UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) MERINDA ELLIS EVANS, ) ) Plaintiff, ) ) v. ) Civil Action No. 05-1063 (GK) ) ERIC H. HOLDER, ) United States Attorney ) General,1 ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff Merinda Ellis Evans (“Plaintiff” or “Ellis Evans”),2

a Video Communications Specialist (“VCS”) at the Federal Bureau of

Investigation (“FBI”), brings this action against Eric H. Holder,

Attorney General of the United States (“Defendant” or

“Government”), pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Plaintiff seeks

(1) a determination that Defendant violated Title VII, (2) an

injunction preventing Defendant from “continuing any and all

discriminatory practices,” (3) damages of more than $300,000, and

(4) reasonable attorney’s fees, costs, and expenses.

1 Former Attorney General Alberto Gonzalez was named as the original lead respondent in this case. Pursuant to Federal Rule of Civil Procedure 25(d), the Court automatically substitutes the current Attorney General, Eric H. Holder, as the new lead respondent. 2 In some of the materials submitted in this case, Plaintiff is referred to by her birth name, “Merinda Ellis.” This matter is now before the Court on Defendant’s Motion for

Summary Judgment [Dkt. No. 47]. Upon consideration of the Motion,

Opposition, Reply, the entire record herein, and for the reasons

stated below, Defendant’s Motion is granted. An Order shall

accompany this Memorandum Opinion.

I. BACKGROUND3

Plaintiff worked as a GS-13 VCS at the FBI. After February

13, 2000, she was assigned to the FBI’s Forensic Audio Video and

Image Analysis Unit (“FAVIAU”) at the FBI Headquarters in

Washington, D.C. Two of her coworkers, Ronald Evans (“Evans”) and

Robert Keller (“Keller”), were also assigned to FAVIAU during this

period. Evans is an African American male, who is also the husband

of Ellis Evans. Keller is a Caucasian male.

The VCSs had four supervisors. In descending order, they were

Section Chief Keith DeVincentis (“DeVincentis”), Program Manager

Dale Linden (“Linden”), Unit Chief John James Ryan (“Ryan”), and

Thomas Musheno (“Musheno”). Musheno was the immediate supervisor

of the VCSs, a position he assumed in June 2001. Prior to Musheno,

their immediate supervisor was David Bonner.

In January 2001, Plaintiff requested permission from Ryan to

attend a DVD technology training in February 2001. Ryan denied her

3 Unless otherwise noted, the facts set forth herein are undisputed and drawn from the parties’ Statements of Undisputed Material Facts submitted pursuant to Local Civil Rule 7(h) and the parties’ summary judgment papers.

-2- permission to attend the training, but Plaintiff attended a DVD

training given in May 2001.

On March 15, 2001, Plaintiff, Evans, and Keller met with

DeVincentis to discuss their grievances with management. Def.’s

Mot. at 4. As a result of this meeting, DeVincentis and Ryan

decided that the VCSs could benefit from working with the other

unit personnel who were based in Quantico. Id. As of March 21,

2001, all three VCSs were required to report to Quantico one day

per week. In addition, beginning in March 2001, all three were

supervised more closely by their supervisors. Pl.’s Opp’n at 7.

In June 2001, a notice requiring the employees to lock their

safes at the end of each day was posted on the exit doors in the

Unit. In spite of this sign, Plaintiff left her safe unlocked on

four occasions between August 21, 2001 and November 18, 2001.

Def.’s State. of Mat. Facts, ¶ 14 (p. 3). Musheno discovered her

safe unlocked once, but never found that Keller had left his safe

unlocked. Id.

On an unidentified date sometime after July 11, 2001,

Plaintiff played a video game on her work computer. Such activity

was prohibited by FBI computer security requirements. Def.’s

State. of Mat. Facts, ¶ 31 (p. 4). When Musheno saw that the game

was minimized on her computer screen, he inquired about it.

Plaintiff responded that she “could not tell him what he was seeing

with his eyes.” Def.’s Reply, Ex. 1. In August 2001, Musheno

-3- reported Plaintiff to the FBI’s Office of Professional

Responsibility (“OPR”). The OPR then initiated an investigation

into whether she had used unauthorized video software on her

computer.

On October 18, 2001, Plaintiff returned evidence from Quantico

to the FBI Headquarters. Although she claimed two hours of

compensatory leave for the trip, she was awarded only one. On

October 29, 2001, Linden informed Plaintiff that she would not

receive compensatory time for transporting evidence to and from FBI

Headquarters.

On October 30, 2001, Plaintiff informed Ryan that she would

not make the required weekly trips to Quantico until she could meet

with the Ombusdman.

On December 3, 2001, Plaintiff was notified that the OPR had

initiated an investigation into allegations of insubordination and

inappropriate use of her work computer.

On January 7, 2002, all three VCS employees -- Plaintiff,

Keller, and Evans -- received “Does Not Meet Expectations” summary

ratings in their Performance Appraisal Reports (“PARs”). Although

Plaintiff received an overall rating of “Does Not Meet

Expectations,” she received a “Meets Expectations” score in four of

the seven individual categories: using computers to perform work;

acquiring, applying, and sharing job knowledge; researching and

analyzing; and designing and processing media products. She

-4- received a “Does Not Meet Expectations” in three individual

categories: organizing, planning, and coordinating; relating with

others and providing professional service; and maintaining high

professional standards.

Prior to receiving this PAR, Keller had trouble completing

cases in a timely fashion. As a result, his caseload was severely

backlogged. On January 8, 2002, all three VCSs were notified that

they would have ninety days to raise their performance to the

“Meets Expectations” level. The FBI refers to this ninety-day

period as a Performance Improvement Period (“PIP”).

On April 8, 2002, the PIP concluded, and Plaintiff received a

“Meets Expectation” rating for the PIP period. However, on April

19, 2002, Plaintiff failed to document information in her notes

that was reported in the Results of Examination Report, and on July

11, 2002, Plaintiff failed to label original evidence in two cases

and failed to document information in a third.4

4 Plaintiff’s response to these two allegations only states that they are “not accurate as these issues were most likely corrected during the administrative review process” and because “[c]urrent file auditing policies . . . that have found similar omissions and errors have not affected examiners [sic] performance appraisals.” Plaintiff’s Response to Defendant’s Statement of Material Facts Not in Dispute at ¶¶ 27, 29. Whether the errors were corrected later in the review process and whether they had an undue impact on a performance appraisal has no relationship to the question of whether the underlying facts alleged by Defendants are accurate. What is relevant is that neither of Plaintiff’s arguments disputes the underlying facts.

-5- On July 12, 2002, during her mid-period PAR annual review,

Plaintiff had failed to meet production expectations because she

completed only thirty out of forty-three cases that were assigned

to her. Three days later, on July 15, 2002, the OPR found that

Plaintiff was insubordinate and violated FBI computer security

requirements by installing video games on her work computer.

Plaintiff received a ten-day suspension as punishment. She served

this suspension between October 26, 2002 and November 5, 2002.

On August 6, 2002, Ryan directed Linden and Musheno to monitor

Plaintiff’s performance closely and directed Barbara Snyder, a

Quality Assurance Manager, to provide Plaintiff with quality

assurance training.

On an unspecified date on or about August 13, 2002, Plaintiff

received an “expedite” case. The case requested copies and still

photographs from a videotape by August 26, 2002. Plaintiff did not

meet this deadline. She received an extension until mid-September.

In mid-September, because she played the digital tape on an

analog player, Plaintiff mistakenly stated that the tape had

nothing on it. Plaintiff eventually completed the copies on

September 3, 2002 and the prints on September 13, 2002.

On October 25, 2002, Linden conducted an audit of Plaintiff’s

cases. He reviewed five randomly selected cases from her caseload

and found errors in each one.

-6- On November 6, 2002, Plaintiff was relieved of her duties as

a forensic examiner. On November 15, 2002, she was assigned other

responsibilities and was informed that she would be required to

report to Quantico for the week of December 9, 2002.

Five days later, on November 20, 2002, Plaintiff received her

annual end of year PAR. She received a summary rating of “Does Not

Meet Expectations.” She received a rating of “Meets Expectations”

in six out of the seven individual categories. P’s Opp’n, Ex. M

She received a “Does Not Meet Expectations” rating in the

“maintaining high professional standards” category. Id.

On December 31, 2002, the FBI recommended dismissing Plaintiff

after considering and rejecting the alternatives of reassignment

and reduction in grade. On February 11, 2003, the FBI ordered that

Plaintiff be removed.

Plaintiff first contacted an EEO counselor on December 5,

2001. She filed a formal EEO complaint with the FBI on December

21, 2001. Def’s Mot., Ex. 5 She sought EEO counseling on November

13, 2002 and filed her second formal EEO complaint on January 6,

2003.

The EEOC consolidated Plaintiff’s two administrative

complaints. Def’s State. of Mat. Facts, ¶ 44. On January 30,

2005, Plaintiff gave notice that she intended to file a civil

action in federal court and requested dismissal of the EEOC

administrative proceedings. On February 7, 2005, the EEOC granted

-7- this request. However, since no civil action had been filed by

April 4, 2005, the FBI EEO office forwarded the complaint to the

Complaint Adjudication Office (CAO) at the Department of Justice.

The CAO issued a final agency decision on November 5, 2005.

It found that the Government had neither discriminated nor

retaliated against Plaintiff.

Plaintiff filed a Complaint in this Court on May 26, 2005, and

an Amended Complaint on September 16, 2008 [Dkt. No. 39].

II. STANDARD OF REVIEW

Summary judgment may be granted “only if” the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. See Fed.

R. Civ. P. 56(c), as amended December 1, 2007; Arrington v. United

States,

(D.C. Cir. 2006). In other words, the

moving party must satisfy two requirements: first, demonstrate

that there is no “genuine” factual dispute and, second, that if

there is it is “material” to the case. “A dispute over a material

fact is ‘genuine’ if ‘the evidence is such that a reasonable jury

could return a verdict for the non-moving party.’” Arrington,

(quoting Anderson v. Liberty Lobby, Inc.,

(1986)). A fact is “material” if it might affect the outcome of

the case under the substantive governing law. Liberty Lobby,

.

-8- In its most recent discussion of summary judgment, in Scott v.

Harris,

(2007), the Supreme Court said,

[a]s we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

, 586-87 . . . (1986) (footnote omitted). “[T]he 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.” Liberty Lobby,

- 48.

However, the Supreme Court has also consistently emphasized

that “at the summary judgment stage, the judge’s function is not

. . . to weigh the evidence and determine the truth of the matter,

but to determine whether there is a genuine issue for trial.”

Liberty Lobby,

. In both Liberty Lobby and

Reeves v. Sanderson Plumbing Products, Inc.,

(2000), the Supreme Court cautioned that “[c]redibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts, are jury functions, not those

of a judge” deciding a motion for summary judgment. Liberty Lobby,

. In assessing a motion for summary judgment and

reviewing the evidence the parties claim they will present, “the

Court must draw all reasonable inferences in favor of the non-

moving party.” Reeves,

. “To survive a motion for

summary judgment, the party bearing the burden of proof at trial

-9- . . . must provide evidence showing that there is a triable issue

as to an element essential to that party’s claim. See Celotex

Corp. v. Catrett,

(1986).” Arrington,

.

III. ANALYSIS

Discrimination claims pursuant to Title VII are analyzed under

the McDonnell Douglas burden shifting framework. Reeves,

(applying the framework to a claim brought under the Age

Discrimination in Employment Act); Ginger v. District of Columbia,

(D.C. Cir. 2008); see Hawkins v. Holder,

(D.D.C. 2009).

Our Court of Appeals recently held that, when considering a

motion for summary judgment in an employment discrimination case,

a district court need not consider whether a plaintiff has actually

satisfied the elements of a prima facie case if the defendant has

offered a legitimate, non-discriminatory reason for its actions.

Brady v. Office of the Sergeant at Arms,

(D.C.

Cir. 2008).

Instead, “the district court must resolve one central

question: has the employee produced sufficient evidence for a

reasonable jury to find that the employer’s asserted

nondiscriminatory reason was not the actual reason for the adverse

employment actions, and that the employer’s actions were

discriminatory.”

In other words, a court must determine

-10- whether “all the evidence, taken together, was insufficient to

support a reasonable inference of discrimination.” Jones v.

Bernanke,

(D.C. Cir. 2009) (citing Brady,

); see also Holcomb v. Powell,

(D.C. Cir. 2006) (“[T]he plaintiff must show that a reasonable jury

could conclude from all of the evidence that the adverse employment

decision was made for a discriminatory reason.”)(quoting Lathram v.

Snow,

, 1088 (D.C. Cir. 2003)).

Our Court of Appeals has explained that “all of the evidence”

means “any combination of (1) evidence establishing the plaintiff's

prima facie case; (2) evidence the plaintiff presents to attack the

employer’s proffered explanation for its actions; and (3) any

further evidence of discrimination that may be available to the

plaintiff, such as independent evidence of discriminatory

statements or attitudes on the part of the employer.” Holcomb,

(citing Aka v. Wash. Hosp. Ctr.,

(D.C. Cir. 1998) (en banc)). It has also emphasized that it

has “consistently declined to serve as a super-personnel department

that reexamines an entity’s business decisions.” Holcomb,

(internal citations and quotation marks omitted).

A plaintiff may show discrimination either directly or

indirectly.

(citing Tex. Dep’t of Cmty. Affairs v. Burdine,

(1981)); see also Hawkins,

.

Evidence is direct if it shows that a “discriminatory reason more

-11- likely motivated the employer.” George v. Leavitt,

(D.C. Cir. 2005) (internal citations omitted). Evidence is

indirect if it shows that “the employer’s proffered explanation is

unworthy of credence.”

In this case, Plaintiff presents no direct evidence of

discrimination, and she concedes that there were several instances

in which she performed poorly at work. Instead she argues that the

Government’s nondiscriminatory explanation is a pretext because two

other employees performed at least as poorly as she did but were

treated favorably.

A. All Claims Based on Discrete Acts Occurring Prior to October 19, 2001 Are Time-Barred

Defendant argues that four of Plaintiff’s claims were not

timely exhausted and are therefore time-barred: (1) the denial of

compensatory leave, (2) the intensified monitoring of Plaintiff’s

work after March 15, 2001, (3) the denial of training in February

2001, and (4) the requirement to report for weekly file reviews at

Quantico.

An aggrieved employee must consult an EEO Counselor within

forty-five days of the alleged discriminatory action or, in the

case of a personnel action, within forty-five days of the effective

date of this action.

(a)(1). Plaintiff first

contacted an EEO counselor on December 5, 2001. Thus, all claims

based on discrete acts occurring prior to October 19, 2001 are

time-barred.

-12- Plaintiff argues that her claims are not time-barred because

“Defendant’s illegal activities were a continuing violation since

the bulk of the discriminatory conduct allege [sic] in Plaintiff’s

EEO complaint are discrete acts that occurred during the requisite

filing period of October 19, 2001.” Pl.’s Mot. at 11.

The Supreme Court has ruled that if a plaintiff’s claims are

discrete acts, then they are time-barred unless they fall within

the forty-five day period. See National R.R. Passenger Corp. v.

Morgan,

(2002). Unlike claims based on discrete

acts, claims based on continuing violations are not subject to this

forty-five day period. To be considered a continuing violation, a

plaintiff must show the “cumulative effect of individual acts.”

.

Plaintiff misstates the law in two respects. First, she

argues that Defendant’s conduct was a continuing violation at the

same time as she argues that the acts were discrete. She cannot

have it both ways. The Defendant’s conduct was or was not a

continuing violation, and different legal consequences flow from

that difference.

Second, Plaintiff has offered nothing more than conclusory

statements to establish that the alleged acts of discrimination had

a “cumulative effect.” See Pl.’s Mot. at 12 (arguing that

“Plaintiff has asserted a hostile work environment claim” despite

the fact that the Amended Complaint neither includes the term

-13- “hostile work environment” nor contains facts to support such an

allegation). In the absence of evidence to support her argument

that there was a continuing violation, Plaintiff fails to raise a

genuine issue of material fact on this issue.

For these reasons, Plaintiff failed to timely exhaust her

administrative remedies for these four claims.

B. No Reasonable Juror Could Find for Plaintiff Because the Undisputed Facts Show that the Government Had a Legitimate, Nondiscriminatory Reason for Its Actions

As our Court of Appeals has stated, “[t]he ultimate question

is whether intentional discrimination may be inferred from all the

evidence before the trier of fact.” Teneyck v. Omni Shoreham

Hotel,

(D.C. Cir. 2004) (quoted in George v.

Leavitt,

) (internal punctuation omitted).

Here, Plaintiff has not disputed twelve material facts. She

has not disputed that (1) she played video games on her FBI

computer, in violation of FBI policy; (2) her supervisor reported

her to the OPR for “unauthorized video software on her FBI

computer”; (3) she left her safe unlocked on four occasions; (4)

Musheno found her safe unlocked once; (5) she claimed two hours of

compensatory leave for October 18, 2001 but was awarded only one

hour; (6) during her mid-period review, she completed only thirty

out of forty-three required cases; (7) the OPR found that Plaintiff

was insubordinate and violated FBI computer security requirements

by installing video game software on her FBI computer; (8) she

-14- received an “expedite” case request on August 13, 2002, failed to

meet the August 26, 2002 deadline, and then when she did complete

the work, made a significant error; (9) when the FBI audited five

randomly selected cases from Plaintiff’s caseload on October 25,

2002, it discovered “errors, inaccuracies, and documentation

issues” in each case, (10) she attended a May 2001 training when

her supervisor had denied her permission to attend the same

training in February 2001; (11) she twice failed to document

information in her notes, and (12) she twice failed to properly

label evidence. See generally Pl.’s Response to Def.’s Statement

of Material Facts As To Which There Is No Genuine Dispute. Because

Plaintiff failed to dispute these twelve assertions, the Court may

treat them as conceded. See Twelve John Does v. District of

Columbia,

(D.C. Cir. 1997); Malik v. District of

Columbia,

(D.D.C. 2008); Buggs v. Powell,

(D.D.C. 2003); LCvR 7(h).

On their face, these undisputed facts offer overwhelming

evidence to support Defendant’s nondiscriminatory explanation of

its actions. Each of these facts reveals a serious flaw in

Plaintiff’s performance. Plaintiff’s decision to load personal

video games on her computer at work threatened the security of the

FBI’s computer network. Playing them during work hours in

disregard of FBI policy, especially in view of her substantial

backlog of cases is both an act of open defiance, and an act that

-15- threatened to impede FBI investigations throughout the country. It

was serious enough to warrant an OPR investigation and serious

enough for the OPR to find Plaintiff responsible for

insubordination and for violating FBI security policy.

Other conceded facts illuminate similarly troubling aspects of

Plaintiff’s performance. Although she worked in an office that

depends upon maintaining a secure facility and although signs were

posted to remind employees to lock their safes at night, Plaintiff

left hers unlocked on four different occasions. Plaintiff

undermined her relationship with her supervisors when she lied to

them and claimed more compensatory time than she deserved. In a

job in which the nation’s law enforcement officials depended upon

her for timely completion of projects, she delayed and mishandled

a case that she was requested to expedite. When a random sampling

of her work was reviewed, each item suffered from errors. She

ignored the instructions of a supervisor by attending a training

even after he had denied her permission to do so. She failed to

document changes and other information and twice failed to label

evidence.

In the aggregate, these conceded facts present a compelling

picture of Plaintiff’s inability -- or refusal -- to perform her

job competently and professionally. Moreover, they present a

compelling, legitimate, and nondiscriminatory reason for

terminating her. The large volume of evidence detailing

-16- Plaintiff’s significant performance problems overwhelmingly

supports the Government’s claim that its actions were the result of

Plaintiff’s performance and not discrimination.

For these reasons, Plaintiff has presented no direct evidence

that would allow a reasonable juror to conclude that Defendant

discriminated against Plaintiff.5

C. Plaintiff Has Not Shown that a Similarly Situated Employee Was Treated Favorably

In the absence of direct evidence that the Government

discriminated against Plaintiff, she attempts to use indirect

evidence to prove that the Government’s nondiscriminatory reason

was a pretext. There are two ways to demonstrate that the

nondiscriminatory explanation was false. First, a plaintiff may

show that “the employer is making up or lying about the underlying

facts that formed the predicate for the employment decision.”

Brady,

(internal citations omitted). Second, a

plaintiff may show that a similarly situated employee was treated

favorably. Brady,

.

Here, Plaintiff adopts the latter approach. She argues that

the Government’s actions were discriminatory because Keller and

Philip Williams (“Williams”) were similarly situated to Plaintiff

but received favorable treatment.

5 The Government has also alleged that five of Plaintiff’s claims are based on actions that are not adverse. Because its Motion may be granted on other grounds, it is not necessary to examine this issue here.

-17- For employees to be similarly situated, “all of the relevant

aspects” of their employment situations must be “nearly identical.”

McFadden v. Ballard, et al.,

(D.D.C. 2008)

(quoting Neuren v. Adduci, et al.,

(D.C. Cir.

1995)); see also Brady,

(employees are similarly

situated if they share “the same factual circumstances”).

If no reasonable juror could conclude that two employees were

similarly situated, then a court may find they were not similarly

situated as a matter of law. See George v. Leavitt,

.

1. Keller

Despite her own problems at work, Plaintiff argues that

Keller, a Caucasian male, was similarly situated but treated

favorably. Plaintiff states that Keller’s “shameful record of

incompetent work performance was commonly known by many.” Pl.’s

Mot. at 18. The Government concedes that Plaintiff and Keller were

similarly situated in four respects: (1) they held the same

positions, (2) they performed the “same duties and had the same

responsibilities,” (3) Musheno supervised both of them, and (4)

they were disciplined and given “Does Not Meet Expectations”

summary ratings on their 2001 PARs. Def.’s Reply at 4. However,

as the Government argues, the “comparisons stop there.”

-18- For example, although Plaintiff has alleged that Keller also

used his computer for “personal matters,”6 Keller denied this

allegation, Musheno never caught Keller playing video games, there

was no OPR investigation into his computer use, and the OPR never

found that Keller had been insubordinate or had violated FBI

security policy. Loading video games onto her work computer and

playing them during work hours was a significant problem in

Plaintiff’s performance that differentiated the two employees.

Similarly, Plaintiff does not allege that Keller left his safe

unlocked as many times as she did, or that any supervisor ever

discovered he had done so. Plaintiff simply makes the conclusory

allegation that Keller left his safe unlocked, but she provides no

evidence to support this accusation.7 Leaving a safe unlocked in

a workplace that places an extremely high priority on maintaining

security and “chain of custody” in criminal cases is obviously a

serious problem. That Keller and Plaintiff differ in this regard

shows that their factual circumstances are far from identical.

In addition, even though Plaintiff and Keller both had

performance problems, the Government argues that Keller’s problems

6 Plaintiff has provided no evidence to support this allegation. In fact, in her own Affidavit, she stated only that she “suspect[s]” that the other VCSs also play video games. Def.’s Reply, Ex. 2. 7 To support her claim, Plaintiff cites to page 60 of the Snyder Deposition, but nothing on that page of the Deposition refers to Keller leaving a safe unlocked.

-19- were qualitatively different from Plaintiff’s. Def.’s Reply at 10.

The Government argues that Plaintiff’s problems related only to

work quality and work efficiency, whereas Keller’s related only to

work efficiency. Id. at 11. In response, Plaintiff argues that

four depositions -- from Musheno, Linden, Ryan, and Snyder --

indicate that Keller, like Plaintiff, suffered from quality

assurance problems.

In fact, none of these depositions bolsters Plaintiff’s

argument.8 When Musheno is asked whether he met with Keller to “go

over errors that he had made on cases,” Musheno answers, “Possibly,

but rarely.” Def.’s Reply at 12. This vague response does not

substantiate Plaintiff’s argument that Keller’s work suffered from

the same type of consistent and egregious quality assurance

problems as Plaintiff’s.

Similarly, Linden stated only that there “could have been”

quality assurance problems. Pl.’s Opp’n, Ex. H (emphasis added).

He made this statement in response to a direct question from

Plaintiff’s counsel, but in his subsequent discussions of Keller’s

performance problems, every example he provided referred to a work

productivity issue. Id. Likewise, even though Ryan stated that

Keller was not “strong technically,” he did not say that his work

8 In addition, Keller stated in his own deposition that he was never cited for “any quality assurance problems” and that he was never “made aware in any way” that there were “quality deficienc[ies]” in his work. Def.’s Reply at 13.

-20- was, in Plaintiff’s words, “shameful” or “incompetent.” Pl.’s

Opp’n, Ex. N. Finally, even though Snyder suggested that the

timely return of examination projects might be considered a quality

assurance issue, she also stated that she did not recall ever

having a quality assurance issue brought before her during the

period between 2000 and 2002 that involved Keller.9

The two employees are distinguishable in seven other respects.

Plaintiff botched an expedited request. The audit of five of

Plaintiff’s projects revealed errors in each one. Keller initiated

his own transfer to Quantico prior to July 2002 and “made room for

himself.” Def.’s Mot., Ex. 47. In contrast, Plaintiff was

initially resistant to transferring and never took the initiative

to make room for herself. Def.’s Mot., Ex. 47 (in Plaintiff’s

Deposition, she stated that “we weren’t crazy about the idea [of

transferring to Quantico] to put lightly”). In addition, Plaintiff

attended a training that a supervisor told her not to attend, twice

failed to document information properly, and twice failed to label

evidence.

9 This suggestion by Snyder does not raise a genuine issue of material fact about whether Keller and Plaintiff both suffered from quality assurance problems. First, she provided this statement in response to a confusing and unclear deposition question. Second, she construed the term “quality assurance,” as it would be used by an accreditation organization and not as it would be used by the FBI. Third, and most significantly, when she was asked if there were “ever any quality assurance issues or performance issues raised or concerns brought to your attention regarding [Keller] specifically in 2000 to 2002,” she responded, “Not that I recall.”

-21- Finally, the two employees are distinguishable because, unlike

Plaintiff, Keller’s performance improved after he received the

“Does Not Meet Expectations” PAR. Compare Def.’s Mot., Ex. 43

(letter informing Plaintiff that “[y]ou have been given ample

opportunity to improve your performance and have failed to do so”)

with Def.’s Mot., Ex. 23A (email from Musheno to Keller on January

23, 2002, stating that “I hear you are doing a fine job”).

Plaintiff provides many examples of Keller’s performance problems

but only one of them occurred after Keller received the “Does Not

Meet Expectations” PAR on January 7, 2002. On April 29, 2002,

Keller emailed Musheno a news story about the FBI’s investigation

of bank robberies, and Musheno reprimanded him for not devoting

more time to meeting his case production requirements. Pl.’s

Opp’n, Ex. R.

This one incident does not demonstrate that Keller’s

performance continued to fall below “expectations” after the PAR

period, that Keller’s performance did not improve, or that Keller

and Plaintiff exhibited the same degree of performance problems.

See Pl.’s Opp’n, Ex. D (statement by Musheno that performance is

evaluated over a period of a full year, not over “two weeks” or

“two days).

For these reasons, no reasonable juror could conclude that

Plaintiff and Keller were similarly situated.

-22- 2. Williams

Plaintiff also alleges she was similarly situated to Williams

and that Williams received favorable treatment. Am. Complaint ¶

23. In response, the Government argues that the two employees were

not similarly situated because their job responsibilities and pay

grades were different and because they reported to different

supervisors. Def.’s Mot. at 14, 35. Specifically, the Government

stated that Williams was classified as a Systems Specialist rather

than a VCS and was supervised by Richard Vorger Bruegge and not

DeVincentis, Linden, Ryan, or Musheno. Id.

It is well-settled that where a non-moving party fails to

oppose arguments set forth in a motion for summary judgment, courts

may treat such arguments as conceded. Malik,

. Where, as here, “a plaintiff files an opposition to a

dispositive motion and addresses only certain arguments raised by

the defendant, a court may treat those arguments that the plaintiff

failed to address as conceded.”

In this case, Plaintiff did not respond to the Government’s

arguments. Accordingly, Plaintiff has conceded them and therefore

has not carried her burden to show that Williams was a similarly

situated employee.

In addition, the law is clear that two employees with

different job titles, job responsibilities, pay grades, and

supervisors are not similarly situated. See McFadden v. Ballard,

-23- Spahr, Andrews & Ingersoll, LLP,

(D.D.C. 2008) (to determine whether two employees are similarly

situated, courts “look to, inter alia, whether the alleged

comparators ‘dealt with the same supervisor, have been subject to

the same standards and have engaged in the same conduct without

such differentiating or mitigating circumstances that would

distinguish their conduct or the employer’s treatment of them for

it.’”) (quoting Childs-Pierce v. Util. Workers Union of Am.,

(D.D.C. 2005)). Accordingly, no reasonable juror

could conclude that Plaintiff and Williams were similarly situated.

D. No Reasonable Juror Could Conclude that the Government Retaliated Against Plaintiff

Plaintiff also alleges that the Government retaliated against

her. In a retaliation claim, once an employer has introduced a

legitimate, nondiscriminatory explanation for its actions, “the

only question is whether the employee’s evidence creates a material

dispute on the ultimate issue of retaliation either directly by

showing that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered

explanation is unworthy of credence.” Jones v. Bernanke,

(D.C. Cir. 2009) (quoting Postal Serv. Bd. of Governors v.

Aikens,

(1983)).

As with the discrimination claim, Defendant argues that its

actions were due to Plaintiff’s poor performance. Plaintiff offers

only one statement to rebut this argument. In an Affidavit, Keller

-24- stated that “[e]ven though I cannot prove it or pinpoint why, I do

feel that Management within the FAVIA Unit does retaliate against

those who speak out or against those who do not fit into their

mold.” Pl.’s Opp’n, Ex. T. This statement is purely subjective,

as well as speculative, and is not corroborated by any other

evidence in the record. It makes only a generalized allegation,

and makes no specific reference to Plaintiff, to any particular

supervisor who might have retaliated against her, or any specific

incident of retaliation.

In addition, as discussed at length supra III.B and III.C,

there is substantial evidence in the record that Plaintiff

performed poorly, compromised FBI security, and was insubordinate.

For these reasons, no reasonable juror could conclude that

discrimination motivated the Government or that the Government’s

nondiscriminatory explanation was a pretext.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion for

Summary Judgment [Dkt. No. 47] is granted. An Order shall

accompany this Memorandum Opinion.

/s/ May 5, 2009 Gladys Kessler United States District Judge

Copies to: Attorneys of record via ECF

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