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Furey v. Mnuchin

United States District Court, District of Columbia

September 24, 2018

HELEN FUREY, Plaintiff,
v.
STEVEN T. MNUCHIN, Secretary, U.S. Department of Treasury, Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON JUDGE

         This case arises out of plaintiff Helen Furey's termination from her employment as an Information Technology ("IT") Specialist at the United States Department of Treasury. Plaintiff claims that the agency violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), when it subjected her to a hostile work environment; discriminated against her based on her race, national origin, and age; and retaliated against her for engaging in protected activity under both statutes. Compl. [Dkt. # 1] ¶¶ 84-115. The Merit Systems Protection Board ("MSPB" or "Board") upheld the agency's decision to remove plaintiff from her position, and plaintiff is also challenging that determination as arbitrary and capricious under 5 U.S.C. § 4303. Id. ¶¶ 116-19.

         Defendant has moved for summary judgment on all counts, Def's Mot. for Summ. J. or, Alternatively, Partial Mot. to Dismiss [Dkt. # 13] ("Def's Mot."); Mem. in Supp. of Def's Mot. [Dkt. # 13] ("Def's Mem."), and plaintiff has opposed the motion. Pl.'s Mem. of P. & A. in Opp. to Def.'s Mot. [Dkt. # 15] ("Pl.'s Opp.").[1] Plaintiff has not pointed to any evidence to show that defendant's justification for firing her - namely, unacceptable work performance - was a mere pretext for discrimination based on age, race, or national origin, or in retaliation for complaining about the allegedly unlawful treatment. Further, the Court sees no reason to overturn the MSPB's determination to uphold plaintiffs removal since the Administrative Judge's decision was supported by substantial evidence and had a rational basis in the law. Therefore, the Court will grant defendant's motion for summary judgment.

         BACKGROUND

         I. Factual Background [2]

         Plaintiff identifies herself as a fifty-year old Asian woman of Chinese national origin. Compl. ¶ 16. She began working for the Department of Treasury on January 31, 2010 as an IT Specialist in the Department Offices Operations division of the Office of the Chief Information Officer. Statement of Facts and Genuine Issues [Dkt. # 15] ("Pl.'s SOF")¶2; Administrative Record [Dkt. #17-1] ("AR") at 64.[3]

         For the rating period beginning on October 1, 2012 and ending on September 30, 2013, plaintiff received satisfactory reviews based on her performance plan. Pl.'s SOF ¶ 3; see AR at 86-97, Ex. AtoDef'sMot. [Dkt. # 13-2] (together, "FY2013 Performance Appraisal"). Although her supervisor, Chakravarthy Susarla, rated her as "fully successful"[4] on most elements, he observed that "it was not very clear if [plaintiff] had [a] complete understanding and ownership of the systems" for which she was responsible. FY2013 Performance Appraisal at 10. Further, Susarla observed that plaintiff "worked at a task level instead of working at the project level and needed guidance and direction to make progress." Id.

         In August 2013, plaintiff was put on a detail as an IT Specialist (Applications Software) in the Office of the Chief Information Officer, ACIO Enterprise Business Solutions ("EBS"), Enterprise Content Management ("ECM"), and her position description remained the same. Pl.'s SOF ¶¶ 4-5; AR at 65-71 ("IT Specialist (Applications Software) Job Description"). She became one of at least four project managers in that department. Pl.'s SOF ¶ 6; see AR 106, 109-10 (mentioning Bill Marcinko, Sean Fox, and Camille Smith as other project managers). At that time, her supervisor was James Graham, an IT Program Manager, and her second-level supervisor was again Chakravarthy Susarla, Director of Applications, ECM and Web Solutions. Def's Statement of Material Facts [Dkt. # 13-1] ("Def's SOF") ¶ 4; Pl.'s SOF ¶¶ 7-8; EEO Investigative Aff of James Graham, AR at 380-408 ("Graham EEO Aff") ¶ 3 (identifying himself as "Helen Furey's Supervisor" and describing the chain of command); EEO Investigative Aff. of Chakravarthy Susarla, AR 410-14 ("Susarla EEO Aff") ¶ 4 (describing how plaintiff "reported to Mr. James Graham, and Mr. Graham has reported to [him]").

         While she was on this detail, plaintiff was given a new performance plan that included many of the same critical elements as the previous plan. See Def's SOF ¶¶ 6-7; Pl.'s SOF ¶ 5; see AR 73-85, Ex. B to Def's Mot. [Dkt. # 13-3] (together, "FY2014 Performance Plan"); see also IT Specialist (Applications Software) Job Description. The critical elements relevant to this case, for which plaintiff was later rated at an unacceptable level, are Critical Element # 1, Communication (written and oral); Critical Element # 4, Technical Competency; Critical Element # 5, Expand Shared Service Offerings; and Critical Element # 6, Improve, Support and Maintain OCIO/EBS Program Operations. See FY2014 Performance Plan. The performance plan detailed the prerequisites necessary to achieve certain ratings. See Id. Plaintiff received the new plan on March 11, 2014, and she "reviewed and discussed the performance requirements with" her supervisor. Pl.'s SOF ¶ 5; see FY2014 Performance Plan at 11.

         While supervising plaintiff, Graham noticed deficiencies in her work product. Decl. of James Graham, AR at 1071-88 ("Graham Decl.") ¶ 27. For example, plaintiff was not submitting required project status reports or following standard project management practices, and other employees had complained to Graham about plaintiffs ineffective performance as a project manager. Id. ¶¶ 27-30; see also AR at 103-13, Ex. C to Def's Opp. [Dkt. # 13-4] (together, "Notice of Unacceptable Performance") at 1. As a result, Graham removed her as a project manager from one of her assignments and replaced her with someone else. Graham Decl. ¶ 30; Notice of Unacceptable Performance at 1. And on June 11, 2014, Graham met with plaintiff for her mid-year review and relayed his concerns about her deficient performance in several critical elements. Graham Decl. ¶ 32; Notice of Unacceptable Performance at 1.

         According to Graham, plaintiff continued to exhibit the same fundamental deficiencies of not managing her projects adequately and failing to "escalat[e] risks" despite his best efforts at counseling her. Graham Decl. ¶ 33. So, on August 27, 2014, Graham sent plaintiff a notice informing her that she had been performing at an unacceptable level with regard to multiple critical elements in her performance plan. Def's SOF ¶ 8; Pl.'s SOF ¶ 16; see Notice of Unacceptable Performance. He then placed plaintiff on a 90-day Performance Improvement Plan ("PIP").[5]Def's SOF ¶ 8; Pl.'s SOF ¶ 16; see Notice of Unacceptable Performance. The notice outlined various projects plaintiff needed to complete, as well as how to complete those projects satisfactorily in order to improve her performance and receive, at least, "fully successful" reviews at the end of her PIP period. See Notice of Unacceptable Performance at 4-10. It also warned plaintiff that "failure to demonstrate acceptable performance in any critical element will result in . . . reduction-in-grade, reassignment or removal from the [a]gency." Id. at 1 (emphasis added).

         Plaintiff contacted an Equal Employment Opportunity ("EEO") counselor on approximately September 22, 2014, alleging that Graham discriminated against her on the basis of her age, race, sex, and national origin by placing her on the PIP. Def's SOF ¶ 9; Pl.'s SOF ¶ 22;[6]Ex D. to Def's Mot. [Dkt. # 13-5] ("EEO Counselor Report") at 1. And plaintiff sent the EEO counselor an informal complaint making the same allegations in early October. Def's SOF ¶ 11; see Ex. E to Def's Mot. [Dkt. # 13-6]. The counselor spoke with Graham about plaintiffs allegations on October 8, 2014, see Def's SOF ¶ 10; Pl.'s SOF ¶ 23; see EEO Counselor Report at 3, and on the same day, Graham emailed Susarla and Debra Vess, one of Graham's supervisors, about it. See Pl.'s SOF ¶¶ 23-24; AR at 882.

         On October 21, 2014, plaintiff filed a formal EEO complaint with the Department of Treasury alleging that the agency "discriminated against [her] on the basis of [her] age, race, and national origin." Def's SOF ¶ 13; Pl.'s SOF ¶ 25; see Ex. F to Def's Mot. [Dkt. # 13-7] ("Formal EEO Complaint"). The agency accepted plaintiffs formal complaint for investigation on November 3, 2014. Def's SOF ¶ 14; see Ex. G to Def's Mot. [Dkt. # 13-8]. Graham submitted his initial affidavit to the EEO investigator on December 12, 2014. Pl.'s SOF ¶ 26; see Graham EEO Aff.

         Plaintiff received her performance appraisal for the 2014 fiscal year on December 22, 2014, and the review specified that plaintiff did not successfully complete the PIP. Defi's SOF ¶ 15; see Ex. H to Defi's Mot. [Dkt. # 13-9] ("FY2014 Performance Appraisal"). On January 15, 2015, Graham emailed plaintiff to inform her that she was no longer eligible for the telework program because her performance was not at the "fully successful" level, and she did not pass her PIP. Def.'s SOF ¶ 16; see Ex. I to Def.'s Mot. [Dkt. #13-10].

         On February 2, 2015, plaintiff amended her EEO complaint to add a claim alleging that her supervisors, Graham and Susarla, retaliated against her by giving her an unsatisfactory performance evaluation and removing her from telework because she had engaged in protected EEO activity. Def.'s SOF ¶ 17; Pl.'s SOF ¶ 27; see Ex. J to Def.'s Mot. [Dkt. #13-11] ("Letter of Acceptance"). Graham submitted a supplemental affidavit as part of the EEO investigation on March 23, 2015, Pl.'s SOF ¶ 28; see Suppl. EEO Investigative Aff. of James Graham, AR 442-53 ("Graham Suppl. EEO Aff"), and Susarla also provided one but the date she submitted it is unknown. Pl.'s SOF ¶ 28; see Susarla EEO Aff.

         On March 23, 2015, Graham issued a Notice of Proposed Removal to plaintiff informing her that he was recommending her removal from her position for unsuccessful performance in five critical elements during the improvement period. Def.'s SOF ¶ 18; Pl.'s SOF ¶ 32; see AR at 114-27, Ex. K to Def.'s Mot. [Dkt. # 13-12] (together, "Notice of Proposed Removal"). The Notice of Proposed Removal named Susarla as the deciding official in the matter, and it stated that plaintiff had fourteen days to reply to the notice orally or in writing. Notice of Proposed Removal at 11. Plaintiff submitted a written and oral response to the notice in mid-April, Pl.'s SOF ¶¶ 49-50; see AR 204-09. She also provided additional information after she was notified that she could respond to the supplemental information Graham had submitted. Pl.'s SOF ¶¶ 51-52; see AR at 303-10.

         On June 29, 2015, Susarla issued the decision to terminate plaintiff from her position. Def.'s SOF ¶ 19; Pl.'s SOF ¶ 53; see AR 315-23, Ex. L to Def.'s Mot. [Dkt. # 13-13] (together, "Decision to Remove"). Susarla concluded that plaintiffs removal was warranted "because [her] performance during the improvement period in two Core Competency Critical Elements and two Performance Commitment Critical Elements was unacceptable." Decision to Remove at 1. A few days later, the agency issued a Standard Form 50 removing plaintiff from her position effective June 29, 2015. Pl.'s SOF ¶ 54; AR at 72.

         II. Procedural Background

         On July 16, 2015, plaintiff appealed her removal to the Merit Systems Protection Board ("MSPB") under the Civil Service Reform Act of 1978 ("CSRA"). See Def.'s SOF ¶ 20; Ex. M to Def.'s Mot. [Dkt. # 13-14] ("MSPB Appeal"); see also 5 U.S.C. §§ 4303(e), 7701, 7702(a). The filing was a "mixed case appeal," which is an appeal filed with the MSPB "that alleges that an appealable agency action was effected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national original, disability, age, or genetic information." 29 C.F.R. § 1614.302(a)(2); see also 5 C.F.R §§ 1201.151-1201.175; 5 U.S.C. §§ 4303(e), 7701, 7702(a). Jf an employee chooses to file a mixed case appeal, the Board "shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures under section 7701." 5 U.S.C. § 7702(a).

         In her appeal, plaintiff denied that her performance was deficient, and she claimed that "her performance standards were not valid and not communicated to her; the PIP did not provide her with a reasonable opportunity to improve; the PIP tasks were not related to the critical elements of her performance plan; and her removal was discriminatory on the basis of age, race and national origin as well as retaliatory because of her prior EEO activity." MSPB Decision at 6; see also MSPB Appeal at 6.

         Before the Board, the employer must demonstrate that its reasons for firing the employee based on unacceptable performance are supported by substantial evidence. 5 U.S.C. § 7701(c)(1)(A). Further, an agency's action cannot be sustained if the employee shows that the decision was based on any prohibited personnel action, which includes unlawful discrimination and retaliation. 5 U.S.C. §§ 2302(b)(1), (8)-(9).

         An Administrative Judge upheld the agency's action on February 2, 2017. Def's SOF ¶ 22; see MSPB Decision; 5 U.S.C. § 4303; 5 C.F.R. §§ 432.104-06. The judge found that the agency had proven by substantial evidence that it had established performance standards for plaintiffs position, that they had been communicated to her, and that the PIP requirements reflected those performance standards. MSPB Decision at 9-10. The judge also concluded that plaintiff had a reasonable opportunity to improve, rejecting plaintiffs argument that she was deprived of the necessary opportunity because she was on a detail with a new performance plan. Id. at 12-23. As to plaintiffs affirmative defenses, the judge determined that plaintiffs removal was not "motivated, even in part," on the basis of "age, race, or national origin rather than her well-documented poor performance," and that plaintiff had not demonstrated any inference of retaliation. Id. at 27, 29.

         Pursuant to 5 U.S.C. § 7702(b)(1), plaintiff petitioned the Equal Employment Opportunity Commission ("EEOC") to consider the Board's final decision with regard to the employment discrimination and retaliation claims, and the EEOC concurred with the Board's determination. Def's SOF ¶ 23; see Ex. P to Def's Mot. [Dkt. # 13-15]. At that point, the MSPB's decision became judicially reviewable, 5 U.S.C. § 7702(b)(5)(A), and plaintiff had the right to bring all of her causes of action to the district court. Id. § 7702(e)(3); id. § 7703(c).

         On September 8, 2017, plaintiff filed a nine-count complaint in this Court. See generally Compl.

• Count 1: Title VII - National Origin Discrimination - Disparate Treatment
• Count 2: Title VII - National Origin Discrimination - Hostile Work Environment
• Count 3: Title VII - Race Discrimination - Disparate Treatment
• Count 4: Title VII - Race Discrimination - Hostile Work Environment
• Count 5: Title VII - Retaliation

• Count 6: ADEA - Age Discrimination - Disparate Treatment

• Count 7: ADEA - Age Discrimination - Hostile Work Environment
• Count 8: ADEA - Retaliation
• Count 9: 5 U.S.C. § 4303 - Wrongful Termination

Compl. ¶¶84-115.

         Plaintiff claims that she was terminated because of her race, national origin, and age, and that she was fired in retaliation for making EEO complaints. Compl. ¶¶ 84-115. She also alleges that she was wrongfully terminated under 5 U.S.C. § 4303, and she seeks review of part of the MSPB's decision upholding her termination. Id. ¶¶ 116-19.

         Defendant moved for summary judgment on all counts. With respect to Counts 2, 4, and 7, the hostile work environment claims, defendant asserted that plaintiff had failed to exhaust her administrative remedies. Def's Mem. at 6-8. In response, plaintiff stated that she "is not contesting [d]efendant's argument with respect to her claims of hostile work environment or any unexhausted claims."[7] Pl.'s Opp. at 2 n.l. And she makes no arguments in her opposition about a hostile work environment.[8] See Id. Therefore, the Court will grant defendant's motion for summary judgment on Counts 2, 4, and 7.[9] As to the remaining Title VII and ADEA counts, the Court will also grant defendant's motion since plaintiff has failed to come forward with sufficient evidence to show that defendant's reasons for terminating her were a mere pretext for discrimination based on her national origin, race, or age, or in retaliation for making EEO complaints. And the Court will grant summary judgment in favor of defendant on Count 9 since the Administrative Judge's decision was not arbitrary or capricious.

         STANDARD OF REVIEW

         Plaintiffs complaint arises out of a mixed case appeal she brought to the MSPB. That appeal not only challenged an adverse employment action taken - her termination - but it also claimed that the action was taken, in whole or in part, because of discrimination and retaliation prohibited by Title VII and the ADEA. See Perry v. Merit Sys. Protection Bd, 137 S.Ct. 1975, 1980 (2017) (describing a "mixed case"); see also Butler, 164 F.3d at 638. "Although [MSPB] decisions are generally reviewed by the Court of Appeals for the Federal Circuit, 'mixed cases' that involve both MSPB appeals and discrimination claims ... are reviewed in federal district court" Vickers v. Powell, 493 F.3d 186, 192 (D.C. Cir. 2007). However, the district court applies different standards of review to each claim. As the D.C. Circuit has explained:

On the discrimination claim, the complainant "shall have the right to have the facts subject to trial de novo by the reviewing court." The district court reviews nondiscrimination claims on the administrative record, and will set aside the MSPB's determination only when "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"; "obtained without procedures required by law, rule or regulation ...

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