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Genevie v. Jackson

March 24, 2008

AMY MICHELE GENEVIE, PLAINTIFF,
v.
ALPHONSO JACKSON, SECRETARY OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

In this memorandum opinion, the court considers the motion for summary judgment (Docket No. 19) filed by defendant Alphonso Jackson, Secretary of Housing and Urban Development ("defendant" or the "Agency"), against all claims asserted by plaintiff Amy Michele Genevie ("Genevie" or "plaintiff") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII") and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) ("Equal Pay Act"). After considering the joint statement of material facts ("joint statement" or "J.S."), and the other submissions of the parties, and based upon the undisputed facts of record, viewing all disputed facts in favor of plaintiff and drawing all reasonable inferences in favor of plaintiff, defendant's motion for summary judgment will be granted.

I. Factual and Procedural Background

A. Plaintiff's Employment with OIG Genevie, a female, was hired by the Office of Inspector General ("OIG") of the Department of Housing and Urban Development ("HUD") in July 1998 as a GS-7 level auditor in the Financial Audits Division in Washington, D.C. (J.S., ¶1.) In July 1999 plaintiff was promoted to GS-9 and in July 2000 she was promoted to GS-11. (Id. ¶2.) In October 2000 plaintiff transferred to the Pittsburgh, Pennsylvania office. (Id. ¶3.) Plaintiff's second level supervisor, the Regional Inspector General for Audit ("RIGA"), during the time period relevant to this case was Daniel Temme ("Temme"). (Id. ¶4.) Plaintiff's immediate supervisor, the Assistant Regional Inspector General for Audit ("ARIGA"), during the time period relevant to this case was Christine Begola ("Begola"). (Id. ¶5.)

In July 2001 plaintiff became eligible for promotion to GS-12, but was not promoted. (Id. ¶7.) The decision not to promote plaintiff to GS-12 in July 2001 was made by Temme, Begola's supervisor. (Id. ¶8.) On July 24, 2001, plaintiff sent an email to Temme stating she noticed that she was not promoted. (Id. ¶9.) In July 2002, Genevie again was not recommended for promotion to GS-12. (Id.¶60.) In August 2002, Begola had a mid-year evaluation review with plaintiff. (Id. ¶61.) Begola informed plaintiff that she would not be promoted to GS-12 because of perceived issues with timeliness and communication with superiors. (Id. ¶62.) Plaintiff's annual performance evaluation for the time period February 2001 to January 2002 stated:

[The plaintiff] needs to work on completing her assignments in a timely fashion and providing a more accurate status of the work in progress to her supervisors. . . . [T]he work is not timely, which in part, helped delay the overall issuance of the draft report. (Id. ¶63.)

Begola discussed meeting established deadlines with plaintiff throughout the year preceding her potential promotion date. (Id. ¶64.) Plaintiff's End of Assignment Evaluation in April 2002 stated, "she did not prepare her work papers on a timely basis. . . . This had an effect on the date of the issuance of the PHAS audit report." (Id. ¶65.)

The Agency's stated reasons for not promoting plaintiff were her inability to perform at her existing level and her failure to demonstrate that she had the ability to perform at a higher level. (Id. ¶93.) Since 2000, plaintiff has been told that her work is untimely and her audit findings need supporting documentation. (Id. ¶94.) In 2000, plaintiff's End of Assignment Evaluation provided by Debra Braun ("Braun"), the auditor in charge ("AIC") on one of the audits to which plaintiff was assigned, stated the following:

Communication as to the actual steps completed and additional work not finished needs to be accurate and clear. I believe the problems with finishing this section of the FS audit occurred to a large degree because thirteen steps were being reported as completed back on November 17, 2000, when one through seven had not been executed.

Time management is an area needing close attention on assignments. When beginning a W/p [work paper] set a goal for a time of completion. It is important to stay on task and focused. (Id. ¶96.) Plaintiff disagrees with the statements in Braun's End of Assignment Evaluation because Braun herself had problems with performance related to the areas of written communication and technical skills and time resources. (Id. ¶97.)

For the appraisal period from October 2000 to January 2001, plaintiff's review noted that, "Amy and her AIC [Braun] miscommunicated on the status of the job completion and therefore the assignment did not progress according to established timeframes [sic]." (Id. ¶98.) Plaintiff's performance appraisal for the period between February 2001 and January 2002 stated that, "Ms. Genevie needs to work on completing her assignments in a timely fashion and providing a more accurate status of the work in progress to her supervisors." (Id. ¶99.) Plaintiff's End of Assignment Evaluation for the period February 2001 to January 2002 stated:

An area Amy needs to improve on is the timely preparation of her work and providing a more accurate status on the completion of work to her supervisors. During the OHAS audit, she did not prepare her work papers on a timely basis . . . . This had an effect on the date and issuance of the PHAS audit report. (Id. ¶100) (inconsistency in original).

From January 2001 through May 2002 plaintiff alleges that she was doing the job of Chandra Dey ("Dey"), a male, during the "HUD's Utilization of the Public Housing Assessment System" ("PHAS") audit, a national audit. (Id. ¶15.) Plaintiff alleges that Dey possessed neither the knowledge nor the experience to carry out his responsibilities and therefore she had to assume many of these responsibilities, while being paid at the GS-11 level. (Id. ¶16.) When asked about plaintiff's allegations that she performed Dey's responsibilities during the PHAS audit, Temme explained that plaintiff was assigned duties during the PHAS audit that comported with her grade level. (Id. ¶17.)

Dey came to HUD as a GS-12 auditor, and applied for and was selected for his current GS-13 senior auditor position. (Id. ¶18.) Dey was a GS-13 senior auditor during the period from January 2001 through May 2002. (Id. ¶19.) Plaintiff was a GS-11 auditor during that same period. (Id. ¶20.) Dey was assigned to the PHAS audit because he had previously conducted a nationwide audit as the AIC. (Id. ¶21.) Dey was designated the AIC on the PHAS audit because he was the most senior auditor on the audit, and was therefore considered to be the most capable of handling a nationwide review. (Id. ¶22.)

Plaintiff asserts that she wrote the audit program, conducted portions of the audit alone, supported most of the audit findings, and wrote significant portions of the audit report. (Id. ¶23.) Temme stated that according to the work papers documenting the audit, the audit program was largely created by the original AIC, Allen Leftwich, who was Dey's predecessor. (Id. ¶24.) Temme and Begola stated that auditors at the GS-11 grade level are required to document their own findings. (Id. ¶25.) Based upon the position description for a GS-13 auditor, Dey's responsibilities as AIC in the PHAS audit included reviewing the findings of staff auditors and assimilating them into a final report. (Id. ¶26.) The PHAS audit was completed more than six months after its target date. (Id. ¶27.)

Plaintiff was promoted to GS-12 in October 2002. (Id. ¶69.) Temme said that he decided to promote plaintiff because she had made some improvement over the year, it appeared that the audit she was working on was on track, and he felt it would motivate her to perform at a higher level. (Id. ¶70.)

On September 16, 2003, Begola spoke with plaintiff as part of plaintiff's mid-year review. (Id. ¶101.) Plaintiff was informed in writing in December 2003 that she would not be promoted to GS-13. (Id. ¶102.) In the December 2003 memorandum, Temme stated that plaintiff was not going to be promoted because her work over the past year had not demonstrated that she had the ability to perform at the GS-13 level. (Id. ¶103.) Temme also stated in the December 2003 memorandum that plaintiff's work continued to be untimely and the documentation required to support her work was deficient. (Id. ¶104.)

In an End of Assignment Evaluation for the time period February 2004 through December 2004, Begola, plaintiff's supervisor, noted that, "Ms. Genevie needs to work in the area of time management to ensure assigned segment [sic] are completed within the established timeframe [sic]." (Id. ¶105.) Begola gave plaintiff a memorandum, dated December 3, 2004, discussing plaintiff's performance. (Id. ¶106.) The December 3, 2004 memorandum communicated Begola's concerns regarding plaintiff's performance, especially plaintiff's continual failure to meet deadlines. (Id. ¶107.) The December 3, 2004 memorandum to plaintiff stated in part:

A successful GS-12 Auditor must demonstrate the ability to timely execute an audit, be cognizant of milestone dates and complete assigned work within the established timeframe [sic]. However, you continually fail to meet deadlines for various assignments. Throughout the current review of the Baltimore Housing Authority, the AIC continually provided you with deadlines . . . . Throughout the audit, established deadlines were continually missed, even after you provided input as to the specific date the work would be completed . . . . Good management of time and resources is at the core of every successful auditor, and you must improve your performance in these areas. (Id. ¶108.)

The memorandum gave specific examples of situations where important deadlines were missed, and urged plaintiff to improve her performance in the area of time management and resource management. (Id. ¶109.) The memorandum suggested six steps that Begola believed were ways that plaintiff could improve her performance, including, among others, such things as forecasting work to be performed in a given week, reviewing work completed at the end of each week to insure tasks have been accomplished, and eliminating non-work related distractions. (Id. ¶110.) The memorandum further warned that if the deficiencies in plaintiff's performance were not corrected, Begola would have to initiate more formal corrective action in the form of an Opportunity to Improve period, which if not successfully completed could result in plaintiff's demotion or removal. (Id. ¶111.) For the rating period February 2004 to January 2005, Begola again noted that, "Ms. Genevie needs to remain cognizant of properly referencing her work papers," and "[t]ime management is a continual challenge for Ms. Genevie and has been discussed with her on several occasions." (Id. ¶112.) Since the year 2000, the Agency consistently documented plaintiff's performance problems. (Id. ¶114.)

Plaintiff disagrees with the statements concerning untimely work and supporting documentation for audit findings contained in her evaluations and performance appraisals. (Id. ¶95.) Plaintiff contends that the perceived deficiencies in her work performance resulted from being assigned more work and being held to a higher standard for documenting work than the rest of the staff. (Pl.'s Resp. to Def.'s Statement of Material Facts ¶58.)

B. Temme and Begola -- Record of Promotions

Both Temme and Begola have a record of promoting employees under their supervision. (J.S. ¶71.) Temme selected Begola, a female, to be an Assistant Regional Inspector General for Audit, a GS-14 position. (Id. ¶72.) Temme stated that as of December 2003, he had been in his position of Regional Inspector General for Audit for about four years. (Id. ¶76.) Temme has denied a male auditor, John Morris ("Morris"), promotion to the GS-12 level several times. (Id. ¶77.) Temme stated that Morris had been denied promotion to the GS-12 level for more than ten years. (Id. ¶78.) Temme denied Morris a promotion to GS-12 for several years, both before plaintiff was denied her promotion and after she was given her promotion. (Id. ¶79.) At the time of Temme's departure from the Agency, he was denying career-ladder promotions to three individuals, two females (one being the plaintiff) and one male. (Id. ¶80. Kimberly Harrison, a female auditor under Begola's supervision, was promoted from GS-9 to GS-11 in February 2003, and then to GS-12 in April 2004. (Id. ¶81.) Begola also promoted another female, Debra Braun, to GS-12 in March 2003. (Id. ¶82.) Begola did not recommend the promotion of any male to GS-13 during her tenure as the Assistant Regional Inspector General for Audit. (Id. ¶83.)

C. Career Ladder Progression for Auditors

The career ladder progression for auditors, like plaintiff, in the OIG is from a GS-7 auditor (entry-level) to a GS-13 senior auditor. (Id. ¶28.) The responsibilities at each grade become progressively more demanding and accountable. (Id. ¶29.) Both Begola and Temme reference the written standards for the GS-11, GS-12, and GS-13 auditor positions in evaluating the performance of auditors on their staff. (Id. ¶30.) Auditors are expected to demonstrate the elements contained in the standards for their position. (Id. ¶31.) The distinctions between the grade levels are mainly related to knowledge, skill and responsibility. (Id. ¶¶32-44.) Generally, a GS-13 auditor is expected to be able to lead and manage an audit with minimal supervision, while a GS-12 requires more supervision, and a GS-11 auditor requires even more supervision. (Id. ¶47.) When asked about the expectations for a GS-13 auditor, Temme stated:

We expect more from them. They're supposed to control the audit. They're supposed to divvy out things, keep the ARIGA posted. They're the front person. (Id. ¶50.)

Under 5 C.F.R. Part 300, Subpart F § 300.604(a), "Time-in-Grade Restrictions," an Office of Personnel Management regulation governing the promotion of Federal employees, an employee must spend one year at the lower grade level in order to become eligible for a promotion to the next grade level. (Id. ¶51.)

D. Discrimination Claim

On August 22, 2002, plaintiff initiated contact with an EEO counselor. (Id. ¶10.) As the basis for her EEO complaint, plaintiff stated: "On August 9, 2002, I learned that my promotion was being denied again. I felt that I have been treated different [sic] than male staff as it relates to the career ladder promotion procedures." (Id. ¶11.) On the EEO complaint form, plaintiff stated that she sought corrective action in the form of "Retroactive promotion to GS-12 as of eligibility date, 7/01/01." Id. ¶12. Plaintiff filed a formal complaint with the EEO on October 17, 2002, alleging discrimination on the basis of sex and violation of the Equal Pay Act. (Compl. ¶8; Pl.'s Ex. U.) Although plaintiff was a GS-11 in July 2002, plaintiff sought a retroactive promotion as of July ...


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