Velikonja v. Mueller
| Citation | 362 F.Supp.2d 1 |
| Decision Date | 21 December 2004 |
| Docket Number | No. CIV.A. 03-0832(ESH).,CIV.A. 03-0832(ESH). |
| Parties | Maria VELIKONJA, Plaintiff, v. Robert S. MUELLER, III, Director, Federal Bureau of Investigation, Defendant. |
| Court | U.S. District Court — District of Columbia |
John F. Karl, Jr., Nancy J. Malir, McDonald & Karl, Washington, DC, for Plaintiff.
Tamara Lynn Ulrich, Peter T. Wechsler, U.S. Department of Justice Civil Division, Alexander Kenneth Haas, U.S. Department of Justice, Washington, DC, for Defendants.
Plaintiff was employed as a special agent for the Federal Bureau of Investigation (the "FBI" or "Bureau") for eighteen years. She contends that toward the end of her tenure, her employer discriminated against her on the basis of her gender and retaliated against her for protected EEO activities in violation of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e et seq. She also alleges a violation of her First Amendment rights, claiming her employer improperly retaliated against her for her vocal advocacy of alternative work schedules, and alleges that her employer unlawfully disciplined her based upon documents maintained in violation of the Privacy Act, 5 U.S.C. § 552a et seq. Defendant has moved for summary judgment as to all four counts that remain after this Court's ruling in Velikonja v. Mueller, 315 F.Supp.2d 66 (D.D.C.2004) (hereinafter Velikonja I). For the reasons set forth below, the Court concludes that defendant's motion for summary judgment should be granted.
Plaintiff began working at the Bureau in 1985. In January 2000, she was selected for a position as an Assistant General Counsel/Supervisory Special Agent in the Bureau's National Security Law Unit (NSLU) in the Office of the General Counsel (OGC). A mother of three, plaintiff preferred to work a schedule that deviated from the typical Bureau workday. She had been approved for "flex-time" in her prior position with the Bureau's Finance Division. Plaintiff did not receive written approval to continue a flex-time schedule upon her transfer, but claims that her new supervisor, Michael Woods, expressly approved her use of flex-time. (Pl.'s Facts ¶ 25). Throughout 2000 and 2001, Velikonja would often e-mail Woods with her planned work schedule. (Pl's Ex. FF (Velikonja-Woods E-mails).) Woods did not object to Velikonja's working flexible hours with his prior approval. (Pl.'s Ex. B. (Woods' Handwritten Notes, July 28, 2000) (hereinafter "Woods Notes").)
Plaintiff was the representative from OGC to the Female Special Agent Advisory Committee ("FSAAC"). In that capacity, she attended national meetings and was a vocal advocate of "flex-time" and "flex-tour" for FBI Agents. Her advocacy on work-life issues dates back to 1999. (See Pl.'s Ex. P.)
In spring of 2000, Woods began to observe discrepancies in the hours plaintiff claimed she worked on her time sheets as compared to the time she was actually seen working. (Def.'s Mot. to Dismiss Ex. G (Woods St., Feb. 22, 2001) at 3.) Between June 20 and July 18, he closely monitored plaintiff's arrival times1 by accessing the electronic building access time logs. He also recorded her departure on some occasions based on his own observations. He compared the time logs and his observations with plaintiff's time entries, and compiled a summary chart which noted the discrepancies. (Def.'s Ex. A. (Woods Mem., July 19, 2000).)
On July 20, 2000, Woods met with Velikonja to discuss his observations and asked her to prepare a written response and to correct her time sheets. She did so later that day. (Def.'s Facts ¶¶ 3-4; Woods Notes.) During a routine inspection in October 2000, the Bureau's Inspection Division discovered Woods' records regarding plaintiff's time and attendance and instructed OGC to refer the matter to the Bureau's Office of Professional Responsibility (OPR). OPR began an official investigation into plaintiff's time and attendance on November 7, 2000. (Def.'s Mot. to Dismiss Ex. H (Velikonja St., July 16, 2002) at 13-14 (hereinafter "Velikonja July 2002 St."); Pl.'s Facts ¶ 7.)
After the meeting in July, Woods observed no further problems until the next spring, when he again noticed what seemed to be unauthorized absences. For example, plaintiff signed out at 4:30 p.m. on a day when she was allegedly observed leaving the Bureau's Quantico facility at 1:00 p.m. (Pl.'s Dep. Ex. 14 () (hereinafter "OGC July 2001 Mem.").) After again comparing her time sheets with his observations of her departure times, Woods discovered five other occasions when plaintiff seemed to be absent without explanation. (Id. at 1312.) Woods relayed this new information to OPR in a memo dated July 9, 2001. (Id.)
On May 13, 2001, plaintiff was assigned to Temporary Duty in Macedonia. She returned to the United States early, but did not report back to NSLU. (Velikonja July 2002 St. at 18-19; Def.'s Ex. G (Parkinson St., Apr. 22, 2003) (hereinafter "Parkinson St.").) While plaintiff claims that she intended to return to Macedonia and was still on assignment, Woods concluded after discussions with her supervisor's overseas that Velikonja appeared not to be working for either unit. (Pl.'s Dep. Ex. 25 (Woods St., Mar. 24, 2003).) Citing concerns about plaintiff's "veracity and trustworthiness" and considering that "NSLU handles some of the most sensitive information within the FBI," OGC transferred her against her will out of her position at the NSLU into the Procurement Law Unit in the Bureau's Office of General Counsel on July 23, 2001. (Parkinson St. at 3-4; see Velikonja July 2002 St. at 19-20.) Then, on July 27, 2001, the Bureau made a second referral to OPR of discrepancies in plaintiff's time and attendance reports, focusing on her temporary duty in Macedonia. (Parkinson St. at 3.)
On January 30, 2002, the first OPR investigation was completed. Based on its findings and conclusions, the Bureau suspended plaintiff for fourteen days and placed her on probation for one year because of her time and attendance abuses. The Bureau denied plaintiff's appeal. (Pl.'s Ex. BB.) Before the second investigation was completed, however, she resigned from the Bureau.
In Velikonja I, this Court dismissed Counts I and IV of plaintiff's Complaint. Her complaint contains four remaining Counts. In Count II she claims that OPR's investigations were delayed for discriminatory and retaliatory reasons. In Count III she alleges disparate discipline, claiming that the suspension and probation resulting from the first investigation were excessive and were imposed because of her gender. Plaintiff invokes the First Amendment in Count V, alleging that her employer retaliated against her for exercising her free speech rights by, inter alia, advocating alternative work schedules, and in Count VI, she alleges violations of the Privacy Act, claiming that the disciplinary action taken against her was based on notes and materials "unlawfully" maintained by her supervisor.
Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505; see also Wash. Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir.1989).
The non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party must provide evidence that would permit a reasonable jury to find in the non-moving party's favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. March 31, 1998) (internal citation omitted), aff'd, No. 99-5126, 1999 WL 825425, at *1 (D.C.Cir. Sept. 27, 2000).
In Count II plaintiff alleges that OPR delayed the completion of its investigation for discriminatory and retaliatory reasons and that this delay "damaged [her] career." (Compl.¶ 54.) Plaintiff claims in Count III that the Bureau imposed a penalty that was excessive in comparison with that imposed on male agents for similar conduct.2 (Id. ¶ 57.)
Counts II and III allege disparate treatment on the basis of gender, thus triggering the application of the McDonnell Douglas three-part "shifting burdens" test. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiff has the initial burden of proving a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. To do so, plaintiff must establish: (1) that she...
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