Hendricks v. Paulson

520 F.Supp.2d 65

Myra A. HENDRICKS, Plaintiff, v. Henry M. PAULSON, Jr.,¹ Secretary of the Treasury, Defendant.

Civil Action No. 03-2239 (RMC).

United States District Court, District of Columbia.

October 4, 2007.

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Robert C. Seldon, Molly E. Buie, Robert C. Seldon & Associates, PC, Washington, DC, for Plaintiff.

John F. Henault, Jr., U.S. Attorney's Office, Lydia Kay Griggsby, U.S. Senate Office Hart Senate Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Myra A. Hendricks was a Special Agent of the Treasury Inspector General for Tax Administration ("TIGTA") until she left that job on August 6, 2004. She instituted this lawsuit in 2003 and has amended it thereafter, bringing forth allegations that she suffered discrimination, harassment, and a hostile work environment, that she was retaliated against, and that she was constructively discharged, due to her race, African American, and gender, female, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.² Secretary of the Treasury Henry M. Paulson, Jr., sued in his official capacity, denies all allegations. After full discovery, Treasury moved for summary judgment in its favor. The Court has reviewed the extensive record and briefs with great care and concludes that there are no genuine and material fact issues in dispute and that summary judgment should be entered in Treasury's favor as a matter of law.

I. BACKGROUND FACTS

A. The Agency and Its Selection Policies

Pursuant to the IRS Restructuring Act, in 1998 the Office of Investigations of IRS Internal Security became the Washington Office of Investigations under the new Treasury Inspector General for Tax Administration ("TIGTA"). See Pl.'s Second Am. Compl. and Demand for Jury Trial [Dkt. # 49] ("SAC") ¶ 14. The name of the office changed two more times, eventually becoming the Special Inquiries and Inspection Division in 1999. Id. In 2002, the Special Inquiries and Inspection Division's name changed to the Special Inquiries and Intelligence Division ("SIID"). Id. SIID is the elite investigative division within TIGTA. Id. ¶ 16. Its special agents handle sensitive investigations, including allegations of misconduct by IRS Chief Counsel employees, the IRS Commissioner's Advisory Board, IRS Senior Executives, IRS GS-15 management officials, TIGTA Special Agents, and Internal Revenue Service Special Agents assigned to the Criminal Investigation Division. Id. ¶ 16. Special Agents in SIID conduct investigations, write reports of investigation, interview witnesses and complainants, work with the Office of the U.S. Attorney to prosecute subjects of investigations, and testify before grand juries. See id. ¶ 17.

The TIGTA Operations Manual contains the agency's policies, standards and procedures for Merit Staffing. See Chapter (600) 70.5 of the Operations Manual ("Operations Manual") (Def.'s Ex. 21). When selecting candidates for promotion to vacant positions, the TIGTA. must "formally evaluat[e] [all qualified/eligible candidates] against the knowledge, abilities, skills, and other characteristics (`KSAs') stated in the vacancy announcement ... determined to be important to the position being filled." Id. at 531-32.

To ensure the integrity and reliability of the candidate evaluation procedures, a merit staffing panel or ranking official will evaluate candidates against KSAs. Use of a panel or a ranking official is at the discretion of the selecting official. Panel members or ranking officials must be at least the grade level of the position to be filled. The panel members for all supervisory positions must be supervisors themselves. If a panel is used, it shall be generally composed of three members. "Whenever possible, at least one (and preferably two or more) voting members will have a substantive/technical knowledge of the position to be filled ... The primary function of the panel/ranking official will be to rank all basically qualified candidates against established evaluation criteria. The outcome of this process is a determination of the best qualified candidates.

Id. at 532. TIGTA policy indicates that "[t]he selecting official has the discretion to interview or not interview any noncompetitive³ applicant certified for selection." Id. With respect to competitive applicants, TIGTA policy indicates that if one competitive applicant is interviewed, then all competitive applicants must be interviewed. Id.

B. The Claims

Ms. Hendricks is an African-American woman who was a GS-13 Special Agent in TIGTA until August 6, 2004. She began working for the IRS in 1984 as a GS-4 secretary in the Collection Division and worked her way up until she was promoted to the position of Special Investigator, G13, in 1997. SAC ¶¶ 1-2. Ms. Hendricks complains that she was passed over for promotion on four occasions, subjected to unwarranted discipline, denied career-enhancing "acting" assignments to fill in for absent superiors, subjected to harassment and a hostile work environment, and constructively discharged.

1. 2000 Application for GS-14 Criminal Investigator (TG2011)

Ms. Hendricks applied for the position of GS-14 non-supervisory criminal investigator in March 2000, pursuant to Vacancy Announcement TG2011. SAC ¶ 39. Robert Johnson, a white male, was selected for the position. Id.

Then-Assistant Special Agent in Charge ("ASAC") Tim Camus served as the ranking official for TG2011. Deposition of Timothy Camus ("Camus Dep.") at 68. He used four ranking criteria⁴ and gave points to each applicant on the Best Qualified List accordingly. Id. at 73-75. Robert Johnson (Caucasian male), Jean Keller (Caucasian female), and Michael Radetic (Caucasian male) all received a score of 10 on each of the four criteria. Ms. Hendricks received a rating of 7 for the first criterion, 10 for the second, 7 for the third, and 10 for the fourth. Mr. Camus states that he did not give Ms. Hendricks a higher score on the first criterion because her submission did not indicate that she had used confidential informants or confidential sources or that she had "generated proactive investigative accomplishments." Camus Decl. 6/7/02 at 5. Mr. Camus states that he did not give Ms. Hendricks a higher score on the third criterion because her submission did not indicate "that she prepared reports concerning highly sensitive, complex, multi-agency-multi allegation investigations." Id. As discussed below, Ms. Hendricks challenges these statements.⁵ Mr. Camus recommended that Mr. Johnson be promoted. Id. The selecting official, then-Special Agent in Charge ("SAC") Brian Dwyer, selected Mr. Johnson for the position on March 23, 2000. Def.'s Facts ¶ 8.

Ms. Hendricks asserts that she was more qualified for the job than Mr. Johnson. SAC ¶ 40. She also alleges that Mr. Johnson had a history of misconduct which compared badly to her unblemished record. Id. ¶¶ 42-43. In 1991, Mr. Johnson had engaged in a fistfight when he had been drinking while off duty. Although off duty, he was wearing his official firearm, which he lost in the melee. Deposition of Robert Johnson ("Johnson Dep.") at 48-50; Pl.'s Mem. of P. & A. in Opp'n to Mot. for Summ. J. ("Pl.'s Opp.") at 13. The firearm was returned to TIGTA by the Laurel, Maryland, police. Id. In addition, in 1995, Mr. Johnson was suspended for two days for using his government-owned vehicle ("GOV") to, inter alia, transport two unauthorized passengers. Johnson Dep. at 55-59. Mr. Dwyer discussed Mr. Johnson's disciplinary record with his supervisor prior to the selection and determined that it was "`not a problem' to bring Mr. Johnson into SIID because he had fulfilled his punishment." Deposition of Bryan Dwyer ("Dwyer Dep.") at 67; Pl.'s Opp. at 14. At least one other manager in SIID disagreed and thought that Mr. Johnson could never investigate other persons "`based on his own integrity issues.'" Pl.'s Opp. at 14 (citing Deposition of ASAC Karen Parker-McGill ("Parker-McGill Dep.") at 20).

The Application Package for Mr. Johnson, Def.'s Mem., Ex. 6, shows that Mr. Johnson had worked as a criminal investigator for the IRS and TIGTA for fourteen years in the Baltimore Field Division. His experience included undercover operations, joint investigations with other federal law enforcement agencies, an internal investigation of a TIGTA Special Agent, an investigation into the kidnapping of an IRS criminal investigator, and international investigations. Id. at 5-7. He received performance awards in 1987, 1990, 1991, 1996, 1997, 1998, and 1999, as well as various manager's awards and special act awards. Id. at 7-8. In his most recent performance appraisal before his promotion, covering June 1, 1998 to May 31, 1999, Mr. Johnson received five out of five, the highest score possible, for the following job elements: Conducting Investigations, Preparation of Reports, Inventory Management, Interpersonal Skills, and Other Assignments and Duties. Id. at 9. He received a grade of four for Case Development. Id. According to his evaluation, Mr. Johnson's written products were "meticulously prepared," "clear, complete and concise," "timely and with no need for correction," "identified all aspects of the issues being presented," "prepared in a manner that allows the reader to quickly and easily understand the entire scope of the investigation," and had "few equals." Id. at 13.

The Application Package for Ms. Hendricks, Def.'s Mem., Ex. 7, shows that she became a criminal investigator in May 1992 and had eight years' experience. From 1993 until 2000, Ms. Hendricks served as a Technical Service Officer and then a Regional Technical Service Officer ("RTSO") in addition to her duties as a criminal investigator.⁶ Deposition of Myra Hendricks ("Hendricks Dep.") 7/6/05 at 17-22. Ms. Hendricks's application indicates that she received...