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Talavera v. Fore

August 31, 2009

CARMEN S. TALAVERA, PLAINTIFF,
v.
HENRIETTA FORE, ADMINISTRATOR, U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Carmen Talavera brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., against her former employer, the Administrator of the United States Agency for International Development ("USAID" or "agency"). Talavera alleges that USAID discriminated against her on the basis of her gender and retaliated against her for engaging in protected conduct under Title VII. Currently before the Court is USAID's motion for summary judgment on all claims. For the reasons explained below, the Court will grant summary judgment in favor of USAID.

BACKGROUND

I. General Overview

Talavera, a female, worked in USAID's Office of Security from September 2001 until September 2005. Talavera Aff. ¶¶ 1, 3 (July 29, 2005); USAID Ex. BB at 1650. USAID's Office of Security is comprised of two divisions, the Personnel, Information and Domestic Security division (the "Information Security division") and the Overseas Physical Security Program division (the "Physical Security division"). See Talavera Aff. ¶ 3 (July 29, 2005). Talavera worked in the Information Security division until July 2003, when she was transferred to the Physical Security division as a Regional Operations Officer, where she remained for the duration of her employment with the agency. Id. While in the Information Security division, her first-line supervisor was Don Bisom and her second-line supervisor was Randy Streufert. See Talavera Ex. 2(d) at 6. Director Michael Flannery served as the head of the entire Security Office until his retirement in August 2004. See id.; Streufert Dep. at 10:20-21 (June 5, 2008). During her employment in the Physical Security division, her first-line supervisor was Gaylord Coston and her second-line supervisor was David Blackshaw. See Blackshaw Aff. ¶ 1 (July 27, 2005); Coston Aff. ¶ 1. The other Regional Operations Officers in the Physical Security division were all male -- Michael Harris, Anthony Mira, Roger Rowe, Michael Lessard and Marcus Singleton. See Mira Aff. at 2.

The gender discrimination and retaliation alleged by Talavera took place from December 2003 through her September 2005 termination. First Am. Compl. ¶¶ 18-35. Her Equal Employment Opportunity ("EEO") complaints address four allegedly discriminatory and retaliatory events: (1) a February 2004 request for a mental health screening exam, (2) her June 2004 non-selection for a Security Specialist position, (3) her November 2004 non-selection for a Lead Security Specialist position, and (4) her September 2005 termination. See id. ¶¶ 36-50.

II. Allegations of Discrimination and Retaliation

A. February 2004 Request for a Mental Health Screening Exam

In December 2003, Blackshaw informed the Regional Operations Officers in the Physical Security division, including Talavera, that each would have to complete a six-week tour of duty in Iraq and directed Singleton, another Regional Operations Officer, to create a schedule for the assignments. See Blackshaw Aff. ¶ 3 (July 27, 2005). Talavera claims that although she originally volunteered to go to Iraq in May 2004, Singleton scheduled her for October 2004. Talavera Ex. 2(d) at 7. When she complained to Blackshaw about her assignment, he suggested meeting with the other Regional Operations Officers to work out the scheduling issues. Id.; Blackshaw Aff. ¶ 4 (July 27, 2005).

However, according to the final Iraq schedule, Talavera was assigned the July 2004 slot. Talavera Aff. ¶ 7 (July 29, 2005). During a February 2004 meeting, while this final schedule was being reviewed, Talavera left the conference room. See id. ¶ 8. Blackshaw followed Talavera out of the room and found her crying. Id.; Blackshaw Aff. ¶ 5 (July 27, 2005). Talavera told Blackshaw that she had never attended a scheduling meeting with the other Regional Operations Officers. Talavera Aff. ¶ 8 (July 29, 2005). For its part, USAID asserts that Singleton organized a scheduling meeting in January 2004, which Talavera, Mira, and Rowe attended, and at that meeting, Talavera agreed to the July 2004 time slot for her tour of duty. Singleton Aff. at 1 (Oct. 24, 2008); Singleton Aff. ¶ 4 (June 29, 2005); Mira Aff. at 2. Talavera denies attending this meeting or agreeing to go to Iraq in July. Talavera Aff. ¶ 8 (July 29, 2005).

After the February 2004 meeting, USAID asserts that Blackshaw became concerned about Talavera. Blackshaw Aff. ¶ 6 (July 27, 2005). Spurred by this concern, Blackshaw and Coston contacted Martha Rees, a health service provider employed by USAID. Id. According to the agency, Rees recommended that Talavera's required medical evaluation for her trip to Iraq include a mental health screening. Id. Rees contacted Dr. Raymond de Castro, a State Department physician, to request this screening. See Coston Aff. ¶¶ 7-8. Blackshaw was told not to inform Talavera that she was going to receive a mental health screening exam. Blackshaw Aff. ¶ 6 (July 27, 2005).

Before the examination, Dr. de Castro contacted Coston and asked him to provide written examples of incidents that had prompted his concerns about Talavera. Coston Aff. ¶ 8. Coston's response discussed three events where "she ha[d] difficulty reasoning": (1) her behavior at the February 2004 meeting, (2) her September 2003 request for a larger computer monitor from USAID's EEO office and (3) her November 2003 conversation with Coston regarding an "act of favoritism" in leaving a particular job vacancy open. Talavera Ex. 5.

Dr. De Castro assigned primary responsibility for the screening to another State Department psychiatrist, Dr. Steven Feinstein. See USAID Ex. B at 2436. Although Talavera visited Dr. Feinstein twice, in May and June 2004, she never received a mental health screening exam. See Talavera Dep. at 102:12-16, 119:11-13 (May 14, 2008); Talavera Dep. at 70:14-20 (May 25, 2006). Talavera asserts that Dr. Feinstein read Coston's email to her during their first meeting, but thought the exam was unwarranted and refused to conduct the exam. Talavera Aff. ¶¶ 9-10 (July 29, 2005). Talavera was subsequently cleared to travel to Iraq without ever receiving the exam. Id. ¶ 11. On June 8, 2004, she informed USAID's EEO office about the screening request. See Talavera Dep. at 77:11-21 (May 25, 2006). Talavera asserts that she told Coston and Blackshaw of her June 8 communication with the EEO office. Talavera Dep. at 135:24-136:14, 144:5-12 (May 14, 2008).

B. June 2004 Non-Selection for Security Specialist Position

In April 2004, a vacancy announcement was posted for a Security Specialist position with USAID's Industrial Security Program. See USAID Ex. C. The program was housed within Talavera's former division, Information Security. See USAID Ex. D at 290; Streufert Aff. ¶¶ 4-5. Talavera applied for the position and -- along with Lessard, Mira, Rowe, and others -- was designated as "best qualified." See USAID Ex. E. After reviewing each candidate's application materials, Streufert, the selecting official, conducted separate interviews with each applicant. Streufert Aff. ¶ 4. According to him, these interviews played a critical role in his ultimate selection decision. Id. ¶ 5; Streufert Dep. at 21:13-20, 24:4-9 (June 5, 2008). Talavera claims that when she spoke to Lessard and Rowe about their interviews, they described different interview questions than the ones she had been asked. Talavera Ex. 2(f) at 21. USAID asserts that Streufert asked each applicant the same questions. Streufert Dep. at 17:5-6, 44:14-19 (June 5, 2008).

USAID further contends that of the six applicants, Streufert found Mira to be the only applicant who was able to describe important aspects of the Industrial Security Program. See Streufert Dep. at 14:5-9, 18:6-22 (May 24, 2006). Thus, USAID asserts that Talavera's interview performance was inferior to Mira's. See Streufert Aff. ¶¶ 6-7. In June 2004, Streufert selected Mira for the position and destroyed his interview notes two months after USAID's Human Resources office approved this selection. See Streufert Dep. at 30-31 (May 24, 2006). In response to her non-selection, Talavera amended her existing EEO charge, pertaining to the screening exam request, to include her non-selection for the Security Specialist position.See USAID Ex. A at 1752-53.

C. November 2004 Non-Selection for Lead Security Specialist Position

In August 2004, a vacancy announcement was issued for a Lead Security Specialist position. See USAID Ex. G. Blackshaw was the selecting official for this position. Blackshaw Aff. ¶ 12 (July 27, 2005). Before interviewing any of the candidates, Blackshaw discussed two of them, Rowe and Harris, with his then-semi-retired supervisor Michael Flannery. See Talavera Ex. 13 (Oct. 27, 2004 email from Blackshaw to Flannery).

Talavera applied for the Lead Security Specialist position and was placed on the best qualified list. See USAID Ex. H. At first, Rowe and Singleton were not on the best qualified list. See USAID Ex. K at 1450-51. However, Blackshaw asked USAID's Office of Human Resources whether Rowe and Singleton could be added to that list due to their "relevant background, experience and . . . evaluations." Id. at 1451. The Office of Human Resources found Rowe and Singleton "highly qualified" for the position and placed them on the best qualified list. See USAID Exs. K, L.

Blackshaw then reviewed the application materials and interviewed each candidate separately. Blackshaw Aff. ¶ 12 (July 27, 2005). Before the interviews, Talavera claims that Coston coached Singleton, Rowe and Harris on the technical security standards that were important for the position. Talavera Ex. 2(f) at 19-20. USAID responds that Coston coached Talavera as well. Coston Aff. ¶ 15. During the interview, Blackshaw asked each candidate the same thirty questions, half of which were aimed at determining if the applicant was fluent in USAID technical security standards. See USAID Exs. I, J. USAID claims that Talavera performed very poorly during her interview, especially with regard to the security standards. Blackshaw Aff. ¶ 13 (July 27, 2005). As a result, Talavera did not receive further consideration for the position and Rowe was ultimately selected. See Blackshaw Dep. at 21:13-16 (May 24, 2006). Blackshaw announced Rowe's selection on November 8, 2004. Talavera Ex. 12 at 4-5.

The parties dispute when Rowe was actually interviewed. Talavera asserts that, based on Blackshaw's handwritten interview notes and Human Resources promotion records, Rowe was interviewed on November 29, 2004 -- twenty-one days after his selection. Talavera Ex. 11 at 3, 27. USAID counters that Rowe was actually interviewed on October 29 and that the November 29 date was a typo, mistakenly handwritten on Rowe's interview notes, and then wrongly entered into the Human Resources computer system. USAID Reply at 18-19. Talavera filed another EEO complaint in November 2004 in connection with her non-selection for the Lead Security Specialist position. See First Am. Compl. ¶ 5; Talavera Ex. 2(c).

D. September 2005 Termination

Talavera's EEO claims were being investigated from May to August 2005. Talavera Ex. 2 at 1. Meanwhile, at the end of March 2005, Talavera's supervisors -- Coston and Blackshaw --informed the Human Resources office of a number of instances of misconduct by Talavera. See Talavera Ex. 17. In response, Human Resources drafted a Notice of Proposed Removal for Talavera. See Merit Systems Protection Board*fn1 ("MSPB") Tr. at 14:23-18:8 (Mar. 28, 2006). Coston issued the final Notice of Proposed Removal, which stated that Talavera was being charged with: (1) "Misrepresentation of Material Fact" and (2) "Providing False Information to a Supervisor."*fn2 See USAID Ex. O.

The events surrounding the "Misrepresentation of Material Fact" charge took place between January and February 2005. USAID Mem. at 15-18. In January 2005, Talavera was tasked with preparing a threat assessment document for the Administrator of USAID's upcoming trip to Afghanistan. See USAID Ex. P. On January 28, 2005, Talavera sent an email to James McDermott, Regional Security Officer for Afghanistan, asking about security arrangements that were being made for the Administrator's visit. See USAID Ex. Q at 1859.

As of February 3, 2005, Talavera had not yet received a response from McDermott. See id. at 1858. On that date, Talavera submitted a threat assessment, labeled "DRAFT," to Blackshaw. See Talavera Ex. 20. Talavera's draft assessment stated that security arrangements had been made although she had not yet received any confirmation from McDermott with regard to these arrangements. See id. After submitting the threat assessment to Blackshaw, Talavera sent an email to McDermott again asking for information about security arrangements. See USAID Ex. S. On February 4, 2005, McDermott responded by email ...


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