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Robert C. Taylor v. Karen G. Mills

September 24, 2012


The opinion of the court was delivered by: Judge Beryl A. Howell


The plaintiff Robert Taylor, who is an Area Director for Government Contracting for the Office of Government Contracting ("OGC") at the United States Small Business Administration ("SBA"), brings this action against his current employer Karen G. Mills, Administrator of the SBA, alleging a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The plaintiff claims that the SBA unlawfully retaliated against him for engaging in the legally protected activity of providing testimony in connection with an Equal Employment Office ("EEO") investigation of discrimination claims filed by two of the plaintiff's former SBA subordinates. See id. § 2000e-3(a). Specifically, the plaintiff alleges in his single count of retaliation that the SBA falsely lowered his 2008 performance evaluation, denied his requests to hire additional staff, denied his travel requests, denied his request to telecommute on a fixed schedule, and unjustifiably scrutinized and criticized his work performance. Compl. ¶¶ 16, 21-- 25, ECF No. 1. Pending before the Court is the defendant's Motion for Summary Judgment, and for the reasons set forth below, the Court grants that motion.



The plaintiff is the Area 5 Director for the OGC at the SBA. See Compl. ¶ 7; Def.'s Statement of Material Facts ("Def.'s SMF") ¶¶ 43--44, ECF No. 14-1.*fn1 The OGC is one of four offices that comprise the Office of Government Contracting and Business Development ("GCBD") within the SBA. Def.'s SMF ¶ 11; see also Def.'s Mot. Summ J. Ex. EE, ECF No. 14-7. In turn, the GCBD is one of twenty-six offices that make up the SBA Headquarters.*fn2

Within the OGC, a Director of Government Contracting and Deputy Director of Government Contracting supervise an Assistant Director for Contract Assistance. *fn3 See Def.'s SMF ¶ 13; Def.'s Mot. Summ. J. Ex. E at 1, ECF No. 14-3. The Assistant Director for Contract Assistance "directly supervises all six Area Directors in the [OGC]," and "[a]rea Directors supervise employees in offices located in different areas of the country throughout the states in their specific areas." Def.'s SMF ¶¶ 18, 112. In particular, Area 5 covers six states (Texas, Colorado, New Mexico, Oklahoma, Arkansas, and Louisiana), and the "duty station" for the Area 5 Director is located at SBA's Fort Worth, Texas District Office. Id. ¶¶ 38--39.

The plaintiff has been employed by the SBA since 1978. Id. ¶ 1. In September of 2006, the plaintiff was elevated to his first supervisory position-the Assistant Director for Contract Assistance, located in the SBA's headquarters in Washington, D.C. Id. ¶¶ 6, 9. Hierarchically, as discussed above, the Assistant Director for Contract Assistance reports to the Director and Deputy Director for Government Contracting and directly supervises all six Area Directors in the OGC. Id. ¶¶ 13, 18. In 2007, however, the plaintiff decided that he and his family wanted to move to Texas, and so he requested in January 2008 to take the position of Area 5 Director, which his supervisors approved. Id. ¶¶ 40--42. With the retirement of the plaintiff's predecessor on February 1, 2008, the plaintiff became the Acting Area 5 Director. On July 6, 2008, the plaintiff officially became the Area 5 Director, and in August 2008, the plaintiff relocated to Texas to assume his new position. See id. ¶¶ 40--45, 47.

1.Butler and McClam EEO Actions

In the fall of 2007, when the plaintiff was still the Assistant Director for Contract Assistance, he directly supervised two employees named Edith Butler and Pamela McClam. Id. ¶ 19; Pl.'s Mem. P. & A. in Opp'n Def.'s Mot. Summ. J. ("Pl.'s Opp'n") Ex. 2, at 4, ECF No. 17-8. According to the plaintiff, both women were "outstanding performers whose duties for several years included responsibilities above their GS grade-level." Pl.'s SMF at 2. As a result, the plaintiff attempted to get them promotions through a procedure called "accretion of duties." Def.'s SMF ¶ 20. As its name implies, the "accretion of duties" procedure involves an evaluation of an employee's current duties by the human resources department (called a "desk audit") to determine whether that employee should be able formally to add (i.e., accrete) further duties and be promoted to a higher pay grade in the process. See Pl.'s SMF at 2; Def.'s SMF ¶ 21. The SBA Office of Human Capital Management, however, informed the plaintiff that, to accomplish his goal, he should initiate two "recruitment actions" for GS-14 level positions and limit recruitment to only SBA employees. Def.'s SMF ¶ 21. These actions were both cancelled sometime in the spring of 2008, though the record is unclear exactly when that occurred. See Pl.'s Opp'n Exs. 1--2, ECF Nos. 17-8, 17-9.

In May and June of 2008, respectively, both Ms. McClam and Ms. Butler filed administrative EEO complaints against the SBA as a result of the canceled recruitment actions, claiming that they had been passed over for promotions based on their gender, age (over 40), and race (African American). See id. The plaintiff was interviewed by EEO counselors in connection with both complaints in May and June 2008 respectively, and he told the EEO that "someone (unknown) in the building, asked to have the announcements pulled," and that "Ms. Butler's promotion was halted due to a change in management in January of 2008." Id. Ex.1, at 7; id. Ex. 2, at 6. The plaintiff says that when he inquired at SBA Headquarters as to the status of the recruitment actions, he was told that the actions had been canceled by Fay Ott, *fn4 who at that time was the Associate Administrator for GCBD. See Taylor Dep. at 45:18--22, ECF 14-2.*fn5

In addition to the informal interviews, the plaintiff also filed sworn affidavits in connection with both EEO administrative complaints. The affidavit for Ms. McClam was filed on August 26, 2008, and the affidavit for Ms. Butler was filed on October 2, 2008 (collectively, the "2008 Affidavits"). Def.'s SMF ¶¶ 26--29. In the affidavit submitted on Ms. Butler's behalf, the plaintiff admitted that "I have no knowledge what [Ms. Ott's] motivations were," but he nevertheless speculated that "this was done because of Ms. Butler's race or color" because Ms. Ott is white and Ms. Butler is black.*fn6

See Def.'s Mot. Summ J. Ex. K at 2--3. The plaintiff did not implicate Karen Hontz, the Director of Government Contracting, in the cancellation of the recruitment actions or any wrongdoing in either affidavit, though he did list her as a potential "witness[]" in one of the affidavits. Id. Ex. J. at 4.*fn7 In fact, Ms. Hontz was not listed as a "Primary Responding Official" in either EEO complaint. Rather, in the 2008 Affidavits, the plaintiff stated, "[i]t is my understanding that [the recruitment action for Ms. McClam] was withdrawn by . . . Ms. Fay Ott," Def.'s Mot. Summ. J. Ex. J at 3, and that "[i]t was either Fay Ott or Jovita Carranza" who called back Ms. Butler's recruitment action, id. Ex. K at 2. The plaintiff alleged in his Complaint, however, that "[t]he senior officials at the SBA who are the target of the claims of discrimination against Ms. Butler and Ms. McClam are Karen Hontz and Calvin Jenkins." Compl. ¶ 15. In his deposition, he again identified Ms. Hontz as the target of the Butler and McClam discrimination claims, explaining that, "knowing how close [Ott and Hontz] are professionally," he was "very confident that Fay Ott and Karen Hontz [canceled the recruitment actions] together." Taylor Dep. at 59:16--18.

The plaintiff contends that the SBA-and specifically, Ms. Hontz-retaliated against him for filing these affidavits through a series of actions that he argues were "designed to destroy his SBA career" and "cripple his effectiveness as an Area Director." Pl.'s Opp'n at 10--11, ECF No.

17. In particular, he claims that Ms. Hontz (1) falsely lowered his 2008 performance evaluation,

(2) denied his requests to hire additional staff, (3) denied his requests to travel within his region,

(4) denied his request to telecommute on a fixed schedule, and (5) subjected him to unjustified monitoring and criticism of his performance. Id.

2.Performance Evaluation

SBA employees are rated each year by one supervisor (the "rating official") on a scale from one to five on a series of "Critical Elements," such as "customer service," "leadership," and "people management and responsibilities," and the evaluation is then reviewed and approved by a second supervisor (the "reviewing official"). See Pl.'s Opp'n Ex. FF at 3--4 (listing "Critical Elements"); SBA Standard Operating Procedure 34 30 4 ("SOP 34 30 4") (effective May 15, 2000) at 16--18, available at (describing review procedures). These "Critical Elements" are averaged for each employee, and that numerical score corresponds with a "summary level" rating. The summary levels are as follows: "Unacceptable" (less than 2.0), "Minimally Successful" (2.0 to 2.99), "Fully Successful" (3.0 to 3.59), "Exceeds Fully Successful" (3.6 to 4.59), and "Outstanding" (4.6 to 5.0). *fn8 SOP 34 30 4, at 17. More specifically, while an "Exceeds Fully Successful" rating is "[v]ery good performance which deserves special recognition," an "Outstanding" rating is "[p]erformance of excellent quality that is exceptional and usually deserving of a performance award." Id.

Performance awards at the SBA are of three varieties: (1) Quality Step Increase ("QSI");

(2) Sustained Superior Performance ("SSP"); and (3) Superior Accomplishment ("SA"). Id. at 22. A QSI is an increase in an employee's pay by "one step or rate" of the employee's GS pay grade.*fn9 To receive a QSI, an employee must (a) be "paid at less than the maximum step of [his] grade," (b) receive an "Outstanding" rating, (c) be recommended by his rating official; and (d) be approved by an appropriate "approving official," which for a QSI is either a Management Board Member or a District Director. Id. at 22--23, 44. An SSP and an SA are both "one-time lump sum cash payments." Id. at 22. An SA requires at least a "Fully Successful" rating, and an SSP requires at least an "Exceeds Fully Successful" rating. Id.

The plaintiff received an "Outstanding" rating in four of the six years prior to filing his Complaint (2005--2007 and 2009) and an "Exceeds Fully Successful" rating in the other two years (2008 and 2010). See Def.'s Mot. Summ. J. Ex. EE at 1. From 2008 to 2010, the plaintiff received an SSP Performance Award each year, ranging from $1,200 to $2,500 per year. Id. at 11, 18; id. Ex. FF at 1.*fn10 In 2008, the plaintiff initially received an "Outstanding" rating from his rating official, Linda Korbol, but the plaintiff's reviewing official, Ms. Hontz, lowered the plaintiff's rating to an "Exceeds Fully Successful." See Def.'s SMF ¶¶ 168--70; Def.'s Mot. Summ J. Ex. C at 30:20--31:21; id. Ex. FF at 1. Ms. Hontz lowered three of the plaintiff's "Critical Elements" from fives to either threes or fours. In the comments attached to her evaluation, Ms. Hontz stated, under the "Critical Element" of "People management responsibilities," that the plaintiff's "actions with employees led to EEO complaints filed against upper management"; he "did not approve telecommuting in line with regulations"; some of his employees "did not have proper personal business commitment plans"; and his "ratings for employees did not have sufficient justification." Def.'s Mot. Summ J. Ex. FF at 2.

The plaintiff was not the only SBA employee whose 2008 performance rating was decreased upon review by Ms. Hontz. In 2008, Ms. Korbol gave all employees whom she rated an "Outstanding" rating, and Ms. Hontz, as the reviewing official, decreased at least four of those employees' ratings, including the plaintiff's. See Def.'s SMF ¶¶ 169, 171. Although the plaintiff appealed to Ms. Hontz to reinstate his "Outstanding" rating and later submitted a "Statement of Dispute" to Calvin Jenkins-the Deputy Associate Administrator for the GCBD and Ms. Hontz's direct supervisor-asking that Mr. Jenkins reinstate his "Outstanding" rating, both Ms. Hontz and Mr. Jenkins denied the plaintiff's requests. See Def. Mot. Summ. J. Ex. HH at 2--3, ECF No. 14-8.

On December 19, 2008, the plaintiff appealed Mr. Jenkins's denial of his "Statement of Dispute" to the SBA's Office of Hearings and Appeals ("OHA"). See id. The presiding adjudicator of that appeal, Administrative Judge Holleman, concluded on March 20, 2009, that the SBA had "met its burden of supporting [the plaintiff's] performance rating with substantial evidence" and found that the plaintiff had failed to demonstrate that he had performed any activities that "would justify a Level 5 rating." Id. at 6. Administrative Judge Holleman also specifically addressed Ms. Hontz's comment in her evaluation about the plaintiff's "actions with employees le[ading] to EEO complaints [being] filed." He stated that "the Agency should not have held against [the plaintiff] the filing of EEO complaints by two unidentified employees" because "the mere fact that an employee has exercised his or her right to file a complaint . . . cannot be grounds for criticizing the supervisor or for giving that supervisor a lower evaluation than he or she would have otherwise received." Id. Nevertheless, Administrative Judge Holleman denied the plaintiff's appeal.*fn11

3.Hiring Requests

The SBA, like many government agencies, has experienced a steady decline in its staff sizes over the past ten to twenty years due to budget constraints. Def.'s SMF ¶ 69. Between 2003 and 2008 in particular, the number of employees working in the Area 5 Office decreased, leaving Area 5 with the smallest staff of all the Areas. Id. ¶ 71, 74. By February 2008, when the plaintiff first became acting Area 5 Director, there were only twelve employees in the Area 5 office, id. ¶ 73, and only one employee in the plaintiff's immediate office, Pl.'s SMF at 14.

Because of the staffing shortfalls in Area 5, the plaintiff was "vocal about his desire to hire more staff," and in February 2009 he emailed his supervisors (David Loines and Charles George),*fn12 requesting to hire additional staff, i.e., a Deputy Area Director, a Program Assistant, an Industrial Specialist, a Size Specialist, and an administrative assistant. Def.'s SMF ¶¶ 78, 85, 102. Indeed, all of the Area Directors submitted staffing requests that were not filled due mainly to budget constraints. Id. ¶¶ 86--92. Ultimately, the plaintiff was authorized to hire at least five individuals for his Area since becoming Area 5 Director, including four Procurement Center Representatives ("PCRs"), and one Commercial Marketing Representative ("CMR"). Id. ¶ 107; see also Def.'s Mot. Summ. J. Ex. W.

The plaintiff also requested a desk audit for Stephanie Lewis, a CMR in the Area 5 office, so that she could obtain an accretion of duties promotion to Deputy Area Director. Def.'s SMF ¶ 140. The plaintiff's predecessor as Area Director had also tried to obtain the same promotion for Ms. Lewis, but his "requests were never acted upon by headquarters." Id. ¶ 139. Ms. Hontz denied the plaintiff's request in January 2009, see Taylor Dep. at 180:19--181:4, and according to the defendant the denial was due to budget constraints and a diminishing need for supervisory positions because staffing levels had decreased. Id. ¶¶ 131--33. The plaintiff contends, however, that funds were available for ...

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