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Locks v. Lew

United States District Court, District of Columbia

August 5, 2016

PAMELA C. LOCKS, Plaintiff,
v.
JACOB J. LEW, Secretary of the Treasury, Defendant.

          PAMELA C. LOCKS, Plaintiff, represented by Robert C. Seldon, SELDON BOFINGER & ASSOCIATES, P.C., Charlene Bofinger, SELDON BOFINGER & ASSOCIATES, P.C. & Lauren Marsh Drabic, SELDON BOFINGER & ASSOCIATES, P.C..

          JACOB J. LEW, Defendant, represented by Jeremy S. Simon, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, District Judge.

         Plaintiff, Pamela C. Locks, is a former employee of Defendant, the U.S. Department of the Treasury. Plaintiff, who is African American, filed suit against Defendant, alleging that Defendant discriminated against her on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq. Presently before the Court is Defendant's [51] Motion for Summary Judgment.

         Upon consideration of the parties' submissions, [1] the relevant legal authorities, and the record as a whole, the Court finds that Plaintiff has raised a genuine issue of material fact as to her claim of discrimination on the basis of race. Accordingly, the Court shall GRANT-IN-PART and DENY-IN-PART Defendant's [51] Motion for Summary Judgment. Specifically, the Court shall deny Defendant's Motion for Summary Judgment with regard to Plaintiff's discrimination claim, but shall grant Defendant's Motion for Summary Judgment with regard to Plaintiff's request for reinstatement in a position comparable to her former position as Director of the Security Division.

         I. BACKGROUND

         A. Factual Background[2]

         During the time period at issue in this case, Plaintiff, who is African American, was employed by the Financial Management Service ("FMS"), a bureau of the U.S. Department of the Treasury. Def.'s Stmt. ¶ 1. FMS was subdivided into several "Assistant Commissioner (AC) Areas, " including the AC Management/Chief Financial Officer (CFO) Area ("AC Management"), in which Plaintiff served as Director of the Security Division, a GS-15 position, between January 2006 and February 26, 2012. Id. ¶ 2. In her capacity as Director of the Security Division, Plaintiff was responsible for overseeing employees who performed various duties including, inter alia, conducting background investigations of FMS employees, investigating employee misconduct, securely maintaining files that contained classified and sensitive information, and coordinating with the Treasury Department's Office of Inspector General ("OIG"). Def.'s Stmt. ¶ 3; Pl.'s Resp. Stmt. ¶ 3.[3]

         On November 27, 2008, a clerk that worked in the Security Division named Cordarryl Brown was arrested after a traffic stop and charged with possession of marijuana and possession of paraphernalia. Def.'s Stmt. ¶ 6. Within a week or two of the arrest, Mr. Brown informed Ms. Locks that he had been arrested and that the police had found marijuana paraphernalia in his car. Def.'s Stmt. ¶ 7; Pl.'s Stmt. ¶ 73-74. Mr. Brown did not mention that the police had also found marijuana. Pl.'s Stmt. ¶ 74. Ms. Locks did not follow up with Mr. Brown as to the outcome of any legal proceedings associated with his arrest, and she did not report the arrest to anyone in OIG. Def.'s Stmt. ¶¶ 9, 10.

         At least one other employee in the Security Division, a personnel Security Specialist named Allan Small, learned of Mr. Brown's arrest. Pl.'s Stmt. ¶ 70.[4] Mr. Small advised Mr. Brown that he should inform Ms. Locks of the arrest. Def.'s Resp. Stmt. ¶ 71. Mr. Small was unaware whether or not Mr. Brown's arrest was ever brought to Ms. Locks' attention, and Mr. Small never discussed it with her. Pl.'s Stmt. ¶ 71. Mr. Small also did not report the arrest to anyone in OIG. Id. ¶ 72.

         In the late summer or early fall of 2011, Ms. Locks requested that the two student interns in the Security Division, including Mr. Brown, undergo a background reinvestigation at the "moderate risk level." Pl.'s Stmt. ¶ 78. Ms. Locks instructed Ms. Agnew to initiate this re-investigation, and Ms. Agnew in turn directed Mr. Small to handle it. Id. ¶ 79. Upon Mr. Brown's completion of the background's electronic questionnaire, Mr. Small reviewed it and determined that he did not answer the police background history question accurately or fully enough. Id. ¶ 80. When Mr. Brown re-submitted his questionnaire, he revealed for the first time that in addition to his 2008 arrest, he had been arrested again in February of 2011 and had bench warrants issued in 2009 and 2011. Id. ¶ 81.

         In October 2011, the OIG initiated an investigation after receiving an anonymous complaint that an employee within the Security Division had been arrested and that the Director of Security was aware of the arrests and had not taken any action. Def.'s Stmt. ¶ 13. Ms. Locks was interviewed twice by the OIG as part of the investigation, the first occurring in late October 2011 and the second occurring in November 17, 2011. Id. ¶ 14. During her first interview, Ms. Locks told the OIG investigator that she had no knowledge of Mr. Brown's arrest in 2011 until it was brought to her attention by OIG investigators and, as to Mr. Brown's arrest in 2008, that she also did not learn of that arrest until October of 2011. Id. ¶ 15.[5] After Mr. Brown's interview with the OIG, which was held on November 14, 2011, Mr. Brown contacted Ms. Locks, noting that he had in fact told her about his arrest shortly after it occurred in 2008. Pl.'s Stmt. ¶ 83. OIG subsequently contacted Ms. Locks and scheduled another interview with her on November 17, 2011. Id. ¶ 84. During Ms. Locks' second interview, which OIG videotaped, Ms. Locks stated that she had forgotten that Mr. Brown had informed her of the arrest back in 2008. Id. ¶ 85.

         On December 23, 2011, OIG issued a report finding that Ms. Locks knew that Mr. Brown had been arrested in 2008, and that Ms. Locks "was made aware of the arrest by Brown in 2008, but admitted that she never obtained any further details for two years." OIG Report of Investigation, ECF No. [53], at 9. The OIG also found that Ms. Locks "initially reported to [OIG] that Brown never informed her of his arrests[;] [h]owever, upon a second interview Locks admitted Brown informed her, but she forgot." Id. The OIG Report included no discussion as to whether Ms. Locks violated any policy for failing to report Mr. Brown's arrest, and it made no recommendation as to whether any disciplinary action should have been taken against Ms. Locks. See id.; see also Pl.'s Stmt. ¶¶ 91-93.

         On February 17, 2012, Ms. Locks' first-line supervisor, Kent Kuyumjian (a Caucasian male), and Ms. Locks' second-line supervisor, Patricia Greiner (a Caucasian female), met with Ms. Locks and told her that she would be reassigned from the Security Division Director position to a non-supervisory Program Manager position within the AC Management/CFO Area, without loss of grade or pay, effective February 26, 2012. Def.'s Stmt. ¶ 21. Ms. Locks' removal from her position as the Director of Security also "effectively revoked" the competitive selection of Ms. Locks to become the Director of the Enterprise Security Operations Division ("ESOD"), a position that she was competitively selected to assume upon the completion of a merger between FMS and the Bureau of Public Debt ("BPD"). Pl.'s Stmt. ¶ 98. The ESOD Director position would have entailed greater responsibility, including greater supervisory responsibility than her position as the FMS Security Director, because multiple security entities would have merged under her supervision. Pl.'s Stmt. ¶ 99.

         Also at the February 17, 2012 meeting, Ms. Greiner and Mr. Kuyumjian gave Ms. Locks an "Oral Admonishment Confirmed in Writing, "[6] which stated that Ms. Locks had failed to "promptly report the arrest of a Treasury employee in accordance with Treasury Directive 40-01, Responsibilities of and to the Inspector General." Oral Admonishment Confirmed in Writing, ECF No. [52-17]. Treasury Directive 40-01 states, in relevant part:

"[A]ll department of the Treasury officials, officers and employees are required to report promptly to the OIG any information or allegation coming to their attention that indicates that any Treasury... may have engaged in improper or illegal activity, including but not limited to a criminal or other illegal act and a violation of the Standards of Conduct or other Federal regulations."

Id. (quoting Treasury Directive 40-01, Section 4 (Responsibilities, Parts 10(a) and (b)).

         Mr. Kuyumjian also gave Ms. Locks her 2011 performance appraisal at the February 17, 2012 meeting. Pl.'s Stmt. ¶ 112. Ms. Locks received an overall rating of "Exceeds Expectations, " the second highest rating in the Agency's appraisal system. Def.'s Stmt. ¶ 27; see also Plaintiff's 2011 Performance Appraisal, ECF No. [52-18]. It was the first time in her tenure as Director of Security that she received an appraisal lower than the highest "Outstanding" level. Id.

         In May 2012, Ms. Greiner offered Ms. Locks the position of Director, Administrative Programs Division ("APD"), which entailed supervising approximately 40 employees arranged in five branches performing facilities, supply services, and records management functions. Def.'s Stmt. ¶ 37. Ms. Locks expressed reservations to Ms. Greiner about committing to the APD Director position without additional training, and asked Ms. Greiner for more time to consider the offer, citing health concerns. Pl.'s Stmt. ¶ 117. Ms. Greiner subsequently reconsidered her decision to reassign Ms. Locks into the APD Director position, as Ms. Greiner was "concerned about the stress the Director position might place on Ms. Locks and the possible impact that might have on her physical well-being." Greiner EEO Declaration, ECF No. [52-37], at 23. Ms. Greiner ultimately elected not to place Ms. Locks into the APD Director position. Id.

         On December 9, 2013, Ms. Locks applied for a Voluntary Separation Incentive Payment and voluntarily retired effective January 3, 2014. Id. ¶ 43.

         B. Procedural History

         Ms. Locks first contacted an Equal Employment Opportunity ("EEO") counselor on March 6, 2012, claiming she was discriminated against on the bases of age, race, and sex, when she was reassigned from the Security Director position; when she received a written admonishment; when she received her 2011 performance appraisal and award; and in her current working conditions. Def.'s Stmt. ¶ 39. Ms. Locks filed a formal EEO complaint on June 15, 2012. Id. ¶ 40.

         On November 8, 2012, the Equal Employment Opportunity investigator wrote to Plaintiff, stating that the issue accepted for investigation was whether she was discriminated against due to her age, race and sex when:

(1) On February 17, 2012, she was issued a performance appraisal that lowered her rating from Outstanding to ...

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