The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Cecilia Villarruel (hereinafter, "Villarruel"), who identifies herself as Hispanic, held the position of "Office Assistant" in the Merrillville, Indiana, office of the Drug Enforcement Administration (the "DEA") from 1992 to 2001. Her duties included providing information and assistance in report writing, serving as a liaison with other law enforcement agencies, relaying information to agents, as well as several other duties. She had some limited procurement and contracting experience and had attended two four-day courses entitled "Ethics in Procurement" and "Introduction to Contracting and the Federal Acquisition Process" in April 1992.
In August 2001, Villarruel accepted the position of "Supply Technician" in the Chicago Field division. Her immediate supervisor was Linda Gonzalez (hereinafter, "Gonzalez"), who was Assistant Administrative Officer. In turn Gonzalez' superior was John Biagioni (hereinafter, "Biagioni") who was the Administrative Officer for the Chicago Field Office. Gonzalez and Biagioni are listed as Caucasian although Gonzalez, as her name implies, is married to a Hispanic. The duties of a supply technician included providing furniture and equipment assignments, managing DEA property through the inventory management system, as well as various reporting and planning duties relative to her primary responsibilities. Gonzalez completed and Biagioni reviewed Villarruel's annual performance reviews. Gonzalez rated her as "acceptable" on a scale ranging from "outstanding," "significantly exceeds expectations," "acceptable," and "unacceptable," on all reviews through 2004. An "Acceptable" rating did not impact Villarruel's pay, duties, responsibilities, or job title.
According to notes, memos, and e-mails prepared by Gonzalez, Villarruel's performance deficiencies included: (1) inability to complete assignments on a timely basis; (2) placing wrong information on inventory forms leading to missing equipment; (3) failure to respond to inquires and requests in a timely manner; and (4) failure to obtain government credit and phone cards for new DEA employees.
In October 2003, Villarruel responded to a vacancy announcement for an "Administrative Support Specialist" position in the Chicago Field division's administrative support unit. The primary function of this position was to serve as the Contracting Officer's Technical Representative for a $9.5 million contract to employ foreign language translators for wiretap. Biagioni drafted the position description, duties, and responsibilities. The position description stated that the holder of the position was required to have comprehensive and detailed knowledge of procurement and contracting because the job required management of the translation contract to ensure that the correct number of translators was on every shift, to supervise those translators, to manage the budget allocation and expenses in relation to the contract, and to maintain an adequate amount of obligated funds to cover translation work.
Four women including Villarruel and Anita Mrock (a Caucasian) ("Mrock") were placed on the "best qualified list" ("BQL") by personnel specialists at DEA headquarters. To be on this list an applicant must meet the minimum qualifications for the position. The applicants are then rated according to the required knowledge, skills, and abilities, known as KSAs. The selecting officer is free to select the individual believed to be the most qualified for the position whose names were on the BQL.
Villarruel's application contained numerous spelling errors as well as errors in grammar. Mrock's application noted that she was employed by DEA from 1973 through February 1991 when she resigned due to the fact that her husband was transferred out of Chicago.
She returned to the Chicago area and the DEA in 2002 when she was hired as an "Administrative Technician" in the Chicago division and came under the supervision of Gonzalez and Biagioni. She was a certified contracting officer and carried out division-wide procurement and supply management in her new position. She was rated as "outstanding" by Gonzalez on her annual performance reviews.
The interview panel that made the selection of Administrative Support Specialist consisted of Biagioni, Gonzalez and Special Agent Eva Sala, who was added to the panel because she had been performing the duties of an administrative support specialist on a temporary basis. The panel reviewed the applications and interviewed the candidates and unanimously recommended Anita Mrock to the selecting official, Special Agent In-Charge ("SAC"), Richard Sanders. The panel's decision to select Mrock over Villarruel was allegedly based on the belief that Mrock was more qualified and its perception that Villarruel had performance problems when she worked in the Merrillville office.
On November 18, 2003 Villarruel initiated a race discrimination complaint with the DEA's Equal Employment Opportunity ("EEO") Office (Case No. D-04-3755) over the failure to select her for the Administrative Support Specialist position. In March 2005 the Department of Justice's Complaint Adjudication Office issued its final agency decision finding no discrimination.
Although Villarruel filed an appeal, she did not wait for a decision but instead commenced this lawsuit. While this suit was pending, the Office of Federal Operations issued a decision finding in favor of Villarruel. A Motion to Vacate based on this pending case has not as yet been decided.
After her non-selection and during her midterm 2004 evaluation, Villarruel allegedly became hostile and loud toward Gonzalez and questioned her authority to critique her backlogged work. On July 28, 2004 Villarruel, Biagioni and Gonzalez met to discuss her midterm evaluation and her alleged backlogged work. Biagioni told Villarruel that if she did not complete her work on a timely basis he would consider placing her on a Performance Improvement Plan ("PIP"). However, this never came to pass.
In September 2004, the DEA's Laredo, Texas District Office announced two vacancies for secretarial positions. Villarruel did not file a formal application for the Laredo vacancies and was therefore not placed on the BQL. In the same month Villarruel requested SAC Sanders to transfer her to the San Antonio District Office so she could be near her ailing elderly mother. She was advised, however, that she did not qualify for the DEA's voluntary or hardship transfer programs. On September 30, Villarruel sent a memo asking for assistance in transferring to the Laredo District Office. The Special Agent in Charge in the Laredo District, James Craig, asked his subordinate, Thomas Hinojosa ("Hinojosa"), a Hispanic, to consider hiring Villarruel out of consideration of her brother, Ralph Villarruel, who was a supervisory agent with the DEA. He did not, however, order Hinojosa to hire her. Hinojosa subsequently did not hire her because, he says, he wanted an individual who wanted to be in Laredo and Villarruel had said that she wanted the job to be near her mother in San Antonio. He was also afraid that, due to her familial circumstances, she would be requesting absences. Villarruel contends that she was led to believe that she had been offered the position and had sent Hinojosa an e-mail accepting the position. Hinojosa was displeased by this e-mail because he felt that Villarruel ...