McKenna v. Weinberger
| Citation | 729 F.2d 783,234 U.S. App. D.C. 297 |
| Decision Date | 02 March 1984 |
| Docket Number | No. 83-1334,83-1334 |
| Parties | 34 Fair Empl.Prac.Cas. 509, 33 Empl. Prac. Dec. P 34,200, 234 U.S.App.D.C. 297 Barbara Franklin McKENNA, Appellant, v. Caspar W. WEINBERGER, Secretary of Defense, et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-00665).
Patricia L. Brown, Washington, D.C., for appellant.
Christine R. Whittaker, Atty., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, and Anthony J. Steinmeyer, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees.
Before MIKVA and EDWARDS, Circuit Judges, and BAZELON, Senior Circuit Judge.
Opinion for the Court filed by BAZELON, Senior Circuit Judge.
Barbara F. McKenna resigned under threat of discharge from the Defense Intelligence Agency (DIA) in August, 1978. Ms. McKenna brought suit, claiming 1) that this action was motivated by sex discrimination in violation of Title VII of the Civil Rights Act; 1 2) that, alternatively, it was in retaliation for her complaints about discriminatory treatment, also in violation of Title VII; 2 and 3) that in effecting her discharge, the agency failed to follow its own procedures in violation of Sec. 706 of the Administrative Procedure Act (APA). 3 After a trial on the merits, the district court ruled in favor of the agency on the first two claims and held that the exclusive remedy provisions of Title VII precluded suit under the APA. We hold that the district court's findings on the discrimination and retaliation claims were not clearly erroneous and, consequently, affirm on those issues. In addition, we hold that, although a claim under the Administrative Procedure Act is not barred by Title VII, nothing in the record supports appellant's APA claim.
Barbara F. McKenna was hired by the DIA as an intelligence analyst on August 22, 1977. As a new federal employee, her continued employment was conditioned upon successful completion of a one year probationary period. During that probationary period, she was subject to dismissal for any legitimate reason, or for no reason at all. 4
Ms. McKenna's first assignment was to the Federal Research Division (FRD) of the Library of Congress. There she was assigned to a group with four other analysts, three women and one man, under the supervision of Ms. Ruth Miller. She spent two months in this section. Ms. Miller testified at trial that the other analysts, both male and female, complained that Ms. McKenna was abrasive, self-centered and overbearing. 5 Ms. Miller conceded, however, that she was physically present for only three of the approximately eight weeks that Ms. McKenna was in her section, and that she never observed Ms. McKenna interacting in a professional group context. 6
Ms. McKenna was next assigned to an introductory course for analysts at the Defense Intelligence School of the Department of Defense. She compiled an outstanding record at the school; at trial, however, one of her classmates testified that Ms. McKenna had interpersonal difficulties in the negotiation portion of the course. 7
Ms. McKenna then proceeded to the Military Support Activity Section of the China Branch under the supervision of Ms. Ruth Miner. For most of this period Ms. McKenna lacked a security clearance and therefore worked with one other employee in a segregated area of the section. According to Ms. Miner, there were continuing Col. Dowdy offered Ms. McKenna a transfer to the China Ground Forces Section, explaining that the move would be career enhancing and that it was optional. 11 Ms. McKenna agreed to the transfer and began work on February 3, 1978 in the new section under the supervision of Lt. Col. Bernard Doe. Lt. Col. Doe had heard of Ms. McKenna's prior difficulties from one of the analysts in his section. 12 Col. Dowdy discussed these difficulties with Doe and suggested that Doe ask his staff to "lean over backwards to make her feel at home, to let her have a fresh start, and assist her in fitting into the section." 13
problems with Ms. McKenna throughout the approximately seven weeks she spent in this section. 8 Ms. Miner testified that she placed a "verbal qualifier," i.e., a negative oral report, in Ms. McKenna's file at mid-year review. 9 Ms. Miner reported her reservations to her supervisor, Colonel Harry Dowdy, on two occasions. During the second conversation, Ms. Miner indicated that she would prefer that a transfer be arranged for Ms. McKenna. 10
All went extremely well for the first four months of Ms. McKenna's tenure in the China Ground Forces Section. In early June, Doe executed a report indicating that Ms. McKenna had been performing satisfactorily and should be retained past her probationary period. 14 He testified that this appraisal reflected the views of Ms. McKenna's co-workers as well. 15 On June 19, 1978, Doe also authored a memorandum signed by his superior, Capt. Martinez. The memorandum requested that Ms. McKenna be retained in the section. In the normal course, analysts were only permitted to remain in a section which had an open billet. Where there was no open billet, the probationary employee was an overage and had to be transferred to an available billet in another section. Doe tried to keep Ms. McKenna in an overage status until a billet became vacant in the section. Doe wrote that she "possesses high potential to attain positions of increasing responsibility with DIA in the future," and that she "epitomizes the 'new blood' this Agency must have if [it] ... is to continue to adequately support DoD and the national decisionmaking community." 16
In his testimony, Doe asserted that this memorandum accurately reflected his unreservedly positive view of her performance, a view he maintained until July 20, 1978. 17 On that day, Ms. McKenna's three co-workers, all male, came to Doe and complained that Ms. McKenna had a poor attitude toward work assignments, and was abrasive and uncooperative. When Doe asked why they had not complained earlier, they stated that they had adhered to his request to give her a chance and that the problem had worsened considerably in the past two to three weeks. 18
Four days later, Doe conducted a counseling session with Ms. McKenna, at which Col. Dowdy was also present. When told about her colleagues' complaints, she rejected responsibility for the problem and attributed it to her co-workers' sexism. 19 She recounted a number of incidents wherein women had been treated condescendingly, where sexist or suggestive remarks had been directed at her, and where obscene jokes, cartoons or photos had been Concerned about the counseling session, Ms. McKenna conferred with the senior civilian analyst, Dr. Romance, who brought her case to the attention of Doe and Dowdy's superior, Captain Martinez. Martinez appointed Joseph Geibel to conduct an investigation into the validity of McKenna's performance appraisal and the fairness of the counseling session. Geibel was also asked to ascertain "whether there was any sexist bias in the failure to forward promotion papers and in her treatment in her work environment." 24
exchanged. 20 Doe gave these charges no credence, dismissing them "essentially as emotional counteraccusations made on the spur of the moment." 21 At no point did Doe confront the co-workers with Ms. McKenna's claims of sexist treatment. Doe and Dowdy both regarded what they viewed as her unconstructive response to the counseling as indicative of a serious, perhaps intractable problem. 22 After this session, Doe made inquiries into his personnel options although he testified that the decision to terminate had not been made at that point. 23
The Geibel investigation proceeded simultaneously with Doe and Dowdy's movements to terminate Ms. McKenna's employment. During the same week that Ms. McKenna spoke to Martinez, Dowdy held a session with the coworkers which convinced him of their good faith and reliability. 25 A few days later he met again with Ms. McKenna, who reiterated her view that the complaints were baseless and did not warrant discussion. 26 Shortly after this second meeting, Dowdy met with his supervisor, Dr. Collins, who suggested that Ms. McKenna's prior supervisors be canvassed for statements evaluating her performance. 27
On August 7 or 8, Geibel began to interview the concerned parties, including Doe, informing them that Ms. McKenna's complaint was based on allegations of sexist treatment. 28 On August 7th as well, Ms. Miner, a prior supervisor, submitted her written statement solicited by Dowdy. 29 On August 10th, Doe told Ms. McKenna that he was not forwarding her promotion, stating that he needed more time to observe her in view of her performance deficiencies and the ongoing investigation. 30 Doe testified that he had not yet at this point decided to recommend termination, although he well knew that he had only a few days for further observation. 31 On August 11, another prior supervisor, Ms. Miller, submitted her statement. 32
On August 14, Doe executed the memorandum recommending termination based on Ms. McKenna's inability to cooperate with her colleagues and her unwillingness to attempt to ameliorate the situation. 33 Dowdy, who had received similar reports of abrasiveness from each of Ms. McKenna's other supervisors, concurred in the recommendation. Dr. Collins then forwarded the recommendation to the Acting Chief of Staff, Admiral Walsh. Ms. McKenna received notice on August 16 that she would be terminated in two days. She went immediately to the personnel office, where she complained of sex discrimination and was referred to an EEO officer.
The next day Admiral Walsh met with Ms. McKenna. Walsh had requested the Ms. McKenna filed an...
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