United States District Court, District of Columbia
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For ANITA BYRD, Plaintiff: Ellen K. Renaud, SWICK & SHAPIRO, P.C., Washington, DC.
For THOMAS JAMES VILSACK, Secretary, Defendant: Javier M. Guzman, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
ROBERT L. WILKINS, United States District Judge.
Plaintiff Anita Byrd (" Byrd" ) works as an Information Technology Specialist in the United States Department of Agriculture's Natural Resources Conservation Service (" NRCS" ). She brings this action against Tom Vilsack, in his official capacity as Secretary of Agriculture, alleging that she was discriminated against on account of her race (African American) and retaliated against, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e, et seq. This matter is presently before the Court on the Department's Motion for Summary Judgment. (Dkt. No. 29).  Upon careful consideration of the parties' briefing and the entire record in this case, the Court concludes that the Department's Motion will be GRANTED IN PART and DENIED IN PART for the reasons set forth herein.
For the most part, the facts underlying Byrd's claims are undisputed. Where disputes
exist, the Court sets forth the parties' respective positions, but generally credits Byrd's evidence and draws all reasonable inferences in her favor.
Byrd has worked as an Information Technology Specialist in the Information Technology (" IT" ) Division of NRCS since 1999. (Dkt. No. 37 (" Joint Facts" ) at ¶ 1).  On July 16, 2007, NRCS posted a vacancy announcement for the position of Branch Chief of the IT Division's Policy and Planning Branch, based out of Beltsville, Maryland. ( Id. ¶ 2). Jack Carlson, NRCS Chief Information Officer, was the recommending official for the position, and his immediate supervisor, Katherine Gugulis, NRCS Deputy Chief for Management, was the selecting official. ( Id. ¶ 4). After receiving and reviewing applications, the NRCS Human Resources staff identified six applicants, including Byrd, as among the best qualified, and referred them to Mr. Carlson for consideration. ( Id. ¶ 5). At the time Byrd applied for the Branch Chief position, she had filed a formal EEO complaint that had been pending for more than a year. ( Id. ). 
To fill the position, Mr. Carlson convened a four-member panel to interview each of the applicants, comprised of himself and three other management-level IT professionals within USDA. ( Id. ¶ 6).  He also arranged for at least one representative from the NRCS Civil Rights Division to observe each of the interviews to ensure they were fairly conducted. ( Id. ¶ 7). Prior to the interviews, Mr. Carlson provided the panelists with a copy of the Branch Chief job description and the applications submitted by the six candidates, but he did not share his initial impressions of the applications with anyone else, nor did he mention Byrd's EEO activity to any of the other panelists. ( Id. ¶ 8). Five of the applicants, including Byrd, were interviewed on September 14, 2007, and the sixth applicant was interviewed on September 24, 2007. ( Id. ¶ 10). At the conclusion of each interview, all of the panelists except Mr. Carlson independently scored the candidates' responses to each question on a five-point scale, with a " 5" being the highest possible score. ( Id. ¶ 8). Following the interviews, the panelists provided their score sheets to Mr. Carlson to be tallied. ( Id. ¶ 11). According to Mr. Carlson's summary score sheet, Michelle Wockenfuss--a then-Supervisory IT Specialist with the Food and Drug Administration-- received the highest overall score with 142 points (out of 180), while Byrd received the lowest overall score with 113.5 points. ( Id. ¶ 12). Notably, Byrd disputes the validity of these scores, complaining that the Department never produced the individual panelists' score sheets, only Mr. Carlson's summary score sheets, which
Byrd implies (but never expressly argues) may have been doctored by Mr. Carlson.
At this point, the parties' versions of events diverge. According to the Department, Mr. Carlson briefed Ms. Gugulis following the interviews, and he informed her that two individuals--Ms. Wockenfuss and another candidate--were the panel's top-rated applicants by a significant margin. (Dkt. No. 49-2, Ex. 2, Carlson Decl. at ¶ 11, Gugulis Decl. at ¶ ¶ 4-5). In turn, Mr. Carlson recommended Ms. Wockenfuss for the position, and USDA asserts that Ms. Gugulis concurred with his recommendation and selected Ms. Wockenfuss as the Branch Chief. (Carlson Decl. at ¶ 11, Gugulis Decl. at ¶ 6). Thereafter, it is undisputed that the NRCS Human Resources Division contacted Ms. Wockenfuss on October 1, 2007, to offer her the position, which she accepted. (Joint Facts at ¶ 17). It is also undisputed that Mr. Carlson notified the IT Division staff of Ms. Wockenfuss's promotion on October 4, 2007. ( Id. ). With respect to the days leading up to Ms. Wockenfuss's announcement, however, Byrd paints a very different picture. She asserts that before announcing the selection of Ms. Wockenfuss, Mr. Carlson had personally informed Byrd on September 24, 2007, that he and Ms. Gugulis had determined that Byrd would be promoted to the position. (Dkt. No. 32-1 (" Byrd Dep." ) at 131, 133-34). But thereafter, in the wake of Byrd's complaint about a coworker's alleged racial comment on or around September 28, 2007, Byrd contends that Mr. Carlson reversed his decision as a means of retaliation, and recommended and/or selected Ms. Wockenfuss instead. ( Id. ).
With respect to this alleged racial comment, Mr. Carlson held a meeting of the Beltsville-based IT Department staff on September 26, 2007, and several individuals, including Mr. Carlson and Byrd, participated by telephone. (Joint Facts at ¶ 19). After Byrd dialed into the conference line, she heard Elizabeth Pigg (Caucasian) and another coworker come onto the line and begin speaking to each other; Ms. Pigg was unaware that Byrd was on the line. ( Id. ¶ 20). According to Byrd, Ms. Pigg brought up the Branch Chief vacancy and asked whether anyone knew who the new " HNIC" would be. (Byrd Dep. at 96). " HNIC" is an abbreviation for " head nigger in charge." ( Id. ). Later in the meeting, Byrd confronted Ms. Pigg and said that she heard her use the term " HNIC" at the beginning of the call. (Joint Facts at ¶ 21). Ms. Pigg became upset and denied using the term, insisting that Byrd must have misheard her, and that she used the term " HMFIC," which apparently stands for " head motherfucker in charge." ( Id. ). Ms. Pigg ultimately walked out of the meeting and slammed the door behind her, ( id. ), at which time Byrd alleges that Ms. Pigg shouted at Byrd, " you frequent filer, you." (Byrd Dep. at 123). The meeting adjourned shortly thereafter. (Joint Facts at ¶ 22). Later that day, Mr. Carlson notified Byrd that the incident would be investigated and that appropriate action would be taken if Ms. Pigg were found to have used a racially offensive term. ( Id. ¶ 23).
Two days later, on September 28, 2007, Byrd emailed Mr. Carlson and indicated that she was feeling considerable stress and anxiety as a result of her exchange with Ms. Pigg. ( Id. ¶ 25). Mr. Carlson told Byrd that she could work from home that day, and that she could work from NRCS headquarters the following week until the investigation was completed. ( Id. ). The same day, Mr. Carlson contacted an EEO Specialist, Renzlo Page, and asked Mr. Page to take over the investigation into Byrd's allegations. ( Id. ¶ 26). Mr. Page interviewed the participants at the meeting, including Byrd and Ms. Pigg, but none
of the other participants--including both African-American and Caucasian employees--corroborated Byrd's contention that Ms. Pigg used the term " HNIC." ( Id. ). On the other hand, two participants did corroborate Ms. Pigg's version of events, stating that they heard her use the term " HMFIC." ( Id. ). Ultimately, based on the results of the investigation, Mr. Carlson issued a written reprimand to Ms. Pigg for using vulgar language in the workplace and for leaving the staff meeting in an unprofessional manner. ( Id. ¶ 29). Mr. Carlson also issued a letter of counseling to Byrd, explaining that, although her distress in mishearing Ms. Pigg's remarks was understandable, Byrd had mishandled the situation by confronting Ms. Pigg in a group setting, rather than privately raising the issue with a supervisor. ( Id. ¶ 30). Byrd's counseling letter carried no disciplinary consequences. ( Id. ).
About one month later, on October 30, 2007, Byrd contacted Mr. Carlson to lodge a complaint of sexual harassment against a male coworker, Mr. Lytle, who she accused of engaging in inappropriate behavior toward her. ( Id. ¶ 32).  The following day, Byrd emailed Mr. Carlson late in the afternoon, requesting to " immediately work from home," " due to the current work environment." ( Id. ¶ 38). After consulting with Employee Relations, Mr. Carlson determined that Byrd's request did not satisfy NRCS's telework policy, and he notified Byrd that she should report to the office the next day, as regularly scheduled. ( Id. ¶ 39). Under NRCS policy, telework requests " may be granted" only in two situations: (1) " as a reasonable accommodation when necessitated due to a medical condition," and " [r]equests of this nature for telework will be referred to the NRCS [Disability Emphasis Program Manager] for determination of reasonable accommodation" ; and (2) " for emergency situations," which " is expected to be an occasional occurrence." ( Id. ¶ ¶ 40-41). Byrd disputes Mr. Carlson's determination and maintains that her request should have been granted as an " emergency situation," given her recent harassment complaint against Mr. Lytle.
In any event, Byrd did not physically report to work the following morning. At about 8:30 a.m., Ms. Wockenfuss emailed Byrd, reminding that her telework request was not granted and that she needed to report to the office or be charged as " absent without leave" (" AWOL" ). ( Id. ). Byrd did not report to the office until 2:15 p.m. (as opposed to her normal start time of 7:30 a.m.), and, as a result, Ms. Wockenfuss charged Byrd with 7.75 hours of AWOL, after consulting with Employee Relations. ( Id. ). For her part, Byrd maintains that she did not learn her telework request had been denied until she checked her email account on the afternoon of November 1st, and she immediately reported to the office. (Byrd Dep. at 181-182). 
Around this time, Byrd began having communication issues with her newly-appointed supervisor, Ms. Wockenfuss. First, on November 8, 2007, Byrd wrote to Ms. Gugulis requesting " immediate reassignment" to another position, due to what she believed was " hostile and confrontation [sic] behavior" by managers and coworkers; Byrd also copied the NRCS Chief and Associate Chief on her message. (Joint Facts at ¶ 48). On that same day, Ms. Wockenfuss met with Byrd to discuss her concerns, but Byrd was apparently " argumentative [and] generally refused to tell [Wockenfuss] about her work," simply telling Ms. Wockenfuss to " ask Jack [Carlson] again and again." ( Id. ). Thereafter, Ms. Gugulis denied Byrd's reassignment request in light of Byrd's pending request for telework as a reasonable accommodation (which was subsequently denied) and a pending EEO complaint, and explaining that it was " reasonable to allow the applicable administrative systems . . . to process your concerns as you have requested." ( Id. ¶ 49). Ms. Gugulis also instructed Byrd to " adhere to the prescribed chain of command and communicate [her] concerns to [her] first-level supervisor" or to " follow the administrative procedures established by NRCS (e.g., EEO complaint process, administrative grievance, etc.)." (Dkt. No. 29-3, Ex. 24).
Several weeks later, Ms. Wockenfuss emailed Byrd regarding the status of an assignment on November 21, 2007. (Joint Facts at ¶ 50). Byrd responded by accusing Ms. Wockenfuss of " obvious micro-management" and " stealthy psychotic tactics," and Byrd copied senior NCRS management on her message, as well as staff in Secretary Vilsack's office. ( Id. ). Ms. Wockenfuss informed Byrd that she expected Byrd to " provide [her] with any requested information in a professional and respectful manner," and she reiterated Ms. Gugulis's instruction to limit workplace concerns to Ms. Wockenfuss, not senior management. ( Id. ¶ 51). Subsequently, on January 25, 2008, Ms. Wockenfuss issued a supervisory notice to Byrd for failing to meet several deadlines. ( Id. ¶ 53). In response, Byrd sent a letter to Ms. Wockenfuss accusing her of " abuse of authority" and questioning her " reliability and sustainability to supervise since you exhibit such blatant disregard for agency rules and regulations." ( Id. ¶ 54). Byrd copied Ms. Gugulis and a former NRCS Chief Information Officer on this message. ( Id. ). Based on Byrd's disregard for the directive to cease including senior management on her communications, Ms. Wockenfuss consulted with an Employee Relations Specialist and issued Byrd a reprimand, which advised Byrd that future misconduct " may lead to more severe disciplinary action." ( Id. ¶ 55).
On March 1, 2008, Byrd again wrote to Ms. Gugulis requesting reassignment from Ms. Wockenfuss's supervision, and Byrd again copied the NRCS Chief and Associate Chief on her message. ( Id. ¶ 56). In the following weeks, Byrd continued to copy senior NRCS managers and other IT Division coworkers on several additional email messages sent to Ms. Wockenfuss. ( Id. ¶ 57). In late March 2008, Ms. Wockenfuss considered suspending Byrd for her conduct, but Mr. Carlson decided to delay that response for " 3-4 weeks to see if the situation improves." ( Id. ). Between April 3 and 10, 2008, however, Byrd sent several additional emails to Ms. Wockenfuss on which she copied NCRS management and IT Division coworkers. ( Id. ¶ 59). Among other remarks in these messages, Byrd accused Ms. Wockenfuss of playing " psychological games." (Dkt. No. 29-4, Ex. 34). Ultimately, on April 28, 2008, Ms. Wockenfuss issued Byrd a notice of proposed suspension without pay, based on Byrd's " [f]ailure to [f]ollow [i]nstructions."
( Id. ¶ 60). Byrd subsequently submitted an oral and written challenge to Wendell Oaks, then-Acting Chief Information Officer, who would decide whether to uphold the suspension, but Mr. Oaks ultimately concurred and upheld ...