed. Id.

B. The Claims

Ms. Hendricks is an African-American woman who was a GS-13 Special Agent in TIGTA until August 6, 2004. She began working for the IRS in 1984 as a GS-4 secretary in the Collection Division and worked her way up until she was promoted to the position of Special Investigator, GS-13, in 1997. SAC ¶¶ 1-2. Ms. Hendricks complains that she was passed over for promotion on four occasions, subjected to unwarranted discipline, denied career-enhancing "acting" assignments to fill in for absent superiors, subjected to harassment and a hostile work environment, and constructively discharged.

1. 2000 Application for GS-14 Criminal Investigator (TG2011)

Ms. Hendricks applied for the position of GS-14 non-supervisory criminal investigator in March 2000, pursuant to Vacancy Announcement TG2011. SAC ¶ 39. Robert Johnson, a white male, was selected for the position. Id.

Then-Assistant Special Agent in Charge ("ASAC") Tim Camus served as the ranking official for TG2011. Deposition of Timothy Camus ("Camus Dep.") at 68. He used four ranking criteria*fn4 and gave points to each applicant on the Best Qualified List accordingly. Id. at 73-75. Robert Johnson (Caucasian male), Jean Keller (Caucasian female), and Michael Radetic (Caucasian male) all received a score of 10 on each of the four criteria. Ms. Hendricks received a rating of 7 for the first criterion, 10 for the second, 7 for the third, and 10 for the fourth. Mr. Camus states that he did not give Ms. Hendricks a higher score on the first criterion because her submission did not indicate that she had used confidential informants or confidential sources or that she had "generated proactive investigative accomplishments." Camus Decl. 6/7/02 at 5. Mr. Camus states that he did not give Ms. Hendricks a higher score on the third criterion because her submission did not indicate "that she prepared reports concerning highly sensitive, complex, multi-agency-multi allegation investigations." Id. As discussed below, Ms. Hendricks challenges these statements.*fn5 Mr. Camus recommended that Mr. Johnson be promoted. Id. The selecting official, then-Special Agent in Charge ("SAC") Brian Dwyer, selected Mr. Johnson for the position on March 23, 2000. Def.'s Facts ¶ 8.

Ms. Hendricks asserts that she was more qualified for the job than Mr. Johnson. SAC ¶ 40. She also alleges that Mr. Johnson had a history of misconduct which compared badly to her unblemished record. Id. ¶¶ 42-43. In 1991, Mr. Johnson had engaged in a fistfight when he had been drinking while off duty. Although off duty, he was wearing his official firearm, which he lost in the melee. Deposition of Robert Johnson ("Johnson Dep.") at 48-50; Pl.'s Mem. of P. & A. in Opp'n to Mot. for Summ. J. (Pl.'s Opp.") at 13. The firearm was returned to TIGTA by the Laurel, Maryland, police. Id. In addition, in 1995, Mr. Johnson was suspended for two days for using his government-owned vehicle ("GOV") to, inter alia, transport two unauthorized passengers. Johnson Dep. at 55-59. Mr. Dwyer discussed Mr. Johnson's disciplinary record with his supervisor prior to the selection and determined that it was " 'not a problem' to bring Mr. Johnson into SIID because he had fulfilled his punishment." Deposition of Bryan Dwyer ("Dwyer Dep.") at 67; Pl.'s Opp. at 14. At least one other manager in SIID disagreed and thought that Mr. Johnson could never investigate other persons " 'based on his own integrity issues.' " Pl.'s Opp. at 14 (citing Deposition of ASAC Karen Parker-McGill ("Parker-McGill Dep.") at 20).

The Application Package for Mr. Johnson, Def.'s Mem., Ex. 6, shows that Mr. Johnson had worked as a criminal investigator for the IRS and TIGTA for fourteen years in the Baltimore Field Division. His experience included undercover operations, joint investigations with other federal law enforcement agencies, an internal investigation of a TIGTA Special Agent, an investigation into the kidnapping of an IRS criminal investigator, and international investigations. Id. at 5-7. He received performance awards in 1987, 1990, 1991, 1996, 1997, 1998, and 1999, as well as various manager's awards and special act awards. Id. at 7-8. In his most recent performance appraisal before his promotion, covering June 1,1998 to May 31, 1999, Mr. Johnson received five out of five, the highest score possible, for the following job elements: Conducting Investigations, Preparation of Reports, Inventory Management, Interpersonal Skills, and Other Assignments and Duties. Id. at 9. He received a grade of four for Case Development. Id. According to his evaluation, Mr. Johnson's written products were "meticulously prepared," "clear, complete and concise," "timely and with no need for correction," "identified all aspects of the issues being presented," "prepared in a manner that allows the reader to quickly and easily understand the entire scope of the investigation," and had "few equals." Id. at 13.

The Application Package for Ms. Hendricks, Def.'s Mem., Ex. 7, shows that she became a criminal investigator in May 1992 and had eight years' experience. From 1993 until 2000, Ms. Hendricks served as a Technical Service Officer and then a Regional Technical Service Officer ("RTSO") in addition to her duties as a criminal investigator.*fn6 Deposition of Myra Hendricks ("Hendricks Dep.") 7/6/05 at 17-22. Ms. Hendricks's application indicates that she received performance awards in 1992 and 1997. See Def.'s Mem., Ex. 7 at 42. She received a manager's award in 1994, an IRS Commissioner Protection Detail award in 1998, and a special act award in 1998. Id. In her performance appraisal covering the same time frame as Mr. Johnson's, Ms. Hendricks received a rating of five out of five for the following job elements: Coordinate Technical Equipment and Operations Program, Interpersonal Relations, and Other Assignments and Duties. Id. at 32. She received a four for Conducting Investigations and Case Development. Id. She received a rating of three for Preparation of Reports and Inventory Management. Id. Her evaluation noted that she was assigned as the RTSO for the National Office. Id. at 35. She was "called upon to perform an unusual number of supplementary tasks" due to this assignment because of "ongoing changes in the organization." Id. at 35.

As such, she devoted the vast majority [of] her time to supporting National Office operations in the technical equipment area. Despite this extraordinary effort as the National Office RTSO, she had an inventory of criminal and administrative cases to manage. Incredibly, all of the above-cited tasks did not deter her from uncovering and developing possible investigations, and assisting other agents with their investigations. She was an invaluable resource for the office, providing both investigative and technical support for other investigators and managers.

Id. Ms. Hendricks carried a smaller caseload of investigations than other agents and her reports were "not always submitted within the required time frames." Id. at 40.

2. 2001 Application for GS-14 Criminal Investigator*fn7 (TG2114)

In October 2001, TIGTA posted Vacancy Announcement TG-2114, for a non-supervisory criminal investigator, GS-1811-14, in SIID. Ms. Hendricks submitted her application, but Steven Geary, a white male, was selected. SAC ¶ 27. Ms. Hendricks alleges that she was more qualified than Mr. Geary, id. ¶ 28, that Mr. Geary had been placed in an acting position earlier in the spring of 2001 to enhance his credentials, id. ¶ 29, and that Ms. Hendricks was not given the opportunity to participate in career-enhancing acting opportunities within SIID. Id. ¶ 30.

On this occasion, a panel of three ASACs within SIID acted as the rating panel. Def.'s Facts ¶ 14. The panel included Jim Rice (Caucasian male), Tim Camus (Caucasian male), and Dedra Drayton (African-American female). Id. Using the same four criteria as on the selection for Vacancy Announcement TG2011, the panel members prepared worksheets for each application reviewed and scored each applicant accordingly. Def.'s Facts ¶ 16. Ms. Drayton gave Ms. Hendricks a rating of 7 for criterion one, 7 for criterion two, 10 for criterion three, and 7 for criterion four. Declaration of Dedra Drayton ("Drayton Decl.") ¶ 11; Def.'s Mem., Ex. 9. Ms. Drayton gave Mr. Geary a rating of 7 for criterion one, 7 for criterion two, 10 for criterion three, and 10 for criterion four. Drayton Decl. ¶ 14; Def.'s Mem., Ex. 9.*fn8 Mr. Rice gave Ms. Hendricks 7 for the first criterion, 10 for the second, 7 for the third, and 7 for the fourth. Def.'s Mem., Ex. 9. Mr. Camus gave her 7 for the first criterion, 7 for the second, 7 for the third, and 10 for the fourth. Id. Thus, Ms. Hendricks received a total score of 93. Id. Mr. Geary's total score was 102. Id.

The panel of Messrs. Rice and Camus and Ms. Drayton also interviewed each of the candidates on the Best Qualified list, including Ms. Hendricks. Drayton Decl. ¶ 16 Ms. Drayton developed a list of questions that was asked of each candidate. Def.'s Mem., Declaration of James Rice ("Rice Decl.") ¶ 4. Although her interview went well, Ms. Hendricks was not selected.*fn9 Mr. Rice stated that he recommended Mr. Geary to Mr. Dwyer, the selecting official, because Mr. Geary demonstrated the skill to focus on the specific allegations [he was] to investigate, to address these issues, and to close investigations in a timely manner. [Mr.] Geary . . . also demonstrated leadership characteristics by conducting [his] assignments with little or no supervision, conducting [his] investigation timely, and producing on each occasion quality reports of investigations. In contrast, [Ms. Hendricks] takes forever to close assignments and lacks the skill to take on more than one assignment at one time.

Rice Decl. ¶ 5. Ms. Drayton also concluded that Mr. Geary "had more relevant and more overall experience to do the job" because his application package and interview "demonstrated more of an ability to work complex investigations and the requisite leadership abilities through interviews." Drayton Decl. ¶ 20. With Mr. Camus's full agreement, the Interview Panel made a unanimous recommendation to Mr. Dwyer that Mr. Geary and Ms. Joanne Jensen were Best Qualified for the two vacancies. Id., ¶¶ 21-22. For the two open positions, Mr. Dwyer selected Ms. Jensen*fn10 and Mr. Geary. Def.'s Mem., Declaration of Brian Dwyer ("Dwyer Decl.") ¶ 4.

The application package for Mr. Geary showed that he had spent four years as a police officer with responsibilities for interviewing witnesses, completing incident reports, serving and executing search warrants, and testifying in court, before joining the IRS as a criminal investigator in 1989. Def.'s Mem., Ex. 12. He had conducted over 150 criminal and administrative investigations and served as a Technical Support Officer. Id. He had also been assigned to serve as Acting Assistant Special Agent in Charge. Id. Mr. Geary submitted two performance appraisals, one covering October 1, 2000 to September 30, 2001, and one covering February 12, 2000 to October 31, 2000. Id. The latter of these appraisals showed that Mr. Geary had received a mid-year evaluation in February 2000 of "Pass" on TIGTA's pass/fail appraisal system for special agents. Id. By year's end, i.e., October 31, 2000, he had raised his performance to a Pass Plus. Id. He maintained that level of performance throughout the next year. Id.

Naturally, the work history submitted by Ms. Hendricks in connection with Vacancy Announcement TG2114 was substantially similar to that contained in her application for TG2011. See Def.'s Mem., Ex. 13. Ms. Hendricks had received two additional awards in 2000 -- a special act award and a manager's award -- which she included in this application. See id. She also addressed more recent investigations and submitted her most recent performance appraisal for the period of November 1, 2000 to October 31, 2001. This appraisal reflected ratings of "Pass" for her mid-year and final appraisal on all elements.

3. 2002 Application for Criminal Investigatory Senior Special Agent (02- FESB-210) Ms. Hendricks applied for the position of GS-14 Senior Special Agent in SIID under vacancy announcement 02-FESB-210 in September 2002. SAC ¶ 23; Def.'s Mem., Ex. 14. Ron McKeever, a white male, was selected.*fn11 Id.

Tim Herlihy served as the subject matter expert and ranked the application packages. Deposition of Tim Herlihy ("Herlihy Dep.") at 28-29. Based on Mr. Herlihy's rankings, the Bureau of Public Debt, which was providing personnel services to TIGTA, prepared two Best Qualified lists, one for "Competitive Eligibles" and one for "Non-competitive Eligibles." Def.'s Mem., Ex. 15. Ms. Hendricks was listed on the list of Competitive Eligibles along with Mr. McKeever. Id.

All candidates who made either Best Qualified list were interviewed by a panel consisting of ASAC Drayton (African-American female), ASAC Tim Upham (Caucasian male) and Special Agent Dwaine Brinson (African-American male). Def.'s Facts ¶ 35. The interview was crucial to the interview panel's recommendation. Mr. Brinson, a work friend of Ms. Hendricks, stated that "at the time of the interview, Ron McKeever answered the questions that I had very clearly, very concisely . . . I don't recall Myra Hendricks doing that . . . She did not answer the questions as clearly as Ron McKeever had answered the questions." Deposition of Dwaine Brinson ("Brinson Dep.") at 34-35. Mr. Brinson favorably compared Mr. McKeever's field experience -- which he viewed as giving Mr. McKeever experience on multi-agency cases dealing with a wide spectrum of issues -- to Ms. Hendricks's experience in SIID, which he viewed as presenting a more narrow scope of cases. Brinson Dep. at 35-36.*fn12 Mr. Brinson said the panel agreed that Mr. McKeever "was by far the best candidate." Declaration of Dwaine Brinson ("Brinson Decl.") at 2. Ms. Drayton also concluded that Mr. McKeever had "worked more complex and/or more involved cases and was more qualified for the position than [Ms. Hendricks]." Drayton Decl. ¶ 29. Mr. Upham states that all candidates were asked the same questions, and that he ranked Ms. Hendricks the lowest among them. Declaration of Timothy Upham ("Upham Decl.") ¶ 7.

The panel unanimously decided to recommend Mr. McKeever for the position. Drayton Decl. ¶ 29. They told Richard Sherwood, then Special Agent in Charge, that Mr. McKeever's interview was "far and above all the other applicants." Deposition of Richard Sherwood ("Sherwood Dep.") at 60-61. The panel advised that Mr. McKeever provided "the most complete answers and that those answers reflected the broadest experience and growth potential of all candidates." Declaration of Richard Sherwood ("Sherwood Decl.") at 1. As SAC, Mr. Sherwood did not have the authority to make a GS-14 selection, which TIGTA policy required be made by an agency executive. Def.'s Facts ¶ 40. Based on the recommendation of the interview panel, Mr. Sherwood recommended that Steve Jones, then-Assistant Inspector General for Investigations, select Mr. McKeever for the position. ¶¶ 39-40.*fn13 Mr. Jones selected Mr. McKeever on January 7, 2003. Def.'s Eh. 15. He based his selection on the recommendations of the interview panel and Mr. Sherwood, which he thought constituted a "diverse panel of individuals who . . . represented a good base of experience to render an opinion." Deposition of Steven Jones ("Jones Dep.") at 29-30.*fn14

The work histories of Mr. McKeever and Ms. Hendricks are not disputed. Mr. McKeever had been a criminal investigator with TIGTA and its predecessor, the IRS Inspection Service, since 1987. Def.'s Facts ¶ 42. He had previously been a police officer with the Washington Metro Transit Authority for approximately four years. Id. While a criminal investigator with the Department of Treasury, Mr. McKeever was responsible for initiating, planning and conducting investigations of alleged misconduct and criminal violations, executing search and arrest warrants, preparing reports, and testifying at trials and administrative hearings. Id. He was involved in multi-agency and international investigations involving bribery and conflict of interest allegations as well as a wide variety of offenses including impersonation, unauthorized disclosure, false statements, corrupt interference, threats and assaults, theft, computer fraud, and drug offenses. Id. He received performance awards in 1996, 1997 and 2002, a Manager's Award in 1996, and a Special Act award in 1998. Id. Mr. McKeever submitted a performance appraisal dated October 4, 2001, with his application. Id. ¶ 43. In TIGTA's pass/fail performance system, Mr. McKeever received a pass evaluation in each of the three critical elements for both mid-year and year-end reviews. Id.

Ms. Hendricks's application included her most recent performance appraisal as well. It showed that she had received a pass rating for all critical elements for both the mid-year and year-end reviews. Id. ¶ 45. Ms. Hendricks's application package demonstrated that she had conducted a variety of investigations and also held the RTSO and TSO collateral responsibilities until 2000.*fn15

4. 2003 Application for Assistant Special Agent in Charge of the Technical and Forensic Support Division (03-FESB-181)

TIGTA posted Vacancy Announcement 03-FESB-181 for the position of ASAC, GS-14, in the agency's Technical and Forensic Support Division. Def.'s Mem., Ex. 18. Ms. Hendricks applied for the position, located in Landover, Maryland, in April of 2003. SAC ¶ 35. Michael Radetic, a white male, was selected for the position. Id.

According to its position description, the duties of this ASAC were to supervise five to eleven special agents and one support person; to manage the group's investigative program and assigned resources; and to review and forward the results of investigations to the Department of Justice, IRS management, or other authorities for action concerning the criminal and administrative findings. Id.*fn16 At the time that Mr. Radetic applied for the job, he was already a GS-14 special agent in SIID. See Def.'s Mem., Ex. 19 at 1. Ms. Hendricks was a GS-13 special agent. Def.'s Mem., Ex. 20. No interviews were conducted for this vacancy, and TIGTA was not required to conduct interviews for the position. Def.'s Facts ¶ 48 see also Hendricks Dep. 7/7/05 at 84-86.

On April 10, 2003, the Bureau of Public Debt prepared two certificates for this vacancy announcement, one for competitive eligibles (those who were not at the GS-14 level) and one for non-competitive eligibles (those who already held GS-14 jobs). See Def.'s Mem., Exs. 22 (Merit Staffing Certificate - Non Competitive Eligibles) & 23 (Merit Staffing Certificate - Competitive Eligibles). Mr. Radetic and two other candidates were on the non-competitive eligibles certificate; Ms. Hendricks and one other candidate were on the competitive eligibles certificate.

Def.'s Facts ¶ 51. Ms. Hendricks acknowledges that the difference between the two lists is that a noncompetitive candidate could be selected for an in-grade transfer without consideration of the other applicants. Id.; Hendricks Dep. 7/7/05 at 85-86.*fn17

The application packages were provided to Michael Doak, SAC of the Technical and Forensic Division, for rating and ranking. Jones Decl. at 2. Mr. Doak recommended Mr. Radetic. Id. Mr. Jones selected Mr. Radetic based on Mr. Doak's recommendation, his own review of the applications, and discussion with Mr. Doak concerning the non-competitive eligibles.*fn18 Mr. Jones did not consider either of the candidates on the competitive eligibles list, including Ms. Hendricks.*fn19

There is no dispute about Mr. Radetic's background. He is a graduate of Illinois State University with a B.S. in Criminal Justice. Def.'s Facts ¶ 54; Def.'s Mem., Ex. 19. From 1987 to 1998, he worked as a Special Agent for the Office of the Inspector General for the Small Business Administration, where he conducted criminal investigations into loan fraud, contract fraud, bank fraud, theft, embezzlement and various other violations of Titles 15 and 18. Id. He became an Internal Security Inspector, GS-13, with the IRS Inspection Service (TIGTA's predecessor agency) in August 1998. Id. There, he was responsible for investigations involving contract/procurement fraud, identity theft, child pornography, narcotics violations, and complex financial crimes. Id. He has been involved in undercover operations and with multi-agency investigations involving federal, state and local law enforcement agencies. Id.

Ms. Hendricks's application notes her experiences as a GS-13 special agent, as a TSO, as an RTSO and an additional special recognition note for her work on a criminal investigation involving child pornography. Def.s Mem., Ex. 20.

Both Mr. Radetic and Ms. Hendricks had received "pass" evaluations on all critical elements of their positions in their most recent performance appraisals. Def.'s Facts ¶¶ 55, 56.

5. Hostile Work Environment

Ms. Hendricks complains that she was subjected to a hostile work environment and a series of adverse personnel actions that ultimately ...


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