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Beyah v. Dodaro

October 26, 2009

OMAR N. BEYAH, PLAINTIFF,
v.
GENE L. DODARO, ACTING COMPTROLLER GENERAL, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Omar N. Beyah is an African-American male who was previously employed by the United States General Accounting Office ("GAO" or "the agency"). He claims that his employer discriminated against him on the basis of his race and gender and retaliated against him for opposing that discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Having considered defendant's motion for summary judgment, the record herein, and for the reasons set forth below, the Court will grant the motion.

BACKGROUND

Since approximately 1988, plaintiff worked for the U.S. General Services Administration as an architect and a program manager. (See Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Opp'n"), Decl. of Omar N. Beyah ("Beyah Decl.") ¶ 2.) In April 2003, while attending a Senior Executive Fellows program at Harvard University, plaintiff met Mark Goldstein, a director in GAO's Physical Infrastructure ("PI") team. (See Opp'n, Statement of Genuine Issues and Affirmative Statement of Material Facts ("Pl.'s SMF") at 1-2 ¶ 3.) Goldstein actively recruited plaintiff to apply for a position with GAO, and in June, Goldstein met with plaintiff to discuss an employment opportunity as a GAO analyst working on PI issues. (See id. at 2 ¶¶ 4-5.) Goldstein informed plaintiff about the GAO website's description of the position, gave him the website address for the online application, and encouraged him to apply. (Id. at 2 ¶ 6; Opp'n, Attachment 29 (Beyah Dep., Apr. 11, 2008) ("Beyah Dep."*fn1 ) at 49:11-14). Thereafter, plaintiff applied for the position, which was at the "Band II" level. (Pl.'s SMF at 2 ¶ 7.) GAO classifies employees in one of three "bands" (Bands I, II, and III) instead of using the General Schedule ("GS") pay system; during the relevant period, the pay range for employees at the Band II level was approximately equivalent to the salary range covered by the GS-13 and GS-14 grades. (Def.'s Mot. for Summ. J. ("Mot."), Ex. 3 (Decl. of Margaret Braley) ("Braley Decl.") ¶ 2.)

Around July 2003, plaintiff interviewed with Goldstein and Terrell Dorn, then an assistant director in PI, among other GAO officials. (Pl.'s SMF at 2¶ 8.) After interviewing plaintiff and other applicants, Goldstein and Dorn decided that plaintiff was the best candidate for the Band II "senior analyst" position. (Def.'s SMF ¶ 9.)*fn2 Consequently, Goldstein and Dorn recommended to Mike Gryszkowiec, PI's managing director, that plaintiff be hired, and plaintiff thereafter accepted an offer to join GAO as a Band II Senior Analyst. (Pl.'s SMF at 2-3 ¶¶ 9-10.) Consistent with GAO regulations at the time, plaintiff was informed on July 23 that he would be serving a one-year probationary period. (See id. at 3 ¶¶ 11-12.)

Plaintiff's effective start date at GAO was September 21, 2003. (Opp'n, Ex. 1 (Notification of Personnel Action) at 1.) Dorn served both as plaintiff's supervisor and his Designated Performance Manager ("DPM"), and thus was responsible for monitoring and assessing plaintiff's performance. (Pl.'s SMF at 4¶ 18.) Dorn reported to Goldstein, who in turn reported to Gryszkowiec. (Id. at 4 ¶ 19.) After plaintiff had completed orientation and initial training, Dorn and Goldstein assigned Maria Edelstein, a Band II Senior Analyst on the PI team who had been with GAO for approximately 15 years, to be plaintiff's day-to-day supervisor. (See Def.'s SMF ¶ 17; see also Pl.'s SMF at 3-4¶ 17.)*fn3 Plaintiff was told to report directly to Edelstein, with whom he worked on "most of" his projects. (Beyah Dep. 115:11-13, 115:23-116:16.)

Plaintiff's first assignment was an internal PI engagement for which he was tasked with developing a GAO guidance document regarding the design process ("the Guide"). (See Pl.'s SMF at 4-5 ¶ 22; Beyah Dep. at 105; Mot., Ex. 18 (Pl.'s Resps. To Def.'s 1st Interrogs.) at 41.) On this engagement, Edelstein was the analyst-in-charge and Dorn was the assistant director. (Mot., Ex. 18 at 41.) From October 2003 to February 2004, plaintiff prepared multiple drafts of sections of the Guide. (Pl.'s SMF at 5 ¶ 24.) Although the Guide initially focused on the design phase, by January 2004 the focus had shifted to conceptual planning. (Beyah Dep. at 105:3-6.) Plaintiff received negative comments on his sentence structure and use of industry terms and references, and he was specifically criticized for not connecting the design phase to the construction process. (Pl.'s SMF at 5 ¶ 24.) After the Guide was finalized, plaintiff was also tasked with "indexing" its contents, a process by which GAO verifies and documents that all information contained in a GAO product is supported by source material. (Id. at 5 ¶ 25.) Following his first indexing attempt, plaintiff received comments from the index reviewer that the index was not consistent with GAO's indexing rules. (Mot., Ex. 21 (Pl.'s Resps. To Def.'s 2nd Interrogs.) at 4.) Edelstein subsequently criticized plaintiff's work and required him to re-index the entire document. (Id. at 4-5.)

In February 2004, plaintiff was assigned to work on an engagement involving PI issues at the John F. Kennedy Center for the Performing Arts ("Kennedy Center"). (Pl.'s SMF at 5-6¶ 27.) Plaintiff's principal role was to develop an estimate of operations and management ("O&M") costs and draft a section for the report on this issue. (Id. at 6 ¶ 28.) Edelstein was the project's analyst-in-charge. (Beyah Dep. at 117:9-15.) In March, Susan Fleming joined the project as the assistant director; she served as plaintiff's second-level supervisor, setting objectives and deadlines, and reported to the project's director, who was Goldstein until Peter Guerrero took over in April. (See Beyah Dep. at 143-45; Mot., Ex. 19 (Fleming EEO Aff., May 16, 2005) ("Fleming Aff.") ¶¶ 2-3, 6.) That same month, plaintiff was involved in a dispute with a GAO librarian. (See Def.'s SMF ¶ 47.)*fn4 At another point during plaintiff's time with GAO, a U.S. State Department official called and complained to John Brummet, an assistant director on GAO's International Affairs and Trade ("IAT") team, about plaintiff's confrontational conduct while attending a meeting with IAT and State Department officials. (Id. at 9 ¶ 46; see also Opp'n, Ex. 8 (Brummet EEO Aff., May 10, 2005) ("Brummet Aff.") ¶ 3.)

On April 7, 2004, Fleming and Edelstein met with plaintiff to discuss the expectations for his performance on the Kennedy Center engagement. (See Pl.'s SMF at 11 ¶ 56.) During the meeting, when Fleming learned that plaintiff was working on seven projects, she "cautioned [him] about working on too many jobs," and they discussed that he had to "be careful to manage them to meet job expectations for the Kennedy Center." (Mot., Ex. 53 (Apr. 7, 2004 Beyah mem.) at 1-2.) Following the meeting, plaintiff gave Fleming a memorandum containing his minutes of that meeting. (See id.; Pl.'s SMF at 11 ¶ 56.) At plaintiff's request, he and Fleming met again that same day to discuss why expectations were being set for his work. (Pl.'s SMF at 11 ¶ 56.) On April 16, plaintiff emailed Fleming a memorandum of minutes from that second April 7 meeting. (Id. at 12 ¶ 57; see Mot., Ex. 54 (Apr. 16, 2004 Beyah mem. & cover letter).) The email explained that plaintiff intended to put in writing "matters that could impact personnel actions with or against" him, specifically disagreements involving "observation[s] of behavior" that would "impact[] [his] decision making" or his "ability to do work in a supporting environment." (Mot., Ex. 54 at 1.)

That same month, plaintiff met with Kennedy Center officials on at least two occasions. (See Mot., Ex. 17 (Edelstein EEO Aff., May 12, 2005) ("Edelstein Aff.") ¶ 5.) During one meeting, plaintiff asked an official whether the Center might be "wasting money in those instances when it does not know what it is spending money on." (Beyah Decl. ¶ 55.) Fleming concluded that the officials were offended because plaintiff inappropriately "informed them that they were not following industry standards and best practices and most likely wasting money."

(Fleming Aff. ¶ 6.) Edelstein similarly felt that plaintiff made inappropriate recommendations and requests that upset the officials. (See Edelstein Aff. ¶ 5.) Fleming and Edelstein told Dorn and Goldstein about these concerns and what they perceived to be plaintiff's defensiveness when receiving feedback and his inability "to complete basic paperwork without supervision." (Mot., Ex. 27 ("Dorn DPM Notes") at 1; see also Fleming Aff. ¶ 6; Edelstein Aff. ¶ 5.)

On June 9, 2004, Edelstein circulated to the Kennedy Center PI team a timetable for completing their work on the report, including a June 18, 2004 deadline for first drafts of each section. (Pl.'s SMF at 6 ¶ 31.) On Friday afternoon of June 18, plaintiff emailed Edelstein and Fleming what he described to be "[a] working draft of sec. 3," which was a three-page outline. (See id. at 6 ¶¶ 32-33; Mot., Ex. 30 (June 18, 2004 draft) at 2-4.) On June 22, plaintiff submitted to Edelstein his first revised draft section, which did not contain any O&M cost estimates for the proposed Kennedy Center buildings. (Pl.'s SMF at 7 ¶ 34; see Mot., Ex. 33 (June 22, 2004 draft) at 14 (estimating O&M costs "to be approximately $X million in 2012").)When reviewing this first revised draft, Edelstein commented that plaintiff needed to better explain and "set up" his substantive discussions. (Pl.'s SMF at 7 ¶ 35.) In a June 30 meeting with Dorn and Edelstein, plaintiff gave an oral presentation of his section of the report, after which Dorn concluded that plaintiff's work was "unacceptable and could not be supported" because he lacked "backup for his work," used "flawed" methodology, and could not "explain what is behind the numbers he [was] using." (Dorn DPM Notes at 1; see also Pl.'s SMF at 7-8 ¶¶ 36-38.)

On July 1, 2004, plaintiff gave Edelstein another draft of his section of the report, which he titled his "second revised draft." (Pl.'s SMF at 8 ¶ 39.) This draft did include an O&M cost estimate. (See Mot., Ex. 35 (July 1, 2004 draft) at 2 (estimating $4-5 million in O&M costs).)Edelstein provided substantive comments on this draft. (Pl.'s SMF at 8 ¶ 40.) Dorn also requested that plaintiff adjust his O&M calculations to reflect the higher costs associated with the Washington, D.C. area. (Id. at 8 ¶ 41; see Beyah Decl. ¶¶ 37-39; Opp'n at 13-14.) On July 5, plaintiff submitted another draft that contained the locality-adjusted O&M numbers. (Pl.'s SMF at 8 ¶ 41; see Mot., Ex. 37 (July 5, 2004 draft) at 1 (estimating $6-8 million in O&M costs).) In his cover email for this third revised draft, plaintiff stated: "I am optimistic that out of the many tries to nail down the potential costs in current dollars I think we might have something worth your review and consideration." (Pl.'s SMF at 8 ¶ 41.) Dorn and Fleming then made substantive comments on the July 5 draft. (Id. at 8 ¶ 42.) Thereafter, Fleming asked Ron Stouffer, an experienced PI employee who was not part of the Kennedy Center engagement team, to meet with plaintiff to try to assist him in writing his portion of the report. (See id. at 8-9 ¶ 43; see also Beyah Decl. ¶ 45.) On July 7, Dorn met again with plaintiff and discussed plaintiff's work on the Kennedy Center report. (See Pl.'s SMF at 9 ¶ 44.)

On July 15, 2004, Gryszkowiec conducted a meeting with Dorn, Fleming, Edelstein, Guerrero, and Goldstein, to discuss what they perceived to be plaintiff'sperformance and interpersonal problems. (Def.'s SMF ¶ 49; see also Mot., Ex. 44 ("Gryszkowiec Meeting Notes") at 2.)*fn5 As PI's managing director, Gryszkowiec was ultimately responsible for deciding whether to recommend the termination of PI employees to GAO's Human Capital Office. (Pl.'s SMF at 9-10 ¶ 48.) GAO regulations at the time stated that a probationary employee should be separated from GAO "whenever the employee's work performance or conduct fails to demonstrate the fitness or qualifications for continued GAO employment." (Id. at 11 ¶ 54.) At the July 15 meeting, Goldstein, Dorn, Fleming, and Edelstein expressed concerns about plaintiff's performance, with Goldstein and Dorn recommending that plaintiff's employment be terminated. (See id. at 10 ¶¶ 50-51; Gryszkowiec Dep. at ...


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