Paschal v. McHugh

Filing 75

MEMORANDUM OPINION as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 06/22/15. (SPT )

FILED
2015 Jun-22 PM 02:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ALESYA M. PASCHAL,
Plaintiff,
vs.
JOHN M. McHUGH,
Secretary of the Army,
Defendant.

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Civil Action No. CV-12-S-2985-NE

MEMORANDUM OPINION
Plaintiff, Alesya M. Paschal, is a General Engineer who is employed by the
United States Army’s Space & Missile Defense Center located on Redstone Arsenal
in Huntsville, Alabama. She asserts a claim for sexual harassment, numerous claims
of gender discrimination and retaliation in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and a claim of disability
discrimination in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
§ 701 et seq.1 All claims are asserted against defendant, John M. McHugh, in his
official capacity as Secretary of the United States Army.2 The case currently is before
1
2

See doc. no. 28 (Third Amended Complaint).

In federal sector employment discrimination cases, the head of the agency that allegedly
committed unlawful discrimination “shall be the defendant.” 42 U.S.C. § 2000e-16(c). See also,
e.g., Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988) (holding that head of federal agency
was proper defendant in action alleging violation of Title VII); Canino v. United States Equal
Employment Opportunity Commission, 707 F.2d 468, 472 (11th Cir. 1983) (same).

the court on defendant’s motion for summary judgment.3
I. INTRODUCTION
Before considering the merits of defendant’s motion, this court must address
the dilemma that was created on January 5, 2015, when the Alabama State Bar placed
plaintiff’s attorney on “inactive status,” and thereby declared that he was “not in good
standing.”4 That action was preceded by the following events.
On November 12, 2014, this court struck plaintiff’s initial brief in opposition
to defendant’s motion for summary judgment for failing to comply with the “Uniform
Initial Order” that had been entered shortly after commencement of this action.5 That
order directed plaintiff to file a brief that complied with the formatting requirements
and page limitations of the Uniform Initial Order (i.e., not more than 85 pages) on or
before December 3, 2014.6
Plaintiff’s counsel did not comply with those directives in any respect. Instead,
on December 5, 2014, two days late, he filed a motion for permission to submit his
3

Doc. no. 39.

4

A copy of the State Bar’s notice, certifying that plaintiff’s attorney had been placed on
inactive status with the Alabama State Bar is attached as Exhibit “A.”
5

See doc. no. doc. no. 7 (Uniform Initial Order entered on Jan. 18, 2013); doc. no. 53
(Plaintiff’s First Response to Summary Judgment); doc. no. 38 (Text Order granting motion for leave
to file excess pages); and doc. no. 56 (Order striking plaintiff’s first response to summary judgment
because it was typed in 12-point font, did not contain either a table of contents or a statement of
additional undisputed facts, and was 143 pages in length).
6

See doc. no. 56, at 2.

2

revised response of time,7 a motion to exceed the 85-page limit,8 and, a proposed,
200-page responsive brief.9 (If the three-page “Table of Contents” that was filed with
the revised brief as a separate “Exhibit” is counted,10 the responsive brief actually was
203 pages in length.) This court struck plaintiff’s second attempt at a responsive
brief, but allowing her attorney fourteen additional days (until December 22, 2014)
to file a brief that complied with the Uniform Initial Order.11
On December 23, 2014, one day late, plaintiff’s counsel filed a motion seeking
a further extension of time: i.e., “four and one half days until Noon CST to and
including December 29, 2014, in which to respond to Defendant’s Motion for
Summary Judgment.”12 This court granted that motion by means of a so-called
“TEXT ORDER” electronically “stamped” on the case action summary (docket) sheet
maintained by the Clerk.13

7

See doc. no. 57 (Plaintiff’s Motion for an Enlargement of Time to Respond to Defendant’s
Motion for Summary Judgment).
8

See doc. no. 58 (Motion to Exceed Page Limits).

9

See doc. no. 60 (“Paschal’s Response in Opposition to Agency Motion for Summary
Judgment”).
10

See doc. no. 60-1 (Exhibit: Table of Contents to Brief).

11

See doc. no. 62 (Order), at 3 (“Plaintiff is DIRECTED to file a brief that comports with this
court’s requirements by December 22, 2014. Thereafter, defendant will have until January 5, 2015,
to file a reply brief. Plaintiff will not be given any additional attempts to respond to summary
judgment if her brief again does not comport with this court’s requirements.”)
12

See doc. no. 63, at 1.

13

See doc. no. 64 (Text Order).

3

Yet again, however, plaintiff’s counsel did not comply with the court’s
deadline. Instead, on January 5, 2015, seven days late, he filed a motion seeking yet
another extension of time, “until Noon CST to and including January 8, 2015,” and
permission to file a brief containing 125 pages.14 This court initially was inclined to
summarily deny that relief and to consider defendant’s motion for summary judgment
with no response from plaintiff. But, mindful of the need to give fair consideration
to the claims of plaintiff, despite her attorney’s failures, this court ultimately granted
the motion in both respects, stating that:
The deadline for plaintiff to respond to defendant’s motion for summary
judgment is EXTENDED until January 8, 2015. Thereafter, defendant
will have until January 22, 2015 to file a reply brief. The page limit for
plaintiff’s brief is EXTENDED to 125 pages.15
Perhaps it will come as no great shock that plaintiff’s attorney only partially
complied with those requirements. His brief was less than 125 pages in length, but
it was one day late.16 The most serious problem, however, arose from the fact that the
Alabama State Bar had placed him on inactive status four days before.
With the sole exception of attorneys from other jurisdictions who are admitted
pro hac vice, or individual parties who represent themselves pro se, only lawyers who
14

Doc. no. 66.

15

Doc. no. 68.

16

See doc. no. 69 (“Paschal’s Response in Opposition to Agency Motion for Summary
Judgment”).

4

are licensed by, and in good standing with, the Alabama State Bar possess the
authority to practice law in the courts of the State of Alabama, and to be admitted to
practice before the Bar of the United States District Court for the Northern District
of Alabama. See, e.g., Herndon v. Lee, 199 So. 2d 74, 78 (Ala. 1967) (“Only such
persons as are regularly licensed have authority to practice law.”); N.D. Ala. Local
Rule 83.1(a)(1).17
Before this court could formally address the issue of the standing of plaintiff’s
attorney to file pleadings in this action, however, his client, Alesya M. Paschal, filed
a pro se pleading that objected to the “withdrawal” of her attorney — a pleading that
this court construes as an objection to striking the most recent brief filed on her

17

The pertinent portions of the Local Rule cited in text reads as follows:

1. (a) Bar of Court. The bar of this court consists of those persons previously
admitted to (and not removed from) the bar of this court and of those persons who
hereafter are admitted under this Rule.
(1) Any attorney who is admitted to practice before the Supreme
Court of Alabama and who resides in Alabama or regularly engages in the
practice of law in Alabama may be admitted to the bar of this court upon the
submission of an application, payment of the prescribed fee, and
(A) the order of a judge of this court (on oral or written
motion by a member of the bar of this court or on the court’s own
motion), and the administering of the prescribed oath before any
judge (or other designee) of this court; . . . ;
N.D. Ala. LR 83.1(a)(1)(A).

5

behalf.18 Ms. Paschal asserts that: her attorney required a $30,000 retainer (!); she
had “paid him in full”; and, accordingly, “[f]or him to withdraw [sic] denies me the
benefit of what I paid him for.”19
Hence, the dilemma. This court is sensitive to plaintiff’s concerns. Even
though the court is not pleased with the failure of her attorney to comply with the
requirements of the “Uniform Initial Order,” or the orders outlined above, this court
is mindful of the interests of justice. Therefore, in an effort to ensure that no aspect
of plaintiff’s numerous claims is overlooked, this court exercises its inherent
discretion to consider not only the most recent responsive brief filed on plaintiff’s
behalf (doc. no. 69), but also the two briefs that were previously stricken (doc. nos.
53 and 60). Accordingly, it is ORDERED that this court’s prior orders striking
plaintiff’s initial and second briefs in response to defendant’s motion for summary
judgment are WITHDRAWN and RESCINDED,20 both reply briefs are
REINSTATED,21 and each will be considered together with the brief filed on January

18

See doc. no. 74 (Opposition to Attorney Howell Roger Riggs’s Withdrawal as Attorney for
Plaintiff).
19

Id. (alterations and emphasis supplied).

20

See doc. no. 56 (Order Striking Plaintiff’s First Response to Summary Judgment); doc. no.
62 (Order Striking Plaintiff’s Second Response to Summary Judgment).
21

See doc. no. 53 (Plaintiff’s First Response to Summary Judgment); doc. no. 60 (Plaintiff’s
Second Response to Summary Judgment).

6

9, 2015.22
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is
only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat
22

See doc. no. 69.

7

summary judgment unless that factual dispute is material to an issue
affecting the outcome of the case. The relevant rules of substantive law
dictate the materiality of a disputed fact. A genuine issue of material
fact does not exist unless there is sufficient evidence favoring the
nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).
Following application of the foregoing standards to the pleadings, briefs, and
evidentiary submissions, this court concludes that defendant’s motion for summary
judgment is due to be granted.
III. SUMMARY OF FACTS
The following statements are the “facts” for summary judgment purposes only,
and may not be the actual facts. See Cox v. Administrator U.S. Steel & Carnegie
Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994). All reasonable doubts have been
resolved in favor of plaintiff, the nonmoving party. See Information Systems and
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002).23
23

It should be noted that, on some occasions when plaintiff disputes the accuracy of
defendant’s statements of allegedly undisputed facts, plaintiff does not cite any evidence of record
in support of her denial. See, e.g., doc. no. 53 (Plaintiff’s First Response to Summary Judgment),

8

A.

Harassment
Plaintiff has worked as a GS-14 General Engineer in the “Future Warfare

Center” of the United States Army’s Space & Missile Defense Center on Redstone
Arsenal since 2002.24
Steve Fox, Chief of the Models & Simulations Division in the Future Warfare
Center, served as plaintiff’s direct supervisor from 2002 until 2008.25 Prior to 2008,
plaintiff and Fox had a “trusting, friendly” relationship.26 during 2005, for example,
when plaintiff complained to Fox about inappropriate comments made to her by a
male colleague, Fox forwarded plaintiff’s complaints to the EEO Office, prepared a
removal letter for the offender, and secured his resignation from federal service.27
¶ 36 (no citation provided). Alternatively, on other occasions, plaintiff cites exhibits that are not part
of the record as the basis for her denial of defendant’s factual assertion. See, e.g., id. ¶ 12 (citing to
“Ex. 175,” which plaintiff did not attach), and ¶ 31 (citing to “Ex. 171,” which plaintiff did not
attach). In those instances, the court will accept defendant’s factual assertions as undisputed for
purposes of summary judgment. See doc. no. 7 (Uniform Initial Order), Appendix II (Summary
Judgment Requirements), ¶ D.2.a, at 15 (“The non-moving party’s response to the moving party’s
claimed undisputed facts shall be in separately numbered paragraphs that coincide with those of the
moving party’s claimed undisputed facts. Any statements of fact that are disputed by the nonmoving party must be followed by a specific reference to those portions of the evidentiary record
upon which the dispute is based. All material facts set forth in the statement required of the moving
party will be deemed to be admitted for summary judgment purposes unless controverted by the
response of the party opposing summary judgment.”) (all emphasis in original).
24

Ex. 1 (Plaintiff’s Deposition), at 18-19. The court cites to the exhibits in the same manner
as the parties because the organization of the exhibits leaves much to be desired. For example, the
copy of plaintiff’s deposition that defendant included in its evidentiary submission does not contain
page numbers. See doc. no. 41-1 (Plaintiff’s Deposition).
25

Ex. 1 (Plaintiff’s Deposition), at 19.

26

See Ex. 1, GX 41 (Notes Taken During Discussions With Plaintiff), at 7077.

27

Ex. 150 (Plaintiff’s Testimony), at 8719-21, 8764-66.

9

Despite such support of plaintiff by Fox, she frequently was insubordinate to
him, and on numerous occasions engaged in such disrespectful conduct as “yelling
[at Fox], slamming his office door, and stomping to and from his office.”28
Their relationship was not improved by the fact that Fox occasionally made
inappropriate comments to plaintiff. For example, when plaintiff asked in September
of 2005 whether there was a position available for a female mechanical engineer, Fox
asked, “What’s her cup size?”29 Later, in February of 2006, while plaintiff and Fox
were on a business trip to Orlando, plaintiff wore the wrong bra. Fox suggested she
take it off and wear “band-aids” instead.30 Later that same year, he sent plaintiff an
email saying that her “[b]ehavior problems” and “[h]ostility” indicated that it was
time to “double [her] dose” of prescribed medication.31 In September of 2006, while
plaintiff was in Panama City, Fox asked her to “flash” him on a web camera.32
In October 2006, a female employee of the Space & Missile Defense Center
posted nude photographs of herself on the internet.33 Some employee of the Future
Warfare Center brought copies of those photographs into the workplace on a compact
28

Ex. 1, GX 45 (Collins Statement), at 6998 (alteration supplied); see also Ex. 1, GX 44
(Novak Statement), at 6994 (noting “yelling” by plaintiff at Fox).
29

Ex. 202 (Emails).

30

Ex. 150 (Plaintiff’s Testimony), at 8725.

31

Ex. 214 (Fox Emails) (alterations supplied).

32

Ex. 150 (Plaintiff’s Testimony), at 8726

33

Ex. 1 (Plaintiff’s Deposition), at 74-75.

10

disc.34 (Security filters installed on all Army computers prevented access to the
internet website on which the photos had been posted.) Fox talked to plaintiff about
the photographs on several occasions, asking whether she had seen them.35 Colonel
David Cox, Deputy to Larry Burger, Director of the Future Warfare Center,
immediately initiated an investigation into the posting of the photographs because
they created a potential security issue (e.g., someone could use the photos to
blackmail the female employee), and he instructed all Center employees to stop
talking about them.36
The Army’s Security Office, G-2, ultimately determined that the photographs
did not create a security issue.37 Even so, Colonel Cox directed the female employee
to remove them from the website in late 2006.38 In January of the following year,
plaintiff was reprimanded for continuing to talk about the web photos.39 She did “not
understand why [the female employee’s] behavior is taboo at work if the Command”
found no security issue,40 and consequently met with Mary Peoples in the EEO Office
34

Ex. 212 (Emails), at 4913.

35

Ex. 150 (Plaintiff’s Testimony), at 8726.

36

Ex. 1 (Plaintiff’s Deposition), at 76, 82; Ex. 150 (Plaintiff’s Testimony), at 8777; Ex. 3
(Cox Statement), at 7152; Ex. 163 (Burger’s Testimony), at 10190.
37

Ex. 1, GX 25 (Fox Email), and GX 27 (Peoples Statement); Ex. 163 (Burger’s Testimony),
at 10258, 10142.
38

Ex. 1 (Plaintiff’s Deposition), at 77; Ex. 150 (Plaintiff’s Testimony), at 8726.

39

Ex. 150 (Plaintiff’s Testimony), at 8726; Ex. 1, GX 27 (Peoples’s Statement).

40

Ex. 1, GX 25 (Fox Email) (alteration supplied).

11

to complain about being “singled out” for a reprimand. She told Peoples that a male
employee had not been reprimanded for similar behavior, and asked what actions had
been taken against the female employee who had posted the photographs.41 Peoples
subsequently made sure that the male employee was counseled, but told plaintiff that
the female employee would not be disciplined, and that plaintiff should cease further
discussion of the photographs.42
It should be noted that, at the time of the events described in the preceding
paragraph, plaintiff did not complain to Mary Peoples about sexual harassment by a
supervisor.43
At the end of a September 19, 2007 discussion, plaintiff told Steve Fox to “go
to hell.”44 The next day, Fox sought advice from Olusola Fadairo, the Space &
Missile Defense Center’s Human Resources Specialist, who recommended that he
initiate a “Letter of Concern”: an action that would offer counseling to plaintiff, but
one that would not constitute a “formal action,” nor an event that would be included
in her personnel file.45

41

Ex. 150 (Plaintiff’s Testimony), at 8730, 8831, 8865; Ex. 1, GX 27 (Peoples’s Statement).

42

Ex. 1, GX 27 (Peoples’s Statement).

43

See id.; Ex. 162 (Plaintiff’s Testimony), at 9734-35.

44

Ex. 150 (Plaintiff’s Testimony), at 8902.

45

Ex. 32 (Fadairo Email); Ex. 152 (Fox’s Testimony), at 8987, 9008-11, 9039; Ex. 160
(Williams’s Testimony), at 9360-62, 9373-74.

12

On October 31, 2007, while Fox’s Letter of Concern was under review by the
Human Resources Department, plaintiff made statements to Fox that led him to
believe that she was accusing him of “discrimination based on sex and handicap.”46
According to Fox, plaintiff
mentioned that [she] had a brain injury that was documented in a
workman’s compensation case and confirmed by a doctor. [She] stated
that [he] needed to request the information from the Office of Workers’
Compensation Programs. When [he] pursued the issue [she] quickly
changed it to an issue of [his] inability to understand [her] because [she
is] a “female with a high-pitched voice.”
Ex. 33 (Fox Email) (alterations supplied). Fox consulted Johnetta Graves in the
Space & Missile Defense Center’s Legal Department.47
On November 26, 2007, Fox scheduled a meeting with plaintiff, to discuss her
conduct, and advised her that she could request a Union representative to be present.48
Three days later, he handed her a “Letter of Concern,” detailing plaintiff’s recurring
insubordinate conduct and performance issues.49 The Letter did not implement any
disciplinary action, decrease in pay, demotion, or corrective action;50 but, based upon
plaintiff’s statements about a 1996 head injury, and in accordance with instructions

46

Ex. 33 (Fox Email).

47

Id.

48

Ex. 1, GX 58 (Plaintiff Emails), at 7043.

49

Ex. 1 (Plaintiff’s Deposition), at 69; Ex. 1, GX 24 (Letter of Concern).

50

See Ex. 1, GX 24 (Letter of Concern).

13

that had been given to Fox by the EEO Office, his Letter suggested that plaintiff
“seek an evaluation from the Employee Assistance Program on Redstone Arsenal.”
Even so, Fox specifically noted that he did “not have the authority to direct that
[plaintiff] seek an evaluation[,] or that [she] discuss the contents of [the letter] with
anyone.”51 Most importantly, despite Fox’s reference to plaintiff’s head injury, his
Letter did not label plaintiff as “disabled.”52 Nevertheless, the Letter did request that
she provide documentation, if she had a medical condition. Plaintiff did not respond
to that request. She never submitted any medical documentation suggesting that she
had an impairment.53 In fact, plaintiff admits that there is no duty in her job
description that is limited by her head injury.54
Plaintiff met with Ruby Turner and Richard Lewis in the office of the
Employee Assistance Program on January 10, 2008, to voice her concerns about
Fox’s Letter of Concern and her perception that it amounted to an act of retaliation.55
She returned to Ms. Turner’s office on January 14, 2008. According to Ms. Turner,
there was “no specific indication of sexual harassment” during either meeting.56 Mr.
51

Id. (emphasis and alterations supplied); Ex. 152 (Fox’s Testimony), at 9032.

52

See Ex. 1, GX 24 (Letter of Concern).

53

See Ex. 1 (Plaintiff’s Deposition), at 72-73.

54

Ex. 150 (Plaintiff’s Testimony), at 8716-17.

55

Id. at 8736.

56

Ex. 1, GX 46 (Turner Statement).

14

Lewis likewise stated that plaintiff’s focus during the meeting he attended on January
10 was on retaliation, and he denied that he told plaintiff that she had been sexually
harassed.57 Plaintiff then met with Fox, who told her that she could talk to Cindy Van
Rassan, a lawyer, or she could talk to her Union representative, and he gave her a list
of other people she could consult for advice.58
Plaintiff complained to the President of the employee Union,59 and he took her
complaint to Larry Burger, Director of the Future Warfare Center, on January 25,
2008.60 Mr. Burger said he would initiate an investigation by an outside agency.61
In the meantime, he counseled Steve Fox, and directed him to treat plaintiff in the
same manner that he dealt with all other employees.62
The following month, Colonel William Whitney, from outside the Future
Warfare Center, began an investigation. With “guidance from the Command Legal
and EEO offices,” he conducted interviews of several individuals.63 Meanwhile, on
February 27, 2008, plaintiff submitted an informal complaint of sexual harassment,

57

Ex. 2 (Lewis’s Declaration), at 7579.

58

Ex. 150 (Plaintiff’s Testimony), at 8737-38.

59

See Ex. 162 (Plaintiff’s Testimony), at 9737-38.

60

Ex. 151 (Burger’s Testimony), at 8922.

61

Ex. 42 (Eierman’s Declaration), at 7584.

62

Ex. 22 (Burger’s Statement), at 7156; Ex. 151 (Burger’s Testimony), at 8936.

63

Ex. 42 (Eierman’s Declaration), at 7584; Ex. 1, GX 40 (Col. Whitney Investigation
Report), at 6919.

15

a hostile working environment, and disability discrimination to the EEO Office.64
The following day, February 29, 2008, Colonel Whitney submitted the results of his
investigation to the EEO Office and the Legal Department. He found that there had
been mutually inappropriate exchanges between plaintiff and Steve Fox, but observed
that plaintiff had engaged in “openly defiant and insubordinate” conduct toward Fox,
and concluded by stating that present and former co-workers “deny a sexually hostile
work environment.”65
Dr. Steven Pierce, plaintiff’s second-line supervisor and Director of the
Simulations and Analysis Directorate of the Future Warfare Center, removed Steve
Fox as Chief of the Models & Simulations Division sometime around March 3, 2008,
and reassigned him to a different Directorate.66 On March 6, 2008, Dr. Pierce
informed plaintiff of Fox’s reassignment, and told her that she should thereafter
report to him (Dr. Pierce), as her direct supervisor, beginning on March 10, 2008.67
The EEO Office noted no resolution of plaintiff’s informal complaint on April
11, 2008, and issued her a “Notice of Right to File a Discrimination Complaint” and

64

Ex. 1, GX 37 (EEO Counselor’s Report).

65

Ex. 1, GX 40 (Col. Whitney Investigation Report), at 6921.

66

Ex. 153 (Dr. Pierce’s Testimony), at 9076.

67

Ex. 150 (Plaintiff’s Testimony), at 8740-41.

16

a “Notice of Rights and Responsibilities.”68 Plaintiff filed a formal EEO Complaint
on April 28, 2008, alleging sexual harassment, disability discrimination, and
retaliation.
The Army initiated a formal AR 15-6 Investigation of plaintiff’s sexual
harassment allegations. That investigation was conducted by Randy Gallien, an
individual outside the Future Warfare Center.69 Plaintiff’s Union representative
accompanied her to all meetings during the investigation.70 Gallien interviewed and
procured sworn statements from plaintiff, Steve Fox, Dr. Steven Pierce, and several
employees in the Future Warfare Center, including Justin Novak, Veronica Collins,
Ruby Turner, Martin Goodman, Kevin Crumlish, Mike Davis, and Jason Baker.71
None of those co-workers substantiated plaintiff’s claim of sexual harassment by Fox,
or her allegations that Larry Burger propagated a philosophy of management that
used subordinates to “target” employees.72 In fact, several employees asserted that

68

Ex. 1, GX 37 (EEO Counselor’s Report); Ex. 1, GX 38 (Notice of Right to File a
Discrimination Complaint); Ex. 1, GX 39 (Notice of Rights and Responsibilities).
69

Ex. 1 (Plaintiff’s Deposition), at 101.

70

Id.; Ex. 1, GX 43 (Chronology of Investigation).

71

Ex. 1, GX 43 (Chronology of Investigation); Ex. 1, GX 44 (Novak Statement); Ex. 1, GX
45 (Collins Statement); Ex. 1, GX 46 (Turner Statement); Ex. 1, GX 47 (Goodman Statement); Ex.
1, GX 48 (Crumlish Statement); Ex. 1, GX 49 (Davis Statement); Ex. 1, GX 50 (Baker Statement).
72

See Ex. 1, GX 44 (Novak Statement); Ex. 1, GX 45 (Collins Statement); Ex. 1, GX 46
(Turner Statement); Ex. 1, GX 47 (Goodman Statement); Ex. 1, GX 48 (Crumlish Statement); Ex.
1, GX 49 (Davis Statement); Ex. 1, GX 50 (Baker Statement).

17

plaintiff had, herself, engaged in calculating, insincere, or manipulative conduct.73
Gallien’s report confirmed that accusation: he recorded that “[a] pattern of verbal
abuse and manipulation of facts [by plaintiff] to cause targeted employees to leave is
substantiated by every member of the organization interviewed.”74 He concluded
that, even though “improper behavior between a supervisor [Steve Fox] and
subordinate [plaintiff] did occur, the behavior did not rise to the level of sexual
harassment.”75 Lieutenant General Kevin Campbell, then Commanding General of
the Space and Missile Defense Center, approved Gallien’s findings on August 8,
2008, but determined that plaintiff need not comply with the directive contained in
Fox’s Letter of Concern. Instead, he directed that all Future Warfare Center
employees undergo interpersonal relationship counseling and sexual harassment
training.76
B.

Events Leading Up to Plaintiff’s Disciplinary Actions
During the years between 2005 and 2008, plaintiff demonstrated “a history of

belligerent, insubordinate, defiant and harassing behavior against government co-

73

See Ex. 1, GX 44 (Novak Statement); Ex. 1, GX 45 (Collins Statement); Ex. 1, GX 47
(Goodman Statement); Ex. 1, GX 48 (Crumlish Statement); Ex. 1, GX 49 (Davis Statement); Ex.
1, GX 50 (Baker Statement).
74

Ex. 1, GX 51 (Gallien Findings), at 6990 (alterations supplied).

75

Id. at 6983 (alterations supplied).

76

Ex. 44 (Campbell Memorandum).

18

workers, government contractors, and her supervisor,” to the point that some
“contractors [had] asked not to be invited to [the Future Warfare Center] staff
meetings based on her defiance/insubordination/hostility in [those] meetings.”77 For
example, when a co-employee corrected plaintiff during a conference call, she
“became so angry she threw a pen in [his] direction.”78 On another occasion, an
employee reported that plaintiff “was hysterically yelling at [his] supervisor outside
of [his] cubicle that he was too ‘stupid’ to understand what she was trying to explain
and that she was not able to ‘dummy’ her work down to his level.”79 As previously
noted, plaintiff told Steve Fox to “go to hell” at the end of a September 19, 2007
discussion.80 Eventually, plaintiff’s behavior became so disturbing that several of her
co-workers met with officials in the Human Resources Department to describe their

77

Ex. 1, GX 11 (Jason Baker Email), at 375 (alterations supplied). See also Ex. 157 (Elliot’s
Testimony), at 9282 (plaintiff’s “aggressiveness and combativeness turned a lot of people off”); Ex.
1, GX 49 (Davis Statement) (noting plaintiff’s “screaming and yelling”); Ex. 1, GX 45 (Collins
Statement), at 6998 (plaintiff showed “insubordination in demeanor and verbal remarks” that caused
contractors to ask to be excused from weekly calls). These citations are another example of the
parties’ poor exhibit organization. The numerous exhibits filed by the parties are not separated into
separate documents. Further complicating matters, labels, such as “GX 11,” are placed only at the
beginning of the exhibit, and it is difficult to find each individual exhibit among the 59 attached to
plaintiff’s deposition. Defendant provided a courtesy copy with each individual exhibit tabbed out,
but the courtesy copy does not contain an ECF heading identifying the ECF document and page
number associated with the documents. Accordingly, the court will continue to cite to the exhibits
in the same manner as the parties.
78

Ex. 1, GX 44 (Novak Statement), at 6994 (alterations supplied).

79

Ex. 1, GX 50 (Baker Statement), at 7018 (alterations supplied).

80

Ex. 150 (Plaintiff’s Testimony), at 8902.

19

problems in attempting to work with her.81
In late 2007, plaintiff and Dr. Steven Pierce competed for the position of
Director of the Simulations and Analysis Directorate of the Future Warfare Center.82
Prior to that time, plaintiff described her relationship with Dr. Pierce as “a friendly
relationship.”83 Indeed, during the period that she and he competed for the same
position, Dr. Pierce told plaintiff that he would “have no problems working with
[her],” if she were to be awarded the position.84 The relationship soured on February
11, 2008, however, when Dr. Pierce was selected, and he became plaintiff’s secondline supervisor.85
Prior to Dr. Pierce’s selection, plaintiff learned that she was to be assigned as
a member of a selection committee established by Major Jason Conroy in the G-3
Strategy Policy & Integration Division.86 During April of 2008, after Dr. Pierce’s
selection, plaintiff also was notified that her application to attend a training course
had been granted.87 Plaintiff could not simultaneously attend both. She informed

81

Ex. 1, GX 51 (Gallien Findings), at 6982.

82

Ex. 97 (Selection Memorandum).

83

Ex. 150 (Plaintiff’s Testimony), at 8813.

84

Id. (alteration supplied).

85

Ex. 153 (Dr. Pierce’s Testimony), at 9070.

86

Id. at 9079-80, 9085.

87

Id. at 9079-81.

20

Major Conroy and Dr. Pierce of the conflict, and Dr. Pierce told her that the selection
committee was a “priority,” and that she would be scheduled to attend the next
training course.88 Plaintiff replied that postponing the training course “wasn’t an
option.”89 When Dr. Pierce reiterated that the selection committee was a priority, she
said “that it was not her priority.”90 Plaintiff eventually backed down from her
insubordinate position, and received her desired training less than one year later.91
Dr. Pierce counseled plaintiff on her behavior in July of 2008:
I told her that she needed to listen, and to consider constructive
advice and feedback. I told her to be polite when dealing with fellow
employees, as well as supervisors. One of the other things I told her is
to look at the person you are talking to and answer questions when
asked by fellow workers, or your leadership because, oftentimes, she
doesn’t look at you when you are asking her questions.
I told her to think before responding, identify and emphasize key
points, stay on message, don’t veer off because she had a tendency to
veer off the message when asked questions. My overall assessment
focused on identifying issues, be a team player, be considerate of others
and stay on the message.
Ex. 127 (Dr. Pierce’s Testimony), at 567-68.
During a telephone conversation in late September of 2008, plaintiff referred

88

Id. at 9079, 9083.

89

Id. at 9086.

90

Id. at 9086.

91

Ex. 162 (Plaintiff’s Testimony), at 9801.

21

to the Commanding General, Lieutenant General Kevin Campbell, as a “shithead.”92
On October 1, 2008, Dr. Steven Pierce met with plaintiff, her Union representative,
and Dr. John Tomkovich, Chief of the Operations Division, for a counseling session
regarding that behavior.93

During that meeting, plaintiff made “sarcastic,”

“condescending,” “dismissive and/or disrespectful remark[s],” and “clearly insinuated
that [Dr. Pierce] was lying.”94 During a meeting held later that same month, on
October 28, 2008, plaintiff manifested “utter disdain (almost bordering on
insubordination)” for Dr. Pierce.95
In late 2008, plaintiff and Jim Watkins, an employee in the Future Warfare
Center, competed for the position of Chief of the Models & Simulations Division,
which had become vacant when Dr. Pierce removed Steve Fox from the position and
transferred him to another Directorate.96 Watkins was eventually selected in early
2009, and he became plaintiff’s direct supervisor. Shortly after his selection, he
appointed plaintiff the “Acting Division Chief” during his temporary absence
92

Ex. 1, GX 6 (September Morash Memorandum). Plaintiff claims that this memorandum,
as well as several others, showed that her supervisors used employees to conduct surveillance of her
activities. See doc. no. 53 (First Brief in Opposition to Summary Judgment), at 58. However, there
is no evidence in the record that plaintiff’s supervisors directed anybody to conduct surveillance.
93

Ex. 127 (Dr. Pierce’s Testimony), at 568.

94

Ex. 1, GX 19 (Dr. Tomkovich Memorandum) (alterations supplied).

95

Ex. 1, GX 7 (October Morash Memorandum).

96

Ex. 1 (Plaintiff’s Deposition), at 48-49. See also the textual discussion accompanying
notes 66 and 67 in Part IV.A., supra.

22

between March 31 and April 3, 2009.97 Plaintiff did not perform her delegated duties,
however, and Watkins met with her for purposes of a counseling session on April 16,
2009. She was “belligerent and argumentative throughout.”98
During a May 5, 2009 Models & Simulations Division Staff Meeting, plaintiff
became “disruptive” by attempting to interject various issues unrelated to the meeting
in a “hostile, abrasive, insolent, and insubordinate” manner.99 Watkins again met with
plaintiff for a counseling session on May 20, 2009, to ensure that she understood
what was expected of her during staff meetings.100 Two witnesses were present on
that occasion: plaintiff’s Union representative, and Paul Page, Chief of the Studies
and Analysis Division of the Future Warfare Center.101 Even though plaintiff
repeatedly interrupted Watkins, “continually challenged every statement Mr. Watkins
made,” appeared frustrated and angry about being counseled, and generally did not
speak in a manner that “an employee should speak to a supervisor,” Watkins never
raised his voice and “was cordial during the entirety of the session.”102
Dr. John Tomkovich served as note-taker for a July 17, 2009 counseling
97

Ex. 1, GX 30 (Watkins Memorandum), at 135.

98

Id. at 135-36.

99

Ex. 1, GX 8 (Morash Memorandum); Ex. 1, GX 30 (Watkins Memorandum), at 137.

100

Id.

101

Ex. 1, GX 16 (Page Memorandum).

102

Id.; see also Ex. 1, GX 30 (Watkins Memorandum), at 137.

23

session between Watkins and plaintiff, and recorded that she “regularly did not allow
Mr. Watkins to finish sentences, [] was dismissive to just about anything he said, and
[that] she acted as if she was put out that she had to report to Mr. Watkins.”103
Three days later, while plaintiff was engaged with her attorney in a telephone
discussion about her EEO activity, she made statements in a voice loud enough to be
overheard by other employees. Among other things, she threatened “to have Mr. Jim
Watkin[‘s]s and Mr. Jason Baker’s security clearances revoked and have them both
fired for lying under oath.”104
Since 2005, no other Future Warfare Center employee has engaged in similar
disrespectful conduct towards a supervisor.105 Plaintiff was required to submit to
counseling for numerous such episodes of misconduct.106 Due to the nature of her
conduct, and the allegations that she had made during meetings, supervisors began
a practice of ensuring that witnesses were present during any meeting with plaintiff.107
C.

Two-Day Suspension
103

Ex. 1, GX 20 (Dr. Tomkovich Memorandum) (alterations supplied).

104

Ex. 1, GX 9 (Morash Memorandum) (alteration supplied).

105

Ex. 127 (Dr. Pierce’s Testimony), at 574; Ex. 139 (Dr. Pierce Dr. Pierce’s Testimony),
at 3108; Ex. 134 (Crumlish’s Testimony), at 1857.
106

Ex. 127 (Dr. Pierce’s Testimony), at 566-70; Ex. 1, GX 30 (Watkins Memorandum), at
143-56; Ex. 139 (Dr. Pierce’s Testimony), at 3098-3101.
107

Ex. 60 (Dr. Pierce Email), at 4874; Ex. 56 (Owens’s Declaration), at 5666; Ex. 38 (Dr.
Tomkovich’s Declaration), at 5639; Ex. 61 (Dr. Pierce’s Declaration), at 5690; Ex. 144 (Owens’s
Testimony), at 6197-98.

24

Plaintiff confronted Jim Watkins, her direct supervisor, on July 21, 2009.
Sharon Lockhart, a co-worker, described the incident that then occurred as follows:
I was in my cubicle, when at approximately 0630, I heard Aleysa
Paschal knock on Jim Watkin[s]’s door and ask where her copy of
something was. Jim said Andrea [Callahan, his secretary, had] it locked
up with your personnel file. Aleysa said she wanted a copy. It sounded
like they walked toward Andrea’s desk, and Jim said she could get a
copy when Andrea came in; he didn’t know where she kept the key.
Aleysa said she wanted a copy again. Jim said Anne [Malcolm] will
probably get here before Andrea and will give her a copy. Aleysa said
was it left on my desk? Is it in my mailbox? She sounded almost frantic.
Jim said it wouldn’t be left like that, it was locked up. Aleysa said she
wanted a copy now, and that Jim had a copy in his records, give her a
copy of that. It sounded like they went back into Jim’s office, and
momentarily Aleysa came out, walking heavily and fast, and sounded
like she headed to the business center. When she returned she asked Jim
something, and I heard him say there are supporting documents. She
asked why the supporting documentation was not with “it”, [and] he
replied something. I then heard him say he could put the supporting
documents with it. She said yes, “it’s going to be with it.” Marched off
again heavily and fast, but started saying things back in a loud voice. I
remember, “Expect to talk to a lawyer.” Jim said, “yeah, yeah, yeah.”
Aleysa made a comment. She was back in a few minutes, and it sounded
as if she was in Andrea’s cubicle, turning on the computer, and
scanning. All the time she was yelling things at Jim (he was in his
office). I don’t remember the exact order things were said but it was
things like saying he would never make it a year as a supervisor.
Someone had guaranteed her that (Army Chief of Staff or Secretary of
the Army, I believe — I know it was someone out of this command at
that level). She said that a general was looking at Jim’s use of the
computer to download pornography. I don’t remember the general’s
name (think it was something like Kern), but she said something on the
line’s [sic] of not General Campbell who will cover it up or smooth it
over, something like that. She called Jim a name . . . something on the
lines of a despicable human being, she was ashamed of him as a human
25

being, much less a government employee. She assured him that
somebody was looking into him bringing the laptop home to download
pornography, then making copies at work. When he said he was tired
of those accusations, she said he knew it was true, he knew that she had
seen him do it. Something derogatory about him lying about it, not
doing any good, it would come out. These type of comments kept
going. Jim said something a couple of times about tired of the
accusations, raising his voice some, not to the extent that Aleysa was,
but to the point that my thoughts were “she’s taunting him, trying to
make him mad, if she keeps going, it’s probably going to happen. What
do I need to do if this gets physical? Who do I need to call?” After
approximately 15 minutes, Jim shut his door, and Aleysa yelled
something like, “what are you doing behind those doors that you don’t
want anyone to see.” Nothing was said by either of them after that.
Aleysa stayed on Andrea’s computer a little bit longer, leaving after my
phone rang.
Ex. 1, GX 5 (Lockhart Memorandum) (alterations supplied). Plaintiff’s behavior was
so aggressive that Sharon Lockhart considered calling security, and she remained
“scared for the rest of the day, literally shaking.”108
The following day, plaintiff became so angry during a close-out counseling
session conducted by Dr. Steven Pierce, her second-line supervisor, that she left his
office to call her Union representative, and told Dr. Pierce that “this will be told to the
Judge on Friday when you’re being investigated for reprisal.”109
Following those incidents, Watkins consulted the Space & Missile Defense
Center’s Legal and Human Resources Departments and Dr. Pierce, all of whom
108

Ex. 128 (Lockhart’s Testimony), at 736-37.

109

Ex. 1, GX 30 (Watkins Memorandum), at 156.

26

advised Watkins to contact the office of “Management Employee Relations” for
direction on how to proceed.110 He then worked with that office to prepare a
disciplinary request.111
Watkins submitted a “Request for Disciplinary Action” to Melinda Williams,
Management Employee Relations Specialist, on September 3, 2009, and asked that
he be authorized to impose a two-day suspension on plaintiff for disrespectful
behavior toward her supervisor. That Request was supported by several materials,
including: memoranda from Sharon Lockhart and Paul Page; Watkins’s own
recounting of the July 21, 2009 incident; and a weighing of the so-called “Douglas
factors,” which are based upon the opinion in Douglas v. Veterans Administration,
5 M.S.P.B. 313 (1981), in which the Merit Systems Protection Board articulated
twelve factors that may be considered when determining the appropriate sanction for
a particular offense. 112
Melinda Williams reviewed the materials submitted by Watkins, and prepared
a “Notice of Proposed Two Day Suspension” letter.113 Watkins delivered the Notice
to plaintiff on October 8, 2009.114 She was allowed a period of time to respond.
110

Ex. 126 (Watkins’s Testimony), at 488-95, 500.

111

Id. at 514-15; Ex. 132 (Williams’s Testimony), at 1027.

112

Ex. 1, GX 30 (Recommendation Materials), at 117-18.

113

Ex. 132 (Williams’s Testimony), at 1030-31, 1053.

114

Ex. 1, GX 28 (Notice of Proposed Two-Day Suspension).

27

Watkins submitted the recommendation materials to Dr. Steven Pierce,
plaintiff’s second-line supervisor and the sustaining official, on December 11,
2009.115 Dr. Pierce submitted his proposed decision to sustain the suspension to the
Human Resources Department, noting his consideration of Watkins’s Notice and
plaintiff’s reply.116 Melinda Williams, Management Employee Relations Specialist,
verified that the proposed two-day suspension complied with the applicable table of
penalties, that it contained an analysis of the Douglas factors, and that plaintiff had
been provided an opportunity to respond.117
Dr. Pierce issued plaintiff his “Notice of Decision” on February 1, 2010,
approving the two-day suspension, and relying on Watkins’s Notice, the supporting
recommendation materials, plaintiff’s reply, and the Douglas factors.118
Plaintiff filed an EEO Complaint for the suspension, but an Administrative
Law Judge found in favor of the Army.119
D.

Five-Day Suspension
Despite her two-day suspension, plaintiff remained openly hostile to her

115

Ex. 1 (Plaintiff’s Deposition), at 84; Ex. 1, GX 30 (Recommendation Materials).

116

Ex. 1, GX 30 (Recommendation Materials), at 101.

117

Ex. 132 (Williams’s Testimony), at 1030-31, 1037-39.

118

Ex. 1, GX 29 (Notice of Decision).

119

Ex. 63 (EEO Decision).

28

supervisors.120 She berated Colonel William Whitney, her third-line supervisor and
Deputy to Larry Burger, Director of the Future Warfare Department, during a
November 3, 2010 meeting in which Cathy Bain, Mr. Burger’s executive assistant,
sat in as a witness. Eventually, plaintiff stormed out while yelling at Colonel
Whitney “in a loud, condescending, and disrespectful voice,” and shaking a pen at
him.121 Colonel Whitney asked her if she was threatening him, and she responded,
“Threaten you. . . . Threaten you? You’re twice as big as I am!”122 Then, “[i]n a loud
and belligerent tone, while pointing and shaking her pen at [Colonel Whitney],
[plaintiff] said, ‘I’m reporting this meeting as hostile.

This is a hostile

environment!’”123 Despite such behavior, Colonel Whitney reportedly “kept his
composure” throughout the meeting.124
On December 22, 2010, Kevin Crumlish, who had become Chief of the Models
& Simulations Division and plaintiff’s direct supervisor during the previous month,
submitted a “Request for Five-Day Suspension” of plaintiff to the EEO Office, the

120

Ex. 134 (Crumlish’s Testimony), at 1855-57; Ex. 136 (Bain’s Testimony), at 1903-09.

121

Ex. 1, GX 10 (Bain Memorandum); see also Ex. 1, GX 33 (Whitney Memorandum), at
1339; Ex. 136 (Bain’s Testimony), at 1898-99, 1904.
122

Ex. 1, GX 10 (Bain Memorandum); see also Ex. 1, GX 33 (Whitney Memorandum), at

123

Ex. 1, GX 10 (Bain Memorandum).

1339.
124

Ex. 136 (Bain’s Testimony), 1916 (alterations supplied); Ex. 1, GX 10 (Bain
Memorandum).

29

Civilian Personnel Advisory Center, and Dr. Steven Pierce, plaintiff’s second-line
supervisor. In proposing the suspension, Crumlish spoke with Cathy Bain (Larry
Burger’s executive assistant), and Colonel William Whitney (plaintiff’s third-line
supervisor and Deputy to Larry Burger, Director of the Future Warfare
Department).125 Plaintiff received a copy of Crumlish’s “Notice of Proposed FiveDay Suspension” in January of 2011.126 Kimberly Fitzpatrick, a Management
Employee Relations representative, verified that the suspension range was appropriate
under the applicable table of penalties, and that it complied with all regulatory
guidelines.127 Dr. Pierce issued a “Notice of Decision” implementing the five-day
suspension to plaintiff on March 29, 2011, specifically relying on the materials
attached to the Request for Five-Day Suspension and the analysis of the Douglas
factors.128
Plaintiff filed an EEO Complaint over the suspension, but an Administrative
Law Judge found in favor of the Army.129
E.

Twelve-Day Suspension

125

Ex. 134 (Crumlish’s Testimony), at 1850; Ex. 135 (Fitzpatrick’s Testimony), at 1879.

126

Ex. 1, GX 31 (Notice of Proposed Five-Day Suspension).

127

Ex. 135 (Fitzpatrick’s Testimony), at 1883-84.

128

Ex. 1, GX 32 (Notice of Decision), ¶¶ 2, 4; Ex. 64 (Dr. Pierce’s Declaration), at 1672; Ex.
1, GX 33 (Request for Five-Day Suspension).
129

Ex. 65 (EEO Decision).

30

Plaintiff was asked to come to the office of Dr. Steven Pierce, her second-line
supervisor, on November 8, 2011, to discuss standards for the 2011-2012 fiscal year.
During that meeting, however, she continuously focused on the prior year’s
objectives.130 Plaintiff grew belligerent when Dr. Pierce asked her to focus on the
purpose of the meeting.131 She stood up and declared that, if Dr. Pierce was going to
be “hostile,” she wanted her EEO representative to be present — a demand to which
Dr. Pierce consented.132 The following day, the Legal Department contacted Dr.
Pierce regarding plaintiff’s allegation that he had been “hostile” during their meeting,
and yelled “Stop, Stop, Stop.”133 Dr. Pierce denied that he did so, and two witnesses,
Anne Malcolm and Deputy Director Robert Hill, confirmed that they had not heard
either yelling or such statements.134 Plaintiff forwarded her allegations to defendant,
John McHugh, Lieutenant General Richard Formica (who was then Commanding
General of the Space & Missile Defense Center), General Dunwoody, General
Odierno, and Major General William McCoy.135
Kevin Crumlish consulted a Management Employee Relations representative
130

Ex. 1, GX 36 (Malcolm Memorandum), at 2367-70.

131

Id.

132

Id.

133

Id.

134

Id.; Ex. 1, GX 34 (Notice of Proposed Fourteen-Day Suspension), at 2313.

135

Ex. 1, GX 34 (Notice of Proposed Fourteen-Day Suspension), at 2313.

31

for assistance in drafting a “Request for Fourteen-Day Suspension” for plaintiff’s
disrespectful conduct towards a supervisor and lack of candor.136 Crumlish submitted
the Request to the EEO Office and Dr. Pierce on January 5, 2012. Larry Burger,
Director of the Future Warfare Center, decided to reduce the suspension to twelvedays.137

Plaintiff received his “Notice of Decision to Impose a Twelve-Day

Suspension” on April 2, 2012.138
She filed an EEO Formal Complaint over the suspension, but an Administrative
Law Judge found in favor of the Army.139
F.

Security Clearance Concerns
Supervisors must report disciplinary actions to G-2, the Army’s Security

Office, together with a recommendation as to whether the offender’s security
clearance should be suspended.140

Security clearances for each employee on

Redstone Arsenal are routinely reviewed every five years. Plaintiff’s five-year review
had occurred independently of any disciplinary action in 2009.141
Reports to G-2 were made following plaintiff’s 2010 and 2011 two-day and
136

Ex. 1, GX 34 (Notice of Proposed Fourteen-Day Suspension); Ex. 138 (Crumlish’s
Testimony), at 2976-83.
137

Ex. 1, GX 35 (Notice of Decision), ¶ 4.

138

Id. ¶¶ 2, 4.

139

Ex. 67 (EEO Decision).

140

Ex. 139 (Dr. Pierce’s Testimony), at 3134-35; Ex. 138 (Crumlish’s Testimony), at 3003

141

Ex. 162 (Plaintiff’s Testimony), at 9481; Ex. 68 (Moore Email).

32

five-day suspensions, but on both occasions Dr. Pierce stated that he did not deem it
necessary to suspend her security clearance.142 G-2 independently suspended her
security clearance after being notified of her twelve-day suspension in 2012, and
initiated another security clearance review.143

Plaintiff filed an EEO Formal

Complaint over that security clearance investigation, but an Administrative Law
Judge found in favor of the Army.144
G.

Performance Evaluations and Awards
Performance evaluations are conducted annually. Individuals receive a block-

rating on a scale of 1 to 5.145 A “1-block” is the highest rating (“Excellent”), and a
“2-block” is a “Successful” rating.146

Typically, nobody sees an individual’s

evaluation other than supervisors and the affected employee. Moreover, evaluations
are not included in promotion applications.147 Even so, annual cash awards are based
upon performance evaluations. For each such award, a Future Warfare Center Award
Board is created and comprised of six directors and a member of Personnel, to ensure

142

Ex. 69 (Dr. Pierce Memorandum), at 2621; Ex. 138 (Crumlish’s Testimony), at 3000; Ex.
139 (Dr. Pierce’s Testimony), at 3133.
143

Ex. 139 (Dr. Pierce’s Testimony), at 3133-37.

144

Ex. 67 (EEO Decision).

145

Ex. 137 (Plaintiff’s Testimony), at 2746.

146

Id. at 2747.

147

Ex. 154 (Dr. Pierce’s Testimony), at 9127.

33

equity, consistency, and appropriate levels of awards for performance.148 Typically,
the Board accepts the recommendations of supervisors, who are most familiar with
an employee’s work, but they may adjust the award to ensure consistency.149 The
Board’s provision of performance awards is governed by Army Regulatory 672-20,
pertaining to Incentive Awards.150 Performance awards in the Future Warfare Center
are capped at a maximum amount of $2,500.151 The largest award plaintiff has
received was $2,000.152
1.

2007-2008 Evaluation and Award

Plaintiff’s annual evaluation in July of 2008 resulted in a 1-block rating and a
performance award of $1,700.153 Her award was based “entirely on [her] type of work
performed, difficulty of the tasks, and contributions to the organization and the
warfighter.”154 Plaintiff’s award was consistent with other co-workers at the GS-14
pay-grade who worked under the supervision of Dr. Pierce, and who received awards

148

Ex. 70 (Burger’s Declaration), at 5707; Ex. 71 (Dr. Pierce’s Declaration), at 3927.

149

Id.

150

Id. at 5709.

151

Id. at 5708; Ex. 72 (Watkins’s Declaration), at 5661.

152

Ex. 73 (Plaintiff’s Performance Awards).

153

Ex. 74 (Burger’s Declaration), at 8453-55; Ex. 1, GX 30 (Final Counseling), at 143-44;
Ex. 75 (2007-2008 Evaluation), at 3643.
154

Ex. 76 (Dr. Pierce’s Declaration), at 8464 (alteration supplied); Ex. 77 (Colonel Whitney’s
Declaration), at 8468; Ex. 1, GX 30 (Final Counseling), at 143.

34

of $1,700, $1,800, or $2,500.155
2.

2008-2009 Evaluation and Award

Plaintiff’s July 2009 annual evaluation described her as “caustic” and
“dismissive,”156 but she still received a 2-block rating and a performance award of
$1,000.157

Her rating reflected that her performance and contributions met

expectations, but did not exceed them, particularly with respect to her disclosure of
information, conduct during staff calls, and certain presentations.158 Her performance
award “was in line with other employees who perform[ed] at that level of
performance (i.e., Successful).”159
Plaintiff filed an EEO Complaint over that evaluation and award, but an
Administrative Law Judge found in favor of the Army.160
3.

2009-2010 Evaluation and Award

Plaintiff received a 2-block(“Successful”) rating and a performance award of

155

Ex. 74 (Burger’s Declaration), at 8455; Ex. 77 (Whitney’s Declaration), at 8468.

156

Ex. 1, GX 20 (Dr. Tomkovich Memorandum). The evaluation session was attended by
plaintiff, Jim Watkins (plaintiff's direct supervisor at the time), Frank Bowles (her Union
representative), and Dr. John Tomkovich (who served as note-taker).
157

Ex. 79 (2008-2009 Evaluation), at 3631.

158

Ex. 72 (Watkins’s Declaration), at 5663; Ex. 61 (Dr. Pierce’s Declaration), at 5691; Ex.
1, GX 30 (Watkins Memorandum), at 135-37, 145-47; Ex. 142 (Watkins’s Testimony), at 6109-24.
159

Ex. 70 (Burger’s Declaration), at 5708 (alteration supplied).

160

Ex. 45 (EEO Decision), at 3869.

35

$1,000 in July of 2010.161 Her rating was not higher because: she had failed to
complete a Space Model & Simulation “Roadmap” requested by Dr. Steven Pierce,
her second-line supervisor; she failed to meet expectations on several deliverables;
and she failed to provide adequate information about her programs to Jim Watkins,
her direct supervisor.162 Plaintiff’s co-workers at the GS-14 pay-grade, both male,
received 1-block ratings (“Excellent”) and awards of $1,800 and $2,200, based upon
the extent of their responsibilities, the value of their accomplishments, and their
higher levels of performance.163
Plaintiff filed multiple EEO Complaints over her 2009-2010 performance
evaluation and award, but an Administrative Judge found in favor of the Army each
time.164
4.

2010-2011 Evaluation and Award

New guidance from the Department of Defense caused awards for the 20102011 period to be more restricted for all employees.165 As a result, plaintiff received

161

Ex. 1, GX 1 (Plaintiff’s Interrogatory Response), no. 10; Ex. 83 (2009-2010 Evaluation),
at 3622; Ex. 71 (Dr. Pierce’s Declaration), at 3962.
162

Ex. 80 (Watkins’s Declaration), at 3909; Ex. 81 (Dr. Pierce’s Declaration), at 3934; Ex.
82 (Watkins’s Declaration), at 3915; Ex. 1, GX 30 (Watkins’s Memorandum), at 163.
163

Ex. 84 (Ratings and Awards), at 3667; Ex. 71 (Dr. Pierce’s Declaration), at 3929-30; Ex.
80 (Watkins’s Declaration), at 3915; Ex. 85 (Burger’s Declaration), at 3946.
164

Ex. 45 (EEO Decision), at 3867; Ex. 88 (EEO Decision), at 4038-59.

165

Ex. 140 (Whitney’s Testimony), at 3179.

36

a performance award of only $500 in July of 2011, despite the fact that he had been
awarded a 2-block rating.166 Plaintiff was not awarded a 1-block (“excellent”) rating
because, among other things: she did not provide a “strong demonstration of
stakeholder coordination”; she failed to assist in duties while serving as the Acting
Division Chief; she did not exceed expectations with respect to the Models &
Simulations roadmap; she did not exceed management control objectives on multiple
occasions; and she did not exceed expectations in demonstrating a model or tool.167
Although plaintiff was rated “excellent” in several categories, it was not enough to
exceed the threshold for a 1-block rating.168
The only other GS-14 employee under the supervision of Kevin Crumlish,
plaintiff’s direct supervisor at that time, received $1,100 for a 1-block rating.169 The
only other employee to receive a 1-block rating from Crumlish was Kelly Davis, a
GS-11, but she did not receive a cash award, and was instead allowed 40 additional
hours of annual leave.170
Plaintiff filed an EEO Complaint over her performance evaluation and award,
166

Ex. 89 (2010-2011 Evaluation).

167

Ex. 1, GX 12 (Crumlish’s Declaration), at 1985-93; Ex. 90 (Whitney Memorandum), at
2005-06; Ex. 89 (2010-2011 Evaluation); Ex. 138 (Crumlish’s Testimony), at 2910-15; Ex. 139 (Dr.
Pierce’s Testimony), at 3043-50, 3060-69.
168

Ex. 89 (2010-2011 Evaluation).

169

Ex. 137 (Plaintiff’s Testimony), at 2779.

170

Ex. 138 (Crumlish’s Testimony), at 2950.

37

but an Administrative Law Judge found in favor of the Army.171
H.

Non-Selections
Vacancies periodically occurred in GS-15 positions. When they did, standard

procedures required the designation of ad hoc selection panels, a selecting official,
and an approving authority. Each selection panel included a female, a minority
employee, and an individual from outside the Future Warfare Center.172 The Director
of the Future Warfare Center worked with the chairperson of each selection panel to
develop criteria and questions for the selection package, which were then submitted
to the Civilian Personnel Advisory Center for approval.173 Candidates were rated,
ranked, and interviewed by the panel, which forwarded its recommendations to the
Personnel Office, Legal Department, and EEO Office. The packages then were sent
to the selecting authority for approval.174 Resumes were redacted to remove personal
information, and did not include disability or EEO information.175 No panel member
was directed to promote or exclude any particular candidate.176
171

Ex. 67 (EEO Decision).

172

Ex. 87 (Whitney’s Declaration), at 3958; Ex. 92 (Carrithers’s Declaration), at 5619.

173

Ex. 146 (Burger’s Testimony), at 6365-66; Ex. 163 (Burger’s Testimony), at 10182.

174

Ex. 91 (Lieutenant General Campbell’s Declaration), at 5587; Ex. 147 (Kleefisch’s
Testimony), at 6610, 6612-14.
175

Ex. 87 (Colonel Whitney’s Declaration), at 3958.

176

Ex. 92 (Carrithers’s Declaration), at 5623; Ex. 38 (Dr. Tomkovich’s Declaration), at 5638;
Ex. 146 (Burger’s Testimony), at 6368; Ex. 144 (Owens’s Testimony), at 6187, 6191, 6204-06; Ex.
147 (Kleefisch’s Testimony), at 6614; Ex. 149 (Wilson’s Testimony), at 6701-02.

38

1.

January 2008 Non-Selection

A multi-disciplinary position for Director of the Simulations and Analysis
Directorate of the Future Warfare Center was posted in late 2007.177 Twenty-three
persons applied for the position, including plaintiff and Steve Fox.178 The selection
panel was comprised of Col. David Cox, Dr. John Tomkovich, and Irene Lloyd from
outside the Future Warfare Center.179 The selection panel was provided with
the applicant resumes and documentation (names blanked out) required
for the selection . . . along with approved selection criteria and a
recording worksheet. The [panel’s] tasks were to review the 23
applicants’ resumes against the 10 specified job tasks/skills and
applicable education credentials. . . . Board members met on [December
18, 2007] and confirmed by consensus the top five applicants.
Ex. 97 (Selection Memorandum), at 290 (alterations supplied). The selection panel
interviewed the top five applicants, a group that included plaintiff, on January 16 and
17, 2008.180 Following all interviews, plaintiff was ranked fourth out of the five
applicants.181 The selection panel recommended Dr. Steven Pierce, the highest
scoring applicant, and submitted that recommendation to the approving official, Larry
Burger.182 That recommendation was completed prior to the date on which plaintiff
177

Ex. 97 (Selection Memorandum).

178

Id. at 290.

179

Id.

180

Id.

181

Ex. 3 (Col. Cox Statements), at 7153; Ex. 98 (Matrix Panel Scoring), at 8004-14.

182

Ex. 1 (Plaintiff’s Deposition), at 44; Ex. 97 (Selection Memorandum).

39

filed an informal complaint with the EEO Office.183
Burger concurred with the selection panel’s recommendation on February 5,
2008.184 He subsequently stated that his selection of Dr. Steven Pierce was based
upon the following factors:
(1) The highest rated applicant by board review and interview
processes of the independent selection board.
(2) Strongest overall potential and background of the ten
evaluated job tasks.
(3) Significantly superior background conducting JCIDS analysis,
support to concept development and experimentation programs as well
as experience performing operational assessments that [have]
significantly impacted Army-level decisions on space and missile
defense programs. These functions are the basis for the majority of
work performed by the Simulation and Analysis Directorate.
(4) He has demonstrated excellence in leadership as evidenced by
his recent selection as the top graduate from the first Defense
Acquisition Senior Service College Fellowship program and the
achievements of his organization; program management as evidenced by
the volume of products delivered by his division, and lastly, his
expertise as in simulations and analysis where his credentials include a
recent doctorate in operations research, DAWIA program management
certification and a depth of experience in both missile defense and Army
space operations.
Ex. 97 (Selection Memorandum), at 291.185 Prior to his selection, Dr. Pierce had
183

Ex. 22 (Burger Statement); Ex. 151 (Burger’s Testimony), at 8934.

184

Ex. 97 (Selection Memorandum).

185

Plaintiff contends that Dr. Pierce should not have been considered for the open position
because his resume provides that he earned a Bachelor of Science degree from the United States

40

served as Chief of the Studies and Analysis Division of the Future Warfare Center.186
In contrast, plaintiff lacked both an earned Ph.D. degree and supervisory
experience.187
Plaintiff filed an EEO Complaint over her non-selection, but an Administrative
Law Judge found in favor of the Army.188
2.

January 2009 Non-Selection

A position for Chief of the Models & Simulations Division of the Future
Warfare Center was posted in late 2008, with a selection panel comprised of Melissa
Gilbert from outside the Future Warfare Center, Dr. John Tomkovich, and Dr.
Claudette Owens.189 Dr. Steven Pierce was the selecting official, and Larry Burger

Military Academy (“West Point”) in 1977, majoring in Civil Engineering, but West Point was not
accredited by the Accreditation Board for Engineering and Technology until 1985. See doc. no. 53
(First Response to Summary Judgment), at 98 ¶ 185. Even so, the reason West Point was not
accredited was because West Point cadets were not authorized to declare an academic major prior
to 1985. See United States Military Academy, Modern Era, Wikipedia,
https://en.wikipedia.org/wiki/United_States_Military_Academy (last visited June 14, 2015). Further,
plaintiff does not explain the importance of accreditation for purposes of the selection panel, and Dr.
Pierce earned a Master of Science degree majoring in Industrial Engineering from the Georgia
Institute of Technology, an MBA majoring in Financial Business Administration from Long Island
University, and a Ph.D. majoring in Industrial and Systems Engineering from the University of
Alabama in Huntsville. See Ex. 165 (Dr. Pierce Resume).
186

Ex. 165 (Dr. Pierce Resume).

187

Ex. 9 (Cox’s Declaration), at 7590; Ex. 151 (Burger’s Testimony), at 8933; Ex. 164
(Plaintiff Resume).
188

Ex. 45 (EEO Decision).

189

Ex. 1 (Plaintiff’s Deposition), at 47-48.

41

was the approving official.190 Candidates were scored by the selection panel, and the
candidates who attained scores greater than 60 were interviewed.191
Plaintiff scored less than 60.192 Jim Watkins, on the other hand, had the highest
combined score from the selection panel reviews and interview.193 In view of that,
Dr. Pierce endorsed Watkins for promotion to the position, saying that
his knowledge and experience allow him to execute the mission in a
timely and professional manner. Mr. Watkins has a strong modeling and
simulation background as demonstrated by his knowledge of the
modeling aspects of military operations, force structure, equipment and
doctrine; his experience as the Program Manager of Extended Air
Defense Simulation (EADSIM); and his in-depth knowledge of the
Modeling and Simulation configuration process.
Ex. 26 (Dr. Pierce Memorandum), at 7964.194

Burger approved Watkins’s

selection.195
Plaintiff filed an EEO Complaint over her non-selection, but an Administrative
Law Judge found in favor of the Army.196
3.

June 2009 Non-Selection

190

Id. at 48.

191

Id. at 49.

192

Id.

193

Ex. 26 (Dr. Pierce Memorandum), at 7964.

194

See also Ex. 74 (Burger’s Declaration), at 8452; Ex. 100 (Watkins Resume).

195

Ex. 1 (Plaintiff’s Deposition), at 48-49.

196

Ex. 45 (EEO Decision).

42

A GS-15 Supervisory Operations Research Analyst position was posted in June
of 2009, with a selection panel comprised of Gisele Wilson from outside the Future
Warfare Center, Dr. John Tomkovich, Dr. Claudette Owens, and David Carrithers
serving as panel chair.197 Larry Burger was the selecting official, and Lieutenant
General Kevin Campbell was the approving official.198 Eighteen blind resumes were
submitted to and scored by the selection panel.199 The candidates’ scores ranged
between 18 and 36.200 Plaintiff scored 27, and she was one of eight candidates
interviewed for the position.201 Each applicant was asked the same questions in the
same order.202 Colonel David Cox received the highest score at the conclusion of all
interviews, while plaintiff received the sixth highest score.203
The selection panel unanimously recommended Colonel David Cox to the
panel chair, who endorsed that recommendation to Larry Burger, the selecting
official.204 Colonel Cox was rated significantly higher than plaintiff in “experience,”
197

Ex. 1 (Plaintiff’s Deposition), at 50-51; Ex. 92 (Carrithers’s Declaration), at 5619.

198

Ex. 91 (Campbell’s Declaration), at 5587-90.

199

Ex. 103 (Selection Panel Worksheet), at 4779-90; Ex. 1, GX 21 (Carrithers
Memorandum); Ex. 144 (Owens’s Testimony), at 6171.
200

Ex. 104 (Selection Panel Worksheet), at 4790.

201

Id. at 4791-92; Ex. 149 (Wilson’s Testimony), at 6693.

202

Ex. 92 (Carrithers’s Declaration), at 5618.

203

Ex. 1 (Plaintiff’s Deposition), at 51; Ex. 91 (Lieutenant General Campbell’s Declaration),

at 5591.
204

Ex. 1 (Plaintiff’s Deposition), at 51; Ex. 105 (Selection Memorandum); Ex. 92
(Carrithers’s Declaration), at 5618.

43

because he had at least three years of supervisory experience, whereas plaintiff had
none; he spent over two years directly reporting to a Senior Executive, whereas
plaintiff had little, if any, experience directly advising Senior Executives; and he had
more than two years of experience in managing the finances for an organization,
whereas plaintiff had little experience in the management of current fiscal plans, or
developing budgets for an organization.205 Burger endorsed the selection panel’s
recommendation, and Lieutenant General Kevin Campbell approved Colonel Cox for
the position.206
Plaintiff filed an EEO Complaint over her non-selection, but an Administrative
Law Judge found in favor of the Army.
4.

November 2010 Non-Selection

A position for Chief of the Models & Simulations Division of the Future
Warfare Center was posted in November of 2008, with a selection panel comprised
of Dr. Juanita Harris from outside the Future Warfare Center, Paul Page, and Dr.
Melissa Gilbert (also from outside the Future Warfare Center).207 Dr. Steven Pierce
205

Ex. 38 (Dr. Tomkovich’s Declaration), at 5637-38; Ex. 92 (Carrithers’s Declaration), at
5624; Ex. 144 (Owens’s Testimony), at 6188-89; Ex. 91 (Lieutenant General Campbell’s
Declaration), at 5592; Ex. 106 (Plaintiff Resume); Ex. 107 (Colonel Cox Resume); Ex. 146
(Burger’s Testimony), at 6369.
206

Ex. 91 (Lieutenant General Campbell’s Declaration), at 5590; Ex. 146 (Burger’s
Testimony), at 6355, 6357-60; Ex. 144 (Owens’s Testimony), at 6185; Ex. 107 (Cox Resume), at
4771-4774; Ex. 149 (Wilson’s Testimony), at 6696-98.
207

Ex. 1 (Plaintiff’s Deposition), at 54.

44

served as the selecting official.208 The selection panel received evaluation criteria for
fifteen unidentified candidates, with scoring to be made on a 1-4 scale.209 Plaintiff
ranked third among the top five applicants prior to interviews.210 After interviews,
plaintiff ranked fourth with a combined score of 145.5.211 Kevin Crumlish, on the
other hand, ranked first with a combined score of 177, and Dr. Pierce selected him for
the position.212 Crumlish was determined to be the most qualified because: he
received the highest score by the selection panel; he had a strong Modeling &
Simulations background, with a demonstrated knowledge of military operations and
force structure, equipment, and doctrine developments; he demonstrated success as
the Program Manager of Extended Air Defense Simulations; and, he had extensive
experience in modeling and Simulation Configuration Management.213
Plaintiff filed an EEO Complaint over her non-selection, but an Administrative
Law Judge found in favor of the Army.214
I.

Acting Division Chief Appointments

208

Id.

209

Ex. 108 (Report of Investigation), at 4062-64; Ex. 109 (Selection Materials), at 4145-47;
Ex. 43 (Selection Panel Guide), at 4220-28.
210

Ex. 109 (Selection Materials), at 4148.

211

Id.; Ex. 110 (Gilbert Statement), at 4214-15.

212

Ex. 1 (Plaintiff’s Deposition), at 54; Ex. 109 (Selection Materials), at 4148.

213

Ex. 112 ( Dr. Pierce Memorandum).

214

Ex. 113 (EEO Decision).

45

An “Acting Division Chief” is appointed from time-to-time to perform the roles
and responsibilities of a Division Chief when the Chief is absent, which may be no
more than a single day.215 An Acting Division Chief is not an advertised position, and
there is no automatic increase in pay associated with the appointment.216
When Jim Watkins became plaintiff’s supervisor, he consulted with the
Personnel Office, Legal Department, and Civilian Personnel Advisory Center for
guidance in appointing an Acting Division Chief.

He decided to make his

appointment based on the length of time served at a particular pay-grade: a decision
that placed plaintiff second in line for appointments behind John Morash.217 Even so,
plaintiff was appointed Acting Division Chief several times.218 Human Resources
confirmed that appointment of an Acting Division Chief is at the discretion of the
manager, and that seniority provisions of the Union Bargaining Agreement do not
apply to temporary supervisory appointments such as Acting Division Chief.219
Plaintiff filed multiple EEO Complaints — whenever Watkins failed to appoint
215

Ex. 1 (Plaintiff’s Deposition), at 56-58.

216

Id. at 57-58.

217

Ex. 80 (Watkins’s Declaration), at 3907; Ex. 93 (Watkins’s Emails), at 5721-25; Ex. 94
(Watkins’s Declaration), at 5730.
218

Ex. 1 (Plaintiff’s Deposition), at 58-59; Ex. 1, GX 30 (Watkins Memorandum), at 156
(plaintiff was Acting Division Chief at least four times in 2009).
219

Ex. 1, GX 23 (Lenier’s Declaration), at 5740; Ex. 1, GX 22 (Tyson’s Declaration), at
5766; Ex. 93 (Watkins Emails); Ex. 94 (Watkins’s Declaration), at 5730; Ex. 96 (Burger’s
Declaration), at 5718-19.

46

her Acting Division Chief — but an Administrative Judge found in favor of the Army
on each occasion.220
J.

2009 Warfighter Source Selection Team
When a contract is bid, the Space & Missile Defense Center creates a “Source

Selection Board.”221 Typically, some employees from the division that will supervise
the contractor’s performance serve on the Source Selection Board. Those division
employees who do not serve on the Board have to carry the workload of the
employees who do.222
The “Warfighter Source Selection Board” was composed of approximately
fifteen persons whose function was “to select the contract winner for the War Fighter
contract.”223 The members of that Board were not selected through an advertised
position announcement, and there was no automatic pay increase associated with a
seat on the Board.224 Although plaintiff had been included on previous Source
Selection Boards, she was not selected for the Warfighter Source Selection Board
because all other members of that panel had more recent experience on the

220

Ex. 45 (EEO Decision), at 3869; Ex. 88 (EEO Decision).

221

Ex. 70 (Burger’s Declaration), at 5706.

222

Id.

223

Ex. 1 (Plaintiff’s Deposition), at 55-56; Ex. 101 (Baker’s Declaration), at 5669-70.

224

Ex. 1 (Plaintiff’s Deposition), at 56.

47

requirements of the contract that was to be advertised for bids.225 Two members of
the Models & Simulations Division, including plaintiff, were not selected to serve on
the Board, in order to continue performance on the work assigned to that Division.226
Plaintiff filed an EEO Complaint over her failure to be selected, but an
Administrative Law Judge found in favor of the Army.227
K.

Plaintiff’s Projects and Funding
Funding allocations are generally made based on customer requirements, the

amount of funds available, and the priorities of the Command and Future Warfare
Center.228 During 2009, all Model & Simulation Division programs were operating
below required levels of funding.229

When Jim Watkins served as plaintiff’s

supervisor, most of her projects started at roughly the $500,000 range, which
rendered them “non-startable” because of budget constraints.230 Even so, Watkins
allocated an additional $50,000 to plaintiff’s projects that year, and other GS-14s
received lower amounts of requested funds.231 When one of plaintiff’s projects lost
225

Ex. 70 (Burger’s Declaration), at 5706-07; Ex. 148 (Baker’s Testimony), at 6665-66; Ex.
101 (Baker’s Declaration), at 5669; Ex. 102 (Source Selection Board Information).
226

Ex. 70 (Burger’s Declaration), at 5706.

227

Ex. 45 (EEO Decision).

228

Ex. 54 (Watkins’s Letter), at 4652; Ex. 141 (Dr. Pierce’s Testimony), at 5982; Ex. 146
(Burger’s Testimony), at 6383-85.
229

Ex. 54 (Watkins’s Letter), at 4652.

230

Ex. 142 (Watkins’s Testimony), at 6076-77.

231

Id. at 6077-81.

48

funding, Dr. Steven Pierce compensated her by not rating her on a related objective.232
Plaintiff filed an EEO Complaint regarding her lack of funding, but an
Administrative Law Judge found in favor of the Army.233
L.

Timecard Delay
An issue with plaintiff’s timecard arose in 2008, “during the week of

Thanksgiving[,] when timelines were compressed for approval of timecards.”234
[Plaintiff], along with 36 other [Space & Missile Defense Center]
employees (19 in [the Future Warfare Center]) received an email from
a clerk in the command’s G-1 office on Tuesday of Thanksgiving week
stating that their timecards were not yet in the system and they needed
to take action to ensure they would get paid. Management took action
to address all timecard concerns and all employees were paid on time.
. . . No special action was necessary for [plaintiff’s] timecard; they were
all addressed as a group.”
Ex. 74 (Burger’s Declaration), at 8457-58 (alterations and emphasis supplied).
Plaintiff, nevertheless, filed an EEO Complaint over the issue, but an
Administrative Law Judge found in favor of the Army.235
M.

Team-Building Exercise
Plaintiff approached Dr. Steven Pierce in 2009 about conducting a “team-

232

Ex. 162 (Plaintiff’s Testimony), at 9509.

233

Ex. 45 (EEO Decision).

234

Ex. 74 (Burger’s Declaration), at 8457 (alteration supplied); Ex. 162 (Plaintiff’s
Testimony), at 9688.
235

Ex. 45 (EEO Decision).

49

building exercise” that involved blindfolding all team members in the room except
for plaintiff.236 While team-building was a performance review standard, there was
no specific requirement to conduct a team-building exercise.237 Other employees
expressed discomfort regarding plaintiff’s proposed exercise, so Dr. Pierce exercised
his discretion to deny the request.238 Plaintiff filed an EEO Complaint over his denial
of her request, but an Administrative Law Judge found in favor of the Army.239
N.

Plaintiff’s Complaints Up the Chain of Command
It is a policy of the Department of Defense that all employees should not

burden the EEO process by attempting to resolve all complaints at the lowest possible
level.240 Even so, on numerous occasions plaintiff lodged complaints many levels up
the chain of command.241 In most instances, Lieutenant General Kevin Campbell and
Lieutenant General Richard Formica, both commanding officers of the Space &
Missile Defense Center at various times, and Larry Burger, who was approximately
four levels up the chain of command from plaintiff, would either refer her complaint
to a lower level, investigate it, or defer to the EEO process in those instances in which
236

Ex. 162 (Plaintiff’s Testimony), at 9595; Ex. 168 (Dr. Pierce Memorandum), at 4516.

237

Ex. 141 (Dr. Pierce’s Testimony), at 5986.

238

Ex. 162 (Plaintiff’s Testimony), at 9462-63.

239

Ex. 45 (EEO Decision).

240

Ex. 162 (Plaintiff’s Testimony), at 9665.

241

See Ex. 114 (Email to LTG Campbell); Ex. 115 (Email to LTG Campbell); Ex. 116 (Email
to Johnetta Graves).

50

plaintiff had previously filed an EEO complaint.242 Plaintiff included her issues with
complaining up the chain of command in an EEO complaint, but an Administrative
Law Judge found in favor of the Army.243
O.

The Space & Missile Defense Center’s EEO and Anti-Harassment Policies
The Space & Missile Defense Center maintains published policies regarding

EEO activity and harassment.244 The anti-harassment policy is required reading for
all personnel.245 All EEO and anti-harassment policies are posted on office bulletin
boards and organizational websites, and are subject to annual inspection.
Additionally, the Army provides a “hotline” for anonymous reporting of
misconduct.246 The anti-harassment policy defines sexual harassment, and instructs
employees to “make it clear that such behavior is unwelcome and offensive, and
report the harassment to the appropriate supervisor or the [EEO] Office or EEO
counselor.”247

New employees are required to take “Prevention of Sexual

242

Ex. 117 (Lieutenant General Campbell’s Declaration), at 3971; Ex. 118 (LTG Campbell
Memorandum), at 4909-10; Ex. 91 (Lieutenant General Campbell’s Declaration), at 5594-95; Ex.
96 (Burger’s Declaration), at 5720.
243

Ex. 45 (EEO Decision).

244

Ex. 1 (Plaintiff’s Deposition), at 27; Ex. 1, GX 2 (Harassment Memorandum); Ex. 119
(Harassment Policy); Ex. 120 (EEO Memorandum); Ex. 121 (EEO Memorandum).
245

Ex. 1, GX 2 (Harassment Memorandum), at 6912, ¶ 6.

246

Ex. 1 (Plaintiff’s Deposition), at 28-29; Ex. 1, GX 2 (Harassment Memorandum), at 6912,
¶ 5; Ex. 129 (Burger’s Testimony), at 794-95; Ex. 117 (Lieutenant General Campbell’s Declaration),
at 3970.
247

Ex. 1, GX 2 (Harassment Memorandum), at 6910-11, ¶¶ 2-3 (alteration supplied).

51

Harassment” training, with refresher training provided biennially.248 Training was
offered both live and through online media.249 The Space & Missile Defense Center’s
EEO Office monitored all training.250
A Space & Missile Defense Center employee may report any misconduct to her
supervisor, all the way up the chain of command to the Secretary of Defense, or she
may go outside to the Office of Special Counsel.251 The Army provides counselors
at the Employee Assistance Center, free of charge, to all employees.252
Upon her arrival at the Space & Missile Defense Center in 2002, plaintiff
received sexual harassment training every two years, and she knew to report
misconduct to the EEO Office.253
P.

Colonel Peter Cole
Peter Cole, a retired Army Colonel, executed a declaration on November 3,

2014, which reads as follows:
My name is Peter C. Cole and I am a Retired Army Colonel in the
Grade of 06.
From December 2006 to December 2008 I was assigned to the US
248

Id. at 6911, ¶ 4.

249

Ex. 1 (Plaintiff’s Deposition), at 28.

250

Id.

251

Id. at 29.

252

Id. at 26-27.

253

Ex. 162 (Plaintiff’s Testimony), at 9427.

52

Army Space and Missile Defense Command (SMDC), Future Warfare
Center (FWC) as Chief of the Missile Defense Branch. Mr. Larry
Burger was the Senior Executive Service (SES) in charge of the Future
Warfare Center.
Prior to today I have provided 2 other declarations submitted as
Evidentiary Material at Ex 186, 207 and I reaffirm the truth of those
Declarations as if fully set out herein.
1.

I attended most FWC staff meetings and performed all duties
assigned by Mr. Burger. I had the opportunity on a daily basis to
observe Larry Burger’s management style and the methods he
used to keep control of his Center.

2.

I personally observed Larry Burger maintain a position of
enhanced power in the agency beyond what would be normal for
a Center Director.

3.

I observed and witnessed Larry Burger’s use of political
connections to obtain funding for SMDC programs beyond his
Center. His ability to work the political side to obtain initial as
well as supplemental appropriations was the basis of his power.

4.

Larry Burger had connections with Richard Shelby a very
powerful Republican Senator who is currently the Ranking
Member of the Senate Banking Committee. During some of the
time relevant Senator Shelby was Chairman of the Banking
Committee.

5.

Shortly after I was assigned to SMDC Larry Burger took me aside
and explained how things worked at SMDC. One of the methods
to raise contributions for Senator Shelby was the process known
in the vernacular as “congressional plus ups”. A “congressional
plus up” was an enlargement of a regular appropriation earmarked
for a specific contractor on a specific program.

6.

I was subsequently invited into meetings with Larry Burger and
53

members of Mr. Burger’s Staff in which I overheard
conversations between Senator Shelby, Mr. Burger, Shelby’s
Chief of Staff and members of Mr. Burger’s staff concerning
which contractors would be considered for “congressional plus
ups.”
7.

In these meetings that I attended certain contractor Executives
who were members of the “Gray Beards” would be considered for
and did obtain substantial increases to their contracts by way of
“congressional plus ups[.]”

8.

The “Gray Beards” were essentially donation bundlers who
combined donations from company employees and others for
Senator Shelby. They would hold private fund raisers and
solicited contributions from individuals in the community. One
of the leaders was Retired LTG Jay Garner[,] former SMDC
Commander.

9.

I observed Mr. Burger use his “Wolf Pack” pattern of retaliation
that was identical in every case. He fabricates investigations and
perjures testimonies from his FWC subordinates to support the
false allegations and ruin careers. His subordinates receive
various benefits including promotions and bonuses as well as
protection. Mr. Burger formed his ‘Wolf Pack’ to attack and
destroy the careers of females and minorities he wishes to
discredit or eliminate from FWC. Mr. Burger directed me to
eliminate a female named Linda Cook from FWC for patently
false reasons. Mr. Burger also directed me to eliminate a highly
professional Hispanic employee for similar reasons.

10.

I believed Mr. Burger’s instructions to be akin to a ‘gang
initiation ritual’ where the new supervisor had to prove his loyalty
to Mr. Burger.

11.

In a February 6, 2008 meeting with me, Mr. Burger, and COL
Bruce Smith, Mr. Burger was asked if he was aware of the “Wolf
Pack”. Mr. Burger replied he knew all about the “Wolf Pack” and
54

that he was their leader.
12.

I personally observed the manner in which Burger and his “Wolf
Pack” treated Linda Beach and Pam Caruso, female employees in
the FWC. It was the same pattern and practice used by the “Wolf
Pack”. In Dec 2006 as Linda Beach’s new supervisor I was
instructed to get rid of Linda Beach. Kirby Brown, Burger[’s]
fellow “Wolf Pack” member, faxed me several pages of their
version of Linda Beach’s March 2005 contract actions and what
they had done to her so far. There was no doubt in my mind that
this was a test to show I was a team player.

13.

In February 2007, Linda Beach was removed from her GS-14
term position, and downgraded to a GS-13 while she continued to
do the same work.

14.

Ultimately, on February 27, 2009, Linda Beach was returned to
her parent agency. Linda Beach was told that FWC didn’t have
funds and that was why she was returned. The Department of
Justice told Linda Beach in July 2014 that she was removed for
a false degree. But no investigation was done prior to her
removal. And while Linda Beach’s degree was unaccredited as
she noted, no action was taken against the West Point falsely
recorded engineering degrees for FWC supervisors Steven Pierce,
Jack Tompkovich, and David Cox. In addition, the SMDC Deputy
Commander, SES Steve Messervy, was selected based on his
unaccredited Southeastern Institute Technology degree. No action
was taken against any FWC “Wolf Pack” members including
Steven Pierce, David Cox or Jack Tompkovich who all graduated
from West Point prior to 1985. As a West Point graduate I have
actual knowledge that West Point did not award any Engineering
Degrees until 1985.

15.

In May 2007 COL David Cox and Mr. Burger were notified that
a FWC married male contractor was having sex with a married
female federal employee in the FWC work area where security
cameras caught them in the act. While the video evidence was
55

provided to COL Cox and Mr. Burger no action was taken by
them.
16.

COL David Cox told me on or about January 7, 2008 “PETER
YOU NEED TO BACK OFF BECAUSE WE HAVE THE WOLF
PACK.” Just prior to this dire warning I had been told on January
4, 2008 by Mr. John Robinson that he overheard a discussion
between COL David Cox and Mr. Burger on how to get rid of me.
In addition, Mr. Robinson overheard Mr. Burger give COL Cox
the direct order to have Mr. Ed Garcia make false statements
against me with a promise that Mr. Garcia would get my FWC
position. I also received two calls from Michelle Smith, my
administrative officer, and Mr. Mike Leech, intelligence analyst,
telling me that Mr. Garcia had been seeking to get false
statements against me for a “Wolf Pack” action. Furthermore, Mr.
Garcia assured them that shortly he would have my FWC
position.

17.

During this time I was sharing information with COL Glenwood
Norris, SMDC Inspector General.

18.

COL Norris and I discovered a number of contractor warehouses
with tens of millions of dollars of unaccounted for Army major
end items such as vehicles, shelters, communications systems,
generators, and much more that Mr. Burger had failed to transfer
to a government hand receipt (SF-250) so all this equipment was
under government control. Mr. Burger was allowing the
contractors to use any of this Army funded equipment as they
wished to include keeping it at their homes.

19.

Other than being directed by the SMDC Commander LTG
Campbell to “fix it” no disciplinary or criminal action was taken
against Mr. Burger.

20.

In January 2008, Burger appointed COL William Whitney to
conduct an AR 15-6 Investigation into Alesya Pascal’s sexual
harassment complaint. I have personal knowledge that COL
56

Whitney and Mr. Burger knew that COL Whitney was to be his
new, [sic] FWC deputy. Mr. Burger told COL Whitney who to
interview as COL Whitney reports on the first page of his report.
This Larry Burger “Command Influence” fatally flaws this AR
15-6 Investigation and all other Larry Burger instigated
investigations marshalled [sic] against Alesya Pascal.
21.

COL Whitney failed to report in his AR 15-6 investigation that
nude photos were in the FWC workplace to his chain of
command, as required.

Doc. no. 54-7 (Colonel Cole’s Declaration), at ECF 42-47 (alterations supplied).254
IV. DISCUSSION
Title VII provides the exclusive remedy for a federal employee who alleges
discrimination based upon race, color, religion, sex, or national origin, as well as
retaliation for protected activity. See 42 U.S.C. § 2000e–16; Brown v. General
Services Admin., 425 U.S. 820, 829-33 (1976) (observing that Title VII provides the
“exclusive, pre-emptive administrative and judicial scheme for the redress of federal
employment discrimination”); United States v. Fausto, 484 U.S. 439 (1988); Canino
v. U.S. E.E.O.C., 707 F.2d 468, 472 (11th Cir. 1983).
254

Plaintiff cites to Exhibit 213 as Colonel Cole’s declaration. Although an Exhibit 213
exists, unlike several other exhibits purportedly attached by plaintiff, it is simply a cover page
labeled “Peter Cole’s October 2014 Declaration.” See Ex. 213. The table of contents for plaintiff’s
exhibits describes Exhibit 213 as “Peter Cole’s October 31, 2014 Declaration.” See doc. no. 54-1
(Table of Contents), at ECF 2. The court assumes that the November 3, 2014 declaration is the
exhibit to which plaintiff cites in her second response to summary judgment, albeit some assertions
in plaintiff’s brief do not appear in the attached declaration, see doc. no. 60 (Second Response to
Summary Judgment), ¶ 11, and the cited paragraph numbers appear different. Compare id. ¶ 14, with
doc. no. 54-7 (Colonel Cole’s Declaration), at ECF 44-45, ¶ 12.

57

The Rehabilitation Act provides the exclusive remedy for a federal employee
asserting a disability discrimination claim. See Van Purr v. Geithner, No. 1:11-CV227, 2012 WL 2890449, at *1 n.1 (N.D. Fla. June 8, 2012) (construing federal
employee’s pro se disability discrimination action as falling under the Rehabilitation
Act), report and recommendation adopted, No. 1:11-CV-227, 2012 WL 2890346
(N.D. Fla. July 16, 2012).
“Under Title VII and the Rehabilitation Act, federal employees are required to
initiate administrative review of any alleged discriminatory or retaliatory conduct
with the appropriate agency within 45 days of the alleged discriminatory act.”255
Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008). “Generally, when the
claimant does not initiate contact within the 45–day charging period, the claim is
barred for failure to exhaust administrative remedies.” Id.
A complainant who has filed an individual complaint [with an agency]
. . . is authorized under title VII, the ADEA and the Rehabilitation Act
to file a civil action in an appropriate United States District Court:
(a) Within 90 days of receipt of the final action on an individual
or class complaint if no appeal has been filed;
(b) After 180 days from the date of filing an individual or class
complaint if an appeal has not been filed and final action has not
255

“This requirement is not a technicality; rather, it is part and parcel of the congressional
design to vest in the federal agencies and officials engaged in hiring and promoting personnel
primary responsibility for maintaining nondiscrimination in employment.” Grier v. Secretary of
Army, 799 F.2d 721, 724 (11th Cir. 1986) (quotations omitted).

58

been taken;
(c) Within 90 days of receipt of the Commission’s final decision
on an appeal; or
(d) After 180 days from the date of filing an appeal with the
Commission if there has been no final decision by the
Commission.
29 C.F.R. § 1614.407. See also 42 U.S.C. § 2000e–16(c).
Although defendant does not raise the issue of the timeliness of plaintiff’s
numerous claims, many of the events that form the basis of plaintiff’s claims occurred
years prior to the filing of the present action. Further, an EEO Decision for one of
plaintiff’s claims was rendered over a year before she filed her complaint.256
Nevertheless, because this court has determined that plaintiff’s claims fail on their
when considered on their merits, it will not, on its own, raise the issue of the
timeliness of plaintiff’s various claims.
A.

Revocation of Plaintiff’s Security Clearance
The first claim this court will address is plaintiff’s assertion that the temporary

revocation of her security clearance pending an investigation was discriminatory and
in retaliation for her complaints of sexual harassment. Defendant asserts that this
court does not have jurisdiction to adjudicate plaintiff’s claims regarding her security

256

See Ex. 45 (EEO Decision).

59

clearance because the issuance or revocation of a security clearance is within the
exclusive purview of the federal agency. The Supreme Court held in Department of
Navy v. Egan, 484 U.S. 518 (1998), that the Merit Systems Protection Board did not
have the authority to review a decision by the Navy to revoke the security clearance
(and, effectively, terminate the employment) of a civilian employee. Id. at 520. The
Court reasoned as follows:
It should be obvious that no one has a “right” to a security
clearance. The grant of a clearance requires an affirmative act of
discretion on the part of the granting official. The general standard is
that a clearance may be granted only when “clearly consistent with the
interests of the national security.” See, e.g., Exec. Order No. 10450, §§
2 and 7, 3 CFR 936, 938 (1949-1953 Comp.); 10 CFR § 710.10(a)
(1987) (Department of Energy); 32 CFR § 156.3(a) (1987) (Department
of Defense). A clearance does not equate with passing judgment upon
an individual’s character. Instead, it is only an attempt to predict his
possible future behavior and to assess whether, under compulsion of
circumstances or for other reasons, he might compromise sensitive
information. It may be based, to be sure, upon past or present conduct,
but it also may be based upon concerns completely unrelated to conduct,
such as having close relatives residing in a country hostile to the United
States. “[T]o be denied [clearance] on unspecified grounds in no way
implies disloyalty or any other repugnant characteristic.” Molerio v.
FBI, 242 U.S. App. D.C. 137, 146, 749 F.2d 815, 824 (1984). The
attempt to define not only the individual’s future actions, but those of
outside and unknown influences renders the “grant or denial of security
clearances . . . an inexact science at best.” Adams v. Laird, 136 U.S.
App. D.C. 388, 397, 420 F.2d 230, 239 (1969), cert. denied, 397 U.S.
1039, 90 S. Ct. 1360, 25 L. Ed.2d 650 (1970).
Predictive judgment of this kind must be made by those with the
necessary expertise in protecting classified information. For “reasons
60

. . . too obvious to call for enlarged discussion,” CIA v. Sims, 471 U.S.
159, 170, 105 S. Ct. 1881, 1888, 85 L. Ed.2d 173 (1985), the protection
of classified information must be committed to the broad discretion of
the agency responsible, and this must include broad discretion to
determine who may have access to it. Certainly, it is not reasonably
possible for an outside nonexpert body to review the substance of such
a judgment and to decide whether the agency should have been able to
make the necessary affirmative prediction with confidence. Nor can
such a body determine what constitutes an acceptable margin of error in
assessing the potential risk. The Court accordingly has acknowledged
that with respect to employees in sensitive positions “there is a
reasonable basis for the view that an agency head who must bear the
responsibility for the protection of classified information committed to
his custody should have the final say in deciding whether to repose his
trust in an employee who has access to such information.” Cole v.
Young, 351 U.S. 536, 546, 76 S. Ct. 861, 868, 100 L. Ed. 1396 (1956).
As noted above, this must be a judgment call.
Egan, 484 U.S. at 528-29 (alterations in original).
The Eleventh Circuit clarified its position on the reviewability of security
clearance decisions in Hill v. White, 321 F.3d 1334 (11th Cir. 2003). In that case, a
civilian employee of the United States Army alleged that he had been denied a
security clearance on the basis of his age. Specifically, he alleged that
his supervisor initiated disciplinary proceedings against him for charges
that he says were false and frivolous and motivated by a desire to
discriminate against him because of his age. Plaintiff was suspended for
three days pursuant to a final administrative decision. He was required
to undergo a mental evaluation and then his security clearance was
suspended.
Hill, 321 F.3d at 1335. The plaintiff in Hill — presumably in an effort to bypass

61

Egan’s ban on judicial review of security clearance decisions — did not purport to
challenge the Army’s decision to suspend his security clearance. Instead, he
challenged “the initiation of the security clearance investigation, claiming it was
improperly motivated by discrimination.” Id. (emphasis supplied). The Eleventh
Circuit agreed with a decision of the Fourth Circuit which held that “‘[the] distinction
between the initiation of a security investigation and the denial of a security
clearance is a distinction without a difference.’” Id. at 1335-36 (quoting Becerra v.
Dalton, 94 F.3d 145 (4th Cir. 1996)) (alteration in original, emphasis supplied). The
Eleventh Circuit emphasized that:
The United States Supreme Court has made clear that a decision
concerning the issuance or non-issuance of security clearance is a matter
within the purview of the executive and not to be second-guessed by the
judiciary unless Congress has specifically provided otherwise.
Department of the Navy v. Egan, 484 U.S. 518, 108 S .Ct. 818, 98 L. Ed.
2d 918 (1988). To review the initial stages of a security clearance
determination is to review the basis of the determination itself regardless
of how the issue is characterized.
Hill, 321 F.3d at 1336.
The Hill decision cannot be avoided. Like Hill, this case involves a claim that
plaintiff’s security clearance was temporarily revoked pending an investigation
motivated by unlawful discrimination and a desire to retaliate for plaintiff’s
complaints of sexual harassment. This court does not have jurisdiction to review the

62

temporary suspension of plaintiff’s security clearance. Accordingly, it also does not
have jurisdiction over her discrimination and retaliation claims based upon that
suspension. Hill, 321 F.3d at 1336. Summary judgment is due to be granted in
defendant’s favor on those claims.
B.

Plaintiff’s Sexual Harassment Claim
To succeed on a sexually-hostile work environment claim, a plaintiff must

show that: (1) she belongs to a group protected by Title VII; (2) she was subjected
to unwelcome harassment; (3) the harassment was based upon her sex; (4) the
harassment was sufficiently severe or pervasive as to alter the terms and conditions
of her employment; and (5) there is a basis for holding defendants responsible under
a theory of either vicarious or direct liability. See, e.g., Faragher v. City of Boca
Raton, 524 U.S. 775, 786 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
751; Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 508
(11th Cir. 2000). The first three elements of such a claim cannot be disputed under
the facts of this case. As a female, plaintiff belongs to a group protected by Title VII.
See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982) (“As in other cases
of sexual discrimination this [element] requires a simple stipulation that the employee
is a man or a woman.”) (alteration supplied). Plaintiff also has testified that she was
subjected to boorish comments and offensive behavior relating to her sex by Steve
63

Fox, Chief of the Models & Simulations Division, and that she found such behavior
to be unwelcome.
As the Eleventh Circuit has observed, however, “a plaintiff’s subjective
feelings and personal reactions are not the complete measure of whether conduct is
of a nature that it interferes with job performance. If it were, the most unreasonably
hypersensitive employee would be entitled to more protection than a reasonable
employee.” Gupta v. Florida Board of Regents, 212 F.3d 571, 586 (11th Cir. 2000)
(emphasis supplied). Thus, the fourth element of a hostile work environment claim
contains both an objective and a subjective component. To be actionable under Title
VII, the behavior complained of must result in a work environment “that a reasonable
person would find hostile or abusive,” as well as an environment that the victim
“subjectively perceive[s] . . . to be abusive.” Harris v. Forklift Systems, Inc., 510 U.S.
17, 21-22 (1993) (alteration supplied); see also, e.g., Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1276 (11th Cir. 2002) (same); Johnson v. Booker T. Washington
Broadcasting Service, Inc., 234 F.3d at 509 (“Harassment is severe or pervasive for
Title VII purposes only if it is both subjectively and objectively severe [or]
pervasive.”) (citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999)
(emphasis and alteration supplied).
Conduct that is not severe or pervasive enough to create an objectively
64

hostile or abusive work environment — an environment that a
reasonable person would find hostile or abusive — is beyond Title VII’s
purview. Likewise, if the victim does not subjectively perceive the
environment to be abusive, the conduct has not actually altered the
conditions of the victim’s employment, and there is no Title VII
violation.
Harris, 510 U.S. at 21-22 (emphasis supplied).
As the Supreme Court explained in Faragher v. City of Boca Raton, the
objective component of the severe or pervasive element is intended to prevent “the
ordinary tribulations of the workplace, such as the sporadic use of abusive language,
gender-related jokes, and occasional teasing” from falling under Title VII’s broad
protections. 524 U.S. at 788; see also Gleason v. Mesirow Financial, Inc., 118 F.3d
1134, 1144 (7th Cir. 1997) (observing that Title VII is “‘not designed to purge the
workplace of vulgarity,’ for a certain amount of ‘vulgar banter, tinged with sexual
innuendo’ is inevitable in the modern workplace, particularly from ‘coarse and
boorish workers’”) (quoting Baskerville v. Culligan International Co., 50 F.3d 428,
430-31 (7th Cir. 1995)).
When evaluating the objective severity of the conduct complained of, courts
consider, among other factors, the frequency of the conduct, the severity of the
conduct, whether the conduct is physically threatening or humiliating, or a mere
offensive utterance, and whether the conduct unreasonably interferes with the

65

employee’s job performance. See, e.g., Miller, 277 F.3d at 1276 (citing Allen v.
Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997) (in turn citing Harris, 510 U.S. at
23257)); Gupta, 212 F.3d at 584; Mendoza, 195 F.3d at 1246.
District courts are compelled to carefully compare the four enumerated factors
to the conduct complained of by a plaintiff, so as to avoid “trivializ[ing] true
instances of sexual harassment.” Mendoza, 195 F.3d at 1252 n.10 (alteration
supplied). “These factors . . . delineate a minimum level of severity or pervasiveness
necessary [as a matter of law] for harassing conduct to constitute discrimination in
violation of Title VII.” Id. at 1246 (alteration supplied).258 If district courts allow
hostile work environment claims to go forward on the basis of facts that do not
demonstrably meet or exceed the enumerated standards, that “would lower the bar of

257

Speaking for a unanimous court in Harris v. Forklift Systems, Justice O’Connor said that
the issue of
whether an environment is “hostile” or “abusive” can be determined only by looking
at all the circumstances. These may include the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance. The effect on the employee’s psychological well-being is, of course,
relevant to determining whether the plaintiff actually found the environment abusive.
But while psychological harm, like any other relevant factor, may be taken into
account, no single factor is required.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
258

In Mendoza, an en banc Court determined that the conduct complained of by the plaintiff
was “insufficient as a matter of law to sustain hostile-environment claims.” 195 F.3d at 1252 & n.10
(emphasis supplied).

66

Title VII to punish mere bothersome and uncomfortable conduct, and would
‘trivialize true instances of sexual harassment.’” Gupta, 212 F.3d at 586 (quoting
Mendoza, 195 F.3d at 1252 n.10).
“It is not enough that a supervisor or coworker fails to treat a female employee
with sensitivity, tact, and delicacy, uses coarse language, or is a boor. Such failures
are too commonplace in today’s America, regardless of the sex of the employee, to
be classified as discriminatory.” Minor v. Ivy Tech State College, 174 F.3d 855, 858
(7th Cir. 1999).
In fact, the “mere utterance” of sexually explicit epithets and derogatory
statements “which engender offensive feelings in an employee” is not actionable.
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (quoting Rogers v. EEOC, 454
F.2d 234, 238 (5th Cir. 1971)). That is because “Title VII does not attempt to purge
the workplace of vulgarity,” Hopkins v. Baltimore Gas and Electric Co., 77 F.3d 745,
753 (4th Cir. 1996) (internal quotation marks and citation omitted), nor did Congress
“expect employers to purify the language in the workplace or remove all vulgarity or
coarse comments.” Johnson v. Hondo, Inc., 940 F. Supp. 1403, 1410 (E.D. Wis.
1996). Moreover, conduct which amounts to “mere locker room antics, joking, or
horseplay” also is beyond the purview of Title VII. Tietgen v. Brown’s Westminster

67

Motors, Inc., 921 F. Supp. 1495, 1501 (E.D. Va. 1996).259
Applying the foregoing principles to the facts of this case, the court concludes
that the record does not demonstrate that a reasonable person would find the conduct
of which plaintiff complains to have been sufficiently “severe or pervasive.” While
the comments of Steve Fox’s were inappropriate, the occasional comments he made
over the course of a year were not frequent. Compare Guthrie v. Waffle House, Inc.,
460 F. App’x 803, 807 (11th Cir. 2012) (holding that “a few dozen comments or
actions . . . spread out over a period of eleven months” are not sufficient to be
characterized as frequent), with Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d
798, 804 (11th Cir. 2010) (holding that the objectionable conduct complained of by
plaintiff was sufficiently frequent when it occurred on a daily basis for more than
three years); Miller, 277 F.3d at 1276 (harassing conduct sufficiently frequent where
it occurred “three or four times a day” over the course of a month); Dees v. Johnson

259

See also Baskerville v. Culligan International Co., 50 F.3d 428, 430 (7th Cir. 1995) (“A
handful of comments spread over months is unlikely to have so great an emotional impact as a
concentrated or incessant barrage.”); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337
(7th Cir. 1993) (relatively isolated incidences of non-severe conduct do not rise to the level of a
hostile environment); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987) (to be deemed
pervasive, the conduct must be more than episodic; it must be sufficiently continuous and concerted),
overruled on other grounds by Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2362,
105 L. Ed. 2d 132 (1989); Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983) (isolated incidents
generally not sufficient to create hostile working environment); Christoforou v. Ryder Truck Rental,
668 F. Supp. 294, 301 (S.D. N.Y. 1987) (Although the level of behavior needed to create a hostile
environment “cannot be precisely defined,” it is “clearly more abusive, pervasive and persistent”
than three specific incidents of sexual harassment over an 18 month period.).

68

Controls World Services, Inc., 168 F.3d 417, 418 (11th Cir. 1999) (“almost-daily
abuse” over the course of three years was sufficiently frequent).
Moreover, plaintiff has not shown that Fox’s conduct was sufficiently “severe”:
that is, that it created “a workplace that [was] permeated with discriminatory
intimidation, ridicule and insult.” Miller, 277 F.3d at 1267-77 (alterations supplied).
Even though the comments attributed to Fox could be characterized as rude,
disrespectful, or unprofessional, they did not create an environment that was
“permeated with discriminatory intimidation, ridicule, and insult.” Id. Indeed, the
Supreme Court has repeatedly emphasized that simple teasing, offhand comments,
and isolated incidents, unless extremely serious, will not amount to discriminatory
changes in the terms and conditions of employment. See, e.g., Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998); Harris, 510 U.S. at 21-22.260
It also is clear that the conduct complained of by plaintiff was not physically
threatening, and it cannot be characterized as “humiliating” when compared to
Eleventh Circuit precedent. See e.g., Reeves, 594 F.3d at 804, 811-12 (conduct was
sufficiently “humiliating” where it included use of the terms “whore,” “bitch,” and
260

For example, the Eleventh Circuit has found that a female plaintiff was not subjected to
a sex-based hostile work environment where a male supervisor (1) told her he was “getting fired up,”
(2) rubbed his hip against her hip while smiling and touching her shoulder, (3) twice made a sniffing
sound while looking at employee’s groin area, and (4) constantly followed her and stared at her in
a very obvious manner. Mendoza v. Borden, Inc., 195 F.3d 1238, 1247 (11th Cir. 1999), cert.
denied, 529 U.S. 1068 (2000).

69

“cunt,” as well as “vulgar” discussions of women’s breasts, nipples, and buttocks, and
an employee displaying “a pornographic image of a fully naked woman with her legs
spread, exposing her vagina”); Miller, 277 F.3d at 1277 (conduct was sufficiently
“humiliating” where supervisor and other co-workers shouted ethnic slurs and
derogatory names at the plaintiff in an intimidating manner during the course of
berating him for his job performance, or when they were “arguing with him,” were
“mad with him,” or were “taunting him”).
For all of the foregoing reasons, summary judgment is due to be granted in
defendant’s favor on plaintiff’s sexually-hostile work environment claim.
C.

Plaintiff’s Gender Discrimination, Disability, and Retaliation Claims
Plaintiff also asserts numerous claims contending that she was discriminated

against on the basis of her gender (female) and her disability (perceived head trauma),
as well as being subjected to retaliation because of her protected conduct (EEO
Complaints). Plaintiff attempts to establish each of those claims through the use of
circumstantial evidence. Federal courts evaluate the sufficiency of such evidence
using some variant of the analytical framework announced by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and elaborated in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). See also, e.g.,
St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993); Chapman v. AI Transport,
70

229 F.3d 1012, 1024 (11th Cir. 2004) (en banc); Berman v. Orkin Exterminating Co.,
Inc., 160 F.3d 697, 701 (11th Cir. 1998); Bigge v. Albertsons, Inc., 894 F.2d 1497,
1501 (11th Cir. 1990). Under that familiar framework, a plaintiff must first establish
a prima facie case of disparate treatment on the basis of her sex or perceived
disability, or retaliation. If she does so, that gives rise to a presumption of
discrimination or retaliation. To rebut that presumption, the employer must articulate
a legitimate, nondiscriminatory (or nonretaliatory) reason for the contested
employment action. If the employer does so, the presumption of discrimination or
retaliation drops from the case, and the burden shifts back to the plaintiff to show that
the employer’s proffered reason is merely a pretext for unlawful discrimination or
retaliation. See, e.g., McDonnell Douglas, 411 U.S. at 802–05; Burdine, 450 U.S. at
252–56.
An element common to all such prima facie cases — regardless of whether it
is a gender discrimination claim, a disability claim, or a retaliation claim that is under
consideration — is the requirement for the plaintiff to prove that the discriminatory
conduct complained of resulted in an “adverse employment action”: that is, an action
that had “some tangible, negative effect on the plaintiff’s employment.” Lucas v.
W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001) (emphasis supplied)

71

(ADA retaliation claim).261 The “classic and ultimate ‘tangible employment action,’”
of course, is termination of a person’s employment. Llampallas v. Mini-Circuits,
Lab, Inc., 163 F.3d 1236, 1246 n.18 (11th Cir. 1998). Other “patently adverse”
employment actions short of termination include “demotion, reduction in pay, loss of
prestige, or diminishment of responsibilities.” Doe v. Dekalb County School District,
145 F.3d 1441, 1448 (11th Cir. 1998) (discussing standards for determining
“adverse” employment actions in context of an ADA transfer claim).262 Actions
falling short of those benchmarks either are difficult to peg, or are not actionable.
261

See also, e.g., Gupta v. Florida Board of Regents, 212 F.3d 571, 587 (11th Cir. 2000)
(holding, in context of Title VII retaliation claim, that “[a]n adverse employment action is an
ultimate employment decision, such as discharge or failure to hire, or other conduct that ‘alters the
employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of
employment opportunities, or adversely affects his or her status as an employee.’”) (quoting
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)). Cf. Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 2268, 141 L. Ed. 2d 633 (1998) (holding, in context
of Title VII sexual harassment claim, that “[a] tangible employment action constitutes a significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits”).
262

“Where a plaintiff has allegedly suffered termination, demotion, reduction in pay, loss of
prestige, or diminishment of responsibilities, for example, a court normally has no cause to consider
its standard for adversity; the relevant question in such cases is whether such patently adverse action
actually took place.” Doe v. Dekalb County School Dist, 145 F.3d 1441, 1448 (11th Cir. 1998)
(citing Eskra v. Provident Life and Accident Ins. Co., 125 F.3d 1406, 1412 (11th Cir. 1997)
(considering a reduction in income, but not mentioning the plaintiff’s subjective preferences, when
ruling that a transfer was adverse)). The Doe Court elaborated on “loss of prestige” as an “adverse”
employment action in a subsequent footnote, saying that “loss of prestige, either within an
organization or with regard to the general public, is an objective factor that a court should consider
as part of the reasonable person test. Beyond the loss of prestige itself (a reasonable if egoistic
employee goal much like salary or promotion), diminishment of prestige may also affect an
employee’s marketability, another significant objective factor.” Doe, 145 F.3d at 1452 n.19 (citing
de la Cruz v. New York City Human Resources Admin. Dep’t of Soc. Serv., 82 F.3d 16, 21 (2d Cir.
1996)).

72

Plaintiff’s discrimination and retaliation claims appear to be based on a litany
of employment actions that she perceived as “adverse” (although it is arguable
whether a reasonable person in the same circumstances would have considered the
ction to be such). In any event, however, plaintiff’s Third Amended Complaint and
her three briefs do little to specify the precise conduct that allegedly had a tangible,
negative effect on plaintiff’s employment. Thus, the court was forced to turn to
plaintiff’s numerous EEO Complaints in an effort to discern what actions plaintiff
contends to have been sufficiently “adverse” to become actionable under the federal
employment discrimination statutes.
In tht regard, plaintiff complains about the following events in her various EEO
Complaints: (1) she was suspended for two days in 2010;263 (2) she was suspended
for five days in 2011;264 (3) she was suspended for twelve days in 2012;265 (4) she was
not selected for the Director of the Simulation and Analysis Directorate position in
January of 2008;266 (5) she was not selected for Chief of the Models & Simulations
Division position in January of 2009;267 (6) she was not selected for the GS-15

263

Ex. 63 (EEO Decision).

264

Ex. 65 (EEO Decision).

265

Ex. 67 (EEO Decision).

266

Ex. 45 (EEO Decision), at 3852.

267

Id. at 3857.

73

Supervisory Operations Research Analyst position in June of 2009;268 (7) she was not
selected for Chief of the Models & Simulations Division position in November of
2010;269 (8) her 2007-2008 performance award was the lowest in the division when
compared to her counterparts at the same grade level;270 (9) she was unfairly rated on
her 2008-2009 performance evaluation;271 (10) she was given an unjust performance
evaluation rating and award for 2009-2010;272 (11) she was given an unjust
performance evaluation and award for 2010-2011;273 (12) her research efforts were
not properly funded;274 (13) her funding was discontinued on one of her projects;275
(14) management held unusual counseling sessions on April 16 and May 20, 2009;276
(15) Dr. Steven Pierce denied her request for a team-building exercise;277 (16) Jim
Watkins invited another manager, Dr. Claudette Owens, to sit in on a performance
standard review;278 (17) she was required to include her supervisor on emails;279 (18)
268

Id. at 3853.

269

Ex. 113 (EEO Decision).

270

Ex. 45 (EEO Decision), at 3858.

271

Id. at 3854.

272

Ex. 88 (EEO Decision).

273

Ex. 67 (EEO Decision).

274

Ex. 45 (EEO Decision), at 3853.

275

Id. at 3857.

276

Id. at 3853.

277

Id.

278

Id. at 3854.

279

Id.

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her security clearance was suspended;280 (19) she was not appointed to the Warfighter
Selection Board;281 (20) she was not assigned as an Acting Division Chief on several
occasions;282 (21) Fox’s Letter of Concern;283 (22) Dr. Pierce counseled plaintiff about
her behavior;284 (23) supervisors high in the chain of command did not attempt to stop
discrimination or retaliation;285 (24) Dr. Pierce did not approve her timecard in
November of 2008;286 and (25) management officials “diminished her concerns about
Mr. Steve Fox,” nitpicked her activities, and postponed her training.287
1.

Prima facie case of discrimination under the Rehabilitation Act

The Rehabilitation Act generally prohibits any program or activity receiving
federal funds from discriminating against otherwise qualified individuals with a
disability. See, e.g., Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); see
also 29 U.S.C. § 794(d). Because the Rehabilitation Act shares a liability standard
with the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.
(“ADA”), claims under the Rehabilitation Act are evaluated in the same manner as
280

Ex. 45 (EEO Decision), at 3854.

281

Id. at 3855.

282

Id. at 3856-57; Ex. 88 (EEO Decision), at 4040.

283

See doc. no. 53 (First Brief in Opposition to Summary Judgment); at 133.

284

Ex. 45 (EEO Decision), at 3857.

285

Id.

286

Id. at 3858.

287

Id. at 3852.

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those under the ADA, including use of the McDonnell–Douglas burden-shifting
framework for claims that rely upon circumstantial evidence. See, e.g., Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005); Collado v. United States Postal
Service Co., 419 F.3d 1143, 1149-50 (11th Cir. 2005).
To establish a prima facie case, plaintiff must show: (1) that she has a
disability; (2) she was otherwise qualified for the position — meaning that she could
perform the essential functions of the employment position she sought or held, with
or without reasonable accommodation being made by the employer; and (3) that she
suffered an adverse employment action because of her disability. See, e.g., Mullins,
228 F.3d at 1313 (alteration supplied). The Rehabilitation Act defines the concept
of “disability” to include any individual who:
(I) has a physical or mental impairment which substantially limits one
or more of such person’s major life activities;
(ii) has a record of such an impairment; or
(iii) is regarded as having such an impairment.
29 U.S.C. § 705(20)(B). A person is regarded as having an “impairment” if she:
is subjected to a prohibited action because of an actual or perceived
physical or mental impairment, whether or not that impairment
substantially limits, or is perceived to substantially limit, a major life
activity. Prohibited actions include but are not limited to refusal to hire,
demotion, placement on involuntary leave, termination, exclusion for
failure to meet a qualification standard, harassment, or denial of any
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other term, condition, or privilege of employment.
29 C.F.R. § 1630.2(l).
Plaintiff admits that she “has never claimed to have a disability,” but she
contends that Steve Fox falsely portrayed her as disabled in his “Letter of Concern,”
which noted that she was taking medication for a ten-year-old head injury, and
requested that she “seek an evaluation from the Employee Assistance Program on
Redstone Arsenal.”288 That Letter, however, does not state that plaintiff was
“disabled,” and she offers no other evidence that anyone at the Arsenal perceived her
as disabled.
Fox’s knowledge that plaintiff was taking medication, and his inquiry into her
head injury, do not establish that he perceived her as disabled. The record establishes
that it was plaintiff who brought her head-injury to Fox’s attention, and his efforts to
determine whether she was impaired as a result of that injury does not establish that
he perceived her as disabled. Fox “did what an employer committed to meeting his
[Rehabilitation Act] responsibilities in good faith would do: [He] sought to open a
dialogue with [plaintiff] and obtain further, accurate information regarding [her]
condition so that [he] could craft an appropriate accommodation.” Haulbrook v.
Michelin North America, 252 F.3d 696, 704 (4th Cir. 2001) (alterations supplied).
288

Ex. 1, GX 24 (Letter of Concern); Ex. 152 (Fox’s Testimony), at 9032.

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2.

Prima facie elements of Title VII discrimination and retaliation
claims

Disparate treatment on the basis of some protected characteristic and retaliation
for protected conduct are separate violations of Title VII. See Gupta v. Florida
Board of Regents, 212 F.3d 571, 586 (11th Cir. 2000). To show an adverse
employment action in the context of a disparate treatment claim, an employee must
demonstrate “a serious and material change in the terms, conditions, or privileges of
employment. Moreover, the employee’s subjective view of the significance and
adversity of the employer’s action is not controlling; the employment action must be
materially adverse as viewed by a reasonable person in the circumstances.” Davis v.
Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis in
original).
Title VII imposes a lighter burden upon a retaliation claim: “a plaintiff must
show that a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington Northern
& Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006) (emphasis and alterations
supplied) (internal quotation marks omitted). “An employee’s decision to report
discriminatory behavior cannot immunize that employee from those petty slights or

78

minor annoyances that often take place at work and that all employees experience.”
Id. The Burlington Northern decision broadened the type of employer conduct that
is actionable in a retaliation claim “from that which adversely affects the plaintiff’s
conditions of employment or employment status to that which has a materially
adverse effect on the plaintiff. . . . This more liberal view of what constitutes an
adverse employment action accords an employee protection from a wider range of
retaliatory conduct.” Crawford v. Carroll, 529 F .3d 961, 973-74 (11th Cir. 2008).
Even under Burlington Northern’s broader definition of “adverse employment
actions,” many of the events complained of by plaintiff, regardless of whether they
are considered individually or collectively, are not actionable. For example, the
“unusual” counseling sessions on April 16 and May 20, 2009, Jim Watkins’s
invitation to Dr. Claudette Owens to sit in on plaintiff’s performance counseling, the
requirement that she include her supervisor on emails, Dr. Pierce’s behavioral
counseling sessions, and the purported “nitpicking,” all fall squarely in the trivial, as
opposed to significant, harm category that the Supreme Court cautioned courts to
refrain from characterizing as “materially adverse.” Burlington Northern, 548 U.S.
at 68. Thus, it is clear that plaintiff’s claims cannot proceed with regard to the actions
described above.
Although this court is hesitant to believe that plaintiff can establish an
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appropriate comparator, or a causal connection between her protected expression and
each of the remaining adverse employment actions, defendant articulated a legitimate,
nonretaliatory reason for each action, as demonstrated in the following table.
Employment Action

Defendant’s Articulated Reason

Two-Day Suspension

Plaintiff’s disrespectful behavior to her
supervisor, Jim Watkins, on July 21, 2009.289

Five-Day Suspension

Plaintiff’s disrespectful behavior to her thirdline supervisor, Colonel Bill Whitney, on
November 3, 2010.290

Twelve-Day Suspension

Plaintiff’s disrespectful behavior to her
supervisor, Dr. Steven Pierce, on November 8,
2011, and her lack of candor.291

2007-2008 Performance Award

Plaintiff’s $1,700 performance award was
based entirely on her type of work performed,
difficulty of the tasks, and contributions to the
organization. Further, plaintiff’s award was
consistent with the three other GS-14s under
Dr. Steven Pierce’s supervision, who received
performance awards of $1,700, $1,800, and
$2,500.292

2008-2009 Performance Evaluation and Award Plaintiff received a 2-block rating because her
performance and contributions met
expectations, but did not exceed them, due to
her disclosure of information, conduct during
staff calls, and certain presentations. Her award
was in line with other employees who received
a 2-block rating.293

289

Doc. no. 40 (Brief in Support of Summary Judgment), at 21-24, ¶¶ 98-110.

290

Id. at 24-26, ¶¶ 114-22.

291

Id. at 26-28, ¶¶ 124-34.

292

Id. at 30, ¶¶ 151-53.

293

Id. at 31, ¶¶ 155-59.

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2009-2010 Performance Evaluation and Award Plaintiff received a 2-block rating because she
never completed a “Roadmap” for Dr. Steven
Pierce, failed to meet expectations on several
deliverables, and failed to provide adequate
information to Jim Watkins. Her award was in
line with her prior award.294
2010-2011 Performance Evaluation and Award Plaintiff received a 2-block rating because she
did not provide a strong demonstration of
stakeholder coordination, failed to assist in
duties while serving as an Acting Division
Chief, did not exceed expectations with respect
to a Models & Simulations “Roadmap,” did not
exceed management control objectives on
multiple occasions, and did not exceed
expectations to demonstrate a model or tool.
Plaintiff’s award was lower than normal due to
new Department of Defense guidelines, but
consistent with other GS-14s under plaintiff’s
supervisor, Kevin Crumlish.295
January 2008 Non-Selection for Director of the
Simulations and Analysis Directorate

Dr. Steven Pierce was selected over plaintiff
because he was more qualified for the position:
he scored the highest after interviews, and he
had a doctorate and supervisory experience.
Plaintiff, on the other hand, had the fourth
highest score after interviews, and lacked a
doctorate and supervisory experience.296

January 2009 Non-Selection for Chief of the
Models & Simulations Division

Only candidates who scored above a 60 were
interviewed, and plaintiff scored below a 60.
Jim Watkins was selected for the position after
interviews because he scored the highest, and
had a strong modeling and simulation
background.297

294

Id. at 32, ¶¶ 161-65.

295

Doc. no. 40 (Brief in Support of Summary Judgment), at 33-34, ¶¶ 168-73.

296

Id. at 36-37, ¶¶ 184-91.

297

Id. at 37-38, ¶¶ 194-200.

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June 2009 Non-Selection for a GS-15 Colonel David Cox was selected for the
Supervisory Operations Research Analyst position over plaintiff because he was more
Position
qualified: he scored the highest after interviews,
had three years of supervisory experience, spent
over two years directly advising a Senior
Executive, and he had two years of experience
managing the finances for an organization.
Plaintiff, on the other hand, scored the sixth
highest, and had little to no experience
supervising, advising a Senior Executive, or
managing the finances for an organization.298
November 2010 Non-Selection for Chief of the Kevin Crumlish was selected for the position
Models & Simulations Division
over plaintiff because he was more qualified: he
scored the highest after interviews, had a strong
modeling and simulations background, and
demonstrated success as the Program Manager
of Extended Air Defense Simulations.
Plaintiff, on the other hand, had the fourth
highest score.299
Non-Appointments as Acting Division Chief

Appointments as Acting Division Chief were
made based on time-in-grade, which placed
plaintiff second in line for appointments behind
John Morash.300

Non-Appointment for the Warfighter Source Plaintiff was not selected for the Warfighter
Selection Board
Source Selection Board because all other Board
members had more recent experience on the
contract, and so an employee in the Models &
Simulations Division could continue
performing assigned work.301

298

Id. at 39-40, ¶¶ 202-12.

299

Id. at 40-41, ¶¶ 214-21.

300

Id. at 42, ¶ 230.

301

Doc. no. 40 (Brief in Support of Summary Judgment), at 43-44, ¶¶ 237-39.

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Lack of Funding for Projects

Plaintiff experienced a lack of funding for her
projects because all Models & Simulations
Division programs were operating below the
required levels of funding, and most of
plaintiff’s proposed projects were too
expensive. Further, other GS-14s received
lower than requested funds.302

Cancellation of Projects

One of plaintiff’s projects naturally terminated,
and Dr. Steven Pierce did not rate plaintiff on
an objective related to her project that
terminated.303

Steve Fox’s Letter of Concern

The Letter of Concern was appropriate because
plaintiff was insubordinate to her supervisor,
Steve Fox. Fox had already drafted the Letter
when plaintiff first complained about
discrimination and retaliation.304

Delay in Approving Plaintiff’s Timecard

Plaintiff, along with several other employees,
received an email stating that her timecard was
not yet in the system, and they needed to take
action to ensure they would get paid.
Management took action to address all timecard
concerns and all employees were paid on
time.305

Denial of Plaintiff’s Team-Building Exercise

Dr. Steven Pierce denied plaintiff’s teambuilding exercise because other employees
expressed discomfort in the exercise, and there
is no specific requirement to conduct a teambuilding exercise.306

302

Id. at 44-45, ¶¶ 241-45.

303

Id. at 45, ¶¶ 246-47.

304

Id. at 9-10, ¶¶ 32-36.

305

Id. at 45, ¶ 250.

306

Id. at 46, ¶¶ 253-54.

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Postponement of Plaintiff’s Training

Plaintiff was already on a selection committee
at the time she was notified that her application
to attend a training course had been granted.
The selection committee was a priority, and
took precedence over the training course, which
was only postponed. Plaintiff took the training
course less than a year later.307

High-Level Supervisors Ignored Plaintiff’s
Complaints of Discrimination and Retaliation

Consistent with Department of Defense policy,
Larry Burger, Lieutenant General Campbell,
and Lieutenant General Fomica would refer
plaintiff back to her chain of command,
investigate the matter, or defer to the EEO
process if she had already filed an EEO
Complaint.308

Accordingly, defendant met his burden of coming forward with legitimate, nondiscriminatory, and non-retaliatory reasons for each of the employment actions
complained of by plaintiff.
3.

Pretext

In order to show that the employer’s stated reasons are merely a pretext for a
discriminatory or retaliatory animus, a plaintiff “must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253,
1265 (11th Cir. 2010) (internal quotation marks omitted); see also, e.g., Kragor v.

307

Ex. 153 (Dr. Pierce’s Testimony), at 9079-86.

308

Doc. no. 40 (Brief in Support of Summary Judgment), at 46-47, ¶¶ 256-58.

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Takeda Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012); Combs
v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997); Cooper–Houston v.
Southern Railway Co., 37 F.3d 603, 605 (11th Cir. 1994).
Plaintiff only attempts to establish pretext for a few of the allegedly adverse
employment actions she complains of.
She initially contends that defendant’s articulated reason for Fox’s Letter of
Concern is pretextual based upon “Cp’s Pre-Hearing Report.”309 However, she does
not provide a substantive argument in support of that assertion; indeed, she does not
even explain to whom, or what, “Cp” refers. Thus, plaintiff failed to meet her burden
with regard to Fox’s Letter.
Plaintiff also contends that defendant’s proffered reason for postponing her
training was pretextual because another employee was permitted to leave the selection
committee on which she was forced to serve.310 However, Major Jason Conroy stated
that the other employee was permitted to leave the selection committee because “[h]e
had a personal — he had a medical — something in the family.”311 That is a much
more legitimate reason for seeking permission to leave the selection committee than

309

Doc. no. 53 (First Brief in Opposition to Summary Judgment), at 133.

310

See doc. no. 53 (First Brief in Opposition to Summary Judgment), at 134 (citing Ex. 158
(Colonel Conroy’s Testimony), at 9315).
311

Ex. 158 (Colonel Conroy’s Testimony), at 9315 (alteration supplied).

85

a training class that can be rescheduled. Put simply: that fact does not establish any
weaknesses, implausibilities, inconsistencies, or contradictions in defendant’s
proffered reason for postponing plaintiff’s training class.
Plaintiff next contends for a variety of reasons that defendant’s stated grounds
for selecting Dr. Steven Pierce to be Director of the Simulations and Analysis
Directorate are suspect. The court disagrees. First, plaintiff relies on several exhibits
that she did not attach to the record, such as an email, a selection memorandum, her
2006-2007 performance evaluation, and a “Pre-Hearing Report.”312 Second, she cites
portions of her 2005-2006 performance evaluation for the proposition that she had
supervisory experience, but the evaluation only states that plaintiff managed certain
projects.313 It mentions nothing about supervising other employees. Even if it is
assumed that she did so, there is no basis provided to compare plaintiff’s
“management” experiences to Dr. Pierce’s supervisory roles.

Third, plaintiff

contends that the selection panel gave conflicting information as to what scores were

312

See doc. no. 53 (First Brief in Opposition to Summary Judgment), at 134 (citing to
Exhibits 191 and 194). In all, plaintiff purports to attach Exhibits 171 through 238. See doc. no. 541 (Table of Contents). However, her submission is missing Exhibits 171-179, 190, 191, 194, and
195-199; only includes cover pages for Exhibits 187 and 213; mislabeled Exhibit 209 as Exhibit 199;
and included Exhibit 210 twice. See doc. nos. 54-2, 54-3, 54-4, 54-5, 54-6, 54-7 (Plaintiff’s
Attached Exhibits). Defendant attached Exhibits 175 and 176 with his reply submission. See doc.
nos. 73-1 (Watkins’s Testimony); 73-2 (Fox Email).
313

See Ex. 221 (2005-2006 Performance Evaluation).

86

actually assigned to each applicant.314 Plaintiff relies on scorecards obtained during
discovery. However, the scorecards are illegible, and the court cannot consider
them.315 Fourth, plaintiff contends that Dr. Pierce was reprimanded by a General
Officer for abuse of subordinates.316 Nowhere in the exhibit to which plaintiff cites,
however, does it state that Dr. Pierce received any formal reprimand prior to being
selected for the position.317 It appears that plaintiff is referring to Colonel Peter
Cole’s November 3, 2014 declaration as a “reprimand,” which does not evidence
pretext because it was executed on May 22, 2012 — four years after Dr. Pierce was
selected for the contested position.318 For all of those reasons, plaintiff failed to
establish that defendant’s proffered grounds for selecting Dr. Pierce were pretextual.
Finally, plaintiff relies extensively on Colonel Cole’s declaration for the
proposition that Larry Burger formed a “wolf pack” to attack and destroy the careers
of female and minority employees.319 Plaintiff’s claims, however, are not founded on

314

Doc. no. 53 (First Brief in Opposition to Summary Judgment), at 135.

315

See Ex. 236 (Scorecards); doc. no. 54-7 (Exhibits 234-237), at ECF 23-39.

316

Doc. no. 53 (First Brief in Opposition to Summary Judgment), at 135.

317

See Ex. 186 (Colonel Cole’s Declaration).

318

Id. at 2595.

319

See doc. no. 54-7, at ECF 44, ¶ 9. Interestingly, plaintiff’s former attorney of record once
commented, “I have slowly come to the conclusion that Cole is a liar. [At] a minimum he has made
a false declaration in Ms. Paschal’s administrative EEO process. His stories of ‘daring do’ rival the
Buffett song ‘Last Mango in Paris’.” Ex. 239 (Riggs Email).

87

a “pattern and practice” theory,320 and her evidence that Mr. Burger used his “wolf
pack” to retaliate against Linda Beach and Pam Caruso, female employees in the
Future Warfare Center,321 is not relevant to her claims of individual discrimination
and retaliation. Further, Colonel Cole’s opinion that Larry Burger’s “command
influence” tainted Colonel William Whitney’s investigation into plaintiff’s sexual
harassment complaints is “pure conjecture and speculation,” and not evidence of
retaliation or discrimination.322 See Daniels, 692 F.2d at 1324. Thus, Colonel Cole’s
declaration does not demonstrate pretext on any of the allegedly tangible employment
actions.
Because plaintiff does not attempt to refute any of defendant’s other proffered
reasons for the allegedly adverse employment actions identified in the table set out
above, summary judgment is due to be granted in defendant’s favor on plaintiff’s
discrimination and retaliation claims.
D.

Retaliatory Hostile Work Environment
The Eleventh Circuit recently recognized a cause of action for retaliatory

hostile work environment under Title VII which can be established with evidence that
320

Plaintiff’s claims are not brought as a class action, as is required for a private litigant to
maintain a “pattern or practice” theory of discrimination or retaliation. See Davis v. Coca–Cola
Bottling Co., 516 F.3d 955, 969 (11th Cir. 2008).
321

See doc no. 54-7, at ECF 44-45, ¶ 12-14.

322

See id. at ECF 46-47, ¶ 20.

88

an employer’s actions “were sufficiently severe or pervasive to alter the terms and
conditions of employment, thus constituting an adverse employment action.” Gowski
v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012) (per curiam). In other words, when
evaluating whether an employer’s actions constitute an “adverse employment action”
within the context of a claim of retaliatory hostile work environment, courts do not
employ the standard typical of retaliation claims — i.e., whether the employer’s
actions “well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” See, e.g., Burlington Northern & Santa Fe Railway Co.
v. White, 548 U.S. 53, 68 (2006). Instead, courts apply the “severe or pervasive”
standard typical of hostile work environment claims. See, e.g., Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993).
A majority of the employment actions complained of by plaintiff, however,
were not based upon retaliation for plaintiff’s protected EEO activity. Moreover,
many of those employment actions constitute discrete acts, which “must be
challenged as separate statutory discrimination and retaliation claims,” and “cannot
be brought under a [the rubric of a retaliatory] hostile work environment claim.”
McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir. 2008) (alteration supplied). See
also Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 970 (11th Cir. 2008)
(holding that “hiring decisions, light work assignments, and alleged retaliation
89

constituted discrete acts, not acts that were part of a hostile work environment”);
Abram v. Fulton County Government, 598 F. App’x 672, 675 (11th Cir. Jan. 29,
2015) (“Discrete acts include ‘termination, failure to promote, denial of transfer, or
refusal to hire,’ each of which is easy to identify.”). Thus, plaintiff’s various nonselections, suspensions, and negative performance evaluations are more appropriately
challenged as separate retaliation claims, rather than as part of a retaliatory hostile
work environment claim.
This court has reviewed the record, and finds that the remaining conduct
complained of by plaintiff — including the various counseling sessions, attendance
of witnesses during performance reviews, her requirement to include her supervisor
on emails, and the purported “nitpicking” — was not sufficiently severe or pervasive,
either when considered individually or as a whole, to alter the terms and conditions
of her employment. Accordingly, summary judgment is due to be granted in
defendant’s favor on plaintiff’s retaliatory hostile work environment claim.
V. CONCLUSION
For all of the foregoing reasons, defendant’s motion for summary judgment is
due to be granted, and all claims of plaintiff dismissed. A separate order consistent
with this memorandum opinion will be entered contemporaneously herewith.

90

DONE and ORDERED this 22nd day of June, 2015.

______________________________
United States District Judge

91

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ALESYA M. PASCHAL,
Plaintiff,
vs.
JOHN M. McHUGH,
Secretary of the Army,
Defendant.

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Civil Action No. CV-12-S-2985-NE

EXHIBIT A