Mason v. Geithner

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

EUEL L. MASON, DONOVAN L.

BENTON, and MABLE A. GAINES,

Plaintiffs,

v. Civil Action No. 09-00462 (CKK)

TIMOTHY F. GEITHNER, Secretary, U.S.

Department of the Treasury,

Defendant.

EUEL L. MASON,

Plaintiff,

v.

Civil Action No. 10-00184 (CKK)

TIMOTHY F. GEITHNER, Secretary, U.S.

Department of the Treasury,

Defendant.

MABLE A. GAINES,

Plaintiff,

Civil Action No. 10-00683 (CKK)

v.

TIMOTHY F. GEITHNER, Secretary, U.S.

Department of Treasury,

Defendant.

MEMORANDUM OPINION

(September 12, 2011)

In the three above-captioned actions,1 Plaintiffs Mable Gaines (“Gaines”), Euel Mason

(“Mason”), and Donovan Benton (“Benton”) (collectively, “Plaintiffs”), each a former employee

of the Internal Revenue Service (“IRS”), bring suit under Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e-1 et seq. (“Title VII”) against the Secretary of the U.S.

Department of the Treasury (the “Secretary”). There are currently two motions before the Court:

(1) the Secretary’s Motion for Summary Judgment; and (2) the Secretary’s Motion for Sanctions.

Upon consideration of the parties’ submissions, the relevant authorities, and the record as a

whole, the Court shall grant the Secretary’s Motion for Summary Judgment, deny the Secretary’s

Motion for Sanctions, and dismiss all three actions in their entirety.2

I. BACKGROUND

On August 14, 2003, Plaintiffs, along with other African American employees at the IRS,

brought suit against the Secretary alleging that they had been discriminated against on the basis

of race in connection with a variety of employment actions (the “2003 Litigation”). See Compl.,

Mason v. Snow, Civil Action No. 03-1730 (CKK) (D.D.C. Aug. 14, 2003). On May 1, 2006, the

action was dismissed with prejudice when the parties reached an agreement to settle their dispute

1

The three actions have been consolidated only for the briefing of the pending motions.

2

While the Court renders its decision today on the record as a whole, its consideration

has focused on the following documents, listed in chronological order of their filing: Def.’s

Mem. of P. & A. in Supp. of Mot. for Summ. J. (“Def.’s MSJ Mem.”); Def.’s Stmt. of Material

Facts Not in Genuine Dispute (“Def.’s Stmt.”); Pls.’ Mem. in Opp’n to Def.’s Mot. for Summ. J.

(“Pls.’ MSJ Opp’n”); Pls.’ Stmt. of Material Facts in Genuine Dispute (“Pls.’ Stmt.”); Def.’s

Reply to Pls.’ Opp’n to Def.’s Mot. for Summ. J. (“Def.’s Reply”); Def.’s Resp. to Pls.’ Stmt. of

Material Facts Not in Genuine Dispute (“Def.’s Resp.”); Def.’s Mem. of P. & A. in Supp. of

Mot. for Sanctions; Pls.’ Mem. in Opp’n to Def.’s Mot. for Sanctions; Def.’s Reply to Pls.’

Opp’n to Def.’s Mot. for Sanctions.

2

(the “2006 Settlement”).3 See Stip. & Compromise Settlement & Dismissal With Prejudice,

Mason v. Snow, Civil Action No. 03-1730 (CKK) (D.D.C. May 1, 2006). In the actions now

before the Court, Plaintiffs claim that they were retaliated against for their participation in the

2003 Litigation, including the 2006 Settlement. See Fourth Am. Compl. (Civil Action No. 09-

462) ¶¶ 21, 23, 25; Compl. (Civil Action No. 10-184) ¶ 12; Compl. (Civil Action No. 10-683) ¶

12.

A. Factual Background Relating to Plaintiff Mable Gaines

In 1981, Mable Gaines began working at IRS Headquarters in Washington, D.C., as a

clerk-typist. Def.’s Stmt. ¶ 1; Pls.’ Stmt. ¶ 1. Around ten years later, she became an Inventory

Management Specialist in the Distribution Division of the IRS’s Media and Publications

(“M&P”) Organization, a position that she held until her prolonged absence from work that

began on December 21, 2004, and lasted until June 4, 2007. Def.’s Stmt. ¶ 2; Pls.’ Stmt. ¶ 2.

1. Gaines’s Physical Altercation with a Co-Worker

Gaines alleges that on the morning of December 21, 2004, a former co-worker entered her

cubicle and—without saying a word—struck her on the right arm with such force that it could be

3

The parties’ written settlement agreement contains a broad release of claims.

Specifically, Plaintiffs agreed to waive any and all claims that they might have raised at the time

of their execution of the agreement. See Stip. & Compromise Settlement & Dismissal With

Prejudice ¶ 4, Mason v. Snow, Civil Action No. 03-1730 (CKK) (D.D.C. May 1, 2006). In the

actions now before the Court, Plaintiffs occasionally raise allegations relating to events pre-

dating their execution of the Settlement Agreement. For example, Gaines alleges that she was

involved in a physical altercation with a co-worker on December 21, 2004, long before she

executed the settlement agreement on March 21, 2006. See Pls.’ MSJ Opp’n at 46-47. Because

the Secretary has not argued that the settlement agreement bars Plaintiffs from pursuing relief in

connection with allegations pre-dating their execution of the agreement, the Court has considered

those allegations in the course of resolving the merits of the pending motions. Nonetheless, it is

not altogether clear how these allegations remain viable in light of the 2006 Settlement.

3

heard across the room and caused a nerve in her shoulder to “pop.” Def.’s Stmt. ¶ 3; Pls.’ Stmt. ¶

3; Dep. of Mable A. Gaines (“Gaines Dep.”) at 72-78. During this incident, the co-worker was

laughing and told Gaines that she was just “playing.” Gaines Dep. at 78. Thereafter, Gaines—in

what she describes as an attempt to “diffuse the situation”—responded by shoving the co-worker

across the walkway and into an adjacent cubicle, “slamm[ing]” the co-worker against a file

cabinet, and “cursing a whole lot.” Def.’s Stmt. ¶ 5; Pls.’ Stmt. ¶ 5; Gaines Dep. at 87, 90-91.

Gaines has consistently claimed that the only reason the co-worker struck her was because

Gaines refused to attend a breakfast outing earlier that morning. Def.’s Stmt. ¶ 6; Pls.’ Stmt. ¶¶

5-6; Gaines Dep. at 106.

2. Gaines’s Prolonged Absence from Work

Following the alleged assault, Gaines claimed that she was totally incapacitated as a result

of the injuries she sustained and was unable to work.4 Def.’s Stmt. ¶ 7; Pls.’ Stmt. ¶ 7. She did

not return to work at the IRS until June 4, 2007—an absence of approximately two-and-a-half

years. Def.’s Stmt. ¶ 7; Pls.’ Stmt. ¶ 7.

In the weeks following her departure in December 2004, Gaines’s supervisors maintained

contact with her and they honored her request to be reassigned from the Distribution Division

4

Because Gaines is not pursuing a claim for disability discrimination, the question of

whether she was or was not “totally incapacitated” or “disabled” is largely immaterial. However,

the Court observes that when Gaines avers that, “[d]espite [the Secretary’s] innuendo to the

contrary, there is ample evidence to support [her] status as disabled,” Pls.’ Stmt. ¶ 7 (citing Pls.’

Ex. 2 (Pls.’ Resp. to Def.’s First Set of Interrogs. (hereinafter, “Pls.’ Interrog. Resps.”) No. 11);

Pls.’ Ex. 58 (Ltr. from R. Swick to S. Becker dated July 21, 2009)), the only direct “medical

evidence” specifically cited concerns Gaines’s medical condition in June 2009—several years

after the alleged assault—and does not describe her condition in the period from December 21,

2004, to June 4, 2007.

4

within the M&P Organization to the Tax Forms and Publications Division.5 Def.’s Stmt. ¶ 8;

Pls.’ Stmt. ¶ 8. During her extended absence, Gaines’s application to receive annual leave

donations through the IRS’s Leave Transfer Program, which allows IRS employees to transfer

accrued annual leave to an approved recipient for a medical emergency, was approved and a

memorandum soliciting donations was distributed on her behalf.6 Def.’s Stmt. ¶ 9; Pls.’ Stmt. ¶

9; Def.’s Ex. A (Mem. from G. Plater to All Employees dated Apr. 19, 2005); Def.’s Ex. C

(Frequently Asked Questions about the Leave Sharing Program) at 2.

On June 9, 2005, Gaines was examined by a board-certified orthopedic surgeon, who

concluded that she was able to return to work full-time so long as she was not required to lift

more than ten pounds.7 Def.’s Stmt. ¶ 10; Pls.’ Stmt. ¶ 10. On August 19, 2005, the Office of

Workers’ Compensation Programs (“OWCP”) within the Department of Labor (“DOL”) notified

the IRS that Gaines was fit to return to work with the stated lifting limitation. Def.’s Stmt. ¶ 11;

5

In responding to the Secretary’s proffered factual statement, Gaines first concedes that

the statement is admitted, but then proceeds to allege that she “did not request to be reassigned to

the Tax Forms and Publications Division during her time of total disability” and that the decision

was made to “minimize the seriousness of the unprovoked assault.” Pls.’ Stmt. ¶ 8. Because

these extraneous factual allegations are unaccompanied by “references to the parts of the record

relied on [for] support,” LCV R 7(h)(1), the Court will disregard them.

6

In responding to the Secretary’s proffered factual statement, Gaines first concedes that

the statement is admitted, but then proceeds to claim that the facts are “mischaracterized.” Pls.’

Stmt. ¶ 9. Because Gaines fails to provide any explanation as to why she believes the facts have

been mischaracterized, let alone support that belief with references to the record, the Court will

deem the proffered statement to be admitted.

7

In responding to the Secretary’s proffered factual statement, Gaines first concedes that

the statement is admitted, but then proceeds to allege that “a complete examination was not

performed by the assigned doctor.” Pls.’ Stmt. ¶ 10. Because this extraneous factual allegation

is unaccompanied by “references to the parts of the record relied on [for] support,” LCV R

7(h)(1), the Court will disregard the allegation.

5

Pls.’ Stmt. ¶ 11. On August 29, 2005, upon receiving the OWCP’s notification, the IRS sent

Gaines a letter offering her a position as a Tax Analyst in the Tax Forms and Publications

Division of the M&P Organization, acknowledging her lifting limitation, and instructing her to

report to work on September 6, 2005.8 Def.’s Stmt. ¶ 12; Pls.’ Stmt. ¶ 12; Gaines Dep. Ex. 7

(Ltr. to M. Gaines dated Aug. 29, 2005) at 1. The letter further stated that Gaines’s failure to

respond would be construed as a rejection of the offer and that her refusal to accept suitable

employment could result in the termination of her workers’ compensation benefits. Gaines Dep.

Ex. 7 (Ltr. to M. Gaines dated Aug. 29, 2005) at 3. Nonetheless, Gaines failed to return the

“Acceptance/Declination Statement” attached to the letter. Def.’s Stmt. ¶ 13; Pls.’ Stmt. ¶ 13.

Even so, Gaines was not disciplined when she failed to return to work on September 6, 2005, as

she had been instructed. Def.’s Stmt. ¶ 14; Pls.’ Stmt. ¶ 14.

On October 27, 2005, the DOL’s OWCP contacted Gaines a second time, informing her

8

In responding to the Secretary’s proffered factual statement, Gaines first concedes that

the statement is admitted, but then proceeds to allege that she “was still under doctors’ care as a

result of the physical assault and was determined to be totally disabled by her orthopedic

surgeon” and that a “Letter of Reply was forwarded to IRS Management [and the] Department of

Labor . . . informing them of [her] physical status and [that she] could not return to work due to

the severity of her injury.” Pls.’ Stmt. ¶ 12 (citing Def.’s Ex. B (Attending Physician’s Report

dated May 31, 2007); Pls.’ Ex. 58 ((Ltr. from R. Swick to S. Becker dated July 21, 2009;

Attending Physician’s Report dated June 26, 2009)). However, the medical records and

correspondence relied upon by Gaines in support of these extraneous factual allegations pertain

to her medical condition in mid-2007 and mid-2008—years after the events described in the

Secretary’s proffered factual statement had transpired. If anything, the medical reports cited by

Gaines undermine rather than support her contention that she was totally disabled at or around

the time that she was instructed to return to work in early September 2005. The two cited

medical reports state that Gaines was receiving ongoing treatment beginning as early as February

2, 2005, but specifically identify her only two periods of “total disability” as extending from

April 25, 2007, to June 3, 2007, and from June 26, 2009, to June 4, 2007. See Def.’s Ex. B

(Attending Physician’s Report dated May 31, 2007); Pls.’ Ex. 58 (Attending Physician’s Report

dated June 26, 2009).

6

in a letter that she had thirty days to either accept the Tax Analyst position that had been offered

to her or to provide an explanation for her refusal. Def.’s Stmt. ¶ 15; Pls.’ Stmt. ¶ 15. The letter

again warned Gaines that her refusal to accept suitable work could result in the termination of her

workers’ compensation benefits. Def.’s Stmt. ¶ 15; Pls.’ Stmt. ¶ 15.

After a considerable amount of time had elapsed,9 Gaines eventually submitted medical

documentation showing that she was totally disabled in the period extending from April 25,

2007, to June 3, 2007, and was unable to work during that period. Def.’s Stmt. ¶ 16; Pls.’ Stmt. ¶

16; Def.’s Ex. B (Attending Physician’s Report dated May 31, 2007) at 1. Gaines’s period of

total disability ended on June 3, 2007, and Gaines was deemed fit to resume light work the

following day. Def.’s Ex. B (Attending Physician’s Report dated May 31, 2007) at 1.

3. Gaines’s Return to Work

On June 4, 2007, Gaines returned to work, serving as a Tax Analyst in the IRS’s New

Carrollton office located in Lanham, Maryland. Def.’s Stmt. ¶ 17; Pls.’ Stmt. ¶ 17. Upon her

return, Gaines’s chain-of-command was as follows:

• First-line supervisor: Sidney Gardner (“Gardner”);

• Second-line supervisor: Ann Gelineau (“Gelineau”);

• Third-line supervisor: Stacy Becker (“Becker”)

• Fourth-line supervisor: Denise Fayne (“Fayne”) from June 2007, to

September 2008; and Karen Becton-Johnson (“Becton-Johnson”) from

September 2008, to September 2009.

9

The record does not clearly explain exactly what transpired in the period from October

27, 2005, to April 25, 2007, though the parties agree that Gaines remained on leave-without-pay

status until June 2007. Def.’s Stmt. ¶ 17; Pls.’ Stmt. ¶ 17.

7

Def.’s Stmt. ¶¶ 18-22; Pls.’ Stmt. ¶¶ 18-22. Gaines’s first- and second-line supervisors were

located at the IRS’s New Carrollton office, while her third- and fourth-line supervisors were

located at IRS Headquarters in Washington, D.C. Def.’s Stmt. ¶¶ 18-22; Pls.’ Stmt. ¶¶ 18-22.

The day of Gaines’s return to work, she was taken on an office tour by her second-line

supervisor, Gelineau. Def.’s Stmt. ¶ 23; Pls.’ Stmt. ¶ 23. During the tour, Gelineau explained to

Gaines that the entire office was conducting a week-long “clean building initiative,” in

connection with which employees were encouraged to cull their files of excess paperwork,

organize their workspace, and remove any extraneous boxes or office supplies. Def.’s Stmt. ¶

23; Pls.’ Stmt. ¶ 23. Gelineau instructed Gaines to clean and organize the area surrounding

Gaines’s workplace, which would include removing boxes, equipment, and files, an instruction

that Gaines admits applied to everyone in the office. Gaines Dep. at 227-33, 235; Dep. of Ann

Gelineau (“Gelineau Dep.”) at 89. Gaines admits that she did not inform Gelineau that she could

not lift items of a certain weight, but speculates that Gelineau was otherwise aware of her lifting

limitation. Gaines Dep. at 229-30. She also admits that she did not actually clean and organize

the area and was never instructed to do so again, by Gelineau or anyone else. Id. at 233.

As a Tax Analyst within the Tax Forms and Publications Division, Gaines was expected

to perform “plain language” review of tax forms, notices, and publications. Def.’s Stmt. ¶ 25;

Pls.’ Stmt. ¶ 25. However, upon her return to work, Gaines did not immediately begin “plain

language” review work and was instead assigned to work on a “front-line manager readiness

course” with her second-line supervisor, Gelineau. Def.’s Stmt. ¶ 26; Pls.’ Stmt. ¶ 26.

Subsequently, Gaines’s supervisors made arrangements for her to obtain informal training in

8

order to get her acclimated to her new position.10 Dep. of Sidney Gardner (“Gardner Dep.”) at

17, 35; Gaines Dep. at 235, 239. Because Gaines had no prior experience in the field, she needed

more formal training in “plain language” review. Def.’s Stmt. ¶ 28; Pls.’ Stmt. ¶ 28; Gaines Dep.

at 236. The training that Gaines required was typically conducted in a classroom setting in

Atlanta, Georgia, and required all-day attendance. Def.’s Stmt. ¶ 29; Pls.’ Stmt. ¶ 29. However,

Gaines’s first-line supervisor, Gardner, arranged for a course to be held for Gaines at the New

Carrollton office in August 2008, though by the time that date came, Gaines was no longer

working. Def.’s Stmt. ¶ 30; Pls.’ Stmt. ¶ 30; Gardner Dep. at 37.

4. Gaines’s Requests for a “Flexiplace” Assignment and Accommodations

In March 2008, Gaines submitted an application for a “flexiplace” assignment, requesting

that she be allowed to work at home full-time following a surgical procedure that she planned to

undergo at the end of the month. Def.’s Stmt. ¶ 31; Pls.’ Stmt. ¶ 31. However, Gaines’s

supervisors informed her that they were unable to accommodate her request for a “flexiplace”

assignment and accommodations to work from home because she was yet to complete the

10

Relying exclusively upon her deposition testimony, Gaines purports to dispute that her

“supervisors arranged for her to obtain training from coaches and a senior analyst.” Pls.’ Stmt. ¶

27 (citing Gaines Dep. at 235-40). However, in the deposition testimony she cites, Gaines

plainly testified that she viewed a senior analyst in her office as her “go-to person when [she] had

a question about the document [she] was working on,” and the person to whom she would speak

“to help [her] complete her tasks . . . since [she] was new to that area,” and concedes that her

first-line supervisor, Gardner, attempted to find her an on-the-job coach. Gaines Dep. at 236,

239. Gaines further alleges that “other new analysts” were provided an on-the-job coach, Pls.’

Stmt. ¶ 27 (citing Gaines Dep. 235-40), but the testimony relied upon for this contention only

suggests that a single employee, Roseanne Nuss (“Nuss”), was coached by a senior analyst for an

unspecified duration at some point after Gaines started in her new position, Gaines Dep. at 237.

At no point in her opposition does Gaines attempt to show that she and Nuss were similarly

situated in all material respects or explain in any meaningful factual detail the nature of the

coaching that Nuss allegedly received and how it differed from the training opportunities Gaines

was provided.

9

requisite “plain language” review training. Def.’s Stmt. ¶ 33; Pls.’ Stmt. ¶ 33; Gardner Dep. at

28, 35; Gelineau Dep. at 26-27. Gardner told Gaines that he would be able to “better justify” her

working from home following the completion of her training.11 Gardner Dep. at 28, 35.

Like she was during her absence from work from December 2004 through June 2007,

Gaines was again approved to participate in the Leave Transfer Program. Def.’s Stmt. ¶ 32; Pls.’

Stmt. ¶ 32. However, Gaines’s first-line supervisor, Gardner, admitted he “dropped the ball” and

failed to send out notice of Gaines’s approval for the Leave Transfer Program to other employees

for them to make contributions of donated leave on her behalf. Gardner Dep. at 41-42.

5. Gaines’s Suspension for Tax Non-Compliance

The IRS’s Employee Tax Compliance (“ETC”) Branch is responsible for the

identification of IRS employees who fail various computerized compliance checks related to the

failure to file or the late filing of tax returns or the non-payment of taxes. Def.’s Stmt. ¶ 35; Pls.’

Stmt. ¶ 35. On January 24, 2008, after performing a routine computerized comparison of payroll

and tax account records, the ETC Branch determined that Gaines had failed to make sufficient

11

Gaines does not dispute that she had yet to complete the “plain language” training

contemplated by her supervisors at the time she made her request, but instead faults her

supervisors for “fail[ing] to arrange for her to have the necessary training” in the months that she

had been working in the Tax Forms and Publication Division. Pls.’ Stmt. ¶ 33 (citing Gardner

Dep. at 37). However, Gaines cites to no evidence in the record that would permit a reasonable

trier of fact to infer that any delay in ensuring that Gaines received the requisite training was

unreasonable. Meanwhile, it is undisputed that the training that Gaines required was typically

conducted in a classroom setting in Atlanta, Georgia, but that Gaines’s supervisor had to make

special arrangements to have a training session held for Gaines locally at the New Carrollton

office. Def.’s Stmt. ¶¶ 29-30; Pls.’ Stmt. ¶¶ 29-30. Gaines stopped reporting to work before the

special training session was held. Def.’s Stmt. ¶ 42; Pls.’ Stmt. ¶ 42.

10

estimated tax payments pertaining to gambling winnings during tax-year 2006.12 Def.’s Stmt. ¶

34; Pls.’ Stmt. ¶ 34. Gaines admitted to the ETC Branch that she had violated her duty to

accurately report her income, claiming that she was unaware of her legal obligation to report

gambling winnings immediately upon receipt.13 Def.’s Stmt. ¶ 38; Pls.’ Stmt. ¶ 38. This was not

Gaines’s first incident of tax non-compliance: in 2003, Gaines received a three-day suspension

for an incident pertaining to tax-year 1999.14 Def.’s Stmt. ¶ 45; Pls.’ Stmt. ¶ 45; Def.’s Ex. D

(Ltr. from C. Tavenner to M. Gaines dated Nov. 24, 2003).

Upon discovering the issue, the ETC Branch referred the new incident to Gaines’s

supervisors for purposes of determining a suitable punishment. Def.’s Stmt. ¶ 39; Pls.’ Stmt. ¶

12

The ETC Branch flags potential issues and either refers them to the employee’s

manager or issues an advisory and enters the case into an automated tracking system. Def.’s

Stmt. ¶ 36; Pls.’ Stmt. ¶ 36. Employees’ supervisors play no role in initiating the investigation of

potential tax non-compliance issues. Def.’s Stmt. ¶ 37; Pls.’ Stmt. ¶ 37.

13

In responding to the Secretary’s proffered factual statement, Gaines first concedes that

she “admitted to the ETC that she had violated her duty to accurately report income,” but then

proceeds to allege that she “did not intentionally fail to pay her taxes.” Pls.’ Stmt. ¶ 38 (citing

Gelineau Dep at 75-76; Pls.’ Ex. 61). In support of this allegation, Gaines relies heavily upon

what she identifies as Plaintiffs’ Exhibit 61, but there is no Exhibit 61 accompanying Plaintiffs’

opposition papers. See LCV R 5.4(c)(2) (“A person filing a document by electronic means is

responsible for insuring the accuracy of the official docket entry . . . .”). Regardless, the Court

will assume that Gaines’s admitted incident of tax non-compliance was not a “willful act,” as the

Secretary has never contended otherwise and this conclusion is consistent with testimony offered

by Gaines’s second-line supervisor, Gelineau. See Gelineau Dep. at 75-76. For purposes of

resolving the pending motions, it suffices to note that Gaines concedes that she “is ultimately

responsible for her income tax return.” Pls.’ Stmt. ¶ 38.

14

In responding to the Secretary’s proffered factual statement, Gaines first concedes that

she received a three-day suspension in 2003 for her failure to fully pay federal taxes, but then

proceeds to claim that the Secretary has “distorted” these facts. Pls.’ Stmt. ¶ 46. However, based

on Gaines’s response, it is unclear how she believes the Secretary has distorted the underlying

facts. Gaines alleges that she was “actively engaged in an EEO complaint” at the time she

received the suspension in 2003, but that suspension simply is not at issue in this action.

11

39; Gelineau Dep. at 92; Golatz Dep. at 21-22. On July 8, 2008, Gaines’s first-line supervisor,

Gardner, and her second-line supervisor, Gelineau, asked to meet with Gaines in person to

discuss the matter.15 Def.’s Stmt. ¶ 41; Pls.’ Stmt. ¶ 41. During that meeting, Gelineau provided

Gaines with a letter informing Gaines that the IRS was considering imposing a fourteen-day

suspension in response to the incident, but that alternative discipline was also a possibility.

Def.’s Stmt. ¶ 41; Pls.’ Stmt. ¶ 41. Two days after meeting with her supervisors, Gaines stopped

reporting to work altogether. Def.’s Stmt. ¶ 42; Pls.’ Stmt. ¶ 42. She never returned. Def.’s

Stmt. ¶ 42; Pls.’ Stmt. ¶ 42.

On July 14, 2008, Gaines sent her fourth-line supervisor, Fayne, a letter in which she

expressed her desire to retire and to begin the disability application process.16 Def.’s Stmt. ¶ 43;

Pls.’ Stmt. ¶ 43. After Gaines had already stopped reporting to work, but while the fourteen-day

suspension proposal was still pending, the ETC Branch determined that Gaines had committed

yet another tax violation—namely, that she had failed to timely pay additional taxes because she

failed to accurately claim an earned-income tax credit.17 Def.’s Stmt. ¶ 44; Pls.’ Stmt. ¶ 44. This

15

In responding to the Secretary’s proffered factual statement, Gaines first concedes that

the statement is admitted, but then proceeds to claim that the facts have been “mischaracterized.”

Pls.’ Stmt. ¶ 41. In so doing, Gaines fails to explain why she believes the facts have been

mischaracterized and instead incorporates her response to an entirely different factual statement,

a response that has no obvious nexus to the factual statement at issue. The Court will therefore

treat the Secretary’s proffered factual statement as admitted.

16

The Secretary asserts that the IRS cannot initiate the disability application process on

an employee’s behalf, see Def.’s MSJ Mem. at 9 n.2, and this assertion is left uncontested by

Gaines in her opposition.

17

In responding to the Secretary’s proffered factual statement, Gaines first concedes that

the statement is admitted, but then proceeds to suggest that the facts have been “distorted.” Pls.’

Stmt. ¶ 44. In so doing, Gaines incorporates her response to an entirely different factual

statement, a response that relies in relevant part upon an exhibit that is not actually appended to

12

violation constituted the third instance of tax non-compliance by Gaines discovered by the ETC

Branch.18 Def.’s Stmt. ¶ 45; Pls.’ Stmt. ¶ 45.

On December 12, 2008, upon learning of this development, Gaines’s supervisors

rescinded the original suspension proposal and issued a new letter proposing the same fourteen-

day suspension, albeit this time incorporating the facts relating to the new incident of tax non-

compliance.19 Def.’s Stmt. ¶¶ 47-48; Pls.’ Stmt. ¶¶ 47-48. Ultimately, the proposed fourteen-day

suspension was mitigated to a ten-day suspension. Def.’s Stmt. ¶ 49; Pls.’ Stmt. ¶ 49. Gaines

was notified of the decision on April 13, 2009. Def.’s Stmt. ¶ 49; Pls.’ Stmt. ¶ 49; Gaines Dep.

Ex. 16 (Ltr. from K. Becton-Johnson to M. Gaines dated Apr. 13, 2009).

her opposition. See Pls.’ Stmt. ¶ 38 (citing Pls.’ Ex. 61). In any event, Gaines admits that she

“overstated” the earned income tax credit to which she was entitled, and merely attempts to

minimize the import of that admission by averring that she took steps to correct the infraction

upon being notified. Id. As before, the Court will assume for purposes of resolving the pending

motions that Gaines’s non-compliance was not a “willful act,” but the undisputed facts

nonetheless establish that she “failed to timely pay additional taxes assessed because of her

failure to accurately claim an earned-income tax credit.” Def.’s Stmt. ¶ 44; Pls.’ Stmt. ¶ 44.

18

In responding to the Secretary’s proffered factual statement, Gaines first concedes that

the statement is admitted, but then proceeds to contend that the facts have been “distorted.” Pls.’

Stmt. ¶ 45. In so doing, Gaines fails to explain why she believes the facts have been distorted

and instead incorporates her response to an entirely different factual statement, a response that

has no obvious nexus to the factual statement at issue. The Court will therefore treat the

Secretary’s proffered factual statement as admitted.

19

Citing to no evidence in the record, Gaines purports to dispute that her “supervisors

had the authority to increase her penalty.” Pls.’ Stmt. ¶ 48. Regardless, it is undisputed that the

second proposal incorporated an entirely new incident of tax non-compliance but recommended

the same level of discipline as previously proposed.

13

6. The Termination of Gaines’s Employment

On March 3, 2009, Gaines underwent a work-capacity evaluation, after which the

examining doctor determined that she was able to return to work on a full-time basis.20 Def.’s

Stmt. ¶ 50; Gaines Dep. Ex. 18 (Work Capacity Evaluation dated Mar. 3, 2009). On May 29,

2009, the DOL’s OWCP notified Gaines that her medical and wage loss benefits would be

terminated effective June 7, 2009, advised her that applicable regulations required her to apply

for re-employment with the IRS immediately upon her recovery, and informed her of her right to

appeal the determination.21 Def.’s Stmt. ¶ 51; Pls.’ Stmt. ¶ 51; Gaines Dep. Ex. 18 (Ltr. from S.

Stone to M. Gaines dated May 29, 2009). On June 15, 2009, the IRS sent Gaines a letter

instructing her to report to work by no later than June 29, 2009. Def.’s Stmt. ¶ 52; Pls.’ Stmt. ¶

52; Gaines Dep. Ex. 19 (Ltr. from S. Becker to M. Gaines dated June 15, 2009). In lieu of

returning to work, Gaines elected to appeal the OWCP’s determination.22 Def.’s Stmt. ¶ 53; Pls.’

20

In responding to the Secretary’s proffered factual statement, Gaines does not dispute

that she underwent a work-capacity evaluation on March 3, 2009, or that the examining doctor

determined that she was able to return to work full-time. Pls.’ Stmt. ¶ 50. Instead, Gaines

alleges that the evaluation was insufficiently “thorough” and that the “examining doctor would

not review current medical documents . . . in order to make a correct assessment of her

condition.” Id. (citing Pls.’ Interrog. Resps. No. 11; Pls.’ Ex. 58 (Ltr. from R. Swick to S.

Becker dated July 21, 2009)). Because the evidence cited by Gaines does not support her

extraneous factual allegations, those allegations will be disregarded.

21

In responding to the Secretary’s proffered factual statement, Gaines concedes that the

statement is admitted, but then proceeds to allege that she “is awaiting a Hearing of her Pending

Case with the Department of Labor.” Pls.’ Stmt. ¶ 51. Gaines fails to support this extraneous

allegation with “references to the parts of the record relied on [for] support.” LCV R 7(h)(1). In

any event, it is immaterial.

22

In responding to the Secretary’s proffered factual statement, Gaines concedes that the

statement is admitted, but then proceeds to set forth additional factual allegations. Pls.’ Stmt. ¶

54. Because these extraneous factual allegations are unaccompanied by “references to the parts

of the record relied on [for] support,” LCV R 7(h)(1), the Court will disregard them.

14

Stmt. ¶ 53. On July 21, 2009, Gaines’s legal counsel, Richard L. Swick, Esq. (“Swick”),

responded to the IRS’s letter by informing the IRS that Gaines was “not likely to be physically

able to return to work at the IRS” and requesting that an IRS representative “call [him] to explore

a resolution to th[e] situation.” Gaines Dep. Ex. 20 (Ltr. from R. Swick to S. Becker dated July

21, 2009) at 1.

Shortly thereafter, Swick called Gaines’s third-line supervisor, Becker. Def.’s Stmt. ¶ 54;

Pls.’ Stmt. ¶ 54. The parties dispute what was said during this conversation, though they agree

that it occurred. On the one hand, the Secretary contends that Swick requested that the IRS begin

the process of terminating Gaines for non-disciplinary reasons—in other words, that she be

terminated without cause. Def.’s Stmt. ¶ 54. On the other hand, Gaines admits that Swick and

Becker discussed two available options—a non-disciplinary termination and a disability

retirement—but denies that Swick requested that the IRS begin the process for a non-disciplinary

termination. Pls.’ Stmt. ¶ 54. Both versions of the conversation find some support in the record.

Becker testified at her deposition that Swick informed her that Gaines would not be “coming to

work” and requested that Becker “start the termination procedures.” Dep. of Stacey Becker

(“Becker Dep.”) at 28. Meanwhile, Swick has submitted a declaration in which he states that

while he and Becker “did discuss the option of a non-disciplinary termination, . . . [he] did not

suggest that Ms. Becker propose Ms. Gaines’s termination.” Pls.’ Ex. 33 (Decl. of Richard L.

Swick) ¶¶ 3, 5. Furthermore, there is a point in Becker’s deposition testimony where she

suggests that Swick stated during the conversation that the IRS “needed to get her retirement

going,” Becker Dep. at 67, which may or may not be consistent with the remainder of her

testimony. Viewing this conflicting evidence in the light most favorable to Gaines as the non-

15

movant, the Court will assume for purposes of resolving the pending motions that Swick did not

ask or otherwise propose that the IRS commence the process of terminating Gaines for non-

disciplinary reasons.

Setting aside whether Swick requested that the IRS do so, the IRS subsequently initiated

the process of removing Gaines for non-disciplinary reasons. Def.’s Stmt. ¶ 55; Pls.’ Stmt. ¶ 55.

Gaines testified that she no longer wanted to continue working at the IRS by that point in time,

and maintains that she was still unable to work. Gaines Dep. at 207, 212. Nonetheless, she had

not at that time filed an application for her preferred mode of separating from the IRS—namely, a

disability retirement.23 Def.’s Stmt. ¶¶ 56-57; Pls.’ Stmt. ¶¶ 56-57. Accordingly, the IRS

proceeded with the non-disciplinary termination process, citing as grounds Gaines’s admitted

failure to report for work and inability to perform her duties since early July 2008. Def.’s Stmt. ¶

59; Pls.’ Stmt. ¶ 59. On September 15, 2009, the IRS notified Gaines of the proposed non-

disciplinary termination, and in so doing expressly advised Gaines that the proposed “action

[would] not affect [her] entitlement to apply for disability retirement for up to one year after

separation” and “[would] not affect any entitlement to compensation for which [she] may qualify

under the Federal Employees’ Compensation Act.” Gaines Dep. Ex. 22 (Ltr. from S. Becker to

M. Gaines dated Sept. 15, 2009) at 1-2; see also Becker Dep. at 66 (testifying that the

termination would not have any effect on Gaines’s filing for a disability retirement). Although

23

While Gaines disputes other aspects of Becker’s recollection of her conversation with

Swick, Becker’s testimony that she told Swick that she was uncertain why Gaines had not

applied for disability retirement and that she and IRS management would support and facilitate

such an application stands uncontradicted. Becker Dep. at 63. Meanwhile, when Gaines was

asked at her deposition what steps she had taken to secure a disability retirement, the only step

she was able to identify was that she had spoken to her counsel, Swick. Gaines Dep. at 212-13.

16

the IRS informed Gaines of her right to respond to the proposal orally or in writing, Gaines

elected to do neither. Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15,

2009) at 2; Def.’s Stmt. ¶ 60; Pls.’ Stmt. ¶ 60. On October 16, 2009, the IRS notified Gaines that

her non-disciplinary proposal would be upheld and that she would be removed from federal

service effective October 23, 2009. Def.’s Stmt. ¶ 61; Pls.’ Stmt. ¶ 61; Gaines Dep. Ex. 23 (Ltr.

from K. Becton-Johnson to M. Gaines dated Oct. 16, 2009).

It is an employee’s responsibility to initiate the disability retirement application process.

Becker Dep. at 68. The Secretary asserts that the IRS cannot process a disability retirement

without a Form OPM SF-3112B application for disability retirement from the employee, Def.’s

MSJ Mem. at 10 n.4, and this assertion is left uncontested by Gaines in her opposition papers.

When notifying Gaines of her proposed non-disciplinary termination on September 15, 2009, the

IRS described the application process for Gaines and provided relevant contact information.

Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15, 2009) at 1. It is undisputed

that Gaines did not file an application for a disability retirement—Form OPM SF-3112B—until

October 4, 2009. Def.’s Stmt. ¶ 57; Pls.’ Stmt. ¶ 57. Thereafter, the IRS forwarded her

application to the Office of Personnel Management (“OPM”)24 and Gaines’s termination was

subsequently converted from a non-disciplinary removal to a disability retirement. Def.’s Stmt.

¶¶ 58, 62; Pls.’ Stmt. ¶ 62. The record created by the parties does not clearly provide when the

conversion occurred.

24

The OPM, and not the IRS, is tasked with making the determination on an application

for a disability retirement. Gaines Dep. Ex. 22 (Ltr. from S. Becker to M. Gaines dated Sept. 15,

2009) at 1.

17

B. Factual Background Relating to Plaintiff Euel Mason

Mason began working with the IRS in 1987 as a GS-5-level Printing Analyst. Def.’s

Stmt. ¶ 63; Pls.’ Stmt. ¶ 63. As a result of the 2006 Settlement, he was promoted to a GS-14-

level Technical Advisor position in the M&P Organization. Def.’s Stmt. ¶ 64; Pls.’ Stmt. ¶ 64.

During the relevant time period, Mason’s chain-of command was as follows:

• First-line supervisor: Pedro Mendez (“Mendez”), from October 1, 2006, to

April 13, 2007; fellow-plaintiff Benton, from April 15, 2007, to July 7,

2007; Richard Freeman (“Freeman”), from July 8, 2007, to August 5,

2007; and Paul Dangel (“Dangel”), from August 4, 2007, to September 30,

2007;

• Second-line supervisor: Mitchell Farah (“Farah”); and

• Third-line supervisor: Fayne, until September 2008; Becton-Johnson,

from September 2008, to July 31, 2009.

Def.’s Stmt. ¶¶ 65-67; Pls.’ Stmt. ¶¶ 65-67.

1. Mason’s Complaints as to a Series of “Incidents” With His Supervisors

Mason complains of a series of approximately fourteen “incidents” that allegedly

occurred between him and his supervisors in the approximately three-year period extending from

June 2, 2006, to July 31, 2009.25 See Pls.’ MSJ Opp’n at 12-24. Mason provides only the barest

25

The Court shall disregard Mason’s sporadic allegations that he was “stalked” or

“harassed” on a “daily basis” when those allegations are unaccompanied by any meaningful

factual support. See Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462,

465-66 (D.C. Cir. 2009) (conclusory assertions offered without any factual basis in the record

cannot create a genuine dispute sufficient to survive summary judgment). Absent further factual

content, Mason has failed to adduce sufficient facts that would allow a reasonable trier of fact to

conclude that his allegations would meaningfully contribute to a severe or pervasive hostile work

18

of factual content in connection with these incidents, and the Court identifies them here seriatim.

• The June 2, 2006, Incident: Mason alleges that he attended a meeting

with his third-line supervisor, Fayne, to discuss and resolve his concerns

about “personnel information and chain of command reporting structure.”

Pls.’ MSJ Opp’n at 12; Pls.’ Interrog. Resps. No. 3. Mason claims that his

concerns were not “corrected or resolved in a timely manner.” Pls.’ MSJ

Opp’n at 12; Pls.’ Interrog. Resps. No. 3.

• The March 7, 2007, Incidents: Mason alleges that he received a

“harassing” e-mail from his third-line supervisor, Fayne, in which Fayne

indicated that “she was not going to meet with him to address his ongoing

and unresolved concerns.” Pls.’ MSJ Opp’n at 13; Pls.’ Interrog. Resps.

No. 3. In addition, Mason alleges that he received “a very disturbing,

environment. In addition, the Court shall disregard Mason’s stand-alone allegation that “[o]n or

around December 18, 2002, Mr. Farah approached [him] . . . in an aggressive and demeaning

manner,” “demand[ing] information about a project that Ron Hazell was working on” and

“rais[ing] his voice.” Pls.’ MSJ Opp’n at 21 (citing Dep. of Gerald Plater (“Plater Dep.”) at 52-

55). First, the date identified by Mason—December 18, 2002—would place the alleged incident

several years before any other event allegedly comprising the hostile work environment, and yet

Mason makes no attempt to explain how an event so remote in time could possibly be construed

as part of the same work environment (the Court acknowledges that Mason may have

misidentified the date in his opposition, but neither his opposition nor the record provides an

unambiguous date that would allow the Court to conclude that the event occurred closer in time).

Second, the incident is conspicuously absent from Mason’s responses to the Secretary’s

interrogatories calling upon him to identify each and every alleged incident of harassment

supporting his claims. Pls.’ Interrog. Resps. Nos. 3, 5. Third, by burying the allegation in his

sixty-eight page opposition memorandum instead of including it in his responsive statement of

material facts, Mason failed to raise the allegation in the specific manner prescribed by the Court.

See 6/11/09 Scheduling & Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil

Action No. 09-462) at 3; Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 21-22.

Regardless, even if the Court were to consider Mason’s allegations in this regard, it would not

warrant reaching a different result with respect to the pending motions.

19

condescending, and harassing e-mail” from his second-line supervisor,

Farah, on the same day, in which Farah told Mason that he was “not

familiar” with the 2006 Settlement. Pls.’ MSJ Opp’n at 13; Pls.’ Interrog.

Resps. No. 3.

• March 26, 2007, Incident: Mason alleges that he attended a “private

meeting” with his first-line supervisor, Mendez, and second-line

supervisor, Fayne, in which Fayne spoke to him “in a very aggressive tone

and derogatory, condescending and insensitive way” when Fayne allegedly

told Mason that “she was ‘singling him out’ because of his expertise and

because of his marital status of being ‘single.’” Pls.’ MSJ Opp’n at 14;

Pls.’ Interrog. Resps. No. 3.

• The April 30, 2007, Incident: Mason alleges that he was required to

attend an “impromptu personnel meeting” called by his third-line

supervisor, Fayne, and attended by various senior-level management

officials, concerning “ongoing and unresolved personnel issues.” Pls.’

MSJ Opp’n at 15; Pls.’ Interrog. Resps. No. 3. Without further

explanation, Mason contends that he felt “singled-out” and “harassed” by

being required to attend an “inappropriate and mandated meeting.” Pls.’

MSJ Opp’n at 15; Pls.’ Interrog. Resps. No. 3.

• The June 28, 2007, Incident: Mason alleges that he was copied on “a

very disturbing, condescending, and harassing” e-mail from his second-

line supervisor, Farah, in which Farah stated to co-plaintiff Benton that

20

Mason “could not act on Mr. Benton’s behalf for even the one week while

he was out of the office.” Pls.’ MSJ Opp’n at 15-16; Pls.’ Interrog. Resps.

No. 3. Mason contends that the e-mail was designed to “single-out and

publically embarrass [him] in front [of] other management officials and

coworkers.” Pls.’ MSJ Opp’n at 15-16; Pls.’ Interrog. Resps. No. 3.

• The December 10, 2007, Incident: Mason alleges that he witnessed his

second-line supervisor, Farah, hand co-plaintiff Benton a “sealed

confidential envelope which contained a bogus management directive of

reprimand” pertaining to Benton. Pls.’ MSJ Opp’n at 17-18; Pls.’

Interrog. Resps. No. 3.

• The February 29, 2008, Incident: Mason alleges that he was approached

“in an aggressive, condescending, disruptive and harassing manner” at his

workstation by his first-line supervisor, Mendez, and his second-line

supervisor, Farah, who handed Mason “a sealed confidential envelope

containing a bogus management directive of reprimand with other

coworkers were [sic] present.” Pls.’ MSJ Opp’n at 18-19; Pls.’ Interrog.

Resps. No. 3.

• The March 31, 2008, Incident: Mason alleges that he witnessed his

third-line supervisor, Fayne, approach co-plaintiff Benton “in a

threatening, condescending, disruptive, abusive, hostile and harassing

verbal tone and manner” by “berat[ing] Mr. Benton for not agreeing to

attend an impromptu meeting about a confidential matter.” Pls.’ MSJ

21

Opp’n at 19-20; Pls.’ Interrog. Resps. No .3

• The June 19, 2008, Incident: Mason alleges that he witnessed his

second-line supervisor, Farah, approach co-plaintiff Benton’s workstation

and “attempt [to] embarrass, degrade, and humiliate [] Benton with [sic]

publically handing him . . . a confidential sealed envelope.” Pls.’ Interrog.

Resps. No. 3.

• October 6, 2008, Incident: Mason alleges that he was approached by his

second-line supervisor, Farah,“in an aggressive, condescending, disruptive

and harassing manner” when Farah provided him with a “sealed

confidential envelope[]” containing a letter proposing disciplinary action.

Pls.’ MSJ Opp’n at 20-21; Pls.’ Interrog. Resps. Nos. 3, 5.

• January 7, 2009, Incident: Mason alleges that he was approached by his

second-line supervisor, Farah, “in an aggressive, demeaning, abusive,

harassing and hostile manner, when [Farah] handed him a sealed

confidential envelope containing a [letter] imposing a 3-day suspension

without pay.” Pls.’ MSJ Opp’n at 21-22; Pls.’ Interrog. Resps. Nos. 3, 5.

• February 4, 2009, Incident: Mason alleges that his second-line

supervisor, Farah, “repeatedly came down to [his] work area to stalk and

harass [him] at his workstation to humiliate and embarrass him in a very

condescending, threatening and demeaning manner in front of co-

workers.” Pls.’ MSJ Opp’n at 22-23; Pls.’ Interrog. Resps. Nos. 3, 5.

• July 28, 2009, Incident: Mason alleges that he was approached by his

22

first-line supervisor, Dangel, “in an aggressive, demeaning, abusive,

harassing and hostile manner.” Pls.’ MSJ Opp’n at 23; Pls.’ Interrog.

Resps. No. 3.

• July 31, 2009, Incident: Mason alleges that he attended a meeting with

his first-line supervisor, Dangel, during which Dangel “wanted [him] to

sign and date a memorandum stating Notice of Unsatisfactory

Performance of Duty and Failure to Respond Readily to the Directions of

your Supervisor,” which he characterizes as “totally untrue, unwarranted,

and unlawful against him.” Pls.’ MSJ Opp’n at 23-24; Pls.’ Interrog.

Resps. No. 3.

2. Mason’s Non-Selection for the ‘322 Position

On or about April 16, 2007, Mason applied for the position of Branch Chief of Functional

Publishing, Vacancy Announcement 40-41-AT7TG322 (“‘322 Position”). Def.’s Stmt. ¶ 68;

Pls.’ Stmt. ¶ 68. Five employees, all African American, were named to the best-qualified list for

the ‘322 Position. Def.’s Stmt. ¶ 69; Pls.’ Stmt. ¶ 69. In addition to Mason, included on the list

were (1) co-plaintiff Benton, (2) Freeman, (3) Vincente Tillman (“Tillman”), and (4) Cynthia

McKinney (“McKinney”). Def.’s Stmt. ¶ 69; Pls.’ Stmt. ¶ 69. Steve Manno (“Manno”) was the

ranking official, Farah was the recommending official, and Fayne was the selecting official.

Def.’s Stmt. ¶¶ 70, 72; Pls.’ Stmt. ¶¶ 70, 72.

As the ranking official, Manno began the process by reviewing the application packages

and written submissions that the five candidates submitted and assigning each candidate a

23

score.26 Def.’s Stmt. ¶¶ 70, 73; Pls.’ Stmt. ¶¶ 70, 73. Mason received a ranking score of 95

points.27 Def.’s Stmt. ¶ 74; Pls.’ Stmt. ¶ 74. Thereafter, the candidates were interviewed by a

three-person panel, which asked each candidate identical questions and rated their responses.

Def.’s Stmt. ¶ 75; Pls.’ Stmt. ¶ 75. Mason received an interview score of 22 points. Def.’s Stmt.

¶ 76; Pls.’ Stmt. ¶ 76. The final scores for all five candidates were as follows:

NAME RANKING SCORE INTERVIEW SCORE

Freeman (selectee) 100 28

Tillman 100 22

Mason 95 22

Benton 95 21

McKinney 90 17

26

In responding to the Secretary’s proffered factual statement, Mason concedes that the

statement is admitted, but then proceeds to set forth additional factual allegations. Specifically,

Mason alleges that Manno “ranked his direct subordinate, Vincente Tillman, which constituted a

conflict of interest and compromised the Agency’s selection process in accordance with the

Internal Revenue Manual (IRM) 6.335.1 - Merit Promotion Plan.” Pls.’ Stmt. ¶ 70 (citing Dep.

of Steve Manno (“Manno Dep.”) at 12). But Mason does not identify any language in the

Internal Revenue Manual that prohibited Manno from evaluating a subordinate, and more

importantly, Mason fails to cite to evidence in the record that would permit the Court to evaluate

the validity of the claim—most notably, the Internal Revenue Manual itself. “Judges ‘are not

like pigs, hunting for truffles buried in briefs’ or the record,” Potter v. District of Columbia, 558

F.3d 542, 553 (D.C. Cir. 2009) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th

Cir.1991)), and the Court declines Mason’s invitation to sift through the record in an attempt to

locate evidence in support of his claim. Because these extraneous factual allegations are

unaccompanied by sufficiently specific “references to the parts of the record relied on [for]

support,” LCV R 7(h)(1), the Court will disregard them. In any event, Mason fails to adduce

evidence that would allow the trier of fact to conclude that any procedural error was intentional

or otherwise indicative of a retaliatory animus against him.

27

In responding to the Secretary’s proffered factual statement, Mason concedes that the

statement is admitted, but then proceeds to allege that Manno’s ranking process was “biased and

unfair.” Pls.’ Stmt. ¶ 74. Because this extraneous factual allegation is unaccompanied by

“references to the parts of the record relied on [for] support,” LCV R 7(h)(1), it shall be

disregarded by the Court. Mason adduces no evidence in support of his allegation.

24

See Def.’s Ex. M (Management Selection Program Ranking Form for R. Freeman); Def.’s Ex. N

(Management Selection Program Ranking Form for V. Tillman); Def.’s Ex. O (Management

Selection Ranking Form for D. Benton); Def.’s Ex. P (Management Selection Program Ranking

Form for C. McKinney); Def.’s Ex. Q (Management Selection Ranking Form for E. Mason).

The scores were then reviewed by Farah, who as the recommending official chose the

highest-ranking candidate—Freeman. Def.’s Ex. L (Promotion Certificate) at 1501. Thereafter,

the scores and Farah’s recommendation were reviewed by Fayne, who as the selecting official

selected the highest-ranking candidate—Freeman—on July 8, 2007. Def.’s Stmt. ¶¶ 78-79; Pls.’

Stmt. ¶¶ 78-79; Def.’s Ex. L (Promotion Certificate) at 1501.

The application and review materials demonstrated a “clear separation” between Freeman

and the other four candidates, including Mason.28 Def.’s Stmt. ¶ 80. Both Manno, as the ranking

official, and the interview panel agreed that Freeman possessed the most extensive managerial

experience, demonstrated more relevant professional achievement than the other candidates, and

had an educational background that was superior or comparable to the other candidates.29 Id. ¶

28

Mason purports to dispute the Secretary’s proffered factual statement, but his argument

is non-responsive. See Pls.’ Stmt. ¶ 80. While Mason alleges that “Mr. Freeman was selected

because Ms. Fayne and Mr. Farah harbored a retaliatory animus against Mr. Mason and Mr.

Benton,” Pls.’ Stmt. ¶ 80, he provides no explanation or evidentiary basis that would call into

doubt the Secretary’s proffered statement that, viewed objectively, “[t]he application packages

and the interview panelists’ notes demonstrate a clear separation between Freeman and the rest of

the candidates,” Def.’s Stmt. ¶ 80. Accordingly, the Court will deem the Secretary’s proffered

statement to be admitted. The Court addresses Mason’s generalized allegations of bias elsewhere

in this Memorandum Opinion.

29

Mason purports to dispute the Secretary’s proffered factual statement, but his argument

is non-responsive. See Pls.’ Stmt. ¶ 81. In responding, Mason incorporates his response to an

entirely different factual statement, but the incorporated response pertains to Farah and Fayne’s

alleged bias, and provides no explanation or evidentiary basis to call into doubt the determination

of the interview panelists or Manno. Accordingly, the Court will deem the Secretary’s proffered

25

81. At his deposition, Mason admitted that he was not the most qualified candidate for the ‘322

Position. Dep. of Euel Mason (“Mason Dep.”) at 206-08. In his own view, at least two

candidates—Tillman and co-plaintiff Benton—should have been selected over him. Id.

3. Mason’s Request for a Rotational Work Assignment

On March 28, 2008, employees in the M&P Organization received an e-mail describing

the Rotational Work Assignment Program, which was designed to “provide Printing Specialists

the opportunity to gain a broader knowledge base of the organization and its programs.” Def.’s

Stmt. ¶ 84; Pls.’ Stmt. ¶ 84. Employees were invited to select up to three program choices for a

rotational work assignment and to submit their choices to their supervisor by April 11, 2007,

along with a statement explaining why the choices would benefit the IRS. Def.’s Ex. R (E-mail

from T. Costa to M&P Listserv dated Mar. 27, 2007) at 1. Mason submitted his requests for a

rotational assignment on April 23, 2007, after the submission deadline had elapsed. Def.’s Stmt.

¶ 85; Pls.’ Stmt. ¶ 85. Nonetheless, Mason’s second-line supervisor, Farah, considered Mason’s

request. Def.’s Stmt. ¶ 86; Pls.’ Stmt. ¶ 86. After consulting with Mason’s first-line supervisor,

co-plaintiff Benton, and his third-line supervisor, Fayne, Farah decided that Mason should

remain in his current position in order to complete an ongoing project, the VERA/VSIP Mailout

Program, and denied Mason’s request on April 23, 2007.30 Def.’s Stmt. ¶ 86; Pls.’ Stmt. ¶ 86;

statement to be admitted. The Court addresses Mason’s generalized allegations of bias on the

part of Farah and Fayne elsewhere in this Memorandum Opinion.

30

In responding to the Secretary’s proffered factual statement, Mason first concedes that

the statement is admitted, but then proceeds to raise a series of extraneous factual allegations

concerning a “Special Project Team for the Publishing Workforce Program producing various

Reduction In Force (RIF) packages.” Pls.’ Stmt. ¶ 86. It is unclear how these allegations, which

are stated without any meaningful factual context, even relate to the Secretary’s proffered

statement. In any event, because these extraneous factual allegations are unaccompanied by

26

Def.’s Ex. R (E-mail from M. Farah to E. Mason dated Apr. 23, 2007). Mason’s first-line

supervisor, co-plaintiff Benton, had informed Farah that another important mailout was

upcoming and that Mason’s participation in the project was necessary. Def.’s Stmt. ¶ 87; Pls.’

Stmt. ¶ 87. However, after the VERA/VSIP Mailout Program had concluded, Mason renewed

his request for a rotational assignment. Def.’s Stmt. ¶ 89; Pls.’ Stmt. ¶ 89. Farah responded the

very next day by granting Mason’s request, notifying Mason that he would be granted a rotational

work assignment to the Wage & Investment Tax Products Branch Chief’s office beginning on

August 5, 2007.31 Def.’s Stmt. ¶ 90; Def.’s Ex. R (E-mail from M. Farah to E. Mason dated July

27, 2007).

4. Mason’s Request for a Transfer to the New Carrollton Office

On August 30, 2007, Mason sent an e-mail to his third-line supervisor, Fayne, requesting

that his post of duty be changed from IRS Headquarters in Washington, D.C., to the IRS’s New

Carrollton office located in Lanham, Maryland. Def.’s Stmt. ¶ 91; Pls.’ Stmt. ¶ 91. Fayne

responded to Mason’s request later that day, reminding Mason of the general policy that requests

by employees in the M&P Organization for a transfer to New Carrollton office would not be

considered until January 2008 because the M&P Organization had in place a moratorium on all

relocations to the New Carrollton office affecting all employees in the organization. Def.’s Stmt.

“references to the parts of the record relied on [for] support,” LCV R 7(h)(1), the Court will

disregard them.

31

Mason purports to dispute the Secretary’s proffered factual statement. See Pls.’ Stmt.

¶ 91. However, his narrative response concedes that “Mr. Farah approved [his] request to [be]

reassigned to the W&I Publishing Branch,” and it is unclear what part of the proffered factual

statement Mason intends to dispute. Id. In any event, because Mason’s response is

unaccompanied by “references to the parts of the record relied on [for] support,” LCV R 7(h)(1),

the Court will deem the Secretary’s proffered factual statement to be admitted.

27

¶ 92; Pls.’ Stmt. ¶ 92; Def.’s Ex. S (E-mail from D. Fayne to E. Mason dated Aug. 30, 2007). At

his deposition, Mason admitted that he was already aware of the policy at the time that he made

his request. Mason Dep. at 177-78. He has also conceded that he is unable to identify any other

employee in the M&P Organization who requested and was granted a transfer to the New

Carrollton office during the moratorium. Def.’s Stmt. ¶ 95; Pls.’ Stmt. ¶ 95.

5. Mason’s Request to Be Reassigned to Another Branch

On December 17, 2007, Mason requested to be transferred to another branch within the

M&P Organization.32 Def.’s Stmt. ¶ 96; Pls.’ Stmt. ¶ 96. On December 18, 2007, Mason’s

second-line supervisor, Farah, denied the request, citing as grounds that Mason had just recently

been transferred to the Functional Publishing Branch in July 2007 and that there was no staffing

need for someone working in Mason’s position in any of the other branches.33 Def.’s Stmt. ¶ 98;

32

Mason also alleges that another request for reassignment was denied sometime in May,

2009. See Pls.’ MSJ Opp’n at 23 (citing Pls.’ Interrog. Resps. No. 4). For several reasons, the

Court shall disregard the allegation. First, by burying the allegation in his sixty-eight page

opposition memorandum instead of including it in his responsive statement of material facts,

Mason failed to raise the allegation in the specific manner prescribed by the Court. See 6/11/09

Scheduling & Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil Action No.

09-462) at 3; Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 21-22. Second, it is

undisputed that Mason failed to raise any such allegation on the administrative level, Def.’s Stmt.

¶ 97; Pls.’ Stmt. ¶ 97, and yet he never even attempts to explain why it could properly be

considered by the Court. Third, Mason adduces no evidence that would suggest that the denial of

his request had anything to do with his protected activity; he offers only his conclusory allegation

that it was “a result of on-going retaliation.” Pls.’ Interrog. Resps. No. 4. Regardless, even if the

Court were to consider Mason’s allegation, it would not warrant reaching a different result with

respect to the pending motions.

33

Mason purports to dispute the Secretary’s proffered factual statement, but in so doing

he provides no explanation or evidentiary basis for calling into doubt either that he had just

recently been transferred to the Functional Publishing Branch in 2007 or that there was no

staffing need for someone working in Mason’s position in any of the other branches. See Pls.’

Stmt. ¶ 98. Accordingly, the Court shall deem those matters to be admitted. Mason’s response

instead alleges that Farah otherwise harbored a generalized retaliatory animus, an argument

28

Def.’s Ex. U (Decl. of Paul L. Dangel) at 1112; Def.’s Ex. V (Decl. of Mitchell A. Farah) at 992.

6. Mason’s Request for a “Flexiplace” Assignment

On October 15, 2007, Mason met with his first-line supervisor, Dangel, during which he

provided Dangel with a memorandum entitled “Requests for Family Medical Leave Act and

Flexi-Place,” and a seven-page, single-spaced “Informal Meeting Agenda.” Def.’s Stmt. ¶ 99;

Pls.’ Stmt. ¶ 99. In the memorandum, Mason explained that he had two sisters in Memphis,

Tennessee, who required his support and requested “to be approved for the Family Medical

Leave Act” and “to be allow [sic] to work Flexi-place from the Memphis Service Center

Campus.” Def.’s Stmt. ¶ 100; Pls.’ Stmt. ¶ 100. In the agenda, Mason expressly asked Dangel to

seek approval for the requests on his behalf from “appropriate upper management officials.”

Def.’s Stmt. ¶ 101; Pls.’ Stmt. ¶ 101. Pursuant to Mason’s request, Dangel subsequently

approached his supervisors and inquired whether Mason could work in Memphis. Def.’s Stmt. ¶

102; Pls.’ Stmt. ¶ 102. It is undisputed that Dangel did not discuss the nature of Mason’s sisters’

illness, Mason’s prior protected activity, or Mason’s participation in the Employee Assistance

Program with his supervisors.34 Def.’s Stmt. ¶ 103; Pls.’ Stmt. ¶ 103.

which the Court addresses elsewhere in the Memorandum Opinion.

34

In responding to the Secretary’s proffered factual statement, Mason unambiguously

states that he admits that “Dangel did not discuss Mason’s EEO activity, participation in the

Employee Assistance Program, or the nature of [Mason’s] sisters’ illnesses with his supervisors.”

Def.’s Stmt. ¶ 103; Pls.’ Stmt. ¶ 103. The Court will hold Mason to this unambiguous

admission, even if it may be in tension with his responses to an interrogatory posed by the

Secretary in the course of discovery. See Pls.’ Interrog. Resps. No. 6 (alleging that “Dangel

disclosed [Mason’s] confidential employee information to Mr. Farah and Denise S. Fayne,”

including “1) plaintiff’s EEO activity at the time, 2) plaintiff seeking counseling through the

Employee Assistance Program (EAP), and 3) medical issues regarding plaintiff’s family

members that reside out of state.”). In any event, Mason’s cursory interrogatory responses fail to

explain how he could possibly have personal knowledge of the conversation, and as such is an

29

Subsequently, Dangel notified Mason that he had spoken with Farah and Fayne about his

requests. Def.’s Stmt. ¶ 104; Pls.’ Stmt. ¶ 104. This prompted Mason to send a lengthy e-mail to

his first-line supervisor, Dangel, his second-line supervisor, Farah, his third-line supervisor,

Fayne, and his fifth-line, Atlanta-based supervisor, Susan Carroll, entitled, “Did not need to

know requesting [sic] reassignment its [sic] a trust broken reassigned [sic] to B-tax chief or Pub.

chief.” Def.’s Stmt. ¶ 105; Pls.’ Stmt. ¶ 105.

7. Mason’s “Met” Rating on His 2007 Performance Appraisal

Following implementation of the 2006 Settlement, Mason was promoted to a GS-14-

level, 1601-series Technical Advisor position. Def.’s Stmt. ¶ 106; Pls.’ Stmt. ¶ 106. Prior to the

promotion, Mason was a GS-13, non-managerial, non-bargaining-unit employee and received

performance appraisals on Form 6850-NBU. Def.’s Stmt. ¶ 107; Pls.’ Stmt. ¶ 107. Following

his promotion to Technical Advisor, however, Mason was evaluated under Form 12450-B, which

is typically used for management officials.35 Def.’s Stmt. ¶ 108; Pls.’ Stmt. ¶ 108. Form 12450-

B differs from Form 6850-NBU because it contains so-called “critical performance expectations”

(“CPEs”), concrete goals specifically designed for each employee being evaluated. Def.’s Stmt.

¶ 109; Pls.’ Stmt. ¶ 109. The Form 6850-NBU does not contain these specific, employee-tailored

performance expectations and instead evaluates employees using general achievement criteria

insufficient basis for a reasonable trier of fact to disregard the contrary evidence in the record.

See Dep. of Paul Dangel (“Dangel Dep.”) at 51.

35

In responding to the Secretary’s proffered factual statement, Mason first concedes that

the statement is admitted, and then proceeds to raise a number of incoherent, extraneous factual

allegations. See Pls.’ Stmt. ¶ 108 (citing Pls.’ Interrog. Resps. No .7). In support, Mason cites

exclusively to his response to an interrogatory posed by the Secretary in the course of discovery,

which does not support the factual allegations identified. See Pls.’ Interrog. Resps. No. 7.

30

like “customer satisfaction” and “business results.” Def.’s Stmt. ¶ 110; Pls.’ Stmt. ¶ 110. In

short, with his promotion, Mason was being evaluated based on new criteria. Def.’s Stmt. ¶ 111;

Pls.’ Stmt. ¶ 111.

The matter was complicated somewhat when Mason stated that he did not want to assume

managerial responsibilities upon his promotion.36 Def.’s Stmt. ¶ 112; Dep. of Denise Fayne

(“Fayne Dep.”) at 77-78. Due to Mason’s refusal to accept a managerial position, an entirely

new, non-managerial position was created especially for him at the GS-14 level.37 Def.’s Stmt. ¶

113; Fayne Dep. at 72-73, 77. Because Mason held a non-managerial GS-14-level position, there

was initially some confusion as to whether Mason should continue to be evaluated under Form

6850-NBU or should instead be evaluated under Form 12450-B. Def.’s Ex. Z (Suppl. Decl. of

Pedro Martinez) at 1158. Later, it was discovered that Mason should have been provided with

his CPEs when he was first promoted, and should have been switched over to the Form 12450-B

at that time. Def.’s Stmt. ¶ 114; Pls.’ Stmt. ¶ 114. When the oversight came to light, Mason’s

supervisors converted him to Form 12450-B and issued him the CPEs that would help determine

his ultimate rating on the Form 12450-B. Def.’s Stmt. ¶ 115; Pls.’ Stmt. ¶ 115.

Consistent with this account, Mason’s first-line supervisor, Mendez, initially signed

Mason’s review on the Form 6850-NBU on February 27, 2007, issuing Mason a rating of

36

While Mason purports to dispute the Secretary’s proffered factual statement, asserting

the he “was willing to take an acceptable management position,” his response is unaccompanied

by “references to the parts of the record relied on [for] support.” LCV R 7(h)(1). Accordingly,

the Court will deem the Secretary’s proffered factual statement to be admitted.

37

While Mason purports to dispute the Secretary’s proffered factual statement, asserting

that he “was willing to take an acceptable management position,” his response is unaccompanied

by “references to the parts of the record relied on [for] support.” LCV R 7(h)(1). Accordingly,

the Court will deem the Secretary’s proffered factual statement to be admitted.

31

“Outstanding”—the highest rating available—for the period from February 1, 2006, to January

31, 2007.38 Def.’s Stmt. ¶ 116; Def.’s Ex. Y (Non Bargaining Unit Performance Appraisal for

Euel Mason) at 1740. Mason was subsequently converted to Form 12450-B for the period from

October 1, 2006, to September 30, 2007. Def.’s Stmt. ¶ 117; Pls.’ Stmt. ¶ 117. On April 20,

2007, Mason and his first- and second-line supervisors signed a mid-year progress review in

which Mason acknowledged that he had discussed the CPEs with his supervisors and was given

specific examples of the behavior that would meet the standards described in the CPEs. Def.’s

Stmt. ¶ 118; Pls.’ Stmt. ¶ 118.

At the end of fiscal-year 2007, Mendez furnished Mason with a summary narrative of

Mason’s achievements to be included in his Form 12450-B evaluation.39 Def.’s Stmt. ¶ 119;

38

Mason purports to dispute the Secretary’s proffered factual statement, but the only

evidence in the record cited by Mason in his response supports, rather than undermines, the

veracity of the statement. See Pls.’ Stmt. ¶ 116 (citing Def.’s Ex. Y (Non Bargaining Unit

Performance Appraisal for Euel Mason)). Accordingly, the Court shall deem the Secretary’s

proffered factual statement to be admitted.

39

Mason purports to dispute the Secretary’s proffered factual statement, claiming that

Mendez “was not [his] first-line supervisor at the conclusion of his FY Management Official

Performance Agreement.” Pls.’ Stmt. ¶ 119 (citing Pls.’ Interrog. Resps. No. 7). While the

evidence cited by Mason does not actually support his response, see Pls.’ Interrog. Resps. No. 7,

it is undisputed that Dangel was Mason’s first-line supervisor at the conclusion of the

performance period on September 30, 2007, Def.’s Stmt. ¶ 67; Pls.’ Stmt. ¶ 67. At the same

time, it is undisputed that Mendez was Mason’s first-line supervisor from October 1, 2006,

through April 13, 2007, which comprised the majority of the performance period relevant to the

appraisal. Def.’s Stmt. ¶ 67; Pls.’ Stmt. ¶ 67; Def.’s Ex. X (Management Official Performance

Agreement for E. Mason) at 1681. For the remainder of the performance period, Mason had

three separate first-line supervisors—co-plaintiff Benton, Freeman, and Dangel. Def.’s Stmt. ¶

67; Pls.’ Stmt. ¶ 67. The Secretary asserts that neither Benton, Freeman, nor Dangel contributed

to the appraisal because they each supervised Mason for less than 60 days, see Def.’s MSJ Mem.

at 8 n.8, the minimum time required to issue a performance appraisal, and this assertion is left

uncontested by Mason. More to the point, Mason’s response does not present any explanation or

evidentiary basis to call into doubt the Secretary’s proffered factual statement that “[a]t the end

of FY 2007, Mendez furnished Mason with a Summary Narrative of Mason’s achievement to be

32

Def.’s Ex. X (Management Official Performance Agreement for E. Mason) at 1685. Mendez

also asked Mason to prepare a self-assessment for the year, which Mason provided. Def.’s Stmt.

¶ 120; Pls.’ Stmt. ¶ 120. Mendez reviewed Mason’s self-assessment and, based on Mason’s

narrative, determined that Mason had successfully “met” his CPEs.40 Def.’s Stmt. ¶ 121; Pls.’

Stmt. ¶ 121. However, Mendez at first refused to sign the evaluation because he was no longer

Mason’s first-line supervisor of record at the conclusion of the performance period. Mendez

Dep. at 107. Instead, Mendez forwarded the evaluation to Mason’s second-line supervisor,

Farah, for his review. Def.’s Stmt. ¶ 122; Pls.’ Stmt. ¶ 122. Like Mendez, Farah determined that

Mason had successfully “met” his CPEs.41 Def.’s Stmt. ¶ 123; Dep. of Mitchell Farah (“Farah

Dep.”) at 42-44. The “met” rating meant that Mason “achieved or made substantial progress

toward achievement of desired results” with respect to his commitments and that he displayed

“solid, dependable performance.” Def.’s Stmt. ¶ 124; Pls.’ Stmt. ¶ 124. Mason claims that he

did not receive his appraisal until early October 2008. Pls.’ Stmt. ¶ 117 (citing Pls.’ Interrog.

included in his evaluation.” Def.’s Stmt. ¶ 119.

40

In responding to the Secretary’s proffered factual statement, Mason concedes that the

statement is admitted, but then proceeds to raise a number of extraneous factual allegations. See

Pls.’ Stmt. ¶ 121 (citing Pls.’ Interrog. Resps. No. 7). However, the evidence relied upon by

Mason in support of his allegations does not support his position. See Pls.’ Interrog. Resps. No.

7. For instance, Mason provides no competent evidence that would allow a reasonable trier of

fact to conclude, as he suggests, that the handling of his appraisal was somehow inconsistent

with the IRS’s Performance Appraisal Policy. See Pls.’ Stmt. ¶ 121.

41

Mason purports to dispute the Secretary’s proffered factual statement, but in so doing

he provides no explanation or evidentiary basis for calling into doubt that Farah reviewed the

evaluation and determined that Mason had successfully “met” his CPEs. See Pls.’ Stmt. ¶ 123.

Accordingly, the Court shall deem those matters to be admitted. Mason’s response instead

alleges that Farah otherwise harbored a generalized retaliatory animus, an argument which the

Court addresses elsewhere in the Memorandum Opinion.

33

Resps. No. 7). However, it is undisputed that Mason’s “met” rating became official on

November 26, 2007, when Farah electronically signed the evaluation and provided it to Mason

on the IRS’s ePerformance system.42 Def.’s Stmt. ¶ 126; Pls.’ Stmt. ¶ 126. For months, Mason

refused to sign the evaluation, insisting that Mendez sign it first. Farah Dep. at 44-51.

8. Mason’s “Met” Rating on His 2008 Performance Appraisal

Mason also received a “Met” rating for fiscal-year 2008. Def.’s Stmt. ¶ 129; Pls.’ Stmt. ¶

129; Def.’s Ex. CC (Management Official Performance Agreement for E. Mason). Mason’s

first-line supervisor, Dangel, compared Mason’s achievements to his pre-set CPEs and

determined that Mason had satisfactorily met his goals.43 Def.’s Stmt. ¶ 130; Dangel Dep. at 83-

85. According to Dangel, Mason had met his CPEs and performed adequately on all

assignments, though there were several assignments that were either late, inaccurate, or

incomplete. Def.’s Ex. DD (Decl. of Paul L. Dangel) at 133.

9. Mason’s Three-Day Suspension

Mason routinely sent e-mails to his supervisors and senior IRS officials raising what he

claims were “workplace concerns.” Def.’s Stmt. ¶ 136; Pls.’ Stmt. ¶ 136. For example, on June

6, 2008, Mason sent a four-page, single-spaced e-mail about his 2007 performance appraisal to

42

The Secretary claims that “Mason’s rating was the first to be signed and approved by

Mitchell Farah among the Technical Advisors in FY 2007.” Def.’s Stmt. ¶ 127. Mason, in turn,

claims that “Doug King, Kathy Nemeth and Darryl Robinson received their ratings long before

Mr. Mason.” Pls.’ Stmt. ¶ 127. Because neither party cites to any record evidence in support of

their respective positions, the Court shall disregard both statements.

43

Mason purports to dispute the Secretary’s proffered factual statement, but his response

merely incorporates a response to an entirely different factual statement that has no direct bearing

on the statement. See Pls.’ Stmt. ¶ 125. Accordingly, the Court shall deem the Secretary’s

proffered factual statement to be admitted.

34

his first-, second-, third-, and acting-third-line supervisors, as well as to the following senior IRS

officials: Douglas H. Shulman, IRS Commissioner; Richard E. Byrd, Commissioner of the Wage

& Investment Division; Pamela G. Watson, Deputy Commissioner of the Wage & Investment

Division; and Linda E. Stiff, Deputy Commissioner of the Small-Business/Self-Employment

Division. Def.’s Stmt. ¶ 137; Pls.’ Stmt. ¶ 137; Def.’s Ex. EE (E-mail from E. Mason to P.

Dangel dated June 6, 2008) at 1334-37. In the e-mail, Mason insisted that the

“PERFORMANCE APPRAISAL PROCESS should be ‘eliminated’” because “it’s totally

‘bias [sic], unfair, and unlawful.’” Def.’s Ex. EE (E-mail from E. Mason to P. Dangel dated June

6, 2008) at 1335 (capitalization, emphasis, and internal quotation marks in original).

Eventually, Mason was directed to stop sending e-mails detailing his various grievances

directly to senior IRS officials. Def.’s Stmt. ¶ 140; Pls.’ Stmt. ¶ 140. However, Mason

nonetheless continued to send the e-mails because he felt the responses he received from his

managers, the EEO apparatus, the Treasury Inspector General for Tax Administration

(“TITGA”), and the Office of Civil Rights and Diversity were “unjust.” Def.’s Stmt. ¶ 140; Pls.’

Stmt. ¶ 140. Alleging that EEO investigators “tamper” with complaints and conspire with IRS

supervisors to “cover up” wrongdoing, Mason claims that the EEO process is thoroughly

“corrupt” and “should be abolished.”44 Def.’s Stmt. ¶ 141; Pls.’ Stmt. ¶ 141. He contends that

because he was dissatisfied with his supervisors’ responses, he had a right to elevate his

complaints and to have them personally reviewed by the Secretary of the Treasury and even the

44

While these allegations may be helpful in explaining why Mason elected to

consistently send e-mails to senior IRS officials, the Court notes that neither Mason nor the other

Plaintiffs have adduced any evidence that would allow a reasonable trier of fact to conclude that

anything was amiss in the administration of the EEO apparatus or the agency grievance process.

35

President of the United States.45 Def.’s Stmt. ¶ 142; Pls.’ Stmt. ¶ 142.

After tolerating Mason’s communications for months and encouraging him to use the

IRS’s EEO apparatus and the agency grievance process to resolve his concerns, it became clear

that Mason would not stop sending such communications. Def.’s Stmt. ¶ 143; Pls.’ Stmt. ¶ 143.

Mason’s supervisors then contacted the Labor Relations Branch to determine how best to handle

the matter. Def.’s Stmt. ¶ 143; Pls.’ Stmt. ¶ 143. At that point, a Labor Relations Specialist

recommended to Mason’s supervisors that they issue him a management directive46 explaining

that his behavior was unacceptable and describing the proper channels to use in raising

workplace grievances. Def.’s Stmt. ¶ 144; Pls.’ Stmt. ¶ 144. The Labor Relations Specialist and

Mason’s supervisors subsequently drafted the management directive and provided it to Mason on

February 29, 2008. Def.’s Stmt. ¶ 146; Pls.’ Stmt. ¶ 146. The directive, entitled “Directive for

Resolving Issues of Personal Concern,” was signed by Mason’s second-line supervisor, Farah,

and provided as follows:

During the past several months, you have spent notable agency time

and resources composing and e-mailing numerous and repetitive

personal requests, complaints, and requests for information to a

number of executives, senior managers, your manager, and me. In the

case of your request for information, you have been advised to submit

you [sic] concerns through the appropriate channels; specifically, the

EEO Complaint process or the Agency Grievance process, and you

have done so. I have been, and continue to be, available to discuss

45

In responding to the Secretary’s proffered factual statement, Mason first concedes that

the statement is admitted, but then claims that the facts have been “distorted.” Pls.’ Stmt. ¶ 142.

To the contrary, Mason plainly testified at his deposition that he believes it is the “personal

responsibility” of the President of the United States and the Secretary of the Treasury to look into

the issues raised in his e-mails. Mason Dep. at 227, 229.

46

A “management directive” is merely an instruction from a supervisor to a subordinate

to “do something or stop doing something.” Def.’s Stmt. ¶ 145; Pls.’ Stmt. ¶ 145.

36

your concerns with you.

However, your use of the Agency e-mail system to demand that

management answer your written interrogatories, to disparage and

hector individual members of the Publishing Management Team, and

your misuse of government time and equipment in the pursuit of such

activities is inappropriate, disrupts the workplace and is unproductive.

You are therefore directed as follows:

1. To immediately cease using work time, government

equipment and government supplies to draft and distribute

communications which disparage or hector members of the

Publishing Leadership Team or other Agency employees;

2. To follow the established chain of command in seeking

resolution of your personal concerns, beginning with your

first-level supervisor;

3. To immediately cease sending “broadcast” communications

to multiple management officials on personal matters and/or

matters that should properly be initially presented to your

first-line manager or pursued through available dispute

resolution mechanisms, such as the EEO process or the

Agency Grievance Procedure.

4. To utilize available dispute resolution mechanisms and pursue

adjustment of workplace concerns which are not resolved to

your satisfaction by management.

Mason Dep. Ex. 19 (Mem. Directive for Resolving Issues of Personal Concern dated Feb. 28,

2008) at 1. The memorandum then proceeds to outline the procedure for invoking the agency

grievance system and EEO apparatus. Id. at 2. The memorandum concludes by warning Mason

that his failure to abide by these instructions “may result in disciplinary action.” Id.

Nonetheless, Mason continued to e-mail senior IRS officials with complaints, requests for

information, and demands to address his workplace grievances.47 Def.’s Stmt. ¶ 149. On

47

While Mason purports to dispute the Secretary’s proffered factual statement, he does

not actually contest that he continued to e-mail senior IRS officials with complaints, requests for

37

October 6, 2008, Mason’s second-line supervisor, Farah, issued a letter proposing Mason’s

suspension without pay for three days for (1) “fail[ing] to follow a directive from management,”

(2) “misus[ing] government equipment and government supplies,” and (3) “misus[ing] work

time.” Mason Dep. Ex. 20 (Notice of Proposed Disciplinary Suspension dated Oct. 6, 2008) at 1-

6. The letter identified (1) fourteen separate instances between May 9, 2008, and October 6,

2008, in which Mason allegedly sent e-mails raising “personal concerns” to higher management,

(2) thirteen separate instances in which he used government equipment to send communications

“disparag[ing] or hector[ing] members of the Publishing Leadership Team or other Agency

employees, and (3) two instances in which he “misused work time” to draft such

communications. Id. On January 6, 2009, after reviewing Mason’s e-mails and Farah’s

proposal, Mason’s third-line supervisor, Becton-Johnson, approved the three-day suspension.

Def.’s Stmt. ¶ 152; Pls.’ Stmt. ¶ 152.

10. Mason’s Resignation

On July 31, 2009, Mason’s first-line supervisor, Dangel, met with Mason to apprise him

of his unsatisfactory performance. Def.’s Stmt. ¶ 153; Pls.’ Stmt. ¶ 153. For months, Dangel had

orally notified Mason that he was not performing his duties in a timely or satisfactory manner.

Def.’s Stmt. ¶ 153; Pls.’ Stmt. ¶ 153. Dangel therefore requested that Mason meet with him to

discuss how they could improve Mason’s performance. Def.’s Stmt. ¶ 154; Pls.’ Stmt. ¶ 154.

During the meeting, Dangel furnished Mason with a memorandum detailing Mason’s

unsatisfactory performance, including Mason’s unacceptable work product (and total lack of

information, and demands to address his many workplace grievances, but instead merely claims

that his e-mail communications should not be characterized as raising “personal concerns.” Pls.’

Stmt. ¶ 149.

38

work product) with respect to several specific projects. Def.’s Stmt. ¶ 155; Pls.’ Stmt. ¶ 155;

Def.’s Ex. FF (Notice of Unsatisfactory Performance of Duty and Failure to Respond Readily to

the Directions of Your Supervisor dated July 31, 2009) at 1-3. The memorandum identifies

several instances of what was described as Mason’s “uncooperative, unresponsive and

unproductive” behavior. Def.’s Ex. FF (Notice of Unsatisfactory Performance of Duty and

Failure to Respond Readily to the Directions of Your Supervisor dated July 31, 2009) at 2. The

memorandum concludes as follows:

In summary, your work in [sic] incomplete, late, on [sic] not

delivered at all. Some of your written documents have problems with

grammar, spelling and organization.

Mr. Mason, I am more then [sic] willing to work with you but the

primary responsibility for performing the duties of your position are

[sic] yours.

Id. at 3. Mason’s work on the enumerated tasks was incomplete, late, or altogether absent, and

his work product was often sloppy and contained grammatical, spelling, and organizational

errors.48 Def.’s Stmt. ¶¶ 156-57.

In the middle of the meeting, shortly after Dangel gave Mason the memorandum, Mason

handed Dangel a pre-prepared letter of resignation. Def.’s Stmt. ¶ 158; Pls.’ Stmt. ¶ 158. In his

48

Mason purports to dispute the Secretary’s proffered factual statement, claiming that he

“completed all his assignments on time and his first-line supervisor Paul L. Dangel is wrong.”

Pls.’ Stmt. ¶ 156. However, because Mason provides no “references to the parts of the record

relied on [for] support” for his position, LCV R 7(h)(1), the Court shall deem the Secretary’s

proffered factual statement to be admitted. While Mason elsewhere cites to one of his responses

to the Secretary’s interrogatories, that response does not provide any reason to call into doubt the

Secretary’s allegation that Mason’s assignments were incomplete, late, or altogether absent. See

Pls.’ Stmt. ¶¶ 156-157 (citing Pls.’ Interrog. Resps. No. 7). Instead, that interrogatory response

merely sets forth Mason’s conclusory allegation that his annual performance review should have

been higher based on his own self-assessment of his performance. Pls.’ Interrog. Resps. No. 7.

39

letter of resignation, Mason wrote:

The reason for my resignation is that I can no longer endure your

[i.e., Dangel’s] inhumane treatment of me. I cannot fathom why,

knowing that my “Sister” is struggling against terminal cancer, she

resides in (Memphis, Tennessee) outside of the Washington, D.C.

Metropolitan Area . . . and you will not approve leave for me to care

for her. Your actions have placed me in a situation where I must

choose between my family and my job as I must either neglect my

moral duty to my “Sister” or face charges of insubordination and

Absent Without Leave (AWOL) from you and those who are

directing your actions. Because of this action and your generally

abusive, oppressive and underhanded way of treating me, I can no

longer bear working for the Internal Revenue Service (IRS) in the

“Main” IRS National Headquarters Building . . . .

I deeply regret that I have been forced to leave my professional career

job with over “22” years of Dedicated Service that was once a source

of pride and pleasure to me, but you and your Superiors in the chain

of command including up to the Commissioner of the Internal

Revenue Service (IRS) have left me no choice.

Mason Dep. Ex. 1 (Ltr. from E. Mason to P. Dangel dated July 31, 2009) at 1 (emphasis and

underlining in original). Despite the contents of Mason’s letter, it is undisputed that Dangel

never threatened Mason with an “AWOL charge” and no one ever placed Mason on “AWOL

status.” Def.’s Stmt. ¶ 160; Pls.’ Stmt. ¶ 160. Furthermore, neither Dangel nor any of Mason’s

other supervisors had ever denied any of Mason’s requests for leave without pay.49 Def.’s Stmt. ¶

161; Mason Dep. at 130-31. Dangel had personally “approved hundreds of hours of leave

without pay so that Mr. Mason could care for his sister.” Pls.’ Stmt. ¶ 165. Indeed, Dangel had

just recently approved Mason’s request for leave without pay for the week of August 10, 2009, so

49

Mason purports to dispute the Secretary’s proffered factual statement, see Pls.’ Stmt. ¶

161, but because his response is unaccompanied by “references to the parts of the record relied

on [for] support,” LCV R 7(h)(1), the Court shall deem the Secretary’s proffered statement to be

admitted. Regardless, at his deposition, Mason testified that Dangel never denied his requests for

leave without pay and could not identify anyone who had. Mason Dep. at 130-31.

40

that Mason could attend to his family in Memphis. Def.’s Stmt. ¶ 162; Pls.’ Stmt. ¶ 162.

Mason complains that Dangel did not also immediately approve Mason’s request for

leave without pay for the week of August 17, 2009. Pls.’ Stmt. ¶ 162. However, it is undisputed

that Mason had been scheduled to attend a training session during that week, which prompted

Dangel to ask Mason to provide him with a compelling reason why he could not attend the

training. Def.’s Stmt. ¶ 163; Pls.’ Stmt. ¶ 163; Dangel Dep. at 153. In an e-mail dated July 29,

2009, Dangel stated:

I am simply trying to discuss your leave request with you to determine

whether I should approve it or not. You have been scheduled for the

training the week of August 17-24, 2009. You should have known

those dates since May 20, 2009. Your request for the week of August

17-24 will be denied unless there is a very compelling reason that you

must have the week off.

Mason Dep. Ex. 1 (E-mail from P. Dangel to E. Mason dated July 29, 2009) at 1. Mason had

personally requested the training program and had known that it was scheduled for the week at

issue since at least May 2009. Def.’s Stmt. ¶ 164; Pls.’ Stmt. ¶ 164. However, Mason refused to

provide the requested explanation and instead tendered his resignation. Def.’s Stmt. ¶ 166; Pls.’

Stmt. ¶ 166.

C. Factual Background Relating to Plaintiff Donovan Benton

Benton began working at the IRS in 1987 as a GS-5-level Printing Analyst. Def.’s Stmt.

¶ 167; Pls.’ Stmt. ¶ 167. During the relevant time period, Benton was a 1601-series, GS-14-level

Technical Advisor in the M&P Organization and his chain-of-command was as follows:

• First-line supervisor: Mendez, from April 2005, until July 2007; and

Freeman, from April 2007, until January 9, 2009;

• Second-line supervisor: Farah; and

41

• Third-line supervisor: Fayne, until September 2008; and Becton-Johnson,

from September 2008, to January 9, 2009.

Def.’s Stmt. ¶¶ 168-71; Pls.’ Stmt. ¶¶ 168-71.

1. Benton’s Complaints as to a Series of “Incidents” With His Supervisors

Benton complains of a series of approximately fourteen “incidents” that allegedly

occurred between him and his supervisors in the approximately one-and-a-half-year period

extending from June 28, 2007, to January 9, 2009.50 See Pls.’ MSJ Opp’n 31-40. Benton

provides only the barest factual content in connection with these incidents, and the Court

identifies them here seriatim.

• June 28, 2007, Incident: Benton alleges that he received a “disturbing,

condescending and harassing email” from his second-line supervisor,

Farah, which “singled out” not him, but co-plaintiff Mason, by stating that

“Mr. Mason could not act on Mr. Benton’s behalf for one week while he

was out of the office.” Pls.’ MSJ Opp’n at 33; Pls.’ Interrog. Resps. No. 3.

• Early October 2007, Incident: Benton alleges that his first-line

supervisor, “Mr. Freeman[,] informed [him] that Mr. Farah was

inappropriately monitoring [his] time and attendance exclusively, despite

there had not been any issues of abusive time and attendance use on [his]

50

The Court shall disregard Benton’s sporadic allegations that he was “stalked” or

“harassed” on a “daily basis” when those allegations are unaccompanied by any meaningful

factual support. See Ass’n of Flight Attendants-CWA, 564 F.3d at 465-66 (conclusory allegations

offered without any factual basis in the record cannot create a genuine dispute sufficient to

survive summary judgment). Absent further factual content, Benton has failed to adduce

sufficient facts that would allow a reasonable trier of fact to conclude that his allegations would

meaningfully contribute to a severe or pervasive hostile work environment.

42

part.” Pls.’ MSJ Opp’n at 34; Pls.’ Interrog Resps. No. 3.

• October 28, 2007, Incident: Benton alleges that his second-line

supervisor, “Mr. Farah[,] humiliated [him] by approaching his workstation

in a disruptive, threatening, harassing, and hostile manner.” Pls.’ MSJ

Opp’n at 34; Pls.’ Interrog. Resps. No. 5.

• October 29, 2007, Incidents: Benton claims three incidents occurred on

this date. First, he alleges that he was “approached at his open and shared

workstation in an aggressive, harassing and threatening manner while

other coworkers were present in the office” by Farah, and that when he

asked Farah to “meet him in the hallway . . . Mr. Farah agreed.” Pls.’ MSJ

Opp’n at 35; Pls.’ Interrog. Resps. No. 3. Second, Benton alleges that he

was “abruptly harassed, threatened, intimidated, and bullied” by Farah “at

his open and public workstation (unannounced and unscheduled)” when

Farah “abused his authority by . . . threatening [] Benton to come to his

(Mr. Farah) office to engage in [a] discussion, without a witness.” Pls.’

MSJ Opp’n at 35; Pls.’ Interrog. Resps. No. 3. Finally, Benton alleges that

he received a “very disturbing and harassing e-mail from [Fayne] . . .

stating ‘If you feel you have been mistreated please feel free to file a

complaint and allow the third party process to settle this issue.” Pls.’ MSJ

Opp’n at 34-35; Pls.’ Interrog. Resps. No. 3.

• December 10, 2007, Incident: Benton alleges that “Mr. Farah humiliated

[him] in an aggressive manner and threatening manner” when Farah

43

“handed [him] a sealed ‘confidential’ envelope containing an unwarranted

management reprimand” in “full view of Mr. Mason and other coworkers

who might be in the shared workspace.” Pls.’ MSJ Opp’n at 36; Pls.’

Interrog. Resps. Nos. 3, 5.

• December 27, 2007, Incident: Benton alleges that his second-line

supervisor, Farah, with the permission of his third-line supervisor, Fayne,

“falsely imputed into the IRS’ annual evaluation ePerformance that [he]

refused to sign his mid-year evaluation.” Pls.’ MSJ Opp’n at 16; Pls.’

Interrog. Resps. No. 3.

• March 7, 2008, Incident: Benton alleges that his second-line supervisor,

Farah, “humiliated [him] by approaching him at his workstation in a

disruptive and hostile manner when he was handed a confidential

envelope.” Pls.’ MSJ Opp’n at 37; Pls.’ Interrog. Resps. No. 5.

• March 31, 2008, Incident: Benton alleges that his third-line supervisor,

Fayne, approached him “in a threatening, condescending, disruptive,

abusive, hostile and harassing verbal tone and manner” when Fayne

“berated [him] for not agreeing to attend an impromptu meeting.” Pls.’

MSJ Opp’n at 38; Pls.’ Interrog. Resps. Nos. 3, 5.

• June 19, 2008, Incident: Benton alleges that his first-line supervisor,

Mendez, and his second-line supervisor, Farah, approached his “open and

public workstation with other witnesses present . . . to attempt [to]

embarrass, degrade, and humiliate [him] with [sic] publically handing him

44

. . . a confidential sealed envelope.” Pls.’ MSJ Opp’n at 39; Pls.’ Interrog.

Resps. No. 3.

• October 6, 2008, Incident: Benton alleges that he was approached by his

second-line supervisor, Farah, “in an aggressive, condescending,

disruptive and harassing manner” when Farah handed him “a sealed

confidential envelope . . . which contained a letter proposing to remove

him from [the] IRS.” Pls.’ MSJ Opp’n at 39; Pls.’ Interrog. Resps. No. 3.

• December 18, 2008, Incident: Benton alleges that he “attended a

meeting” with his second-line supervisor, Farah, and his third-line

supervisor, Fayne, with co-plaintiff Mason attending, in which he was

“spoken to in a very aggressive tone that was very condescending, abusive,

insensitive, derogatory and harassing” when Fayne told him “that she did

not care if [he] was on his hospital bed—that she expected him to finish

her assignment.” Pls.’ MSJ Opp’n at 39; Pls.’ Interrog. Resps. No. 3.

• January 9, 2009, Incident: Benton alleges that he was “approached” by

his second-line supervisor, Farah, “in an aggressive, demeaning, abusive,

harassing and hostile manner in order to be removed from federal service

with the IRS and escorted from the Main IRS Headquarters Building in

front of coworkers.” Pls.’ MSJ Opp’n at 40; Pls.’ Interrog. Resps. No. 3.

2. Benton’s Non-Selection for the ‘044 Position

On or about October 30, 2006, Benton applied for the position of Printing Officer Branch

Chief, Vacancy Announcement No. 40-41-AT7TG044 (“‘044 Position”). Def.’s Stmt. ¶ 172;

45

Pls.’ Stmt. ¶ 172. Four employees were named to the best-qualified list for the ‘044 Position.

Def.’s Stmt. ¶ 173; Pls.’ Stmt. ¶ 173. In addition to Benton, included on the list were (1) Dangel,

(2) Freeman, and (3) Tillman. Def.’s Stmt. ¶ 173; Pls.’ Stmt. ¶ 173. Mendez was the ranking

official; Farah was the recommending official; and Fayne was the selecting official.51 Def.’s

Stmt. ¶¶ 174, 176; Pls.’ Stmt. ¶¶ 174, 176; Farah Dep. at 70-71; Fayne Dep. at 88-89; Benton

Dep. at 56, 259-60.

As the ranking official, Mendez began the process by evaluating the application packages

and written submissions that the five candidates submitted and assigning each candidate a

score.52 Def.’s Stmt. ¶ 174; Pls.’ Stmt. ¶ 174. Benton received a ranking score of 90 points.53

51

Benton purports to dispute that Fayne was the selecting official, claiming that there

was an “effort to cover up” Farah’s role in the decisionmaking process. Pls.’ Stmt. ¶ 176.

However, Benton admitted at his deposition that Fayne was the selecting official, see Dep. pf

Donovan Benton (“Benton Dep.”) at 56, 259-60, and that admission is consistent with the

testimony provided by Farah and Fayne, see Farah Dep. at 70-71; Fayne Dep. at 88-89. In this

case, the evidence is “ so one-sided” that no reasonable trier of fact could infer, as Benton

suggests, that there was some vaguely defined “cover up” in connection with the allocation of

responsibilities in the decisionmaking process, let alone that any such efforts had a nexus to his

participation in the 2003 Litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

(1986). Regardless, crediting Benton’s allegation would only further weaken his claim given the

dearth of competent evidence to suggest that Farah harbored a retaliatory animus against him.

52

In responding to the Secretary’s proffered factual statement, Benton first concedes that

the statement is admitted, but then proceeds to contend that Mendez’s actions were “in direct

violation” of IRS policies “because Benton was his direct report.” Pls.’ Stmt. ¶ 174. But Benton

does not identify any language in any IRS policy that prohibited Mendez from evaluating a

subordinate, and more importantly, Benton fails to cite to evidence in the record that would

permit the Court to evaluate the validity of the claim—most notably, the policies themselves.

The Court declines Benton’s invitation to sift through the record in an attempt to locate evidence

in support of his claim. Because this extraneous factual allegation is unaccompanied by

“references to the parts of the record relied on [for] support,” LCV R 7(h)(1), it shall be

disregarded by the Court.

53

In responding to the Secretary’s proffered factual statement, Benton first concedes that

the statement is admitted, but then proceeds to set forth a series of disjointed, extraneous factual

46

Def.’s Stmt. ¶ 178; Pls.’ Stmt. ¶ 178. Thereafter, the candidates were interviewed by a three-

person panel, which asked each candidate identical questions and rated their responses. Def.’s

Stmt. ¶ 179; Pls.’ Stmt. ¶ 179. Benton received an interview score of 32.5 points. Def.’s Stmt. ¶

180; Pls.’ Stmt. ¶ 180. The final scores of the four candidates were as follows:

NAME RANKING SCORE INTERVIEW SCORE

Dangel (selectee) 95 37.5

Freeman 95 31

Benton 90 32.5

Tillman 90 31

See Def.’s Ex. HH (Final Ranking Form); Def.’s Ex. MM (Interview Materials).

The Scores were then reviewed by Farah, who as the recommending official chose the

highest-ranking candidate—Dangel. Def.’s Ex. LL (Promotion Certificate). Thereafter, the

scores and Farah’s recommendation were reviewed by Fayne, who as the selecting official

selected the highest-ranking candidate—Dangel. Def.’s Ex. LL (Promotion Certificate); Farah

Dep. at 70-71; Fayne Dep. at 88-89; Benton Dep. at 56, 259-60.

On March 29, 2007, Benton met with his third-line supervisor, Fayne, to discuss his non-

selection for the ‘044 Position.54 Def.’s Stmt. ¶ 201; Pls.’ Stmt. ¶ 201. During the meeting,

Fayne offered Benton opportunities to improve his managerial and interviewing skills and

allegations. Pls.’ Stmt. ¶ 178. Because those extraneous factual allegations are unaccompanied

by “references to the parts of the record relied on [for] support,” LCV R 7(h)(1), the Court shall

disregard them.

54

Benton secretly recorded the conversation, but he subsequently destroyed the

recording. Def.’s Stmt. ¶¶ 201, 203; Pls.’ Stmt. ¶¶ 201, 203. Benton’s admitted destruction of

the recording serves as the basis for the Secretary’s pending Motion for Sanctions.

47

offered to place Benton in a front-line management position. Def.’s Stmt. ¶ 202; Pls.’ Stmt. ¶

202; Fayne Dep. at 191, 221-23. In Benton’s view, Fayne’s offer amounted to an attempt to

“bribe [him] with a promotion,” claiming that Fayne conditioned these opportunities upon his

withdrawal of a complaint unrelated to his participation in the 2003 Litigation. Pls.’ Stmt. ¶ 202

(citing Benton Dep. at 179). However, in the relied-upon deposition testimony, Benton merely

reiterated his view that he personally “interpreted” Fayne’s offer as a bribe.55 Benton Dep. at

180. Notably, he did not testify that Fayne expressly conditioned these opportunities on his

withdrawal of the referenced complaint:

Q Did she say you couldn’t have the training unless you

pulled your complaint?

A She questioned me and haggard [sic] — and she drilled me

about that complaint, sir. It stayed on that. And that —

again, everything I’ve said is truthful.

Benton Dep. at 159. At best, the cited testimony is sufficient to create a genuine dispute that

Benton and Fayne discussed the complaint, but nothing more.

Benton further contends that he received an e-mail from Fayne the following day, March

30, 2007, in which she wrote:

I have been thinking a lot about our meeting yesterday . . . . I am

genuinely trying to give everyone who wants the opportunity to move

up the chance to do that. That does not mean that everyone gets to

move right when they think they should. As I said to you yesterday,

I hope the trust level can go up enough so that people will sit down

and talk as we did, instead of running to file grievances and

complaints without first trying to talk about it. I value your points

and your presence in M&P. Keep in mind what we talked about, and

55

Similarly, although not referenced by Benton or Mason in their responsive statement of

material facts, Benton’s response to the Secretary’s interrogatories states, without any meaningful

factual content, that he “felt he was being bribed and harassed.” Pls.’ Interrog. Resps. No. 3.

48

perhaps we can talk again when I return from vacation. There’s

simply too much work for M&P to do to be bogged down in so much

distrust.

Pls.’ Interrog. Resps. No. 3. Benton claims that he found the e-mail “very unusual and

disturbing.” Id.

3. Benton’s Non-Selection for the ‘322 Position

Like Mason, Benton applied for the ‘322 Position on or about April 16, 2007. See supra

Part I.B.2. However, Benton was ranked even lower than Mason, placing him fourth out of the

five candidates. Def.’s Stmt. ¶¶ 187-88; Pls.’ Stmt. ¶¶ 187-88. The application and review

materials demonstrated a “clear separation” between the ultimate selectee, Freeman, and the

other four candidates, including Benton.56 Def.’s Stmt. ¶ 80. The ultimate selectee, Freeman,

had the highest score of all the candidates, and the ranking official and interview panelists agreed

that Freeman’s qualifications exceeded Benton’s qualifications. Def.’s Stmt. ¶ 189; Pls.’ Stmt. ¶

189.

4. Benton’s Request for a Transfer to the New Carrollton Office

On or about August 30, 2007, Benton, like Mason, requested a transfer from IRS

Headquarters in Washington, D.C., to the IRS’s New Carrollton office in Lanham, Maryland.

Def.’s Stmt. ¶ 190; Pls.’ Stmt. ¶ 190. Like Mason, he was informed by his supervisors in late

56

Benton purports to dispute the Secretary’s proffered factual statement, but his

argument is non-responsive. See Pls.’ Stmt. ¶ 80. While Benton alleges that “Mr. Freeman was

selected because Ms. Fayne and Mr. Farah harbored a generalized retaliatory animus against Mr.

Mason and Mr. Benton,” Pls.’ Stmt. ¶ 80, he provides no explanation or evidentiary basis that

would call into doubt the Secretary’s proffered statement that, viewed objectively, “[t]he

application packages and the interview panelists’ notes demonstrate a clear separation between

Freeman and the rest of the candidates,” Def.’s Stmt. ¶ 80. Accordingly, the Court will deem the

Secretary’s proffered statement to be admitted. The Court addresses Bention’s allegations of bias

elsewhere in this Memorandum Opinion.

49

August and early September 2007 that there was a general policy that requests by employees in

the M&P Organization for a transfer to the New Carrollton office would not be considered until

January 2008, because the M&P Organization had in place a moratorium on all relocations to the

New Carrollton office affecting all employees in the organization.57 Def.’s Stmt. ¶ 190; Pls.’

Stmt. ¶ 190; Benton Dep. Ex. 9 (E-mail from R. Freeman to D. Benton dated Sept. 5, 2007) at 1.

5. Benton’s Request to be Reassigned to Another Branch

On or about September 5, 2007,58 Benton requested an assignment to another branch

within the M&P Organization. Def.’s Ex. PP (E-mail from D. Benton to R. Freeman dated Sept.

5, 2007). Later that same day, Benton’s first-line supervisor, Freeman, responded by indicating

that Benton’s request would impact all four branches of the organization, Def.’s Ex. PP (E-mail

from R. Freeman to D. Benton dated Sept. 5, 2007), because it would require hiring a

replacement grade-14-level Technical Advisor in the Functional Publishing Branch to fill the

vacancy that would be created by Benton’s requested transfer,59 Def.’s Stmt. ¶ 194.

57

In responding to the Secretary’s proffered factual statement, Benton first concedes that

the statement is admitted, but then proceeds to raise a number of extraneous factual allegations,

including that “no plausible reason, explanation, etc [sic] was given to Mr. Benton specifically”

and that “Mr. Benton provide [sic] valid business reasons and family medical reasons as to why

this [c]hange . . . was critical.” Pls.’ Stmt. ¶ 190. Because those extraneous factual allegations

are unaccompanied by “references to the parts of the record relied on [for] support,” LCV R

7(h)(1), the Court shall disregard them.

58

The Secretary and Benton both identify the date of Benton’s request as September 12,

2007, see Def.’s Stmt. ¶ 192; Pls.’ Stmt. ¶ 192, but e-mail correspondence suggests that the

request was first made on September 5, 2007, see Def.’s Ex. PP (E-mail from D. Benton to R.

Freeman dated Sept. 5, 2007). However, the discrepancy is immaterial.

59

Benton purports to dispute the Secretary’s proffered factual statement, alleging, among

other things, that “[t]here were several other similar [sic] situated employee [sic] in the Media

and Publications Division would could have easily been reassigned.” Pls.’ Stmt. ¶ 194.

However, because Benton’s response is unaccompanied by “references to the parts of the record

50

On September 12, 2007, Benton “elevat[ed]” his request to his second-line supervisor,

Farah. Def.’s Ex. PP (E-mail from D. Benton to M. Farah dated Sept. 12, 2007). Later that same

day, Farah indicated that he had discussed Benton’s request with Benton’s third-line supervisor,

Fayne, and informed Benton that the only GS-14-level reassignment available at that time was in

Fayne’s office, working in Balance Measures.60 Def.’s Ex. PP (E-mail from M. Farah to D.

Benton dated Sept. 12, 2007). Farah and Fayne inquired whether Benton would be interested in

that position and offered to discuss the opportunity further. Id.; Def.’s Ex. PP (E-mail from D.

Fayne to D. Benton dated Sept. 12, 2007). Shortly thereafter, Benton declined the offer, writing

to Fayne, “Thanks, but no thanks . . . due to the legal situation!” Def.’s Ex. PP (E-mail from D.

Benton to D. Fayne dated Sept. 14, 2007) (emphasis in original).61

6. Benton’s Requests for FMLA Leave

On September 25, 2007, Benton approached his first-line supervisor, Freeman, and

submitted an application for Family and Medical Leave Act (“FMLA”) leave for the period

extending from October 10, 2007, to approximately October 10, 2008. Def.’s Stmt. ¶ 197; Pls.’

relied on [for] support,” LCV R 7(h)(1), the Court shall deem the Secretary’s proffered factual

statement to be admitted.

60

Benton tenders a litany of extraneous factual allegations in the course of responding to

the Secretary’s proffered factual statements on this issue. Pls.’ Stmt. ¶¶ 195-96. Because those

extraneous factual allegations are unaccompanied by “references to the parts of the record relied

on [for] support,” LCV R 7(h)(1), the Court shall disregard them. Furthermore, despite Benton’s

assertion to the contrary, he was provided an explanation for the decision. See Def.’s Ex. PP (E-

mail from R. Freeman to D. Benton dated Sept. 5, 2007); Def.’s Ex. PP (E-mail from M. Farah to

D. Benton dated Sept. 12, 2007).

61

While the Secretary and Benton dispute whether Freeman had the authority to deny

Benton’s request for a reassignment, neither cites to any competent evidence clearly delineating

the scope of Freeman’s authority in this regard. See Def.’s Stmt. ¶ 193; Pls.’ Stmt. ¶ 193; Def.’s

Resp. ¶ 193. However, the dispute is immaterial.

51

Stmt. ¶ 197; Benton Dep. Ex 1 (Appl. for Leave under the Family and Medical Leave Act) at 1.

Freeman then contacted his supervisors, Farah and Fayne, to ascertain what sort of information

Benton would need to provide to support his application Def.’s Stmt. ¶ 198; Pls.’ Stmt. ¶ 198.

Freeman had an obligation to obtain the necessary approvals from his supervisors. Def.’s Stmt. ¶

199; Pls.’ Stmt. ¶ 199. On October 12, 2007, after receiving the necessary approvals, Freeman

granted Benton’s request, making it retroactive to Benton’s requested start-date of October 10,

2007.62 Def.’s Stmt. ¶ 199; Pls.’ Stmt. ¶ 199; Benton Dep. Ex 1 (Appl. for Leave under the

Family and Medical Leave Act) at 1.

7. Benton’s 2007 Performance Appraisal

Benton claims that he learned on November 26, 2007, that his second-line supervisor,

Farah, had directed his first-line supervisor, Mendez, to lower his fiscal-year 2007 performance

appraisal to a “Met.” Pls.’ MSJ Opp’n at 36 (citing Pls.’ Interrog. Resps. No. 7). However, it is

undisputed that Benton was issued the highest possible rating, “Outstanding,” on December 5,

2007, and in fact received a performance award. Def.’s Stmt. ¶ 204; Pls.’ Stmt. ¶ 204. He also

claims that “he was not furnished a copy of his [appraisal] until nearly a year later in October

2008.” Pls.’ Interrog. Resps. No. 7.

62

In responding to the Secretary’s proffered factual statement, Benton first concedes that

the statement is admitted, but then proceeds to allege that there were “extensive delays” in

Freeman’s processing of his application. Pls.’ Stmt. ¶ 199. However, because Benton’s

extraneous factual allegation is unaccompanied by “references to the parts of the record relied on

[for] support,” LCV R 7(h)(1), it shall be disregarded by the Court. Even assuming, arguendo,

that some delay occurred, Benton has failed to provide any explanation or adduce any evidence

that would allow a reasonable trier of fact to conclude that the delay was unreasonable. Indeed,

Benton’s relevant certifications were not executed until late September 2007, shortly before his

request was formally granted. See Benton Dep. Ex. 1 (Certification of Health Care Provider) at

3.

52

8. Benton’s Three-Day Suspension

Like Mason, Benton routinely sent e-mails to his supervisors and senior IRS officials

raising workplace concerns and grievances. Def.’s Stmt. ¶ 207; Pls.’ Stmt. ¶ 207. For example,

on July 9, 2007, Benton sent a three-page, single-spaced e-mail entitled, “You Refuse to Meet,

but You Plan to Discredit Me Personally & Professionally - Donovan L. Benton,” to his third-

line supervisor, Fayne, as well as Carl Froehlich, Director of IRS Agency-Wide Shared Services;

Susan W. Carroll, Director of CARE; Richard J. Morgante, Commissioner of the Wage &

Investment Division; and Kevin M. Brown, Deputy Commissioner of IRS Services &

Enforcement. Def.’s Stmt. ¶ 208; Pls.’ Stmt. ¶ 208. In the e-mail, Benton chided his third-line

supervisor, Fayne, for her purportedly “aggressive tone”63 and alleged that the selection processes

for the ‘044 Position and the ‘322 Position were tainted by “corruption.” Def.’s Stmt. ¶ 209;

Pls.’ Stmt. ¶ 209. In other e-mails, Benton inquired of senior IRS officials, “WHO IS LIBEL and

ACCOUNTALBLE [sic], on your watch?” Benton Dep. Ex. 5 (E-mail from D. Benton to R. Byrd

dated Aug. 27, 2008) at 120 (emphasis and capitalization in original); charged his supervisors

with “deliberate and willful ‘DEFAMATION OF [HIS] PROFESSIONAL & PERSONAL

CHARACTER,” Def.’s Ex. 5 (e-mail from D. Benton to M. Farah dated Aug. 7, 2008) at 133

(capitalization in original); and characterized his business unit as an “Oppressive and Restrictive

Tyranny!” Benton Dep. Ex. 18 (E-mail from D. Benton to R. Freeman dated Nov. 5, 2008) at 1

63

In the e-mail, Benton attributes the following comments to Fayne: (1) “You were not

the most qualified then and I told you that your interview was not good”; (2) “You needed to

practice and I would help you”; (3) “You were a manger for less than year. You need more

experience”; (4) “And now you want to meet with me again one-one-one. No. That cannot

happen under the circumstances I value my job as much as you value yours, and I will not put it

in jeopardy”; (5) “Given the legal situation we are in it is unwise for us to meet one-on-one.”

Benton Dep. Ex. 6 (E-mail from D. Benton to D. Fayne dated July 9, 2007) at 1-2.

53

(emphasis in original).

Benton often included deadlines e-mails, demanding a response “by a date certain.”

Def.’s Stmt. ¶ 212; Pls.’ Stmt. ¶ 212. Benton claims that if his supervisors failed to meet his

deadlines, he had a right to “elevate” his concerns to the “next appropriate high-level

management official(s)” in his “chain of command.” Def.’s Stmt. ¶ 213; Pls.’ Stmt. ¶ 213. He

maintains that the deadlines were a “professional courtesy” and justifiable given the timing of the

responses to his communications. Def.’s Stmt. ¶ 212; Pls.’ Stmt. ¶¶ 212, 214. Even after senior

IRS officials responded by directing Benton to pursue his complaints through the EEO apparatus,

TITGA, or with his supervisors who were familiar with his situation, Benton nonetheless

continued to send e-mails to senior IRS officials.64 Def.’s Stmt. ¶ 215; Dep. of Susan Carroll at

24; Dep. of Richard Byrd at 28-30, 72.

As conceded by Benton, “[a]fter tolerating Benton’s abusive communications for months,

and after encouraging him to pursue his grievances through the EEO or Agency Grievance

offices, his supervisors contacted [the] Labor Relations [Branch] to determine how to proceed.”

Def.’s Stmt. ¶ 216; Pls.’ Stmt. ¶ 216. At that point, a Labor Relations Specialist recommended to

Benton’s supervisors that they issue him a management directive explaining that his behavior

was unacceptable and describing the proper channels to use in raising workplace grievances.

Def.’s Stmt. ¶ 217; Pls.’ Stmt. ¶ 217. The Labor Relations Specialist and Benton’s supervisors

subsequently drafted the management directive and provided it to Benton on December 10, 2007.

64

While Benton purports to dispute the Secretary’s proffered factual statement, his only

objection is that his communications “were work-related.” Pls.’ Stmt. ¶ 215. He does not

contest that he continued to send e-mails to senior IRS officials even after he was directed to

pursue his concerns through other channels.

54

Def.’s Stmt. ¶ 218; Pls.’ Stmt. ¶ 218. The directive, entitled “Directive for Resolving Issues of

Personal Concern,” was signed by Benton’s second-line supervisor, Farah, and provided as

follows:

During the past several months, you have spent significant agency

time and resources composing and e-mailing numerous and repetitive

personal requests, complaints, and requests for information to a

number of executives, senior managers, your manager, and me. In the

case of your personal request for a change in place of reporting, you

have been advised that your request would be considered if you

provided certain information concerning the medical necessity and a

schedule of appointments, which you have failed to provide. In the

case of your request for information, you have been advised to submit

you [sic] concerns through the appropriate channels; specifically, the

EEO Complaint process or the Agency Grievance process, which so

far you have chosen not to do. I have attempted to discuss your

concerns with you face to face and you have effectively refused to

meet with me, contending that I have threatened you.

Your use of the Agency e-mail system to demand that management

answer your written interrogatories, to disparage and hector

individual members of the Publishing Management Team, and your

misuse of government time and equipment in the pursuit of such

activities is inappropriate, disrupts the workplace and is unproductive.

You are therefore directed as follows:

1. To immediately cease using work time, government

equipment and government supplies to draft and distribute

communications which disparage or hector members of the

Publishing Leadership Team or other Agency employees;

2. To follow the established chain of command in seeking

resolution of your personal concerns, beginning with your

first-level supervisor;

3. To immediately cease sending “broadcast” communications

to multiple management officials on personal matters and/or

matters that should properly be initially presented to your

first-line manager or pursued through available dispute

resolution mechanisms, such as the EEO process or the

Agency Grievance Procedure.

55

4. To utilize available dispute resolution mechanisms and pursue

adjustment of workplace concerns which are not resolved to

your satisfaction by management.

Benton Dep. Ex. 2 (Mem. Directive for Resolving Issues of Personal Concern dated Dec. 10,

2007) at 2185-86. The memorandum then proceeds to outline the procedure for invoking the

agency grievance system and EEO apparatus. Id. at 2186. The memorandum concludes by

warning Benton that his failure to abide by these instructions “may result in disciplinary action.”

Id.

Nonetheless, Benton continued to e-mail senior IRS officials with complaints, requests

for information, and demands to address his workplace grievances.65 Def.’s Stmt. ¶ 221. On

March 6, 2008, after repeatedly reminding Benton to air his grievances through the proper

channels and not to disrupt the workplace, Farah issued Benton a letter proposing Benton’s

suspension without pay for three days. Def.’s Stmt. ¶ 222; Pls.’ Stmt. ¶ 222. The letter identified

thirteen instances in which Benton allegedly sent an e-mail to senior IRS officials in violation of

the directive. Def.’s Ex. QQ (Ltr. from M. Farah to D. Benton dated Mar. 6, 2008). On March

31, 2008, after reviewing Benton’s e-mails and Farah’s proposal, Benton’s third-line supervisor,

Fayne, approved the three-day suspension. Def.’s Stmt. ¶ 224; Pls.’ Stmt. ¶ 224.

9. Benton’s Fourteen-Day Suspension for Tax Non-Compliance

During a routine computerized comparison of payroll and tax account records, the ETC

Branch discovered that Benton had failed to timely pay his federal taxes for tax-year 2006.

65

While Benton purports to dispute the Secretary’s proffered factual statement, he does

not actually contest that he continued to e-mail senior IRS officials with complaints, requests for

information, and demands to address his many workplace grievances, but instead merely claims

that his e-mail communications should not be characterized as raising “personal concerns.” Pls.’

Stmt. ¶ 221.

56

Def.’s Stmt. ¶ 225; Pls.’ Stmt. ¶ 225. This violation followed two other tax compliance

violations—one in tax-year 2001 and a second in tax-year 2004—for which Benton had

previously been counseled. Def.’s Stmt. ¶ 226; Pls.’ Stmt. ¶ 226. Benton did not fully satisfy his

tax liability for tax-year 2006 until August 27, 2007.66 Def.’s Stmt. ¶ 228; Pls.’ Stmt. ¶ 228.

On January 22, 2008, the ETC Branch issued Benton a letter, inviting him to submit

information to clarify his non-compliance. Def.’s Stmt. ¶ 229; Pls.’ Stmt. ¶ 229. On February

12, 2008, Benton responded in a letter, explaining that he had been distracted by personal issues

and “did not realize” that his checking account had insufficient funds. Def.’s Stmt. ¶ 230; Pls.’

Stmt. ¶ 230. On March 5, 2008, the ETC Branch informed Benton that its investigation revealed

that the violation was potentially more than a technical error and that the matter would therefore

be referred to his supervisors to consider whether disciplinary action was appropriate. Def.’s

Stmt. ¶ 231; Pls.’ Stmt. ¶ 231. On or about June 19, 2008, Benton’s supervisors, with Fayne as

the deciding official, proposed a fourteen-day suspension, citing Benton’s history of tax-non-

compliance and the magnitude of the tax liability underpayment. Def.’s Ex. RR (Alerts Case

File) at 1-5; Benton Dep. Ex. 17 (Ltr. from D. Fayne to D. Benton dated Aug. 4, 2008). Benton

did not invoke his right to submit an oral or written opposition to the proposal. Def.’s Stmt. ¶

237; Pls.’ Stmt. ¶ 237. On August 4, 2008, Fayne approved the fourteen-day suspension. Pls.’

Stmt. ¶ 236; Pls.’ Stmt. ¶ 236; Benton Dep. Ex. 17 (Ltr. from D. Fayne to D. Benton dated Aug.

4, 2008).

66

In responding to the Secretary’s proffered factual statement, Benton first concedes that

the statement is admitted, but then proceeds to allege that he “attempted on several occasions to

resolve the mater, but the IRS continued to apply penalties and interests [sic] upon him.” Pls.’

Stmt. ¶ 228. Because this extraneous factual allegation is unaccompanied by “references to the

parts of the record relied on [for] support,” LCV R 7(h)(1), it shall be disregarded by the Court.

57

10. Benton’s Termination

Following his two suspensions, Benton continued to send e-mails to senior IRS officials

raising his many workplace concerns and grievances.67 Def.’s Stmt. ¶ 238. After tolerating the

e-mails for several months and reminding Benton to abide by the management directive,

Benton’s managers again contacted the Labor Relations Branch to seek guidance.68 Id. ¶ 239.

The Labor Relations Specialist informed Benton’s supervisors that his continued conduct

constituted a third offense—the first being the three-day suspension for sending similar e-mails

and the second being the fourteen-day suspension for tax-noncompliance.69 Id. ¶ 240. The Labor

Relations Specialist and Benton’s second-line supervisor, Farah, subsequently drafted a letter of

proposed removal, which was issued to Benton on October 6, 2008. Def.’s Stmt. ¶¶ 241-42; Pls.’

Stmt. ¶ 242. The letter identifies a total of twenty-three instances in which Benton allegedly sent

e-mail correspondence to senior IRS management in violation of his supervisors’ prior directives.

Benton Dep. Ex. 4 (Ltr. from M. Farah to D. Benton dated Oct. 6, 2008). After reviewing the

evidence, Benton’s third-line supervisor, Becton-Johnson, approved the proposal, and Benton’s

67

While Benton purports to dispute the Secretary’s proffered factual statement, he does

not actually contest that he continued to e-mail senior IRS officials with e-mails raising his

workplace concerns and grievances, but instead merely claims that his e-mail communications

should not be characterized as raising “personal concerns.” Pls.’ Stmt. ¶ 238.

68

While Benton purports to dispute the Secretary’s proffered factual statement, he does

not actually contest that his supervisors “tolerat[ed] the emails for several months and remind[ed]

him to abide by the management directive,” Def.’s Stmt. ¶ 239, but instead merely claims that his

e-mail communications should not be characterized as raising “personal concerns,” Pls.’ Stmt. ¶

239.

69

While Benton purports to dispute the Secretary’s proffered factual statement, he does

not actually contest that the Labor Relations Specialist informed his supervisors that his

continued conduct constituted his third offense, but instead merely claims that his e-mail

communications should not be characterized as raising “personal concerns.” Pls.’ Stmt. ¶ 240.

58

removal became effective on January 9, 2009. Def.’s Stmt. ¶ 243; Pls.’ Stmt. ¶ 243.

II. LEGAL STANDARDS

A. Motions for Summary Judgment Generally

Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and [that it] . . . is entitled to judgment as a matter of law.” FED .

R. CIV . P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact, and therefore “[o]nly disputes

over facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Liberty Lobby, 477 U.S. at 255. Nor may summary

judgment be avoided based on just any disagreement as to the relevant facts; rather, the dispute

must be “genuine,” meaning that there must be sufficient admissible evidence for a reasonable

trier of fact to find for the non-movant. Id.

In order to establish that a fact is or is not genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of its position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. FED . R. CIV . P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment.

Ass’n of Flight Attendants-CWA, 564 F.3d at 465-66. Moreover, where “a party fails to properly

support an assertion of fact or fails to properly address another party’s assertion of fact,” the

district court may “consider the fact undisputed.” FED . R. CIV . P. 56(e).

When presented with a motion for summary judgment, the district court may not make

59

credibility determinations or weigh the evidence, but instead must analyze the evidence in the

light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty

Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed material facts

are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate.

Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to

determine “whether the evidence presents a sufficient disagreement to require submission to [the

trier of fact] or whether it is so one-sided that one party must prevail as a matter of law.” Liberty

Lobby, 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that

there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not

sufficiently probative, summary judgment may be granted,” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted). Stated differently, the mere existence of a “scintilla of evidence” in

support of the non-movant’s position will not suffice; there must be enough evidence on which

the trier of fact could reasonably find for the non-movant. Talavera v. Shah, 638 F.3d 303, 308

(D.C. Cir. 2011) (quoting Anderson, 477 U.S. at 252).

B. Motions for Summary Judgment in Actions for Employment Discrimination or

Retaliation

In recognition of the difficulty in uncovering clear evidence of discriminatory or

retaliatory intent, the district court should approach summary judgment in an action for

employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116

F.3d 876, 879-80 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284 (D.C. Cir. 1998)

(en banc). Even so, the plaintiff is not relieved of his burden to support his allegations with

competent evidence. Brown v. Mills, 674 F. Supp. 2d 182, 188 (D.D.C. 2009). As in any

60

context, where the plaintiff will bear the burden of proof at trial on a dispositive issue, at the

summary judgment stage, he bears the burden of production to designate specific facts showing

that there is a genuine dispute requiring trial. Ricci v. DeStefano, __ U.S. __, 129 S. Ct. 2658,

2677 (2009). Absent this burden, the plaintiff could effectively defeat the “central purpose” of

the summary judgment device—namely, “to weed out those cases insufficiently meritorious to

warrant . . . trial”—simply by way of offering conclusory allegations, speculation, and argument.

Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

C. Local Procedures for Motions for Summary Judgment

The United States District Court for the District of Columbia has supplemented Rule 56

of the Federal Rules of Civil Procedure with Local Civil Rule 7(h)(1), which requires that each

party submitting a motion for summary judgment attach a statement of material facts for which

that party contends there is no genuine dispute. In turn, the party opposing the motion must

submit a responsive statement enumerating all material facts that the party contends are

genuinely disputed. See LCV R 7(h)(1). Both the movant’s initial statement and the non-

movant’s responsive statement must be based on “references to the parts of the record relied on

to support the statement.” Id.; see also FED . R. CIV . P. 56(c)(1) & (3) (requiring parties to “cit[e]

to particular parts of materials in the record” and providing that “[t]he court need consider only

the cited materials.”). This well-reasoned rule “places the burden on the parties and their

counsel, who are most familiar with the litigation and the record, to crystallize for the district

court the material facts and relevant portions of the record.” Jackson v. Finnegan, Henderson,

Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996). The parties in these actions

have been cautioned on several occasions that this Court strictly adheres to the dictates of Local

61

Civil Rule 7(h)(1) when resolving motions for summary judgment. See 6/11/09 Scheduling &

Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil Action No. 09-462) at 3;

Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 21-22.

III. DISCUSSION

A. Discussion Relating to Plaintiff Mable Gaines

Gaines is pursuing four claims under Title VII, each of which is based on the contention

that she was retaliated against, in one way or another, for her participation in the 2003 litigation.

Fourth Am. Compl. (Civil Action No. 09-462) ¶¶ 25-26; Compl. (Civil Action No. 10-683) ¶¶

12-13; Pls.’ MSJ Opp’n at 45. First, Gaines claims that she was subjected to a hostile work

environment. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 25; Pls.’ MSJ Opp’n at 45-51,

56-59. Second, Gaines claims that her requests for a “flexiplace” assignment and related

accommodations were improperly denied. See Pls.’ MSJ Opp’n at 52, 66-67. Third, Gaines

claims that she was improperly suspended without pay for ten days. See Fourth Am. Compl.

(Civil Action No. 09-462) ¶ 25; Pls.’ MSJ Opp’n at 52-54. Fourth, Gaines claims that she was

improperly subjected to a non-disciplinary termination. See Compl. (Civil Action No. 10-683) ¶¶

12-13; Pls.’ MSJ Opp’n at 54-55, 67. The Court addresses each claim in turn.

1. The Secretary is Entitled to Summary Judgment on Gaines’s Hostile Work

Environment Claim

Gaines claims that she was subjected to a hostile work environment in retaliation for her

participation in the 2003 Litigation. See Fourth Am. Compl. (Civil Action No. 09-462) ¶ 25;

Pls.’ MSJ Opp’n at 45-51, 56-59. “In this [C]ircuit, a hostile work environment can amount to

retaliation under Title VII.” Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir.) (citing

Singletary v. District of Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003)), cert. denied, 549 U.S.

62

993 (2006). A workplace becomes “hostile” for purposes of Title VII only if the allegedly

offensive conduct “permeate[s] [the workplace] with ‘discriminatory [or retaliatory] intimidation,

ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S.

17, 21-22 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 & 67 (1986)). The

inquiry has an objective component and a subjective component: the environment must be one

that a reasonable person in the plaintiff’s position would find hostile or abusive, and the plaintiff

must actually perceive the environment to be hostile or abusive. Id. In determining whether a

hostile work environment exists, the district court must take into account “the totality of the

circumstances, including the frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s work performance.” Baloch v.

Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (citing Faragher v. City of Boca Raton, 524

U.S. 775, 787-88 (1998)).

a. Gaines’s Opposition Is Fundamentally Infirm

Gaines’s opposition in support of her hostile work environment claim leaves much to be

desired. Whereas the Secretary’s opening memorandum provides an exhaustive account of the

factual and legal bases that he claims support dismissal of Gaines’s hostile work environment

claim, addressing in turn each of the various component-acts that Gaines has identified as

comprising part of the alleged hostile work environment, see Def.’s MSJ Mem. at 3-11, 40-49,

Gaines offers no meaningful factual or legal analysis in support of her claim—none. She begins

by reciting the skeletal allegations concerning her claim seriatim, see Pls.’ MSJ Opp’n at 46-51,

proceeds to restate the legal standard governing hostile work environment claims generally, see

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id. at 56-59, and then concludes by asserting that simply because she has “testified that [she was]

subjected to severe hostility on an almost daily basis,” then “there is an issue of fact regarding

whether [she] suffered from a hostile work environment,” id. at 57. In so doing, Gaines ignores

virtually every factual and legal argument raised by the Secretary. With few exceptions, the only

factual support for her allegations is her narrative response to an interrogatory posed by the

Secretary in discovery asking her to identify each act relevant to the alleged hostile work

environment. See Pls.’ Interrog. Resps. No. 11. Inexplicably, the argument section of her

opposition does not even specifically mention her, but instead focuses on Plaintiffs as a whole

despite the stark difference in their claims. In the final analysis, Gaines’s opposition reduces to

little more than legal boilerplate, and amounts to an impermissible attempt to shift the burden to

the Secretary and this Court to sift through the record to ascertain the viability of her claim.

b. Gaines Improperly Attempts to Incorporate Discrete Employment

Acts Into a Single Hostile Work Environment Claim

In setting forth the factual background that she considers relevant to her hostile work

environment claim, Gaines identifies the following component-acts:70 (1) the physical altercation

she had with a co-worker on December 21, 2004; (2) the failure of her supervisors to solicit leave

donations on her behalf in early 2005; (3) her receipt of a letter on August 25, 2005, directing her

to return to work; (4) her supervisors’ “insensitive” and “unprofessional” telephone calls while

70

Despite substantial overlap, the parties’ descriptions and groupings of the component-

acts do not perfectly align, and for purposes of clarity and convenience the Court may describe

and group the component-acts in a manner slightly different from that of the parties. In addition,

the Court shall disregard Gaines’s sporadic references to “ongoing retaliation, disparate treatment

and harassment practices” that are stated in a conclusory fashion and unaccompanied by any

meaningful factual detail or record support. See Ass’n of Flight Attendants-CWA, 564 F.3d at

465-66 (conclusory assertions offered without any factual basis in the record cannot create a

genuine dispute sufficient to survive summary judgment).

64

she was on leave until her return to work in June 2007; (5) her supervisors’ failure to provide

“complete reporting instructions” upon her return to work on June 4, 2007; (6) her supervisors’

instruction that she participate in an office-wide “clean building initiative”; (7) her temporary

assignment to a workshop before she commenced her permanent responsibilities; (8) her

supervisors’ failure to provide her with adequate coaching; (9) her “isolation” from other

employees; (10) the denial of her requests for a “flexiplace” assignment and related

accommodations in March 2008; (11) her supervisors’ failure to solicit leave donations on her

behalf in May 2008; (12) the failure to allow her to have a union representative present at a

meeting concerning potential disciplinary action on July 8, 2008; (13) her ten-day suspension for

tax non-compliance on April 13, 2009; and (14) her non-disciplinary termination on October 23,

2009.71 See Pls.’ MSJ Opp’n at 46-51.

Unfortunately, Gaines has compiled a list of discrete employment actions that she

attempts to bring under the umbrella of a hostile work environment claim. Regardless of the

possible strategic advantages that might flow from such an approach, it is well-established that

“this jurisdiction frowns on plaintiffs who attempt to bootstrap their alleged discrete acts of

retaliation into a broader hostile work environment claim.” Baloch v. Norton, 517 F. Supp. 2d

71

Somewhat strangely, Gaines does not identify her non-disciplinary termination as part

of her hostile work environment. See Pls.’ MSJ Opp’n at 46-51. Perhaps Gaines recognized that

her termination constituted the sort of discrete act of retaliation that is inappropriate to

incorporate into a broader hostile work environment claim. See infra Part III.A.1.b. Or perhaps

she recognized that the pleading in which she asserts her hostile work environment claim has not

been amended since she was terminated. See Fourth Am. Compl. (Civil Action No. 09-462).

Nonetheless, in an abundance of caution, the Court will assume that Gaines intended to include

her termination as one of the component-acts allegedly comprising the hostile work environment.

Even proceeding with this assumption, the Secretary is entitled to summary judgment on the

claim.

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345, 364 (D.D.C. 2007), aff’d sub nom. Baloch v. Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008);

accord Nurriddin v. Goldin, 382 F. Supp. 2d 79, 108 (D.D.C. 2005), aff’d, 222 F. App’x 5 (D.C.

Cir. 2007), cert. denied, 552 U.S. 1243 (2008); Lester v. Natsios, 290 F. Supp. 2d 11, 33 (D.D.C.

2003). The reason is simple: hostile work environments are by definition different because

“[t]heir very nature involves repeated conduct.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 115 (2002).

Consistent with the distinction between the two theories, courts are often hesitant to allow

plaintiffs to bring suit under a hostile work environment theory based upon nothing more than an

amalgamation of loosely related discrete acts. There is no bright line rule for determining when a

variety of component-acts may be considered collectively; instead, “courts must exercise their

judgment carefully and on a case-by-case basis.”72 Baloch, 517 F. Supp. 2d at 363. In exercising

that judgment, courts must consider the extent to which the alleged actions are related in time

and type; if certain actions are so remote in time or different in kind that a reasonable trier of fact

could not find them to be part of the same work environment, then those actions should not be

considered. See Vickers v. Powell, 493 F.3d 186, 199-200 (D.C. Cir. 2007); Verges v. Shelby

Cnty. Sheriff’s Office, 721 F. Supp. 2d 730, 746 (W.D. Tenn. 2010). That does not mean that it

will always be necessary for the component-acts comprising a hostile work environment to be

identical or to take the same form; however, there must be a “common thread” among them. Cf.

Norman v. Gannett Co., Inc., 852 F. Supp. 46, 50 (D.D.C. 1994); Harris v. City of Fresno, 625 F.

72

While the general hesitancy to allow “bootstrapping” is often stated in broad terms,

there is no per se rule prohibiting a plaintiff from seeking relief in connection with a particular

employment action under the premise that it is actionable both on its own and as part of a broader

hostile work environment. On some occasions, it may be entirely appropriate for an incident to

double as an independently actionable act and as a component-act of a hostile work environment.

66

Supp. 2d 983, 1024 (E.D. Cal. 2009). In short, there must be some coherence to the claim.

In this case, the Secretary argues in his opening memorandum that Gaines is improperly

attempting to “bootstrap” discrete acts of retaliation in the guise of a hostile work environment

claim. See Def.’s MSJ Mem. at 41. In opposition, Gaines offers no response to this argument,

electing instead to recite legal boilerplate concerning hostile work environment claims generally

and then faulting the Secretary for “ignor[ing] the totality of the circumstances.” Pls.’ MSJ

Opp’n at 58. In so doing, Gaines provides no meaningful analysis of her hostile work

environment claim and fails to explain how the various component-acts identified congeal into a

coherent hostile work environment. See Pls.’ MSJ Opp’n at 56-59. In this Circuit, “it is well

understood . . . that when 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.” Hopkins v. Women’s Div., Gen. Bd. of Global

Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (citation omitted), aff’d, 98 F. App’x 8 (D.C.

Cir. 2004); accord Lewis v. District of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C.

Cir. Feb. 2, 2011). Because Gaines has failed to provide any rejoinder to the Secretary’s

argument that her hostile work environment claim is not predicated on “one unlawful

employment practice,” Def.’s MSJ Mem. at 41 (internal quotation marks omitted), the Court

shall, in an exercise of its discretion, treat the argument as conceded.

Even if the Court were inclined to reach the merits of the argument, the result would be

the same. Depending on how they are framed, Gaines has identified somewhere in the

neighborhood of ten to fifteen component-acts. But regardless of how they are framed, those acts

are spread out over nearly five years; involve conduct ranging from a physical altercation to what

67

are at best minor inconveniences common to any workplace; implicate a broad set of actors

ranging from former co-workers to fourth-line supervisors, some of whom worked at different

locations than Gaines; and only a handful are alleged to have occurred while Gaines was actually

working at the IRS.73 Where, as here, a plaintiff adopts a “kitchen sink” approach to crafting a

hostile work environment claim, and when that approach is challenged, it is incumbent upon her

to come forward with some explanation as to how her claim actually works under a hostile work

environment theory. In this case, Gaines has made no attempt—none—to crystallize for the

Court how these disparate acts could be seen by a trier of fact as sufficiently related to coalesce

into a single hostile work environment. When viewed in their totality, as Gaines presses this

Court to view them, the Court can only conclude that these acts are so different in kind and

remote in time that they cannot possibly comprise part of the same hostile work environment.

Based on the record created by the parties, the Court concludes that the Secretary is entitled to

summary judgment in his favor on Gaines’s hostile work environment claim on this basis alone.

73

On this last point, the Secretary argues that some of the component-acts identified by

Gaines in support of her hostile work environment claim are irrelevant because they occurred

while she was on extended leave and therefore absent from the workplace. See Def.’s MSJ Mem.

at 42-44. Beginning from the premise that “there was no work environment to speak of,” the

Secretary reasons these acts could not “by definition . . . have rendered Gaines’s work

environment hostile.” Id. at 42. Stated in such sweeping terms, the Secretary’s argument runs up

against the principle that there is no “per se rule against considering incidents alleged to have

occurred while an employee was physically absent from the workplace.” Greer v. Paulson, 505

F.3d 1306, 1314 (D.C. Cir. 2007). The Secretary’s argument may or may not have merit when

applied to the particulars of this case, but because the Secretary has not attempted to do so, the

Court declines to reach the argument.

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c. Gaines Fails To Adduce Sufficient Evidence That Would Permit a

Reasonable Trier of Fact to Conclude That the Component-Acts

Were Taken in Retaliation for Her Protected Activity

There is another ground for granting summary judgment in the Secretary’s favor on

Gaines’s hostile work environment claim: to the extent there is a common thread among the

component-acts identified by Gaines, it is that there is no evidence to suggest that any one was

taken in retaliation for her participation in the 2003 Litigation. Critically, Title VII only prohibits

discrimination against an employee taken “because” the employee has engaged in protected

activity. 42 U.S.C. § 2000e-3(a). Consistent with this statutory mandate, “the plaintiff must

establish a causal connection between the harassment and her protected activity to succeed on the

claim.” Lewis v. District of Columbia, 653 F. Supp. 2d 64, 81 (D.D.C. 2009) (citing Nichols v.

Truscott, 424 F. Supp. 2d 124, 141 (D.D.C. 2006)). There is an evidentiary component to this

principle: evidence that bears no connection to the plaintiff’s protected status cannot support a

hostile work environment claim. Harris v. Wackenhut Servs., Inc., 419 F. App’x 1, 2 (D.C. Cir.

2011) (per curiam) (citing, inter alia, Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d

426, 440 (2d Cir. 1999)). Therefore, courts should exclude from consideration employment

actions that “lack a linkage” to discrimination or retaliation. Bryant v. Brownlee, 265 F. Supp.

2d 52, 63 (D.D.C. 2003) (quoting Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002)); accord

Baloch, 517 F. Supp. 2d at 363.

Here, all of the component-acts that Gaines relies upon in support of her hostile work

environment claim are facially neutral. Of course, this alone is not necessarily fatal to her claim:

facially neutral incidents may, in appropriate circumstances, be considered as part of the “totality

of the circumstances” supporting a plaintiff’s hostile work environment claim. However, this is

69

appropriate only if a trier of fact could reasonably conclude that they were, in fact, based on the

plaintiff’s participation in protected activity. Alfano, 294 F.3d at 378. In other words, the

plaintiff must first demonstrate that there is a factual basis for inferring that the incidents were

motivated by a retaliatory animus. In this case, Gaines’s has completely failed to meet that

burden: not one of the component-acts is accompanied by any indicia of retaliatory animus of any

kind, let alone a retaliatory animus specifically directed towards her participation in the 2003

litigation. Furthermore, where the Secretary has proffered a non-retaliatory reason for a specific

act, Gaines has “failed to offer any contradictory evidence to rebut the [Secretary’s] neutral

reason.” Graham v. Holder, 657 F. Supp. 2d 210, 217 (D.D.C. 2009). Viewing the record as a

whole, no trier of fact could reasonably conclude that the acts complained of by Gaines were

motivated by a retaliatory animus.74

First, Gaines alleges that she was involved in a physical altercation with a co-worker on

74

The Court underscores that Gaines never argues in connection with her hostile work

environment claim that an inference of retaliation may be made based on temporal proximity,

either on its own or in connection with other circumstantial evidence. See Pls.’ MSJ Opp’n at

56-59. As such, the argument is deemed to be waived. Even if Gaines had made such an

argument, there would be two fundamental infirmities with such an approach. First, the temporal

gap is frequently of such a magnitude that it is insufficient to permit a fact-finder to infer

retaliation as a matter of law. See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001) (per curiam); Taylor v. Solis, 571 F

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