The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Diane R. Williams, a former Senior Trial Attorney at the Government Accountability Office ("GAO" or "the Agency") Personnel Appeals Board ("PAB" or "Board") in the Office of the General Counsel ("PAB/OGC"), brings this action against Gene L. Dodaro in his official capacity as Comptroller General ("Comptroller General"). Plaintiff's original complaint alleged age, race and sex discrimination, retaliation, and a hostile and abusive work environment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. In two previous rounds of summary judgment, the Court dismissed Williams' discrimination and hostile work environment claims, as well as retaliation claims based on events in January 2006 and February 2006. Remaining are plaintiff's claims of retaliation based on her failure to receive a promotion in April 2006, a formal reprimand she received in July 2006, and her termination in December 2008. Currently before the Court is the Comptroller General's third motion for summary judgment.*fn1
The facts surrounding Williams' April 2006 non-promotion claim and her July 2006 reprimand claim are set forth more fully in Williams v. Dodaro, 576 F. Supp. 2d 72 (D.D.C. 2008). The facts relating to Williams' termination claim is laid out in Williams v. Dodaro, 691 F. Supp. 2d 52 (D.D.C. 2010). However, further facts are included herein insofar as they are necessary to resolve this latest motion for summary judgment.
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 Williams' requests for a non-competitive promotion from grade GS-14 to grade GS-15. On September 17, 2008, the Court entered summary judgment for the Comptroller General on all then-existing claims except for plaintiff's claims concerning retaliation in the form of a non-promotion in April 2006 and a written reprimand in July 2006. Williams, 576 F. Supp. 2d at 93. Then, on December 31, 2008, Williams was terminated from her position at GAO. Following her termination, Williams sought leave to amend her complaint by adding a termination-based retaliation claim. The Court granted Williams' motion and stayed discovery on all claims pending a pre-discovery motion for partial summary judgment on the new retaliation claim. The Comptroller General filed that motion and the Court denied it on March 5, 2010, finding that, in considering all the evidence then in the record and by drawing all reasonable inferences for plaintiff, a reasonable jury could conclude that the proffered motives for terminating Williams were pretextual. Williams, 691 F. Supp. 2d at 56-57.
I.The April 2006 Non-promotion
On January 20, 2006, Williams sent an email to her temporary
supervisor, Beth Don, requesting a promotion from the GS-14 to GS-15
pay grade -- what is generally known as an "accretion of duties"
promotion. In that email, Williams also requested that Don perform a
desk audit of all of the attorney positions at PAB/OGC.*fn2
Pl.'s Opp'n. at 4; Def.'s Mot. Ex. 6 ("Williams Dep.")
103:5-105:8 (Aug. 2, 2010); Pl.'s Statement of Genuine Issues ¶ 24
("Pl.'s Stmt.") Don denied the promotion request, deferring the
decision to the permanent general counsel, but offered to do a desk
audit of Williams' position to evaluate the merits of Williams'
request.*fn3 Def.'s Ex. 2 ("Don Interrog.") ¶ 12 (March
23, 2007). There is no indication in the record that a desk audit was
ever performed, or that Williams made any further attempts to secure
one. See Williams' Dep. 103:5-105:8. During Williams' tenure at
PAB/OGC, there were no vacant GS-15 Senior Trial Attorney positions,
nor had any senior trial attorneys been promoted to the GS-15 level.
Def.'s Ex. 3 ("Don Decl.") ¶ 11-12 (Feb. 18, 2008).
Anne Wagner subsequently became the new PAB general counsel and, as a result, Williams' new supervisor. In April 2006, about a month after Wagner had assumed this position, Williams met with Wagner and again indicated that she would like to be promoted from GS-14 to GS-15. Pl.'s Opp'n at 4; Pl.'s Stmt. ¶ 6. Wagner did not recall Williams making a promotion request in April 2006, but knew about Williams' previous promotion request from 2003, as well as the January 2006 request made to Beth Don. Def.'s Mot. Ex. 7 ("Wagner Dep.") 13:1-6; 14:3-15:16 (Oct. 7, 2010). Wagner claims that during their meeting, Williams never formally requested a promotion but merely discussed her professional aspirations. Id. 14:3-5; 15:1-16. Wagner told Williams that she was not familiar enough with Williams' work, which Williams does not dispute. Pl.'s Opp'n at 5; Williams Dep. 71:15-18; 74:11-17. Wagner, in turn, told Williams her goals for PAB/OGC; Wagner wanted the office to become more active in representational work before the Board, which would, in turn, let the Board assess and observe the type of work product expected of a GS-15 position. Wagner Dep. 15:1-16.
II.The July 2006 Reprimand
In June 2006 Wagner became aware of a rumor circulating among GAO employees that then-PAB Chair Michael Doheny had a business relationship with a private company, GRA Inc., which had performed work for GAO. Def's Statement of Material Facts ("Def.'s Stmt") ¶ 9. Wagner was concerned that this created a conflict of interest or an appearance of a conflict of interest that could jeopardize the integrity of PAB, so she sought to gather information about the source and veracity of these rumors and to mitigate the damaging impact of any misinformation. Id. On June 6, 2006, Wagner emailed Williams asking: "Were you aware that Mike Doheny was identified as a GRA associate? If so, when and how did you hear about it?" Def's Stmt. ¶ 10; Def.'s Mot. Ex. 10. Wagner sent another email on June 8, 2006 asking Williams to respond by close of business on Friday, June 9, 2006. Def's Mot. Ex. 11. There are no emails in the record indicating that Williams responded. On June 16, 2011, Wagner also states that she counseled Williams about her failure to provide the information requested. Def.'s Stmt. ¶ 11. Wagner claims that the meeting concluded with Williams not providing the information, but instead, Williams was to decide whether or not she would "cooperate." According to Wagner, Williams did not ultimately provide this information.Wagner Dep. 23:15-21.
Williams admits that Wagner emailed her on those dates, but contends that she did not have any information about Doheny's relationship to GRA that Wagner did not already know, and had told Wagner as much sometime in June 2006. Pl.'s Stmt. ¶¶ 10-11; Williams Dep. 98:17-20; 99:8-14. Regardless, notices were sent out to employees advising them that any relationship between Doheny and GRA had been discontinued; at that point, Wagner believed the matter had been sufficiently addressed. However, on July 24, 2006, Beth Don received renewed inquiries from a GAO employee about the connection between Doheny and GRA. That same day, Don issued a memorandum to Wagner. Def's Mot. Ex. 12. In that memorandum, Don stated: "I know that as part of your initial effort to be in touch with folks who may have gotten the wrong idea about [Doheny's] professional commitment, you had asked Diane (you did not need to ask Gail because she had volunteered this information) about communications she may have had on the matter. It is my recollection that Diane never provided you with the information that you requested . . . please follow up with Diane and find out about all communications she may have had about Mike Doheny and GRA and get back to me by COB tomorrow." Id.
On July 25, 2006, at 1:50 pm Wagner emailed Williams requesting information about any communications Williams had with GAO employees about Doheny's relationship to GRA. In that email, she described Williams' failure to respond to prior requests for information on that subject. Def's Mot. Ex. 15.She directed Williams to respond by close of business, July 26, 2008. Id. A few minutes after sending that email, Wagner sent a joint email to Darian Jackson and Gail Gerebenics, two PAB employees, asking if they had any further communications with GAO employees concerning Doheny's relationship to GRA since Wagner had last asked about it. The tone and nature of this communication was noticeably different from the one Wagner sent Williams. Def's Mot. Ex. 13. Gerebenics responded, "I have had absolutely no contact about this with anyone but this is the first time that you have asked me." Id. Wagner replied: "You are right. I didn't ask you because you were the one who originally brought the entire matter to my attention in the first place." Id. Darian Jackson also replied in the negative. Def's Mot. Ex. 14.
Williams responded to Wagner's email the morning of Wednesday, July 26, 2006, and told Wagner she did not have her notes regarding Doheny with her, and wanted to respond by Thursday, July 27, 2006 so that she could be as accurate as possible. Def.'s Mot. Ex. 15. At 3:19 p.m., Wagner replied that she needed the information by 5:30 p.m. that day because she needed to prepare her own response by Friday, July 28, 2006; she indicated that Williams would receive an hour of credit time that day so that she could review her notes. Id. Williams replied to this email the following morning, stating that she did not see Wagner's email directing her to respond the previous day. Id. Williams claims she had gone home the evening of July 26, 2006, reviewed her notes, and drafted a response. Id.;Pl's Stmt. ¶ 13. However, on July 26, 2006, Wagner had already prepared the official letter of reprimand, which was served on Williams the next day. Pl.'s Stmt. ¶ 13; Def's Mot. Ex. 16. The letter was to remain in Williams' official personnel folder for not longer than three years and warned Williams that her continued refusal to provide the requested information could lead to more severe disciplinary action, including removal from employment. Def's Mot. Ex. 16.
III. Plaintiff's Termination
After a partially favorable resolution for Williams on the Comptroller General's first motion for summary judgment in September 2008, the Court held a scheduling conference on November 10, 2008, and entered an order allowing discovery to go forward on plaintiff's remaining claims -- the April 2006 non-promotion and the July 2006 reprimand. Subsequently, on December 1, 2008, Wagner issued a "Notice of Proposed Removal" to Williams. See Def.'s Mot. Ex. 21. Wagner admits that she drafted the notice on November 18, 2008. Williams, 691 F. Supp. 2d at 56. The Notice contains three charges stemming from two incidents in early November 2008. The Notice charged Williams with deliberate misrepresentation, falsification, or concealment of material facts based on an incident surrounding a brief that was filed in Jones v. GAO, a matter in which Williams was a counsel of record, and insubordination and concealment of a material fact with regard to her interview notes in Beyah v. Walker, a matter in which Williams had acted as an investigatory attorney for the administrative complaint, and later a witness when the case was ultimately pursued in federal court. See id. at 2-4. The Notice of Proposed Removal gave Williams fourteen days to respond, and stated that she could provide documentary evidence in support of her response. Wagner also concluded that Williams' continued presence in the office pending a final removal decision posed a risk, and placed Williams on sick leave.*fn4 The Notice stated: "[Y]ou do not have authorized access to any GAO facility" and ordered Williams to turn over all identification cards to the building, as well as any identification cards, devices, and keys for any other worksite or equipment. Id. at 6.
Williams replied to the charges on December 15, 2008, indicating that she was not permitted to take anything from her office, including any papers, so she was unable to support her reply with documentary evidence. Def.'s Mot. Ex. 44. On December 31, 2008, a decision on the proposed removal was issued by Paul Coran, the Chair of PAB, finding Williams' reply insufficient to defeat any of the charges and hence sustaining all of them. Def.'s Mot. Ex. 27, Decision by Paul Coran on Proposed Removal (Dec. 31, 2008) ("Removal Decision."). In that document, Coran stated that Williams "furnished no supporting documentation" in her reply. Id. In supporting a penalty of removal, the termination letter also referenced Williams' previous disciplinary record, including a prior suspension for insubordination, the July 2006 reprimand for refusing to cooperate with an investigation, and an admonishment for an unauthorized communication to GAO employees in a pending PAB case. Id. at 4. The removal was effective that same day. The grounds for the termination are discussed below.
Williams was listed as a counsel of record in an administrative proceeding, Jones v. GAO. Pl.'s Opp'n at 10; Pl.'s Stmt. ¶ 15. An opposition to GAO's motion for summary judgment was due on Friday, October 31, 2008. Pl.'s Stmt. ¶ 15. Even though Williams was counsel of record on the case, she maintains that, in practice, Wagner required Williams to clear all actions through her. Id. ¶ 15.
The parties agree that Williams had been busy with hearings on another matter that whole week. Wagner Dep. 86:7-8; Williams Dep. 131:23-25; 145:5-9. However, the accounts of the parties diverge with respect to what transpired during the October 31, 2008 attempt to file the brief and exhibits, and the subsequent filing the following Monday, November 3, 2008. Wagner claims she reviewed a draft of the brief that afternoon, that it clearly needed more work, but that she still thought it could be completed by the 4:00 pm filing deadline. Wagner Dep. 86:18-87:3. She also testified that close to the filing deadline, she saw Williams attempting to photocopy the exhibits for the brief. Wagner Dep. 87:8-19. Wagner further stated that she took a copy of the brief with her to the PAB to get permission from the Board to use its copier to get the brief filed. When she got to the PAB's copier, she noticed that the brief had not been signed, so Wagner signed the brief, as she was "typically on everything" that was filed with PAB. Wagner stated that she also signed Williams' name on the brief. Wagner Dep. 87:20-88:13.Wagner and Darian Jackson, a legal information specialist who worked at PAB, then filed the incomplete brief that Friday. Wagner Dep. 88:3-16. Wagner told Williams to continue with preparing the exhibits, and that Wagner would take care of contacting opposing counsel to let them know what happened, and to see if they had an objection to filing out of time. Wagner Dep. 88:17-89:3. The record is not clear as to whether Wagner actually contacted opposing counsel and, if so, what was communicated to them at that time.
The following Monday, November 3, 2008, Wagner was working remotely. On that day, a second, more complete version of the brief was filed, although the parties dispute whether it was Williams or Jackson who filed the brief. Pl.'s Opp'n Ex. 3 ¶ 10, Williams Affidavit (Aug. 31, 2009). Jackson indicated in a memorandum she prepared for Wagner dated November 13, 2008, that she noticed that the filing from Friday did not include exhibit numbers and brought it to Williams' attention. Pl.'s Opp'n Ex. 11. She further stated that Williams made the necessary changes, and then printed the document for Jackson to photocopy; she also stated that she presented the documents to Williams to ensure that she had everything she needed before copying the documents and filing them with the Board. Finally, according to Jackson, Williams gave her the cover page, reflecting the previous date-stamp for October 31, 2008, and placed it on top of the brief, stating "you might as well put this with that." Id. Williams, however, disputes that she knowingly substituted a revised version of the brief without seeking leave to do so, or that she knowingly altered a previously-filed brief or filed it with an old certificate of service or time-stamp. Pl.'s Stmt. ¶ 17. Williams claims that she never even knew the previous brief had been filed. Id. ¶ 15. Williams also contends that she did not file or cause to be filed the original brief, or even the second brief, although there is no dispute that she worked on drafting the brief itself. See Def.'s Ex. 44 at 3; Williams Dep. 141:10-142:5.
PAB rejected this second brief by an order dated November 4, 2008 because (1) it bore the same time/date stamp as the already-filed October 31, 2008 brief, (2) it had not been identified as a revised version, (3) there had been no request to file a corrected copy, and (4) there was no indication that the respondent had been properly served. Def.'s Mot. Ex. 17, Order (Nov. 4, 2008). The order was signed by Administrative Judge Mary E. Leary, but was followed by the initials "BLD" because Don had signed the order on Administrative Judge Leary's behalf. Don had also drafted the order. Def.'s Mot. Ex. 38 ("Don Dep.") 70:8-72:21 (Sept. 15, 2008). When Wagner returned on Tuesday, she saw the order and saw that the revised brief had the original certificate of service, signature page, and board-stamped copy from the filing that previous Friday. Wagner Dep. 91:10-19. Wagner also stated that there were no substantive changes to the arguments in the revised brief, but that exhibit numbers were added in, along with other minor changes. Id. 95:12-18.
Relying on information from Wagner and Jackson, PAB Chair Paul Coran concluded that Williams was responsible for filing the second brief, and did so in order to deceive PAB and opposing counsel. Removal Letter at 2. According to plaintiff's termination letter, these actions amounted to "trickery" and her failure to request leave to re-file ...