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Jones v. United States Department of Veterans Affairs

United States District Court, District of Columbia

September 25, 2019




         Plaintiff Orlando Jones alleges that his former employer, Defendant Department of Veterans Affairs, discriminated against him in a variety of ways based on his race, gender, age, national origin, and disability, and then retaliated against him. Defendant has moved to dismiss Jones’s disability discrimination claims and for summary judgment on all others. Defendant argues that it took no materially adverse action against Jones and, moreover, that a reasonable jury could not infer that it subjected him to discrimination or retaliation. For the reasons explained below, the Court agrees with Defendant. It will therefore grant its motion and enter summary judgment in its favor.[1]

         I. Background

         A. Factual Background

         Jones, an African-American male, was a GS-14 Lead Program Specialist at the Department of Veterans Affairs Learning University (VALU), where he worked in the Office of Policy and Resource Management. Def.’s SMF ¶ 1. He is also a service-disabled veteran who suffers from hypertension, anxiety, memory loss, and other ailments as a result of his disability. Pl.’s SMF ¶ 1. Jones’s claims of discrimination and retaliation stem from a series of events at his workplace described below.

         1. Alice Muellerweiss’s Farewell Ceremony Comments

         In May 2012, Anita Wood, the Director of VALU’s Office of Policy and Resource Management and Jones’s direct supervisor, left the Department. Def.’s SMF ¶ 2. At a farewell ceremony for her that month, Jones and others spoke in front of approximately 70 other VALU staff. Pl.’s SMF ¶ 14. Alice Muellerweiss, who is Caucasian and served as Jones’s second-line supervisor, gave a presentation at the ceremony before Jones’s remarks. Id. ¶ 8; Def.’s SMF ¶ 20. Jones recalls that, after he stood up to make his remarks, Muellerweiss said “Oh, dag, here comes Orlando. I might as well take me a seat, he’s going to be forever.” Pl.’s SMF ¶ 14. According to Jones, the other employees in attendance laughed at Muellerweiss’s remark. Id. When asked about the ceremony, Muellerweiss did not recall making any comment towards Jones. Mot., Ex. 3 at 23:11–18. Other employees, however, recalled Muellerweiss addressing Jones, although they could not identify precisely what was said. Id., Ex. 1 at 23:12–15, Ex. 6 at 33:6–16, Ex. 8 at 57:13–17. Wood recalled feeling “uncomfortable” at the ceremony and was “taken back by” Muellerweiss’s comment. Id., Ex. 1 at 23:12–15.

         2. Meeting with Dr. Reginald Vance

         After Wood’s departure, Dr. Reginald Vance, who is African-American, became Acting Director of the Office of Policy and Resource Management. Def.’s SMF ¶ 26. In that capacity, Vance met with each member of the office one-on-one to “get a sense of the work that was being performed and how [he] could assist them with getting their work done.” Id., Ex. 5 at 11:3–11. Prior to his meeting, Jones claims that he prepared a portfolio of all the work that he had completed for the year to discuss with Vance. Pl.’s SMF ¶ 17. When he arrived for his meeting on May 8, 2012, Jones asserts that he was forced to wait for ten minutes while Vance was on the phone. Id. And once Vance got off, he told Jones, referring to the portfolio, “what did you give me this here for, ” and “what would make you think I’d care.” Id. (quoting Opp’n, Ex. 2 at 24:12–21; 25:6–11). Jones recalls that he responded by stating that, as a mentor, he thought Vance would care about his work and that he did not want to have any issues with him. Id. According to Jones, Vance then stood up, pointed a finger in Jones’s face, and yelled “let me tell you one goddamn thing.” Id. At that point, Jones asked that the meeting be rescheduled. Id.

         Following the meeting, Jones reported Vance’s behavior to “a number of individuals, ” including VALU’s human resources director and Arthur McMahan, an African-American male serving as the Deputy Dean for VALU. Id. ¶ 18; Def.’s SMF. ¶ 29. Jones did not receive any follow-up from his reports of the incident. Pl.’s SMF ¶ 20.

         Vance, for his part, recalls the meeting differently. In an email sent to his own supervisors summarizing the meeting, Vance reported that Jones had been “very hostile” and had attempted to “spur confrontation.” Def.’s SMF ¶ 28. Later, however, Vance conceded that Jones “showed no outward signs of hostility” afterwards. Id.

         Subsequently, around June 2012, Jones recalls that he learned through a secondhand source that McMahan had referred to him as a “smart ass” and “a know it all, ” and remarked that he did not like Jones. Pl.’s SMF ¶ 19. Jones did not discuss these remarks with McMahan or any other manager at VALU. Def.’s SMF ¶ 31. McMahan denied making any such comments. Id. ¶ 32.

         3. Jones’s Team’s Reorganization

         In 2012, VALU underwent a reorganization because certain individuals under investigation for improprieties “could no longer perform their jobs.” Def.’s SMF ¶ 33. Twenty-five VALU employees were moved in the reorganization. Defendant asserts that only one member of Jones’s team was reassigned elsewhere, Def.’s SMF ¶ 34, while Jones says it was “several” of them, Pl.’s SMF ¶ 21–22. In any event, Jones asserts that as a result of these reassignments-which happened between May and July 24-his team was understaffed, which left him to complete “a massive redrafting of core VA policies” on his own. Id. ¶ 22. At the time, Jones was not told why the reorganization took place. Id. ¶ 23.

         4. Christopher Burroughs’s Appointment as Director

         Following Wood’s departure from VALU, Jones and others applied for the vacant position of Director of the Office of Policy and Resource Management. Id. ¶ 25. Christopher Burroughs, an African-American female, was appointed to the position in late July 2012. Id. at 26. According to Jones, Burroughs told him that VALU had preselected her for the position. Id. Although Jones asserts that he was more qualified for the position, he did not receive an interview and was ranked last among the 40 applicants. Id. In contrast, Jones heard from others that McMahan and Vance lobbied in support of Burroughs. Id. After learning about the appointment process, Jones filed a complaint with the Department’s Inspector General alleging that the “selection process had been compromised.” Pl.’s SMF ¶ 26; see Opp’n, Ex. 13 at 3.

         When interviewed about Jones’s allegations, Muellerweiss noted that of the approximately 40 candidates for the position of Director, only the six top-scoring candidates received interviews. Opp’n, Ex. 15 at 7. She further stated that neither McMahan nor Vance had any influence on the ranking and that Jones’s race, gender, national origin, age, or prior filings with the Equal Employment Opportunity (EEO) office had no effect on his position as the lowest-ranked candidate. Id.

         5. Zelda Davis’s Three-Day Term as Acting Director

         In early August 2012, Burroughs, following her appointment as Director, informed her staff that the VALU leadership team would be working at an offsite facility for three days. Def.’s SMF ¶ 36. Burroughs appointed Zelda Davis, an African-American female serving as a GS-13 human resources manager, to be Acting Director in her absence. Pl.’s SMF ¶ 29. At the time, Jones, as a GS-14 employee, was higher-ranked. Id. Jones later asked Burroughs why Davis was appointed instead of him. Id. ¶ 30. He recalls that she “acknowledged that lower grade employees [were] not to be placed over higher ones” but that she had received approval from the legal department to do so. Id. According to Burroughs, she appointed Davis because of her knowledge of the office’s workload over the relevant three-day period. Def.’s SMF ¶ 37.

         On the first day that Davis was Acting Director, Jones left the building because of an episode of disability-related incontinence. Pl.’s SMF ¶ 31. Jones recalls that he was out of the office for approximately 35 minutes. Id. When he returned, he had received an email from Davis asking where he had been. Id. He replied stating, “I’m here, where are you?” Id. According to Jones, Davis then went to his office and “loudly demanded that he meet with her immediately in the conference room.” Pl.’s SMF ¶ 32. Once there, she pointed her finger in his face and yelled “Where in the hell were you? What are you trying to pull? What is this all about? I didn’t like your email.” Id. Jones recalls that he told her to stop yelling and that she was invading his personal space. Id. In response, Jones recounted, Davis moved closer to him and said, “What are you going to do?” Id. At that point, Jones tried to leave the conference room. Id. As he left, Davis followed him out and continued to yell at him within earshot of other employees in the office. Id.

         That same day, Jones reported what had happened to another director at VALU. Pl.’s SMF ¶ 34. He asserts that he was not asked to provide a statement and was not interviewed about the dispute, although Burroughs solicited statements from other staff about it. Id.; Opp’n, Ex. 8 at 47:14–15.

         Davis recalls the event differently. According to her, Jones had been away from the office “for hours” that morning. Def.’s SMF ¶ 38. She looked for Jones throughout the office building but did not find him. Id. When Davis returned from a break in the afternoon to find Jones in his office, she requested that he join her in the conference room. Id. ¶¶ 38–39. After asking where he had been, she recalls that Jones began to yell at her. Id. ¶ 39. According to Davis, Jones then opened the conference room door and told her loudly to stop yelling at him. Id. ¶ 40. When Davis replied that she had not raised her voice, he moved closer to her and again warned her to stop yelling at him. Id. Davis asked Jones whether he intended to hit her and called out to other employees that Jones was “trying to make a scene.” Id.

         Davis says she reported Jones’s behavior to Burroughs via email, copying Vance and McMahan. Id. ¶ 41. Davis also asserts that she emailed the office staff and apologized to anyone who witnessed the incident. Id. ¶ 42. She requested that any witnesses to the event “write a statement about what [they] observed” between her and Jones. Id. (quoting Mot., Ex. 26 at 2). At least two employees wrote emails to Davis describing their observations. Id. ¶ 42. One employee recalled that Jones was not at his desk that day from at least 11:00 a.m. until sometime after 1:00 p.m. Mot., Ex. 27. That employee also heard raised voices in the conference room and wrote that Jones stepped out of the room to ask whether other staff heard Davis instruct him not to raise his voice at her. Id. A second employee wrote that the incident “happened out of the blue” and that Davis had asked Jones to let her or others know when he was going to be away from his desk for a significant time. Def.’s SMF ¶ 42; Mot., Ex. 28.

         According to Burroughs, when she returned to the office, Jones “stomped around her office, ” Def.’s SMF ¶ 43-a fact that Jones denies, Pl.’s SMF ¶ 33-while expressing his disagreement with her decision to appoint Davis as Acting Director, Def.’s SMF ¶ 43. Burroughs recalls Jones telling her that she did not have the authority to appoint anyone to be his supervisor, especially someone of a lower level. Id. Burroughs claims he directed Davis to provide a statement and collected statements from other witnesses as well. Id. ¶ 44.

         6. Compensatory Time for Conference Work

         In August 2012, Jones volunteered to help coordinate a conference in Phoenix, Arizona, shortly before it was scheduled to begin. Pl.’s SMF ¶ 36. Given the urgency of the task, Jones asserts that Burroughs verbally approved his request to receive compensatory time for his work there. Opp’n, Ex. 2 at 35:22–36:3. While at the conference, Jones worked overtime. Pl.’s SMF ¶ 37. When he returned, Jones submitted his recorded compensatory time to Burroughs for processing. Opp’n, Ex. 18. Approximately three weeks later, Jones learned that he did not receive compensatory time when it did not appear in his paycheck. Pl.’s SMF ¶ 38.

         Burroughs asserts that she did not initially approve Jones’s compensatory time because Jones had been working a compressed schedule and thus had not worked the required 80 hours in the previous pay period. Def.’s SMF ¶ 55. But later, when the issues regarding Jones’s schedule were “straightened out, ” Jones received the compensatory time that he requested. Id. ¶ 56.

         7. Sick Leave Disputes

         Due to his service-related medical conditions, Jones often took sick leave on short notice. Pl.’s SMF ¶ 45. According to Jones, if Department employees need to take sick leave for more than three days, they may take it without giving notice as long as they notify their supervisor at the earliest opportunity and, upon their return, record the leave electronically. Id. Additionally, Jones asserts that sick leave requests for treatments related to a service-connected disability “cannot be denied, regardless of whether any sick leave is available.” Id. ¶ 47. Jones asserts that he regularly followed the Department’s sick leave procedures. Id. ¶ 46.

         When Burroughs became Director, however, Jones asserts that she “consistently denied” his sick leave. Id. The record contains only one example of such a denial, see Mot., Ex. 30; Opp’n, Ex. 25, in addition to an instance in November 2012, discussed separately below, in which Jones asserts he was forced to return to work to request sick leave. On September 20, 2012, Burroughs emailed Jones to inform him that she was unable to approve all the sick leave he had recently requested because his balance for sick leave was too low. Mot., Ex. 30. Instead of using sick leave, she requested that he “change the type of leave for approval.” Id. On September 24, Jones wrote back, disagreeing with Burroughs’s claim that he had run out of sick leave. He included in his email a balance statement indicating that he still had approximately 81 hours of leave time available. Id. In response, Burroughs informed him his previous leave requests had not yet been processed so his then-current balance was insufficient to cover his request. Id. The following day, a program specialist replied in the same email chain to note that the balance he cited did not reflect 35 hours of leave he took in the previous pay period. Id. Jones replied stating “Bottom line is that I have hours, therefore my [sick leave] should not have been disapproved.” Id.

         Other portions of the record cited by the parties show disputes between Jones and Burroughs regarding whether Jones followed the proper procedures for requesting sick leave, Mot., Ex. 31, whether he was rude in making his requests, Opp’n, Ex. 25, and whether Burroughs improperly copied Davis on emails containing Jones’s personal medical information, Pl.’s SMF ¶ 51, but they do not point to any other examples of Burroughs denying Jones’s leave, or that Jones accrued leave was improperly reduced in some way. And the parties agree that Jones took leave whenever he wanted. Burroughs asserts that Jones never failed to take sick leave he requested, even when she did not approve it. Def.’s SMF ¶¶ 61–62. For his part, Jones does not contest that he “always took his leave.” Pl.’s SMF ¶ 48.

         8. Burroughs’s Written Reprimand of Jones

         On October 22, 2012, Jones received a formal letter of reprimand from Burroughs concerning his August dispute with Davis in the conference room, as well as his “disrespectful” emails to Burroughs and other staff members. See Mot., Ex. 32. In the letter, Burroughs concluded that Jones’s “inappropriate and unprofessional” behavior had “caused a hostile work environment within the office.” Id. According to Jones, the letter was the first reprimand he had ever received as a federal employee. Pl.’s SMF ¶ 58. He explained to Burroughs why he believed the reprimand to be unwarranted, noting that Davis was equally at fault over the first incident and that his emails contained no inappropriate cursing or derogatory language. Id. ¶¶ 60–62. In response, Jones recalls that she told him: “oh well.” Id. ¶ 62.

         9. Burroughs’s Criticism of Jones’s Performance and Jones’s Performance Evaluation

         On September 4, 2012, Jones says he sent Burroughs a letter expressing his concerns about her treatment of him compared to other employees. Pl.’s SMF ¶ 40. In response, Burroughs requested a meeting with Jones. Id. At the meeting, according to Jones, Burroughs told him that he had changed and that he needed to focus on his job. Id. Jones was surprised by her criticism, since he had recently received a certificate of appreciation from the Chief of Staff of the Department, as well as other commendations. Id. ¶ 41. He informed two supervisors of what happened at the meeting and provided them a copy of his letter. Id. ¶ 44. Neither supervisor responded. Id.

         According to Burroughs, the meeting in question concerned Jones’s upcoming performance evaluation for the period running from October 2011 to September 2012. Def.’s SMF ¶¶ 57–59. At the time Wood departed as the Division Director in May 2012, she provided a summary review of Jones’s performance to up to April 2012, rating Jones as “outstanding.” Opp’n, Ex. 8 at 62:20–23. In the review, she also noted “three items he was required to achieve by the end of the performance period.” Def.’s SMF ¶ 58. According to Burroughs, Jones had not yet completed these items by early September, even though the deadline was the end of that month. Id. ¶ 60. On September 4, Burroughs recalls that she asked Jones to come to her office, where she told him that “he was in jeopardy of getting an . . . unsatisfactory performance rating because these items needed to be done.” Opp’n, Ex. 8 at 64:22–25.

         When the review period ended on September 30, Burroughs asserts that Jones still had not completed the assignments. Def.’s SMF ¶ 60. According to Jones, he was on track to complete the assignments, but the reassignment of the members of his team that had been working on them made the task more difficult. Pl.’s SMF ¶ 56. Regardless, Jones asserts that he completed the assignments on time and sent them to his supervisors for review. Id. He also contends that he submitted work product for one of them to Burroughs in early September, but he never received feedback. Id. ¶ 57.

         In January 2013, Burroughs issued Jones a final performance review for the period from October 2011 to September 2012, in which she rated his performance as “satisfactory.” Def.’s SMF ¶ 60. In the review, Burroughs noted the incomplete assignments and stated that she could “not identify evidence of [Jones’s] leadership.” Opp’n, Ex. 30 at 2. The review further stated that there was “no indication that [Jones] utilized resources available to prepare . . . required work products that were assigned to him.” Id. And it noted that although Jones had “been exceptionally diligent in support of a wide variety of efforts, ” such as “numerous committees, ” he did not adequately “address matters in line with assigned responsibilities.” Id. Prior to this review, Jones had never received a performance review rating of less than “outstanding or excellent.” Pl.’s SMF ¶ 54.

         10. ...

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