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Bernice Smith v. Kathleen Sibelius

August 17, 2011


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


Bernice Smith has sued her former employer, the Secretary of the Department of Health and Human Services ("HHS"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-16. Smith claims that her HHS supervisors discriminated against her because of her race (African-American) and gender and retaliated against her after she complained about this alleged discrimination. HHS moved for summary judgment. For the reasons stated below, the Court grants the motion.


In October 2001, Smith began working for HHS as an administrative officer in the Office of Investigations -- part of the Office of Inspector General -- at the GS-9 pay grade level. David Krupnick became Smith's immediate supervisor shortly thereafter. Krupnick promoted Smith to GS-11 pay grade level in late 2002.

Smith claims that her conflicts with HHS supervisors began in 2004. Scott Vantrease, a higher level manager at HHS, asked Smith to attend a disciplinary telephone meeting involving Cynthia Wade, an African-American employee. Smith refused, stating that her job duties did not require her to attend such a meeting. Smith felt that she was being asked to attend the meeting solely because of her race. She claims that Vantrease became upset at her refusal and began to influence Krupnick to take actions against her.

On January 18, 2005, Krupnick notified Smith that he had proposed a three-day suspension because she allegedly failed to work a full work day on at least thirty-five occasions between September 22, 2004 and November 22, 2004. In this notice, Krupnick explained that a pass card needed to be swiped each time an employee enters or leaves the work area. He claimed that Smith's pass card activity showed that she had left the office forty minutes to 150 minutes early at least eighteen times during the sixty-day period at issue and that she had arrived ten minutes to 120 minutes late to work at least seventeen times during the same period. (Smith contends that Vantrease provided the pass card records to Krupnick.) Krupnick also described two meetings at which he had given Smith an opportunity to explain this conduct and she was unable to provide a satisfactory explanation. The notice also asserted that Smith's conduct was particularly egregious because her employment duties included administering other employees' time and attendance. Smith filed a response to Krupnick's allegations.

Assistant inspector general Martin Campbell reviewed the matter and decided that a suspension without pay was appropriate, though he reduced the suspension to two days because it was theoretically possible for an employee to enter or leave the work place without swiping her security card when another employee had opened the door.

On April 27, 2005, Smith contacted an internal EEO counselor to complain about discrimination. This process was interrupted so that alternative dispute resolution could be pursued, but that ultimately failed. On December 27, 2005, Smith filed a formal EEO complaint. It was dismissed on April 13, 2006 but was reinstated on appeal on September 15, 2006.

Smith has stated in a sworn affidavit that she engaged in no EEO activity prior to April 27, 2005. Def. Ex. 8 ¶ 3. Krupnick claims that he became aware of Smith's EEO charge sometime during the summer of 2005, when an EEO investigator contacted him. Vantrease claims that he became aware of Smith's EEO activity after he had transferred to a position in Washington, D.C. in August 2006.

On June 2, 2005, Krupnick transferred one of Smith's work assignments -- involving data input about government vehicles used by agents in Michigan -- to the HHS Office of Investigations in Detroit. Krupnick has stated that the official in charge of the Detroit office contacted him and suggested that it would be more efficient to have the task done locally in Detroit. Smith contends that this work assignment comprised over one-fourth of her duties.

Smith later learned that her position was being phased out. She applied for another position within HHS and was hired an investigations analyst (at the GS-11 pay grade) in April 2006. Vantrease became Smith's new immediate supervisor. He later approved Smith's request for a later start time for her work day.

On June 28, 2006, Vantrease gave Smith a feedback report regarding her performance during her first three months in the new position. The report included a detailed summary of her allegedly low productivity. Vantrease also informed Smith that she needed to use her pass card to exit and leave the office because of tardiness issues. (Another employee, also an African-American female, was also required to use her swipe card because of attendance issues.) The report also indicated that if Smith did not increase her productivity, she might be placed on a performance improvement plan. Smith claims that Vantrease unreasonably required her to produce six to eight "mitigating letters" per week. Smith says that Annette Reed-Davis, another investigations analyst who started about the same time, was at a higher pay grade, had more experience, and was producing about three mitigating letters per week. Smith also claims that Deidra Adams, the senior investigative analyst in Smith's group, was producing only about ten such letters per month -- less than three per week.

On July 10, 2006, Smith contacted the EEO office again and alleged that she was being discriminated against in her performance evaluation and working conditions based on her race and that she was being retaliated against because of her 2005 EEO complaint. An EEO counselor was assigned to the case and contacted Smith on July 14, 2006. Smith submitted a formal EEO complaint on July 28, 2006.

On July 31, 2006, Vantrease issued Smith notice of a proposed five-day suspension based on her alleged failure to work a full day on seventeen occasions between April 6, 2006 and July 19, 2006. Vantrease claimed that this punishment was appropriate because this was the second time in an eighteen-month period that Smith had failed to comply with HHS procedures in this regard. Smith defended her conduct by claiming that the Office of Investigations did not have a policy requiring employees to use pass cards when entering or exiting the workplace.

Assistant inspector general Campbell reviewed the matter and notified Smith on November 24, 2006 that she would be suspended, but only for three days. He agreed with Smith that the Office of Investigations did not have a passcard policy but decided to impose a suspension because Smith had once again failed to claim actual compliance with HHS leave procedures. Campbell stated that Smith was being disciplined for not working a full day, not for failing to use her pass card. Smith was suspended from December 5 to 7, 2006.

On June 26, 2007, HHS initiated an administrative investigation of Smith's December 27, 2005 and July 28, 2006 EEO complaints. Smith's discrimination and retaliation claims focused on seven separate HHS actions: (1) the March 2005 suspension decision; (2) the June 2005 transfer of one of her work assignments to Detroit; (3) Vantrease's directive in June 2005 to use her swipe card to record her entrance and exit; (4) the June 28, 2006 performance evaluation and Vantrease's comment about potentially placing Smith in a performance improvement plan; (5) the July 2006 suspension proposal; (6) the December 2006 partial implementation of the July ...

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