Moore v. Ashcroft

• Decision Date: 25 August 2005
• Docket Number: No. Civ.A. 01-1576(CKK).,Civ.A. 01-1576(CKK).
• Citation: 401 F.Supp.2d 1
• Parties: Marian L. MOORE, Plaintiff, v. John D. ASHCROFT, Attorney General, Department of Justice, Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

401 F.Supp.2d 1

Marian L. MOORE, Plaintiff, v. John D. ASHCROFT, Attorney General, Department of Justice, Defendant.

No. Civ.A. 01-1576(CKK).

United States District Court, District of Columbia.

August 25, 2005.

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Michael J. Schrier, Raymond Charles Fay, Bell, Boyd & Lloyd, Washington, DC, for Plaintiff.

Andrew David Auerbach, U.S. Department of Labor Office of the Solicitor, Beverly M. Russell, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

Pending before the Court is Defendant's Motion for Summary Judgment.¹ Plaintiff brings claims of race and gender discrimination and retaliation under Section 717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. and Sections 501 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 and 794a. Plaintiff alleges that she was subjected to discrimination and retaliation when she was: "verbally assaulted" in the workplace, Compl. ¶ 7.a; wrongfully referred to the Federal Bureau of Investigation's ("FBI") Office of Professional Responsibility ("OPR") for misconduct, Id. ¶¶ 7.b, 8-10; given what she perceives as undesirable or unreasonable assignments and "embarrassed" in the presence of her colleagues, Id. ¶ 7.d-e; denied an opportunity to work as the acting chief in her supervisor's temporary absence, Pl.'s Opp'n at 3, 14; failed to receive a performance appraisal on one (1) occasion and was "downgraded" on another, Compl. ¶ 7.d; denied reasonable accommodation, Id. ¶ 7.g; denied two (2) requests for temporary duty and assignments, Supplement to Compl. ("Supp. to Compl.") ¶¶ 2-4; and had her official duty station changed, Id. ¶¶ 5-7. Plaintiff also claims that she was subjected to a hostile work environment, id. ¶ 7 and that the allegations in her Complaint constitute a modified version of the traditional "pattern or practice" claim because she was subjected to disparate treatment vis-á-vis similarly situated white males in the FBI when punished through the OPR process. Id. ¶ 11; Pl.'s Opp'n at 43 n. 22.

After carefully considering the Defendant's motion, Plaintiff's Opposition, Defendant's Reply, Plaintiff's Surreply, the submitted exhibits, and the relevant case law, the Court shall grant Defendant's Motion for Summary Judgment.²

I: BACKGROUND

The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h) (formerly Rule 7.1(h)). The local rules for summary judgment "assist [] the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C.Cir.1996). "Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes.... The procedure contemplated by the rule thus isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record." Id. (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C.Cir.1980)). "[A] district court should not be obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make [its] own analysis and determination of what may, or may not, be a genuine issue of material fact." Id. (quoting Twist v. Meese, 854 F.2d 1421, 1425 (D.C.Cir.1988)). As such, in resolving the present summary judgment motion, this Court "assumes that facts identified by the moving party in the statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 56.1; 7(h). The Court also cites directly to the record, where appropriate, to provide additional information not covered in either of the parties' statements.³

Plaintiff Marian L. Moore, an African-American female, began working for the FBI in 1967. Def.'s Ex. 2 (12/17/02 Moore Dep.) at 9:24. In 1975, Plaintiff became a Fingerprint Specialist in the Latent Fingerprint Section of the FBI's Laboratory Division ("Laboratory Division" or "LD"), where she worked for 19 years, until 1994. Id. at 10:12-10:13, 12:2-12:5. Plaintiff reached the GS-12 pay level in 1985. Id. at 12:10. In 1987, Plaintiff and her twin sister, who was also a fingerprint specialist, began to complain of respiratory problems.² Def.'s Ex. 1 (02/24/95 Ahlerich Mem.) at 2. Beginning in March 1993, the FBI attempted to find other positions within the LD where Plaintiff could be assigned. Id. at 6. As part of that effort, in July, 1994, the FBI recommended that Plaintiff be assigned to a GS-12 Management Analyst position in the Administrative Unit of the Laboratory Division ("Administrative Unit" or "AU"), id. at 10, and on March 17, 1995, the recommendation was implemented. Id. at 12. Plaintiff has never requested that she be returned to her position in the Latent Fingerprint Unit, and has served as a Management Analyst since April 1995. Def.'s Ex. 2 (12/17/02 Moore Dep.) at 52:22-53:2.

In 1993 and 1994, Plaintiff filed formal complaints of discrimination with the FBI's Office of Equal Employment Opportunity Affairs. Id. at 24:7-24:8. The 1993 claim alleged discrimination on the basis of sex, race and disability, and was brought against managers in the Latent Fingerprint Section. Id. at 24:9-24:24. The 1994 claim was identical to the 1993 claim except that it added a claim of retaliation. Id. at 28:5 — 28:12. Plaintiff filed a civil action in this District Court in July 1996, alleging discrimination on the basis of sex, race and disability (physical rhinitis) as well as retaliation for having filed the discrimination complaints. Compl. ¶ 6. Plaintiff's case was settled on March 10, 1998, and Plaintiff stipulated to the settlement of all claims she had on or before March 10, 1998. Def.'s Ex. 3 (Stipulation of Settlement and Dismissal, Moore v. Reno, Civil No. 96-1627 HHG (D.D.C.)). As part of the settlement, Plaintiff was promoted to GS-13. Id. ¶ 3.

In January 1999, the Administrative Unit was divided into two (2) units: the Finance Unit and the Human Resources Unit. Def.'s Mot. for Summ. J. at 3; Pl.'s Opp'n at 6. Plaintiff was assigned to the Human Resources Unit where she continued to work as a Management Analyst. Def.'s Ex. 2 (12/17/02 Moore Dep.) at 54:18-56:7. Plaintiff's primary duties "consisted of posting merit vacancy notices, evaluating applicants and doing staffing duties, which at times also included conducting studies and doing research, but mostly posting vacancy notices." Id. at 56:4-56:7. Ms. Janet Cantamessa was designated Unit Chief ("Unit Chief" or "UC") of the Human Resources Unit in January 1999, and joined the unit in April 1999. Def.'s Ex. 4 (01/25/99 Mem. from Laboratory to Director's Office). Ms. Cantamessa's assignment was a lateral transfer from the FBI's Information Resources Division ("Information Resources Division" or "IRD"), where she had been the Personnel Management Unit Chief. Def.'s Ex. 4 (01/25/99 Mem. from Laboratory to Director's Office); Def.'s Ex. 5 (01/17/02 Cantamessa Dep.) at 11:17-18:21; Def.'s Mot. for Summ. J. at 4. Ms. Cantamessa held a similar position in the FBI's Criminal Division from 1991-1996. Def.'s Ex. 4 (01/25/99 Mem. from Laboratory to Director's Office); Def.'s Ex. 5 (01/17/02 Cantamessa Dep.) at 19:7-19:10. In April 1999, Ms. Cantamessa became Plaintiff's supervisor, as well as her rating official for purposes of her performance evaluations. Def.'s Stmt. of Material Facts not in Dispute ("Def.'s Stmt.") ¶ 56.

A. September 1999 Incident

On September 8, 1999, Plaintiff was asked by Ms. Cantamessa to draft an electronic communication ("EC") regarding the grant of leave to the agency's administrative employees who had been deployed to Kosovo. See Pl.'s Opp'n at 7; Def.'s Ex. 27 (OPR Materials) at 5; Pl.'s Ex. 11 (9/9/1999 Memo from Ms. Cantamessa to Plaintiff) at FBI-1008-09; Pl.'s Ex. 11 (9/13/99 Memo from Plaintiff to Mr. DeVincentis) at FBI-1010-12. Ms. Cantamessa provided Plaintiff a previously published EC, and asked Plaintiff to make minor administrative changes to the document and the substantive change of making a two (2) day administrative leave a three (3) day administrative leave. Id. After Mr. Cantamessa sought a status report regarding Plaintiff's progress on the assignment the following day, Plaintiff informed her that she could not complete the assignment because she was provided limited information and would not do the EC unless told specifically what it should say. Id. A disagreement then erupted between Plaintiff and Ms. Cantamessa after Ms. Cantamessa advised Plaintiff that, given her GS-13 level, she should be able to complete the assignment without direct supervision, and noted that she considered Plaintiff's performance to be at an unacceptable level. Id. According to Ms. Cantamessa, and undisputed by Plaintiff, "At this point, Ms. Moore became agitated, came close to me, pointing her finger and raised her voice while stating that she does not do anything without specific and clear instruction and doesn't like her competence questioned." Def.'s Ex. 27 (OPR Materials) at 5. Ms. Cantamessa then asked Plaintiff to lower her voice and stop pointing her finger; Plaintiff refused, and stated that she would not complete the Kosovo Deployment EC task. Id. Ms. Cantamessa then reassigned the task, documented the incident, and informed her Section Chief. Id.

On September 10, 1999, Ms. Cantamessa attempted to counsel Plaintiff regarding her refusal to complete the assignment. Id. at 6. During this session, Ms. Cantamessa asked Ms. Kimberly Hawkins, Plaintiff's former supervisor and a GS-14 Supervisory Management Analyst, to witness the session. Id.; see also Def.'s Ex. 17 (Hawkins Stmt.) at 1; Def.'s Ex. 22 (Thurman...