Brown v. Mills

• Decision Date: 16 December 2009
• Docket Number: Civil Action No. 08-1110 (ESH).
• Citation: 674 F.Supp.2d 182
• Parties: Malda J. BROWN, Plaintiff, v. Karen Gordon MILLS, Administrator, U.S. Small Business Administration, Defendant.
• Court: U.S. District Court — District of Columbia

674 F.Supp.2d 182

Malda J. BROWN, Plaintiff, v. Karen Gordon MILLS, Administrator, U.S. Small Business Administration, Defendant.

Civil Action No. 08-1110 (ESH).

United States District Court, District of Columbia.

December 16, 2009.

Nicholas Harry Hantzes, Hantzes & Associates, PC, McLean, VA, for Plaintiff.

Carl Ezekiel Ross, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff Malda Brown has sued the United States Small Business Administration ("SBA") for retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, 2000e-17. The SBA now moves for summary judgment, and for the reasons stated herein, the motion will be granted.

FACTUAL BACKGROUND

Ms. Brown is a GS-13 Procurement Analyst/Procurement Center Representative ("PCR") at the SBA and has worked at the agency since 1980. (Compl. ¶ 7.) In 1992, Ms. Brown filed an Equal Employment Office ("EEO") complaint against her then-supervisor, John Whitmore. (Pl.'s Statement of Material Facts in Dispute ["Pl.'s SMF"] ¶ 2.) That claim was settled in 1995. (Id.) In 1998, Ms. Brown filed a second EEO complaint against the SBA, alleging retaliation for her previous claim. (Id. ¶ 3.) The parties settled that complaint in 2002. (Def.'s Statement of Undisputed Material Facts ["Def.'s SMF"] ¶ 63; Dep. of Malda J. Brown ["Brown Dep."], Ex. 1 (settlement agreement).) As part of the 2002 settlement, Ms. Brown received a promotion to the GS-13 grade as a GS-1102-13 Procurement Analyst and began working out of the Department of Health and Human Services ("DHHS"). (Brown Dep., Ex. 1 ¶ 2(b).) Mr. Whitmore retired from the SBA in 2004. (Decl. of Calvin Jenkins ["Jenkins Decl."] ¶ 5.)

The duties of a GS-1102-13 Procurement Analyst include "represent[ing] the [SBA] at the installations to which [the analyst is] assigned on any acquisition policy or procedure which affect SBA's mission to assist small business concerns." (Brown Dep., Ex. 9 at 1 (PCR job description).) A PCR is charged with "effectively represent[ing] small business concerns with procurement officials" and "counsel[ing] representatives of small business concerns and advis[ing] them how and where to sell their products to the Government." (Id. at 2.) In 2005 and 2006, Ms. Brown worked as a PCR in Rockville, Maryland, at the DHHS offices there. (Pl.'s SMF ¶ 16.) Then, as now, Ms. Brown worked in the SBA's Office of Government Contracts, and the chain of command in the office went from plaintiff to Rhonda Anderson, David Loines, Nancyellen Gentile, Arthur Collins, and Karen Hontz, the director of the Office of Government Contracts. (Def.'s SMF ¶ 4; Dep. of Nancyellen Gentile ["Gentile Dep."], Ex. 1 (organizational chart).) Between December 2005 and August 2006, Calvin Jenkins was the Deputy Associate Deputy Administrator for Government Contracting and Business Development. (Jenkins Decl. ¶ 2.) As such, he supervised both the SBA's "HUBZone" Office—which encourages economic development in historically underutilized business zones—and the SBA Office of Government Contracts. (Id.) Michael McHale was the head of the HUBZone Office and reported to Mr. Jenkins, as did Ms. Hontz. (Id. ¶ 3.)

On November 8, 2005, the SBA HUBZone program received a HUBZone bid protest concerning a U.S. Department of Homeland Security ("DHS") contract awarded to Shirlington Limousine and Transportation, Inc. ("SLT"). (Pl.'s SMF ¶ 18.) The protest came from another HUBZone entity and challenged SLT's eligibility as a HUBZone concern. (Dep. of Lara Hudson ["Hudson Dep."] at 70.) The SBA was responsible for processing and making a determination as to SLT's eligibility. (Id.) In December 2005, Ms. Brown was contacted by the owner of SLT, Christopher Baker, who sought assistance in understanding bid protest procedures. (Def.'s SMF ¶ 10; Pl.'s SMF ¶ 20; Brown Dep., Ex. 5 at 1 (Brown interview memorandum).) Ms. Brown had not met Mr. Baker prior to his contact with her in December 2005, but she had heard of him. (Brown Dep., Ex. 5 at 1; Pl.'s SMF ¶ 21.) During the call, Mr. Baker told plaintiff that Lara Hudson was the SBA attorney working on the SLT HUBZone protest and that he had a package he needed to deliver to her. (Brown Dep. at 67-68.) Ms. Brown told Mr. Baker that once he was at the SBA office building, he could call Ms. Hudson's secretary, Bejo Green, to come retrieve the package. (Id. at 68.)

On December 8, 2005, Ms. Brown was in the Washington, D.C. office of the SBA and asked for Ms. Hudson, whereupon Ms. Hudson introduced herself to Ms. Brown. (Hudson Dep., Ex. 3 (May 15, 2006 email); Pl.'s SMF ¶ 23.) On December 12, Mr. Baker appeared unannounced and unescorted at Ms. Hudson's office to deliver documents to Ms. Hudson that she had requested from his attorney. (Hudson Dep., Ex. 4 (Dec. 23, 2005 memorandum to file).) Ms. Hudson and Mr. Baker had a conversation, during which Ms. Hudson mentioned her daughter. (Id., Ex. 1 at 2 (Hudson interview memorandum).) Mr. Baker told Ms. Hudson that he was upset about the protest and that "he could throw bricks at the protesting company." (Id. at 1) Ms. Hudson accepted the documents from Mr. Baker and asked him to leave. (Id.; Hudson Dep. at 28.) Afterwards, Ms. Hudson telephoned Mr. Baker's attorney and advised him that she could not speak to Mr. Baker while the protest was under review and while he was represented by counsel. (Id., Ex. 1 at 1.)

A week later, on December 19, Ms. Brown placed a telephone call to Ms. Green, Ms. Hudson's secretary, and told her that Mr. Baker would be coming by to drop off a package. (Brown Dep. at 61.) Ms. Green emailed Ms. Hudson to tell her of Ms. Brown's call and that someone "is suppose[] to be coming over to see" Ms. Hudson. (Hudson Dep., Ex. 2 at 2 (Dec. 20, 2005 email chain).) Mr. Baker appeared at Ms. Hudson's office several hours later, unannounced and unescorted. (Id.) According to Ms. Hudson, the visit made her "uncomfortable." (Hudson Dep. at 28.) She thanked him for the information he delivered and told him that she could not speak with him as the protest was an ongoing matter. (Id., Ex. 4.) After Mr. Baker's second visit, Ms. Hudson emailed Ms. Green and stated that she believed the call Ms. Green received from Ms. Brown earlier that day regarding the individual who was coming by to deliver a package and Mr. Baker's visit were "related" and that Ms. Brown and Mr. Baker were "acquaintance[s]." (Id., Ex. 2 at 2.) Ms. Green then spoke with the Visitors' Center and was told that Mr. Baker had been escorted up to Ms. Hudson's floor but that it was not known who escorted him. (Id. at 1-2.) Ms. Hudson subsequently checked with the Visitor Desk and was told that Mr. Baker had not signed in. (Id. at 1.) At that point, Ms. Hudson emailed John Klein, her supervisor, and explained that she was "concerned about the lack of security in the building and the free movement that Chris Baker ... seems to have getting in the building and up to [her] office." (Id.) Ms. Hudson then asked security to "investigate how Mr. Baker had gotten to [her] office without an escort and without a badge." (Hudson Dep. at 37.) Ms. Hudson subsequently reviewed videotapes of the public entrance to the SBA Headquarters from the days when Mr. Baker arrived at her office, but she did not identify Mr. Baker on the tapes. (Id. at 39.) Despite her inconclusive investigation, Ms. Hudson did not consider the "matter over" and "still wanted an answer as to how it was that Mr. Baker had accessed the building." (Id. at 66.)

Five months later, in May 2006, Ms. Hudson became aware of media reports concerning Mr. Baker and his involvement with the congressional investigation of former Congressman Randall "Duke" Cunningham. (Id. at 14.) The coverage included reports of Mr. Baker's criminal history. (Id. at 23.) Subsequently, Ms. Hudson requested a meeting with Agent Lee K. Bacon of the SBA Office of Inspector General ("OIG") Investigations Division to discuss events that had occurred while she was working on the SLT HUBZone protest, including her concern that Mr. Baker knew personal information about her from his visits. (Id.; at 88-89; Ex. 1.) She also told Agent Bacon that she suspected that Ms. Brown was involved in allowing Mr. Baker into the SBA building. (Id. at 89; Ex. 1 at 2.)

On or about March 30, 2006, the OIG received a referral from the DHS regarding SLT and opened an investigation of the company. (Decl. of Lee K. Bacon ["Bacon Decl."] ¶ 3.) In May 2006, SLT was the subject of a HUBZone program examination, which is distinct from the protest that was filed in November 2005. (Def.'s SMF ¶ 35; Dep. of David J. Caulfield ["Caulfield Dep."] at 10-11.) On May 2, Ms. Brown telephoned David Caulfield, a senior program analyst with the HUBZone program whose duties included serving as the operational manager for program examinations. (Hudson Dep., Ex. 5 at 2 (May 11, 2006 email chain); Caulfield Dep. at 5.) Ms. Brown asked Mr. Caulfield what had prompted the HUBZone program examination of SLT and told him that she considered SLT "to be one of her clients and at [SLT's] request, was making certain they weren't being asked the same questions contained in the recent HUBZone protest." (Hudson Dep., Ex. 5 at 2.) Mr. Caulfield answered Ms. Brown's questions regarding the program examination and told her that communications regarding the examination of SLT should be "directed to the personnel in the district office conducting the exam," an employee named Theo Holloman. (Id.)

Immediately following the call with Ms. Brown, Mr. Caulfield consulted with former HUBZone Deputy Administrator Mr. Collins, who was then the deputy for government contracting in the Office of Government Contracting. (Caulfield Dep., Ex. 1 (Caulfield interview memorandum); Dep. of Michael McHale ["McHale Dep."] at 57.) Mr. Caulfield found Ms. Brown's call to be "unusual" because he did not...