United States District Court, District of Columbia
SHIRLEY M. MILES, Plaintiff,
JOHN F. KERRY, in his official capacity as Secretary of State, Defendant
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For SHIRLEY M. MILES, Plaintiff: Robert C. Seldon, LEAD ATTORNEY, Molly E. Buie, ROBERT C. SELDON & ASSOCIATES, P.C., Washington, DC.
ELLEN SEGAL HUVELLE, United States District Judge.
Plaintiff Shirley M. Miles is an African-American female who was formerly the head of an entity known as " Internal Review and Operations Research" (" IROR" ) in the Department of State's Bureau of Overseas Buildings Operations (" OBO" ). She brings this action against John F. Kerry, in his official capacity as Secretary of State (" Defendant" ), alleging race discrimination, sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. (Second Amended Compl. ¶ ¶ 37-59, Aug. 7, 2012 (" 2d Am. Compl." ).) Defendant has filed a motion for summary judgment. (Def.'s Mot. for Summ. J., Oct. 16, 2012 (" Def.'s Mot." ).) For the reasons stated herein, defendant's motion will be granted in part and denied in part. 
OBO is the State Department bureau responsible for building and maintaining
facilities overseas for the conduct of U.S. diplomacy, including embassies and consulates, office buildings and residences. (Def.'s Facts ¶ ¶ 1, 4.) OBO first hired plaintiff in September 2002 as a " nonsupervisory management analyst" in its " Management Support Division" (" MSD" ). ( Id. ¶ 4.) In January 2003, then-OBO Director, General Charles Williams, selected plaintiff to head IROR, an entity he had created in 2001 to conduct internal reviews that would provide him with " independent assessments of programs, operations and personnel matters." ( Id. ¶ ¶ 2, 5 (internal quotations omitted).) External reviews of OBO were carried out by the State Department's Office of Inspector General (" State OIG" ) and the Government Accountability Office (" GAO" ). ( Id. ¶ 3.) For the duration of Williams' tenure as OBO Director, plaintiff reported directly to him, as did the heads of two " divisions," the " Information Resource Management Division" (" IRM" ) and the " Management Support Division" (" MSD" ). ( Id. ¶ 5.)
Plaintiff was initially the only person assigned to IROR, but she was given the authority to hire staff, which she did. (Def.'s Facts ¶ 4; Pl.'s Facts ¶ 4.) During this period plaintiff's " job title" and " position description" changed twice. First, upon her move to IROR, her job title changed to " program analyst," and she was assigned a new position description. (Def.'s Facts ¶ ¶ 5, 6; Pl.'s Facts ¶ 3.) Then, in July 2006, her job title changed to " supervisory program analyst," and her position description was revised. (Def.'s Facts ¶ 7.) Despite differences among her various job titles and position descriptions, each position plaintiff held was classified as GS-14, with no promotion potential. ( Id. ¶ ¶ 4-7.)
The events that precipitated the current litigation began in January 2008, when Richard Shinnick replaced Williams as OBO Director and State OIG initiated its first inspection of OBO in 15 years. ( Id. ¶ 8.) State OIG " conducts periodic inspections of State bureaus to determine whether they are achieving departmental policy objectives, efficiently managing resources, and implementing adequate controls to guard against waste, fraud or abuse." ( Id. ) The OIG's final report, which was released in August 2008, identified several problems with OBO's " unorthodox and overly complex" organizational structure, noting the fact that two divisions (MSD and IRM) reported directly to the OBO Director instead of to an " executive director" or " principal deputy assistant secretary." (Def. Ex. 3, at 5 (" OIG Report" ) ; Def.'s Facts ¶ ¶ 9-10.) The OIG Report also found fault with the Williams's management style, the " secretive" nature of IROR's work, and " inaccuracies" in IROR's work product, and recommended that OBO " develop a mission statement and formal operating procedures for the conduct of [IROR's] activities" and " provide [IROR] office personnel with the requisite training to perform its oversight function."  (OIG Report at 6-7; Def.'s Facts ¶ ¶ 11-13.)
After receiving the 2008 OIG Report, OBO Director Shinnick made several changes that affected IROR and plaintiff.
(Def.'s Facts ¶ ¶ 17-21.) First, Shinnick decided that IROR would no longer report directly to him. ( Id. ¶ 20.) He consulted with the head of the Resource Management Division (" RM" ), Jorg Hochuli asking him where he thought IROR should be moved. ( Id. ; Def.'s Ex. 12.) Hochuli recommended that IROR be moved into RM,  explaining his reasoning in a memo to Shinnick:
Per your question as to where the Internal Review and Operations Research (IROR) entity would best fit within OBO organizational structure. I believe that RM is the logical office to assume [the IROR] function. Historically, the Resource Management Office (RM) has had such a function within the Policy and Programming Division (RM/P). RM/P is currently overseeing the Federal Managers' Financial Integrity Act (FMFIA) management controls audit. With [its] financial audit program, and more recently the Department's increased emphasis on A-123 Internal Controls on Financial Transactions, the Financial Management Division (RM/FM) is also heavily involved in such internal review functions.
Accordingly, I would recommend that the IROR function be placed in the RM office with reporting responsibilities through the RM Managing Director. This realignment in no way prevents the Director from requesting audits and reviews to be performed through a tasking to the RM office. It would also allow for the synergy as RM is also responsible for coordination of OIG and GAO audits, responding to stakeholders['] requests for information, performing financial audits overseas, FMFIA management controls reviews, A-123 reviews, and interfacing with Charleston on the Department's audited Financial Statements.
Within RM, the IROR function will report to the Deputy Managing Director, allowing it to perform reviews throughout the organization as well as within RM.
(Def.'s Ex. 12, at 1-2.) Shinnick followed Hochuli's recommendation and moved IROR into RM and directed plaintiff to report to RM's deputy managing director, Ramsay Stallman. (Def.'s Facts ¶ ¶ 20-21.) At the same time as he moved IROR, Shinnick moved the two divisions that had been directly reporting to him, MSD and IRM, under a newly created " Office of the Executive Director."  ( Id. ¶ 18.) Shinnick also made several non-structural changes that affected plaintiff. He " cut back on the number and size of weekly meetings," discontinuing the " top team" meetings that the former OBO Director had held each Friday afternoon and informing plaintiff and the division heads that they were no longer required to attend project performance review, cross-cutting and senior staff meetings.  ( Id. ¶ 19.)
Although the changes described above took effect in August 2008 or shortly thereafter, OBO did not submit its request for approval of the structural changes to the State Department's Bureau of Human Resources (" State HR" ) until January 29, 2009.  (Def.'s Ex. 19 & Pl.'s Ex. 9 ; Def.'s Facts ¶ ¶ 22, 26.) By that time, OBO had decided to propose that IROR be reclassified as a " division" that would report to the Office of the Executive Director. (Def.'s Ex. 19.) IROR did not meet the State Department's requirements to be classified as a " division," so OBO also requested a waiver of those rules as applied to IROR. (Def.'s Ex. 19; Def.'s Facts ¶ ¶ 23; Pl.'s Facts ¶ 13.) In seeking the waiver, OBO described IROR as " a separate functional group within OBO for eight years," which " should remain a distinct entity, because it has an oversight function within the bureau; it conducts independent and objective reviews and analysis of the Bureau's operations," and " [[i]n order to conduct much of the research, it often interacts with Bureau senior management, which is best facilitated by a Division status and by a Division Chief." (Def.'s Ex. 19, at 3; Def.'s Facts ¶ 26; Pl.'s Facts ¶ 13.)
On February 11, 2009, State HR notified OBO that, after reviewing OBO's " final realignment organization charts" and the " waiver requests," it had concluded that " [IROR] should be organized as a Staff, not a division." (Def.'s Ex. 20 & Pl.'s Ex. 11, at 1-2; Def.'s Facts ¶ ¶ 27, 50.) State HR further " recommend[ed] that the IR Staff be placed with the RM Office of Policy and Program Analysis [RM/P] or with the RM Deputy Director [Hochuli]" because " [p]lacement with the Executive Director is inappropriate due to a conflict of interest when reviewing HR, Management Support [MSD], or IRM operations." (Def.'s Ex. 20, at 2; Def.'s Facts ¶ ¶ 27, 50; Pl.'s Facts ¶ 14.)
Although neither Shinnick nor Hochuli believed there would have been an unavoidable conflict of interest if IROR reported directly to the Executive Director (Pl.'s Facts ¶ ¶ 15-16), Hochuli decided that, effective March 2, 2009, IROR would be incorporated into RM/P as a Staff. (Def.'s Ex. 21 & Pl.'s Ex. 8; Def.'s Facts ¶ 28.) With IROR part of RM/P, plaintiff would report to RM/P's Director, Isaias (" Cy" ) Alba. (Def.'s Facts ¶ 28.) On February 23, 2009, Hochuli sent a memo to plaintiff, Alba, and Stallman, who by then had moved into the position of Executive Director, notifying them of his decision to move IROR into RM/P and asking plaintiff to " work with [Stallman] and [Alba] to ensure a smooth transition." (Def.'s Ex. 21.) In that memo, Hochuli explained his decision as follows:
Following [State HR's] recommendation, I have decided to incorporate IROR into
RM/P. Further since RM/P has an OMS [office support staff], the office support position currently in IR will be reassigned to the EX Director which does not currently have an OMS and needs the support.
( Id. ) That same day, plaintiff sent a memo to Hochuli questioning his decision and explaining the reasons for her objection to moving IROR into RM/P:
I am not comfortable at this time to work for CY Alba. An important reason is that my talented staff has been in constant upheaval now for over a year. . . .
My staff has been very rattled by all the unexpected changes. . . . Additionally, there is the added worry of the delicate situation with CY's dubious reputation for managing women working for him. CY is known to be openly critical of IR. I need to wait out the results of the desk audit. These constant changes in my program put my promotion in great jeopardy. I want to stay put for now. . . .
You mentioned in your memo that placement in the EX is inappropriate due to conflict of interest when reviewing HR, MSD, or IRM operations. IR is the bureau's oversight apparatus in  reviews and analysis. Most importantly, there is an inherent conflict of interest with IR being placed under RM period. IR should report directly to the head of the bureau as it was previously.
I am requesting that IR be placed back under the Director of OBO.
(Pl.'s Ex. 34, at 1-2.) The move took effect as contemplated on March 2, 2009. (Def.'s Facts ¶ 28.) On March 5, 2009, Hochuli sent a memorandum to plaintiff which stated:
This is in response to your memo dated February 23, 2009. Although I understand your concerns, the realignment is for legitimate business reasons and is moving forward as planned. The realignment of IR to RM/P is effective March 2, 2009.
I appreciate your cooperation in making this move a success. Please note that failure to move as requested may result in disciplinary action. I trust that such action will not be necessary, however.
(Pl.'s Ex. 13, at 22.)
During the same time period as OBO was making organizational changes, plaintiff was seeking a promotion to GS-15, which she believed that former OBO Director Williams had promised her. (Def.'s Facts ¶ ¶ 35-49; Pl.'s Resp. ¶ ¶ 35-49.) Plaintiff was pursuing two possible avenues to obtain her promotion. (Pl.'s Facts ¶ ¶ 8-10; Def.'s Resp. ¶ ¶ 8-10.) First, she was working with Stallman and others on a proposal for the reorganization of IROR, which would make the head of IROR a GS-15 position.  (Def.'s Ex. 38 & Pl.'s Ex. 3, at 1-2; Pl.'s Facts ¶ ¶ 8-12.) That proposal was finalized and submitted to the classification staff at State HR for review on October 28, 2008. (Def.'s Facts ¶ 38, at 1.) According to Stallman, plaintiff would have to " compete" for the new GS-15 position against other applicants because the position description was based on " projected," not current ...