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Paschal v. McHugh

United States District Court, N.D. Alabama, Northeastern Division

June 22, 2015

ALESYA M. PASCHAL, Plaintiff,
v.
JOHN M. McHUGH, Secretary of the Army, Defendant.

MEMORANDUM OPINION

C. LYNWOOD SMITH, Jr., District Judge.

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 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 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]

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 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 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 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 non-moving 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 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]

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]

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 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 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]

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 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. 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, 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 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 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-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 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 second-line 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 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 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 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 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

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 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 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.

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 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 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 Five-Day 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

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 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 twelve-days.[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 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 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 ...


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