Francis v. Acosta

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER United States District Judge.

         Jean D. Francis, Ph.D, sues R. Alexander Acosta in his official capacity as Secretary of the Department of Labor for alleged discrimination and retaliation in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. The government moves for summary judgment. Having fully considered the Parties' arguments and the record after discovery, the Court will grant the government's motion.

         I. BACKGROUND

         Dr. Jean Francis is an African-American female of West Indian descent who was over the age of 40 at all times relevant to this case and who engaged in protected activity by asserting rights to equal employment opportunity (EEO). Def.'s Statement of Undisputed Material Facts (Def.'s SOF) [Dkt. 27] ¶ 2.^[1] Dr. Francis joined the Department of Labor (DOL) in June 2007 to serve as Chief of the Branch of Budget Formulation and Implementation in the Office of Management, Administrative and Planning, Employment Standards Administration (ESA), a GS-15 position. See Francis v. Perez, 970 F.Supp.2d 48 (D.D.C. 2013) (Francis I), aff'd Francis v. Perez, No. 13-533, 2014 WL 3013727 (D.C. Cir. May 16, 2014) (Francis II).

         Dr. Francis' tenure as Chief was not entirely successful and, on June 22, 2009, DOL reassigned her “to a non-supervisory position at the same grade level by creating a Special Assistant [non-supervisory] position for her in the Office of the Director.” Francis, 970 F.Supp.2d at 58. In November 2009, DOL was reorganized in part, the ESA was eliminated as a separate agency, and Dr. Francis was re-assigned to the Departmental Budget Center (Budget Center or DBC) as a GS-15 Budget Analyst Team Lead. For the period relevant to Dr. Francis' Complaint, the Budget Center was responsible for overseeing DOL's budget submission and presentation to the Office of Management and Budget and to Congress. According to her position description as a Budget Analyst Team Lead, one of Dr. Francis' duties was to develop, plan, and implement “program strategies that are critical to the development of Congressional and Presidential budget justifications for the Department.” Def.'s SOF ¶ 7. Dr. Francis was also subject to “administrative and policy direction” concerning “financial management project priorities and objectives in the organization, ” established by the Budget Center's Director, Geoffrey Kenyon, who was Dr. Francis' first-line supervisor. Id. ¶ 8. T. Michael Kerr, Assistant Secretary for Administration and Management, was her second-line supervisor.

         Shortly after Dr. Francis arrived at the Budget Center, Assistant Secretary Kerr introduced a new program whereby the Budget Center was to emphasize customer service and outreach from the Budget Center to its internal-DOL customers as a primary focus of the office. Dr. Francis was assigned outreach to the Agency Budget Officers (ABOs) as a primary focus of her duties.

         In Fiscal Year 2010 (FY 2010), Dr. Francis received a “Highly Effective” rating. She received a rating of “Effective” for FY 2011 and FY 2012. However, in FY 2012, as regarding that part of her essential duties related to “Competency Building for ABOs, ” Dr. Francis received the lesser rating of “Meet.” On November 5, 2012, Dr. Francis met with Mr. Kenyon and expressed her dissatisfaction with the “Meet” rating, at which point Mr. Kenyon advised her that she needed to “build trust” with the Agency Budget Officers in order to raise her rating; he suggested that she connect with them by taking them out to lunch. Id. ¶ 14. Finding the suggestion demeaning, Dr. Francis complained to Mr. Kerr.

         Although Mr. Kenyon remained her official supervisor and responsible for her performance review, Dr. Francis served on an interagency detail to the Department of Justice (DOJ) from June 2012 to March 2013. In April 2013, upon her return, Dr. Francis met with Mr. Kenyon to discuss her new work assignments at the Budget Center. Among other items, Mr. Kenyon directed Dr. Francis to develop a training plan of subjects needed by the Agency Budget Officers. This training plan “was to be a continuation of an assignment she had completed successfully in 2011, ” to wit, a DOL-wide training program on budget formulation and execution. Id. ¶ 16.

         Mr. Kenyon sent an email to Dr. Francis on May 10, 2013, to follow up on their meeting and to identify those assignments on which he wanted an update, including the training plan. Dr. Francis responded on the same date, asking Mr. Kenyon to provide his “vision” for the training plan. Id. ¶ 17. Mr. Kenyon's email response stated that his vision was the same one he had outlined during their April meeting, which was for Dr. Francis to develop training plans specific to the needs of Agency Budget Officers that DOL staff could provide internally during FY 2013.^[2] He told Dr. Francis that the topics for training should be guided by “discussions with the ABOs regarding where they think their offices need improvement/development.” Def.'s SOF ¶ 18 (marks omitted).

         Mr. Kenyon sent a “follow-up” email to Dr. Francis on May 24, 2013, inquiring about the status of her outstanding work assignments. There is no evidence that she responded or updated him. On June 3, 2013, Mr. Kenyon asked directly, “‘how are we coming with the training plan?'” Id. ¶ 20. Dr. Francis sent him a copy of her training plan by email on June 4. On June 6, 2013, Mr. Kenyon thanked Dr. Francis for the plan, which he found “helpful” but “not what [he] was looking for or what [they] had discussed” in April. Id. ¶ 22. He again asked Dr. Francis to meet with each Agency Budget Officer and have them identify areas in which they would like to develop more capability. Further, Mr. Kenyon asked Dr. Francis to complete these meetings by June 19 and to develop a training plan along the lines of their original discussion. The proposed schedule conflicted with planned leave for Dr. Francis. Therefore, she sought informal EEO counseling soon thereafter, which evolved into a formal EEO complaint in September 2013 based in part on this conduct. See Def.'s Mem., Ex. 2, Formal EEO Compl. (Sept. 12, 2013) [Dkt. 27-1].

         Dr. Francis met directly with Mr. Kenyon on June 27, 2013, to discuss her midyear review. At that meeting, they again discussed the need for the training plan. Nonetheless, neither at the end of the rating period in September 2013 nor at the end of calendar year 2013 had Dr. Francis met with the Agency Budget Officers or completed a new training plan based on their needs and what DOL could provide with existing resources. Def.'s SOF ¶¶ 23-24.

         In September, Mr. Kenyon directed Dr. Francis to work with her colleague, Andrew Rider, on a “Departmental e-Business Suite (DEBS) training initiative.” Id. ¶ 25. However, Dr. Francis produced no work product for the DEBS training project, although Mr. Kenyon observed her working on her computer. See id.; Def.'s Mem., Ex. 13, Dep. of Andrew Rider (Rider Dep.) at 63-64.

         In the late summer or early fall of 2013, Mr. Kenyon spoke with Edward Hugler, Deputy Assistant Secretary for Operations, about a transfer for Dr. Francis to a position “where [she] might be more successful.” Def.'s SOF ¶ 27. During the course of that conversation, Mr. Kenyon stated that Dr. Francis' work performance had been declining although she appeared busy at her computer. Mr. Hugler suggested an inquiry into Dr. Francis' computer use by DOL's Office of the Chief Information Officer (OCIO) and Mr. Hugler set that inquiry into motion. Id. ¶ 28.

         OCIO reviewed Dr. Francis' web history and searched her computer hard drive, examining records from late March 2013 (when she returned from DOJ detail) to December 2013. See Def.'s Mem., Ex. 15, OCIO Security DOL/DBC Inappropriate Use Inquiry Analysis Report T6599 (OCIO Report) [Dkt. 27-1]. During that time period, Dr. Francis had spent much of her work day on websites associated with the American Public University System (occasionally APUS), an online university; 490 documents in personal folders on Dr. Francis' computer related largely to her studies and work with that University. Def.'s SOF ¶ 30. In fact, starting in March 2013, Dr. Francis had taken several courses with APUS, including Faculty Candidate Training Course; Graduate Faculty Certification Course; APUS 110-Integration of Multimedia to Enhance Your Classroom; Fostering Teaching Excellence Within the Community of Inquiry Framework; APUS 214-Effective Time Management in Online Instruction; and APUS 105-Online Library Resources Workshop. Also revealed on her computer was an April 17, 2013 letter from APUS offering Dr. Francis a position as an adjunct faculty member. In August 2013, Dr. Francis began compensated work as a professor for the American Public University System, and documents and web history from Dr. Francis' computer showed that she was grading student papers on her work computer during work hours. Id. ¶¶ 33-34.

         During Dr. Francis' tenure at DOL, the Department had a policy governing employees' use of information technology (IT) which stated, “Employees are authorized limited personal use of DOL office equipment. This personal use must not result in loss of employee productivity or interference with official duties.” Id. ¶ 36 (quoting Def.'s Mem., Ex. 19, DOL Manual Series (DLMS) 9 - Chapter 900, Appropriate Use of IT (IT Policy) [Dkt. 27-1])). The IT Policy further provided as an example of inappropriate use “[u]se for commercial purposes or in support of ‘for-profit' activities or in support of other outside employment or business activity (e.g., consulting for pay, sales or administration of business transactions, sales of good or services).” Id. As a DOL senior manager, Dr. Francis had completed four separate training courses on the Department's computer system which specifically referred to the IT policy and warned employees that they were responsible for following DOL's IT policies and procedures. Id. ¶ 38; Def.'s Mem., Ex. 20, Jean Francis Learning History [Dkt. 27-1].

         At no point did Dr. Francis seek permission to engage in private studies or work for APUS on her government computer while working at DOL.

         On December 5, 2013, Mr. Kenyon rated Dr. Francis' performance as “Minimally Satisfactory” because she had not completed the training plan for Agency Budget Officers that he had assigned in April.

         Mr. Kenyon issued a Notice of Proposed Removal (Notice) to Dr. Francis dated February 21, 2014. Id. ¶ 40. The Notice did not rely on her performance, as reflected in her most recent rating, but cited two different reasons for her removal: (1) Excessive Use of Government Equipment for Personal Unofficial Purposes; and (2) Improper Use of Official Work Hours for Personal Unofficial Purposes. See Def.'s Mem., Ex. 22, Notice of Proposed Removal [Dkt. 27-1]. Her proposed removal was sustained on internal appeal and she was removed from federal service effective May 9, 2014. Def.'s SOF ¶ 43.

         Dr. Francis now alleges, based on the facts above, that DOL discriminated against her due to her sex, national origin, and race (Count I), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She also alleges discrimination because of her age (Counts IV and V), in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621. Finally, she alleges retaliation and a hostile work environment (Counts II, III, and VI) in violation of both statutes. See Compl. [Dkt. 1]. The government moves for summary judgment.^[3]

         II. LEGAL STANDARD

         Rule 56 of the Federal Rules of Civil Procedure states that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is “material” if it is capable of affecting the substantive outcome of litigation. Anderson, 477 U.S. at 248. A dispute is “genuine” if there is sufficient admissible evidence such that a reasonable jury could return a verdict for a non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

         Summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the nonmoving party's favor. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252. The nonmoving party must point to specific facts showing that a genuine issue of material fact requires trial. Celotex, 477 U.S. at 324. The nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50. “While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of his obligation to support his allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.” Hussain v. Principi, 344 F.Supp.2d 86, 94 (D.D.C. 2004) (quoting Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. March 31, 1998)).

         III. ANALYSIS

         Certain preliminary issues need immediate attention.

         First, Dr. Francis previously sued the Department of Labor in 2012 following her 2009 removal as Chief of the Branch of Budget Formulation and Implementation at ESA, alleging discrimination, harassment, and retaliation based on her national origin (West Indies) and religion (Seventh Day Adventist) in violation of Title VII. Judge Ellen Segal Huvelle of this Court dismissed her complaint and was affirmed by the D.C. Circuit. See Francis II, 2014 WL 3013727, at *1 (“The merits of the parties' positions are so clear as to warrant summary action.”). To the extent that Dr. Francis continues to reference these once-contested events without recognizing that they have been fully litigated, too much time has passed between those events and the relevant events in this case for the former to have caused the latter. See ...