United States District Court, District of Columbia
JEAN D. FRANCIS, Plaintiff,
R. ALEXANDER ACOSTA, Secretary of the U.S. Department of Labor Defendant.
ROSEMARY M. COLLYER United States District Judge.
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.
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. 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
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.
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
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.
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.
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. 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
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].
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.
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.
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. ¶
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.
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].
point did Dr. Francis seek permission to engage in private
studies or work for APUS on her government computer while
working at DOL.
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.
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.
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
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).
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)).
preliminary issues need immediate attention.
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 ...