Ashbourne v. Hansberry et al

MOTION for Summary Judgment

D.D.C.August 18, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ANICA ASHBOURNE, ) ) ) Plaintiff, ) Civil Action No. 16-908 (CKK) ) v. ) ) DONNA HANSBERRY, et al. ) ) ) Defendants. ) ____________________________________) DEFENDANT’S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT Defendants, through undersigned counsel move to dismiss Plaintiff Anica Ashbourne’s (“Plaintiff”) complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted and pursuant to Rule 56(a) of the Federal Rules of Civil Procedure because there is no genuine issue of material fact such that Defendant is entitled to judgment as a matter of law. A proposed order is attached. Dated: August 18, 2016 Respectfully submitted, CHANNIING D. PHILLIPS D.C. BAR # 415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN D.C. BAR # 924092 Civil Chief Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 1 of 25 By: /s/ BENTON G. PETERSON, BAR # 1029849 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 252-2534 Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 2 of 25 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .......................................................................................................... ii I. FACTUAL AND PROCEDURAL BACKGROUND.............................................................. 2 II. STANDARD OF REVIEW ...................................................................................................... 5 A. Motion to Dismiss for Failure to State a Claim ............................................................... 5 B. Standard of Review for Summary Judgment ................................................................... 6 III. ARGUMENT ............................................................................................................................ 8 1. Plaintiff Abondoned prior Title VII Claims ........................................................................ 8 2. The Res Judicata Doctrine Prevents Plaitniff from Relitigating Her ClaimsAgainst Defendants Because She Has or Could Have Raised the Same Claims in Prior Litigation .. 12 3. Collateral Estoppel Bars Plaintiff's Claims Because Other Courts Already Have Resolved The Relevant Legal and Factual Claims ................................................................................. 13 4. Plaintiff's Count IV Fails to State a Claim ......................................................................... 10 5. Plaitniff Cannot Make a Prima Facie Case of Discrimination ............................................ 13 6. Defendant Has Articlulated A Legitimate, Non-discriminatory reason for terminating Plaintiff and Plaintiff has not shown is pretextual .................................................................. 15 7. Plaintiff Was Not Subjected To A Hostile Work Environment………………………….16 IV. CONCLUSION.................................................................................................................... 17 Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 3 of 25 TABLE OF AUTHORITIES CASES Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) ......................................... 14 Allen v. McCurry, 449 U.S. 90 (1980) ........................................................................................... 9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................... 6, 7 Apotex, Inc. v. Food and Drug Admin., 393 F.3d 210 (D.C. Cir. 2004) ................................... 9, 10 Arizona v. California, 530 U.S. 392 (2000) .................................................................................... 9 Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004) ............................................................................ 5 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................... 5 Brady v. Office of the Sergeant of Arms, 520 F. 3d 490 (D.C. Cir. 2008) .................................... 15 Burke v. Gould, 286 F.3d 513 (D.C. Cir. 2002) .............................................................................. 6 Carney v. Am. Univ., 151 F.3d 1090 (D.C. Cir. 1998) ................................................................... 7 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........................................................................... 6, 7 Chung v. Chao, 518 F. Supp. 2d 270 (D.D.C. 2007) ...................................................................... 5 Cicchetti v. Lucey, 514 F.2d 362 (1st Cir. 1975) ............................................................................ 9 Colbert v. Tapella, 649 F.3d 756 (2011) ...................................................................................... 16 Coleman v. Potomac Elec. Power Co., 310 F. Supp.2d 154 (D.D.C. 2004) ................................ 11 Conley v. Gibson, 355 U.S. 41 (1957) ............................................................................................ 5 Czekalski v. Peters, 475 F.3d (D.C. Cir. 2007) ...................................................................... 14, 15 Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 4 of 25 Davis v. Mukasey, No. 08-452, 2008 WL 5227176 (D.D.C. Dec. 11, 2008)................................. 8 Drake v. FAA, 291 F. 3d 59 (D.C. Cir. 2002) ................................................................................. 9 Eubanks v. Parker County Com'rs Court, 44 F.3d 1004 (5th Cir.1995) ........................................ 8 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ................................................................. 16 Gaujacq v. EDF, Inc., 601 F.3d 565 ............................................................................................... 6 Harding v. Gray, 9 F.3d 150 (D.C. Cir. 1993) ............................................................................. 14 Hardison v. Alexander, 655 F.2d 1281 (D.C. Cir. 1981) ................................................................ 9 I.A.M. National Pension Fund v. Industrial Gear Mfg. Co., 723 F2d 944 (D.C. Cir. 1983) .... 9, 12 In re Sealed Case, 494 F.3d 139 (D.C. Cir. 2007) .......................................................................... 5 Jones v. Kirchner, 66 F. Supp. 3d 237 (D.D.C. 2014) .................................................................... 6 Kizer v. Childrens’ Learning Ctr., 962 F.2d 608 (7th Cir. 1992) ................................................. 16 Kowal v. MCI Commc’ns Corp., 16 F.3d 1271 (D.C. Cir. 1994) ............................................... 5, 6 Laningham v. U.S. Navy, 813 F.2d 1236 (D.C. Cir. 1987) ............................................................. 7 Lockhart v. Cedar Rapids Comm. School Dist., 963 F. Supp. 805 (N.D. Iowa 1997) ................... 9 McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973) ..................................................... 13, 14 McLaughlin v. Bradlee, 803 F.2d 1197 (D.C. Cir. 1986) ............................................................. 12 Nextwave Personal Communications, Inc. v. FCC, 254 F.3d 130 (D.C. Cir. 2001) .................... 12 Nurriddin v. Bolden, 674 F.Supp.2d 64 (D.D.C. 2009) .......................................................... 16, 17 Nurriddin v. Griffin, 552 U.S. 1243 (2008) .................................................................................. 17 Page v. United States, 729 F. Supp. 2d 818 (D.C. Cir. 1984) ........................................................ 9 Polsby v. Thompson, 201 F. Supp. 2d 45 (D.D.C. 2012) ................................................................ 9 Matsushita Elec. Indust. Co, Ltd. v. Zeneith Radio Corp., 475 U.S. 574 (1986) ....................... 6, 7 Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 5 of 25 Richardson v. American Security Programs, Inc., 59 F.Supp.3d 195 (D.D.C.2014) ................... 14 Rozkowiak v. Baxter Helath Corp., 1998 WL 422284 (N.D. Il. 1998)......................................... 16 Simms v. D.C. Gov't, 646 F. Supp. 2d 36 (D.D.C. 2009) ................................................................ 8 Singh v. U.S. House of Representatives, 300 F.Supp.2d 48 (D.D.C. 2004).................................. 17 Smith v. Jackson, 539 F.Supp.2d 116 (D.D.C. 2008) ................................................................... 16 St. Mary’s Honor Center v. Hicks, 509 U.S. (1993) ............................................................... 14, 15 Stanford v. Potomac Electric Power Co., 394 F. Supp.2d 81 (D.D.C. 2005) .............................. 10 Stella v. Mineta, 284 F.3d 135 (D.C. Cir. 2002) ........................................................................... 14 Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560 (Fed. Cir. 1987) .................... 6 Taylor v. United States, 80 Fed. Cl. 376, ………………………………………………………11 Tex. Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ...................................... 7, 13, 14, 15 Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) ........................ 14 Velikonja v. Ashcroft, 355 F. Supp. 2d 197 (D.D.C. 2005) .......................................................... 11 Yamaha Corp. of Amer. v. United States, 961 F.2d 245 (D.C. Cir. 1992) .................................... 12 STATUTES 5 U.S.C. §552A ............................................................................................................................... 3 29 U.S.C. § 206(d)(1) ..................................................................................................................... 3 29 U.S.C. § 621 ............................................................................................................................... 3 42 U.S.C. § 1983 ......................................................................................................................... 3, 8 REGULATIONS 29 C.F.R.§ 1614.409 ..................................................................................................................... 11 Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 6 of 25 Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 7 of 25 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ANICA ASHBOURNE, ) ) ) Plaintiff, ) Civil Action No. 16-908 (CKK) ) v. ) ) DONNA HANSBERRY, et al. ) ) ) Defendants. ) ____________________________________) DEFENDANT’S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT Defendants, through undersigned counsel move to dismiss Plaintiff Anica Ashbourne’s (“Plaintiff”) complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted and pursuant to Rule 56(a) of the Federal Rules of Civil Procedure because there is no genuine issue of material fact such that Defendant is entitled to judgment as a matter of law. This action is related to two prior suits stemming from Plaintiff’s termination in this Court and the District Court of Maryland. Plaintiff first filed three civil actions in the District Court of Maryland in Greenbelt, MD, including Ashbourne v. Dep’t of Treasury, 11-3199, which was transferred to the District Court of the District of Columbia and consolidated into Ashbourne v. Dep’t of Treasury, Civil Action no.11-1253(BAH)(hereinafter referred to as “Ashbourne I”). Plaintiff’s instant complaint should be dismissed because it is barred by the Doctrine of Res Judicata, and in any event the claims were previously abandoned by Plaintiff. Alternatively, this Court should grant Defendant’s Motion for Summary Judgment, because there are no material issues of fact. Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 8 of 25 2 Specifically in this Complaint, Plaintiff alleges that she was discriminated against because of her race and gender when Defendants reduced her salary, subjected her to a hostile work environment and ultimately terminated her. ECF No. 1 at 2. However, Plaintiff fails to establish a prima facie case of discrimination because she fails to prove causation. Even if Plaintiff can establish a causal connection, Defendant’s legitimate nondiscriminatory reasons for its actions preclude Plaintiff’s claims because she cannot show the stated reasons were pretext for discrimination. Accordingly, for the reasons set forth in this memorandum and accompanying exhibits, Defendant respectfully submits that this Court should grant its motion. I. FACTUAL AND PROCEDURAL BACKGROUND On June 21, 2010, plaintiff who is a Tax Attorney and CPA was hired by U.S. Department of the Treasury (ATreasury@or AAgency@), Internal Revenue Service (AIRS@), Large Business and International (ALB&I@),Global High Wealth Division (AGHW@). See ECF No. 1 at ¶¶ 7-8. This position was subject to successful completion of a one-year probationary period. Ashbourne I, Civil Action 12-1153, ECF No. 21, [Memo. Op. Dist. of Md.], at 2. On May 10, 2011, the Agency informed plaintiff that it was proposing to terminate her employment during her probationary period for providing misleading information during the pre-employment process. ECF No. 1, at ¶75. On May 19, 2011, plaintiff provided a written response to the proposed termination letter. On May 26, 2011, after considering plaintiff=s written reply, the Agency informed plaintiff that it was moving forward with her termination effective May 28, 2011. On September 2, 2011, plaintiff filed a Petition for Review (PFR) with the MSPB. Under 5 C.F.R ' 1201.115(d), the Board may grant a PFR when it is established that new and material evidence is available that, despite due diligence, was not available when the record closed, or the decision of the judge is based on an erroneous interpretation of statute or regulation. In her PFR, Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 9 of 25 3 plaintiff alleged that the proposal letter was "facially void and frivolous" and not sufficiently detailed. In addition, she alleged that she was not given a meaningful opportunity to be heard, there was not legally sufficient evidence to support the charges, and the deciding official was biased in making his decision. On September 27, 2011, the Agency submitted its response to the PFR challenging plaintiff=s assertions. On September 30, 2011, plaintiff withdrew her PFR. On December 2, 2011, the MSPB dismissed the PFR as withdrawn with prejudice. Subsequently, Plaintiff filed three civil actions against Defendants in the District Court of Greenbelt, Maryland in 2011. Plaintiff filed suit under 42 U.S.C. § 1983 against her supervisors at GHW and the Secretary of the Department of the Treasury. Civil Action No. RWT-11-2818. On November 9, 2011, Plaintiff initiated a second lawsuit against the Secretary of the Department of the Treasury alleging employment discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Equal Pay Act, 29 U.S.C. § 206(d)(1). Civil Action No. RWT-11-3199. On November 30, 2011 Plaintiff initiated a third lawsuit against the Department of the Treasury alleging a violation of the Privacy Act of 1974, 5 U.S.C. §552A, for the Agency’s handling of her personal records. Civil Action No. RWT-11- 3456. These cases were consolidated in the District Court of Maryland and transferred to the District Court of the District of Columbia. See Ashbourne I, Civ. No. 12-1153, ECF Nos. 21, 22. The Court dismissed Plaintiff’s Equal Pay Act Claims. Id. On October 29, 2013, Plaintiff filed an amended and consolidated complaint in Civil Action No. 11-1253 in the United States District Court for the District of Columbia. Ashbourne I, ECFNo. 49 (hereinafter referred to as “Amended Compl.”) In the amended complaint, Plaintiff alleged violations of the Privacy Act when: (1) Defendant intentionally failed to maintain accurate records related to Plaintiff as was reasonably necessary to assure fairness to Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 10 of 25 4 her, (2) Defendant violated the Privacy Act’s “fairness” standard when it relied upon information submitted by third parties, as opposed to Plaintiff’s explanations, and (3) Defendant may have improperly disclosed information about Plaintiff to unauthorized individuals. Plaintiff alleged that all of these things were done willfully and intentionally. Plaintiff alleges that her termination resulted from Defendant’s inability to understand Plaintiff’s resume and failure to ask for more explanations from Plaintiff. Ashbourne I, ECF No. 49, Am. Compl. ¶¶ 31-35, 45- 50. Defendant moved to dismiss Plaintiff’s Amended Complaint on December 2013. Ashbourne I, ECF No. 52. The Court granted Defendant’s motion in part with regard to Plaintiff’s §1983 claims. Ashbourne I, ECF No. 58. Defendant filed a Motion for Summary Judgment on the final remaining issue, Plaintiff’s Privacy Act claims in March 2015. Ashbourne I, ECF No. 63. Plaintiff also moved for summary judgment. Id. at ECF No. 64. The Court denied Plaintiff’s Motion and granted Defendant’s Motion for Summary Judgment on Plaintiff’s Privacy Act claims. Id. at ECF No. 92. Plaintiff filed an appeal, and the case is currently at the Circuit Court of the District of Columbia pending appeal. Id. at ECF No. 94, and Ashbourne v. Geithner, Circuit Court of Appeals for the District of Columbia, Case No. 15-5351. Plaintiff received a final agency decision on December 12, 2012 from the Department of Treasury EEO Office. Plaintiff’s race and gender discrimination claims were dismissed because the agency found no evidence of discrimination or a hostile work environment. See Exhibit 1, Agency FAD. She was informed that she could appeal the FAD to EEOC within thirty days or file a civil action in District Court within 90 days. Id. Plaintiff was also informed that she could file a civil action in District Court 180 days after filing an appeal to the EEOC, if the EEOC did not provide a final decision. She Filed an appeal to the EEOC. The EEOC issued its decision on Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 11 of 25 5 September 11, 2015, dismissing her claims because they were similar to the claims being litigated in District Court. See Exhibit 2. II. STANDARD OF REVIEW A. Motion to Dismiss for Failure to State A Claim On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), the Court will dismiss a claim if Plaintiff’s complaint fails to plead “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (clarifying the standard from Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also In re Sealed Case, 494 F.3d 139, 145 (D.C. Cir. 2007), citing Twombly. Hence, the focus is on the language in the complaint, and whether that language sets forth sufficient factual allegations to support Plaintiff’s claim for relief. Twombly, 550 U.S. at 555-56. Indeed, “‘[w]ithout some factual allegation in the complaint, it is hard to see how a [plaintiff] could satisfy the requirement of providing not only “fair notice” of the nature of the claim, but also “grounds” on which the claim rests.’” Chung v. Chao, 518 F. Supp. 2d 270, 273, n.3 (D.D.C. 2007), quoting Twombly. The Court must construe the factual allegations in the complaint in the light most favorable to Plaintiff and must grant Plaintiff the benefit of all inferences that can be derived from the facts as they are alleged in the complaint. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004), citing Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). However, the Court need not accept any inferences or conclusory allegations that are unsupported by the facts pleaded in the complaint. Jones v. Kirchner, 66 F. Supp. 3d 237, 243 (D.D.C. 2014), citing Kowal, 16 F.3d at 1276. Moreover, the Court need not “accept legal Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 12 of 25 6 conclusions cast in the form of factual allegations.” Id. For the reasons stated below, Plaintiff has failed to plead a claim upon which relief can be granted. B. Standard of Review for Summary Judgment Where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” summary judgment is required by Rule 56(a) of the Federal Rules of Civil Procedure. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (interpreting Rule 56( c), the prior version of Rule 56( a)); Gaujacq v. EDF, Inc., 601 F.3d 565, 575 (D.C. Cir. 2010). A genuine issue of material fact is one that would change the outcome of the litigation. Anderson, 477 U.S. at 248. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-248 (emphasis in original). “The burden on the moving party may be discharged by ‘showing’-- that is, pointing out to the [Court]--that there is an absence of evidence to support the non-moving party’s case.” Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed. Cir. 1987). Once the moving party has met its burden, the non-movant may not rest on mere allegations, but must make a sufficient showing on an essential element of his case to establish a genuine dispute. Celotex Corp. v. Catrett, 477 U.S. 317,322-23 (1986). See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Burke v. Gould, 286 F.3d 513,517-20 (D.C. Cir. 2002) (requiring a showing of specific, material facts). “[T]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. At all times, the plaintiff retains the ultimate burden of persuasion. See Tex. Dep't. of Cmty. Affairs v. Burdine, 450 U.S. Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 13 of 25 7 248, 252-53 (1981); Carney v. Am. Univ., 151 F.3d 1090, 1093 (D.C. Cir. 1998)(the burden of persuasion always remains with the plaintiff, who in opposing a motion for summary judgment has the burden of pointing to some “affirmative evidence” establishing a factual dispute). The nonmoving party must do more than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 574. See Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987)(the non-moving party is “required to provide evidence that would permit a reasonable jury to find” in its favor). The plaintiff must present specific facts that would enable a reasonable jury to find in its favor. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50. Significantly, the Supreme Court has stated that the “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1). Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 14 of 25 8 III. ARGUMENT 1. Plaintiff abandoned prior claim Title VII claims Plaintiff initially filed her Title VII claims alleging discrimination under ADEA, Hostile Work Environment, and Violation of the Equal Pay Act with regard to her employment and termination from Global High Wealth (GHW). See Ashbourne v. U.S. Dep’t of Treas., Civil Action No. 11-CV-3199 (D. Md.) This Case was transferred to the District of Columbia and consolidated into Ashbourne I, Civil Action No. 12-1153 (BAH). Plaintiff filed two amended complaints in Ashbourne I. By minute order of August 9, 2013, the Court ordered Plaintiff to file her second Amended Complaint and stated “plaintiff is directed to file by September 11, 2013, a single, consolidated complaint containing all claims remaining in this consolidated Case. Id. at ECF No. 44. In response, Plaintiff filed her second Amended Complaint. Id. at ECF No. 49. Plaintiff’s Amended Complaint only raised claims pursuant to 42 U.S.C. §1983 and the Privacy Act. Plaintiff fully litigated these claims in Ashbourne I. Because Plaintiff failed to raise ADEA or Title VII claims in her amended complaint where she was directed to file a complaint including all remaining claims in Ashbourne I, this Court should find the claims were abandoned. “The general rule is that an amended complaint supersedes and replaces an original complaint unless the amendment specifically refers to or adopts an earlier pleading.” Simms v. D.C. Gov't, 646 F. Supp. 2d 36, 37-38 (D.D.C. 2009) (citing Eubanks v. Parker County Com'rs Court, 44 F.3d 1004 (5th Cir.1995)); Davis v. Mukasey, No. 08-452, 2008 WL 5227176, at *1 (D.D.C. Dec. 11, 2008) (Kollar-Kotelly, J.)(stating that an “amended complaint, [] is considered a replacement for the original complaint.”) Because the amended complaint replaces and supersedes the original pleading for all purposes, those claims should be deemed withdrawn. See Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 15 of 25 9 Cicchetti v. Lucey, 514 F.2d 362, 365 n.5 (1st Cir. 1975); Lockhart v. Cedar Rapids Comm. School Dist., 963 F. Supp. 805, 810 (N.D. Iowa 1997). 2. The Res Judicata Doctrine Prevents Plaintiff From Relitigating Her Claims Against Defendants Because She Has Or Could Have Raised the Same Claims in Prior Litigation. The doctrine of claim preclusion (res judicata) bars Plaintiff from raising claims that she raised, or could have raised, in prior litigation against Defendant. Claim preclusion prevents a party from relitigating issues that were actually litigated in an earlier action as well as those that could have been litigated but were not. See Apotex, Inc. v. Food and Drug Admin., 393 F.3d 210, 217-18 (D.C. Cir. 2004); see also Allen v. McCurry, 449 U.S. 90, 94 (1980); I.A.M. National Pension Fund v. Industrial Gear Mfg. Co., 723 F2d 944, 946, 950 (D.C. Cir. 1983). Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Drake v. FAA, 291 F. 3d 59, 66 (D.C. Cir. 2002). The determination of whether both cases involve the same cause of action turns on whether they share the same “nucleus of facts.” Id. (citing Page v. United States, 729 F. Supp. 2d 818, 820 (D.C. Cir. 1984)). “Because the doctrine of res judicata dicates that ‘once a transaction has caused injury, all claims arising from that transaction must be brought in one suit or lost.’” Polsby v. Thompson, 201 F. Supp. 2d 45, 51 (D.D.C. 2012). The doctrine helps Aconserve judicial resources, avoid inconsistent results, engender respect for judgments of predictable and certain effect, and [ ] prevent serial forum-shopping and piecemeal litigation.@ Hardison v. Alexander, 655 F.2d 1281, 1299 (D.C. Cir. 1981); see also Arizona v. California, 530 U.S. 392, 412 (2000) (noting that res judicata is Abased on the avoidance of unnecessary judicial waste@). A claim is precluded if (1) there is a sufficient identity between the parties in the two suits, (2) there is a final judgment on the merits in an Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 16 of 25 10 earlier action, and (3) there is a sufficient identity of the cause of action in the two suits. See Stanford v. Potomac Electric Power Co., 394 F. Supp.2d 81, 88 (D.D.C. 2005). AWhether two cases implicate the same cause of action turns on whether they share the same nucleus of facts.@ Apotex, Inc., 393 F.3d at 217-18. In this case, res judicata bars Plaintiff=s claims. Plaintiff’s instant complaint is based on the same nucleus of facts involving her termination from GHW. The Court in Ashbourne I granted Defendant’s motion and dismissing all remaining claims, which involved Plaintiff’s three consolidated cases. The parties in Ashbourne I are identical to the parties here C Plaintiff, the Secretary of the Department of the Treasury and GWH managers. See Ashbourne I, and ECF No. 1. The District Court issued a final decision on the merits, where it granted Defendant’s Motion for Summary Judgment and held that Defendant’s did not rely on inaccurate information in terminating Plaintiff. See Ashbourne I, ECF No. 92. The Court further reiterated that Plaintiff could not use the Privacy Act to contest personnel actions. And the Court stated “[t]he plaintiff’s allegations of Privacy Act violations are plainly intertwined with her palpable disappointment in the Agency’s decision to terminate her employment.” Id. at 8. This case also concerns Plaintiff=s termination from employement, see Compl. at 1, and therefore involves the same Anucleus of facts@ as Ashbourne I. The claims alleging employment discrimination either were, or could have been, litigated in the prior action, and cannot be re- litigated here. Although there are slight variances in the legal theories Plaintiff raises here C for instance, she cites Title VII C those nuances do not diminish the preclusive effect of the Eleventh Circuit=s ruling. See Velikonja v. Ashcroft, 355 F. Supp. 2d 197, 204 (D.D.C. 2005) (dismissing on claim preclusion grounds all claims based on facts that predated the complaint plaintiff filed in a prior employment discrimination action against defendant); Coleman v. Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 17 of 25 11 Potomac Elec. Power Co., 310 F. Supp.2d 154, 161 (D.D.C. 2004) (concluding Title VII plaintiff Acannot now rely on the identical facts to present a different theory of law on which recovery might be had@). Furthermore, Plaintiff initially filed an employment discrimination case in the District Court of Maryland. Ashbourne v. Dep’t of Treasury, 11-3199, (D. Md.) This case was transferred to the District Court of District of Columbia and later consolidated into Ashbourne I. Plaintiff however failed to pursue her employment discrimination claims in Ashbourne I. These are claims that could and should have been raised, but are now barred because Plaintiff failed to raise them. Thus all three elements of claim preclusion are met. If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. Taylor v. United States, 80 Fed. Cl. 376, 377 (2008), aff'd, 310 F. App'x 390 (Fed. Cir. 2009)(citing 29 C.F.R. § 1614.409). Although Plaintiff may argue that she was waiting for a right to sue letter from the agency to bring her Title VII claims (See Ashbourne I, ECF No. 34 at 4), she could have brought those claims in Ashbourne I. See Gresham v. Dist. of Columbia, 66 F. Supp. 3d 178, 188-189 (D.D.C. 2014)(finding res judicata applied in Title VII cases and stating that because Plaintiff could have raised claims in earlier civil action he “not entitled to another bite of the same factual apple now”). The Department of Treasury EEO office issued a Final Agency Decision (FAD) in December 2012. See Exhibit 1. The agency found no evidence of discrimination. The FAD advised Plaintiff that she could file an appeal to the EEOC within 30 days of the FAD, or could file a complaint in federal court within 90 days of the FAD. Moreover, Plaintiff could file a complaint in District Court 180 days after her appeal to the EEOC, if she did not receive a decision. Therefore, Plaintiff could have filed a complaint for her age and sex discrimination claims either in March 2013 or July 2013, assuming she filed 180 days after filing an appeal with Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 18 of 25 12 EEOC. However, Plaintiff never brought her discrimination claims to court in the proper time despite amending her complaint in September 2013 in Ashbourne I in response to the Court’s order to bring all of her remaining claims. Because Plaintiff had the opportunity to raise these claims in Ashbourne I, but failed to do so, she is not “entitled to another bite of the same factual apple now.” Gresham, 66 F. Supp. 3d at 189. 3. Collateral Estoppel Bars Plaintiff=s Claims Because Other Courts Already Have Resolved The Relevant Legal and Factual Issues. Plaintiff=s claims also are barred by collateral estoppel (issue preclusion). The doctrine of issue preclusion bars Plaintiff from relitigating specific legal or factual issues that were resolved in a prior case. Under that doctrine, Aonce a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.@ Yamaha Corp. of Amer. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992); see also Nextwave Personal Communications, Inc. v. FCC, 254 F.3d 130, 147 (D.C. Cir. 2001) (Aa final judgment on the merits in a prior suit precludes subsequent relitigation of issues actually litigated and determined in the prior suit, regardless of whether the subsequent suit is based on the same cause of action@), aff=d on other grounds, 537 U.S. 293 (2003); IAM Nat=l Pension Fund, 723 F.2d at 947 (same). There are three elements necessary for issue preclusion: (1) the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case; (2) the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case; and (3) preclusion in the second case must not work a basic unfairness to the party bound by the first determination. Yamaha Corp., 961 F.2d at 254. Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 19 of 25 13 Issue preclusion applies here for substantially the same reason that claim preclusion applies. Plaintiff has filed multiple lawsuits in at least two different federal district courts and which have been resolved in Defendant=s favor. Indeed, this is the third suit she has filed in this Court. Having the prior cases concerning her prior employment at Department of Treasury, Plaintiff cannot impose upon this Court or Defendant Athe onerous and unnecessary task of relitigating issues that already have been decided in a full and fair proceeding.@ McLaughlin v. Bradlee, 803 F.2d 1197, 1204 (D.C. Cir. 1986). The District of District of Columbia already has concluded that Defendants did not violate the Privacy Act when it relied on information Plaintiff provided to terminate her. See Ashbourne I, ECF No. 92. The District Court further stated that Plaintiff cannot collaterally attack personnel decisions through the Privacy Those holdings collaterally estop Plaintiff from raising the same issues in this case. 4. Plaintiff’s Count IV Fails to State a Claim Plaintiff’s Count IV entitled Adjudicatory Process should also be precluded under res judicata and claim preclusion because it involves the same issues raised in Ashbourne I. The facts alleged to support this count involve Plaintiff’s characterization that the managers that hired her were not qualified or knowledgeable about Plaintiff’s resume. See ECF No.1, at ¶¶ 64, 68, 70, 72. The Court in Ashbourne I, reviewed a similar allegations. “The plaintiff faults the background investigation for being conducted by employees, who “were illiterate,” “not knowledgeable,” and lacked relevant experience, , to evaluate her prior work experience, and who “failed to collect and record Plaintiff’s explanations,” rendering the Agency’s reliance on this background investigation to make its termination decision “unreasonable,” Ashbourne I, ECF No. 92 at 9. Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 20 of 25 14 Nevertheless, Plaintiff fails to state a claim with regard to these allegations. There is no cause of action that is implicated, nor can Plaintiff allege any violations of law. These allegations are Plaintiff’s characterization of her former managers. 5. Plaintiff Cannot Make a Prima Facie Case of Discrimination In order to survive summary judgment in a Title VII case, a plaintiff must produce some evidence to show that the Agency intentionally discriminated against her. Plaintiff may proceed using direct evidence of discrimination or under the now familiar analysis enunciated in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981). No direct evidence of intentional discrimination or retaliation exists in this case. Accordingly, to prove her case, Plaintiff must meet all the elements of the McDonnell Douglas formula. Plaintiff can establish her prima facie case for discrimination by showing that she: (1) belongs to a statutorily-protected group; and (2) she suffered an “adverse employment action” (3) under circumstances giving rise to an inference of discrimination. See Stella v. Mineta, 284 F.3d 135, 144-45 (D.C. Cir. 2002) (citing McDonnell Douglas, 411 U.S. at 802); Harding v. Gray, 9 F.3d 150, 152 (D.C. Cir. 1993). “[A] Title VII plaintiff must demonstrate causation, i.e., that there is a link between the injury sustained and the wrong alleged.” Richardson v. American Security Programs, Inc. 59 F.Supp.3d 195, 200 (D.D.C.2014) quoting Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2522, 186 L.Ed.2d 503 (2013). If Plaintiff succeeds in establishing a prima facie case, the burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for its actions. See Czekalski v. Peters, 475 F.3d 363, 363 (D.C. Cir. 2007) (citing McDonnell Douglas, 411 U.S. at 802). Once Defendant has articulated a legitimate, non-discriminatory reason for its actions, the prima facie inference Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 21 of 25 15 of discrimination drops out of the case. See St. Mary’s Honor Center v. Hicks, 509 U.S. at 507, 510-11 (1993); Burdine, 450 U.S. at 255. Plaintiff must then prove that Defendant’s proffered reason was not the true reason for its actions and was only a pretext for unlawful discrimination. See Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 804; see also St. Mary’s Honor Center, 509 U.S. at 507-508; Aka v. Washington Hospital Center, 156 F.3d 1284, 1289 (D.C. Cir. 1998). The Court of Appeals for this Circuit has directed District Court to determine only whether the plaintiff produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on a prohibited basis. Brady v. Office of the Sergeant of Arms, 520 F. 3d 490, 494 (D.C. Cir. 2008). “To survive summary judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for discriminatory reason.” Czekalski, 475 F. 3d 363 (internal citation omitted). The burden of persuasion that discrimination motivated Defendant’s actions remains at all times with the plaintiff. See St. Mary’s Honor Center, 509 U.S. at 507; Burdine, 450 U.S. at 253. Here, Plaintiff is a member of a protected class because of her race (African American) and gender (Female). She also suffered an adverse action when she was terminated. However, the circumstances here do not give rise to an inference of discrimination. She was not terminated because of her race or gender. Rather she was terminated because of the information Plaintiff provided during her pre-employment process, which the Department of Treasury determined was misleading. 6. Defendant has articulated a legitimate, non-discriminatory reason for terminating Plaintiff and Plaintiff has not shown is pretextual Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 22 of 25 16 As indicated supra, “where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision,” Brady, 520 F.3d at 494, the Court should ask whether the employee can produce “sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory[ or non-retaliatory] reason was not the actual reason and that the employer intentionally discriminated or retaliated against the employee[.]”Id. Here, because the information Plaintiff provided to Defendants regarding her previous employment was determined to be misleading, the Agency had legitimate, non-discriminatory, non-retaliatory reasons for terminating her. Further, Plaintiff cannot show that these reasons were pretextual or that Defendants intentionally discriminated [or retaliated] against her. See Colbert v. Tapella, 649 F.3d 756 (2011). In fact, the record is void of any such evidence. Plaintiff merely relies on her personal beliefs and suppositions that she was discriminated against which are “legally insufficient to establish pretext.” Rozkowiak, 1998 WL 422284, at *5, citing Kizer v. Childrens’ Learning Ctr., 962 F.2d 608, 613 (7th Cir. 1992). 7. Plaintiff Was Not Subjected to a Hostile Work Environment. In Count 2 of the complaint, Plaintiff alleges that she was subjected to a hostile work environment. To establish such a claim a “plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment occurred because of the protected status; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question but nonetheless failed to either take steps to prevent it or afford the plaintiff prompt remedial action.” Smith v. Jackson, 539 F.Supp.2d 116, 137 (D.D.C. 2008)(citations omitted). In determining Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 23 of 25 17 whether a hostile work environment exists, the Supreme Court has directed the courts to look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. See Smith, 539 F.Supp.2d at 137-38, quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). In addition, it must be clear that the hostile work environment was the result of discrimination or retaliation based on a protected status. See Nurriddin v. Bolden, 674 F.Supp.2d 64, 89-90 (D.D.C. 2009), aff’d, Nurridin v. Griffin, 222 Fed.Appx. 5 (D.C. Cir. 2007), cert denied, Nurriddin v. Griffin, 552 U.S. 1243 (2008); Singh v. U.S. House of Representatives, 300 F.Supp.2d 48, 56 (D.D.C. 2004). In her complaint, Plaintiff mentions the term “hostile work environment” but fails to allege sufficiently severe actions. For example, Plaintiff alleges that “Donna Hansberry told her staff that Plaintiff was causing ‘issues’ for Global High Wealth.” ECF No. 1, Cmplt, ¶35. Plaintiff also alleged that she was rated as average despite her accomplishments. Id., ¶37; Finally, Plaintiff alleges that Defendants “made certain that Plaintiff continued to be assigned a disproportionate amount of work.”. Id., ¶42 However, these facts do not show that Plaintiff was subjected to a hostile work environment. Plaintiff’s generalized statements that she was subjected to a hostile work environment is not enough to support her claim. Significantly, there is no indication that this or any of the actions about which Plaintiff complains occurred because of Plaintiff’s protected status. See Nurriddin, 674 F.Supp.2d at 89-90. Nor were the actions severe or pervasive enough to alter the conditions of Plaintiff’s employment. Accordingly, Plaintiff’s Hostile Work Environment claims should be dismissed. Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 24 of 25 18 V. CONCLUSION For the foregoing reasons, Defendant’s motion to dismiss or in the alternative for summary judgment should be granted on Plaintiff’s discrimination claims because Plaintiff failed to state a claim for relief, and no genuine issue of material fact exists, and Defendant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). A proposed order is attached. Respectfully submitted, CHANNING D. PHILLIP, D.C. Bar #415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN D.C. BAR # 924092 Civil Chief By: /s/ BENTON G. PETERSON, BAR # 1029849 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 252-2534 Case 1:16-cv-00908-CKK Document 6 Filed 08/18/16 Page 25 of 25 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ANICA ASHBOURNE, ) ) ) Plaintiff, ) Civil Action No. 16-908 (CKK) ) v. ) ) DONNA HANSBERRY, et al. ) ) ) Defendants. ) ____________________________________) STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE 1. On June 21, 2010, plaintiff who is a Tax Attorney and CPA was hired by U.S. Department of the Treasury (ATreasury@or AAgency@), Internal Revenue Service (AIRS@), Large Business and International (ALB&I@),Global High Wealth Division (AGHW@). See ECF No. 1 at ¶¶ 7-8. 2. This position was subject to successful completion of a one-year probationary period. Ashbourne I, Civil Action 12-1153, ECF No. 21, [Memo. Op. Dist. of Md.], at 2. 3. On May 10, 2011, the Agency informed plaintiff that it was proposing to terminate her employment during her probationary period for providing misleading information during the pre-employment process. ECF No. 1, at ¶75. 4. On May 19, 2011, plaintiff provided a written response to the proposed termination letter. On May 26, 2011, after considering plaintiff=s written reply, the Agency informed plaintiff that it was moving forward with her termination effective May 28, 2011. Case 1:16-cv-00908-CKK Document 6-1 Filed 08/18/16 Page 1 of 5 5. On September 2, 2011, plaintiff filed a Petition for Review (PFR) with the MSPB. Under 5 C.F.R ' 1201.115(d), the Board may grant a PFR when it is established that new and material evidence is available that, despite due diligence, was not available when the record closed, or the decision of the judge is based on an erroneous interpretation of statute or regulation. 6. In her PFR, plaintiff alleged that the proposal letter was "facially void and frivolous" and not sufficiently detailed. In addition, she alleged that she was not given a meaningful opportunity to be heard, there was not legally sufficient evidence to support the charges, and the deciding official was biased in making his decision. 7. On September 27, 2011, the Agency submitted its response to the PFR challenging plaintiff=s assertions. On September 30, 2011, plaintiff withdrew her PFR. On December 2, 2011, the MSPB dismissed the PFR as withdrawn with prejudice. 8. Subsequently, Plaintiff filed three civil actions against Defendants in the District Court of Greenbelt, Maryland in 2011. Plaintiff filed suit under 42 U.S.C. § 1983 against her supervisors at GHW and the Secretary of the Department of the Treasury. Civil Action No. RWT-11-2818. 9. On November 9, 2011, Plaintiff initiated a second lawsuit against the Secretary of the Department of the Treasury alleging employment discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Equal Pay Act, 29 U.S.C. § 206(d)(1). Civil Action No. RWT-11-3199. Case 1:16-cv-00908-CKK Document 6-1 Filed 08/18/16 Page 2 of 5 10. On November 30, 2011 Plaintiff initiated a third lawsuit against the Department of the Treasury alleging a violation of the Privacy Act of 1974, 5 U.S.C. §552A, for the Agency’s handling of her personal records. Civil Action No. RWT-11-3456. 11. These cases were consolidated in the District Court of Maryland and transferred to the District Court of the District of Columbia. See Ashbourne I, Civ. No. 12-1153, ECF Nos. 21, 22. The Court dismissed Plaintiff’s Equal Pay Act Claims. Id. 12. On October 29, 2013, Plaintiff filed an amended and consolidated complaint in Civil Action No. 11-1253 in the United States District Court for the District of Columbia. Ashbourne I, ECF No. 49 (hereinafter referred to as “Amended Compl.”) 13. In the amended complaint, Plaintiff alleged violations of the Privacy Act when: (1) Defendant intentionally failed to maintain accurate records related to Plaintiff as was reasonably necessary to assure fairness to her, (2) Defendant violated the Privacy Act’s “fairness” standard when it relied upon information submitted by third parties, as opposed to Plaintiff’s explanations, and (3) Defendant may have improperly disclosed information about Plaintiff to unauthorized individuals. Ashbourne I, ECF No. 49, Am. Compl. ¶¶ 31-35, 45-50. 14. Plaintiff alleged that all of these things were done willfully and intentionally. Plaintiff alleges that her termination resulted from Defendant’s inability to understand Plaintiff’s resume and failure to ask for more explanations from Plaintiff. Id. 15. Defendant moved to dismiss Plaintiff’s Amended Complaint on December 2013. Ashbourne I, ECF No. 52. The Court granted Defendant’s motion in part with regard to Plaintiff’s §1983 claims. Ashbourne I, ECF No. 58. Defendant filed a Motion for Case 1:16-cv-00908-CKK Document 6-1 Filed 08/18/16 Page 3 of 5 Summary Judgment on the final remaining issue, Plaintiff’s Privacy Act claims in March 2015. Ashbourne I, ECF No. 63. 16. Plaintiff also moved for summary judgment. Id. at ECF No. 64. The Court denied Plaintiff’s Motion and granted Defendant’s Motion for Summary Judgment on Plaintiff’s Privacy Act claims. Id. at ECF No. 92. 17. Plaintiff filed an appeal, and the case is currently at the Circuit Court of the District of Columbia pending appeal. Id. at ECF No. 94, and Ashbourne v. Geithner, Circuit Court of Appeals for the District of Columbia, Case No. 15-5351. 18. Plaintiff received a final agency decision on December 12, 2012 from the Department of Treasury EEO Office. Plaintiff’s race and gender discrimination claims were dismissed because the agency found no evidence of discrimination or a hostile work environment. See Exhibit 1, Agency FAD. 19. She was informed that she could appeal the FAD to EEOC within thirty days or file a civil action in District Court within 90 days. Id. 20. Plaintiff was also informed that she could file a civil action in District Court 180 days after filing an appeal to the EEOC, if the EEOC did not provide a final decision. She Filed an appeal to the EEOC. Id. 21. The EEOC issued its decision on September 11, 2015, dismissing her claims because they were similar to the claims being litigated in District Court. See Exhibit 2. Case 1:16-cv-00908-CKK Document 6-1 Filed 08/18/16 Page 4 of 5 Respectfully submitted, CHANNIING D. PHILLIPS D.C. BAR # 415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN D.C. BAR # 924092 Civil Chief By: /s/ BENTON G. PETERSON, BAR # 1029849 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 252-2534 Case 1:16-cv-00908-CKK Document 6-1 Filed 08/18/16 Page 5 of 5 Exhibit 1 Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 1 of 20 TDCase Number IRS-11-0820-F DEPARTMENT OF THE TREASURY FINAL AGENCY DECISION In the matter of Anica Ashbourne v. Timothy F. Geithner, Secretary of the Treasury This is the Departmental decision in the discrimination complaint filed by Anica Ashbourne (Complainant) against the Department of the Treasury, Internal Revenue Service (IRS), based on race and sex. PROCEDURAL CHRONOLOGY Dates of Alleged Discrimination: June 21, 2010-May 28, 2011 Initial Counselor Contact: June 8, 2011 Notice of Right to File Issued: October 27, 2011 Complaint Filed: November 9, 2011 Complaint Accepted: December 21, 2011 Investigation Dates: March 28 - July 31, 2012 Investigative File (IF) Distributed: September 11, 2012 Notice of Election Rights Issued: September 11, 2012 Authority for Decision: 29 CFR §1614.110 Other Procedural History On June 8, 2011, Complainant filed an appeal with the Merit Systems Protection Board (MSPB). On July 29, 2011, MSPB dismissed the appeal for lack of jurisdiction. Complainant initially filed a Petition for Review (PFR) of the dismissal but withdrew the petition on September 30, 2011. In its acceptance letter, the Treasury Complaint Center (TCC) stated that, in view of MSPB's decision that it had no jurisdiction, the date of Complainant's appeal is considered to be the date of her initial contact with an Equal Employment Opportunity (EEO) Counselor. (IF, Vol. I, Ex. 3, p. 239) Complainant also filed three (3) complaints in federal District Court in Maryland against the Department of the Treasury. The first complaint was filed under 42 U.S.C. §1983, alleging IRS personnel made false and defamatory accusations in her personnel file without granting her an evidentiary hearing; the second complaint was filed under the Age Discrimination in Employment Act (ADEA) and the Equal Pay Act; and the third complaint was filed under 5 U.S.C. §552A, alleging a violation of the Privacy Act of 1974. The complaints were consolidated and, on July 12, 2012, the District Court in Maryland granted defendant's motion to transfer the cases to the District Court for the District of Columbia. Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 2 of 20 TD Case Number IRS-11-0820-F The TCC sent a letter dated October 23, 2012, to Complainant stating she did not pick up her certified package [containing the IF and Notice of Election Rights] from the United States Postal Service (USPS); more than the statutory 30 days for election of a hearing had elapsed, and the Agency would issue a final agency decision without a hearing. In a response dated October 31, 2012, Complainant wrote it was apparent the Agency would not interview her or mail any correspondence to her in a timely fashion. She stated she did not receive notice from USPS that she had any certified mail and she requested a "Notice of Right to Sue" letter. (Administrative File) A document entitled "Notice of Right to Sue" is not provided in federal sector EEO cases. Complainant received written notice during EEO counseling and in the letter accepting her complaint that if the investigation had not been completed within 180 days of the filing of the formal complaint, Complainant could request a hearing or file a civil action in an appropriate United States District Court. Although Complainant has filed three cases in federal district court related to the matters in the instant complaint, we are unaware of any civil action filed by Complainant that alleges discrimination based on race and/or sex, except for her claims under the Equal Pay Act and Lilly Ledbetter Fair Pay Act, wherein she alleged that male employees were treated more favorably because although they had inferior qualifications, they earned the same salary as she did. Therefore, we will proceed with an analysis of all claims in this final agency decision.1 ISSUES During her tenure with the IRS (June 21, 2010 to May 28, 2011), was Complainant subjected to harassment and/or disparate treatment due to her race (African American) and/or sex (female) when: 1. Complainant's salary was not commensurate with her qualifications and experience; 2. Complainant did not receive awards for the high quality of her performance; 3. Complainant was given a disproportionate amount of work as compared to similarly situated co-workers; 4. Complainant was held to higher standards of performance as compared to similarly situated co-workers; 5. Complainant's computer use and timekeeping records were closely monitored whereas similarly situated co-workers were not; 1 In the "Findings and Analysis" section, we provide additional information regarding our determination to analyze Allegation #1 Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 3 of 20 TD Case Number IRS-11-0820-F 6. Complainant was not given the same opportunity to defend herself against accusations as were similarly situated co-workers; and 7. Effective May 28, 2011, Complainant was terminated during her probationary period from her position of Internal Revenue Agent (Auditor), GS-0512-13? FACTUAL BACKGROUND During the relevant period, Complainant was an Internal Revenue Agent (hereinafter RA) whose appointment to the position was effective June 21, 2010. Complainant was assigned to the Large Business and International Division (LB&I), Global High Wealth Industry (GHW), in Washington, DC. The Standard Form (SF) 50 reflecting her appointment shows a salary of $89,033. Under "Remarks" on the SF-50, it notes that Complainant's employment is subject to completion of a favorable background investigation. (IF, Vol. II, Ex. 14, p. 382) The background investigation was conducted by or on behalf of the Federal Investigations Processing Center, United States Office of Personnel Management (IF Ex. Vol. II, Ex. 15, p. 389) Resume/Application Complainant's resume and application reflect the following work experience: Chief Internal Auditor for Stafford County, Virginia, June 2008 to present; contract attorney in Richmond, Virginia from August 2007 to May 2008; and senior tax manager/senior tax analyst with Ashbourne & Company, in Albany, California, from January 2002 to May 2007. Without explanation of the overlap in time, the resume also lists Complainant as Assistant City Auditor/Chief Deputy City Auditor, City of Oakland, California, from March 2006 to January 2007.2 It is unclear on what date this resume/application was submitted. (IF, Vol. II, Ex. 14, pp. 563-567 and 576) Responses to Background Questions In her responses to the "Electronic Questionnaires for Investigations Processing" (eQIP), Complainant listed employment during the month of January 2010 as Auditor, Department of the Treasury, in Washington, DC. Additional information in the IF shows this position was with the Office of the Inspector General.3 Complainant listed Stafford County as her employer from June 2008 to September 2009. Complainant listed her employment as contract attorney with Lexolution DC, LLC, from October 2007 to May 2008; consultant/tax preparer with The Tax Complex in Richmond, Virginia, from 2 The resume lists other work experience that pre-dates 2002. 3 Although a summary sheet in Vol. II at p. 387 refers to Complainant's termination from the Treasury Inspector General for Tax Administration (TIGTA), an SF-50 lists the employer as a different entity, the Office of the Inspector General (OIG). Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 4 of 20 TD Case Number IRS-11-0820-F February to April 2008; contract attorney with Special Counsel in Richmond, Virginia, from August to September 2007; City Controller for the City of Richmond, Virginia, during July 2007; consultant/internal auditor/tax professional with a company in Burlingame, California from April to June 2007; Assistant City Auditor/Chief Deputy Auditor for the City of Oakland from March 2006 to January 2007; consultant/senior tax accountant with an accountancy firm in San Francisco, California from January to March 2006; and senior tax accountant with a company in San Francisco, California from May to November 2005.4 (IF, Vol. II, Ex. 14, pp. 423-435) Complainant wrote in her e-QIP responses that she resigned from C.L. Johnson Inc. in December 2001 because, among other things, she was told she should leave her desk only at assigned times for bathroom breaks and could not use a computer because no one on the staff was computer-literate. Complainant also wrote as she was uttering the words, "I resign," Tom Johnson said, "I think we will terminate your employment here." (IF, Vol. II, Ex. 14, p. 445) The background investigator wrote that Complainant said during her interview that there was a personality conflict between her and the owner's wife, as well as poor working conditions regarding bathroom breaks and use of the computer. (IF, Vol. II, Ex. 14, p. 449) Removal On May 10, 2011, a letter signed by Thomas Collins, Territory Manager (TM), LB&I, was provided to Complainant. The letter notified Complainant that management was proposing to terminate her employment. The letter listed one Reason, provision of misleading information, and Two (2) Specifications. Specification 1 was that Complainant indicated on her resume she was employed with Ashbourne and Company for approximately five (5) years but it was discovered that Complainant was self- employed; the company was non-existent; and Complainant had multiple temporary positions during the aforementioned period. Specification 2 was that Complainant provided information during her background interview that she had resigned from C.L. Johnson Inc. because of a personality conflict with the owner and indicated there were poor working conditions pertaining to bathroom breaks and use of the computer, while a signed affidavit from the employer indicated Complainant was terminated because she did not follow instructions and was absent from work for three (3) days without authorization. (IF, Ex. 1, Vol. I, pp. 43-44) The letter informed Complainant she had a right to review the material relied on to support the Reason and could request it from Labor Relations (LR) Specialist Terry Stanley, whose telephone number was provided. (IF, Ex. 1, Vol. I, pp. 43-44) On May 19, 2011, Complainant provided a response. Complainant wrote that Ashbourne and Company existed and was a sole proprietorship which automatically came into legal existence "when an individual markets an entity to earn income." 4 Complainant also listed her employment for earlier years as well, in both her resume and the e-QIP responses. Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 5 of 20 TD Case Number IRS-11-0820-F Complainant indicated she worked temporary assignments at various companies while she was self-employed; that she was not interviewed by GHW; and no one questioned her regarding the legal status of Ashbourne & Company and how it related to her multiple temporary assignments. She denied she was terminated from C.L. Johnson Inc. and reiterated that as she was uttering the words, "I resign," the owner said, "I think we will terminate your employment here." (IF, Vol. 1, Ex. 1, pp. 40-42) In a letter dated May 26, 2011, Mr. Collins informed Complainant he had carefully considered Complainant's May 19th written reply and had decided the information did not change his opinion that Complainant provided misleading information during the pre-employment process regarding the use of Ashbourne and Company. Mr. Collins also wrote that the response did not alter his opinion that Complainant was terminated from a position for an unexcused three (3) day absence. He notified Complainant that her termination with the IRS was effective May 28, 2011. The letter informed Complainant that she could appeal to MSPB if she alleged the termination was based in whole or in part of her marital status or political affiliation, or that improper procedures were used to process the action, and that if she alleged the action was based on discrimination based on other legally protected categories she could initiate an EEO complaint. (IF, Vol. I, Ex. 1, pp. 36-37) Complainant's Standard Form (SF) 50 confirms the termination from her IRS position was effective May 28, 2011. (IF, Vol. I, Ex. 12, p. 369) Also included in the IF is an SF-50 showing Complainant was terminated, during her probationary period, from her GS-13, Step 10, position as an Auditor with the Department's Office of the Inspector General (OIG), effective January 27, 2010. (IF, Vol. I, Ex. 12, p. 371). Complainant had been appointed to the position effective January 4, 2010. (IF, Vol. II, Ex. 14 p 385) Initial EEO Contact In an October 27, 2011 email to the EEO Counselor, Complainant wrote that her "initial interview" with an EEO Counselor was June 8, 2011.5 The EEO Counselor wrote to Complainant that Agency records indicated the request for counseling did not occur until September 29, 2011. (IF, Vol. I, Ex. Ex. 3, p. 192) As explained above, the TCC's acceptance letter informed Complainant that June 8, 2011 would be considered the initial EEO contact date, as this was the date she filed an appeal with the MSPB. Complainant's Allegations Complainant did not provide a Declaration. The EEO Investigator wrote that she initially contacted Complainant on March 28, 2012, and communicated with her via emails and telephone discussions between then and May 21, 2012, at which time Complainant 5 Complainant indicated she contacted Eric Savage on this date. (IF, Ex. 2, p. 213} Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 6 of 20 TD Case Number IRS-11-0820-F indicated she was going to file a lawsuit in federal District Court.6 The EEO Investigator stated Complainant never completed the interrogatories sent to her. (IF, Investigator's Notes, p. 12) Documents in the IF show that the EEO Investigator sent an email to Complainant on April 16, 2012, asking Complainant to call her at her earliest convenience to discuss relevant information and names of potential witnesses. (IF, Vol. I, Ex. 4, p. 252) Therefore, Complainant's allegations were obtained from the information in her formal complaint and the EEO Counseling Report. We note Complainant alleged she was not told that generally claims of discrimination had to be raised within 45 days of the occurrence of the incidents. (IF, Vol. I, Ex. 2, p. 160) Complainant stated she was never interviewed before being hired and that because she "doesn't sound Black," the Agency assumed she was White. She stated she negotiated a starting salary of $115,000 but when she reported for work, she was notified her salary had been reduced to $89,000, the same amount paid to inexperienced, un- credentialed, and unlicensed White employees. (IF, Vol. I, Ex. 2, p. 160) Further, Complainant alleged she was humiliated and insulted when non-performing employees earned the same performance evaluation rating as she did, despite the fact she "had to complete all of their work assignments." Complainant claimed she was fired "for owning a sole proprietorship and for properly making full disclosure," while the IRS did not fire other employees outside of her protected class for being sole proprietors and making full disclosures. No names of other employees were provided. (IF Vol 1 Ex 1, p. 31 and Ex. 2, p. 161) Requested Remedies Complainant requested disciplinary actions against various IRS managers; reinstatement to her position; restoration of what she referred to as her original salary; back pay; and compensatory damages. (IF, Vol. 1, Ex. 2, p. 163) Agency's Response Allegation #1 - Salary Lisa Palombi (White, female), HR Specialist, GS-12, Human Capital Office, with a POD in Philadelphia, stated the salary for all new selectees with no prior government service is set at Step 1 for the grade announced for the position. (IF, Vol. I, Ex. 10, p. 361) Ms. Palombi stated Agency records show that Complainant's starting salary was $89,033, which was the Grade 13, Step 1, salary when Complainant began employment. She stated Complainant's Service Computation Date was changed from June 1, 2010 to May 27, 2010, providing her credit for prior federal service from January 4-27, 2010. 6 The EEO Counseling Report reflects that Complainant stated she was going to file an age discrimination case. (IF, Vol I, Ex 2, p. 160} As explained above, Complainant did file such a case. Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 7 of 20 TD Case Number IRS-11-0820-F Ms. Palombi stated Complainant's salary was not affected by the change. (IF, Vol. I, Ex. 10, p. 361) Donna Prestia (White, female), IR-340-01, Acting Assistant to Director, LB&I, with a POD in Washington, DC, stated she was Complainant's third level supervisor. Ms. Prestia acknowledged she was aware of Complainant's race and sex. (IF, Ex. 5, p. 258) Ms. Prestia stated she had no role in establishing Complainant's salary. She stated Complainant's starting salary was at the GS-13, Step 1, grade level and, to her knowledge, the salary was never changed. (IF, Vol. I, Ex. 5, p. 258) Mr. Collins (White, male) identified himself as Program Manager, LB&I, with a POD in Ogden, Utah and Complainant's second level supervisor. He stated he met Ms. Collins during orientation for new employees. With respect to Complainant's starting salary, Mr. Collins responded that he had no role in establishing the salary. (IF, Vol. I, Ex. 6, p. 266) Eric Cirelli (White, male), Supervisory RA, LB&I, with a POD in Queensbury, New York, Complainant's immediate supervisor, stated he did not begin daily communications with the employees he supervised until October 2010, even though he was the Team Manager beginning September 12, 2010. Because his duty station was different from Complainant's, Mr. Cirelli managed her remotely. Mr. Cirelli stated he did not meet Complainant in person until her last day of work, during a meeting also attended by a National Treasury Employees Union (NTEU) official and a LR employee. (IF, Vol. I, Ex. 8, pp. 294-295) Mr. Cirelli stated that, based on Complainant's name and his telephone discussions with her, he concluded she was female. He stated he assumed Complainant was African American when she sent him an email on November 1, 2010, with an email link that included a photograph of her at an IRS event. Mr. Cirelli stated he had no role in establishing her salary. (IF, Vol. I, Ex. 8, pp. 284-285) Allegations #2. #3. and #4 - Awards. Amount of Work, and Standards of Performance Mr. Cirelli stated all employees were treated the same, "in accordance with their position description, taking into account grade level, education, and experience." He stated employees such as Complainant who requested more work were given what he felt was appropriate. Mr. Cirelli stated race and sex were not factors in the assignment of work. Mr. Cirelli described Complainant as very motivated to take on assignments and said she continually asked for work. (IF, Vol. I, Ex. 8, pp. 287-288) According to Mr. Cirelli, none of the new hires in his group received an award. (IF, Vol. I, Ex. 8, p. 285) The following RAs were in Mr. Cirellli's group at the same time as Complainant, (a) White, female, GS-12, new hire in September 2010, POD in Washington, DC; Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 8 of 20 TD Case Number IRS-11-0820-F (b) White, female, GS-13, new hire in June 2010, POD in Pittsburgh, Pennsylvania; (c) White, male, GS-12, new hire in September 2010, POD in Philadelphia, Pennsylvania; (d) White, male, GS-13, new hire in September 2010, POD in Paterson, New Jersey; (e) White, male, GS-13, new hire in September 2010, POD in Garden City, New York; (f) White, male, GS-14, POD in King of Prussia, Pennsylvania; and (g) Black, male, GS-14, POD in Birmingham, Alabama. (IF, Vol. 1, Ex. 8, p. 287) Allegation #5 - Monitoring of Complainant's Computer and Timekeeping Records Mr. Cirelli stated that, to his knowledge, Complainant's computer was not monitored. He stated there were emails exchanged with Complainant regarding the Agency's policies on travel and leave for voting. (IF, Vol. I, Ex. 8, p. 298) Allegation #6 - Opportunity to Defend Against Accusations Mr. Collins noted that Complainant was given the opportunity and did respond to the issues raised by the background investigation, which became the bases for the removal. (IF, Vol. I, Ex. 6, p. 269) Allegation # 7 - Termination Ms. Prestia stated Complainant was removed based on the results of the background investigation, which was not received until 10 months after she began her employment. The witness stated another probationary employee was removed because of the results of his/her background investigation and an additional probationary employee was removed because of his/her inability to perform at the necessary level (IF Vol I Ex 5 p. 262) Mr. Collins stated Complainant provided misleading information to the Agency when she indicated on her resume she was employed with Ashbourne and Company for approximately five (5) years but it was discovered Complainant actually had multiple temporary positions during the aforementioned period. Further, Mr. Collins stated Complainant provided information that she had resigned from one company because of a personality conflict between her and the owner's wife but the owner provided a signed affidavit explaining Complainant was terminated for failing to follow instructions and being absent from work for three (3) days without authorization. (IF, Vol. I, Ex 6, p 269) Mr. Collins stated Complainant responded to the proposal to remove and her response was considered prior to the decision to terminate her employment. (IF, Vol I, Ex 6 p. 269) Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 9 of 20 TD Case Number IRS-11-0820-F Regarding other terminations of probationary employees, Mr. Collins corroborated Ms. Prestia's statement regarding the termination of two other employees. (IF, Vol. 1, Ex. 6, p. 272) Terry Stanley (African American, male), LR Specialist, GS-0306-11, Human Capital Office, with a POD in Dallas, responded he became aware of Complainant's race and sex while reviewing the background investigation paperwork. (IF, Vol. I, Ex. 11, pp. 365-366) Mr. Stanley stated he advised management that termination was one of two (2) options it could take with respect to Complainant. He stated the other option was for the Agency to retain Complainant but he said it is "customary that LR leans towards advising management to terminate probationary employees who are not entirely honest on their background investigation." However, he stated management makes the decision whether to terminate. (IF, Vol. I, Ex. 11, p. 366) APPLICABLE LAW Disparate Treatment This case involves an allegation of disparate treatment, that is, that the Agency treated Complainant less favorably than others because of Complainant's membership in a protected group (race and sex). International Brotherhood of Teamsters v. United States. 431 U.S. 324(1977) The Supreme Court developed a standard of analysis in the case of McDonnell Douglas v. Green. 411 U.S. 792 (1973), which is applied in making determinations regarding alleged discriminatory treatment in disparate treatment cases. Under the McDonnell Douglas standard, a complainant has the initial burden of establishing that there is some substance to his or her allegation of discrimination. In order to accomplish this burden, a complainant must establish, by a preponderance of the evidence, a prima facie case-that is, a body of evidence such that, were it not contradicted, the inference may be made that there was discrimination. A preponderance of the evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 CFR §1201.56(c)(2). The establishment of a prima facie case is not sufficient in and of itself to support a finding of discrimination; rather, it simply allows an inference of discrimination. Once a prima facie case has been established, management has the burden of dispelling the inference from the prima facie case by articulating legitimate, nondiscriminatory reasons for its actions. Furnco Construction Corp. v. Waters. 438 U.S. 567 (1978). To rebut the prima facie case, the agency must provide an explanation sufficient that, if not later shown to be pretextual, the inference raised by the prima facie case would fall. In addition, the reasons must be sufficiently clear and specific that the complainant will have a fair opportunity to demonstrate pretext. This is not a burden of persuasion, which at all times remains with the complainant, but rather a burden of production - to "clearly set forth, through the introduction of admissible Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 10 of 20 TD Case Number IRS-11-0820-F 10 evidence, the reasons for [its employment decision]." Texas Department of Community Affairs v. Burdine. 450 U.S. 248, 254-256 (1981). Once management has articulated legitimate, nondiscriminatory reasons for its actions, the complainant has the burden to prove, by a preponderance of the evidence, that the reasons given by management for its actions were not the true reasons but a pretext for discrimination. A complainant can establish pretext either directly by showing a discriminatory reason more likely motivated management, or indirectly, by showing that the reasons given for management's actions are simply not believable. Burdine. 450 U.S. at 253. Generally, the complainant may show pretext, among other ways, either by presenting direct evidence of discriminatory statements or the past personal treatment of the complainant, or by using comparative evidence, such as statistics of management's employment practices or evidence that management departed from its normal policy. At that point, the trier of fact must decide which party's explanation of the employer's motivation it believes. U.S. Postal Service Board of Governors v. Aikens. 460 U.S. 711, 716 (1983). "But a reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Center v. Hicks. 113 S. Ct. 2742 (1993). Harassment/Hostile Work Environment Complainant has alleged the incidents cited show she was subjected to harassment/hostile work environment. Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion, or protected activity under the anti-discrimination statutes is unlawful, if it is sufficiently patterned or pervasive. McKinnev v. Dole. 765 F.2d 1129. 1138-1139 (D.C. Cir. 1985). In order to demonstrate a prima facie case of hostile work environment, a complainant must show: (1) that she belongs to a protected group; (2) that she was subjected to unwelcome harassment; (3) that the harassment complained of was based on her protected status; (4) that the harassment affected a term, condition, or privilege of employment; and (5) that the agency knew or should have known of the harassment. Trammel v. United States Postal Service. EEOC Appeal No. 01871154 (May 10, 1988). Harassment can take the form of unwelcome physical contact and/or verbal or written material that ridicules, abuses, insults, intimidates, threatens, or denigrates individuals on the basis of their protected status (in this case, color and prior EEO activity). See Meritor Savings Bank v. Vinson. 477 U.S. 57, 64-65 (1986). Subjecting an employee's work to a higher level of scrutiny or requirements than that of her co-workers may reflect an unlawful motivation on the part of the supervisor, especially if the supervisor has made statements that could be characterized as discriminatory. See Winston v. Department of Health and Human Services. EEOC Appeal No. 01985752 (2000) (finding a hostile work environment on the basis of reprisal when supervisor subjected employee to extremely close scrutiny, examining arrivals down to the minute, and taking other draconian measures after employee filed EEO complaint). Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 11 of 20 TD Case Number IRS-11-0820-F U FINDINGS AND ANALYSIS The Prima Facie Case - Disparate Treatment Complainant is in protected categories based on her race (African American) and sex (female).7 In Allegation #1, Complainant claimed the Agency did not pay her a salary commensurate with her qualifications and experience. She alleged she negotiated a starting salary of $115,000 but when she reported to work, she was notified her salary had been reduced to $89,000, a GS-13, Step 1 salary. The evidence indicates she continued to be paid at this salary level until her termination. The managers in Complainant's chain of command stated they had no involvement in the establishment of Complainant's salary. A Labor Relations Specialist stated that all new hires were brought in at the first step level of the grade at which they were hired. Mr. Cirelli listed all new hires as having been employed as either Grade 12 or Grade 13 employees, and he proffered evidence that the only Grade 14 employees in his group were not new hires. Where management has articulated a legitimate, nondiscriminatory reason, as has been done here, it is unnecessary to determine whether Complainant has established a prima facie case. Therefore, we will proceed directly to the pretext stage regarding Allegation #1. Allegation #7 pertains to Complainant's termination and is also a separate, discrete act, and Allegation #6 is inextricably related because Complainant is alleging she was not provided the same opportunity as similarly situated co-workers to defend herself against the Agency's accusations. Management stated that two other probationary employees were removed, and that one removal was based on a background investigation and the other removal on the employee's inability to perform the job. In the absence of clarity regarding the race of the other probationary employees who were terminated, we will assume that they are African American. Again, in the absence of clarifying information we also will assume they are women. Based on all of the aforementioned assumptions, we find Complainant has established a prima facie case of discrimination based on race and sex with respect to Allegations #6 and #7. 7 As explained above, Complainant raised this same allegation in one of her civil actions, wherein she alleged she was discriminated against on the basis of sex. It is clear she could have raised race as a basis as well. Although we conclude the allegation should be dismissed pursuant to 29 CFR §1614 107(a)(3), nevertheless we will proceed with our analysis Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 12 of 20 TD Case Number IRS-I1-0820-F 12 Management's Articulation (Allegations #6 and #7) Management explained that it provided Complainant an opportunity to respond to the proposal to remove and that she did, in fact, provide a written response. Further, management explained that it terminated Complainant for providing misleading information to the Agency. Specifically, management stated Complainant indicated on her resume she was employed by one company between 2002 and 2007 but instead she had multiple temporary assignments during this period; and Complainant provided information during the background investigation that she had resigned from C.L. Johnson Inc. because of a personality conflict and indicated there were poor workplace conditions, but the employer provided a signed affidavit stating Complainant was terminated because she failed to follow instructions and was absent from work for three (3) days without authorization. We find management has articulated legitimate, nondiscriminatory reasons for its actions. Pretext With respect to Allegation #1, Complainant proffered no evidence the Agency employed any new RA hires at a grade or step level higher than GS-13, Step 1, the grade level at which she was hired. Complainant proffered no evidence to support her claim that she was promised a salary of $115,000 or that, by virtue of her experience or credentials, the Agency should have established her starting pay at a higher salary than the $89,000 she was paid. She did not provide any evidence that demonstrates management's reason for her starting salary was untrue or merely pretext for discrimination. With respect to Allegation #6 and #7, Complainant did not explain in what manner she was not given the same opportunity to defend herself against accusations as similarly situated co-workers. She did not deny she provided a written response to the proposal to remove. Complainant contended that as she uttered the words, "I resign" from C.L. Johnson Inc., the owner said he thought he would terminate her employment. Complainant did not address whether or not she was absent for three (3) days from the aforementioned company without authorization, as stated by the company owner in his affidavit. Regarding her listed employment with Ashbourne & Company, Complainant did not explain how, for example, her work as Assistant City Auditor/Chief Deputy Auditor for the City of Oakland and her work as City Controller for the City of Richmond could be anything other than that of an employee of these municipalities. She made no attempt to explain how the employment relationships in the aforementioned positions differed from her employment relationship with the County of Stafford. Complainant also did not explain why she listed in her e-QIP responses a number of employers for the 2002-2007 periods but described herself in her resume as employed by Ashbourne & Company during this period. Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 13 of 20 TD Case Number IRS-11-0820-F 13 Complainant has failed to demonstrate that she was provided less of an opportunity to respond to the proposed removal than other similarly situated employees were provided. She has failed to show that management's reasons for the termination of her employment were untrue or merely pretext for discrimination. Therefore, we find that the Agency did not discriminate against Complainant based on her race and/or sex with respect to Allegations #1, #6 and #7. Harassment/Hostile Work Environment Complainant proffered no evidence to support her claim that she should have received awards for the high quality of her performance (Allegation #2). To the extent Complainant may have been given more assignments than her co-workers (Allegation #3), she did not deny her supervisor's statement that she continually asked for more work. Complainant proffered no evidence that she was held to higher standards than her co-workers (Allegation #4) or that her computer use and timekeeping records were more closely monitored than other employees' computer use and records (Allegation #5). Complainant has not demonstrated that she was subjected to actions or omissions that constitute unwelcome harassment. Therefore, we find that Complainant has not established a prima facie case of harassment/hostile work environment. DECISION It is the decision of the Department of the Treasury that a finding of no discrimination/no harassment/hostile work environment is appropriate in this matter. Complainant is not entitled to relief. Complainant's appeal rights are enclosed. Mariam G. Harvey Date Associate Chief Human Capital Officer (Civil Rights and Diversity/ Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 14 of 20 TD Case Number IRS-11-0820-F 14 DEPARTMENT OF THE TREASURY OFFICE OF CIVIL RIGHTS AND DIVERSITY CERTIFICATE OF SERVICE On this date, I mailed a copy of the final agency decision on the complaint filed by Anica Ashbourne, TD Case Number IRS-11-0820-F, to the persons listed below by the methods specified. Including the certificate, EEOC Form 573, and Notice of Appeal Rights, there are 19 pages. Jebia Bnce, EEO Assistant Date Department of the Treasury Office of Civil Rights and Diversity 1500 Pennsylvania Avenue, NW Washington, DC 20220 Telephone (202) 622-1160 Complainant Via First Class Mail and Certified Mail Anica Ashbourne 7422 Drumlea Road Capitol Heights, MD 20743 Bureau EEO Officer Via email Monica Davy, Director, Office of Equity, Diversity, and Inclusion, IRS Agency Counsel Via email Byron Smalley, GLS, IRS, Washington, DC Treasury Complaint Center Via email Bertha Galan, Acting Operations Director Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 15 of 20 NOTICE OF APPEAL RIGHTS If you are dissatisfied with this decision, you have the right to appeal to the Equal Employment Opportunity Commission (EEOC) or to file a civil action in an appropriate United States District Court. All time periods are given in calendar days. If a time period expires on a Saturday, Sunday or Federal holiday, you may file on the next business day. For more specific information regarding when appeal times begin to run, please review the information for each forum option below. FILING AN APPEAL WITH EEOC You have the right to appeal this decision to the EEOC within 30 days of the day you receive this final agency decision. If you designated an attorney as your representative, the time period to file an appeal with the EEOC begins to run from the date your attorney received this final agency decision. File your appeal by mail addressed to: DIRECTOR, OFFICE OF FEDERAL OPERATIONS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION P.O. Box 77960 WASHINGTON, DC 20013 or by personal delivery to: DIRECTOR, OFFICE OF FEDERAL OPERATIONS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ONE NOMA STATION 131 M STREET, N.E. SUITE 5SW12G WASHINGTON, DC 20507 or by facsimile to: (202) 663-7022 At the same time you file an appeal with EEOC, you must also send a copy of your appeal to: ASSOCIATE CHIEF HUMAN CAPITAL OFFICER (CIVIL RIGHTS AND DIVERSITY) DEPARTMENT OF THE TREASURY 1500 PENNSYLVANIA AVENUE, NW WASHINGTON, DC 20220 In your appeal to EEOC, you must state the date and method (for example, by certified mail or hand delivery) by which a copy of the appeal was sent to the Associate Chief Human Capital Officer (Civil Rights and Diversity). You should use the attached EEOC Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 16 of 20 Form 573, Notice of Appeal/Petition, to file your appeal. EEOC will dismiss your appeal if you do not file it within the time limits. The original of any statement or brief in support of your appeal must be filed with EEOC, with a copy to the Associate Chief Human Capital Officer (Civil Rights and Diversity), within 30 days of the date you file your appeal. FILING A CIVIL ACTION You also have the right to file a civil action in an appropriate United States District Court within 90 days after you receive this final decision if you do not appeal to EEOC, or within 90 days after receipt of the EEOC's final decision on appeal. You may also file a civil action after 180 days from the date of filing an appeal with EEOC if there has been no final decision by EEOC. If your claim is based on age discrimination, you should seek the advice of an attorney if you wish to file a civil action after expiration of the time limits noted above. The courts disagree about when a civil action must be filed and may permit an age discrimination complaint to be filed two years or more from the date of the alleged discrimination. You must also comply with the following instructions: (1) You must name TIMOTHY F. GEITHNER, SECRETARY OF THE TREASURY, as the defendant. Failure to provide his name and official title may result in dismissal of your case. (2) If you decide to file a civil action and if you do not have, or cannot afford, the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend the time in which to file a civil action. Both the request and the civil action must be filed within 90 days of the date you receive the agency or EEOC decision. Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 17 of 20 NOTICE OF APPEAL/PETITION TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION OFFICE OF FEDERAL OPERATIONS P.O. Box 77960 Washington, DC 20013 Complainant Information: (Please Print or Type) Complainant's name (Last, First, M.I.): Home/mailing address: City, State, ZIP Code: Daytime Telephone # (with area code): E-mail address (if any): Attorney/Representative Information (if any): Attorney name: \y Representative name: Address: City, State, ZIP Code: Telephone number (if applicable): E-mail address (if any): General Information: Name of the agency being , charged with discrimination: j Identify the Agency's complaint number: j Location of the duty station or ! local facility in which the ' complaint arose: Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 18 of 20 Yes; Date Received (Remember to attaeh a copy) ' No \s appeal alleges a breach of settlement agreement No Yes (Indicate the agency or procedure, Has a final action been taken by the agency, an Arbitrator, FLRA, or MSPB on this complaint? Has a complaint been filed on this same matter with the EEOC, another agency, or through any other administrative or collective bargaining procedures? Has a civil action (lawsuit) been filed in connection with this complaint? NOTICE: Please attach a copy of the final decision or order from which you are appealing. If a hearing was requested, please attach a copy of the agency's final order and a copy of the EEOC Administrative Judge's decision. Any comments or brief in support of this appeal MUST be filed with the EEOC and with the agency within 30 days of the date this appeal is filed. The date the appeal is filed is the date on which it is postmarked, hand delivered, or faxed to the EEOC at the address above. complaint/docket number, and attach a copy, if appropriate) No Yes (Attach a copy of the civil action filed) Signature of complainant or complainant's representative: Date: EEOC Form 573 REV 1/01 Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 19 of 20 PRIVACY ACT STATEMENT (This form is covered by the Privacy Act of 1974. Public Law 93-597. Authority for requesting the personal data and the use thereof are given below.) 1 . FORM NUMBER/TITLE/DATE: EEOC Form 573, Notice of Appeal/Petition, January 2001 2. AUTHORITY: 42 U.S.C. § 2000e-16 3. PRINCIPAL PURPOSE: The purpose of this questionnaire is to solicit information to enable the Commission to properly and efficiently adjudicate appeals filed by Federal employees, former Federal employees, and applicants for Federal employment. 4. ROUTINE USES: Information provided on this form will be used by Commission employees to determine: (a) the appropriate agency from which to request relevant files; (b) whether the appeal is timely; (c) whether the Commission has jurisdiction over the issue(s) raised in the appeal, and (d) generally, to assist the Commission in properly processing and deciding appeals. Decisions of the Commission are final administrative decisions, and, as such, are available to the public under the provisions of the Freedom of Information Act. Some information may also be used in depersonalized form as a data base for statistical purposes. 5. WHETHER DISCLOSURE IS MANDATORY OR VOLUNTARY AND EFFECT ON INDIVIDUAL FOR NOT PROVIDING INFORMATION: Since your appeal is a voluntary action, you are not required to provide any personal information in connection with it. However, failure to supply the Commission with the requested information could hinder timely processing of your case, or even result in the rejection or dismissal of your appeal. Send your appeal to: The Equal Employment Opportunity Commission Office of Federal Operations P.O. Box 77960 Washington, D.C. 20013 Case 1:16-cv-00908-CKK Document 6-2 Filed 08/18/16 Page 20 of 20 Exhibit 2 Case 1:16-cv-00908-CKK Document 6-3 Filed 08/18/16 Page 1 of 6 Case 1:16-cv-00908-CKK Document 6-3 Filed 08/18/16 Page 2 of 6 Case 1:16-cv-00908-CKK Document 6-3 Filed 08/18/16 Page 3 of 6 Case 1:16-cv-00908-CKK Document 6-3 Filed 08/18/16 Page 4 of 6 Case 1:16-cv-00908-CKK Document 6-3 Filed 08/18/16 Page 5 of 6 Case 1:16-cv-00908-CKK Document 6-3 Filed 08/18/16 Page 6 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ANICA ASHBOURNE, ) ) Plaintiff, ) ) v. ) No. Civil Action No. 16-908 (CKK) ) ) DEPARTMENT OF THE TREASURY ) ) Defendants. ) Order UPON CONSIDERATION of Defendants’ Motion to Dismiss or in the Alternative for Summary Judgment and any opposition thereto it is hereby ORDERED, that the Defendants’ Motion is GRANTED and it is further ORDERED that Plaintiff’s Complaint is dismissed with prejudice. IT IS SO ORDERED on this ____ day of ___________, 2016. __________________________________ U.S. District Court Judge Case 1:16-cv-00908-CKK Document 6-4 Filed 08/18/16 Page 1 of 1