Mason v. Geithner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EUEL L. MASON, DONOVAN L.
BENTON, and MABLE A. GAINES,
Plaintiffs,
v. Civil Action No. 09-00462 (CKK)
TIMOTHY F. GEITHNER, Secretary, U.S.
Department of the Treasury,
Defendant.
EUEL L. MASON,
Plaintiff,
v.
Civil Action No. 10-00184 (CKK)
TIMOTHY F. GEITHNER, Secretary, U.S.
Department of the Treasury,
Defendant.
MABLE A. GAINES,
Plaintiff,
Civil Action No. 10-00683 (CKK)
v.
TIMOTHY F. GEITHNER, Secretary, U.S.
Department of Treasury,
Defendant.
MEMORANDUM OPINION
(September 12, 2011)
In the three above-captioned actions,1 Plaintiffs Mable Gaines (“Gaines”), Euel Mason
(“Mason”), and Donovan Benton (“Benton”) (collectively, “Plaintiffs”), each a former employee
of the Internal Revenue Service (“IRS”), bring suit under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e-1 et seq. (“Title VII”) against the Secretary of the U.S.
Department of the Treasury (the “Secretary”). There are currently two motions before the Court:
(1) the Secretary’s Motion for Summary Judgment; and (2) the Secretary’s Motion for Sanctions.
Upon consideration of the parties’ submissions, the relevant authorities, and the record as a
whole, the Court shall grant the Secretary’s Motion for Summary Judgment, deny the Secretary’s
Motion for Sanctions, and dismiss all three actions in their entirety.2
I. BACKGROUND
On August 14, 2003, Plaintiffs, along with other African American employees at the IRS,
brought suit against the Secretary alleging that they had been discriminated against on the basis
of race in connection with a variety of employment actions (the “2003 Litigation”). See Compl.,
Mason v. Snow, Civil Action No. 03-1730 (CKK) (D.D.C. Aug. 14, 2003). On May 1, 2006, the
action was dismissed with prejudice when the parties reached an agreement to settle their dispute
1
The three actions have been consolidated only for the briefing of the pending motions.
2
While the Court renders its decision today on the record as a whole, its consideration
has focused on the following documents, listed in chronological order of their filing: Def.’s
Mem. of P. & A. in Supp. of Mot. for Summ. J. (“Def.’s MSJ Mem.”); Def.’s Stmt. of Material
Facts Not in Genuine Dispute (“Def.’s Stmt.”); Pls.’ Mem. in Opp’n to Def.’s Mot. for Summ. J.
(“Pls.’ MSJ Opp’n”); Pls.’ Stmt. of Material Facts in Genuine Dispute (“Pls.’ Stmt.”); Def.’s
Reply to Pls.’ Opp’n to Def.’s Mot. for Summ. J. (“Def.’s Reply”); Def.’s Resp. to Pls.’ Stmt. of
Material Facts Not in Genuine Dispute (“Def.’s Resp.”); Def.’s Mem. of P. & A. in Supp. of
Mot. for Sanctions; Pls.’ Mem. in Opp’n to Def.’s Mot. for Sanctions; Def.’s Reply to Pls.’
Opp’n to Def.’s Mot. for Sanctions.
2
(the “2006 Settlement”).3 See Stip. & Compromise Settlement & Dismissal With Prejudice,
Mason v. Snow, Civil Action No. 03-1730 (CKK) (D.D.C. May 1, 2006). In the actions now
before the Court, Plaintiffs claim that they were retaliated against for their participation in the
2003 Litigation, including the 2006 Settlement. See Fourth Am. Compl. (Civil Action No. 09-
462) ¶¶ 21, 23, 25; Compl. (Civil Action No. 10-184) ¶ 12; Compl. (Civil Action No. 10-683) ¶
12.
A. Factual Background Relating to Plaintiff Mable Gaines
In 1981, Mable Gaines began working at IRS Headquarters in Washington, D.C., as a
clerk-typist. Def.’s Stmt. ¶ 1; Pls.’ Stmt. ¶ 1. Around ten years later, she became an Inventory
Management Specialist in the Distribution Division of the IRS’s Media and Publications
(“M&P”) Organization, a position that she held until her prolonged absence from work that
began on December 21, 2004, and lasted until June 4, 2007. Def.’s Stmt. ¶ 2; Pls.’ Stmt. ¶ 2.
1. Gaines’s Physical Altercation with a Co-Worker
Gaines alleges that on the morning of December 21, 2004, a former co-worker entered her
cubicle and—without saying a word—struck her on the right arm with such force that it could be
3
The parties’ written settlement agreement contains a broad release of claims.
Specifically, Plaintiffs agreed to waive any and all claims that they might have raised at the time
of their execution of the agreement. See Stip. & Compromise Settlement & Dismissal With
Prejudice ¶ 4, Mason v. Snow, Civil Action No. 03-1730 (CKK) (D.D.C. May 1, 2006). In the
actions now before the Court, Plaintiffs occasionally raise allegations relating to events pre-
dating their execution of the Settlement Agreement. For example, Gaines alleges that she was
involved in a physical altercation with a co-worker on December 21, 2004, long before she
executed the settlement agreement on March 21, 2006. See Pls.’ MSJ Opp’n at 46-47. Because
the Secretary has not argued that the settlement agreement bars Plaintiffs from pursuing relief in
connection with allegations pre-dating their execution of the agreement, the Court has considered
those allegations in the course of resolving the merits of the pending motions. Nonetheless, it is
not altogether clear how these allegations remain viable in light of the 2006 Settlement.
3
heard across the room and caused a nerve in her shoulder to “pop.” Def.’s Stmt. ¶ 3; Pls.’ Stmt. ¶
3; Dep. of Mable A. Gaines (“Gaines Dep.”) at 72-78. During this incident, the co-worker was
laughing and told Gaines that she was just “playing.” Gaines Dep. at 78. Thereafter, Gaines—in
what she describes as an attempt to “diffuse the situation”—responded by shoving the co-worker
across the walkway and into an adjacent cubicle, “slamm[ing]” the co-worker against a file
cabinet, and “cursing a whole lot.” Def.’s Stmt. ¶ 5; Pls.’ Stmt. ¶ 5; Gaines Dep. at 87, 90-91.
Gaines has consistently claimed that the only reason the co-worker struck her was because
Gaines refused to attend a breakfast outing earlier that morning. Def.’s Stmt. ¶ 6; Pls.’ Stmt. ¶¶
5-6; Gaines Dep. at 106.
2. Gaines’s Prolonged Absence from Work
Following the alleged assault, Gaines claimed that she was totally incapacitated as a result
of the injuries she sustained and was unable to work.4 Def.’s Stmt. ¶ 7; Pls.’ Stmt. ¶ 7. She did
not return to work at the IRS until June 4, 2007—an absence of approximately two-and-a-half
years. Def.’s Stmt. ¶ 7; Pls.’ Stmt. ¶ 7.
In the weeks following her departure in December 2004, Gaines’s supervisors maintained
contact with her and they honored her request to be reassigned from the Distribution Division
4
Because Gaines is not pursuing a claim for disability discrimination, the question of
whether she was or was not “totally incapacitated” or “disabled” is largely immaterial. However,
the Court observes that when Gaines avers that, “[d]espite [the Secretary’s] innuendo to the
contrary, there is ample evidence to support [her] status as disabled,” Pls.’ Stmt. ¶ 7 (citing Pls.’
Ex. 2 (Pls.’ Resp. to Def.’s First Set of Interrogs. (hereinafter, “Pls.’ Interrog. Resps.”) No. 11);
Pls.’ Ex. 58 (Ltr. from R. Swick to S. Becker dated July 21, 2009)), the only direct “medical
evidence” specifically cited concerns Gaines’s medical condition in June 2009—several years
after the alleged assault—and does not describe her condition in the period from December 21,
2004, to June 4, 2007.
4
within the M&P Organization to the Tax Forms and Publications Division.5 Def.’s Stmt. ¶ 8;
Pls.’ Stmt. ¶ 8. During her extended absence, Gaines’s application to receive annual leave
donations through the IRS’s Leave Transfer Program, which allows IRS employees to transfer
accrued annual leave to an approved recipient for a medical emergency, was approved and a
memorandum soliciting donations was distributed on her behalf.6 Def.’s Stmt. ¶ 9; Pls.’ Stmt. ¶
9; Def.’s Ex. A (Mem. from G. Plater to All Employees dated Apr. 19, 2005); Def.’s Ex. C
(Frequently Asked Questions about the Leave Sharing Program) at 2.
On June 9, 2005, Gaines was examined by a board-certified orthopedic surgeon, who
concluded that she was able to return to work full-time so long as she was not required to lift
more than ten pounds.7 Def.’s Stmt. ¶ 10; Pls.’ Stmt. ¶ 10. On August 19, 2005, the Office of
Workers’ Compensation Programs (“OWCP”) within the Department of Labor (“DOL”) notified
the IRS that Gaines was fit to return to work with the stated lifting limitation. Def.’s Stmt. ¶ 11;
5
In responding to the Secretary’s proffered factual statement, Gaines first concedes that
the statement is admitted, but then proceeds to allege that she “did not request to be reassigned to
the Tax Forms and Publications Division during her time of total disability” and that the decision
was made to “minimize the seriousness of the unprovoked assault.” Pls.’ Stmt. ¶ 8. Because
these extraneous factual allegations are unaccompanied by “references to the parts of the record
relied on [for] support,” LCV R 7(h)(1), the Court will disregard them.
6
In responding to the Secretary’s proffered factual statement, Gaines first concedes that
the statement is admitted, but then proceeds to claim that the facts are “mischaracterized.” Pls.’
Stmt. ¶ 9. Because Gaines fails to provide any explanation as to why she believes the facts have
been mischaracterized, let alone support that belief with references to the record, the Court will
deem the proffered statement to be admitted.
7
In responding to the Secretary’s proffered factual statement, Gaines first concedes that
the statement is admitted, but then proceeds to allege that “a complete examination was not
performed by the assigned doctor.” Pls.’ Stmt. ¶ 10. Because this extraneous factual allegation
is unaccompanied by “references to the parts of the record relied on [for] support,” LCV R
7(h)(1), the Court will disregard the allegation.
5
Pls.’ Stmt. ¶ 11. On August 29, 2005, upon receiving the OWCP’s notification, the IRS sent
Gaines a letter offering her a position as a Tax Analyst in the Tax Forms and Publications
Division of the M&P Organization, acknowledging her lifting limitation, and instructing her to
report to work on September 6, 2005.8 Def.’s Stmt. ¶ 12; Pls.’ Stmt. ¶ 12; Gaines Dep. Ex. 7
(Ltr. to M. Gaines dated Aug. 29, 2005) at 1. The letter further stated that Gaines’s failure to
respond would be construed as a rejection of the offer and that her refusal to accept suitable
employment could result in the termination of her workers’ compensation benefits. Gaines Dep.
Ex. 7 (Ltr. to M. Gaines dated Aug. 29, 2005) at 3. Nonetheless, Gaines failed to return the
“Acceptance/Declination Statement” attached to the letter. Def.’s Stmt. ¶ 13; Pls.’ Stmt. ¶ 13.
Even so, Gaines was not disciplined when she failed to return to work on September 6, 2005, as
she had been instructed. Def.’s Stmt. ¶ 14; Pls.’ Stmt. ¶ 14.
On October 27, 2005, the DOL’s OWCP contacted Gaines a second time, informing her
8
In responding to the Secretary’s proffered factual statement, Gaines first concedes that
the statement is admitted, but then proceeds to allege that she “was still under doctors’ care as a
result of the physical assault and was determined to be totally disabled by her orthopedic
surgeon” and that a “Letter of Reply was forwarded to IRS Management [and the] Department of
Labor . . . informing them of [her] physical status and [that she] could not return to work due to
the severity of her injury.” Pls.’ Stmt. ¶ 12 (citing Def.’s Ex. B (Attending Physician’s Report
dated May 31, 2007); Pls.’ Ex. 58 ((Ltr. from R. Swick to S. Becker dated July 21, 2009;
Attending Physician’s Report dated June 26, 2009)). However, the medical records and
correspondence relied upon by Gaines in support of these extraneous factual allegations pertain
to her medical condition in mid-2007 and mid-2008—years after the events described in the
Secretary’s proffered factual statement had transpired. If anything, the medical reports cited by
Gaines undermine rather than support her contention that she was totally disabled at or around
the time that she was instructed to return to work in early September 2005. The two cited
medical reports state that Gaines was receiving ongoing treatment beginning as early as February
2, 2005, but specifically identify her only two periods of “total disability” as extending from
April 25, 2007, to June 3, 2007, and from June 26, 2009, to June 4, 2007. See Def.’s Ex. B
(Attending Physician’s Report dated May 31, 2007); Pls.’ Ex. 58 (Attending Physician’s Report
dated June 26, 2009).
6
in a letter that she had thirty days to either accept the Tax Analyst position that had been offered
to her or to provide an explanation for her refusal. Def.’s Stmt. ¶ 15; Pls.’ Stmt. ¶ 15. The letter
again warned Gaines that her refusal to accept suitable work could result in the termination of her
workers’ compensation benefits. Def.’s Stmt. ¶ 15; Pls.’ Stmt. ¶ 15.
After a considerable amount of time had elapsed,9 Gaines eventually submitted medical
documentation showing that she was totally disabled in the period extending from April 25,
2007, to June 3, 2007, and was unable to work during that period. Def.’s Stmt. ¶ 16; Pls.’ Stmt. ¶
16; Def.’s Ex. B (Attending Physician’s Report dated May 31, 2007) at 1. Gaines’s period of
total disability ended on June 3, 2007, and Gaines was deemed fit to resume light work the
following day. Def.’s Ex. B (Attending Physician’s Report dated May 31, 2007) at 1.
3. Gaines’s Return to Work
On June 4, 2007, Gaines returned to work, serving as a Tax Analyst in the IRS’s New
Carrollton office located in Lanham, Maryland. Def.’s Stmt. ¶ 17; Pls.’ Stmt. ¶ 17. Upon her
return, Gaines’s chain-of-command was as follows:
• First-line supervisor: Sidney Gardner (“Gardner”);
• Second-line supervisor: Ann Gelineau (“Gelineau”);
• Third-line supervisor: Stacy Becker (“Becker”)
• Fourth-line supervisor: Denise Fayne (“Fayne”) from June 2007, to
September 2008; and Karen Becton-Johnson (“Becton-Johnson”) from
September 2008, to September 2009.
9
The record does not clearly explain exactly what transpired in the period from October
27, 2005, to April 25, 2007, though the parties agree that Gaines remained on leave-without-pay
status until June 2007. Def.’s Stmt. ¶ 17; Pls.’ Stmt. ¶ 17.
7
Def.’s Stmt. ¶¶ 18-22; Pls.’ Stmt. ¶¶ 18-22. Gaines’s first- and second-line supervisors were
located at the IRS’s New Carrollton office, while her third- and fourth-line supervisors were
located at IRS Headquarters in Washington, D.C. Def.’s Stmt. ¶¶ 18-22; Pls.’ Stmt. ¶¶ 18-22.
The day of Gaines’s return to work, she was taken on an office tour by her second-line
supervisor, Gelineau. Def.’s Stmt. ¶ 23; Pls.’ Stmt. ¶ 23. During the tour, Gelineau explained to
Gaines that the entire office was conducting a week-long “clean building initiative,” in
connection with which employees were encouraged to cull their files of excess paperwork,
organize their workspace, and remove any extraneous boxes or office supplies. Def.’s Stmt. ¶
23; Pls.’ Stmt. ¶ 23. Gelineau instructed Gaines to clean and organize the area surrounding
Gaines’s workplace, which would include removing boxes, equipment, and files, an instruction
that Gaines admits applied to everyone in the office. Gaines Dep. at 227-33, 235; Dep. of Ann
Gelineau (“Gelineau Dep.”) at 89. Gaines admits that she did not inform Gelineau that she could
not lift items of a certain weight, but speculates that Gelineau was otherwise aware of her lifting
limitation. Gaines Dep. at 229-30. She also admits that she did not actually clean and organize
the area and was never instructed to do so again, by Gelineau or anyone else. Id. at 233.
As a Tax Analyst within the Tax Forms and Publications Division, Gaines was expected
to perform “plain language” review of tax forms, notices, and publications. Def.’s Stmt. ¶ 25;
Pls.’ Stmt. ¶ 25. However, upon her return to work, Gaines did not immediately begin “plain
language” review work and was instead assigned to work on a “front-line manager readiness
course” with her second-line supervisor, Gelineau. Def.’s Stmt. ¶ 26; Pls.’ Stmt. ¶ 26.
Subsequently, Gaines’s supervisors made arrangements for her to obtain informal training in
8
order to get her acclimated to her new position.10 Dep. of Sidney Gardner (“Gardner Dep.”) at
17, 35; Gaines Dep. at 235, 239. Because Gaines had no prior experience in the field, she needed
more formal training in “plain language” review. Def.’s Stmt. ¶ 28; Pls.’ Stmt. ¶ 28; Gaines Dep.
at 236. The training that Gaines required was typically conducted in a classroom setting in
Atlanta, Georgia, and required all-day attendance. Def.’s Stmt. ¶ 29; Pls.’ Stmt. ¶ 29. However,
Gaines’s first-line supervisor, Gardner, arranged for a course to be held for Gaines at the New
Carrollton office in August 2008, though by the time that date came, Gaines was no longer
working. Def.’s Stmt. ¶ 30; Pls.’ Stmt. ¶ 30; Gardner Dep. at 37.
4. Gaines’s Requests for a “Flexiplace” Assignment and Accommodations
In March 2008, Gaines submitted an application for a “flexiplace” assignment, requesting
that she be allowed to work at home full-time following a surgical procedure that she planned to
undergo at the end of the month. Def.’s Stmt. ¶ 31; Pls.’ Stmt. ¶ 31. However, Gaines’s
supervisors informed her that they were unable to accommodate her request for a “flexiplace”
assignment and accommodations to work from home because she was yet to complete the
10
Relying exclusively upon her deposition testimony, Gaines purports to dispute that her
“supervisors arranged for her to obtain training from coaches and a senior analyst.” Pls.’ Stmt. ¶
27 (citing Gaines Dep. at 235-40). However, in the deposition testimony she cites, Gaines
plainly testified that she viewed a senior analyst in her office as her “go-to person when [she] had
a question about the document [she] was working on,” and the person to whom she would speak
“to help [her] complete her tasks . . . since [she] was new to that area,” and concedes that her
first-line supervisor, Gardner, attempted to find her an on-the-job coach. Gaines Dep. at 236,
239. Gaines further alleges that “other new analysts” were provided an on-the-job coach, Pls.’
Stmt. ¶ 27 (citing Gaines Dep. 235-40), but the testimony relied upon for this contention only
suggests that a single employee, Roseanne Nuss (“Nuss”), was coached by a senior analyst for an
unspecified duration at some point after Gaines started in her new position, Gaines Dep. at 237.
At no point in her opposition does Gaines attempt to show that she and Nuss were similarly
situated in all material respects or explain in any meaningful factual detail the nature of the
coaching that Nuss allegedly received and how it differed from the training opportunities Gaines
was provided.
9
requisite “plain language” review training. Def.’s Stmt. ¶ 33; Pls.’ Stmt. ¶ 33; Gardner Dep. at
28, 35; Gelineau Dep. at 26-27. Gardner told Gaines that he would be able to “better justify” her
working from home following the completion of her training.11 Gardner Dep. at 28, 35.
Like she was during her absence from work from December 2004 through June 2007,
Gaines was again approved to participate in the Leave Transfer Program. Def.’s Stmt. ¶ 32; Pls.’
Stmt. ¶ 32. However, Gaines’s first-line supervisor, Gardner, admitted he “dropped the ball” and
failed to send out notice of Gaines’s approval for the Leave Transfer Program to other employees
for them to make contributions of donated leave on her behalf. Gardner Dep. at 41-42.
5. Gaines’s Suspension for Tax Non-Compliance
The IRS’s Employee Tax Compliance (“ETC”) Branch is responsible for the
identification of IRS employees who fail various computerized compliance checks related to the
failure to file or the late filing of tax returns or the non-payment of taxes. Def.’s Stmt. ¶ 35; Pls.’
Stmt. ¶ 35. On January 24, 2008, after performing a routine computerized comparison of payroll
and tax account records, the ETC Branch determined that Gaines had failed to make sufficient
11
Gaines does not dispute that she had yet to complete the “plain language” training
contemplated by her supervisors at the time she made her request, but instead faults her
supervisors for “fail[ing] to arrange for her to have the necessary training” in the months that she
had been working in the Tax Forms and Publication Division. Pls.’ Stmt. ¶ 33 (citing Gardner
Dep. at 37). However, Gaines cites to no evidence in the record that would permit a reasonable
trier of fact to infer that any delay in ensuring that Gaines received the requisite training was
unreasonable. Meanwhile, it is undisputed that the training that Gaines required was typically
conducted in a classroom setting in Atlanta, Georgia, but that Gaines’s supervisor had to make
special arrangements to have a training session held for Gaines locally at the New Carrollton
office. Def.’s Stmt. ¶¶ 29-30; Pls.’ Stmt. ¶¶ 29-30. Gaines stopped reporting to work before the
special training session was held. Def.’s Stmt. ¶ 42; Pls.’ Stmt. ¶ 42.
10
estimated tax payments pertaining to gambling winnings during tax-year 2006.12 Def.’s Stmt. ¶
34; Pls.’ Stmt. ¶ 34. Gaines admitted to the ETC Branch that she had violated her duty to
accurately report her income, claiming that she was unaware of her legal obligation to report
gambling winnings immediately upon receipt.13 Def.’s Stmt. ¶ 38; Pls.’ Stmt. ¶ 38. This was not
Gaines’s first incident of tax non-compliance: in 2003, Gaines received a three-day suspension
for an incident pertaining to tax-year 1999.14 Def.’s Stmt. ¶ 45; Pls.’ Stmt. ¶ 45; Def.’s Ex. D
(Ltr. from C. Tavenner to M. Gaines dated Nov. 24, 2003).
Upon discovering the issue, the ETC Branch referred the new incident to Gaines’s
supervisors for purposes of determining a suitable punishment. Def.’s Stmt. ¶ 39; Pls.’ Stmt. ¶
12
The ETC Branch flags potential issues and either refers them to the employee’s
manager or issues an advisory and enters the case into an automated tracking system. Def.’s
Stmt. ¶ 36; Pls.’ Stmt. ¶ 36. Employees’ supervisors play no role in initiating the investigation of
potential tax non-compliance issues. Def.’s Stmt. ¶ 37; Pls.’ Stmt. ¶ 37.
13
In responding to the Secretary’s proffered factual statement, Gaines first concedes that
she “admitted to the ETC that she had violated her duty to accurately report income,” but then
proceeds to allege that she “did not intentionally fail to pay her taxes.” Pls.’ Stmt. ¶ 38 (citing
Gelineau Dep at 75-76; Pls.’ Ex. 61). In support of this allegation, Gaines relies heavily upon
what she identifies as Plaintiffs’ Exhibit 61, but there is no Exhibit 61 accompanying Plaintiffs’
opposition papers. See LCV R 5.4(c)(2) (“A person filing a document by electronic means is
responsible for insuring the accuracy of the official docket entry . . . .”). Regardless, the Court
will assume that Gaines’s admitted incident of tax non-compliance was not a “willful act,” as the
Secretary has never contended otherwise and this conclusion is consistent with testimony offered
by Gaines’s second-line supervisor, Gelineau. See Gelineau Dep. at 75-76. For purposes of
resolving the pending motions, it suffices to note that Gaines concedes that she “is ultimately
responsible for her income tax return.” Pls.’ Stmt. ¶ 38.
14
In responding to the Secretary’s proffered factual statement, Gaines first concedes that
she received a three-day suspension in 2003 for her failure to fully pay federal taxes, but then
proceeds to claim that the Secretary has “distorted” these facts. Pls.’ Stmt. ¶ 46. However, based
on Gaines’s response, it is unclear how she believes the Secretary has distorted the underlying
facts. Gaines alleges that she was “actively engaged in an EEO complaint” at the time she
received the suspension in 2003, but that suspension simply is not at issue in this action.
11
39; Gelineau Dep. at 92; Golatz Dep. at 21-22. On July 8, 2008, Gaines’s first-line supervisor,
Gardner, and her second-line supervisor, Gelineau, asked to meet with Gaines in person to
discuss the matter.15 Def.’s Stmt. ¶ 41; Pls.’ Stmt. ¶ 41. During that meeting, Gelineau provided
Gaines with a letter informing Gaines that the IRS was considering imposing a fourteen-day
suspension in response to the incident, but that alternative discipline was also a possibility.
Def.’s Stmt. ¶ 41; Pls.’ Stmt. ¶ 41. Two days after meeting with her supervisors, Gaines stopped
reporting to work altogether. Def.’s Stmt. ¶ 42; Pls.’ Stmt. ¶ 42. She never returned. Def.’s
Stmt. ¶ 42; Pls.’ Stmt. ¶ 42.
On July 14, 2008, Gaines sent her fourth-line supervisor, Fayne, a letter in which she
expressed her desire to retire and to begin the disability application process.16 Def.’s Stmt. ¶ 43;
Pls.’ Stmt. ¶ 43. After Gaines had already stopped reporting to work, but while the fourteen-day
suspension proposal was still pending, the ETC Branch determined that Gaines had committed
yet another tax violation—namely, that she had failed to timely pay additional taxes because she
failed to accurately claim an earned-income tax credit.17 Def.’s Stmt. ¶ 44; Pls.’ Stmt. ¶ 44. This
15
In responding to the Secretary’s proffered factual statement, Gaines first concedes that
the statement is admitted, but then proceeds to claim that the facts have been “mischaracterized.”
Pls.’ Stmt. ¶ 41. In so doing, Gaines fails to explain why she believes the facts have been
mischaracterized and instead incorporates her response to an entirely different factual statement,
a response that has no obvious nexus to the factual statement at issue. The Court will therefore
treat the Secretary’s proffered factual statement as admitted.
16
The Secretary asserts that the IRS cannot initiate the disability application process on
an employee’s behalf, see Def.’s MSJ Mem. at 9 n.2, and this assertion is left uncontested by
Gaines in her opposition.
17
In responding to the Secretary’s proffered factual statement, Gaines first concedes that
the statement is admitted, but then proceeds to suggest that the facts have been “distorted.” Pls.’
Stmt. ¶ 44. In so doing, Gaines incorporates her response to an entirely different factual
statement, a response that relies in relevant part upon an exhibit that is not actually appended to
12
violation constituted the third instance of tax non-compliance by Gaines discovered by the ETC
Branch.18 Def.’s Stmt. ¶ 45; Pls.’ Stmt. ¶ 45.
On December 12, 2008, upon learning of this development, Gaines’s supervisors
rescinded the original suspension proposal and issued a new letter proposing the same fourteen-
day suspension, albeit this time incorporating the facts relating to the new incident of tax non-
compliance.19 Def.’s Stmt. ¶¶ 47-48; Pls.’ Stmt. ¶¶ 47-48. Ultimately, the proposed fourteen-day
suspension was mitigated to a ten-day suspension. Def.’s Stmt. ¶ 49; Pls.’ Stmt. ¶ 49. Gaines
was notified of the decision on April 13, 2009. Def.’s Stmt. ¶ 49; Pls.’ Stmt. ¶ 49; Gaines Dep.
Ex. 16 (Ltr. from K. Becton-Johnson to M. Gaines dated Apr. 13, 2009).
her opposition. See Pls.’ Stmt. ¶ 38 (citing Pls.’ Ex. 61). In any event, Gaines admits that she
“overstated” the earned income tax credit to which she was entitled, and merely attempts to
minimize the import of that admission by averring that she took steps to correct the infraction
upon being notified. Id. As before, the Court will assume for purposes of resolving the pending
motions that Gaines’s non-compliance was not a “willful act,” but the undisputed facts
nonetheless establish that she “failed to timely pay additional taxes assessed because of her
failure to accurately claim an earned-income tax credit.” Def.’s Stmt. ¶ 44; Pls.’ Stmt. ¶ 44.
18
In responding to the Secretary’s proffered factual statement, Gaines first concedes that
the statement is admitted, but then proceeds to contend that the facts have been “distorted.” Pls.’
Stmt. ¶ 45. In so doing, Gaines fails to explain why she believes the facts have been distorted
and instead incorporates her response to an entirely different factual statement, a response that
has no obvious nexus to the factual statement at issue. The Court will therefore treat the
Secretary’s proffered factual statement as admitted.
19
Citing to no evidence in the record, Gaines purports to dispute that her “supervisors
had the authority to increase her penalty.” Pls.’ Stmt. ¶ 48. Regardless, it is undisputed that the
second proposal incorporated an entirely new incident of tax non-compliance but recommended
the same level of discipline as previously proposed.
13
6. The Termination of Gaines’s Employment
On March 3, 2009, Gaines underwent a work-capacity evaluation, after which the
examining doctor determined that she was able to return to work on a full-time basis.20 Def.’s
Stmt. ¶ 50; Gaines Dep. Ex. 18 (Work Capacity Evaluation dated Mar. 3, 2009). On May 29,
2009, the DOL’s OWCP notified Gaines that her medical and wage loss benefits would be
terminated effective June 7, 2009, advised her that applicable regulations required her to apply
for re-employment with the IRS immediately upon her recovery, and informed her of her right to
appeal the determination.21 Def.’s Stmt. ¶ 51; Pls.’ Stmt. ¶ 51; Gaines Dep. Ex. 18 (Ltr. from S.
Stone to M. Gaines dated May 29, 2009). On June 15, 2009, the IRS sent Gaines a letter
instructing her to report to work by no later than June 29, 2009. Def.’s Stmt. ¶ 52; Pls.’ Stmt. ¶
52; Gaines Dep. Ex. 19 (Ltr. from S. Becker to M. Gaines dated June 15, 2009). In lieu of
returning to work, Gaines elected to appeal the OWCP’s determination.22 Def.’s Stmt. ¶ 53; Pls.’
20
In responding to the Secretary’s proffered factual statement, Gaines does not dispute
that she underwent a work-capacity evaluation on March 3, 2009, or that the examining doctor
determined that she was able to return to work full-time. Pls.’ Stmt. ¶ 50. Instead, Gaines
alleges that the evaluation was insufficiently “thorough” and that the “examining doctor would
not review current medical documents . . . in order to make a correct assessment of her
condition.” Id. (citing Pls.’ Interrog. Resps. No. 11; Pls.’ Ex. 58 (Ltr. from R. Swick to S.
Becker dated July 21, 2009)). Because the evidence cited by Gaines does not support her
extraneous factual allegations, those allegations will be disregarded.
21
In responding to the Secretary’s proffered factual statement, Gaines concedes that the
statement is admitted, but then proceeds to allege that she “is awaiting a Hearing of her Pending
Case with the Department of Labor.” Pls.’ Stmt. ¶ 51. Gaines fails to support this extraneous
allegation with “references to the parts of the record relied on [for] support.” LCV R 7(h)(1). In
any event, it is immaterial.
22
In responding to the Secretary’s proffered factual statement, Gaines concedes that the
statement is admitted, but then proceeds to set forth additional factual allegations. Pls.’ Stmt. ¶
54. Because these extraneous factual allegations are unaccompanied by “references to the parts
of the record relied on [for] support,” LCV R 7(h)(1), the Court will disregard them.
14
Stmt. ¶ 53. On July 21, 2009, Gaines’s legal counsel, Richard L. Swick, Esq. (“Swick”),
responded to the IRS’s letter by informing the IRS that Gaines was “not likely to be physically
able to return to work at the IRS” and requesting that an IRS representative “call [him] to explore
a resolution to th[e] situation.” Gaines Dep. Ex. 20 (Ltr. from R. Swick to S. Becker dated July
21, 2009) at 1.
Shortly thereafter, Swick called Gaines’s third-line supervisor, Becker. Def.’s Stmt. ¶ 54;
Pls.’ Stmt. ¶ 54. The parties dispute what was said during this conversation, though they agree
that it occurred. On the one hand, the Secretary contends that Swick requested that the IRS begin
the process of terminating Gaines for non-disciplinary reasons—in other words, that she be
terminated without cause. Def.’s Stmt. ¶ 54. On the other hand, Gaines admits that Swick and
Becker discussed two available options—a non-disciplinary termination and a disability
retirement—but denies that Swick requested that the IRS begin the process for a non-disciplinary
termination. Pls.’ Stmt. ¶ 54. Both versions of the conversation find some support in the record.
Becker testified at her deposition that Swick informed her that Gaines would not be “coming to
work” and requested that Becker “start the termination procedures.” Dep. of Stacey Becker
(“Becker Dep.”) at 28. Meanwhile, Swick has submitted a declaration in which he states that
while he and Becker “did discuss the option of a non-disciplinary termination, . . . [he] did not
suggest that Ms. Becker propose Ms. Gaines’s termination.” Pls.’ Ex. 33 (Decl. of Richard L.
Swick) ¶¶ 3, 5. Furthermore, there is a point in Becker’s deposition testimony where she
suggests that Swick stated during the conversation that the IRS “needed to get her retirement
going,” Becker Dep. at 67, which may or may not be consistent with the remainder of her
testimony. Viewing this conflicting evidence in the light most favorable to Gaines as the non-
15
movant, the Court will assume for purposes of resolving the pending motions that Swick did not
ask or otherwise propose that the IRS commence the process of terminating Gaines for non-
disciplinary reasons.
Setting aside whether Swick requested that the IRS do so, the IRS subsequently initiated
the process of removing Gaines for non-disciplinary reasons. Def.’s Stmt. ¶ 55; Pls.’ Stmt. ¶ 55.
Gaines testified that she no longer wanted to continue working at the IRS by that point in time,
and maintains that she was still unable to work. Gaines Dep. at 207, 212. Nonetheless, she had
not at that time filed an application for her preferred mode of separating from the IRS—namely, a
disability retirement.23 Def.’s Stmt. ¶¶ 56-57; Pls.’ Stmt. ¶¶ 56-57. Accordingly, the IRS
proceeded with the non-disciplinary termination process, citing as grounds Gaines’s admitted
failure to report for work and inability to perform her duties since early July 2008. Def.’s Stmt. ¶
59; Pls.’ Stmt. ¶ 59. On September 15, 2009, the IRS notified Gaines of the proposed non-
disciplinary termination, and in so doing expressly advised Gaines that the proposed “action
[would] not affect [her] entitlement to apply for disability retirement for up to one year after
separation” and “[would] not affect any entitlement to compensation for which [she] may qualify
under the Federal Employees’ Compensation Act.” Gaines Dep. Ex. 22 (Ltr. from S. Becker to
M. Gaines dated Sept. 15, 2009) at 1-2; see also Becker Dep. at 66 (testifying that the
termination would not have any effect on Gaines’s filing for a disability retirement). Although
23
While Gaines disputes other aspects of Becker’s recollection of her conversation with
Swick, Becker’s testimony that she told Swick that she was uncertain why Gaines had not
applied for disability retirement and that she and IRS management would support and facilitate
such an application stands uncontradicted. Becker Dep. at 63. Meanwhile, when Gaines was
asked at her deposition what steps she had taken to secure a disability retirement, the only step
she was able to identify was that she had spoken to her counsel, Swick. Gaines Dep. at 212-13.
16
the IRS informed Gaines of her right to respond to the proposal orally or in writing, Gaines
elected to do neither. Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15,
2009) at 2; Def.’s Stmt. ¶ 60; Pls.’ Stmt. ¶ 60. On October 16, 2009, the IRS notified Gaines that
her non-disciplinary proposal would be upheld and that she would be removed from federal
service effective October 23, 2009. Def.’s Stmt. ¶ 61; Pls.’ Stmt. ¶ 61; Gaines Dep. Ex. 23 (Ltr.
from K. Becton-Johnson to M. Gaines dated Oct. 16, 2009).
It is an employee’s responsibility to initiate the disability retirement application process.
Becker Dep. at 68. The Secretary asserts that the IRS cannot process a disability retirement
without a Form OPM SF-3112B application for disability retirement from the employee, Def.’s
MSJ Mem. at 10 n.4, and this assertion is left uncontested by Gaines in her opposition papers.
When notifying Gaines of her proposed non-disciplinary termination on September 15, 2009, the
IRS described the application process for Gaines and provided relevant contact information.
Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15, 2009) at 1. It is undisputed
that Gaines did not file an application for a disability retirement—Form OPM SF-3112B—until
October 4, 2009. Def.’s Stmt. ¶ 57; Pls.’ Stmt. ¶ 57. Thereafter, the IRS forwarded her
application to the Office of Personnel Management (“OPM”)24 and Gaines’s termination was
subsequently converted from a non-disciplinary removal to a disability retirement. Def.’s Stmt.
¶¶ 58, 62; Pls.’ Stmt. ¶ 62. The record created by the parties does not clearly provide when the
conversion occurred.
24
The OPM, and not the IRS, is tasked with making the determination on an application
for a disability retirement. Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15,
2009) at 1.
17
B. Factual Background Relating to Plaintiff Euel Mason
Mason began working with the IRS in 1987 as a GS-5-level Printing Analyst. Def.’s
Stmt. ¶ 63; Pls.’ Stmt. ¶ 63. As a result of the 2006 Settlement, he was promoted to a GS-14-
level Technical Advisor position in the M&P Organization. Def.’s Stmt. ¶ 64; Pls.’ Stmt. ¶ 64.
During the relevant time period, Mason’s chain-of command was as follows:
• First-line supervisor: Pedro Mendez (“Mendez”), from October 1, 2006, to
April 13, 2007; fellow-plaintiff Benton, from April 15, 2007, to July 7,
2007; Richard Freeman (“Freeman”), from July 8, 2007, to August 5,
2007; and Paul Dangel (“Dangel”), from August 4, 2007, to September 30,
2007;
• Second-line supervisor: Mitchell Farah (“Farah”); and
• Third-line supervisor: Fayne, until September 2008; Becton-Johnson,
from September 2008, to July 31, 2009.
Def.’s Stmt. ¶¶ 65-67; Pls.’ Stmt. ¶¶ 65-67.
1. Mason’s Complaints as to a Series of “Incidents” With His Supervisors
Mason complains of a series of approximately fourteen “incidents” that allegedly
occurred between him and his supervisors in the approximately three-year period extending from
June 2, 2006, to July 31, 2009.25 See Pls.’ MSJ Opp’n at 12-24. Mason provides only the barest
25
The Court shall disregard Mason’s sporadic allegations that he was “stalked” or
“harassed” on a “daily basis” when those allegations are unaccompanied by any meaningful
factual support. See Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462,
465-66 (D.C. Cir. 2009) (conclusory assertions offered without any factual basis in the record
cannot create a genuine dispute sufficient to survive summary judgment). Absent further factual
content, Mason has failed to adduce sufficient facts that would allow a reasonable trier of fact to
conclude that his allegations would meaningfully contribute to a severe or pervasive hostile work
18
of factual content in connection with these incidents, and the Court identifies them here seriatim.
• The June 2, 2006, Incident: Mason alleges that he attended a meeting
with his third-line supervisor, Fayne, to discuss and resolve his concerns
about “personnel information and chain of command reporting structure.”
Pls.’ MSJ Opp’n at 12; Pls.’ Interrog. Resps. No. 3. Mason claims that his
concerns were not “corrected or resolved in a timely manner.” Pls.’ MSJ
Opp’n at 12; Pls.’ Interrog. Resps. No. 3.
• The March 7, 2007, Incidents: Mason alleges that he received a
“harassing” e-mail from his third-line supervisor, Fayne, in which Fayne
indicated that “she was not going to meet with him to address his ongoing
and unresolved concerns.” Pls.’ MSJ Opp’n at 13; Pls.’ Interrog. Resps.
No. 3. In addition, Mason alleges that he received “a very disturbing,
environment. In addition, the Court shall disregard Mason’s stand-alone allegation that “[o]n or
around December 18, 2002, Mr. Farah approached [him] . . . in an aggressive and demeaning
manner,” “demand[ing] information about a project that Ron Hazell was working on” and
“rais[ing] his voice.” Pls.’ MSJ Opp’n at 21 (citing Dep. of Gerald Plater (“Plater Dep.”) at 52-
55). First, the date identified by Mason—December 18, 2002—would place the alleged incident
several years before any other event allegedly comprising the hostile work environment, and yet
Mason makes no attempt to explain how an event so remote in time could possibly be construed
as part of the same work environment (the Court acknowledges that Mason may have
misidentified the date in his opposition, but neither his opposition nor the record provides an
unambiguous date that would allow the Court to conclude that the event occurred closer in time).
Second, the incident is conspicuously absent from Mason’s responses to the Secretary’s
interrogatories calling upon him to identify each and every alleged incident of harassment
supporting his claims. Pls.’ Interrog. Resps. Nos. 3, 5. Third, by burying the allegation in his
sixty-eight page opposition memorandum instead of including it in his responsive statement of
material facts, Mason failed to raise the allegation in the specific manner prescribed by the Court.
See 6/11/09 Scheduling & Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil
Action No. 09-462) at 3; Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 21-22.
Regardless, even if the Court were to consider Mason’s allegations in this regard, it would not
warrant reaching a different result with respect to the pending motions.
19
condescending, and harassing e-mail” from his second-line supervisor,
Farah, on the same day, in which Farah told Mason that he was “not
familiar” with the 2006 Settlement. Pls.’ MSJ Opp’n at 13; Pls.’ Interrog.
Resps. No. 3.
• March 26, 2007, Incident: Mason alleges that he attended a “private
meeting” with his first-line supervisor, Mendez, and second-line
supervisor, Fayne, in which Fayne spoke to him “in a very aggressive tone
and derogatory, condescending and insensitive way” when Fayne allegedly
told Mason that “she was ‘singling him out’ because of his expertise and
because of his marital status of being ‘single.’” Pls.’ MSJ Opp’n at 14;
Pls.’ Interrog. Resps. No. 3.
• The April 30, 2007, Incident: Mason alleges that he was required to
attend an “impromptu personnel meeting” called by his third-line
supervisor, Fayne, and attended by various senior-level management
officials, concerning “ongoing and unresolved personnel issues.” Pls.’
MSJ Opp’n at 15; Pls.’ Interrog. Resps. No. 3. Without further
explanation, Mason contends that he felt “singled-out” and “harassed” by
being required to attend an “inappropriate and mandated meeting.” Pls.’
MSJ Opp’n at 15; Pls.’ Interrog. Resps. No. 3.
• The June 28, 2007, Incident: Mason alleges that he was copied on “a
very disturbing, condescending, and harassing” e-mail from his second-
line supervisor, Farah, in which Farah stated to co-plaintiff Benton that
20
Mason “could not act on Mr. Benton’s behalf for even the one week while
he was out of the office.” Pls.’ MSJ Opp’n at 15-16; Pls.’ Interrog. Resps.
No. 3. Mason contends that the e-mail was designed to “single-out and
publically embarrass [him] in front [of] other management officials and
coworkers.” Pls.’ MSJ Opp’n at 15-16; Pls.’ Interrog. Resps. No. 3.
• The December 10, 2007, Incident: Mason alleges that he witnessed his
second-line supervisor, Farah, hand co-plaintiff Benton a “sealed
confidential envelope which contained a bogus management directive of
reprimand” pertaining to Benton. Pls.’ MSJ Opp’n at 17-18; Pls.’
Interrog. Resps. No. 3.
• The February 29, 2008, Incident: Mason alleges that he was approached
“in an aggressive, condescending, disruptive and harassing manner” at his
workstation by his first-line supervisor, Mendez, and his second-line
supervisor, Farah, who handed Mason “a sealed confidential envelope
containing a bogus management directive of reprimand with other
coworkers were [sic] present.” Pls.’ MSJ Opp’n at 18-19; Pls.’ Interrog.
Resps. No. 3.
• The March 31, 2008, Incident: Mason alleges that he witnessed his
third-line supervisor, Fayne, approach co-plaintiff Benton “in a
threatening, condescending, disruptive, abusive, hostile and harassing
verbal tone and manner” by “berat[ing] Mr. Benton for not agreeing to
attend an impromptu meeting about a confidential matter.” Pls.’ MSJ
21
Opp’n at 19-20; Pls.’ Interrog. Resps. No .3
• The June 19, 2008, Incident: Mason alleges that he witnessed his
second-line supervisor, Farah, approach co-plaintiff Benton’s workstation
and “attempt [to] embarrass, degrade, and humiliate [] Benton with [sic]
publically handing him . . . a confidential sealed envelope.” Pls.’ Interrog.
Resps. No. 3.
• October 6, 2008, Incident: Mason alleges that he was approached by his
second-line supervisor, Farah,“in an aggressive, condescending, disruptive
and harassing manner” when Farah provided him with a “sealed
confidential envelope[]” containing a letter proposing disciplinary action.
Pls.’ MSJ Opp’n at 20-21; Pls.’ Interrog. Resps. Nos. 3, 5.
• January 7, 2009, Incident: Mason alleges that he was approached by his
second-line supervisor, Farah, “in an aggressive, demeaning, abusive,
harassing and hostile manner, when [Farah] handed him a sealed
confidential envelope containing a [letter] imposing a 3-day suspension
without pay.” Pls.’ MSJ Opp’n at 21-22; Pls.’ Interrog. Resps. Nos. 3, 5.
• February 4, 2009, Incident: Mason alleges that his second-line
supervisor, Farah, “repeatedly came down to [his] work area to stalk and
harass [him] at his workstation to humiliate and embarrass him in a very
condescending, threatening and demeaning manner in front of co-
workers.” Pls.’ MSJ Opp’n at 22-23; Pls.’ Interrog. Resps. Nos. 3, 5.
• July 28, 2009, Incident: Mason alleges that he was approached by his
22
first-line supervisor, Dangel, “in an aggressive, demeaning, abusive,
harassing and hostile manner.” Pls.’ MSJ Opp’n at 23; Pls.’ Interrog.
Resps. No. 3.
• July 31, 2009, Incident: Mason alleges that he attended a meeting with
his first-line supervisor, Dangel, during which Dangel “wanted [him] to
sign and date a memorandum stating Notice of Unsatisfactory
Performance of Duty and Failure to Respond Readily to the Directions of
your Supervisor,” which he characterizes as “totally untrue, unwarranted,
and unlawful against him.” Pls.’ MSJ Opp’n at 23-24; Pls.’ Interrog.
Resps. No. 3.
2. Mason’s Non-Selection for the ‘322 Position
On or about April 16, 2007, Mason applied for the position of Branch Chief of Functional
Publishing, Vacancy Announcement 40-41-AT7TG322 (“‘322 Position”). Def.’s Stmt. ¶ 68;
Pls.’ Stmt. ¶ 68. Five employees, all African American, were named to the best-qualified list for
the ‘322 Position. Def.’s Stmt. ¶ 69; Pls.’ Stmt. ¶ 69. In addition to Mason, included on the list
were (1) co-plaintiff Benton, (2) Freeman, (3) Vincente Tillman (“Tillman”), and (4) Cynthia
McKinney (“McKinney”). Def.’s Stmt. ¶ 69; Pls.’ Stmt. ¶ 69. Steve Manno (“Manno”) was the
ranking official, Farah was the recommending official, and Fayne was the selecting official.
Def.’s Stmt. ¶¶ 70, 72; Pls.’ Stmt. ¶¶ 70, 72.
As the ranking official, Manno began the process by reviewing the application packages
and written submissions that the five candidates submitted and assigning each candidate a
23
score.26 Def.’s Stmt. ¶¶ 70, 73; Pls.’ Stmt. ¶¶ 70, 73. Mason received a ranking score of 95
points.27 Def.’s Stmt. ¶ 74; Pls.’ Stmt. ¶ 74. Thereafter, the candidates were interviewed by a
three-person panel, which asked each candidate identical questions and rated their responses.
Def.’s Stmt. ¶ 75; Pls.’ Stmt. ¶ 75. Mason received an interview score of 22 points. Def.’s Stmt.
¶ 76; Pls.’ Stmt. ¶ 76. The final scores for all five candidates were as follows:
NAME RANKING SCORE INTERVIEW SCORE
Freeman (selectee) 100 28
Tillman 100 22
Mason 95 22
Benton 95 21
McKinney 90 17
26
In responding to the Secretary’s proffered factual statement, Mason concedes that the
statement is admitted, but then proceeds to set forth additional factual allegations. Specifically,
Mason alleges that Manno “ranked his direct subordinate, Vincente Tillman, which constituted a
conflict of interest and compromised the Agency’s selection process in accordance with the
Internal Revenue Manual (IRM) 6.335.1 - Merit Promotion Plan.” Pls.’ Stmt. ¶ 70 (citing Dep.
of Steve Manno (“Manno Dep.”) at 12). But Mason does not identify any language in the
Internal Revenue Manual that prohibited Manno from evaluating a subordinate, and more
importantly, Mason fails to cite to evidence in the record that would permit the Court to evaluate
the validity of the claim—most notably, the Internal Revenue Manual itself. “Judges ‘are not
like pigs, hunting for truffles buried in briefs’ or the record,” Potter v. District of Columbia, 558
F.3d 542, 553 (D.C. Cir. 2009) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir.1991)), and the Court declines Mason’s invitation to sift through the record in an attempt to
locate evidence in support of his claim. Because these extraneous factual allegations are
unaccompanied by sufficiently specific “references to the parts of the record relied on [for]
support,” LCV R 7(h)(1), the Court will disregard them. In any event, Mason fails to adduce
evidence that would allow the trier of fact to conclude that any procedural error was intentional
or otherwise indicative of a retaliatory animus against him.
27
In responding to the Secretary’s proffered factual statement, Mason concedes that the
statement is admitted, but then proceeds to allege that Manno’s ranking process was “biased and
unfair.” Pls.’ Stmt. ¶ 74. Because this extraneous factual allegation is unaccompanied by
“references to the parts of the record relied on [for] support,” LCV R 7(h)(1), it shall be
disregarded by the Court. Mason adduces no evidence in support of his allegation.
24
See Def.’s Ex. M (Management Selection Program Ranking Form for R. Freeman); Def.’s Ex. N
(Management Selection Program Ranking Form for V. Tillman); Def.’s Ex. O (Management
Selection Ranking Form for D. Benton); Def.’s Ex. P (Management Selection Program Ranking
Form for C. McKinney); Def.’s Ex. Q (Management Selection Ranking Form for E. Mason).
The scores were then reviewed by Farah, who as the recommending official chose the
highest-ranking candidate—Freeman. Def.’s Ex. L (Promotion Certificate) at 1501. Thereafter,
the scores and Farah’s recommendation were reviewed by Fayne, who as the selecting official
selected the highest-ranking candidate—Freeman—on July 8, 2007. Def.’s Stmt. ¶¶ 78-79; Pls.’
Stmt. ¶¶ 78-79; Def.’s Ex. L (Promotion Certificate) at 1501.
The application and review materials demonstrated a “clear separation” between Freeman
and the other four candidates, including Mason.28 Def.’s Stmt. ¶ 80. Both Manno, as the ranking
official, and the interview panel agreed that Freeman possessed the most extensive managerial
experience, demonstrated more relevant professional achievement than the other candidates, and
had an educational background that was superior or comparable to the other candidates.29 Id. ¶
28
Mason purports to dispute the Secretary’s proffered factual statement, but his argument
is non-responsive. See Pls.’ Stmt. ¶ 80. While Mason alleges that “Mr. Freeman was selected
because Ms. Fayne and Mr. Farah harbored a retaliatory animus against Mr. Mason and Mr.
Benton,” Pls.’ Stmt. ¶ 80, he provides no explanation or evidentiary basis that would call into
doubt the Secretary’s proffered statement that, viewed objectively, “[t]he application packages
and the interview panelists’ notes demonstrate a clear separation between Freeman and the rest of
the candidates,” Def.’s Stmt. ¶ 80. Accordingly, the Court will deem the Secretary’s proffered
statement to be admitted. The Court addresses Mason’s generalized allegations of bias elsewhere
in this Memorandum Opinion.
29
Mason purports to dispute the Secretary’s proffered factual statement, but his argument
is non-responsive. See Pls.’ Stmt. ¶ 81. In responding, Mason incorporates his response to an
entirely different factual statement, but the incorporated response pertains to Farah and Fayne’s
alleged bias, and provides no explanation or evidentiary basis to call into doubt the determination
of the interview panelists or Manno. Accordingly, the Court will deem the Secretary’s proffered
25
81. At his deposition, Mason admitted that he was not the most qualified candidate for the ‘322
Position. Dep. of Euel Mason (“Mason Dep.”) at 206-08. In his own view, at least two
candidates—Tillman and co-plaintiff Benton—should have been selected over him. Id.
3. Mason’s Request for a Rotational Work Assignment
On March 28, 2008, employees in the M&P Organization received an e-mail describing
the Rotational Work Assignment Program, which was designed to “provide Printing Specialists
the opportunity to gain a broader knowledge base of the organization and its programs.” Def.’s
Stmt. ¶ 84; Pls.’ Stmt. ¶ 84. Employees were invited to select up to three program choices for a
rotational work assignment and to submit their choices to their supervisor by April 11, 2007,
along with a statement explaining why the choices would benefit the IRS. Def.’s Ex. R (E-mail
from T. Costa to M&P Listserv dated Mar. 27, 2007) at 1. Mason submitted his requests for a
rotational assignment on April 23, 2007, after the submission deadline had elapsed. Def.’s Stmt.
¶ 85; Pls.’ Stmt. ¶ 85. Nonetheless, Mason’s second-line supervisor, Farah, considered Mason’s
request. Def.’s Stmt. ¶ 86; Pls.’ Stmt. ¶ 86. After consulting with Mason’s first-line supervisor,
co-plaintiff Benton, and his third-line supervisor, Fayne, Farah decided that Mason should
remain in his current position in order to complete an ongoing project, the VERA/VSIP Mailout
Program, and denied Mason’s request on April 23, 2007.30 Def.’s Stmt. ¶ 86; Pls.’ Stmt. ¶ 86;
statement to be admitted. The Court addresses Mason’s generalized allegations of bias on the
part of Farah and Fayne elsewhere in this Memorandum Opinion.
30
In responding to the Secretary’s proffered factual statement, Mason first concedes that
the statement is admitted, but then proceeds to raise a series of extraneous factual allegations
concerning a “Special Project Team for the Publishing Workforce Program producing various
Reduction In Force (RIF) packages.” Pls.’ Stmt. ¶ 86. It is unclear how these allegations, which
are stated without any meaningful factual context, even relate to the Secretary’s proffered
statement. In any event, because these extraneous factual allegations are unaccompanied by
26
Def.’s Ex. R (E-mail from M. Farah to E. Mason dated Apr. 23, 2007). Mason’s first-line
supervisor, co-plaintiff Benton, had informed Farah that another important mailout was
upcoming and that Mason’s participation in the project was necessary. Def.’s Stmt. ¶ 87; Pls.’
Stmt. ¶ 87. However, after the VERA/VSIP Mailout Program had concluded, Mason renewed
his request for a rotational assignment. Def.’s Stmt. ¶ 89; Pls.’ Stmt. ¶ 89. Farah responded the
very next day by granting Mason’s request, notifying Mason that he would be granted a rotational
work assignment to the Wage & Investment Tax Products Branch Chief’s office beginning on
August 5, 2007.31 Def.’s Stmt. ¶ 90; Def.’s Ex. R (E-mail from M. Farah to E. Mason dated July
27, 2007).
4. Mason’s Request for a Transfer to the New Carrollton Office
On August 30, 2007, Mason sent an e-mail to his third-line supervisor, Fayne, requesting
that his post of duty be changed from IRS Headquarters in Washington, D.C., to the IRS’s New
Carrollton office located in Lanham, Maryland. Def.’s Stmt. ¶ 91; Pls.’ Stmt. ¶ 91. Fayne
responded to Mason’s request later that day, reminding Mason of the general policy that requests
by employees in the M&P Organization for a transfer to New Carrollton office would not be
considered until January 2008 because the M&P Organization had in place a moratorium on all
relocations to the New Carrollton office affecting all employees in the organization. Def.’s Stmt.
“references to the parts of the record relied on [for] support,” LCV R 7(h)(1), the Court will
disregard them.
31
Mason purports to dispute the Secretary’s proffered factual statement. See Pls.’ Stmt.
¶ 91. However, his narrative response concedes that “Mr. Farah approved [his] request to [be]
reassigned to the W&I Publishing Branch,” and it is unclear what part of the proffered factual
statement Mason intends to dispute. Id. In any event, because Mason’s response is
unaccompanied by “references to the parts of the record relied on [for] support,” LCV R 7(h)(1),
the Court will deem the Secretary’s proffered factual statement to be admitted.
27
¶ 92; Pls.’ Stmt. ¶ 92; Def.’s Ex. S (E-mail from D. Fayne to E. Mason dated Aug. 30, 2007). At
his deposition, Mason admitted that he was already aware of the policy at the time that he made
his request. Mason Dep. at 177-78. He has also conceded that he is unable to identify any other
employee in the M&P Organization who requested and was granted a transfer to the New
Carrollton office during the moratorium. Def.’s Stmt. ¶ 95; Pls.’ Stmt. ¶ 95.
5. Mason’s Request to Be Reassigned to Another Branch
On December 17, 2007, Mason requested to be transferred to another branch within the
M&P Organization.32 Def.’s Stmt. ¶ 96; Pls.’ Stmt. ¶ 96. On December 18, 2007, Mason’s
second-line supervisor, Farah, denied the request, citing as grounds that Mason had just recently
been transferred to the Functional Publishing Branch in July 2007 and that there was no staffing
need for someone working in Mason’s position in any of the other branches.33 Def.’s Stmt. ¶ 98;
32
Mason also alleges that another request for reassignment was denied sometime in May,
2009. See Pls.’ MSJ Opp’n at 23 (citing Pls.’ Interrog. Resps. No. 4). For several reasons, the
Court shall disregard the allegation. First, by burying the allegation in his sixty-eight page
opposition memorandum instead of including it in his responsive statement of material facts,
Mason failed to raise the allegation in the specific manner prescribed by the Court. See 6/11/09
Scheduling & Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil Action No.
09-462) at 3; Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 21-22. Second, it is
undisputed that Mason failed to raise any such allegation on the administrative level, Def.’s Stmt.
¶ 97; Pls.’ Stmt. ¶ 97, and yet he never even attempts to explain why it could properly be
considered by the Court. Third, Mason adduces no evidence that would suggest that the denial of
his request had anything to do with his protected activity; he offers only his conclusory allegation
that it was “a result of on-going retaliation.” Pls.’ Interrog. Resps. No. 4. Regardless, even if the
Court were to consider Mason’s allegation, it would not warrant reaching a different result with
respect to the pending motions.
33
Mason purports to dispute the Secretary’s proffered factual statement, but in so doing
he provides no explanation or evidentiary basis for calling into doubt either that he had just
recently been transferred to the Functional Publishing Branch in 2007 or that there was no
staffing need for someone working in Mason’s position in any of the other branches. See Pls.’
Stmt. ¶ 98. Accordingly, the Court shall deem those matters to be admitted. Mason’s response
instead alleges that Farah otherwise harbored a generalized retaliatory animus, an argument
28
Def.’s Ex. U (Decl. of Paul L. Dangel) at 1112; Def.’s Ex. V (Decl. of Mitchell A. Farah) at 992.
6. Mason’s Request for a “Flexiplace” Assignment
On October 15, 2007, Mason met with his first-line supervisor, Dangel, during which he
provided Dangel with a memorandum entitled “Requests for Family Medical Leave Act and
Flexi-Place,” and a seven-page, single-spaced “Informal Meeting Agenda.” Def.’s Stmt. ¶ 99;
Pls.’ Stmt. ¶ 99. In the memorandum, Mason explained that he had two sisters in Memphis,
Tennessee, who required his support and requested “to be approved for the Family Medical
Leave Act” and “to be allow [sic] to work Flexi-place from the Memphis Service Center
Campus.” Def.’s Stmt. ¶ 100; Pls.’ Stmt. ¶ 100. In the agenda, Mason expressly asked Dangel to
seek approval for the requests on his behalf from “appropriate upper management officials.”
Def.’s Stmt. ¶ 101; Pls.’ Stmt. ¶ 101. Pursuant to Mason’s request, Dangel subsequently
approached his supervisors and inquired whether Mason could work in Memphis. Def.’s Stmt. ¶
102; Pls.’ Stmt. ¶ 102. It is undisputed that Dangel did not discuss the nature of Mason’s sisters’
illness, Mason’s prior protected activity, or Mason’s participation in the Employee Assistance
Program with his supervisors.34 Def.’s Stmt. ¶ 103; Pls.’ Stmt. ¶ 103.
which the Court addresses elsewhere in the Memorandum Opinion.
34
In responding to the Secretary’s proffered factual statement, Mason unambiguously
states that he admits that “Dangel did not discuss Mason’s EEO activity, participation in the
Employee Assistance Program, or the nature of [Mason’s] sisters’ illnesses with his supervisors.”
Def.’s Stmt. ¶ 103; Pls.’ Stmt. ¶ 103. The Court will hold Mason to this unambiguous
admission, even if it may be in tension with his responses to an interrogatory posed by the
Secretary in the course of discovery. See Pls.’ Interrog. Resps. No. 6 (alleging that “Dangel
disclosed [Mason’s] confidential employee information to Mr. Farah and Denise S. Fayne,”
including “1) plaintiff’s EEO activity at the time, 2) plaintiff seeking counseling through the
Employee Assistance Program (EAP), and 3) medical issues regarding plaintiff’s family
members that reside out of state.”). In any event, Mason’s cursory interrogatory responses fail to
explain how he could possibly have personal knowledge of the conversation, and as such is an
29
Subsequently, Dangel notified Mason that he had spoken with Farah and Fayne about his
requests. Def.’s Stmt. ¶ 104; Pls.’ Stmt. ¶ 104. This prompted Mason to send a lengthy e-mail to
his first-line supervisor, Dangel, his second-line supervisor, Farah, his third-line supervisor,
Fayne, and his fifth-line, Atlanta-based supervisor, Susan Carroll, entitled, “Did not need to
know requesting [sic] reassignment its [sic] a trust broken reassigned [sic] to B-tax chief or Pub.
chief.” Def.’s Stmt. ¶ 105; Pls.’ Stmt. ¶ 105.
7. Mason’s “Met” Rating on His 2007 Performance Appraisal
Following implementation of the 2006 Settlement, Mason was promoted to a GS-14-
level, 1601-series Technical Advisor position. Def.’s Stmt. ¶ 106; Pls.’ Stmt. ¶ 106. Prior to the
promotion, Mason was a GS-13, non-managerial, non-bargaining-unit employee and received
performance appraisals on Form 6850-NBU. Def.’s Stmt. ¶ 107; Pls.’ Stmt. ¶ 107. Following
his promotion to Technical Advisor, however, Mason was evaluated under Form 12450-B, which
is typically used for management officials.35 Def.’s Stmt. ¶ 108; Pls.’ Stmt. ¶ 108. Form 12450-
B differs from Form 6850-NBU because it contains so-called “critical performance expectations”
(“CPEs”), concrete goals specifically designed for each employee being evaluated. Def.’s Stmt.
¶ 109; Pls.’ Stmt. ¶ 109. The Form 6850-NBU does not contain these specific, employee-tailored
performance expectations and instead evaluates employees using general achievement criteria
insufficient basis for a reasonable trier of fact to disregard the contrary evidence in the record.
See Dep. of Paul Dangel (“Dangel Dep.”) at 51.
35
In responding to the Secretary’s proffered factual statement, Mason first concedes that
the statement is admitted, and then proceeds to raise a number of incoherent, extraneous factual
allegations. See Pls.’ Stmt. ¶ 108 (citing Pls.’ Interrog. Resps. No .7). In support, Mason cites
exclusively to his response to an interrogatory posed by the Secretary in the course of discovery,
which does not support the factual allegations identified. See Pls.’ Interrog. Resps. No. 7.
30
like “customer satisfaction” and “business results.” Def.’s Stmt. ¶ 110; Pls.’ Stmt. ¶ 110. In
short, with his promotion, Mason was being evaluated based on new criteria. Def.’s Stmt. ¶ 111;
Pls.’ Stmt. ¶ 111.
The matter was complicated somewhat when Mason stated that he did not want to assume
managerial responsibilities upon his promotion.36 Def.’s Stmt. ¶ 112; Dep. of Denise Fayne
(“Fayne Dep.”) at 77-78. Due to Mason’s refusal to accept a managerial position, an entirely
new, non-managerial position was created especially for him at the GS-14 level.37 Def.’s Stmt. ¶
113; Fayne Dep. at 72-73, 77. Because Mason held a non-managerial GS-14-level position, there
was initially some confusion as to whether Mason should continue to be evaluated under Form
6850-NBU or should instead be evaluated under Form 12450-B. Def.’s Ex. Z (Suppl. Decl. of
Pedro Martinez) at 1158. Later, it was discovered that Mason should have been provided with
his CPEs when he was first promoted, and should have been switched over to the Form 12450-B
at that time. Def.’s Stmt. ¶ 114; Pls.’ Stmt. ¶ 114. When the oversight came to light, Mason’s
supervisors converted him to Form 12450-B and issued him the CPEs that would help determine
his ultimate rating on the Form 12450-B. Def.’s Stmt. ¶ 115; Pls.’ Stmt. ¶ 115.
Consistent with this account, Mason’s first-line supervisor, Mendez, initially signed
Mason’s review on the Form 6850-NBU on February 27, 2007, issuing Mason a rating of
36
While Mason purports to dispute the Secretary’s proffered factual statement, asserting
the he “was willing to take an acceptable management position,” his response is unaccompanied
by “references to the parts of the record relied on [for] support.” LCV R 7(h)(1). Accordingly,
the Court will deem the Secretary’s proffered factual statement to be admitted.
37
While Mason purports to dispute the Secretary’s proffered factual statement, asserting
that he “was willing to take an acceptable management position,” his response is unaccompanied
by “references to the parts of the record relied on [for] support.” LCV R 7(h)(1). Accordingly,
the Court will deem the Secretary’s proffered factual statement to be admitted.
31
“Outstanding”—the highest rating available—for the period from February 1, 2006, to January
31, 2007.38 Def.’s Stmt. ¶ 116; Def.’s Ex. Y (Non Bargaining Unit Performance Appraisal for
Euel Mason) at 1740. Mason was subsequently converted to Form 12450-B for the period from
October 1, 2006, to September 30, 2007. Def.’s Stmt. ¶ 117; Pls.’ Stmt. ¶ 117. On April 20,
2007, Mason and his first- and second-line supervisors signed a mid-year progress review in
which Mason acknowledged that he had discussed the CPEs with his supervisors and was given
specific examples of the behavior that would meet the standards described in the CPEs. Def.’s
Stmt. ¶ 118; Pls.’ Stmt. ¶ 118.
At the end of fiscal-year 2007, Mendez furnished Mason with a summary narrative of
Mason’s achievements to be included in his Form 12450-B evaluation.39 Def.’s Stmt. ¶ 119;
38
Mason purports to dispute the Secretary’s proffered factual statement, but the only
evidence in the record cited by Mason in his response supports, rather than undermines, the
veracity of the statement. See Pls.’ Stmt. ¶ 116 (citing Def.’s Ex. Y (Non Bargaining Unit
Performance Appraisal for Euel Mason)). Accordingly, the Court shall deem the Secretary’s
proffered factual statement to be admitted.
39
Mason purports to dispute the Secretary’s proffered factual statement, claiming that
Mendez “was not [his] first-line supervisor at the conclusion of his FY Management Official
Performance Agreement.” Pls.’ Stmt. ¶ 119 (citing Pls.’ Interrog. Resps. No. 7). While the
evidence cited by Mason does not actually support his response, see Pls.’ Interrog. Resps. No. 7,
it is undisputed that Dangel was Mason’s first-line supervisor at the conclusion of the
performance period on September 30, 2007, Def.’s Stmt. ¶ 67; Pls.’ Stmt. ¶ 67. At the same
time, it is undisputed that Mendez was Mason’s first-line supervisor from October 1, 2006,
through April 13, 2007, which comprised the majority of the performance period relevant to the
appraisal. Def.’s Stmt. ¶ 67; Pls.’ Stmt. ¶ 67; Def.’s Ex. X (Management Official Performance
Agreement for E. Mason) at 1681. For the remainder of the performance period, Mason had
three separate first-line supervisors—co-plaintiff Benton, Freeman, and Dangel. Def.’s Stmt. ¶
67; Pls.’ Stmt. ¶ 67. The Secretary asserts that neither Benton, Freeman, nor Dangel contributed
to the appraisal because they each supervised Mason for less than 60 days, see Def.’s MSJ Mem.
at 8 n.8, the minimum time required to issue a performance appraisal, and this assertion is left
uncontested by Mason. More to the point, Mason’s response does not present any explanation or
evidentiary basis to call into doubt the Secretary’s proffered factual statement that “[a]t the end
of FY 2007, Mendez furnished Mason with a Summary Narrative of Mason’s achievement to be
32
Def.’s Ex. X (Management Official Performance Agreement for E. Mason) at 1685. Mendez
also asked Mason to prepare a self-assessment for the year, which Mason provided. Def.’s Stmt.
¶ 120; Pls.’ Stmt. ¶ 120. Mendez reviewed Mason’s self-assessment and, based on Mason’s
narrative, determined that Mason had successfully “met” his CPEs.40 Def.’s Stmt. ¶ 121; Pls.’
Stmt. ¶ 121. However, Mendez at first refused to sign the evaluation because he was no longer
Mason’s first-line supervisor of record at the conclusion of the performance period. Mendez
Dep. at 107. Instead, Mendez forwarded the evaluation to Mason’s second-line supervisor,
Farah, for his review. Def.’s Stmt. ¶ 122; Pls.’ Stmt. ¶ 122. Like Mendez, Farah determined that
Mason had successfully “met” his CPEs.41 Def.’s Stmt. ¶ 123; Dep. of Mitchell Farah (“Farah
Dep.”) at 42-44. The “met” rating meant that Mason “achieved or made substantial progress
toward achievement of desired results” with respect to his commitments and that he displayed
“solid, dependable performance.” Def.’s Stmt. ¶ 124; Pls.’ Stmt. ¶ 124. Mason claims that he
did not receive his appraisal until early October 2008. Pls.’ Stmt. ¶ 117 (citing Pls.’ Interrog.
included in his evaluation.” Def.’s Stmt. ¶ 119.
40
In responding to the Secretary’s proffered factual statement, Mason concedes that the
statement is admitted, but then proceeds to raise a number of extraneous factual allegations. See
Pls.’ Stmt. ¶ 121 (citing Pls.’ Interrog. Resps. No. 7). However, the evidence relied upon by
Mason in support of his allegations does not support his position. See Pls.’ Interrog. Resps. No.
7. For instance, Mason provides no competent evidence that would allow a reasonable trier of
fact to conclude, as he suggests, that the handling of his appraisal was somehow inconsistent
with the IRS’s Performance Appraisal Policy. See Pls.’ Stmt. ¶ 121.
41
Mason purports to dispute the Secretary’s proffered factual statement, but in so doing
he provides no explanation or evidentiary basis for calling into doubt that Farah reviewed the
evaluation and determined that Mason had successfully “met” his CPEs. See Pls.’ Stmt. ¶ 123.
Accordingly, the Court shall deem those matters to be admitted. Mason’s response instead
alleges that Farah otherwise harbored a generalized retaliatory animus, an argument which the
Court addresses elsewhere in the Memorandum Opinion.
33
Resps. No. 7). However, it is undisputed that Mason’s “met” rating became official on
November 26, 2007, when Farah electronically signed the evaluation and provided it to Mason
on the IRS’s ePerformance system.42 Def.’s Stmt. ¶ 126; Pls.’ Stmt. ¶ 126. For months, Mason
refused to sign the evaluation, insisting that Mendez sign it first. Farah Dep. at 44-51.
8. Mason’s “Met” Rating on His 2008 Performance Appraisal
Mason also received a “Met” rating for fiscal-year 2008. Def.’s Stmt. ¶ 129; Pls.’ Stmt. ¶
129; Def.’s Ex. CC (Management Official Performance Agreement for E. Mason). Mason’s
first-line supervisor, Dangel, compared Mason’s achievements to his pre-set CPEs and
determined that Mason had satisfactorily met his goals.43 Def.’s Stmt. ¶ 130; Dangel Dep. at 83-
85. According to Dangel, Mason had met his CPEs and performed adequately on all
assignments, though there were several assignments that were either late, inaccurate, or
incomplete. Def.’s Ex. DD (Decl. of Paul L. Dangel) at 133.
9. Mason’s Three-Day Suspension
Mason routinely sent e-mails to his supervisors and senior IRS officials raising what he
claims were “workplace concerns.” Def.’s Stmt. ¶ 136; Pls.’ Stmt. ¶ 136. For example, on June
6, 2008, Mason sent a four-page, single-spaced e-mail about his 2007 performance appraisal to
42
The Secretary claims that “Mason’s rating was the first to be signed and approved by
Mitchell Farah among the Technical Advisors in FY 2007.” Def.’s Stmt. ¶ 127. Mason, in turn,
claims that “Doug King, Kathy Nemeth and Darryl Robinson received their ratings long before
Mr. Mason.” Pls.’ Stmt. ¶ 127. Because neither party cites to any record evidence in support of
their respective positions, the Court shall disregard both statements.
43
Mason purports to dispute the Secretary’s proffered factual statement, but his response
merely incorporates a response to an entirely different factual statement that has no direct bearing
on the statement. See Pls.’ Stmt. ¶ 125. Accordingly, the Court shall deem the Secretary’s
proffered factual statement to be admitted.
34
his first-, second-, third-, and acting-third-line supervisors, as well as to the following senior IRS
officials: Douglas H. Shulman, IRS Commissioner; Richard E. Byrd, Commissioner of the Wage
& Investment Division; Pamela G. Watson, Deputy Commissioner of the Wage & Investment
Division; and Linda E. Stiff, Deputy Commissioner of the Small-Business/Self-Employment
Division. Def.’s Stmt. ¶ 137; Pls.’ Stmt. ¶ 137; Def.’s Ex. EE (E-mail from E. Mason to P.
Dangel dated June 6, 2008) at 1334-37. In the e-mail, Mason insisted that the
“PERFORMANCE APPRAISAL PROCESS should be ‘eliminated’” because “it’s totally
‘bias [sic], unfair, and unlawful.’” Def.’s Ex. EE (E-mail from E. Mason to P. Dangel dated June
6, 2008) at 1335 (capitalization, emphasis, and internal quotation marks in original).
Eventually, Mason was directed to stop sending e-mails detailing his various grievances
directly to senior IRS officials. Def.’s Stmt. ¶ 140; Pls.’ Stmt. ¶ 140. However, Mason
nonetheless continued to send the e-mails because he felt the responses he received from his
managers, the EEO apparatus, the Treasury Inspector General for Tax Administration
(“TITGA”), and the Office of Civil Rights and Diversity were “unjust.” Def.’s Stmt. ¶ 140; Pls.’
Stmt. ¶ 140. Alleging that EEO investigators “tamper” with complaints and conspire with IRS
supervisors to “cover up” wrongdoing, Mason claims that the EEO process is thoroughly
“corrupt” and “should be abolished.”44 Def.’s Stmt. ¶ 141; Pls.’ Stmt. ¶ 141. He contends that
because he was dissatisfied with his supervisors’ responses, he had a right to elevate his
complaints and to have them personally reviewed by the Secretary of the Treasury and even the
44
While these allegations may be helpful in explaining why Mason elected to
consistently send e-mails to senior IRS officials, the Court notes that neither Mason nor the other
Plaintiffs have adduced any evidence that would allow a reasonable trier of fact to conclude that
anything was amiss in the administration of the EEO apparatus or the agency grievance process.
35
President of the United States.45 Def.’s Stmt. ¶ 142; Pls.’ Stmt. ¶ 142.
After tolerating Mason’s communications for months and encouraging him to use the
IRS’s EEO apparatus and the agency grievance process to resolve his concerns, it became clear
that Mason would not stop sending such communications. Def.’s Stmt. ¶ 143; Pls.’ Stmt. ¶ 143.
Mason’s supervisors then contacted the Labor Relations Branch to determine how best to handle
the matter. Def.’s Stmt. ¶ 143; Pls.’ Stmt. ¶ 143. At that point, a Labor Relations Specialist
recommended to Mason’s supervisors that they issue him a management directive46 explaining
that his behavior was unacceptable and describing the proper channels to use in raising
workplace grievances. Def.’s Stmt. ¶ 144; Pls.’ Stmt. ¶ 144. The Labor Relations Specialist and
Mason’s supervisors subsequently drafted the management directive and provided it to Mason on
February 29, 2008. Def.’s Stmt. ¶ 146; Pls.’ Stmt. ¶ 146. The directive, entitled “Directive for
Resolving Issues of Personal Concern,” was signed by Mason’s second-line supervisor, Farah,
and provided as follows:
During the past several months, you have spent notable agency time
and resources composing and e-mailing numerous and repetitive
personal requests, complaints, and requests for information to a
number of executives, senior managers, your manager, and me. In the
case of your request for information, you have been advised to submit
you [sic] concerns through the appropriate channels; specifically, the
EEO Complaint process or the Agency Grievance process, and you
have done so. I have been, and continue to be, available to discuss
45
In responding to the Secretary’s proffered factual statement, Mason first concedes that
the statement is admitted, but then claims that the facts have been “distorted.” Pls.’ Stmt. ¶ 142.
To the contrary, Mason plainly testified at his deposition that he believes it is the “personal
responsibility” of the President of the United States and the Secretary of the Treasury to look into
the issues raised in his e-mails. Mason Dep. at 227, 229.
46
A “management directive” is merely an instruction from a supervisor to a subordinate
to “do something or stop doing something.” Def.’s Stmt. ¶ 145; Pls.’ Stmt. ¶ 145.
36
your concerns with you.
However, your use of the Agency e-mail system to demand that
management answer your written interrogatories, to disparage and
hector individual members of the Publishing Management Team, and
your misuse of government time and equipment in the pursuit of such
activities is inappropriate, disrupts the workplace and is unproductive.
You are therefore directed as follows:
1. To immediately cease using work time, government
equipment and government supplies to draft and distribute
communications which disparage or hector members of the
Publishing Leadership Team or other Agency employees;
2. To follow the established chain of command in seeking
resolution of your personal concerns, beginning with your
first-level supervisor;
3. To immediately cease sending “broadcast” communications
to multiple management officials on personal matters and/or
matters that should properly be initially presented to your
first-line manager or pursued through available dispute
resolution mechanisms, such as the EEO process or the
Agency Grievance Procedure.
4. To utilize available dispute resolution mechanisms and pursue
adjustment of workplace concerns which are not resolved to
your satisfaction by management.
Mason Dep. Ex. 19 (Mem. Directive for Resolving Issues of Personal Concern dated Feb. 28,
2008) at 1. The memorandum then proceeds to outline the procedure for invoking the agency
grievance system and EEO apparatus. Id. at 2. The memorandum concludes by warning Mason
that his failure to abide by these instructions “may result in disciplinary action.” Id.
Nonetheless, Mason continued to e-mail senior IRS officials with complaints, requests for
information, and demands to address his workplace grievances.47 Def.’s Stmt. ¶ 149. On
47
While Mason purports to dispute the Secretary’s proffered factual statement, he does
not actually contest that he continued to e-mail senior IRS officials with complaints, requests for
37
October 6, 2008, Mason’s second-line supervisor, Farah, issued a letter proposing Mason’s
suspension without pay for three days for (1) “fail[ing] to follow a directive from management,”
(2) “misus[ing] government equipment and government supplies,” and (3) “misus[ing] work
time.” Mason Dep. Ex. 20 (Notice of Proposed Disciplinary Suspension dated Oct. 6, 2008) at 1-
6. The letter identified (1) fourteen separate instances between May 9, 2008, and October 6,
2008, in which Mason allegedly sent e-mails raising “personal concerns” to higher management,
(2) thirteen separate instances in which he used government equipment to send communications
“disparag[ing] or hector[ing] members of the Publishing Leadership Team or other Agency
employees, and (3) two instances in which he “misused work time” to draft such
communications. Id. On January 6, 2009, after reviewing Mason’s e-mails and Farah’s
proposal, Mason’s third-line supervisor, Becton-Johnson, approved the three-day suspension.
Def.’s Stmt. ¶ 152; Pls.’ Stmt. ¶ 152.
10. Mason’s Resignation
On July 31, 2009, Mason’s first-line supervisor, Dangel, met with Mason to apprise him
of his unsatisfactory performance. Def.’s Stmt. ¶ 153; Pls.’ Stmt. ¶ 153. For months, Dangel had
orally notified Mason that he was not performing his duties in a timely or satisfactory manner.
Def.’s Stmt. ¶ 153; Pls.’ Stmt. ¶ 153. Dangel therefore requested that Mason meet with him to
discuss how they could improve Mason’s performance. Def.’s Stmt. ¶ 154; Pls.’ Stmt. ¶ 154.
During the meeting, Dangel furnished Mason with a memorandum detailing Mason’s
unsatisfactory performance, including Mason’s unacceptable work product (and total lack of
information, and demands to address his many workplace grievances, but instead merely claims
that his e-mail communications should not be characterized as raising “personal concerns.” Pls.’
Stmt. ¶ 149.
38
work product) with respect to several specific projects. Def.’s Stmt. ¶ 155; Pls.’ Stmt. ¶ 155;
Def.’s Ex. FF (Notice of Unsatisfactory Performance of Duty and Failure to Respond Readily to
the Directions of Your Supervisor dated July 31, 2009) at 1-3. The memorandum identifies
several instances of what was described as Mason’s “uncooperative, unresponsive and
unproductive” behavior. Def.’s Ex. FF (Notice of Unsatisfactory Performance of Duty and
Failure to Respond Readily to the Directions of Your Supervisor dated July 31, 2009) at 2. The
memorandum concludes as follows:
In summary, your work in [sic] incomplete, late, on [sic] not
delivered at all. Some of your written documents have problems with
grammar, spelling and organization.
Mr. Mason, I am more then [sic] willing to work with you but the
primary responsibility for performing the duties of your position are
[sic] yours.
Id. at 3. Mason’s work on the enumerated tasks was incomplete, late, or altogether absent, and
his work product was often sloppy and contained grammatical, spelling, and organizational
errors.48 Def.’s Stmt. ¶¶ 156-57.
In the middle of the meeting, shortly after Dangel gave Mason the memorandum, Mason
handed Dangel a pre-prepared letter of resignation. Def.’s Stmt. ¶ 158; Pls.’ Stmt. ¶ 158. In his
48
Mason purports to dispute the Secretary’s proffered factual statement, claiming that he
“completed all his assignments on time and his first-line supervisor Paul L. Dangel is wrong.”
Pls.’ Stmt. ¶ 156. However, because Mason provides no “references to the parts of the record
relied on [for] support” for his position, LCV R 7(h)(1), the Court shall deem the Secretary’s
proffered factual statement to be admitted. While Mason elsewhere cites to one of his responses
to the Secretary’s interrogatories, that response does not provide any reason to call into doubt the
Secretary’s allegation that Mason’s assignments were incomplete, late, or altogether absent. See
Pls.’ Stmt. ¶¶ 156-157 (citing Pls.’ Interrog. Resps. No. 7). Instead, that interrogatory response
merely sets forth Mason’s conclusory allegation that his annual performance review should have
been higher based on his own self-assessment of his performance. Pls.’ Interrog. Resps. No. 7.
39
letter of resignation, Mason wrote:
The reason for my resignation is that I can no longer endure your
[i.e., Dangel’s] inhumane treatment of me. I cannot fathom why,
knowing that my “Sister” is struggling against terminal cancer, she
resides in (Memphis, Tennessee) outside of the Washington, D.C.
Metropolitan Area . . . and you will not approve leave for me to care
for her. Your actions have placed me in a situation where I must
choose between my family and my job as I must either neglect my
moral duty to my “Sister” or face charges of insubordination and
Absent Without Leave (AWOL) from you and those who are
directing your actions. Because of this action and your generally
abusive, oppressive and underhanded way of treating me, I can no
longer bear working for the Internal Revenue Service (IRS) in the
“Main” IRS National Headquarters Building . . . .
I deeply regret that I have been forced to leave my professional career
job with over “22” years of Dedicated Service that was once a source
of pride and pleasure to me, but you and your Superiors in the chain
of command including up to the Commissioner of the Internal
Revenue Service (IRS) have left me no choice.
Mason Dep. Ex. 1 (Ltr. from E. Mason to P. Dangel dated July 31, 2009) at 1 (emphasis and
underlining in original). Despite the contents of Mason’s letter, it is undisputed that Dangel
never threatened Mason with an “AWOL charge” and no one ever placed Mason on “AWOL
status.” Def.’s Stmt. ¶ 160; Pls.’ Stmt. ¶ 160. Furthermore, neither Dangel nor any of Mason’s
other supervisors had ever denied any of Mason’s requests for leave without pay.49 Def.’s Stmt. ¶
161; Mason Dep. at 130-31. Dangel had personally “approved hundreds of hours of leave
without pay so that Mr. Mason could care for his sister.” Pls.’ Stmt. ¶ 165. Indeed, Dangel had
just recently approved Mason’s request for leave without pay for the week of August 10, 2009, so
49
Mason purports to dispute the Secretary’s proffered factual statement, see Pls.’ Stmt. ¶
161, but because his response is unaccompanied by “references to the parts of the record relied
on [for] support,” LCV R 7(h)(1), the Court shall deem the Secretary’s proffered statement to be
admitted. Regardless, at his deposition, Mason testified that Dangel never denied his requests for
leave without pay and could not identify anyone who had. Mason Dep. at 130-31.
40
that Mason could attend to his family in Memphis. Def.’s Stmt. ¶ 162; Pls.’ Stmt. ¶ 162.
Mason complains that Dangel did not also immediately approve Mason’s request for
leave without pay for the week of August 17, 2009. Pls.’ Stmt. ¶ 162. However, it is undisputed
that Mason had been scheduled to attend a training session during that week, which prompted
Dangel to ask Mason to provide him with a compelling reason why he could not attend the
training. Def.’s Stmt. ¶ 163; Pls.’ Stmt. ¶ 163; Dangel Dep. at 153. In an e-mail dated July 29,
2009, Dangel stated:
I am simply trying to discuss your leave request with you to determine
whether I should approve it or not. You have been scheduled for the
training the week of August 17-24, 2009. You should have known
those dates since May 20, 2009. Your request for the week of August
17-24 will be denied unless there is a very compelling reason that you
must have the week off.
Mason Dep. Ex. 1 (E-mail from P. Dangel to E. Mason dated July 29, 2009) at 1. Mason had
personally requested the training program and had known that it was scheduled for the week at
issue since at least May 2009. Def.’s Stmt. ¶ 164; Pls.’ Stmt. ¶ 164. However, Mason refused to
provide the requested explanation and instead tendered his resignation. Def.’s Stmt. ¶ 166; Pls.’
Stmt. ¶ 166.
C. Factual Background Relating to Plaintiff Donovan Benton
Benton began working at the IRS in 1987 as a GS-5-level Printing Analyst. Def.’s Stmt.
¶ 167; Pls.’ Stmt. ¶ 167. During the relevant time period, Benton was a 1601-series, GS-14-level
Technical Advisor in the M&P Organization and his chain-of-command was as follows:
• First-line supervisor: Mendez, from April 2005, until July 2007; and
Freeman, from April 2007, until January 9, 2009;
• Second-line supervisor: Farah; and
41
• Third-line supervisor: Fayne, until September 2008; and Becton-Johnson,
from September 2008, to January 9, 2009.
Def.’s Stmt. ¶¶ 168-71; Pls.’ Stmt. ¶¶ 168-71.
1. Benton’s Complaints as to a Series of “Incidents” With His Supervisors
Benton complains of a series of approximately fourteen “incidents” that allegedly
occurred between him and his supervisors in the approximately one-and-a-half-year period
extending from June 28, 2007, to January 9, 2009.50 See Pls.’ MSJ Opp’n 31-40. Benton
provides only the barest factual content in connection with these incidents, and the Court
identifies them here seriatim.
• June 28, 2007, Incident: Benton alleges that he received a “disturbing,
condescending and harassing email” from his second-line supervisor,
Farah, which “singled out” not him, but co-plaintiff Mason, by stating that
“Mr. Mason could not act on Mr. Benton’s behalf for one week while he
was out of the office.” Pls.’ MSJ Opp’n at 33; Pls.’ Interrog. Resps. No. 3.
• Early October 2007, Incident: Benton alleges that his first-line
supervisor, “Mr. Freeman[,] informed [him] that Mr. Farah was
inappropriately monitoring [his] time and attendance exclusively, despite
there had not been any issues of abusive time and attendance use on [his]
50
The Court shall disregard Benton’s sporadic allegations that he was “stalked” or
“harassed” on a “daily basis” when those allegations are unaccompanied by any meaningful
factual support. See Ass’n of Flight Attendants-CWA, 564 F.3d at 465-66 (conclusory allegations
offered without any factual basis in the record cannot create a genuine dispute sufficient to
survive summary judgment). Absent further factual content, Benton has failed to adduce
sufficient facts that would allow a reasonable trier of fact to conclude that his allegations would
meaningfully contribute to a severe or pervasive hostile work environment.
42
part.” Pls.’ MSJ Opp’n at 34; Pls.’ Interrog Resps. No. 3.
• October 28, 2007, Incident: Benton alleges that his second-line
supervisor, “Mr. Farah[,] humiliated [him] by approaching his workstation
in a disruptive, threatening, harassing, and hostile manner.” Pls.’ MSJ
Opp’n at 34; Pls.’ Interrog. Resps. No. 5.
• October 29, 2007, Incidents: Benton claims three incidents occurred on
this date. First, he alleges that he was “approached at his open and shared
workstation in an aggressive, harassing and threatening manner while
other coworkers were present in the office” by Farah, and that when he
asked Farah to “meet him in the hallway . . . Mr. Farah agreed.” Pls.’ MSJ
Opp’n at 35; Pls.’ Interrog. Resps. No. 3. Second, Benton alleges that he
was “abruptly harassed, threatened, intimidated, and bullied” by Farah “at
his open and public workstation (unannounced and unscheduled)” when
Farah “abused his authority by . . . threatening [] Benton to come to his
(Mr. Farah) office to engage in [a] discussion, without a witness.” Pls.’
MSJ Opp’n at 35; Pls.’ Interrog. Resps. No. 3. Finally, Benton alleges that
he received a “very disturbing and harassing e-mail from [Fayne] . . .
stating ‘If you feel you have been mistreated please feel free to file a
complaint and allow the third party process to settle this issue.” Pls.’ MSJ
Opp’n at 34-35; Pls.’ Interrog. Resps. No. 3.
• December 10, 2007, Incident: Benton alleges that “Mr. Farah humiliated
[him] in an aggressive manner and threatening manner” when Farah
43
“handed [him] a sealed ‘confidential’ envelope containing an unwarranted
management reprimand” in “full view of Mr. Mason and other coworkers
who might be in the shared workspace.” Pls.’ MSJ Opp’n at 36; Pls.’
Interrog. Resps. Nos. 3, 5.
• December 27, 2007, Incident: Benton alleges that his second-line
supervisor, Farah, with the permission of his third-line supervisor, Fayne,
“falsely imputed into the IRS’ annual evaluation ePerformance that [he]
refused to sign his mid-year evaluation.” Pls.’ MSJ Opp’n at 16; Pls.’
Interrog. Resps. No. 3.
• March 7, 2008, Incident: Benton alleges that his second-line supervisor,
Farah, “humiliated [him] by approaching him at his workstation in a
disruptive and hostile manner when he was handed a confidential
envelope.” Pls.’ MSJ Opp’n at 37; Pls.’ Interrog. Resps. No. 5.
• March 31, 2008, Incident: Benton alleges that his third-line supervisor,
Fayne, approached him “in a threatening, condescending, disruptive,
abusive, hostile and harassing verbal tone and manner” when Fayne
“berated [him] for not agreeing to attend an impromptu meeting.” Pls.’
MSJ Opp’n at 38; Pls.’ Interrog. Resps. Nos. 3, 5.
• June 19, 2008, Incident: Benton alleges that his first-line supervisor,
Mendez, and his second-line supervisor, Farah, approached his “open and
public workstation with other witnesses present . . . to attempt [to]
embarrass, degrade, and humiliate [him] with [sic] publically handing him
44
. . . a confidential sealed envelope.” Pls.’ MSJ Opp’n at 39; Pls.’ Interrog.
Resps. No. 3.
• October 6, 2008, Incident: Benton alleges that he was approached by his
second-line supervisor, Farah, “in an aggressive, condescending,
disruptive and harassing manner” when Farah handed him “a sealed
confidential envelope . . . which contained a letter proposing to remove
him from [the] IRS.” Pls.’ MSJ Opp’n at 39; Pls.’ Interrog. Resps. No. 3.
• December 18, 2008, Incident: Benton alleges that he “attended a
meeting” with his second-line supervisor, Farah, and his third-line
supervisor, Fayne, with co-plaintiff Mason attending, in which he was
“spoken to in a very aggressive tone that was very condescending, abusive,
insensitive, derogatory and harassing” when Fayne told him “that she did
not care if [he] was on his hospital bed—that she expected him to finish
her assignment.” Pls.’ MSJ Opp’n at 39; Pls.’ Interrog. Resps. No. 3.
• January 9, 2009, Incident: Benton alleges that he was “approached” by
his second-line supervisor, Farah, “in an aggressive, demeaning, abusive,
harassing and hostile manner in order to be removed from federal service
with the IRS and escorted from the Main IRS Headquarters Building in
front of coworkers.” Pls.’ MSJ Opp’n at 40; Pls.’ Interrog. Resps. No. 3.
2. Benton’s Non-Selection for the ‘044 Position
On or about October 30, 2006, Benton applied for the position of Printing Officer Branch
Chief, Vacancy Announcement No. 40-41-AT7TG044 (“‘044 Position”). Def.’s Stmt. ¶ 172;
45
Pls.’ Stmt. ¶ 172. Four employees were named to the best-qualified list for the ‘044 Position.
Def.’s Stmt. ¶ 173; Pls.’ Stmt. ¶ 173. In addition to Benton, included on the list were (1) Dangel,
(2) Freeman, and (3) Tillman. Def.’s Stmt. ¶ 173; Pls.’ Stmt. ¶ 173. Mendez was the ranking
official; Farah was the recommending official; and Fayne was the selecting official.51 Def.’s
Stmt. ¶¶ 174, 176; Pls.’ Stmt. ¶¶ 174, 176; Farah Dep. at 70-71; Fayne Dep. at 88-89; Benton
Dep. at 56, 259-60.
As the ranking official, Mendez began the process by evaluating the application packages
and written submissions that the five candidates submitted and assigning each candidate a
score.52 Def.’s Stmt. ¶ 174; Pls.’ Stmt. ¶ 174. Benton received a ranking score of 90 points.53
51
Benton purports to dispute that Fayne was the selecting official, claiming that there
was an “effort to cover up” Farah’s role in the decisionmaking process. Pls.’ Stmt. ¶ 176.
However, Benton admitted at his deposition that Fayne was the selecting official, see Dep. pf
Donovan Benton (“Benton Dep.”) at 56, 259-60, and that admission is consistent with the
testimony provided by Farah and Fayne, see Farah Dep. at 70-71; Fayne Dep. at 88-89. In this
case, the evidence is “ so one-sided” that no reasonable trier of fact could infer, as Benton
suggests, that there was some vaguely defined “cover up” in connection with the allocation of
responsibilities in the decisionmaking process, let alone that any such efforts had a nexus to his
participation in the 2003 Litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986). Regardless, crediting Benton’s allegation would only further weaken his claim given the
dearth of competent evidence to suggest that Farah harbored a retaliatory animus against him.
52
In responding to the Secretary’s proffered factual statement, Benton first concedes that
the statement is admitted, but then proceeds to contend that Mendez’s actions were “in direct
violation” of IRS policies “because Benton was his direct report.” Pls.’ Stmt. ¶ 174. But Benton
does not identify any language in any IRS policy that prohibited Mendez from evaluating a
subordinate, and more importantly, Benton fails to cite to evidence in the record that would
permit the Court to evaluate the validity of the claim—most notably, the policies themselves.
The Court declines Benton’s invitation to sift through the record in an attempt to locate evidence
in support of his claim. Because this extraneous factual allegation is unaccompanied by
“references to the parts of the record relied on [for] support,” LCV R 7(h)(1), it shall be
disregarded by the Court.
53
In responding to the Secretary’s proffered factual statement, Benton first concedes that
the statement is admitted, but then proceeds to set forth a series of disjointed, extraneous factual
46
Def.’s Stmt. ¶ 178; Pls.’ Stmt. ¶ 178. Thereafter, the candidates were interviewed by a three-
person panel, which asked each candidate identical questions and rated their responses. Def.’s
Stmt. ¶ 179; Pls.’ Stmt. ¶ 179. Benton received an interview score of 32.5 points. Def.’s Stmt. ¶
180; Pls.’ Stmt. ¶ 180. The final scores of the four candidates were as follows:
NAME RANKING SCORE INTERVIEW SCORE
Dangel (selectee) 95 37.5
Freeman 95 31
Benton 90 32.5
Tillman 90 31
See Def.’s Ex. HH (Final Ranking Form); Def.’s Ex. MM (Interview Materials).
The Scores were then reviewed by Farah, who as the recommending official chose the
highest-ranking candidate—Dangel. Def.’s Ex. LL (Promotion Certificate). Thereafter, the
scores and Farah’s recommendation were reviewed by Fayne, who as the selecting official
selected the highest-ranking candidate—Dangel. Def.’s Ex. LL (Promotion Certificate); Farah
Dep. at 70-71; Fayne Dep. at 88-89; Benton Dep. at 56, 259-60.
On March 29, 2007, Benton met with his third-line supervisor, Fayne, to discuss his non-
selection for the ‘044 Position.54 Def.’s Stmt. ¶ 201; Pls.’ Stmt. ¶ 201. During the meeting,
Fayne offered Benton opportunities to improve his managerial and interviewing skills and
allegations. Pls.’ Stmt. ¶ 178. Because those extraneous factual allegations are unaccompanied
by “references to the parts of the record relied on [for] support,” LCV R 7(h)(1), the Court shall
disregard them.
54
Benton secretly recorded the conversation, but he subsequently destroyed the
recording. Def.’s Stmt. ¶¶ 201, 203; Pls.’ Stmt. ¶¶ 201, 203. Benton’s admitted destruction of
the recording serves as the basis for the Secretary’s pending Motion for Sanctions.
47
offered to place Benton in a front-line management position. Def.’s Stmt. ¶ 202; Pls.’ Stmt. ¶
202; Fayne Dep. at 191, 221-23. In Benton’s view, Fayne’s offer amounted to an attempt to
“bribe [him] with a promotion,” claiming that Fayne conditioned these opportunities upon his
withdrawal of a complaint unrelated to his participation in the 2003 Litigation. Pls.’ Stmt. ¶ 202
(citing Benton Dep. at 179). However, in the relied-upon deposition testimony, Benton merely
reiterated his view that he personally “interpreted” Fayne’s offer as a bribe.55 Benton Dep. at
180. Notably, he did not testify that Fayne expressly conditioned these opportunities on his
withdrawal of the referenced complaint:
Q Did she say you couldn’t have the training unless you
pulled your complaint?
A She questioned me and haggard [sic] — and she drilled me
about that complaint, sir. It stayed on that. And that —
again, everything I’ve said is truthful.
Benton Dep. at 159. At best, the cited testimony is sufficient to create a genuine dispute that
Benton and Fayne discussed the complaint, but nothing more.
Benton further contends that he received an e-mail from Fayne the following day, March
30, 2007, in which she wrote:
I have been thinking a lot about our meeting yesterday . . . . I am
genuinely trying to give everyone who wants the opportunity to move
up the chance to do that. That does not mean that everyone gets to
move right when they think they should. As I said to you yesterday,
I hope the trust level can go up enough so that people will sit down
and talk as we did, instead of running to file grievances and
complaints without first trying to talk about it. I value your points
and your presence in M&P. Keep in mind what we talked about, and
55
Similarly, although not referenced by Benton or Mason in their responsive statement of
material facts, Benton’s response to the Secretary’s interrogatories states, without any meaningful
factual content, that he “felt he was being bribed and harassed.” Pls.’ Interrog. Resps. No. 3.
48
perhaps we can talk again when I return from vacation. There’s
simply too much work for M&P to do to be bogged down in so much
distrust.
Pls.’ Interrog. Resps. No. 3. Benton claims that he found the e-mail “very unusual and
disturbing.” Id.
3. Benton’s Non-Selection for the ‘322 Position
Like Mason, Benton applied for the ‘322 Position on or about April 16, 2007. See supra
Part I.B.2. However, Benton was ranked even lower than Mason, placing him fourth out of the
five candidates. Def.’s Stmt. ¶¶ 187-88; Pls.’ Stmt. ¶¶ 187-88. The application and review
materials demonstrated a “clear separation” between the ultimate selectee, Freeman, and the
other four candidates, including Benton.56 Def.’s Stmt. ¶ 80. The ultimate selectee, Freeman,
had the highest score of all the candidates, and the ranking official and interview panelists agreed
that Freeman’s qualifications exceeded Benton’s qualifications. Def.’s Stmt. ¶ 189; Pls.’ Stmt. ¶
189.
4. Benton’s Request for a Transfer to the New Carrollton Office
On or about August 30, 2007, Benton, like Mason, requested a transfer from IRS
Headquarters in Washington, D.C., to the IRS’s New Carrollton office in Lanham, Maryland.
Def.’s Stmt. ¶ 190; Pls.’ Stmt. ¶ 190. Like Mason, he was informed by his supervisors in late
56
Benton purports to dispute the Secretary’s proffered factual statement, but his
argument is non-responsive. See Pls.’ Stmt. ¶ 80. While Benton alleges that “Mr. Freeman was
selected because Ms. Fayne and Mr. Farah harbored a generalized retaliatory animus against Mr.
Mason and Mr. Benton,” Pls.’ Stmt. ¶ 80, he provides no explanation or evidentiary basis that
would call into doubt the Secretary’s proffered statement that, viewed objectively, “[t]he
application packages and the interview panelists’ notes demonstrate a clear separation between
Freeman and the rest of the candidates,” Def.’s Stmt. ¶ 80. Accordingly, the Court will deem the
Secretary’s proffered statement to be admitted. The Court addresses Bention’s allegations of bias
elsewhere in this Memorandum Opinion.
49
August and early September 2007 that there was a general policy that requests by employees in
the M&P Organization for a transfer to the New Carrollton office would not be considered until
January 2008, because the M&P Organization had in place a moratorium on all relocations to the
New Carrollton office affecting all employees in the organization.57 Def.’s Stmt. ¶ 190; Pls.’
Stmt. ¶ 190; Benton Dep. Ex. 9 (E-mail from R. Freeman to D. Benton dated Sept. 5, 2007) at 1.
5. Benton’s Request to be Reassigned to Another Branch
On or about September 5, 2007,58 Benton requested an assignment to another branch
within the M&P Organization. Def.’s Ex. PP (E-mail from D. Benton to R. Freeman dated Sept.
5, 2007). Later that same day, Benton’s first-line supervisor, Freeman, responded by indicating
that Benton’s request would impact all four branches of the organization, Def.’s Ex. PP (E-mail
from R. Freeman to D. Benton dated Sept. 5, 2007), because it would require hiring a
replacement grade-14-level Technical Advisor in the Functional Publishing Branch to fill the
vacancy that would be created by Benton’s requested transfer,59 Def.’s Stmt. ¶ 194.
57
In responding to the Secretary’s proffered factual statement, Benton first concedes that
the statement is admitted, but then proceeds to raise a number of extraneous factual allegations,
including that “no plausible reason, explanation, etc [sic] was given to Mr. Benton specifically”
and that “Mr. Benton provide [sic] valid business reasons and family medical reasons as to why
this [c]hange . . . was critical.” Pls.’ Stmt. ¶ 190. Because those extraneous factual allegations
are unaccompanied by “references to the parts of the record relied on [for] support,” LCV R
7(h)(1), the Court shall disregard them.
58
The Secretary and Benton both identify the date of Benton’s request as September 12,
2007, see Def.’s Stmt. ¶ 192; Pls.’ Stmt. ¶ 192, but e-mail correspondence suggests that the
request was first made on September 5, 2007, see Def.’s Ex. PP (E-mail from D. Benton to R.
Freeman dated Sept. 5, 2007). However, the discrepancy is immaterial.
59
Benton purports to dispute the Secretary’s proffered factual statement, alleging, among
other things, that “[t]here were several other similar [sic] situated employee [sic] in the Media
and Publications Division would could have easily been reassigned.” Pls.’ Stmt. ¶ 194.
However, because Benton’s response is unaccompanied by “references to the parts of the record
50
On September 12, 2007, Benton “elevat[ed]” his request to his second-line supervisor,
Farah. Def.’s Ex. PP (E-mail from D. Benton to M. Farah dated Sept. 12, 2007). Later that same
day, Farah indicated that he had discussed Benton’s request with Benton’s third-line supervisor,
Fayne, and informed Benton that the only GS-14-level reassignment available at that time was in
Fayne’s office, working in Balance Measures.60 Def.’s Ex. PP (E-mail from M. Farah to D.
Benton dated Sept. 12, 2007). Farah and Fayne inquired whether Benton would be interested in
that position and offered to discuss the opportunity further. Id.; Def.’s Ex. PP (E-mail from D.
Fayne to D. Benton dated Sept. 12, 2007). Shortly thereafter, Benton declined the offer, writing
to Fayne, “Thanks, but no thanks . . . due to the legal situation!” Def.’s Ex. PP (E-mail from D.
Benton to D. Fayne dated Sept. 14, 2007) (emphasis in original).61
6. Benton’s Requests for FMLA Leave
On September 25, 2007, Benton approached his first-line supervisor, Freeman, and
submitted an application for Family and Medical Leave Act (“FMLA”) leave for the period
extending from October 10, 2007, to approximately October 10, 2008. Def.’s Stmt. ¶ 197; Pls.’
relied on [for] support,” LCV R 7(h)(1), the Court shall deem the Secretary’s proffered factual
statement to be admitted.
60
Benton tenders a litany of extraneous factual allegations in the course of responding to
the Secretary’s proffered factual statements on this issue. Pls.’ Stmt. ¶¶ 195-96. Because those
extraneous factual allegations are unaccompanied by “references to the parts of the record relied
on [for] support,” LCV R 7(h)(1), the Court shall disregard them. Furthermore, despite Benton’s
assertion to the contrary, he was provided an explanation for the decision. See Def.’s Ex. PP (E-
mail from R. Freeman to D. Benton dated Sept. 5, 2007); Def.’s Ex. PP (E-mail from M. Farah to
D. Benton dated Sept. 12, 2007).
61
While the Secretary and Benton dispute whether Freeman had the authority to deny
Benton’s request for a reassignment, neither cites to any competent evidence clearly delineating
the scope of Freeman’s authority in this regard. See Def.’s Stmt. ¶ 193; Pls.’ Stmt. ¶ 193; Def.’s
Resp. ¶ 193. However, the dispute is immaterial.
51
Stmt. ¶ 197; Benton Dep. Ex 1 (Appl. for Leave under the Family and Medical Leave Act) at 1.
Freeman then contacted his supervisors, Farah and Fayne, to ascertain what sort of information
Benton would need to provide to support his application Def.’s Stmt. ¶ 198; Pls.’ Stmt. ¶ 198.
Freeman had an obligation to obtain the necessary approvals from his supervisors. Def.’s Stmt. ¶
199; Pls.’ Stmt. ¶ 199. On October 12, 2007, after receiving the necessary approvals, Freeman
granted Benton’s request, making it retroactive to Benton’s requested start-date of October 10,
2007.62 Def.’s Stmt. ¶ 199; Pls.’ Stmt. ¶ 199; Benton Dep. Ex 1 (Appl. for Leave under the
Family and Medical Leave Act) at 1.
7. Benton’s 2007 Performance Appraisal
Benton claims that he learned on November 26, 2007, that his second-line supervisor,
Farah, had directed his first-line supervisor, Mendez, to lower his fiscal-year 2007 performance
appraisal to a “Met.” Pls.’ MSJ Opp’n at 36 (citing Pls.’ Interrog. Resps. No. 7). However, it is
undisputed that Benton was issued the highest possible rating, “Outstanding,” on December 5,
2007, and in fact received a performance award. Def.’s Stmt. ¶ 204; Pls.’ Stmt. ¶ 204. He also
claims that “he was not furnished a copy of his [appraisal] until nearly a year later in October
2008.” Pls.’ Interrog. Resps. No. 7.
62
In responding to the Secretary’s proffered factual statement, Benton first concedes that
the statement is admitted, but then proceeds to allege that there were “extensive delays” in
Freeman’s processing of his application. Pls.’ Stmt. ¶ 199. However, because Benton’s
extraneous factual allegation is unaccompanied by “references to the parts of the record relied on
[for] support,” LCV R 7(h)(1), it shall be disregarded by the Court. Even assuming, arguendo,
that some delay occurred, Benton has failed to provide any explanation or adduce any evidence
that would allow a reasonable trier of fact to conclude that the delay was unreasonable. Indeed,
Benton’s relevant certifications were not executed until late September 2007, shortly before his
request was formally granted. See Benton Dep. Ex. 1 (Certification of Health Care Provider) at
3.
52
8. Benton’s Three-Day Suspension
Like Mason, Benton routinely sent e-mails to his supervisors and senior IRS officials
raising workplace concerns and grievances. Def.’s Stmt. ¶ 207; Pls.’ Stmt. ¶ 207. For example,
on July 9, 2007, Benton sent a three-page, single-spaced e-mail entitled, “You Refuse to Meet,
but You Plan to Discredit Me Personally & Professionally - Donovan L. Benton,” to his third-
line supervisor, Fayne, as well as Carl Froehlich, Director of IRS Agency-Wide Shared Services;
Susan W. Carroll, Director of CARE; Richard J. Morgante, Commissioner of the Wage &
Investment Division; and Kevin M. Brown, Deputy Commissioner of IRS Services &
Enforcement. Def.’s Stmt. ¶ 208; Pls.’ Stmt. ¶ 208. In the e-mail, Benton chided his third-line
supervisor, Fayne, for her purportedly “aggressive tone”63 and alleged that the selection processes
for the ‘044 Position and the ‘322 Position were tainted by “corruption.” Def.’s Stmt. ¶ 209;
Pls.’ Stmt. ¶ 209. In other e-mails, Benton inquired of senior IRS officials, “WHO IS LIBEL and
ACCOUNTALBLE [sic], on your watch?” Benton Dep. Ex. 5 (E-mail from D. Benton to R. Byrd
dated Aug. 27, 2008) at 120 (emphasis and capitalization in original); charged his supervisors
with “deliberate and willful ‘DEFAMATION OF [HIS] PROFESSIONAL & PERSONAL
CHARACTER,” Def.’s Ex. 5 (e-mail from D. Benton to M. Farah dated Aug. 7, 2008) at 133
(capitalization in original); and characterized his business unit as an “Oppressive and Restrictive
Tyranny!” Benton Dep. Ex. 18 (E-mail from D. Benton to R. Freeman dated Nov. 5, 2008) at 1
63
In the e-mail, Benton attributes the following comments to Fayne: (1) “You were not
the most qualified then and I told you that your interview was not good”; (2) “You needed to
practice and I would help you”; (3) “You were a manger for less than year. You need more
experience”; (4) “And now you want to meet with me again one-one-one. No. That cannot
happen under the circumstances I value my job as much as you value yours, and I will not put it
in jeopardy”; (5) “Given the legal situation we are in it is unwise for us to meet one-on-one.”
Benton Dep. Ex. 6 (E-mail from D. Benton to D. Fayne dated July 9, 2007) at 1-2.
53
(emphasis in original).
Benton often included deadlines e-mails, demanding a response “by a date certain.”
Def.’s Stmt. ¶ 212; Pls.’ Stmt. ¶ 212. Benton claims that if his supervisors failed to meet his
deadlines, he had a right to “elevate” his concerns to the “next appropriate high-level
management official(s)” in his “chain of command.” Def.’s Stmt. ¶ 213; Pls.’ Stmt. ¶ 213. He
maintains that the deadlines were a “professional courtesy” and justifiable given the timing of the
responses to his communications. Def.’s Stmt. ¶ 212; Pls.’ Stmt. ¶¶ 212, 214. Even after senior
IRS officials responded by directing Benton to pursue his complaints through the EEO apparatus,
TITGA, or with his supervisors who were familiar with his situation, Benton nonetheless
continued to send e-mails to senior IRS officials.64 Def.’s Stmt. ¶ 215; Dep. of Susan Carroll at
24; Dep. of Richard Byrd at 28-30, 72.
As conceded by Benton, “[a]fter tolerating Benton’s abusive communications for months,
and after encouraging him to pursue his grievances through the EEO or Agency Grievance
offices, his supervisors contacted [the] Labor Relations [Branch] to determine how to proceed.”
Def.’s Stmt. ¶ 216; Pls.’ Stmt. ¶ 216. At that point, a Labor Relations Specialist recommended to
Benton’s supervisors that they issue him a management directive explaining that his behavior
was unacceptable and describing the proper channels to use in raising workplace grievances.
Def.’s Stmt. ¶ 217; Pls.’ Stmt. ¶ 217. The Labor Relations Specialist and Benton’s supervisors
subsequently drafted the management directive and provided it to Benton on December 10, 2007.
64
While Benton purports to dispute the Secretary’s proffered factual statement, his only
objection is that his communications “were work-related.” Pls.’ Stmt. ¶ 215. He does not
contest that he continued to send e-mails to senior IRS officials even after he was directed to
pursue his concerns through other channels.
54
Def.’s Stmt. ¶ 218; Pls.’ Stmt. ¶ 218. The directive, entitled “Directive for Resolving Issues of
Personal Concern,” was signed by Benton’s second-line supervisor, Farah, and provided as
follows:
During the past several months, you have spent significant agency
time and resources composing and e-mailing numerous and repetitive
personal requests, complaints, and requests for information to a
number of executives, senior managers, your manager, and me. In the
case of your personal request for a change in place of reporting, you
have been advised that your request would be considered if you
provided certain information concerning the medical necessity and a
schedule of appointments, which you have failed to provide. In the
case of your request for information, you have been advised to submit
you [sic] concerns through the appropriate channels; specifically, the
EEO Complaint process or the Agency Grievance process, which so
far you have chosen not to do. I have attempted to discuss your
concerns with you face to face and you have effectively refused to
meet with me, contending that I have threatened you.
Your use of the Agency e-mail system to demand that management
answer your written interrogatories, to disparage and hector
individual members of the Publishing Management Team, and your
misuse of government time and equipment in the pursuit of such
activities is inappropriate, disrupts the workplace and is unproductive.
You are therefore directed as follows:
1. To immediately cease using work time, government
equipment and government supplies to draft and distribute
communications which disparage or hector members of the
Publishing Leadership Team or other Agency employees;
2. To follow the established chain of command in seeking
resolution of your personal concerns, beginning with your
first-level supervisor;
3. To immediately cease sending “broadcast” communications
to multiple management officials on personal matters and/or
matters that should properly be initially presented to your
first-line manager or pursued through available dispute
resolution mechanisms, such as the EEO process or the
Agency Grievance Procedure.
55
4. To utilize available dispute resolution mechanisms and pursue
adjustment of workplace concerns which are not resolved to
your satisfaction by management.
Benton Dep. Ex. 2 (Mem. Directive for Resolving Issues of Personal Concern dated Dec. 10,
2007) at 2185-86. The memorandum then proceeds to outline the procedure for invoking the
agency grievance system and EEO apparatus. Id. at 2186. The memorandum concludes by
warning Benton that his failure to abide by these instructions “may result in disciplinary action.”
Id.
Nonetheless, Benton continued to e-mail senior IRS officials with complaints, requests
for information, and demands to address his workplace grievances.65 Def.’s Stmt. ¶ 221. On
March 6, 2008, after repeatedly reminding Benton to air his grievances through the proper
channels and not to disrupt the workplace, Farah issued Benton a letter proposing Benton’s
suspension without pay for three days. Def.’s Stmt. ¶ 222; Pls.’ Stmt. ¶ 222. The letter identified
thirteen instances in which Benton allegedly sent an e-mail to senior IRS officials in violation of
the directive. Def.’s Ex. QQ (Ltr. from M. Farah to D. Benton dated Mar. 6, 2008). On March
31, 2008, after reviewing Benton’s e-mails and Farah’s proposal, Benton’s third-line supervisor,
Fayne, approved the three-day suspension. Def.’s Stmt. ¶ 224; Pls.’ Stmt. ¶ 224.
9. Benton’s Fourteen-Day Suspension for Tax Non-Compliance
During a routine computerized comparison of payroll and tax account records, the ETC
Branch discovered that Benton had failed to timely pay his federal taxes for tax-year 2006.
65
While Benton purports to dispute the Secretary’s proffered factual statement, he does
not actually contest that he continued to e-mail senior IRS officials with complaints, requests for
information, and demands to address his many workplace grievances, but instead merely claims
that his e-mail communications should not be characterized as raising “personal concerns.” Pls.’
Stmt. ¶ 221.
56
Def.’s Stmt. ¶ 225; Pls.’ Stmt. ¶ 225. This violation followed two other tax compliance
violations—one in tax-year 2001 and a second in tax-year 2004—for which Benton had
previously been counseled. Def.’s Stmt. ¶ 226; Pls.’ Stmt. ¶ 226. Benton did not fully satisfy his
tax liability for tax-year 2006 until August 27, 2007.66 Def.’s Stmt. ¶ 228; Pls.’ Stmt. ¶ 228.
On January 22, 2008, the ETC Branch issued Benton a letter, inviting him to submit
information to clarify his non-compliance. Def.’s Stmt. ¶ 229; Pls.’ Stmt. ¶ 229. On February
12, 2008, Benton responded in a letter, explaining that he had been distracted by personal issues
and “did not realize” that his checking account had insufficient funds. Def.’s Stmt. ¶ 230; Pls.’
Stmt. ¶ 230. On March 5, 2008, the ETC Branch informed Benton that its investigation revealed
that the violation was potentially more than a technical error and that the matter would therefore
be referred to his supervisors to consider whether disciplinary action was appropriate. Def.’s
Stmt. ¶ 231; Pls.’ Stmt. ¶ 231. On or about June 19, 2008, Benton’s supervisors, with Fayne as
the deciding official, proposed a fourteen-day suspension, citing Benton’s history of tax-non-
compliance and the magnitude of the tax liability underpayment. Def.’s Ex. RR (Alerts Case
File) at 1-5; Benton Dep. Ex. 17 (Ltr. from D. Fayne to D. Benton dated Aug. 4, 2008). Benton
did not invoke his right to submit an oral or written opposition to the proposal. Def.’s Stmt. ¶
237; Pls.’ Stmt. ¶ 237. On August 4, 2008, Fayne approved the fourteen-day suspension. Pls.’
Stmt. ¶ 236; Pls.’ Stmt. ¶ 236; Benton Dep. Ex. 17 (Ltr. from D. Fayne to D. Benton dated Aug.
4, 2008).
66
In responding to the Secretary’s proffered factual statement, Benton first concedes that
the statement is admitted, but then proceeds to allege that he “attempted on several occasions to
resolve the mater, but the IRS continued to apply penalties and interests [sic] upon him.” Pls.’
Stmt. ¶ 228. Because this extraneous factual allegation is unaccompanied by “references to the
parts of the record relied on [for] support,” LCV R 7(h)(1), it shall be disregarded by the Court.
57
10. Benton’s Termination
Following his two suspensions, Benton continued to send e-mails to senior IRS officials
raising his many workplace concerns and grievances.67 Def.’s Stmt. ¶ 238. After tolerating the
e-mails for several months and reminding Benton to abide by the management directive,
Benton’s managers again contacted the Labor Relations Branch to seek guidance.68 Id. ¶ 239.
The Labor Relations Specialist informed Benton’s supervisors that his continued conduct
constituted a third offense—the first being the three-day suspension for sending similar e-mails
and the second being the fourteen-day suspension for tax-noncompliance.69 Id. ¶ 240. The Labor
Relations Specialist and Benton’s second-line supervisor, Farah, subsequently drafted a letter of
proposed removal, which was issued to Benton on October 6, 2008. Def.’s Stmt. ¶¶ 241-42; Pls.’
Stmt. ¶ 242. The letter identifies a total of twenty-three instances in which Benton allegedly sent
e-mail correspondence to senior IRS management in violation of his supervisors’ prior directives.
Benton Dep. Ex. 4 (Ltr. from M. Farah to D. Benton dated Oct. 6, 2008). After reviewing the
evidence, Benton’s third-line supervisor, Becton-Johnson, approved the proposal, and Benton’s
67
While Benton purports to dispute the Secretary’s proffered factual statement, he does
not actually contest that he continued to e-mail senior IRS officials with e-mails raising his
workplace concerns and grievances, but instead merely claims that his e-mail communications
should not be characterized as raising “personal concerns.” Pls.’ Stmt. ¶ 238.
68
While Benton purports to dispute the Secretary’s proffered factual statement, he does
not actually contest that his supervisors “tolerat[ed] the emails for several months and remind[ed]
him to abide by the management directive,” Def.’s Stmt. ¶ 239, but instead merely claims that his
e-mail communications should not be characterized as raising “personal concerns,” Pls.’ Stmt. ¶
239.
69
While Benton purports to dispute the Secretary’s proffered factual statement, he does
not actually contest that the Labor Relations Specialist informed his supervisors that his
continued conduct constituted his third offense, but instead merely claims that his e-mail
communications should not be characterized as raising “personal concerns.” Pls.’ Stmt. ¶ 240.
58
removal became effective on January 9, 2009. Def.’s Stmt. ¶ 243; Pls.’ Stmt. ¶ 243.
II. LEGAL STANDARDS
A. Motions for Summary Judgment Generally
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and [that it] . . . is entitled to judgment as a matter of law.” FED .
R. CIV . P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact, and therefore “[o]nly disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Liberty Lobby, 477 U.S. at 255. Nor may summary
judgment be avoided based on just any disagreement as to the relevant facts; rather, the dispute
must be “genuine,” meaning that there must be sufficient admissible evidence for a reasonable
trier of fact to find for the non-movant. Id.In order to establish that a fact is or is not genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. FED . R. CIV . P. 56(c)(1). Conclusory assertions offered without any factual
basis in the record cannot create a genuine dispute sufficient to survive summary judgment.
Ass’n of Flight Attendants-CWA, 564 F.3d at 465-66. Moreover, where “a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of fact,” the
district court may “consider the fact undisputed.” FED . R. CIV . P. 56(e).
When presented with a motion for summary judgment, the district court may not make
59
credibility determinations or weigh the evidence, but instead must analyze the evidence in the
light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty
Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed material facts
are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate.
Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to
determine “whether the evidence presents a sufficient disagreement to require submission to [the
trier of fact] or whether it is so one-sided that one party must prevail as a matter of law.” Liberty
Lobby, 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that
there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not
sufficiently probative, summary judgment may be granted,” Liberty Lobby, 477 U.S. at 249-50(internal citations omitted). Stated differently, the mere existence of a “scintilla of evidence” in
support of the non-movant’s position will not suffice; there must be enough evidence on which
the trier of fact could reasonably find for the non-movant. Talavera v. Shah, 638 F.3d 303, 308
(D.C. Cir. 2011) (quoting Anderson, 477 U.S. at 252).
B. Motions for Summary Judgment in Actions for Employment Discrimination or
Retaliation
In recognition of the difficulty in uncovering clear evidence of discriminatory or
retaliatory intent, the district court should approach summary judgment in an action for
employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116
F.3d 876, 879-80 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284 (D.C. Cir. 1998)
(en banc). Even so, the plaintiff is not relieved of his burden to support his allegations with
competent evidence. Brown v. Mills, 674 F. Supp. 2d 182, 188 (D.D.C. 2009). As in any
60
context, where the plaintiff will bear the burden of proof at trial on a dispositive issue, at the
summary judgment stage, he bears the burden of production to designate specific facts showing
that there is a genuine dispute requiring trial. Ricci v. DeStefano, __ U.S. __, 129 S. Ct. 2658,
2677 (2009). Absent this burden, the plaintiff could effectively defeat the “central purpose” of
the summary judgment device—namely, “to weed out those cases insufficiently meritorious to
warrant . . . trial”—simply by way of offering conclusory allegations, speculation, and argument.
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
C. Local Procedures for Motions for Summary Judgment
The United States District Court for the District of Columbia has supplemented Rule 56
of the Federal Rules of Civil Procedure with Local Civil Rule 7(h)(1), which requires that each
party submitting a motion for summary judgment attach a statement of material facts for which
that party contends there is no genuine dispute. In turn, the party opposing the motion must
submit a responsive statement enumerating all material facts that the party contends are
genuinely disputed. See LCV R 7(h)(1). Both the movant’s initial statement and the non-
movant’s responsive statement must be based on “references to the parts of the record relied on
to support the statement.” Id.; see also FED . R. CIV . P. 56(c)(1) & (3) (requiring parties to “cit[e]
to particular parts of materials in the record” and providing that “[t]he court need consider only
the cited materials.”). This well-reasoned rule “places the burden on the parties and their
counsel, who are most familiar with the litigation and the record, to crystallize for the district
court the material facts and relevant portions of the record.” Jackson v. Finnegan, Henderson,
Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996). The parties in these actions
have been cautioned on several occasions that this Court strictly adheres to the dictates of Local
61
Civil Rule 7(h)(1) when resolving motions for summary judgment. See 6/11/09 Scheduling &
Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil Action No. 09-462) at 3;
Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 21-22.
III. DISCUSSION
A. Discussion Relating to Plaintiff Mable Gaines
Gaines is pursuing four claims under Title VII, each of which is based on the contention
that she was retaliated against, in one way or another, for her participation in the 2003 litigation.
Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 25-26; Compl. (Civil Action No. 10-683) ¶¶
12-13; Pls.’ MSJ Opp’n at 45. First, Gaines claims that she was subjected to a hostile work
environment. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 25; Pls.’ MSJ Opp’n at 45-51,
56-59. Second, Gaines claims that her requests for a “flexiplace” assignment and related
accommodations were improperly denied. See Pls.’ MSJ Opp’n at 52, 66-67. Third, Gaines
claims that she was improperly suspended without pay for ten days. See Fourth Am. Compl.
(Civil Action No. 09-462) ¶ 25; Pls.’ MSJ Opp’n at 52-54. Fourth, Gaines claims that she was
improperly subjected to a non-disciplinary termination. See Compl. (Civil Action No. 10-683) ¶¶
12-13; Pls.’ MSJ Opp’n at 54-55, 67. The Court addresses each claim in turn.
1. The Secretary is Entitled to Summary Judgment on Gaines’s Hostile Work
Environment Claim
Gaines claims that she was subjected to a hostile work environment in retaliation for her
participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 25;
Pls.’ MSJ Opp’n at 45-51, 56-59. “In this [C]ircuit, a hostile work environment can amount to
retaliation under Title VII.” Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir.) (citing
Singletary v. District of Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003)), cert. denied, 549 U.S.
62993 (2006). A workplace becomes “hostile” for purposes of Title VII only if the allegedly
offensive conduct “permeate[s] [the workplace] with ‘discriminatory [or retaliatory] intimidation,
ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S.
17, 21-22 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 & 67 (1986)). The
inquiry has an objective component and a subjective component: the environment must be one
that a reasonable person in the plaintiff’s position would find hostile or abusive, and the plaintiff
must actually perceive the environment to be hostile or abusive. Id. In determining whether a
hostile work environment exists, the district court must take into account “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 v.
Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (citing Faragher v. City of Boca Raton, 524
U.S. 775, 787-88 (1998)).
a. Gaines’s Opposition Is Fundamentally Infirm
Gaines’s opposition in support of her hostile work environment claim leaves much to be
desired. Whereas the Secretary’s opening memorandum provides an exhaustive account of the
factual and legal bases that he claims support dismissal of Gaines’s hostile work environment
claim, addressing in turn each of the various component-acts that Gaines has identified as
comprising part of the alleged hostile work environment, see Def.’s MSJ Mem. at 3-11, 40-49,
Gaines offers no meaningful factual or legal analysis in support of her claim—none. She begins
by reciting the skeletal allegations concerning her claim seriatim, see Pls.’ MSJ Opp’n at 46-51,
proceeds to restate the legal standard governing hostile work environment claims generally, see
63
id. at 56-59, and then concludes by asserting that simply because she has “testified that [she was]
subjected to severe hostility on an almost daily basis,” then “there is an issue of fact regarding
whether [she] suffered from a hostile work environment,” id. at 57. In so doing, Gaines ignores
virtually every factual and legal argument raised by the Secretary. With few exceptions, the only
factual support for her allegations is her narrative response to an interrogatory posed by the
Secretary in discovery asking her to identify each act relevant to the alleged hostile work
environment. See Pls.’ Interrog. Resps. No. 11. Inexplicably, the argument section of her
opposition does not even specifically mention her, but instead focuses on Plaintiffs as a whole
despite the stark difference in their claims. In the final analysis, Gaines’s opposition reduces to
little more than legal boilerplate, and amounts to an impermissible attempt to shift the burden to
the Secretary and this Court to sift through the record to ascertain the viability of her claim.
b. Gaines Improperly Attempts to Incorporate Discrete Employment
Acts Into a Single Hostile Work Environment Claim
In setting forth the factual background that she considers relevant to her hostile work
environment claim, Gaines identifies the following component-acts:70 (1) the physical altercation
she had with a co-worker on December 21, 2004; (2) the failure of her supervisors to solicit leave
donations on her behalf in early 2005; (3) her receipt of a letter on August 25, 2005, directing her
to return to work; (4) her supervisors’ “insensitive” and “unprofessional” telephone calls while
70
Despite substantial overlap, the parties’ descriptions and groupings of the component-
acts do not perfectly align, and for purposes of clarity and convenience the Court may describe
and group the component-acts in a manner slightly different from that of the parties. In addition,
the Court shall disregard Gaines’s sporadic references to “ongoing retaliation, disparate treatment
and harassment practices” that are stated in a conclusory fashion and unaccompanied by any
meaningful factual detail or record support. See Ass’n of Flight Attendants-CWA, 564 F.3d at
465-66 (conclusory assertions offered without any factual basis in the record cannot create a
genuine dispute sufficient to survive summary judgment).
64
she was on leave until her return to work in June 2007; (5) her supervisors’ failure to provide
“complete reporting instructions” upon her return to work on June 4, 2007; (6) her supervisors’
instruction that she participate in an office-wide “clean building initiative”; (7) her temporary
assignment to a workshop before she commenced her permanent responsibilities; (8) her
supervisors’ failure to provide her with adequate coaching; (9) her “isolation” from other
employees; (10) the denial of her requests for a “flexiplace” assignment and related
accommodations in March 2008; (11) her supervisors’ failure to solicit leave donations on her
behalf in May 2008; (12) the failure to allow her to have a union representative present at a
meeting concerning potential disciplinary action on July 8, 2008; (13) her ten-day suspension for
tax non-compliance on April 13, 2009; and (14) her non-disciplinary termination on October 23,
2009.71 See Pls.’ MSJ Opp’n at 46-51.
Unfortunately, Gaines has compiled a list of discrete employment actions that she
attempts to bring under the umbrella of a hostile work environment claim. Regardless of the
possible strategic advantages that might flow from such an approach, it is well-established that
“this jurisdiction frowns on plaintiffs who attempt to bootstrap their alleged discrete acts of
retaliation into a broader hostile work environment claim.” Baloch v. Norton, 517 F. Supp. 2d
71Somewhat strangely, Gaines does not identify her non-disciplinary termination as part
of her hostile work environment. See Pls.’ MSJ Opp’n at 46-51. Perhaps Gaines recognized that
her termination constituted the sort of discrete act of retaliation that is inappropriate to
incorporate into a broader hostile work environment claim. See infra Part III.A.1.b. Or perhaps
she recognized that the pleading in which she asserts her hostile work environment claim has not
been amended since she was terminated. See Fourth Am. Compl. (Civil Action No. 09-462).
Nonetheless, in an abundance of caution, the Court will assume that Gaines intended to include
her termination as one of the component-acts allegedly comprising the hostile work environment.
Even proceeding with this assumption, the Secretary is entitled to summary judgment on the
claim.
65
345, 364 (D.D.C. 2007), aff’d sub nom. Baloch v. Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008);
accord Nurriddin v. Goldin, 382 F. Supp. 2d 79, 108 (D.D.C. 2005), aff’d, 222 F. App’x 5 (D.C.
Cir. 2007), cert. denied, 552 U.S. 1243 (2008); Lester v. Natsios, 290 F. Supp. 2d 11, 33 (D.D.C.
2003). The reason is simple: hostile work environments are by definition different because
“[t]heir very nature involves repeated conduct.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 115 (2002).
Consistent with the distinction between the two theories, courts are often hesitant to allow
plaintiffs to bring suit under a hostile work environment theory based upon nothing more than an
amalgamation of loosely related discrete acts. There is no bright line rule for determining when a
variety of component-acts may be considered collectively; instead, “courts must exercise their
judgment carefully and on a case-by-case basis.”72 Baloch, 517 F. Supp. 2d at 363. In exercising
that judgment, courts must consider the extent to which the alleged actions are related in time
and type; if certain actions are so remote in time or different in kind that a reasonable trier of fact
could not find them to be part of the same work environment, then those actions should not be
considered. See Vickers v. Powell, 493 F.3d 186, 199-200 (D.C. Cir. 2007); Verges v. Shelby
Cnty. Sheriff’s Office, 721 F. Supp. 2d 730, 746 (W.D. Tenn. 2010). That does not mean that it
will always be necessary for the component-acts comprising a hostile work environment to be
identical or to take the same form; however, there must be a “common thread” among them. Cf.
Norman v. Gannett Co., Inc., 852 F. Supp. 46, 50 (D.D.C. 1994); Harris v. City of Fresno, 625 F.
72While the general hesitancy to allow “bootstrapping” is often stated in broad terms,
there is no per se rule prohibiting a plaintiff from seeking relief in connection with a particular
employment action under the premise that it is actionable both on its own and as part of a broader
hostile work environment. On some occasions, it may be entirely appropriate for an incident to
double as an independently actionable act and as a component-act of a hostile work environment.
66
Supp. 2d 983, 1024 (E.D. Cal. 2009). In short, there must be some coherence to the claim.
In this case, the Secretary argues in his opening memorandum that Gaines is improperly
attempting to “bootstrap” discrete acts of retaliation in the guise of a hostile work environment
claim. See Def.’s MSJ Mem. at 41. In opposition, Gaines offers no response to this argument,
electing instead to recite legal boilerplate concerning hostile work environment claims generally
and then faulting the Secretary for “ignor[ing] the totality of the circumstances.” Pls.’ MSJ
Opp’n at 58. In so doing, Gaines provides no meaningful analysis of her hostile work
environment claim and fails to explain how the various component-acts identified congeal into a
coherent hostile work environment. See Pls.’ MSJ Opp’n at 56-59. In this Circuit, “it is well
understood . . . that when a plaintiff files an opposition to a dispositive motion and addresses
only certain arguments raised by the defendant, a court may treat those arguments that the
plaintiff failed to address as conceded.” Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (citation omitted), aff’d, 98 F. App’x 8 (D.C.
Cir. 2004); accord Lewis v. District of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C.
Cir. Feb. 2, 2011). Because Gaines has failed to provide any rejoinder to the Secretary’s
argument that her hostile work environment claim is not predicated on “one unlawful
employment practice,” Def.’s MSJ Mem. at 41 (internal quotation marks omitted), the Court
shall, in an exercise of its discretion, treat the argument as conceded.
Even if the Court were inclined to reach the merits of the argument, the result would be
the same. Depending on how they are framed, Gaines has identified somewhere in the
neighborhood of ten to fifteen component-acts. But regardless of how they are framed, those acts
are spread out over nearly five years; involve conduct ranging from a physical altercation to what
67
are at best minor inconveniences common to any workplace; implicate a broad set of actors
ranging from former co-workers to fourth-line supervisors, some of whom worked at different
locations than Gaines; and only a handful are alleged to have occurred while Gaines was actually
working at the IRS.73 Where, as here, a plaintiff adopts a “kitchen sink” approach to crafting a
hostile work environment claim, and when that approach is challenged, it is incumbent upon her
to come forward with some explanation as to how her claim actually works under a hostile work
environment theory. In this case, Gaines has made no attempt—none—to crystallize for the
Court how these disparate acts could be seen by a trier of fact as sufficiently related to coalesce
into a single hostile work environment. When viewed in their totality, as Gaines presses this
Court to view them, the Court can only conclude that these acts are so different in kind and
remote in time that they cannot possibly comprise part of the same hostile work environment.
Based on the record created by the parties, the Court concludes that the Secretary is entitled to
summary judgment in his favor on Gaines’s hostile work environment claim on this basis alone.
73
On this last point, the Secretary argues that some of the component-acts identified by
Gaines in support of her hostile work environment claim are irrelevant because they occurred
while she was on extended leave and therefore absent from the workplace. See Def.’s MSJ Mem.
at 42-44. Beginning from the premise that “there was no work environment to speak of,” the
Secretary reasons these acts could not “by definition . . . have rendered Gaines’s work
environment hostile.” Id. at 42. Stated in such sweeping terms, the Secretary’s argument runs up
against the principle that there is no “per se rule against considering incidents alleged to have
occurred while an employee was physically absent from the workplace.” Greer v. Paulson, 505
F.3d 1306, 1314 (D.C. Cir. 2007). The Secretary’s argument may or may not have merit when
applied to the particulars of this case, but because the Secretary has not attempted to do so, the
Court declines to reach the argument.
68
c. Gaines Fails To Adduce Sufficient Evidence That Would Permit a
Reasonable Trier of Fact to Conclude That the Component-Acts
Were Taken in Retaliation for Her Protected Activity
There is another ground for granting summary judgment in the Secretary’s favor on
Gaines’s hostile work environment claim: to the extent there is a common thread among the
component-acts identified by Gaines, it is that there is no evidence to suggest that any one was
taken in retaliation for her participation in the 2003 Litigation. Critically, Title VII only prohibits
discrimination against an employee taken “because” the employee has engaged in protected
activity. 42 U.S.C. § 2000e-3(a). Consistent with this statutory mandate, “the plaintiff must
establish a causal connection between the harassment and her protected activity to succeed on the
claim.” Lewis v. District of Columbia, 653 F. Supp. 2d 64, 81 (D.D.C. 2009) (citing Nichols v.
Truscott, 424 F. Supp. 2d 124, 141 (D.D.C. 2006)). There is an evidentiary component to this
principle: evidence that bears no connection to the plaintiff’s protected status cannot support a
hostile work environment claim. Harris v. Wackenhut Servs., Inc., 419 F. App’x 1, 2 (D.C. Cir.
2011) (per curiam) (citing, inter alia, Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d
426, 440 (2d Cir. 1999)). Therefore, courts should exclude from consideration employment
actions that “lack a linkage” to discrimination or retaliation. Bryant v. Brownlee, 265 F. Supp.
2d 52, 63 (D.D.C. 2003) (quoting Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002)); accord
Baloch, 517 F. Supp. 2d at 363.
Here, all of the component-acts that Gaines relies upon in support of her hostile work
environment claim are facially neutral. Of course, this alone is not necessarily fatal to her claim:
facially neutral incidents may, in appropriate circumstances, be considered as part of the “totality
of the circumstances” supporting a plaintiff’s hostile work environment claim. However, this is
69
appropriate only if a trier of fact could reasonably conclude that they were, in fact, based on the
plaintiff’s participation in protected activity. Alfano, 294 F.3d at 378. In other words, the
plaintiff must first demonstrate that there is a factual basis for inferring that the incidents were
motivated by a retaliatory animus. In this case, Gaines’s has completely failed to meet that
burden: not one of the component-acts is accompanied by any indicia of retaliatory animus of any
kind, let alone a retaliatory animus specifically directed towards her participation in the 2003
litigation. Furthermore, where the Secretary has proffered a non-retaliatory reason for a specific
act, Gaines has “failed to offer any contradictory evidence to rebut the [Secretary’s] neutral
reason.” Graham v. Holder, 657 F. Supp. 2d 210, 217 (D.D.C. 2009). Viewing the record as a
whole, no trier of fact could reasonably conclude that the acts complained of by Gaines were
motivated by a retaliatory animus.74
First, Gaines alleges that she was involved in a physical altercation with a co-worker on
74
The Court underscores that Gaines never argues in connection with her hostile work
environment claim that an inference of retaliation may be made based on temporal proximity,
either on its own or in connection with other circumstantial evidence. See Pls.’ MSJ Opp’n at
56-59. As such, the argument is deemed to be waived. Even if Gaines had made such an
argument, there would be two fundamental infirmities with such an approach. First, the temporal
gap is frequently of such a magnitude that it is insufficient to permit a fact-finder to infer
retaliation as a matter of law. See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (per curiam); Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009). This is especially
true where, as here, the uncontested record shows that the relevant decisionmakers had no
contemporaneous knowledge of Gaines’s participation in the 2003 litigation. See Talavera, 638
F.3d at 313 (faulting the plaintiff for failing to show that the relevant decisionmaker “had
knowledge of her protected activity.”); Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009)
(same). Second, in this Circuit, “positive evidence beyond mere [temporal] proximity” is
ordinarily necessary to undermine an employer’s proffered explanation for its conduct. Woodruff
v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007). Where the Secretary has proffered an explanation
for a particular component-act, Gaines had failed to adduce sufficient evidence from which a trier
of fact could reasonably conclude that the act had any nexus to her protected activity. The Court
shall provide examples of these two infirmities in the discussion that follows.
70
December 21, 2004. However, Gaines concedes that the only reason the co-worker struck her
was because she refused to attend a breakfast outing earlier that morning. See Def.’s Stmt. ¶ 6;
Pls.’ Stmt. ¶¶ 5-6; Pls.’ MSJ Opp’n at 47; Gaines Dep. at 106. There is no evidence to suggest
that the altercation had any nexus to Gaines’s participation in the 2003 litigation and therefore it
cannot support her hostile work environment claim.
Second, Gaines alleges that her supervisors failed to solicit leave donations on her behalf
in early 2005 while she was on leave. Unfortunately, Gaines states the allegation in such a
conclusory manner that it unclear exactly what she contends transpired or when:
Ms. Gaines’s manager, John Wood, did not carry out his managerial
responsibility to solicit leave donations on her behalf. Wood’s
intentional and inappropriate action taken against Ms. Gaines,
shutting her out from participating in the leave bank program was
hostile in nature and directed toward Ms. Gaines as a result of her
protected activity.
Pls.’ MSJ Opp’n at 48 (citing Pls.’ Interrog. Resps. No. 11). This sort of cursory allegation may
suffice in a complaint, but it is patently insufficient to create a genuine dispute necessitating trial.
As an initial matter, Gaines offers no response to the Secretary’s argument that her “supervisors
had no responsibility to solicit leave donations on her behalf.” Def.’s MSJ Mem. at 42. In an
exercise of its discretion, the Court shall treat the argument as conceded. More importantly,
however, Gaines offers no facts from which a trier of fact could infer that the action was taken in
retaliation for her participation in the 2003 Litigation. See Hussain, 435 F.3d at 365 (concluding
that the district court properly disregarded “conclusory allegations” of discriminatory animus in
the plaintiff’s own affidavit); Robinson v. Duncan, 775 F. Supp. 2d 143, 2011 WL 1319084, at
*7 (D.D.C. Apr. 7, 2011) (faulting the plaintiff for “present[ing] nothing aside from conclusory
allegations from which a reasonable jury could conclude that [the decisionmaker] acted with
71
discriminatory or retaliatory animus.”). On this record, no reasonable trier of fact could conclude
that John Wood’s alleged failure to solicit leave donations on Gaines’s behalf in early 2005 had
any nexus to Gaines’s participation in the 2003 litigation. Therefore, it cannot support her
hostile work environment claim.75
Third, Gaines alleges that a letter was sent to her on August 25, 2005, directing her to
return to work on September 6, 2005. The undisputed sequence of events that led to the issuance
of the letter precludes a trier of fact from drawing an inference of retaliation. It is undisputed that
Gaines was examined by a board-certified orthopedic surgeon on June 9, 2005, and it is
undisputed that the surgeon concluded that Gaines was able to return to work full-time so long as
she was not required to lift more than ten pounds. Def.’s Stmt. ¶ 10; Pls.’ Stmt. ¶ 10. Based on
that examination, the DOL’s OWCP—not the IRS—determined that Gaines was fit to return to
work based on the stated lifting limitation and notified the IRS of that determination on August
19, 2005. Def.’s Stmt. ¶ 11; Pls.’ Stmt. ¶ 11. That in turn prompted the IRS to send Gaines a
letter less than a week later offering her a position as a Tax Analyst, acknowledging her lifting
limitation, and instructing her to report to work on September 6, 2005. Def.’s Stmt. ¶ 12; Pls.’
75
There is a further reason why the allegation cannot support Gaines’s hostile work
environment claim—specifically, Gaines fails to respond to the Secretary’s argument that “leave
was solicited on Gaines’s behalf.” Def.’s MSJ Mem. at 33 (emphasis altered). Indeed, it is
undisputed that “a memorandum soliciting donations was distributed on her behalf.” Def.’s
Stmt. ¶ 9; Pls.’ Stmt. ¶ 9; Gaines Dep. Ex. 4 (Mem. to M. Gaines dated Mar. 9, 2005). Due
entirely to Gaines’s failure to situate her allegations in time and her failure to respond to the
Secretary’s arguments, the Court cannot say with any precision how close in time the
memorandum was circulated after Gaines’s application to participate in the Leave Bank Program
was approved. Nonetheless, the Court can surmise from the record that it was at most within a
few months. Under these circumstances, no reasonable trier of fact could conclude that the
alleged failure, even if it occurred, was sufficiently material to meaningfully contribute to a
severe or pervasive hostile working environment.
72
Stmt. ¶ 12; Gaines Dep. Ex. 7 (Ltr. to M. Gaines dated Aug. 25, 2005) at 1. At her deposition,
Gaines admitted that her supervisors at the IRS did not initiate the request that she return to
work, played no role in the OWCP’s decision, and were obligated to follow the OWCP’s
recommendation. Gaines Dep. at 152, 155-56. More to the point, she adduces no evidence that
would suggest that the letter or the surrounding circumstances were in any way motivated by a
desire to retaliate against her for her prior protected activity. Indeed, Gaines conceded at her
deposition that she cannot even explain the basis for her belief that the letter was retaliatory.
Gaines Dep. at 153. Simply put, there is no evidence to suggest that the letter had any nexus to
Gaines’s participation in the 2003 Litigation and therefore it cannot support her hostile work
environment claim.76
Fourth, Gaines alleges that while she was out on leave, her fourth-line supervisor, Fayne,
“occasionally spoke with [her] on the phone concerning her return to the workplace, [indicated]
that she would start with a clean slate, and [stated] that when she [did] return to the workplace,
she [would] have to hit the ground rolling.” Pls.’ MSJ Opp’n at 49 (citing Pls.’ Interrog Resps.
No. 11). Without further factual elaboration, Gaines claims that the statements attributed to
Fayne reflected a “condescending and demeaning attitude” and were “insensitive and totally
unprofessional.” Id. (citing Pls.’ Interrog Resps. No. 11). However, it is far from clear how the
statements attributed to Fayne, which taken at face value appear to be words of encouragement
76
There is a further reason why the allegation cannot support Gaines’s hostile work
environment claim. It is undisputed that even though Gaines failed to respond to the letter or to
report to work on the designated date, she was never disciplined for failing to report to work.
Def.’s Stmt. ¶¶ 13-14; Pls.’ Stmt. ¶¶ 13-14. In other words, the letter had no material
consequences for Gaines’s employment. Under these circumstances, no reasonable trier of fact
could conclude that the letter was sufficiently material to meaningfully contribute to a severe or
pervasive hostile working environment.
73
and reassurance from a supervisor to an employee, could be construed as condescending,
demeaning, insensitive, or unprofessional. Regardless, and more to the point, Gaines adduces no
evidence that would allow a trier of fact to reasonably conclude that these statements were
motivated by a retaliatory animus. By Gaines’s own account, Fayne was merely “over-talking”
her, “telling [her] what was going to be going on when [she] returned to work” and preventing
Gaines from “get[ting] a word in edgewise.” Gaines Dep. at 122. There is no evidence to
suggest that the statements had any nexus to Gaines’s participation in the 2003 Litigation and
therefore they cannot support her hostile work environment claim.77
Fifth, Gaines alleges that her third-line supervisor, Becker, failed to provide her with
“complete reporting instructions” upon her return to work on June 4, 2007. At her deposition,
Gaines admitted that she did not view the act as hostile, merely “inappropriate.” Gaines Dep. at
226. Gaines adduces no evidence that would allow a reasonable trier of fact to conclude that
Becker’s alleged failure to provide her with “complete reporting instructions” had any connection
to her prior protected activity. In the absence of competent evidence to suggest that the alleged
failure had any nexus to Gaines’s participation in the 2003 Litigation, it cannot support her
hostile work environment claim.78
77
There is a further reason why the allegation cannot support Gaines’s hostile work
environment claim. At her deposition, Gaines testified that she personally found Fayne’s alleged
statements at most “[k]ind of” condescending, but not demeaning. Gaines Dep. at 123. No
reasonable trier of fact could conclude that the statements attributed to Fayne were objectively
hostile. Title VII is not a “general civility code,” Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80 (1998), and this sort of complaint falls considerably short of what is required to
meaningfully contribute to a severe or pervasive hostile working environment.
78
There is a further reason why the allegation cannot support Gaines’s hostile work
environment claim. According to Gaines, the upshot of Becker’s purported failure to provide
complete reporting instructions was that she was required to wait a total of two hours at a
74
Sixth, Gaines alleges that during an office tour upon her return to work on June 4, 2007,
her second-line supervisor, Gelineau, instructed her to participate in a “clean building initiative.”
According to Gaines, Gelineau instructed her to clean and organize the area surrounding her
workplace, an instruction that Gaines admits applied to everyone in the office. Gaines Dep. at
227-33, 235; Gelineau Dep. at 89. It is undisputed that Gelineau explained that the entire office
was conducting a week-long “clean building initiative,” in connection with which all employees
were encouraged to cull their files of excess paperwork, organize their workspace, and remove
any extraneous boxes or office supplies. Def.’s Stmt. ¶ 23; Pls.’ Stmt. ¶ 23. There is no
indication that Gaines was singled out for special treatment. Furthermore, Gaines offers no
response to the Secretary’s argument that Gelineau “had no knowledge of Gaines’s EEO activity
at the time.” Def.’s MSJ Mem. at 46 (citing Gelineau Dep. at 83). In an exercise of its
discretion, the Court shall treat the argument as conceded.79 In any event, the argument is
supported by the record. At bottom, Gaines points to no evidence that would allow a reasonable
trier of fact to conclude that Gelineau’s instruction had any connection whatsoever to her
security station until her second-line supervisor, Gelineau, arrived to escort her into the premises.
See Pls.’ MSJ Opp’n at 49. This sort of minor inconvenience cannot meaningfully contribute to
a severe or pervasive hostile working environment.
79
The Court recognizes that the employer’s knowledge of an employee’s protected
activity may suffice to infer knowledge on the part of the relevant decisionmaker when it is
coupled with temporal proximity. See Jones, 557 F.3d at 679. However, in this case, the
incident occurred approximately one year and two months after Gaines last participated in
protected activity in connection with the 2003 Litigation by participating in the 2006 Settlement.
See Stip. & Compromise Settlement & Dismissal With Prejudice ¶ 4, Mason v. Snow, Civil
Action No. 03-1730 (CKK) (D.D.C. May 1, 2006). Courts have routinely held that a temporal
gap of this magnitude is insufficient to permit the trier of fact to infer a retaliatory animus. See,
e.g., Breeden, 532 U.S. at 273; Taylor, 571 F.3d at 1322. Nor has Gaines pointed to any other
circumstantial evidence that would permit a reasonable trier of fact to infer knowledge on
Gelineau’s part.
75
participation in the 2003 Litigation. Therefore, the incident cannot support her hostile work
environment claim.80
Seventh, Gaines alleges that upon her return to work on June 4, 2007, she was
temporarily assigned to a workshop before she began work on her permanent responsibilities.81
Once again, Gaines offers no response to the Secretary’s argument that Gelineau, who was
responsible for assigning Gaines to the workshop, “had no knowledge of Gaines’s EEO activity
at the time.” Def.’s MSJ Mem. at 46 (citing Gelineau Dep. at 83). In an exercise of its
discretion, the Court shall treat the argument as conceded. In any event, the argument is
supported by the record. More broadly, Gaines adduces no evidence that would permit a
reasonable trier of fact to conclude that the assignment had any connection with her prior
protected activity. There is no evidence to suggest that the assignment had any nexus to Gaines’s
participation in the 2003 Litigation and therefore it cannot support her hostile work environment
80
There is an additional reason why the incident cannot support Gaines’s hostile work
environment claim. Gaines admits that she did not actually participate in cleaning or organizing
the area surrounding her workplace, and concedes that she was never instructed to do so again by
Gelineau or anyone else. Gaines Dep. at 233. Under these circumstances, no reasonable trier of
fact could conclude that Gelineau’s instructions that Gaines participate in an office-wide “clean
building initiative” were sufficiently material to meaningfully contribute to a severe or pervasive
hostile working environment.
81
On a related note, Gaines also alleges, in passing and with no meaningful explication,
that the workshop assignment required her to coordinate with a co-worker who “rarely returned”
her communications. To the extent Gaines intended to suggest that the co-worker’s conduct
supports her hostile work environment claim, she adduces no evidence that would permit a
reasonable trier of fact to conclude that the co-worker’s alleged failure to promptly respond to her
communications had any nexus to her protected activity. In any event, no reasonable trier of fact
could conclude that such conduct would be sufficiently material to meaningfully contribute to a
severe or pervasive hostile working environment.
76
claim.82
Eighth, Gaines claims that sometime shortly after her return to work on June 4, 2007, her
first-line supervisor, Gardner, “failed to assign [her] a coach to train her in completing work
assignments.” Pls.’ MSJ Opp’n at 51. For various reasons, no reasonable trier of fact could infer
that the alleged failure to assign Gaines a coach was retaliatory. As an initial matter, Gaines fails
to respond to the Secretary’s argument that Gardner “had no knowledge of her participation in
the 2003 lawsuit or her EEO activity.” Def.’s MSJ Mem. at 47 n.15 (citing Gardner Dep. at 60,
69-70). In an exercise of its discretion, the Court shall treat the argument as conceded. In any
event, the argument is supported by the record. Furthermore, the uncontested evidence in the
record establishes that Gardner made arrangements to provide Gaines with training to get her
acclimated to her position. See Def.’s Stmt. ¶ 30; Pls.’ Stmt. ¶ 30; Gaines Dep. at 235, 239;
Gardner Dep. at 17, 35. While Gaines alleges that she further requested that she be assigned a
senior analyst as an “on-the-job” coach, she admits that Gardner in fact asked a senior analyst to
serve as her coach and that the senior analyst “refused to do so.” Pls.’ MSJ Opp’n at 51. Gaines
adduces no evidence that would permit a reasonable trier of fact to conclude that Gardner’s
efforts, or the senior analyst’s refusal, had any connection to her prior protected activity. True,
Gaines alleges that “other new analysts” were provided a senior analyst as an on-the-job coach.
Pls.’ Stmt. ¶ 27 (citing Gaines Dep. at 235-40). The actual testimony relied upon for this
allegation only suggests that a single employee, Nuss, was coached by a senior analyst for an
unspecified duration at some point after Gaines started in her new position. Gaines Dep. at 237.
82
In any event, no reasonable trier of fact could conclude that a temporary assignment of
this kind was sufficiently material to meaningfully contribute to a severe or pervasive hostile
working environment.
77
Gaines makes no attempt to show that she was similarly situated to Nuss in all material respects
or to provide any meaningful explanation as to how the coaching that Nuss allegedly received
differed from the training opportunities she received.83 In the absence of evidence that she and
Nuss were similarly situated, “an inference of falsity or [retaliation] is not reasonable.”
Montgomery v. Chao, 546 F.3d 703, 707 (D.C. Cir. 2008) (quoting Waterhouse v. District of
Columbia, 298 F.3d 989, 995 (D.C. Cir. 2002)). No trier of fact, if presented with this record,
could reasonably conclude that the alleged shortcomings in the training and coaching provided to
Gaines, if there even were any, had any connection to her prior protected activity. At bottom,
there is no evidence to suggest that these decisions had any nexus to Gaines’s participation in the
2003 Litigation and therefore they cannot support her hostile work environment claim.
Ninth, Gaines vaguely alleges that she was “intentionally isolated from [her] group by
non-association.” Pls.’ MSJ Opp’n at 51. Unfortunately, the allegation is stated in such
conclusory and unilluminating terms that it is difficult to glean from Gaines’s submissions
exactly what is the basis of her complaint. Equally troubling, the sum total of evidence identified
by Gaines in support of this allegation is the following statement from her responses to the
Secretary’s interrogatories:
Gaines sat at her desk for weeks completing online training courses
because she was not assigned appropriate section work. She met with
Mr. Gardner . . . . Ms. Gaines then asked if she could be assigned
section work like everyone else, and Mr. Gardner said that he would
see what he could do to assist her in her request.
83
Gaines testified that she personally viewed a senior analyst in her office as her “go-to
person when [she] had a question,” and the person to whom she would speak “to help [her]
complete her tasks.” Gaines Dep. at 236, 239. She makes no attempt to explain to the Court
how this relationship differs from an “on-the-job” coach.
78
Pls.’ Interrog. Resps. No. 11. Gaines does not even attempt to explain how this could possibly
serve as evidence of retaliation. By her own account, she was required to complete certain
training “since she was new to the section,” and when she approached her supervisor to request
an assignment he said “he would see what he could do to assist her in her request.” Pls.’ MSJ
Opp’n at 51. No reasonable trier of fact could draw an inference of retaliation from this sequence
of events, especially where, as here, the uncontested evidence in the record shows that the
relevant supervisor, Gardner, had no knowledge of Gaines’s prior protected activity at the time.
There is no evidence to suggest that Gaines was “intentionally isolated” and, even if she was, that
it had any nexus to Gaines’s participation in the 2003 Litigation. Therefore, it cannot support her
hostile work environment claim.
Tenth, Gaines contends that her requests for a “flexiplace” assignment and related
accommodations were improperly denied in March 2008. For the reasons set forth elsewhere,
see infra Part III.A.2, no reasonable trier of fact could conclude that Gaines’s requests were
denied in retaliation for her prior protected activity. Therefore, they cannot serve as evidence in
support of her hostile work environment claim.
Eleventh, Gaines alleges that her first-line supervisor, Gardner, failed to solicit leave
donations on her behalf in May 2008. The totality of the evidence cited for this allegation is as
follows: “In May 2008 Gardner failed to solicit requests for donated leave . . . on behalf of
plaintiff Gaines, after he agreed to do so.” Pls.’ Interrog Resps. No. 11. Gaines provides no
meaningful factual support for her allegation. Meanwhile, the record shows that Gaines was
approved to participate in the Leave Transfer Program. Def.’s Stmt. ¶ 32; Pls.’ Stmt. ¶ 32.
However, Gardner admitted he “dropped the ball” and forgot to send out notice of Gaines’s
79
approval for the Leave Transfer Program to other employees for them to make contributions of
donated leave on her behalf. Gardner Dep. at 41-42. The Secretary concedes as much, and
argues that Gardner had no knowledge of Gaines’s protected activity at the time, that there is no
evidence that Gardner’s lapse was related to Gaines’s protected activity, and that, regardless,
Gardner had no responsibility to solicit donations on Gaines’s behalf. See Def.’s MSJ Mem. at
42-43. In opposition, Gaines offers no response to these arguments. In an exercise of its
discretion, the Court shall treat them as conceded. More to the point, however, Gaines has
adduced no evidence that would allow a reasonable trier of fact to conclude that Gardner’s failure
to solicit donations on her behalf had any connection with her participation in the 2003
Litigation. Therefore, it cannot serve as evidence in support of her hostile work environment
claim.
Twelfth, Gaines alleges that her first-line supervisor, Gardner, and her second-line
supervisor, Gelineau, denied her the right to have a union representative present during a meeting
concerning potential disciplinary action.84 In its opening memorandum, the Secretary argues that
“[e]ven assuming the accuracy of [the] allegation, no fact supports [Gaines’s] argument that the
absence of a union representative at a single meeting created a hostile work environment that
pervaded the workplace with ridicule, discrimination, or insult.”85 Def.’s MSJ Mem. at 48 n.16.
84
While it is far from clear from her disjointed submissions, Gaines appears to contend
that this was in violation of the relevant bargaining agreement. See Pls.’ MSJ Opp’n at 46.
However, she fails to cite to any evidence in the record in support of this allegation, and states it
in such a conclusory manner that the Court has no basis to assess its validity. In any event, she
still fails to adduce any evidence that would permit a trier of fact to reasonably conclude that the
denial, assuming it even occurred, had any connection to her prior protected activity.
85
Although the Secretary appears willing to concede the point in connection with the
pending motions, the Court observes that the evidence cited by Gaines in support of the
80
In opposition, Gaines offers no response to the argument and, in an exercise of its discretion, the
Court will treat the argument as conceded. More to the point, Gaines once again adduces no
evidence that would permit a reasonable trier of fact to conclude that these events had any
relationship to her prior protected activity. The mere fact that something undesirable might have
occurred is insufficient to support a claim for retaliation; Gaines must show “a causal connection
between the harassment and her protected activity.” Lewis, 653 F. Supp. at 81. Because she has
failed to do so, the alleged incident cannot support her hostile work environment claim.
Thirteenth, Gaines claims that her ten-day suspension for tax non-compliance was
imposed in retaliation for her prior protected activity. For the reasons set forth elsewhere, see
infra Part III.A.3, no reasonable trier of fact could conclude that the suspension was imposed for
her prior protected activity. Therefore, it cannot serve as evidence in support of her hostile work
environment claim.
Fourteenth, and finally, Gaines contends that her non-disciplinary termination on October
23, 2009, was taken in retaliation for her prior protected activity. For the reasons set forth
elsewhere, see infra Part III.A.4, no reasonable trier of fact could conclude that Gaines was
terminated for her prior protected activity. Therefore, it cannot serve as evidence in support of
her hostile work environment claim.
proposition that Gardner and Gelineau refused to allow her to have a union representative present
during the meeting—namely, Gardner and Gelineau’s deposition testimony—does not actually
support the proposition. See Pls.’ MSJ Opp’n at 51 (citing Gardner Dep. at 66-67; Gelineau Dep.
at 76-77). The cited testimony is at best contradictory. Gardner testified that Gaines was offered
the opportunity to have a union representative present, but testified that he recalled Gelineau
extending the offer. Gardner Dep. at 67. Meanwhile, Gelineau testified that it was standard
practice to inform employees that they could have a union representative present, but did not
testify that she recalled doing so. Gelineau Dep. at 76-77.
81
In the final analysis, of the myriad component-acts identified by Gaines as supporting her
hostile work environment claim, Gaines has failed to point to any evidence to suggest that any
one was taken in retaliation for her participation in the 2003 Litigation. Viewing the record as a
whole, no trier of fact could reasonably conclude that the acts complained of by Gaines were
motivated by a retaliatory animus. Having failed to designate specific facts showing that there is
a genuine dispute requiring trial, see Ricci, 129 S. Ct. at 2677, Gaines’s claim must fail on this
separate independent basis. Accordingly, the Court will enter summary judgment in the
Secretary’s favor on Gaines’s hostile work environment claim.
2. The Secretary Is Entitled to Summary Judgment on Gaines’s Claim Based
on the Denial of Her Requests for a “Flexiplace” Assignment and Related
Accommodations
Gaines claims that her requests for a “flexiplace” assignment and related accommodations
were denied in retaliation for her participation in the 2003 Litigation.86 See Pls.’ MSJ Opp’n at
52, 66-67. In this Circuit, once the employer has proffered a legitimate, non-retaliatory reason
for a challenged employment action, the “central question” becomes whether “the employee [has]
produced sufficient evidence for a reasonable jury to find that the employer’s asserted [non-
retaliatory] reason was not the actual reason and that the employer intentionally [retaliated]
against the employee.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008);
see Jones, 557 F.3d at 678 (noting that “these principles apply equally to retaliation claims.”).
86
The Court actually doubts that a discrete claim for retaliation based upon the denial of
Gaines’s requests for a “flexiplace” assignment and related accommodations could be said to be
within the scope of the operative pleadings. See Fourth Am. Compl. (Civil Action No. 09-462)
¶¶ 19, 25-26; Compl. (Civil Action No. 10-683) ¶¶ 12-13. However, because the Secretary has
not pressed the issue, and because the claim fails in any event, the Court shall assume, without
deciding, that Gaines may pursue such a claim here.
82
Generally speaking, a claim should proceed to the jury if the plaintiff is able to point to evidence
from which a jury could reasonably find that the employer’s stated reasons for the challenged
employment action were pretextual. Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011);
see also Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010) (providing that
evidence of pretext is generally, but not always, sufficient to survive summary judgment).87 The
plaintiff cannot rely on her view that the employer’s actions “were imprudent or unfair; an
employer may make an employment decision for a good reason, a bad reason, or no reason at all
so long as” the decision is not made in reprisal for the plaintiff’s protected activity. Santa Cruz
v. Snow, 402 F. Supp. 2d 113, 125 (D.D.C. 2005) (internal quotation marks omitted).
In this case, Gaines submitted an application for a “flexiplace” assignment and related
accommodations in March 2008, requesting that she be allowed to work at home full-time
following a surgical procedure that she planned to undergo at the end of the month. Def.’s Stmt.
¶ 31; Pls.’ Stmt. ¶ 31. However, Gaines’s supervisors informed her that they were unable to
accommodate her requests because she was yet to complete the requisite “plain language” review
training. Def.’s Stmt. ¶ 33; Pls.’ Stmt. ¶ 33; Gardner Dep at 28, 35, Gelineau Dep. at 26-27.
Gardner told Gaines that he would be able to “better justify” her working from home following
the completion of her training. Gardner Dep. at 28, 35. Here, Gaines’s entire defense of her
claim consists of a single paragraph. See Pls.’ MSJ Opp’n at 66-67. She tenders only two
arguments as to why she believes the trier of fact could find the Secretary’s proffered justification
87
Gaines does not claim to have—nor has she—presented any “direct evidence” of
retaliation. See generally Manuel v. Potter, 685 F. Supp. 2d 46, 60 n.11 (D.D.C. 2010)
(“‘[D]irect evidence’ is that which, if believed by the fact-finder, establishes the fact in question
without any need for an inference, including statements or documents showing a discriminatory
or retaliatory animus on their face.”).
83
to be pretextual. See Pls.’ MSJ Opp’n at 66-67. Neither argument has any merit.
First, Gaines asserts that the Secretary’s proffered justification for denying her requests is
nothing more than a “post hoc rationale” raised for the first time in this litigation. Pls.’ MSJ
Opp’n at 67. This argument is easily dispensed with, as it is flatly contradicted by the record.
Gardner, in the course of denying Gaines’s requests on or about July 11, 2008, included the
following contemporaneous explanation for the decision:
Training is essential to conduct the clarity reviews [for which Gaines
is responsible]. * * * We have tried to schedule training for [Gaines]
to get acclimate[d] . . . to the notice review process and procedures.
To work from home at this time would not be productive.
Gaines Dep. Ex 25 (Reasonable Accommodation Req.) at 2. On this record, no reasonable trier
of fact could conclude that the Secretary’s proffered justification is a “post hoc rationale” raised
for the first time in this litigation.
Second, Gaines claims that her supervisors granted a “flexiplace” request by a co-worker,
Nuss, two months after Nuss began working in her position. Pls.’ MSJ Opp’n at 66-67. The
argument fails at the outset because Gaines never attempts to establish that she and Nuss were
similarly situated in all material respects. See McFadden v. Ballard Spahr Andrews & Ingersoll,
LLP, 611 F.3d 1, 4 (D.C. Cir. 2010) (allegation that other employees received accommodations
not offered to the plaintiff did “not provide the slightest reason to doubt” the defendant’s
proffered explanation where the plaintiff had failed to show that she was similarly situated to the
alleged comparators). Likewise, Gaines’s passing suggestion that “all nine of [her] coworkers
were on flexiplace,” Pls.’ MSJ Opp’n at 66 (citing Gardner Dep. at 71), goes nowhere because
she does not even identify these co-workers by name, let alone attempt to establish that they were
all similarly situated. Gaines had failed to satisfy her threshold burden of showing that she and
84
any of the alleged comparators were similarly situated.88 On this record, no reasonable trier of
fact could conclude that Gaines was the subject of disparate treatment.
The two arguments tendered by Gaines are without merit, and this alone suffices to grant
summary judgment in the Secretary’s favor. Nonetheless, the Court pauses to observe that no
reasonable trier of fact, viewing the record as a whole, could conclude that the Secretary’s
proffered justification for denying Gaines’s requests was not the actual reason and that Secretary
intentionally retaliated against Gaines for her participation in the 2003 Litigation. In this regard,
Gaines fails to respond to two arguments tendered by the Secretary that undermine any possible
inference of retaliation in this instance. First, Gaines offers no rejoinder to the Secretary’s
argument that the temporal gap between the denial of her requests and her prior protected activity
is too great to support an inference of retaliation, see Def.’s MSJ Mem. at 47, and, in an exercise
of its discretion, the Court shall treat the argument as conceded. In any event, approximately two
years had elapsed since Gaines had last engaged in protected activity in connection with the 2003
Litigation, precluding any potential inference of retaliation based on temporal proximity.
Second, Gaines offers no response to the Secretary’s argument that “Gardner had no knowledge
of the 2003 Lawsuit or of her prior EEO activity when he denied the requests.” Id. (citing
Gardner Dep. at 61, 69-70), and in an exercise of its discretion, the Court shall treat the argument
88
The Court also notes that Gaines failed to raise this factual issue in the manner
specifically prescribed by the Court. By the terms of this Court’s prior orders, in responding to
the Secretary’s statement of material facts, Gaines was required to set forth any additional facts
that she considered germane to the pending motions at the end of her responsive statement, a
procedure that was designed to afford the Secretary a meaningful opportunity to address whether
any additional proffered facts were or were not genuinely in dispute. See 6/11/09 Scheduling &
Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil Action No. 09-462) at 3;
Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 21-22. By burying this factual issue in a
sixty-eight page opposition memorandum, Gaines deprived the Secretary of this opportunity.
85
as conceded. In any event, the argument is supported by the record.
More to the point, Gaines simply has adduced no evidence that would allow a reasonable
trier of fact to conclude that the denial of her requests had any nexus to her prior protected
activity. Indeed, she concedes that she was “new to that area,” that she had never performed
“plain language” review of publications and notices in her career, and that she needed “plain
language” review training. Def.’s Stmt. ¶ 28; Pls.’ Stmt. ¶ 28; Gaines Dep. at 236. These
admissions, and the Secretary’s proffered explanation, are consistent with the record, which
shows that Gaines’s supervisors made arrangements for her to obtain the requisite training.
Def.’s Stmt. ¶ 30; Pls.’ Stmt. ¶ 30; Gardner Dep. at 17, 35; Gaines Dep. at 235, 239. On this
record, no reasonable trier of fact could conclude that the Secretary’s proffered explanation is
pretextual. The Secretary is entitled to summary judgment on Gaines’s claim based on the denial
of her requests for a “flexiplace” assignment and related accommodations.
3. The Secretary Is Entitled to Summary Judgment on Gaines’s Claim Based
On Her Ten-Day Suspension Without Pay
Gaines also claims that she was improperly suspended without pay for ten days in
retaliation for her participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No.
09-462) ¶ 25; Pls.’ MSJ Opp’n at 52-54. The issue first emerged on January 24, 2008, when the
ETC Branch within the IRS performed a routine computerized comparison of payroll and tax
account records and determined that Gaines had failed to make sufficient estimated tax payments
pertaining to gambling winnings during tax-year 2006. Def.’s Stmt. ¶ 34; Pls.’ Stmt. ¶ 34. It is
undisputed that the ETC Branch discovered the issue independently and that Gaines’s
supervisors had no role in initiating the investigation. Def.’s Stmt. ¶ 37; Pls.’ Stmt. ¶ 37.
Subsequently, the matter was referred to Gaines’s supervisors for purposes of determining a
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suitable punishment; they in turn informed Gaines on July 8, 2008, that they were considering a
fourteen-day suspension without pay, but advised Gaines that alternative discipline was also a
possibility. Def.’s Stmt. ¶¶ 39, 41; Pls.’ Stmt. ¶¶ 39, 41.
Upon being notified of the proposed discipline, Gaines stopped reporting to work
altogether and never returned. Def.’s Stmt. ¶ 42; Pls.’ Stmt. ¶ 42. Thereafter, and while the
fourteen-day suspension proposal was still pending, the ETC Branch discovered that Gaines had
committed yet another tax violation—namely, that she had failed to timely pay additional taxes
because she failed to accurately claim an earned-income tax credit. Def.’s Stmt. ¶ 44; Pls.’ Stmt.
¶ 44. On December 12, 2008, upon learning of this development, Gaines’s supervisors rescinded
the original suspension proposal and issued a new letter proposing the same fourteen-day
suspension, albeit this time incorporating the facts relating to the new incident of tax non-
compliance. Def.’s Stmt. ¶¶ 47-48; Pls.’ Stmt. ¶¶ 47-48. Ultimately, the proposed fourteen-day
suspension was mitigated to a ten-day suspension, and Gaines was notified of the final decision
on April 13, 2009. Def.’s Stmt. ¶ 49; Pls.’ Stmt. ¶ 49.
The Secretary is entitled to summary judgment on this claim. As a threshold matter,
Gaines has completely failed to interpose a meaningful defense in support of her claim. Whereas
the Secretary argues at great length in his opening memorandum that Gaines “presents no
evidence connecting her protected activity to the suspension,” Def.’s MSJ Mem. at 49, the
argument section of Gaines’s opposition does not even address the claim, let alone provide a
response to the Secretary’s detailed factual and legal arguments, see Pls.’ MSJ Opp’n at 55-67.
Among other things, Gaines (a) does not dispute that the challenged employment action came
over two years after she last participated in protected activity in connection with the 2003
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Litigation, a time lag that precludes an inference of retaliation based on temporal proximity, and
(b) fails to provide any evidence contradicting the Secretary’s assertion that the supervisors
responsible for the proposed suspension did not have contemporaneous knowledge of her
protected activity. See Def.’s MSJ Mem. at 51 (citing Gelineau Dep. at 82-83; Gardner Dep. at
61, 69; Becker Dep. at 61). True, the introductory paragraphs to Gaines’s opposition include a
passing statement that “[t]he ten day suspension of Ms. Gaines for paying taxes on her gambling
winnings when she filed her return rather than when she won the money was unjustified and
retaliatory.” Id. at 5. However, such an argument hardly warrants serious attention; courts need
not resolve arguments raised in a cursory manner and with only the most bare-bones arguments
in support. See Wash. Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C. Cir. 1997).
Because Gaines has failed to respond to the arguments raised by the Secretary in support of
dismissal, the Court shall, in an exercise of its discretion, treat those arguments as conceded. On
this basis alone, the Secretary is entitled to summary judgment on the claim.
However, even if the Court were inclined to reach the merits of the claim, Gaines has
failed to produce sufficient evidence to permit a reasonable trier of fact to conclude that the
Secretary’s proffered reason for the suspension “was not the actual reason” and that the Secretary
instead intentionally retaliated against Gaines. Brady, 520 F.3d at 494. Even setting aside the
magnitude of the temporal gap between Gaines’s protected activity and the challenged
suspension and the absence of any evidence that the responsible decisionmakers had any
knowledge of that protected activity, Gaines admits that she engaged in the underlying conduct
cited as grounds for the proposed suspension. Def.’s Stmt. ¶¶ 38, 44; Pls.’ Stmt. ¶¶ 38, 44; Pls.’
MSJ Opp’n at 53. Cf. Waterhouse, 298 F.3d at 995 (where plaintiff “did not contravene—and in
88
fact admitted—many of the deficiencies the defendants cited concerning her performance, she
failed to establish that her employer’s proffered reason was unworthy of credence.”) (internal
quotation marks, notations, and citations omitted). Furthermore, despite her innuendo to the
contrary, these incidents constituted her second and third tax non-compliance violations, Def.’s
Stmt. ¶ 45; Pls.’ Stmt. ¶ 45, Def.’s Ex. D (Ltr. from C. Tavenner to M. Gaines dated Nov. 24,
2003), and both the proposed and actual suspension fell within the range of recommended
disciplinary action, see Def.’s Ex. SS (IRS Guide to Penalty Determinations) at 12. More
broadly, Gaines fails to adduce any evidence that would allow a reasonable trier of fact to
conclude that her suspension had any nexus to her participation in the 2003 Litigation. On this
record, no reasonable trier of fact could find in Gaines’s favor. Accordingly, the Secretary is
entitled to summary judgment on the claim.
4. The Secretary Is Entitled To Summary Judgment on Gaines’s Claim Based
On Her Non-Disciplinary Termination
Finally, Gaines claims that she was subjected to a non-disciplinary termination in
retaliation for her participation in the 2003 Litigation. See Compl. (Civil Action No. 10-683) ¶¶
12-13; Pls.’ MSJ Opp’n at 54-55, 67. Gaines stopped reporting to work altogether on July 10,
2008, two days after her supervisors advised her that they were considering suspending her for
fourteen days for tax non-compliance, claiming that she was totally incapacitated and unable to
work. Def.’s Stmt. ¶ 42; Pls.’ Stmt. ¶ 42. On March 3, 2009, Gaines underwent a work-capacity
evaluation, after which the examining doctor determined that she was able to work on a full-time
basis. Def.’s Stmt. ¶ 50; Gaines Dep. Ex 18 (Work Capacity Evaluation dated Mar. 3, 2009). On
July 21, 2009, Gaines’s legal counsel, Swick, responded to this development by informing the
IRS in a letter that Gaines was “not likely to be physically able to return to work at the IRS” and
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requested that an IRS representative “call [him] to explore a resolution to th[e] situation.”
Gaines Dep. Ex. 20 (Ltr. from R. Swick to S. Becker dated July 21, 2009) at 1. Shortly
thereafter, Swick called Gaines’s third-line supervisor, Becker, and the two discussed the
available options, including Gaines’s non-disciplinary termination. Pls.’ Ex. 33 (Decl. of
Richard L. Swick) ¶¶ 3, 5. Thereafter, the IRS initiated the process of removing Gaines for non-
disciplinary reasons, citing as grounds Gaines’s admitted failure to report for work and inability
to perform her duties since July 10, 2008. Def.’s Stmt. ¶¶ 55, 59; Pls.’ Stmt. ¶¶ 55, 59. On
September 15, 2009, the IRS notified Gaines of the proposed non-disciplinary termination, and
advised Gaines that the proposed action would not affect her ability to apply for a disability
retirement. Gaines Dep. Ex. 22 (Ltr from S. Becker to M. Gaines dated Sept. 15, 2009) at 1-2.
Gaines elected not to respond to the proposal, and on October 16, 2009, the IRS notified Gaines
that her non-disciplinary proposal would be upheld and that she would be removed from federal
service effective October 23, 2009. Def.’s Stmt. ¶¶ 60-61; Pls.’ Stmt. ¶¶ 60-61; Gaines Dep. Ex.
23 (Ltr. from K. Becton-Johnson to M. Gaines dated Oct. 16, 2009). Subsequently, after Gaines
filed an application for disability retirement, her termination was converted from a non-
disciplinary removal to a disability retirement. Def.’s Stmt. ¶¶ 57-58, 62; Pls.’ Stmt. ¶¶ 57, 62.
The Secretary is entitled to summary judgment. Once again, Gaines has completely failed
to interpose a meaningful defense in support of her claim. Her opposition consists of a single
paragraph and asserts but one argument—specifically, Gaines contends that summary judgment
must be denied simply because there is a factual dispute as to whether Becker, in communicating
with Swick about the status of Gaines employment, actually understood Swick to have requested
that the IRS commence the process for Gaines’s non-disciplinary removal. See Pls.’ MSJ Opp’n
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at 67. As set forth in greater detail above, see supra Part I.A.6, the parties dispute exactly what
was said during the conversation, and the Court will assume for purposes of resolving the
pending motions that Swick did not actually propose that the IRS commence the process of
terminating Gaines for non-disciplinary reasons. However, it is a far cry from saying that there is
a genuine dispute as to what was said during the course of the conversation to saying that a trier
of fact could reasonably conclude that the Secretary’s proffered justification for Gaines’s non-
disciplinary termination is pretextual.
In proposing Gaines’s termination, Gaines’s supervisors identified the basis for the
proposal in the following manner:
The proposed adverse action is based on the following reasons:
Reason I: You are unable to perform the duties of your position.
Specification 1: Due to your medical condition, you have
been unable to carry out the duties as a Tax Analyst since July
10, 2008. All information available indicates you are unlikely
to return to work in the foreseeable future.
Reason II: You are unavailable to perform the duties of your position.
Specification 1: You have not reported to duty since
July 10, 2008.
Gaines Dep. Ex. 22 (Ltr from S. Becker to M. Gaines dated Sept. 15, 2009) at 1. Significantly,
these assertions are indisputably true. By the time her termination became final, Gaines had not
reported to work for over a year and three months; she testified that she no longer wanted to
continue working at the IRS and maintained that she was unable to work despite a contrary
determination by a board-certified physician. Gaines Dep. at 207, 212. Moreover, her legal
counsel made it clear that Gaines was “not likely to be physically able to return to work at the
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IRS.” Gaines Dep. Ex. 20 (Ltr. from R. Swick to S. Becker dated July 21, 2009) at 1. The mere
fact that there might be some disagreement as to what Swick said to Becker during a single
phone conversation does not change the fact that the two proffered bases for Gaines’s
termination—namely that she was “unable” and “unavailable” to perform the duties of her
position—are conceded to be true. On this record, no reasonable trier of fact could conclude that
the Secretary’s proffered justification was pretextual based solely on the factual dispute as to
what was said during the conversation between Swick and Becker.
Furthermore, Gaines fails to respond to the Secretary’s argument that no inference of
retaliation can arise from the temporal proximity between the challenged employment action and
her protected activity because “Gaines had not engaged in protected activity for years prior to the
proposed removal.” Def.’s MSJ Mem. at 53. Similarly, Gaines offers no rejoinder to the
Secretary’s argument that Becker, as the supervisor responsible for the proposed termination,
“did not know that Gaines had participated in the 2003 Lawsuit at the time she proposed the
removal.” Def.’s MSJ Mem. at 53 (citing Becker Dep. at 61-62). In an exercise of its discretion,
the Court shall treat both arguments as conceded. In ay event, both arguments are supported by
the record. More to the point, Gaines adduces no evidence that would permit a reasonable trier
of fact to conclude that her termination had any nexus to her participation in the 2003 Litigation.
Accordingly, the Secretary is entitled to summary judgment on this claim as well.
***
In sum, Gaines has failed to adduce sufficient evidence to permit a reasonable trier of fact
to find in her favor on any of her claims. Therefore, the Court shall enter summary judgment in
the Secretary’s favor and dismiss Gaines’s claims from this action.
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B. Discussion Relating to Plaintiff Euel Mason
Mason is pursuing four claims under Title VII, each of which is based on the contention
that he was retaliated against, in one way or another, for his participation in the 2003 Litigation.89
Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 1, 14-15, 21; Compl. (Civil Action No. 10-
184) ¶¶ 1, 10-12; Pls.’ MSJ Opp’n at 2, 6-7, 59. First, Mason claims that he was subjected to a
hostile work environment.90 Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 1, 14; Compl.
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At one point in his opposition, Mason appears to suggest that he engaged in protected
activity by sending various e-mails to his superiors and senior IRS management complaining
about his treatment in the workplace. See Pls.’ MSJ Opp’n at 62-64. While Mason may have
sent these e-mails, and while they may or may not constitute “protected activity” under Title VII
on their own, Mason has had no less than five opportunities to set forth his claims in his
pleadings, and those pleadings are unambiguous that the protected activity upon which he brings
suit is his participation in the 2003 Litigation. See, e.g., Fourth Am. Compl. (Civil Action No.
09-462) ¶ 21 (“Defendant . . . has discriminated against Mr. Mason in retaliation for his prior
protected civil rights activity, specifically his participation in the successful litigation of Civil
Action No. 03-1730 . . . .”) (emphasis added); Compl. (Civil Action No. 10-184) ¶ 12
(“Defendant . . . has discriminated against Mr. Mason in retaliation for his prior protected civil
rights activity, specifically, his participation in the successful litigation of Civil Action No. 03-
1730 . . . .”) (emphasis added). “It is axiomatic that a complaint may not be amended by the
briefs in opposition to a [dispositive] motion,’” Arbitraje Casa de Cambio, S.A. de C.V. v. U.S.
Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (quoting Coleman v. Pension Benefit
Guar. Corp., 94 F. Supp. 2d 18, 24 n. 8 (D.D.C.2000)), and Mason’s belated attempt to depart
from his pleadings is patently impermissible and is rejected by the Court. Cf. Middlebrooks v.
Goodwin Corp., 722 F. Supp. 2d 82, 89 (D.D.C. 2010) (noting that identifying the protected
activity at issue is a pleading requirement), aff’d, No. 10-7089, 2011 WL 3207857 (D.C. Cir.
July 6, 2011); Hyson v. Architect of Capitol, __ F. Supp. 2d __, 2011 WL 3489128, at *11 n.16
(D.D.C. Aug. 10, 2011) (refusing to consider allegations of protected activity “bear[ing] no
resemblance” to the protected activity cited on the administrative level). Regardless, for the
reasons set forth below, even considering Mason’s allegations, the same result would obtain.
90
The Secretary argues that Mason failed to plead a hostile work environment claim. See
Def.’s MSJ Reply at 2. To the contrary, Mason expressly alleged that he was subjected to a
“hostile work environment” and he catalogued a series of alleged incidents in support. See
Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 1, 14; Compl. (Civil Action No. 10-184) ¶ 1,
12. This sufficed to provide the Secretary with fair notice that Mason intended to pursue a
hostile work environment claim. See Steele v. Schafer, 535 F.3d 689, 694 (D.C. Cir. 2008). In
fact, the Secretary’s counsel represented to the Court prior to filing the pending motions that he
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(Civil Action No. 10-184) ¶ 1, 12; Pls.’ MSJ Opp’n at 12-24, 56-59. Second, Mason claims that
his non-selection for the ‘322 Position was unlawful. Fourth Am. Compl. (Civil Action No. 09-
462) ¶ 21; Pls.’ MSJ Opp’n at 9-12, 59-62. Third, Mason claims that his three-day suspension
was unlawful. Fourth Am. Compl. (Civil Action No. 09-462) ¶ 21; Pls.’ MSJ Opp’n at 25-27,
62-64. Finally, Mason claims that he was constructively discharged. Compl. (Civil Action No.
10-184) ¶¶ 12; Pls.’ MSJ Opp’n at 12-24, 65-66. The Court addresses each claim in turn.91
1. The Secretary Is Entitled to Summary Judgment on Mason’s Hostile Work
Environment Claim
Mason claims that he was subjected to a hostile work environment for his participation in
the 2003 Litigation. Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 1, 14; Compl. (Civil
Action No. 10-184) ¶ 1, 12; Pls.’ MSJ Opp’n at 12-24, 56-59. For at least three independent
reasons, Mason’s hostile work environment claim must fail.
a. Mason’s Opposition Is Fundamentally Infirm
Mason’s opposition in support of his hostile work environment claim leaves much to be
desired. In his opening memorandum, the Secretary explains at great length why he believes the
component-acts identified by Mason as comprising his hostile work environment claim are non-
understood “[a]ll of the plaintiffs [to] have raised parallel claims of . . . hostile work
environment.” Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 19.
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These are the only four putative claims that Mason has actually identified and defended
in his opposition to the pending motions. See Pls.’ MSJ Opp’n at 56-66. In his opening
memorandum, the Secretary offers an exhaustive and compelling argument as to why a litany of
allegations raised by Mason in his complaints and in the course of discovery are not
independently actionable. See Def.’s MSJ Mem. at 56-70. In opposition, Mason neither claims
that his allegations in this regard are independently actionable nor provides a response to the
Secretary’s argument. Therefore, in an exercise of its discretion, the Court shall treat the
Secretary’s argument as conceded by Mason.
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actionable, either because they are insufficiently adverse or because there is no evidence that they
had any connection to Mason’s participation in protected activity. See Def.’s MSJ Mem. at 54-
71. Nonetheless, Mason offers no meaningful factual or legal analysis in support of his
claim—none. Instead, he begins by reciting the skeletal allegations concerning his claim
seriatim, see Pls.’ MSJ Opp’n at 12-24, proceeds to restate the legal standard governing hostile
work environment claims generally, see id. at 56-59, and then concludes by asserting that simply
because he has “testified that [he was] subjected to severe hostility on an almost daily basis,”
then “there is an issue of fact regarding whether [he] suffered from a hostile work environment,”
id. at 57. In so doing, Mason ignores virtually every argument raised by the Secretary. For
example, he offers no rejoinder to the Secretary’s argument that he “adduces no evidence to
refute the IRS’s legitimate, nonretaliatory explanation[s]” for his allegations that he was
addressed in an “inappropriate tone or manner,” Def.’s MSJ Mem. at 57, or that his allegations of
workplace harassment are “quotidian workplace interactions . . . that do not entitle him to a jury
trial,” id. at 58. Inexplicably, Mason’s argument section mentions him only once, and instead
focuses on Plaintiffs as a whole despite the stark differences in their claims. In the final analysis,
Mason’s opposition reduces to little more than legal boilerplate, and amounts to an
impermissible attempt to shift the burden to the Secretary and this Court to sift through the
record to ascertain the viability of his claim.
Moreover, with few exceptions, the only factual support for his allegations is his narrative
responses to interrogatories posed by the Secretary in discovery asking him to identify each act
relevant to his claim. See Pls.’ Interrog. Resps. No. 3, 5, 7. However, Mason failed to raise these
factual matters in the manner specifically prescribed by the Court. By the terms of this Court’s
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prior orders, in responding to the Secretary’s statement of material facts, Mason was required to
set forth any additional facts that he considered germane to the pending motions at the end of his
responsive statement, a procedure that was designed to afford the Secretary a meaningful
opportunity to address whether any additional proffered facts were or were not genuinely in
dispute. See 6/11/09 Scheduling & Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10
Order (Civil Action No. 09-462) at 3; Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 21-
22. By burying his allegations in his sixty-eight page opposition memorandum or in response to
the Secretary’s proffered factual statements that he admits, Mason deprived the Secretary of this
opportunity. The Court considers it well within its discretion to disregard, and does disregard,
the allegations on this basis alone. However, even considering Mason’s allegations, his hostile
work environment claim must fail.
b. Mason Improperly Attempts to Incorporate Discrete Employment
Acts Into a Single Hostile Work Environment Claim
In setting forth the factual background that he considers relevant to his hostile work
environment claim, Mason identifies somewhere in the neighborhood of twenty-six component-
acts extending over an approximately three-year period.92 See Pls.’ MSJ Opp’n at 12-24. Like
Gaines, Mason has adopted a “kitchen sink” approach to his hostile work environment claim,
compiling a laundry list of employment actions and lumping them together under the umbrella of
a hostile work environment theory. He makes no attempt to show that the alleged actions are
related in time or type such that would allow a reasonable trier of fact to conclude that they
92
The parties’ descriptions and groupings of the component-acts do not perfectly align,
and for the purposes of clarity and convenience, the Court may describe and group the
component-acts in a manner slightly different than have the parties.
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congeal into a coherent hostile work environment. Indeed, Mason provides no meaningful
factual or legal analysis of his hostile work environment claim at all. Meanwhile, several of the
component-acts identified by Mason in support of his claim appear, on their face, to be the sort of
discrete employment actions that are not readily incorporated into a hostile work environment
claim, including, but not limited to, the following: the denial of his request for a rotational work
assignment on April 23, 2007, see supra Part I.B.3; the denial of his request for a transfer to the
New Carrollton office on August 30, 2007, see supra Part I.B.4; the denial of his request to be
reassigned to another branch on December 17, 2007, see supra Part I.B.5; the denial of his
request for leave without pay to attend to his family in Memphis, Tennessee, on or about July 31,
2009, see supra Part I.B.10; and his purportedly “involuntary” resignation on July 31, 2009, see
supra Part I.B.10. Nonetheless, Mason makes no effort to crystallize for the Court how these
disparate acts could be seen by a trier of fact as sufficiently related to coalesce into a single
hostile work environment. While there is a consistent theme of “stalking” in Mason’s
allegations, see supra Part I.B.1,93 these particular acts are so different in kind and remote in time
from the remainder of Mason’s allegations that the Court can see no basis to conclude that they
comprise part of the same hostile work environment, and certainly Mason has identified none.
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As set forth below, Mason has failed to adduce sufficient evidence to allow a
reasonable trier of fact to conclude that his allegations of “stalking” had any connection to his
participation in protected activity or were sufficiently material to meaningfully contribute to a
severe or pervasive hostile work environment. See infra Part III.B.1.c.
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c. Mason Fails to Adduce Sufficient Evidence that Would Permit a
Reasonable Trier of Fact to Conclude that the Component-Acts
Were Taken in Retaliation for His Protected Activity
Furthermore, Mason has failed to discharge his burden to adduce sufficient evidence to
“establish a causal connection between the [alleged] harassment and [his] protected activity.”
Lewis, 653 F. Supp. 2d at 141. Without exception, Mason has stated the alleged component-acts
in such summary and cursory form that they lack any indicia of retaliatory animus of any kind, let
alone a retaliatory animus specifically directed towards his participation in the 2003 Litigation.
Just as importantly, where the Secretary has proffered a non-retaliatory reason for a specific act,
Mason offers no contradictory evidence that would allow a reasonable trier of fact to conclude
that the proffered reason was pretextual. See Graham, 657 F. Supp. 2d at 217. Viewing the
record as a whole, no trier of fact could reasonably conclude that the acts complained of were
motivated by a retaliatory animus.94
First, with respect to the series of approximately fourteen “incidents” that allegedly
occurred between Mason and his supervisors in the three-year period extending from June 2,
2006, to July 31, 2009, Mason has provided only the barest of factual content in connection with
these incidents. See supra Part I.B.1. Mason makes no meaningful attempt to establish that
these incidents had any connection with his protected activity, let alone his participation in the
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Furthermore, the vast majority, if not all, of the component-acts identified by Mason
are so trivial that no reasonable trier of fact could conclude that they would meaningfully
contribute to a severe or pervasive hostile work environment. Simply by way of example, Mason
repeatedly alleges that he was either handed, or witnessed another employee being handed,
“confidential” or “sealed” envelopes. Setting aside that such actions are devoid of indicia of
retaliatory animus, Mason fails to explain how they could possibly be viewed as sufficiently
hostile or abusive to meaningfully contribute to a hostile work environment claim. This defect
carries throughout Mason’s opposition.
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2003 Litigation. Indeed, his allegations inevitably reduce to the bare and unilluminating
allegation that he personally found his supervisors’ actions to be “aggressive,” “condescending,”
“disruptive,” and “harassing.”95 While cursory allegations of this kind may suffice in a
complaint, they are patently insufficient to create a genuine dispute necessitating trial. See Ass’n
of Flight Attendants-CWA, 564 F.3d at 465-66 (conclusory allegations offered without any
factual basis in the record cannot create a genuine dispute sufficient to survive summary
judgment). At this stage of the proceedings, Mason bears the burden of production to designate
specific facts showing that there is a genuine dispute requiring trial, Ricci, 129 S. Ct. at 2677, and
he has simply failed to discharge that burden. Therefore, these allegations cannot support his
hostile work environment claim.
Second, with respect to the denial of Mason’s request for a rotational work assignment on
April 23, 2007, it is undisputed that Mason’s request was first denied because his second-line
supervisor, Farah, determined that Mason was then needed in his current position to complete an
ongoing project. Def.’s Stmt. ¶ 86; Pls.’ Stmt. ¶ 86. Indeed, Mason’s first-line supervisor, co-
plaintiff Benton, is admitted to have informed Farah that Mason’s participation in the project was
necessary. Def.’s Stmt. ¶ 87; Pls.’ Stmt. ¶ 87. Consistent with this account, once Mason had
completed the project, his request for a rotational work assignment was granted the very next
day. Def.’s Stmt. ¶ 90; Def.’s Ex. R (E-mail from M. Farah to E. Mason dated July 27, 2007).
Mason has failed to adduce any evidence that would allow a reasonable trier of fact to conclude
that the initial denial was in any way retaliatory. Therefore, it cannot support his hostile work
95
When Mason does provide some minimal context to his allegations, the context that he
provides undermines, rather than supports, his contention that the “incidents” were retaliatory.
99
environment claim.
Third, with respect to Mason’s request for a transfer to the New Carrollton office, it is
undisputed that his third-line supervisor, Fayne, denied his request based on a general policy that
such transfers would not be considered because there was a moratorium on all relocations to the
New Carrollton office. Def.’s Stmt. ¶ 92; Pls.’ Stmt. ¶ 92. Indeed, Mason admitted at his
deposition that he was aware of the policy at the time he made his request. Mason Dep. at 177-
78. He has also conceded that he is unable to identify any other M&P employee who requested
and was granted a transfer to the New Carrollton office during the moratorium.96 Def.’s Stmt. ¶
95; Pls.’ Stmt. ¶ 95. Mason has failed to adduce any evidence that would allow a reasonable trier
of fact to conclude that the denial of his request was in any way retaliatory. Therefore, it cannot
support his hostile work environment claim.
Fourth, with respect to Mason’s contention that his request to be reassigned to another
branch in the M&P Organization, Mason has adduced no evidence to contradict the Secretary’s
proffered justification that his supervisors concluded that reassignment was inappropriate at that
time because Mason had just recently transferred to his branch and there was no staffing need for
someone working at his position in any of the other branches. Def.’s Stmt. ¶ 98; Def.’s Ex. U
(Decl. of Paul L. Dangel) at 1112; Def.’s Ex. V (Decl. of Mitchell A. Farah) at 992. More
broadly, he fails to adduce any evidence that would allow a reasonable trier of fact to conclude
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Mason contends that Fayne approved a transfer for one employee, Angela Rolphs
(“Rolphs”) to work overseas in Rome, Italy. See Pls.’ Stmt. ¶ 18. However, the argument goes
nowhere because Mason makes no attempt to establish that he was similarly situated to Rolphs in
all material respects and, indeed, he conceded at his deposition that Rolphs was managed by
different supervisors. Mason Dep. at 134-35. More to the point, Mason alleges that Rolphs was
granted a transfer to work overseas; he does not contend that she ever asked, or was granted,
leave to transfer to the IRS’s New Carrollton office. Mason Dep. at 135.
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that the denial was made in retaliation for his participation in prior protected activity. Therefore,
it cannot support his hostile work environment claim.
Fifth, with respect to Mason’s allegation that his first-line supervisor, Dangel, disclosed
information concerning his request for FMLA leave, it is undisputed that Dangel did not actually
discuss the nature of Mason’s sisters’ illness, Mason’s prior protected activity, or Mason’s
participation in the Employee Assistance Program with his supervisors. Def.’s Stmt. ¶ 103; Pls.’
Stmt. ¶ 103. In any event, it is undisputed that Mason expressly asked Dangel to seek approval
for his FMLA request on his behalf from “appropriate upper management officials.” Def.’s Stmt.
¶ 101; Pls.’ Stmt. ¶ 101. More broadly, Mason fails to adduce any evidence that would allow a
reasonable trier of fact to conclude that Dangel’s actions had any connection with Mason’s
participation in prior protected activity. Therefore, they cannot support Mason’s hostile work
environment claim.
Sixth, with respect to Mason’s 2007 and 2008 performance appraisals, Mason “offers no
evidence of pretext nor does he refute his supervisors’ legitimate, nonretaliatory explanation for
the rating[s]” he received. Def.’s MSJ Mem. at 68. Despite Mason’s conclusory allegations to
the contrary, he points to no evidence that would allow a reasonable trier of fact to conclude that
his rating was lower than it should have been or that his appraisals were unreasonably delayed.
See supra Part I.B.7-8. Therefore, they cannot support his hostile work environment claim.
Seventh, Mason cannot rely on his meeting with his first-line supervisor, Dangel,
concerning Mason’s performance, occurring just prior to Mason’s resignation from the IRS. It is
undisputed that Dangel met with Mason to apprise him of his unsatisfactory performance and to
discuss how they could improve Mason’s performance. Def.’s Stmt. ¶¶ 153-54; Pls.’ Stmt. ¶¶
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153-54. For months, Dangel had orally notified Mason that he was not performing his duties in a
timely or satisfactory manner, Def.’s Stmt. ¶ 153; Pls.’ Stmt. ¶ 153, and the record establishes
that Dangel had documented legitimate concerns with the timing and adequacy of Mason’s
performance. See supra Part I.B.10. Mason fails to adduce any evidence that would permit a
reasonable trier of fact to conclude that the meeting, or Dangel’s concerns, had any connection to
his prior protected activity. Therefore, they cannot support his hostile work environment claim.
Finally, Mason cannot rely upon his non-selection for the ‘322 Position, his three-day
suspension for sending “broadcast” communications to senior IRS management, or the
circumstances allegedly leading to his resignation. For the reasons set forth below, no reasonable
trier of fact could conclude that these actions were taken in retaliation for Mason’s participation
in protected activity. See infra Part III.B.2-4.
In the final analysis, Mason has failed to point to sufficient evidence to allow a reasonable
trier of fact to conclude that the component-acts identified as supporting his hostile work
environment claim were taken in retaliation for his prior protected activity. Viewing the record
as a whole, no trier of fact could conclude that Mason was subjected to an objectively severe or
pervasive retaliatory hostile working environment. Accordingly, the Court will enter summary
judgment in the Secretary’s favor on Mason’s hostile work environment claim.
2. The Secretary Is Entitled to Summary Judgment on Mason’s Claim Based
on His Non-Selection for the ‘322 Position
Mason claims that his non-selection for the ‘322 Position on or about April 16, 2007, was
in retaliation for his participation in the 2003 Litigation. Fourth Am. Compl. (Civil Action No.
09-462) ¶ 21; Pls.’ MSJ Opp’n at 9-12, 59-62. In his opposition, Mason tenders a total of three
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arguments as to why a trier of fact could find in his favor on his claim.97 First, he claims that he
was “better qualified” than the ultimate selectee. See Pls.’ MSJ Opp’n at 9. Second, he claims
that the ultimate selectee was “preselected.” Id. at 10. Third, and finally, he claims that the
recommending official and the selecting official both demonstrated a generalized retaliatory
mind-set.98 Id. at 10-11, 60-61. The Court addresses each argument in turn.
a. Mason Has Failed to Show that He Was “Significantly” Better
Qualified than the Ultimate Selectee
Mason claims that he was “better qualified than the selectee,” listing his assessment of his
own qualifications and asserting that he “performed quite well.” Pls.’ MSJ Opp’n at 9. Like any
employee, Mason understandably has his own views about his performance. However, it is
axiomatic that a “[p]laintiff cannot establish pretext simply based on [his] own subjective
assessment of [his] own performance.” Waterhouse v. District of Columbia, 124 F. Supp. 2d 1, 7
(D.D.C. 2000) (internal quotation marks omitted), aff’d, 298 F.3d 989 (D.C. Cir. 2002). Where,
as here, a plaintiff attempts to use his comparative qualifications to show that the employer’s
proffered qualifications-based explanation is pretextual, he must adduce sufficient evidence to
allow a trier of fact to conclude that he was “significantly better qualified” than the ultimate
selectee. See Colbert v. Tapella, __ F.3d __, 2011 WL 2417131, at *3 (D.C. Cir. June 17, 2011);
97
Strictly speaking, Mason does not even identify all three arguments in the argument
section of his opposition, and instead sets forth what appear to be additional arguments in
describing factual background of his claim. See Pls.’ MSJ Opp’n at 9-12, 59-62. Out of an
abundance of caution, the Court shall consider all three arguments.
98
Mason also contends, in cursory fashion and without competent evidentiary support,
that the ranking official, Manno, had a “conflict of interest” that “compromised” the selection
procedures. Pls.’ MSJ Opp’n at 11. As set forth elsewhere in this Memorandum Opinion, the
contention is without merit. See supra Part I.B.2.
103
Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir.), cert. denied, __ U.S. __, 129
S. Ct. 606 (2008). A qualifications gap alone cannot support an inference that the employer’s
qualifications-based justification is pretextual; the gap must be “great enough to be inherently
indicative of discrimination [or retaliation].” Adeyemi, 525 F.3d at 1227; see also Porter v.
Shah, 606 F.3d 809, 816 (D.C. Cir. 2010) (referring to a “stark superiority of credentials”). In
this case, Mason has failed to come forward with affirmative evidence that would allow a
reasonable trier of fact to conclude that he was significantly or markedly more qualified than the
ultimate selectee—Freeman. Indeed, he has provided no meaningful comparative analysis of his
qualifications relative to Freeman at all. See Pls.’ MSJ Opp’n at 9-12, 59-62. Without such a
showing, his argument must fail.
b. Mason Has Failed to Show that the Ultimate Selectee Was
“Preselected” or that the Alleged Preselection Was Retaliatory
Second, Mason alleges that the ultimate selectee for the ‘322 Position was “pre-selected”
because he had been chosen to serve in the position previously on a temporary basis. Pls.’ MSJ
Opp’n at 10 (citing Dep. of Richard Freeman (“Freeman Dep.”) at 18-19). As an initial matter,
by burying the allegation in his sixty-eight page opposition memorandum instead of including it
in his responsive statement of material facts, Mason failed to raise the allegation in the specific
manner prescribed by the Court. See 6/11/09 Scheduling & Procedures Order (Civil Action No.
09-462) ¶ 6; 5/13/10 Order (Civil Action No. 09-462) at 3; Tr. of 5/13/10 Status Hr’g (Civil
Action No. 09-462) at 21-22. In any event, the evidence cited by Mason in support of his
allegation is insufficient to allow a reasonable trier of fact to infer that Freeman was in fact
“preselected.” See Freeman Dep. at 18-19. Furthermore, Mason ignores the fact that there is
nothing per se improper about “preselection,” at least from the standpoint of Title VII. Rather,
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for evidence of preselection to be relevant, there must be some indicia of retaliation attaching to
the preselection. See Pearsall v. Holder, 610 F. Supp. 2d 87, 100 n.12 (D.D.C. 2009); Nyunt v.
Tomlinson, 543 F. Supp. 2d 25, 39 (D.D.C. 2008), aff’d, 598 F.3d 445 (D.C. Cir. 2009). Because
Mason never even bothers to explain how the mere fact that Freeman had been chosen to serve in
the position on a temporary basis is indicative of retaliation, the argument must fail.
c. Mason Has Failed to Show that the Recommending and Selecting
Officials Harbored a Generalized Retaliatory Animus
Third, Mason contends that the recommending official for the ‘322 Position, Farah, and
the selecting official, Fayne, have displayed a generalized retaliatory attitude.99 See Pls.’ MSJ
Opp’n at 60-61. This is a recurring refrain in both Mason and Benton’s opposition to the
pending motions, but it is without merit. For purposes of economy, the Court shall simply
address the contention here, but notes that its discussion applies to each instance in which the
contention has been raised by Mason and Benton.
Beginning first with Farah, Mason and Benton each claim that a trier of fact could infer a
generalized retaliatory animus on Farah’s part based on three alleged “incidents” between Farah
and another IRS employee who participated in the 2003 Litigation—namely, Gerald Plater
(“Plater”). Notably, Mason and Benton do not claim, nor could they, that the incidents have any
direct relationship to them or the employment actions they challenge in these actions. Instead,
they essentially claim that the three incidents are so egregious that a trier of fact could infer that
Farah had a “retaliatory, abusive and oppressive mind-set.” Pls.’ MSJ Opp’n at 61. But Mason
99
Mason and Benton also contend, in cursory fashion, that the interview panelists “were
biased and unfair,” Pls.’ MSJ Opp’n at 11, but they cite to no competent evidence in support of
that conclusory assertion.
105
and Benton’s allegations are devoid of factual content, rendering it impossible for this Court or
the trier of fact to situate the alleged incidents in any meaningful context, let alone conclude that
Farah’s behavior had any nexus to Plater’s or anyone else’s participation in protected activity.
Just as importantly, a review of the evidentiary support cited by Mason and Benton reveals that
they have radically misconstrued the nature of the alleged “incidents” and, by extension, misstate
the inferences that could reasonably be drawn from those incidents.100
Mason and Benton first contend, in cursory fashion and without further explication, that
Farah “openly threatened to ‘get’” Plater. Pls.’ MSJ Opp’n at 61 (citing Plater Dep. at 44-45).
But in this regard, Plater merely testified as follows:
Q Did Mr. Farah tell you, quote, “They’ve been trying to get
you for a long time but I’m going to get you by the book?”
A He did say that and I told him I appreciate him trying to do
that by the book.
Plater Dep. at 44. Mason and Benton provide no context for the comment—none. They do not
state when it occurred or under what circumstances, and they make no attempt to connect it with
Plater’s or anyone else’s participation in protected activity. Absent further factual content, there
is no basis upon which a reasonable trier of fact could conclude that this “incident” had any
nexus to Plater’s participation in the 2003 Litigation, let alone under circumstances that would
allow Mason and Benton to use it as evidence in support of their discrete claims in these actions.
In short, it is insufficient to support Mason and Benton’s allegation that Farah harbored a
100
According to the Secretary, Plater also testified that Farah was never hostile to him
and never attempted to harm his career. See Def.’s MSJ Reply at 10 (citing Plater Dep. at 48).
However, the cited testimony is not included in the excerpts provided to the Court, and therefore
the Court has no basis on which to assess the Secretary’s position.
106
generalized retaliatory mind-set.
Mason and Benton next contend, in a single sentence unaccompanied by any meaningful
explanation, that Farah was “unprofessional and demeaning” towards Plater. Pls.’ MSJ Opp’n at
61 (citing Plater Dep. at 50-52). But the testimony relied upon by Mason and Benton for this
allegation reveals simply that Plater attended a single meeting on his supervisor’s behalf, but that
Farah told him that he could leave when his supervisor called in to participate. See Plater Dep. at
51. While Plater testified that he found the incident “kind of demeaning,” “inappropriate,” and
“embarrassing,” id., he did not testify that he considered it to be hostile or abusive. More to the
point, there is no evidence upon which a reasonable trier of fact could conclude that the incident
had any nexus to Plater’s participation in the 2003 Litigation. As such, it is likewise insufficient
to support Mason and Benton’s allegation that Farah harbored a generalized retaliatory mind-set.
Finally, Mason and Benton claim that Farah commented to Plater that he viewed the work
of a particular business unit dominated by African Americans as “mule work.” Pls.’ MSJ Opp’n
at 61 (citing Plater Dep. at 45-46). However, Mason and Benton conveniently ignore the fact
that both Plater and Farah denied that Farah ever used such potentially loaded language. See
Plater Dep. at 44; Farah Dep. at 156. According to Plater, Farah probably used the term “grunt
work.” Plater Dep. at 46. Regardless, Plater unambiguously testified that he did not interpret the
term to be directed towards African American employees, but instead saw it as a statement about
“the type of work that was being done” by entry-level employees in a particular business unit. Id.
at 45-47. Just as importantly, Mason and Benton make no attempt to connect the alleged incident
to Plater’s participation in protected activity; in particular, they do not even bother to explain
how allegedly discriminatory comments may be indicative of a generalized retaliatory animus.
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In short, the incident is insufficient to support Mason and Benton’s allegation that Farah harbored
a generalized retaliatory mind-set.
Simply put, Mason and Benton have failed to adduce sufficient evidence that would allow
a trier of fact to reasonably conclude that Farah held any sort of retaliatory animus towards
Plater, let alone an animus that could be imputed to support their claims in these actions.
Similarly, they have failed to make any effort to show that Plater’s experience is “closely related .
. . to [their] theory of the case.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388
(2008).
The same holds true with respect to Fayne. Mason and Benton, citing three alleged
“incidents,” claim that a trier of fact could infer that Fayne exhibited a “hostility towards the
EEO process and those who participate in it.” Pls.’ MSJ Opp’n at 60. However, whether
considered together or independently, the three incidents are insufficient to permit a reasonable
trier of fact to conclude that Fayne harbored a generalized retaliatory animus.101
First, Mason and Benton claim that a presentation that Fayne made with another IRS
employee as part of a federal dispute resolution seminar in August 2001, two years before they
had even commenced the 2003 Litigation, is evidence of her retaliatory animus. See id. (citing
Pls.’ Ex. 14 (The New Cost of Discrimination: How Agreeing to Settle a Discrimination
Complaint Could Cost Your Job) at 1). Neither Mason nor Benton ever attempt to explain how
the contents of the seminar are indicative of a retaliatory animus, apparently believing that the
title itself is sufficient to support their allegation. They are mistaken; an inference of retaliation
101
Two of these alleged incidents involve Benton; Mason does not claim that the
incidents have any direct relationship to him or the employment actions he challenges in this
action.
108
cannot arise from such flimsy innuendo. Meanwhile, the contents of the materials pertaining to
the seminar contradict the suggestion that Fayne and her co-presenter were inclined to
discriminate or retaliate—the materials merely set forth the legal background and procedure
relevant to the processing of complaints. See Pls.’ Ex. 14 (The New Cost of Discrimination:
How Agreeing to Settle a Discrimination Complaint Could Cost Your Job) at 1-18.
Second, Mason and Benton claim that Fayne “attempted to bribe Mr. Benton to withdraw
his EEO complaint by promising him promotional consideration for doing so.” Pls.’ MSJ Opp’n
at 60 (citing Benton Dep. at 179). It is undisputed that, when Benton met with Fayne to discuss
his non-selection for the ‘044 Position, Fayne offered Benton opportunities to improve his
managerial and interviewing skills and offered to place him in a front-line managerial position.
Def.’s Stmt. ¶¶ 201-02; Pls.’ Stmt. ¶¶ 201-02; Fayne Dep. at 191, 221-23. In Benton’s view,
Fayne’s offer amounted to an attempt to “bribe [him] with a promotion.” Pls.’ Stmt. ¶ 202
(citing Benton Dep. at 179). However, in the single page of deposition testimony specifically
cited by Mason and Benton in support of their allegations, Benton merely reiterated his view that
he personally “interpreted” Fayne’s offer as a bribe.102 Benton Dep. at 180. Notably, he did not
testify that Fayne expressly conditioned these opportunities on his withdrawal of the referenced
complaint:
Q Did she say you couldn’t have the training unless you
pulled your complaint?
A She questioned me and haggard [sic] — and she drilled me
about that complaint, sir. It stayed on that. And that —
102
Similarly, although not referenced by Benton in his responsive statement of material
facts, Benton’s response to the Secretary’s interrogatories states, without any meaningful factual
content, that he “felt he was being bribed and harassed.” Pls.’ Interrog. Resps. No. 3.
109
again, everything I’ve said is truthful.
Benton Dep. at 159. At best, the cited testimony is sufficient to create a genuine dispute that
Benton and Fayne discussed the complaint, but nothing more. It does not provide a basis for a
trier of fact to reasonably conclude that Fayne harbored a generalized “hostility towards the EEO
process and those who participate in it.” Pls.’ MSJ Opp’n at 60. Indeed, if anything, Benton’s
testimony would tend to suggest that Fayne was responsive to Benton’s concerns and sought to
provide him with the training and opportunities to advance further in the IRS.
Third, Mason and Benton rely upon an e-mail from Fayne to Benton, in which Fayne
wrote, again on the heels of Benton’s non-selection for the ‘044 Position:
I have been thinking a lot about our meeting yesterday . . . . I am
genuinely trying to give everyone who wants the opportunity to move
up the chance to do that. That does not mean that everyone gets to
move right when they think they should. As I said to you yesterday,
I hope the trust level can go up enough so that people will sit down
and talk as we did, instead of running to file grievances and
complaints without first trying to talk about it. I value your points
and your presence in M&P. Keep in mind what we talked about, and
perhaps we can talk again when I return from vacation. There’s
simply too much work for M&P to do to be bogged down in so much
distrust.
Pls.’ Interrog. Resps. No. 3. Simply put, the Court is left wondering why Benton considers this
e-mail “very unusual and disturbing.” Id. If anything, the e-mail would also tend to suggest that
Fayne was open to discussing and responding to Benton’s workplace concerns. The mere fact
that Fayne suggested that Benton attempt to raise his concerns with her prior to taking more
formal action is not indicative of a retaliatory animus; indeed, it is entirely appropriate for
supervisors to encourage the informal reporting and discussion of workplace concerns in the first
instance. Viewed in context, the e-mail is, on its face, a routine and unremarkable attempt by a
110
supervisor to encourage a higher level of trust with an employee. Mason and Benton adduce no
evidence that would permit a reasonable trier of fact to conclude that the e-mail is evidence that
Fayne harbored a generalized “hostility towards the EEO process and those who participate in it.”
Pls.’ MSJ Opp’n at 60.
d. Mason Has Otherwise Failed to Adduce Sufficient Evidence to
Allow a Trier of Fact to Conclude that His Non-Selection for the
‘322 Position Was Pretextual
While the foregoing discussion suffices to grant summary judgment on Mason’s claim
based on his non-selection for the ‘322 Position, the Court nonetheless pauses to observe that,
viewing the record a whole, no reasonable trier of fact could conclude that the Secretary’s
proffered qualifications-based justification for Mason’s non-selection was pretextual. It is
undisputed that the application and review materials demonstrated a “clear separation” between
the ultimate selectee, Freeman, and the other four candidates, and both Manno, as the ranking
official, and the interview panel agreed that Freeman had the most extensive managerial
experience, demonstrated more relevant personal achievement than the other candidates, and had
an educational background that was superior or comparable to other candidates. See supra Part
I.B.2. Indeed, Mason admitted at his deposition that he was not the most qualified candidate for
the position. Mason Dep. at 206-08. In his own view, at least two candidates should have been
selected over him. Id. Ultimately, “[s]hort of finding that the employer’s stated reason was
indeed a pretext . . . the court must respect the employer’s unfettered decision to choose among
qualified candidates.” Fischbach v. D.C. Dep’t of Corrections, 86 F.3d 1180, 1189 (D.C. Cir.
1996). On this record, no reasonable trier of fact could conclude that the Secretary’s proffered
justification for Mason’s non-selection was pretextual. Accordingly, the Secretary is entitled to
111
summary judgment on the claim.
3. The Secretary Is Entitled to Summary Judgment on Mason’s Claim Based
on His Three-Day Suspension
Mason claims that his three-day suspension, which was proposed on October 6, 2008, and
upheld on January 6, 2009, was imposed in retaliation for his participation in the 2003 Litigation.
Fourth Am. Compl. (Civil Action No. 09-462) ¶ 21; Pls.’ MSJ Opp’n at 25-27, 62-64. However,
Mason has failed to adduce sufficient evidence for a reasonable trier of fact to conclude that the
Secretary’s proffered justification for the suspension was not the actual reason and that the
Secretary intentionally retaliated against him. See Brady, 520 F.3d at 494.
While the claim is heavily contested, the essential facts are undisputed. Mason routinely
sent prolix e-mails to senior IRS officials, including officials as high as the IRS Commissioner,
raising what he claims were “workplace concerns.” See supra Part I.B.9. Even though he was
told to stop sending such e-mails to senior IRS management and was instead encouraged to use
the IRS’s EEO apparatus and the agency grievance process, Mason nonetheless continued to send
the e-mails. See id. After the communications continued for months, it became clear that Mason
would not stop sending such communications, prompting Mason’s supervisors to issue him a
non-disciplinary directive on February 29, 2008. See id. In the written directive, Mason was put
on notice that his “use of the Agency e-mail system . . . and [his] misuse of government time and
equipment in pursuit of such activities [was] inappropriate, disprupt[ed] the workplace and [was]
unproductive.” Mason Dep. Ex. 19 (Mem. Directive for Resolving Issues of Personal Concern
dated Feb. 28, 2008) at 1. Among other things, he was directed to “cease sending ‘broadcast’
communications to multiple management officials on personal matters and/or matters that should
properly be initially presented to [his] first-line manager or pursued through available dispute
112
resolution mechanisms, such as the EEO process or the Agency Grievance Procedure.” Id. He
was expressly directed to “utilize available dispute resolution mechanisms and pursue adjustment
of workplace concerns which [were] not resolved to his satisfaction by management,” and was
reminded that his supervisor “continue[d] to be[] available to discuss [his] concerns.” Id.
Despite this directive, Mason continued to e-mail senior IRS officials with complaints,
requests for information, and demands to address his workplace grievances, see supra Part I.B.9,
prompting his second-line supervisor, Farah, to propose his suspension without pay for three
days for (1) “fail[ing] to follow a directive from management,” (2) “misus[ing] government
equipment and government supplies,” and (3) mis[using] work time,” Mason Dep. Ex. 20
(Notice of Proposed Disciplinary Suspension dated Oct. 6, 2008) at 1-6. The proposal letter
identified (1) fourteen separate instances between May 9, 2008, and October 6, 2008, in which
Mason allegedly sent inappropriate communications to senior IRS management, (2) thirteen
separate instances in which he used government equipment to send such communications, and
(3) two instances in which he “misused work time” to draft such communications. Id. The
three-day suspension was approved on January 9, 2009. Def.’s Stmt. ¶ 152; Pls.’ Stmt. ¶ 152.
Mason appears to be laboring under the misapprehension that this sequence of events
somehow constitutes direct evidence of retaliation. See Pls.’ MSJ Opp’n at 63. It is nothing of
the sort. Mason had adduced no evidence demonstrating that he was ever discouraged from
raising his myriad allegations of discrimination or retaliation in the workplace. Indeed, all the
competent evidence in the record establishes that Mason was repeatedly encouraged to raise
whatever concerns he might have through the agency’s EEO apparatus or the agency grievance
process. Def.’s Stmt. ¶ 143; Pls.’ Stmt. ¶ 143; Mason Dep. Ex. 19 (Mem. Directive for
113
Resolving Issues of Personal Concern dated Feb. 28, 2008) at 1. In other words, he was merely
directed to raise his concerns through “the appropriate channels,” Mason Dep. Ex. 19 (Mem.
Directive for Resolving Issues of Personal Concern dated Feb. 28, 2008) at 1, and there was
nothing inappropriate about such an instruction. Cf. Rollins v. State of Fla. Dep’t of Law
Enforcement, 868 F.2d 397, 399 (11th Cir. 1989) (employer did not act improperly where its
actions were based on “the manner in which [the plaintiff] complained of discrimination, not on
the fact that she complained,” as the plaintiff “habitually bypassed the chain of command by
bringing her complaints of discriminatory employment practices directly [to senior
management]”); Rattigan v. Holder, 604 F. Supp. 2d 33, 49 (D.D.C. 2009) (“Title VII’s anti-
retaliation provision ‘was not intended to immunize insubordinate, disruptive, or nonproductive
behavior at work.’”) (quoting Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir.
1981)).
Nor can Mason create a genuine dispute requiring trial merely by repeating his personal
view that his e-mails to senior IRS management raised “workplace” and not “personal” concerns
and therefore did not violate the letter of the written management directive. Pls.’ MSJ Opp’n at
25-26. Such an argument seeks to impose an unreasonably technical reading upon the written
management directive; the record establishes that Mason was repeatedly warned that the kind of
e-mails he was sending to senior IRS management was inappropriate and advised that his
concerns should be raised through other channels. On this record, no reasonable trier of fact
could reach any conclusion but that Mason continued to send communications to senior IRS
114
officials knowing that his conduct was in contravention of the instructions of his superiors.103 In
any event, Mason’s argument is not merely premised upon an unreasonably technical reading of
the written directive, it is premised upon a selective reading of the directive. Despite Mason’s
apparent belief to the contrary, the directive was not confined to communications of a “personal
concern”; rather, Mason was expressly instructed to stop using agency resources to distribute
communications “disparag[ing] or hector[ing]” employees and to cease sending “broadcast”
communications raising “matters that should properly be initially presented to [his] first-line
manager or pursued through available dispute resolution mechanisms, such as the EEO process
or the Agency Grievance Procedure.” Mason Dep. Ex. 19 (Mem. Directive for Resolving Issues
of Personal Concern dated Feb. 28, 2008) at 1. And yet Mason offers no explanation as to why a
trier of fact could conclude he complied with these instructions.
More to the point, the Court understands that Mason may personally disagree with his
supervisors’ interpretation of the directive, but that alone is hardly sufficient to warrant an
inference of retaliation. Where, as here, “the employer’s stated belief about the underlying facts
is reasonable in light of the evidence, . . . there ordinarily is no basis for permitting a jury to
conclude that the employer is lying about the underlying facts.” Brady, 520 F.3d at 495 (citing,
103
Contrary to Mason’s innuendo, his supervisors did not testify to the contrary. Becton-
Johnson testified that an employee should first raise a workplace issue with his or her first-line
supervisor, except where an employee is uncomfortable, in which case he or she has the option of
raising the issue through dispute resolution procedures. Becton-Johnson Dep. at 25-27. She also
testified that, although an employee has the right to “elevate” an issue, she plainly stated that
there is a limit: by her account, whereas an employee “has the right to take it up the chain of
command once, maybe twice,” it is “inappropriate for an employee to continually heckle . . .
upper management on the same issue.” Id. at 27-28. Similarly, Freeman merely testified that an
employee would be justified in elevating his concerns to his second- and third-line supervisors,
but not to senior IRS management. Freeman Dep. at 55-57.
115
inter alia, George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005)). The question is not whether
Mason in fact contravened the letter of the management directive, but rather whether his
supervisors “honestly and reasonably believed” that he did. Id. at 496 (emphasis omitted). In
this case, it is undisputed that Mason was repeatedly directed to cease sending communications
raising his concerns to senior IRS management and to use agency resources in doing so, but he
nonetheless continued on his prior course of conduct unabated. On this record, no reasonable
trier of fact could conclude that the Secretary’s proffered justification for Mason’s three-day
suspension was pretextual.
Finally, Mason’s suggestion that the penalty imposed by his supervisors exceeded the
“maximum allowable penalty” is without merit. Pls.’ MSJ Opp’n at 26, 63 (citing Def.’s Ex. SS
(IRS Guide to Penalty Determinations). The record evidences that Mason was repeatedly warned
that his conduct was unacceptable and yet he continued to serially send communications prepared
with agency resources to senior IRS management. Indeed, the suspension proposal identifies no
less than fourteen instances between May 9, 2008, and October 6, 2008, in which Mason sent
communications in contravention of the directive. Mason Dep. Ex. 20 (Notice of Proposed
Disciplinary Suspension dated Oct. 6, 2008) at 1-6. Therefore, there is no basis to Mason’s
argument that he was suspended for a “first offense.” Pls.’ MSJ Opp’n at 63.
In the final analysis, Mason has failed to adduce sufficient evidence for a reasonable trier
of fact to conclude that the Secretary’s proffered justification for the suspension was not the
actual reason and that the Secretary intentionally retaliated against him. See Brady, 520 F.3d at
494. Accordingly, the Secretary is entitled to summary judgment on the claim.
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4. The Secretary Is Entitled to Summary Judgment on Mason’s Constructive
Discharge Claim
Finally, Mason claims that he was constructively discharged in retaliation for engaging in
protected activity. See Compl. (Civil Action No. 10-184) ¶¶ 12; Pls.’ MSJ Opp’n at 12-24, 65-
66. It is undisputed that Mason resigned his employment with the IRS on July 31, 2009. Def.’s
Stmt. ¶ 153; Pls.’ Stmt. ¶ 153. In this Circuit, resignations are presumed to be voluntary. Aliotta
v. Bair, 614 F.3d 556, 566 (D.C. Cir. 2010). However, “[i]n certain cases, the doctrine of
constructive discharge enables an employee to overcome the presumption of voluntariness and
demonstrate [that he] suffered an adverse employment action by showing the resignation . . . was,
in fact, not voluntary.” Id. To meet that burden, the plaintiff “must show that the [allegedly]
abusive working environment became so intolerable that [his] resignation qualified as a fitting
response.” Penn. State Police v. Suders, 542 U.S. 129, 134 (2004). In this case, Mason has
failed to adduce sufficient evidence to meet his burden for at least two independent reasons.
First, and most importantly, because Mason has failed to make the lesser showing that he
was subjected to a severe and pervasive hostile work environment, see supra Part III.B.1, it
necessarily follows that his constructive discharge claim, which requires a more robust showing
and rests on the same nucleus of factual allegations, must fail as well. Sewell v. Hugler, No. 08-
5079, 2009 WL 585660, at *1 (D.D.C. Feb. 25, 2009) (per curiam).
Second, to prevail on a constructive discharge claim, a plaintiff must point to “the
existence of certain ‘aggravating factors,’” Mungin v. Katten Muchin & Zavis, 116 F.3d 1549,
1558 (D.C. Cir. 1997) (quoting Clark v. Marsh, 665 F.2d 1168, 1173 (D.C. Cir. 1981))—i.e.,
“those aspects of a discriminatory [or retaliatory] work environment that, by making the
workplace so disagreeable, prevent the reasonable employee from seeking remediation on the
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job,” Veitch v. England, 471 F.3d 124, 130 (D.C. Cir. 2006) (citing Mungin, 116 F.3d at 1558),
cert. denied, 552 U.S. 809 (2007). Here, Mason characterizes the “aggravating factor” that
allegedly triggered his resignation as follows:
Mr. Mason was denied leave to visit and care for his terminally [ill]
sister who has cancer. Rather than accepting Mr. Mason’s
explanation that his absence was necessary due to a personal and
confidential matters [sic], his first-line supervisor, Paul L. Dangel,
pressed him for specific details regarding his sister [sic] medical
condition . . . . This refusal forced Mr. Mason to choose between
caring for his family and continuing to work in a hostile work
environment.
Pls.’ MSJ Opp’n at 66. Similarly, in his letter of resignation, Mason wrote:
Your actions have placed me in a situation where I must choose
between my family and my job as I must either neglect my moral duty
to my “Sister” or face charges of insubordination and Absent Without
Leave (AWOL) from you and those who are directing your actions.
Mason Dep. Ex. 1 (Ltr. from E. Mason to P. Dangel dated July 31, 2009) at 1 (emphasis and
underlining in original).
To the extent this may even be characterized as an “aggravating factor,” it is unsupported
by the record. Despite the allegations in Mason’s letter, it is undisputed that Dangel never
threatened Mason with an “AWOL charge” and no one ever placed Mason on “AWOL status.”
Def.’s Stmt. ¶ 160; Pls.’ Stmt. ¶ 160. More to the point, neither Dangel nor any of Mason’s other
supervisors ever denied Mason’s requests for leave without pay. Def.’s Stmt. ¶ 161; Mason Dep.
at 130-31. Indeed, according to Mason, Dangel had personally “approved hundreds of hours of
leave without pay so that [he] could care for his sister.” Pls.’ Stmt. ¶ 165. Most notably, Dangel
had just recently approved Mason’s request for leave for the week of August 10, 2009, so that
Mason could attend to his sister. Def.’s Stmt. ¶ 162; Pls.’ Stmt. ¶ 162.
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The gravamen of Mason’s complaint is that Dangel did not automatically grant his
specific, successive request for leave for the week of August 17, 2009. However, it is undisputed
that Mason was scheduled to attend a training session during that week, that he personally
requested the training, that he was aware of the date for months, and that he had already been
approved to take leave the prior week. Def.’s Stmt. ¶¶ 163-64; Pls.’ Stmt. ¶¶ 163-64. When
Dangel simply asked Mason to provide him with a sufficiently compelling reason why he could
not attend the training session, Mason refused to provide the requested explanation and instead
tendered his resignation.104 Def.’s Stmt. ¶¶ 163, 166; Pls.’ Stmt. ¶¶ 163, 166. Simply put, no
reasonable trier of fact could conclude that a supervisor’s mere request for an explanation to
justify a successive leave request in the face of conflicting work responsibilities constitutes the
sort of “aggravating factor” that could compel a reasonable person to resign their employment.
Accordingly, the Secretary is entitled to summary judgment on this claim as well.
***
In sum, Mason has failed to adduce sufficient evidence to permit a reasonable trier of fact
to find in his favor on any of his claims. Therefore, the Court shall enter summary judgment in
the Secretary’s favor and dismiss Mason’s claims from this action.
C. Discussion Relating to Plaintiff Donovan Benton
Benton is pursuing six claims under Title VII, each of which is based on the contention
104
Despite Mason’s stated need to care for a family member in Memphis, Tennessee, he
found time to attend Freeman’s deposition in Washington, D.C., during the week in question. At
his own deposition, Mason indicated that attending the deposition was “more important” than
being present in Memphis. Mason Dep. at 127.
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that he was retaliated against, in one way or another, for his participation in the 2003 Litigation.105
Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 1, 23; Pls.’ MSJ Opp’n at 2, 6-7. First, Benton
claims that he was subjected to a hostile work environment.106 See Fourth Am. Compl. (Civil
Action No. 09-462) ¶¶ 1, 17; Pls.’ MSJ Opp’n at 31-40, 56-59. Second, Benton contends that his
non-selection for the ‘044 Position was unlawful. See Fourth Am. Compl. (Civil Action No. 09-
462) ¶ 17; Pls.’ MSJ Opp’n at 59-62. Third, Benton claims that his non-selection for the ‘322
Position was unlawful. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 17; Pls.’ MSJ Opp’n
105
Like Mason, at one point in his opposition, Benton appears to suggest that he engaged
in protected activity by sending various e-mails to his superiors and senior IRS management
complaining about his treatment in the workplace. See Pls.’ MSJ Opp’n at 62-64. While Benton
may have sent these e-mails, and while they may or may not constitute “protected activity” under
Title VII on their own, Benton has had no less than four opportunities to set forth his claims in
his pleadings, and those pleadings are unambiguous that the protected activity upon which he
brings suit is his participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No.
09-462) ¶ 23 (“Defendant . . . has discriminated against Mr. Benton in retaliation for his prior
protected civil rights activity, specifically his participation in the successful litigation of Civil
Action No. 03-1730 . . . .”) (emphasis added). “It is axiomatic that a complaint may not be
amended by the briefs in opposition to a [dispositive] motion,’” Arbitraje Casa de Cambio, 297
F. Supp. 2d at 170, and Benton’s belated attempt to depart from his pleadings is patently
impermissible and is rejected by the Court. Cf. Middlebrooks, 722 F. Supp. 2d at 89 (noting that
identifying the protected activity at issue is a pleading requirement); Hyson, 2011 WL 3489128,
at *11 n.16 (refusing to consider allegations of protected activity “bear[ing] no resemblance” to
the protected activity cited on the administrative level). Regardless, for the reasons set forth
below, even considering Benton’s allegations, the same result would obtain.
106
The Secretary argues that Benton failed to plead a hostile work environment claim.
See Def.’s MSJ Reply at 2. Unlike Gaines and Mason, Benton does not use the term “hostile
work environment” in describing his claims in the operative complaint, though he does allege
that he was the victim of “hostile” and “harassing” treatment. See Fourth Am. Compl. (Civil
Action No. 09-462) ¶¶ 1, 17. For purposes of resolving the pending motions, the Court shall
assume, without deciding, that these allegations sufficed to provide the Secretary of fair notice
that Benton intended to pursue a hostile work environment claim. See Steele, 535 F.3d at 694.
This assumption is particularly appropriate in this case because the Secretary’s counsel
represented to the Court prior to filing the pending motions that he understood “[a]ll of the
plaintiffs [to] have raised parallel claims of . . . hostile work environment.” Tr. of 5/13/10 Status
Hr’g (Civil Action No. 09-462) at 19.
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at 59-62. Fourth, Benton claims that his three-day suspension was unlawful. See Fourth Am.
Compl. (Civil Action No. 09-462) ¶ 17; Pls.’ MSJ Opp’n at 62-64. Fifth, Benton claims that his
fourteen-day suspension was unlawful. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 17;
Pls.’ MSJ Opp’n at 64-65. Sixth, Benton claims that his termination was unlawful. See Fourth
Am. Compl. (Civil Action No. 09-462) ¶ 17; Pls.’ MSJ Opp’n at 62-64. The Court addresses
each claim in turn.107
1. The Secretary Is Entitled to Summary Judgment on Benton’s Hostile Work
Environment Claim
Benton claims that he was subjected to a hostile work environment in retaliation for his
participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 1, 17;
Pls.’ MSJ Opp’n at 31-40, 56-59. For at least three independent reasons, the claim must fail.
a. Benton’s Opposition is Fundamentally Infirm
As was the case with Gaines’s and Mason’s submissions, Benton’s opposition in support
of his hostile work environment claim leaves much to be desired. In his opening memorandum,
the Secretary explains in considerable detail why he believes that the component-acts identified by
Benton as comprising his hostile work environment claim are non-actionable, either because they
are insufficiently adverse or because there is no evidence that they had any connection to Benton’s
participation in protected activity. See Def.’s MSJ Mem. at 73-81. Nonetheless, Benton offers no
107
These are the only six putative claims that Benton has actually identified and defended
in his opposition to the pending motions. See Pls.’ MSJ Opp’n at 56-66. In his opening
memorandum, the Secretary offers an exhaustive and compelling argument as to why a litany of
allegations raised by Benton in his complaint and in the course of discovery are not
independently actionable. See Def.’s MSJ Mem. at 73-84. In opposition, Benton neither claims
that his allegations in this regard are independently actionable nor provides a response to the
Secretary’s argument. Therefore, in an exercise of its discretion, the Court shall treat the
Secretary’s argument as conceded by Plaintiff.
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meaningful factual or legal analysis in support of his claim—none. Instead, he begins by reciting
the skeletal allegations in support of his claim seriatim, see Pls.’ MSJ Opp’n at 31-40, proceeds to
restate the legal standard governing hostile work environment claims generally, see id. at 56-59,
and then concludes by asserting simply that because he has “testified that [he was] subjected to
severe hostility on an almost daily basis,” then “there is an issue of fact regarding whether [he]
suffered from a hostile work environment,” id. at 57. In so doing, Benton ignores virtually every
argument raised by the Secretary. Inexplicably, Benton’s argument section of his opposition does
not even mention him, and instead focuses on Plaintiffs as a whole despite the stark differences in
their claims. In the final analysis, Benton’s opposition reduces to little more than legal
boilerplate, and amounts to an impermissible attempt to shift the burden to the Secretary and this
Court to sift through the record to ascertain the viability of his claim.
Moreover, with few exceptions, the only factual support for his allegations is his narrative
responses to interrogatories posed by the Secretary in discovery asking him to identify each act
relevant to his claim. See Pls.’ Interrog. Resps. No. 3, 5, 7. However, Benton failed to raise these
factual matters in the manner specifically prescribed by the Court. By the terms of this Court’s
prior orders, in responding to the Secretary’s statement of material facts, Benton was required to
set forth any additional facts that he considered germane to the pending motions at the end of his
responsive statement, a procedure that was designed to afford the Secretary a meaningful
opportunity to address whether any additional proffered facts were or were not genuinely in
dispute. See 6/11/09 Scheduling & Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10
Order (Civil Action No. 09-462) at 3; Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 21-
22. By burying his allegations in his sixty-eight page opposition memorandum or in response to
122
the Secretary’s proffered factual statements that he admits, Benton deprived the Secretary of this
opportunity. The Court considers it well within its discretion to disregard, and does disregard, the
allegations on this basis alone. However, even considering Benton’s allegations, his hostile work
environment claim must fail.
b. Benton Improperly Attempts to Incorporate Discrete Employment
Acts Into a Single Hostile Work Environment Claim
In setting forth the factual background that he considers relevant to his hostile work
environment claim, Benton identifies somewhere in the neighborhood of twenty-five component-
acts.108 See Pls.’ MSJ Opp’n at 31-40. Like Gaines and Mason, Benton has adopted a “kitchen
sink” approach to his hostile work environment claim, compiling a laundry list of employment
actions and lumping them together under the umbrella of a hostile work environment theory. He
makes no attempt to show that the alleged actions are related in time or type such that would
allow a reasonable trier of fact to conclude that they congeal into a coherent hostile work
environment. Indeed, Benton provides no meaningful factual or legal analysis of his hostile work
environment claim at all. Meanwhile, several of the component-acts identified by Benton in
support of his claim appear, on their face, to be the sort of discrete employment actions that are
not readily incorporated into a hostile work environment claim, including, but not limited to, the
following: the denial of his request for a transfer to the New Carrollton office, see supra Part
I.C.4; the denial of his request to be reassigned to another branch, see supra Part I.C.5; and the
handling of his requests for FMLA leave, see supra Part I.C.6. Nonetheless, Benton makes no
108
The parties’ descriptions and groupings of the component-acts do not perfectly align,
and for the purposes of clarity and convenience, the Court may describe and group the
component-acts in a manner slightly different than have the parties.
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effort to crystallize for the Court how these disparate acts could be seen by a trier of fact as
sufficiently related to coalesce into a single hostile work environment. While there is a consistent
theme of “stalking” in Benton’s allegations, see supra Part I.C.1,109 these particular acts are so
different in kind and remote in time from the remainder of Benton’s allegations that the Court can
see no basis to conclude that they comprise part of the same hostile work environment, and
certainly Benton has identified none.
c. Benton Fails to Adduce Sufficient Evidence that Would Permit a
Reasonable Trier of Fact to Conclude that the Component-Acts
Were Taken in Retaliation for His Protected Activity
Furthermore, Benton has failed to discharge his burden to adduce sufficient evidence to
“establish a causal connection between the [alleged] harassment and [his] protected activity.”
Lewis, 653 F. Supp. 2d at 141. Without exception, Benton has stated the alleged component-acts
in such summary and cursory form that they lack any indicia of retaliatory animus of any kind, let
alone a retaliatory animus specifically directed towards his participation in the 2003 Litigation.
Just as importantly, where the Secretary has proffered a non-retaliatory reason for a specific act,
Benton offers no contradictory evidence that would allow a reasonable trier of fact to conclude
that the proffered reason was pretextual. See Graham, 657 F. Supp. 2d at 217. Viewing the
record as a whole, no trier of fact could reasonably conclude that the acts complained of were
motivated by a retaliatory animus.110
109
As set forth below, Benton has failed to adduce sufficient evidence to allow a
reasonable trier of fact to conclude that his allegations of “stalking” had any connection to his
participation in protected activity or were sufficiently material to meaningfully contribute to a
severe or pervasive hostile work environment. See infra Part III.C.1.c.
110
Furthermore, the vast majority, if not all, of the component-acts identified by Benton
are so trivial that no reasonable trier of fact could conclude that they would meaningfully
124
First, with respect to the series of approximately fourteen “incidents” that allegedly
occurred between Benton and his supervisors in the approximately one-and-a-half-year period
extending from June 28, 2007, to January 9, 2009, Benton has provided only the barest of factual
content in connection with these incidents. See supra Part I.C.1. Benton makes no meaningful
attempt to establish that these incidents had any connection to his protected activity, let alone his
participation in the 2003 Litigation. Indeed, his allegations inevitably reduce to the bare and
unilluminating assertion that he personally found his supervisors’ actions to be “aggressive,”
“condescending,” “disruptive,” and “harassing.”111 While cursory allegations of this kind may
suffice in a complaint, they are patently insufficient to create a genuine dispute necessitating trial.
See Ass’n of Flight Attendants-CWA, 564 F.3d at 465-66 (conclusory allegations offered without
any factual basis in the record cannot create a genuine dispute sufficient to survive summary
judgment). At this stage of the proceedings, Benton bears the burden of production to designate
specific facts showing that there is a genuine dispute requiring trial, Ricci, 129 S. Ct. at 2677, and
he has simply failed to discharge that burden. Therefore, these allegations cannot support his
hostile work environment claim.
Second, with respect to his allegations concerning his interactions with his third-line
supervisor, Fayne, following his non-selection for the ‘044 Position, Benton has failed to point to
contribute to a severe or pervasive hostile work environment. Simply by way of example,
Benton repeatedly alleges that he was either handed, or witnessed another employee being
handed, “confidential” or “sealed” envelopes. Setting aside that such actions are devoid of
indicia of retaliatory animus, Benton fails to explain how they could possibly be viewed as
sufficiently hostile or abusive to meaningfully contribute to a hostile work environment claim.
This defect carries throughout Benton’s opposition.
111
When Benton does provide some minimal context to his allegations, the context that
he provides undermines, rather than supports, his contention that the “incidents” were retaliatory.
125
competent evidence from which a reasonable trier of fact could conclude that these interactions
had any connection to his protected activity. See supra Parts I.C.2 and III.B.2.c. Therefore, his
allegations in this regard cannot support his hostile work environment claim.
Third, with respect to Benton’s request for a transfer to the New Carrollton office, it is
undisputed that his third-line supervisor, Fayne, denied his request based on a general policy that
such transfers would not be considered because there was a moratorium on all relocations to the
New Carrollton office. Def.’s Stmt. ¶ 190; Pls.’ Stmt. ¶ 190. Benton, like Mason, contends that a
trier of fact could draw an inference of retaliation from the fact that another employee, Rolphs,
was granted a request to transfer, but it is undisputed that Rolphs was granted a request to transfer
to Rome, Italy, not the New Carrollton office. See supra Part III.B.1.c. In any event, Benton
makes no attempt to establish that he was similarly situated to Rolphs in all material respects.
More broadly, Benton has failed to adduce any evidence that would allow a reasonable trier of fact
to conclude that the denial of his request was in any way retaliatory. Therefore, it cannot support
his hostile work environment claim.
Fourth, with respect to Benton’s contention that his request to be reassigned to another
branch in the M&P Organization, Benton has adduced no evidence to contradict the Secretary’s
proffered justification that granting his request would impact all four branches of the organization
because it would require hiring a replacement to fill the vacancy that would be created by
Benton’s requested transfer. See supra Part I.C.5. Moreover, Benton’s supervisors in fact offered
Benton a reassignment to Fayne’s office, working in Balance Measures, further undermining any
potential inference of retaliation. See id. More broadly, Benton has failed to adduce any evidence
that would allow a reasonable trier of fact to conclude that the denial of his request was in any
126
way retaliatory. Therefore, it cannot support his hostile work environment claim.
Fifth, with respect to Benton’s requests for FMLA leave, the record establishes that his
first-line supervisor, Freeman, in fact granted Benton’s requests. See supra Part I.C.7. Benton
has failed to present any evidence that would allow a reasonable trier of fact to conclude that the
delay in granting the request, if any, was unreasonable. See id. Nor has he adduced any evidence
suggesting that Freeman acted improperly in obtaining the necessary approvals from his
supervisors. See id. More generally, Benton has failed to adduce any evidence that would suggest
that the handling of his FMLA requests had any nexus to his protected activity. Therefore, it
cannot support his hostile work environment claim.
Sixth, with respect to Benton’s 2007 performance appraisal, it is undisputed that Benton
received the highest rating possible, and in fact received a performance award. See supra Part
I.C.7. He has failed to adduce any evidence to suggest that there was an unreasonable delay in the
issuance of his performance appraisal or, more importantly, that any such delay had any
connection to his participation in protected activity. On this record, no reasonable trier of fact
could conclude that the actions of Benton’s supervisors were retaliatory. Therefore, these
allegations cannot support his hostile work environment claim.
Finally, in support of his hostile work environment claim, Benton cannot rely upon his
non-selection for the ‘044 Position, his non-selection for the ‘322 Position, his three-day
suspension, his fourteen-day suspension, or his termination. For the reasons set forth below, no
reasonable trier of fact could conclude that these actions were taken in retaliation for Benton’s
participation in protected activity. See infra Part III.C.2-6.
In the final analysis, Benton has failed to point to sufficient evidence to allow a
127
reasonable trier of fact to conclude that the component-acts identified as supporting his hostile
work environment claim were taken in retaliation for his prior protected activity. Viewing the
record as a whole, no trier of fact could conclude that Benton was subjected to an objectively
severe or pervasive hostile work environment. Accordingly, the Court will enter summary
judgment in the Secretary’s favor on Benton’s hostile work environment claim.
2. The Secretary Is Entitled to Summary Judgment on Benton’s Claim Based
on His Non-Selection for the ‘044 Position
Benton contends that his non-selection for the ‘044 Position was in retaliation for his
participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 17; Pls.’
MSJ Opp’n at 59-62. Benton’s arguments as to why a trier of fact could infer that his non-
selection was retaliatory are without merit. First, Benton’s contention that he had “superior
qualifications” lacks merit because he has failed to adduce sufficient evidence to allow a
reasonable trier of fact to conclude that he was “significantly better qualified” than the ultimate
selectee—Dangel. Adeyemi, 525 F.3d at 1227. Indeed, he fails to provide any meaningful
comparative analysis of his qualifications to the other candidates at all. Second, Benton’s
contention that Dangel was “apparently” pre-selected because Dangel began moving his
belongings before the selection had been announced, Pls.’ MSJ Opp’n at 28, is purely speculative.
In any event, Benton ignores the fact that there is nothing per se improper about “preselection,”
and he has failed to point to some indicia of retaliation attaching to Dangel’s alleged preselection
for the position. See Nyunt, 543 F. Supp. 2d at 39. Third, Benton has failed to show that either
the recommending official or the selecting official harbored a retaliatory animus against him. See
supra Part III.B.2.c. Fourth, Benton’s contention that the interview panelists were “biased and
unfair” are unsupported by competent evidence and, more importantly, are unaccompanied by
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evidence that would allow a reasonable trier of fact to conclude that any shortcomings in their
analysis of the candidate field had any connection to Benton’s participation in the 2003 Litigation.
Fifth, and finally, Benton’s contention that there was “an effort to cover up” Farah’s role in the
decisionmaking process is not supported by the record and, even if true, would undermine rather
than strengthen his case given the dearth of competent evidence to suggest that Farah harbored a
generalized retaliatory animus. See supra Part I.C.2. More broadly, Benton offers insufficient
evidence to permit a reasonable trier of fact to conclude that the Secretary’s decision was
pretextual. It is undisputed that Benton’s supervisors selected the highest rated candidate; Benton
was ranked third in a field of four. See id. Absent indicia of retaliation, this Court “must respect
[the Secretary’s] unfettered discretion to choose among qualified candidates.” Fischbach, 86 F.3d
at 1189. On this record, no reasonable trier of fact could conclude that the Secretary’s proffered
justification for Benton’s non-selection was pretextual. Accordingly, the Secretary is entitled to
summary judgment on this claim.
3. The Secretary Is Entitled to Summary Judgment on Benton’s Claim Based
on His Non-Selection for the ‘322 Position
Like Mason, Benton claims that his non-selection for the ‘322 Position in or about April
2007 was unlawful. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 17; Pls.’ MSJ Opp’n at
59-62. Also like Mason, Benton fails to adduce sufficient evidence to allow a reasonable trier of
fact to conclude that his non-selection for the ‘322 Position was in retaliation for his participation
in protected activity. Indeed, Benton’s arguments in support of his claim are coterminous with
those tendered by Mason, see Pls.’ MSJ Opp’n at 59-62, and are unavailing for the same reasons.
See supra Part III.B.2. More broadly, viewing the record as a whole, no reasonable trier of fact
could conclude that the Secretary’s proffered qualifications-based justification for Benton’s non-
129
selection was pretextual. It is undisputed that the application and review materials demonstrated a
“clear separation” between the ultimate selectee, Freeman, and the other four candidates, and both
Manno, as the ranking official, and the interview panel agreed that Freeman had the most
extensive managerial experience, demonstrated more relevant personal achievement than the other
candidates, and had an educational background that was superior or comparable to other
candidates. See supra Part I.B.2. Indeed, Benton was the fourth-ranked candidate out of a field of
five. See id. Ultimately, “[s]hort of finding that the employer’s stated reason was indeed a pretext
. . . the court must respect the employer’s unfettered decision to choose among qualified
candidates.” Fischbach, 86 F.3d at 1189. On this record, no reasonable trier of fact could
conclude that the Secretary’s proffered justification for Benton’s non-selection was pretextual.
Accordingly, the Secretary is entitled to summary judgment on the claim.
4. The Secretary Is Entitled to Summary Judgment on Benton’s Claim Based
on His Three-Day Suspension
Like Mason, Benton claims that his three-day suspension in March 2008 was imposed in
retaliation for his participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No.
09-462) ¶ 17; Pls.’ MSJ Opp’n at 62-64. However, like Mason, Benton has failed to adduce
sufficient evidence for a reasonable trier of fact to conclude that the Secretary’s proffered
justification for the suspension was not the actual reason and that the Secretary intentionally
retaliated against him. Indeed, Benton’s arguments in support of his claim are coterminous with
those tendered by Mason, see Pls.’ MSJ Opp’n at 62-64, and are unavailing for the same reasons.
See supra Part III.B.3. As was the case with Mason, after tolerating Benton’s prolix e-mails to
senior IRS officials for months, and after encouraging Benton to pursue his grievances through the
EEO apparatus or agency grievance process, Benton was issued a management directive
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instructing him to cease sending such communications. See supra Part I.C.8. Nonetheless,
Benton continued to e-mail senior IRS officials with complaints, requests for information, and
demands to address his workplace grievances. See id. After repeated warnings, Farah issued a
letter proposing Benton’s suspension without pay for three days, identifying thirteen instances in
which Benton was determined to have violated the management directive. See id. Like Mason,
Benton has adduced no evidence demonstrating that he was ever discouraged from raising his
myriad allegations of discrimination or retaliation in the workplace; the Secretary did not run
afoul of Title VII merely by directing Benton to raise those allegations through the appropriate
channels and not to senior IRS officials after tolerating Benton’s communications for months.
Def.’s Stmt. ¶ 216; Pls.’ Stmt. ¶ 216. Cf. Rollins, 868 F.2d at 399; Rattigan, 604 F. Supp. 2d at
49. While Benton may personally disagree with his supervisors’ interpretation of the directive,
that interpretation is “reasonable in light of the evidence.” Brady, 520 F.3d at 495 (citing George,
407 F.3d at 415). Benton has failed to adduce sufficient evidence to allow a reasonable trier of
fact to doubt that his supervisors “honestly and reasonably believed” that he had serially violated
the management directive. Id. at 496. For these reasons, and for the reasons set forth above in
connection with Mason’s parallel claim, see supra Part III.B.3, Benton has failed to adduce
sufficient evidence for a reasonable trier of fact to conclude that the Secretary’s proffered
justification for the suspension was not the actual reason and that the Secretary intentionally
retaliated against him. See Brady, 520 F.3d at 494. Accordingly, the Secretary is entitled to
summary judgment on the claim.
5. The Secretary Is Entitled to Summary Judgment on Benton’s Claim Based
on His Fourteen-Day Suspension
Benton claims that his fourteen-day suspension in August 2008 was imposed in retaliation
131
for his participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶
17; Pls.’ MSJ Opp’n at 64-65. However, Benton has failed to adduce sufficient evidence for a
reasonable trier of fact to conclude that the Secretary’s proffered justification for the suspension
was not the actual reason and that the Secretary intentionally retaliated against him. Benton has
admitted that he committed various tax infractions over the years, including the one that
ultimately led to his fourteen-day suspension on August 4, 2008. See supra Part I.C.9. Benton’s
claim that he “did not realize” the circumstances that led to his violation does not change the fact
that he has admitted to the underlying conduct at issue. Cf. Waterhouse, 298 F.3d at 995 (where
plaintiff “did not contravene—and in fact admitted—many of the deficiencies the defendants cited
concerning her performance, she failed to establish that her employer’s proffered reason was
unworthy of credence.”) (internal quotation marks, notations, and citations omitted).
Furthermore, these incidents constituted at the very least his second, and likely his third, incident
of tax non-compliance. Def.’s Stmt. ¶ 226; Pls.’ Stmt. ¶ 226. Regardless of whether the incident
was his second or third violation, both the proposed and actual suspension fell within the range of
recommended disciplinary action. See Def.’s Ex. SS (IRS Guide to Penalty Determinations) at
12. More broadly, Benton fails to adduce any evidence that would allow a reasonable trier of fact
to conclude that his suspension had any nexus to his participation in the 2003 Litigation. On this
record, no reasonable trier of fact could find in Benton’s favor. Accordingly, the Secretary is
entitled to summary judgment on the claim.
6. The Secretary Is Entitled to Summary Judgment on Benton’s Claim Based
on the Termination of His Employment
Sixth, and finally, Benton claims that his termination in January 2009 was in retaliation for
his participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 17;
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Pls.’ MSJ Opp’n at 62-64. For the same reasons described above, see supra Parts I.C.10, III.B.3,
and III.C.4, Benton has failed to adduce sufficient evidence that he was terminated because he
engaged in protected activity. On this record, the Secretary’s proffered justification that Benton
was terminated for serially sending e-mails to senior IRS official despite the contrary instructions
of his supervisors is “reasonable in light of the evidence.” Brady, 520 F.3d at 495 (citing George,
407 F.3d at 415). Benton has failed to adduce sufficient evidence to allow a reasonable trier of
fact to doubt that his supervisors “honestly and reasonably believed” that he had serially violated
the management directive. Id. at 496. For these reasons, and for the reasons set forth above,
Benton has failed to adduce sufficient evidence for a reasonable trier of fact to conclude that the
Secretary’s proffered justification for the termination was not the actual reason and that the
Secretary intentionally retaliated against him. See Brady, 520 F.3d at 494. Accordingly, the
Secretary is entitled to summary judgment on the claim.
***
In sum, Benton has failed to adduce sufficient evidence to permit a reasonable trier of fact
to find in his favor on any of his claims. Therefore, the Court shall enter summary judgment in
the Secretary’s favor and dismiss Benton’s claims from this action.
D. The Secretary’s Motion for Sanctions
In his Motion for Sanctions, the Secretary seeks the exclusion of evidence concerning a
meeting between Benton and his third-line supervisor, Fayne, on the basis that Benton admittedly
secretly recorded the conversation but destroyed the recording rather than producing it in the
course of discovery. Because the Court concludes that the Secretary is entitled to summary
judgment against all three plaintiffs even when considering the evidence the Secretary seeks to
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have excluded, it is unnecessary to reach the merits of the Secretary’s motion. The motion will be
denied as moot.
IV. CONCLUSION
For the reasons set forth above, the Court shall grant the Secretary’s Motion for Summary
Judgment, deny the Secretary’s Motion for Sanctions, and dismiss all three actions in their
entirety. Appropriate Orders accompany this Memorandum Opinion.
Date: September 12, 2011
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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