Tao v. Sessions, Civ. A. No. 92-0144 (GHR).
| Decision Date | 03 December 1992 |
| Docket Number | Civ. A. No. 92-0144 (GHR). |
| Parties | Kuo-Yun TAO, Plaintiff, v. Hon. William SESSIONS, Individually and as Director, Federal Bureau of Investigation, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Lonnie C. Rich, Rosenthal, Rich, Grimaldi & Guggenheim, Alexandria, VA, for plaintiff.
Marina Utgoff Braswell, Asst. U.S. Atty., Washington, DC, for defendants.
Before the Court are the cross-motions for summary judgment of plaintiff Kuo-Yun Tao and defendants William Sessions, the director of the Federal Bureau of Investigation ("FBI" or "Bureau"), and Steven L. Pomerantz, the Deputy Assistant Director-Personnel Officer for the Bureau's Administrative Services Division. Ms. Tao claims that defendants individually and in their official capacities violated her constitutional rights under the First and Fifth Amendments in the manner in which they handled her internal appeal of the denial of her application for promotion to the position of Language Specialist at the GS-12 level. Her complaint seeks declaratory and injunctive relief, including an Order from this Court that sample translations submitted by Ms. Tao as part of her application for promotion "be reviewed by appropriate `outside' translators whose evaluations will be accorded the same consideration for plaintiff's promotion as was accorded other comparable employees." Complt. at 13-14. The Court has reviewed the parties' pleadings, briefs and supporting exhibits, and has heard oral argument. On the basis of this record, the Court will issue an Order today denying plaintiff's Cross-Motion for Summary Judgment, granting defendants' Motion to Dismiss, Or in the Alternative for Summary Judgment, and dismiss the case.
Ms. Tao is a United States citizen of Chinese descent. She has been an employee of the FBI since 1979 and is currently employed by the Bureau as a GS-11 Language Specialist. In her present job, she is one of eight Language Specialists in the Language Services Unit ("LSU") at the Washington Metropolitan Field Office ("WMFO") of the FBI. All of the Language Specialists at the WMFO are Chinese-Americans. See Complt. ¶¶ 5-7.
In November, 1990, Ms. Tao applied for promotion to the GS-12 grade. According to the requirements then in effect for FBI Language Specialists, such a promotion entailed meeting four criteria, one of which was "submission of work examples for review by LSU for accuracy, relevance and conciseness." Id. ¶ 8 (emphasis added). In addition, the FBI required Language Specialists seeking promotion "to summarize the conversations on a tape provided by LSU ... LSU will review the additional summaries along with other work examples." This fifth requirement is commonly referred to as the "mystery tape" requirement. See id. ¶ 9. Both the mystery tape and work example requirements entailed translations.
Thus, as part of her application for promotion, Ms. Tao set about to prepare a translation of the mystery tape and to submit two-hour work exemplars. It is important to understand — and this is not disputed — that these translations were time-consuming and required considerable effort. Plaintiff claims to have spent about 20 hours on her mystery tape translation and 7 hours on her work examples. See id. ¶¶ 12-13.
Ms. Tao was one of three Language Specialists in the WMFO who sought promotion to a GS-12 grade in late 1990. The other two applicants, Dennis Chang and Pearl Lau, submitted applications at about the same time that Ms. Tao submitted hers. Pl.'s Statement of Material Facts as to Which There is No Genuine Issue ¶ 1. These applications, like Ms. Tao's, included mystery tape translations and work exemplars, which were reviewed by a senior translator in the LSU. Id.
In a memorandum dated January 17, 1991, an LSU manager recommended that Ms. Tao's application for promotion be denied. See Complt. Ex. 1; Complt. ¶ 16. Two reasons were given for this recommendation, the first of which had to do with deficiencies found in Ms. Tao's translations:
The Language Services Unit (LSU) had a senior Translator review Ms. Tao's work product. The reviewer found that the transcript of the "mystery tape," although accurate, lacked conciseness or organization of content. The same problems were evident in the work exemplar. Also, there is no justification why some information was skipped and some given detailed treatment. The result is that some dates, times and places are not mentioned, the purpose of the call is not always identified, and impertinent matters are not regularly minimized or eliminated.
Complt. Ex. 1. The second reason given was that the WMFO had presented Ms. Tao's qualifications for promotion only in a general way, without specifying examples of GS-12-level work. Id. In other respects, however, it appears Ms. Tao met the criteria for promotion.
The FBI subsequently denied the promotion applications of Dennis Chang and Pearl Lau as well. In the case of Mr. Chang, a memorandum from the same LSU manager, dated January 29, 1991, recommended denial for the following reason:
The Language Services Unit (LSU) had a senior translator review Mr. Chang's work product. The reviewer found that the translations of the word or words redacted contained numerous mistranslations and omissions of words, phrases, and sentences. Also, it was noted that significant points were left out in the summaries of the "mystery tape" and from the work exemplars. Conciseness was also a problem.
Pl.'s Ex. 3. The memorandum also noted the failure of the WMFO to provide specific examples of GS-12-level work undertaken by Mr. Chang. Id. In the case of Ms. Lau, a memorandum dated March 7, 1991, recommended denial of promotion for the sole following reason:
The Language Services Unit (LSU) reviewed LS Lau's work for accuracy, relevancy, conciseness and institutional knowledge required for the position sought. A pattern of errors was found regarding accuracy inasmuch as there was a large number of mistranslations, some very serious. In addition, there were items of information omitted from the "mystery tape" summary which should have been included in order to make the meaning complete. The reviewer also found that Ms. Lau tends to make insertions that are her own presumptions.
Pl.'s Ex. 5.
Ms. Tao filed an administrative appeal on January 25, 1991, in which she disputed the conclusions that her translation work lacked conciseness and organization, omitted information without justification, included impertinent matters, and failed to mention some dates, times and places. See Complt. Ex. 2. Then, on March 8, 1991, Ms. Tao's husband, Louis L.S. Tao, an attorney, wrote to defendant Sessions to enter an appearance on his wife's behalf and to submit a memorandum of law and facts in support of her administrative appeal. See Complt. Ex. 3. Mr. Tao's letter to Director Sessions contained the following observation about FBI promotion practices with regard to Chinese-Americans:
Mr. Chang and Ms. Lau, in contrast, did not formally appeal their initial denials, which were reversed and their promotions approved after a second FBI reviewer and a reviewer from outside the Bureau found the translations to be accurate after all. See Complt. ¶¶ 42, 46; Defs.' Statement of Material Facts as to which There is No Genuine Issue ¶¶ 8, 11. In the internal memorandum recommending the promotion of Mr. Chang and Ms. Lau, the Bureau noted that the LSU Unit Chief had issued orders that, henceforth, all promotion packages would be given to two senior translators at the outset, ostensibly "because LSU clouded the issue in these matters by originally giving the package only to one reviewer and then turning down the promotions based upon only one reviewer's comments." Pl.'s Ex. 7 ().
The FBI treated Ms. Tao differently. During the course of negotiations with Louis L.S. Tao, FBI officials appeared to take the position that the WMFO would reassess Ms. Tao's translation work and prepare a more detailed description of her prior tasks and that she could reapply for promotion on or after July 17, 1991. See Complt. Exs. 4, 5, and 7. By August, 1991, however, Bureau officials took the view that reapplication include "retesting," that is, that Ms. Tao complete a new mystery tape translation and submit new work exemplars. See Complt. Ex. 8. Ms. Tao, through counsel, objected to being retested on the ground that similarly situated employees — Mr. Chang and Ms. Lau — had not been required to submit new material when their initial promotion denials were reviewed. See Complt. Exs. 10, 11. In a letter to Mr. Tao, dated November 7, 1991, and constituting the FBI's final administrative determination and decision on her appeal, defendant Pomerantz wrote:
As outlined in my letter of July 25, 1991, WMFO has been instructed to initiate steps to reassess Mrs. Tao's work products; provide their evaluation of her work; and have Mrs. Tao submit work products so that LSU can make a determination whether she is eligible to receive favorable consideration for promotion.
Complt. Ex. 12. Notwithstanding the use of the verb "to reassess," Bureau officials apparently understood the decision to require Ms. Tao to submit new mystery tape and work exemplar translations — i.e., to be "retested" — rather than to have her previous translations reviewed by a second FBI reviewer and/or outside reviewer as was done for Mr. Chang and Ms. Lau. See Complt. Ex. 13.
The FBI does not now dispute that it required and requires Ms....
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