Carrethers v. McHugh
Filing
63
MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 5/31/2019: The Court will grant the Secretary's motion for summary judgment in all respects. A separate order will be entered in accordance with this opinion. cc: counsel (JM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
Lorraine CARRETHERS
PLAINTIFF
v.
CIVIL ACTION NO. 3:16-CV-62-CRS
Mark T. ESPER, SECRETARY,
DEPARTMENT OF THE ARMY
DEFENDANT
MEMORANDUM OPINION
I.
Introduction
This case is before the Court on cross-motions for summary judgment. DNs 57, 58. Both
motions are ripe for review. Examining the issues, the Court finds that the Defendant has
asserted a legitimate, nondiscriminatory reason for Plaintiff’s termination which Plaintiff has not
demonstrated to be pretextual, that Plaintiff’s whistleblower claim is preempted by Title VII, and
that the Merit Systems Protection Board did not exceed its authority. As a result, the Court will
grant the Defendant’s motion as to all claims in the complaint.
II.
Legal Standard
A party moving for summary judgment must show 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). “[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). A genuine issue for trial exists when “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Id. In undertaking this analysis, the
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Court must view the evidence in the light most favorable to the non-moving party. Scott v.
Harris, 550 U.S. 372, 378 (2007).
The party moving for summary judgment bears the burden of establishing the
nonexistence of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
They can meet this burden by “citing to particular parts of materials in the record” or “showing
that the materials cited do not establish the . . . presence of a genuine dispute.” FED. R. CIV. P.
56(c)(1). This burden can also be met by demonstrating that the nonmoving party “fail[ed] to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
III.
Factual and Procedural Background
In January 1998, Lorraine Carrethers—a black woman—began working as an IT
Specialist for the Department of the Army Human Resources Command for the Adjutant General
Directorate at Fort Knox, Kentucky. DN 29 at 2. She was promoted to a supervisory position in
2004, where she remained until her termination in 2014 (which is at issue in this case). Id. In
2012, she began reporting to Theresa McGuire and David Cathell. Id. Cathell was the Chief of
the Operations and Services Division for the Adjutant General Directorate at Fort Knox and
served as Carrethers’s second-line supervisor. McGuire was the Deputy Chief and oversaw the
office when Cathell was absent. According to Carrethers, those two began a pattern of sexual
harassment, race-based discrimination, and retaliation leading to her termination.
Carrethers’s first complaint came in February 2013, when she complained both
informally and formally about McGuire and Cathell to the Army’s Equal Employment
Opportunity (“EEO”) office. DN 57-2. She alleged that they had made offensive comments
regarding her job performance, displayed irrational and unpredictable fits of rage toward her, and
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retaliated against her for complaining. Id. at 2–3. She believed these actions were designed to
create a hostile work environment based on her race. Between her informal and formal EEO
complaints, Cathell issued Carrethers an adverse counseling statement for failing to follow
instructions regarding a purchase order. DN 62-1. This act gave rise to the included retaliation
claim. Ultimately, after her termination, the EEO complaint resulted in a settlement and
accompanying agreement where, in exchange for a lump sum monetary amount, Carrethers
agreed to waive all other remedies and claims related to the EEO matters and accept the
settlement as no-fault. DN 13 at 2 (sealed).
Carrethers’s next informal complaint came in April 2013. DN 57-4. In it, she alleged that
she had been “constantly bullied or harassed” by McGuire since September 2012. Id. at 2.
Specifically, she alleged that McGuire said “I’ll have the SGM1 do you!” which Carrethers
interpreted as a threat of physical violence. Id. When another employee expressed concern about
Carrethers’s health, McGuire allegedly responded “Good. I hope she dies.” Id. at 3. At another
point, Carrethers alleged that she overheard Cathell telling another employee that he intended to
harm her. Id. Carrethers also says she was concerned because McGuire began asking people
where she lived, Id. at 2, and Cathell, seeing Carrethers in the parking lot in her car, allegedly
remarked “There she is, now I know what her car looks like,” Id. at 4. For all of these events,
Carrethers named other employees as witnesses. However, when asked, those who were
interviewed denied that the events occurred. DN 57-10 at 2; DN 57-12 at 2; DN 57-14 at 2–3.
Out of an abundance of caution, the military police conducted an investigation. The subsequent
report “revealed that there is no probable cause or evidence that corroborates any allegations of a
criminal intent” and closed the case as unfounded. DN 57-26 at 6.
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It is the Court’s understanding that SGM in this context refers to an unnamed sergeant major.
3
Carrethers’s final complaint was filed in October 2013 and alleged that McGuire had
sexually harassed her. Specifically, she complained that: McGuire peeped into the bathroom stall
where Carrethers was urinating; McGuire stated that Carrethers “liked” her and kept smiling at
her; McGuire winked at her, blew kisses at her and acted provocatively toward her; and McGuire
mocked and belittled Carrethers in the presence of her co-workers and superiors. DN 1 at 4. To
investigate the allegations, the Army appointed an investigating officer pursuant to its
regulations. DN 57-6. As part of the investigation, the officer interviewed fourteen employees
who worked with Carrethers, McGuire, and Cathell. DN 57-7 at 4. In sworn statements, all of
them denied having witnessed any harassment of Carrethers. See DNs 57-8, 57-9, 57-10, 57-11,
57-12, 57-13, 57-14, 57-15, 57-16, 57-17, 57-18, 57-19. As a result, the investigating officer
determined that Carrethers had presented “no substantiated facts” to support her allegations and
concluded that Carrethers was “abusing the system to cover up her inability to perform assigned
duties at her current grade.” DN 57-7 at 4.
In March 2014, Carrethers was presented with a Notification of Proposed Removal which
alleged she had made unsubstantiated and inappropriate remarks against her supervisors. DN 585.2 She was ultimately removed for that reason on April 9, 2014. DN 58-6. Following her
removal, Carrethers instituted an appeal with the Merit Systems Protection Board (“MSPB”),
alleging that her removal was retaliatory. DN 57-25. Ultimately, the MSPB upheld her
termination on January 6, 2016. DN 58-7. On February 2, 2016, Carrethers filed suit, naming the
Secretary of the Army in his official capacity.3 Her complaint asserts violations of Title VII of
2
Carrethers had been previously reprimanded for making unfounded statements against her co-workers and
supervisors, though unrelated to the subject matter of this litigation. DN 57-23 at 2–4. In that letter of reprimand, she
was specifically warned that “[a]ny future infraction may result in a more severe disciplinary action including
removal from the Federal service.” Id. at 4.
3
The complaint names “John H. McHugh, Secretary, Department of the Army” as defendant. DN 1 at 1. McHugh
resigned his position in 2015. Mark T. Esper has filled that position since 2017. Therefore, the Court will direct the
Clerk of Court to appropriately modify the case caption.
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the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Whistleblower Protection Act
(“WPA”), as supplemented by the Whistleblower Protection Enhancement Act (“WPEA”), 5
U.S.C. §§ 2302 et seq., and challenges the decision of the MSPB.
IV.
Discussion
As an initial matter, the Secretary attempts to revive an estoppel argument that he has
previously conceded was inapplicable. Moving past that and addressing the retaliation claims,
the Court finds that the Secretary has put forward evidence of a legitimate, nondiscriminatory
reason for terminating Carrethers’s employment which she has been unable to rebut. As a result,
the Court will grant summary judgment on the Title VII claim. Finding that Title VII preempts
the WPA/WPEA claim, the Court will dismiss that claim as well. Finally, in light of the first two
holdings, the Court finds that the MSPB did not act arbitrarily and capriciously and dismisses
that claim.
A.
Estoppel
The Secretary asserts that Carrethers’s EEO settlement estops her from litigating any
matters included in her EEO complaint. The settlement stated that Carrethers “agrees to waive
her right to pursue administrative or judicial action in any forum concerning the matters raised in
the subject complaint and any related grievances . . . .” DN 13 at 2 (sealed). However, it
explicitly “does not apply to” her MSPB case. Id. at 3.
At the motion to dismiss stage, this Court dismissed all claims relying in part on an
estoppel argument. Carrethers v. Sec’y of the Army, No. 3:16-CV-62-CRS, 2016 WL 4132497
(W.D. Ky. Aug. 3, 2016). Specifically, the Court determined that a retaliation claim was a
“related grievance” which was waived by the EEO settlement. Id. at *3. However, on appeal, the
Secretary conceded in his brief that the holding was error:
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Part of the basis of the court’s decision was that the suit was barred by Carrethers’
earlier settlement agreement. (Id. at #169-70). As discussed, the United States
concedes that Carrethers’ settlement agreement does not bar the claims Carrethers
pursues in this case because the present claims relate (despite her inartful pleading
about the earlier events in her Complaint) to alleged incidents not covered by the
agreement. Accordingly, the Army does not argue that Carrethers’ claims are
barred—simply that her Complaint was factually deficient and thus failed to state
a claim upon which relief could be granted.
DN 60-10 at 14–15 (emphasis in original). The Sixth Circuit, relying in part on that concession,
reversed and remanded the case. Carrethers v. Speer, 698 F. App’x 266, 271 (6th Cir. 2017).
Now, the Secretary asks the Court to “decline to consider” any matters that were covered
by the EEO complaint. Since the Secretary has already conceded that the retaliation claims raised
by this lawsuit are not covered by the previous settlement, the estoppel argument carries no
force, regardless of the Court’s original opinion on the merits of such a defense.
B.
Title VII Retaliation Claim
Title VII’s anti-retaliation provision prohibits discrimination against an employee or
applicant who “has opposed any practice made an unlawful employment practice by [Title VII],
or . . . has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). In proving a case of
retaliation, a Plaintiff may demonstrate the retaliation through either direct or circumstantial
evidence. Spengler v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir. 2010).
i.
Direct Evidence
“Direct evidence is evidence, which if believed, does not require an inference to conclude
that unlawful retaliation motivated an employer’s action.” Id. (citing Imwalle v. Reliance Med.
Prods., Inc., 515 F.3d 531, 543–44 (6th Cir. 2008)). “Evidence that only suggests discrimination
or that is subject to more than one interpretation does not constitute direct evidence.” Merritt v.
Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (citations omitted). For that reason,
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actions or statements of an employer which reflect a clearly discriminatory or retaliatory attitude
are required. Compare Johnson v. Univ. of Cincinnati, 215 F.3d 561, 577 n.7 (6th Cir. 2000)
(finding direct evidence of discrimination where a university president allegedly said, “[w]e
already have two black vice presidents. I can’t bring in a black provost”), with Johnson v. Kroger
Co., 319 F.3d 858, 865 (6th Cir. 2003) (finding no direct evidence of discrimination where a
manager expressed “concern about the potentially detrimental effect on business of having an
African American comanager”).
Carrethers argues that her case can be made with direct evidence because it is
uncontested that she filed complaints with her employer and was fired as a result of those
complaints. At first glance, it seems an attractive argument, as the Secretary has admitted it
terminated Carrethers for the content of her complaints. DN 58-5 at 1 (letter terminating
Carrethers for “[m]aking unsubstantiated and inappropriate remarks against your first-line and
second-line supervisors.”). However, adopting that argument would make termination resulting
from filed complaints per se retaliation regardless of the veracity of the complaints, which is
clearly not supported by the law. See e.g. Fuelling v. New Vision Med. Labs. LLC, 284 F. App’x
247, 256 (6th Cir. 2008) (making false complaints is a legitimate, nondiscriminatory reason for
adverse employment actions); Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 469 (6th Cir.
2012) (to fall under the umbrella of protected activity, a plaintiff must have “a reasonable and
good faith belief” that the acts opposed were Title VII violations).
Carrethers certainly disputes the Secretary’s claims but at a minimum it is clear that the
termination letter is not direct evidence of retaliation since it explicitly alleges falsity. A dispute
over veracity vitiates the availability of direct evidence because the factfinder must draw
inferences and weigh creditability. See Merritt, 120 F.3d at 1189 (“Evidence that . . . is subject to
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more than one interpretation does not constitute direct evidence.”). In a more straightforward
case, an employer’s action or statements stemming from an investigation could reach the
standard of direct evidence. See Id. at 1190 (finding direct evidence of retaliation when the
company president said “[y]our deposition was the most damning to [the company’s defense in a
sexual harassment] case, and you no longer have a place here at [the] Company.”). However, that
is not this case and Carrethers must rely on circumstantial evidence to prove her claims.
ii.
Circumstantial Evidence
Where proof is made by circumstantial evidence, the court applies the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its progeny. Under
the McDonnell Douglas paradigm, the plaintiff “must carry the initial burden under the statute of
establishing a prima facie case” of retaliation. Id. at 802. Afterward, the burden shifts to the
employer to articulate “some legitimate, nondiscriminatory reason” for the alleged retaliatory
action. Id. “To satisfy its evidentiary requirement, the employer need only articulate an
acceptable explanation for its actions; the reason given need not be convincing.” David v. ANA
Tel. Network, Inc., 208 F.3d 213, at *4 (6th Cir. 2000) (table op.) (citations omitted).
The plaintiff must then “be afforded a fair opportunity to show [by a preponderance] that
[the employer’s] stated reason for [the retaliatory action] was in fact pretext.” McDonnell
Douglas, 411 U.S. at 804. The plaintiff may demonstrate pretext by showing that the alleged
legitimate, nondiscriminatory reason “(1) had no basis in fact, (2) did not actually motivate
defendant’s conduct, or (3) was insufficient to warrant the challenged conduct.” Fuelling, 284 F.
App’x at 254 (citations omitted) (alterations in original). Despite the burden-shifting framework,
“the ultimate burden of proving that the defendant intentionally discriminated against the
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plaintiff remains with the plaintiff at all times.” Wrenn v. Gould, 808 F.2d 493, 500, 500 (6th Cir.
1987) (citation omitted)
A prima facie case of retaliation requires a showing by a preponderance: “(1) that
plaintiff engaged in an activity protected by Title VII; (2) that the exercise of his civil rights was
known by the defendant; (3) that, thereafter, the defendant took an employment action adverse to
the plaintiff; and (4) that there was a causal connection between the protected activity and the
adverse employment action.” Id. (citations omitted). This initial burden is “easily met.” Id.
(citations omitted). It is undisputed in this case that the Secretary was aware of the activities
Carrethers claims were protected and that the Secretary took an adverse employment action
against Carrethers. It is a close call whether Carrethers could demonstrate sufficient evidence
that she participated in a protected activity and that her termination was caused by her
participation in such an activity.4 However, assuming arguendo that Carrethers can make her
prima facie case, the Secretary has produced evidence of a legitimate, nondiscriminatory reason
which Carrethers cannot rebut.
As briefly discussed above, supra (IV)(B)(i), terminating an employee for making false
complaints is a legitimate, nondiscriminatory reason for an adverse employment action. Fuelling,
284 F. App’x at 256. In this case, Carrethers made repeated allegations of discrimination and
harassment. However, no other employee was able to corroborate her allegations. In contrast,
many employees actively disputed her allegations. Some even noted in their sworn statements
that Carrethers had developed a reputation for making false statements. See DN 57-9 at 2
The issue essentially devolves into whether Carrethers’s allegations were “not so devoid of factual support as to be
patently unreasonable,” Wasek, 682 F.3d at 469, and whether her complaints were the but-for cause of her
termination, Univ of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013). Such issues are inherently factual. At
this point, with the Court taking the facts in the light most favorable to Carrethers, it is likely she would survive the
initial hurdle of a prima facie case.
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(Carrethers presence “caused me and my team to refrain from brainstorming in our work area
and relocate to different locations, to prevent Ms. Carrenthers’ [sic] from submitting false
statements to leadership about her employment.”); DN 57-13 at 2 (Carrethers “repeated
accusations and false truths have made it very hard to work around her within TAG. It makes for
a very scary work environment when she is in the vicinity because you never know what she is
going to make up next.”). As a result, Carrethers had been disciplined multiple times for making
false complaints.
While Carrethers deposition standing alone and in direct opposition to all other evidence
may survives the low hurdle of putting on a prima facie case, it is not sufficient to demonstrate
pretext. Carrethers was unable to find even one scintilla of other evidence that her allegations
were true. It strains credulity to believe that every employee who worked with Carrethers was
complicit in some conspiracy to harass and retaliate her. In the face of such myriad evidence, no
reasonable juror could find for Carrethers and, therefore, the Secretary is entitled to summary
judgment.
C.
Whistleblower Protection Act/Whistleblower Protection Enhancement Act
Claim
The WPA/WPEA prohibits government officers from retaliating against employees or
applicants “because of any disclosure of information by an employee or applicant which the
employee or applicant reasonably believes evidences any violation of any law, rule, or
regulation.” 5 U.S.C. § 2302(b)(8)(A)(i). However, when dealing with issues of employment
discrimination, the WPA/WPEA is displaced and preempted by Title VII. Brown v. Gen. Servs.
Admin., 425 U.S. 820, 835 (1976) (Title VII “provides the exclusive judicial remedy for claims
of discrimination in federal employment.”). See also e.g. Pretlow v. Garrison, 420 F. App’x 798,
801 (10th Cir. 2011) (“Insofar as [a federal employee] complains of discrimination and
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associated retaliatory conduct, his exclusive remedy is provided by Title VII”). As a result,
Carrethers’s WPA/WPEA claim is preempted and must be dismissed.
D.
Merit Systems Protection Board Review
The Civil Service Reform Act permits “mixed cases” where “an employee complains of a
personnel action serious enough to appeal to the MSPB and alleges that the action was based on
discrimination.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012) (italics in original). See 5 U.S.C. §
7703(b)(2). On the discrimination portion of the case, the Plaintiff is entitled to trial de novo by
the Court. 5 U.S.C. § 7703(c). The non-discrimination portion is reviewed on the administrative
record an may be set aside only if found to be “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. §§
7703(c)(1)–(3). “Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol.
Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938).
Plaintiff argues that the MSPB erred in finding that she could be removed from her
position for filing her complaints, rehashing the same arguments she makes in relation to her
Title VII retaliation claim. However, as already discussed in-depth, Carrethers was terminated
for making false complaints, which is a legitimate, nondiscriminatory reason for her termination.
This was also the finding of the MSPB. As a result, the Court cannot say that the MSPB acted
arbitrarily or capriciously or that the determination was unsupported by substantial evidence.
Therefore, the Secretary is entitled to summary judgment.
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V.
Conclusion
Title VII’s anti-retaliation provision is designed to protect employees who reasonably and
in good faith report harassment or discrimination. However, an employer is not obligated to
continue employing someone who has repeatedly abused that system. In this case, the Secretary
terminated Carrethers because it found that she was doing just that—making complaints without
a reasonable, good faith basis to support them. She has been unable to provide any evidence to
indicate that the Secretary’s decision was pretextual and has not demonstrated any error in the
well-reasoned opinion of the MSPB. Therefore, the Court will grant the Secretary’s motion for
summary judgment in all respects.
A separate order will be entered in accordance with this opinion.
May 31, 2019
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