The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Diane R. Williams, formerly a Senior Trial Attorney at the Government Accountability Office's ("GAO") Personnel Appeals Board ("PAB") in the Office of the General Counsel, brings this action against Gene L. Dodaro in his official capacity as Comptroller General of the GAO, alleging retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 § U.S.C. § 2000e et seq. Presently before the Court is defendant's motion for partial summary judgment on the amended complaint. Upon careful consideration of the motion and the parties' memoranda, the applicable law, and the entire record, the Court will deny defendant's motion.*fn1
The factual background of this action is set forth more fully in Williams v. Dodaro, 576 F. Supp. 2d 72, 93 (D.D.C. 2008), and is repeated here only as needed. Plaintiff's original complaint against the GAO encompassed claims of discrimination on the basis of age, race, and sex, hostile work environment, and retaliation, and arose in large part from defendant's denial of plaintiff's requests for a noncompetitive promotion from GS-14 to GS-15. On September 17, 2008, the Court entered summary judgment for defendant on all claims except for plaintiff's claims concerning retaliation in the form of non-promotion in April 2006 and a written reprimand in July 2006. Williams, 576 F. Supp. 2d at 93. On November 10, 2008, the Court held the initial scheduling conference, and entered a scheduling order allowing discovery to go forward on the remaining claims. The next month, on December 1, 2008, plaintiff's supervisor, General Counsel Anne Wagner, issued a notice of proposed termination based on three charges of misconduct. See ROI, Tab 27. The agency, through PAB Chair Paul Coran, approved the termination on December 31, 2008. Id. Tab 1, at 6.
The charges of misconduct focus on three instances of alleged misrepresentation and insubordination which occurred in November 2008, in the course of plaintiff's actions as an attorney in the PAB/OGC. The first allegation of misconduct arose from the events surrounding the PAB's rejection of a brief filed by Williams in early November in the matter of Jones v. GAO, Docket No. 08-04. Id. at 1. Williams was responsible for filing a brief on October 31, 2008, which ultimately was filed by her supervisor, Wagner, without exhibits or exhibit numbers in the brief due to plaintiff's trial schedule. Id.; Williams Affidavit ¶¶ 7-9. Williams filed a brief with exhibits the following Monday, November 3, but her version of the brief also differed in other respects from the original brief. ROI, Tab 1, at 2. Because the filing failed to comport with PAB rules and practices, the PAB rejected it on November 4. Williams Affidavit ¶¶ 7-9. According to Williams, however, she was unaware that Wagner had already filed the brief, along with a motion to file exhibits out of time. Id. ¶¶ 7-9. Therefore, Williams continued to work on the brief -- the substance of the brief as well as the exhibit numbers -- believing she was under a duty to file the final version on Monday, November 3, 2008. Id. In reviewing Williams's response to the proposed termination, the agency rejected her explanation as inadequate. See ROI, Tab 1, at 2-3.
Second, Williams was charged with failure to comply with Wagner's directive to provide information that was necessary for the agency to meet its discovery obligations in a case pending before another district judge, Beyah v. Walker, Civil Action No. 07-109 (D.D.C.). ROI, Tab 1, at 3. The discovery at issue concerned Williams's missing witness interview notes, taken in her capacity as an attorney investigating Beyah's EEO claims at the administrative level. See ROI, Tab 20, at 24-27. On November 5, 2008, Williams testified before Judge Huvelle that "all of the documents that I had accumulated including notes went into a file. I don't know what happened to those documents or the files after I stopped investigating Mr. Beyah's case." Id. at 26. That same day, the Court ordered Wagner to "try to find the notes." Id. at 27.
Williams was then out of the office on annual leave for the period November 5th through 12th, which had been approved by Wagner the week before. Williams Affidavit ¶¶ 11, 15. Williams had not received a request from Wagner for further advice or guidance on the discovery matter, and believing she had provided Wagner all the information she had about the Beyah notes, she did not alter her leave plans. Id. While Williams was out, Wagner issued a memo on November 12, 2008, directing Williams to produce by "no later than 3:00 p.m. this afternoon" all Beyah notes in her possession or a sworn statement that the notes did not exist, acting upon information received from another employee that Williams had taken notes on a laptop computer. Id.; see also ROI, Tab 12 (Attachment 12). Plaintiff received the memorandum when she returned the next day and, realizing she was already out of compliance with the deadline, responded orally that day that her notes on the Beyah case were printed out and placed in the file room in 2004. Williams Affidavit ¶ 17. The agency again rejected Williams's response as inadequate, finding that she failed to comply with Wagner's directive even when she returned on November 13. ROI, Tab 1, at 4.
Third, plaintiff was charged with concealing information that was relevant to the Beyah case -- that is, the storage of Williams's witness interview notes on a latpop computer. ROI, Tab 1, at 4. Plaintiff submits that she did not mention the laptop computer because she had received several replacement laptops in the years since the interviews at issue, and had made a point of retaining and storing only hard copies of the interview notes. Williams Affidavit ¶ 16. Williams also alleges that Wagner was already aware that she often took notes on a laptop computer. Id. The agency again found her response inadequate, stating that Williams had a duty to disclose the full "chain of custody" of the notes and her failure to do so prejudiced the agency's ability to respond to the court in Beyah. ROI, Tab 1, at 5.
Following her termination, Williams moved for leave to amend her complaint to add an additional claim of retaliation, which was granted by Order dated June 24, 2009. Discovery was stayed on all claims based on the parties' expectation that defendant would file a pre-discovery motion for partial summary judgment on the retaliation claim concerning termination. See id. at 2. Defendant's motion for summary judgment on the termination claim is now fully briefed and ripe for resolution.*fn2
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(2); see also Celotex, 477 U.S. at 323.
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
The Court considers defendant's motion for summary judgment under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, a plaintiff must first establish a prima facie case by a preponderance of the evidence. See id. For a retaliation claim, this means a plaintiff must establish: "(1) that he engaged in statutorily protected activity; (2) that he suffered a materially adverse action by his employer; and (3) that a causal link ...