United States District Court, District of Columbia
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE
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.
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.
Alice Muellerweiss’s Farewell Ceremony
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.
Meeting with Dr. Reginald Vance
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
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.
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.
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.
Jones’s Team’s Reorganization
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.
Christopher Burroughs’s Appointment as
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.
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.
Zelda Davis’s Three-Day Term as Acting
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 ¶
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.
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.
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.
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.
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. ¶
Compensatory Time for Conference Work
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.
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.
Sick Leave Disputes
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.
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
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.
Burroughs’s Written Reprimand of Jones
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.
Burroughs’s Criticism of Jones’s Performance and
Jones’s Performance Evaluation
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.
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
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.
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.