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Beshir v. Jewell

United States District Court, District Circuit

August 16, 2013




Plaintiff Shirlean Beshir brings this action against the Secretary of the Interior, alleging discrimination on the basis of her race, sex, and age, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. In her complaint, she contends that she experienced disparate treatment based on her race and sex in violation of Title VII (Count I); that she was subjected to a hostile work environment based on her race and sex in violation of Title VII (Count II); and that she experienced disparate treatment based on her age in violation of the ADEA (Count III). Pending before the Court is Defendant's motion for summary judgment [ECF No. 15]. Upon consideration of the motion and associated submissions from the parties, the information provided at a hearing on June 11, 2013, the entire record, the applicable law, and for the reasons that follow, Defendant's motion is GRANTED.


The following facts are undisputed, unless otherwise noted.

Shirlean Beshir ("Beshir" or "Plaintiff") is an African-American woman who was fifty-one years of age during the summer and fall of 2007, the relevant period of the alleged discrimination. (Defendant's Statement of Material Facts Not in Dispute ("Def.'s SMF") ¶¶ 2.) From 1997 through 2008, Beshir worked at the Bureau of Land Management ("BLM"), a bureau of the Department of the Interior ("DOI"), in the Division of Regulatory Affairs. (Id. at ¶¶ 1-2.) During the relevant period, Beshir was performing at the GS-13 level. (Id. ¶¶ 5-6.)

In 2007, Beshir was the Division's Information Collection Clearance Officer, and as such, was responsible for preparing BLM's information collection clearance packages. (Id. ¶ 10.) Under the terms of the Paperwork Reduction Act of 1995 ("PRA"), 44 U.S.C. § 3501 et seq., federal agencies such as BLM are required to submit information collection clearance packages to the Office of Management and Budget ("OMB"), to provide, among other things, an estimate of the burden that certain information collection activities impose on the public and the federal government. (Def.'s SMF ¶ 8.) Personnel at BLM formulated burden estimates using guidance provided by a responsible counterpart, or "desk officer, " at OMB. (See generally id. ¶¶ 12-13, 19, 39.) Through most of 2007, Ruth Solomon was the OMB desk officer with whom Beshir worked to prepare burden estimates for information collection clearance packages. (Def.'s SMF ¶ 12.)[2]

As Information Collection Clearance Officer, Beshir did not have the authority to submit these packages to OMB directly; rather, she was required to submit them to her supervisor, Ted Hudson, who submitted them to Don Bieniewicz, BLM's Information Collection Coordinator, for his review and approval. (Id. ¶¶ 3, 11.) Hudson and Bieniewicz are middle-aged Caucasian males. (Id. ¶¶ 3, 11).[3] Beshir alleges that she "heard management, including Hudson, express on several occasions that they felt the PRA was a crock' and that they didn't have to comply with it." (Compl. ¶ 7.) Nevertheless, Hudson reviewed the packages that Beshir prepared and Bieniewicz was then responsible for submitting the information collection clearance packages to OMB. (Def.'s SMF ¶ 11.)

The Information Collection Clearance Packages Dispute

In anticipation of an August 28, 2007, deadline for submission to OMB, Beshir drafted information collection clearance packages regarding the estimated burden of BLM's wild horses and burros adoption program. (Id. ¶ 15.) To calculate the burden of this program, Beshir estimated, among other things, the cost (in terms of both dollars and personnel hours) associated with completing and processing BLM's "Application for Adoption of Wild Horse or Burro." (Id. ¶¶ 8-9.) Beshir alleges that, in preparing the estimates, she was mindful of OMB desk officer Solomon's recent admonishments regarding the Agency's prior non-compliance with the PRA. (Id. ¶ 19.) Specifically, Beshir alleges that Solomon had informed her that the Agency "had been greatly underestimating the burden hours and costs in its PRA submissions" and that Solomon had instructed her to "use more realistic figures" and "not send [her] crap anymore.'" (Pl.'s Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Mem.") at 3.)

Beshir prepared the wild horse and burro PRA estimate packages and submitted them to Hudson several months in advance of the deadline. (Compl. ¶ 9; Def.'s SMF ¶ 15.) Hudson, in turn, submitted the information packages to Bieniewicz, but Bieniewicz was unable to review them until mid-August due to absences from work related to his wife's illness. (Def.'s SMF ¶ 16.) On August 17, 2007, after Bieniewicz reviewed the information packages, Bieniewicz and Beshir had an "angry conversation" about Beshir's calculations in the packages, which Bieniewicz thought were "outlandish[ly] high." (Id. ¶¶ 18, 20.) Beshir asserted her belief that the guidance Solomon provided mandated the seemingly high burden estimates. (Id. ¶ 19.) In an attempt to "mediate" between Beshir and Bieniewicz, Hudson scheduled a meeting for August 27, 2007, to discuss the burden calculations. (Id. ¶¶ 21-22.) Beshir was unable to attend this meeting due to previously scheduled leave and asked that the meeting be rescheduled. (Id. ¶¶ 21-23.) However, the meeting went forward without Beshir because Bieniewicz was otherwise unavailable due to his wife's illness. (Id. ¶¶ 23-24.) Beshir alleges that she "requested that Hudson not make the changes because the revised numbers were incorrect and contrary to OMB guidance, and that she would address the packages the following day, August 28, 2007." (Compl. ¶ 12.)

At the August 27, 2007, meeting, Hudson, Bieniewicz, and a member of BLM's wild horse and burro staff "discussed and analyzed the proper burden estimates" for the program, and Hudson made changes to the information packages in accordance with his understanding of these discussions. (Def.'s SMF ¶¶ 24-25.) Hudson left drafts of the modified information packages on Beshir's chair, along with instructions to make his changes and submit them to the Federal Register, as edited, the next day. (Id. ¶ 26.)

When Beshir arrived to work the next day, she was "upset" by the changes in her drafts. (Id. ¶ 28.) Beshir alleges that the "packages were not in the correct format and the numbers were all incorrect, and certain changes would render the documents incompatible with OMB computer software." (Compl. ¶ 13.) Beshir confronted Hudson and told him that the changes were "incorrect." (Def.'s SMF ¶ 29.) Beshir alleges that after she told Hudson about the problems, "Hudson began yelling at Beshir, saying that the Department had made a decision and that the packages had to be submitted promptly." (Compl. ¶ 13.) Hudson and Beshir proceeded to have a heated conversation about Hudson's proposed changes, which concluded with Hudson threatening Beshir with insubordination if she did not follow his instructions. (Def.'s SMF ¶¶ 29, 33, 34.) In response, Beshir stated, "you do what you have to do and I will do what I have to do." (Id. ¶ 33.)

Later that day, Beshir met with one of Hudson's supervisors, Bob Johns, to discuss the issue, telling Johns that, as a result of Hudson's revisions, the information packages were formatted incorrectly and the burden and cost estimates were too low. (Id. ¶¶ 35-36.) Beshir also expressed to Johns her concern that submitting the edited information packages would land BLM "in trouble" with OMB. (Id.) After discussing the issue with Hudson, Johns instructed Beshir to follow Hudson's instructions because he was her supervisor. (Id. ¶ 37.) In light of the continuing dispute about the burden estimates, BLM received a 30-day extension from OMB to submit the information packages. (Id. ¶ 38.)

On September 4, 2007, Hudson sent an email to Beshir and others at BLM, to inform them that the "new desk officer at OMB, Rob Johansson, has agreed to meet with us [on September 11, 2007]... to discuss information collection issues and to help us get on the same page in understanding what OMB wants from us." (Def.'s Mot. Summ. J, Ex. 5) Prior to the meeting with Johansson, on September 5, 2007, Beshir met with Johns and Celia Boddington, another one of Hudson's supervisors, to discuss information collection issues. (Def.'s Mot. Summ. J., Ex. 6.) After this meeting, Beshir described her understanding of the guidelines in an email to Johns and Boddington:

I was directed and given OMB guidelines on how the BLM should calculate the burden hour cost from the previous Interior Desk Officer, Ruth Solomon. We developed the following: Use as a minimum an estimated per hour cost rate of $75 for the public and $75 for the Federal Government. Once I meet with the various Division Managers responsible for the information collection that $75 rate could increase, however, it will never be less than $75 per hour once we incorporate all the factors needed to collect the information.


On September 11, 2007, Johansson met with Beshir, Hudson, Boddington, and others at BLM, to discuss criteria for burden information collection. (Def.'s SMF ¶ 42.) The parties dispute what occurred during the meeting. According to Beshir, Johansson asserted that he "could not provide any guidance on a specific package until he had it on his desk, " and that Beshir should "continue to follow Solomon's instructions" until she received specific instructions from him. (Plaintiff's Response to Defendant's Statement of Material Facts Not in Dispute ("Pl.'s SMF") ¶ 42.) In Defendant's view, Johansson addressed questions about burden calculations and demonstrated how to calculate burden estimates, using a template from the Department of Agriculture. (Def.'s SMF ¶ 42.) In an email sent to Johansson on September 12, 2007, Hudson "compile[d] the results of that meeting as a new set of guidelines on calculating burden hours and costs" into a document entitled "Summation of Meeting with OMB Regarding Information Collection Procedures, September 11, 2007, " and asked Johansson to review the document "to make sure [Hudson] ha[d] everything correct." (Def.'s Mot. Summ. J., Ex. 7.) On September 13, 2007, Johansson replied to Hudson with edits to Hudson's document. (Def.'s Mot. Summ. J, Ex. 8A.)

On September 20, 2007, Hudson sent the edited guidelines to Beshir in an email with the subject line, "Direct order on information collections...." (Def.'s Mot. Summ. J., Ex. 9.) Hudson wrote:

I am directing you to enter new numbers in the supporting statements and in ROCIS for the subject three information collections up for review. These numbers must be compiled and calculated according to the guidelines provided by OMB and attached hereto.
Please understand that your failure to comply with this direct order could result in formal disciplinary action.
Management has gone to great lengths over the past month to reach an understanding with the Department and with OMB as to what is required, and to acquaint you with what we must do to get these clearance packages to OMB for approval, including arranging meetings with OMB, the Department, and the experts on the issue from other Bureaus within the Department. It is now time to get the work done with no further delay.


Beshir did not make the changes, as ordered. (Def.'s SMF ¶ 50.) As she later explained in a response to an interrogatory relating to her complaint before the Equal Employment Opportunity Commission, she viewed Hudson's directive as "an illegal order to enter information I believed was incorrect because it did not follow the guidance/instructions of the OMB Interior Desk Officer, Ruth Solomon." (Def.'s Mot. Summ. J., Ex. 10, "Beshir Response to Interrogatories, " at 4-5.) Beshir continued:

Also, I did not make changes to the information collection documents because several of the requested changes would not work in the ROCIS computer system.... I honestly believed that Mr. Hudson's changes would result in BLM failing to comply with the PRA. I will not perform shoddy work that I know to be incorrect simply because my supervisor tells me to. I would hope that BLM does not want drones that never question orders no matter how illegal or impossible to implement. I took pride in my work and have always performed at a high level as demonstrated by the advancements and commendations over the years at the BLM.... Given the packages had always cleared OMB when I followed the guidance/instructions provided, that is why I hope you understand why I would not enter ...

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