Furey v. Mnuchin

• Decision Date: 24 September 2018
• Docket Number: Civil Action No. 17-1851 (ABJ)
• Citation: 334 F.Supp.3d 148
• Parties: Helen FUREY, Plaintiff, v. Steven T. MNUCHIN, Secretary, U.S. Department of Treasury, Defendant.
• Court: U.S. District Court — District of Columbia

334 F.Supp.3d 148

Helen FUREY, Plaintiff,

v.Steven T. MNUCHIN, Secretary, U.S. Department of Treasury, Defendant.

Civil Action No. 17-1851 (ABJ)

United States District Court, District of Columbia.

Signed September 24, 2018

Alan Lescht, Susan Laiken Kruger, Alan Lescht & Associates, P.C., Washington, DC, for Plaintiff.

Marsha Wellknown Yee, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

AMY BERMAN JACKSON, United States District Judge

MEMORANDUM OPINION

This case arises out of plaintiff Helen Furey's termination from her employment as an Information Technology ("IT") Specialist at the United States Department of Treasury. Plaintiff claims that the agency violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. , and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), when it subjected her to a hostile work environment; discriminated against her based on her race, national origin, and age; and retaliated against her for engaging in protected activity under both statutes. Compl. [Dkt. # 1] ¶¶ 84–115. The Merit Systems Protection Board ("MSPB" or "Board") upheld the agency's decision to remove plaintiff from her position, and plaintiff is also challenging that determination as arbitrary and capricious under 5 U.S.C. § 4303. Id. ¶¶ 116–19.

Defendant has moved for summary judgment on all counts, Def.'s Mot. for Summ. J. or, Alternatively, Partial Mot. to Dismiss [Dkt. # 13] ("Def.'s Mot."); Mem. in Supp. of Def.'s Mot. [Dkt. # 13] ("Def.'s Mem."), and plaintiff has opposed the motion. Pl.'s Mem. of P. & A. in Opp. to Def.'s Mot. [Dkt. # 15] ("Pl.'s Opp.").¹ Plaintiff has not pointed to any evidence to show that defendant's justification for firing her – namely, unacceptable work performance – was a mere pretext for discrimination based on age, race, or national origin, or in retaliation for complaining about the allegedly unlawful treatment. Further, the Court sees no reason to overturn the MSPB's determination to uphold plaintiff's removal since the Administrative Judge's decision was supported by substantial evidence and had a rational basis in the law. Therefore, the Court will grant defendant's motion for summary judgment.

BACKGROUND

I. Factual Background²

Plaintiff identifies herself as a fifty-year old Asian woman of Chinese national origin. Compl. ¶ 16. She began working for the Department of Treasury on January 31, 2010 as an IT Specialist in the Department Offices Operations division of the Office of the Chief Information Officer. Statement of Facts and Genuine Issues [Dkt. # 15] ("Pl.'s SOF") ¶ 2; Administrative Record [Dkt. # 17-1] ("AR") at 64.³

For the rating period beginning on October 1, 2012 and ending on September 30, 2013, plaintiff received satisfactory reviews based on her performance plan. Pl.'s SOF ¶ 3; see AR at 86–97, Ex. A to Def.'s Mot. [Dkt. # 13-2] (together, "FY2013 Performance Appraisal"). Although her supervisor, Chakravarthy Susarla, rated her as "fully successful"⁴ on most elements, he observed that "it was not very clear if [plaintiff] had [a] complete understanding and ownership of the systems" for which she was responsible. FY2013 Performance Appraisal at 10. Further, Susarla observed that plaintiff "worked at a task level instead of working at the project level and needed guidance and direction to make progress." Id.

In August 2013, plaintiff was put on a detail as an IT Specialist (Applications Software) in the Office of the Chief Information Officer, ACIO Enterprise Business Solutions ("EBS"), Enterprise Content Management ("ECM"), and her position description remained the same. Pl.'s SOF ¶¶ 4–5; AR at 65–71 ("IT Specialist (Applications Software) Job Description"). She became one of at least four project managers in that department. Pl.'s SOF ¶ 6; see AR 106, 109–10 (mentioning Bill Marcinko, Sean Fox, and Camille Smith as other project managers). At that time, her supervisor was James Graham, an IT Program Manager, and her second-level supervisor was again Chakravarthy Susarla, Director of Applications, ECM and Web Solutions. Def.'s Statement of Material Facts [Dkt. # 13-1] ("Def.'s SOF") ¶ 4; Pl.'s SOF ¶¶ 7–8; EEO Investigative Aff. of James Graham, AR at 380–408 ("Graham EEO Aff.") ¶ 3 (identifying himself as "Helen Furey's Supervisor" and describing the chain of command); EEO Investigative Aff. of Chakravarthy Susarla, AR 410–14 ("Susarla EEO Aff.") ¶ 4 (describing how plaintiff "reported to Mr. James Graham, and Mr. Graham has reported to [him]").

While she was on this detail, plaintiff was given a new performance plan that included many of the same critical elements as the previous plan. See Def.'s SOF ¶¶ 6–7; Pl.'s SOF ¶ 5; see AR 73–85, Ex. B to Def.'s Mot. [Dkt. # 13-3] (together, "FY2014 Performance Plan"); see also IT Specialist (Applications Software) Job Description. The critical elements relevant to this case, for which plaintiff was later rated at an unacceptable level, are Critical Element # 1, Communication (written and oral); Critical Element # 4, Technical Competency; Critical Element # 5, Expand Shared Service Offerings; and Critical Element # 6, Improve, Support and Maintain OCIO/EBS Program Operations. See FY2014 Performance Plan. The performance plan detailed the prerequisites necessary to achieve certain ratings. See id. Plaintiff received the new plan on March 11, 2014, and she "reviewed and discussed the performance requirements with" her supervisor. Pl.'s SOF ¶ 5; see FY2014 Performance Plan at 11.

While supervising plaintiff, Graham noticed deficiencies in her work product. Decl. of James Graham, AR at 1071–88 ("Graham Decl.") ¶ 27. For example, plaintiff was not submitting required project status reports or following standard project management practices, and other employees had complained to Graham about plaintiff's ineffective performance as a project manager. Id. ¶¶ 27–30; see also AR at 103–13, Ex. C to Def.'s Opp. [Dkt. # 13-4] (together, "Notice of Unacceptable Performance") at 1. As a result, Graham removed her as a project manager from one of her assignments and replaced her with someone else. Graham Decl. ¶ 30; Notice of Unacceptable Performance at 1. And on June 11, 2014, Graham met with plaintiff for her mid-year review and relayed his concerns about her deficient performance in several critical elements. Graham Decl. ¶ 32; Notice of Unacceptable Performance at 1.

According to Graham, plaintiff continued to exhibit the same fundamental deficiencies of not managing her projects adequately and failing to "escalat[e] risks" despite his best efforts at counseling her. Graham Decl. ¶ 33. So, on August 27, 2014, Graham sent plaintiff a notice informing her that she had been performing at an unacceptable level with regard to multiple critical elements in her performance plan. Def.'s SOF ¶ 8; Pl.'s SOF ¶ 16; see Notice of Unacceptable Performance. He then placed plaintiff on a 90-day Performance Improvement Plan ("PIP").⁵ Def.'s SOF ¶ 8; Pl.'s SOF ¶ 16; see Notice of Unacceptable Performance. The notice outlined various projects plaintiff needed to complete, as well as how to complete those projects satisfactorily in order to improve her performance and receive, at least, "fully successful" reviews at the end of her PIP period. See Notice of Unacceptable Performance at 4–10. It also warned plaintiff that "failure to demonstrate acceptable performance in any critical element will result in ... reduction-in-grade, reassignment or removal from the [a]gency." Id. at 1 (emphasis added).

Plaintiff contacted an Equal Employment Opportunity ("EEO") counselor on approximately September 22, 2014, alleging that Graham discriminated against her on the basis of her age, race, sex, and national origin by placing her on the PIP. Def.'s SOF ¶ 9; Pl.'s SOF ¶ 22;⁶ Ex D. to Def.'s Mot. [Dkt. # 13-5] ("EEO Counselor Report") at 1. And plaintiff sent the EEO counselor an informal complaint making the same allegations in early October. Def.'s SOF ¶ 11; see Ex. E to Def.'s Mot. [Dkt. # 13-6]. The counselor spoke with Graham about plaintiff's allegations on October 8, 2014, see Def.'s SOF ¶ 10; Pl.'s SOF ¶ 23; see EEO Counselor Report at 3, and on the same day, Graham emailed Susarla and Debra Vess, one of Graham's supervisors, about it. See Pl.'s SOF ¶¶ 23–24; AR at 882.

On October 21, 2014, plaintiff filed a formal EEO complaint with the Department of Treasury alleging that the agency "discriminated against [her] on the basis of [her] age, race, and national origin." Def.'s SOF ¶ 13; Pl.'s SOF ¶ 25; see Ex. F to Def.'s Mot. [Dkt. # 13-7] ("Formal EEO Complaint"). The agency accepted plaintiff's formal complaint for investigation on November 3, 2014. Def.'s SOF ¶ 14; see Ex. G to Def.'s Mot. [Dkt. # 13-8]. Graham submitted his initial affidavit to the EEO investigator on December 12, 2014. Pl.'s SOF ¶ 26; see Graham EEO Aff.

Plaintiff received her performance appraisal for the 2014 fiscal year on December 22, 2014, and the review specified that plaintiff did not successfully complete the PIP. Def.'s SOF ¶ 15; see Ex. H to Def.'s Mot. [Dkt. # 13-9] ("FY2014 Performance Appraisal"). On January 15, 2015, Graham emailed plaintiff to inform her that she was no longer eligible for the telework program because her performance was not at the "fully successful" level, and she did not pass her PIP. Def.'s SOF ¶ 16; see Ex. I to Def.'s Mot. [Dkt. # 13-10].

On February 2, 2015, plaintiff amended her EEO complaint to add a claim alleging that her supervisors, Graham and Susarla, retaliated against her by giving her an unsatisfactory performance evaluation and removing her from telework because she had engaged in protected EEO activity. Def.'s SOF ¶ 17; Pl.'s SOF ¶ 27; see Ex. J to Def.'s Mot. [Dkt. # 13-11] ("Letter of Acceptance"). Graham submitted a supplemental affidavit as part of the EEO investigation on March 23, 2015, Pl.'s SOF ¶ 28; see Suppl. EEO Investigative Aff. of James Graham, AR 442–53 ("Graham Suppl. ...