474 F.Supp.2d 241 (2007)
Cynthia A. DECAIRE, Plaintiff,
Civil Action No. 04-10593-WGY.
Alberto R. GONZALES in his official position as Attorney General of the United States, Defendant.
United States District Court, D. Massachusetts.
February 23, 2007.
Paul W. Johnson, Ferriter, Scobbo & Rolophele, P.C., Boston, MA, for Defendant.
MEMORANDUM AND ORDER
YOUNG, District Judge.
I. INTRODUCTION AND PRIOR PROCEEDINGS
The plaintiff, Cynthia DeCaire ("De-Caire") filed a complaint against John D. Ashcroft, in his official position as Attorney General of the United States (the "Government") on March 26, 2004 under section 717 of the 1964 Civil Rights Act, as amended, 42 U.S.C. Â§Â§ 2000e-16 and 2000e-3, for gender discrimination and retaliation by Anthony Dichio ("Dichio"), the United States Marshal for the District of Massachusetts. Compl. and Demand for Jury Trial [Doc. No. 1]. The Government filed an Answer on July 7, 2004 [Doc. No. 5]. DeCaire amended her complaint on July 7, 2004. First Am. Compl. ("Pl.'s First. Am. Compl.") [Doc. No. 6]. The Government filed an amended answer on April 5, 2005 ("Def.'s Am. Answer") [Doc. No. 25].
On that same day, the Government filed a motion for summary judgment [Doc. No. 26] as to DeCaire's discrimination and retaliation claims. DeCaire filed a cross-motion for partial summary judgment as to the exhaustion of administrative remedies and the preclusion of any of DeCaire's claims. [Doc. No. 27]. DeCaire filed a memorandum in support of the motion and exhibits, on April 16, 2005 [Doc. Nos. 28-30], and filed additional exhibits on April 25, 2005 [Doc. No. 35]. DeCaire filed an opposition to the Government's summary judgment motion on April 18, 2005 [Doc. No. 31], with the Government filing its own
On May 12, 2005, in light of the fact that Alberto R. Gonzales had replaced John Ashcroft as Attorney General of the United States, this Court granted the motion to substitute a party. [Doc. No. 36]. The parties filed a joint pretrial memorandum on May 12, 2005 [Doc. No. 38]. Subsequently, various evidentiary and discovery matters came before this Court [Doc. Nos. 42, 43, 46-47, 60-61, 64-65]. Additional and amended "agreed-upon" facts were submitted by DeCaire ("Joint Statement of Facts") [Doc. Nos. 49-50, 56], and trial briefs were filed by the Government [Doc. Nos. 51, 53].
An eight-day jury-waived trial commenced on June 2, 2005. Closing arguments were held on July 27, 2005, at which point the Court took this matter under advisement. DeCaire subsequently filed Proposed Findings of Fact with this Court. [Doc. No. 75, 77].
II. FINDINGS OF FACT
A. Agreed-Upon Facts
This Court accepts the following facts filed in the parties' Joint Statement of Facts. The entry-level position in the United States Marshal's office is the "082" position. Joint Statement of Facts at Â¶ 1. The Criminal Investigator Deputy United States Marshal position is the "1811" position, which is "more advanced" than "082" status. Id. Â¶Â¶ 2-3. Deputies are assigned permanent duty stations within their district and "may be temporarily detailed to other duty stations inside and outside of the district." Id. Â¶Â¶ 4, 7.
DeCaire has been employed by the United States Marshals' Service since June of 1991. Id. Â¶ 7. From June of 1991 to August of 2002, with the exception of one Worcester assignment, her duty station had been Boston. Id. Â¶ 17. DeCaire has had an exemplary and "successful career" with the Marshal's service, during which time she has sought career advancement. Id. Â¶Â¶ 8, 14. She began as an 082, id. Â¶ 7, and was promoted to an 1811 (Grade 11) position in December 1993. Id. Â¶ 9. Three years later, she advanced to a Senior Criminal Investigator Deputy 1811 (Grade 12) position. Id. Â¶ 11. DeCaire was assigned to the Warrant Investigations Unit in December 1999, id. Â¶ 12, and later became an Acting Supervisory Criminal Investigator in Worcester. Id. Â¶ 13. Upon completion of this position, she returned to Boston where she was Team Leader of the Warrant Investigations unit. Id. Â¶ 14. Subsequently, she "made the certification list for a promotional position in the Electronic Surveillance unit." Id. Â¶ 16.
Dichio was appointed as United States Marshal for the District of Massachusetts by President George Bush and was sworn in on August 6, 2002. Id. Â¶ 18. There was, at the time, a "manpower shortage in
A few months later, in January 2003, Dichio decided to rotate Williams and De-Caire to Boston, despite the fact that Lewis was the junior deputy in Worcester and his duty station was Boston. Id. Â¶Â¶ 26, 27. Again, this rotational transfer was not accompanied by a Form SF50. Id. Â¶ 37. On the first day of the rotation, January 23, 2003, DeCaire "called in sick . . . [and] initiated EEO counseling." Id. Â¶Â¶ 31-32. The next day, "Assistant Chief Paul Durette ("Durette") modified Supervisory Deputy [Tom] Bezanson's directive, instructing him that assignments to Boston were to be made only as needed." Id. Â¶ 33. The following week, from January 27-31, 2003, DeCaire was on pre-approved leave. Id. Â¶ 34. She was told by Bezanson "to report to Worcester instead of Boston on February 3, 2003, and for that reason she did not work in Boston on that day." Id. Â¶ 35.
Dichio, without discussing the appointment with Durette, the assistant chief, again without a Form SF50, appointed De-Caire to the Boston 082 Court Operations position. Id. Â¶Â¶ 38, 39, 41. "At the time of this reassignment, there were deputies with less seniority than Deputy Marshal DeCaire assigned to the Worcester office, and to [the] Warrant Investigations Unit in Boston." Id. Â¶ 40.
On February 5, 2003 Bezanson forwarded Dichio, Dave Taylor, and Paul Dunne â€" DeCaire's supervisor at the time â€" information about the EEO complaint filed by DeCaire. Id. Â¶Â¶ 44, 45. On February 14, 2003, DeCaire was granted a "Notice of Right to File a Discrimination Complaint." Id. Â¶ 46. On May 11, 2003, Supervisory Deputy Jeff Bohn was removed from his position as head of the HIDTA Task Force. Id. Â¶ 49.
DeCaire remained assigned to the Boston Court Operations despite the arrival of three new 082s from the academy. Id. Â¶ 50. Deputy Marshal Kimball, who had less seniority than did DeCaire, was transferred from Court Operations to the Warrant Investigations Unit in mid-March of 2003. Id. Â¶ 51. About this time, Acting Chief Dimmitt removed Assistant Chief Durette from an office space into an administrative cubicle. Id. Â¶ 52. The following month, the Acting Supervisory Deputy position left vacant by Walter Doherty's departure "was not announced for competitive selection." Id. Â¶ 53.
Durette left the Marshal's Service in April of 2003. At about this time, DeCaire indicated her interest in the Acting Supervisor Court Operations position, for which Dimmitt had sought out a female deputy. Id. Â¶Â¶ 54-56. Deputy Marshal Alison
In October 2003, Paul Dunne and Jeff Bohn were assigned as Court Operations Supervisors. Following her marriage to Bohn on October 10, 2003, DeCaire was transferred to Worcester on October 14, 2003. Id. Â¶Â¶ 68-69, 72. There were deputies assigned to the Warrant Investigations Unit who were junior to DeCaire. Id. Â¶ 70. A specific example is Deputy Marshal Kevin Donahue, who was assigned as Warrant Coordinator despite the fact that DeCaire had more seniority than he did. Id. Â¶Â¶ 66-67. Bohn did not oversee the Warrant Investigations Unit. Id. Â¶ 71. When she inquired as to the nature of the Worcester transfer, Bezanson told her it "was what she made of it". Id. Â¶ 73 (internal quotation and alteration marks omitted).
DeCaire, from October 21 to November 12, 2003, took part in a merit promotion announcement. Id. Â¶ 75. On October 28, 2003, Bezanson informed Chief Fallon that DeCaire was four months pregnant and, as a result, requesting light duty status. Id. Â¶ 74. For two weeks thereafter, DeCaire worked in Worcester and her responsibilities included service of process, warrant investigation, and administrative duties. Id. Â¶ 76. Bezanson informed DeCaire that he would "try to find work for her in Worcester so that she would not end up in the Boston control room." Id. On November 14, 2003, DeCaire was told that her light duty would include work in Worcester on Mondays and Fridays, in the Boston control room on Tuesdays and Thursdays, and Springfield on Wednesdays. Id. Â¶ 77. DeCaire objected to the assignment, and also raised the issue of "possible side effects the electronic equipment may have on a developing baby," but reported for duty when told she would have to go out on sick leave if she did not wish to complete the duties. Id. Â¶Â¶ 77-78. Thereafter, the Springfield assignment was removed, and DeCaire was to report to Boston Tuesday, Wednesday, and Thursday. Id. 78. Deputy Bohn, who supervised the control room at this time and who filed an OSHA complaint as to the control room, was removed from his position on that day. Id. Â¶Â¶ 79-81. Supervisory Deputy Marshal Dunne asked DeCaire what other work she was capable of doing, and when she described the functions she performed during her first maternity leave he indicated he would attempt to allow her to serve process. Id. Â¶ 82. DeCaire, however, remained in the control room.
In mid-January 2004, several changes took place in the Marshals' Service, including the selection of Taylor as Permanent Assistant Chief Deputy Marshal, Allison Hodgkins's promotion to supervisory status in Court Operations, and Paul Dunne's assignment to Supervisory Deputy of Warrants. Id. Â¶ 83. DeCaire was informed
The parties stipulate that "[s]ince August 2002, Deputy Marshal DeCaire is the only deputy whose assigned duty station has moved so many times." Id. Â¶ 86. On July 20, 2004 the assignment policy was amended to provide that "assignments, including the Worcester HIDTA assignment, will be evaluated in six months with the possibility of a rotation at that time." Id. Â¶ 87. Even with such possibility for rotation, Deputy Lewis continues to serve in the Worcester HIDTA position â€" a position he has held since September 2002 â€" and Paul Sugrue continues to serve as Warrant Coordinator â€" a position he has held since April 2003. Id. Â¶Â¶ 88-89.
B. Findings of Fact Made by the Court
This case is extraordinarily fact-intensive, the Court's ultimate decision resting on nuanced inferences derived from facts in turn drawn from vigorously disputed evidence. Without indicating any reservation concerning the ultimate result (given the fair preponderance of the evidence standard), this is a close case.
At the outset, the Court makes certain credibility findings that color the factual recitation that follows:
â€" DeCaire is an exemplary Deputy United States Marshal with a spotless record and, at the time of the trial, thirteen years experience in the District of Massachusetts. The Court finds her credible in virtually every respect (although it does not draw all her inferences from certain of her experiences).
â€" In contrast, the credibility of Dichio, the former United States Marshal for the District of Massachusetts, is extremely suspect.
â€" The Court does not accept as credible the entirety of the testimony of Detective Joseph Cummings.
â€" The Court finds credible the entirety of the testimony of former United States Marshal Nancy McGillveray.
The Court's ultimate findings are best understood as a timeline, interpolating the facts already agreed upon with those found by the Court.
June 1991- DeCaire is hired as a Criminal
September 2002 Investigator Deputy United States
Marshall assigned to District of
Massachusetts. Boston, MA
1996-1998 DeCaire serves as a Senior Investigator
in the FBI Violent Fugitive
Task Force. Boston, MA
1999-2001 DeCaire serves as a Permanent
Warrant Investigations. Boston,
June 2001 DeCaire serves as an Acting Supervisor
in Worcester, MA, for which
she receives a Superior Accomplishment
September 2001 DeCaire serves in the Warrants
Investigation Unit, in Boston, MA,
as one of two Team Leaders.
August 2002 Anthony Dichio is sworn in as U.S.
Marshal for the District of Massachusetts.
Dichio arrives under
something of a cloud, criticized in
the press for his lack of executive
experience (though he is experienced
in executive security) and
well aware that the judges of this
District had written the President
and requested the retention of the
former United States Marshal.
Even before his arrival, Dichio was
reaching out to deputies in this District
to gauge their level of personal
support for him.
August 2002 Once installed as Marshal, Dichio
promptly undertakes a personnel
review of his deputies as this, he
believes, is one way quickly to
demonstrate his authority over the
office. Over the objection of Chief
Deputy Marshal Timothy Bane,
Dichio reassigns Deputy Stephen