Velikonja, Maria v. Gonzales, Alberto ( 2006 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2006 Decided October 17, 2006
No. 05-5030
MARIA VELIKONJA,
APPELLANT
v.
ALBERTO GONZALES, IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL,
APPELLEE
Consolidated with
05-5303
Appeals from the United States District Court
for the District of Columbia
(No. 03cv00832)
(No. 04cv01001)
John F. Karl, Jr. argued the cause and filed the briefs for
appellant.
Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, and Marleigh D. Dover, Attorney.
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Before: TATEL and BROWN, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
Opinion for the court filed Per Curiam.
PER CURIAM: This case arises from a pair of disciplinary
investigations launched by the FBI’s Office of Professional
Responsibility (OPR) against former FBI employee Maria
Velikonja. The OPR investigated claims made by Velikonja’s
supervisor that she had repeatedly falsified arrival times on her
time sheets. Ms. Velikonja brought suit alleging that the level
of scrutiny to which she was subjected, the unusual delay of the
proceedings, and the severity of the penalty imposed on her
were all undertaken for either discriminatory or retaliatory
reasons in violation of Title VII of the Civil Rights Act of 1964.
Velikonja also alleged that the government violated the Privacy
Act, the Due Process Clause, and the First Amendment. The
district court held for the government on each issue. Velikonja
v. Mueller, 315 F. Supp. 2d 66 (D.D.C. 2004); Velikonja v.
Mueller, 362 F. Supp. 2d 1 (D.D.C. 2004); Velikonja v.
Gonzales, No. 04-1001, slip op. (D.D.C. June 30, 2005).
We reverse the District Court’s dismissal of Count I of
Velikonja’s first complaint. In Count I, Velikonja alleged that
the second time the FBI referred her to the OPR it did so for
discriminatory and retaliatory reasons. The government argues
that Velikonja’s discrimination claim fails because mere
investigation by a disciplinary body cannot constitute an adverse
employment action. See Brown v. Brody, 199 F.3d 446, 457
(D.C. Cir. 1999). We need not decide that issue, however,
because Velikonja has alleged that “FBI officials referred [her]
to OPR in order to prevent [her] from receiving promotions until
the OPR complaints are finally resolved.” 1st Am. Compl. ¶ 46.
And, at oral argument, the government conceded that preventing
an employee from receiving a promotion constitutes an adverse
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employment action. See Stewart v. Ashcroft, 352 F.3d 422, 427
(D.C. Cir. 2003); Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir.
2000). Therefore, this claim survives a motion to dismiss and
we are constrained to remand for further consideration by the
District Court.
Count I of Velikonja’s first complaint also alleges
retaliation in violation of Title VII. The District Court’s
decision, however, was issued before Burlington Northern &
Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006). There,
the Supreme Court held that a Title VII plaintiff need not allege
an adverse employment action to state a claim for retaliation, but
rather must show that the employer’s actions are “harmful to the
point that they could well dissuade a reasonable worker from
making or supporting a charge of discrimination.” Id. at 2409.
Velikonja alleges–allegations that we must accept as true at this
stage of the litigation, Rochon v. Gonzales, 438 F.3d 1211, 1216
(D.C. Cir. 2006)–that she was subject to a lengthy investigation,
that she was prevented from receiving promotions during the
pendency of the investigation, and that “the FBI has placed a
cloud over [her] career, which effectively prevents her from
obtaining other career-enhancing assignments for which she is
highly qualified.” 1st Am. Compl. ¶ 40. Because a reasonable
jury could find that the prospect of such an investigation could
dissuade a reasonable employee from making or supporting a
charge of discrimination, we reverse the dismissal of
Velikonja’s retaliation claim and remand for further
consideration by the District Court.
In all other respects, we affirm for the reasons given in the
District Court’s thorough and well-reasoned opinions.
Specifically, the District Court correctly granted summary
judgment as to Counts II and III of Velikonja’s first complaint.
Velikonja failed to introduce evidence showing that OPR
resolves comparable investigations of male employees more
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quickly than it did hers or that the OPR’s non-discriminatory
explanations for the length of the investigation and the severity
of the penalty were pretextual. Velikonja v. Mueller, 362 F.
Supp. 2d 1, 8-13 (D.D.C. 2004). The District Court properly
granted summary judgment on Velikonja’s First Amendment
retaliation claim, Count V of her first complaint, because
Velikonja introduced no evidence establishing a causal link
between her speech and the government’s actions against her.
Velikonja, 362 F. Supp. 2d at 24. Moreover, even if there were
such a link, Velikonja’s claim to money damages would be
barred by the principle of sovereign immunity. Clark v. Library
of Congress, 750 F.2d 89, 102-04 (D.C. Cir. 1984). The District
Court correctly granted summary judgment on Velikonja’s
Privacy Act claim, Count VI of her first complaint. Id. at 13-23.
Among other deficiencies, Velikonja failed to introduce
evidence showing that any alleged violations of the Privacy Act
were “intentional or willful.” 5 U.S.C. § 552a(g)(4); Laningham
v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
Finally, the District Court correctly dismissed Velikonja’s
constructive discharge claim, Count II of her second complaint,
which similarly lacks merit. Velikonja v. Gonzales, No. 04-
1001, slip op. at *7-12 (D.D.C. June 30, 2005).
So ordered.