Kukinski v. United States Department of Treasury et al
Filing
129
MEMORANDUM OPINION AND ORDER by Judge Rebecca Grady Jennings - Defendant's Motion for Summary Judgment [DE 108 ] is GRANTED. This is a final and appealable order. cc: Counsel of Record (KD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
ANTHONY A. KUKLINSKI
Plaintiff
v.
Civil Action No. 3:14-cv-00843-RGJ-CHL
STEVEN TERNER MNUCHIN, United
States Secretary of the Treasury
Defendant
* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff Anthony Kuklinski brings this action against Defendant Steven Mnuchin, in his
capacity as United States Secretary of the Treasury (“Secretary”),1 alleging that Defendant violated
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), when the Secretary retaliated
against Kuklinski for opposing workplace sexual harassment. [DE 83, Am. Compl. at ¶¶ 43–49].
Kuklinski further asserts a breach-of-contract claim arising from Defendant’s alleged breach of a
mediation agreement. Id. at ¶¶ 66–71. Defendant now moves for summary judgment. [DE 108].
The matter is fully briefed and ripe for judgment. [See DE 118, Response; DE 122, Reply]. For
the reasons below, the Court GRANTS Defendant’s Motion.
I.
A.
BACKGROUND
Factual Background
From 2004 until 2011, Kuklinski worked as a supervisory police inspector at the United
States Bullion Depository (the “Depository”) in Fort Knox, Kentucky. [DE 117-3, Anthony
1
This action was originally filed in 2013 against the United States Department of the Treasury and thenSecretary Jacob J. Lew in the United States District Court for the District of Columbia. [See DE 1]. On
November 18, 2014, the D.C. District Court dismissed the Department of the Treasury as a defendant and
transferred the action to this Court. [DE 27; DE 28]. Steven T. Mnuchin became Secretary on February
13, 2017. Pursuant to Federal Rule of Civil Procedure 25(d), Steven Mnuchin is thus substituted as
Defendant in this action. However, because Kuklinski brings this action against the Secretary in his official
capacity, this Order will reference the position of Secretary rather than the Secretary as an individual.
1
Kuklinski Dep. 61:13–14, Nov. 17, 2016; DE 117-5, Ex. 7 at 1374]. In that role, Kuklinski
supervised three lieutenants, six sergeants, and about 48 other employees. [DE 108-13, Anthony
Kuklinski Dep. 34:20-23, Nov. 17, 2016; DE 117 at 1275].
When Kuklinski was a supervisor, one of Kuklinski’s subordinates—referred to in the
record as “Harassed Officer”—was repeatedly harassed by another subordinate, referred to as
“Harassing Officer.” [DE 117 at 1275]. Harassing Officer allegedly spied on Harassed Officer at
her home and told her that he dreamt he was suffocating her. Id. Harassing Officer also
purportedly used the Depository’s surveillance equipment to spy on Harassed Officer at work. Id.
at 1276.
Harassed Officer eventually discovered that Harassing Officer was using the Depository’s
surveillance equipment to spy on her, prompting her to report the harassment. Id. Harassed Officer
first informed her superior (and Kuklinski’s subordinate) Lieutenant Lee Booth of the situation.
Id. Though Booth confirmed Harassing Officer’s misconduct by reviewing video footage recorded
on the Depository’s camera, Booth declined to discipline Harassing Officer. Id. A few months
later, Harassing Officer spied on Harassed Officer again. Id. When Harassed Officer learned of
Harassing Officer’s continued harassment, she reported it to Kuklinski. Id. Booth confirmed
Harassing Officer’s misconduct and later completed an incident report documenting the events.
Id. at 1277.
With a record of Harassing Officer’s improper surveillance on file, upper management—
specifically, the Depository’s legal counsel, Irwin Ansher—investigated Harassed Officer’s claims
of sexual harassment. [DE 117-20, Ex. 22 at 1712]. Upper management selected Inspector John
Seiple to conduct the investigation. Id.
2
At the close of the investigation, Kuklinski reviewed Seiple’s findings and determined that
Harassing Officer should be removed, and later drafted a proposal to that effect. [DE 117-1, Ex.
2 at 1298, 1314].
The proposal was circulated between human-resources workers, the
Depository’s attorneys, and other Depository officials. Id. at 1311–14.
Upper management rejected Kuklinski’s proposal to remove Harassing Officer and
decided instead to either reprimand or suspend Harassing Officer. [DE 117 at 1280]. When
Kuklinski insisted that removal was the only discipline that would end Harassing Officer’s
misconduct, upper management removed Kuklinski as the officer in charge of disciplining
Harassing Officer. Id. Kuklinski’s removal came shortly after Trent Keltner, president of the
Officers’ union, informed Chief of U.S. Mint Police, Dennis O’Connor, and the Depository’s Field
Chief, Bert Barnes, that Keltner believed Kuklinski was biased against Harassing Officer because
Kuklinski had an inappropriate personal relationship with Harassed Officer. Id. at 1280, 1282.
Meanwhile, Harassing Officer submitted a rebuttal to his proposed discipline. Id. at 1280.
He claimed that Harassed Officer perjured herself, that management conducted an unauthorized
investigation into Harassing Officer’s purported misconduct, that there was a hostile work
environment at the Depository, and that Harassed Officer had an improper relationship with
Kuklinski. Id. Ultimately, Deputy Chief Bill Bailey issued Harassing Officer a letter of reprimand.
[DE 117-8, Ex. 10 at 1414].
Harassing Officer continued to harass Harassed Officer, so Kuklinski advised Harassed
Officer that she should contact the Equal Employment Office (“EEO”) for guidance.2 [DE 18013, Anthony Kuklinski Dep. 131:21–132:1, Nov. 17, 2016]. Harassed Officer contacted an EEO
2
To help Harassed Officer pursue her claims, Kuklinski provided a declaration to the EEO. [DE 117 at
1285]. Otherwise, Kuklinski was not involved in Harassing Officer’s harassment suit.
3
counselor and filed a charge against the Depository on September 3, 2010. [DE 117 at 1282].
Harassed Officer subsequently settled her claims. Id. at 1288.
While Harassed Officer’s claims were pending, the Depository contracted Carol Nichols,
an independent investigator, to conduct two investigations.
Kuklinski claims that both
investigations targeted him. Nichols’s first investigation began on July 27, 2010 and focused on
assessing Harassed Officer’s allegations and Harassing Officer’s rebuttal allegations, including the
rebuttal allegation that Kuklinski had an inappropriate relationship with Harassed Officer.3 [DE
117-8 at 1407–37]. Nichols’s second investigation, initiated on September 23, 2010, focused on
uncovering possible management misconduct. [DE 117-12, Ex. 14 at 1465–66]. O’Connor’s
memorandum appointing Nichols to the investigation stated that O’Connor expected Nichols to
investigate a wide range of perceived management misconduct, including misconduct unrelated to
Kuklinski or his involvement in Harassed Officer’s EEO complaint. Id.
A few months later, Nichols issued the results of her investigations. While Nichols found
that no inappropriate relationship existed between Kuklinski and Harassed Officer, [DE 108-16,
Def.’s Mem. Supp. Mot. Summ. J. Ex. 17, 1026–33], she concluded that management
misconduct—including misconduct committed by Kuklinski—was pervasive at the Depository.
[DE 108-12, Ex. 12 at 903–74]. Nichols also concluded that Kuklinski’s aggressive management
style contributed to the poor morale and performance of his subordinates. Id. at 964–67.
Based on Nichols’s negative findings regarding Kuklinski’s management style, Field Chief
Connie Stringer4 spoke with Kuklinski about relieving him of his supervisory duties “pending a
3
While both parties appear to agree that Nichols determined that the allegation that Kuklinski had an
inappropriate relationship with Harassing Officer was false, neither party has submitted Nichols’s findings
or any other evidence supporting that position.
Stringer replaced Barnes as Field Chief during Nichols’s investigation. [DE 108-8, Connie Stringer Dep.
26:25–27:13, Nov. 16, 2016].
4
4
management inquiry.” [DE 117 at 1284]. The record is unclear about whether Stringer suspended
Kuklinski’s supervisor duties; but even if she did, she decided to allow Kuklinski to resume
performing his supervisory duties on February 25, 2011, about one month after she originally met
with him about revoking his supervisory duties. Id. at 1285.
On April 5, 2011, upper management began to investigate Kuklinski’s responses to his
security clearance questionnaire, which ultimately caused the suspension of his clearance.5 [DE
108-1 at 806]. The investigation concerned whether Kuklinski failed to file federal income tax
returns in 2008 and 2009, and whether he failed to disclose outside employment activities. [DE
108-13, Anthony Kuklinski Dep. 114:19–23, Nov. 17, 2016; DE 117-3, Anthony Kuklinski Dep.
159:15–20, Nov. 17, 2016]. Initially, at O’Connor’s request, the Office of the Inspector General
(“OIG”) investigated Kuklinski’s questionnaire. The OIG concluded its investigation on May 17,
2011 and found evidence that substantiated the allegations against Kuklinski. [DE 117-11, Ex. 13
at 1457–63]. Bailey then directed Commander Paul Constable to review the OIG’s findings. [DE
117 at 1286]. Constable recommended that Stringer review the report and determine whether
Kuklinski’s security clearance should be suspended. Id. at 1287. Months later, management
informed Kuklinski that his security clearance was suspended. [DE 117-5, Ex. 7].
While Kuklinski’s security clearance was under review, he was relieved of his law
enforcement authority and relegated to working in a maintenance building. [DE 117-6, Bill Bailey
Dep. 51:7–52:4, Dec. 6, 2016]. Kuklinski could not enter the building he usually worked in while
his clearance was in jeopardy. Id. at 52:5–9.
5
The five-year security clearance questionnaire asks questions that the Office of Personnel Management
uses to determine whether an employee can maintain his or her security clearance at the Depository. [DE
108-13, Anthony Kuklinski Dep. 114:2–18, Nov. 17, 2016]. Kuklinski completed the questionnaire in
November 2010. Id. at 114:2–4.
5
Two important events occurred on March 1, 2012. First, management informed Kuklinski
that his security clearance was reinstated but that he still could not enter the main security building
without Stringer’s permission. [DE 117-5, Ex. 7 at 1375]. Bailey explained that Kuklinski
remained relegated to the maintenance building because of his aggressive management style. [DE
117-6, Bill Bailey Dep. 48:5–9, Dec. 6, 2016]. Second, management notified Kuklinski that he
was being assigned to the Investigations and Intelligence Branch, Operations and Training
Division, at the United States Mint Headquarters in Washington, D.C. [DE 117-5, Ex. 7 at 1376–
77]. Management explained that Kuklinski was reassigned due to his “history of intimidating and
aggressive behavior towards his subordinates.” [DE 108-28, Ex. 29].
Based on these events, Kuklinski contacted an EEO counselor on March 21, 2012. [DE
117 at 1291]. He alleged that management relegated him to the maintenance building and
reassigned him to work in Washington, D.C. because of his involvement in Harassed Officer’s
harassment claim. Id. at 1286, 1290.
Kuklinski attempted to settle his EEO charge through mediation. Id. at 1292. During
Kuklinski’s first mediation, held May 1, 2012, Kuklinski’s counsel produced photographs of
Kuklinski’s workplace and asserted that an employee who is subjected to a demeaning work
environment can be entitled to monetary damages.6 Id. Because federal regulations prohibit
photography at the Depository, Stringer drafted an incident report documenting Kuklinski’s
misconduct and opened an administrative investigation into the matter.7 [DE 117-21, Ex. 23]. At
some point during settlement discussions, Kuklinski provided his medical records to Ansher who,
6
Kuklinski claims in his statement of facts that, after the first mediation, management forced him to work
in the “paint room” of the maintenance building. [DE 117 at 1292]. Kuklinski, however, fails to direct the
Court to any evidence proving that the relocation occurred.
7
Kuklinski was issued a letter of reprimand. [DE 117 at 1290].
6
in turn, submitted them to a medical expert, Dr. Neil Presant. [DE 117 at 1293]. Ansher also
provided Dr. Presant with a copy of Kuklinski’s job description and asked Dr. Presant to conduct
a fitness-for-duty assessment. [DE 117-4, Ex. 6 at 1345–1364]. After reviewing Kuklinski’s
records, Dr. Presant issued a report concluding that Kuklinski was physically and mentally unfit
to work as a police officer. [DE 117-4 at 1366]. Upon receiving that report, Ansher—despite
Kuklinski’s counsel’s insistence that it remain confidential—submitted it to Bailey and Stringer.
Id. at 1365–66. Stringer assessed the report and informed Kuklinski that he would need to
complete a fitness-for-duty exam.8 Id. at 1368–69.
B.
Procedural History
Kuklinski initiated this action on September 27, 2013, and later submitted an Amended
Complaint on January 24, 2017. [DE 83]. Considering the Amended Complaint and Kuklinski’s
other filings collectively, Kuklinski’s retaliation claims are:
•
Defendant revoked Kuklinski’s authority to discipline Harassing Officer on March
16, 2010 because, on February 1, 2010, he proposed that Harassing Officer be
removed from his position at the Depository.
•
Because Kuklinski informed Harassed Officer on June 7, 2010 that she could seek
guidance from the EEO regarding Harassing Officer’s misconduct, Defendant:
o Contracted Nichols to initiate an administrative investigation into Harassed
Officer’s allegations and Harassing Officer’s rebuttal allegations on July 27,
2010;
o Contracted Nichols to initiate an administrative investigation into possible
management misconduct at the Depository on September 23, 2010;
o Stripped Kuklinski of his supervisory duties in January 2011;
o Forced Kuklinski to perform administrative tasks and to work in the break
room of the maintenance building in March 2011;
o Reassigned Kuklinski to a position in Washington, D.C. in March 2011.
•
8
Because Kuklinski filed a charge with the EEO on March 21, 2012, Defendant:
The exam was cancelled. [DE 117-1 at 1297, 1316].
7
o Filed an incident report in May 2012 and initiated an investigation in July
2012 regarding Kuklinski’s alleged unlawful photograph at the Depository;
o Ordered Kuklinski to undergo a fitness for duty exam in September 2013.
Id. at ¶¶ 7–49. Kuklinski also claims that Defendant breached a contract it entered into with
Kuklinski when Defendant failed to keep Kuklinski’s medical records confidential. Id. at ¶¶ 66–
71. Kuklinski seeks compensatory and punitive damages, along with other types of relief, as a
remedy for Defendant’s alleged misconduct.9 Id. at ¶¶ a–i.
The parties engaged in discovery, and Defendant moved to dismiss Kuklinski’s retaliation
claim insofar as it challenged Defendant’s investigation into and subsequent suspension of
Kuklinski’s security clearance. [DE 38-1, Def.’s Mem. Supp. Partial Mot. Dismiss]. In its motion,
Defendant asserted that challenges to an executive agency’s decision to investigate, suspend, or
revoke a federal employee’s security clearance are non-justiciable because, under United States
Supreme Court precedent, such decisions are within the broad discretion of the executive branch.
Id. at 268 (quoting Dep’t of the Navy v. Egan, 484 U.S. 518, 527–29 (1988)).
On August 21, 2015, this Court entered a Memorandum Opinion granting Defendant’s
Partial Motion to Dismiss. [DE 43, Mem. Op.]. Relying on Egan, this Court held: “To the extent
Kuklinski’s Title VII claims contest the merits of the security-clearance investigation and
suspension, the Court is without jurisdiction to hear the dispute.” Id. at 315.
Discovery has closed, and Defendant now moves for summary judgment on Kuklinski’s
remaining Title VII claims and as his claims for constructive discharge and breach of contract.
[DE 108, Def.’s Mot. Summ. J.]. Kuklinski responded [DE 118], and Defendant replied [DE 122].
9
The Amended Complaint also alleged claims for constructive discharge and intentional infliction of
emotional distress, but Kuklinski later withdrew those claims. [DE 83 at ¶¶ 50–57, 58–65; DE 79, Pl.’s
Reply Def.’s Opp’n Pl.’s Mot. Am. Compl. at 520].
8
II.
LEGAL STANDARD
Summary judgment is required when “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). The moving
party bears the burden of specifying the basis for its motion and showing the lack of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party
satisfies this burden, the nonmoving party must produce specific facts demonstrating a material
issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “Factual
differences are not considered material unless the differences are such that a reasonable jury could
find for the party contesting the summary judgment motion.” Bell v. City of E. Cleveland, 125
F.3d 855 (6th Cir. 1997) (citing Liberty Lobby, 477 U.S. at 252).
A district court considering a motion for summary judgment may not weigh evidence or
make credibility determinations. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir.
2008). The Court must view the evidence and draw all reasonable inferences in a light most
favorable to the nonmoving party. Williams v. Int’l Paper Co., 227 F.3d 706, 710 (6th Cir. 2000).
But the nonmoving party must do more than show some “metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also
Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). Instead, the nonmoving
party must present specific facts showing that a genuine factual issue exists by “citing to particular
parts of materials in the record” or by “showing that the materials cited do not establish the
absence . . . of a genuine dispute[.]” Shreve v. Franklin Cty., Ohio, 743 F.3d 126, 136 (6th Cir.
2014). “The mere existence of a scintilla of evidence in support of the [nonmoving party’s]
position will be insufficient; there must be evidence on which the jury could reasonably find for
the [nonmoving party].” Liberty Lobby, 477 U.S. at 252.
9
III.
A.
DISCUSSION
Title VII Retaliation
Kuklinski has submitted no direct evidence substantiating his claim for retaliation, so the
Court will consider the circumstantial evidence he has presented. To survive summary judgment
on a claim of Title VII retaliation based on circumstantial evidence, a plaintiff must demonstrate
(1) that he engaged in a protected activity, (2) his employer knew of that activity, (3) the employer
then took an adverse employment action, and (4) a causal connection exists between the protected
activity and the adverse action. Morris v. Oldham Cty. Fiscal Court, 201 F.3d 784, 792 (6th Cir.
2000). As the Sixth Circuit has held:
If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the
defendant to establish a legitimate, nondiscriminatory reason for the adverse
employment action. The plaintiff, of course, bears the ultimate burden of proving
that the proffered reason for the action was merely a pretext for discrimination.
Penny v. UPS, 128 F.3d 408, 417 (6th Cir. 1997).
Defendant concedes that Kuklinski has established the first and second elements of his
prima facie case. [DE 108-1 at 819]. As a result, the Court’s analysis of Kuklinski’s prima facie
case is limited to the third and fourth elements. As to the third element, the Sixth Circuit has held
that in the context of a Title VII retaliation claim, an employer commits an “adverse employment
action” when it takes an action that would “dissuade[] a reasonable worker from making or
supporting a charge of discrimination.” Garner v. Cuyahoga Cty. Juvenile Court, 554 F.3d 624,
639 (6th Cir. 2009) (citation omitted). Other courts have suggested that actions like removing an
employee from a project committee or subjecting the employee to “gratuitous investigations” can
constitute adverse actions in the context of a Title VII retaliation claim. See Bridgewater v.
Michigan Gaming Control Bd., 282 F. Supp. 3d 985, 1000–01 (E.D. Mich. 2017) (citing A.C. ex
rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 698 (6th Cir. 2013)).
10
To satisfy the fourth element of a retaliation claim, a plaintiff must establish causation
between the protected activity and adverse employment action by “produc[ing] sufficient evidence
from which an inference could be drawn that the adverse action would not have been taken had
the plaintiff not filed a discrimination action.” Nguyen v. City of Cleveland, 229 F.3d 559, 563
(6th Cir. 2000) (citations omitted). “[E]vidence . . . that the adverse action was taken shortly after
the plaintiff’s exercise of protected rights is relevant to causation.” Id. (citation omitted).
While the Sixth Circuit “has not adopted a uniform approach on whether causal connection
may be established solely on the basis of temporal proximity,” recent cases suggest that “temporal
proximity alone is sufficient [to establish a causal connection] where the temporal proximity is
significant.” Brown v. Humana Ins. Co., 942 F. Supp. 2d 723, 736 (W.D. Ky. 2013) (citations
omitted). “Cases that have permitted a prima facie case to be made based on the proximity of time
have all been short periods of time, usually less than six months.” Nguyen, 229 F.3d at 567; see
also Brown, 942 F. Supp. 2d at 736 (three months was close enough temporal proximity to support
an inference of causation); McNett v. Hardin Cmty. Fed. Credit Union, 118 F. App’x 960, 965 (6th
Cir. 2004) (thirteen days supported an inference of causation). However, a six-month separation
between the protected activity and the adverse action does not necessarily establish a causal
connection. For example, in Nguyen, the Court noted that “the fact of temporal proximity alone
was not particularly compelling, because the plaintiff’s retaliation case was otherwise weak, and
there was substantial evidence supporting the plaintiff’s version of the events.” 229 F.3d at 567;
see also Clay v. United Parcel Service, Inc., 501 F.3d 695 (6th Cir. 2007) (six months was
insufficient to establish causal connection); Cooper v. City of North Olmsted, 795 F.2d 1265, 1272
(6th Cir. 1986) (four months could not establish a causal connection).
11
There is thus no bright-line rule on when temporal proximity alone is enough to support an
inference of causation. Generally, if “an adverse employment action occurs very close in time
after an employer learns of a protected activity, such temporal proximity between the events is
significant enough to constitute evidence of a casual connection for the purposes of satisfying a
prima facie case of retaliation.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.
2008). “But where some time elapses between when the employer learns of a protected activity
and the subsequent adverse employment action, the employee must couple temporal proximity
with other evidence of retaliatory conduct to establish causality.” Id. The “burden of establishing
a prima facie case in a retaliation action is not onerous,” but is a burden nonetheless. Nguyen, 229
F.3d at 564 (citation omitted).
Because Kuklinski asserts that he engaged in three separate protected activities and that
such activities produced eight instances of retaliation, the Court will address each allegation
separately.
1.
Removal from Position of Disciplining Officer
Kuklinski first complains that Defendant retaliated against him by revoking his authority
to discipline Harassing Officer. Kuklinski argues that if he not proposed terminating Harassing
Officer, Kuklinski would not have been removed from his position. [DE 118 at 1742–43].
The parties do not dispute that Defendant removed Kuklinski as disciplining officer, and
at least one sister court has reasoned that permanently removing an employee from a committee
constitutes an adverse action for a Title VII retaliation claim. See Bridgewater, 282 F. Supp. 3d
at 1001. Compared with Bridgewater, the actions taken in this case—i.e., Defendant’s decision to
remove Kuklinski as disciplining officer—are both more severe and directly related to the claims
at issue. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006) (“[T]he EEOC
12
has consistently found retaliatory work assignments to be a classic and widely recognized example
of forbidden retaliation.” (internal quotation marks and citation omitted)); Dendinger v. Ohio, 207
F. App’x 521, 527 n.6 (6th Cir. 2006) (noting the broad definition of “adverse employment action”
after Burlington N. & Santa Fe Ry. Co.). Kuklinski’s permanent removal as disciplining officer
was thus clearly an adverse action for purposes of Title VII.
The undisputed facts show that Kuklinski proposed terminating Harassing Officer on
February 1, 2010 and was removed from his position of disciplining officer approximately oneand-a-half months later. [DE 117 at 1278–80]. Thus, the temporal proximity between the alleged
protected activity and adverse action satisfies the causation element of Kuklinski’s prima facie
case. See Brown, 942 F. Supp. 2d at 736; see also Singfield v. Akron Metro. Hous. Auth., 389 F.3d
555, 563 (6th Cir. 2004) (holding that temporal proximity satisfied the causation requirement when
adverse action occurred “just over three months” after protected activity).
As a result, the Court must examine (1) whether Defendant has articulated a legitimate,
nondiscriminatory reason for removing Kuklinski as disciplining officer, and, (2) if so, whether
Kuklinski has established that Defendant’s reason is pretext for discrimination. Penny, 128 F.3d
at 417. Defendant argues—and the record reflects—that Kuklinski was removed as disciplining
officer because of allegations that Kuklinski had an inappropriate relationship with Harassed
Officer and that he would therefore be biased against Harassing Officer. [DE 117 at 1280].
Accordingly, Defendant has met its burden, and the issue becomes whether Kuklinski has shown
that Defendant’s proffered reason: “(1) has no basis in fact, (2) did not actually motivate the
defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003) (citation omitted).
Kuklinski has offered no argument or evidence to rebut Defendant’s legitimate reason for its
13
action; instead, Kuklinski generally argues that the evidence used to establish causation—i.e.,
temporal proximity—can prove pretext. [DE 118 at 1745]. He is mistaken. Indeed, “the law in
this circuit is clear that temporal proximity cannot be the sole basis for finding pretext.” Donald
v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012) (citation omitted). Kuklinski therefore fails to
establish that Defendant’s legitimate reason for removing him as disciplining officer is pretext for
discrimination. Thus, Defendant is entitled to summary judgment on this claim.
2.
Nichols’s First Investigation
Next, Kuklinski argues that Defendant retaliated against him when it hired Nichols to
investigate Harassing Officer’s rebuttal allegation that Kuklinski had an inappropriate relationship
with Harassed Officer.
Kuklinski claims that Defendant began this investigation because
Kuklinski advised Harassed Officer to seek EEO guidance. [DE 118 at 1743].
Like Kuklinski’s first claim, Kuklinski has set out a prima facie case of discrimination with
respect to this allegation. The Sixth Circuit has held that an employer’s “gratuitous investigations”
can constitute an adverse action. Bridgewater, 282 F. Supp. 3d at 1000–01. Even if Defendant’s
investigation of Harassing and Harassed Officer’s allegations was “gratuitous,” the investigation
began on July 27, 2010—approximately two months after Kuklinski first informed Harassed
Officer that she should seek guidance from the EEO. [DE 117-8]. Accordingly, the temporal
proximity between the alleged protected activity and adverse action is sufficient to satisfy the
causation element of Kuklinski’s prima facie case. See Brown, 942 F. Supp. 2d at 736.
Kuklinski’s claim fails, however, at the pretext phase. Defendant explains that it initiated
the investigation into Harassing and Harassed Officers’ respective allegations because their
allegations were serious. [DE 108-1 at 824]. Defendant’s position is underscored by the fact that
it directed Nichols to investigate all of Harassing Officer’s allegations, not just the one that
14
involved Kuklinski. Id. at 823. The burden thus shifts to Kuklinski to establish that the reason is
pretextual. Penny, 128 F.3d at 417. Kuklinski’s argues that the allegations could not have been
serious because the OIG declined to investigate them, which, Kuklinski insists, demonstrates that
Defendant had no reason to conduct the investigation other than to burden Kuklinski. [DE 108-1
at 829]. However, the OIG’s decision not to investigate an allegation does not necessarily mean
that such an allegation is not serious. Because Kuklinski presents no other coherent argument for
pretext, Defendant is entitled to summary judgment on this claim.
3.
Nichols’s Second Investigation
Next, Kuklinski alleges that Defendant retaliated against him when it hired Nichols to
investigate possible management misconduct at the Depository. Kuklinski claims that Defendant
started this investigation because Kuklinski advised Harassed Officer to seek EEO guidance. [DE
118 at 1745].
Kuklinski has established a prima facie case for this charge. As noted, Kuklinski advised
Harassed Officer to seek EEO guidance on June 7, 2010, and Defendant initiated the investigation
regarding possible management misconduct at the Depository on September 23, 2010—about
three months later. (See DE 108-13, Anthony Kuklinski Dep. 131:21–132:1, Nov. 17, 2016; DE
117-12, Ex. 14 at 1465–66). Thus, the temporal proximity between the alleged protected activity
and adverse action satisfies the causation element of Kuklinski’s prima facie case. See Singfield,
389 F.3d at 563.
Even so, Kuklinski’s claim fails at the pretext phase. Defendant asserts that it began the
investigation into possible management misconduct at the Depository because it had reason to
believe that poor management contributed to ongoing morale issues among the Depository’s
employees. [DE 108-1 at 804; DE 108-12, Ex. 12 at 914]. The record illustrates that Defendant
15
suspected Kuklinski’s aggressive management style negatively affected Depository employees as
early as May 2009. [DE 108-3, Ex. 2]. Defendant was therefore justified in initiating a thorough
investigation directed at uncovering management misconduct. Thus, Defendant has met its
burden, and Kuklinski fails to mount a persuasive argument showing that Defendant’s reason for
its purported retaliatory conduct is pretext for discrimination. Defendant is thus entitled to
summary judgment on this claim.10
4.
Removal of Kuklinski’s Supervisory Duties
Kuklinski next asserts that Defendant retaliated against him when it revoked Kuklinski’s
supervisory authority. [DE 118 at 1743]. Kuklinski again complains that Defendant took this
action because Kuklinski advised Harassed Officer to seek EEO guidance. Id.
Kuklinski fails to set forth a prima facie case with respect to this charge. Stringer informed
Kuklinski that he was being relieved of his supervisory authority in late January 2011, more than
six months after Kuklinski advised Harassed Officer to seek EEO guidance. [DE 117 at 1284; DE
108-13, Anthony Kuklinski Dep. 131:21–132:1, Nov. 17, 2016]. As discussed, Kuklinski cannot
rely on temporal proximity alone to establish a causal connection between his protected activity
and Defendant’s alleged retaliation, and he presents no other argument or evidence on the
causation element of his prima facie case. See Mickey, 516 F.3d at 525. Defendant is thus entitled
to summary judgment on this claim.
In the context of a different claim, Kuklinski argues that Defendant’s reason for initiating this
investigation is pretext because employee morale was low before and after Kuklinski was in the position.
[DE 118 at 1753–54]. But whether morale issues existed before and after Kuklinski’s role as an inspector
is irrelevant to whether Defendant’s reason for starting the investigation “(1) has no basis in fact, (2) did
not actually motivate the Defendant’s challenged conduct, or (3) was insufficient to warrant the challenged
conduct.” Wexler, 317 F.3d at 576. The Court will not re-examine an employer’s nondiscriminatory
business decisions or otherwise tell an employer how to conduct its business. Duggan v. Orthopaedic Inst.
of Ohio, Inc., 365 F. Supp. 2d 853, 861–62 (N.D. Ohio 2005) (internal quotation omitted).
10
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5.
Forcing Kuklinski to Work in Maintenance Building
Next, Kuklinski argues that Defendant retaliated against him when it investigated and
ultimately suspended his security clearance. The investigation began in April 2011, shortly after
Kuklinski submitted a declaration in Harassed Officer’s EEO case. [DE 1085-13, Anthony
Kuklinski Dep. 114:19-23, Nov. 17, 2016; DE 117-3, Anthony Kuklinski Dep. 159:15-20, Nov.
17, 2016; DE 117 at 1285]. Thus, the Court assumes that Kuklinski’s claim is that, had he not
submitted the declaration, Defendant would not have investigated his security clearance
questionnaire or later suspended his security clearance.
This Court explicitly ruled in a prior order that “[t]he merits underlying the investigation
and suspension of the security clearance cannot serve as grounds for a justiciable claim under Title
VII.” [DE 43 at 315–18]. Accordingly, Defendant is entitled to summary judgment on this claim.
6.
Seeking to Relocate Kuklinski to Washington, D.C.
Kuklinski claims that Defendant retaliated against him when it sought to relocate him to a
position in Washington, D.C. He argues that Defendant took this action because Kuklinski
submitted a declaration in Harassed Officer’s EEO case. [DE 117 at 1285].
The evidence is insufficient to set forth a prima facie case of retaliation for this claim.
Kuklinski does not explicitly address the causal connection between his alleged protected activity
and Defendant’s purported adverse action, so the Court will assume that Kuklinski relies on
temporal proximity to establish the causation element of his claim. This reliance is misplaced.
The undisputed facts show that Kuklinski submitted the declaration in Harassed Officer’s case in
February 2011, and Defendant did not attempt to relocate him until March 2012. Id. Since
Kuklinski fails to present other arguments or evidence establishing the causation element of his
prima facie case, Defendant is entitled to summary judgment on this claim.
17
7.
Administrative Investigation Regrading Unlawful Photography
Next, Kuklinski asserts that Defendant retaliated against him when it initiated an
investigation about whether Kuklinski unlawfully photographed the interior of the Depository and
reprimanded him for his actions. [DE 118 at 1744]. According to Kuklinski, Defendant took this
action because Kuklinski initiated his EEO case. Id.
Kuklinski has presented sufficient evidence to establish a prima facie case with respect to
this charge.
Kuklinski initiated his EEO case on March 21, 2012, and Defendant began
investigating Kuklinski’s alleged unlawful photography in May 2012. Id. at 1291–92. Temporal
proximity satisfies the causation requirement because the protected activity and retaliatory event
occurred two months apart. See Singfield, 389 F.3d at 563. And as noted above, initiation of an
investigation constitutes a retaliatory action. See Bridgewater, 282 F. Supp. 3d at 1000–01.
Even so, Kuklinski’s claim fails at the pretext phase. As Defendant explained in its brief,
federal regulations prohibit photography on the property of the Depository without the permission
of the Director of the Mint. [DE 108-1 at 814 (citing 31 C.F.R. § 91.10)]. Kuklinski took
photographs at the Depository without permission and presented them to Defendant during
mediation, prompting an investigation and eventual reprimand. [DE 117 at 1293]. Given that
Kuklinski’s conduct appeared to violate federal regulations, Defendant’s decision to investigate
that conduct and reprimand Kuklinski was legitimate. See Swanson v. Livingston Cty., 121 F.
App’x 80, 85 (6th Cir. 2005) (affirming the district court’s conclusion that employer was justified
in investigating employee’s alleged violation of an internal regulation). Kuklinski also fails to
show that Defendant’s reason for investigating and reprimanding him for unlawfully
photographing Depository property is pretext for discrimination.
Kuklinski complains that
Defendant’s proffered reason is pretext because the Depository, in a separate instance, “permitted
18
[Kuklinski’s] counsel to have photographs” of the Depository taken “for use as evidence in the
trial of this case.” [DE 118 at 1754]. But the fact the Depository later permitted Kuklinski’s
counsel to have photographs taken of the Depository does not excuse Kuklinski’s violation of 31
C.F.R. § 91.10. Defendant is therefore entitled to summary judgment on this claim.
8.
Ordering Kuklinski to Undergo Fitness-for-Duty Exam
Finally, Kuklinski asserts that Defendant retaliated against him when it ordered Kuklinski
to undergo a fitness-for-duty exam. Id. at 1737–38. Kuklinski claims that Defendant took this
action because Kuklinski initiated a case with the EEO. Id. at 1744. Kuklinski initiated his EEO
case on March 21, 2011, and Defendant asked Kuklinski to conduct a fitness-for-duty exam in
September 2013. [DE 117 at 1291, 1295].
Like some of his other claims, Kuklinski does not explicitly address the causal connection
between his alleged protected activity and Defendant’s purported adverse action, so the Court will
assume that Kuklinski relies on temporal proximity to establish the causation element of his claim.
The undisputed facts show that Kuklinski submitted the declaration in Harassed Officer’s case in
February 2011, and Defendant did not seek to relocate him until March 2012—more than a year
later. Id. at 1285. Since Kuklinski fails to present any other evidence establishing the causation
element of his prima facie case, Defendant is entitled to summary judgment on this claim.
B.
Breach of Contract
Kuklinski also asserts a breach-of-contract claim, which arises from Defendant’s alleged
failure to abide by the terms of a mediation agreement it entered into with Kuklinski during the
parties’ settlement attempts. [DE 83 at ¶¶ 66–71]. Specifically, Kuklinski claims that Defendant
violated the confidentiality provisions of the agreement when it failed to keep photographs and
medical records Kuklinski produced during the mediation private. Id. at ¶¶ 69–70.
19
Defendant responds that this Court lacks jurisdiction over this claim for two reasons. First,
Defendant argues that under the Tucker Act, the United States Court of Federal Claims has
exclusive “jurisdiction to render judgment upon any claim against the United States founded . . .
upon any express or implied contract with the United States.” See 28 U.S.C. § 1491(a)(1).
Defendant notes that, although the Little Tucker Act allows a district court to hear such a claim
when its monetary value is less than $10,000.00, see 28 U.S.C. § 1346(a)(2), Kuklinski admitted
during discovery that his breach-of-contract claim seeks monetary damages greater than
$10,000.00. [DE 108-19, Ex. 20]. Thus, according to Defendant, Kuklinski’s claim cannot be
heard in federal district court. [DE 108-1 at 833–34]. Second, Defendant asserts that even if
Kuklinski seeks less than $10,000.00, his claim still fails because a court only has jurisdiction over
a contract under the Tucker Act if the contract at issue can be “fairly interpreted as mandating
compensation by the Federal Government.” Id. at 834–35 (quoting Holmes v. United States, 657
F.3d 1303, 1309 (Fed. Cir. 2011)). Defendant explains that Higbie v. United States, 778 F.3d 990
(Fed. Cir. 2015) holds that the United States’ breach of confidentiality provisions in mediation
agreements does not give rise to damages, so such claims are not actionable under the Tucker Act.
[DE 108-1 at 835].
Kuklinski maintains that neither of Defendant’s jurisdictional arguments is persuasive.
Kuklinski argues that he can waive his ability to receive damages greater than $10,000.00 to bring
his claim within the purview of the Little Tucker Act. [DE 118 at 1755–56]. Kuklinski also asserts
that Defendant’s reliance on Higbie is misplaced because Higbie holds that breaches of mediationrelated confidentiality agreements do not usually support monetary damages because nonmonetary remedies—such as exclusion of the information disclosed—are usually available. Id. at
1756–77. Kuklinski argues that he cannot obtain a non-monetary remedy based on Defendant’s
20
supposed breach because, among other things, “[e]xclusion cannot erase the[] events [that injured
Kuklinski] and remedy the damage to [Kuklinski’s] professional reputation and health.” Id. at
1777. Thus, Kuklinski concludes, because non-monetary damages are unavailable to him, the
rationale of Higbie does not apply, and the mediation agreement here can be interpreted as
requiring monetary damages. Id.
Even if Kuklinski properly waived his ability to seek monetary damages greater than
$10,000.00 for his breach-of-contract claim,11 his claim is still not actionable under the Tucker Act
pursuant to the Federal Circuit’s reasoning in Higbie. The facts of Higbie are nearly identical to
the facts of this case. There, the parties participated in alternative-dispute resolution after the
plaintiff initiated an EEO claim. Higbie, 778 F.3d at 991. During mediation, the parties agreed
that all information produced during mediation would be confidential under a boilerplate
confidentiality provision, which read: “Any documents submitted to the mediator(s) and
statements made during the mediation are for settlement purposes only.” Id. at 992. When the
plaintiff later sued, he claimed that the defendant breached the confidentiality agreement when it
disclosed information produced during mediation. Id. The U.S. Court of Appeals for the Federal
Circuit affirmed the lower court’s dismissal of the plaintiff’s breach-of-contract claim, reasoning
that the boilerplate confidentiality provision did not contemplate monetary damages because nonmonetary remedies—i.e., exclusion of the improperly disclosed information during later
proceedings—were available and there was no other indication that the parties intended for a
breach of the confidentiality provision to result in monetary damages. Id. at 994–95.
11
The Court questions whether Kuklinski can admit in evidence that he is seeking more than $10,000.00 in
damages on a claim and then withdraw that admission in his briefing. Even so, because the Court can
adequately dispose of Kuklinski’s claim pursuant to Higbie, it will assume Kuklinski’s waiver was
appropriate.
21
As with Higbie, the confidentiality provision here simply states: “Any documents
submitted to the mediator and statements made during the mediation are for settlement purposes
only.” [DE 108-18, Ex. 19 at 1083]. That provision contemplates a non-monetary remedy—i.e.,
exclusion of information—and the record contains no indication that the parties intended for a
breach of the provision to create monetary damages.
Kuklinski’s attempt to distinguish Higbie is unpersuasive. Kuklinski complains that he
cannot obtain an adequate non-monetary remedy based on Defendant’s supposed breach because
“[e]xclusion cannot erase the[] events” that injured Kuklinski. [DE 118 at 1757]. But the same
would be true for the plaintiff in Higbie. Once the information is disclosed, the injury has occurred.
Yet, the Federal Circuit concluded that a non-monetary remedy was available and that, in the
absence of some other indication that the parties contemplated a monetary remedy for a breach of
the provision, the contract did not contemplate monetary damages. Higbie, 778 F.3d at 994–95.
Thus, Kuklinski’s claim is not actionable under the Tucker Act and must be dismissed.
IV.
CONCLUSION
For all these reasons, and being otherwise sufficiently advised, IT IS HEREBY
ORDERED that Defendant’s Motion for Summary Judgment [DE 108] is GRANTED. This is a
final and appealable order.
March 4, 2019
Cc:
Counsel of record
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