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Warren v. Pon

United States District Court, District of Columbia

March 30, 2018

BARBARA S. WARREN, Plaintiff,
v.
JEFF T.H. PON, Director, Office of Personnel Management, [[1]] Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE.

         Plaintiff Barbara S. Warren brings this action under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), see 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act (“ADEA”), see 29 U.S.C. §§ 621 et seq., against her former employer, the Director of the Office of Personnel Management (“OPM”). Pending before the Court is Defendant's Motion for Summary Judgment, ECF No. 36. For the reasons discussed below, OPM's motion will be granted.

         I. BACKGROUND

         The plaintiff, who was born in 1949, Compl. ¶ 13, describes herself as “an African American woman of medium-brown color, ” id. ¶ 14; see Def.'s Mem. in Support of Mot. for Summ. J. (“Def.'s Mem.”), Ex. 1 (“Pl.'s Dep.”) at 11:23-12:7. On August 6, 2007, the plaintiff was hired under the Federal Career Intern Program, with her appointment “not to exceed [two] years.” Def.'s Mem., Ex. 3 (Notification of Personnel Action dated August 6, 2007). “Upon satisfactory completion of the program, [the plaintiff could have been] noncompetitively converted to a permanent appointment.” Id. If, however, her performance was “not satisfactory or if [she] fail[ed] to satisfactorily complete this program, employment [was to] be terminated.” Id.

         The plaintiff worked in OPM's Federal Investigative Services Division (“FISD”), now known as the National Background Investigations Bureau, Def.'s Mem. at 2, as a Special Agent (Investigator), GS-09, step 01, see id., Ex. 3; see also id., Ex. 1 (“Pl.'s Dep.”) at 23:13-18. From August 6, 2007 through February 18, 2008, the plaintiff's immediate supervisor, or Supervisory Agent in Charge (“SAC”), was Dave Ferguson, see Pl.'s Dep. at 26:12-20, who led a team of approximately twenty Investigators, Pl.'s Dep. at 26:16-18. The plaintiff then transferred to another team, Pl.'s Dep. at 28:15-16, and from February 19, 2008 through November 2008, the SAC was Erin Leigh Briggs (“Briggs”), Pl.'s Dep. at 28:9-16, whose team included eight first-year agents, Pl.'s Dep. at 30:19-31:1. The plaintiff's second-level supervisor was Vicki Clancy (“Clancy”), Deputy Chief of Field Operations for the Capital Region. Def.'s Mem., Ex. 6 (“First Clancy Aff.”) at 1. Her third-level supervisor was Barry Shine (“Shine”), Program Manager, Chief of Field Operations for the Capital Region, id., Ex. 18 (“First Shine Decl.”) at 1-2; id., Ex. 2 (“Warren Aff.”) at 2. Her fourth-level supervisor was Charles F. Dininger (“Dininger”), Chief of Field Operations. Warren Aff. at 2. Initially, the plaintiff's duty station was in Annandale, Virginia; as of August 25, 2008, her duty station was in Arlington, Virginia. Id.

         An Investigator (Special Agent), under a SAC's supervision, “conducts and reports investigations primarily involving Federal personnel operations.” Def.'s Mem., Ex. 4 (Position Description) at 2. The Investigator “characteristically performs the full range of investigative functions on assigned cases or portions of cases, from planning through fact-finding to reporting the results of [her] investigations.” Id., Ex. 4 at 2. “The supervisor reviews the work completed by the GS-9 investigator for technical accuracy and adequacy and for compliance with operating instructions, guides, rules and regulations.” Id., Ex. 4 at 4. The position “is a national security position, designated as critical-sensitive.” Id., Ex. 4 (Addendum to Position Description) at 6.

         “[The plaintiff] graduated from the Basic Investigator Course (BIC) on October 19, 2007.” Def.'s Mem., Ex. 10 (“Second Briggs Aff.”) at 3. She “work[ed] in the field from October 19, 2007 to January 15, 2008, ” and as of January 15, 2008, or 90 days after graduation from the BIC, the plaintiff was “placed on standards, ” Second Briggs Aff. at 3; see First Clancy Aff. at 4, which presumably refers to the performance standards applied to first-year agents, see Def.'s Mem., Ex. 12 (First Year Special Agent Performance Standards), ECF No. 36-12.

         A. Telephone and Email Communications and Meetings with Briggs

         The plaintiff apparently found fault with Briggs' management and communication style. She objected to Briggs' “overall demeanor and the way [Briggs] handled conversations” with her. Pl.'s Dep. at 38:15-16. While the plaintiff had “[n]o issue” accepting criticism from her former supervisor Dave Ferguson, Pl.'s Dep. at 33:10, she believed that the criticism she received from Briggs offered “[n]othing constructive, ” Pl.'s Dep. at 33:19. According to the plaintiff, Briggs “deliberately and spitefully harassed [her] by subjecting [her] to [an] idiosyncratic style of micromanagement, ” for example, by giving “[her] work . . . a level of scrutiny that was unnecessary and unproductive.” Warren Aff. at 2. The plaintiff considered Briggs “bossy [and] dictatorial, ” and accused Briggs of having “devised a system of communication that set [the plaintiff] apart from [her] coworkers for special demeaning treatment.” Id. For example, the plaintiff discerned a distinction between the types of emails Briggs would send. See Pl.'s Dep. at 55:12-19, 56:17-23. Group 1 emails, which “tend[ed] to have a positive message, ” were “addressed to recipients in alphabetical order according to the last names, ” and Group 2 emails, which “tend[ed] to be negative, ” listed the plaintiff as the first recipient. Warren Aff. at 4 (emphasis removed); see id. at 4-6, 11-12, 17; see also Def.'s Mem., Ex. 17 (Report of Investigation, Appendix A (Comparative Analysis of Type 1 (Positive) and Type 2 (Negative) Combined Emails (February 3 - September 29, 2008)). According to the plaintiff, Briggs would “not return calls or respond to emails in a timely manner, ” which had a negative impact on the plaintiff's “case work performance” and caused her “to turn elsewhere for information or direction.” Warren Aff. at 12.

         On March 18, 2008, the plaintiff received an email from Briggs, who had randomly reviewed a case assigned to the plaintiff. Id. at 6. In the email, Briggs stated that the plaintiff “had not made an attempt to contact the Subject of the [investigation] for leads and no case message regarding leads had been sent to the investigator who would be doing the Subject interview.” Id. Briggs allegedly told the plaintiff that “items were still pending” and issued instructions that the plaintiff “call the help desk to [have] them . . . re-open the case and . . . call the Subject for leads.” Id. The plaintiff did follow up, see id. at 6-7, yet days later Briggs “continued to badger” her regarding the case, ” id. at 7, during a telephone call on or about March 24, 2008, id; see Pl.'s Dep. at 33:20-34:16. The plaintiff “ended the conversation, ” after having advised Briggs that she “was not going to put up with [Briggs'] actions.” Warren Aff. at 7.

         Just over a month after joining Briggs' team, the plaintiff approached her second- and third-level supervisors regarding her problems with Briggs, including Briggs' “condescending manner and unprofessionalism.” Id. at 13. On March 27, 2008, the plaintiff met with Shine and Clancy, for a meeting that lasted several hours. Def.'s Mem., Ex. 9 (“First Briggs Aff.”) at 4; First Shine Aff. at 2; First Clancy Aff. at 2; Warren Aff. at 14. Briggs joined the meeting during its last hour, and at its conclusion, Shine was under the impression “that all issues between [the plaintiff] and [Briggs] had been discussed and resolved to the extent that they agreed to start over.” First Shine Aff. at 2. Shine opined that the plaintiff believed Briggs was not treating her like an adult, a misunderstanding which he thought could occur “when a supervisor [provides] unwanted constructive criticism.” Id. After having reviewed 10 emails between the plaintiff and Briggs, Shine found that none was demeaning. Id. Rather, in his view, the emails showed that the plaintiff was “upset about her reports being returned to her and felt that she was not being treated as an adult who was able to work independently.” Id.

         According to Clancy, the plaintiff believed that Briggs “was being too picky in her case review, ” and the plaintiff simply “did not like the way Briggs communicated with her.” First Clancy Aff. at 2. The plaintiff “stated that Briggs had a ‘tone' in her emails.” Id. Clancy advised both the plaintiff and Briggs “to simply read their emails and not to ‘read into' the emails.” Id. at 3. According to Clancy, the plaintiff and Briggs left the meeting with an agreement to “begin a new and better supervisor/subordinate relationship.” Id. The plaintiff “agreed [to] treat Briggs with more respect and Briggs agreed to communicate more clearly what changes needed to be made in reports to improve their quality.” Id.

         The plaintiff requested bereavement leave, from April 14, 2008 through April 16, 2008, after the death of her father on March 24, 2008. Warren Aff. at 7. On April 8, 2008, Briggs called the plaintiff's “cell phone and questioned whether [she] would be able to complete the work assigned [with Assigned Completion Dates] of April 16, 2008.” Id. The plaintiff was told that, if she could not complete the work timely, Briggs would not approve her leave request. Id. Apparently the plaintiff's leave request was approved anyway, as a mid-year review previously scheduled for April 15, 2008, was rescheduled for April 17, 2008. See id. at 7-8.

         A telephone call from Briggs to the plaintiff on or about April 23, 2008, turned into a heated exchange. See Pl.'s Dep. at 36:20-38:1. Briggs left the plaintiff a voicemail message in the afternoon, and gave the plaintiff “a window of ten to fifteen minutes to return the call[.]” Warren Aff. at 8. She returned Briggs' call “within seven or eight minutes, ” and Briggs interrupted their conversation to take a personal call from her daughter's school on her other phone. Id. Briggs had called the plaintiff about “[w]ork on [a] case [which had] not been done correctly, and . . . asked [the plaintiff] several background questions so [she] could ascertain what needed to be done to have the case completed correctly.” First Briggs Aff. at 3. Briggs opined that the plaintiff should have visited the subject of the investigation without making an appointment in advance, and that the plaintiff should have inquired into particular matters. Warren Aff. at 9. The plaintiff disagreed, and believed that the subject deserved the courtesy of advance notice. Id. at 8-9. Furthermore, the plaintiff considered Briggs' questions “badgering.” Id. at 9. “[A]t some point [the plaintiff] began to yell her responses through the phone.” First Briggs Aff. at 3. According to Briggs, the plaintiff explained “that she felt harassed and browbeaten” because of Briggs' questions, and for this reason, the plaintiff “was yelling.” Id. Before the conversation ended, the plaintiff told Briggs that she “had had enough [of Briggs'] badgering.” Warren Aff. at 9. Briggs then directed the plaintiff to cancel her appointments for the following day and to meet her at the Annandale office on the following morning. Id.; First Briggs Aff. at 3.

         SAC JoAnn Johnson attended the April 24, 2008 meeting at the plaintiff's request and with Briggs' consent. Def.'s Mem., Ex. 10 (“Johnson Aff.”) at 2. Briggs informed Johnson “that [the plaintiff] had been rude to her on the telephone and she wanted to discuss the matter face-to-face.” Johnson Aff. at 2. According to Johnson, Briggs and the plaintiff “were in disagreement” about the handling of an investigation, and both “became upset during [their] conversation” on the previous day. Id. at 3. Both Briggs and the plaintiff “raise[d] their voices at each other during their meeting; both calmed down with Johnson's intercession. Id. Briggs sometimes would gesture by raising her hands to signify “STOP . . . as if she [were] speaking to a child, when she did not want to hear with [the plaintiff] was saying.” Id.; see Warren Aff. at 10. Nevertheless, the meeting appeared to have ended cordially. See Johnson Aff. at 3.

         The plaintiff also made her issues with Briggs known to her fourth-level supervisor. On May 5, 2008, she met with Dininger, Warren Decl. at 15, and shared with him four emails from Briggs. Def.'s Mem., Ex. 15 (“First Dininger Aff.”) at 2. Based on his review, none of these emails “appear[ed] to be demeaning.” Id. She also discussed her concern that Briggs “was being disrespectful and unprofessional to her in conversations, ” in part, because Briggs “was raising her voice.” Id. at 3. The plaintiff explained that she behaved “according to the way she was treated by others, ” suggesting that, if Briggs raised her voice, the plaintiff would raise her voice in return. Id. Dininger observed that “there are two very strong personalities involved” here, and the plaintiff believed herself “experienced in the field and did not appreciate . . . feedback from . . . Briggs.” Id. at 4.

         Apparently the relationship between the plaintiff and Briggs did not really improve. Beginning in May 2008, Briggs arranged to have a third party present at weekly meetings with the plaintiff “due to the often hostile, rude and confrontational behavior of the [plaintiff].” First Clancy Decl. at 4. Clancy sat in on two of their meetings in August and September 2008, id. at 3-4, and based on her observations, the plaintiff “conducted herself professionally” but “seem[ed] to be easily agitated and look[ed] for reasons to disagree with or criticize [Briggs].” Id. at 3. According to Johnson, Briggs discussed the problems she was having with plaintiff with other SACs, such that the plaintiff “became the butt of the SACs' jokes[.]” Johnson Aff. at 4. When the plaintiff learned of this, she attributed Briggs' comments to her inability to transfer to another team as she had requested. Pl.'s Dep. at 62:16-24.

         B. April 17, 2008 Mid-Year Review

         The plaintiff's mid-year review should have taken place on April 17, 2008, Compl. ¶ 21, yet according to the plaintiff, it did not occur, Pl.'s Dep. at 38:19-24. She does concede that she had a formal meeting with Briggs for a review on April 17, 2008, see Warren Aff. at 13, but the plaintiff “was not given a rating of record” at that time for the following reason:

[The plaintiff] graduated from the Basic Investigator Course (BIC) on October 19, 2007. She was placed on standards 90 days after her graduation from the BIC (January 15, 2008). [She] did work in the field from October 19, 2007 to January 15, 2008, not under standards [because all agents are granted] 90 days from graduation to work not under standards. [The plaintiff] was placed on standards January 15, 2008, and had to be on standards 90 more days before she could be rated. This is why she was not given a rating of record at the mid-year review.

         Def.'s Mem., Ex. 10 (“Second Briggs Aff.”) at 3; see Pl.'s Dep. at 38:21-24; First Clancy Aff. at 4. In other words, at the time of the mid-year review, the plaintiff had been working to standards fewer than 90 days, too short a period to receive a performance rating.

         Briggs began “by [remarking] that [the plaintiff] was a first-year agent [who] had not been treated as a new agent.” Warren Aff. at 13. Rather, Briggs stated, the plaintiff “had been given complex and counter intelligence cases that were above the level of [cases the plaintiff's] peers were working.” Id. Briggs also remarked that “there was new agent training [the plaintiff] had not had. Id. at 14. Although the plaintiff alleges that she had not been provided “the training she should have received as a first-year agent, ” Compl. ¶ 20, elsewhere the plaintiff stated that Briggs arranged for training in May 2008, Warren Aff. at 14. Briggs stated that the plaintiff “was provided training on May 5, 2008 on Case Coverage, ” enrolled in a Report Writing Workshop on July 25, 2008, and was provided training “at a team meeting on June 18, 2008 on Financial Coverage, Foreign Travel/Foreign Contact Coverage and Mental Health Coverage.” First Briggs Aff. at 3-4; see Def.'s Mem., Ex. 12 at 9. At this meeting, Briggs briefly mentioned timeliness and quality of case work. Warren Aff. at 4.

         According to the plaintiff, “[a]t no time between February 26, 2008 and August 15, 2008 did . . . Briggs sit down and discuss [her] performance levels with [her], ” either during “the required weekly meetings nor . . . when stats came out once a month at team meetings.” Id. at 16. She claimed that Briggs “never discussed . . . monthly statistics which would [have] include[d] quality, timeliness, production and overall competencies.” Id. Not until September 4, 2008 did the plaintiff receive performance statistics from Briggs, and these covered the period from January 2008 through August 2008. Id.

         C. Hold ...


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