Velikonja, Maria v. Gonzales, Alberto

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2006 Decided October 17, 2006

No. 05-5030

MARIA VELIKONJA,

APPELLANT

v.

ALBERTO GONZALES, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL,

APPELLEE

Consolidated with

05-5303

Appeals from the United States District Court

for the District of Columbia

(No. 03cv00832)

(No. 04cv01001)

John F. Karl, Jr. argued the cause and filed the briefs for

appellant.

Charles W. Scarborough, Attorney, U.S. Department of

Justice, argued the cause for appellee. With him on the brief

were Peter D. Keisler, Assistant Attorney General, Kenneth L.

Wainstein, U.S. Attorney, and Marleigh D. Dover, Attorney.

2

Before: TATEL and BROWN, Circuit Judges, and EDWARDS,

Senior Circuit Judge.

Opinion for the court filed Per Curiam.

PER CURIAM: This case arises from a pair of disciplinary

investigations launched by the FBI’s Office of Professional

Responsibility (OPR) against former FBI employee Maria

Velikonja. The OPR investigated claims made by Velikonja’s

supervisor that she had repeatedly falsified arrival times on her

time sheets. Ms. Velikonja brought suit alleging that the level

of scrutiny to which she was subjected, the unusual delay of the

proceedings, and the severity of the penalty imposed on her

were all undertaken for either discriminatory or retaliatory

reasons in violation of Title VII of the Civil Rights Act of 1964.

Velikonja also alleged that the government violated the Privacy

Act, the Due Process Clause, and the First Amendment. The

district court held for the government on each issue. Velikonja

v. Mueller, 315 F. Supp. 2d 66 (D.D.C. 2004); Velikonja v.

Mueller, 362 F. Supp. 2d 1 (D.D.C. 2004); Velikonja v.

Gonzales, No. 04-1001, slip op. (D.D.C. June 30, 2005).

We reverse the District Court’s dismissal of Count I of

Velikonja’s first complaint. In Count I, Velikonja alleged that

the second time the FBI referred her to the OPR it did so for

discriminatory and retaliatory reasons. The government argues

that Velikonja’s discrimination claim fails because mere

investigation by a disciplinary body cannot constitute an adverse

employment action. See Brown v. Brody, 199 F.3d 446, 457

(D.C. Cir. 1999). We need not decide that issue, however,

because Velikonja has alleged that “FBI officials referred [her]

to OPR in order to prevent [her] from receiving promotions until

the OPR complaints are finally resolved.” 1st Am. Compl. ¶ 46.

And, at oral argument, the government conceded that preventing

an employee from receiving a promotion constitutes an adverse

3

employment action. See Stewart v. Ashcroft, 352 F.3d 422, 427

(D.C. Cir. 2003); Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir.

2000). Therefore, this claim survives a motion to dismiss and

we are constrained to remand for further consideration by the

District Court.

Count I of Velikonja’s first complaint also alleges

retaliation in violation of Title VII. The District Court’s

decision, however, was issued before Burlington Northern &

Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006). There,

the Supreme Court held that a Title VII plaintiff need not allege

an adverse employment action to state a claim for retaliation, but

rather must show that the employer’s actions are “harmful to the

point that they could well dissuade a reasonable worker from

making or supporting a charge of discrimination.” Id. at 2409.

Velikonja alleges–allegations that we must accept as true at this

stage of the litigation, Rochon v. Gonzales, 438 F.3d 1211, 1216

(D.C. Cir. 2006)–that she was subject to a lengthy investigation,

that she was prevented from receiving promotions during the

pendency of the investigation, and that “the FBI has placed a

cloud over [her] career, which effectively prevents her from

obtaining other career-enhancing assignments for which she is

highly qualified.” 1st Am. Compl. ¶ 40. Because a reasonable

jury could find that the prospect of such an investigation could

dissuade a reasonable employee from making or supporting a

charge of discrimination, we reverse the dismissal of

Velikonja’s retaliation claim and remand for further

consideration by the District Court.

In all other respects, we affirm for the reasons given in the

District Court’s thorough and well-reasoned opinions.

Specifically, the District Court correctly granted summary

judgment as to Counts II and III of Velikonja’s first complaint.

Velikonja failed to introduce evidence showing that OPR

resolves comparable investigations of male employees more

4

quickly than it did hers or that the OPR’s non-discriminatory

explanations for the length of the investigation and the severity

of the penalty were pretextual. Velikonja v. Mueller, 362 F.

Supp. 2d 1, 8-13 (D.D.C. 2004). The District Court properly

granted summary judgment on Velikonja’s First Amendment

retaliation claim, Count V of her first complaint, because

Velikonja introduced no evidence establishing a causal link

between her speech and the government’s actions against her.

Velikonja, 362 F. Supp. 2d at 24. Moreover, even if there were

such a link, Velikonja’s claim to money damages would be

barred by the principle of sovereign immunity. Clark v. Library

of Congress, 750 F.2d 89, 102-04 (D.C. Cir. 1984). The District

Court correctly granted summary judgment on Velikonja’s

Privacy Act claim, Count VI of her first complaint. Id. at 13-23.

Among other deficiencies, Velikonja failed to introduce

evidence showing that any alleged violations of the Privacy Act

were “intentional or willful.” 5 U.S.C. § 552a(g)(4); Laningham

v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).

Finally, the District Court correctly dismissed Velikonja’s

constructive discharge claim, Count II of her second complaint,

which similarly lacks merit. Velikonja v. Gonzales, No. 04-

1001, slip op. at *7-12 (D.D.C. June 30, 2005).

So ordered.