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Brown v. Mills

December 16, 2009

MALDA J. BROWN, PLAINTIFF,
v.
KAREN GORDON MILLS, ADMINISTRATOR, U.S. SMALL BUSINESS ADMINISTRATION, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff Malda Brown has sued the United States Small Business Association ("SBA") for retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17. The SBA now moves for summary judgment, and for the reasons stated herein, the motion will be granted.

FACTUAL BACKGROUND

Ms. Brown is a GS-13 Procurement Analyst/Procurement Center Representative ("PCR") at the SBA and has worked at the agency since 1980. (Compl. ¶ 7.) In 1992, Ms. Brown filed an Equal Employment Office ("EEO") complaint against her then-supervisor, John Whitmore. (Pl.'s Statement of Material Facts in Dispute ["Pl.'s SMF"] ¶ 2.) That claim was settled in 1995. (Id.) In 1998, Ms. Brown filed a second EEO complaint against the SBA, alleging retaliation for her previous claim. (Id. ¶ 3.) The parties settled that complaint in 2002. (Def.'s Statement of Undisputed Material Facts ["Def.'s SMF"] ¶ 63; Dep. of Malda J. Brown ["Brown Dep."], Ex. 1 (settlement agreement).) As part of the 2002 settlement, Ms. Brown received a promotion to the GS-13 grade as a GS-1102-13 Procurement Analyst and began working out of the Department of Health and Human Services ("DHHS"). (Brown Dep., Ex. 1 ¶ 2(b).) Mr. Whitmore retired from the SBA in 2004. (Decl. of Calvin Jenkins ["Jenkins Decl."] ¶ 5.)

The duties of a GS-1102-13 Procurement Analyst include "represent[ing] the [SBA] at the installations to which [the analyst is] assigned on any acquisition policy or procedure which affect SBA's mission to assist small business concerns." (Brown Dep., Ex. 9 at 1 (PCR job description).) A PCR is charged with "effectively represent[ing] small business concerns with procurement officials" and "counsel[ing] representatives of small business concerns and advis[ing] them how and where to sell their products to the Government." (Id. at 2.)

In 2005 and 2006, Ms. Brown worked as a PCR in Rockville, Maryland, at the DHHS offices there. (Pl.'s SMF ¶ 16.) Then, as now, Ms. Brown worked in the SBA's Office of Government Contracts, and the chain of command in the office went from plaintiff to Rhonda Anderson, David Loines, Nancyellen Gentile, Arthur Collins, and Karen Hontz, the director of the Office of Government Contracts. (Def.'s SMF ¶ 4; Dep. of Nancyellen Gentile ["Gentile Dep."], Ex. 1 (organizational chart).) Between December 2005 and August 2006, Calvin Jenkins was the Deputy Associate Deputy Administrator for Government Contracting and Business Development. (Jenkins Decl. ¶ 2.) As such, he supervised both the SBA's "HUBZone" Office-which encourages economic development in historically underutilized business zones- and the SBA Office of Government Contracts. (Id.) Michael McHale was the head of the HUBZone Office and reported to Mr. Jenkins, as did Ms. Hontz. (Id. ¶ 3.)

On November 8, 2005, the SBA HUBZone program received a HUBZone bid protest concerning a U.S. Department of Homeland Security ("DHS") contract awarded to Shirlington Limousine and Transportation, Inc. ("SLT"). (Pl.'s SMF ¶ 18.) The protest came from another HUBZone entity and challenged SLT's eligibility as a HUBZone concern. (Dep. of Lara Hudson ["Hudson Dep."] at 70.) The SBA was responsible for processing and making a determination as to SLT's eligibility. (Id.) In December 2005, Ms. Brown was contacted by the owner of SLT, Christopher Baker, who sought assistance in understanding bid protest procedures. (Def.'s SMF ¶ 10; Pl.'s SMF ¶ 20; Brown Dep., Ex. 5 at 1 (Brown interview memorandum).) Ms. Brown had not met Mr. Baker prior to his contact with her in December 2005, but she had heard of him. (Brown Dep., Ex. 5 at 1; Pl.'s SMF ¶ 21.) During the call, Mr. Baker told plaintiff that Lara Hudson was the SBA attorney working on the SLT HUBZone protest and that he had a package he needed to deliver to her. (Brown Dep. at 67-68.) Ms. Brown told Mr. Baker that once he was at the SBA office building, he could call Ms. Hudson's secretary, Bejo Green, to come retrieve the package. (Id. at 68.)

On December 8, 2005, Ms. Brown was in the Washington, D.C. office of the SBA and asked for Ms. Hudson, whereupon Ms. Hudson introduced herself to Ms. Brown. (Hudson Dep., Ex. 3 (May 15, 2006 email); Pl.'s SMF ¶ 23.) On December 12, Mr. Baker appeared unannounced and unescorted at Ms. Hudson's office to deliver documents to Ms. Hudson that she had requested from his attorney. (Hudson Dep., Ex. 4 (Dec. 23, 2005 memorandum to file).) Ms. Hudson and Mr. Baker had a conversation, during which Ms. Hudson mentioned her daughter. (Id., Ex. 1 at 2 (Hudson interview memorandum).) Mr. Baker told Ms. Hudson that he was upset about the protest and that "he could throw bricks at the protesting company." (Id. at 1) Ms. Hudson accepted the documents from Mr. Baker and asked him to leave. (Id.; Hudson Dep. at 28.) Afterwards, Ms. Hudson telephoned Mr. Baker's attorney and advised him that she could not speak to Mr. Baker while the protest was under review and while he was represented by counsel. (Id., Ex. 1 at 1.)

A week later, on December 19, Ms. Brown placed a telephone call to Ms. Green, Ms. Hudson's secretary, and told her that Mr. Baker would be coming by to drop off a package. (Brown Dep. at 61.) Ms. Green emailed Ms. Hudson to tell her of Ms. Brown's call and that someone "is suppose[] to be coming over to see" Ms. Hudson. (Hudson Dep., Ex. 2 at 2 (Dec. 20, 2005 email chain).) Mr. Baker appeared at Ms. Hudson's office several hours later, unannounced and unescorted. (Id.) According to Ms. Hudson, the visit made her "uncomfortable." (Hudson Dep. at 28.) She thanked him for the information he delivered and told him that she could not speak with him as the protest was an ongoing matter. (Id., Ex. 4.) After Mr. Baker's second visit, Ms. Hudson emailed Ms. Green and stated that she believed the call Ms. Green received from Ms. Brown earlier that day regarding the individual who was coming by to deliver a package and Mr. Baker's visit were "related" and that Ms. Brown and Mr. Baker were "acquaintance[s]." (Id., Ex. 2 at 2.) Ms. Green then spoke with the Visitors' Center and was told that Mr. Baker had been escorted up to Ms. Hudson's floor but that it was not known who escorted him. (Id. at 1-2.) Ms. Hudson subsequently checked with the Visitor Desk and was told that Mr. Baker had not signed in. (Id. at 1.) At that point, Ms. Hudson emailed John Klein, her supervisor, and explained that she was "concerned about the lack of security in the building and the free movement that Chris Baker . . . seems to have getting in the building and up to [her] office." (Id.) Ms. Hudson then asked security to "investigate how Mr. Baker had gotten to [her] office without an escort and without a badge." (Hudson Dep. at 37.) Ms. Hudson subsequently reviewed videotapes of the public entrance to the SBA Headquarters from the days when Mr. Baker arrived at her office, but she did not identify Mr. Baker on the tapes. (Id. at 39.) Despite her inconclusive investigation, Ms. Hudson did not consider the "matter over" and "still wanted an answer as to how it was that Mr. Baker had accessed the building." (Id. at 66.)

Five months later, in May 2006, Ms. Hudson became aware of media reports concerning Mr. Baker and his involvement with the congressional investigation of former Congressman Randall "Duke" Cunningham. (Id. at 14.) The coverage included reports of Mr. Baker's criminal history. (Id. at 23.) Subsequently, Ms. Hudson requested a meeting with Agent Lee K. Bacon of the SBA Office of Inspector General ("OIG") Investigations Division to discuss events that had occurred while she was working on the SLT HUBZone protest, including her concern that Mr. Baker knew personal information about her from his visits. (Id.; at 88-89; Ex. 1.) She also told Agent Bacon that she suspected that Ms. Brown was involved in allowing Mr. Baker into the SBA building. (Id. at 89; Ex. 1 at 2.)

On or about March 30, 2006, the OIG received a referral from the DHS regarding SLT and opened an investigation of the company. (Decl. of Lee K. Bacon ["Bacon Decl."] ¶ 3.) In May 2006, SLT was the subject of a HUBZone program examination, which is distinct from the protest that was filed in November 2005. (Def.'s SMF ¶ 35; Dep. of David J. Caulfield ["Caulfield Dep."] at 10-11.) On May 2, Ms. Brown telephoned David Caulfield, a senior program analyst with the HUBZone program whose duties included serving as the operational manager for program examinations. (Hudson Dep., Ex. 5 at 2 (May 11, 2006 email chain); Caulfield Dep. at 5.) Ms. Brown asked Mr. Caulfield what had prompted the HUBZone program examination of SLT and told him that she considered SLT "to be one of her clients and, at [SLT's] request, was making certain they weren't being asked the same questions contained in the recent HUBZone protest." (Hudson Dep., Ex. 5 at 2.) Mr. Caulfield answered Ms. Brown's questions regarding the program examination and told her that communications regarding the examination of SLT should be "directed to the personnel in the district office conducting the exam," an employee named Theo Holloman. (Id.)

Immediately following the call with Ms. Brown, Mr. Caulfield consulted with former HUBZone Deputy Administrator Mr. Collins, who was then the deputy for government contracting in the Office of Government Contracting. (Caulfield Dep., Ex. 1 (Caulfield interview memorandum); Dep. of Michael McHale ["McHale Dep."] at 57.) Mr. Caulfield found Ms. Brown's call to be "unusual" because he did not usually receive calls "specific to a particular circumstance involving a named company." (Caulfield Dep.at 35.) Mr. Caulfield and Mr. Collins felt that Ms. Brown's contact with Mr. Caulfield was abnormal enough to warrant notification of Mr. McHale, the head of the HUBZone office. (Id. at 57; Ex. 1.) Mr. Caulfield sent Mr. McHale an email summarizing his conversation with Ms. Brown and stating that "[t]o [his] mind, the call from Malda was unusual in that [he] d[id]n't often get calls from PCRs on HUBZone program examinations." (Hudson Dep., Ex. 5 at 2.) After sending the email to Mr. McHale, Mr. Caulfield received a second call from Ms. Brown, again asking for information concerning SLT. (Caulfield Dep., Ex. 1.)

Mr. McHale also found that Ms. Brown's call to Mr. Caulfield was "unusual." (McHale Dep. at 18.) When he replied to Mr. Caulfield's email on May 3, he copied Mr. Collins. (Hudson Dep., Ex. 5 at 1.) Mr. McHale stated that he had received a call from Mr. Holloman regarding Ms. Brown's interest in the SLT program examination. (Id.) Subsequently, Mr. McHale learned that two other SBA employees, Brenda Washington and Diane Jones, had been contacted by Ms. Brown during the SLT bid protest. (Id.) On May 11, Mr. McHale emailed Mr. Collins to inform him of Ms. Brown's prior contact with Ms. Washington and Ms. Jones. (Id.) Mr. Collins, who was Ms. Brown's supervisor, then forwarded the emails he had received from Mr. McHale to Ms. Hontz, the director of the Office of Government Contracts. (Id.) In his forwarded email to Ms. Hontz, Mr. Collins stated that he was "not sure that this level of advocacy is good. Without jumping to conclusions, this has the potential of being embarrassing." (Id.) Ms. Hontz forwarded the email chain to her immediate supervisor, Mr. Jenkins, and Ms. Gentile, Ms. Brown's third-level supervisor. (Id.)

On May 12, after receiving the email chain forwarded by Ms. Hontz, Mr. Jenkins asked Mr. McHale to prepare a memorandum for Ms. Hontz regarding plaintiff's interactions with the SBA staff on behalf of SLT. (McHale Dep., Ex. 7; Def.'s SMF ¶ 45.) Mr. McHale contacted staff in the Office of Government Contracting and his own staff in the HUBZone office and asked for information regarding Ms. Brown and SLT. (McHale Dep. at 50-51.) Mr. McHale sent this information to Ms. Hontz, who referred Ms. Brown to the OIG for investigation. (Id. at 51; Dep. of Karen Hontz ["Hontz Dep.] at 54-55.) The OIG opened an investigation into Ms. Brown based on her "suspected involvement with [Mr.] Baker's unauthorized access to SBA headquarters and Ms. Brown's inquiries regarding [the] HUBZone program examination involving [SLT]" and consolidated it with the already-open investigation of SLT. (Bacon Decl. ¶ 3.) On May 24, Agent Bacon interviewed Ms. Brown regarding her activities "on behalf of [Mr.] Baker." (Brown Dep., Ex. 5 at 1.) The interview memorandum summarizing Agent Bacon's interview of Ms. Brown states that Ms. Brown said she had contacted Ms. Washington and Ms. Jones regarding the SLT bid protest and Mr. Caulfield and Mr. Holloman regarding the SLT HUBZone program examination. (Id. at 1-2.) It also notes that Ms. Brown stated that she had "call[ed] and ask[ed] someone to allow Baker into the [SBA] building." (Id. at 2.)

On June 19, Agent Bacon sent the interview memorandum to Mr. Jenkins, Mr. McHale, and Mr. Collins. (Dep. of Calvin Jenkins ["Jenkins Dep."], Ex. 4 (June 23, 2006 email chain).) Agent Bacon explained that the interview had been conducted as a result of the information provided to the OIG by Ms. Hudson and stated that if Mr. Jenkins or Mr. McHale had any "questions or concerns regarding the information [Ms. Brown] provided," they should let him know. (Id.) Several days later, on June 23, Mr. Jenkins responded to Agent Bacon's email by stating that the interview memorandum was "an incomplete review of the facts in this matter" because "[i]nterviews were not conducted with staff in the Office of HUBZone or [the] Washington [SBA office]," which might have resulted in statements contradicting Ms. Brown's. (Id.) Mr. Jenkins then noted that Congress was "looking into undue interference in the award of contracts to [SLT] and the HUBZone certification and protest process." (Id.) He then stated that he felt it "necessary that the OIG review include statements from Lara Hudson, HUBZone and Washington District Office staff." (Id.)

Subsequent to Mr. Jenkins' email, Peter McClintock, the SBA's Deputy General Inspector, held a meeting with Mr. Jenkins and Agent Bacon to discuss Ms. Brown and Mr. Jenkins' "concerns of the visibility of the case" and his desire to make sure that the SBA "left no stone unturned." (Id. at 53-54.) Following this meeting, on July 3, 2006, the OIG opened an investigation of Ms. Brown. (Id., Ex. 5 (OIG report).) Agent Bacon interviewed eight additional SBA staff members and compiled a Report of Investigation ("ROI"), dated July 25, 2006. (Id. at 1, 4.) The ROI states that the referral to the OIG "did not allege a violation of the U.S. Criminal Code" and the "matter was not referred to the U.S. Attorney's Office due to lack of evidence of any criminal violation." (Id. at 1-2.)

In August 2006, following the OIG investigation, Ms. Hontz asked Mr. Collins to "contact [Ms.] Gentile . . . and to work with the others in the chain of command and the SBA's Office of Human Capital Management" to determine whether a reprimand was warranted. (Hontz Dep., Ex. 1 ¶ 10 (Hontz Aff.); Def.'s SMF ¶ 58.) Mr. Jenkins also contacted Ms. Gentile and instructed her to contact Ms. Brown's supervisor, Ms. Anderson, and have Ms. Anderson tell Ms. Brown that in the future, she was not "to let someone gain access to [SBA's] secure space unless she's the person receiving them." (Jenkins Dep. at 20-21.) On August 24, Ms. Gentile emailed Ms. Anderson and directed her to give Ms. Brown the following verbal instruction:

[S]he should not have contacted SBA Headquarters staff to request assistance in providing Mr. Baker, Shirlington Limousine, access to the SBA Headquarters building if she had not planned to accompany him on a pre-scheduled appointment/meeting. Please caution [Ms. Brown] that, in the future, she should not make such a request, unless she plans to accompany the client on the meeting and/or the SBA official has been properly notified and has accepted the request to meet with the individual.

(Gentile Dep., Ex. 2 (Aug. 24, 2006 email).)

Ms. Brown initiated contact with an EEO Counselor on July 6, 2006. (Compl. ΒΆ 5.) She was issued a notice of Right to File a Formal Complaint on September 1, 2006. (Id.) On September 15, Ms. Brown filed a formal complaint of employment discrimination against the SBA on the basis of race and retaliation. (Id.) The SBA initiated an investigation and issued the Report of Investigation on November 29, 2007. (Id.) On March 31, 2008, the SBA issued its Final Agency Decision that Ms. Brown had failed to show by a preponderance of the evidence that the SBA management had discriminated against her on the basis of race and retaliation. (Id.) Ms. Brown filed the instant complaint on June 26, 2008, within 90 days of her receipt of the Final Agency Decision. (Id.) She alleges that "[a]s a direct and proximate result of filing prior EEO complaints of discrimination and as a direct and proximate result of having had to settle the previous EEO complaints with plaintiff, Defendant employees made ...


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