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Euel L. Mason, Donovan L. Benton, and Mable A. Gaines v. Timothy F. Geithner

September 12, 2011

EUEL L. MASON, DONOVAN L. BENTON, AND MABLE A. GAINES, PLAINTIFFS,
v.
TIMOTHY F. GEITHNER, SECRETARY, U.S. DEPARTMENT OF THE TREASURY, DEFENDANT. EUEL L. MASON, PLAINTIFF,
v.
TIMOTHY F. GEITHNER, SECRETARY, U.S. DEPARTMENT OF THE TREASURY, DEFENDANT. MABLE A. GAINES, PLAINTIFF,
v.
TIMOTHY F. GEITHNER, SECRETARY, U.S. DEPARTMENT OF TREASURY, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

In the three above-captioned actions,*fn1 Plaintiffs Mable Gaines ("Gaines"), Euel Mason ("Mason"), and Donovan Benton ("Benton") (collectively, "Plaintiffs"), each a former employee of the Internal Revenue Service ("IRS"), bring suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-1 et seq. ("Title VII") against the Secretary of the U.S. Department of the Treasury (the "Secretary"). There are currently two motions before the Court:

(1) the Secretary's Motion for Summary Judgment; and (2) the Secretary's Motion for Sanctions. Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court shall grant the Secretary's Motion for Summary Judgment, deny the Secretary's Motion for Sanctions, and dismiss all three actions in their entirety.*fn2

I. BACKGROUND

On August 14, 2003, Plaintiffs, along with other African American employees at the IRS, brought suit against the Secretary alleging that they had been discriminated against on the basis of race in connection with a variety of employment actions (the "2003 Litigation"). See Compl., Mason v. Snow, Civil Action No. 03-1730 (CKK) (D.D.C. Aug. 14, 2003). On May 1, 2006, the action was dismissed with prejudice when the parties reached an agreement to settle their dispute (the "2006 Settlement").*fn3 See Stip. & Compromise Settlement & Dismissal With Prejudice, Mason v. Snow, Civil Action No. 03-1730 (CKK) (D.D.C. May 1, 2006). In the actions now before the Court, Plaintiffs claim that they were retaliated against for their participation in the 2003 Litigation, including the 2006 Settlement. See Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 21, 23, 25; Compl. (Civil Action No. 10-184) ¶ 12; Compl. (Civil Action No. 10-683) ¶ 12.

A. Factual Background Relating to Plaintiff Mable Gaines In 1981, Mable Gaines began working at IRS Headquarters in Washington, D.C., as a clerk-typist. Def.'s Stmt. ¶ 1; Pls.' Stmt. ¶ 1. Around ten years later, she became an Inventory Management Specialist in the Distribution Division of the IRS's Media and Publications ("M&P") Organization, a position that she held until her prolonged absence from work that began on December 21, 2004, and lasted until June 4, 2007. Def.'s Stmt. ¶ 2; Pls.' Stmt. ¶ 2.

1. Gaines's Physical Altercation with a Co-Worker Gaines alleges that on the morning of December 21, 2004, a former co-worker entered her cubicle and-without saying a word-struck her on the right arm with such force that it could be heard across the room and caused a nerve in her shoulder to "pop." Def.'s Stmt. ¶ 3; Pls.' Stmt. ¶ 3; Dep. of Mable A. Gaines ("Gaines Dep.") at 72-78. During this incident, the co-worker was laughing and told Gaines that she was just "playing." Gaines Dep. at 78. Thereafter, Gaines-in what she describes as an attempt to "diffuse the situation"-responded by shoving the co-worker across the walkway and into an adjacent cubicle, "slamm[ing]" the co-worker against a file cabinet, and "cursing a whole lot." Def.'s Stmt. ¶ 5; Pls.' Stmt. ¶ 5; Gaines Dep. at 87, 90-91. Gaines has consistently claimed that the only reason the co-worker struck her was because Gaines refused to attend a breakfast outing earlier that morning. Def.'s Stmt. ¶ 6; Pls.' Stmt. ¶¶ 5-6; Gaines Dep. at 106.

2. Gaines's Prolonged Absence from Work Following the alleged assault, Gaines claimed that she was totally incapacitated as a result of the injuries she sustained and was unable to work.*fn4 Def.'s Stmt. ¶ 7; Pls.' Stmt. ¶ 7. She did not return to work at the IRS until June 4, 2007-an absence of approximately two-and-a-half years. Def.'s Stmt. ¶ 7; Pls.' Stmt. ¶ 7.
In the weeks following her departure in December 2004, Gaines's supervisors maintained contact with her and they honored her request to be reassigned from the Distribution Division within the M&P Organization to the Tax Forms and Publications Division.*fn5 Def.'s Stmt. ¶ 8; Pls.' Stmt. ¶ 8. During her extended absence, Gaines's application to receive annual leave donations through the IRS's Leave Transfer Program, which allows IRS employees to transfer accrued annual leave to an approved recipient for a medical emergency, was approved and a memorandum soliciting donations was distributed on her behalf.*fn6 Def.'s Stmt. ¶ 9; Pls.' Stmt. ¶ 9; Def.'s Ex. A (Mem. from G. Plater to All Employees dated Apr. 19, 2005); Def.'s Ex. C (Frequently Asked Questions about the Leave Sharing Program) at 2.

On June 9, 2005, Gaines was examined by a board-certified orthopedic surgeon, who concluded that she was able to return to work full-time so long as she was not required to lift more than ten pounds.*fn7 Def.'s Stmt. ¶ 10; Pls.' Stmt. ¶ 10. On August 19, 2005, the Office of Workers' Compensation Programs ("OWCP") within the Department of Labor ("DOL") notified the IRS that Gaines was fit to return to work with the stated lifting limitation. Def.'s Stmt. ¶ 11;

Pls.' Stmt. ¶ 11. On August 29, 2005, upon receiving the OWCP's notification, the IRS sent Gaines a letter offering her a position as a Tax Analyst in the Tax Forms and Publications Division of the M&P Organization, acknowledging her lifting limitation, and instructing her to report to work on September 6, 2005.*fn8 Def.'s Stmt. ¶ 12; Pls.' Stmt. ¶ 12; Gaines Dep. Ex. 7 (Ltr. to M. Gaines dated Aug. 29, 2005) at 1. The letter further stated that Gaines's failure to respond would be construed as a rejection of the offer and that her refusal to accept suitable employment could result in the termination of her workers' compensation benefits. Gaines Dep. Ex. 7 (Ltr. to M. Gaines dated Aug. 29, 2005) at 3. Nonetheless, Gaines failed to return the "Acceptance/Declination Statement" attached to the letter. Def.'s Stmt. ¶ 13; Pls.' Stmt. ¶ 13. Even so, Gaines was not disciplined when she failed to return to work on September 6, 2005, as she had been instructed. Def.'s Stmt. ¶ 14; Pls.' Stmt. ¶ 14.

On October 27, 2005, the DOL's OWCP contacted Gaines a second time, informing her in a letter that she had thirty days to either accept the Tax Analyst position that had been offered to her or to provide an explanation for her refusal. Def.'s Stmt. ¶ 15; Pls.' Stmt. ¶ 15. The letter again warned Gaines that her refusal to accept suitable work could result in the termination of her workers' compensation benefits. Def.'s Stmt. ¶ 15; Pls.' Stmt. ¶ 15.

After a considerable amount of time had elapsed,*fn9 Gaines eventually submitted medical documentation showing that she was totally disabled in the period extending from April 25, 2007, to June 3, 2007, and was unable to work during that period. Def.'s Stmt. ¶ 16; Pls.' Stmt. ¶ 16; Def.'s Ex. B (Attending Physician's Report dated May 31, 2007) at 1. Gaines's period of total disability ended on June 3, 2007, and Gaines was deemed fit to resume light work the following day. Def.'s Ex. B (Attending Physician's Report dated May 31, 2007) at 1.

3. Gaines's Return to Work

On June 4, 2007, Gaines returned to work, serving as a Tax Analyst in the IRS's New Carrollton office located in Lanham, Maryland.Def.'s Stmt. ¶ 17; Pls.' Stmt. ¶ 17. Upon her return, Gaines's chain-of-command was as follows:

* First-line supervisor: Sidney Gardner ("Gardner");

* Second-line supervisor: Ann Gelineau ("Gelineau");

* Third-line supervisor: Stacy Becker ("Becker")

* Fourth-line supervisor: Denise Fayne ("Fayne") from June 2007, to September 2008; and Karen Becton-Johnson ("Becton-Johnson") from September 2008, to September 2009.

Def.'s Stmt. ¶¶ 18-22; Pls.' Stmt. ¶¶ 18-22. Gaines's first- and second-line supervisors were located at the IRS's New Carrollton office, while her third- and fourth-line supervisors were located at IRS Headquarters in Washington, D.C. Def.'s Stmt. ¶¶ 18-22; Pls.' Stmt. ¶¶ 18-22.

The day of Gaines's return to work, she was taken on an office tour by her second-line supervisor, Gelineau. Def.'s Stmt. ¶ 23; Pls.' Stmt. ¶ 23. During the tour, Gelineau explained to Gaines that the entire office was conducting a week-long "clean building initiative," in connection with which employees were encouraged to cull their files of excess paperwork, organize their workspace, and remove any extraneous boxes or office supplies. Def.'s Stmt. ¶ 23; Pls.' Stmt. ¶ 23. Gelineau instructed Gaines to clean and organize the area surrounding Gaines's workplace, which would include removing boxes, equipment, and files, an instruction that Gaines admits applied to everyone in the office. Gaines Dep. at 227-33, 235; Dep. of Ann Gelineau ("Gelineau Dep.") at 89. Gaines admits that she did not inform Gelineau that she could not lift items of a certain weight, but speculates that Gelineau was otherwise aware of her lifting limitation. Gaines Dep. at 229-30. She also admits that she did not actually clean and organize the area and was never instructed to do so again, by Gelineau or anyone else. Id. at 233.

As a Tax Analyst within the Tax Forms and Publications Division, Gaines was expected to perform "plain language" review of tax forms, notices, and publications. Def.'s Stmt. ¶ 25; Pls.' Stmt. ¶ 25. However, upon her return to work, Gaines did not immediately begin "plain language" review work and was instead assigned to work on a "front-line manager readiness course" with her second-line supervisor, Gelineau. Def.'s Stmt. ¶ 26; Pls.' Stmt. ¶ 26. Subsequently, Gaines's supervisors made arrangements for her to obtain informal training in order to get her acclimated to her new position.*fn10 Dep. of Sidney Gardner ("Gardner Dep.") at 17, 35; Gaines Dep. at 235, 239. Because Gaines had no prior experience in the field, she needed more formal training in "plain language" review. Def.'s Stmt. ¶ 28; Pls.' Stmt. ¶ 28; Gaines Dep. at 236. The training that Gaines required was typically conducted in a classroom setting in Atlanta, Georgia, and required all-day attendance. Def.'s Stmt. ¶ 29; Pls.' Stmt. ¶ 29. However, Gaines's first-line supervisor, Gardner, arranged for a course to be held for Gaines at the New Carrollton office in August 2008, though by the time that date came, Gaines was no longer working. Def.'s Stmt. ¶ 30; Pls.' Stmt. ¶ 30; Gardner Dep. at 37.

4. Gaines's Requests for a "Flexiplace" Assignment and Accommodations In March 2008, Gaines submitted an application for a "flexiplace" assignment, requesting that she be allowed to work at home full-time following a surgical procedure that she planned to undergo at the end of the month. Def.'s Stmt. ¶ 31; Pls.' Stmt. ¶ 31. However, Gaines's supervisors informed her that they were unable to accommodate her request for a "flexiplace" assignment and accommodations to work from home because she was yet to complete the requisite "plain language" review training. Def.'s Stmt. ¶ 33; Pls.' Stmt. ¶ 33; Gardner Dep. at 28, 35; Gelineau Dep. at 26-27. Gardner told Gaines that he would be able to "better justify" her working from home following the completion of her training.*fn11 Gardner Dep. at 28, 35.

Like she was during her absence from work from December 2004 through June 2007, Gaines was again approved to participate in the Leave Transfer Program. Def.'s Stmt. ¶ 32; Pls.' Stmt. ¶ 32. However, Gaines's first-line supervisor, Gardner, admitted he "dropped the ball" and failed to send out notice of Gaines's approval for the Leave Transfer Program to other employees for them to make contributions of donated leave on her behalf. Gardner Dep. at 41-42.

5. Gaines's Suspension for Tax Non-Compliance The IRS's Employee Tax Compliance ("ETC") Branch is responsible for the identification of IRS employees who fail various computerized compliance checks related to the failure to file or the late filing of tax returns or the non-payment of taxes. Def.'s Stmt. ¶ 35; Pls.' Stmt. ¶ 35. On January 24, 2008, after performing a routine computerized comparison of payroll and tax account records, the ETC Branch determined that Gaines had failed to make sufficient estimated tax payments pertaining to gambling winnings during tax-year 2006.*fn12 Def.'s Stmt. ¶ 34; Pls.' Stmt. ¶ 34. Gaines admitted to the ETC Branch that she had violated her duty to accurately report her income, claiming that she was unaware of her legal obligation to report gambling winnings immediately upon receipt.*fn13 Def.'s Stmt. ¶ 38; Pls.' Stmt. ¶ 38. This was not Gaines's first incident of tax non-compliance: in 2003, Gaines received a three-day suspension for an incident pertaining to tax-year 1999.*fn14 Def.'s Stmt. ¶ 45; Pls.' Stmt. ¶ 45; Def.'s Ex. D (Ltr. from C. Tavenner to M. Gaines dated Nov. 24, 2003).

Upon discovering the issue, the ETC Branch referred the new incident to Gaines's supervisors for purposes of determining a suitable punishment. Def.'s Stmt. ¶ 39; Pls.' Stmt. ¶ 39; Gelineau Dep. at 92; Golatz Dep. at 21-22. On July 8, 2008, Gaines's first-line supervisor, Gardner, and her second-line supervisor, Gelineau, asked to meet with Gaines in person to discuss the matter.*fn15 Def.'s Stmt. ¶ 41; Pls.' Stmt. ¶ 41. During that meeting, Gelineau provided Gaines with a letter informing Gaines that the IRS was considering imposing a fourteen-day suspension in response to the incident, but that alternative discipline was also a possibility.

Def.'s Stmt. ¶ 41; Pls.' Stmt. ¶ 41. Two days after meeting with her supervisors, Gaines stopped reporting to work altogether. Def.'s Stmt. ¶ 42; Pls.' Stmt. ¶ 42. She never returned. Def.'s Stmt. ¶ 42; Pls.' Stmt. ¶ 42.

On July 14, 2008, Gaines sent her fourth-line supervisor, Fayne, a letter in which she expressed her desire to retire and to begin the disability application process.*fn16 Def.'s Stmt. ¶ 43; Pls.' Stmt. ¶ 43. After Gaines had already stopped reporting to work, but while the fourteen-day suspension proposal was still pending, the ETC Branch determined that Gaines had committed yet another tax violation-namely, that she had failed to timely pay additional taxes because she failed to accurately claim an earned-income tax credit.*fn17 Def.'s Stmt. ¶ 44; Pls.' Stmt. ¶ 44. This violation constituted the third instance of tax non-compliance by Gaines discovered by the ETC Branch.*fn18 Def.'s Stmt. ¶ 45; Pls.' Stmt. ¶ 45.

On December 12, 2008, upon learning of this development, Gaines's supervisors rescinded the original suspension proposal and issued a new letter proposing the same fourteen-day suspension, albeit this time incorporating the facts relating to the new incident of tax non-compliance.*fn19 Def.'s Stmt. ¶¶ 47-48; Pls.' Stmt. ¶¶ 47-48. Ultimately, the proposed fourteen-day suspension was mitigated to a ten-day suspension. Def.'s Stmt. ¶ 49; Pls.' Stmt. ¶ 49. Gaines was notified of the decision on April 13, 2009. Def.'s Stmt. ¶ 49; Pls.' Stmt. ¶ 49; Gaines Dep. Ex. 16 (Ltr. from K. Becton-Johnson to M. Gaines dated Apr. 13, 2009). 6. The Termination of Gaines's Employment On March 3, 2009, Gaines underwent a work-capacity evaluation, after which the examining doctor determined that she was able to return to work on a full-time basis.*fn20 Def.'s Stmt. ¶ 50; Gaines Dep. Ex. 18 (Work Capacity Evaluation dated Mar. 3, 2009). On May 29, 2009, the DOL's OWCP notified Gaines that her medical and wage loss benefits would be terminated effective June 7, 2009, advised her that applicable regulations required her to apply for re-employment with the IRS immediately upon her recovery, and informed her of her right to appeal the determination.*fn21 Def.'s Stmt. ¶ 51; Pls.' Stmt. ¶ 51; Gaines Dep. Ex. 18 (Ltr. from S. Stone to M. Gaines dated May 29, 2009). On June 15, 2009, the IRS sent Gaines a letter instructing her to report to work by no later than June 29, 2009. Def.'s Stmt. ¶ 52; Pls.' Stmt. ¶ 52; Gaines Dep. Ex. 19 (Ltr. from S. Becker to M. Gaines dated June 15, 2009). In lieu of returning to work, Gaines elected to appeal the OWCP's determination.*fn22 Def.'s Stmt. ¶ 53; Pls.' Stmt. ¶ 53. On July 21, 2009, Gaines's legal counsel, Richard L. Swick, Esq. ("Swick"), responded to the IRS's letter by informing the IRS that Gaines was "not likely to be physically able to return to work at the IRS" and requesting that an IRS representative "call [him] to explore a resolution to th[e] situation." Gaines Dep. Ex. 20 (Ltr. from R. Swick to S. Becker dated July 21, 2009) at 1.

Shortly thereafter, Swick called Gaines's third-line supervisor, Becker. Def.'s Stmt. ¶ 54; Pls.' Stmt. ¶ 54. The parties dispute what was said during this conversation, though they agree that it occurred. On the one hand, the Secretary contends that Swick requested that the IRS begin the process of terminating Gaines for non-disciplinary reasons-in other words, that she be terminated without cause. Def.'s Stmt. ¶ 54. On the other hand, Gaines admits that Swick and Becker discussed two available options-a non-disciplinary termination and a disability retirement-but denies that Swick requested that the IRS begin the process for a non-disciplinary termination. Pls.' Stmt. ¶ 54. Both versions of the conversation find some support in the record. Becker testified at her deposition that Swick informed her that Gaines would not be "coming to work" and requested that Becker "start the termination procedures." Dep. of Stacey Becker ("Becker Dep.") at 28. Meanwhile, Swick has submitted a declaration in which he states that while he and Becker "did discuss the option of a non-disciplinary termination, . . . [he] did not suggest that Ms. Becker propose Ms. Gaines's termination." Pls.' Ex. 33 (Decl. of Richard L. Swick) ¶¶ 3, 5. Furthermore, there is a point in Becker's deposition testimony where she suggests that Swick stated during the conversation that the IRS "needed to get her retirement going," Becker Dep. at 67, which may or may not be consistent with the remainder of her testimony. Viewing this conflicting evidence in the light most favorable to Gaines as the non-movant, the Court will assume for purposes of resolving the pending motions that Swick did not ask or otherwise propose that the IRS commence the process of terminating Gaines for non-disciplinary reasons.

Setting aside whether Swick requested that the IRS do so, the IRS subsequently initiated the process of removing Gaines for non-disciplinary reasons. Def.'s Stmt. ¶ 55; Pls.' Stmt. ¶ 55. Gaines testified that she no longer wanted to continue working at the IRS by that point in time, and maintains that she was still unable to work. Gaines Dep. at 207, 212. Nonetheless, she had not at that time filed an application for her preferred mode of separating from the IRS-namely, a disability retirement.*fn23 Def.'s Stmt. ¶¶ 56-57; Pls.' Stmt. ¶¶ 56-57. Accordingly, the IRS proceeded with the non-disciplinary termination process, citing as grounds Gaines's admitted failure to report for work and inability to perform her duties since early July 2008. Def.'s Stmt. ¶ 59; Pls.' Stmt. ¶ 59. On September 15, 2009, the IRS notified Gaines of the proposed non-disciplinary termination, and in so doing expressly advised Gaines that the proposed "action [would] not affect [her] entitlement to apply for disability retirement for up to one year after separation" and "[would] not affect any entitlement to compensation for which [she] may qualify under the Federal Employees' Compensation Act." Gaines Dep. Ex. 22 (Ltr. from S. Becker to

M. Gaines dated Sept. 15, 2009) at 1-2; see also Becker Dep. at 66 (testifying that the termination would not have any effect on Gaines's filing for a disability retirement). Although the IRS informed Gaines of her right to respond to the proposal orally or in writing, Gaines elected to do neither. Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15, 2009) at 2; Def.'s Stmt. ¶ 60; Pls.' Stmt. ¶ 60. On October 16, 2009, the IRS notified Gaines that her non-disciplinary proposal would be upheld and that she would be removed from federal service effective October 23, 2009. Def.'s Stmt. ¶ 61; Pls.' Stmt. ¶ 61; Gaines Dep. Ex. 23 (Ltr. from K. Becton-Johnson to M. Gaines dated Oct. 16, 2009).

It is an employee's responsibility to initiate the disability retirement application process. Becker Dep. at 68. The Secretary asserts that the IRS cannot process a disability retirement without a Form OPM SF-3112B application for disability retirement from the employee, Def.'s MSJ Mem. at 10 n.4, and this assertion is left uncontested by Gaines in her opposition papers. When notifying Gaines of her proposed non-disciplinary termination on September 15, 2009, the IRS described the application process for Gaines and provided relevant contact information. Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15, 2009) at 1. It is undisputed that Gaines did not file an application for a disability retirement-Form OPM SF-3112B-until October 4, 2009. Def.'s Stmt. ¶ 57; Pls.' Stmt. ¶ 57. Thereafter, the IRS forwarded her application to the Office of Personnel Management ("OPM")*fn24 and Gaines's termination was subsequently converted from a non-disciplinary removal to a disability retirement. Def.'s Stmt.¶¶ 58, 62; Pls.' Stmt. ¶ 62. The record created by the parties does not clearly provide when the conversion occurred.

B. Factual Background

Relating to Plaintiff Euel Mason Mason began working with the IRS in 1987 as a GS-5-level Printing Analyst. Def.'s Stmt. ¶ 63; Pls.' Stmt. ¶ 63. As a result of the 2006 Settlement, he was promoted to a GS-14-level Technical Advisor position in the M&P Organization. Def.'s Stmt. ¶ 64; Pls.' Stmt. ¶ 64. During the relevant time period, Mason's chain-of command was as follows:

* First-line supervisor: Pedro Mendez ("Mendez"), from October 1, 2006, to April 13, 2007; fellow-plaintiff Benton, from April 15, 2007, to July 7, 2007; Richard Freeman ("Freeman"), from July 8, 2007, to August 5, 2007; and Paul Dangel ("Dangel"), from August 4, 2007, to September 30, 2007;

* Second-line supervisor: Mitchell Farah ("Farah"); and

* Third-line supervisor: Fayne, until September 2008; Becton-Johnson, from September 2008, to July 31, 2009.

Def.'s Stmt. ¶¶ 65-67; Pls.' Stmt. ¶¶ 65-67.

1. Mason's Complaints as to a Series of "Incidents" With His Supervisors Mason complains of a series of approximately fourteen "incidents" that allegedly occurred between him and his supervisors in the approximately three-year period extending from June 2, 2006, to July 31, 2009.*fn25 See Pls.' MSJ Opp'n at 12-24. Mason provides only the barest of factual content in connection with these incidents, and the Court identifies them here seriatim.

* The June 2, 2006, Incident: Mason alleges that he attended a meeting with his third-line supervisor, Fayne, to discuss and resolve his concerns about "personnel information and chain of command reporting structure." Pls.' MSJ Opp'n at 12; Pls.' Interrog. Resps. No. 3. Mason claims that his concerns were not "corrected or resolved in a timely manner." Pls.' MSJ Opp'n at 12; Pls.' Interrog. Resps. No. 3.

* The March 7, 2007, Incidents: Mason alleges that he received a "harassing" e-mail from his third-line supervisor, Fayne, in which Fayne indicated that "she was not going to meet with him to address his ongoing and unresolved concerns." Pls.' MSJ Opp'n at 13; Pls.' Interrog. Resps. No. 3. In addition, Mason alleges that he received "a very disturbing,condescending, and harassing e-mail" from his second-line supervisor, Farah, on the same day, in which Farah told Mason that he was "not familiar" with the 2006 Settlement. Pls.' MSJ Opp'n at 13; Pls.' Interrog. Resps. No. 3.

* March 26, 2007, Incident: Mason alleges that he attended a "private meeting" with his first-line supervisor, Mendez, and second-line supervisor, Fayne, in which Fayne spoke to him "in a very aggressive tone and derogatory, condescending and insensitive way" when Fayne allegedly told Mason that "she was 'singling him out' because of his expertise and because of his marital status of being 'single.'" Pls.' MSJ Opp'n at 14;

Pls.' Interrog. Resps. No. 3.

* The April 30, 2007, Incident: Mason alleges that he was required to attend an "impromptu personnel meeting" called by his third-line supervisor, Fayne, and attended by various senior-level management officials, concerning "ongoing and unresolved personnel issues." Pls.' MSJ Opp'n at 15; Pls.' Interrog. Resps. No. 3. Without further explanation, Mason contends that he felt "singled-out" and "harassed" by being required to attend an "inappropriate and mandated meeting." Pls.' MSJ Opp'n at 15; Pls.' Interrog. Resps. No. 3.

* The June 28, 2007, Incident: Mason alleges that he was copied on "a very disturbing, condescending, and harassing" e-mail from his second-line supervisor, Farah, in which Farah stated to co-plaintiff Benton that Mason "could not act on Mr. Benton's behalf for even the one week while he was out of the office." Pls.' MSJ Opp'n at 15-16; Pls.' Interrog. Resps. No. 3. Mason contends that the e-mail was designed to "single-out and publically embarrass [him] in front [of] other management officials and co-workers." Pls.' MSJ Opp'n at 15-16; Pls.' Interrog. Resps. No. 3.

* The December 10, 2007, Incident: Mason alleges that he witnessed his second-line supervisor, Farah, hand co-plaintiff Benton a "sealed confidential envelope which contained a bogus management directive of reprimand" pertaining to Benton. Pls.' MSJ Opp'n at 17-18; Pls.' Interrog. Resps. No. 3.

* The February 29, 2008, Incident: Mason alleges that he was approached "in an aggressive, condescending, disruptive and harassing manner" at his workstation by his first-line supervisor, Mendez, and his second-line supervisor, Farah, who handed Mason "a sealed confidential envelope containing a bogus management directive of reprimand with other co-workers were [sic] present." Pls.' MSJ Opp'n at 18-19; Pls.' Interrog. Resps. No. 3.

* The March 31, 2008, Incident: Mason alleges that he witnessed his third-line supervisor, Fayne, approach co-plaintiff Benton "in a threatening, condescending, disruptive, abusive, hostile and harassing verbal tone and manner" by "berat[ing] Mr. Benton for not agreeing to attend an impromptu meeting about a confidential matter." Pls.' MSJ Opp'n at 19-20; Pls.' Interrog. Resps. No .3

* The June 19, 2008, Incident: Mason alleges that he witnessed his second-line supervisor, Farah, approach co-plaintiff Benton's workstation and "attempt [to] embarrass, degrade, and humiliate [] Benton with [sic] publically handing him . . . a confidential sealed envelope." Pls.' Interrog. Resps. No. 3.

* October 6, 2008, Incident: Mason alleges that he was approached by his second-line supervisor, Farah,"in an aggressive, condescending, disruptive and harassing manner" when Farah provided him with a "sealed confidential envelope[]" containing a letter proposing disciplinary action. Pls.' MSJ Opp'n at 20-21; Pls.' Interrog. Resps. Nos. 3, 5.

* January 7, 2009, Incident: Mason alleges that he was approached by his second-line supervisor, Farah, "in an aggressive, demeaning, abusive, harassing and hostile manner, when [Farah] handed him a sealed confidential envelope containing a [letter] imposing a 3-day suspension without pay." Pls.' MSJ Opp'n at 21-22; Pls.' Interrog. Resps. Nos. 3, 5.

* February 4, 2009, Incident: Mason alleges that his second-line supervisor, Farah, "repeatedly came down to [his] work area to stalk and harass [him] at his workstation to humiliate and embarrass him in a very condescending, threatening and demeaning manner in front of co-workers." Pls.' MSJ Opp'n at 22-23; Pls.' Interrog. Resps. Nos. 3, 5.

* July 28, 2009, Incident: Mason alleges that he was approached by his first-line supervisor, Dangel, "in an aggressive, demeaning, abusive, harassing and hostile manner." Pls.' MSJ Opp'n at 23; Pls.' Interrog. Resps. No. 3.

* July 31, 2009, Incident: Mason alleges that he attended a meeting with his first-line supervisor, Dangel, during which Dangel "wanted [him] to sign and date a memorandum stating Notice of Unsatisfactory Performance of Duty and Failure to Respond Readily to the Directions of your Supervisor," which he characterizes as "totally untrue, unwarranted, and unlawful against him." Pls.' MSJ Opp'n at 23-24; Pls.' Interrog. Resps. No. 3.

2. Mason's Non-Selection for the '322 Position On or about April 16, 2007, Mason applied for the position of Branch Chief of Functional Publishing, Vacancy Announcement 40-41-AT7TG322 ("'322 Position"). Def.'s Stmt. ¶ 68;

Pls.' Stmt. ¶ 68. Five employees, all African American, were named to the best-qualified list for the '322 Position. Def.'s Stmt. ¶ 69; Pls.' Stmt. ¶ 69. In addition to Mason, included on the list were (1) co-plaintiff Benton, (2) Freeman, (3) Vincente Tillman ("Tillman"), and (4) Cynthia McKinney ("McKinney"). Def.'s Stmt. ¶ 69; Pls.' Stmt. ¶ 69. Steve Manno ("Manno") was the ranking official, Farah was the recommending official, and Fayne was the selecting official.

Def.'s Stmt. ¶¶ 70, 72; Pls.' Stmt. ¶¶ 70, 72.

As the ranking official, Manno began the process by reviewing the application packages and written submissions that the five candidates submitted and assigning each candidate a score.*fn26 Def.'s Stmt. ¶¶ 70, 73; Pls.' Stmt. ¶¶ 70, 73. Mason received a ranking score of 95 points.*fn27 Def.'s Stmt. ¶ 74; Pls.' Stmt. ¶ 74. Thereafter, the candidates were interviewed by a three-person panel, which asked each candidate identical questions and rated their responses. Def.'s Stmt. ¶ 75; Pls.' Stmt. ¶ 75. Mason received an interview score of 22 points. Def.'s Stmt.

¶ 76; Pls.' Stmt. ¶ 76. The final scores for all five candidates were as follows:

NAME RANKING SCORE INTERVIEW SCORE

Freeman (selectee) 100 28 Tillman 100 22 Mason 95 22 Benton 95 21 McKinney 90 17 See Def.'s Ex. M (Management Selection Program Ranking Form for R. Freeman); Def.'s Ex. N (Management Selection Program Ranking Form for V. Tillman); Def.'s Ex. O (Management Selection Ranking Form for D. Benton); Def.'s Ex. P (Management Selection Program Ranking Form for C. McKinney); Def.'s Ex. Q (Management Selection Ranking Form for E. Mason).

The scores were then reviewed by Farah, who as the recommending official chose the highest-ranking candidate-Freeman. Def.'s Ex. L (Promotion Certificate) at 1501. Thereafter, the scores and Farah's recommendation were reviewed by Fayne, who as the selecting official selected the highest-ranking candidate-Freeman-on July 8, 2007. Def.'s Stmt. ¶¶ 78-79; Pls.' Stmt. ¶¶ 78-79; Def.'s Ex. L (Promotion Certificate) at 1501.

The application and review materials demonstrated a "clear separation" between Freeman and the other four candidates, including Mason.*fn28 Def.'s Stmt. ¶ 80. Both Manno, as the ranking official, and the interview panel agreed that Freeman possessed the most extensive managerial experience, demonstrated more relevant professional achievement than the other candidates, and had an educational background that was superior or comparable to the other candidates.*fn29 Id. ¶ 81. At his deposition, Mason admitted that he was not the most qualified candidate for the '322 Position. Dep. of Euel Mason ("Mason Dep.") at 206-08. In his own view, at least two candidates-Tillman and co-plaintiff Benton-should have been selected over him. Id.

3. Mason's Request for a Rotational Work Assignment On March 28, 2008, employees in the M&P Organization received an e-mail describing the Rotational Work Assignment Program, which was designed to "provide Printing Specialists the opportunity to gain a broader knowledge base of the organization and its programs." Def.'s Stmt. ¶ 84; Pls.' Stmt. ¶ 84. Employees were invited to select up to three program choices for a rotational work assignment and to submit their choices to their supervisor by April 11, 2007, along with a statement explaining why the choices would benefit the IRS. Def.'s Ex. R (E-mail from T. Costa to M&P Listserv dated Mar. 27, 2007) at 1. Mason submitted his requests for a rotational assignment on April 23, 2007, after the submission deadline had elapsed. Def.'s Stmt.

¶ 85; Pls.' Stmt. ¶ 85. Nonetheless, Mason's second-line supervisor, Farah, considered Mason's request. Def.'s Stmt. ¶ 86; Pls.' Stmt. ¶ 86. After consulting with Mason's first-line supervisor, co-plaintiff Benton, and his third-line supervisor, Fayne, Farah decided that Mason should remain in his current position in order to complete an ongoing project, the VERA/VSIP Mailout Program, and denied Mason's request on April 23, 2007.*fn30 Def.'s Stmt. ¶ 86; Pls.' Stmt. ¶ 86;

Def.'s Ex. R (E-mail from M. Farah to E. Mason dated Apr. 23, 2007). Mason's first-line supervisor, co-plaintiff Benton, had informed Farah that another important mailout was upcoming and that Mason's participation in the project was necessary. Def.'s Stmt. ¶ 87; Pls.' Stmt. ¶ 87. However, after the VERA/VSIP Mailout Program had concluded, Mason renewed his request for a rotational assignment. Def.'s Stmt. ¶ 89; Pls.' Stmt. ¶ 89. Farah responded the very next day by granting Mason's request, notifying Mason that he would be granted a rotational work assignment to the Wage & Investment Tax Products Branch Chief's office beginning on August 5, 2007.*fn31 Def.'s Stmt. ¶ 90; Def.'s Ex. R (E-mail from M. Farah to E. Mason dated July 27, 2007).

4. Mason's Request for a Transfer to the New Carrollton Office On August 30, 2007, Mason sent an e-mail to his third-line supervisor, Fayne, requesting that his post of duty be changed from IRS Headquarters in Washington, D.C., to the IRS's New Carrollton office located in Lanham, Maryland. Def.'s Stmt. ¶ 91; Pls.' Stmt. ¶ 91. Fayne responded to Mason's request later that day, reminding Mason of the general policy that requests by employees in the M&P Organization for a transfer to New Carrollton office would not be considered until January 2008 because the M&P Organization had in place a moratorium on all relocations to the New Carrollton office affecting all employees in the organization. Def.'s Stmt. "references to the parts of the record relied on [for] support," LCVR 7(h)(1), the Court will disregard them. ¶ 92; Pls.' Stmt. ¶ 92; Def.'s Ex. S (E-mail from D. Fayne to E. Mason dated Aug. 30, 2007). At his deposition, Mason admitted that he was already aware of the policy at the time that he made his request. Mason Dep. at 177-78. He has also conceded that he is unable to identify any other employee in the M&P Organization who requested and was granted a transfer to the New Carrollton office during the moratorium. Def.'s Stmt. ¶ 95; Pls.' Stmt. ¶ 95.

5. Mason's Request to Be Reassigned to Another Branch On December 17, 2007, Mason requested to be transferred to another branch within the M&P Organization.*fn32 Def.'s Stmt. ¶ 96; Pls.' Stmt. ¶ 96. On December 18, 2007, Mason's second-line supervisor, Farah, denied the request, citing as grounds that Mason had just recently been transferred to the Functional Publishing Branch in July 2007 and that there was no staffing need for someone working in Mason's position in any of the other branches.*fn33 Def.'s Stmt. ¶ 98;

Def.'s Ex. U (Decl. of Paul L. Dangel) at 1112; Def.'s Ex. V (Decl. of Mitchell A. Farah) at 992.

6. Mason's Request for a "Flexiplace" Assignment On October 15, 2007, Mason met with his first-line supervisor, Dangel, during which he provided Dangel with a memorandum entitled "Requests for Family Medical Leave Act and Flexi-Place," and a seven-page, single-spaced "Informal Meeting Agenda." Def.'s Stmt. ¶ 99; Pls.' Stmt. ¶ 99. In the memorandum, Mason explained that he had two sisters in Memphis, Tennessee, who required his support and requested "to be approved for the Family Medical Leave Act" and "to be allow [sic] to work Flexi-place from the Memphis Service Center Campus." Def.'s Stmt. ¶ 100; Pls.' Stmt. ¶ 100. In the agenda, Mason expressly asked Dangel to seek approval for the requests on his behalf from "appropriate upper management officials."

Def.'s Stmt. ¶ 101; Pls.' Stmt. ¶ 101. Pursuant to Mason's request, Dangel subsequently approached his supervisors and inquired whether Mason could work in Memphis. Def.'s Stmt. ¶ 102; Pls.' Stmt. ¶ 102. It is undisputed that Dangel did not discuss the nature of Mason's sisters' illness, Mason's prior protected activity, or Mason's participation in the Employee Assistance Program with his supervisors.*fn34 Def.'s Stmt. ¶ 103; Pls.' Stmt. ¶ 103.

Subsequently, Dangel notified Mason that he had spoken with Farah and Fayne about his requests. Def.'s Stmt. ¶ 104; Pls.' Stmt. ¶ 104. This prompted Mason to send a lengthy e-mail to his first-line supervisor, Dangel, his second-line supervisor, Farah, his third-line supervisor, Fayne, and his fifth-line, Atlanta-based supervisor, Susan Carroll, entitled, "Did not need to know requesting [sic] reassignment its [sic] a trust broken reassigned [sic] to B-tax chief or Pub. chief." Def.'s Stmt. ¶ 105; Pls.' Stmt. ¶ 105.

7. Mason's "Met" Rating on His 2007 Performance Appraisal Following implementation of the 2006 Settlement, Mason was promoted to a GS-14-level, 1601-series Technical Advisor position. Def.'s Stmt. ¶ 106; Pls.' Stmt. ¶ 106. Prior to the promotion, Mason was a GS-13, non-managerial, non-bargaining-unit employee and received performance appraisals on Form 6850-NBU. Def.'s Stmt. ¶ 107; Pls.' Stmt. ¶ 107. Following his promotion to Technical Advisor, however, Mason was evaluated under Form 12450-B, which is typically used for management officials.*fn35 Def.'s Stmt. ¶ 108; Pls.' Stmt. ¶ 108. Form 12450-B differs from Form 6850-NBU because it contains so-called "critical performance expectations" ("CPEs"), concrete goals specifically designed for each employee being evaluated. Def.'s Stmt. ¶ 109; Pls.' Stmt. ¶ 109. The Form 6850-NBU does not contain these specific, employee-tailored performance expectations and instead evaluates employees using general achievement criteria like "customer satisfaction" and "business results." Def.'s Stmt. ¶ 110; Pls.' Stmt. ¶ 110. In short, with his promotion, Mason was being evaluated based on new criteria. Def.'s Stmt. ¶ 111; Pls.' Stmt. ¶ 111.

The matter was complicated somewhat when Mason stated that he did not want to assume managerial responsibilities upon his promotion.*fn36 Def.'s Stmt. ¶ 112; Dep. of Denise Fayne ("Fayne Dep.") at 77-78. Due to Mason's refusal to accept a managerial position, an entirely new, non-managerial position was created especially for him at the GS-14 level.*fn37 Def.'s Stmt. ¶ 113; Fayne Dep. at 72-73, 77. Because Mason held a non-managerial GS-14-level position, there was initially some confusion as to whether Mason should continue to be evaluated under Form 6850-NBU or should instead be evaluated under Form 12450-B. Def.'s Ex. Z (Suppl. Decl. of Pedro Martinez) at 1158. Later, it was discovered that Mason should have been provided with his CPEs when he was first promoted, and should have been switched over to the Form 12450-B at that time. Def.'s Stmt. ¶ 114; Pls.' Stmt. ¶ 114. When the oversight came to light, Mason's supervisors converted him to Form 12450-B and issued him the CPEs that would help determine his ultimate rating on the Form 12450-B. Def.'s Stmt. ¶ 115; Pls.' Stmt. ¶ 115.

Consistent with this account, Mason's first-line supervisor, Mendez, initially signed Mason's review on the Form 6850-NBU on February 27, 2007, issuing Mason a rating of "Outstanding"-the highest rating available-for the period from February 1, 2006, to January 31, 2007.*fn38 Def.'s Stmt. ¶ 116; Def.'s Ex. Y (Non Bargaining Unit Performance Appraisal for Euel Mason) at 1740. Mason was subsequently converted to Form 12450-B for the period from October 1, 2006, to September 30, 2007. Def.'s Stmt. ¶ 117; Pls.' Stmt. ¶ 117. On April 20, 2007, Mason and his first- and second-line supervisors signed a mid-year progress review in which Mason acknowledged that he had discussed the CPEs with his supervisors and was given specific examples of the behavior that would meet the standards described in the CPEs. Def.'s Stmt. ¶ 118; Pls.' Stmt. ¶ 118.

At the end of fiscal-year 2007, Mendez furnished Mason with a summary narrative of Mason's achievements to be included in his Form 12450-B evaluation.*fn39 Def.'s Stmt. ¶ 119;

Def.'s Ex. X (Management Official Performance Agreement for E. Mason) at 1685. Mendez also asked Mason to prepare a self-assessment for the year, which Mason provided. Def.'s Stmt. ¶ 120; Pls.' Stmt. ¶ 120. Mendez reviewed Mason's self-assessment and, based on Mason's narrative, determined that Mason had successfully "met" his CPEs.*fn40 Def.'s Stmt. ¶ 121; Pls.' Stmt. ¶ 121. However, Mendez at first refused to sign the evaluation because he was no longer Mason's first-line supervisor of record at the conclusion of the performance period. Mendez Dep. at 107. Instead, Mendez forwarded the evaluation to Mason's second-line supervisor, Farah, for his review. Def.'s Stmt. ¶ 122; Pls.' Stmt. ¶ 122. Like Mendez, Farah determined that Mason had successfully "met" his CPEs.*fn41 Def.'s Stmt. ¶ 123; Dep. of Mitchell Farah ("Farah Dep.") at 42-44. The "met" rating meant that Mason "achieved or made substantial progress toward achievement of desired results" with respect to his commitments and that he displayed "solid, dependable performance." Def.'s Stmt. ¶ 124; Pls.' Stmt. ¶ 124. Mason claims that he did not receive his appraisal until early October 2008. Pls.' Stmt. ¶ 117 (citing Pls.' Interrog. Resps. No. 7). However, it is undisputed that Mason's "met" rating became official on November 26, 2007, when Farah electronically signed the evaluation and provided it to Mason on the IRS's ePerformance system.*fn42 Def.'s Stmt. ¶ 126; Pls.' Stmt. ¶ 126. For months, Mason refused to sign the evaluation, insisting that Mendez sign it first. Farah Dep. at 44-51.

8. Mason's "Met" Rating on His 2008 Performance Appraisal Mason also received a "Met" rating for fiscal-year 2008. Def.'s Stmt. ¶ 129; Pls.' Stmt. ¶ 129; Def.'s Ex. CC (Management Official Performance Agreement for E. Mason). Mason's first-line supervisor, Dangel, compared Mason's achievements to his pre-set CPEs and determined that Mason had satisfactorily met his goals.*fn43 Def.'s Stmt. ¶ 130; Dangel Dep. at 83-85. According to Dangel, Mason had met his CPEs and performed adequately on all assignments, though there were several assignments that were either late, inaccurate, or incomplete. Def.'s Ex. DD (Decl. of Paul L. Dangel) at 133.

9. Mason's Three-Day Suspension

Mason routinely sent e-mails to his supervisors and senior IRS officials raising what he claims were "workplace concerns." Def.'s Stmt. ¶ 136; Pls.' Stmt. ¶ 136. For example, on June 6, 2008, Mason sent a four-page, single-spaced e-mail about his 2007 performance appraisal to his first-, second-, third-, and acting-third-line supervisors, as well as to the following senior IRS officials: Douglas H. Shulman, IRS Commissioner; Richard E. Byrd, Commissioner of the Wage & Investment Division; Pamela G. Watson, Deputy Commissioner of the Wage & Investment Division; and Linda E. Stiff, Deputy Commissioner of the Small-Business/Self-Employment Division. Def.'s Stmt. ¶ 137; Pls.' Stmt. ¶ 137; Def.'s Ex. EE (E-mail from E. Mason to P. Dangel dated June 6, 2008) at 1334-37. In the e-mail, Mason insisted that the "PERFORMANCE APPRAISAL PROCESS should be 'eliminated'" because "it's totally 'bias [sic], unfair, and unlawful.'" Def.'s Ex. EE (E-mail from E. Mason to P. Dangel dated June 6, 2008) at 1335 (capitalization, emphasis, and internal quotation marks in original).

Eventually, Mason was directed to stop sending e-mails detailing his various grievances directly to senior IRS officials. Def.'s Stmt. ¶ 140; Pls.' Stmt. ¶ 140. However, Mason nonetheless continued to send the e-mails because he felt the responses he received from his managers, the EEO apparatus, the Treasury Inspector General for Tax Administration ("TITGA"), and the Office of Civil Rights and Diversity were "unjust." Def.'s Stmt. ¶ 140; Pls.' Stmt. ¶ 140. Alleging that EEO investigators "tamper" with complaints and conspire with IRS supervisors to "cover up" wrongdoing, Mason claims that the EEO process is thoroughly "corrupt" and "should be abolished."*fn44 Def.'s Stmt. ¶ 141; Pls.' Stmt. ¶ 141. He contends that because he was dissatisfied with his supervisors' responses, he had a right to elevate his complaints and to have them personally reviewed by the Secretary of the Treasury and even the President of the United States.*fn45 Def.'s Stmt. ¶ 142; Pls.' Stmt. ¶ 142.

After tolerating Mason's communications for months and encouraging him to use the IRS's EEO apparatus and the agency grievance process to resolve his concerns, it became clear that Mason would not stop sending such communications. Def.'s Stmt. ¶ 143; Pls.' Stmt. ¶ 143. Mason's supervisors then contacted the Labor Relations Branch to determine how best to handle the matter. Def.'s Stmt. ¶ 143; Pls.' Stmt. ¶ 143. At that point, a Labor Relations Specialist recommended to Mason's supervisors that they issue him a management directive*fn46 explaining that his behavior was unacceptable and describing the proper channels to use in raising workplace grievances. Def.'s Stmt. ¶ 144; Pls.' Stmt. ¶ 144. The Labor Relations Specialist and Mason's supervisors subsequently drafted the management directive and provided it to Mason on February 29, 2008. Def.'s Stmt. ¶ 146; Pls.' Stmt. ¶ 146. The directive, entitled "Directive for Resolving Issues of Personal Concern," was signed by Mason's second-line supervisor, Farah, and provided as follows:

During the past several months, you have spent notable agency time and resources composing and e-mailing numerous and repetitive personal requests, complaints, and requests for information to a number of executives, senior managers, your manager, and me. In the case of your request for information, you have been advised to submit you [sic] concerns through the appropriate channels; specifically, the EEO Complaint process or the Agency Grievance process, and you have done so. I have been, and continue to be, available to discuss your concerns with you.

However, your use of the Agency e-mail system to demand that management answer your written interrogatories, to disparage and hector individual members of the Publishing Management Team, and your misuse of government time and equipment in the pursuit of such activities is inappropriate, disrupts the workplace and is unproductive. You are therefore directed as follows:

1. To immediately cease using work time, government equipment and government supplies to draft and distribute communications which disparage or hector members of the Publishing Leadership Team or other Agency employees;

2. To follow the established chain of command in seeking resolution of your personal concerns, beginning with your first-level supervisor;

3. To immediately cease sending "broadcast" communications to multiple management officials on personal matters and/or matters that should properly be initially presented to your first-line manager or pursued through available dispute resolution mechanisms, such as the EEO process or the Agency Grievance Procedure.

4. To utilize available dispute resolution mechanisms and pursue adjustment of workplace concerns which are not resolved to your satisfaction by management.

Mason Dep. Ex. 19 (Mem. Directive for Resolving Issues of Personal Concern dated Feb. 28, 2008) at 1. The memorandum then proceeds to outline the procedure for invoking the agency grievance system and EEO apparatus. Id. at 2. The memorandum concludes by warning Mason that his failure to abide by these instructions "may result in disciplinary action." Id.

Nonetheless, Mason continued to e-mail senior IRS officials with complaints, requests for information, and demands to address his workplace grievances.*fn47 Def.'s Stmt. ¶ 149. On October 6, 2008, Mason's second-line supervisor, Farah, issued a letter proposing Mason's suspension without pay for three days for (1) "fail[ing] to follow a directive from management,"

(2) "misus[ing] government equipment and government supplies," and (3) "misus[ing] work time." Mason Dep. Ex. 20 (Notice of Proposed Disciplinary Suspension dated Oct. 6, 2008) at 1-6. The letter identified (1) fourteen separate instances between May 9, 2008, and October 6, 2008, in which Mason allegedly sent e-mails raising "personal concerns" to higher management,

(2) thirteen separate instances in which he used government equipment to send communications "disparag[ing] or hector[ing] members of the Publishing Leadership Team or other Agency employees, and (3) two instances in which he "misused work time" to draft such communications. Id. On January 6, 2009, after reviewing Mason's e-mails and Farah's proposal, Mason's third-line supervisor, Becton-Johnson, approved the three-day suspension. Def.'s Stmt. ¶ 152; Pls.' Stmt. ¶ 152.

10. Mason's Resignation

On July 31, 2009, Mason's first-line supervisor, Dangel, met with Mason to apprise him of his unsatisfactory performance. Def.'s Stmt. ¶ 153; Pls.' Stmt. ¶ 153. For months, Dangel had orally notified Mason that he was not performing his duties in a timely or satisfactory manner. Def.'s Stmt. ¶ 153; Pls.' Stmt. ¶ 153. Dangel therefore requested that Mason meet with him to discuss how they could improve Mason's performance. Def.'s Stmt. ¶ 154; Pls.' Stmt. ¶ 154. During the meeting, Dangel furnished Mason with a memorandum detailing Mason's unsatisfactory performance, including Mason's unacceptable work product (and total lack of work product) with respect to several specific projects. Def.'s Stmt. ¶ 155; Pls.' Stmt. ¶ 155; Def.'s Ex. FF (Notice of Unsatisfactory Performance of Duty and Failure to Respond Readily to the Directions of Your Supervisor dated July 31, 2009) at 1-3. The memorandum identifies several instances of what was described as Mason's "uncooperative, unresponsive and unproductive" behavior. Def.'s Ex. FF (Notice of Unsatisfactory Performance of Duty and Failure to Respond Readily to the Directions of Your Supervisor dated July 31, 2009) at 2. The memorandum concludes as follows:

In summary, your work in [sic] incomplete, late, on [sic] not delivered at all. Some of your written documents have problems with grammar, spelling and organization.

Mr. Mason, I am more then [sic] willing to work with you but the primary responsibility for performing the duties of your position are [sic] yours.

Id. at 3. Mason's work on the enumerated tasks was incomplete, late, or altogether absent, and his work product was often sloppy and contained grammatical, spelling, and organizational errors.*fn48 Def.'s Stmt. ¶¶ 156-57.

In the middle of the meeting, shortly after Dangel gave Mason the memorandum, Mason handed Dangel a pre-prepared letter of resignation. Def.'s Stmt. ¶ 158; Pls.' Stmt. ¶ 158. In his letter of resignation, Mason wrote:

The reason for my resignation is that I can no longer endure your [i.e., Dangel's] inhumane treatment of me. I cannot fathom why, knowing that my "Sister" is struggling against terminal cancer, she resides in (Memphis, Tennessee) outside of the Washington, D.C. Metropolitan Area . . . and you will not approve leave for me to care for her. Your actions have placed me in a situation where I must choose between my family and my job as I must either neglect my moral duty to my "Sister" or face charges of insubordination and Absent Without Leave (AWOL) from you and those who are directing your actions. Because of this action and your generally abusive, oppressive and underhanded way of treating me, I can no longer bear working for the Internal Revenue Service (IRS) in the "Main" IRS National Headquarters Building . . . .

I deeply regret that I have been forced to leave my professional career job with over "22" years of Dedicated Service that was once a source of pride and pleasure to me, but you and your Superiors in the chain of command including up to the Commissioner of the Internal Revenue Service (IRS) have left me no choice.

Mason Dep. Ex. 1 (Ltr. from E. Mason to P. Dangel dated July 31, 2009) at 1 (emphasis and underlining in original). Despite the contents of Mason's letter, it is undisputed that Dangel never threatened Mason with an "AWOL charge" and no one ever placed Mason on "AWOL status." Def.'s Stmt. ¶ 160; Pls.' Stmt. ¶ 160. Furthermore, neither Dangel nor any of Mason's other supervisors had ever denied any of Mason's requests for leave without pay.*fn49 Def.'s Stmt. ¶ 161; Mason Dep. at 130-31. Dangel had personally "approved hundreds of hours of leave without pay so that Mr. Mason could care for his sister." Pls.' Stmt. ¶ 165. Indeed, Dangel had just recently approved Mason's request for leave without pay for the week of August 10, 2009, so that Mason could attend to his family in Memphis. Def.'s Stmt. ¶ 162; Pls.' Stmt. ¶ 162.

Mason complains that Dangel did not also immediately approve Mason's request for leave without pay for the week of August 17, 2009. Pls.' Stmt. ¶ 162. However, it is undisputed that Mason had been scheduled to attend a training session during that week, which prompted Dangel to ask Mason to provide him with a compelling reason why he could not attend the training. Def.'s Stmt. ¶ 163; Pls.' Stmt. ¶ 163; Dangel Dep. at 153. In an e-mail dated July 29, 2009, Dangel stated:

I am simply trying to discuss your leave request with you to determine whether I should approve it or not. You have been scheduled for the training the week of August 17-24, 2009. You should have known those dates since May 20, 2009. Your request for the week of August 17-24 will be denied ...


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