Wesolowski v. Napolitano

Filing 81

ORDER granting 55 , 56 and 57 Defendant's Motions for Summary Judgment. ORDER Denying Plaintiff's 59 Motion to Strike. The Clerk of Court is instructed to enter an appropriate judgment and close the case. Signed by Chief Judge Lisa G. Wood on 2/27/2014. (csr)

3 the Eniteb Statto Jitritt Court
for the 6outbern Jitritt of Otorgia
runtutck Atbtoton
CHRISTOPHER P. WESOLOWSKI,
Plaintiff,
CV 211-163

VS.

JANET NAPOLITANO, Secretary,
United States Department of
Homeland Security,
Defendant.

ORDER

Presently before the Court are four motions: Defendant's
Motion for Summary Judgment as to Count 1, Dkt. No. 55;
Defendant's Motion for Summary Judgment as to Count 2, Dkt. No.
56; Defendant's Motion for Summary Judgment as to Count 3, Dkt.
No. 57; and Plaintiff's Motion to Strike Defendant's Motions for
Summary Judgment, Dkt. No. 59. For the reasons stated below,
Plaintiff's motion is DENIED, and Defendant's motions are
GRANTED.
I. Factual Background

This case arises from alleged workplace harassment of a
federal law-enforcement instructor and his claims that he was

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retaliated against for engaging in EEO activity. The relevant
facts are taken principally from Defendant's Statements of
Material Facts and Plaintiff's responses thereto. See Dkt. Nos.
55-2; 56-27; 57-2; 71-2; 71-3; 71-4. Pursuant to Federal Rule
of Civil Procedure 56(e) and Local Rule 56.1, all material facts
not controverted by specific citation to the record are deemed
admitted, unless otherwise inappropriate. Where the parties
offer conflicting accounts of the events in question, this Court
draws all inferences and presents all evidence in the light most
favorable to the plaintiff. See Hamilton v. Southland Christian
Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (citing Moton
v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)).
A. Events Prior to the First Selection Process
1. Work Before Harassment Began
In 2004, Plaintiff Christopher Wesolowski was hired as a
Lead Firearms Instructor at the Federal Law Enforcement Training
Center ("FLETC") in Glynco, Georgia. Dkt. No. 27 ¶ 14. In
April 2007, he transferred to the Tactics Branch ("TAB") of
FLETC's Enforcement Operations Division. Id. ¶ 15. He remained
there until he transferred out of the branch in late 2008, as a
result of events that began in February of that year.

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2. Crabill's Remarks About Plaintiff
Around February 2008, male instructors began to ridicule
Wesolowski for having long hair and wearing earrings. Id. ¶ 18.
On March 17, 2008, Wesolowsk±'s fellow instructor, Tom Crabill,
harassed Plaintiff about his appearance in front of students.
Dkt. No. 71, at 6-7. Plaintiff had heard from others that
Crabill was saying Plaintiff's hair was "unsat," and that
Plaintiff was "unprofessional," "a piece of shit," and a
"leadership problem." Dkt. No. 71-2 ¶ 107. To Plaintiff
directly, Crabill said, "[Wjhat the fuck is up with that hair?
What is all that about? Who are you trying to be? What, you
think you're undercover? Oh, you just want everybody to think
you're undercover." Id. ¶ 108. Plaintiff believes that the
comments about his appearance would not have been made if he was
a woman. Id. ¶ 105. Later that month, Plaintiff also learned
that Crabill and another coworker, Bob Pitchford, were calling
him a snitch. Dkt. No. 71, at 9.
Before Plaintiff grew his hair and Crabill began
disparaging his appearance, Crabill knew Plaintiff socially,
invited him to dinner in his home, and had social contact with
him at motorcycle events and motorcycle-club functions. Dkt.
No. 71-2 ¶ 10. Rather than intending to harass Plaintiff,
Crabill claims that he was worried about Wesolowski's appearance
at work because he was "wearing what appeared to be orange like
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fire fighter pants, his hair was in a bun in the back, [he was]
unshaven, and [he was wearing] what appeared to be five
earrings. Not the norm for what he was normally groomed and
dressed like." Id. ¶ 11.
3. Plaintiff's Complaint to Lambraia About Crabill
Wesolowski notified his management chain, including Branch
Chief Tony Lambraia and Division Chief Randy Melvin, that he was
being harassed by Crabill. Dkt. No. 27 ¶ 22. On April 3, 2008,
in response to Wesolowski's complaint, Lambraia held a meeting
with Plaintiff and Crabill.' Dkt. No. 71-2 ¶ 8. To Plaintiff's
knowledge, this was management's only response to Plaintiff's
complaint that Crabill was causing problems. Wesolowski Dep.,
at 40:8-9.
The meeting was held at least a week after Plaintiff
informed Lambraia that Crabill was disparaging his appearance.
Id. at 40:10-21. According to Plaintiff, Crabill lied at the
meeting: "He denied that he was saying any of those things, and,
of course, he tried to say that he was trying to be my friend,
trying to be my pal when nothing that he said is something that
any pal or friend would say." Id. at 41:1-11. Although
Wesolowski spoke up for himself in the meeting, he thought that
"it was useless trying to have [a] conversation with [Crabill]
when [he knew that Crabill was] going to sit there and lie to
1

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Plaintiff secretly recorded this meeting. Dkt. No. 71-2 ¶ 8.

[his] face." Id. at 41:17-23. Lambraia stated that he had
never counseled Wesolowski about his appearance and that if
Crabill was telling people that he had, then Crabill was telling
a "flat out lie." Id. at 42:2-10.
Overall, the meeting's big picture was that they had a
mission, and Lambraia asked if Crabill and Wesolowski could
"work professionally with each other without having to deal with
[issues] any further." Id. Wesolowski said that he could not
"work with anybody that consistently belittles [him] and makes
it impossible for [him] to come to work not knowing what to
expect"; rather, he needed to "come to work with the expectation
of being able to do [his] work unaffected and without having
somebody poison the well every time [he] turn[s] around." Id.
at 11-16. Indeed, "[t]here was a promotion coming up, and [he]
had to be concerned with that." Id. at 42:17-18. Lambraia
listened as Wesolowski talked. Id. at 42:19-22. At the end of
the meeting, with all three present, Larnbra±a repeated that "we
have a mission to do, you need to be professional, and
[Crabill's actions] will not be tolerated." Id. at 42-43.
4. Brad Smith's Uniform Policy
Brad Smith was the Deputy Assistant Director in FLETC's
Training Directorate from March 2004 to March 2008, where he was
a supervisor over the Enforcement Operations Division (EOD).
Dkt. No. 71-2 ¶ 1. Smith knew Plaintiff professionally but, as
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a third-line supervisor, he had minimal professional contact
with him and did not socialize with him. Id. ¶ 2. In the 20072008 time frame, as part of "the normal updating procedures,"
Smith was "leading the effort" to revise the FLETC uniform
directive that had reached its sunset date in 2006. Id. ¶ 3.
In the course of doing so he sought input from managers and
employees, and some employees expressed concerns that the issued
uniforms and gear were not sufficient for applicable work
environments. Id. ¶ 4. Smith claims that he has not used
Plaintiff or any other employee as an example to promote a
uniform policy and that he has no "ax to grind" with Plaintiff. 2
However, according to Plaintiff, Lambraia had told Plaintiff
that Smith had been trying to push the dress code policy and had
brought Plaintiff "up in front of numerous people as an example
of what not to look like." Wesolowski Dep., at 38-39. Further,
Mossburg and Lambraia mentioned that someone from senior
management had tried to convince Lambrala to counsel Wesolowski
and try to get him on track with what the new policy was going
to be. Id. at 39:1-6. Plaintiff has not alleged or sworn that
he heard Smith's purported comment; rather, he heard of it only
after it was relayed from Lambraia. Dkt. No. 71-2 ¶ 7.
2

Smith also testified that he has no resentment toward Plaintiff, "that he
did not discriminate against Plaintiff based on his sex, on a hostile work
environment, or in retaliation," and that he was not aware whether Plaintiff
filed an EEO complaint. Dkt. No. 71-2 ¶ 5. Further, he has no knowledge of
any positions for which Plaintiff applied and was not involved in any
decisions regarding Plaintiff's applications for promotion. Id. ¶ 6.
6

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S. Pitchford's Reports About Plaintiff
On April 11, 2008, Pitchford and Plaintiff had a
disagreement about Plaintiff's apparent failure to report to
teach a class. Dkt. No. 71-3 ¶ 27. Pitchford prepared a memo
about the disagreement. Id. ¶ 28. In the memo, Pitchford wrote
that when he was told that Plaintiff was not present, he called
Plaintiff's cell phone and got his voice mail, checked the call
line (on which employees are to report any unexpected absence)
several times, and then sent another instructor to cover the
class. Id. ¶ 29. Later that day, Plaintiff called him and said
that he had called the call line twice but reached the voicemail
of someone else, stating that the number did not work. Id.
¶ 32. Pitchford wrote in the memo that Plaintiff had called the
wrong number (2635, rather than 6235) . Id. ¶ 33. Plaintiff was
not hostile and did not challenge Pitchford. Dkt. No. 71-43
91 22. Although Pitchford says he only wanted to ensure
Plaintiff's work status and that he was all right, others had
reported to Plaintiff that Pitchford was claiming that Plaintiff
was absent without leave and that Pitchford was going to report
him to the Special Investigations Division (SID) . Id. ¶ 23.
The same day, Pitchford told Chief Security Officer Ronnie
Edge that Wesolowski was "pimping [himself] out as a GS-15
criminal investigator" and that he had grave concerns because he
felt Plaintiff was acting illegally and "guys in the unit [were]
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talking about it." Wesolowski Dep., at 64:6-12; Dkt. No. 71-2
¶ 21. Pitchford felt that something needed to happen about
Wesolowski telling people that he was actively working an
investigation for the SID. Wesolowski Dep., at 64:12-16.
Pitchford claims that several coworkers—Crabill, Ron Rods, and
Tony Barber—told him that Plaintiff was telling them that he was
working for SID and was undercover. Dkt. No. 71-2 191 14, 19.
Wesolowski denies that this is true and alleges that Pitchford
and Crabill created the rumor. Id. ¶ 14. Pitchford swears that
he told Edge that he had not heard Wesolowsk± make the
assertions, but Plaintiff denies that this is accurate. Id.
¶91 16, 20.
According to Edge, in response to Pitchford's concerns, he
asked whether Pitchford had gone to Dave Behrend, the Division
Chief of the SID. Dkt. No. 55-11, at 14:17-22. After Pitchford
said he had not, Edge recommended that he go speak to Behrend.
Id. at 14:23-24. Edge felt that Behrend, as Chief of SID,
should be apprised of the rumor. Dkt. No. 71-2 ¶ 22. However,
according to Pitchford, Edge said he was going to talk to
Behrend about it, and to avoid the situation from being "blown
out of context," Pitchford reported his conversation with Edge
to Lambraia. Id. 91 18. Two to four days later, Edge asked
Behrend if Pitchford had come to him about the matter, learned
that Pitchford had not, and told Behrend himself what Pitchford
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had told him. Id. ¶ 23. Behrend said that he would look into
it.

Id.
On April 16, 2008, Melvin and Lambraia approached Edge and

discussed ongoing "personality issues and conflicts" between
Wesolowski and another instructor; in turn, Edge advised them of
what Pitchford had told him on April 11. Id. ¶ 24; Dkt. No. 717, Ex. 2. When asked by Melvin and Lambraia whether it was
inappropriate for Plaintiff to raise the issue with Edge first
instead of them, Edge told them that people approached him with
information about administrative or potentially criminal issues
on a regular basis .3 Dkt. Nos. 71-2 ¶ 25; 55-11, at 21:8-15.
6. Wesolowski's Complaint to Lambraia
On April 15, 2008, Plaintiff sent an email to Lambraia.
Dkt. No. 71-2 ¶ 26. In the email, Plaintiff expressed
frustration with his work environment and the continuation of
"defamatory comments." Id. Plaintiff said that he had received
a phone call from the SID that morning to alert him that "an
unnamed and reliable source" had called Behrend to tell him that
Pitchford was telling people that Wesolowski was posing as an
SID investigator and claiming to be a GS-15 employee. Id.
Wesolowski denied any truth to Pitchford's assertions, concluded

Plaintiff claims that it was inappropriate for Pitchford to "knowingly share
false information" about Wesoiowski with the head of FLETC security. Dkt.
No. 71-2 ¶ 25.
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that "this has in fact become a hostile work environment for
me," and asked for "an appropriate resolution." Id.
The April 15 email asserting that Plaintiff was
experiencing a "hostile work environment" says nothing about the
allegedly hostile work environment being related to Plaintiff's
gender, to his gender non-conformity, or to "sex-stereotyping."
Id. 191 109-110. However, Plaintiff contends that Lambraia
clearly understood that the complaint also involved the
harassment about his appearance, especially after there were two
subsequent meetings to address Plaintiff's issues. Id. Thus,
to show that the complaint was gender-based, Plaintiff
apparently relies on an implicit existence of gender
stereotyping from the attacks on his appearance and Smith's
uniform policy. Id. ¶91 111-12. Although the attacks on
Plaintiff's appearance were not in regard to him being
"unmanly," "girly," "effeminate," "inappropriate for a man," or
otherwise exhibiting gender non-conformity, Plaintiff maintains
that the same comments would not have been made if he was a
woman. See id. ¶ 113 (citing Wesolowski Dep., at 199:5 ("I
don't believe that if I had been female I would have been
subjected to the same line of ridiculous questions and comments
from other instructors regarding my appearance.")). Further,
although Plaintiff has not alleged that Pitchford made the
"false rumor" report based upon Plaintiff's gender or a gender
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non-conforming appearance, he contends the false rumor was in
reprisal of protected opposition activities. Id. ¶ 115.
7. Management Inquiry into Wesolowski's Complaints
In response to the email, and after being advised by legal
counsel, Lambraia and Melvin conducted a management inquiry into
Plaintiff's claim of hostile work environment by speaking to
some of the other instructors in the Tactics Branch. Id. 111 2829. The inquiry included interviews of Plaintiff, Crabill,
Pitchford, Edge, Tony Barber, and Jamie Hodge, among others.
See id. ¶ 30. After reviewing the information and being advised
by the Chief Counsel's Office, Lambraia and Melvin found that
Plaintiff's claim of hostile work environment could not be
substantiated. See id. ¶I 29, 31.
On April 30, 2011, Lambraia emailed Plaintiff to notify him
of the inquiry's actions and findings. Id. ¶ 35. The email
states that Melvin and Lambraia had interviewed Plaintiff and
several others, and from these interviews, others said they
"were just trying to help" Plaintiff and were "just kidding"
about Plaintiff being undercover. Id. The email also spoke to
Pitchford's discussion with Edge and said that the scheduling
dispute with Pitchford was a misunderstanding rather than
motivated by malice. See id. ¶ 37. Lambraia wanted to speak to
Plaintiff "to make sure that [they] ha[d] a mutual understanding
and [were] able to continue forward." Id. ¶ 38.
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After the inquiry concluded, Lambraia came to Plaintiff and
asked how he was doing. Wesolowski Dep., at 77:5-9. Plaintiff
told Lambraia that he felt isolated and that his being unwelcome
by others was obvious. Id. at 77:10-13. In response, Lambraia
asked, "To what end are you going to take this? To what end do
you plan on continuing to pursue this?" Id. at 77:14-19.
Wesolowski does not believe Lambraia was genuinely concerned
about him or his well-being. See Dkt. No. 71-2 ¶ 29.
B. First Selection Process
1. General Process
In May, there was an announcement for a Senior Instructor
position ("the May Position") that was open only to FLETC
employees .4 See Dkt. No. 71-3 ¶ 5. On May 16, 2008, Wesolowski
applied for the May Position. Dkt. No. 71-9, at 29. Crabill
applied for the same job. See Dkt. No. 71-10. A certificate of
eligible applicants included Wesolowski, Crabill, and Tony
Barber. Dkt. No. 27 ¶ 32. Wesolowski was interviewed in June
2008.

Id. ¶ 33.

FLETC issues vacancy announcements, which specify the position title, series
and grade, who may apply, and the time period within which applications will
be accepted. Dkt. No. 71-3 ¶ 1. Applications are submitted online through
IJSAJOBS with an online resume. Id. ¶ 2. Applications include a selfassessment by the applicant that results in an automatic ranking, and the
announcement gives notice to the applicant that the ranking may be manually
adjusted if the online resume does not support the self-assessment. Id. ¶ 3.
Certificates of eligible applicants and their applications are sent to
management in alphabetical order, and the certificates specify that
management is allowed the discretion to conduct interviews. Id. ¶ 4.
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Interviews were conducted and applicants were assessed by a
panel that included Lambraia, Adrianna Roddini, 5 and Bill
Mossburg. 6 Id. Melvin was the selecting official to whom the
panel's recommendation was made. See id. For final approval,
the selection was submitted to Dennis Keith, Deputy Assistant
Director of the Office of Training Operations. Dkt. No. 56-4,
Ex. B, at 5.
2. Panel's Reasons for Not Selecting Plaintiff
Crabill was ultimately recommended for the position. Dkt.
No. 71-3 ¶ 7. Lambraia swears that two sets of interviews were
done; the same five questions, taken primarily from the vacancy
announcement, were asked of all applicants; the panel members
took notes on prepared forms; and the panel then engaged in a
discussion based upon interview performance and resumes. Dkt.
No. 71-2 ¶ 43. Further, each panel member viewed Crabill as the
best candidate and agreed that he should be selected. See Id.
¶91 44, 50, 63, 81-82. Crabill was the top candidate even after
Lambrala was told to reconvene, and actually did reconvene, the
panel for additional interviews of people from outside the
branch. Id. ¶ 81.

Lambraia testified that he chose Roddini because of her knowledge, field
experience, and impartiality, and because she did not know the applicants.
Dkt. No. 71-2 ¶ 41. Plaintiff contends this testimony is not credible. Id.
6
Lambraia testified that he chose Mossburg because of his excellent
knowledge and field experience, his role as a Senior Instructor in the branch
that gave him first-hand knowledge of the job requirements, his role as a
Union representative at FLETC, and his impartiality and fairness. Dkt. No.
71-2 ¶ 42. Plaintiff contends this testimony is not credible. Id.
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All panel members and Melvin deny that a candidate's
engagement in EEO activity affected their decision. Although
Lambraia denies being aware that Plaintiff was engaged in EEO
activity or that such activity was considered in making his
decision, Wesolowski disputes this based on Lambraia's
involvement in the management inquiry of Wesolowski's
complaints. Id. ¶ 46. Similarly, although Melvin testified
that he was unaware whether Plaintiff had engaged in EEO
activity and that he did not consider such activity in approving
the panel's decision, he was also involved in the management
inquiry into Wesolowski's complaints. See id.

¶CJJ 88-90. As to

Roddini, she swears that she was unaware of any EEO activity and
denies that such activity impacted her decision. Id. ¶ 60.
Finally, Mossburg admits that Wesolowski advised him that he had
filed a complaint against several coworkers for harassing him
because of his earrings and hair, but was "not aware of what
level of complaint or if he had filed with EEO." Id. ¶ 62.
Instead of citing Wesolowski's asserted EEO activity, the
panel members unanimously justify their decision based on the
candidates' comparative qualifications and Wesolowsk±'s poor
interview performance. More specifically, the panel found
Crabill to have greater experience, a better application, and
better responses to the panel's questions, while Wesolowski was
negative about past jobs and answered one question by saying he
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had already answered it in a previous response. Id. 191 45, 49,
61, 63.
In turn, Plaintiff asserts that Defendant's evidence,
especially Lambraia's testimony, lacks credibility. See, e.g.,
id. ¶ 48. Plaintiff emphasizes his belief that Crabill was
preselected, which is based on a conversation with Mossburg in
which Mossburg said it would be nearly impossible to overcome
Crabill's experience. 7 Id. ¶ 44. Finally, Plaintiff contends
that Lambrala, given his knowledge of Plaintiff's complaints,
tainted the selection process by heading the panel and
developing questions, discussing candidates after each
interview, and reviewing an ordinal ranking of candidates before
recommending a person to Melvin. See Id. ¶ 60. However,
Mossburg testified that he was not directed by Smith, Melvin, or
Lambraia "who the selectee was going to be" and that he did not
feel that Lambraia was directing how the candidates would be
ranked by the panel. Id. ¶ 87.
3. Plaintiff's Interview Inquiry to Mossburg
On September 8, 2008, after Crabill's selection was
announced, Wesolowski asked Mossburg how he performed in the
interview. Dkt. Nos. 71-8, at 2:7-91; 56-10, Ex. H. Mossburg
said that Wesolowski "did fine" and that "it was close." Dkt.
No. 71-8, at 2:12; see also Id. at 6:2-3 ("Mossburg: Both of you
See infra Part I.B.3.
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did very good at interviewing." (capitalization altered)).
Because Crabill had been working with the Active Shooter program
and hiring was being made specifically for that program,
Mossburg said that Crabill would "clearly [be able] to answer
[certain] questions better." 8 Id. at 2:10-19. Further, although
Crabill and Wesolowski had similar experience, "it started to
split a little bit" when Crabill could talk about his federal
experience as a supervisor for ICE. Id. at 3:11-22. Mossburg
went on to say that "[l]t was going to be almost impossible for
[Wesolowski] to get over" Crabill's experience In the Active
Shooter Program, as "it groomed" Crabill for the May Position.
Dkt. Nos. 71-2 ¶ 73; 71-8, at 7:15-21, 8:1-2.
At one point, Mossburg said, "We were actually told then
who the selection was going to be. I kinda of knew who the
selection was going to be. I know I couldn't say anything."
Dkt. No. 71-2 ¶ 69. He went on: "But we could tell then - well,
we were asked simply to rate the applicants based on the
interviews; one, two and three." Id. ¶ 70. As to Roddini,
Mossburg said she was "very professional about it" and twice
said she felt "pretty much the same thing." Id. ¶ 71. Mossburg
stated that the questions asked in the interviews "were right
off the application" quick-hire questions, and that when
8

Later, at Mossburg's deposition, Mossburg said he would not have given much
higher marks based on participation in the Active Shooter Program. Dkt. No.
71-2 ¶ 67.
16

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Lambraia "does these things[,] he does them by the numbers." 9
Id. ¶ 72. Mossburg also said that he and Lambraia were inclined
toward applicant Tony Barber, but Plaintiff and Crabill were
ahead of him before scoring questions. Id. ¶ 74.
C. Aftermath of First Selection Process
1. "Possible Litigation" Email
On September 2, 2008, in an email titled "Possible
Litigation," Melvin memorialized a conversation with Wesolowski
regarding Wesolowski's concern that he did not receive an award
or commendation for an action taken off of FLETC's campus. Id.
¶ 40. The writing did not mention any personnel matters or
disputes. Dkt. No. 71-13.
2. Announcement of Promotion
Crabill was recommended for the position on July 29, and
the selection was approved on August 24, 2008. Dkt. No. 71-3
¶ 7.

On August 4, 2008, Bob Humkey replaced Lambraia as the

Chief of TAB and became Plaintiff's first-line supervisor. Id.
¶ 8.

On September 5, 2008, Humkey sent out an email announcing

Crabill's selection, in which he had not participated. Id. ¶ 9.
It was on this date that Wesolowski says that he first became
aware of the alleged discrimination. Dkt. No. 71-12, at 3.

' Plaintiff challenges that the questions were properly done because Mossburg
agreed that "the announcement (and therefore the questions) were written for
crabill." Dkt. No. 71-2 ¶ 72.
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3. Plaintiff's Inquiry to an EEO Counselor
On September 15, 2008, Wesolowski contacted an EEO
counselor. Id. The EEO counselor's report shows that the
counselor interviewed Humkey on September 30, 2008, for
approximately an hour and a half because Humkey was Plaintiff's
new supervisor. Dkt. No. 71-4 ¶ 16. Despite the fact that
Wesolowski previously told Humkey on September 18, 2008,10 that
he had filed an EEO complaint, Humkey swears that he has only a
vague recollection of the interview. Id. ¶ 17. He says it made
"little to no impression" on him because his role in the matters
was small and the interview was brief. Id. ¶ 18. Humkey swears
that he did not develop any animus toward Plaintiff because of
the EEO interview or any of Plaintiff's EEO activity, nor does
he hold animus toward employees who exercise their rights to
make complaints to management. Id. ¶ 19. on October 15, 2008,
Plaintiff received his notice of right to file a claim. Dkt.
No. 71-12, at 3.
4. Workplace Violence Incident with Pitchford
On September 18, 2008, a confrontation occurred between
Wesolowski and Pitchford, which Pitchford described in a memo
titled "Threat of Bodily Harm/Harassment." Dkt. No. 71-3 ¶ 19.
In the memo, Pitchford reported that, while serving as the
scheduler of instructor class assignments, he observed that
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See infra Part I.C.5.

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neither Plaintiff nor another instructor were present at the
beginning of a class; it appeared that instructor Jamie Hodge
was handling the class alone. Id. ¶ 20. After trying
unsuccessfully to reach the other instructor by phone, Pitchford
spoke with Plaintiff and learned that he was present to teach
the class. Id. ¶ 21. Pitchford then went to fill in as the
third instructor for the class, although Plaintiff denies that
Pitchford had any reason to be in the training area. Id. ¶ 22;
Dkt. No. 71-43 ¶ 19. Hodge told Pitchford that he started the
class by himself, that Plaintiff had gone to get water bottles,
and that it was "no big deal." Dkt. No. 71-3 ¶ 23. Hodge then
relayed Pitchford's questioning to Plaintiff, such as asking
"where [Wesolowski] really [was] th[at] morning." Wesolowski
Dep., at 145:16-21.
During the conversation, Pitchford was present and watching
students train. See Wesolowski Dep., at 146:4-12. Plaintiff
"walked directly up to him" and said, "You got a question. Why
don't you ask me?" Dkt. Nos. 71-17, Ex. 12; 71-3 ¶ 25.
Wesolowski did not come within six inches of Pitchford's face or
act in an aggressive manner by puffing out his chest or balling
up his fists. Dkt. No. 71-43 ¶ 20. They were in front of a
group of students, so Wesolowski was trying to be "low key" and
keep his voice low; he claims to have made no threat of violence
either in words or through his physical presence. Id. ¶ 20.
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Pitchford "flew his arms up in the air and started flailing
around being real animated, jumping around saying what, what."
Wesolowski Dep., at 146:23-25. Plaintiff almost smiled because
Pitchford "looked so goofy doing it." Id. at 147:1-2; Dkt. No.
71-3 ¶ 26. Finally, Plaintiff asked whether Pitchford
understood—then turned around and walked away. Wesolowski Dep.,
at 147:2-3. Afterward, Pitchford was not shaken up or
emotionally harmed, and he was able to proceed with his normal
duties. Dkt. No. 71-3 ¶ 24.
Unbeknownst to Plaintiff at the time, Humkey was behind
Pitchford's inquiries. It was he who noticed that instructors
were missing and sent Pitchford there to account for the absent
instructors. Dkt. No. 71-3 ¶ 36. After checking in, Pitchford
called him and told him Plaintiff was there and that he also was
there "covering" for another instructor. Id. ¶ 37.
Later, Pitchford came to Humkey "physically shaken and
upset," told him what Plaintiff said, and told him that
Plaintiff "entered his 'space' and was standing in a
confrontational manner, as if he [was] going to hit" him." Id.

" Plaintiff denies the substance of Humkey's testimony and asserts that it
conflicts with Pitchford's recollection of events and how he felt afterward.
Dkt. No. 71-3 ¶ 38. At his deposition, Pitchford testified that Plaintiff's
actions were unprofessional and that he did not know whether Plaintiff would
throw a punch (or "what [Wesolowski] was going to do"). Pitchford Dep., at
28-29. Although Humkey asked Pitchford to write a statement and Pitchford
thought that "some type of contact" was necessary for there to be an incident
of workplace violence, it had gone through Pitchford's mind that it might
qualify as such an incident. See id. at 40. Regardless, the slightly
different recollections of Pitchford's emotional state following the incident
AO 72A
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20

¶ 38. According to Humkey, Pitchford also indicated that he
felt physically threatened. According to Pitchford, however, he
"didn't think a whole lot about" the incident, and it was Humkey
who stated that a violence in the workplace report should be
filed.

Id. 19 24, 39.
5. Management Inquiry of Workplace Violence

After talking to Pitchford, Humkey referred him to the
workplace violence directive, spoke with one of FLETC's
attorneys, and then followed the process outlined in the
directive. 12 Id. ¶ 40. Humkey met with Plaintiff on September
18, told him that Pitchford had reported that he felt threatened
in the incident, and explained that he would have to report this
are neither material to nor dispositive of Defendant's motions. See infra
Parts IV.B and IV.C.
12
Each sentence of this paragraph was denied by Plaintiff based on the
workplace violence directive not supporting Humkey's actions and Humkey
having discretion whether to refer the matter to FLETC security. Dkt. No.
71-3 ¶'lI 40-42. In the portion of the record cited by Plaintiff, Humkey
admits that he did not make a determination about whether an act of violence
had taken place, but instead "made an overall assessment that [Pitchford] was
emotionally upset" and "in fear of being physically harmed." Humkey Dep., at
45:14-19, 47:12-16, 49:21-24. Humkey admits that in making an assessment
that there was a threat of violence warranting a report to the Office of
Security, he had discretion, which he used based on the totality of the
circumstances. Id. at 46:11-22. Although Plaintiff contends that Humkey's
report to the Office of Security was unsupported by FLETC's workplace
violence directive, the directive clearly countenances some discretion to
supervisors to respond to reports of perceived threats of violence. See,
e.g., 71-18, Ex. 13, at 382-83 (stating that intimidating behavior, even if
not intended to threaten physical harm, is unacceptable and "will result in
appropriate corrective action"), 386-87 (requiring supervisors to report an
incident to the Chief Security Officer if there has been a threat to do harm,
with the response depending on (1) "the attendant circumstances in which the
threat was made," (2) whether the employee believed the threat may actually
be carried out, (3) whether the threat was taken seriously, and (4) any
conditional nature of the threatening statements) . Clearly, the workplace
violence directive affords some discretion to assess reported threats of
violence, but requires that a report be made to the Chief of Security if
there is a threat of violence, even if a perpetrator is unlikely to act on
it. See id. at 386-87.
AO 72A
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21

as a possible incident of workplace violence. Id. ¶ 41. Humkey
explained to Plaintiff that under a FLETC directive, he had no
choice but to report this so that an inquiry could be made. Id.
¶ 42.
Humkey told Wesolowski that he had to provide a written
account of the incident with Pitchford, and Wesolowski agreed to
provide one because he wanted to make sure that his side was
represented in the report. Id. ¶ 43. Plaintiff then put Humkey
"on notice" that he had "filed an EEO" about a "hostile work
environment" that occurred prior to Humkey's arrival in TAB.
Id. ¶ 44. Plaintiff posited that Pitchford's workplace violence
report was made in retaliation and that "everyone else" was
aware of this. Id. ¶ 45.
Humkey stated that he did not know what Plaintiff was
talking about, that this was the first he had heard of him
having any problems or issues, that he was new to TAB, that he
purposely had not asked about any history of disputes in TAB,
and that everyone had a clean slate with him. Id. ¶ 46. But,
Wesolowski denies that Humkey's statements were true because
Wesolowski believes that it was standard procedure to discuss
these matters in Humkey's briefing when he took over the branch;
further, Wesolowski thinks that knowledge of these incidents is
implied from Humkey telling Plaintiff that he "ha[s] got a clean

AO 72A
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22
22

I

slate with [Humkey]." 3 Id. ¶ 46; Dkt. No. 71-43 9191 35-36.
Humkey stated more than once that he would be happy to work with
Plaintiff to resolve past issues, although Plaintiff denies that
he subsequently did anything to help; in fact, Plaintiff claims
that Humkey inflamed the situation by encouraging Pitchford to
file a violence-in-the-workplace report. Dkt. Nos. 71-3 ¶ 47;
71-43 91 37.
Plaintiff stated more than once that Humkey was not a part
of the past problems, and he specifically declined to disclose
the nature of those problems to Humkey when asked to do so.
Dkt. No. 71-3 ¶ 48. Plaintiff told Humkey that he was not
accusing Humkey of any prior wrongdoing. Id. 91 49. Humkey
stated that he had made no judgment as to Pitchford's workplace
violence claim, that he would have preferred to resolve the
issue without reporting it as the directive required, and that
he would recommend that the issue be resolved at his level.

14

Id. ¶ 50. In regard to Plaintiff's EEO inquiry, Humkey
explained that he knew nothing about it 15 and told Plaintiff to
do what he felt he had to do. Id. ¶ 51.

13

See infra Part I.D.l.
The substance of Humkey's statement was denied by Plaintiff based on the
workplace violence directive not supporting Humkey's actions and Humkey
having discretion whether to refer the matter to FLETC security. Dkt. No.
71-3 11 40-42.
15
Plaintiff denies that Humkey had no knowledge. Dkt. No. 71-3 91 51.
14

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23

6. Resolution of Workplace-Violence Accusation
On September 24, 2008, Humkey and Melvin met with Plaintiff
and notified him that the incident with Pitchford did not rise
to the level of workplace violence. Id. ¶ 53. Humkey
complimented Plaintiff on his work and reiterated that he knew
nothing about Plaintiff's past problems. 16 Id. ¶ 54.
In response, Wesolowski asserted that Pitchford was
invading his privacy by talking to their peers about
Wesolowski's "business" and keeping tabs on his whereabouts.
Id. ¶ 56. Humkey pointed out that Pitchford may on occasion
have to determine where people are as the scheduler of
instructor assignments. Id. Plaintiff protested that Pitchford
had planned the encounter, saying that he had "planned on any
interaction whatsoever [so] that he could [talk] to somebody and
say [that Wesolowski] invaded [his] space and threatened [him]."
Id. ¶ 57. Humkey said he could talk to Pitchford about that.
Id. ¶ 58. Humkey asked whether Plaintiff and Pitchford could
then agree in person to work together professionally, and
Plaintiff responded, "I don't want Bob Pitchford having one
reason to come near me." Id. ¶ 59. Humkey explained again that
as scheduler, Pitchford might need to interact with Wesolowski.
Id. ¶ 60.

16

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I

Plaintiff denies that he had no knowledge. Dkt. No. 71-3 1 54.

24

Melvin asked what Plaintiff saw as a solution, and
Plaintiff said he wanted Pitchford to "go someplace else." Id.
¶ 61. Melvin said he would not transfer one without
transferring the other, and he could not afford to lose two
people. Id. ¶ 62. Melvin explained, "I want to be able to sit
down and go back to my bosses and say hey, we talked to them,
and they said they can be men and be professional and get over
this." Id. ¶ 63. Plaintiff advised that he could work
professionally with Pitchford and that Pitchford could contact
him on his computer or by phone but "[i]f he has something that
he wants to tell me and gets anywhere near [me, then] I really
don't like that. I don't want him near me." Id. ¶ 64.
Later the same day, Humkey and Melvin met with Plaintiff
and Pitchford.' 7 See id. ¶ 69. Melvin stressed the need to work
professionally and granted Plaintiff's request to limit
interaction with Pitchford to emails and telephone.' 8 Id. ¶ 71.
Wesolowski agreed that he could interact professionally with
Pitchford, although he did not want to have to provide leave
slips or correspondence to Pitchford or have any discussions
regarding scheduling. Id. ¶ 72.

17

Plaintiff secretly recorded this meeting. Dkt. No. 71-3 ¶ 69.
Despite this concession, Plaintiff claims that Pitchford continued to
harass him by never scheduling Wesolowski as the class coordinator and making
it difficult for Wesolowski to take a requested leave. Dkt. No. 71-3 ¶ 72;
Dkt No. 71-43 91 38.
18

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I

7. Rods's Interruption of Plaintiff's Class
On September 22, 2008, Senior Instructor Ron Rods
"completely" interrupted Wesolowski's class by telling
Wesolowski, with students present, to "[w]rap [the instruction]
up." Dkt. Nos. 27 ¶ 69; 71-4 11 3, 10. Then, five minutes
later, he returned and said, "All right, that's about enough.
Let's go, let's go, these student[s] got to get trained." Dkt.
No. 71-4 ¶ 3. Rods continued: "{N]obody cares what your
background is. Nobody care[s] who you used to be or who you
think you are . . . ." Id. ¶ 11. Plaintiff asked Rods not to
interrupt him, to which Rods replied, "[W]ell, if you would
stick to the lesson plan and quit[] going outside of the lesson
plan then maybe we'd be on time." Id. ¶ 4. Wesolowski had not
gone outside the lesson plan, nor had he exceeded the allotted
time for his lesson. Id. ¶I 4, 12.
Plaintiff put his lesson on pause, followed Rods into the
street, and stopped Rods at a point near students to seek
clarification for the reason behind Rods's disruption. Id.
¶ 13. Rods criticized the location and topics of Wesolowski's
instruction and reiterated his belief that Wesolowski "need[ed]
to stick to the damn lesson plan." Id. ¶ 5. Students heard
Rods say, "Quit acting like you're something you're not. Nobody
gives a shit about your background. Nobody cares about any of
that. You need to stay on track." Id. ¶ 6. Rods was "very
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26
26

I

loud, very condescending, very [authoritarian], . . . and very
demeaning." Id. ¶ 15. Wesolowski believes that "Rods was just
trying to poison [him] in front of [the students]." Id. ¶ 14.
During Melvin, Humkey, and Plaintiff's September 24 meeting
to discuss the workplace-violence inquiry's resolution,
Plaintiff notified management of the incident. Id. ¶ 1. Humkey
and Melvin asked standard follow-up questions. Id. ¶ 2. Humkey
promised that he would talk to Rods about the incident. Id.
¶ 7. Plaintiff told Melvin and Humkey that he was not seeking
punishment of Rods, but he claims that he wanted management to
address the incident somehow. Id. ¶ 8. Wesolowski said what
Rods did was "way worse than anything that occurred out there
between [him] and Pitchford," and now claims that management's
different responses to the incidents shows that he was treated
more harshly. Id. ¶ 8; Dkt. No. 71-43 ¶ 28.
D. Second Selection Process
1. New Vacancies and Decision to Use New List
On September 9, 2008, FLETC EOD announced two new Senior
Instructor positions ("the September Positions") . Dkt. Nos. 71,
at 16; 71-3 ¶ 90. Applications were open to FLETC staff and
candidates from other statutory appointing authorities. Dkt.
Nos. 71-3 ¶ 91; 56-4, at 1. For this announcement, applications
from Plaintiff, Barber, and Donald Glisson, among others, were
placed on the certificate of eligibility. Dkt. No. 71-3 ¶ 92.
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27

New applicants were solicited despite the fact that the
certificate of eligibles for the May Announcement, originally
scheduled to expire on July 18, was extended to September 18.
Id. ¶ 6.
Humkey testifies that it was his decision to make a new
announcement, and it was his preference to open the position to
applicants from outside FLETC.

Id. ¶ 93. He "wanted a pool of

applicants which reflected current interest in the positions and
[candidates'] current skills and application information." Id.
¶ 94. In deciding to make this announcement, Humkey swears that
he was neither aware of nor influenced by Plaintiff's EEO
activity. Id. ¶ 95.
The same day that Crabill's selection was announced,
Plaintiff approached Humkey in a FLETC parking lot.' 9 Id. ¶ 10.
Plaintiff asked Humkey why he had not been selected over
Crabill. Id. ¶ 11. Humkey explained that he had not
participated in the interviews for that selection; that he had
inquired how "the guys" in TAB had done in the interviews; and
that he was relaying what he was told, which was that the panel
thought Plaintiff "strayed off the questions" and "didn't focus
on the questions and answer them." 20 Id. ¶ 12. Humkey said he

Plaintiff recorded this conversation. Dkt. No. 71-3 ¶ 10.
Plaintiff admits that Humkey made these statements and the following
statements in this paragraph, but denies their accuracy. Dkt. No. 71-3
iIJ 12, 14-15. Plaintiff argues that these statements conflict with
Mossburg's assessment that both Wesolowski and Crabill did well at
19
20

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(Rev.

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28

was giving this advice so that Plaintiff could "do better next
time." Id. ¶ 14. Humkey advised Plaintiff to "tweak his
resume" for the next application; to "listen to the questions,
think about what your answer is, and then start talking"; and to
"be professional" and "be on track" for the next interview. Id.
¶ 15.
When asked by Plaintiff why a new certificate would be used
for the September Positions, Hurnkey said he had decided to
request a new vacancy announcement because he had not
participated in the prior interviews; the focus previously had
been on finding an instructor for a different program; he wanted
a "shot" at figuring out the best candidates; and he wanted to
"interview the people and look at all the applicants." 2 ' See id.
¶ 13. Humkey said that two instructors would be hired from the
new announcement and told Plaintiff that he had "a clean slate"
with him, that he would "shoot straight" with him, and that he
would tell him how he did after the interviews if he wished.
Id. ¶ 16.
The day before talking to Humkey, Plaintiff was told by
Mossburg that for the two promotion positions then open in TAB,
he had suggested to Humkey to use the certificate of eligibles
from the Crabill selection and that, in response, Humkey told

interviewing and were "even on everything" up until the question about the
Active Shooter program. Id.
21
Plaintiff denies that these statements were true. Dkt. No. 71-3 ¶ 13.

29

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I

him, "no, this was just for the one [selection], and this was
before we interviewed anybody." Id. ¶ 17. Mossburg told
Plaintiff that "Humkey is very anal about going by rules." Id.
¶ 18.
2. General Process
On October 3, 2008, Humkey received a certificate of
eligible candidates pursuant to the September Announcement from
HR, which included Plaintiff, Barber, Glisson, and others,
along with the application materials submitted by the
candidates. Id. ¶ 99. Humkey claims that the materials did not
show the scores received by the candidates in the ranking and
that he did not know the scores. Id. ¶ 100.
Interviews for the September Positions were conducted by
Humkey and two branch chiefs outside of TAB, Ronald Spannuth and
John Pecko. Id. ¶ 101. Humkey claims that he asked Spannuth
and Pecko to assist him in interviewing and evaluating the
candidates because they were unlikely to know the candidates. 22
Id. Humkey provided them the application packages and a list of
questions, written by Humkey, to be asked in the interviews.
Id. ¶ 102. The same questions were asked of each candidate,
with the members of the interview panel taking turns asking the

22

In fact, Spannuth and Pecko have denied having any knowledge about
candidates' EEO activity. Dkt. No. 71-3 ¶ 112.
AO 72A
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1

30

questions and writing their notes from the interviews on
prepared forms. Id. ¶ 103.
The panel interviewed Barber, Glisson, Plaintiff, and
others on October 14, 2008. Id. 91 111. After the interviews
and a period for consideration, the panel members met to discuss
their recommendations. Id. ¶ 104. The panel discussed and
evaluated how the various applicants performed and what they
said. See id. ¶ 101. Humkey swears that he did not seek to
influence Spannuth and Pecko about their recommendations and
asked that they speak openly and frankly, but Plaintiff denies
that the selection was free from Humkey's retaliatory influence
or based on legitimate factors. Id. 91 105. Both Spannuth and
Pecko declare that the selection process was proper. Id. ¶ 112.
3. Considerations for Selecting the Top Candidates
Humkey swears that after discussion, the panel members
revealed their first pick, and all chose Barber; they then
revealed their second pick, and all chose Glisson. Id. ¶91 106,
108. Each panel member testifies that they all ranked Plaintiff
as the fourth pick, which Plaintiff finds suspect given that he
was now ranked behind Barber despite being ranked ahead two
months earlier and that Glisson had even not scored high enough
to be eligible for the May Position. Id. 191 107-108, 112.
Further, each panel member testifies that whether any candidate
had made complaints to management and whether any candidate had
AO 72A
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31

engaged in EEO activity were not discussed or considered, nor
would have it mattered if they had known. Id. IT 109-110, 112.
The panel members justified not selecting Plaintiff for one
of the September Positions because of the candidates'
comparative experience, how well questions were answered,
Plaintiff's unprofessional demeanor during the interview, and
their opinion that Plaintiff seemed somewhat stubborn and
narrow-minded about his views. Id. 9191 113-115. For example,
when asked to identify his greatest weakness, Plaintiff said
that he cannot take "no" for an answer. Id.
In regard to Humkey's testimony about the selection process
and factors considered, Plaintiff asserts that Humkey's
explanations are inconsistent. Id. ¶ 115. For example,
although he claimed that Wesolowski did not have the same level
of writing experience and tactical course development as the
selected candidates, he later admitted that Wesolowski's
background had tactical aspects. Id. Further, although
Glisson's law enforcement experience was emphasized, Wesolowski
also had significant law enforcement experience. Id. In
essence, Plaintiff challenges how the panel assessed the
candidates' relative qualifications.
4. Second Selections Finalized
Humkey made his recommendations to Melvin on October 15,
2008, and Melvin made his selections the same day. Id. ¶ 119.
AO 72A
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32

Although Melvin swears to not knowing about or making any
decisions based on any EEO complaint by Plaintiff, Melvin met
with an EEO counselor on October 2—almost two weeks before the
decision. Id. ¶ 120. Melvin swears that he made his decisions
based upon what he believed to be "the observably best qualified
candidates," and on the fact that Plaintiff was not determined
to be one of the two best qualified candidates. Id. ¶ 121. The
selections were approved by Robert E. Ray, Deputy Assistant
Director of the Office of Training Operations, on October 17,
2008. 23 Id. ¶ 122.
E. Aftermath of Second Selection Process
1. Filing of Formal EEO Complaint
On October 27, 2008, with the assistance of counsel,
Plaintiff presented a formal administrative EEO complaint
stating claims of physical-disability discrimination and of
"retaliation/reprisal." Dkt. No. 71-2 ¶ 95. He identified
September 22, 2008, when Rods interrupted class, as being the
date of the most recent discriminatory event. Dkt. No. 71-12,
at 3. The complaint lists several instances showing conspiracy
to attack Wesolowski's character and damage his career. Id. at

23

Ray swears that in his role as a senior management official with oversight
responsibilities as to approximately 450 instructors, he did not personally
examine all applicant packages for senior instructor positions but instead
relied upon his "Division Chiefs and Branch Chiefs to compare the applicants'
strengths and weaknesses." Dkt. No. 71-3 ¶ 123. Further, he did not know
whether Plaintiff or the selectees had engaged in prior EEO activity, and
whether they had done so was not a factor in his actions. Id. ¶ 124.
AO 72A
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6. Initially, this consisted of "attacks on [his] appearance,
hair, [and] earrings" and fabricated comments about his ability
to teach. Id. Wesolowski also cited the issues with Crabill
and Smith's uniform policy. Id. at 6-7.
Almost a month after he filed his original EEO complaint,
on November 28, 2008, Plaintiff made his first explicit
contention that the incidents around April 2008 were based on
gender; before, he had only noted that he was singled out for
having long hair and wearing earrings. Dkt. No. 71-2 ¶ 103.
Plaintiff said that there were no women working in TAB at that
time and that "the harassment [was] motivated by general
hostility to the presence of same-sex competition in the
workplace existing predominantly of men." Id. ¶ 104.
2. Email from Rods
On December 12, 2008, Rods sent an email to Humkey and
Plaintiff, which read in its entirety:
Sorry to throw this at you just coming back, but
I think this is something I need to bring up of
[sic] the sake of the branch. On the morning of
12-11-08, I entered the warehouse to finish
teaching a CBPI class. When I entered the
warehouse I saw Chris W [sic]
Dkt. No. 71-4 ¶ 20. Although the email said nothing about
seeing Plaintiff sitting down and eating candy while conducting

AO 72A
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34

training, Plaintiff later learned that the email was about such
an allegation. 24 Id. ¶ 21; Dkt. No. 71-43 ¶ 29.
3. Plaintiff's Request to be Transferred
Plaintiff went to Melvin about Rods's email

. 25

Dkt. No. 71-

4 ¶ 22. Melvin listened to Plaintiff's explanation that Rods
had sent to Wesolowski an incomplete email that was intended for
Humkey. Id. ¶ 23. Melvin asked if Plaintiff had discussed this
with Rods to find out what it meant; Plaintiff had not. Id.
¶ 24.

Given Rods's previous confrontation with him, Plaintiff

did not think that it would be appropriate to approach Rods
about the email himself. Id.
Plaintiff said that he believed that the email was more
evidence of people constantly watching and following him and
that someone was encouraging them to do it; Plaintiff said he
did not know if this was being caused by Melvin or Humkey. Id.
¶ 25.

Melvin advised Wesolowski that he "didn't appreciate"

Plaintiff's questioning whether Melvin was involved in Rods's
surveillance. Id. ¶ 26. Further, he denied that anyone in
management was having others report to him, and he said that he
did not care what Wesolowski did as long as he was doing his

24

Rods later testified that he saw Wesolowski "slouched down in a rolling
chair with his feet propped out in front of him with a lollypop in his
mouth." Dkt. No. 71-4 9! 38. Students independently brought it to his
attention, so Rods thought it would be better to notify Humkey before it
reached him through student critiques. Id. Wesolowski denies that this
accurately describes the incident or Wesolowski's teaching style. Id.
25
Plaintiff secretly recorded this conversation. Dkt. No. 71-4 ¶ 22.
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35

job. Id. ¶ 27. Melvin said that this was the first time that
it had been brought to his attention that Wesolowski felt like
people were watching him. Id. In response to Wesolowski's
asking whether management was involved in Rods's activity,
Melvin said, "Well, I don't have a problem with anybody asking a
question, but it does kind of—I won't say infuriate

[me]. It

kind of agitates [me] to know that you would think that I would
do that. You've worked for me for what, a year and a half, two
years." Id. ¶ 32. Rods swears that he was never instructed to
watch Plaintiff and report back to Humkey, did not email
Plaintiff to harass him, and did subsequently talk to Humkey
about the email, with Humkey telling him "to personally bring
things to his attention in the future and not to put them in an
email." Id. ¶ 40. Plaintiff notes that Humkey did not file a
violence-in-the-workplace complaint or instruct Wesolowski that
he should do so, as he previously did with Pitchford. Id. ¶ 41.
Plaintiff asked to be transferred back to the Firearms
Division, and Melvin said he would contact people to get
Plaintiff transferred. Id. 91 28. Plaintiff acknowledged that
he would "appreciate it." Id. ¶ 34. Plaintiff claims that in
response to Plaintiff's request to be transferred was the only
time that Melvin was helpful to Wesolowski. Id.
At the end of the conversation, Melvin reiterated that "I
ain't going to be asking somebody to do something behind your
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36

I

back or any of that bull. . . . I have 16 years with the
Government and I ain't never worked that way in my entire life,
and I don't ever intend to be that way." Id. ¶ 35. Although
Wesolowski did not ask for any action but to arrange a transfer,
he expected Melvin to question Rods about the email rather than
direct Plaintiff to confront Rods. Id. ¶ 36. Thereafter,
Wesolowski was transferred to the Driver and Marine Division.
Dkt. No. 27 ¶J 93-94.
II. Procedural Background

Wesolowski first sought EEO counseling on September 14,
2008, and filed his first formal complaint on October 27, 2008.
Id. ¶ 96. The EEOC dismissed his case on July 5, 2011, and took
Final Action on the EEOC's dismissal on October 27, 2011. Id.
On October 3, 2011, Wesolowski filed suit against Defendant
Janet Napolitano, Secretary of the United States Department of
Homeland Security, and filed an amended complaint ("the
Complaint") on April 17, 2012. See Dkt. Nos. 1; 27. In the
Complaint, Plaintiff alleges three counts of reprisal under
Title VII, which are premised on non-selection from his June
interview (Count 1), non-selection from his October interview
(Count 2), and other materially adverse actions (Count 3). Dkt.
No. 27 ¶I 98-127.

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37

On April 24, 2013, Defendant filed three motions for
summary judgment, one for each count of Plaintiff's Complaint.

26

Dkt. Nos. 55; 56; 57. Defendant's motions have been fully
briefed. Dkt. Nos. 55; 56; 57; 62; 63; 64; 71; 75; 76.
III. Legal Standard

Summary judgment is appropriate "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) . A fact is "material" if it "might affect the
outcome of the suit under the governing law." FindWhat Investor
Grp. v. Findwhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A dispute over such a fact is "genuine" if the
"evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Id. In making this determination,
the court is to view all of the evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Johnson v. Booker T.
Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir.
2000)
26

On May 1, 2013, Plaintiff filed a motion to strike Defendant's motions for
summary judgment, arguing that the number of pages in Defendant's motions is
excessive and abusive. Dkt. No. 59. In the alternative, he asked for an
extension of time to respond. Id. Defendant did not oppose the motion for
an extension of time to respond, and Plaintiff filed an opposition to
Defendant's motions on June 7, 2013. Dkt. Nos. 67; 71. The Court has
reviewed the parties' briefs and does not find Defendant's motions to be
excessive. Therefore, Plaintiff's Motion to Strike is DENIED.
Dkt. No. 59.
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38

The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
Id. at 325. If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. Anderson, 477 U.S. at 257.
IV. Discussion

A. Count 1: Retaliation Based on the May Position
1. General Legal Framework Under Opposition Clause
Wesolowski's first count concerns his non-selection for the
May Position, which he alleges was done in violation of Title
Vii's opposition clause. See Dkt. No. 27 191 98-107. The
opposition clause makes it unlawful for an employer to
discriminate against an employee "because he has opposed any
practice made an unlawful employment practice by [Subchapter
VI]." 42 U.S.C. § 2000e-3(a). At the time of the selection for
the First Position, Wesolowski alleges that he had opposed his
colleagues' derogatory comments about his appearance, but had
not yet participated in the EEO process. Thus, this first count
is made only under the opposition clause of § 2000e-3(a) and not
the participation clause, which prohibits discrimination because
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an employee "has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing." See 42 U.S.C. § 2000e-3(a).
To establish his prima fade case for a retaliation claim
under Title VII, "the plaintiff must show that (1) []he engaged
in statutorily protected activity, (2) an adverse employment
action occurred, and (3) the adverse action was causally related
to the plaintiff's protected activities." Little v. United
Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.
1997) . For claims based on the opposition clause, a plaintiff
must also establish "that he had a good faith, reasonable belief
that the employer was engaged in unlawful employment practices."
Id. at 960. This requirement contains both a subjective and
objective component; "[a] plaintiff must not only show that he
subjectively (that is, in good faith) believed that his employer
was engaged in unlawful employment practices, but also that his
belief was objectively reasonable in light of the facts and
record presented." Id. (emphasis in original).
If a plaintiff establishes a prima fade case under the
opposition clause, then an employer may rebut the prima facie
case "by articulating legitimate reasons for the employment
action, whereupon the plaintiff must prove [at trial] by a
preponderance of the evidence that the employer's articulated
reasons constitute a pretext for discrimination." Bigge v.
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Albertsons, Inc., 894 F.2d 1497, 1501 (11th Cir. 1990) (per
curiam) . If a claimant cannot show that protected activity was
a but-for cause of the employer's alleged adverse action, then
the retaliation claim must fail. Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2534 (2013).
2. Prima Facie Case
a. Adverse Employment Action
First, Plaintiff must demonstrate an adverse employment
action. Denial of a promotion constitutes an adverse employment
action. Pennington v. City of Huntsville, 261 F.3d 1262, 1267
(11th Cir. 2001). Therefore, this prong is met.
b. Causation
Second, Plaintiff must show that 'the decision-makers were
aware of the protected conduct, and that the protected activity
and the adverse action were not wholly unrelated." McCann v.
Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008) (quoting Gupta v.
Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000))
(alterations omitted) . When a panel makes a decision, a
plaintiff must show that a majority of the panel was wrongly
motivated. See Thomas v. Richmond Cnty. Sch. Dist., No. CV 107092, 2008 WL 4857521, at *10 (S.D. Ga. Nov. 6, 2008). Further,
on a motion for summary judgment, close "temporal proximity may
be sufficient to show that the protected activity and the
adverse employment action were not wholly unrelated for a prima
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facie case." Gerard v. Bd. of Reqents of State of Ga., 324 F.
App'x 818, 826 (11th Cir. 2009) (per curiam) (quoting McCann,
526 F.3d at 1376) (alterations and internal quotation marks
omitted); but see Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir.
2006) (finding that reliance on a three month proximity between
a protected activity and adverse employment action is
insufficiently proximate for a non-movant to show causation on a
motion for summary judgment).
Here, Plaintiff's interview occurred within two months
after complaining to Lambraia. A majority of the panel,
consisting of Lambraia and Mossburg, knew that Plaintiff had
filed complaints against coworkers for harassing Plaintiff about
his earrings and hair. Dkt. Nos. 71-16, Ex. 11; 71-32, Ex. 27,
at 3. Despite these panel members' testimony that they did not
realize that Plaintiff had engaged in protected activity and did
not consider such activity, the Court will credit the temporal
proximity as establishing sufficient evidence of causation.
c. Statutorily Protected Activity
Despite Plaintiff meeting two parts of his prima facie
case, the Court finds that he has not met his burden to show
that he was engaged in statutorily protected activity. For
opposition clause claims, Plaintiff must show "that [the
plaintiff] had a good faith, reasonable belief that the employer
was engaged in unlawful employment practices." Little, 103 F.3d
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at 960. This requirement contains both a subjective and
objective component: "[a] plaintiff must not only show that he
subjectively (that is, in good faith) believed that his employer
was engaged in unlawful employment practices, but also that his
belief was objectively reasonable in light of the facts and
record presented." Id. (emphasis in original) . "The belief
must also be measured against substantive law at the time of the
offense." Lipphardt v. Durango Steakhouse of Brandon, Inc., 267
F.3d 1183, 1187 (11th Cir. 2001) (citation omitted) . Plaintiff
premises his opposition activity on a sex-based hostile work
environment; therefore, the inquiry "necessarily means that
plaintiff had to have held an objectively reasonable belief that
[the complained of] behavior amounted to illegal sexual
harassment." Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d
1301, 1311-12 (N.D. Ga. 2001).
For a hostile environment claim premised on sexual
harassment, Plaintiff must prove "that the harassment was
sufficiently severe or pervasive to alter the conditions of
[his] employment and create an abusive working environment."
Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th
Cir. 1999) (quoting Watkins v. Bowden, 105 F.3d 1344, 1355 (11th
Cir. 1997) (per curiam)). "In deciding whether a hostile
environment was created factors to consider include [1] the
frequency of the discriminatory conduct, [2] the severity of the
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discriminatory conduct, [3] whether the conduct is threatening
or humiliating, and [4] whether the conduct unreasonably
interferes with the plaintiff's performance at work." Edwards
v. Wallace Cmty. Coil., 49 F.3d 1517, 1521-22 (11th Cir. 1995).
An employer is liable "if it fails to discover a hostile
atmosphere and to take appropriate remedial steps." Id. at
1522. However, "Title VII is not a federal 'civility code,'"
and simple teasing or non-serious isolated incidents do not
amount to discriminatory changes of employment's terms and
conditions. Mendoza v. Borden, Inc., 195 F.3d 1238, 1244-45,
1273 (11th Cir. 1999) (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998)).
For a claim based on gender stereotyping, the stereotyping
must be "stereotyping based on the qualities, behaviors, and
personality features that have been traditionally assigned to
[one's sex]." Mowery v. Escambia Cnty. Utils. Auth., No.
3:04CV382-RS-EMT, 2006 WL 327965, at *6 (N.D. Fla. Feb. 10,
2006). "[A] claim under Title VII could be stated if [the
plaintiff can] show that the harassment he allegedly suffered
was based on his perceived failure to conform to a masculine
gender role." Id.; see also Hudson, 209 F. Supp. 2d at 1315
("Although behavior need not be sexual in nature to support a
claim of hostile work environment based on gender, the behavior
must be based on gender . . . ."). As to claims based on hair
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length, it is objectively unreasonable to believe that a
grooming policy is sex-based discrimination actionable under
Title VII. See Harper v. Blockbuster Entm't Corp., 139 F.3d
1385, 1389 (11th Cir. 1998); Campbell v. Ala. Dep't of Corr.,
No. 2:13-CV-00106-RDP, 2013 WL 2248086, at *2_3 (N.D. Ala. May
20, 2013)
The Court holds that Plaintiff did not have a subjective
and objectively reasonable belief that he was opposing an
unlawful employment practice. First, Plaintiff has not shown
that the complained of incidents resulted from his sex or gender
non-conformity, and also failed to reference protected
characteristics in making complaints. See Birdyshaw v.
Dillard's Inc., 308 F. App'x 431, 436-37 (11th Cir. 2009) (per
curiam) (granting summary judgment against a plaintiff who
failed to reference a protected characteristic when opposing
alleged discrimination); Fonseca v. Comm'r of Soc. Sec., No.
8:11-cv-1800-T-30EAJ, 2013 WL 500150, at *5_6 (M.D. Fla. Feb.
11, 2013) (dismissing a retaliation claim as a matter of law
when the email serving as the basis for the claim did not
mention a protected characteristic under Title VII) . For no
incident did Plaintiff allege that his coworkers perceived him
as being feminine rather than masculine, and the Court can infer
no such perception from the record. Clearly, Pitchford's rumors

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about Plaintiff holding himself out to be an undercover agent 27
had no basis in Plaintiff's gender. The most plausible
instances of harassment involve Crabill's and Smith's criticism
of Plaintiff's appearance. Indeed, sex-stereotyping based on
Plaintiff's hair and earrings may be actionable when motivated
by gender non-conformity, but Plaintiff offers no evidence that
the comments were based on gender non-conformity. To the
contrary, Plaintiff and Defendant agree that to the extent
criticism was voiced about long hair and earrings, it was voiced
because Plaintiff was trying to look like a "bad-ass biker
undercover agent"—not a girl.
In his affidavit, Plaintiff says that the basis for his sex
discrimination complaint was that "[tjhe comments by Tom Crabill
were discriminatory, male against male. Comments about my hair
and earring would not have been made if I were [a] wom[a]n. The
constant reminders of my hair and earring were tantamount to
harassment based on my appearance." Dkt. No. 71-14, Ex. 9, at
9. Plaintiff goes on to assert that "numerous claims to others
and personally to me regarding my physical appearance were made
in an attempt to substantiate the claims that I was undercover,
which eventual[ly] led me into becoming the subject and target

27

In Plaintiff's April 15 email to Lambrala, Plaintiff complained about
Pitchford's spreading rumors and the damage that would be caused to
Plaintiff's reputation—concluding that "[s]uffice [l]t to say this has in
fact become a hostile work environment for (him]. " Dkt. No. 55-12, Ex. H.
Nowhere, however, was there any reference to Plaintiff's gender or sex.
46

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of a FLETC Uniform Regulation Policy revision by Brad Smith to
the Director of FLETC, Connie Patrick." Id. at 18. Further,
according to Crabill, when he asked Plaintiff about his
grooming, he said that Plaintiff "look[ed] like some Billy bad
ass biker undercover agent," not that Plaintiff looked feminine.
Dkt. No. 55-8, at 2. This representation of the conversation is
in accord with Plaintiff's testimony. Wesolowski Dep., at 3544.
Without a discriminatory motive based upon a protected
characteristic, appearance discrimination is not actionable,
especially in regard to neutral characteristics, such as hair.
Further, even if his opposition had a basis in gender nonconformity that was communicated to management, the activity
complained of was neither sufficiently severe nor pervasive to
alter the conditions of employment and thus create an objective
basis to believe he was subject to a hostile work environment.
See Murphy v. City of Aventura, 383 F. App'x 915, 918 (11th Cir.
2010) (per curiam) (affirming summary judgment against a sexual
harassment claim based on nine remarks over three years because
the remarks were not sufficiently severe or pervasive and were
unrelated to a protected characteristic); Hudson, 209 F. Supp.
2d at 1331-32 (finding that conditions of employment were not
altered by rumors and the plaintiff's resulting inquiry into the

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rumors) . Therefore, Plaintiff did not oppose any employment
practice reasonably believed to be unlawful.
However, Plaintiff argues that the first prong is met
because (A) the decision makers perceived that Plaintiff was
engaged in protected EEO activity and (B) "this Court already
held in deciding [D)efendant's prior dispositive motion that
[P]laintiff's opposition was objectively reasonable." Dkt. No.
71, at 24-25. As to the latter argument, the Court notes that
its ruling on Defendant's motion to dismiss involved a different
standard, which accepted all facts in Plaintiff's complaint as
true; on this motion for summary judgment, however, Plaintiff
has failed to produce evidence to substantiate his claim that a
hostile work environment arose from sex stereotyping. See Dkt.
No. 27 ¶ 99. As to Plaintiff's management-perception argument,
even assuming that the Eleventh Circuit would consider such a
theory of retaliation , 28 Defendant has proffered no evidence that
Plaintiff's supervisors actually believed that he was engaged in
protected activity. Although Defendant cites his supervisors'
responses to his complaints as evidence, their actions cannot be
contorted backward as proof of their belief that Plaintiff was
28

The court is aware of no Eleventh Circuit precedent that has either
considered or adopted this theory of retaliation. See Diaz v. Miami Dade
Cnty., No. 09-21856-CIV, 2010 WL 3927751, at *6 (S.D. Fla. Aug. 17, 2010)
(assuming that a perception theory is valid while ultimately concluding there
would be insufficient evidence); Dixon v. Rave Motion Pictures, Inc., No.
2:05CV326-SRW, 2006 WL 3218700, at *2 n.l (M.D. Ala. Nov. 6, 2006) (stating
that as of the date of the court's decision, the theory had not been
recognized)
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engaged in activity. It was standard policy to make an
administrative inquiry following complaints of a hostile work
environment. Dkt. No. 71-27, Ex. 22, at 8. This inquiry was
made, and management consulted proper authorities. Dkt. No. 71,
at 24. No hostile work environment was found. If anything, the
evidence supports only a finding of management disbelief that
Plaintiff was engaged in statutorily protected activity. See
Dkt. No. 71-16 ("The results of our interviews have not
substantiated your claim of a hostile work environment, or
harmful comments that have damaged your reputation.");
Wesolowski Dep., at 255:5-10 ("[Lambraia] told me [in person
that] none of those [instances] constitute a hostile work
environment

. .")

The record indicates that no rational jury could find
Wesolowski's belief that he was opposing unlawful employment
actions to be reasonable in light of substantive law, nor that
his supervisors denied him promotion as retaliation from their
perceptions that he was engaged in protected activity.
3. Legitimate Reasons for Non-promotion
Even assuming that Plaintiff met his prima facie case,
Defendant has provided a legitimate, non-discriminatory reason
for promoting Crabill rather than Wesolowsk±. All panel members
denied that a candidate's engagement in EEO activity affected
their decision. Instead, panel members unanimously justify
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their decision based on the candidates' comparative
qualifications and Wesolowski's poor interview performance.
"Provided that the proffered reason is one that might motivate a
reasonable employer, an employee must meet that reason head on
and rebut it, and the employee cannot succeed by simply
quarreling with the wisdom of that reason." Chapman v. Al
Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). Further, a
"subjective reason can constitute a legally sufficient,
legitimate, nondiscriminatory reason under the McDonnell Douglas
analysis." Id. at 1033. Here, legitimate reasons that
are clear and reasonably specific were articulated for not
promoting Wesolowski based on his demeanor, how he answered
questions, and his comparative qualifications. Therefore,
Defendant has established a legitimate, non-discriminatory
reason for not promoting Plaintiff to the May Position.
4. Pretext and Causation
Plaintiff cannot show that Defendant's asserted legitimate
reasons for not promoting Plaintiff are pretextual and that he
would have been promoted but-for retaliation to his protected
activity. Plaintiff's argument for pretext boils down to
comparing his and Crabill's qualifications, temporal proximity,
and the asserted contradictions between Mossburg's unsworn
conversation and others' sworn testimony. The Court finds these
insufficient to show that "a discriminatory reason more likely
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motivated the employer or . . . that the employer's proffered
explanation is unworthy of credence." Whitby

V.

Sec'y for Dep't

of Homeland Sec., 480 F. App'x 960, 964 (11th Cir. 2012).
As to Plaintiff's arguments based on the applicants'
comparative qualifications, he "must show that the disparities
between [Crabill's] and [Plaintiff's] own qualifications were of
such weight and significance that no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff." Brooks v. Cnty. Comm'n of
Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006) (internal
quotation marks omitted) (quoting Cooper v. S. Co., 390 F.3d
695, 732 (11th Cir. 2004)). Having compared the relative
qualifications, the Court cannot conclude that a rational jury
could find that no reasonable person would choose Crabill over
Wesolowski based on their qualifications. Even if there was a
disparity, this fails to show that the real reason for nonpromotion was his EEO activity. See, e.g., Woolsey v. Town of
Hillsboro Beach, No. 12-16145, 2013 WL 4766872, at *2 (11th Cir.
Sept. 6, 2013) (per curiam) (finding that even if it was shown
that stated reasons for an employment action were false, it did
not show that the defendant illegally discriminated) . Further,
a comparison of Nossburg's testimony and secretly recorded
statements to Wesolowski does not reveal any sort of
"weaknesses, implausibilities, inconsistencies, incoherencies,
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or contradictions in the employer's proffered legitimate reasons
for its action that a reasonable factfinder could find them
unworthy of credence." Combs v. Plantation Patterns, 106 F.3d
1519, 1538 (11th Cir. 1997). Although Mossburg emphasized the
Active Shooter Program more to Plaintiff in person and
Wesolowski's poor performance more later on during the course of
this legal action, this does not give the Court any pause, nor
could it for any rational fact finder, that this testimony is so
inconsistent as to imply that Defendant's stated reasons are
pretexts for retaliation. Rather, the later testimony in a
socially distinct context was an elaboration on the reasons for
not selecting Wesolowski. See Standard v. A.B.E..L. Servs.,
Inc., 161 F.3d 1318, 1332 (11th Cir. 1998) (stating that later
elaboration for why a person was not selected is not sufficient
to show pretext) . Finally, temporal proximity, while sufficient
to show causation in Plaintiff's prima facie case, holds little
weight in establishing pretext. See, e.g., Gerard, 324 F. App'x
at 826 ("[S]ummary judgment is proper where the defendant offers
legitimate reasons and the employee only offers temporal
proximity."). Finally, to the degree that Plaintiff seeks to
assert that Melvin's email titled "Possible Litigation" shows
pretext, the Court finds no basis for this contention because
the email's substance did not deal with any of the incidents
relevant to Plaintiff's claims. At the very least, Plaintiff
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cannot show that retaliation for protected activity was the butfor cause for him not being selected for the May Position.
Therefore, Defendant's Motion for Summary Judgment as to Count 1
is GRANTED.

Dkt. No. 55.

B. Count 2: Retaliation Based on the Seotember Positions
1. General Legal Framework Under Participation Clause
Wesolowski's second count is in regard to his non-selection
for the September Positions, which he alleges was done in
violation of Title Vii's opposition and participation clauses.
See Dkt. No. 27 19 108-120. As with Count 1, the McDonnell
Douglas framework governs Count 2, although the analysis differs
in the type of statutorily protected activity engaged in.
2. Prima Facie Case
a. Statutorily Protected Activity
As to whether there was statutorily protected activity, the
Court uses a different analysis than that under the opposition
clause. In contrast to claims made under the opposition clause,
there is no reasonable good faith belief requirement for claims
under the participation clause. See Wesolowski v. Napolitano
No. CV 211-163, 2013 WL 1286207, at *68 (S.D. Ga. Mar. 25,
2013). instead, Plaintiff's EEO counseling on September 15,
2008, was sufficient to trigger the participation clause's
protection. See Eastland v. Tenn. Valley Auth., 704 F.2d 613,
627 (11th Cir. 1983) (stating that "contacting an EEO officer"
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is protected activity); Hashimoto v. Dalton, 118 F.3d 671, 680
(9th Cir. 1997) ("Under the participation clause . . . there can
be little doubt that [the plaintiff's] visit with the EEO
counselor constituted participation 'in the machinery set up by
Title VII.'"). By contacting an EEO counselor, Plaintiff was
thereafter engaged in statutorily protected activity.
b. Adverse Employment Action
As with Count 1, denial of a promotion constitutes an
adverse employment action. Pennington, 261 F.3d at 1267.
Therefore, this prong is established.
c. Causation
Finally, in regard to causation, the Court finds that
Plaintiff has met his burden, but only barely. Causation
requires that an employer be actually aware of protected conduct
at the time it took an adverse employment action. See Griffin
v. GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir. 1999) (per
curiam). When a group acts as a decision-maker, a majority of
the group must act with improper purpose to trigger liability.
See Rolle v. Worth Cnty. Sch. Dist., 128 F. App'x 731, 733 (11th
Cir. 2005) (per curiam) (affirming summary judgment on a Title
VII retaliation claim because the plaintiff "failed to show that
a majority of the Board was motivated by an improper purpose");
Matthews v. Columbia Cnty., 294 F.3d 1294, 1297 (11th Cir. 2002)
(per curiam) (finding as a matter of law that the plaintiff must
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show that a majority of the board held an unconstitutional
motive to trigger liability under 42 U.S.C. § 1983). Even if
there is evidence of improper motive of one of the group's
members, "an improper motive of one member does not impart
discrimination on the entire [group] ." Rolle, 128 F. App'x at
733.
Humkey was aware of Plaintiff's EEO activity because he was
interviewed on a prior occasion in regard to Plaintiff's
complaint. The two other panel members have declared that they
neither had knowledge of Plaintiff's EEO activity nor were
influenced by anyone at FLETC in arriving at a decision. Rather
than contest their awareness of Plaintiff's EEO claim, Plaintiff
argues that the selection process was not free from Humkey's
retaliatory animus. Dkt. Nos. 71, at 34-35; 71-3 ¶ 112.
According to Defendant, because the panel members discussed the
candidates before finalizing their ranks, Humkey had an
"opportunity to influence the other panel members' opinions of
Mr. Wesolowski's performance, and ultimately, the selection
decision." Dkt. No. 71, at 34-35. Indeed, as Humkey admitted,
there was discussion among panel members about candidates before
finalizing rankings. Although panel members swore that the
process was fair and no one was influenced, and despite the
generality of Wesolowski's speculation that Humkey influenced
the others' decision, the court will err on the side of finding
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that Plaintiff has established causation based on the
possibility that panel members may have been influenced by
Humkey and the temporal proximity of the Plaintiff's nonselection and filing an EEO complaint. See Gerard, 324 F. App'x
at 826. Therefore, Plaintiff has established his prima fade
case.
3. Legitimate, Non-Discriminatory Reason
Despite Plaintiff meeting his burden to establish a prima
facie case of retaliation, Defendant has responded with a
legitimate, non-retaliatory reason for not promoting Wesolowski.
The panel members testified that an applicant's EEO activity was
not discussed or considered in their decision-making. Instead,
the panel members unanimously ranked Plaintiff as not one of the
top two candidates because of comparative experience, his
unprofessional demeanor, and the perception that he was narrowminded. Further, the Court finds Hurnkey's desire to be involved
in making selections for the September Positions to be a
legitimate basis not to use the May Position's list of eligible
applicants, with which he was not involved. Therefore,
Defendant has established a legitimate, non-discriminatory
reason for not promoting Plaintiff to the September Positions.
4. Pretext and Causation
Plaintiff cannot show that Defendant's reasons for not
promoting him to one of the September Positions are pretextual
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and that the but-for cause of his non-selection was retaliation
for his participation in EEO activity. Plaintiff argues that
Defendant's reasons are pretextual given that the EEO complaint
and non-selection were temporally close, Humkey allegedly lied
about Plaintiff's qualifications and performance, the selection
was not insulated from bias, and Plaintiff claims to have
superior qualifications among the candidates. Dkt. No. 71, at
33-40.
The analysis here is akin to the discussion of pretext in
Count 2. Although Plaintiff cites his allegedly superior
qualifications, the Court does not find them to be so one-sided
to conclude that no reasonable person would have chosen others
over Wesolowski. See Brooks, 446 F.3d at 1163. Further, the
Court fails to see how the selection process not being
completely insulated from bias can constitute substantive proof
that the decision was made in retaliation to Plaintiff's
activity. Finally, temporal proximity is insufficient to show
pretext, especially as here when the plaintiff could have
deliberately timed his complaint shortly before an anticipated
employment action. See Gerard, 324 F. App'x at 826; Castillo v.
Roche Labs., Inc., 467 F. App'x 859, 862 (11th Cir. 2012) (per
curiam) (noting that even at the prima facie stage of the
framework, temporal proximity between protected activity and a
contemplated adverse action is insufficient to show causation)
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Therefore, Defendant's Motion for Summary Judgment as to Count 2
is GRANTED.

Dkt. No. 56.

C. Count 3: Other Materially Adverse Actions
1. Parties' Arguments
Plaintiff raised a claim for three incidents allegedly
constituting materially adverse actions: (1) Pitchford's
violence in the workplace report; (2) failure to take action
against Rods for interrupting Plaintiff's teaching; and (3)
failure to take action against Rods for harassing Plaintiff by
"surreptitiously reporting on his activities." Dkt. No. 71, at
41. Defendant argues that these claims must fail because
Plaintiff has not shown that (A) Defendant is directly or
vicariously liable or (B) the acts constitute materially adverse
actions. Dkt. No. 57-1, at 11-22.
In response, Plaintiff posits that the timing of
Pitchford's report three days after Plaintiff's EEO counseling
was meant to dissuade Plaintiff from further activity. Dkt. No.
71, at 41-44. Similarly, Plaintiff asserts that management
responded inadequately to Rods's interrupting a class and more
leniently than to the report of workplace violence. Id. at 4445. Finally, Rods's email, Plaintiff argues, caused him to
transfer because Melvin's inadequate response made him realize
that Melvin had "turned against him too." Id. at 45-46.
Plaintiff relies on these incidents individually or collectively
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as constituting an adverse employment action and does not argue
that they amounted to a hostile work environment.
2. Retaliation-Based Adverse Actions
a. General Legal Framework
To establish his prima facie case for retaliation under
Title VII, "the plaintiff must show that (1) []he engaged in
statutorily protected activity, (2) an adverse employment action
occurred, and (3) the adverse action was causally related to the
plaintiff's protected activities." Little, 103 F.3d at 959.
Indisputably, Plaintiff was engaged in statutorily protected
activity. See Eastland, 704 F.2d at 627 (concluding that
contact with the EEO counselor was itself protected activity)
Nevertheless, even assuming that Plaintiff can establish
causality between the incidents and his EEO activity—a generous
assumption in light of the evidence—the actions are too trivial
to rise above the level of substantiality required to constitute
an adverse employment action, individually or as a whole.
b. Adverse Employment Action
The incidents complained of were too insubstantial to
constitute adverse employment actions, individually or
collectively, that would dissuade a reasonable person from
engaging in EEO activity. To state a retaliation claim, a
plaintiff must show that he suffered an adverse employment
action. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453,
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1454 (11th Cir. 1998) . For a retaliation claim, an action is
considered materially adverse and sufficient to support a claim
if it "might have dissuaded a reasonable worker from making or
supporting a charge of discrimination." Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation and
internal quotation marks omitted); see also Crawford v. Carroll,
529 F.3d 961, 973 (11th Cir. 2008) (finding that the Supreme
Court's decision in Burlington "broadened" the type of employer
conduct actionable in a retaliation claim).
"Although 'Title VII'S protection against retaliatory
discrimination extends to adverse actions which fall short of
ultimate employment decisions,' the plaintiff must still
demonstrate 'some threshold level of substantiality.'" Cotton
v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1233
(11th Cir. 2006) (quoting Wideman, 141 F.3d at 1456). Courts
"look to the 'totality of the alleged reprisals' to determine
whether this burden has been met." Id. (quoting Wideman, 141
F.3d at 1456). The actions are to be considered collectively;
thus, even if an action on its own would not constitute an
adverse employment action, when combined with the "total weight"
of the actions, the plaintiff's burden may be met. See Shannon
v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.
2002). The totality of the weight is judged from the viewpoint

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of a "reasonable person in the circumstances." Cotton, 434 F.3d
at 1234.
First, Pitchford's workplace-violence complaint is not a
materially adverse action. The Court finds no basis for
Plaintiff's unsupported, conclusory assertion that "the
seriousness of the false allegations makes it a materially
adverse action." Dkt. No. 71, at 44. Instead, the complaint
against him does "not constitute an adverse action, because the
complaint ultimately was not sustained" and Wesolowski "suffered
no harm from the filing of the complaint." Entrekin v. City of
Panama City, 376 F. App'x 987, 995 (11th Cir. 2010) (per
curiam); see also Humphrey v. Napolitano, 847 F. Supp. 2d 1349,
1354 (S.D. Fla. 2012) ("Many courts hold that an investigation
that does not lead to any action taken against the employee is
not an adverse employment action sufficient to state a claim for
disparate treatment."). Although Plaintiff admits that the
report was found false, he complains that Humkey did not take
corrective action against Pitchford. Dkt. No. 71, at 43.
However, "[mjerely because the Plaintiff may feel that other
measures may have been appropriate does not mean that the
employer's remedial actions were inadequate." McDaniel v.
Merlin Corp., No. CIV.A.1:01CV2992JEC, 2003 WL 21685622, at *11
(N.D. Ga. June 26, 2003). Instead, in the context of a hostile
work environment, the Eleventh Circuit has "held that warnings
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and counseling of the harasser are enough where the allegations
are substantiated." Baldwin v. Blue Cross/Blue Shield of Ala.,
480 F.3d 1287, 1305 (11th Cir. 2007) . Further, Plaintiff cannot
rely on failure to take action against another employee to show
that he was subject to an adverse employment action. Entrekin,
376 F. App'x at 995. Therefore, Plaintiff's complaint based on
Pitchford's report of workplace violence is without merit.
Second, the alleged failure to discipline Rods also does
not constitute an adverse employment action. In support of his
contention that management's comparative treatment of incidents
is evidence of reprisal, Plaintiff cites Burke-Fowler v. Orange
County, 447 F.3d 1319 (11th Cir. 2006) (per curiam). However,
Burke focused on the plaintiff's dismissal for conduct similar
to other conduct for which another official was not dismissed,
not a comparative inquiry into management remedial actions for
which no one suffered an adverse employment action. See id. at
1323-26. As with management's response to Pitchford's complaint
of workplace violence, failure to take action against other
individuals does not constitute an adverse employment action
because Wesolowski suffered no harm. Entrekin, 376 F. App'x at
995. It is not apparent what greater remedial action Plaintiff
sought from management given the fact that he had told Melvin
and Humkey that he was not seeking punishment of Rods. Further,
as to the Rods action itself, assuming liability could be
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imposed for it directly, the Court finds that it was
insubstantial—a "petty slight" or "minor annoyance" that would
not deter a reasonable person from pursuing EEO activity.
White, 548 U.S. at 68.
Finally, Plaintiff's similar claim based on failure to take
action against Rods for sending an incomplete email must fail.
As with the other claims, Plaintiff cannot rely on failure to
take action against another employee as constituting an adverse
employment action. Entrekin, 376 F. App'x at 995. Again, as to
the email itself, it is hard to discern how the email would
cause a reasonable employee not to file an EEO complaint. It
appears that Plaintiff complains that the incident, as a
culmination of incidents over the preceding three months, forced
Plaintiff to leave the Tactics Branch. Dkt. No. 71, at 45.
Thus, Plaintiff is arguing that he was constructively
discharged. Under such a theory, Plaintiff's claim fails,
because a "constructive discharge will generally not be found if
the employer is not given sufficient time to remedy the
situation." Van Der Meulen v. Brinker Int'l, 153 F. App'x 649,
656 (11th dr. 2005) (per curiam) (quoting Kilgore v. Thompson &
Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir. 1996)). Within
the same conversation notifying Melvin of Rods's email,
Wesolowski asked to be transferred. Therefore, management's

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failure to take further action does not constitute an adverse
employment action.
Even when viewed collectively, the incidents do not
constitute an adverse employment action because the collective
harm suffered from these events is trivial. Therefore, for the
foregoing reasons, Plaintiff has not established a prima fade
case for retaliation. Defendant's Motion for Summary Judgment
as to Count 3 is GRANTED.

Dkt. No. 57.

V. Conclusion

For the aforementioned reasons, Plaintiff's Motion to
Strike is DENIED, Dkt. No. 59, and Defendant's Motions for
Summary Judgment are GRANTED.

Dkt. Nos. 55; 56; 57. The Clerk

of Court is instructed to enter an appropriate judgment and
close the case.
SO ORDERED, this 27TH day of February, 2014.

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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