United States District Court, District of Columbia
LAURA C. JONES, Plaintiff,
GEORGE W. BUSH, et al., Defendants.
RICHARD W. ROBERTS Chief Judge
Pro se plaintiff Laura Jones brought this employment discrimination action under Title VII of the Civil Rights Act of 1964 (“Title VII”), see 42 U.S.C. § 2000e et seq., as amended, and the First Amendment to the United States Constitution, against former President Bush, the Director of the Office of Administration (“OA”) in the Executive Office of the President (“EOP”), and nine other White House employees. Defendants filed a motion to dismiss or, in the alternative, for summary judgment. Because plaintiff failed to exhaust administrative remedies regarding certain claims, to demonstrate that adverse employment actions have been taken, to establish a First Amendment violation, and to rebut sufficiently defendants’ non-discriminatory reasons for their employment actions, the Court granted defendants’ motion by minute order. This Memorandum Opinion sets forth the reasons for the decision.
“Plaintiff Jones (White) was employed by the [OA-EOP], assigned to the mailroom” in the West Wing of the White House, Amended Complaint for Damages and Equitable Relief (“Am. Compl.”) at 3 (page numbers designated by the Court), and “was the only white employee in a predominantly non-white mailroom.” Id. at 7. Her official title was Lead Mail Assistant, Grade 8. Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment (“Defs.’ Mem.”), Ex. B (Position Description) at 1. The major duties of her position were to:
Perform mail and administrative functions to deliver and meter mail, to solicit and forward feedback from customers, to offer suggestions to improve work processes, to assist and educate customers, and to plan and record daily work activities.
Id., Ex. B at 2. Plaintiff’s work hours were 10:30 a.m. to 7:00 p.m. See id., Ex. E (Information for Informal Complaint dated June 21, 2004) at 1. Her immediate supervisor was Restituto (“Rusty”) Francisco (Asian American/Pacific Islander male); her second-line supervisor was Kenneth Haskins (African American male); her third-line supervisor was Kenneth Miller (white male); and her fourth-line supervisor was Jon Laurich (white male). See id., Ex. C (Laurich Aff.) at 1, Ex. Q (Motion for Findings and Conclusions Without a Hearing) at 5 & Ex. Z (Report of Investigation dated January 28, 2005) at 2, 10 and 13.
A. The March 24, 2004 Unscreened Box Incident
According to plaintiff, on March 24, 2004, the following events occurred:
[A]n unsecured box entered the White House mailroom en route to President Bush and his immediate staff. [Plaintiff] noticed that the box had not been processed according to stringent security procedures, which required that all packages addressed to the White House be radiated to prevent contamination by chemical or biological agents. In the wake of the Ricin attacks on the U.S. Capitol just two months earlier and the Anthrax attacks of 2001-02, the plaintiff and her co-workers were taking [Ciprofloxacin] as a precautionary measure, and a premium was placed on the importance of security, particularly in mail and package handling.
When [plaintiff] saw the unsecured box, [she] informed her supervisor, Rusty Francisco (Asian), and was told that he had authorized Barbara Swan (Black) to allow the box to bypass security at the request of [a] White House staffer . . . who wanted to deliver the box to President Bush, Vice President Dick Cheney, and the entire Executive staff. Plaintiff expressed concern over the security threat and was told by a subordinate to leave the matter alone. When she emailed Ken Haskins (Black), the mailroom branch chief, she was told to drop the matter. Haskins dismissively said, “When I see a red bull, you see a red bull.”
Am. Compl. at 3-4.
Plaintiff believed that “the response[s] from her subordinate and her supervisor [were] disrespectful, ” and attributed the responses to “the fact that she was the only white staff member in the mailroom.” Id. at 4. She reported this incident to Linda Sites (white female), the OA-EOP’s Equal Employment Opportunity (“EEO”) Director, on April 6, 2004. Id.; Defs.’ Mem., Ex. W (Information for Informal Complaint dated April 15, 2004) at 1. Plaintiff alleged discrimination based on color, race and sex, Defs.’ Mem., Ex. W at 2, and she requested the following relief:
Return to job in West Wing mailroom as lead clerk; printer installed in West Wing mailroom; have in writing that [plaintiff and Haskins] will be the only ones with the password for billing and wants to be treated with respect, not hear comments about [illegible and] wants [coworkers] to take on more responsibility (such as printing their own [illegible]) left alone.
Id., Ex. W at 4.
On April 15, 2004, EEO Director Sites met with plaintiff, Haskins, Francisco and an EEO counselor, Shalini Benson, allegedly “to discuss the situation and try to dissuade [p]laintiff from filing an EEO complaint.” Am. Compl. at 4. Sites allegedly instructed Benson to counsel plaintiff, “and Benson did so, eventually advising [p]laintiff of her right to bring an EEO complaint.” Id.
B. Assignment to Work on June 11, 2004 and Letter of Reprimand
According to plaintiff, on June 9, 2004, she “told Haskins she was willing to volunteer to work her usual shift on June 11, [2004, ] a National Day of Mourning in honour of the dead [sic] of President Reagan.” Id. at 5. She stated that Haskins “would not confirm the shift she was expected to work, ” and, because of other commitments she could not work a shift other than her usual shift and “told Haskins to disregard her volunteer request.” Id. “Haskins subsequently assigned [p]laintiff to a shift other than her usual one, such that she was unable to work.” Id.
According to defendants, on June 9, 2004, plaintiff “volunteered to work on Friday, June 11, 2004, . . . [was] placed on the work schedule for Friday, June 11, 2004, . . . [and was] notified to report for [her] regular scheduled tour of duty which [was] 10:30 a.m. to 7:00 p.m.” Defs.’ Mem., Ex. D (June 16, 2004 Letter of Reprimand) at 1. Plaintiff neither submitted a request for leave for Friday, June 11, 2004, nor reported for duty as assigned, nor telephoned the office to request leave for the day, thus violating established leave procedures and OA Disciplinary Guidelines. Id., Ex. D at 1; see id., Ex. M (Haskins Aff.) at 2-3.
Also on June 9, 2004, plaintiff had a telephone conversation with Haskins about several matters, including an incident where two of her co-workers “were engaged in . . . a personal conversation, with [plaintiff] present . . . in Spanish, ” making plaintiff “feel uncomfortable.” Defs.’ Mem., Ex. D at 2. Plaintiff alleged that management was “attempting to force [her] to leave by placing a great deal of pressure on [her] and that [she was] the ‘last one around.’” Id., Ex. D at 2. Plaintiff concluded the conversation “by stating that ‘no spic is going to make [her] leave’ or words to that effect.” Id., Ex. D at 2. For this reason, plaintiff was charged with using offensive language, another violation of OA Disciplinary Guidelines. Id., Ex. D at 2; see id., Ex. M at 2.
On June 16, 2004, plaintiff received a Letter of Reprimand for her failure to follow established leave procedures and for her use of offensive language. Defs.’ Mem., Ex. D at 1-2. It was “a formal disciplinary action” made part of plaintiff’s “Official Personnel Folder . . . for a period not to exceed one (1) year from June 11, 2004, ” the date on which plaintiff violated the OA-EOP leave procedures. Id., Ex. D at 2. This action prompted plaintiff to pursue an informal complaint of discrimination based on her color (Caucasian), race (Caucasian), sex (female), and reprisal for participation in protected EEO activity in April 2004. Id., Ex. E at 1-2.
C. Reassignment and Three-Day Suspension
According to plaintiff, she was “reassigned from the ‘West Wing’ mailroom [to another mailroom at] 1800 G Street[, N.W.], a move that came with a rescission of her security clearance, a reduction in assignment prestige, and a change in work hours.” Am. Compl. at 5. In addition, “[p]laintiff received a three-day suspension for ‘insolent behavior towards her supervisor’ on July 15, 2004, and a Letter of Reprimand (LOR) was placed in her file.” Id.
According to defendants, on July 15, 2004, Miller and Haskins informed plaintiff of her reassignment from the mailroom in the West Wing of the White House to another mailroom two blocks away at 1800 G Street, N.W., and of a one-hour adjustment of her work hours, from 10:30 a.m. to 7:00 p.m., to 9:30 a.m. to 6:00 p.m. Defs.’ Mem., Ex. F (Miller Aff.) at 1; id., Ex. G (Notice of Proposed Suspension dated July 27, 2004) at 1. Miller explained the reassignment as follows:
We reassigned the [plaintiff] to the same position in a different mailroom . . . [as] part of an ongoing series of personnel reassignments in [OA-EOP] Mail Messenger Operations which were intended to make our operations more effective and efficient, and to provide our customers with the best possible service. We explained to the [plaintiff] that we were reassigning her to the same position in a different, larger mailroom to provide [her] with opportunities to: (1) cross-train with other employees, ensuring continuity of operations in the event that the [plaintiff] or one of her co-workers was on leave; (2) learn different, career-enhancing skills, which in turn add value to the entire organization; and, (3) lead a larger mailroom, given that the [plaintiff] had indicated her desire to qualify for a supervisory position in the future, and one of OA’s core values is to encourage its employees to seek and take responsibility.
Id., Ex. F at 2; see id., Ex. M at 3-4. Six mailroom employees were reassigned at this time: one Hispanic Caucasian male, three African American males, one Asian (Filipino) female, and plaintiff, a Caucasian female. Id., Ex. F at 3.
Plaintiff “responded to the news of [her] pending reassignment with considerable hostility.” Defs.’ Mem., Ex. G at 1. Miller described the events as follows:
[Plaintiff] indicated that [she] did not wish to comply [with the reassignment], and stood to leave the room. At this point, [Miller] expressly directed [plaintiff] to report to [her] new work location at 9:30 a.m., on Monday, July 19, 2004, and asked if [she] understood. [She] declined to reply. Instead, [she] stormed from the room, and returned only moments later at which time [she] thrust [her] access badge within centimeters of Mr. Haskins[’] face and asked if he planned to take [her] badge also. Mr. Haskins did not respond to [her] overly aggressive, insolent conduct, but instead told [her] that [she] would receive whatever access badge [she] needed to perform [her] duties. [She] then left the room a second time. Given [her] unpredictable emotional condition, the Chief Operating Officer, Dr. Sandra Evans, placed [her] on administrative leave with pay for the remainder of the day and directed [her] to go home and attempt to calm [her]self.
Id., Ex. G at 1.
Miller explained that the reassignment “to a new mailroom, in a different building . . . required a change to [plaintiff’s] security access level and parking.” Defs.’ Mem., Ex. F at 3. Plaintiff was to be assigned a parking space on the Ellipse, six-blocks away from the 1800 G Street mailroom. Id., Ex. Z at 6. Miller suggested that he “walk [plaintiff] to her car to get her parking permit since she had been instructed to go home, and, besides, [he] was concerned because she was very emotional at the time.” Id., Ex. F at 3; see id., Ex. Z at 6. Because plaintiff “parked on East Executive Avenue, which gave her immediate access back into the White House, and [because] she appeared upset, ” Miller “asked the Secret Service to ensure that [plaintiff] did not return to the White House.” Id., Ex. F at 3. Further, because plaintiff “had inappropriately attempted to contact several senior White House staff members to ask them to intervene on her behalf, and possibly override the decision to reassign her, ” her “e-mail privileges were temporarily suspended after her reassignment.” Id., Ex. F at 3.
Plaintiff’s “insolent conduct towards supervisors” at the July 15, 2004 meeting with Miller and Haskins prompted Miller to propose a three-day suspension. Id., Ex. G at 1. Miller took into account “the circumstances and gravity of [her] misconduct” as well as the “aggravating factor that [she had] received a reprimand for misconduct only one month [earlier].” Id., Ex. G at 2. Specifically, on “June , 2004, [plaintiff] received a reprimand for failing to follow established leave procedures and for using offensive language in the workplace.” Id., Ex. G at 2. Laurich sustained the charge of insolent behavior toward supervisors, and the suspension was effective on August 19, 2004, August 24, 2004 and August 25, 2004. Id., Ex. H (Notice of Decision on Proposed Suspension dated August 13, 2004) at 1.
Plaintiff notified Benson of her reassignment, and further alleged that, on July 20, 2004, her picture had been “distributed at meetings with [the] Secret Service . . ., and that [Secret Service personnel] were told to deny her access to the White House complex.” Id., Ex. E at 1. Plaintiff asked that she be “returned to her previous work schedule . . . in the West Wing mailroom, ” and she sought a written apology from Miller. Id., Ex. E at 2. These matters were not resolved informally, and on July 30, 2004, plaintiff was advised in writing of her right to file a formal EEO complaint. Id., Ex. X (Letter from S. Benson to plaintiff dated July 30, 2004) at 1.
Plaintiff took sick leave the day after her reassignment. Id., Ex. F at 4. “[T]he OA Security Office’s Deputy Director packed [plaintiff’s] things and locked them in a secure area until she returned to work.” Id., Ex. F at 4.
D. Formal EEO Complaint
On July 30, 2004, plaintiff filed a formal complaint of discrimination. Am. Compl. at 2; see Defs.’ Mem., Ex. I (Formal Complaint of Discrimination) at 1; see id., Ex. Z at 2. It alleged discrimination on the basis of race, color, and sex, and reprisal for prior protected activity in April 2004. Id., Ex. I at 1. To her complaint plaintiff attached a nine-page narrative statement describing, among other events, the circumstances surrounding the Letter of Reprimand, her reassignment to the 1800 G Street mailroom, and her three-day suspension. See generally id., Ex. I (Attach. to Formal Complaint) at 1-7. The OA-EOP’s EEO Director acknowledged in writing receipt of the complaint (assigned No. OA-04-01), and interpreted plaintiff’s claim as follows:
[T]he OA discriminated against you because of your race (Caucasian), color (Caucasian), sex (female), and reprisal for prior protected activity on April 9, 2004, in the following actions:
a. Placement of a letter of reprimand in your personnel file on June 16, 2004;
b. Your reassignment beginning July 19, 2004, from the West Wing mailroom to the mailroom at 1800 G Street and a change in your work hours from 10:30 a.m. - 7:00 p.m. to 9:30 a.m. - 6:00 p.m.
Id., Ex. I (Letter from L. Sites, Director of Equal Employment Opportunity, OA-EOP, to plaintiff dated August 27, 2004) at 1. Because plaintiff’s nine-page narrative statement not only “included the claims stated above, but . . . also included additional information, ” the EEO Director treated the statement as “background information” for the complaint. Id., Ex. I at 1. Similarly, upon review of the copy of the proposed notice of suspension, the Director considered it “background information for the issue of [her] reassignment.” Id., Ex. I at 1. The Director’s letter continued as follows:
If you believe that your claims and/or bases have not been correctly stated, please notify me, in writing, within 10 calendar days of receipt of this letter. State the claim(s) and basis/bases of discrimination that you believe to be correct [sic]. If I have not heard from you within the specified time frame, I will assume that the claims and/or bases are correct as stated, and ...