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Evans v. Holder

May 5, 2009

MERINDA ELLIS EVANS, PLAINTIFF,
v.
ERIC H. HOLDER*FN1, UNITED STATES ATTORNEY GENERAL, DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff Merinda Ellis Evans ("Plaintiff" or "Ellis Evans"),*fn2 a Video Communications Specialist ("VCS") at the Federal Bureau of Investigation ("FBI"), brings this action against Eric H. Holder, Attorney General of the United States ("Defendant" or "Government"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Plaintiff seeks

(1) a determination that Defendant violated Title VII, (2) an injunction preventing Defendant from "continuing any and all discriminatory practices," (3) damages of more than $300,000, and

(4) reasonable attorney's fees, costs, and expenses.

This matter is now before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 47]. Upon consideration of the Motion, Opposition, Reply, the entire record herein, and for the reasons stated below, Defendant's Motion is granted. An Order shall accompany this Memorandum Opinion.

I. BACKGROUND*fn3

Plaintiff worked as a GS-13 VCS at the FBI. After February

13, 2000, she was assigned to the FBI's Forensic Audio Video and Image Analysis Unit ("FAVIAU") at the FBI Headquarters in Washington, D.C. Two of her coworkers, Ronald Evans ("Evans") and Robert Keller ("Keller"), were also assigned to FAVIAU during this period. Evans is an African American male, who is also the husband of Ellis Evans. Keller is a Caucasian male.

The VCSs had four supervisors. In descending order, they were Section Chief Keith DeVincentis ("DeVincentis"), Program Manager Dale Linden ("Linden"), Unit Chief John James Ryan ("Ryan"), and Thomas Musheno ("Musheno"). Musheno was the immediate supervisor of the VCSs, a position he assumed in June 2001. Prior to Musheno, their immediate supervisor was David Bonner.

In January 2001, Plaintiff requested permission from Ryan to attend a DVD technology training in February 2001. Ryan denied her permission to attend the training, but Plaintiff attended a DVD training given in May 2001.

On March 15, 2001, Plaintiff, Evans, and Keller met with DeVincentis to discuss their grievances with management. Def.'s Mot. at 4. As a result of this meeting, DeVincentis and Ryan decided that the VCSs could benefit from working with the other unit personnel who were based in Quantico. Id. As of March 21, 2001, all three VCSs were required to report to Quantico one day per week. In addition, beginning in March 2001, all three were supervised more closely by their supervisors. Pl.'s Opp'n at 7.

In June 2001, a notice requiring the employees to lock their safes at the end of each day was posted on the exit doors in the Unit. In spite of this sign, Plaintiff left her safe unlocked on four occasions between August 21, 2001 and November 18, 2001. Def.'s State. of Mat. Facts, ¶ 14 (p. 3). Musheno discovered her safe unlocked once, but never found that Keller had left his safe unlocked. Id.

On an unidentified date sometime after July 11, 2001, Plaintiff played a video game on her work computer. Such activity was prohibited by FBI computer security requirements. Def.'s State. of Mat. Facts, ¶ 31 (p. 4). When Musheno saw that the game was minimized on her computer screen, he inquired about it. Plaintiff responded that she "could not tell him what he was seeing with his eyes." Def.'s Reply, Ex. 1. In August 2001, Musheno reported Plaintiff to the FBI's Office of Professional Responsibility ("OPR"). The OPR then initiated an investigation into whether she had used unauthorized video software on her computer.

On October 18, 2001, Plaintiff returned evidence from Quantico to the FBI Headquarters. Although she claimed two hours of compensatory leave for the trip, she was awarded only one. On October 29, 2001, Linden informed Plaintiff that she would not receive compensatory time for transporting evidence to and from FBI Headquarters.

On October 30, 2001, Plaintiff informed Ryan that she would not make the required weekly trips to Quantico until she could meet with the Ombusdman.

On December 3, 2001, Plaintiff was notified that the OPR had initiated an investigation into allegations of insubordination and inappropriate use of her work computer.

On January 7, 2002, all three VCS employees -- Plaintiff, Keller, and Evans -- received "Does Not Meet Expectations" summary ratings in their Performance Appraisal Reports ("PARs"). Although Plaintiff received an overall rating of "Does Not Meet Expectations," she received a "Meets Expectations" score in four of the seven individual categories: using computers to perform work; acquiring, applying, and sharing job knowledge; researching and analyzing; and designing and processing media products. She received a "Does Not Meet Expectations" in three individual categories: organizing, planning, and coordinating; relating with others and providing professional service; and maintaining high professional standards.

Prior to receiving this PAR, Keller had trouble completing cases in a timely fashion. As a result, his caseload was severely backlogged. On January 8, 2002, all three VCSs were notified that they would have ninety days to raise their performance to the "Meets Expectations" level. The FBI refers to this ninety-day period as a Performance Improvement Period ("PIP").

On April 8, 2002, the PIP concluded, and Plaintiff received a "Meets Expectation" rating for the PIP period. However, on April 19, 2002, Plaintiff failed to document information in her notes that was reported in the Results of Examination Report, and on July 11, 2002, Plaintiff failed to label original evidence in two cases and failed to document information in a third.*fn4

On July 12, 2002, during her mid-period PAR annual review, Plaintiff had failed to meet production expectations because she completed only thirty out of forty-three cases that were assigned to her. Three days later, on July 15, 2002, the OPR found that Plaintiff was insubordinate and violated FBI computer security requirements by installing video games on her work computer. Plaintiff received a ten-day suspension as punishment. She served this suspension between October 26, 2002 and November 5, 2002.

On August 6, 2002, Ryan directed Linden and Musheno to monitor Plaintiff's performance closely and directed Barbara Snyder, a Quality Assurance Manager, to provide Plaintiff with quality assurance training.

On an unspecified date on or about August 13, 2002, Plaintiff received an "expedite" case. The case requested copies and still photographs from a videotape by August 26, 2002. Plaintiff did not meet this deadline. She received an extension until mid-September.

In mid-September, because she played the digital tape on an analog player, Plaintiff mistakenly stated that the tape had nothing on it. Plaintiff eventually completed the copies on September 3, 2002 and the prints on September 13, 2002.

On October 25, 2002, Linden conducted an audit of Plaintiff's cases. He reviewed five randomly selected cases from her caseload and found errors in each one.

On November 6, 2002, Plaintiff was relieved of her duties as a forensic examiner. On November 15, 2002, she was assigned other responsibilities and was informed that she would be required to report to Quantico for the week of December 9, 2002.

Five days later, on November 20, 2002, Plaintiff received her annual end of year PAR. She received a summary rating of "Does Not Meet Expectations." She received a rating of "Meets Expectations" in six out of the seven individual categories. P's Opp'n, Ex. M She received a "Does Not Meet ...


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