Warren v. Pon, Civil Action No. 14–1094 (BAH)

Decision Date30 March 2018
Docket NumberCivil Action No. 14–1094 (BAH)
Citation304 F.Supp.3d 165
Parties Barbara S. WARREN, Plaintiff, v. Jeff T.H. PON, Director, Office of Personnel Management, Defendant.
CourtU.S. District Court — District of Columbia

Edgar Ndjatou, McCree Ndjatou, PLLC, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Plaintiff Barbara S. Warren brings this action under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), see 42 U.S.C. §§ 2000e et seq. , and the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C. §§ 621 et seq. , against her former employer, the Director of the Office of Personnel Management ("OPM"). Pending before the Court is Defendant's Motion for Summary Judgment, ECF No. 36. For the reasons discussed below, OPM's motion will be granted.

I. BACKGROUND

The plaintiff, who was born in 1949, Compl. ¶ 13, describes herself as "an African American woman of medium-brown color," id. ¶ 14; see Def.'s Mem. in Support of Mot. for Summ. J. ("Def.'s Mem."), Ex. 1 ("Pl.'s Dep.") at 11:23–12:7. On August 6, 2007, the plaintiff was hired under the Federal Career Intern Program, with her appointment "not to exceed [two] years." Def.'s Mem., Ex. 3 (Notification of Personnel Action dated August 6, 2007). "Upon satisfactory completion of the program, [the plaintiff could have been] noncompetitively converted to a permanent appointment." Id. If, however, her performance was "not satisfactory or if [she] fail[ed] to satisfactorily complete this program, employment [was to] be terminated." Id.

The plaintiff worked in OPM's Federal Investigative Services Division ("FISD"), now known as the National Background Investigations Bureau, Def.'s Mem. at 2, as a Special Agent (Investigator), GS–09, step 01, see id. , Ex. 3; see also id. , Ex. 1 ("Pl.'s Dep.") at 23:13–18. From August 6, 2007 through February 18, 2008, the plaintiff's immediate supervisor, or Supervisory Agent in Charge ("SAC"), was Dave Ferguson, see Pl.'s Dep. at 26:12–20, who led a team of approximately twenty Investigators, Pl.'s Dep. at 26:16–18. The plaintiff then transferred to another team, Pl.'s Dep. at 28:15–16, and from February 19, 2008 through November 2008, the SAC was Erin Leigh Briggs ("Briggs"), Pl.'s Dep. at 28:9–16, whose team included eight first-year agents, Pl.'s Dep. at 30:19–31:1. The plaintiff's second-level supervisor was Vicki Clancy ("Clancy"), Deputy Chief of Field Operations for the Capital Region. Def.'s Mem., Ex. 6 ("First Clancy Aff.") at 1. Her third-level supervisor was Barry Shine ("Shine"), Program Manager, Chief of Field Operations for the Capital Region, id. , Ex. 18 ("First Shine Decl.") at 1–2; id. , Ex. 2 ("Warren Aff.") at 2. Her fourth-level supervisor was Charles F. Dininger ("Dininger"), Chief of Field Operations. Warren Aff. at 2. Initially, the plaintiff's duty station was in Annandale, Virginia; as of August 25, 2008, her duty station was in Arlington, Virginia. Id.

An Investigator (Special Agent), under a SAC's supervision, "conducts and reports investigations primarily involving Federal personnel operations." Def.'s Mem., Ex. 4 (Position Description) at 2. The Investigator "characteristically performs the full range of investigative functions on assigned cases or portions of cases, from planning through fact-finding to reporting the results of [her] investigations." Id. , Ex. 4 at 2. "The supervisor reviews the work completed by the GS–9 investigator for technical accuracy and adequacy and for compliance with operating instructions, guides, rules and regulations." Id. , Ex. 4 at 4. The position "is a national security position, designated as critical-sensitive." Id. , Ex. 4 (Addendum to Position Description) at 6.

"[The plaintiff] graduated from the Basic Investigator Course (BIC) on October 19, 2007." Def.'s Mem., Ex. 10 ("Second Briggs Aff.") at 3. She "work[ed] in the field from October 19, 2007 to January 15, 2008," and as of January 15, 2008, or 90 days after graduation from the BIC, the plaintiff was "placed on standards," Second Briggs Aff. at 3; see First Clancy Aff. at 4, which presumably refers to the performance standards applied to first-year agents, see Def.'s Mem., Ex. 12 (First Year Special Agent Performance Standards), ECF No. 36–12.

A. Telephone and Email Communications and Meetings with Briggs

The plaintiff apparently found fault with Briggs' management and communication style. She objected to Briggs' "overall demeanor and the way [Briggs] handled conversations" with her. Pl.'s Dep. at 38:15–16. While the plaintiff had "[n]o issue" accepting criticism from her former supervisor Dave Ferguson, Pl.'s Dep. at 33:10, she believed that the criticism she received from Briggs offered "[n]othing constructive," Pl.'s Dep. at 33:19. According to the plaintiff, Briggs "deliberately and spitefully harassed [her] by subjecting [her] to [an] idiosyncratic style of micromanagement," for example, by giving "[her] work ... a level of scrutiny that was unnecessary and unproductive." Warren Aff. at 2. The plaintiff considered Briggs "bossy [and] dictatorial," and accused Briggs of having "devised a system of communication that set [the plaintiff] apart from [her] coworkers for special demeaning treatment." Id. For example, the plaintiff discerned a distinction between the types of emails Briggs would send. See Pl.'s Dep. at 55:12–19, 56:17–23. Group 1 emails, which "tend[ed] to have a positive message," were "addressed to recipients in alphabetical order according to the last names," and Group 2 emails, which "tend[ed] to be negative," listed the plaintiff as the first recipient. Warren Aff. at 4 (emphasis removed); see id. at 4–6, 11–12, 17; see also Def.'s Mem., Ex. 17 (Report of Investigation, Appendix A (Comparative Analysis of Type 1 (Positive) and Type 2 (Negative) Combined Emails (February 3—September 29, 2008) ). According to the plaintiff, Briggs would "not return calls or respond to emails in a timely manner," which had a negative impact on the plaintiff's "case work performance" and caused her "to turn elsewhere for information or direction." Warren Aff. at 12.

On March 18, 2008, the plaintiff received an email from Briggs, who had randomly reviewed a case assigned to the plaintiff. Id. at 6. In the email, Briggs stated that the plaintiff "had not made an attempt to contact the Subject of the [investigation] for leads and no case message regarding leads had been sent to the investigator who would be doing the Subject interview." Id. Briggs allegedly told the plaintiff that "items were still pending" and issued instructions that the plaintiff "call the help desk to [have] them ... re-open the case and ... call the Subject for leads." Id. The plaintiff did follow up, see id. at 6–7, yet days later Briggs "continued to badger" her regarding the case," id. at 7, during a telephone call on or about March 24, 2008, id ; see Pl.'s Dep. at 33:20–34:16. The plaintiff "ended the conversation," after having advised Briggs that she "was not going to put up with [Briggs'] actions." Warren Aff. at 7.

Just over a month after joining Briggs' team, the plaintiff approached her second- and third-level supervisors regarding her problems with Briggs, including Briggs' "condescending manner and unprofessionalism." Id. at 13. On March 27, 2008, the plaintiff met with Shine and Clancy, for a meeting that lasted several hours. Def.'s Mem., Ex. 9 ("First Briggs Aff.") at 4; First Shine Aff. at 2; First Clancy Aff. at 2; Warren Aff. at 14. Briggs joined the meeting during its last hour, and at its conclusion, Shine was under the impression "that all issues between [the plaintiff] and [Briggs] had been discussed and resolved to the extent that they agreed to start over." First Shine Aff. at 2. Shine opined that the plaintiff believed Briggs was not treating her like an adult, a misunderstanding which he thought could occur "when a supervisor [provides] unwanted constructive criticism." Id. After having reviewed 10 emails between the plaintiff and Briggs, Shine found that none was demeaning. Id. Rather, in his view, the emails showed that the plaintiff was "upset about her reports being returned to her and felt that she was not being treated as an adult who was able to work independently." Id.

According to Clancy, the plaintiff believed that Briggs "was being too picky in her case review," and the plaintiff simply "did not like the way Briggs communicated with her." First Clancy Aff. at 2. The plaintiff "stated that Briggs had a ‘tone’ in her emails." Id. Clancy advised both the plaintiff and Briggs "to simply read their emails and not to ‘read into’ the emails." Id. at 3. According to Clancy, the plaintiff and Briggs left the meeting with an agreement to "begin a new and better supervisor/subordinate relationship." Id. The plaintiff "agreed [to] treat Briggs with more respect and Briggs agreed to communicate more clearly what changes needed to be made in reports to improve their quality." Id.

The plaintiff requested bereavement leave, from April 14, 2008 through April 16, 2008, after the death of her father on March 24, 2008. Warren Aff. at 7. On April 8, 2008, Briggs called the plaintiff's "cell phone and questioned whether [she] would be able to complete the work assigned [with Assigned Completion Dates] of April 16, 2008." Id. The plaintiff was told that, if she could not complete the work timely, Briggs would not approve her leave request. Id. Apparently the plaintiff's leave request was approved anyway, as a mid-year review previously scheduled for April 15, 2008, was rescheduled for April 17, 2008. See id. at 7–8.

A telephone call from Briggs to the plaintiff on or about April 23, 2008, turned into a heated exchange. See Pl.'s Dep. at 36:20–38:1. Briggs left the plaintiff a voicemail message in the afternoon, and gave the plaintiff "a window of ten to fifteen minutes to return the call[.]" Warren Aff. at 8. She returned Briggs' call "within seven or eight minutes," and Briggs...

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