Dews-miller v. Clinton, Civil Action No. 06-1764 (GK).

• Decision Date: 27 April 2010
• Docket Number: Civil Action No. 06-1764 (GK).
• Parties: Rose M. DEWS-MILLER, Plaintiff,v.Hillary CLINTON, Defendant.
• Court: U.S. District Court — District of Columbia

707 F.Supp.2d 28

Rose M. DEWS-MILLER, Plaintiff,v.Hillary CLINTON, Defendant.

Civil Action No. 06-1764 (GK).

United States District Court District of Columbia.

April 27, 2010.

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Charles Grant Byrd, Jr., Alston & Byrd, Baltimore, MD, for Plaintiff.

John G. Interrante, Megan Mary Weis, U.S. Attorney's Office, Washington, DC, Jonathan C. Brumer, Special Assistant United States Attorney, U.S. Dept. of Health and Human Services, Office of the General Counsel, CMS Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiff Rose M. Dews-Miller, a former employee of the United States Information Agency, Department of State, brings suit against Defendant Hillary Clinton ¹ in her official capacity as Secretary of State. The Complaint alleges that Defendant engaged in unlawful retaliation against Dews-Miller in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and in related violations of the Civil Service Reform Act, 5 U.S.C. § 1101 et seq., the Whistleblower Protection Act of 1989, 5 U.S.C. § 2302, and the First and Fifth Amendments of the Constitution. This matter is presently before the Court on Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt. No. 24] pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 56. Upon consideration of the Motion, Opposition, Reply, the parties' Supplemental Memorandums, and the entire record herein, and for the reasons set forth below, the Motion to Dismiss or, in the Alternative, for Summary Judgment is granted.

I. Background

Plaintiff Rose M. Dews-Miller was employed by the United States Information Agency (“USIA”) from 1972 until her termination on December 10, 1996. She held a number of positions during this period, eventually reaching a General Schedule grade of 11 (“GS-11”). Beginning in 1990, and throughout the period in which most of the events leading to this action arose, Dews-Miller was employed as an Administrative Officer in USIA's Office of Inspector General (“OIG”).

A. The 1993 Equal Employment Office Actions and the 1995 Settlement Agreement

In June 1993, Dews-Miller filed an Equal Employment Opportunity (“EEO”) action against USIA alleging racial discrimination after not being selected for a position for which she claims she was qualified. Soon thereafter, she received a “fully successful” performance evaluation, marking a downgrade from her previous “highly successful” ratings. Am. Compl. ¶¶ 11-13 [Dkt. No. 14]. On September 7, 1993, Dews-Miller filed a second EEO action which alleged that the “fully successful” rating was made in retaliation for filing the first EEO action. On October 21, 1994, she also filed a related complaint with the Office of Civil Rights (“OCR”).

On January 27, 1995, Plaintiff entered into an agreement (“1995 Settlement Agreement” or “Agreement”) with USIA to settle these three complaints. Under the terms of the Agreement, she was to be detailed to the Office of Comptroller as a Budget Analyst for a six-month period commencing February 1, 1995. Throughout her detail, OIG would pay her salary, as well as any training recommended by the Office of Comptroller.

The Agreement specified that Dews-Miller had to achieve a rating of at least “fully successful” in order to be retained in the Office of Comptroller or in a comparable position at the end of her detail. If she failed to earn that rating, she would enter a three-month probationary period ² in which the Office of Personnel would attempt to place her in an “appropriate” position in a non OIG unit or, if no such placement was available, OIG would retain her. In the latter scenario, if Plaintiff earned a “fully successful” or higher rating at the end of her probation, she would be retained at OIG. If not, she would be transferred out of OIG to a temporary position not to exceed one year, at the end of which she would resign from USIA. By signing the Agreement, Dews-Miller withdrew all pending complaints of discrimination and waived all rights to pursue any claims contained in the pending complaints, either administratively or judicially.

B. Plaintiff's Detail to the Office of Comptroller and Subsequent Termination

Pursuant to the terms of the Agreement, on February 1, 1995 Dews-Miller was placed on a six-month detail ³ to the Office of Comptroller as a Budget Analyst. Id. ¶¶ 10, 22. On July 20, 1995, Plaintiff received a “minimally successful” performance evaluation for the period worked at OIG from May 1, 1994 to January 24, 1995. On August 17, 1995, Plaintiff's supervisor in the Office of Comptroller also gave her a “minimally successful” rating for her six-month detail, which, under the terms of the 1995 Settlement Agreement, meant that Dews-Miller would enter a three-month probation period. In the case of both evaluations, no notice of the alleged deficiencies was given, and Dews-Miller alleges she was not offered any assistance or opportunities to resolve them. Id. ¶¶ 28-29.

On August 21, 1995, Dews-Miller took sick leave for an on-the-job injury to her back, neck, and shoulder sustained during her detail to the Office of Comptroller. On September 2, 1995, while still on sick leave, she received a letter from USIA's Office of Personnel directing her to report to Ann Young, a supervisor in the OIG, for work. After Ms. Young contacted her in early September, Dews-Miller alleges she provided medical documentation authorizing her time off from work.⁴ Despite this, and despite the fact that the Department of Labor's Office of Workers' Compensation confirmed by letter dated September 29, 1995 that it had accepted Dews-Miller's injury as an on-the-job injury, Ms. Young placed her on absent without leave (“AWOL”) status effective September 5, 1995 until November 24, 1995, when Plaintiff was approved to return to work.⁵ Thus, Dews-Miller was not compensated for 472 hours of missed work, despite having accrued “well over 600 hours of sick leave.” Id. ¶ 30.

In November of 1995, USIA denied Dews-Miller a With-In Grade (“WIG”) increase effective October 29, 1995, citing her two “minimally successful” performance evaluations. Id. ¶ 31. On November 29, 1995, Ms. Young met with Dews-Miller to discuss the performance standards and advised her that her last day in the OIG would be November 30, 1995, which was the end of the three-month probation period. In an SF-50 dated December 10, 1995, Dews-Miller's career appointment was converted to a one-year, temporary position. Over the next year, the Office of Personnel assigned her to the Career Center and to the Office of General Counsel for work. Am. Compl. ¶ 37. Finally, on December 9, 1996, USIA terminated Dews-Miller's employment. See Letter from OSC to Rose Dews-Miller re: OSC File No. MA-97-0571 (Aug. 25, 1997) (Ex. 34 to Def.'s Mot. at 1).

C. The October 10, 1995 Office of Civil Rights Complaint

On October 10, 1995, Dews-Miller filed a complaint with OCR requesting that it reopen her 1993 EEO case, as USIA had “breached the agreement.” Letter from Rose M. Dews-Miller to Hattie Baldwin, Director, OCR (Oct. 10, 1995) (Ex. 2 to Def.'s Mot.). The complaint claimed that USIA violated the 1995 Settlement Agreement by (1) not activating her detail to the Office of Comptroller through an official personnel action (“SF-50”), (2) actively interviewing other candidates for the position during her detail, (3) failing to offer her training, and (4) failing to give informal performance evaluations prior to her formal “minimally successful” ratings.

OCR responded by letter dated December 11, 1995, in which it found that “the Agency has carried out all of the terms of [the] Settlement Agreement.” Letter from Hattie P. Baldwin, Director, OCR, to Rose M. Dews-Miller (Dec. 11, 1995) (Ex. 3 to Def.'s Mot.). Plaintiff appealed this decision to the Equal Employment Opportunity Commission (“EEOC”), where her appeal was dismissed as untimely. Dews-Miller v. Duffey, No. 01962642, 1997 WL 619018 (E.E.O.C. Sep. 25, 1997). Dews-Miller subsequently filed suit in this Court on October 9, 1998 (“the 1998 case”) alleging the same violations of the 1995 Settlement Agreement. This Court dismissed her case with prejudice for lack of jurisdiction on February 12, 1999. Dews-Miller v. Duffey, No. 98-2417 (D.D.C. Feb. 12, 1999).

D. The March 28, 1996 Office of Civil Rights Complaint

On March 28, 1996, Dews-Miller filed a new discrimination complaint with OCR challenging the agency's failure to provide notice to and otherwise assist her in advance of her “minimally successful” ratings, as required by USIA's Manual of Operations & Administration (“MOA”), Part V-A, Section 453.2(c); her placement by the agency on AWOL status; and the agency's denial of a WIG increase, in violation of the MOA, Part V-A, Section 453.2(c). She later added separate claims ⁶ challenging her December 9, 1996 termination and denial of end-of-service payments in December 1996. The OCR complaint alleged that all of these adverse actions were taken in reprisal for Plaintiff's 1993 EEO activities. Memorandum from Rose M. Dews Miller to Hattie P. Baldwin, Director, OCR (Mar. 28, 1996) (Ex. 6 to Def.'s Mot.); Dews-Miller v. Powell, No. 01992980, 2001 WL 885107 (E.E.O.C. July 19, 2001).

After a lengthy and circuitous administrative process, USIA concluded its investigation of the OCR complaint on November 26, 2001, finding no discrimination, and Plaintiff requested a hearing before an EEOC Administrative Judge. Letter from Barbara Spyridon Pope, Ass't Secretary, Office of Equal Employment Opportunity and Civil Rights, U.S. Dep't of State, to Rose Mary Dews-Miller (Nov. 26, 2001) (Ex. 14 to Def.'s Mot.). On April 29, 2004, after a full hearing, the Administrative Judge concluded that Plaintiff had failed to demonstrate a causal connection between the adverse actions...