Francis v. Perez ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
JEAN D. FRANCIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-763 (RMC)
)
R. ALEXANDER ACOSTA, Secretary )
of the U.S. Department of Labor )
)
Defendant. )
__________________________________ )
MEMORANDUM OPINION
Jean D. Francis, Ph.D, sues R. Alexander Acosta in his official capacity as
Secretary of the Department of Labor for alleged discrimination and retaliation in violation of
Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. The
government moves for summary judgment. Having fully considered the Parties’ arguments and
the record after discovery, the Court will grant the government’s motion.
I. BACKGROUND
Dr. Jean Francis is an African-American female of West Indian descent who was
over the age of 40 at all times relevant to this case and who engaged in protected activity by
asserting rights to equal employment opportunity (EEO). Def.’s Statement of Undisputed
Material Facts (Def.’s SOF) [Dkt. 27] ¶ 2. 1 Dr. Francis joined the Department of Labor (DOL)
in June 2007 to serve as Chief of the Branch of Budget Formulation and Implementation in the
Office of Management, Administrative and Planning, Employment Standards Administration
1
For the reasons discussed in Section III, infra, the facts are taken from Defendant’s Statement
of Undisputed Facts unless disputed by Dr. Francis.
1
(ESA), a GS-15 position. See Francis v. Perez, 970 F. Supp. 2d 48 (D.D.C. 2013) (Francis I),
aff’d Francis v. Perez, No. 13-533, 2014 WL 3013727 (D.C. Cir. May 16, 2014) (Francis II).
Dr. Francis’ tenure as Chief was not entirely successful and, on June 22, 2009,
DOL reassigned her “to a non-supervisory position at the same grade level by creating a Special
Assistant [non-supervisory] position for her in the Office of the Director.” Francis, 970 F. Supp.
2d at 58. In November 2009, DOL was reorganized in part, the ESA was eliminated as a
separate agency, and Dr. Francis was re-assigned to the Departmental Budget Center (Budget
Center or DBC) as a GS-15 Budget Analyst Team Lead. For the period relevant to Dr. Francis’
Complaint, the Budget Center was responsible for overseeing DOL’s budget submission and
presentation to the Office of Management and Budget and to Congress. According to her
position description as a Budget Analyst Team Lead, one of Dr. Francis’ duties was to develop,
plan, and implement “program strategies that are critical to the development of Congressional
and Presidential budget justifications for the Department.” Def.’s SOF ¶ 7. Dr. Francis was also
subject to “administrative and policy direction” concerning “financial management project
priorities and objectives in the organization,” established by the Budget Center’s Director,
Geoffrey Kenyon, who was Dr. Francis’ first-line supervisor. Id. ¶ 8. T. Michael Kerr, Assistant
Secretary for Administration and Management, was her second-line supervisor.
Shortly after Dr. Francis arrived at the Budget Center, Assistant Secretary Kerr
introduced a new program whereby the Budget Center was to emphasize customer service and
outreach from the Budget Center to its internal-DOL customers as a primary focus of the office.
Dr. Francis was assigned outreach to the Agency Budget Officers (ABOs) as a primary focus of
her duties.
2
In Fiscal Year 2010 (FY 2010), Dr. Francis received a “Highly Effective” rating.
She received a rating of “Effective” for FY 2011 and FY 2012. However, in FY 2012, as
regarding that part of her essential duties related to “Competency Building for ABOs,” Dr.
Francis received the lesser rating of “Meet.” On November 5, 2012, Dr. Francis met with Mr.
Kenyon and expressed her dissatisfaction with the “Meet” rating, at which point Mr. Kenyon
advised her that she needed to “build trust” with the Agency Budget Officers in order to raise her
rating; he suggested that she connect with them by taking them out to lunch. Id. ¶ 14. Finding
the suggestion demeaning, Dr. Francis complained to Mr. Kerr.
Although Mr. Kenyon remained her official supervisor and responsible for her
performance review, Dr. Francis served on an interagency detail to the Department of Justice
(DOJ) from June 2012 to March 2013. In April 2013, upon her return, Dr. Francis met with Mr.
Kenyon to discuss her new work assignments at the Budget Center. Among other items, Mr.
Kenyon directed Dr. Francis to develop a training plan of subjects needed by the Agency Budget
Officers. This training plan “was to be a continuation of an assignment she had completed
successfully in 2011,” to wit, a DOL-wide training program on budget formulation and
execution. Id. ¶ 16.
Mr. Kenyon sent an email to Dr. Francis on May 10, 2013, to follow up on their
meeting and to identify those assignments on which he wanted an update, including the training
plan. Dr. Francis responded on the same date, asking Mr. Kenyon to provide his “vision” for the
training plan. Id. ¶ 17. Mr. Kenyon’s email response stated that his vision was the same one he
had outlined during their April meeting, which was for Dr. Francis to develop training plans
specific to the needs of Agency Budget Officers that DOL staff could provide internally during
3
FY 2013. 2 He told Dr. Francis that the topics for training should be guided by “discussions with
the ABOs regarding where they think their offices need improvement/development.” Def.’s SOF
¶ 18 (marks omitted).
Mr. Kenyon sent a “follow-up” email to Dr. Francis on May 24, 2013, inquiring
about the status of her outstanding work assignments. There is no evidence that she responded
or updated him. On June 3, 2013, Mr. Kenyon asked directly, “‘how are we coming with the
training plan?’” Id. ¶ 20. Dr. Francis sent him a copy of her training plan by email on June 4.
On June 6, 2013, Mr. Kenyon thanked Dr. Francis for the plan, which he found “helpful” but
“not what [he] was looking for or what [they] had discussed” in April. Id. ¶ 22. He again asked
Dr. Francis to meet with each Agency Budget Officer and have them identify areas in which they
would like to develop more capability. Further, Mr. Kenyon asked Dr. Francis to complete these
meetings by June 19 and to develop a training plan along the lines of their original discussion.
The proposed schedule conflicted with planned leave for Dr. Francis. Therefore, she sought
informal EEO counseling soon thereafter, which evolved into a formal EEO complaint in
September 2013 based in part on this conduct. See Def.’s Mem., Ex. 2, Formal EEO Compl.
(Sept. 12, 2013) [Dkt. 27-1].
Dr. Francis met directly with Mr. Kenyon on June 27, 2013, to discuss her mid-
year review. At that meeting, they again discussed the need for the training plan. Nonetheless,
neither at the end of the rating period in September 2013 nor at the end of calendar year 2013
2
The Court takes judicial notice of the FY 2013 budget sequestration which substantially
reduced all federal budgets in March 2013. See Michael D. Shear, Many Steps to Be Taken
When ‘Sequester’ Is Law, N.Y. Times, Feb. 28, 2013, at A12. See also Def.’s Mem. in Supp. of
Mot. for Summ. J. (Def.’s Mem.) [Dkt. 27], Ex. 12, Follow-Up Emails Between Geoffrey
Kenyon and Jean Francis [Dkt. 27-1] at 448 (“I want to focus on items and issues we can train
using DOL Federal staff because of the lack of resources under sequestration.”).
4
had Dr. Francis met with the Agency Budget Officers or completed a new training plan based on
their needs and what DOL could provide with existing resources. Def.’s SOF ¶¶ 23-24.
In September, Mr. Kenyon directed Dr. Francis to work with her colleague,
Andrew Rider, on a “Departmental e-Business Suite (DEBS) training initiative.” Id. ¶ 25.
However, Dr. Francis produced no work product for the DEBS training project, although Mr.
Kenyon observed her working on her computer. See id.; Def.’s Mem., Ex. 13, Dep. of Andrew
Rider (Rider Dep.) at 63-64.
In the late summer or early fall of 2013, Mr. Kenyon spoke with Edward Hugler,
Deputy Assistant Secretary for Operations, about a transfer for Dr. Francis to a position “where
[she] might be more successful.” Def.’s SOF ¶ 27. During the course of that conversation, Mr.
Kenyon stated that Dr. Francis’ work performance had been declining although she appeared
busy at her computer. Mr. Hugler suggested an inquiry into Dr. Francis’ computer use by DOL’s
Office of the Chief Information Officer (OCIO) and Mr. Hugler set that inquiry into motion. Id.
¶ 28.
OCIO reviewed Dr. Francis’ web history and searched her computer hard drive,
examining records from late March 2013 (when she returned from DOJ detail) to December
2013. See Def.’s Mem., Ex. 15, OCIO Security DOL/DBC Inappropriate Use Inquiry Analysis
Report T6599 (OCIO Report) [Dkt. 27-1]. During that time period, Dr. Francis had spent much
of her work day on websites associated with the American Public University System
(occasionally APUS), an online university; 490 documents in personal folders on Dr. Francis’
computer related largely to her studies and work with that University. Def.’s SOF ¶ 30. In fact,
starting in March 2013, Dr. Francis had taken several courses with APUS, including Faculty
Candidate Training Course; Graduate Faculty Certification Course; APUS 110-Integration of
5
Multimedia to Enhance Your Classroom; Fostering Teaching Excellence Within the Community
of Inquiry Framework; APUS 214-Effective Time Management in Online Instruction; and APUS
105-Online Library Resources Workshop. Also revealed on her computer was an April 17, 2013
letter from APUS offering Dr. Francis a position as an adjunct faculty member. In August 2013,
Dr. Francis began compensated work as a professor for the American Public University System,
and documents and web history from Dr. Francis’ computer showed that she was grading student
papers on her work computer during work hours. Id. ¶¶ 33-34.
During Dr. Francis’ tenure at DOL, the Department had a policy governing
employees’ use of information technology (IT) which stated, “Employees are authorized limited
personal use of DOL office equipment. This personal use must not result in loss of employee
productivity or interference with official duties.” Id. ¶ 36 (quoting Def.’s Mem., Ex. 19, DOL
Manual Series (DLMS) 9 – Chapter 900, Appropriate Use of IT (IT Policy) [Dkt. 27-1])). The
IT Policy further provided as an example of inappropriate use “[u]se for commercial purposes or
in support of ‘for-profit’ activities or in support of other outside employment or business activity
(e.g., consulting for pay, sales or administration of business transactions, sales of good or
services).” Id. As a DOL senior manager, Dr. Francis had completed four separate training
courses on the Department’s computer system which specifically referred to the IT policy and
warned employees that they were responsible for following DOL’s IT policies and procedures.
Id. ¶ 38; Def.’s Mem., Ex. 20, Jean Francis Learning History [Dkt. 27-1].
At no point did Dr. Francis seek permission to engage in private studies or work
for APUS on her government computer while working at DOL.
6
On December 5, 2013, Mr. Kenyon rated Dr. Francis’ performance as “Minimally
Satisfactory” because she had not completed the training plan for Agency Budget Officers that
he had assigned in April.
Mr. Kenyon issued a Notice of Proposed Removal (Notice) to Dr. Francis dated
February 21, 2014. Id. ¶ 40. The Notice did not rely on her performance, as reflected in her
most recent rating, but cited two different reasons for her removal: (1) Excessive Use of
Government Equipment for Personal Unofficial Purposes; and (2) Improper Use of Official
Work Hours for Personal Unofficial Purposes. See Def.’s Mem., Ex. 22, Notice of Proposed
Removal [Dkt. 27-1]. Her proposed removal was sustained on internal appeal and she was
removed from federal service effective May 9, 2014. Def.’s SOF ¶ 43.
Dr. Francis now alleges, based on the facts above, that DOL discriminated against
her due to her sex, national origin, and race (Count I), in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. She also alleges discrimination because of her age
(Counts IV and V), in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
29 U.S.C. § 621. Finally, she alleges retaliation and a hostile work environment (Counts II, III,
and VI) in violation of both statutes. See Compl. [Dkt. 1]. The government moves for summary
judgment. 3
II. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure states that summary judgment
shall be granted “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.
3
See Def.’s Mot. for Summ. J. [Dkt. 27]; Def.’s Mem; Opp’n to Def,’s Mot. for Summ. J.
(Opp’n) [Dkt. 30]; Def.’s Reply to Opp’n to Def.’s Mot. for Summ. J. (Def.’s Reply) [Dkt. 32].
7
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is “material” if it is capable of affecting
the substantive outcome of litigation. Anderson, 477 U.S. at 248. A dispute is “genuine” if there
is sufficient admissible evidence such that a reasonable jury could return a verdict for a non-
moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).
Summary judgment is properly granted against a party who “after adequate time
for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary
judgment, a court must draw all justifiable inferences in the nonmoving party’s favor. Anderson,
477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of
a scintilla of evidence” in support of its position. Id. at 252. The nonmoving party must point to
specific facts showing that a genuine issue of material fact requires trial. Celotex, 477 U.S. at
324. The nonmoving party may not rely solely on allegations or conclusory statements. Greene
v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present
specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence “is
merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50. “While summary judgment must be approached with special
caution in discrimination cases, a plaintiff is not relieved of his obligation to support his
allegations by affidavits or other competent evidence showing that there is a genuine issue for
trial.” Hussain v. Principi, 344 F. Supp. 2d 86, 94 (D.D.C. 2004) (quoting Calhoun v. Johnson,
No. 95-2397, 1998 WL 164780, at *3 (D.D.C. March 31, 1998)).
III. ANALYSIS
Certain preliminary issues need immediate attention.
8
First, Dr. Francis previously sued the Department of Labor in 2012 following her
2009 removal as Chief of the Branch of Budget Formulation and Implementation at ESA,
alleging discrimination, harassment, and retaliation based on her national origin (West Indies)
and religion (Seventh Day Adventist) in violation of Title VII. Judge Ellen Segal Huvelle of this
Court dismissed her complaint and was affirmed by the D.C. Circuit. See Francis II, 2014 WL
3013727, at *1 (“The merits of the parties’ positions are so clear as to warrant summary
action.”). To the extent that Dr. Francis continues to reference these once-contested events
without recognizing that they have been fully litigated, too much time has passed between those
events and the relevant events in this case for the former to have caused the latter. See Woodruff
v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007) (“Temporal proximity can indeed support an
inference of causation, but only where the two events are very close in time.” (internal marks and
cites omitted)).
Second, although represented by counsel, Dr. Francis failed to submit to this
Court a “separate concise statement of genuine issues setting forth all material facts as to which
it is contended there exists a genuine issue necessary to be litigated,” including references to the
record, as required by Local Civil Rule 7(h). See LCvR 7(h). DOL contends that Dr. Francis has
not controverted any of its facts but “merely sets forth an opposition factual narrative,” Def.’s
Reply at 2, and asks the Court to treat all of DOL’s facts as admitted by Dr. Francis.
Local Civil Rule 7(h) states in relevant part:
An opposition to [a motion for summary judgment] shall be
accompanied by a separate concise statement of genuine issues
setting forth all material facts as to which it is contended there exists
a genuine issue necessary to be litigated, which shall include
references to the parts of the record relied on to support the
statement. . . . In determining a motion for summary judgment, the
Court may assume that facts identified by the moving party in its
statement of material facts are admitted, unless such a fact is
9
controverted in the statement of genuine issues filed in opposition
to the motion.
LCvR 7(h). “In plain terms, [Rule 7(h)] places the burden on the parties to focus the court’s
attention on the salient factual issues in what otherwise may amount to a mountain of exhibits
and other materials.” Jackson v. Finnegan, Henderson, Farabow, Garret & Dunner, 101 F.3d
145, 153 (D.C. Cir 1996). “The importance of filing a proper [Rule 7(h)] statement is well
established.” Id. at 151 (citing Gardels v. CIA, 637 F.2d 700 (D.C. Cir. 1980)). “Requiring strict
compliance with the local rule is justified both by the nature of summary judgment and by the
rule’s purposes.” Gardel, 637 F.2d at 773. Indeed, “failure to file a proper . . . statement ‘may
be fatal to the delinquent party’s position.’” Jackson, 101 F.3d at 151 (quoting Gardels, 637 at
773). That said, Rule 7(h) “does not require litigants to label their . . . statements in a particular
manner,” although whatever form those statements take must still “functionally . . . comply with
the rule’s plain terms and purpose.” Id. at 153.
Dr. Francis’ Opposition contains a section titled “Plaintiff’s Statement of Facts &
Material Facts in Dispute.” Opp’n at 2-14. In it, Dr. Francis has laid out her own competing
narrative. To a significant extent this counter-narrative does not challenge DOL’s facts or
identify facts in dispute, much less material facts in genuine dispute. Therefore, most of DOL’s
Facts, cited above, are treated as uncontested for the purposes of summary judgment.
However, Dr. Francis’ Statement makes clear that even if DOL has set forth a
legitimate, non-discriminatory reason for her termination, she believes that reason is pretextual.
Specifically, she challenges the legitimacy and accuracy of the audit of her computer files;
questions the explanation for her “Minimally Satisfactory” performance rating in 2013 as
internally inconsistent; and asserts that her treatment by Mr. Kenyon began to deteriorate
following a complaint by her in November 2012 to Mr. Kerr about Mr. Kenyon, and
10
progressively worsened after she began the EEO complaint process later that summer, which the
Court understands to assert a retaliation claim. See Opp’n at 8-14. The Court addresses these
arguments on the merits.
Third, while Dr. Francis’ narrative and argument appear to include citations to the
record, many of her citations are inaccurate and several quotes are nowhere to be found in the
cited exhibits. It often appears as though Dr. Francis is citing another record entirely. To the
extent the evidence underlying her facts is missing from the record, even if those facts contradict
facts set forth by DOL, they are insufficient to raise a genuine issue of material fact. Greene,
164 F.3d at 675.
A. Disparate Treatment Under Title VII and the ADEA
Title VII prohibits discrimination in the workplace because of an individual’s
race, color, sex, religion, or national origin. 42 U.S.C. § 2000e-16. Similarly, the Age
Discrimination in Employment Act (ADEA) prohibits discrimination against employees based
on age. See 29 U.S.C. § 623 (making it unlawful “to discharge or otherwise discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's age”); 29 U.S.C. § 633a (extending ADEA protections to most
federal employees). “Under Title VII [and] the ADEA, the two essential elements of a
discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because
of the plaintiff’s race, color, religion, sex, national origin, [or] age.” Baloch v. Kempthorne, 550
F.3d 1191, 1196 (D.C. Cir. 2008). Under both Title VII and the ADEA, a plaintiff can prove her
11
case with either direct or circumstantial evidence. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
177-78 (2009). 4
If a plaintiff cannot provide direct evidence of discrimination, courts apply the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas framework: (1) the plaintiff must establish a prima facie case
demonstrating that she was subjected to an adverse employment action under circumstances that
would support an inference of discrimination; (2) the defendant may then come forward with a
legitimate, non-discriminatory reason for its actions; if the defendant does so, (3) the plaintiff
must demonstrate that such legitimate, non-discriminatory reasons were pretextual justifications
to hide discrimination. Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003). Once an
employer asserts a legitimate, non-discriminatory reason for the action(s) taken, the need to
analyze the prima facie case drops away and “the district court must resolve one central
question: Has the employee produced sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason was not the actual reason and that the employer
intentionally discriminated against the employee on the basis of race, color, religion, sex, or
national origin?” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).
1. Termination
DOL’s Notice of Proposed Removal cited two legitimate, non-discriminatory
reasons for Dr. Francis’ removal: (1) Excessive Use of Government Equipment for Personal
Unofficial Purposes; and (2) Improper Use of Official Work Hours for Personal Unofficial
4
ADEA has a stricter causation requirement than Title VII: age must be the “but-for” cause of
the adverse action and not merely a “motivating factor.” See Gross, 557 U.S. at 174. But
because the Court finds Dr. Francis cannot support her Title VII claim under even the mixed-
motive standard, which evidence is the same for her ADEA claim, the Court need not belabor the
distinction.
12
Purposes. See Notice of Proposed Removal; OCIO Report at 3 (“On a typical day, the subject
would spent [sic] about 10 minutes to possibly two hours or more per day accessing .edu related
websites.”); Def.’s Mem., Ex. 17, Dep. of Patrick Andrew Browne (Browne Dep.) [Dkt. 27-1] at
23-24 (“There was a large box of files taken from Dr. Francis’ computer that were accessed
during duty hours that showed activities such as giving feedback to students on their graded
work.”).
Dr. Francis argues that the accuracy of the OCIO report is “suspicious” and that
the IT audit conclusions on her computer use are not credible. But Dr. Francis mis-reads the
record evidence and her arguments are unavailing. She contends that the OCIO report
documented an incredible number of “hits” by her computer to educational websites and that Mr.
Kenyon admitted that such “hits” were an unreliable basis for measuring Internet use. Opp’n at
12; Opp’n, Ex. L, Tr. of Merit Sys. Prot. Bd. Hearing (MSPB Tr.) [Dkt. 31-2] at 157-58. But
while Mr. Kenyon agrees with her on the reliability of “hits,” Dr. Francis ignores that part of his
testimony stating that he, accordingly, “did not rely on the number of hits when proposing
removal.” Id. at 157. Dr. Francis further fails to rebut those portions of the OCIO Report which
explicitly documented her “browse time.” See OCIO Report at 19-20.
Similarly, Dr. Francis argues that Mr. Kenyon altered the OCIO report while
correcting drafting errors. Opp’n at 12 (quoting MSPB Tr. at 147). Her argument grossly
mischaracterizes Mr. Kenyon’s testimony: he was not testifying about editing the OCIO Report
but editing the Notice of Proposed Removal; the edit was more in the nature of a typographical
error and nothing more. See MSPB Tr. at 147 (“That was just a drafting error. . . . [W]e just
didn’t catch that on the last edit.”); id. at 148 (“Q: Does it matter to you that there is 15 and not
18 specifications? A: No.”). Neither of these arguments casts material doubt on the veracity of
13
the OCIO Report and Dr. Francis has not established facts contradicting either of DOL’s two
stated reasons for her removal. Importantly, notwithstanding Dr. Francis’ complaints about the
details of the OCIO report, at no point does she actually deny that she was taking online classes
or grading APUS assignments while on the clock for DOL.
Lacking direct evidence of discrimination, Dr. Francis argues that she was
subjected to disparate treatment compared to similarly-situated employees in the Budget Center.
Her Opposition to the government’s motion advances four statements to support her claim: (1)
“Younger, Caucasian, and American-born team leads were given superior duties and were
responsible for leading a team of lower-level employees,” Opp’n at 4 (citing “Ex. C at 8-9; Ex. H
at 28, 77-78, 89-90; Ex. J at 22-25; 30-33”); (2) “Further, younger, Caucasian, and American-
born team leads were invited to attend meetings from which [Dr. Francis] was excluded,” id.
(citing “Ex. C at 8-9; Ex. H at 28, 77-78, 89-90; Ex. J at 22-25; 30-33”); (3) “Younger,
Caucasian, and American-born budget analysts were given budget assignments. However, Mr.
Kenyon did not assign [Dr. Francis] any budget work at all,” id. (internal cites omitted) (citing
“Ex. C at 8-9; Ex. H at 28, 77-78, 89-90; Ex. J at 22-25; 30-33”); and (4) “In juxtaposition, Mr.
Kenyon did not micromanage or monitor the performance of [Dr. Francis’] younger, male, and
Caucasian GS-15 colleagues even though[] these colleagues regularly left work in the afternoon
for multiple hours at a time for ‘coffee breaks’ and were not questioned about their location or
the status of their work,” id. at 9 (citing “Ex. B 00011”).
These allegations might raise a genuine dispute about disparate treatment and
pretext if they had factual support in the record. Such support cannot be found. Plaintiff’s
Exhibit C, from which these facts are essentially quoted, is merely Dr. Francis’ proposed
Amended Complaint which does not constitute factual evidence. Greene, 164 F.3d at 675
14
(“Accepting such conclusory allegations as true, therefore, would defeat the central purpose of
the summary judgment device.”). In citing the Amended Complaint, Dr. Francis also references
Exhibit 11 to that Amended Complaint but does not include it or show why it should be admitted
as part of the record. 5
Dr. Francis also cites excerpted testimony of Mr. Kenyon in which he confirmed
that other Budget Team Leads had different responsibilities. See Opp’n, Ex. H, Dep. of Geoffrey
Kenyon (Mar. 19, 2015) (2015 Kenyon Dep.) [Dkt. 31-1] at 28; Opp’n, Ex. J, Dep. of Geoffrey
Kenyon (Mar. 16, 2017) (2017 Kenyon Dep.) [Dkt. 31-1]. Nowhere in the submitted testimony,
however, did Mr. Kenyon identify or otherwise mention the race, age, national origin, or gender
of those other employees and Dr. Francis similarly omits these important facts. Indeed, she has
failed to identify, with evidence, similarly situated Budget Team Leaders of different races,
gender, national origin, or age who were treated more favorably. Such facts are the sine qua non
of a claim of disparate treatment based on protected status, without which Dr. Francis has only
speculation and argument. Even if there were demonstrable inconsistencies in DOL’s reasons
for conducting an IT audit of her computer usage or lowering her performance rating, “[i]t is not
enough . . . to dis believe the employer; the factfinder must believe the plaintiff’s explanation of
intentional discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Dr.
Francis has proffered no facts to support her allegations that Mr. Kenyon or Mr. Kerr considered
her race, gender, national origin, or age in making employment decisions concerning her.
Without genuine evidence of a material dispute, Dr. Francis has not satisfied her “obligation to
5
In fact, the Court denied leave to Dr. Francis to file the Amended Complaint. See 6/14/17
Mem. Op. and Order [Dkt. 24]. However, identical allegations (albeit without citations to
exhibits) were included in the original Complaint. See Compl. ¶¶ 20-22, 33.
15
support [her] allegations by affidavits or other competent evidence showing that there is a
genuine issue for trial.” Hussain, 344 F. Supp. 2d at 94.
Finally, Dr. Francis argues that she was taking and teaching online classes with
APUS for DOL’s benefit, not her own. Although she argues that she informed her coworkers,
and indirectly Mr. Kenyon, that she might use her experience with APUS to facilitate her
training work for DOL, see Opp’n at 19-20 (citing Rider Dep. at 69-71), the testimony she cites
for this assertion provides no such support:
Q: Mr. Rider, the conversation . . . was around Dr. Francis’ work
that she would be potentially doing with the university; is that
correct?
A: I don’t recall that.
Q: And right after the conversation when Dr. Francis told you she
had just started with APUS, and you stated it would work with the
new DEBS certification program, you told Mr. Kenyon about the
conversation; is that correct?
A: I don’t recall. Are you talking about the conversation we held
when you were in my doorway . . . ? Again, that was an
inconsequential conversation in passing. I believe you had just
printed something off the printer and were near my office and
stopped by just to say “Hi.” I would never have gone to Mr. Kenyon
and reported that type of conversation.
Q: So what I’m hearing you say, you never went to Mr. Kenyon and
told Mr. Kenyon about the conversation you had with Dr. Francis
regarding her affiliation with the university?
A: Again, any affiliation with the university was always understood
by me that it was your Ph.D. that you had earned.
Rider Dep. at 69-70. Indeed, Dr. Francis’ own exhibits indicate that she never told anyone,
much less her direct supervisors, about her engagement with APUS and certainly never received
authorization. See MSPB Tr. at 141-42 (Mr. Kenyon testifying “I felt that Jean had hidden
[APUS] from me, that she knew it was wrong, and she intentionally did not disclose this.”). Dr.
Francis suggests that she was encouraged to use her experience at APUS to develop and
implement a training plan at DOL, but none of the deposition testimony she cites supports her
argument. See id. at 139 (Mr. Kenyon testifying “it occurred to me that she was . . . doing
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outside work for American Public University and not the job and responsibilities that I had given
her.”). In addition, Dr. Francis implies that because (1) she was a GS-15 employee responsible
for some training, (2) afforded broad discretion with her time, and (3) no one told her explicitly
not to take and teach APUS classes on government time, doing so was therefore related to her
official duties and legitimate work on her part. The argument fails in the face of direct and
applicable DOL policies on the use of government IT resources.
2. Negative Rating
DOL states that Dr. Francis received a “Minimally Satisfactory” rating in FY
2013 after she failed to complete the training assignment by September 2013 that she had been
directed to develop in specific ways in April 2013. DOL points to the details in her FY 2013
performance review. See Def.’s Mem., Ex. 18, Performance Mgmt. Plan for Non-Managers and
Non-Supervisors [Dkt. 27-1] at 224.
Dr. Francis argues that Mr. Kenyon’s explanations for her performance rating in
2013 are inconsistent and therefore unreliable. She quotes Mr. Kenyon’s various statements that
her work was “fine” but overlooks his repeated qualification that “she did not complete the
objective that I had originally set out.” See, e.g., MSPB Tr. at 222. Dr. Francis does not dispute
that she and Mr. Kenyon discussed, in April 2013, the kind of training he wanted her to develop
for Agency Budget Officers; that she sent him an incomplete plan on June 4, 2013; that he
responded it was “helpful” but not sufficient; and that she never talked to the Agency Budget
Officers or proposed a complete and acceptable plan as requested during the rest of FY 2013 or
calendar year 2013. Def.’s SOF ¶¶ 16-24. Further, Mr. Kenyon’s observations about the mixed
quality of Dr. Francis’ work are corroborated by his complaint to Mr. Hugler. See Def.’s Mem.,
Ex. 14, Dep. of Edward Hugler (Hugler Dep.) [Dkt. 27-1] at 9-10 (“Mr. Kenyon told me . . . that
he was not getting the productivity from you that he would expect.”). Dr. Francis’ argument that
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Mr. Kenyon commented favorably or neutrally on her work completely ignores the uncontested
facts that he repeatedly expressed concern because she failed to complete a major assignment in
a timely manner. See, e.g., MSBP Tr. at 222.
“Title VII, it bears repeating, does not authorize a federal court to become ‘a
super-personnel department that reexamines an entity’s business decisions.’” Barbour v.
Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999) (quoting Dale v. Chicago Tribune Co., 797 F.2d
458, 464 (7th Cir. 1986)). Federal courts “may not second-guess an employer’s personnel
decision absent demonstrably discriminatory motive.” Wheeler v. Georgetown Univ. Hosp., 812
F.3d 1109, 1114 (D.C. Cir. 2016) (citation omitted). “[P]erformance reviews typically constitute
adverse actions only when attached to financial harms,” which are not shown here. Baloch, 550
F.3d at 1199.
The record does not support the argument that Mr. Kenyon was inexplicably
inconsistent in his reviews of Dr. Francis’ work. In contrast, her failure to complete an important
assignment after more than half a year—the stated reason for her performance rating—is
uncontested and clearly supported.
Further, Dr. Francis does not contend that she had approval for her private-sector
work with and for APUS while supposedly performing her public-sector job. Dr. Francis’
frustration because she had been sidelined from a major role at ESA and kept out of a major role
at the Budget Center is almost palpable. Her answer to that frustration—to fail to perform her
DOL job and, instead, to prepare for and assume a job teaching at the American Public
University System on government time—was no answer.
Dr. Francis has provided no evidence connecting her performance rating with her
sex, age, gender, or national origin. Although Mr. Kenyon admits that he has never given
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anyone else a “Minimally Satisfactory” rating, Dr. Francis received “effective” or better reviews
until she, admittedly, failed to complete the April 2013 assignment by the end of the fiscal (and
performance) year. On this record, more critically, Dr. Francis alleges no harm arising from her
2013 rating: her termination was based on her improper computer use, not on her performance.
There is, therefore, no genuine dispute of material fact concerning Dr. Francis’ performance
rating in FY 2013.
3. Other Adverse Actions/Hostile Work Environment
Beyond her removal, Dr. Francis recites as part of each of her Counts a litany of
other allegations concerning her work at the Budget Center related to training, the scope of her
duties, her deadlines, scheduling conflicts, micromanagement, available resources, and the audit
of her computer. See Compl. ¶¶ 57, 64, 71, 77, 83, 90.
An adverse action against an employee requires “a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or . . . a significant change in benefits,” Burlington Indus., Inc. v.
Ellerth, 523 U.S. 742, 760-61 (1988).
Although Dr. Francis may have been dissatisfied with the work to which she was
assigned under the Assistant Secretary’s initiative, she does not contest that she had previously
developed a DOL-wide budget training plan and was assigned, upon her return to DOL, to
develop specific training for Agency Budget Officers that was consistent with the Assistant
Secretary’s priorities and their needs. This assignment may have been distasteful but was not
outside her position duties to plan, develop, and implement “program strategies that are critical
to the development of Congressional and Presidential budget justifications for the Department,”
subject to the “administrative and policy direction” concerning “financial management project
priorities and objectives in the organization” as established by DBC’s Director. Def.’s SOF ¶ 7
19
(emphasis added). Dr. Francis has provided the Court with no evidence showing that the tasks
she was given were somehow outside what might have been expected of her, even if she does not
believe that those tasks were “appropriate for a GS-15 level employee.” Compl. ¶ 57. Her
dissatisfaction did not turn her assignments into adverse actions. That she was dissatisfied with
the work assigned does not mitigate her excessive use of government time and resources for her
personal ends.
To establish a hostile work environment, a plaintiff must allege facts sufficient to
demonstrate that the harassment was “sufficiently severe or pervasive to alter the conditions of
the victim’s employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). “To determine
whether a hostile work environment exists, the court looks to the totality of the circumstances,
including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether
it interferes with an employee’s work performance.” Baloch, 550 F.3d at 1201. The hostile
work environment standard is “sufficiently demanding” to ensure that it is not a “general civility
code.” Id. Further, a plaintiff must demonstrate “some linkage between the hostile behavior and
the plaintiff’s relationship in a protected class.” Na’im v. Clinton, 626 F. Supp. 2d 63, 73
(D.D.C. 2009).
Dr. Francis’ hostile workplace claim fails for lack of evidence. She particularly
relies on her “Minimally Satisfactory” rating and her termination but each rating was a distinct
act based on different underlying facts, which are uncontested. As to the laundry list of minor
grievances in her Complaint, see e.g., Compl. ¶ 57, none is supported with factual evidence
beyond the Complaint allegations. Dr. Francis proffers no comments or actions to show that she
was targeted or treated differently from her peers because she is a member of a protected class.
Without such evidence, Dr. Francis fails to demonstrate “severe” or “pervasive” harassment due
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to her protected status, which is necessary to support a claim of a hostile work environment.
Much of her ire seems to be directed at Mr. Kenyon for “following up” on the progress of her
work between April and June 2013, which Dr. Francis might have found vexing but is merely
part of everyone’s work life. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (finding courts must “filter out complaints attacking ‘the ordinary tribulations of the
workplace’”). While Dr. Francis points to a single instance in which Mr. Kenyon set a deadline
that conflicted with her previously-planned leave, she fails to address—or challenge—his
statement that he did not know she had planned leave, “apologized for any miscommunication
regarding her June leave request[,] and we jointly determined what work assignments would be
accomplished and deadlines for doing so.” Pl.’s Mem., Ex. 6, Aff. of Geoffrey Kenyon (Kenyon
Aff.) [Dkt. 27-1] at 900; Cf. Fragher, 524 U.S. at 788 (“[C]onduct must be extreme to amount to
a change in the terms and conditions of employment.”).
As part of her hostile work environment claim, Dr. Francis challenges the audit of
her computer. Importantly, Dr. Francis does not dispute that Assistant Secretary Hugler
suggested the OCIO audit to Mr. Kenyon and that Mr. Hugler ordered it to be conducted, at a
time when Mr. Hugler knew very little about Dr. Francis and did not believe or intend the audit
to be particularly exceptional due to Mr. Kenyon’s report about her work performance. See
Hugler Dep. at 9-11. Dr. Francis proffers no direct or inferential evidence that Mr. Hugler
intended thereby to discriminate against her.
Finally, it must be pointed out that the majority of the allegedly-supporting
citations in Dr. Francis’ briefs are to her Amended Complaint, her EEO complaint, and other
briefs in this case, but not to admissible evidence. Greene, 164 F.3d at 675.
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B. Retaliation
“To establish a claim for retaliation, a claimant must show that (1) she engaged in
a statutorily protected activity; (2) she suffered a materially adverse action by her employer; and
(3) a causal connection existed between the two.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C.
Cir. 2007). The standards for an “adverse action” to prove discrimination and a “materially
adverse action” to prove retaliation “are not coterminous”—a retaliation complaint requires only
action which “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (marks
omitted).
When based on an inference of retaliation due to the timing between protected
activity and a materially adverse action, the act of retaliation must follow the protected activity
within a “very close” time. Woodruff, 482 F.3d at 529; see also Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 273-74 (2001) (citing favorably cases where 3-4 months was too long to establish
causality). A quick review of relevant events is appropriate: Dr. Francis’ 2009 EEO complaint
(which did not involve Mr. Kenyon) was fully adjudicated in October 2013; in November 2012,
while she was on detail to DOJ, Dr. Francis sent a memo to Assistant Secretary Kerr
complaining about Mr. Kenyon’s suggestion that she take the Agency Budget Officers out to
lunch; Dr. Francis contacted an EEO Counselor to lodge an informal EEO complaint in the
summer of 2013 and then filed a formal EEO Complaint in September 2013, just before the end
of the fiscal year and her FY 2013 performance evaluation in December 2013; Dr. Francis
submitted her investigative affidavit in support of her EEO complaint on February 13, 2014; and
Mr. Kenyon issued the Notice of Proposed Removal on February 21, 2014. But see Kenyon Aff.
at 913 (“Since December 18, 2013, I have been working . . . to propose the Complainant be
terminated due to excessive use of government equipment for personal, unofficial purposes.”).
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The Court finds that the 2009 EEO complaint and Dr. Francis’ November 2012
memo to Assistant Secretary Kerr occurred long before Dr. Francis’ 2013 performance review or
the 2014 Notice of Proposed Removal so that no inference of a discriminatory connection can be
made.
A different analysis must be applied to the sequence of Dr. Francis’ protected
activities thereafter (informal and formal EEO complaints in summer/fall 2013 and investigative
affidavit in February 2014) and her FY 2013 performance review in December 2013 and the
Notice of Proposed Removal on February 21, 2014.
Because there is no direct evidence of discriminatory or retaliatory intent, the
timing of events may supply the necessary inference. 6 Dr. Francis perceives Mr. Kenyon’s
following up on the progress of her work, her negative review, and her termination as
discriminatory or retaliatory. But the follow-ups occurred after Dr. Francis met with Mr.
Kenyon in April 2013, before any protected activity by Dr. Francis, and so could not, perforce,
be retaliatory. 7 There is also no direct or circumstantial evidence to support the allegation that it
was discriminatory for her supervisor to ask for progress reports on an assignment she never
performed at all or that such inquiries amounted to an adverse action or a materially adverse
6
Dr. Francis argues further that “[Mr.] Kenyon did not provide any assignments between
December 2013 and May 2014,” Opp’n at 13, and her computer account was “set to be either
disabled or purged” as early as October 2013. Id. These arguments represent bald allegations
only, without citations to evidence in the record.
7
Dr. Francis met with an EEO Counselor and lodged an informal EEO complaint in June 2013
after Mr. Kenyon set a deadline for her that interfered with planned time off. He testified:
Well, Dr. Francis had just told me how she found my style harassing,
and we had a good meeting and came to agreement on how we
would move forward on getting the training plan. So I decided to
treat her the way she had asked to be treated and let her take
responsibility for completing the tasks that she agreed to take on.
Def.’s Mem., Ex. 5, Dep. of Geoffrey Kenyon (Kenyon Dep.) [Dkt. 27-1] at 109-10.
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action. As discussed, her negative performance review was based on uncontested facts; she
never completed the April 2013 assignment to meet with the Agency Budget Officers, learned
what areas of training would be most helpful to them, or developed a training program that could
be provided by DOL personnel. She offers no factual basis to tie this review to any one of her
protected classes. Dr. Francis filed a formal EEO complaint in September 2013. The audit of
her computer usage was conducted soon thereafter but no inference of retaliation (or
discrimination) can be found because the results of the audit are not contested by Dr. Francis.
(While Dr. Francis quibbles about certain aspects of the audit, her quibbles are without merit
and, critically, she does not actually deny her time and attention to APUS using DOL IT
equipment and DOL work time.) Further, Mr. Kenyon was not aware of the formal EEO
complaint until after the audit was performed. See Kenyon Dep. at 197 (“[I]n February 2014 I
was informed that it was turned into a formal complaint and I had a longer questionnaire.”).
Finally, Mr. Kenyon proposed her removal in February 2014 and Dr. Francis was
separated from DOL in May 2014 due to using government time and assets while both taking
APUS courses and teaching APUS courses without approval. These latter facts are, again,
uncontested and Dr. Francis fails to tie them to any prior protected activity or protected class.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment, Dkt. 27,
will be granted. A memorializing Order accompanies this Memorandum Opinion.
Date: April 25, 2019
ROSEMARY M. COLLYER
United States District Judge
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