United States District Court, D. Colorado
MELEAHA R. GLAPION, Plaintiff,
JULIAN CASTRO, Secretary, U.S. Department of Housing and Urban Development, Defendant.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Before the Court are two motions: Defendant’s Motion for Summary Judgment [filed March 31, 2015; docket #106], and Defendant’s Motion for Summary Judgment Regarding Plaintiff’s Freedom of Information Act (“FOIA”) Claim [filed April 21, 2015; docket #108] (the “Motions”). The Motions are fully briefed, and the Court finds that oral argument will not assist in its adjudication of the Motions. Based on the record herein and for the reasons that follow, the Court grants the Motions.
I. Procedural History
Plaintiff, proceeding pro se, initiated this action on June 18, 2014. Complaint, docket #1. Plaintiff shortly thereafter moved for appointment of pro bono counsel, which U.S. Magistrate Judge Boyd Boland, the presiding judge on this case before his retirement and the reassignment to this Court, denied as premature. See dockets ##5, 6, 9. After reassignment, both parties consented to magistrate judge jurisdiction. See docket #27.
Plaintiff’s claims arise from her employment as a Management Analyst for the United States Department of Housing and Urban Development (“HUD”) and her removal from that position on March 30, 2012. She alleges her supervisors disciplined her on the basis of her race, color, and sex, and in retaliation for making whistleblowing disclosures. See docket #40. Before filing the present action, Plaintiff challenged her removal and discipline through the Merit System Protection Board (“MSPB”) and Equal Employment Opportunity (“EEO”) procedures. The operative pleading - Plaintiff’s Third Amended Title VII Complaint - asserts eight claims for relief; however this Court on February 4, 2015, dismissed the whistleblowing, harmful procedural error, and constitutional claims. See docket #94. Thus, Plaintiff’s remaining claims under consideration in these Motions are: (1) Title VII discrimination based on race, sex, and color; (2) Title VII hostile work environment; (3) Title VII retaliation; (4) Fair Labor Standards Act (“FLSA”) violation; and (5) Freedom of Information Act (“FOIA”) violation.
Plaintiff in February 2015, while the Motion to Dismiss was pending, again sought appointment of pro bono counsel from the Civil Pro Bono Panel, which the Court granted. See dockets ##93, 95. The Pro Bono Panel appointed counsel on April 16, 2015 [see docket #107], but the attorney declined the appointment on May 14, 2015 [see docket #122]. Plaintiff then filed a response to the Motions and an accompanying declaration [see dockets ##111, 111-1], which the Court struck as they included “more than 500 pages of meandering, repetitive argument and, often, unnecessary prose, ” ordering Plaintiff to revise and refile her brief, limiting its length, and providing her guidance on how to focus her arguments to the Motions at hand [see docket #121]. Plaintiff refiled her response on June 12, 2015 [see docket #126], which the Court again struck as it failed “to address directly any of Defendant’s more than 300 statements of undisputed facts” and spent “80 pages essentially reiterating her Complaint, leaving the Court with practically no ability to determine whether there are remaining disputed material facts” [see docket #129]. The Court gave explicit instructions to Plaintiff to respond, cite, organize, and be brief, warning Plaintiff that any deviation from the Court’s order would “result in the Court adopting Defendant’s version of the facts as true in the consideration of the pending Motions.” Docket #129. The Court also ordered Plaintiff to provide paper copies of her forthcoming response and accompanying exhibits. Id.
Plaintiff then on August 7, 2015, moved for administrative closure of the case based on personal and professional challenges. See docket #134. The Court held a hearing on August 12, 2015, denying that motion but allowing Plaintiff additional time to file her modified response. See docket #136. Plaintiff then timely filed her Response (combined for both Motions) on September 6, 2015. See docket #137 (with exhibits at dockets ##138-45, spanning multiple docket entries because of the many exhibits and the manner in which Plaintiff filed them). Defendant timely filed his Reply on September 25, 2015. Plaintiff requested and the Court allowed a Surreply, which Plaintiff filed on October 12, 2015. See dockets ##147-49.
II. Findings of Fact
The Court makes the following findings of fact viewed in the light most favorable to Plaintiff, who is the non-moving party in this matter.
1. Plaintiff’s race is Black American, her color is black, and her sex is female. Docket #38 at 6.
2. Plaintiff’s only work for the federal government before HUD was as an intern at the Social Security Administration in 1999. Ex. 1 (Plaintiff’s Dist. Ct. Depo.) at 6:10-19.
3. Plaintiff was hired by HUD as a Federal Career Intern (“FCI”) effective April 28, 2008. Docket #38 at 6.
4. As an FCI, Plaintiff was assigned two years of training and developmental assignments. Docket #38 at 6.
5. When Plaintiff started as an FCI, Plaintiff’s “targeted office” was HUD’s Region VIII Field Policy and Management (“FPM”) office, meaning that at the completion of the two-year FCI program, she would work in the Region VIII FPM Office. Ex. 2 (Griswold Decl.) ¶ 1.
6. As an FCI, Plaintiff served “rotations” through various HUD offices, meaning that she worked in a range of program offices for specific periods in order to acquire cross-program knowledge and develop professional skills. Ex. 2 ¶ 1.
7. FPM is the direct face of HUD in the communities it serves. It interacts locally with elected officials to ensure that the policies for which HUD is responsible are implemented. It is ultimately responsible for all HUD programs in the region. Ex. 3 (MSPB Hearing Day 1) 223:19-224:1.
8. The basic duties of HUD’s FPM office are to:
(a) act as a front office to ensure delivery of the 48 basic housing programs for which HUD is charged with providing service;
(b) provide direct customer service to elected officials;
(c) provide customer service to recipients of or participants in HUD programs;
(d) provide customer service to the media and general public;
(e) provide customer service to internal clients made up of the basic program offices that comprise HUD;
(f) respond to FOIA requests;
(g) be responsible for White House and secretarial initiatives; (h) be responsible for strategic planning to achieve HUD’s goals; (i) be responsible for special events; and,
(j) build consensus with stakeholders, elected officials, and program offices.
Ex. 3 at 10:10-11:7; 12:10-13:22.
9. FPM is one of HUD’s six basic program offices, which also include: Office of Public Housing; Office of Multifamily Housing; Office of Single-Family Housing; Office of Native American Programs, Fair Housing and Equal Opportunity; and Office of Community Planning and Development. Ex. 3 at 11:1-7.
10. Plaintiff did not serve any rotations in Multifamily Housing while she was an FCI. Ex. 3 at 116:23-117:4.
11. Plaintiff was scheduled for a rotation in Multifamily Housing while an FCI, but that was deferred and never completed because Plaintiff was on a different rotation. Ex. 4 (MSPB Hearing Day 2) at 10:5-8.
12. Plaintiff was converted from an FCI to permanent competitive status on May 9, 2010. Docket #38 at 6.
13. Plaintiff’s conversion on May 9, 2010, was to the position of Management Analyst, GS-12, in FPM. Ex. 6 (Plaintiff SF effective May 9, 2010).
14. Plaintiff alleges that she should have been converted into a GS-13 position as of the date of her conversion. Ex. 1 at 104:10-21.
15. FPM Management Analysts were given assignments to further FPM’s work. Ex. 3 at 13:24-14:2.
16. The people Plaintiff alleges discriminated against her are as follows, based on race (Ex. At 234:23-235:4), color (Ex. 1 at 249:9-15), sex (Ex. 1 at 253:1-8), and retaliation (Ex. 1 at 254:20-255:1):
(a) Rick Garcia, who is the Regional Administrator for HUD Region VIII and was appointed by the Obama administration in January 2010, and took the oath of office in March 2010 (Ex. 3 at 222: 17-24)
(b) Deborah Griswold, Deputy Regional Administrator for HUD Region VIII, who served from just after Plaintiff started as an FCI until mid-August 2010 (Ex. 7 (Griswold Dist. Ct. Dep.) at 13:15-14:4);
(c) Dan Gomez, Jr., Deputy Regional Administrator for HUD Region VIII, who served from mid-August 2010 until after Plaintiff was removed on March 30, 2012 (Ex. 3 at 8:7-13, 89:10-17; Plaintiff’s Exh. 20 (EEOC transcript) docket #145-14);
(d) Jane Goin, Public Affairs Officer for HUD Region VIII FPM office from before Plaintiff arrived until December 2011, when she retired (Ex. 4 at 51:1-20; Ex. 8 (Dec. 27, 2011 email));
(e) Donald Gerrish, Employee and Labor Relations Specialist for HUD Region VIII office from August 30, 2010, until present. (Ex. 9 (Gerrish Decl.) ¶ 1).
17. The Region VIII FPM is organized as follows: the Regional Administrator (who is an Obama administration appointee) supervises the Deputy Regional Administrator; the Deputy Regional Administrator supervises everyone else in the FPM office; and the Deputy Regional Administrator also supervises Field Office Directors. Ex. 10 (Garcia Decl.) ¶ 1.
18. HUD’s Region VIII includes Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. Ex. 10 ¶ 2.
1) October 28, 2010 counseling based on email to presidential appointee
19. On October 28, 2010, Gomez sent Plaintiff an email “counseling” her regarding an email she sent to Obama-appointee Garcia on October 27, 2010. Ex. 11 (Oct. 28, 2010 email) (authenticated at Ex. 1 at 174:25-175:11).
20. Plaintiff’s October 27, 2010 email to Garcia stated that she wanted to “provide [Garcia] with just enough information on the subject of homelessness so that [Garcia] could make informed decisions (with accurate/supporting information) while avoiding the temptation of giving misinformation.” Ex. 11.
21. In the same email, Plaintiff wrote to Garcia, “I need you to become better versed; confident; and comfortable serving as FRICH’s [Federal Regional Interagency Council on Homelessness] chair.” Ex. 11.
22. Gomez believed that Plaintiff’s October 27, 2010 email to Garcia chastised Garcia, issued him expectations, and failed to show proper deference to a supervisor. Ex. 3 at 50:19-21.
23. Gomez believed that the tone and tact of Plaintiff’s October 27, 2010 email to Garcia was inappropriate, specifically Plaintiff’s assessment of Garcia’s performance and commitment and her implicit accusation of Garcia providing misinformation. Ex. 11.
24. Plaintiff has not seen any emails to Garcia in which a HUD employee took a tone with him similar to what she did in her October 27, 2010 email to him. Ex. 1 at 179:2-6.
2) April 4, 2011 official reprimand based on communications with organizer of homelessness conference
25. On April 4, 2011, Garcia issued Plaintiff a Notice of Letter of Reprimand following a Notice of Proposal to Suspend for Seven Calendar Days dated February 9, 2011 (“February 2011 Proposal”), and issued by Gomez. Ex. 12 (authenticated at Ex. 1 at 186:9-16).
26. The February 2011 Proposal informed Plaintiff that she could submit a written and oral response. Ex. 12 at 2.
27. On March 10, 2012, Plaintiff’s union representatives submitted Plaintiff’s written response and made an oral response to Garcia. Ex. 12 at 2; Ex. 1 at 186:22-188:8.
28. In his April 2011 decision, Garcia found that Plaintiff had committed two types of misconduct: (1) directly soliciting a gift, and (2) attempted use of public office for private gain. Ex. 12.
29. Garcia made his misconduct decision based on the evidence in the February 2011 Proposal, as well as the written and oral responses Plaintiff provided on March 10, 2011.
30. Regarding the charges of misconduct, the February 2011 Proposal contained the following evidence. Ex. 13 (authenticated at Ex. 1179:12-181:12).
(a) A December 6, 2010 email from Plaintiff to Organizer of the 2011 National Conference on Ending Family Homelessness stating: “Newly assigned as U.S. Department of Housing and Urban Development Region VIII’s Federal Regional Interagency Counsel on Homelessness (“FRICH”) Point of Contact (“POC”), it was in my current event research that I came across information on the 2011 National Conference on Ending Family Homelessness. To that end and per the copied information below, I would like to volunteer.” Ex. 13 at 6.
(b) The copied information stated that there were “opportunities to volunteer” and that volunteers would “receive complimentary registration.” Ex. 13 at 7.
(c) A memorandum from HUD’s Office of General Counsel (“OGC”) as to whether Plaintiff’s email violated federal government ethical standards. Ex. 13 at 8.
(d) HUD’s OGC memorandum considered a variety of facts, including that the regular conference registration was $450, Plaintiff considered the conference a training opportunity and would attend during duty hours, and the conference is composed of homelessness advocates and professionals who do business with HUD. Ex. 13 at 8-10.
(e) HUD’s OGC considered whether Plaintiff’s actions violated 5 C.F.R. § 2635.202(a)(1), which prohibits a federal employee from soliciting or accepting a gift from a prohibited source or given because of the employee’s official position. Ex. 13 at 9.
(f) HUD’s OGC concluded that Plaintiff did violate that provision by requesting a volunteer position in exchange for conference registration. Ex. 13 at 9-10.
(g) HUD’s OGC further concluded that Plaintiff created an appearance of impropriety, and thus violated the ethical prohibition against using her HUD title to attempt to influence the competitive process used by the conference to select volunteers. Ex. 13 at 10.
(h) HUD’s OGC also stated: “What makes Ms. Glapion’s conduct here especially disconcerting is that she received explicit written and oral advice from my office less than [a] month ago on many of the ethics principles relevant here.” Ex. 13 at 10.
(i) HUD OGC memorandum also attached an email and earlier memorandum dated November 19, 2010, to Plaintiff providing her with ethical advice regarding the use of her HUD position for personal gain or to receive preferential treatment, among other things. Ex. 13 at 11-15.
31. In the February 2011 Proposal, Gomez analyzed the 11 factors (commonly known as the “Douglas factors”) as well as HUD’s Table of Offenses and Penalties and recommended a seven-day suspension. Ex. 13 at 2-4.
32. In the April 2011 decision, Garcia also analyzed the Douglas factors and decided to issue a Letter of Reprimand. Ex. 12 at 1-4.
3) June 13, 2011 reprimand based on not completing duties for public event
33. On June 13, 2011, Goin issued Plaintiff an Official Reprimand for Refusal to Comply with a Proper Order based on Plaintiff’s failure to complete assignments Goin gave her on May 4, 2011, and May 8, 2011. Ex. 14 (authenticated at Ex. 1 at 192:3-17).
34. On May 4, 2011, Goin assigned Plaintiff various tasks related to Garcia being a key note speaker at a public event at Creekside West (which created housing for seniors) to take place on May 11, 2011. Ex. 14 at 3, 4.
35. On May 8, 2011, Goin assigned Plaintiff various additional tasks related to the Creekside West event and instructed Plaintiff to complete the tasks by the end of the day on May 9, 2011. Ex. 14 at 3.
36. To complete the first two assignments made on May 4, 2011 (to reserve a GSA car and print out driving directions), it would have taken about seven minutes. Ex. 1 at 199:16-200:4.
37. Plaintiff worked on May 5, 2011. Ex. 1 at 205:4-10.
38. Plaintiff worked a ten-hour day on May 9, 2011. Ex. 1 at 204:21.
39. Plaintiff did not complete the tasks assigned by May 10, 2011, and Goin had to stop working on Goin’s own assignments to complete the tasks assigned to Plaintiff. Ex. 4 at 70:14-18.
40. When Plaintiff returned to work on June 7, 2011, Goin asked Plaintiff why she did not complete the tasks, and Plaintiff responded: “I’m without much further explanation for not completing the assignment below [sic] [COB [“close of business”] on Monday 05/9/11 other than that I wasn’t feeling well and overlooked this email you sent me on Sunday 05/08/11. I apologize for the inconvenience caused. Surely it’s not in my norm not to have things completed as instructed and by/before set deadlines.” Ex. 15 (authenticated at Ex. 1 at 205:20-23).
4) October 27, 2011 four-day suspension based on incomplete assignments and improper leave
41. On October 27, 2011, Garcia issued Plaintiff a four-day suspension (“the October 2011 Decision”) following a Notice of Proposal to Suspend for Fourteen Calender Days dated August 15, 2011 (“the August 2011 Proposal”) issued by Goin. Ex. 16 (authenticated at Ex. 1 at 231:20-232:1).
42. The August 2011 Proposal informed Plaintiff that she could submit a written and oral response. Ex. 17 (authenticated at P Ex. 1 at 231:11-16).
43. Regarding the charges of misconduct, the August 2011 Proposal contained the following evidence:
(a) Goin gave Plaintiff an assignment on July 11, 2011, to update a weekly report, but Plaintiff did not complete it on time, and the work Plaintiff later completed had errors. Ex. 17 at 1 and 9.
(b) Goin assigned Plaintiff to complete certain letters, but Plaintiff did not complete them in accordance with the departmental correspondence procedures, and when Goin asked Plaintiff to revise the letter in accordance with those procedures, Plaintiff did not do so. Ex. 17 at 1-2 and 12-55.
(c) Goin instructed Plaintiff on June 29, 2011, not to email Pat Hoban-Moore (then a HUD Assistant Deputy Secretary and head of FPM in Washington, D.C.) with requests for sick leave without giving Goin or Garcia the chance to address such requests first. Ex. 17 at 2 and 10-11. Yet, on July 21, 2011, Plaintiff emailed Hoban-Moore, among others, telling her that Plaintiff was going out on emergency leave; Plaintiff did not send that email to Goin or Garcia. Ex. 17 at 2-3 and 10-11.
(d) On July 12, 2011, Goin and Plaintiff had a meeting to discuss work assignments, and Goin thought Plaintiff was rude. Ex. 17 at 2-3.
(e) On July 21, 2011, Plaintiff left work before the end of her work schedule without informing Goin or requesting leave. Ex. 17 at 3.
44. In the August 2011 Proposal, Goin analyzed the Douglas factors and recommended a 14-day suspension. Ex. 17 at 3-6.
45. On September 25, 2011, Plaintiff provided Garcia with a written and oral response to the August 2011 Proposal. Ex. 1 at 232:2-11.
46. In the October 2011 Decision, Garcia found that Plaintiff committed four types of misconduct: (1) refusal to comply with proper order; (2) rude conduct; (3) absent without leave; and (4) failure to follow leave procedures. Ex. 16 at 1-2.
47. Garcia made the October 2011 Decision based on the evidence in the August 2011 Proposal as well as the written and oral responses Plaintiff provided on September 25, 2011. Ex. 16 at 1.
48. In the October 2011 Decision, Garcia also analyzed the Douglas factors and decided to suspend Plaintiff for four days. Ex. 16 at 2-5.
49. In making the October 2011 Decision, Garcia took into account, among other things, that Plaintiff had previously received two Official Reprimands, one on June 13, 2011, for refusal to comply with proper orders, and one on April 4, 2011, for directly soliciting a gift and attempted use of public office for private gain. Ex. 16 at 2.
5) March 30, 2012 removal based on refusal of Multifamily rotation, checking out laptop, and rude email
50. On March 29, 2012, Garcia decided to remove Plaintiff from federal employment (“the March 2011 Removal Decision”) following a Notice of Proposed Removal dated February 23, 2012, (“the February 2012 Proposal”) issued by Gomez. Ex. 18 (authenticated at Ex. 1 at 230:3-8).
51. Regarding the misconduct charges, the February 2012 Proposal contained the following evidence.
(a) Emails in January 2012 assigning Plaintiff to complete a rotational assignment to the Denver Multifamily Hub. Ex. 19 at 8-19.
(b) Emails in January 2012 in which Plaintiff refused to comply with the January 2012 rotational assignment order. Ex. 19 at 13, 16-17.
(c) Emails dated January 6, 2012 and January 10, 2012, from Gomez to Plaintiff explaining that he would not offer any official time or authorize use of government equipment outside of Plaintiff’s approved work schedule. Ex. 19 at 22, 26.
(d) A request by Plaintiff to Denver OCIO (HUD’s IT department) checking out a laptop and aircard to “perform work matters over the weekend.” Ex. 19 at 33.
(e) On January 31, 2012, Plaintiff emailed Gomez to inform him that she was refusing a rotational assignment with the Denver Multifamily Hub and stating: “If my opposition constitutes you/HUD FPM Management proposing and issuing me yet another adverse action with the charge of ‘Refusal to Comply with Proper Order, ’ then please advise time/date of proposed disciplinary hearing.” Ex. 19 at 17.
52. The February 2012 Proposal informed Plaintiff that she could submit a written and oral response. Ex. 19 at 5 (authenticated at Ex. 1 at 213:2-7).
53. On March 20, 2012, Plaintiff submitted a written response and made an oral response to the February 2012 Proposal. Ex. 1 at 230:14-20.
54. In the March 2012 Removal Decision, Garcia found that Plaintiff committed three types of misconduct: (1) refusal to comply with order; (2) failure to follow directives; and (3) rude conduct towards her supervisor. Ex. 18 at 1-2.
55. Garcia made the March 2011 Removal Decision based on the evidence in the February 2012 Proposal as well as the written and oral responses Plaintiff provided on March 20, 2012. Ex. 18 at 1.
56. Before making his removal decision, Garcia consulted with the Labor and Employee Relations Officer assigned to the region and with the Office of the Regional Counsel. Ex. 3 at 226:13-16.
i) Multifamily Rotation: Reasons for Concern
57. Gomez ordered Plaintiff to complete a rotational assignment to the Denver Multifamily Hub. Ex. 1 at 219:8-11.
58. Plaintiff did not complete a rotational assignment to the Denver Multifamily Hub. Ex. 1 at 219:23-220:3.
59. Gomez believed that it was crucial for Management Analysts to have an understanding of all of HUD’s program in order to do their jobs, in particular GS-12 Management Analysts; at a minimum, GS-12 Management Analysts should have a general understanding of the basic programs in HUD’s six main offices, including Multifamily, because calls to FPM are varied and the White House and Secretary expect FPMs to understand the basics of HUD programs. Ex. 3 at 14:3-21.
60. Shortly after Gomez began supervising Plaintiff in November 2011, he had a meeting with Plaintiff and discussed rotations with her. Ex. 3 at 18:21-19:25.
61. Gomez understood from the meeting that Plaintiff had not had rotations regarding Insured-Mortgage programs, Multifamily Housing, or Single-Family Housing. Ex. 3 at 18:21-19:25.
62. Garcia thought that the rotational assignment to Plaintiff to Multifamily Housing was appropriate because he believed that it would have expanded her knowledge in one of the largest and key divisions of HUD, Plaintiff had never worked in Multifamily Housing before, and the knowledge obtained there would have been beneficial to her as an FPM employee. Ex. 18 at 1.
63. Gomez also believed that at the time he assigned Plaintiff to a rotation in Multifamily Housing that the program needed help to reduce a backlog of work. Ex. 3 at 152:3-9.
64. Multifamily Housing is one of the larger program areas in HUD and works very closely with FPM. Ex. 3 at 307:4-20.
65. Garcia believed that assigning Plaintiff a rotation in Multifamily Housing was consistent with Plaintiff’s job title as Management Analyst. Ex. 3 at 289:17-18.
66. Plaintiff did not know everything about Multifamily Housing and could have learned more about it by serving the rotation. Ex. 1 at 220:9-14.
ii) Laptop: Reasons for Concern
67. In January 2012, Plaintiff was not approved to telework or to work overtime. Ex. 3 at 45:19-22.
68. Gomez was concerned about Plaintiff working outside of her work schedule because of agency obligations to pay employees working outside of their work schedules. Ex. 3 at 46:7-10, 48:9-10.
69. Plaintiff never had any work from FPM that required her to work on the weekend. Ex. 1 at 227:5-6.
70. Gomez did not believe that Plaintiff had any reason to check out a laptop to perform work. Ex. 3 at 215:9-11.
71. Gomez was informed by a HUD Information Technology employee that Plaintiff checked out a laptop and took it home. Ex. 3 at 43:8-15.
iii) Email: Reasons for Concern
72. Gomez believed that Plaintiff’s January 31, 2012 email was rude because he thought that it essentially encouraged and urged him to issue discipline and was a clear, overt challenge. Ex. 3 at 181:24-182:1.
73. Garcia believed that Plaintiff’s January 31, 2012 email (noted in Fact 51(e) above) was rude because he believed that it taunted the supervisor by saying to bring it on, and that it was inappropriate for any employee to talk to her supervisor that way. Ex. 3 at 282:7-13.
6) Reasons for Selection of Penalty
74. In the February 2012 Proposal, Gomez analyzed the Douglas factors and recommended that Plaintiff be removed. Ex. 19 at 2-5.
75. In making that recommendation, Gomez considered that in the prior 14 months, Plaintiff had received four disciplines:
(a) a counseling memorandum on October 28, 2010, for inappropriate conduct and failure to show deference to a Regional Administrator;
(b) an Official Reprimand on April 4, 2011, for directly soliciting a gift and attempting to use public office for private gain;
(c) an Official Reprimand on June 13, 2011, for refusal to comply with proper orders; and
(d) a four-day suspension on October 27, 2011, for refusal to comply with proper order, rude conduct, absent without leave, and failure to follow leave procedures. Ex. 19 at 3.
76. Gomez believed that Plaintiff’s misconduct issues showed a pattern with each offense becoming a little more assertive and aggressive and without any demonstrable improvement in performance. Ex. 3 at 39:22-25.
77. Gomez proposed removal instead of some other discipline because, in his view, there was no evidence that disciplinary action deterred Plaintiff or that she had any desire of being rehabilitated through her own accord or through any efforts of HUD to provide her opportunities to succeed. Ex. 3 at 55:10-24.
78. In his March 2012 Decision, Garcia also analyzed the Douglas factors and decided to remove Plaintiff. Ex. 18 at 2-5.
79. In making that decision, Garcia took into account, among other things, the discipline Plaintiff had previously received as detailed in Fact 75 above. Ex. 18 at 2.
80. In considering the previous discipline, Garcia would have hoped to have seen levels of change or improvement in conduct that would have allowed a good working relationship to go forward, but Garcia did not think that there was any evidence that the situation was going to improve. Ex. 3 at 238:9-21.
III. Changes in Duties and Supervisors
81. The Position Description for Plaintiff’s job listed “Major Duties and Responsibilities” including: (a) “(9) Finalizes and ensures distribution of approved press releases and coordinates or assists in the coordination of, related major public affairs activities and outreach events”; and (b) “(16) Perform other job related duties as assigned.” Ex. 22 at 8-9 (authenticated by Ex. 22 ¶ 1).
82. Griswold did not supervise any other FCI interns when she supervised Plaintiff. Ex. 4 at 19:20-24.
83. After Plaintiff converted to the Management Analyst position, her duties included working with reestablishing the Federal Regional Interagency Council on Homelessness (“FRICH”), supporting the Public Affairs Officer (“PAO”) with public media press releases and special events, working with the management plan, and working on Congressional and FOIA letters. Ex. 4 at 26:20-27:11.
84. When Plaintiff worked for Griswold, Plaintiff received a lot of assignments from Goin. Ex. 1 at 75:5-21.
85. Griswold never issued Plaintiff any discipline. Ex. 4 at 42:24-43:2.
86. Griswold supervised Plaintiff before Gomez did. Ex. 1 at 38:18-20.
B. Gomez: First Supervision
87. Gomez first supervised Plaintiff from August 2010 to April 11, 2011. Ex. 1 at 38:21-25.
88. Plaintiff’s supervision was changed from Griswold to Gomez because Griswold left her position as Deputy Regional Administrator, and Gomez became Acting Deputy Regional Administrator (and later Deputy Regional Administrator) in her place. Ex. 10 3.
89. Plaintiff’s duties and responsibilities during the first time she was supervised by Gomez were the same she had when she was supervised by Griswold.
90. Goin supervised Plaintiff from April 2011 to November 14, 2011. Ex. 1 at 39:1-3.
91. Garcia changed Plaintiff’s supervision from Gomez to Goin in April 2011 because Garcia thought that Goin had a lot of public affairs work to be done, and Plaintiff had previously performed public affairs work under Goin. Ex. 10 4.
92. Plaintiff’s FRICH duties were reassigned following the April 4, 2011 Discipline regarding her inappropriate solicitation of free registration at a homelessness conference, because Gomez did not think that she could be trusted with the homelessness responsibilities from that point forward. Ex. 3 at 132:25-133:16.
93. When Plaintiff was assigned to Goin, Goin recalled having enough work for two to four people. Ex. 4 at 58:3-13.
94. Goin complimented Plaintiff on Plaintiff’s work. Ex. 5 at 63:9-11, 21-22.
95. Goin did not supervise anyone else during the time Goin supervised Plaintiff. Ex. 1 at 40:6-8.
96. Plaintiff’s work while supervised by Goin included press pitch calls, press releases, public event summaries, transcribing speeches by Garcia and Gomez, and postings on public web sites. Ex. 1 at 80:8-16.
97. Plaintiff wrote in an email to Goin on April 26, 2011: “I find your management style to be not only that of a ‘micro-manager’ but overly excessive and belittling . . . This is a shared view of not only myself but others’ [sic] . . . ." Ex. 20 (authenticated at Ex. 1 at 164:4-7).
98. Plaintiff saw Goin being a micromanager towards other people too. Ex. T at 164:21-23.
99. Plaintiff wrote in a July 21, 2011 email that “PAO Goin constantly criticizes, demeans, and undermines me as her subordinate and seeks to delight in overworking and exploiting.” Ex. 17 at 10-11.
100. On September 28, 2011, Plaintiff sent an email to Goin (and cc’ed others) in which she wrote, among other things: “PS-Nicole Baca and Jim Graver have both stated on numerous accounts [sic] that pictures you’ve taken were always of poor quality; thus I don’t expect to learn photography skills from you.” Ex. 21 (authenticated at Ex. 1 at 172:8-16).
101. Plaintiff’s public affairs duties were reassigned on October 20, 2011, and Plaintiff was reassigned as a back-up for Sylvia Cabrera. Ex. 1 at 86:16-20.
D. Gomez: Second Supervision
102. Gomez supervised Plaintiff again from November 14, 2011, to March 30, 2012. Ex. 1 at 39:4-7.
103. Garcia changed Plaintiff’s supervision from Goin to Gomez in November 2011 because he did not think that Plaintiff got along with Goin, and there was work in FPM to be done that had been under Gomez’s supervision. Ex. 10 ¶ 5.
104. The duties Gomez assigned to Plaintiff on October 20, 2011, were new duties to Plaintiff. Ex. 3 at 152:23-25.
105. Gomez assigned those duties to Plaintiff to provide work assignments, and because he generally tried to have a back-up staff person listed to cover duties when the primary employee was out of the office. Ex. 22 ¶ 3.
106. Gomez believed that the duties he assigned to Plaintiff were appropriate given her position description. Ex. 22 ¶ 4.
107. During her second supervision by Gomez, he assigned Plaintiff duties regarding the Combined Federal Campaign (“CFC”) (a program encouraging federal employees to donate to charities), the Civil Rights Division, and the Olmstead Housing Initiative. Ex. 1 at 88:3-22.
108. Plaintiff exercised discretion and independent judgment to perform the work Gomez assigned, and that work involved matters of significance to the agency. Ex. 1 at 89:2-8.
IV. Other Employment Matters
A. February 26, 2010 Comments by Jane Goin
109. On February 26, 2010, Goin made comments to Plaintiff that Plaintiff believes were discriminatory on the basis of race and sex. Ex. 1 at 159:25-160:22.
110. On that date, Goin introduced Plaintiff to a Black American man visiting the office with then-Mayor Hickenlooper by saying “[H]ey, have you met Meleaha, you have five minutes to get her phone number, ha-ha-ha, she’s a cutie isn’t she, ” and Goin coming back and saying “[W]ell did you get Meleaha's number, I wasn’t kidding, your loss.” Ex. 1 at 159:25-160:9-23.
111. On April 1, 2010, Plaintiff wrote to Griswold that “Ms. Goin personally provided me an explanation and sincere apology for a comment which she inadvertently made on 02/26/10 which I felt was inappropriate. It was with the utmost professionalism, respect and fairness that Ms. Goin and I talked openly and came to an understanding. I regret not having gone to Ms. Goin directly; as she’s been very supportive of my career development here in FPM/HUD.” Ex. 23 (authenticated at Ex. 1 at 159:9-13).
B. February 2010 GS-13 Position
112. Plaintiff alleges that she was discriminated against regarding the Senior Management Analyst GS-13 position that Effie Russell was hired into because Plaintiff was obstructed from competing for that position. Ex. 1 at 130:25-131:13.
113. Plaintiff alleges that she was obstructed because she did not receive any announcement for that GS-13 position. Ex. 1 at 131:14-22.
114. The GS-13 position was advertised in August 2009. Ex. 7 at 39:15-25.
115. Griswold forwarded the position announcement to FPM staff. Ex. 7 at 39:24-40:4.
116. Griswold did not forward that position announcement to Plaintiff because Plaintiff was not working in FPM at the time. Ex. 7 at 40:14-18.
117. Russell started as Senior Management Analyst, GS-13, in February 2010. Ex. 4 at 211:23-25.
C. 2010 Blacks in Government Conference
118. Griswold tried to get funding for Plaintiff to attend the Blacks in Government (“BIG”) conference in 2009 and supported Plaintiff attending the BIG conference in 2010. Griswold, MSPB Day 2, 46:3-13.
119. The 2010 BIG conference was held August 16-20, 2010. Ex. 24.
120. Plaintiff attended the 2010 BIG conference. Ex. 1 at 68:8-13.
121. Gomez believed that Plaintiff’s airfare to and from the 2010 BIG conference was purchased using government contract fees. Ex. 22 ¶ 5.
122. On August 18, 2010, Plaintiff sent an email to Griswold and Garcia that stated that Plaintiff’s uncle passed and “please understand my reasons for switching my flight home Saturday to go straight to DC where they are. The Fed Travel agency changed w/ no difference in ...