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Kelly v. Mills

January 6, 2010


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This matter came before the Court for a four-day bench trial on plaintiff Kevin Kelly's claim that his employer, the United States Small Business Administration ("SBA"), discriminated against him on account of his race and retaliated against him for pursuing past claims of discrimination, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq. The Court previously dismissed without prejudice three claims in plaintiff's first amended complaint, see Kelly v. Barreto, Civil Action No. 05-900, Order at 1 (D.D.C. Sept. 5, 2006); Opinion at 6-9 (D.D.C. Sept. 5, 2006), and granted defendant's motion for summary judgment on plaintiff's age discrimination claim under the Age Discrimination in Employment Act. See Kelly v. Hairston, 605 F. Supp. 2d 175 (D.D.C. 2009). The one issue that remained for trial concerns plaintiff's claims of race discrimination and retaliation in violation of Title VII.


The facts in this case revolve around plaintiff's employment at the SBA from September 1998 to May 2004, and primarily from 2001 until his termination on June 1, 2004. Plaintiff's race discrimination claim alleges that his supervisor, Leo Sanchez, treated him differently from a similarly situated Hispanic employee, Jorge Rivera. Plaintiff's retaliation claim alleges that he was placed on a Performance Improvement Plan ("PIP") and later terminated for engaging in protected activity. Upon careful consideration and evaluation of the testimony of all the witnesses and the documentary evidence admitted at trial, and making credibility findings as necessary and appropriate to resolve any material discrepancies in the testimony, the Court makes the following findings of fact.*fn2

A. General Background

Kevin Kelly, an African-American male, began working at the SBA in September 1998 as a GS-11 Business Opportunity Specialist ("BOS") in the Office of Small Disadvantaged Business Certification and Eligibility ("SDB office").*fn3 Mr. Kelly's duties as a BOS included screening and analyzing applications from small businesses to determine whether they were eligible for certification under the Small Disadvantaged Business ("SDB") program.*fn4

In making certification recommendations for the SDB program, BOSs followed a two-step process. First, a BOS "screened" applications to ensure that they contained all information necessary for the review process. Under agency regulations, the screening period was to be completed within 15 days. If a BOS determined that the application was missing required information, he or she could either return the application with a letter explaining the deficiencies or mark it as pending and contact the applicant directly to request additional information. Because missing information inevitably delayed the review process, a BOS typically imposed a deadline by which the applicant was required to submit the required information if this second option was chosen.

Second, a BOS "processed" applications by evaluating whether the businesses satisfied the six eligibility criteria for the SDB program. After reviewing the application, a BOS submitted a written recommendation to a supervisor which included an evaluation of each of the six criteria. Agency regulations required that the processing period be completed within 60 days, setting an overall 75-day deadline from the receipt of the application for the BOSs to complete their review. Because of the often substantial number of applications submitted to the SDB program, supervisors permitted BOSs to work on applications beyond the 75-day period.

The SBA utilized a computerized tracking system to monitor the progress of applications. One of the items tracked by the system was the number of days it took for a BOS to review a case. Supervisors used this information to determine whether a BOS met the 75-day deadline or exceeded it (and by how many days) and to evaluate an employee's job performance. Mr. Kelly testified that the SDB tracking system was error-prone and frequently reported inaccurate data. For example, he said the system occasionally displayed an incorrect number of days that he had worked on an application or reported that an application was still pending that he had already completed. Mr. Kelly, as well as other BOSs, brought this error to the attention of their supervisors. SeePlaintiff's Exhibit ("PX") 1.*fn5 Plaintiff's witness, Tracy Ebb-Murphy, similarly testified to the data reporting problems with the tracking system.*fn6

In 2001, the SBA underwent a reorganization which reduced the number of BOSs from approximately 60 to 10 or 12 and eliminated all clerical staff.*fn7 This shifted many administrative responsibilities to BOSs, including staffing the help desk to respond to applicant inquiries. Several witnesses testified that all BOSs received inquiries from applicants. Around 2003, the SBA hired temporary employees to staff the help desk.

Because of the staff reductions, Mr. Kelly testified that his workload, along with the workloads of all remaining employees, increased substantially. Several witnesses testified that with fewer BOSs to screen and process applications, the reorganization created a substantial backlog of applications needing to be reviewed. In a June 17, 2003 email to a field supervisor, Leo Sanchez, Mr. Kelly's supervisor in the SDB office during most of the relevant time period, described the backlog in the following way: "[S]ince the program office went from nearly 60 staff members and 9 managers to 11 staff members and me we fight a losing battle each and every day . . . It just doesn't make sense to reassign cases to remaining staff members who themselves are all already overloaded." SeePX 4.

In March 2003, Eugene Cornelius, an African-American male, was assigned to the SDB office as an associate administrator and was charged with reducing the backlog. Mr. Cornelius served as Mr. Kelly's third-line supervisor. Beginning in approximately November 2003, he asked Mr. Kelly to submit weekly progress reports to him.

B. Mr. Kelly's Performance Evaluations in 1999 and 2000

In November 1999, Mr. Kelly received a performance evaluation for fiscal year ("FY") 1999 from his first-line supervisor, Leo Sanchez, a Hispanic male. SeePX 2. Mr. Kelly received a rating of "4" on a 5-point scale. See 1. This rating corresponds to a performance which "Exceeds Fully Successful," one step below "Outstanding." Id. at 3. Mr. Sanchez noted in his justification of the rating that Mr. Kelly had "processed approximately 25 cases for the year" and had "provided outstanding customer service." Id. Mr. Sanchez also recommended Mr. Kelly for a promotion to GS-12 status, effective October 26, 1999. See id.

Mr. Kelly again received a rating of "4," "Exceeds Fully Successful," on his performance evaluation from Mr. Sanchez for FY 2000. See PX 3. Mr. Sanchez noted in his justification that Mr. Kelly had "processed approximately 19 cases for the year, however, many have involved complex social or economic issues." Id. at 2. Mr. Sanchez also reported that Mr. Kelly had acted as a "[t]eam [l]eader" and that "his peers rely on him for assistance in case analysis and thinking through the certification evaluation process." Id.

C. Mr. King's SDB Detail, December 2000 through February 2002

In December 2000, David King, then an attorney advisor in the SBA Office of Procurement, was detailed to the SDB office until February 2002.*fn8 Mr. King, an African-American male, advised the office on complex eligibility issues. Eventually, Mr. King assisted in reviewing employee work and conducting performance evaluations.

The Court heard conflicting testimony from Mr. Kelly and Mr. King concerning several minor facts. First, Mr. Kelly testified that Mr. King asked him to take on additional job responsibilities. Mr. Kelly declined to do so because he feared resentment from his co-workers and because Mr. King could not offer additional compensation or a promotion. Mr. King denied that he ever asked Mr. Kelly to assume additional responsibility. Second, Mr. Kelly claimed that he was routinely assigned more complex cases than other BOSs and that these cases took longer to screen and process. Mr. King also denied this. To the extent that these factual discrepancies are relevant to its analysis, the Court credits the testimony of Mr. King.

Mr. King served as the rating official for Mr. Kelly's performance evaluation for FY 2001. See PX 5. Mr. King and Mr. Kelly met on November 9, 2001 to discuss the evaluation. Mr. Kelly received a rating of "3" on a 5-point scale which corresponds to a "Fully Successful" performance. Id.*fn9 Although no written justification for this rating accompanied the evaluation, Mr. King testified that the rating reflected his observation that Mr. Kelly's work was increasingly tardy and that he failed to review applications by the regulatory deadlines. Mr. Kelly refused to sign the evaluation. After this review, Mr. Kelly began to believe that Mr. King was retaliating against him for refusing to accept additional responsibility. Soon thereafter, he spoke to an EEO counselor and ultimately decided to file a union grievance against Mr. King on January 1, 2002. See PX 27A.*fn10

D. Mr. Kelly's Claims of Disparate Treatment

Mr. Kelly testified that during the course of his employment at the SBA, Mr. Sanchez treated him differently from his co-worker, Jorge Rivera, who also worked as a BOS in the SDB Office. Like Mr. Sanchez, Mr. Rivera is a Hispanic, Spanish-speaking male.

At trial, Mr. Kelly offered evidence he claims shows that Mr. Sanchez favored Mr. Rivera. For example, on October 20, 2002, Mr. Kelly received a performance evaluation in which Mr. Sanchez, who had resumed responsibility as his rating official, gave him a rating of a "2." SeePX 7.*fn11 This rating corresponds to a "Minimally Successful" performance. Id. at 1.

Mr. Sanchez's written justification noted: "[Mr.] Kelly screened approximately 200 cases (within the average range for all staff members). However, his average time to screen cases was 40 days. Twenty-five days over the regulatory requirements []. And well over the office average. The office average was about 13 days which is within the regulatory time frame." Id. at 2. Mr. Sanchez further noted that Mr. Kelly processed 66 cases for the year, which was within the office average, but that when his screening and processing averages were added together, Mr. Kelly retained the cases at his desk for a total of 106 days, well beyond the 75-day deadline. Id. Mr. Sanchez also observed that he had previously removed Mr. Kelly from the list of BOSs receiving new cases with the goal that doing so "may help him get up to speed." Id. By the end of the rating period, however, Mr. Kelly still had not completed 20 cases. Finally, Mr. Sanchez indicated that Mr. Kelly "had consistently been untimely [and] unresponsive and [had] chronically missed deadlines" and that his written work "consistently had syntax and grammatical errors." Id.*fn12

Mr. Kelly attached a written statement to his evaluation for FY 2002, in which he expressed disagreement with the rating. See PX 7 at 3. He explained: "The rating does not reflect the complexity of the cases that I have completed . . . One compelling fact which had a profound affect [sic] and impact on my performance rating(s) is the fact that our office has decreased in staff numbers." Id.

Mr. Kelly offered into evidence the performance evaluations of two other BOSs for the same time period, Mr. Rivera and Barbara Seldon-Dotson.*fn13 Mr. Sanchez rated Mr. Rivera's performance as "Exceeds Fully Successful" and noted that he "processed 85 cases for the year with an average of 29 days" and "screened 152 cases returning 47 percent of the cases that he reviewed in an average of a record 4 days." SeePX 8 at 1. In Ms. Seldon-Dotson's evaluation, Mr. Sanchez rated her performance as "Outstanding" and noted that she "processed 80 cases for the year in an average for 23 days" and "screened approximately 180 cases for the year." See id. at 2.

Mr. Kelly received a rating of "2.4 " ("Minimally Successful") on a mid-year performance evaluation given on June 11, 2003. SeePX 11. As set forth in greater detail below, this evaluation eventually led to his placement on a Performance Improvement Plan ("PIP"). As evidence of retaliation, Mr. Kelly offered the performance evaluations of other BOSs for FY 2003, claiming that several other employees received "Minimally Successful" ratings and were not placed on a PIP. SeePX 22.*fn14 These evaluations also show that Mr. Sanchez, as the rating official, rated these employees at a higher level than the relevant guidelines instructed.*fn15 Mr. Kelly claims that Mr. Sanchez's failure to exercise his discretion to adjust Mr. Kelly's rating in a similar way constitutes retaliation.

Aside from the performance evaluations for FY 2002 and mid-year 2003, Mr. Kelly relied on several pieces of anecdotal evidence to establish his claim that Mr. Sanchez treated him differently from Mr. Rivera. First, he testified - and no one disputed this, including Mr. Sanchez - that Mr. Sanchez sometimes spoke to Mr. Rivera in Spanish, greeting him by saying, "Buenos dias, mi hijo," which translates to "Good morning, my son." He also called him "amigo." Furthermore, it is undisputed that when Mr. Sanchez had concerns about a case or had received an inquiry from an applicant, he would follow-up with the BOS assigned to the case. On occasion, Mr. Sanchez left handwritten notes for Mr. Rivera concerning his cases, seePX 6, while Mr. Kelly claims that he received only email messages from Mr. Sanchez.*fn16 Because Mr. Sanchez did not specifically address whether he left handwritten notes for anyone other than Mr. Rivera, the Court credits the testimony of Mr. Kelly.

Along these same lines, Mr. Kelly testified that Mr. Sanchez invited Mr. Rivera into his office on several occasions but did not extend the same invitation to Mr. Kelly. Because Mr. Sanchez did not specifically address this allegation, the Court again accepts Mr. Kelly's testimony. Mr. Kelly further testified that Mr. Sanchez occasionally "stopped the clock" on the SDB tracking system for Mr. Rivera so that the passing time was not counted against the 75-day deadline but did not do the same for him. Mr. Sanchez did not address the allegation in his testimony. Other than his testimony, Mr. Kelly did not present any evidence that this occurred; he offered no documentation, records or testimony from other employees to substantiate his claim that Mr. Sanchez selectively stopped the clock. It seems likely to the Court that if this allegation were ...

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