United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
PAUL W. GRIMM, District Judge.
Plaintiff Evelyn Ruffin, an African-American female, claims that her employer, the United States Department of the Treasury - Internal Revenue Service,  discriminated against her, subjected her to a hostile workplace, and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Compl. ¶¶ 1, 4, ECF No. 1. I must determine whether either of the parties' cross-motions for summary judgment is meritorious. Because the material facts are not disputed and Defendant is entitled to judgment as a matter of law, I will grant Defendant's motion and deny Plaintiff's motion. This Memorandum Opinion and Order disposes of ECF Nos. 86 and 90.
In 2004, Plaintiff worked for the IRS as an information technology ("IT") specialist, "supervis[ing] and oversee[ing] the computer information technology related aspects" of the database for "Equal Employment Opportunity (EEO') related information" ("EEODB") that the IRS was developing. In this capacity, Plaintiff used software called Visual Powerfiles "to compile, evaluate, and report" the EEO information. The IRS licensed the software from a company called TechSolutions, Inc. Employees from STG, Inc., a contractor for the IRS, also worked on developing the EEODB. Compl. ¶¶ 23-30; Def.'s Mem. 1-2.
"The Treasury Department sought to develop an in-house alternative" to Visual Powerfiles. Compl. ¶ 28; Def.'s Mem. 2. Plaintiff and Al Green,  who was responsible for the contract with TechSolutions and also worked on the EEODB development, "request[ed] access to the encrypted Visual Powerfiles data model... to reduce the time needed to complete the EEODB project." Compl. ¶¶ 31, 33; Def.'s Mem. 6; Dec. 21, 2004 Email Chain ("Email Chain A"), Def.s' Mem. Ex. 28, ECF No. 90-28; Dec. 20, 2004-Jan. 3, 2005 Email Chain ("Email Chain B"), Def.'s Mem. Ex. 30, ECF No. 90-30. Specifically, they sought Visual Powerfiles's "table relationship diagram, " but TechSolutions informed them that "[t]he table relationship diagram... would contain information that is proprietary to TechSolutions as it would reveal the logic used to create [their] reports, " and therefore TechSolutions could not "give it to the IRS under [the] current contract vehicle." Email Chain B. Ruffin sent Green an email on January 3, 2005 with her "thoughts on how to justify [the table relationship diagram] as a deliverable." Id. She wrote:
1. Tell [TechSolutions owner Robert Patterson] that we want to verify his reports are drawing from the appropriate data. We cannot do this unless we now [sic] the structure of the tables. This verification is required for the new MD [Management Direct] 715 reports going to OPM.
2. The information will be used for recertification as well. Tell him security is requesting recertification.
3. What is written in the contract? Is there a clause for proprietary exclusion of the database tables[?]
Id. Plaintiff states that, when TechSolutions would not share the diagram, she then "sought to create her own data model in connection with IRS owned data tables, " but not "to engage in reverse engineering in connection with Visual Powerfiles' source codes and data models." Compl. ¶ 35.
In February 2005, Patterson filed a complaint against the IRS, alleging that, through Plaintiff, Green, and another employee, the IRS "procured the benefits of a source code license without purchasing the license.'" Compl. ¶ 36; Def.'s Mem. 2-3. The Treasury Inspector General for Tax Administration ("TIGTA") investigated the matter from February 2, 2005 to January 11, 2007 and then issued a Report of Investigation ("ROI"). Compl. ¶¶ 36, 39, 45; ROI 147, 152, Def.'s Mem. Ex 3, ECF No. 90-5. Plaintiff was interviewed on February 7, 2006 and January 11, 2007. ROI 688-93, 771-73. She admitted that she "requested the [Visual Powerfiles] source code from TechSolutions." Id. at 657. She first said that obtaining the Visual Powerfiles "table relationship diagrams would have reduced the number of EEODB development hours" and that obtaining the diagrams was "the only thing that would save time on the project, " but then said that "the table relationship diagrams were needed for security certification of the new web based EEODB." Id. at 157, 657, 691. Yet she also said that "because there was a certification already in place they were going to use that one, " suggesting that the diagrams were not necessary for certification. Id. at 691-92. Plaintiff stated that the language she used in her January 3, 2005 email to Green was for him "to use in his discussions with the [Visual Powerfiles] contracting officer and not for use in his discussions with the [Visual Powerfiles] contractor." Id. at 691. The TIGTA agent reviewing the relevant records concluded that Green and Ruffin "were attempting to circumvent standard... security certification procedures by having the existing [Visual Powerfiles]... security certification transferred to the EEODB, " even though they "knew before they asked for the source code" that the Visual Powerfiles "security certification could not be transferred to a new system." Id. at 657. Additionally, Jonathan Marr, an STG contractor interviewed in the investigation, "said that the [Visual Powerfiles] table relationship diagrams, schemas and code have no impact on the security certification of the EEODB." Id. at 155.
The investigation also addressed the allegation that, in "allow[ing] unauthorized access to the [Visual Powerfiles] database, " Plaintiff "allowed unauthorized persons to access confidential and Privacy Act information on IRS and TIGTA employees." ROI 153. Ruffin admitted that Green "did give her live' [actual] data on a disk that she kept in a desk drawer, " and that STG "received the live data, " but she insisted that Green gave STG "dummy data" and that neither she nor Green gave live data to STG. Id. at 692. Indeed, the minutes to the October 4, 2004 meeting of those involved in the EEODB development state that, "[t]o address concerns about contractors having access to sensitive employee data, [Al Green] will develop dummy data' for the contractors to use while developing the system." Oct. 4, 2004 Mtg. Minutes, Pl.'s Opp'n Ex. Additionally, on December 6, 2004, Green sent an email that he had "completed... a CD with over seventy thousand of dummy data." Dec. 6, 2004 Email, Pl.'s Opp'n Ex. And, on August 4, 2005, Green sent an email stating that they "need to be looking at populating the database with real data, " suggesting that he had not provided actual data prior to that date. Aug. 4, 2005 Email, Pl.'s Opp'n Ex.
After the TIGTA interviewed Ruffin on February 7, 2006, "allegations of suspected criminal misconduct by RUFFIN were referred to the Computer Crimes and Intellectual Property Division (CCIPS), Department of Justice (DOJ) for review." ROI 771. On December 22, 2006, CCIPS informed the TIGTA that it "declined criminal prosecution of RUFFIN for intellectual property theft, conspiracy, criminal copyright violation, and false statements made during her February 7, 2006 interview." Id. at 766-67, 771.
According to Defendant, the TIGTA found that Patterson's "allegations [were] confirmed." Def.'s Mem. 8. According to Plaintiff, the TIGTA "issued no charges against Plaintiff and found that Plaintiff had not engaged in any wrongdoing." Compl. ¶ 47. In fact, the ROI concluded that "[i]nquiries conducted and evidence obtained during the course of th[e] investigation substantiated that RUFFIN allowed unauthorized access to the [Visual Powerfiles] database and in doing so, allowed unauthorized persons to access confidential and Privacy Act information on IRS employees, " and that "RUFFIN conspired with other IRS staff in efforts to obtain [Visual Powerfiles] source code for STG developers to use in the development of the competitive product, " which were "violation[s] of the Treasury Standards of Ethical Conduct and the Privacy Act." ROI 153. The ROI stated that documents on Ruffin's hard drive demonstrated that the EEODB developers "intended to include various Visual Powerfiles for EEO... reports in the new EEODB, " and those reports included TechSolutions's proprietary information. Id. at 253-55. The ROI also stated that, while Ruffin maintained that she gave STG "dummy data, " not "live" Treasury personnel data, for use in working on the EEODB, Ruffin had a disk of actual personnel data and STG received actual data, including employee Social Security numbers. Id. at 692, 744-45. The TIGTA then referred the ROI to the IRS on February 26, 2007, noting that the DOJ had "declined criminal prosecution for violations of the United States Code." Id. at 151.
Meanwhile, in late 2006, the IT departments at the IRS had been restructured; Plaintiff began to work with Melvin Hayes as her supervisor; and her "former responsibilities... were given to Mitch Chaz[a]n... at the IRS office in Austin, Texas." Compl. ¶¶ 40-41. She claims that, "[i]mmediately thereafter, Mr. Hayes subjected Plaintiff to a hostile work environment on account of her race and gender, " id. ¶ 41, in response to which Plaintiff filed an EEO claim in November 2006 and was assigned to a different supervisor, id. ¶ 42; Pl.'s Ans. to Interrogs. 9, Def.'s Mem. Ex. 40, ECF No. 90-40. She also claims that soon afterwards, "Mr. Chaz[a]n repeatedly sent Plaintiff inappropriate emails of a harassing nature" that "contained false accusations that Plaintiff failed at her job performance." Compl. ¶ 43. Plaintiff filed a second EEO claim in December 2006 with regard to Mr. Chazan's actions. Id. ¶ 44; Jan. 11, 2007 Email, Pl.'s Opp'n Ex. (from EEO Counselor to Chazan, referencing Ruffin's Dec. 14, 2006 EEO claim); see Pl.'s Ans. to Interrogs. 9.
After receiving the ROI in February 2007, the Treasury Department considered whether to pursue any administrative action. Aug. 16, 2007 Notice of Proposed Suspension, Def.'s Mem. Ex. 11, ECF No. 90-13. Six months later, on August 16, 2007, Plaintiff's second-level manager Cecil Hua recommended a five-day suspension of Ruffin based on the ROI, for (1) allowing unauthorized individuals to access IRS employees' confidential information rather than dummy data; (2) improperly using the Visual Powerfiles database to develop the EEODB; and (3) aiding Green in attempting to obtain TechSolutions's proprietary information. Id.; Oct. 3, 2007 Notice of Proposed Suspension, Def.'s Mem. Ex. 12, ECF No. 90-14; Compl. ¶ 47.
In response, Plaintiff contacted an EEO counselor on September 27, 2007. Compl. ¶ 11; Ruffin Dep. 30, Def.'s Mem. Ex. 1, ECF No. 90-3; EEO Counseling Report, Def.'s Mem. Ex. 13, ECF No. 90-15. She filed an EEO claim on December 31, 2007, "alleging retaliation for the previous EEO filings; the non-selection of the G-15 position, ... based on pre-selection and on account of Plaintiff's race." Compl. ¶¶ 13, 48; Dep't of Treas. Ltrs. to Ruffin re Dec. 31, 2007 EEO Claim, Def.'s Mem. Exs. 23 & 24, ECF Nos. 90-23 & 90-24.
On February 7, 2008, Michael C. Griffin, Deputy Associate Chief Information Officer, sustained Hua's first and third reasons for the suspension but not the second, and reduced Plaintiff's suspension to two days. Notice of Suspension, Def.'s Mem. Ex. 18, ECF No. 90-18; Griffin Decl. ¶ 3 & Att. A, Def.'s Mem. Ex. 36, ECF No. 90-36; Compl. ¶ 50. He did not find that Plaintiff provided actual employee data "to outside contractor employees, " but concluded that, regardless, she was "careless" and "failed to adequately protect employee personal information." Griffin Decl. Att. A, at 112-13. He also found that Plaintiff "supported efforts to utilize proprietary source code and data schemas despite IRS policies... and vigorous TechSolutions resistance." Id. at 114. In Ruffin's view, she was suspended "on account of her race... an[d] color... and in retaliation for her EEO filings." Compl. ¶ 51.
Plaintiff claims that, after the suspension, she "was subjected to continuous acts of harassment; discrimination; retaliation; and [she] has been further subjected to a hostile work environment." Compl. ¶ 52. The one specific example she alleges is that Messrs. Hayes, Hua, and Griffin "blocked" her "attempts at promotion... on at least three (3) occasions." Id. The evidence describes one time Plaintiff sought a promotion: On Thursday, May 29, 2008, at 3:57 p.m., Plaintiff emailed a "managerial potential" form to her first-line manager Mark Smith, asking him to complete it so that she could apply for a temporary senior management position that had been posted on May 27, 2008, with applications due Monday, June 2, 2008. The form provided check boxes for a supervisor to rate an employee as "Ready Now, " "Ready in 1-2 years, " or "Ready in 3-5 years" for managerial responsibilities. Plaintiff left work after sending the email and did not return until Wednesday, June 4, 2008. Plaintiff called Smith on the morning of Friday, May 20, 2008, and they discussed her application. Smith informed Plaintiff that she would have to sign the form before it was submitted, but that she could go ahead and submit the rest of her application before the deadline, and the form would be accepted late, after she returned to the office. Plaintiff testified that she was "working on the application" out of the office during that time "on purpose... to see how things transpired, " and that she did not want to submit the application without the form because if her supervisors had not assessed her as "ready now, " there would be "no meaning in applying." Smith and Hua completed the form on Tuesday, rating Plaintiff as "Ready in 1-2 years." Plaintiff, who had not received or reviewed the form, did not submit an application. Rakesh Gupta, another employee who Plaintiff claims has less managerial experience, was selected for the position. May 27, 2008 Job Posting, Def.'s Mem. Ex. 19, ECF No. 90-19; Managerial Potential Form, Def.'s Mem. Ex. 20, ECF No. 90-20; Smith Aff., Def.'s Mem. Ex. 21, ECF No. 90-21; May 29-June 3, 2008 Email Chain, Def.'s Mem. Ex. 22, ECF No. 90-22; Ruffin Dep. 74-89; Pl.'s Mot. ¶¶ 187, 198, 199, 203, 206.
In late June, an individual from the EEO Office called Smith and told him to discuss the Managerial Potential Form with Ruffin. Smith Aff. Plaintiff informed Smith that her prior supervisor previously had given her the "Ready Now" rating, and she provided that earlier form to Smith, along with "a two page employee narrative to describe her qualifications as a senior manager." Id. Based on that information, Smith revised his rating of Plaintiff to "Ready Now." He presented the form to Hua for signature in July 2008, but Hua "would not sign the updated form" because Ruffin's "narrative contained language that he considered inflammatory, " and the previous form was signed incorrectly. Hua agreed to meet with Plaintiff about making changes so that he would sign the form, but Plaintiff emailed Smith on July 17, 2008 "stating that she had no more communication to offer and that she would proceed to the next step of the EEO process." Id. According to Plaintiff, Hua signed the form in December 2008. Pl.'s Mot. ¶ 197.
Plaintiff filed another EEO claim on October 1, 2008, alleging racial discrimination and retaliation based on her supervisors' delay in completing the form with the rating she thought she deserved. Dep't of Treas. Revised Acceptance Ltr. for Oct. 1, 2008 EEO Claim 1, Def.'s Mem. Ex. 27, ECF No. 90-27.
II. ISSUES BEFORE THE COURT
In her Complaint, Plaintiff claims that "Defendants discriminated and retaliated against [her] in violation of Title VII by... [f]alsely accusing Plaintiff of substandard work product;... "[s]ubjecting Plaintiff to a hostile work environment; and/or... [s]uspending Plaintiff's employment, " and that they "retaliated against her on account of her EEO filings." Compl. ¶¶ 65-66. Plaintiff's Complaint is, of course, limited to the issues she raised in her administrative claim. See Taylor v. Peninsula Regional Med. Ctr., ___ F.Supp.2d ___, 2014 WL 936847, at *4 (D. Md. Mar. 10, 2014); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) ("Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit."). Although Plaintiff filed multiple administrative claims, Plaintiff's Complaint, filed with the assistance of counsel, makes clear that the pending lawsuit relates to the administrative claim she initiated on September 27, 2007 and formally filed on December 31, 2007. See Compl. ¶¶ 10-21. That EEO claim, as amended, presented five issues:
Was the complainant subjected to disparate treatment and a hostile working environment on the bases of her race (Black) and reprisal for prior EEO activity when:
1. On August 13, 2007, her supervisor announced that the selectee for a GS-15 position had been his "number one pick", and that she could learn whatever she needed to know from the Complainant;
2. On February 7, 2008, the Complainant was issued a decision to suspend her from duty for two (2) days, effective February 25 through 26, 2008;
3. On unspecified dates, one of her former managers and his subordinates were watching her and reporting back to her ...