The opinion of the court was delivered by: Conti, District Judge
In this memorandum order, the court considers the motion for summary judgment (Doc. No. 20) filed by defendant Ann Veneman, Secretary of the United States Department of Agriculture ("defendant"), with respect to all claims asserted by plaintiff Denise Orenge ("Orenge" or "plaintiff") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). After considering the joint concise statement of material facts, defendant's motion for summary judgment and the briefs submitted by the parties with respect to the motion, the court will grant summary judgment in favor of defendant.
Factual Background and Procedural History
Plaintiff is a 55-year-old, African-American female who resides in Dormont, Pennsylvania. Joint Concise Statement of Material Facts ("J.C.S.") ¶1. Plaintiff obtained her high school equivalency through the GED program and has no college degree. Id. ¶2. Plaintiff was an employee of the United States Marshals Service (the "Marshals Service") from 1972 until 1988. Id. ¶3. The positions that plaintiff held while employed by the Marshals Service included co-op student, clerk typist, and Deputy United States Marshal. Id. ¶4. As a Deputy United States Marshal the highest pay grade which she obtained was GS-11. Id. ¶4.
Following her employment with the Marshals Service, plaintiff obtained a position with the Office of Inspector General, United States Department of Agriculture ("OIG-USDA" or the "Agency") as a criminal investigator. Id. ¶5. On February 28, 1988, plaintiff was assigned to an office in Hyattsville, Maryland and maintained the pay grade of GS-11. Id. ¶5. Plaintiff's responsibilities as a criminal investigator included conducting white-collar investigations involving various agencies and programs that are administered by the United States Department of Agriculture. Id. ¶6.
In 1989 the Agency promoted plaintiff to GS-12 and reassigned her to Pittsburgh, Pennsylvania in March of that year. Id. ¶7. When plaintiff accepted her position in the Pittsburgh office she joined the only other investigator, Senior Special Agent Joe Likens ("Likens"). Id. ¶9. Likens retired in 1994 or 1995 and plaintiff remained the only investigator on staff until 1997. Id. ¶9.
On May 23, 2001, Vacancy Announcement No. OIG-1-89A was posted for the position of Criminal Investigator (Senior Special Agent), GS-1811-13. Id. ¶10. The closing date on the vacancy announcement was June 20, 2001. Id. ¶10. The vacancy announcement also stated that more than one position may be filled for the following locations: Beltsville, Maryland; King of Prussia, Pennsylvania; Pittsburgh, Pennsylvania; Raleigh, North Carolina; and Richmond, Virginia. Id. ¶11. Plaintiff applied for the position stated in Vacancy Announcement No. OIG-1- 89A and indicated she would be willing to work in the Pittsburgh, Pennsylvania location. Id. ¶12.
The official charged with the selection for the available position was Patrick K. Maloney ("Maloney"), a white male, who was also plaintiff's second-level supervisor. Id. ¶13. Maloney's position was the Special Agent-in-Charge of the Office of Inspector General ("OIG") of the Mid-Atlantic Region, a region in which he had been working for approximately one year. Id. ¶13-14. Plaintiff, with respect to her interaction with Maloney during this period, stated: "I had minimal contact. I never had any contact with him hardly at all." Id. ¶14. At the time of plaintiff's application her immediate supervisor was Harold Stanford who was the Assistant Special Agent-in-Charge and located in Beltsville, Maryland. Id. ¶15.
Maloney reviewed and evaluated position applicants based upon their application packages. Id. ¶16.*fn1 Application packages generally included: written responses to KSAs (knowledge, skills and abilities), Captain Reports (management reports listing information regarding an agent's investigations), and most recent performance appraisals. Id. ¶16. In addition to the application packages, Maloney also considered his own personal knowledge of each applicant. Id. ¶ 17. Maloney did not interview the candidates for the available position and was not required to obtain higher-level approval for selecting the applicants. Id. ¶18. On September 6, 2001, Maloney selected three agents to fill the vacancy announcement: Douglas Wolfe, a white male; Gregory Evens, a white male; and Raymond Quijas ("Quijas"), a Hispanic male. Id. ¶19.
Quijas was employed as a special agent with OIG-USDA from July 31, 1988 through March 30, 1997. Id. ¶21. Quijas was employed as a special agent with the Drug Enforcement Administration ("DEA") from March 31, 1997 through June 5, 2000. Id. ¶22. Quijas returned to OIG-USDA on June 5, 2000 and was assigned to the Pittsburgh office as a criminal investigator. Id. ¶23. Quijas had extensive experience working with law enforcement officers, agents, and prosecutors from numerous states around the country. Id. ¶ 24. Quijas had a basic understanding of the Spanish language and obtained a college degree with a majority of credits concentrated in criminal justice. Id. ¶ 25-26. Quijas also received scholarships and awards for his academic excellence. Id. ¶ 26.
As a DEA investigator, Quijas's application indicated that he worked on a number of complex drug cases that included international and multi-state investigations. Id. ¶ 27. After Quijas returned to the OIG-USDA in 2000, his application showed at least seven food stamp cases that he successfully initiated and conducted within a one-year period. Id. ¶ 28. Also after his return to the OIG-USDA, Quijas's application indicated he had worked a complex embezzlement and bank fraud case that he investigated and presented to the Assistant United States Attorney for prosecution. Id. ¶ 29. Quijas was selected a number of times throughout his career for special collateral duty assignments such as: defensive tactics instructor, member of a team selected to review the field structure for OIG investigations, and demand reduction officer where he presented lectures on drug use to schools, churches, and community groups. Id. ¶ 30.
On his most recent performance evaluation, Quijas was rated on five elements as "Outstanding" and on two elements as "Significantly Exceeds Requirements." Id. ¶31.
Maloney selected Quijas because Quijas's application materials included strong responses to KSAs and Captain Reports showing a number of investigations with good results. Id. ¶32. Quijas also had superior performance ratings and was identified as a "self-starter" by his immediate supervisor. Id.
Maloney was aware of the accretion of duties method of promotion and had utilized that method in another promotion decision prior to September 2001. Pl.'s Ex. 4 (Doc. No. 28 at 27). Maloney did not use that method in making the promotion decision for the senior special agent vacancy because at that time he did not think about it. Id. (Doc. No. 28 at 28).
Plaintiff met the basic qualifications that were necessary in order to be considered for the senior special agent vacancy. Id. ¶33. Maloney did not select plaintiff based upon her application and the following specific reasons: (1) plaintiff had few investigative results; (2) plaintiff did not complete her work in a timely manner; (3) plaintiff's KSAs did not indicate a wide variety of skills and abilities; (4) plaintiff's overall performance, as noted in the performance appraisals submitted with the applications, was not as consistent and strong as Quijas's performance; and (5) plaintiff's cases were consistently in the overage case category which means that the cases have been initiated and opened for over 150 days and neither the investigation nor the report of investigation had been completed. Id. ¶ 34.
Plaintiff's most recent performance evaluation, which was submitted along with her application package, indicated an overall rating of "Fully Successful," which is an average rating and was among the lowest rating of all the applicants. Id. ¶ 35.*fn2 Plaintiff's Captain Report showed that she had five investigations assigned to her. Id. ¶ 36. One of those investigations was 406 days old, and the other four investigations were routine cases with three of those in the overage case category. Id. ¶ 36.*fn3
During the selection process, plaintiff's immediate supervisor brought one of plaintiff's investigation reports to the attention of Maloney. Id. ¶ 37.*fn4 Maloney concluded that the report was not thorough and a criminal violation was overlooked by plaintiff. Id. ¶ 37.
Plaintiff's immediate supervisor, Harold Stanford, had worked with plaintiff to increase her work productivity and liaison activity with local law enforcement in order to uncover criminal violations. Id. ¶38. Plaintiff had also received counseling concerning her slow closure of cases. Id. ¶39. Plaintiff was assigned cases based on the investigations scheduled for her geographic area, which are assigned to agents as they complete other investigations and are ready for new assignments. Id. ¶ 40.*fn5 The number and quality of investigations are partly the responsibility of the agent who is to establish liaison contact and develop cases. Id. ¶41. While reviewing the applications, Maloney created a spreadsheet indicating that plaintiff's investigations resulted in only two indictments during the years 1996-2000. Id. ¶ 42.
Plaintiff had several additional performance problems beginning in 1990 when plaintiff received a fourteen-day suspension for falsifying travel and telephone records. Id. ¶43. Plaintiff also received a letter of reprimand for using profanity in her telephone conversation with a secretary. Id. ¶44. Plaintiff received a letter of reprimand for hanging up the phone while conversing with a supervisor. Id. ¶45. Plaintiff was placed on a performance plan sometime in 1989 or 1990. Id. ¶46. In or about 2000, the government claims that plaintiff misused a government credit card by charging items from Lord & Taylor department store. Id. ¶ 47. Plaintiff acknowledged that the use of the government credit card was simply a mistake. Id. ¶ 47.
Plaintiff was investigated for possible intimidation of a promotion panel member after she referred to that member as a "bitch" and "that whore on the panel." Id. ¶48. Plaintiff admitted to only calling the panel member "a female dog." Id. ¶49.*fn6 One of plaintiff's previous supervisors stated that plaintiff "was one of the least productive agents in my group. She had a difficult time getting her cases out quickly and productively." Id. ¶50.
During her career since 1989, plaintiff filed approximately six Equal Employment Opportunity ("EEO") complaints, which were concluded in favor of the Agency. Id. ¶51. Plaintiff filed EEO complaint number 900927, dated September 27, 1990, alleging discrimination based upon race, sex, and reprisal in response to a fourteen-day suspension that plaintiff received for falsifying various vehicle and travel reports. Id. ¶52.
Plaintiff filed EEO complaint number 980059, dated October 28, 1997, alleging that she was subject to a hostile work environment in the form of a memorandum about her mileage reports, a telephone call on August 1, 1997, a follow-up memorandum about her work performance and an issue concerning disclosure of personnel information to the Assistant United States Attorney. Id. ¶56.
Plaintiff filed an EEO complaint, dated September 2, 1999, alleging discrimination based upon race, sex, and retaliation as a result of her non-selection and promotion to a GS013 senior special agent position with the Agency. Id. ¶ 58. Another EEO complaint number 000269, dated December 13, 1999, was filed on December 14, 1999, again alleging discrimination based upon race, sex, and retaliation relating to her non-promotions. Id. ¶58.
On or about February 25, 1999, plaintiff filed an employment discrimination complaint in the United States District Court for the District of Columbia alleging discrimination based upon race, sex, and retaliation. Id. ¶60. That complaint was later amended on or about March 20, 2000, and filed in the United States District Court for the District of Maryland. Id. ¶60. The amended complaint addressed plaintiff's 1997 and 1999 non-promotions, as well as her hostile work environment claims. Id. ¶60. On September 10, 2002, the allegations in the amended complaint were resolved by the grant of summary judgment in favor of the Agency. Id. ¶61.
The EEO complaint relating to this lawsuit was filed pro se by plaintiff as EEO complaint number 020088, dated November 16, 2001 (the "2001 EEO Complaint"). The bases for discrimination asserted by plaintiff in the 2001 EEO Complaint were "Race, Gender, Retaliation for prior EEO activities." Def.'s Ex. I at 1. Attached as part of the 2001 EEO Complaint was "attachment 1" in which plaintiff again asserted discrimination based upon race, gender, and retaliation as a result of her September 6, 2001 non-selection and promotion to GS-13 under Vacancy Announcement No. OIG-1-89. Def's Ex. I at 2; J.C.S. ¶62. In the 2001 EEO Complaint plaintiff protested the promotion of Quijas and claims that she should have been hired because she was solely responsible for performing all the duties within the Pittsburgh office for approximately three years following the retirement of Likens. J.C.S. ¶63. She also complained with respect to her retaliation claim that: "Since 1989 I have filed a total of six EEO complaints against the agency for discrimination. During the past twelve years I have applied unsuccessfully, for numerous promotional positions within the Agency." Def.'s Ex. I at 2.
As one of the grounds for plaintiff's race and gender discrimination claims in this lawsuit, plaintiff testified that, prior to 1999, there was not a black female in the Agency above GS-12.
J.C.S. ¶64. Plaintiff further alleged that Maloney was the Agency official that discriminated against her in this non-selection. Id. ¶65. Maloney, however, never made any discriminatory comments directly to plaintiff and plaintiff had no direct evidence that Maloney had knowledge of other discriminatory statements allegedly made by Agency employees prior to making his selection. Id. ¶66.
Plaintiff claimed that Maloney was retaliating against her in this non-selection for all the plaintiff's prior EEO activity dating back to her first EEO complaint filed in 1990. Id. ¶67. Plaintiff admitted that she had no direct evidence that Maloney retaliated against her for prior EEO activity. Id. ¶68.
On July 5, 2002, the Agency acknowledged receipt of plaintiff's 2001 EEO Complaint for discrimination based upon race, gender, and retaliation when she was not selected for Senior Special Agent, GS-13, under Vacancy Announcement No. OIG-1-89. Id. ¶69. After the investigation was complete, plaintiff requested a hearing before an Equal Employment Opportunity Commission ("EEOC") administrative judge. Id. ¶70.
Plaintiff retired from the OIL-USDA on or about December 31, 2002. Id. ¶¶ 8, 73.
On May 30, 2003, the Agency filed a motion for a decision without a hearing.*fn7 Def.'s Ex. I at 6. Plaintiff did not respond to that motion. Id. On July 3, 2003, the administrative judge issued a decision on defendant's motion, utilizing a summary judgment standard, and after making detailed findings of fact, found plaintiff was not discriminated against during the hiring process for the special agent position on the basis of her race, sex, or in reprisal for participation in EEO activity. Id. at 5-8; J.C.S. ¶71. On December 1, 2003, the Agency issued a Final Agency Decision, implementing the finding of the administrative judge, and on March 1, 2004, plaintiff timely filed the instant district court action. J.C.S. ¶72.
On May 17, 2004, defendant filed a motion for partial dismissal of plaintiff's complaint which was granted by this court on August 27, 2004. Following the grant of the partial dismissal, the only claims remaining in this case were plaintiff's claims asserted under Title VII for 1) a pattern of harassment or hostile work environment, 2) race and gender discrimination and 3) retaliation. In defendant's pending motion for summary judgment, defendant seeks summary judgment on each of those claims. In this memorandum order the court will address each claim. During discovery in this case, plaintiff did not take the deposition of Maloney or any other former or ...