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Greenhouse v. Geren

September 2, 2008

BUNNATINE H. GREENHOUSE, PLAINTIFF,
v.
PETE GEREN*FN1, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

Memorandum Opinion

Plaintiff brings this employment action against the Department of the Army, the United States Army Corps of Engineers, the Department of Defense, the United States, and several named officials at the above agencies. Plaintiff alleges employment discrimination on the basis of sex and race in violation of Title VII of the Civil Rights Act, unlawful retaliation under the Whistleblower Protection Act, and violations of the Privacy Act and the Administrative Procedure Act ("APA"). Pending before the Court is Defendants' Motion for Partial Judgment on the Pleadings or in the Alternative for Partial Summary Judgment. Defendants move for judgment in their favor on Plaintiff's APA, Whistleblower, and Privacy Act claims. The Court held a hearing on this Motion on May 29, 2008. For the reasons stated herein, Defendants' Motion is GRANTED on the Whistleblower and APA claims and DENIED on the Privacy Act claims.

I. Factual Background

The facts of this case are complicated and lengthy and involve allegations of corruption reaching very high levels of the United States government. In this case, Plaintiff alleges serious violations of multiple civil rights statutes over a period of several years. Below, the Court summarizes the facts related to those of Plaintiff's claims at issue in the instant motion, namely the APA, WPA, and Privacy Act claims. The Court has excluded some facts and events pertinent to Plaintiff's race and sex discrimination claims, as those claims are not presently before the Court.

Plaintiff is a 63 year-old African American woman. In 1997, she was appointed to be the Principle Assistant Responsible for Contracting ("PARC") of the US Army Corps of Engineers ("USACE"). She was the first African American female to serve in this position, which operates as the head of all contracting operations for the USACE and she was a member of the Senior Executive Service ("SES"). Compl. ¶¶ 28, 33. Once installed in her position, Plaintiff contends that she was specifically instructed to "take aggressive action to terminate the casual and clubby contracting practices that were routinely occurring within the USACE." Id. ¶ 41. Accordingly, she required commanders in the field to follow the Federal Acquisition Regulations and to end preferential treatment of favored government contractors. Id. ¶ 42-43. Plaintiff contends that the commanders reacted negatively to the fact that a "black woman had the power to compel them to strictly adhere to contracting requirements." Id. ¶ 46. She further contends that as a result of her race and sex she encountered continuous and recurrent hostility in the workplace. Id. ¶ 48.

Between 1997 and 2000, Plaintiff received outstanding performance evaluations from Commanding General ("CG") Ballard, who functioned as Plaintiff's "senior rater." Id. ¶ 50. In 2000, CG Ballard retired and was replaced by Lieutenant General ("LTG") Flowers. Plaintiff avers that "commanders assumed that Plaintiff would leave the USACE when CG Ballard, a black male, retired." Id. ¶ 56. After CG Flowers took over, Plaintiff contends that the resentment for her requirement of strict adherence to contracting law increased. Id. ¶ 58. She alleges she was routinely belittled, and excluded from key meetings and decisions. She also alleges that the General Counsel routinely diverted contracting actions that were not within his purview and responsibility in order to circumvent her authority and that commanders instructed their subordinate contracting officers not to contact Plaintiff for guidance on contracting actions. Id. ¶¶ 62-64. On March 5, 2002, Plaintiff hand-delivered a letter to CG Flowers voicing concern over improper interference with the exercise of her official duties as the PARC, including interference with the proper review and execution of contracting documents. Id. ¶ 67. CG Flowers did not respond to her letter. Id. ¶ 68.

The heart of Plaintiff's claims surround the alleged serious improprieties in the awarding of a five-year no-compete contract to Kellogg Brown and Root ("KBR"), a subsidiary of the Halliburton Corporation, in late 2002 during preparations for this country's invasion of Iraq. Plaintiff contends that she was entirely excluded from the initial meetings and planning for the award of this contract, known as "Restore Iraqi Oil" ("RIO"). Federal regulations require that a "Justification and Approval" ("J&A") be prepared that sets forth factual and legal reasons for justifying the exception to competition for a government contract. Id. ¶ 82. When the contract exceeds $10 million, the J&A must be submitted to the PARC. Id. ¶ 83. Plaintiff alleges that the draft J&A for the RIO contract was prepared without any involvement from Plaintiff and that it was only presented to her for approval at a video conference where she learned that KBR had also been awarded two other major no-compete contracts. Plaintiff voiced her belief that multiple aspects of the contracting decisions were illegal and beyond the legal authority of the USACE. Id. ¶ 101. (Plaintiff avers that the Government Accountability Office later determined that one of the awards was in fact illegal. Id. ¶ 102.) Specifically, Plaintiff objected to the inclusion of marketing and distribution of oil in the RIO contract, which would effectively give KBR a monopoly on the production and distribution of Iraqi oil. Id. ¶ 97. Plaintiff claims that Congressional action was required in order for the Corps to have the authority to oversee such production and distribution and therefore vigorously objected to this component of the J&A.

In response to her protest, the J&A presented to Plaintiff was changed. Plaintiff claims that her approval was conditioned on the explicit understanding that the no-compete RIO contract that was about to be awarded to KBR did not extend to marketing and distribution. Id. ¶ 102. Plaintiff maintains that she insisted that the contract be limited to a one-year duration. The final J&A ultimately presented to her for approval included a two-year base period with three one-year extensions. Id. ¶ 114. Plaintiff contends that she did not want to approve the contract as presented but claims that prosecution of the war presented her from further questioning the contract. Accordingly, she signed the contract but wrote on the original J&A itself, "I caution that extending this sole source effort beyond a one year period could convey an invalid perception that there is not a strong intent for limited competition." Id. ¶ 116.

Plaintiff alleges that after she voiced her objection on the J&A, her colleagues and superiors stopped speaking to her all together and her responsibilities were further usurped by other officials without the statutory authority or expertise to undertake them. Id. ¶ 122-23. Plaintiff contends that CG Flowers intentionally misled Congress in response to an inquiry from Congressman Waxman regarding the scope and duration of the RIO contract. Plaintiff argues that the inquiry should have been answered by her, but instead, CG Flowers responded and represented that the intended scope of the RIO contract included the production and distribution of Iraqi oil. Plaintiff claims that this assertion contradicted the explicit basis for her approval of the J&A in her capacity as the USACE PARC and Competition Advocate. Id. ¶¶ 128-29.

Plaintiff claims that on April 2, 2003, CG Flowers issued a memorandum seeking to remove Plaintiff from the Senior Executive Service ("SES") based on her "level 5" performance rating, the lowest rating on the scale. Id. ¶ 222. Plaintiff contends that the drastic change in her performance reviews after Flowers took over as Commanding General was the result of discrimination and retaliation. The level 5 rating was ultimately replaced with a level 4 rating of "Fair." Id. ¶¶ 223-25.

On December 11, 2003, the Defense Contract Audit Agency ("DCAA") issued a report indicating that KBR had overcharged the government by $61 million for the purchase of fuel under the RIO contract. Id. ¶ 146. Plaintiff claims that CG Flowers decided to issue a waiver to KBR which dispensed with the requirement that KBR submit cost and pricing data to show that the overcharge was "fair and reasonable." Plaintiff contends that USACE conspired to keep this waiver a secret from Plaintiff because they knew she would not sign off on it, though under Army regulations her signature was required. Plaintiff alleges that the waiver was executed in a single day when Plaintiff was at home due to illness (but available all day by phone and fax) and that she did not learn of the waiver until she read about it in the national news. Id. ¶¶ 158- 179.

Plaintiff alleges she "engaged in protected activity" on February 12, 2004, when she delivered a letter to the Assistant Secretary of the Army detailing her concerns that contracting responsibilities were being improperly removed from her in an attempt to derail her career. Id. ¶ 181. On March 2, 2004, Plaintiff gave a letter to Assistant Secretary Bolton, advising him that the command structure of USACE was intentionally undermining the contracting process and that highly competent contracting officers were being removed from the USACE because they had exposed contact abuse. Id. ¶ 187. Plaintiff contends that she received no response to either letter. Id. ¶ 188.

CG Flowers gave Plaintiff a second "level 5" failing performance evaluation for the period of October 2002 to September 2003. On March 16, 2004, CG Flowers issued a memo to Assistant Secretary Brown seeking to remove Plaintiff for unacceptable performance based on the failed performance rating for the period of October 2002 through September 2003. Id. ¶ 190. On July 14, 2004, Assistant Secretary Bolton recommended that the final "failed" rating of Plaintiff be disapproved, but stated that assuming CG Flowers would replace that rating with a Level 4 "Fair" rating, then he approved of the decision to remove Plaintiff from the SES for two "less than successful" ratings within a three year period. Id. ¶ 191. Plaintiff contends that Assistant Secretary Brown's approval was required for her removal and that his approval was never given. Id. ¶¶ 203, 205.

On July 1, 2004, LTG Carl Strock became the CG of the USACE. On October 5, 2004, CG Strock issued a memorandum styled as a "notice of removal" from the SES. In response, Plaintiff, through counsel, submitted a written Request for Investigation to the Secretary of the Army alleging serious abuse related to the contracts awarded to KBR and the wavier request and also alleging that other officials were improperly controlling contracting matters that should have been under the control of the PARC. The Army issued a letter on October 22, 2004 suspending any adverse personnel action against Plaintiff until a sufficient record was available to address the concerns set forth in the Request for Investigation. On June 3, 2005, CG Strock submitted a memo to the Secretary of the Army containing a purported "analysis" of Plaintiff's concerns. Id. ¶ 212. Plaintiff contends the analysis contained false and misleading information, that CG Strock didn't know who prepared it, did not authorize its preparation, did not know if it had been verified, and did not even read it before submitting it to the Secretary of the Army. Id. ¶ 216.

On June 27, 2005, Plaintiff voluntarily appeared before a Congressional committee on Waste, Fraud and Abuse in Contracting and testified about the alleged KBR contract abuse she witnessed. Three days before she appeared, Plaintiff avers that the General Counsel of the USACE conveyed to her that it would not be in her best interest to do so. Id. ΒΆ 218. Three weeks after she ...


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